079-NLR-NLR-V-46-CARRON-and-THE-GOVERNMENT-AGENT-WESTERN-PROVINCE.pdf
W1JBYE WARDEN* J.—Carton and The Government Agent, Western Proninee. 2871945Present: Wljeyewardene J.
CARRON and THE GOVERNMENT AGENT,WESTERNPROVINCE.
In the Matter of an Application fob a Writ of Mandamuson theGovernment Agent,WesternProvince, to
hold aFresh Election for Division1, Kalubovila
East of the Dehiwala-Mount Lavinia Urban Council.
IPrit of Mandamus—Urban Council election—Nomination of candidates—Permission given to nominated candidate to withdraw—Alleged irregu-larity—Failure to make person elected respondent.
Where an application was made for a Writ of Mandamus to set asidean election to an Urban Council and to hold a fresh election on the groundof alleged irregularities committed by the Returning Officer with regardto the nomination of candidates and to the permission granted to onecandidate to withdraw from the election,
Held that the failure to make the member elected a respondent to theapplication was a fatal irregularity.
In the Matter of an Application of John Neill Keith for a Writ of Man-damns on the Government Agent, Western Province (3 S. C. C. 12) followed.
rp HIS was an application for a Writ of Mandamus.
E. B. Wikremanayake (with him H. Wanigatunge), for the petitioner.
H. H. B annoy aka, Acting S. G. (with him H. A. Wijemanne, G.C.),for the respondent.
Cur. adv. vult~ .
May 30, 1945. Wijeyewardene J.—
This is an application for a Writ of Mandamus in connection with theby-election held on July 22, 1944. in respect of Kalubowila East WardNo. 1 of the Dehiwala-Mount Lavinia Urban Council.
The respondent published on May 29, a notice under section 10 of the-Urban Councils Ordinance requiring the delivery of the nomination.'papers on July 3, and intimating that a poll would be taken on July 22,if more than one candidate was nominated.
On July 3, nomination papers were delivered on behalf of three candi-dates—Mr. T. V. K. Carron (petitioner), Mr. N. W. de Costa, and Mr. S.de S. Jayasinghe. The Additional Assistant Government Agent, Colombo,who received the nomination papers upheld an objection against thenomination of Mr. de Costa. He declared the other two candidates dulynominated and issued on July 4, the requisite notice under Rule 1 of theRules in the First Schedule to the Ordinance with regard to the poll onJuly. 22.,
On a petition of Mr. de Costa this Court made order on July 17, directingthe Assistant Government Agent, Colombo. " to accept the petitioner’s(Mr. de Costa’s) nomination paper and declare him to be a candidate forelection ”• (vide judgment reported at page 476 of Volume 45 of the- NewLaw Reports). On receipt, of that . order the Assistant Government
238 WUEYEWARPBNB J.—Carr on and The Government Agent, Western Province.
Agent gave notice immediately to all the three candidates stating that howould accept the nomination paper of Mr. do Costa on July 18, at theUrban Council Office.
On July 18, the Assistant Government Agent accepted the nominationpaper of Mr. de Costa in the presence of the three candidates. Mr. deCosta, thereupon, asked for a postponement of the poll and the AssistantGovernment Agent replied he had no authority to do so. Then Mr. deCosta gave a writing withdrawing from the candidature and stating thatthe Assistant Government Agent’s refusal to give the postponement askedfor was the reason for his withdrawal. The Assistant GovernmentAgent issued immediately under section 11 (4) of the Ordinance a writtennotice announcing the withdrawal of Mr. de Costa.
At the election on July 22, ballot boxes were provided only for thepetitioner and Mr. Jayasinghe. The poll resulted in 963 votes beingcast for Mr. Jayasinghe and 641 votes for the petitioner-
On the above mentioned facts the petitioner states that the election ofMr. Jayasinghe is void. He contends (a) that Mr. de Costa should nothave been allowed to withdraw on July 18, as a candidate could with-draw under section 11 (4) only “ before the hour specified in the noticeunder section 10 as the time limit for the delivery of nomination papers. ”which in this case was 10.30 a.m. on July 3, and (b) that, therefore, ballotboxes should have been provided at the pollforthereceptionof ballot
papers in favour of Mr. de Costa, as requiredbyRule 3 of theRules in
the First Schedule of the Ordinance. He pleads that he has “ beengravely prejudiced ” by the failure to place such ballot boxes. Heexplains as follows in the affidavit the manner in which he has beenprejudiced: —
Paragraph 9.—“ I am a Burgher and a Christian and the said Mr;Jayasinghe is a Sinhalese and a Buddhist.I statethat the racial and
religious cry was raised in the said electorateandthat mydefeat at
the said election was due to the said cause ”.
Paragraph 10.—“ The said Mr. de Costa is also a Sinhalese and aBuddhist and if the said Mr. de Costa’s ballot box had been placedin the Polling Booth the votes of the Sinhalese Buddhists would havebeen divided. I therefore state that I have been gravely prejudicedby the act of the said Presiding Officer ”.
It was admitted at the argument before me that Mr. Jayasinghe hasaccepted and acted in the office of a member of the Urban Council. Itwas also admitted that the petitioner did not raise any objection untilAugust 4, when he forwarded a written objection to the respondent undersection 19 of the Ordinance. The respondent replied to that letter thathe saw no reason to declare the election null and void.
It is argued for the respondent on the authority of the Application fora Writ of Mandamus on the Chairman of the Colombo Muncipal Council 1that a writ of mandamus does not lie in the present case.
The order of this Court made on July 17, directed the Assistant Govern-ment Agent to accept the nomination paper of Mr. de Costa. Therawas no further direction given in the order as to what should be done
1 11913). 18 N. L. B. 97.
J. L. Rodrigo and Inspector of Police, Mirigama.
289
after the acceptance of that paper. In the absence of any expressprovision in the Ordinance the Assistant Government Agent construedthe Order of this Court as extending the time limit fixed by the originalnotice under section 10 for the delivery and acceptance of the nominationpaper of Mr. de Costa and proceeded to act as if July 18 was the datespecified in that notice.In accordance with that view the Assistant
Government Agent permitted Mr. de Costa to withdraw immediatelyafter he delivered the nomination paper. In the special circumstancesof this case I am not prepared to hold that the view taken by the AssistantGovernment Agent was wrong.
Even if a Writ of Mandamus could issue in the present case there is aserious objection to the present application. The petitioner wants tohave the election declared void but has failed to make Mr- Jayasinghea party respondent. The petitioner’s Counsel did not at any stagemove to have him added as a party. The application must fail on thatground also (vide In the matter of an application of John Neill Keith for aWrit of Mandamus on the Government Agent, Western Province1.
There is moreover no evidence before me to show that the petitionerhas been “ gravely prejudiced ” or prejudiced in any manner by Mr. deCosta being permitted to withdraw on July 18. I am unable to drawCom the mere statement of belief referred to in the affidavit of the petitionerany inference that some of the voters who voted for Mr. Jayasinghewould have voted for Mr. de Costa if a ballot box was placed for Mr. deCosta and that it would' have resulted in his being returned as a memberfor the Ward.
I discharge the rule with costs.
Rule discharged.