042-NLR-NLR-V-58-K.-K.-N.-M.-PUNCHI-BANDA-Petitioner-and-K.-M.-P.-RAJARATNE-Respondent.pdf
1956Present: Weerasooriya, J.
K. K. X. 1L PUNCHI BANDA, Petitioner, and K. M. P.RAJABATNE, RespondentElection Petition No. 3 of 1956
Election for the. I Veh't/iada Electoral District No. 7S holden071 7th A f.til. 195G'
Election petition—Who may jircscnl petition—mistake in entry of petitioner's namein register of voters—Effect thereof—Illegal practice—Effect of conviction priorlo year 105G—Ceylon (Parliamentary Elections) Order in Council, 101G,ss. 58 (1) (c andf), CS., GSn, 70, 72, 77, 70.'
1 (10JO) 13 N. L. It. IS7.
(i) In this election petition presented by a voter under section 79 of IhoCeylon (Parliamentary Elections) Order in Council, 1946, tho petitioner’snnmo ns appenring in tho register of voters was in every respect identical withhis nnmo as given in tho caption to tho election petition except for tho lasttwo letters of tho last word of tho nnmo which consisted of six words. Thorowas no doubt-, however, on tho cvidcnco led at tho inquiry, that tho entry inquestion in tho register of voters related to tho petitioner and to no otherperson.
Held, that tiio election petition could not bo rejected on the ground of apreliminary objection taken on behalf of tho respondent that tho petitionerwas not a person who had a right to vote at tho election.
(ii) Ky Section 1G of tho Ceylon Parliamentary Elections (Amendment)Act, No. 1G of 1956—
“ 'Where a person is at tho commencement of this Act subject to thoincapacity …. of being elected …. as a Member ofParliament by reason of his conviction of a corrupt practice under paragraph(c) or paragraph (/) of sub-section (I) of section 5S of tho Order in Councilprior to its amendment by section 15 of this Act …., such incapacity
shall ccaso on tho date of tho commencement of this Act notwitlistandinganything to tho contrary in the Order in Council.
Held, that the Section was intended to apply to thoso persons only whosoincapacity proceeded from their hating been found guilty of a corrupt practice.Tho Section, therefore, was not applicable to a person whoso incapacity, onthe data of the commencement- of t-ho amending Act-, proceeded from a convic-tion for an illegal practice within the meaning of sections 70 and 72 of thoprincipal Act of J91G.
JElECTION petition questioning the validity of the election and returnof the respondent as the member for Electoral District No. 7S (YVelimada)at the Parliamentary election held for that electoral district on the 7thApril, 1956.
Issadeen ilIohamcd, with Sunil K. Rodrigo, H. D. Thambidh and NandaK. Rodrigo, for the petitioner.
A. B. Perera, with J. C. Tliurairalnam, IF. Wimalachandra andP. Gunasekera, for the respondent.
Cur. adv. vult.
October 1, 1956. Weerasookiva, J.—
The petitioner Jvosgnha Ivumbura Navasi3’a Miuliyanselagc PunchiBanda has filed this petition questioning the validity of the electionand return of the respondent as the member for Electoral District No. 7S(lVelimada) at the Parliamentary election held for that electoral districton the 7th April, 1956, on the ground that by reason of his convictionof an illegal practice the respondent was, in terms of S. 72 (1) of theCe3‘lon (Parliamentary Elections) Order in Council, 1916, (hereinafterreferred to as the Order in Council) disqualified at the time of the saidelection and return from being elected as a member of Parliament.
It would appear that at a previous Parliamentary election, for the.same electoral district held on the 4th July, 1952, the respondent was-. an unsuccessful candidate. At that election the respondent was hisown. ^election agent and he failed to transmit to the returning officer*a return of his election, expenses as required by S. 70 of the Order inCouncil. In respect of that omission ho was tried on an indictmentin Case No. 5193 of the District Court of Badulla on a charge of havingcommitted an illegal practice and was found guilty of the charge on the26th August, 1955, and sentenced to pay a fine of Rs. 100. An appealfiled against the conviction and sentence was rejected by the SupremeCourt. Formal evidence in proof of this conviction was adduced bythe petitioner and not challenged by the respondent.•
Paragraph 1 of the petition avers as the ground entitling the petitionei-to present this petition in'terms of S. 79 of the Order in Council that lieis a person who had a right to vote and voted at the election to whichit relates. At the trial a preliminary objection was taken by counselfor the respondent that the petitioner was not a personwho had a rightto vote at the election in question, but as this was a matter which formedpart of the case to be established by the petitioner before he becameentitled to the relief claimed by liim, counsel for the respondent agreedthat the trial might be proceeded with and the point raised by him decidedalong with the substantial question of the disqualification of therespondent.
