039-SLLR-SLLR-1985-V2-NANAYAKKARA-v.-KIRIELLA-DECEASED-AND-OTHERS.pdf
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Nanayakkara v. Henry Perera, A S P. (Colin-Thome. J.)
391
NANAYAKKARA
v.
KIRIELLA (DECEASED) AND OTHERS
SUPREME COURT.
COLIN-THOMfc. J.. RANASINGHE. J. AND TAMBIAH. J.
S C. ELECTION PETITION APPEAL No. 6/84.
ELECTION PETITION No. 1/83.
SEPTEMBER 11. 1985.
Election petition – Notice of presentation of election petition – Rule 15 ParliamentaryElection Petition Rules 1946 set out in Third Schedule of the Ceylon (ParliamentaryElections) Order-in-Council amended by Act No. -11 Of 1959.
On preliminary objection regarding validity of notice of presentation of an electionpetition –
Held – (Ranasinghe. J. dissenting):
The ten day time limit prescribed by Rule 15(1) of the Parliamentary Election PetitionRules for service of notice of the presentation of an election petition on the respondentsis mandatory and applies to every mode of service of notice set out undersub-paragraphs (a) and (b|. Even where the petitioner delivers to the Registrar thenotices and copies of the petition under rule 15 (1) (b) the actual service must beeffected within ten days.
Cases referred to:
PA. Cooray v. H. J. G. Fernando (1953) 54 NLR 400.
Nairv. Teik [1967] 2 AllE. R. 34. 40.
Ramalingam v. Kumaraswamy (1953) 54 NLR 494.
APPEAL from judgment of Election Judge.
K. Shanmugalingam with Udeni Gunasekera. N. G. Punchihewa and Mrs. NimaikaFernando for petitioner-appellant.
K. N. Choksy. P. C. with Daya Pelpola and Lakshman Perera lor intervenient-respondent.
S. W. B. Wadugodapitiya. Additional Solicitor General with Miss Indra Sinwardene for7 th respondent.
Cur. adv. vult.
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Sri Lanka Law Reports
(1985} 2 SriL.R.
Octobers. 1985.
COUN-THOMfc, J.
The petitioner-appellant filed an election petition challenging theelection of Dr. L. P. Kiriella as Member of Parliament for Eheliyagoda ata by-election held on the 18th May 1983. Dr. Kiriella died after thefiling of the petition and the intervenient respondent was substituted in
his place.
At the hearing of the Election Petition certain preliminary objectionswere raised on behalf of the intervenient respondent. After hearingoral submissions and considering written submissions by both partiesthe learned Election Judge by his order dated 22nd October 1984dismissed all the preliminary objections except one. and on the basisof that objection dismissed the petition with costs. The objectionwhich was upheld was that notice of presentation of the ElectionPetition accompanied by a copy thereof had not been served by thepetitioner on the 1 st, 3rd and 8th respondents within the time limitstipulated in Rule 15 in the Third Schedule of the Ceylon(Parliamentary Elections) Order-in-Council, 1946, as amended bysection 29 of Act No. 11 of 1959. The petitioner-appellant states thatthe learned Election Judge has misinterpreted Rule 15 and prays thathis order be set aside and he be directed to proceed with the trial ofthe Election Petition and for costs and other relief.
Rule 15 states: –
'15. (1) Notice of the presentation of a petition, accompanied bya copy thereof shall, within ten days of the presentation of thepetition-
la) be served by the petitioner on the respondent; or
be delivered at the office of the Registrar for service on therespondent, and the Registrar or the officer of his departmentto whom such notice and copy is delivered shall, if required,give a receipt in such form as may be approved by the ChiefJustice.
|2) The service under paragraph (1) of notice of the presentation ofa petition and a copy thereof by the petitioner on therespondent may be effected either by delivering such notice andcopy to the agent appointed by the respondent under rule 10 orby posting them in a registered letter to the address given underrule 10 at such time that, in the ordinary course of post, theletter would be delivered within the time above mentioned, orby a notice published in the Gazette stating that such petitionhas been presented and that a copy of it may be obtained by therespondent on application at the office of the Registrar.
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Nanayakkara v. Kiriella (Colin-Thoma, J.)
393
Where notice of the presentation of a petition, accompanied bya copy thereof, is delivered under paragraph (1) at the office ofthe Registrar for service on the respondent, such service maybe effected in the same manner as the service of a notice issuedby a court is effected under the Civil Procedure Code."
The Election Petition was filed on the 7th June, 1983. On the 10thJune the petitioner's agent tendered to the Registrar notices togetherwith sufficient number of copies of the petition and affidavit for serviceon the respondents. On the same day the Registrar forwarded thesenotices together with the precept to the Fiscal of the High Court ofRatnapura to be served on the 1 st to the 4th and the 6th to the 9threspondents. On the same day he also forwarded a notice togetherwith the precept to the Fiscal of the High Court of Avissawella forservice on the 5th respondent.
On the 7th July 1983 the Registrar reported to the Election Judgethat the notices on the 1st, 3rd and 8th respondents could not beserved as the 1 st respondent was not residing at the given addressand was residing in Colombo. The 3rd respndent could not be foundand the 8th respondent was no longer residing at the given address.On the 11 th July notices were reissued for service on the 1 st, 3rd and8th respondents. It is clear from the journal entries that notices on the1 st, 3rd and 8th respondents were not served within ten days of thepresentation of the petition. This was the only mode of serviceresorted to by the petitioner. The petitioner-appellant has submittedthat :
Rule 15(1) <b) requires that notice of the presentation of thepetition accompanied b’y a copy thereof shall within 10 days ofthe presentation of the petition be delivered at the.office of theRegistrar for service on the respondents.
