Legal Services and Laws of Sri Lanka


SLR-2001 Vol.2-P89

SLR - 2001 Vol.2, Page No - 89

INDRA KUMAR

v.

DAYANANDA DISSANAYAKE AND OTHERS

COURT OF APPEAL.

J.A.N. de SILVA, J.

C.A. NO. 1017/2000.

4TH OCTOBER, 2000.
Writ of Certiorari/ Mandamus - Quash decision of Returning Officer accepting nomination paper - ParliamentaryElectionsAct
1 of 1981 - S. 19, S. 7(5), S.19 1(a), S.19 1(b) Sec. 46(a) - Constitution - Article99(3),and140-ReturningOfficer
Should he hold a formal inquiry?

The Petitioner who is a candidate of the Tamil Elam Liberation Organisation for the Electoral District ofBatticaloasought
to quash the decision of the Returning officer accepting the nomination .papersoftheNationalUnityAlliance,onthe
ground that the 4th Respondent's signature on the Nomination Paperwasforgedandthatthe10thRespondentwasunder
detention and that he too could not have signed the Nomination Paper.

Held :
(i) The scheme of Parliamentary Elections Act does not require the Returning Officer toconductaformalinquiry.S.7(5)
provides that an Inquiry should be held in considering whether or not to recognise a political party.
(ii) Returning Officer has only to check that the Nomination Papers contain the total number of candidates. Inquirymustbe
strictly limited to the grounds in S. 19(l). The functions are purely ministerial.
(iii) New material placed before Court cannot be taken into account to decide the correctness or legality of the decisionof
the Returning Officer, to whom such material was not available.
(iv) The specific remedy provided in respect of a forged nomination paper is only againstthepersonresponsibleforthe
forgery or for the delivery of the forged nomination paper.
90
(v) Even if a signature of the candidate is found to have beenforgedtheothercandidatescannotbepenalisedfora
fraudulent act of some other person. The entire list cannot be rejected. The voters are given an opportunity to vote forthe
party/group of their choice.
APPLICATION for a Writ of Certiorari/Mandamus

Cases referred to :

1. Cooper vs. The Board of Workers of the Wandsworth District - 1863 14 CBNS 180.

2. Ridge vs. Baldwin - 1964 AC 401.

3. Durayappa vs. Fernando - 1967 2 AC 337.

4. Wisemen vs. Baremen - 1971 AC 297.

5. Virakesari Ltd. vs. Fernando - 66 NLR 145.

L. C. Seneviratne, PC with Ronald Perera and AbduI Najeem for Petitioner.

S. Siripavan DSG with A. R Ameen, SC for 1st & 2nd Respondents.

Faiz Mustapha PC with Faizar Mustapha and Ms. Faiza Marker for 3rd Respondent.

R K W. Gunasekera for 5th Respondent.

Dr. Jayampathy Wickremaratne with Abdul Kalan for the 6th & 7th Respondents.

N. M. Saheed with Nizam Kariappar for 10th Respondent.
Cur. adv. vult.
October 09, 2000.

J. A. N. DE SILVA, J.
The petitioner is a candidate of the Tamil Elam Liberation Organization (TELO) for the Electoral DistrictofBatticaloaat
the forthcoming general elections due to be held on 10. 10.2000. By this application the petitioner seeks amandateinthe
nature of a Writ of certiorari to quash the decision of the Returning OfficerfortheElectoralDistrictofBatticaloa,
accepting the nomination paper of National Unity Alliance
91
(NUA) and for a writ of mandamus directing the 1st and 2nd respondents that the said nomination paper be deemed to have been
rejected.

The petitioner has pleaded,
(a) That the 4th respondent Chelliah Rajadurai's signature on the nomination paper hasbeenforgedandwasnotlawfully
attested by the Justice of the Peace for the reason that the 4th respondent was in Malaysia at that time.
(b) That the 10th respondent was under detention by the Special Investigation Unit of the Kandy Police and that he toocould
not have signed the nomination paper.

