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THAMBIAYAH v. KULASINGHAM
NLR50V25
1948 Present.
Wijeyewardene A. C. J., Canekeratne and Windham JJ.
THAMBIAYAH, Appellant, and
KULASINGHAM, Respondent.
ELECTION PETITION APPEAL No. 1 OF 1948; ELECTION PETITION No. 1 OF
1947. ELECTION FOR KAYTS
ELECTORAL DISTRICT No. 44 HOLDEN
ON AUGUST 23, 1947. IN THE MATTER
OP AN APPEAL UNDER. SECTION 82A OF
THE CEYLON (PARLIAMENTARY ELECTIONS) ORDER IN COUNCIL, 1946, AS AMENDED BY THE PARLIAMENTARY ELECTIONS.
(AMENDMENT) ACT, No. 19 OF 1948.
Election petition-Company having contract with Crown - Is
shareholder disqualified? - Indirect benefit-Ceylon (Constitution) Order in
Council, 1946, section 13 (3) (c)-Right of appeal from decision of Election
Judge-Amendment of Ceylon (Parliamentary Elections) Order in Council, 1946-Is
it ultra Vires ?-Parliamentary Elections
(Amendment) Act, No. 19 of 1948-Ceylon (Constitution) Order in Council, 1946,
section 29 (4).
Held : (i) A shareholder of a Company having a
contract with the Crown for the providing of goods or services to be used in
the service of the Crown cannot be said to enjoy indirectly a benefit under the
contract and is therefore not a person who is disqualified under section 13 (3)
(c) of the Ceylon (Constitution) Order in Council, 1946.
(ii) Section 29 (4) of the
Ceylon (Constitution) Order in Council, 1946, requires a two-third majority for
an amendment of the provisions of that Order and no other. A two-third majority
is therefore not required for the amendment of the Parliamentary Elections
Order ip Council, 1946.
(iii) The provisions of the Parliamentary Elections Amendment Act,
No. 19 of 1948, in so far as they give a right of appeal from the determination
of the Election Judge, are intra vires.
(iv) The provisions of the Ordinance No. 19 of 1948, in so far as
they relate to a report by the Supreme Court which embodies a finding that a
corrupt or illegal practice has been committed, are ultra vires.
Kulasingham v. Thambiayah (1948) 49 N. L. R. 505 overruled.
APPEAL
from the judgment of the Election Judge in Election Petition, Kayts. The
judgment of the Election Judge is reported in (1948) 49 N. L. R. 505.
The election of the appellant as Member of Parliament for
the Electoral District of Kayts was declared void by the Election Judge on the
ground that he enjoyed benefits under certain contracts with the Crown at the
time of the election. Shortly thereafter, the Parliamentary Elections Order in
Council, 1946, was amended by the Parliamentary Elections (Amendment) Act, No.
19 of 1948, enabling an appeal to a Bench of three Judges from an Election
Judge's finding on a point of law. The appellant, thereupon, appealed.
The respondent, appearing in person,
raised a preliminary objection to the jurisdiction of the court in the matter
of this appeal-The question. involved is not only important in regard to this
appeal but is also a matter of great constitutional importance. The objection
to jurisdiction is based on two grounds: Firstly, sections 3 and 4 of the
Parliamentary
Elections (Amendment) Ac