Rule 15(3) provides that where a notice and a copy of thepetition is delivered to the Registrar under Rule 15(1) (b) forservice on the respondents, such service may be effected in thesame manner as service of a notice issued by Court is effectedunder the Civil Procedure Code,
The above provisions in Rule 15 make it clear that the Rule iscomplied with if within 10 days the petitioner delivers to theRegistrar the notices and copies of the petition for service onthe respondents. It is not necessary that the actual serving isdone within 10 days.
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Sri Lanka Law Hepons
[1985] 2 Sri LR
Rule 15(1) (4?) was introduced by an amendment in 1959because it was found that service under Rule 15(1) (a) wasworking hardship and respondents were able to avoid personalservice within 10 days. That is why the Legislature by itsamendment provided that tendering of the notice within 10days with copies of the petition to the Registrar for service indue course on the respondents was sufficient compliance withRule 15.
Rule 15(1) (b) is so clear and unambiguous in simple Englishlanguage that there is no need to look for any aids forinterpretation or to any canons or rules of interpretation or toany other authorities.
The original Rule 15 prior to the amendment by section 29 of ActNo. 11 of 1959 was restricted to certain modes of service. It stated :
15. Notice of the presentation of a petition, accompanied by acopy thereof, shall, within ten days of the presentation of thepetition, be served by the petitioner on the respondent. Such servicemay be effected either by delivering the notice and copy aforesaid tothe agent appointed by the respondent under rule 10 or by postingthe same in a registered letter to the address given under rule 10 atsuch time that, in the ordinary course of post, the letter would bedelivered within the time abovementioned, or if no agent has beenappointed, nor such address-given, by a notice published in theGazette stating that such petition has been presented, and that acopy of the same may be obtained by the respondent on appli nationat the office of the Registrar.
in P. A. Cooray v. H. J. G. Fernando (1) the respondent on 16.6 52filed an election petition praying for a declaration that the applicantwas not duly elected or returned and that the election was void. On
the respondent applied to the Court to have notice ofpresentation of the petition served on the applicant through the Fiscal.The motion was allowed and on the same day the Registrar forwardedthe notice to the Deputy Fiscal, Kalutara, for service and immediatereport. On 26.6.52 the Deputy Fiscal reported that his officer madeattempts on the 21st, 23rd and 25th June to serve the notice on theapplicant but that he was not to be found.
On 26.6.^%? the respondent also left with the Registrar a copy of thenotice of the presentation of the petition.
SCNanayakkara v. Kirialla (Colm-Thomd, J.)395
On 26.6.52 the respondent also posted under two separate coverstwo copies of the petition he had filed and two copies of notice of thepresentation of the petition. They were sent by registered post and theregistered letter receipts were filed. The evidence established that theregistered packets were delivered to the applicant on 30.6.52, afterthe prescribed time,
On 25.6.52 the notice for publication in the Gazette was handed tothe Government Printer. This notice appeared in the Gazette on27.6 52 i.e. beyond the period of 10 days.
It was held that when an election petition is presented the petitionershould serve notice of it on the respondent within the prescribed time.When notices are sent by registered post the date of delivery is thecrucial factor. In this case they were delivered outside the prescribedtime of ten days. This was a fatal defect. Similarly, the date ofpublication of the notice in the Gazette is the required date, not thedate on which it was handed in for publication. As the publication wasbeyond the period of ten days this was a fatal defect.
It was-further held that leaving copies of the notice and petition withthe Registrar was not a sufficient mode of service. Rule 10 of the ThirdSchedule does not apply to the service of notice of presentation of thepetition. Rule 15 applied exclusively to the service of notice. Rule 15did not prescribe delivery of copies to the Registrar as a mode ofservice.
In Nair v. Teik (2) an election case from Malaysia it was evident thatRule 15 under the Election Offence Ordinance, 1954 of Malaysiawas similar to Rule 15 of the Ceylon (Parliamentary Elections)Order-in-Council, 1946, before the amendment in 1959. The PrivyCouncil reached the conclusion that the provision of Rule 15 wasmandatory, and the respondent's failure to observe the time forservice thereby prescribed rendered the proceedings a nullity. Thecircumstances which weighed heavily with their lordships in favour of amandatory construction were .
The need in an election petition for a speedy determination ofthe controversy. It is very much in the interests*of the publicthat the matter should be speedily determined.
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(1985} 2 SriL.fi.
The rules vest no general power in the election judge to extendthe time on the ground of irregularity. Their lordships think thatthis omission was a matter of deliberate design. In cases whereit was intended that the judge should have power to amendproceedings or postpone the inquiry it was expressly conferredon him.
If there is more than one election petition relating to thesame election or return, they are to be dealt with as one. Itwould be manifestly inconvenient and against the public interestif by late service in one case and subsequent delay in thoseproceedings the hearing of other petitions could be held up.
Respondents may deliver recriminatory cases and speedyservice, in order that the respondent may know the caseagainst him. is obviously desirable so that he may collect hisevidence as soon as possible.
It is common ground that the judgment in Cooray v. Fernando(supra) led to the amendment of Rule 15 by section 29 of Act No. 11of 1959. This amendment introduced for the first time a new mode ofservice in the provisions of Rule 15(1) </?).