The petitioner has further stated that these objections were raised by some others against the nomination paperofNational
Unity Alliance but the Returning Officer rejected the objections and accepted the nomination paper.Thepetitionerhimself
has not raised any objection. It is observed that the material referred to in paragraphs 17,18,19,21,22,23,24 and 27ofthe
petition were not brought to the notice of the Returning Officer at the time the objectionswereraised.Theseparagraphs
contain averments relating to News Paper Reports regarding the 4th and 10th respondents.

When this application was supported in this Court notice was issuedandonthenoticereturnabledateseveralcounsel
represented the 1st, 2nd, 3rd, 5th, 6th, 7th and 10th respondents and raised several objectionsandinvitedtheCourtto
reject the petitioners application in limine.

Mr. S. Sripavan, DSG, who appeared for the 1st and 2nd respondents submitted that the decision of theReturningOfficerto
accept the nomination paper of National Unity
92
Alliance was in accordance with Section 19 of the Parliamentary Elections Act No. 1 of 1981 as amended.

Under Section 19 of the Parliamentary Election Act theReturningOfficerisrequiredtoexaminethenominationpaper
received by him and reject any nomination paper on any grounds stated therein. TherelevantgroundisstatedinSection
19(1)(b) as follows.

"that does not contain the totalnumberofcandidatesrequiredtobenominatedintermsofArticle99(3)ofthe
Constitution."

Section 19(1)(a) provides that objections be entertained between 12 noon and 1.30PM on the last date of nominationandthat
no objections shall be entertained thereafter. Section 19(1) requirestheReturningOfficerto"examinethenomination
paper". Mr. Sripavan submitted that the Returning Officers scope of inquiry is restricted to "examine thenominationpaper"
and cannot go beyond it. It was his position that even if the material referred in paragraphs17,18,19,21,22,23and27of
the petition were brought to the notice of the Returning Officer atthetimetheobjectionswereraisedtheReturning
Officer would have to disregard those and decide the question as towhetherornottoacceptthenominationpaperby
"examining the nomination papers alone."

It was contended on behalf of the petitioner that upon objections being duly madetoanynominationpapertheReturning
Officer is legally obliged to hold an investigation or inquiry into the objection in order to decide whetherthenomination
paper should be accepted or rejected on the basis of the said objections. Counselsubmittedthatitisimplicitinthe
provision of Section 19(1) and (1) (a) that an inquiry should be held and relied on thedecisionsofthefollowingcases
Cooper Vs The Board of Workers of the Wandsworth Distirct(1), Ridge Vs Baldwin(2),DurayapphaVsFernando(3),WisemenVs
Baremen(4) and Wade on Administration Law 6th Edition page 502.
It is to be noted that the petitioner has not pleaded that a
93
formal inquiry into the objection was requested from the Returning Officer. Furthermore the petitioner has alsonotpleaded
that the aforesaid decision of the Returning Officer to accept the nomination paper was invalid for breach oftherulesof
Natural Justice.

In any event the scheme of the Parliamentary Elections Act No 1 of 1981 does not require the Returning Officer toconducta
formal inquiry. In section 7(5) of the Act it is specifically provided that an inquiry should be held in consideringwhether
or not to recognize a political party as a recognised political party. It is clear from the wordingofSection19(1)that
all that the Returning Officer is required to examine are the nomination papers received by him. He has onlytocheckthat
the nomination papers contain the total number of candidates. Thus he only does a count of the namesofcandidatesinthe
list. Whether a candidate is qualified or not is not a matter for him at this stage. This inquiry mustbestrictlylimited
to the grounds set out in 19(1), the grounds relevant to this application being the number of candidatesonthelist.The
returning Officers function is purely ministerial and limited to the questionwhetherthenominationpapercontainsthe
required number of candidates.

