016-SLLR-SLLR-1987-2-GOONERATNE-AND-OTHERS-v.-CHANDRANANDA-DE-SILVA-COMMISSIONER-OF-ELECTIONS.pdf
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Rajaratne v. Air Lanka Ltd.
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GOONERATNE AND OTHERS
v.CHANDRANANDA DE SILVA, COMMISSIONER OF ELECTIONS
SUPREME COURT.
SHARVANANDA, C.J.
WANASUNDERA, J. AND ATUKORALE, J.
S.C. APPLICATION No. 49/87.
JULY 13 AND 14. 1987.
Fundamental Rights-Discrimination-Eksath Lanka Janatha Pakshaya-Registration asa recognised political party for elections-Requisites- S. 7(4)(1), (5),(7)-Parliamentary Elections Act No. 1 of 1981 -Article 12 of theConstitution-Equality-Patent Unreasonableness-Exclusionary clause.
The 1 st respondent (Commissioner of Elections) made order refusing registration as arecognised political party for the Eksath Lanka Janatha Pakshaya (ELJP).
Held-
The 1st respondent's order is vitiated by his misconception of the fundamentalattributes of a political party organised to contest an election. All the evidence tends toshow that the party intends to stay in the political firmament. The first respondentdenies recognition because it had not been in the political arena for a sufficiently longtime. In deciding to refuse recognition, the 1st respondent has given undue weightageto the age-factor of the party.
The 1 st respondent's order is vitiated also by his misconception that to be entitled tobecome a 'recognised political party' the party should be recognised by the otherpolitical parties either by being welcomed by them or disapproved by them. Recognitionby other parties is not necessary to become a recognised political party.
The ground of challenge is patent unreasonableness.
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Under Article 12 discrimination between persons who are substantially similarlycircumstanced is prohibited. Persons are similarly situated when they are equallyqualified. The time-factor was not allowed to be decisive when the 1 st respondent gaverecognition to the Mahajana Eksath Pakshaya but he allowed it to be the decisive factorand refused the application of the ELJP. There is no justification for this disparatetreatment. A public official should exercise his powers so as not to discriminatebetween two citizens who are similarly situate. Different yardsticks should not be used.
An order invalid in law is a 'no order' at all, an order without jurisdiction and subject tochallenge in Court despite an exclusionary clause.
Cases referred to:
Secretary of State for Education v. Tameside Metropolitan Borough-[1976] 3 AIIER 663.
Associated Provincial Picture House Ltd. v. Wednesbury,Corporation-[ 1947] 2 AllER 680.
Anisminic Ltd. v. Foreign Compensation Commission-[ 1969] 1 All ER 208.
Re Racal Communications Ltd.-[1980] 2 All ER 634. 639.
APPLICATION under Article 126 of the Constitution-refusal of registration as a■ recognised political party.
H. L. de Silva P. C. with Neville Jacolyn Seneviratne, R. K. W. Goonesekera. N. S. A.Goonetilleke. Faiz Mustapa, Asoka Abeysinghe. A. Salwatura, K. S. Tilakaratne. Mrs. S.Jayalath, L. A. S. de Silva. N. Weerasooriya and G. G. Arulpragasam for petitioners.
Shibly Aziz D. S. G. with Tony Fernando S.C. for respondents.
Cur. adv. vult.
August 27, 1987.
