ARON v. SENANAYAKE

030-NLR-NLR-V-38-ARON-v.-SENANAYAKE.pdf


Aron v. Senanayake.
133
1936
Present: Akbar S.P.J.
ARON v. SENANAYAKE.
In re Election Petition in respect of DedigamaElectoral District.
' Election (State Council) Petition Rules, 1931—Failure to give respondent noticeof presentation of petition and security—Fatal irregularity—Schedule VI,rule 18.
The provision in rule 18 of Election (State Council) Rules, 1931,relating to the service of notice on the respondent of the presentation ofan election petition and of the nature of the security given is imperativeWhere there has been a failure to comply with the rule, the petition mustbe dismissed.
HIS was an application by the respondent to an election petition
T to have the petition dismissed on the ground that the petitionerhad failed to comply with the provisions of rule 18 of the Election(State Council) Petition Rules which require that notice of the present-ation cf the petition and of the nature of the security should be givento the respondent or his agent.
N Nadarajah (with him T. S. Fernando), for petitioner.—We admit thatno notice of the filing of the petition and of the nature of the security wasserved on the respondent. Section 18 of schedule VI. has not beencomplied with. The removal of the copy of the petition is sufficientnotice. Under section lo, schedule VI., there is no condition that thepetition should be dismissed, if the rules are not complied with. Section83 makes the English Parliamentary Rules applicable. Therefore rule 60of the English Rules which says that no formal objection should avoida petition, should apply. Young et al. v. Figgins’ held that failure to givenotice is a formal defect as there is no express provision for dismissal ofthe petition. The same principle would apply to Ceylon.
1 23 Calcutta 851.
* 29 Madras 111.
’ 19 Law Times 499.
134
AKBAR S.P.J.—Aron v. Senanayake.
R. L. Pereira K.C. (with him H. V. Perera), for respondent.—We rely onWilliams v. Mayor of Tenby1 also reported in (1875) 5 C. P. D. 135and (1880) 49 LJ. 325. Under 35 & 36 Vic. C. 60, section 21, sub-section (2) (the Municipal Election Act) it is stated that rules, madeunder the Parliamentary Elections Act, 1868, should apply to MunicipalElections as well. Though Williams v. Mayor of Tenby (supra) referredto Municipal Elections, rule 60 of the Parliamentary Elections Actreferred to by my learned friend applied, yet the Court dismissed thepetition on the objection that notice of the filing of the petition wasnot served on the respondent. Rule 60 was not held to cure this defect.
[Akbar J.—How do you explain Young v. Figgins (supra) which was acase under the Parliamentary Election Act and which held that a formaldefect could be cured under rule 60?]
It is submitted that Williams v. Mayor of Tenby (supra) being the latercase impliedly overruled the earlier case Young v. Figgins (supra).
H. V. Perera then continued the argument.—It is submitted thatYoung v. Figgins (supra) was correctly decided, but the objection wasnot that notice had not been served on the candidate-respondent, butthat notice had not been served on the returning officer who was himselfa respondent. The petition against the candidate was fully perfected.The returning officer was then made a party. Section 51 of the Parlia-mentary Election Act, 1868, says in such a case he shall be deemed tobe a respondent. The returning officer took the objection that he had notbeen served with notice. If the objection was upheld, then a petitionperfect as regards the candidate-respondent would have been held voidbecause of some incidental defect in serving notice on the returning officer.Therefore, the Court rightly held this to be a formal defect cured by rule 60.the word “ formal ” is the antithesis of “ substantial.” Ex parte Coates3shows what a formal defect is when a necessary thing has to be doneand is not done, the omission is not a formal omission. We have nonotice of this petition at all. The serving of notice is a necessarystep. If notice is not given the Court cannot extend the time. Theright to object to security is dependent on the notice of the petitiongiven to the respondent. If notice is not given, the respondent cannotobject to the' security, the next step cannot be taken. The logicalconsequence is that the petition should be dismissed.
Nadarajah, in reply.
Cur. adv. vult.
May 25, 1936. Akbar S.P.J.—
The petitioner filed his petition on March 30, 1936, asking for adeclaration that the election of the respondent be held to be void. OnMarch 31, 1936, the respondent filed a writing appointing Mr- S. R.Amerasekere as his agent and giving an address for service of all notices,under rule 10 of the Election (State Council) Petition Rules, 1931. OnApril 1, 1936, security in the form of a recognizance with two suretieswas tendered to the Registrar under rule 12. The respondent by hispetition and affidavit dated April 16, 1936, has asked for a dismissal of
1 42 Law Times 187.2 <5 Ch. D. 979.
AKBAR S.P.J.—Aron v. Senanayake.