The register of electors in operation for the 1956 Pailiamentaryelections is the document P6. At page 248 of it in entry No. 2S5 appearsthe name Kosgaha-kumbura Navasiya Liudiyanselago Punchibandara-as one of the electors in Palugama Town. The same name appears inentry No, 272 at page 181 of the register Rl on which the 1952 Pazlia-mentary elections were held. That name is in every respect identicalwith the petitioner’s name as given in the caption to the petition exceptfor the last two letters of the last word. The question that arises iswhether the said entry No. 285 in P6 docs not relate to the petitionerbut relates to some other person.
The petitioner is the Chairman of the Village Committee of Udapalataand prior to his election as Chairman he was for several years its Vice-Chairman. He stated in evidence that although his name is as givenin the caption to the petition, he is sometimes referred to as PuncliiBandara by way of respect. He concedes, however, that Punchi Bandaramay also in certain eases denote a different name from Punchi Banda.While in view of the variation further inquiry is called for and the burdenis on the petitioner to establish that entry No. 285 at page24S of P6 relatesto him, there is, apart from the evidence of t-lic petitioner himself, theevidence of the Village Headman of Palugama and Proctor Batnayakc,both of whom claim to know the petitioner for a. considerable period,that they have heard him occasionally7 addressed or referred to as PunchiBandara, being a respectful variation of the name Punchi Banda. Itwas conceded by7 learned counsel for the respondent that the questionwhether the said entry7 No. 285 in P6 relates to the petitioner or not isone of fact. He submitted, however, that the entry relates to an entirely
different person from the petitioner. But no evidence -was adduced•on behalf of the respondent to contradict the evidence of the VillageHeadman or Proctor Ratnayako or to show that there is a person otherthan the respondent to whom the entry may relate. In the absence ofsuch evidence learned counsel for the respondent restricted himselfto a criticism of the evidence of the petitioner, in particular, and of theVillage Headman of Palugama as unworthy of credit. The petitionerstated that there was no other person in Palugama Town who bore theidentical name as himself but he admitted that outside the town areaof Palugama there was one other person having the same name who hadleft the locality some three years ago and has since been resident in<Jal-Oya. This admission, however, little avails the respondent sincethe entry referred to can relate only to a person who is a resident withinthe Palugama Town area and it is the petitioner’s evidence that he hasthroughout been residing within that area. The petitioner also statedunder cross-examination that his name appeared as a voter in theregister on wliich the 294:7 Parliamentary elections were conductedand that he exercised his right to vote on that occasion, but he wascontradicted on this point by the production of the register R-2 according .to which his name (or the name as given in entry Ho. 2S5 at page 248of P6) docs not appear as an elector in the Palugama Town area.
• Counsel for the respondent drew attention to this evidence of the petitionerns indicative of his general unreliability as a witness. The VillageHeadman of Palugama stated that in connection with the compilation•of the registers P6 and R1 he visited the various households in the Palu-gama Town and other areas within his jurisdiction and drew up listsof the several occupiers constituting each household. While grantingthat for any official purpose he would not have referred to the petitionerns Puiichi Bandara he said that he may have inadvertently entered thepetitioner’s name in that form in these lists although he did not under-take to be definite about it as he had no clear recollection of the matter.Learned counsel for the respondent stressed the improbability that thepetitioner’s name would have been so entered by the Village Headmanin these lists and that it is more likely, therefore, that entry Ho. 2S5at page 24S of P6 and entry Ho. 272 at page 181 of R1 relate to a personother than the petitioner.-
Having given careful consideration to these and the other submissionsmade by counsel for the respondent in this connection, I hold on theevidence before me that entry Ho. 285 at page 24S of P6 relates to thepetitioner and that he is, therefore, competent to present this petition.