The new Rule 15 (2) retained the modes of service enacted in theold Rule T 5 deleting the restrictive words “or if no agent has beenappointed, nor such address given" in connection with a notice ofpresentation of a petition published in the Gazette. This amendmentno doubt was influenced by the decision in Ramalingam v.Kumaraswamy (3} which held that a notice published in theGovernment Gazette can be availed of by the petitioner as notice ofthe presentation of his election petition only if before the publicationno appointment of an agent or address had been given to the Registrarof the Supreme Court by the respondent in terms of Rule 10.
According to learned Counsel for the petitioner-appellant what isrequired of the petitioner under the new Rule 15 (1) (b) is that he mustdeliver notice arid a copy of the petition within 10 days of filing of thepetition to the Registrar. Thereafter the service of the said notice is theresponsibility of the Registrar who is an officer of the Court. It is notrequired thaf ^ie Registrar must serve the said notice within 10 daysof filing the petition.
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Nanayakkara v. Mrietta (Cokn-Thomtf, J.)
397
The question for decision is whether service of notice of the petitionand copy of the petition on the respondent is governed by amandatory ten day rule in all the modes of service, except one.
One of the objects of the Ceylon (Parliamentary Elections)Order-in-Council, 1946, as amended, is the speedy determination ofan election petition after a trial. Under section 83 an election petitionshall be presented within twenty-one days of the date of publication ofthe result of the election in the Gazette. By Rule 12(1) security for thepayment of all costs, charges and expenses shall be given on behalf ofthe petitioner within three days of the presentation of the petition.Section 80 C (2) requires that every election petition shall be tried asexpeditiously as possible and every endeavour shall be made toconclude the trial of such petition within a period of six months afterthe date of presentation of the petition. The Election Judge shall makehis order deciding such petition without undue delay after the date ofthe conclusion of the trial of such petition. Under section 82 A (2) anappeal must be preferred before the expiry of the period of one monthnext succeeding the date of determination or decision against whichthe appeal is preferred. Rule 15 has been formulated with the sameobject in view. The reason for a speedy determination of an electionpetition is not only because it is in the public interest but also to enablea respondent to know the case against him so that he may collect hisevidence as soon as possible.
The arrangement of Rule 15 (1) is significant. The expression"within ten days of the presentation of the petition" in Rule 15 (1)governs both sub-paragraphs (a) and (b). There is no basis for thesubmission by learned Counsel for the petitioner-appellant that the tenday limit is applicable only to sub-paragraph (a) and not tosub-paragraph (b). If Rule 15 (1) (b) was intended to be an exceptionto the ten day rule of communication of the notice to the respondent,and that delivery of the notice at the office of the Registrar within.tendays was sufficient compliance with Rule 15, then sub-paragraph (b)would have been drafted in a separate section stating in expresswords that there was.no time limit on the service of the notice or thatservice was to be effected as expeditiously as possible.
I hold that the governing words 'within ten days of the presentationof the petition' in Rule 15 (1) apply to all and every mode of serviceset out in Rule 15. It is mandatory for alt modes of service. Thepetitioner is given a choice of several modes of service so as to ensure
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11985] 2 SriL.R.
service within the specified time limit. Under Rule 15 (1) (b) where thenotices are tendered to the Registrar for service, both the delivery andthe service must be effected within ten days. I hold that the failure toserve notices on the 1st, 3rd and 8th respondents within themandatory ten days is a fatal defect.
For the reasons stated the appeal is dismissed but without costs.
RANASINGHE, J.
I have perused, in draft, the judgment of my brother Colin-Thome, J.As I find myself unable to agree with the view expressed therein, I nowproceed to set down my approach to the question which was arguedbefore this Court.
The question, which was presented for consideration, is : whetherthe copy of the notice of the presentation of an election petition,accompanied by a copy thereof, which are delivered at the office ofthe Registrar, in terms of Rule 15{1) (£>) of the Parliamentary ElectionPetition Rules 1946 set out in the Third Schedule of the Ceylon(Parliamentary Elections) Order-in-Council (Chap. 381) as amended byAct No. 11 of 1959. and which the Registrar is required, by sub-rule(3) of the said Rule 15, amended as aforesaid, to serve on therespondent, in the manner set out therein, should also be so served onthe respondent within the period of ten days specified in the said Rule15(1).
Rule 15 of the Third Schedule of tfe said Ceylon (ParliamentaryElections) Order-m-Council (Chap. 381) provided that:
"Notice of the presentation of a petition, accompanied by a copythereof, shall, within ten days of the presentation of the petition beserved by the petitioner on the respondent. Such service may beeffected either by delivering the notice and copy aforesaid to theagent appointed by the respondent under rule 10 or by posting thesame in a registered letter to the address given under rule 10 atsuch time that, in the ordinary course of post, the letter would bedelivered within the time above-mentioned, or if no agent has beenappointed, nor such address given, by a notice published in theGazette stating that such petition has been presented, and that acopy of the same may be obtained by the respondent on applicationat the office of the Registrar'.
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Nartayakkara v. Kiriatla (Ranasinghe, J.)
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Sec 29 of the amending Act No. 11 of 1959 substituted thefollowing new rule in place of Rule 15 – set out above – of the 3rdSchedule of 1946 Order-in-Council (Chap. 381):
'Service ofnotice ofpetition andcopy ofpetition onthe respondent.
15. (1) Notice of the presentation of a petition,accompanied by a copy thereof shall, withinten days of the presentation of the petition-
fa) be served by the petitioners on therespondent; or
<b) be delivered at the office of the Registrarfor service on the respondent and theRegistrar or the officer of his departmentto whom such notice and copy isdelivered shall, if required, give a receiptin such form as may be approved by theChief Justice.