SHARVANANDA, C.J.,
The four petitioners are members and chief officials viz. President,Vice-President/Chief Organiser, Secretary and Treasurer respectivelyof the “Eksath Lanka Janatha Pakshaya." The first respondent is theCommissioner of Elections and the second respondent is theAttorney-General, the petitioners state that the “Eksath Lanka JanathaPakshaya” is an Association or Party of several citizens of Sri Lankaformed as a political association or party-one of its objects been tonominate candidates from the said Party to stand for elections,general and local when elections are held in the said Republic of Sri
SCGooneratnev. Commissioner of Elections (Sharvananda. C.J.)167
Lanka. The inaugural meeting of the Eksath Lanka Janatha Pakshayawas held-on 2nd January 1987 at 'Woodlands', Borella at which aConstitution was adopted and Office Bearers and Members of theSteering Committee were elected and thereafter Members wereenrolled on application by them and the Membership has nowexceeded ten thousand drawn from all parts of the Island and from allsections of the community. Thereafter meetings were held in variouselectorates and presently meetings are being held and Party Branchesare being formed and Party Organisers have been elected for severalelectorates. In compliance with a notice issued under sub-section 7(4)
of the Parliamentary Elections Act No. 1 of 1981 (hereinafterreferred to as the Act) by the 1 st respondent, the 3rd petitioner in hiscapacity as the Secretary of the Party, submitted on 22nd January1987, to the 1 st respondent, an application for registration of EksathLanka Janatha Pakshaya (hereinafter referred to as 'E.L.J.P.') as arecognised political party for the purpose of elections. The 3rdpetitioner in terms of section 7 (4) (1) furnished along with theapplication, a copy of the Constitution of the Party and a list ofoffice-bearers of such Party and appended to his application thefollowing documents also:
Ten Point Programme of the Party in Sinhala, Tamil and English;
Advertisement of the Party in the 'Sun' Paper of 12.1.87 and inthe 'Dawasa' Paper of 12.1.87 ;
Specimen copy of application form to become a Member of theParty;
Specimen membership card of the Party;
Documents of the Eksath Lanka Mahajana Sabha;
Extracts from local newspapers announcing the inauguration ofthe new Party;
{g) News item in the Madras Hindu of 5.1.1957 that a new partyhas come into being in Sri Lanka formed by a former M.P. andnephew of a former Prime Minister, Dudley Senanayake (2ndpetitioner).
Subsequently, the petitioners produced before the 1 st respondentdetails of Bank Accounts of the Party and photographs taken at theinauguration ceremony of the Party, petitioners told the 1strespondent that they would furnish any other necessary informationand documents called for by him.
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In their application, the petitioners stated that “the E.L.J.P. wasconceived on a resolution adopted by the Eksath Lanka MahajanaSabha" which has functioned for over two years as a political front".
On 27th February, 1987 the petitioners met the 1st respondentand discussed matters relating to their application. According to the1st respondent he was informed at that interview that-
Membership now stands at 7000. according to computerisedlist ;
Branches are now being formed in different areas;
Fund raising campaigns have started;
Publicity has been given in the press and a monthly publicationhas just commenced;
Three meetings of the Working Committee had been held andthe discussion had centered on fund raising campaigns,contesting of elections and the application for recognition;
Several preparatory meetings had been held in October,November and . December 1986 prior to the formation of theParty.
The 1st respondent in his affidavit has further stated that at ameeting with the 3rd petitioner, held on 15.3.87, he was informedthat since the meeting with him on 27.2.87, 3000 more membershad been enrolled and that a Kantha Bala Mandalaya had also beenformed.
On 31st March 1987, the 1st respondent by letter P12 informedthe 3rd petitioner that he was unable to accede to the request forrecognition as a political party for the purpose of elections. In the letterthe 1st respondent did not give any reason for his refusal. In hisaffidavit however the 1 st respondent has stated that "after taking intoaccount the totality of the material available to me and havingconsidered them in the light of the matters set out by me in paragraph14 of the affidavit, I was of the opinion that the Eksath Lanka JanathaPakshaya is not a political party and is not organised to contest anyelection under the Parliamentary Elections Act. At the end of myinquiry I was of the opinion that the Eksath Lanka Janatha Pakshaya
SC Gooneratne y. Commissioner of Elections /Sharvananda, C.J.)169
was in very incipient state of growth and was not sufficiently organisedfor the purpose of recognition as a political party." The firstrespondent has in paragraph 14 (/) of his affidavit set out what, in hisview a party should establish to be entitled to be treated as arecognised political party in terms of section 7 (5) of the Act.
Ordinarily in normal circumstances after the submission of theConstitution and the list of office-bearers an applicant substantiateshis case with the production of-
the manifesto and policy statement ;
details of membership with membership receipts and registersetc.;
bank statements;
statements of assets ;
organisational systems ;
appointment of central and peripheral organisers dependant onthe nature of the party;
nature of activities undertaken, as a separate political party."
