101-NLR-NLR-V-69-P.-H.-SOMADASA-and-another-Appellants-and-M.-D.-SADDHASENA-Respondent.pdf
TAMBIAH, J.—Somadasa v. Saddhasena
469
1967 Present: H. N. G. Fernando, C.J., Tambiah, J., andSiva Supramaniam, J.P.H. SOMADASA and another, Appellants, and M. D. SADDHASENA,
Respondent
Election Petition Appeal No. 15 of 1966—Ambalangoda
Election petition—Illegal practice—False declaration as to election expenses—“ Election expenses ”—Ceylon (Parliamentary Elections) Order in Council,1946, ss. 59 (4), 62, 66, 68B, 70.
Expenses incurred by an agent other than an election agent need notbe set out in the return sent to the returning officer in conformity with tHerequirements of section 70 of the Ceylon (Parliamentary Elections) Orderin Council. Expenses incurred on their own responsibility by persons whoheld public meetings in support of the candidate cannot come under theprovisions of section 70 (1) (e) ; such persons, even if they are held to beagents for the purpose of election law, are not “ election agents
Election Petition Appeal No. 15 of 1966—Ambalangoda.
E. R. S. R. Coomaraswamy, with K. Shanmugalingam andS. S. Sahabandu, for the petitioners-appeUants.
C. Ranganathan, Q.C., with W. D. Gunaselcera and R. C. de Silva,for the respondent.
Cur. adv. vult.
April 19, 1967. Tambiah, J.—
The petitioners seek to have this election set aside on the ground thatthe respondent was guilty of an illegal practice within the meaning ofsection 68 B of the Ceylon (Parliamentary Elections) Order in Council of1946, in that the respondent, being a candidate and his own electionagent, knowingly and falsely made a declaration of the election expenses.
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TAMBIAH, J.—Somadasa v. Saddhasena
At the trial the petitioners led evidence for the purpose of showingthat certain persons who were supporters of the United National Partyheld public meetings in support of the respondent. The petitioners’case is that these persons were agents of the respondent and the expensesincurred by them should have been included in the returns sent underthe provisions of section 70 of the Ceylon (Parliamentary Elections)Order in Council, 1946 (which shall hereinafter be referred to as theOrder in Council). The learned Election Judge has held that thesemeetings relied on by the petitioners were not meetings that were heldin respect of the “ management and conduct of the respondent’s election ”but were held by persons who were espousing the respondent’s causeon their own and therefore the expenses incurred by them do not comewithin the purview of the term “ election expenses ” within the meaningof section 70 of the Order in Council. The learned Election Judge hasalso held that the persons who held these meetings and incurred theexpenses were not agents of the respondent and the return sent by therespondent is not false to the knowledge of the respondent. Counsel forthe petitioners contended in appeal that the learned Election Judge hasmisdirected himself on questions of fact and held that the agency ofthese persons who held the meetings was not proved. It is unnecessaryfor us to decide the matters raised by Counsel for the appellant since thisappeal should be dismissed on another ground.
The petitioner’s case is that persons who belonged to the UnitedNational Party, in holding meetings, acted as agents of the respondentand incurred expenses which have not been included in the returns sentby the respondent. If the distinction between an “ election agent ” andan agent for whose acts of bribery and corruption the seat of the successfulcandidate could be rendered vacant is appreciated, then it becomesclear on a perusal of the provisions of the Order in Council that expensesincurred by an agent other than an election agent, or the candidate,need not be set out in the return sent by the candidate as election expensesas required by section 70 of the Order in Council.
Under the Order in Council only one election agent can be appointedfor each candidate (vide section 59 (4) ). But the election law recognisedother persons as agents who take part in the conduct and managementof the election with the consent and acquiescence of the candidate.Subject to certain exceptions contained in the Order in Council, nomonies can be paid and no expenses can be incurred by an election agentor the candidate in the conduct of the elections in excess of Rs. 7,500 oran amount equal to thirty cents per elector in the electoral district,whichever amount shall be the larger. (Vide section 66 of the Order inCouncil.)
Section 62 of the Order in Council enacts that, except as permittedby or in pursuance of this Order, no payment and no advance or depositshall be made by a candidate at an election, or by an agent on behalf ofthe candidate, or by any other person at any time, whether before,during or after such election, in respect of any expenses incurred on
TAMBIAH, J.—Somadasa v. Saddhaatna
471
account of or in respect of the conduct or management of such electionotherwise than by or through the election agent of the candidate. It alsoprovides that any person who makes payment in contravention of thissection is guilty of an illegal practice.
In this case the respondent is his own election agent and if it wassought to prove that the respondent has spent monies through agentsother than the election agent, charges should have been laid againstsuch persons for committing an illegal practice under section 62 of theOrder in Council.