The service under paragraph (1) of thenotice of the presentation of a petition and acopy thereof by the petitioner on the-respondent may be effected either bydelivering such notice and copy to the agentappointed by the respondent under rule 10or by posting them in a registered letter tothe address given under rule 10 at such timethat, in the ordinary course of post, theletter would be delivered within the timeabove mentioned or by a notice published inthe Government Gazette stating that suchpetition has been presented and that a copyof it may be obtained by the respondent onapplication at the office of the Registrar.
Where notice of the presentation of apetition, accompanied by a copy thereof, isdelivered under paragraph (1) at the officeof the Registrar for sevice on therespondent, such service may be effected inthe same manner as the service of a noticeissued by a Court is effected under the CivilProcedure Code".
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[1985] 2 Sri L.R.
Rule 10, which is referred to in paragraph (2) of Rule 15 set outabove, is :
'Any person returned as a Member may at any time, after he isreturned, send or leave at the office of the Registrar a writing,signed by him on his behalf, appointing a person entitled to practiseas a proctor of'the Supreme Court to act as his agent in case thereshould be a petition against him, or stating that he intends to act forhimself, and in either case giving an address within the city ofColombo, at which notices addressed to him may be left, and if nosuch writing be left or address given, all notices and proceedingsmay be given or served by leaving the same at the office of theRegistrar. Every such writing shall be stamped with the duty payablethereon under the law for the time being in force"
A careful examination of Rule 15. as it stood before the amendingAct No. 11 of 1959, makes it clear that : the petitioner (who presentsan election petition in terms of the provisions of sec. 83(1) of the saidOrder-in-Council of 1946 (Chap. 381) must, within a period of tendays from the date on which he presents such petition, serve on therespondent, named in such petition, a notice of the presentation ofsuch petition together with a copy of such petition . the petitioner maycarry out the service, which he is so obliged to effect, on the petitionerin one of three ways
(0 by delivering the said notice and the copy to the respondent'sagent appointed under rule 10 ; or
by so posting the said notice and copy, under registered cover,to the respondent's address given under the said rule 10, that,in the ordinary course of post, they would be delivered to therespondent within the said period of ten days , or
if, no agent has been so appointed, nor an address soregistered, then by publishing – which, said publication, as willbe set out later, must itself be done before the expiration of theaforesaid period of 10 days – a notice, as set out therein, inthe Gazette..
Rule 15, as it originally stood, whilst making the service of the saidnotice, and the copy which was to accompany it, by the petitioner onthe respondent imperative, also proceeded to spell out three differentmethods by which the petitioner could carry out the duty so cast uponhim. Of them*the first two, namely, (i) and (ii) set out above, are in the
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Nanayskkara v. Kiriella (Ranasinghe. J.)
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alternative ; the third, namely (iii) above, could be resorted to only ifneither an agent had been appointed nor an address registered. Thethird mode was thus conditional upon a non-compliance by thepetitioner with certain requirements of the aforesaid rule 10. Rule 15,prior to its amendment, directed the petitioner to serve the notice andthe copy, set out therein, upon the respondent within the period alsospecified therein ; and it also proceeded to set out a maximum of twoand a minimum of one method by which such service could beeffected by the respondent. These were not the only methods whichthe petitioner could employ. Such description was not meant to beexhaustive. It was open to the petitioner to effect such service by anyother method, which is ordinarily used to make a person aware ofsomething which needs must be brought to his notice by another, andsatisfy the court that the said notice and the copy were in truth and infact physically delivered to the petitioner himself.
The new rule 15. brought in by the amendment of 1959, must nowbe examined. The new rule comprises three paragraphs. Paragraph
is further divided into two sub-paragraphs (a) and (b). Paragraph
(a), which requires service of notice of presentation of the petition,together with a copy of such petition, within a period of 10 days is averbatim reproduction of the first sentence of the earlier rule 15.Paragraph 1 (b) is an altogether new provision. It is an alternative to(1) (a) ; and, as an alternative to that’which is set out in (1) (a) itdirects the delivery of the said notice, along with the copy, at the officeof the Registrar for service on the respondent. All that 1 (b) requiresthe petitioner to do is to deliver the said documents at the office of theRegistrar who is directed to issue a receipt to the petitioner in respectof such documents. The object of so delivering the said documents isset out in sub-paragraph (b). It is ’for service on the respondent". Howsuch service is to be effected, and who should effect such service arenot spelt out in the said sub-paragraph. They are. however, providedfor, as will be set out later, in paragraph (3) of the said new rule 15.The period of 10 days provided for in paragraph {1) itself would applyto all acts which both sub-paragraphs (a) and (b) of the said paragraphrequire to be done Such acts are : service under (a) by the petitioner;delivery under (b) by the petitioner. Service, either by the petitioner orthe Registrar, of the documents delivered at the Registrar's office isnot an act provided for by sub-paragraph (b). Paragraphs (1) (a) and(b) require the petitioner to do one of two things : to effect the serviceof such documents by himself upon the respondent« or. to deliver
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such documents at the office of the Registrar for service on therespondent. Whichever course of action the petitioner chooses, it hasto be carried out by him within the space of ten days from the date ofthe presentation of the election petition.