In paragraph 14(0) and (h) of his affidavit, the 1st respondent hasenumerated further considerations relevant for giving the recognitionenvisaged under section 7 of the Act; he states there
14(g) Those who claim the existence of a Party can be several butin my view the recognition envisaged under section 7 has to be (six)necessarily the combined effect of
The declaration by those who constitute such political party as apolitical party;
An acceptance by its constituents and the membership of theexistence of such political party;
Its identification and acceptance by segments of the people,not necessarily confined to its own membership, as a Party;
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(h) In my view the words 'organ,sed for elections' was such that Ishould look for a degree of existence and growth and that the partyshould not be in an incipient or a formative stage of development ororganisation.
The petitioners complain that the 1 st respondent's decision that theE.L.J.P. is not a political party and is not organised to contest anyelection is "unjust, unfair and unreasonable".
They allege that his disallowance of their application-
Violates the fundamental right guaranteed under section 12 ofthe Constitution ;
Discloses discrimination, in that, applications, for recognitionwith lesser qualifications had been allowed by theCommissioner of Elections.
The petitioners support their allegation of discrimination byreference to the application for recognition as a political party made by(a) the Nava Lanka Sama Samaja Party and (b) Sri Lanka MahajanaPakshaya.
Section 28A(5) of the Ceylon (Parliamentary Elections) Order inCouncil 1946, enacts if the Election Commissioner is satisfied that apolitical Party has been engaged in political activity for a continuousperiod of at least five years prior to the date of the Secretary of theParty making to him an application that such party be treated as arecognised political party, or that at least two candidates nominatedby such party at the last general election immediately preceding thatdate were elected as members, he shall make order that such partyshall be entitled to be treated as a recognised political Party for thepurpose of elections. This section was repealed by the ParliamentaryElections Act 1981.
Section 7 (5) of the Act provides as follows:
"Upon the receipt of an application (that the Party be treated as arecognised political party) duly made under sub-section (4) onbehalf of any political Party, the Commissioner shall, after suchinquiry as he may deem fit: (a) if in his opinion such party is apolitical party and is organised to contest any election under this
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Act. make order that such Party shall be entitled to be treated as arecognised political Party for the purpose of elections. (b) if in hisopinion such Party is not a political party and is not organised tocontest any election under this Act, make order disallowing theapplication."
A "recognised political party" enjoys the right to an approved symbolof its choice and certain other advantages and facilities. Further, it canexercise greater' control over its members who have been elected toParliament on its nomination paper-vide Article 99(b) of theConstitution. Being a recpgnised political party gives a political partycertain privileges and rights which are not available to an ordinaryparty.
It is to be noted that while under Section 28A of .the Ceylon(Parliamentary Elections) Order in Council, the Commissioner ofElections had certain objective criteria to go by viz. that the applicantpolitical Party had been engaged in political activity for a continuousperiod of five years prior to the date of the making of such anapplication or that at least two of its candidates were at the lastgeneral election elected members for him to make an order that suchparty is entitled to be treated as a recognised political party, Section7(7) of the Act substituted a subjective satisfaction on his part of twomatters only viz: (a) such Party is a political party and (b) that it isorganised to contest any election under the Act, to make order thatsuch party is entitled to be treated as a recognised political party. Apolitical party need not have been in existence for a certain length oftime to qualify for recognition. A newly formed Party having theattributes of a political party and organised to contest an election isentitled to recognition, in spite of its infancy.
• Politics comprehends everything that concerns the government ofthe country. Political parties are groups organised for the purpose ofachieving and exercising power within a political system. The life of thedemocratic state is built upon the party system. Parties arrange theissues upon which people are to vote. They act upon the electorate.Each party attempts to bring about the election of its candidate toParliament and by this means to control or influence the actions of theGovernment. Parties have one function in common; they all participateto some extent in the exercise of political power, whether by forming agovernment or by exercising the function of opposition. The functioninvolves three factors: the- oraanisation of nrnnananHa tho eoitwi^r.
