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

1953 Present: Nagalingam A.C.J., Pulle J. and K. D. de Silva J.

J. C. W. MUNASINGHE, Appellant, and S. C. S. COREA,
 Respondent

ELECTION PETITION APPEAL

Election Petition No. 11 of 1952 (Chilaw)
 

Election Petition-Impersonated and tendered votes-Scrutiny-Addition of tendered votes-Striking out of corresponding impersonated votes necessary first- " Particular elector "-Missing ballot papers-Absence of evidence as to how they were lost-Non-compliance with the provisions of the Order in Council relating to elections-Effect on validity of election-Ceylon (Parliamentary Elections) Order in Council, 1946, se. 45, 49, 51 {1), 77 (b), 85 (1) (c) and (3).

Sub-paragraph (c) of paragraph (1) of section 85 of the Parliamentary Elections Order in Council of 1946 should be construed as the complement of paragraph (3) of the same section. On a scrutiny, therefore, at the trial of an election petition, the election judge is not entitled to add a tendered vote unless he is in a position to strike out the corresponding impersonated vote.

Before a person can be issued a tendered ballot paper under section 45 of the Order in Council, that person must show that he is " a particular elector named in the register ". Where there are two or more voters with identical names in the register and the address given is not distinctive enough to identify any one of such voters with one or other of the entries, it is not possible for any one of them to prove that he is a " particular elector " within the meaning of the section.

Where certain ballot papers that had been issued are found missing and there is no evidence as to how they were lost, it is not possible to attribute to any officer charged with the conduct of elections non-compliance with the provisions of the Order in Council within the meaning of section 77 (b).

Thirty-two out of 26,054 ballot papers that had been issued were not taken into account in counting the votes cast in favour of any of the candidates, the Returning Officer having rejected them in terms of section 49 as they were not stamped or perforated with the official mark. The failure to perforate was due to the omission on the part of the election officers, but the omission was not due to any deliberate fraud or dishonesty on their part. The successful candidate defeated the runner-up by a majority of eight votes only.

Held, that the omission of the officers entrusted with the conduct of the election to perforate duly the 32 ballot papers was not a non-compliance with the provisions of the Parliamentary Elections Order in Council within the meaning of section 77 (6). To invalidate an election under section 77 (b), there should be a violation of the principles underlying the conduct of the election ; the non-compliance should be of such degree and magnitude that it could reasonably be said that as a result of such non-compliance the electorate had not been given a fair opportunity of electing the candidate of its choice. The fact that out of 26,054 ballot papers, only 32 had no perforations, was the most satisfying proof that the election had been conducted in accordance with the principles laid down in that behalf in the provisions of the Order in. Council. To ascertain whether or not the election was conducted in accordance with the principles laid down in the Order in Council it was entirely unjustifiable to take into consideration whether the number of ballot papers un perforated was greater than the majority by which the successful candidate was declared duly elected.

APPEAL from the order of the Election Judge in Chilaw Election Petition No. 11 of 1952.

S. J. V. Chelvanayakam, Q C., with A. C. Nadarajah, S. Thangarajah, C. V. Munasinghe and A. Mututantri, for the petitioner appellant.

S. Nadesan with A. H. C. de Silva A. B. Perera, G. T. Samarawickreme and A. K. Premadasa, for the respondent.

Cur. adv. vult.

December 18, 1953. NA

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