Paragraph (2) sets out three methods which may be utilised by thepetitioner when he decides that he himself should effect the serviceupon the respondent. The three methods so specified are theself same methods as were set out in the original rule 15, subject,however, to one significant difference. Each one of the three methodsnow specified is an independent method, which is not madedependent upon any other factor, and can be utilised in the firstinstance. Service by publication in the Gazette is no longer madecontingent upon a failure on the part of the petitioner to dosomething – appoint an agent and or register an address – which therespondent could have done under rule 10
Paragraph (3) provides for the service of the notice and copy whichthe petitioner may, under paragraph 1 (b), leave at the office of theRegistrar. In regard to notices and copies to be so left at theRegistrar's office it has to be noted that : there was no such provisionat all in the original rule 15 : the receipt which is now required to beissued by the Registrar is one that has to be in a form approved by theChief Justice himself: these documents are now required to beserved, and are to be served in a manner which ensures that it will bedone according to law, by officers of court under the supervision ofcourt.
It has been contended : that the documents deposited with theRegistrar, in terms of sub-paragraph (b) of paragraph (1) of the saidnew rule 15, for service, must also be served within the period of 10days referred to in paragraph (1) of the said rule : that the intention ofthe Legislature was that such service, in the manner prescribed shouldalso be effected within the said period of ten days, by the Registrar.
It is a well known principle relating to the interpretation of statutesthat the question of the interpretation or construction of any statutoryprovision arises only where such provision admits of two meanings.Where the meaning of any such provision is plain and clear, then thereid no need to resort to interpretation , and there arises no occasion forthe application of principles relating to the interpretation of statutoryprovisions. Even if the need arises for the invocation of suchprinciples : the Golden Rule then is 'to. adhere to the ordinary meaningof the words iised and to the grammatical construction unless that is
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Nanayakkara v. Kirielta IRanasinghe, J.)
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at variance with the intention of the Legislature to be collected fromthe statute itself, or leads to any manifest absurdity or repugnance inwhich case the language may be varied or modified'as to avoid suchinconvenience but no further". The primary duty of a court of law is tofind the natural meaning of the words used in the context in which theyoccur, such context being taken to include any other phrases in theAct which may throw light on the sense in which the makers of the Actused the words in dispute. Where the language of an Act is clear andprecise, effect must be given to it whatever be the consequence, asthe words of the statute are taken to speak out the intention of theLegislature. Where the statutory provision which requiresinterpretation is an enactment which seeks to amend an existingstatutory provision, then it is also permissible to consider: the state ofthe law which it proposes or purports to alter: the mischief which isintended to be remedied : ihe nature of the remedy which is sought tobe provided – Craies : Statute Law (7th Ed) pp. 64, 66, 84-85, 87,88. In seeking to interpret a statutory provision on the basis of the“intention of the legislature" a court should be careful to gather suchintention from within the enactment itself; for, what the legislatureintended to be done or not to be done can only be legitimatelyascertained from what the legislature has chosen to enact either inexpress words or by reasonable and necessary implication – Craies(supra) p. 66. It is not right and proper to consider the provisions inneed of construction with any pre-conceived notions of what thelegislature intended to accomplish and then place such a constructionupon them as would, as far as possible, achieve such object.
It was, as has been stated by my brother Colin-Thome, J., commonground that the amending Afct No. 11 of 1959 was introduced as aresult of the judgment of the Supreme Court in the case of Cooray v.Fernando (supra) which had been decided six years earlier in February1953. In that case : the election petition was filed on 16.6.52 : On
the Petitioner applied to Court to have notice of thepresentation of the petition served on the respondent through theFiscal. the application was allowed : but the efforts made by theFiscal to serve such notice within the prescribed period of 10 dayswere not successful : On 20.6.52 the Petitioner also left with theRegistrar a copy of the notice of the presentation of the petition. On
the Petitioner also posted under two separate covers, byregistered post, two copies of the petition he had filed and two copiesof the notice of presentation of the petition ; but thes» letters were
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delivered to the respondent only on 30.6.52. which too was after theprescribed date :0n 24.6.52 the petitioner had a notice published inthe Ceylon Daily News giving notice to the respondent of thepresentation of the petition on 16.6.52 and that copies had been leftwith the Registrar: On 25.6.52 the petitioner handed over to theGovernment Printer a notice which, however, was published only on
after the lapse of the period of ten days. After the petitionhad been fixed for trial on 15.12.52, the respondent moved, on
that no further proceedings be had on the Election Petitionas no due and proper notice of the presentation of the petition hadbeen served on the respondent as required by law. After inquiry intothe said application, the Court held that the leaving of the notice, and acopy, with the Registrar on 20.6.52 was not sufficient as rule 10 doesnot apply to the service of notice of presentation of an electionpetition : that the petitioner has not served or caused to be served thenotice and copy by delivering them or having them delivered into thehands of the applicant within the prescribed time, the registeredletters not having reached the respondent within the specified time,and efforts made by the Fiscal having failed : that even the publicationwhich appeared in the Gazette only on 27,6.62 did not comply withthe requirements of rule 15, as what is material is not the date onwhich such notice is handed in for publication, but the actual date onwhich it is published. This decision highlighted the difficulties whichconfronted a petitioner in complying with rule 15 of the Third Scheduleof the 1946 Order-in-Council. If, therefore, the amending Act of 1959was, as is accepted by the parties, enacted in consequence of thedecision in Cooray's case (supra), then the mischief, which theamending Act was directed against and was sought to be remedied,would have been the rigours imposed upon a petitioner in the giving ofnotice, to a respondent, of the presentation of a petition. Thejudgment in Cooray's case (supra) also revealed that service of noticeeven by the Fiscal would not guarantee that such notices and copies,as were dealt with by the earlier rule 15, would actually reach thehands of a respondent within the space of ten days set out in suchrule.
