Kuruppu V. Hettiarachchi, D.F.

1948 Present : Canekeratne J.
 
KURUPPU, Petitioner, and D. F. HETTIARACHCHI, et el.,
Respondents.
 
Election Petition No. 6 of 1947, Nivitigala.

Election petition-Objection to. ballot papers-Void for uncertainty-Duty of Returning Officer before declaring result-Decision final-Right to object on petition- Parliamentary Elections Order in Council, 1946-Section 49 (5).
 
Under the Parliamentary Elections Order in Council, 1946, a duty is cast on the Returning Officer to examine the ballot papers before he declares the result of the poll. When the Returning Officer looks at a ballot paper he is in an attitude of consciousness to it and if he has counted it as a vote a Court would, in the absence of evidence to the contrary, come to the conclusion that he has decided on the validity of the ballot paper : his decision is final under section 49 (5) of the Order in Council.

THIS was an election petition presented against the return of the 1st respondent as member for the Nivitigala Electoral District, at the election held on August 28, 1947.
 
N. E. Weerasooria, K.C., with E. B. Wickramanayake, Christie Sene-viratne, George Samaraivickreme, and A. B. Perera, for the petitioner.
 
S. Nadesan, with Sylvan Fernando and Titus Ooonetilleke, for the 1st respondent.
 
T. S. Fernando, Crown Counsel, with M. Tiruchelvam, Crown Counsel, for the 2nd respondent.

Cur. adv. vult.

April 30, 1948. Canekeratne J.-
 
The petitioner and the 1st respondent (Mr. Hettiarachchi) were two of the candidates at the Parliamentary Election for the Nivitigala Electoral District, on August 28, 1947. The 2nd respondent is the Returning Officer, for the district. The 1st respondent was returned as being elected by a majority of 24 votes, the numbers being 5,626 votes for him and for the petitioner 5,602 votes. The petitioner's case, as it appears in the petition and particulars, is that the election of the 1st respondent ought to be held bad on account of breaches of the law relating to Parliamentary elections which the petitioner alleges to have been committed. The principal grounds were delivery of ballot papers which were not stamped or perforated with the official mark, (which may be called the first ground), the number of voters to whom ballot papers were issued and marked in the Register of Electors not corresponding with the total number of voters declared by the Returning Officer to have voted at the election, (which is referred to hereafter as the second ground), ballot papers which were unmarked or void for uncertainty being counted as valid votes, (which may be called the third ground), votes of persons who committed personation should be struck off and the tendered votes cast for the petitioner be added to the poll, (which is referred to hereafter as the fourth ground).
 
At the trial of this petition, not less than 1,256 votes were objected to on one side or the other-of these, 589 were votes for the 1st respondent and 667 for the petitioner. Shortly after the commencement of the trial the objections to 254 were abandoned by the petitioner and to 278 by the 1st respondent. Twenty of the remaining votes-of these 6 were votes for the 1st respondent, and 14 for the petitioner-were objected to on the ground that the ballot papers on which such votes were given had no official mark. It was common ground between the parties that one vote cast for another candidate had been counted for the 1st respondent and six votes cast for the 1st respondent had been counted for the petitioner. After the cross-examination of the 2nd respondent whom he called as a witness, Mr. Weerasooria informed the Court that he would not proceed with the second ground as all the presiding officers had not been summoned or with the fourth ground as the total number of tendered votes would not affect the ultimate result of the case. The

whole dispute then between the parties on the first day was whe

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