I shall now deal with the next and only other question for determinationin these proceedings, namely, whether the respondent was by reasonof Iris conviction on the 26th August, 1955, for an illegal practice in-capable of being elected as a member of Parliament at the time of hiselection and return as the member for Electoral District Ho. 78 (Welimada)at the 1956 Parliamentary elections. S. 72 (1) of the Order in Councilprovides that one of the disqualifications consequent on a person beingconvicted by a District Court of an illegal practice is that he shall beincapable for a period of three years from the date of his convictionof being elected as a member of Parh'ament, which expression is defined
in S. 3 (1) of the same Order in Council as meaning a member of the.House of Representatives. PS is a copy of the Ceylon Government.Gazette containing a notification dated the 10th April, 1956, in termsof S. 50 of the Order in Council that the respondent had been electedas a member of the House of Representatives for Electoral District Ho. 7S(Welimada)._ This notification refers to a proclamation dated the 18thFebruary, 1956, and published in the Ceylon Government Gazette ofthat date by -which the Governor-General dissolved the existing Parlia-ment and summoned a new Parliament to meet on the 19th April, 1936,and also, inter alia, fixed certain dates for the general election of membersof Parliament. The date of the respondent’s election, according tothe evidence, was the 7tli April, 1956. It is, therefore, clear that ifS. 72 (1) of the Order in Council applies to this case the respondent wasat that date incapable of being elected as a member of the House ofRepresentatives.
Reamed counsel for the respondent argued, however, that in view ofcertain provisions of the Cejdon Parliamentary Elections (Amendment)Act, Ho. 16 of 1936 (hereinafter referred to as the amending Act) thedisqualification in S. 72 (1) of the Order in Council cannot be said tohave attached to the respondent consequent on his conviction of theillegal practice in the District Court case against him.
The preamble to the amending Act refers to certain recommendationsof a Select Committee appointed to report on amendments to the Orderin Council and to the need to give effect to some of them and also toterminate the incapacity to which any person was subject on the date ofthe commencement of the amending Act (the 16th February. 1956)
“ by reason of an act or omission which before that date teas a corrupt2>raclice and which on or after that date will be an illegal practice ”.
The amending Act provided, inter alia, for the repeal of paragraphs
and (/) of S. 58 (1) of the Order in Council and also introduced twonew sections, 6Sa and 68h, into the Order in Council; and the effectof these provisions (to put the matter shortly) was that a candidate orelection agent who, prior to the 16th February, 1956, would have beenguilty of a corrupt practice in regard to any act or omission as specified .in paragraphs (c) and (/) of S. 5S (I) of the Order in Council would,subsequent to that date, have been guilty of only an illegal practiceand punishable accordingly. It may be stated here that the period ofdisqualification from being elected as a member of the House ofRepresentatives in the case of a person convicted of a corrupt practiceis seven years whereas in the case of a person convicted of an illegalpractice it is only three years.
It was stated from the Bar by counsel for both parties that at thetime when the amending Act was introduced as a bill in Parliamentone E. L>. Senauayake had, in proceedings in which his election as themember of Parliament for Kandy at the 1952 Parliamentary electionswas challenged, been found guilty by the report of an election Judgeof corrupt practices under paragraphs (c) and (/) of S. 58 (1) of the Orderin Council, and the finding had been affirmed in appeal. Scnanayakcwas a member of the United National Parly and had bec-n put forward
as the party candidate at the 19.32 elections. Counsel also stated thatunder the relevant provisions of the Order in Council the finding of theelection Judge had the same effect as a conviction by a District Courtof the corrupt practices involved in the finding and consequently at thetime referred to Senahayakc was under the incapacity that such aconviction entailed and would have remained in that state of incapacityfor a further considerable period and certainly during the next generalejection of a new Parliament that was then expected to take place shortly.
S. 16 of the amending Act provides for the termination of any existingincapacity in any person arising out of the commission by him, prior tothe commencement of the operation of that Act, of a corrupt practiceunder paragraphs (c) or (/) of S. 5S (1) of the Order in Council as it thenstood. The effect of S. 16 was undoubtedly to relieve Senanavakcof the incapacity under which ho lay and make him eligible thereafterfor election as a member of Parliament.