The amending Act, by paragraph (2) of the new rule 15, made itpossible for a petitioner to resort to publication in the Gazette as amode of service in the first instance, independent of any failure on thepart of a respondent to do what he a respondent, could have done.Invoking the medium of the Registrar was provided for in
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sub-paragraph (b) of paragraph (1) read with paragraph (3) of the newrule 15. Such service through the Registrar is not included inparagraph (2) of the said new rule 15, in which said paragraph are setout the various methods, which may be resorted to by the petitioner ineffecting the service which he takes upon himself to effect and whichsaid service must, irrespective of the particular method chosen,always be effected within the said period of ten days. Instead it isregulated by a separate sub-paragraph, viz sub-paragraph {b) – whichprovides for a distinct and separate step which can be taken withoutresorting to that which is set out in sub-paragraph (a) – read withparagraph (3). This provision met the deficiency highlighted inCooray's case (supra) in regard to the non-availability of the mediumof the Registrar under the old rule 15. If the service through theRegistrar must also be done within the said period of 10 days and themedium of the Registrar is also just another method of effecting theservice the petitioner undertakes to do in terms of sub-paragraph (a) ofparagraph (1) of the new rule 15, then the simplest, the easiest andthe most practical way of stating so would have been to include it alsowithin paragraph (2).
The concept of service (of a document addressed to and meant forthe respondent) on the Registrar being sufficient compliance with arequirement of service on the respondent is one that was alreadyembodied in rule 10 referred to above. The notices contemplated inthe said rule 10 are notices connected with and relating to an electionpetition filed against a respondent. A compliance by a respondent withwha he has been authorised to do under this rule will ensure the safeand swift receipt by him of all such notices and other communicationsas come within the said rule and are meant for him.
Although the provisions of sub-paragraph'(a) of paragraph (1) of thenew rule 15 (and the opening sentence of the old rule 15) requirepersonal service on the respondent, yet, the provisions of paragraph
of the said new rule (and the latter part of the old rule 15) showthat methods of service, which do not guarantee the actual delivery ofthe said documents into the hands of the respondents within the saidperiod of ten days, are considered as satisfying the requirement ofpersonal service set out in the said sub-paragraph (a). Even thoughservice through the Registrar may not assure – as was made evidentby the decision in Cooray's case (supra), and, in construing Acts of thelegislature, a court ought to assume that the legislature knows theexisting state of the law (Craies : page 97) – that pejSbnal service
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could always be effected within the said period of ten days. yet. it isa channel which assures action by an extremely responsible person,who has to act not only in terms of an established procedure, but alsoundec the direct supervision of the court itself.
An analysis of the provisions of the new rule 15 enacted by theamending Act of 1959, in my opinion, shows : that they are both clearand straight forward, and admit of no ambiguity : that they give thepetitioner a choice in regard to the giving of the notice of thepresentation of the election petition, and a copy of such petition whichis to accompany such notice, viz : either to serve the said documentshimself upon the respondents, or to deliver such documents at theoffice of the Registrar for service upon the respondents : that thealternative mode available by paragraph (1) (b) is not just anothermethod by which the service, which the petitioner seeks to effect interms of paragraph (1) (a), could be effected : that several methodsby which the service directed in paragraph 1 (a) could be carried outare set out in paragraph (2)that paragraph (2) also makes a method,which was only contingent earlier, now directly available to thepetitioner: that paragraph 1 (b) constitutes a distinct and separatestep, as an alternative to that which is set out in paragraph (1) (a), inregard to what the petitioner should do within the said period of tendays in respect of the notice, and the copy, referred to in the body ofparagraph {1) itself: that the period of ten days, set out in the body ofthe said paragraph (1), does not apply to the service of the documentsdeposited with the Registrar under sub-paragraph (b) of paragraph(1) : that such documents should be served by the Registrar, inaccordance with the procedure set out in paragraph (3), asexpeditiously as possible.
The view I take of the provisions of the said new rule 15 does not, inmy opinion, detract from the view, which has been expressed, thatlimits relating to time, within which any act should be done, set out inthe said Order-in-Council of 1946 are mandatory. It is neitherrepugnant to. nor inconsistent with the view that an electorate mustknow without delay who its elected representative is. and thatproceedings in an election petition must be brought to a conclusion asexpeditiously as possible
For these reasons : the appeal of the petitioner-appellant should beallowed , the Order of the Election Judge, dated 22.10.84, upholdingthe preliminary objection based upon the said rule 15, should be set
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Nanayakkara v. Kmalla (Ranasinghe, J )
407
aside ; the Election Judge be directed to proceed with the hearing otthe Election Petition ; the petitioner-appellant be entitled to the costsof the Appeal to this Court, as against the intervenient-respondent.
TAMBIAH, J.
I have had the benefit of reading the draft judgments prepared byColin-Thome' J. and Ranasinghe, J. I am inclined to agree with the
view taken by Colin-Thome,J.
The question that arises in this appeal is whether or not the notice ofthe presentation of the petition has been given by thepetitioner-appellant to the 1 st, 3rd and 8th respondents as requiredby law.
It is necessary to reproduce Rule 15 of the Parliamentary ElectionPetition Rules. 1946
"Rule 15 (1) Notice of the presentation of a petition,accompanied by a copy thereof shall, within tendays of the presentation of the petition -'
be served by the petitioner on the respondent; or
be delivered at the office of the Registrar for serviceon the respondent; and the Registrar or the officerof his department to whom such notice and copy isdelivered shall, if required, give a receipt in suchform as may be approved by the Chief Justice.
