fix with immediate effect the prices specified,
… above which mutton shall not be sold”
The other matters mentioned in P5 have no application to the presentcase.
Section 4 of the Control of Prices Act No. 29 of 1950 (Cap. 173) reads asfollows :—
“4. (1) If it appears to the Controller that there is, or is likely toarise, in any part of Ceylon, any shortage of any article or anyunreasonable increase in the price of any article, the Controller may byOrder—
(a) fix the maximum priceabove which that
article shall not be sold”
Food and Price Control Inspector Nagaratnam in cross-examinationstated as follows :—
“ I cannot say whether in 1959 there was a shortage of meat or thatthere was an unreasonable increase in the price of mutton.”
ALLES, J.—The Attorney-General v. Abdeen
The learned Magistrate in the course of a lengthy judgment, most ofwhich contains excerpts from authorities which were cited to him, at theconclusion of his order held that “ the price order which is filed of recordhas not stated that the conditions precedent under which the Controlleracted existed and as his order has been challenged and the prosecution hasnot been able to adduce any proof by evidence or otherwise that theseconditions in fact existed the order cannot be~enforced in law.” If theMagistrate had paused to consider the order more closely and examined theevidence a little more critically, he might have come to a differentconclusion. He appears to have been considerably influenced by thespate of authorities cited before him and in particular the judgment ofthe Supreme Court of India in Swadeshi Cotton Mills v. State IndustrialTribunal from which he has quoted in extenso in support of his findings.
In P5 there is a specific reference to section 4 of the Control of PricesAct which contains the conditions precedent for the making of an orderunder that section. It is therefore idle to suggest that the conditionsprecedent were not contained in the order. In Gunawardena v. KandyPolice2, where the appellant was detained on an order made by HisExcellency the Governor in pursuance of the powers vested in him byregulation 1(1) of the Defence Regulations, it was held that it was notessential to the validity of the order that it should set out the conditionsprecedent to the making of the order. In the course of the judgmentin that case reference was made to the decision in Gossett v. Howard3where it was held that—
“ In the case of special authorities given by statute to justices orothers acting out of the ordinary course of the common law, theinstruments by which they act, whether warrants to arrest, commit-ments, or orders, or convictions, or inquisitions, ought, according tothe course of decisions, to show their authority on the face of them, bydirect averment or reasonable intendment
Moseley, J held that the recital of the number of the regulation underwhich the order was made in that case amounted to a ‘ direct averment ’.With respect, I am in agreement with that observation of the learnedJudge. If such a contention is permissible in a case where the libertyof the subject is affected, a fortiori it should be sufficient in a casewhere there is reasonable cause to believe^that there will be a scarcity ofcontrolled commodities or an unreasonable increase in the price of suchcommodities. I am therefore fortified in my view that in a case of thiskind it should be sufficient if reference is made in the Order to the sectionof the Control of Prices Act under which the Controller acted. It isinconceivable that the accused-respondent in a case of this kind is likelyto be ignorant of the fact that he was contravening the provisions ofthe law in selling the article in excess of the controlled price or that he wasprejudiced when the Order referred to section 4 of the Control of Prices 1
1 A. I. B. {1961) Supreme Court 1381.* (194i) 45 N. L. B. 399 at 402.
• (1845) 10 Q. B. 411 at 452.
ALLES, J.—The Attorney-General v. Abdeen
Act instead of making reference to the conditions precedent contained .in section 4. To permit a technical point of law of this nature to succeedwould amount to a mockery of the legal process.
The Magistrate was also of the view that Nagaratnam’s uncontradictedevidence established that the defence had successfully challenged thePrice Order in question. Under section 4 it is the Controller who mustbe satisfied that the conditions stated therein exist. There is no evidencein this case that the Controller was not so satisfied before he made theorder. The passage quoted by the learned Magistrate from Nagaratnam’sevidence has no bearing on the question whether the Controller wassatisfied or not that the conditions precedent in section 4 existed. I donot think there is any duty cast on Food and Price Control Inspectorsto familiarise themselves with the scarcity of controlled articles thatmay have existed in the distant past, and one can appreciate Naga-ratnam’s ignorance of the conditions that prevailed in 1959. I amtherefore of the view that the learned Magistrate has misdirected himselfon the facts when he held that the accused-respondent had successfullychallenged the prosecution to prove the conditions precedent.
In the view I have taken of the facts of this case, I do not think it isnecessary for me to consider the authorities that have been cited beforethe learned Magistrate and referred to in the course of the hearing ofthis appeal. However, since considerable reliance has been placed bothby the learned Magistrate and Counsel for the accused-respondent onthe decision of the Supreme Court of India* in Swadeshi Cotton Mills v.State Industrial Tribunal (supra), I wish to make some reference to the *dicta laid down in that case. The order, the validity of which waschallenged, was one made under section 3 of the Industrial Disputes Act,1947, which enables the Government to make a, general or special order“ if. in the opinion of the State Government it is necessary or expedientso to do for securing the public safety or convenience, or the maintenanceof public order or supplies and services essential to the life of thecommunity or for maintaining employment ”. The orders in question didnot contain the above recital although reference was made to section 3and in the course of the hearing of the appeal thejCourt permitted affidavitsto be filed by the State Government to the effect that the conditionsprecedent had been satisfied. The Court held at p. 1387 that—
“ … .where certain conditions precedent have to be satisfied
before a subordinate authority can pass an order, it is not necessarythat the satisfaction of those conditions must be recited in the orderitself, unless the statute requires it, though …. it is most
desirable that it should be so, for in that case the presumption thatthe conditions were satisfied would immediately arise and burdenwould be thrown on the person challenging the fact of satisfaction toshow that what is recited is not correct. But even where the recitalis not there on the face of the order, the order will not become illegalah initio and only a further burden is thrown on the authority passingthe order to satisfy the court by other means that the conditionsprecedent were complied with.”
32-Volume LXDC
ALLES, J.—The Attorney-General v. Abdeen
With all respect to the learned Judge who delivered the order of theCourt, I am unable to agree that it was necessary to validate any defectin the Order by the filing of an affidavit, because the Order itselfcontained the section (section 3) under which the State Governmentacted and was therefore valid on the face of it. For the same reason Ihave held that, in this case, the reference to section 4 of the Price ControlAct indicated that the conditions precedent had been satisfied beforethe Price Control Order was promulgated. The ratio decidendi in theIndian case also has no application to the facts of the present case becauseI am of the view, on the evidence led, that the defence has not challengedthe order.
When the Controller of Prices made his order under section 4 of theControl of Prices Act, the presumption in regard to the regularity ofpublic acts would apply ; it must be taken prima facie to have beenproperly made and also that the personal belief of the Controller wassatisfied before he made the order; the well-known maxim of omniapraesumuntur rite esse acta would apply to such a case.
I therefore allow the appeal of the complainant-appellant and convictthe accused-respondent of the charge brought against him. Let therecord be remitted to the Magistrate for the purpose of imposing anappropriate sentence on the accused-respondent under section 8 (6) ofthe Control of Prices Act.
Acquittal set aside.