Legal Services and Laws of Sri Lanka


SLR-2001 Vol.3-P132

SLR - 2001 Vol.3, Page No - 132

ADIKARI

v.

DISSANAYAKE AND OTHERS
COURT OF APPEAL

WEERASURIYA, J. (P/CA)

C.A. NO. 7/ 2000

JUNE 14TH 2001

JULY 16TH 2001
Election Petition - Parliamentary Elections Act No. 1 of 1981 - S. 92(1)(2), S. 96, S. 108 - Scopeandgrounds-Election
Rule No. 14 - Constitution Article 81.

The Petitioner who was a candidate of the Peoples Alliance (P. A) for Parliamentary Electionsheldfortheadministrative
district of Anuradhapura, sought relief on the ground that there was non compliance with theprovisionsofActNo.1of
1981, and sought a partial avoidance of the election in respect of the counting of preferential votes for thecandidatesof
the P. A.

The Petitioner prayed for a scrutiny of the ballot papers and depending on this scrutiny the Petitioner sought adeclaration
in accordance with the result of such scrutiny. The 1st Respondent contended that -
(1) The petitioner cannot have and maintain the Petition as the relief sought does not come within the ambit of S. 96.
(2) There was failure to comply with Parliamentary Rule 14 - 4th schedule.
(3) No adequate grounds are disclosed and (4) That the Petition is out of time.

Held :
(i) It appears that, the grievance of the Petitioner was that some of the preferential votes castinhisfavourhadbeen
added to the 1st and 5th Respondents during the process of counting.
If the Petitioner relies on S. 92(1)b the only relief he could obtain would be a declaration that the election in respectof
the district is void - this is not the relief prayed for. As the Petitioner has sought to rely on grounds of avoidancespelt
out in S. 92(2) the Petitioner is prima facie not entitled to the relief.
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(2) The Petitioner is seeking a review of the composition of the seats secured by the E A.
S. 92(2) provides for a declaration that the election of a candidate be declared void. Thisreliefcouldbegrantedonly
upon circumstances set out in S. 92(a)(b), (c) and (d). The petitioner has not pleaded any of the above grounds,heisnot
entitled to pray for a declaration that the return of the 5th Respondent was undue.
(3) In terms of S. 96, the Petitioner is not entitled to a scrutiny of the ballot papers.
Election Petition in terms of the Parliamentary Elections Act No. 10 of 1981.

Cases referred to :

1. Alexander v. Chandrananda de Silva - 1996 2 SLR 301

Dr. Jayatissa de Costa with D. P. P. Dassanayake and Asoka Fernando for the Petitioner.

Wijedasa Rajapakse P. C., with Kapila Liyanagamage for 1st Respondent.

K. Thiranagama with Amarasena Hettige for 5th Respondent.

P. A. Ratnayake, D. S. G., with M. R. Ameen S. C., for 176 and 177th Respondents.
Cur. adv. vult.
August 24, 2001.

WEERASURIYA, J. P/CA

This matter was taken up for inquiry on account of the following preliminary objection raised by the 1st respondent and
166th and 167th respondent

The preliminary objections raised by the 1st respondent read as follows:
(a) The petitioner cannot have and maintain this petition for the reason that the relief soughtdoesnotcomewithinthe
ambit of Section 96 of the Parliamentary Elections Act.
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(b) The Petitioner has failed to comply with the parliamentary Elections Rule No. 14 set out in the 4th schedule.

(c) The Petitioner does not disclose adequate ground to obtain the relief sought forand

(d) The petition is out of time.
The preliminary objection raised by the 176th and 177 respondents are as follows:

(a) That the Election Petition had not been filed within 21 days from 13. 10. 2000 beingthedateofpublicationofthe
result of the election in the gazette as stipulated in Section 108 of the Parliamentary Elections Act No. 1 of 1981.

(b) That the petitioner is not entitled to relief prayed for in the petition since in circumstances set out inthepetition
the only relief the petitioner can pray is a declaration that the election in respect of the entireadministrativedistrict
of Anuradhapura be declared void in terms of Section 92(1) of the ParliamentaryElectionsActNo.1of1981readwith
Section 96 of the said Act and the petitioner has failed to pray for this relief.