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of candidates and the financing of campaigns. The party gives itscandidates a label that serves to introduce him to the voters and toidentify his position. Party membership provides the clearest indicationof the real political orientation of each candidate. Because of this partylabel the voters are better able to distinguish the candidates. The Partyalso furnishes the candidate with workers to put up his posters,distribute his literature, organise his meetings and canvass from doorto door. A political party possesses organizational machinery throughwhich it acts. Such organisation is in effect, the government of theParty. It is the machinery by which party-decisions are made. Thefunction of political parties has two main aspects: the organization ofthe electorate, with the purpose of obtaining a majority and themaintenance of continuous connexion between representatives andconstituencies. These processes are intertwined; they have a commonend viz. to obtain power over the State to realise political aims.Political parties are generally to be differentiated from interest groupswhich seek to influence government by such means as propagandaand persuasion rather than by putting forward candidates for election.They are groups of individuals or federations of associations foundedon some common interest; exertion of influence on the government isgenerally only, one of the purposes of such association. Professionalsocieties for example, make themselves heard by public authoritieswhen matters of concern to them are under consideration-, butinfluencing public policy is not the sole objective of such societies.Interest groups may sometimes becomex:onstituent parts Of a politicalparty. The distinction between political parties and pressure groupslies in the fact that pressure groups, unlike political parties do notnominate candidates for Parliamentary or local elections or desire toaccept the responsibility for management of the government.
According to the Consitution of E.L.J.P. its objective inter alia, is "toorganise and carry on a political Party in Sri Lanka with a view to obtainsuccess at any Presidential, General or other election." Its ten-pointprogramme sets out its policies and plan of action. Any citizen of SriLanka over the age of 18 years and who is in agreement with theobjectives and policies of the Party may become a member on thepayment of the appropriate membership fee. A member of the Party isprohibited from working against a candidate nominated by the Party atany election. The Working Committee of the Party exercisesdisciplinary action including expulsion. At any election whether
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, Presidential. General or otherwise, it nominates the Party candidates,and provides an electoral organisation, jt consists of-
President. Secretary and Treasurer of all Branches in theelectorate;
President, Secretary and Treasurer of all Youth Leagues in theelectorate; and
President, Secretary and Treasurer of all Kantha Samithi in theelectorate ;
The Petitioners have in their affidavit stated-
“that the E.L.J.P. is an Association or Party of several citizens ofSri Lanka formed as a political association or Party-one of itsobjects being to nominate candidates from the said party to standfor elections. General and Local when elections are held in the saidRepublic of Sri Lanka." The inaugural meeting of the E.L.J.P. washeld on 2nd January 1987 at 'Woodlands', Borella, at which aconstitution was adopted and office bearers and members of theSteering Committee were elected. The 1st Respondent has notcontested these facts, which he was made aware of at the inquiryhe conducted in respect of the application made for recognition.The petitioners have stated further that after the inaugural meeting,meetings were held in various electorates and that presentlymeetings are being held and Party Branches are being formed andthat Party organisers have been elected for several electorates. Withregard to this statement the 1st Respondent has merely stated"I am unaware of the present activities of the Petitioners Party.I was made aware of certain facts relating to this Party".
The criteria applied by the 1st Respondent for the grant ofrecognition under section 7(5) of the Act have been set out by him."Though it cannot be said with any precision in relation to a timeperiod, a political party has to be essentially a party so identified as adifferent entity, clearly distinguishable from the others, with abackground which lends a degree of confirmation and possessing anassurance of its own for the future, the demonstration of the totality ofwhich requires time."
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In interpreting the words 'organised for election' he states that 'Ishould look for a degree of existence and growth and that the partyshould not be in an incipient or formative stage of development ororganisation.'‘While I agree with 1st Respondent that if an applicantcan satisfy the criteria laid down by him, such political Party mustnecessarily be given recognition, I do think'that these criteria postulatemore than what is required by law. Let me examine some of thecriteria adopted by the 1st Respondent-the time factor, the need forgrowth and the crystallisation of political consciousness.
Take for example the matter of organisation. A group of personswith political experience and with more than adequate money,resources and management skills could in a very short time (that isbefore the application for registration is made) come up with afully-shaped organisation. Here there is no need for a backward glanceor for a period of growth and development. But generally a period ofdevelopment and organisation, short or long, may be necessary. The1 st Respondent has uppermost in mind the concept of thecrystallisation of public opinion. A political party can certainly emergefrom the crystallisation of public opinion. But it may be also possible toinduce the crystallisation of such public opinion. A politicalorganisation which seeks to do this is no less entitled to recognitionthan a political party of the earlier type. .
The 1 st Respondent is right in his approach of viewing this matter inits totality", the question of the organisation cannot be divorced fromthe political nature of the party and these composite factors constituteone concept. This is what the legislature had in mind, namely, a bonafide political organisation with its necessary structure and committedto contesting elections and taking part in the political life of thecountry.
