James v. Board of Review
The Board of Review (Paddy Lands)and another
COURT OF APPEAL
wimalaratne, p. and tambiah, j.c.a. (s.c.) 172/74.may 18, 1979.
Interpretation (Amendment) Act No. 18 of 1972, section 22—Preliminary objection taken thereunder—No certiorari clause in PaddyLands Act—Effect of such clause read with bar created by section 22—Paddy Lands Act, section 59 (3)—Whether writ of certiorari lies.
The petitioner filed the present application to quash by way ofcertiorari a decision of the Board of Review constituted under the PaddyLands Act No. 1 of 1958 as amended by Act No. 61 of 1961, on theground that the reasons given by the Board were manifestlyerroneous. The finding of the Board of Review was that the petitionerwas not the ande cultivator of a certain paddy land and in coming tothis finding the Board reversed the findings made by the AssistantCommissioner of Agrarian Services in favour of the petitioner. Apreliminary objection was taken on behalf of the 6th respondent thatthe petitioner’s application was barred by section 22 of the Interpre-tation (Amendment) Act No. 18 of 1972 read with section 59 (3) ofthe Paddy Lands Act.
Section 59 (3) of the Paddy Lands Act provided that a decision of the
Board in appeal “ shallbe final and conclusive and shall not
be called in question in any Court ”. Section 22 of the Interpretation(Amendment) Act provided that where such word's appeared in anyenactment no Court shall have jurisdiction to pronounce upon thevalidity or legality of such order. The proviso to the section1 containeda saving clause to the effect that the Supreme Court could exerciseits powers to issue writs where such order was ex facie not within
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the power conferred on. such authority or Tribunal, or where the rulesof natural justice had not been complied with or where there hadbeen no conformity with any mandatory provision of law which wasa condition precedent to the making of such order.
The provisions of section 22 of the Interpretation (Amendment) Actread with section 59 (3) of the Paddy Lands Act bar the petitioner'sapplication for a writ of certiorari and the preliminary objec-tion must accordingly be upheld. The section bars any kind of challengeto an order which comes within section 22 on grounds other than thosespecified in the proviso.
Cases referred to
R. v. Electricity Commissioners, ex parte London Electricity JointCommittee, (1924) 1 K.B. 171; 130 L.T. 164; 93 L.J.K.B. 390
Smith v. East Elloe Rural District Council, (1956) A.C. 736;(1956) 1 All E.R. S55 ; (1956) 2 W.L.R. 888
Anisminic Ltd. v. Foreign Compensation Commission ’ (1969)
2 A.C. 147; (1969) 1 All E.R. 208; (1969) 2 W.L.R. 163
APPLICATION for a Writ of Certiorari.
Nimal Senanayake, for the petitioner.
H. L. de Silva, for the 6th respondent.
Priyantha Perera, Deputy Solicitor General, as amicus curiae.
Cur. adv. vult.
June 15, 1979WIMALARATNE, P.
The scope of section 22 of the Interpretation (Amendment) Act,No. 18 of 1972, arises for consideration in this application.
The petitioner complained to the Assistant Commissioner ofAgrarian Services, Kegalle, that he was the tenant cultivator ofa paddy land called Pahalagedera Kumbura, and that he wasevicted on 21.4.68 by Babanis, the 6th respondent. The AssistantCommissioner held an inquiry under section 4 (1A) (a) of thePaddy Lands Act, No. 1 of 1958, as amended by Act No. 61 of1961, for the purpose of deciding the question whether or not thejsetitioner had been evicted. He decided that the petitioner wasthe ancle cultivator, and determined under section 4 (1A) (b)of the Act that the petitioner was evicted during the Yala cropof 1968.
The 6th respondent appealed to the Board of Review ,set upunder the Act. The Board of Review, after inquiry, held thatthe petitioner was not the ande cultivator, and set aside theorder of the Assistant Commissioner. In its order dated 6.10.73the Board gave the following reasons for its decision : —
that there had been a delaj/ till 10.6.72 to complain about
the eviction; and
that the petitioner had not presented himself to get his
name included as a tenant cultivator at the revisionof the paddy lands register.
James v. Board of Review (Wimalaratne, P.)
The present application is to quash this decision of the Boardof Review on the ground that the reasons given by the Boardare manifestly erroneous.
Objection has been taken by learned Counsel for the 6threspondent that section 22 of the Interpretation (Amendment)Act, read with section 59 (3) of the Paddy Lands Act, is a barto the present application.
Section 22 of the Interpretation (Amendment) Act readsthus:—
“ 22. Where there appears in any enactment, whetherpassed or made before or'after the commencement of thisOrdinance, the expression “ shall not be called in questionin any court”, or any other expression of similar importwhether or not accompanied by the words “ whether by wayof writ or otherwise ” in relation to any order, decision,determination, direction or finding which any person, autho-rity or tribunal is empowered to make or issue under suchenactment, no court, shall, in any proceedings and upon anyground whatsoever, have jurisdiction to pronounce upon thevalidity or legality of such order, decision, determination,direction or finding, made or issued in the exercise or theapparent exercise of the power conferred on such person,authority or tribunal.