The service under paragraph (1) of notice of thepresentation of a petition and a copy thereof by thepetitioner on the respondent may be effected either- by delivering such notice and copy to the agentappointed by the respondent under rule 10 or byposting them in a registered letter to the addressgiven under rule 10 at such time that, in theordinary course of post, the letter would bedelivered within the time above mentioned, or by anotice published in the Gazette stating that suchpetition has been presented and that a copy of itmay be obtained by the respondent on applicationat the office of the Registrar.
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Where notice of the presentation of a petition,accompanied by a copy thereof, is delivered underparagraph (1) at the office of the Registrar forservice on the respondent, such service may beeffected in the same manner as the service of anotice issued by a court is effected under the CivilProcedure Code."
The Election Petition was filed by the petitioner-appellant on 7.6.83challenging the election of the 1st respondent. On 10.6.83 the Agentfor th*e petitioner handed ovej to the Registrar, Court of Appeal,notices of the presentation of petition and copies-of the petition forservice on the respondents. The notices together with the Precept toFiscal were despatched by the Registrar to the Fiscal of the High Courtof Ratnapura for service on the 1st to the 4th and 6th to the 9threspondents. The Fiscal reported that the notices could not be servedon the 1 st respondent on 18.6.83 as he was not residing at the givenaddress and that he is now residing m Colombo, on the 3rdrespondent as he could not befound. and on the 8th respondent asthe inmates of the house informed him that he was not at the houseNotices were served on the 1st and 8th respondents on 18 7 83 Nonotice has been served on the 3rd respondent The only mode ofservice adopted by the petitioner is the one prescribed in Rule15(1) (b).
Whilst the petition was pending, the 1 st respondent died and theintervenient-respondent was substituted in his place Theintervement-respondent filed objections in limine and moved for therejection of the Election Petition. All objections were answered againsthim save and except one, namely, that the petitioner had failed tocomply with Rule 15 in that the notice of presentation of the ElectionPetition was not served on the 1st, 3rd and 8th respondents withinthe period specified in the Rule.
The learned Election Judge having heard arguments made order on22.10.84, and held that under Rule" 15(1) (b), service by theRegistrar of the notice of the presentation of the petition with a copythereof on the respondent has to be effected within the prescribedperiod of 10 days and this was a mandatory requirement. Thepetitioner has failed to comply with this mandatory requirement andthis is a fatal defect and he dismissed the petition.
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Nanayakkara v. Kiriella (Tambiah. J.)-
409
Mr. Shanmugalingam submitted that the words in Rule 15 are clearand capable of one interpretation only, viz., that the petitioner's onlyduty is to deliver to the Registrar for service the notice of thepresentation of the petition and a copy thereof within 10 days of thepresentation of the petition. The service thereafter is by the Registrarthrough the Fiscal over both of whom the petitioner has no control.The service by the Fiscal can be effected even after the expiry of 10days of the presentation of the petition. The other modes of serviceprescribed in Rule 15 are intended for the petitioner's use, whereservice is effected by the petitioner himself. Where service is effectedby. the petitioner, the service must be within 10 days of thepresentation of the petition.
Mr. Choksy submitted that Rule 15 (1) (b) was brought in by anamendment by Act No. 11 of 1959. The amending Act onlyintroduced an additional mode of service, but, all modes of servicewere subject to the time limit of 10 days. The legislature broughtparagraph (b) of sub-section (1) into Rule 15 and if its intention was toexempt the mode of service prescribed in Rule 15(1} (b) from thetime limit of 10 days, it would have expressly said so or drafted it as aseparate rule.
On a reading of the entirety of Rule 15, ex facie, both constructionsare possible.
Where two constructions are possible, in order to gather theintention of the legislature, it is permissible to look at the scheme ofthe Act and the Court must lean in favour of a construction which ismore consistent with the scheme of the Act and which harmoniseswith the other provisions o’f the Act. The factors which can be takeninto account in ascertaining the intention of the legislature are thehistory of the Act and the reasons which led to the passing of the Act{Bindra on Interpretation of Statutes. 6th Edn.. pp. 395. 459).
Rule 18 of the Election (State Council) Petition Rules. 1931,required notice of the presentation of a petition and a copy of thepetition to be served within 10 days of the presentation of the petitioneither on the respondent or his agent by personal- delivery or byregistered post to the address given under Rule 10, and if no agenthas been appointed or address given, by a notice published in theGovernment Gazette
Rule 18 was re-enacted in identical terms in the ParliamentaryElections Order-in-Council, 1946 (Rule 15).
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In Cooray v. Fernando (supra) the election petition was filed on16.6/52. On 20.6/52, the petitioner applied to Court to have thenotice of presentation of the petition served on the successfulcandidate through the Fiscal. This was allowed and on the same day,the Registrar forwarded the notice to the Deputy Fiscal, Kalutara, forservice. On 26.6/52 the Deputy Fiscal reported that attempts weremade to serve the notice on the 21st, 23rd and 25th June, but thesuccessful candidate could not be found.
On 20.6.1952 the petitioner also left with the Registrar a copy ofthe notice of the presentation of the petition. On the same day, he alsoposted by registered post copies of the notice and petition, but theywere delivered to the successful candidate on 30.6.1952, after theprescribed time of 10 days.
The petitioner also published in the Ceylon Daily News of24.6.1952 a notice informing the successful candidate that he hadfiled an Election Petition and that on 16.6.1952 he had left twocopies of the petition with the Registrar. Swan, J. held that the lawdoes not recognize such a publication and that it was only a waste ofmoney.