(c) That in any event the petitioner is not entitled to the reliefprayedforinparagraph(b)totheprayertothe
petition, since the petitioner has not pleaded any of the grounds set in Section 92 (2) of theParliamentaryElectionsAct
No. 1 of 1981and
(d) That in any event the petitioner is, not entitled to the relief prayed for in paragraphs (a), (d)(e)and(f)tothe
prayer to the petition, since they are not among the reliefsthatmaybeprayedforintermsofSection96ofthe
Parliamentary Elections Act No. 1 of 1981.

Items (2) and (4) of the objections of the 1st respondent and item (A) of the objections of 166th and 167th respondents
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are not sustainable for the reason that the petitioner has complied with the requirements oftheperiodsrelatingtothe
institution of the petition and notice of presentation.

It is to be observed that items (1) and (3) in the objections of the 1st respondent correspond to items (A) and(D)ofthe
objections of the 176th and 177th respondents. Those mainly relate to thequestionwhetherthepetitionerhascorrectly
invoked the provisions of the Parliamentary Elections Act for seeking relief.

In order to appreciate the nature and the content of the aforesaid objections it would be useful to examineSection92and
96 of the Parliamentary Elections Act No. 1 of 1981.

92 (1) - The election in respect of any electoral district shall be declared to be void on an electionpetitiononanyof
the following grounds which may be proved to the satisfaction for the Election Judge namely -

(a) that any reason of general bribery, general treating, or general intimidation or other misconduct or othercircumstances
whether similar to those enumerated before or not a sectionofelectorswaspreventedfromvotingfortherecognized
political party or independent group which it preferred and thereby materially affected the result of the elections
(b) non-compliance with the provisions of this Act relating to elections if it appears that the electionwasnotconducted
in accordance with the principles laid down in such provisions and that such non - compliance materially affected theresult
of the election.
(2) The election of candidate as a member shall be declared to be void on anelectionpetitiononanyofthefollowing
grounds which may be proved to the satisfaction of the Election Judge, namely -
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(a) that a corrupt or illegal practice was committed in connection with the election by the candidate or withhisknowledge
or consent or by any agent of the candidate

(b) that the candidate personally engaged a person as a canvasser or agent or speak on his behalf knowingthatsuchperson
had within seven years previous to such engagement been found guilty of a corrupt practice underthelawrelatingtothe
election of the President or the law relating to referendum or under the Ceylon (Parliamentary Elections)orderinCouncil
1946 or under this Act by a Court of Competent jurisdiction or by the report of an Election Judge.

(c) that the candidate personally engaged a person as a canvasser or agent, or to speakonhisbehalfknowingthatsuch
person had been a person on whom civic disability had been imposed by a resolution passedbytheParliamentintermsof
Article 81 of the Constitution and the periods of such civic disability specified on such resolution had not expired.

(d) that the candidate was at the time of his election a person disqualified for election as a member.

Section 96 of the Parliamentary Elections Act reads as follows:
"96 - All or any of the following reliefs to which the petitioner may be entitled may beclaimedinanelectionpetition
namely
(a) a declaration that the election in respect any electoral district is void
(b) a declaration that the return of any person elected was undue
(c) a declaration that any candidate was duly elected and ought to have been returned.
137
Learned D. S. G. for the 176th and 177th respondent contended -
(a) that since the petitioner has relied upon noncompliance with the provisions of theParliamentaryElectionsActwithin
the meaning of Section 92(1) (b) the only relief that can be prayed for is a declaration that the election in respect ofthe
electoral district in question be declared void in terms of Section 92 (1).

(b) that since the petitioner has prayed for relief for partial avoidance of the election for the said electoral districtto
the extent of counting of the preferences indicated by the voters for the candidatesnominatedbythePeople'sAlliance,
this petition is misconceived in law
(c) that inasmuch as the petitioner has prayed for a declaration that the return of the5threspondentelectedwasundue
which could be grounded in the circumstances set out in paragraphs (a), (b), (c) and (d) of Section 92(2) of the Actinthe
absence of any such grounds pleaded in the petition the petitioner is not entitled to grant of such relief.

(d) that the petitioner is not entitled to pray for a scrutiny of ballot papers in terms of Section 96 of the Act.