135
the petition on the ground that neither he nor his agent has been servedat any time with a notice of the presentation of the petition or of thenature of the security and that no notice of either kind was publishedin any issue of the Government Gazette by the petitioner or his agent.Mr. Nadaraj ah for the petitioner admitted that no notice of the petitionor of the nature of the security was served on the respondent and that nosuch, notice was published in the Government Gazette. Rule 18 of theElection Petition Rules, 1931, is explicit that notice of the presentationof the petition and of the nature of the security, accompanied by a copyof the petition shall be served by the petitioner on the respondent withinten days. The rest of the rule goes on to say that such service may beeffected by delivery to the agent, or by posting to the address givenunder rule 10 in sufficient time for delivery within the ten days or incase there is no agent appointed or address given by publication in theGazette that a petition had been presented and that a copy may beobtained on application at the office of the Registrar. The matter hasbeen simplified by the admission of Counsel that no notice had beenserved either of the presentation of the petition or of the nature of thesecurity in any of the ways indicated in the rule ; nor is there any evidencecontradicting the respondent’s affidavit in which he states that neitherhe nor his agent had at any time been served with notice of the presenta-tion of the petition or of the nature of the security. It will be noticedthat on March 31, 1936, when the respondent filed his writing appointinghis agent and giving an address for service only the petition had beenfiled and that the recognizance was signed and filed on the next day,namely, April 1, 1936. One would have thought apart from anyauthority that the provision in rule 18 requiring service of notice notonly of the presentation of the petition but also of the nature of thesecurity was imperative and that non-compliance put a stop to anyfurther step in the matter of the petition. This seems to be so, for thenext rule, viz., rule 19, gives the right to the respondent to object to therecognizance provided he objects in writing within 5 days from the dateof service of the notice of the petition and of the nature of the security.Rule 20 giving power to the Election Judge to hear any objection to thesecurity can only refer to the objection mentioned in the preceding rule.
Mr. Nadarajah for the petitioner argued that the English law wouldbe applicable under section 83 (4) of the Ceylon (State Council Elections)Order in Council, 1931, as this is a matter of procedure or practice whichis not provided for by the order or rules, inasmuch as rule 18 does notprovide for the effect which a non-compliance of that rule regardingservice of notice will entail. He referred to rule 12 (3) which expresslystated that if security was not given as required by that rule the petitionwas liable to be dismissed with costs and also to rule 22. There is noprovision in the Parliamentary Election Act, 1868, similar to rule 12 (3),and therefore rule 12 (3) may have been specially inserted to make itclear that the security was to be given as provided for in that rule. Asthe Supreme Court indicated in Mendis v. Jayasuriya1 the rules relatingto security have not been clearly expressed. I do not think any specialenactment in the rules was required regarding the effect of a distinct
1 33 N. L. R. 121.
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AKBAR S.P.J.—Aron v. Senanayake.
non-compliance of any of the steps which a petitioner had to takeand no argument can be drawn from rules 12 (3) and 22 in the sensecontended for by Mr. Nadarajah.
Section 80 of the Order in Council for instance requires a petition to bepresented within 21 days of the date of publication of the result of theelection in the Government Gazette. Can it be contended that an electionpetition may be entertained if it is presented after the prescribed 21 days,simply because there is' no enactment specially stating that the petitionis to be dismissed if it is not presented within the 21 days ? This is thevery question which Grove J. put to the Solicitor-General in the case ofWilliams v. The Mayor of Tenby It is true that that was a case of adisputed Municipal election, but the law applicable under section 13 (4) of35 & 36 Viet. 60 and rule 2 of the additional general rules, 1875, was thesame as the law under the Parliamentary Elections Act, 1868. Grove J.held that the provision relating to the service of notice of the presentationof the petition and of the nature of the security within 5 days after thepresentation of it was peremptory and that it is a condition precedentfor the due presentation of the petition. Lopes J. agreed with Grove J.Mr. Nadarajah relied on the judgment of'Martin B. in Young and another v.Figgins2- That was a summons calling on the petitioners of an electionpetition to show cause why the petition should not be struck off the fileon the ground that the petitioners complained of the conduct of thereturning officer and as section 51 of the Parliamentary Elections Act,1868, provided that where an election petition complains of the conductof a returning officer such officer shall, for all the purposes of the actexcept the admission of the respondents in his place, be deemed to be arespondent, the returning officer was entitled to notice by virtue ofsection 8. Martin B. in a short judgment, said that even if the objectorwas right in his arguments he should not allow such formal objectionsto defeat the petiT.ion under rule 60 of the Parliamentary Election rules.
Mr. Nadarajah argued that as no dismissal of the petition was providedfor when there was an omission to comply with rule 18, this was a casusomissus and that by section 83 (4) of the Order in Council, rule 60 ; theParliamentary rules was applicable and on Baron Martin’s ruling inYoung v. Figgins (ubi supra) the objection should not be upheld. Icannot accede to this argument and prefer to follow the judgment ofGrove and Lopes JJ. in the case cited by the respondent, for severalreasons. In the first place, the summons in Young v. Figgins was totake the whole petition off the file, including presumably that part of itagainst the sitting member. In the second place section 51 of theParliamentary Elections Act stated that the returning officer was to bedeemed to be a respondent, except for the admission of the respondentin his place. Further, Baron Martin had some doubts of the argumentof Counsel for the returning officer and he said that even if the argumentwas sound the objection should not be allowed to defeat the petition,meaning I suppose the whole petition. The case cited by the respondentwas one decided by a Bench of two Judges, and no less a person than theSolicitor-General argued the case for the petitioner. It is true thatrule 60 of the Parliamentary Election rules (if that applied under section« L.R. 5 C. P. D. 1351 19 L. T. N. S. 499.
DALTON S.P.J.—Sourjah l>. Hendrick.
13T
21 (2) of 35 & 36 Viet. C. 60) or the similar rule 69 of MunicipalElections {see 12 Halsbury (new ed.), P.494) was not referred to inthe argument, but I cannot construe this omission as an oversight.It is probably a recognition by the Solicitor-General Sir H. Giffardand the Court that an objection of the kind raised in the case was some-thing more than a formal objection.
The case of Ex parte Coates (In re Skelton’) indicates the differ-ence between a formal defect and one of a matter of substance. Itwas of the utmost importance for the respondent to have notice of thenature of the security so as to enable him to object to it in case ofits insufficiency.
The petition is dismissed and the petitioner will pay the costs of therespondents.
Petition dismissed.