Mr. Mustapha, PC, who appeared for the 3rd respondent raised a further point. He referred to Article 140 of theConstitution
which deals with the prerogative writs and the authority of the Court of Appeal "to inspect and examine therecordsofany
Court in the first instance or tribunal or other institutions" and submitted that the record in this case is limitedtothe
nomination paper that the Returning Officer was required to examine under Section 19(1). He cited the decision inVirakesari
Ltd. Vs Fernando(5) where the Supreme Court dealt with the question as towhatConstitutesthe"record"ofaninferior
Court. In that case the Supreme Court referred to several English decisions and quoted with approval thestatementofLord
Denning that "all those documents which appear therefrom to be the basis of the decision thatonwhichitwasgrounded."
Relying on this Judgement Counsel submitted that this Court could only examine the nomination
94
papers the Returning Officer was required to examine and nothing more. I aminagreementwiththissubmission.Thenew
material placed before the Court cannot be taken into account to decide the correctness or legality of thedecisionofthe
Returning Officer to whom such material was not available.

It was also submitted that the petitioner has alternative remedies in terms of Section 92(2)(d) of the Act to proceed byway
of an election petition. The petitioner can also apply for a writ of quo warranto.Mr.Mustapha,PC,submittedthatthe
legislature had specifically addressed its mind to the possibilityofaforgednominationpaperandhadprescribeda
criminal sanction for the same in Section 66(a) of the Act. Under Section 66 of the Act apersonwhoforgesanomination
paper or deliver a nomination paper knowing it to be forged would be guilty of an offence and upon conviction beliablefor
imprisonment. He would also be incapable of being an elector or being elected to parliament for a period of sevenyears.If
he has been elected his election would be vacated from the date of the conviction. It istobenotedthatunderSection
66(a) a forged nomination paper can only result in a member vacating his seat. This section doesnotprovideanysanction
against the political party. The specific remedy provided in respect of a forged nomination paper is only against theperson
responsible for the forgery or for the delivery of the forged nominationpaper.Othercandidatesorthepartyarenot
penalised. This is in conformity with the principles of proportional representation.

Mr. R. K. W. Gunasekara drew the attention of Court to theParliamentaryElections(OrderinCouncil)thatappliedto
individual electorates before proportional representation was introduced. Under the Order in Councilacandidatesnameis
proposed and seconded by electors from the electorates. The nomination paper is handed over by the candidatehimselforby
the proposer of the candidate. The political party plays a very limited role by only permitting a candidate to contestasa
candidateoftheparty.Acandidatemayelecttocontestasanindependentcandidate.Underthe proportional
representations, different considerations apply. Political
95
parties or independent groups contest the election. There is no room for an individual candidate tocontest.Thosewishing
to contest must be nominated by a political party or be a member of an independent group. Thevotercastthevotefora
particular party or a group and may, if he so wishes mark preferences for up to three candidates. The form of thenomination
paper is given in the first schedule to the Act. A candidate places his signature signifying his consent and certifyingthat
he is not disqualified. The nomination paper itself is signed by thesecretaryofthepartyorthegroupleader.The
difference between the first past the post system that applied to parliamentary elections before 1978andtheproportional
representation system that applies now is very significant. Even if a signature of a candidate is found to havebeenforged
the other candidates cannot be penalised for a fraudulent act of some other person. The entire list cannot berejected.The
voters are given an opportunity to vote for the party or group of their choice.

The result the petitioner in the instant case seeks to achieve is the exclusion of NUA from election. Ifthereliefsought
is granted, the election will be held without the name and symbol of NUA appearing on theballotpaper,therebydepriving
the electors an opportunity to consider voting for NUA. By this process the petitioner is seeking to achieve aresultwhich
he cannot achieve by way of an election petition. I am of the view that to permit this would be to go against thepolicyof
the Act and the principles of proportional representation. This is more so because the seats from the national listwillbe
decided from the total number of votes a party receives. I am also mindful of the fact thatpostalvoteisconcludedand
great prejudice would be caused to the people who are eligible to vote intheElectoralDistrictofBatticaloa.Inthe
circumstances I uphold the preliminary objections raised by the respondents and dismiss this application without costs.

Preliminary objections upheld.

Application dismissed.


Wold Wide Shipping available for all merchandise