The petitioner was a candidate of the People's Alliance for the ParliamentaryElectionsheldon10.10.2000,forthe
administrative district of Anuradhapura. The People's Alliance secured 5 seats and the United National party 3 Seats and1st
-5th respondents were declared elected from People's Alliance. The petitioner states thatthe5threspondentsecuredthe
lowest number of preferential votes namely 33, 738 and that he secured 28485 preferential votes.

The petitioner has sought relief on the ground that therewasnon-compliancewiththeprovisionsoftheParliamentary
Elections Act No. 1 of 1981. He has enumerated the incidents in respect of acts of non - compliance indetailinparagraph
11
138
of his plaint. On a perusal of the petition, it would appear that the grievance ofthepetitionerwasthatsomeofthe
preferential votes cast in his favour had been added to the 1st and 5th respondents during the process of counting.

Section 92 (1) (a) and (b) of the Parliamentary Elections Act provides for an avoidance of anelectioninrespectofany
electoral district on proof of the following grounds to the satisfaction of the election Judge.

(a) That by reason, general bribery, general treating or general intimidation or other misconduct orothercircumstancesa
section of the voters were prevented from voting for the recognized political party ortheindependentgroupandthereby
materially affected the election.

(b) That non - compliance with the Provisions of the Act, if it appears that the election wasnotconductedinaccordance
with the principles laid in such provisions and that such non- compliance materially affected the result of the election.

If the petitioner relied upon the ground enumerated in Section 92(1) (b),theonlyreliefhecouldobtainwouldbea
declaration that election in respect of the district is void. But admittedly that is not the relief he has intendedtoseek
as seen from his averments in the other paragraphs of his petition.

Inasmuch as the petitioner has sought to rely on grounds of avoidancespeltoutinSection92(2)oftheParliamentary
Elections Act, the petitioner is prima facie not entitled to that relief.

The Petitioner has sought a partial avoidance of the election in respect ofthecountingofpreferentialvotesforthe
candidates of the People's Alliance. Therefore, the petitioner is only seeking a review of thecompositionoftheseseats
secured by the People's Alliance.
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The relief sought by the Petitioner on this score appear to be two fold.
(a) a declaration that the return of the 5th respondent elected was undue.

(b) A declaration that the petitioner was duly elected or ought to have been returned asamemberofParliamentforthe
Anuradhapura Electoral District.

Section 92 (2) of the Act provides for a declaration that the election of a candidate be declared void. It is to beobserved
that the relief could be granted only upon the circumstances set out in section 92 (a), (b) (c) and (d)oftheAct.These
are situations where allegations of having committed corrupt or illegal practices or where a candidate wasdisqualifiedfor
election or where he has engaged a person as a canvasser or agent who had been found guilty ofacorruptpracticeorhad
been deprived of civic rights. But the petitioner neither pleaded any of these ground in his petition nor sought torelyon
them in his petition. In the circumstances, the petitioner is not entitled to pray for a declaration that the returnofthe
5th respondent was undue (vide Alexander v. Chandrananda de Silva(1))

The Petitioner in paragraph (f) of the prayer to the petition has prayed for a scrutiny of the ballotpapersanddepending
on the outcome of this scrutiny the petitioner in paragraph (d) of the prayer to the petition has prayedforadeclaration
in accordance with the result of such scrutiny.

Section 96 of the Parliamentary Elections Act specifies the reliefs that may beprayedforinanelectionpetition.In
discussing this issue reference to section 80 of the Ceylon (Parliamentary Elections) Order in Councilwouldbeusefulto
understand the present provisions. Section 80 (d) of the Ceylon Parliamentary Elections) OrderinCouncilprovidedfora
scrutiny as one of the reliefs that can be prayed for in an election petition.
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Section 80 of the Ceylon (Parliamentary Elections) Order in Council has been repealed bySection96oftheParliamentary
Elections Act, but nevertheless as a whole, it correspond to repealed Section 80 of the earlier orderinCouncil.Butthe
significant factor is that there is a total omission of this reliefinsection96oftheParliamentaryElectionsAct.
Therefore, it is manifestly clear that the petitioner is not entitled to a scrutiny of the ballot papers.

Therefore, the petitioner is not entitled prima facie to seek the reliefs he has sought in terms of prayers(A)to(F)in
his petition.

I dismiss this petition with costs.

President of The Court of Appeal.


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