Senanayake, E.L. V. Navaratne, H.M.

1953 Present: Nagalingam A.C.J., Gratiaen J. and Pulle J.

E. L. SENANAYAKE, Appellant, and H. M. NAVARATNE
et al., Respondents

ELECTION PETITION APPEAL NO. 1 OF 1953

 Election Petition 3 of 1952, Kandy
 

Election Petition-False declaration as to election expenses-Ground for unseating member-Time limit for presenting election petition-" Candidate "-Corrupt practice of printing and publishing handbills, &c, without disclosing addresses of printer and publisher-Corrupt intention-Necessary ingredient-" Publisher " -Statute with retrospective operation-Scope of its effect-Ceylon (Parliamentary Elections) Order in Council of 1946, ss. 3 (1), 58 (1) (c) and (f), 70, 73A, 77, 82A and B, S3 (1), 83 (1) (b) (i) and (ii), 83 (2)-Ceylon (Parliamentary Elections) (Amendment) Act, No. 26 of 1953, ss. 5, 6.

Held, by NAGALINGAM A.C.J. and PULLE J. (GRATIAEN J. dissenting), that knowingly sending a false return of election expenses, being a corrupt practice under section 58 (1) (f) of the Parliamentary Elections Order in Council of 1946, falls within the ambit of sections 77 (c) and 83 (1) (a). The act of making the declaration is an act done " in pursuance or in furtherance " of that corrupt practice, and no other act is necessary before a petition can be presented within the period of twenty-eight days prescribed in section 83 (1) (a). The definition of "candidate" in section 3 (1) is applicable to a candidate even after his election as member.

Held, by GRATIAEN J. and PULLE J. (NAGALINGAM A.C.J. observing to the contrary), that, under section 58 (1) (c) of the Parliamentary Elections Order in Council of 1946, a corrupt intention must be proved in order to establish the corrupt practice of publishing handbills, posters and placards without the name and address of the publisher appearing thereon.

The Parliamentary Elections (Amendment) Act, No. 26 of 1953, has, in the absence of express provision to that effect, no relevancy to the issues involved in determining an election petition appeal which was pending at the time it was passed. Scope of its retrospective operation considered.

Per GRATIAEN J.-Section 58 (1) (c) of the Parliamentary Elections Order in Council of 1946 requires both the "printer" and " publisher " to be disclosed in the documents specified. The term " publisher" is not confined in the context to persons professionally engaged in the publishing trade.

APPEAL from the order of the Election Judge in Election Petition, Kandy.

H. V. Perera, Q .C., with G. E. Chitty, C. C. Rasaratnam, G. T. semerawickreme and Izadeen Mohamed, for the "respondent appellant.

S. Nadesan, with Stanley de Zoysa, A. I. Rajasingham, V. S. A. Pulle-nayagam, C. Mahadeva, A. K. Premadasa and J. Senathirajah, for the petitioners respondents.

Cur. adv. vult.

December 18, 1953. NAGALINGAM A.C.J.-

This is an appeal from an order declaring the election of the appellant void on the ground that he was guilty of corrupt practices in that he-

(a) published handbills, posters and placards without the name of the publisher appearing thereon and

(b) knowingly made the declaration as to election expenses falsely.

The appellant contends that the finding of the learned Election Judge in respect of both these questions is erroneous.

I shall first deal with the second of the corrupt practices set out above. It is contended on behalf of the appellant as a matter of law that the corrupt practice of knowingly making a false return of election expenses is not a ground upon which either an election petition can be presented or a member unseated ; and this argument has been based mainly on the language of the proviso to sub-section (1) of section 83 of the Order-in-Council

Now, the main provision of sub-section (1) of section 83 prescribes the time limit within which an election petition can be presented to Court, and it expressly declares in non-ambiguous language that an elec

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