1943 Present : Hearne J.

PERERA v. KANNANGARA.

IN THE MATTER OF AN APPLICATION FOR A WRIT OF CERTIORARI AND
MANDAMUS AGAINST THE RETURNING OFFICER OF THE COLOMBO
MUNICIPALITY

 

Writ of certiorari-Objection to nomination paper-Returning officer upholds objection after time fixed by law-Acts without jurisdiction-Judicial capacity-Nomination regular-Power of Supreme Court to order-Contested election-Writ of mandamus-Colombo Municipal Council Constitution Ordinance (Cap. 194) 2. 32 (2) and (4) and s. 37.

Section 32 (2) of the Municipal Council (Constitution) Ordinance, which enacts that no objection to a nomination paper shall be allowed unless it is made to a Returning Officer between the hours of 12 noon and 1.30 P.M. on nomination days, expressly prohibits, Returning Officer from entertaining an objection unless it is preferred within the time fixed by the section.

Where a Returning Officer upholds an objection, which is not made within the time fixed by law, he acts without jurisdiction and a writ of certiorari would like to review his decision.

Where the Supreme Court holds that the nomination paper of a candidate, which the Returning Officer had rejected, was regular, the Court has power by Mandamus to order the Returning Officer to carry out the provisions of section 37 of the Ordinance with regard to a contested election.

THIS was an application for a writ of Certiorari and a writ of Mandamus against the Returning Officer of the Colombo Municipality.

H. V. Perera, K. C. (with him J. L. M. Fernando), in support.

J. E. M. Obeyesekere (with him S. Kadirgamer), for first respondent.

N. E. Weerasooria, K. C. (with him E. B. Wikremanayake), for second respondent.

Cur. adv. cult.

November 20, 1943, HEARNE J.-

The petitioner was a candidate for election as member for the Kochchikade Ward of the Colombo Municipal Council. In his petition, which was verified by affidavit, he stated inter alia, that "between 12 noon and 1 P.M. on nomination day (November 11th) he delivered two nomination papers with true copies thereof to the Returning Officer": that "a nomination paper nominating S. Saravanamuttu was also "delivered": that at 2.15 P.M. S. Saravanamuttu on the ground that "the nomination paper of the petitioner had not been delivered in accordance with section 32 (1) (b) of the Colombo Municipal Council (Constitution) Ordinance" and declared S. Saravanamuttu to be elected: that he ascertained that the Returning Officer considered only one of his nomination papers: and, finally, that no decision was given by the Returning

Officer in respect of the other duly perfected nomination paper which had been delivered with a copy annexed. He prayed for the issue of a writ of certiorari to quash the decision of the Returning Officer and also for a writ of mandamus ordering him to take the steps required to be taken under section 37 of the Ordinance on the footing that more than one candidate had been nominated for Kochchikade Ward.

The Returning Officer is the first and S. Saravanamuttu the second respondent to the petition.

From the affidavits submitted by the first respondent and on his behalf it would appear that confusion must have reigned supreme in the "Hall where the nomination proceedings had taken place". It is not surprising and the first respondent is deserving of sympathy. He was doing at the same time and in the same place the work of Returning Officer for Kochchikade Ward and 29 other wards as well, in fact all the wards of the Colombo Municipal Council.

In answer to the allegation of the petitioner that "he had delivered two nomination papers with copies therefore" to the first respondent, the latter in his affidavit says "certain papers" were handed to him by the petitioner and other candidates and that these papers were then handed by him to his clerk, Mr. Fernando. No record appears to have been kept of papers handed in or the time of receipt