In attaching undue significance to the factor of time, the 1stRespondent has misdirected himself in law and has unreasonablyrefused recognition of Eksath Lanka Janatha Pakshaya as a politicalparty under section 7(5) of the Act.
The order under section 7(5) is based on the Commissioner'sopinion. The sub-section is concerned only with his state of mind.However as opined by the House of Lords .in Secretary of State forEducation v. Tameside Metropolitan Borough (1) the use of subjectivelanguage does not . preclude the intervention of the court under the
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principles set cut in Associated Provincial Picture House Ltd., v.Wednesbury Corporation (2). The court may intervene if the officialconcerned is shown in a material respect to have misdirected himself•in law in forming the relevant opinion or to have taken into accountmatters which on the true construction of the statute, he should nothave taken into account or to have failed to take into account relevantmatters. Did the 1st Respondent direct his mind to the right questionin forming his opinion? Was his opinion influenced by facts whichought not to have been taken into account? Has he acted onextraneous considerations which ought not to have influenced him? Ifthe 1st Respondent has misdirected himself in law, then his opinion,however, bona fide it may be, becomes capable of challenge. Theground of challenge is patent unreasonableness.
Section 7(7) provides that the order of the Commissioner on anyapplication made under sub-section (4) shall be final and shall not becalled in question in any court.
The House of Lords in Anisminic Ltd., v. Foreign CompensationCommission (3) decided that a preclusive clause of the kind containedin Section 7(7) of the Act cannot oust the jurisdiction of the court todeclare void a determination or order based on an error of law on ajurisdictional matter.
"The breakthrough made by Anisminic was that, as respectsadministrative tribunals and authorities the old distinction betweenerrors of law that went to jurisdiction and errors of law that did not,was for practical purposes abolished. Any error of law that could beshown to have been made by them in the course of reaching theirdecision on matters of fact or administrative policy would result intheir having asked themselves the wrong question with the resultthat the decision they reached would be a nullity." Per Lord Diplockin Re Racal Communications Ltd. (4).
In the instant case the 1st Respondent has not questioned theexistence of those facts pleaded by the petitioners in support of theirapplication for E.L.J.P. to be treated as a recognised political party.The reason for his decision not to accord recognition was that theparty was in its infancy and that hence these facts were not sufficientto qualify E.l.J.P. to be a political party, organised to contest anelection. If the order made by the 1 st Respondent was invalid in law itwas really a 'no order' at all and so the court is not acting contrary to the
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statutory requirement tltoat the order shall not toe questioned. Theexclusionary clause in section 7{?) has no effect in excluding judicialreview on the basis of ultra vires. Lack of jurisdiction may arise if the1 st Respondent has asked himself ;the wrong question as to whatconstitutes a political party or when it is organised for elections andhas thereby come to an erroneous decision. Through an error of law,he has stepped outside his jurisdiction. The preclusive clause will notsave such a decision from challenge.
The 1 st Respondent's order is vitiated by his misconception of thefundamental attributes of a political party organised to contest anelection, that it must necessarily have been in existence for someappreciable length of time. The material placed before him abundantlypointed to E.L.J.P. being a Party with a policy and programme,organised to capture political power by putting forward candidates atelections, Presidential, General or Local Government, with a view toplay a role in the government of the day. The Party has a Constitutionand an organisation with a sizeable membership, and a potentiality forgrowth as is manifest by the fact that seven thousand at the time ofthe application, 22.01.87 rose to ten thousand at the time of theinterview on 27.02.87. The 1st Respondent does not doubt that theParty has taken shape and had come into existence with a definiteidentity of its qwn. He does not characterise it as a mushroom partythat sprouts when an election is in the offing, with no assurance of itssurviving the election. All the evidence tends to show that the partyintends to stay in the political firmament. However the 1st Respondentdenies recognition because it had not been in the political arena for asufficiently long time. In deciding to refuse recognition, the 1stRespondent has given undue weightage to the age-factor of the Party.He has overlooked the fact that the five years of political activityrequired by section 28A of the 1946 Elections Order in Council, hasbeen dispensed with by section 7 of the Act. It is not necessary todaythat the applicant party should have been in existence for an.appreciable time, for it to become entitled to the status'of arecognised political party. The 1 st Respondent's order is vitiated alsoby his misconception that to be entitled to become a ‘recognisedpolitical party' the party should be recognised by the other politicalparties either by being welcomed by them or be disapproved by them.Recognition by other parties is not necessary to become a recognisedpolitical party. Thus the order made by the 1 st Respondent disallowingthe application made by E. L. J. P. for recognition suffers from thesevitiating defects.
