065-NLR-NLR-V-45-MOHAMED-MIHULAR-v.-NALLIAH-et-al.pdf
Mohamed Mihular and Nalliah.
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1944Present: Heame J.
MOHAMED MIHULAH v. NAELIAH et al.
In the Matter of the By-election for Trincomaleb-Batticaloa Electoral District.
Election petition—Charge of bribery—Severalactsalleged—Sufficiencyof
se.-urity—Paymentof cash to FinancialSecretary—Failureto give
particulars ofcharge—Deletionofcharge—Ceylon(StateCouncil
Elections) Order in Council, 1931, Articles 13(1),74(b).
Where, in an election petition, the corrupt practice ofbriberyis
alleged, for purposes of security itwould constituteonecharge,although
several acts of bribery are specifiedin the charge.
Payment of security in cash to the Pinancial Secretary] is sufficientcompliance with the requirements of articles IS (1) of the Order in Council.
Where non-compliance with the provisions of the Order in Council is-alleged in that the election wasnot conducted inaccordancewiththe
v principles laid down in such provisions it is not necessary to state in thepetition that such non-compliance affected the result of the election.
Where particulars of the chargeof bribery givenbythe petitionare
grossly insufficient the petitioner should not be allowed to proceed withthe charge.
T
HIS was an election petition praying that the election of the firstrespondent, as Member for the Trineomalee-Batticaloa Electoral
District, be declared void.
The respondent took certain preliminary objections with regard to (a)?the conduct of the election (b) the sufficiency of security and (c) thefailure of the petitioner to give particulars of the charges.
1 3 F «fe F 387.
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HEAKNE J.—Mohameti Mihular v. Nalliah.
H. V. Perera, K.G. (with J. E. M. Obeyesekere and DodzvellGnnawardana), for the petitioner.
N. Nadarajah, K.C. (with him C. S. Barr H. Ewnarakulasingam andH. Wanigatunge), for first respondent.
R. R. Crosette-Thambiah, C.C., for second respondent.
March 22, 1944. Hearne J.—
Cur. adv. vult.
A. N. M. Mohamed Mihular of Galbokke, one of the candidates at theelection for the Trineomalee-Batticaloa Electoral District held onNovember 20, 1-943, filed a petition praying that the election of thefirst respondent be declared void. The grounds on which the petitionwas based are—
that although the colour allotted to the candidate A. Canaga-
singham, under Article 32 (1) of the said Ceylon (State CouncilElections) Order in – Council was blue, the ballot boxes of thesaid A. Canagasingham were coloured a shade resemblinggreen in breach of Article 37 (2) of the said Order in Council.The colour allotted to the petitioner was green;
that the notice required to be affixed in accordance with Article
37 (3) of the said Order in Council did not show the colours withwhich the ballot boxes of the respective candidates werecoloured in breach of the said Article 37 (3) of the said Order inCouncil;
that the corrupt practice of bribery as defined in Article 54 of the
said Order in Council was committed in connection with thesaid election by the first respondent or with his knowledge orconsent or by an agent or agents of the first respondent.
In view of the allegations in (a) and (b) the Returning Officer was madesecond respondent.
An objection was taken to the insufficiency of the security. It wasargued that, having regard to the wording of (c), at least two charges ofbribery were alleged and that with (a) and (b) the petition containedfour charges. In these circumstances a tender of the minimum securityof Rs. 5,000 was a non-compliance with the provisions of Rule 12 of theSixth Schedule.
In my opinion by the word ‘ ‘ charges ’ ’ in Rule 12 (2) is meant ‘ ‘ thevarious forms of misconduct coming under the description of corruptand illegal practices:for example, wdaatever may be the number of
acts of bribery sought to be proved against a respondent the charge to belaid against him is one of bribery ”—Tillekewardene v. Obeysekere *.That also represents the view which appears to be implicit in the case ofSilva v. Kularatne z. The objection is overruled.
Another objection was that, assuming there were only three charges,the security should have been doubled as there are two respondents.I do not see how the number of respondents can affect the question of thenumber of charges and in consequence the quantum of the security.No ingenuity can make three charges more than three.
1 33 N. L. R. 65 at 67.2 44 N. L. R. at 21.
