NAGAUN'&AM A.C.J.—Bctsnaydke v. Oundsekera
1952Present : Nagalingam A.C.J.D. A. BASNAYAKE, Petitioner, and D. L. GTJNASEKERA,Respondent
S. C. 632—Application for a Writ of Prohibition
Writ of Prohibition—Lies only in respect of a judicial act.
In an application for a writ of prohibition it is essential that the act whichis sought to be prohibited should be a judicial act, even though it he that of aquasi-judicial body.
Where a writ of prohibition was applied for against the Chairman of a VillageCommittee for the purpose of prohibiting him from collecting certain taximposed on landed property by virtue of a resolution which was alleged to havebeen passed illegally by the Village Committee—
Held, that even if it eould be argued that the Village Committee was actingas a judicial or quasi-judicial tribunal in imposing the tax, there could be nodoubt that no judicial character could be attributed to the action taken by therespondent to recover the tax imposed by the Village Committee. The respon-dent, being an executive officer, was performing only an executive or adminis-trative act. In the circumstances, the respondent’s act did not provide scopefor the grant of a writ of prohibition.
J^k.PPUCATION for a writ of prohibition.
C. V. Banawake, with A. Nagendra, for the petitioner.
H. W. Jayewardene, with D. B. P. Goonetilleke, for the respondent.
Cur. adv. vult.
April 24, 1952. Nagauqstgam A.C.J.—
A writ of prohibition directed to the respondent, who is the Chairmanof the Village Committee of Wattala, is applied for in these proceedingsby the petitioner who describes himself as an inhabitant and voter ofthe village area of Wattala, which is within the administrative limits ofthe Wattala Village Committee, for the purpose of prohibiting and res-training the respondent from collecting certain tax imposed on landedproperty by virtue of a resolution passed by the said Village Committee.
The respondent takes a preliminary objection to the application on theground that it is misconceived in law and that on the facts averred bythe petitioner a writ of Prohibition does not lie.
The ground upon which the petitioner makes his application for thewrit is that the resolution passed by the Village Committee levying thetax had not been passed after the preliminaries in that behalf requiredunder the law had been observed and that the tax levied is thereforeillegal. The petitioner further alleges that the resolution imposingthe tax was subsequently rescinded by another resolution and that asthere were a large number of tax-payers who had not paid taxes for theperiod during which the tax was in operation, by a further resolutionthe Village Committee resolved that the collection of so much of thetaxes as were then in arrear should be discontinued, the Village Committeethereby fully recognising not merely the iniquitous nature of the tax
NAOAUHGAH A.C.T.—Basnayake v. Gunasekera
levied but also the irregularity and illegality attendant upon the im-position. The petitioner also makes the further complaint that the res-pondent, notwithstanding these subsequent resolutions of the VillageCommittee, is taking steps to collect the arrears, and if need be, by seizureand sale of the property of the defaulting tax-payers.
The objection raised by the respondent has perforce to be determinedon the basis that the facts set out and declared by the petitioner in hispetition and affidavit are true in substance and in fact. X propose todeal with the objection on this basis, but before I do so, I think it properto place on record that while the respondent has denied the illegalityof the tax imposed he has also in his counter-affidavit explained thereason why it was that notwithstanding the resolution passed by theVillage Committee rescinding the imposition of the tax and discontinuingthe further collection of arrears he is debarred from giving effect to theresolution and staying his hands from recovery of the taxes. Underthe Village Communities Ordinance, before resolutions such as thesecould become effective, they have to be approved by the appropriateMinister ; and while there was ministerial approval for the impositionof the tax, there was none for the rescission thereof—the Minister in factrefused to approve the rescission—by reason whereof the resolutions ofrescission and discontinuance of the tax became ineffective and incapableof being given effect, to. The respondent says that he, being merelyan executive officer, though no doubt the chief executive officer, wasdoing no more than give effect to and carry out the only effective re-solution of the Council in taking steps to recover the arrears of tax inaccordance with law by distraining in proper cases the goods and chattelsof the defaulting tax-payers. In view of what I have already stated,it would follow that it is unnecessary to determine whether the state-ments of the respondent are supported by proof.
X shall now proceed to a consideration of the objection raised on behalfof the respondent. It would be noticed at once that the petitioner’scomplaint, insofar as it affects the respondent and has a bearing on thequestion before me, consists in the statement that the respondent wastaking steps to collect the tax either by getting his officers to makedemand or by distraining of goods. The resolution imposing the taxas well as those dealing with the rescission and discontinuance of itare obviously not, and cannot possibly be stated to be, any act of therespondent himself. They are by their very nature acts of a body ofpersons, and, in this instance, are the acts of the Village Committee,though no doubt the respondent himself was the Chairman of that-Committee at the dates the resolutions were passed.
It is perfectly clear that whatever arguments may be advanced andcontentions put forward in regard to the question whether the VillageCommittee was acting as a judicial or quasi-judicial tribunal in imposingthe tax, there cannot be the slightest doubt that to the respondent cannotbe attributed any judicial character in regard to the action taken by himto recover the tax imposed not by him but by the Village Committee.TTis act in enforcing the levying and collecting of the tax can in no sensebe regarded as a judicial act. In fact he merely carries out certainstatutory functions placed upon him by the Rules framed under the Village
Pannananda Thero v. Piyaratna Thera.
Cb mm unities Ordinance (vide Rule 20 of Part Vll of the Rules). His vested with no powers to decide whether the tax should be levied ornot. Nor is he under any duty to adjudicate upon any such question ;he cannot hear parties and arrive at a decision with regard to the legalityor propriety or otherwise of the tax imposed; he cannot admit repre-sentations to him on this question; there can be no proposition oropposition before him on the .correctness of which he can pronounce anopinion. In short, his act is very far removed from a judicial act, andmeasures up fully to an executive or administrative act.“
A Writ of Prohibition is described by Short and Mellor in Practice ofthe Crown Office1 as “ a judicial writ issuing out of a Court of superiorjurisdiction and directed to an inferior Court for the purpose of prohi-biting the inferior Court from usurping a jurisdiction with which it wasnot legally vested or, in other words, to compel Courts entrusted withjudicial duties to keep within the limits of their jurisdiction ”. Thewrit has been extended in its application even to quasi-judicial bodies,but it is essential that the act to be prohibited must be a judicial act;,even though it be that of a quasi-judicial body. In other words, whilean improper or illegal administrative or executive act of a quasi-judicialbody may not be reached by a Writ of Prohibition, a judicial act of sucha body, the illegality or impropriety of which is established, can alwaysbe prevented by means of this writ.
I think I have said sufficient to shew that the act sought to be prohibitedand restrained by the petitioner cannot in any sense be deemed to be ajudicial act and cannot therefore provide scope for the grant of a writof prohibition. In this view of the matter, it is unnecessary to decidewhether the action of the Village Committee in imposing the tax canform the subject of a writ of prohibition, a question that was debatedat the argument.
In view of the foregoing, the application cannot succeed and is thereforedismissed with costs.
Application dismissed. ■
D. A. BASNAYAKE, Petitioner , and D. L. GUNASEKERA , Respondent
NAGAUN'&AM A.C.J.—Bctsnaydke v. Oundsekera