The Petitioners complain of inequality of treatment. They state that,in the matter of granting recognition, the E.L.J.P. has beendiscriminated against, that in similar circumstances Sri Lanka MahajanaPakshaya was granted the status of recognised political party, whilethe E.L.J.P. was denied by the 1 st Respondent that status. Article 12of the Constitution conceives persons to be similarly situated when'they a.re equally qualified. It provides that persons similarlycircumstanced should be treated alike both in privileges conferred andliablities inflicted-like should be treated alike. What is prohibited isdiscrimination between persons who are substantially similarcircumstanced. Between two parties applying for the grant of thestatus of "recognised political party" the Commissioner should notapply two different yardsticks or criteria for their identification aspolitical parties organised for election.
The petitioners have filed this petition under Article 126 of theConstitution, complaining of infringement of their fundamental right ofequality guaranteed to them by Article 12 of the Constitution. They'refer to the applications made to the 1 st Respondent for recognitionas a political party under section 7(5) of the Act by the Nava LankaSamasamaja Party and Sri Lanka Mahajana Pakshaya and they chargethat the 1 st Respondent had, on far less material than that furnishedby the petitioners, granted recognition to them. I have examined thefiles relating to the applications of the (1) Nava Lanka SamasamajaParty (2) The Sri Lanka Mahajana Pakshaya and (3) the E.L.J.P. In myview the circumstances of the Nava Lanka Samasamaja Party are notsimilar to those of E.L.J.P and the recognition of that Party cannot befaulted. But, there appears to be some substance in their allegation ofdiscrimination in respect of the application of Sri Lanka MahajanaPakshaya to be treated as a recognised Political Party. The time-factorto which the 1st Respondent attached so much importance inconsidering the case of E.L.J.P. did not prove fatal in the case of SriLanka Mahajana Pakshaya .which had a life of only a few days, havingbeen inaugurated on 22nd January, 1-984 when it made itsapplication on 30th January 1984 to- the 1st Respondent forrecognition. The 1st Respondent made order on 22nd March 1984,recognising the Sri Lanka Mahajana Pakshaya as a Political Party undersec. 7(7) of the Act. The 1st Respondent was, in spite of the infancyof the Party, satisfied that it was a separate political Party organisedfor election and that it was widely accepted as a political Party andthat the other opposition parties such as Sri Lanka Freedom Party,
Mahajana Eksath Pakshaya. the Lanka Sama Sarriaja Party and theCommunist Party had recognised it as'a separate party. Thepetitioners complain, with a degree of legitimacy, that the 1stRespondent did not, in the case of Mahajana Eksath Pakshaya “look fora degree of existence and growth and that the Party (applicant) shouldnot be in an incipient or a formative stage of development ororganisation." to be satisfied that it was organised for elections. In myview the 1 st Respondent had. in refusing the application of E.L.J.P. forrecognition applied criteria which the minimum requirements of thelaw did not postulate. Further, though he had applied the correctyardstick in not allowing the relevance of the time-factor to outweighother considerations in the case of Mahajana Eksath Pakshaya, he hadchosen to elevate the time-factor to be the decisive factor in the caseof E.L.J.P. He had thus accorded unequal treatment to E.L.J.P. Thereis no justification for this disparate treatment. A public official shouldexercise his powers so as not to discriminate between two citizenswho are similarly situate.
I am of the view that the 1st Respondent has erred in refusing theapplication of the Petitioners for recognition of E.L.J.P. as a PoliticalParty and had infringed their fundamental right of equality. I allow theapplication and set aside the order of the 1 st Respondent dated 31 stMarch i 987 contained in P12 and direct him to grant the petitioners'. application made under section 7(7) of the Act for E.L.J.P, to beregistered as a recognised Political Party and to make other relevantconsequent orders.
I make no order as to costs.
WANASUNDERA, J.-l agree.ATUKORALE, J.-l agree.
Application granted.