018-NLR-NLR-V-49-KURUPPU-Petitioner-and-HETTIARATCHY-et-al.-Respondents.pdf
Kuruppu v. HeUiaratchy.
67
1947Present: Nagalingam J.
KURUPPU, Petitioner, and HETTIARATCHY et al., Respondents.Election Petition No. 6 of 1947, Nivitigala.
Election petition—Inspection of documents—Secrecy of ballot—Decision of ReturningOfficer—Bellot papers—Elections Order in Council —Rules 49(5) and 87.
On an application for inspection of documents by the petitioner who claimedthe seat on the ground that he had a majority of lawful votes—
Held—(i) that the journals of the Presiding Officer and the report of theReturning Officer were private documents which were not liable to be disclosed :(ii.) that the petitioner was entitled to inspect the list of tendered ballotpapers and the marked Register ;
(iii.) that disclosure of the tendered ballot papers would violate the secrecyof the ballot and could not be permitted ;
(iv.) that the decision of the Returning Officer rejecting a ballot paper wasfinal and could not unlike in English law be questioned on an election petitionand that inspection could not be allowed.
10 – N.L.R. Vol – xlix
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NAGrAZ.IN'GAM J.—Kuruppu v. HetUaratchy.
Application for inspection of documents in regard to ElectionPetition, Nivitigala.
N.E. Weerasooria, K.C. with A. B. Perera, for petitioner.
S. E. J. Fernando, for first respondent.
T.S. Fernando, C.C. with M. Tiruchelvam, for second respondent.
Cur. adv. wit.
December 16, 1947. Nagalingam J.—
This is an application for inspection of documents by the petitionerwho in effect claims the seat on the ground that he had a majority oflawful votes. The documents he seeks inspection of are set out in hisapplication dated December 3, 1947. The journals of the PresidingOfficer and the report of the Returning Officer are not documents whichare required to bo kept under the Order in Council but are in the natureof private documents which in the interest of administrative efficiencyhave been prepared by the officers concerned on the directions of theCommissioner of Parliamentary Elections. These documents would fallwithin the category of documents known in civil proceedings as thoserelating solely to the case of a party and not liable to be disclosed. Thecontents of these documents may be elicited, if deemed necessary, at thetrial by summoning the officers who may have kept them, and in view ofthe nature of the petition presented in this case, I cannot at the presentmoment see what relevancy those documents or their contents couldhave to the case of the petitioner. I am therefore not satisfied that thepetitioner has made out a case for the inspection of these documents.
The list of tendered ballot papers and the • marked Register aredocuments which I think the petitioner is entitled to inspect in view ofthe allegation that voters who would have cast their votes in favour of thepetitioner have been personated at the election. The declarations madeby the voters who voted on tendered ballot papers, to my mind, are notdocuments which would furnish information to the petitioner any greaterthan'what the list of tendered ballot papers and the marked Registerwould show ; but as Counsel for both respondents have consented tothese documents being made available to the petitioner and as I can seeno harm in granting the petitioner’s request in regard to them, I wouldallow their inspection too.
Neither the tendered nor rejected ballot papers I think are documentswhich the petitioner can claim to have inspection of. The tenderedballot papers as required by section 45 of the Order in Council wouldcontain the names of the voters and their numbers in the Register andthe disclosure of these ballot papers would reveal how these voters votedand the secrecy of the ballot would thereby be violated. Under our law,differing as it does from the English law in this respect, the rejection of aballot paper cannot be canvassed on an election petition, for by sections49 (5) and 87 of the Order in Council the decision of the Returning Officerrejecting a ballot paper is declared to be final and not liable to bequestion on an election petition. While under English practice it isquite permissible to allow inspection of the rejected ballot papers with aview to question the decision of the Returning Officer in regard to orders
NAGAXjTNGAM J.—Kuruppu v. Heltiaratchy.
69
mady by him rejecting ballot papers, no such object can be achievedunder our law and an inspection would not assist the petitioner to anyextent but would merely provide him with material which would tempthim into labyrinths from which he cannot successfully emerge. Counselfor the petitioner was not able to adduce any reasons for his wanting aninspection of these documents. I therefore disallow the applicationwith regard to the tendered and rejected ballot papers.
The unmarked ballot papers and the ballot papers not having theofficial mark which are listed in the application as forming a separatecategory must necessarily fall under either “ rejected ballot papers ” or“ counted ballot papers ”. If they fall within the class of rejectedballot papers, the observations I have made in regard to rejected ballotpapers would equally apply to them ; but Counsel for the petitionerstates that they in fact fall under the item of counted ballot papers. Ishall therefore now deal with counted ballot papers as may remarks wouldcover them as well. The reason for desiring inspection of the countedballot papers at this stage is stated by Counsel for the petitioner to be toascertain whether the counting was correct and whether among thecounted ballot papers there are any which should have been eitherrejected by the Returning Officer or in any event not counted owing toimpersonation or any other circumstance. It was pointed out that thepetitioner’s application is restricted to an inspection of documents anddoes not extend to his being permitted to carry out a count on his own.Petitioner’s Cousel then made an oral application that he be permittedto carry out a recount before trial in the presence of the respondents,but that will be the substantive matter for adjudication before the trialJudge, and any application for a recount before trial with a view tominimise the length of the trial should properly be made to the trialJudge and not to a Judge dealing with an interlocutory application. Itherefore refuse an inspection of the counted ballot papers.
I would theiefor direct that the petitioner be allowed an inspection of :(i) the list of tendered ballot papers,
(ii.) the declarations mad© by the voters who voted on tendered ballotpapers, and^
(iii.) the marked registers,
in Court in the immediate presence of the Returning Officer on a dateto be mutually agreed upon by Counsel- for the petitioner and for thesecond respondent in consultation with the Registrar of the Court. Ihave assumed for the purpose of this order that the documents theinspection of which I have allowed are not included in the bundles of :
(i.) counted ballot papers,
(ii.) rejected ballot papers,
(iii.) tendered ballot papers,
and that the inspection of the documents allowed would not lead tobreaking the seals of any of the aforesaid classes of ballot papers Shouldthe contrary, however, be the case, further directions will be applied for.
The costs of the application will be costs in the cause but the petitionerwill in no event be entitled to his costs.
Application partly allowed.