HEAKNE ,T.—Mohamed Mihular v. Nalliah.
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Again it was argued that although payment of the security in cashhad been made to the Financial Secretary it was not vested in the ChiefJustice as the provisions of Rule 13 (1) require. It is, I think, clear thatin depositing the security with the Financial Secretary the petitionerdid all that he was required to do. Upon his doing so, there was anautomatic vesting in the Chief Justice by operation of law. For thepurpose of convenience the money is payable to the Financial Secretary,but he is not at liberty to dispose of it in any way that he chooses. Hiscustody is declared by law to be that of the Chief Justice.
Objection was also taken to the averments in 3 (a) and 3 (c) in that, asit was argued, “ they are insufficient to disclose a proper subject forinquiryArticle 74 enacts that “ the election of a candidate shall be
declared to be void on an election petition on any of the following groundswhich may be proved to the satisfaction of the Election Judge, viz. :
….(b) non-compliance with the provisions of this Order relating
to elections if it appears that the election was not conducted in accordancewith the principles laid down in such provisions and that such non-compliance affected the result of the erection ”.
The view was pressed in argument that the petition should have setout that “ such non-compliance affected the result of the election
I do not think it was necessary to do so. The petitioner set out thealleged breaches of Article 37 of which he complained. Relief was askedunder Article 74 (6) and that relief will he granted subject to a findingby the Election Judge that “ non-compliance affected the result of theelection ”. It is a matter which is placed in the hands of the Judgeupon a review of all the evidence and, in my opinion, need not bespecifically pleaded.
I now come to the last formal objection that was taken by Councilfor the first respondent.
An order was made on March 14 requiring the petitioner to give fullparticulars setting out (a) the names of all persons, with their addresses,their occupations and their numbers on the voters lists who are allegedto have committed the corrupt practice of bribery, (b) the names of allvoters, with their addresses and occupations and their numbers on thevoters lists who were bribed or whom it was attempted to bribe, (c) whenand where the alleged bribery took place, (d) the nature of the allegedbribery, (e) the names of all witnesses with their addresses and occupationswho were relied on to prove the said charges.
On March 18 the petitioner filed an affidavit in which he stated, interalia, that he received notice on March 15 that he could not comply withthe order on the same day, and that “ in any event he apprehended thatif the particulars were furnished now and considerably prior to the hearingof the petition itself his witnesses may be tampered .with ”.
It is to be noted that even if the petitioner could not comply with theorder requiring particulars on March 15 no attempt was made to complywith it on any subsequent day. Further, the petitioner had no reasonto think and was given no reason to think that if he furnished particularson March 15 he would be giving them “ considerably prior to the hearingof the petition
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Opalgalla Tea and Rubber Estates, Ltd., and Hussain.
When the petition was before the Court on March 20, I gave instructionsfor the particulars to be furnished on the same day and they were forth-coming in little more than an hour. The order was not unreasonable.The petition had been filed on December 16, 1943, and I assumed, as in.the event I was justified in assuming, that the petitioner’s proctor musthave been given instructions in accordance with which the “ particulars ”could be supplied in a short space of time.
It would appear that the instructions that were given were of a mostmeagre nature. The so-called particulars were that “ one KannamuthuSardvanamuthu, agent of the first respondent (his address, occupation,&e., are not stated), obtained two ballot papers from a known person,in regard to whom no details are furnished except that he is ‘ of Karaya-kantive ’, and an unknown person on November 20, 1943, at Kannan-kuda, Batticaloa, for valuable consideration ”. The names of threewitnesses are mentioned- The address of one is not given. The other-two are police officers. I was left to assume that 1' if their names weregiven they would be tampered with ”.
If I regarded the above as a compliance with the order for particulars:in regard to the charge of bribery under Article 54, it would be tentamountto acquiescence in an attempt by the petitioner to flout that order. Onthe application of Counsel for the first respondent I have no hesitation-in rejecting the particulars given as being grossly insufficient. Thepetitioner may now proceed with his petition on the grounds set out in3 (a) and 3 (5) only. Whether he elects to do so or not, the parties, thatis to say, the petitioner and the first and second respondents will beartheir own costs of the hearing of the preliminary objections.