The petitioner also published a notice in the Government Gazettewhich appeared in the Gazette of 27.6.1952, which was beyond theperiod of 10 days.
Rule 10 provides for the successful candidate leaving with theRegistrar a writing appointing an agent to act for him or stating that heintends to act for himself, in case a petition is filed against him, and ineither case giving a Colombo City address at which notices addressedto him may be left. The Rule proceeds to state that "if no such writingbe left or address given, all notices and proceedings may be given'orserved by leaving the same at the office of the Registrar".
It was sought to argue for the petitioner that notice had been dulygiven or served by reason of the fact that the necessary documentswere left at the office of the Registrar in terms of Rule 10. Swan, J.observed :
“To my mind it is clear that Rule 10 was not meant to apply to,
and does not in fact apply to the service of notice of presentation of
the petition,"
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Nanayakkara v. Kitiella (Tambiah, J.)
411
Act No. 11 of 1959 amended Rule 15 and introduced an additionalmode of service which is contained in para (b) of sub-section 1 of Rule15. There can be no doubt that it is Cooray's case (supra) whichprompted the amendment. The petitioner there adopted severalmodes of service, authorised and unauthorised, all of which failed. Hethen sought to clutch at a straw. He relied on the fact that thedocuments were left with the Registrar and argued that this wasservice within time. Swan, J. held that this was not a recognized modeof service in law. The legislature, therefore, brought in delivery ofdocuments at the Registrar's office as an extra mode of service.Provision had to be made for effecting such service. The legislature,therefore, enacted Rule 15 (3) as well.
The legislature did not amend Rule 10 to read 'all notices may begiven by leaving the same at the office of the Registrar for service onthe respondent, and such service may be effected in the same manneras the service of a notice issued by a Court is effected under the CivilProcedure Code." Instead, the legislature brought this new mode ofservice into Rule 15. The words ‘within 10 days' govern bothparagraphs (a) and (b) of Rule 15 (1). All modes of service were thusbrought within the umbrella requirement of service within 10 days.
The mandatory requirement of service within 10 days stood for 28years. If, as contended for by learned attorney for the petitioner in1959 the legislature intended to exempt this new mode of servicefrom the time limit of 10 days, I should think, the legislature wouldhave expressly said so in Rule 15 or drafted it as a separate rule.
Election Petition proceedings are purely statutory proceedingsunknown to the common law and, therefore, considerations of equitywhich guide Courts in dealing with matters of civil rights and theirremedies will have no place in dealing with election petitions. Thestatutory requirements of election law must be strictly observed.
The Parliamentary Elections Order-in-Council, 1946, has provisionsrelating to presentation, trial and decision of an Election Petition. Onesignificant feature that runs through election petition proceedings isthe prescription of time limits. Thus, an Election Petition has to bepresented within 21 days of the date of publication of the result of theelection (s. 83(1)). The petition has to be amended within a specifiedtime (s. 83 (2)). Security has to be deposited within three days of thefiling of the petition (Rule 12(1)). An election petition shall be tried asexpeditiously as possible and every endeavour made to conclude thetrial within a period of six months after the date of filing of the petition.
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The decision of the Election Judge should be made without delay afterconclusion of trial (s. 80C (2)). An appeal from the determination ordecision of the Election Judge has to be preferred within one month ofthe determination or decision and notice of the filing of the petition ofappeal and a copy thereof have to be served within 10 days of thefiling of the appeal (s. 82A (2) & (3)). The appeal is to be given priorityover other business of the Supreme Court (s. 82A (5)). If thepetitioner claims the seat for an unsuccessful candidate, each sidemust, six days before the trial, deliver to the Registrar a list of votesintended to be objected to {Rule 7). In a recriminatory case, therespondent must, six days before the trial, deliver to the Registrar aiistof objections on which he intends to rely (Rule 8).
These various time limits have been prescribed to ensure an earlydisposal of the election petition. It is well settled that the election of acandidate who has won at an election should not be lightly interferedwith, It is in the interests of both the winning candidate and theelectorate that the petition questioning his return be disposed of early.
Rule 15 too prescribes a time limit for service of the notice of thepresentation of the petition. The object of this rule is clear – to bring thesuccessful candidate into contact with the election petition fifedagainst him at the earliest possible moment, so that, he too canprepare his defence and not delay an early disposal of the case filedagainst him. The Rule forms an integral part of the scheme of theElections Order-in-Council.
If, as contended by learned attorney for the petitioner, the mode ofservice prescribed in Rule 15 (1 Mb) is exempt from the time limit of10 days, this would not only frustrate the .very object of Rule 15, butalso upset the entire scheme of the Order-in-Council. The petitionercould deliver to the Registrar the necessary documents for service onthe 9th day after the presentation of the petition. The Court would thendespatch the documents to the Fiscal for service. If the Fiscal is unableto effect personal service, he has to report to Court his inability to doso. The Court, on being satisfied by evidence that the respondent iswithin Sn Lanka, will give directions for substituted notice. The serviceof notice may ultimately be effected well after a month from the dateof filing of the petition.
So, a construction to Rule 1 5 (1 Mb) has to be given which is moreconsistent with the scheme of the Order-in-Council and whichharmonises witb its other provisions.
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Nanayakkara v.- Ktrietta (Tambmh. J )
413
The learned Election Judge has quite rightly held that under para {b)of sub-section (1) of Rule 15. service by the Registrar of the notice ofthe presentation of the petition with a copy thereof, has to be effectedwithin the prescribed period of 10 days.
I affirm his decision and dismiss the appeal, but, make no order as tocosts.
Appeal dismissed.