Munasinghe, J.C.W. V. Corea, S.C.S.

1952 Present : Swan J.

J. C. W. MUNASINGHE, Petitioner, and S. C. S. COREA et al., Respondents

Election Petition No. 11 of 1952 (Chilaw)

Election Petition-Returning officer-Is he a necessary party ?-Inspection of documents-Secrecy of ballot-Ceylon (Parliamentary Elections) Order in Council, 1946, ss. 42 (2), 45, 47 (1), 48 (10), 49 (1).

The returning officer is not a necessary party to an election petition if the only complaint made against him in the petition is that many ballot papers delivered to the voters were not stamped or perforated with the official mark as required by section 42 (2) of the Parliamentary Elections Order in Council, 1946.

Application by motion was made by the petitioner in an election petition, prior to the date of its hearing, asking for inspection of the following documents :-

(i) the tendered votes lists made by the presiding officers,

(ii) the declarations made by the persons who voted on tendered ballot papers,

(iii) those rejected ballot papers which were not stamped or perforated with the official mark, and

(iv) the marked registers.

Held, that in the circumstances of the case inspection was necessary in respect of the tendered votes lists, the declarations made by persons who voted on tendered ballot papers and the marked register so that the petitioner might maintain the charge of personation set out in the election petition. The petitioner should therefore be allowed to inspect and take copies of those documents.

In regard to " those rejected ballot papers which were not stamped or perforated with the official mark ", the petitioner should be allowed to inspect them but not to take copies of them.

MOTIONS in connection with Election Petition No. 11 of 1952 (Chilaw).

S. J. V. Chelvanayakam, Q.C., with A. G. Nadarajah, S. Thangarajah, B. S. C. Ratwatte, W. Mendis and C. V. Munasinghe, for the petitioner.

E. B. Wikramanayake, Q.C., with A. H. C. de Silva, G. T. Samarawickreme and A. K. Premadasa, for the 1st respondent.

T. S. Fernando, Acting Solicitor-General, with V. Tennekoon, for the 2nd respondent.

Cur. adv. vult.

284

October 28, 1952. SWAN J.-

There are two matters that arise for consideration and adjudication, namely :-

(1) the application of the 1st respondent on his motion dated 16.7.52 asking for inspection of certain documents, and

(2) the application of the 2nd respondent on his motion dated 12.7.52 to be discharged from the proceedings.

I shall deal with the second application first. The Acting Solicitor-General appearing for the 2nd respondent (who is the returning officer) contends that the 2nd respondent is not a necessary party inasmuch as he has no interest in the result of the election petition and would not be affected adversely or otherwise, by any order that the Court may make thereon.

Mr. Chelvanayakam for the petitioner submits that the 2nd respondent is a necessary party. He points to paragraph 4 (a) of the petition which states that -

" many ballot papers delivered to the voters were not stamped or perforated with the official mark as required by section 42 (2) of the said Order in Council; in the result a large number of votes given in favour of the petitioner were not counted as votes for him. "

He submits that inasmuch as an allegation of misconduct has been made against the returning officer he should be a respondent. He has, in this connection, drawn my attention to section 108 (2) of the Representation of the People Act, 1949, 1[12 and 13 Geo. VI c. 68.] which follows section 51 of the Parliamentary Elections Act, 1868, 2[31 and 32 Vict. c. 125 (a).] and subsequent legislation. It would appear that under the law as it obtains in England the returning officer is " deemed to be a respondent " where the petition " complains " of his conduct.

In further support of his contention that the 2nd respondent is a necessary party, Mr. Chelvanayakam cited the case of I

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