1950 Present: Dias S.P.J.

IN RE ABU BAKR

S. C. 333-Application for an " authorised excuse " under section 75 of the Ceylon (Parliamentary Elections) Order in Council, 1946

Parliamentary Elections Order in Council, 1946-Sections 70 and 75-Transmission of election return-Computation of time limit-Omission to send statutory declarations-" Authorised excuse "-" Inadvertence ".

(i) The word " transmit " in section 70 of the Parliamentary Elections Order in Council, 1946, means " to send ". Therefore, if the election return is posted to the Returning Officer within the time allowed, the law is complied with, although the return does not reach him until after the expiration of that period.

(ii) The petitioner, who was an unsuccessful candidate and his own election agent at a Parliamentary by-election, failed to send to the returning officer declarations in the Forms Q and E as required by section 70 of the Parliamentary Elections Order in Council. He subsequently moved under section 75 for an " authorised excuse ". He pleaded that the omission was due to " inadvertence " caused by " ignorance of law ", i.e., ignorance of the provisions of the Order in Council.

Held, that in the circumstances " ignorance of law " did not amount to '' inadvertence '' within the meaning of section 75 of the Order in Council; the petitioner's failure to transmit the declarations was therefore not excusable.

THIS was an application for " an authorised excuse " under section .75 of the Ceylon (Parliamentary Elections) Order in Council, 1946.

M. A. M. Hussein, for the petitioner.

E. R. de Fonseka, Crown Counsel, for the Attorney-General, on notice.

Cur. adv. vult.

September 20, 1950. DIAS S.P.J.-

The petitioner was an unsucessful candidate at the by-election for the constituency of Colombo Central in the House of Representatives on May 6, 1950. The result of the by-election was published in the Ceylon Government Gazette of May 8, 1950. The petitioner was his own election agent.

Section 70 of the Order in Council provides that the election agent of every candidate shall "within thirty days" after the publication of the result of an election transmit to the Returning Officer a true return substantially in the Form P in the First Schedule containing a detailed statement in regard to that candidate of his election expenses. The return has to be accompanied by two declarations on oath or affirmation in the Forms Q and R.

The result of the by-election having been published on May 8, 1950, the thirty days expired on June 7, 1950. The petitioner posted his. return on June 7, 1950. June 8 was a public holiday, and the Returning Officer received the return on June 9.

In Mackinnon v. Clarke 1[(1898) 2 Q. B. 251.] the English Court of Appeal held under similar circumstances that the word '"transmit" means "to send". Therefore if the return is posted to the Returning Officer within the time allowed, the law is complied with, although the return does not reach him until after the expiration of that period. I, therefore, hold that the petitioner-sent his return within the time allowed by law.

The Returning Officer, however, refused to accept the petitioner's return on the ground that it was not accompanied by the declarations in Forms Q and R. Where a return contains some error or false statement, it is open to the candidate to move the Election Judge or a Judge of the Supreme Court and show that such error was due (inter alia) to " in-advertence ". In this case the failure to transmit the declarations in Forms Q and R is an "error" within the meaning of s. 70. The Court on being satisfied regarding the plea raised and the bona fides of the application can allow " an authorised excuse " in regard to the irregularity.

The only proof tendered to me is what is stated in the petitioner's affidavit. His plea is contained in the following sentence in the affidavit: "It was by reason of my inadver