Ramalingam, K. V. Kumaraswamy, V.

1953 Present : H. A. de Silva J.

K. RAMALINGAM, Petitioner, and V. KUMARASWAMY,
Respondent

Election Petition No. 16 (Chavakachcheri)-Inquiry into objection raised by the Respondent.

Petition-Presentation of petition-Gazette notification as mode of giving notice to respondent-Conditions precedent-Appointment of agent-Significance of Registrar's register-Ceylon (Parliamentary Elections) Order in Council, 1946, Schedule 3, Rules 9, 10, 11, 15, 17, 34, 35.

Under Rule 15 of Schedule 3 of the Parliamentary Elections Order in Council of 1946, a notice published in the Government Gazette can be availed of by the petitioner as notice of the presentation of his election petition only if before the publication no appointment of an agent or address had been given to the Registrar of the Supreme Court by the respondent in terms of Rule 10.

A person who has been returned as a Member may nominate an agent under Rule 10 even after an election petition has been filed against him. The words " at any time " in Rule 10 cannot be limited to a period before the filing of the petition.

The register which is required to be kept by the Registrar under Rule 11 is not the only source of information regarding the appointment of agents. The question whether or not an agent has been appointed by a party to an election petition does not depend on the Registrar's observance or non-observance of the duties cast upon him by Rule 11.

Failure to give due notice of the presentation of an election petition is a fatal irregularity.

ELECTION petition No. 16 (Chavakachcheri). Inquiry into preliminary objection raised by the respondent.

C. S. Barr Kumarakulasinghe, with G. T. Samarawickreme, A. Vythilingam, and Izzadeen Mohamed, for the petitioner.

H. V. Perera, Q.C., with E. B. Wikramanayake, Q.C., H. Wanigatunga, J. A. P. Cherubim and T. B. Dissanayake, for the respondent.

Cur. adv. vult.

May 13, 1953. H. A. DE SILVA J.-

The petitioner on the 21st day of June, 1952, filed his petition and prayed that it might be determined that the respondent was not duly elected or returned as a Member of Parliament for the Chavakachcheri electorate and that his election was void.

The said election was held on the 26th of May, 1952, and its result was published in the Government Gazette Extraordinary No. 10,404 dated 31st May, 1952. The petition was filed on the last day on which a petition in law could have been filed for this purpose. The Registrar, Supreme Court, upon whom certain duties are imposed by the Ceylon (Parliamentary Elections) Order in Council of 1946, has received the petition on the 21st June, 1952, and has opened a Journal to facilitate reference to the various documents filed in the case and also to the various steps taken although the Order in Council does not specifically impose that task on him.

The Registrar, Supreme Court, Mr. Clarence de Silva, who gave evidence in this case stated the procedure adopted by him in the matter of election petitions. On the 24th July, 1952, the petitioner filed an application to amend his petition under article 83 (2) of the Order in Council. On the 2nd of August, 1952, the Agent for the Respondent filed a petition and affidavit and statement of objections of the respondent and moved that no further proceedings be had on the petition dated 21st June, 1952, and that it be rejected or dismissed.

These two matters came up before me on the 9th of March, 1953, when I made order that the application of the respondent should be disposed of before the application of the petitioner to amend his petition was considered for the reasons given in my order. Accordingly the matter of the respondent's application was considered. Some evidence was led both by the respondent and by the petitioner as it was found necessary by the respective parties to place some facts for the adjudication of matters that were in issue at this preliminary inquiry.

Click Here to Read the rest of this document