The argument of learned counsel for the respondent that S. 72 (1)of the Order in Council docs not operate so as to render the respondentincapable of being elected as a member of Parliament for a- jieriod ofthree years consequent on his conviction for an illegal practice is basedalmost entirely on S. 16 of the amending Act and, paradoxically as itwere, S. 16 seems to be the very section which also destroys his argument.According to learned counsel the provisions of S. 16 and, indeed, all theother provisions of the amending Act are of general applicability andare not to be construed in favour of a particular individual only. JfS. 16 is construed as not applicable to the respondent who was the onlyother person besides Senanayakc who at the time of the coming intooperation of the amending Act was known to he under the same in-capacity though for the shorter period of three years, consequent onhis conviction of an illegal practice, it would lead to injustice and absurditywhich the legislature could never have intended and such a constructionshould, therefore (in counsel’s submission), be avoided.
Learned counsel conceded that on a plain reading of the languageused in S. 16 of the amending Act the respondent would appear not tocome within the benefit of it. Put he contended that this was a casewhere such additional words as may be necessary should be read intoits provisions so as to extend the provisions to the case of a personwho at the time of the commencement of the operation of the amendingAct was under incapacity consequent on his conviction of an illegaljjractice.
As stated in the case of The- King v. Ettridge1 a .Court of Law mayin construing a particular statute “ reject words, transpose them, or evenimply words if this be necessary to give effect to the intention and meaningof the legislature ; and this is to be ascertained fro n a careful considera-tion of the entire statute ”. Maxwell in his treatise on the Interpretationof Statutes2 deals with the same matter under a chapter which is headed“ Exceptional Construction ” and in a passage which reads as follows :—
“ Where the language of a statute, in its ordinary meaning andgrammatical construction, leads to a manifest contradiction of the
1 (1909) 2 K. B. D. 21 r.t 2$.
* (10ih edition) Chap. 9, 229.
■ apparent purpose of tho enactment, or to some inconvenience or.absurdity, hardshiii or injustice, presumably not intended, a construc-tion may be put upon it which modifies the meaning of the words,and even the structure of the sentence. This may be done by departingfrom the rules of grammar, by giving an unusual meaning to particularwords, by altering their' collocation, or by rejecting them altogether,under the influence, ho doubt, of an irresistible conviction that thelegislature could not possibly have intended what its words signify,and that the modifications thus made are mere correctiojis of carelesslanguage and really give the true meaning. Where tho main objectand intention of a statute are clear, it must not be reduced to anullity by the draftsman’s unskilfulness or ignorance of the law,except in a case of necessity, or tho absolute intractability ofthe language used. Nevertheless, the courts are very reluctant tosubstitute words in a Statute, or to add words to it, and it has been saidthat thej' will only do so where there is a repugnancy to good sense. ”
When one turns to S. 16 of the amending Act and compares its languagewith the wording in the preamble there is no room for tho view thatconstruing that section according to the ordinary meaning of the languageused would lead to a manifest contradiction of the apparent purposeof the enactment or that it was the intention of the legislature that aperson under incapacity as a result of a conviction of an illegal practiceshould come within the benefit of the section but that intention hasbeen reduced to a nullity by the draftsman’s unskilfulness in the choiceof his words. In my opinion neither in the preamble nor in the sectionitself could it have been more plainly indicated that the section wasintended to apply to only those persons whose incapacity proceededfrom their having been found guilty of a corrupt practice. I find nodifficulty, therefore, in holding that in terms of S. 72 (1) of the Order inCouncil the respondent was at the time of his election which is challengedin this petition incapable of being elected as a member of the House ofRepresentatives, and that S. 16 of the amending Act is not inconsistentwith such an interpretation.
S. 77 of the Order in Council provides that the election of a candidateas a member of Parliament shall be declared void if on an election petit ionit is proved to the satisfaction of the election Judge that the candidatewas at the time of his election a person disqualified for election as amember of Parliament. I accordingly declare that the election of therespondent as the member for Electoral District No. 7S (Welimada)at the Parliamentary election held on the 7th April, 1956, was void.In regard to the relief in paragraph (6) of the pra3rer in the petitionclaiming the seat for one of the other candidates, counsel for the petitionerstated at the commencement of the trial that he was abandoning thatclaim. The respondent will pay tho petitioner’s costs of these proceedingswhich by agreement of counsel for both parties aro fixed at threehundred guineas.
Election declared void.