A perusal of section 70 (1) of the Order in Council shows that the returnand declaration in respect of election expenses which should be sentunder section 70 of the Order in Council are only confined to the itemsreferred to in that section. Section 70 (1) enacts as follows :
“ 70 (1) Within thirty-one days after the date of publication of theresults of an election in the Government Gazette the election agent ofevery candidate at that election shall transmit to the returning officera true return, in this Order referred to as the “ return respectingelection expenses ” substantially in the form P in the First Schedule tothis Order, containing detailed statements as respects that candidateof:—
(а)all payments made by the election agent together with all the
bills and receipts referred to in subsection (1) of section 63,'which bills and receipts are in this Order included in theexpression “ return respecting election expenses ” and thedates of payment-of all sums for which no receipt is attached ;
(б)the amount of personal expenses, if any, paid by the candidate ;
the disputed claims so far as the election agent is aware ;
all unpaid claims, if any, of which the election agent is aware in
respect of which application has been made or is about to bemade to an election judge or judge of the Supreme Court;
all money, securities and other valuable considerations received
by or promised to the election agent from or by any candidateor any other person for the purpose of expenses incurred orto be incurred on account or in respect of the management ofthe election, naming every person from whom the sum mayhave been received or by whom such sum may have beenpromised, showing as to each sum whether it was received ascontribution, loam, deposit or otherwise.
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TAMBIAH, J.—Somadasa v. Saddhaaena
(2) The return respecting election expenses shall be signed by theelection agent and shall be accompanied by declarations by the candi-date and his election agent which shall be respectively in the forms Qand R in the First Schedule to this Order and shall be on oath beforea Justice of the Peace. ”
Even conceding for purposes of argument that the persons referred toby the petitioners spent monies and incurred expenses in holding meetingsin support of the respondent and they were the agents of the respondent,still the expenses incurred by them do not come within the purview ofsection 70 of the Order in Council in respect of which it is obligatory onthe part of the respondent to send a return.
Counsel for the petitioners was unable to satisfy us that monies spent byagents other than the election agent in the conduct and management ofthe election are caught up under any of the items of the provisions insection 70 of the Order in Council. Mr. Coomaraswamy sought to bringin the items of expenses he was relying on under the heading “ valuableconsideration received by, or promised to an election agent ” in section70 (e) of the Order in Council.
Section 70 (1) (e) only refers to money, securities and other valuableconsiderations received by or promised to the election agent from orby any candidate or any other person for the purposes of expenses incurredon account or in respect of the management of the election. Applyingthe ejusdem generis rule the term “ valuable consideration ” must begiven the meaning it has under the English law. Expenses incurred ontheir own responsibility by persons who hold public meetings in supportof a candidate cannot come under the provisions of section 70 (1) (e) ofthe Order in Council. Even if they come within the scope of section 70of the Order in Council, such expenses were not “ received by or promisedto an election agent ”. If it was the intention of the legislature to catchup such expenses then the legislature might have included it underanother clause after section 70 (1) (e) of the Order in Council.
The declaration which should be signed by the candidate should be inform Q and the one to be signed by the election agent is in form R. Inthese declarations the election agent, as well as the candidate, afterswearing or affirming f ~ the truth of the return of the election expenses,should also swear or affirm that no other expenses of any nature what-soever have to his knowledge or belief been incurred in or for the purposeof his candidature. Counsel for the petitioners urged that the Formsform part of the statute. As the forms are referred to in section 70 ofthe Order in Council it is obligatory to follow these forms and they form
Visalatchi v. Chettiar
473
part of the statute. If the contention of the Counsel for the petitionersthat all other expenses other than those caught up by section 70 (1) (e)should also be included in the return is correct, then the penultimatepart of the declaration referring to other expenses incurred should bedeleted by the persons sending a declaration. But this declaration is aperemptory requirement of the statute. Mr. Coomaraswamy venturedto submit that the penultimate clause in these declarations should bedeleted. The course.feuggested by Mr. Coomaraswamy militates againsthis contention that the forms are part of the statute. This courtcannot construe the provisions of a statute by omitting or adding portionsof it, usurping the functions of the legislature.
I am of the view that in the circumstances of this case there was noobligation on the part of the respondent, who was his own election agent,to include the expenses of persons who held meetings on their own inhis support (even if it is held that they are agents for the purpose ofelection law and expenses were incurred in the “ conduct and managementof the election ”), since such persons are not his “ election agents ”within the meaning of the Ceylon (Parliamentary Elections) Order inCouncil, 1946.
For these reasons I dismissed this appeal with costs on the 19th ofMarch 1967.
H. N. G. Fernando, C.J.—I agree.
Siva Supramaniam, J.—I agree.
Appeal dismissed.