Kandiah v. Minister of Local Government
1966 Present: Sansoni, C.J., and Siva Supramaniam, J.
T.KANDIAH, Petitioner, and THE MINISTER OF LOCALGOVERNMENT, Respondent
5. C. 230/1966—Application for a Mandate in the nature of a Writof Certiorari on the Minister of Local Government
T. DURA1APPAH, Petitioner, and W. J. FERNANDO and
3 Others, Respondents.
S.C. 250/1963—Application for a Mandate in the nature of Writsof Certiorari and Quo Warranto and Injunction onIT. J. Fernando and others
Municipal Council—Power of Minister to dissolve Council for incompetency—Incapacity of any member of the Council to question Minister's decision—Certiorari—Natural justice—Municipal Councils Ordinance (Cap. 2b2),ss. 277 (1), 2S0.
Where the Minister, acting under section 277 (1) of the Municipal CouncilsOrdinance, directs that a Municipal Council shall be dissolved and supersededon the ground that it appears to him that the Council is not competent toperform the dutios imposed upon it, the decision cannot be questioned by wayof certiorari. In such a case, it cannot be contended that the Minister failed toobservo the rules of natural justice in that he did not hear the Mayor andmembers of the Council before making his Order.
Sugathadasa v. Jayasinghe (59 N. L. R. 457) followed.
Applications for writs of certiorari and quo warranto.
Thiagalingam, Q.C., with C. Chellappah, E. B. Vannitamby,
T.Parathalingam, M. S. M. Nazeem and C. Motilal Nehru, for thePetitioner in each Application.
W. Jayewardene, Q.C., with N. Nadarasa, S. S. Basnayake and BalaNadarajah, for the 1st to 3rd Respondents in Application No. 250/1966.
V. Tennekoon, Q.C., Solicitor-General, with R. S. Wanasundera and
G. de Silva, Crown Counsel, for the Respondent in ApplicationNo. 235/1966 and for the 4th Respondent in Application No. 250/1966.
Cur. adv. milt.
S—RB. 18059—1.014 (11/68)
SANSONT, C.J.—Kandiah v. Minister of Local Government
September 29, 1966. Sansoni, C.J.—
These two applications for Writs were“heard together, and we dismissedthem at the end of the argument. We n6w give our reasons.
Application No. 235, filed by a member of the Municipal Council ofJaffna, is for a Writ of Certiorari against the Minister of Local Govern-ment. Application No. 250 has been filed by a member of the sameCouncil, who was also functioning as Maj-or from 31st March 1966, forWrits of Certiorari and Quo Warranto. 1st, 2nd and 3rd Respondentsin this application are the three Special Commissioners appointed by theGovernor-General, and 4th Respondent is the Minister of Local Govern-ment. In both applications the Petitioners complain that the Minister’sOrder dated 29th May 1966 made under section 277 (1) of the MunicipalCouncils Ordinance, Cap. 252, is bad, and they ask that it be quashed.By that Order the Minister, stating that it appeared to him that theJaffna Municipal Council was not competent to perform the dutiesimposed upon it, directed that the said Council shall be dissolved andsuperseded.
The main ground on which the applications have been supported beforeus is that the Minister failed to observe the rules of natural justice in thathe did not hear the Mayor and members of the Council before making hisOrder. The other grounds urged were that the Minister acted mala fide,and that the affidavit filed by him discloses an error of law on the face ofit. It seems to me that if the main ground fails, both applications fail.
The chief obstacle in the way of the petitioners is, as those who draftedthe petitions obviously realized, the decision of three Judges of this Courtin Sugalhadasav. Jayasinghe1. That too wasan application for Certiorariand Quo Warranto, coupled with an application for Mandamus, filed inconsequence of an Order made by the Minister of Local Government undersection 277 (1) dissolving the Colombo Municipal Council. The Courtthere held (to quote from the head note) “that, although a summarydissolution of the Council necessarily affects the legal rights of its membersas a body and is independent of considerations of policy and expediency,Section 277 (1) of the Municipal Councils Ordinance does not impose anyduty on the Minister to act judicially or quasi-judicially before heexercises his power of summary dissolution. The Minister must be guidedonly by the merits of the case and is not obliged to give a hearing to theCouncillors and consider their objections if any. He is the sole judge asto whether the Council is not competent to perform its duties, provided,however, that there is no misconstruction of the words ‘ not competent ’and there are sufficient circumstances from which it is apparent to himthat the Counoil is not competent to perform the duties imposedupon it.”
l(1968) S9N.L.B. 467.
SANSONI, C.J.—Kandiah v. Minister of Local Government
Now Sugathadasa’s case, having been decided by three Judges, isbinding upon us. If we disagree with the conclusion reached there,our duty is to refer the present applications to a fuller Bench. But weagree with that decision in spite of the argument presented byMr. Thiagalingam.
The main plank of his argument was the House of Lords decision inRidge v. Baldwin1. He urged that if this authority had been in existenceat the time Sugathadasa’s case was heard, that case would have beendecided differently. I am quite unable to agree. Ridge v. Baldwin wasan action brought by a Chief Constable against the members of a WatchCommittee, asking for a declaration that the purported termination ofhis appointment as Chief Constable was illegal, ultra vires, and void. Heultimately obtained the declaration asked for, and the reasons given bythe House of Lords were—
that the plaintiff, not being a servant of the Watch Committee,
could be dismissed only on the grounds set out in section 191 (4)of the Municipal Corporations Act, 1882 which ran “ The
Watch Committeemay at any time
dismiss a Constable whom they think negligent in the dischargeof his duties, or otherwise unfit for the same; ” and theCommittee were bound to observe the principles of naturaljustice, which they had failed to do.
the requirements of the Police Discipline Regulations applied, and
as they had not been followed the purported dismissal was anullity.
In my view this decision has no relevance to the present applications.They have to be decided according to the meaning we give to section277 (1) of the Municipal Councils Ordinance, w hich is in entirely differentterms from section 191 (4) of the English Act. The disciplinary powers of aWatch Committee cannot be equated with the power given to the Ministerof Local Government. The subject matter of the Act considered inRidge v. Bald-ioin is totally different from the Municipal CouncilsOrdinance.
The second reason set out above for the decision in Ridge v. Baldwinwould apply to a case under section 280 of the Municipal CouncilsOrdinance, but not, in my view, to one under section 277 (1). For section280 provides (while section 277 (1) does not) for the giving of notice andthe holding of an inquiry.
The first reason stems from the view that the Watch Committee actsjudicially or quasi-judicially when the dismissal of a Constable from hisoffice, which is a punishment, is decided upon. It does not by anymeans follow that a Minister acts in the same way when he considerswhether a Council should be dissolved. And unless, as Atkin L.J. saidin his oft-quoted dictum in R.v. Electricity Commissioners2, he has to act
* [1964) A.O. 40.*(1924) 1 E. B. 171 at 205.
SANSONI, C.J.—Kcindiah v. Minister oj Local Government
judicially, Certiorari does not lie to question his Order. The principlelaid down by Atkin L.J. has been approved and applied by the PrivyCouncil in Nakkuda Ali v. Jayaratne1, and we cannot possibly disregard it,even though Lord Reid did not quite approve of the interpretation putupon it in that and other cases. Apart from Lord Reid, none of theother noble and learned Lords expressed any opinion on that point.
We are unquestionably bound by the decisions of the Privy Council,and in Nakkuda Ali’s case it was definitely decided that Certiorari liesonly in cases where tribunals or bodies have to act analogously to a Judge.“ In truth the only relevant criterion by English Law is not the generalstatus of the person or body of persons by whom the impugned decision ismade but the nature of the process by which he or they are empoweredto arrive at their decision. When it is a judicial process or a processanalogous to the judicial, certiorari can be granted, ” said Lord Radcliffein that case. Nothing in Ridge v. Baldwin or any other decision hasaffected the correctness of the rule laid down in this passage.
A difficulty arises sometimes because, as Lord Somervell said in Vine v.National Dock Labour Board2, the “phrase ‘ quasi-judicial ’ suggeststhat there is a well-marked category of activities to which certain judicialrequirements attach. An examination of the cases shows that this is notso. ” Thus each case has to be considered as it arises, and the answerdepends on the wording of the statute, the subject matter dealt with, andthe circumstances under which the power to act is conferred. Ourtask is made easy in this respect by the judgment in Sugathadasa’scase, and it is not necessary to go over the same ground again.
Mr. Thiagalingam suggested at the opening stages of his argument thatthe Minister had acted mala fide because the Federal Party were in aminority in this Council. I do not see any grounds for such an allegation,which was not seriously pressed.
He also argued that the Minister made an error of law, disclosed on theface of his affidavit, when he said that he made the order of dissolutionupon the material placed before him by the Commissioner of LocalGovernment. It was argued that the report of the Commissioner didnot disclose that the Council had acted in any way contrary to the terms ofthe Municipal Councils Ordinance. It is necessary to point out that weare not acting as an appellate authority examining the correctness of theMinister’s determination. The power of making that determination hasbeen given exclusively to the Minister by Parliament. Even if we wereto take a different view as to the correctness of it after hearingMr. Thiagalingam’s submissions, it would not be open to us to reverse it;nor could we say that, because we disagreed with that determination,the Minister has made an error of law.
H1950) 51 N.L.R. 457.
*(1957) A. C.488.
Hendrick Aj>puhamy v. John Appuhamy29
The Commissioner in his report alleged that in some matters the Councilhad virtually abdicated its powers and duties in favour of the Mayor, andthat there had been irresponsible decisions on the part of the Council,such as the suppression or creation of posts on grounds which could not besupported. It is quite impossible for us to say in these circumstancesthat the Minister’s Order, based on his opinion that the Council was notcompetent, contained an error of law. But even this question wouldonly arise for consideration if Certiorari was the appropriate remedy.I am of the view that it is not, and Sugathadasa's case is sufficient andbinding authority for that view.
It appears to me that if it had not been for Lord Reid’s judgment inRidge v. Baldwin, there would have been nothing for the petitioners tourge in these applications. Even that judgment does not, in my view,shake the correctness of the judgment in Svgathadasa's case. For thesereasons the applications fail and must be dismissed with costs.
Siva Supramaniam, J.—I agree.
T. KANDIAH, Petitioner, and THE MINISTER OF LOCAL GOVERNMENT, Respondent