Provided, however, that the preceding provisions of this■section shall not apply to the Supreme Court in the exerciseof its powers under section 42 of the Courts Ordinance, in res-pect of the following matters, and the following mattersonly, that is to say—
where such order, decision, determination, direction,
or finding is ex facie not within the power con-ferred on such person, authority or tribunal mak-ing or issuing such order, decision, determination,direction or finding; and
where such person, authority or tribunal upon whom
the power to make or issue such order, decision,determination, direction or finding is conferredis bound to conform to the rules of natural justice,or where the compliance with any mandatory pro-visions of any law is a condition precedent to themaking or issuing of any such order, decision,determination, direction or finding, and the Sup-reme Court is satisfied that there has been no
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conformity with such rules of natural justice orno compliance with such mandatory provisions ofsuch law:
Provided further that the preceding provisionsof this section shall not apply to the SupremeCourt in the exercise of its powers under section45 of the Courts Ordinance to issue mandates inthe nature of writs of habeas corpus.”
Section 59 (3) of the Paddy Lands Act is as follows : —
“ 59 (3) The Board of Review may, on any appeal madeunder this Act to such Board, confirm or vary the determi-nation or decision from which such appeal is made, and thedecision of such Board on such appeal shall, except other-wise provided in this Act, be final and conclusive and shallnot be called in question in any Court
It has been contended by Counsel for the respondent that thecombined effect of these two provisions is to limit the jurisdic-tion of this Court in issuing the writ of certiorari to quash thedecision of the Paddy Lands Board of Review. The writ willissue if, and only if,—
the order of the Board is ex facie not within the power
conferred on the Board, or
the Board has not complied with the rules of natural
justice or with a mandatory provision of law whichis a condition precedent to the making of an order.
Section 22 was included in the statute book in order to removethe jurisdiction to quash or declare invalid orders of statutoryauthorities on other grounds such as mala fides, error of law,failures to take into consideration relevant matters or takinginto consideration irrelevant matters, use of power for improperpurposes, and ultra vires, although ex facie the order is onewithin the powers of the authority. Counsel’s submission is thatunless this meaning is given to section 22 the law would be verymuch the same as before the amendment; so that the obviousintention of the legislature was to remove the grounds of certio-rari, other than those within the proviso.
The principal contention of Counsel for the petitioner hasbeen that the main part of section 22 deals with decisions whicha tribunal is empowered to make under the statute. There arecertain things that statutory authorities are empowered to do,and certain other things they are not empowered to do. Forexample, a tribunal having to act in a judicial way is not em-
James v. Board of Review (Wimalaratne, P.)
powered to say that it will disregard all the evidence led byboth parties and act on its own knowledge of the facts of thecase. Counsel conceded that the amendment has restricted inter-ference by the Courts and has considerably narrowed the scopeof certiorari, but posed the question, “ what of the large numberof cases where the order is one which the tribunal is not em-powered to make ? ” No statutory body is empowered to make anorder which is blatantly in contravention of statute law. Whileearlier notions of ‘ error of law on the face of the record ’, failureto take into consideration relevant matters etc. are no longerof avail, disregard of what the legislature itself has enactedshould be taken into account, is a completely different matter.In such instances the order is one which the tribunal is not em-powered to make either because of an error of laW or an error ofprocedure which the tribunal is required to follow…■ '
It has to be remembered that the limitation imposed bysection 22 applies only to bodies and tribunals established bystatutes which expressly provided that the orders made by them“shall not be called in question in any court”. The legislaturewhich passed this amendment had considered it desirable thatfinality should be given to decisions of certain persons authoritiesand tribunals, and that they should be subject to’judicial reviewonly within certain specified limits. That is why the main partof the section uses the expression “ upon any ground whatsoever ”except in proceedings and upon grounds set out in the proviso.The rigorous limitations to the ambit of review is also empha-sized, by the use of the words “ in respect of the following mattersand.following'matters.pnlt/ ”.
The practice of inserting “ no certiorari'” clauses in statutes,although it has been discontinued in England, is still followedin some Commonwealth Countries. In Canada “no certiorari”clauses have received rough treatment by the Courts; but inAustralia the High Court has given an effective field of operationto strong privative clauses—See, S. A. de Smithy-Judicial Reviewof Administratwe Action (3rd Edition), pages 323, 324.
In discussing the scope of Certiorari and Prohibition, Atkin, J.said, “ wherever any body of persons having legal authority todetermine the rights of subjects, and having the duty to actjudicially, act in excess of their legal authority, they are sub-ject to the. controlling jurisdiction of the King’s Bench Divisionexercised in. those .writs The King v. Electricity Commission-ers, ex, parte London MectHdty Joint Committee (1). The1answer to Mr. Senanayake’s submissions and the interpre-tation he places on the words “empowered to make” is, I think
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found in this statement of the law. “ Empowered to make ” couldbe equated to “ having legal authority to determine Thewords “ empowered to make ”, in section 22 have, in my view,been used to designate the nature of the person, authority ortribunal whose orders are the subject of legislation. These wordsfocus attention on the character of the deciding body. The bodymust be vested with legal authority to decide. If it is so vestedwith authority, an order, even if erroneous in fact or in law isyet capable of legal consequences, because, in the words of LordRadcliffe, “ it bears no brand of invalidity upon its foreheadSmith v. East Elloe Rural District Council (2), at 769.
The answer to the question “has the tribunal the power tomake the order it has made ? ” has to be gathered by looking atthe terms of the empowering law, and not by seeking to findout whether it has properly exercised that power. Is it ex facieoutside the enabling power ? If so, it is a nullity. Or is it withinthe four comers of the enabling law ? If so, it is an order whichacquires a certain immunity from judicial review. Take, forexample, the powers vested in Rent Boards under the Rent Act,No. 7 of 1972 ; although there is no ouster clause in the Bent Act,unlike in the. Paddy Lands Act, Rent Boards have the power tofix. standard rents, authorized rents, receivable rents etc., andto decide upon permitted increases. But it has no power toorder the ejectment of tenants. If the Rent Board in decidingupon the rent which a tenant has to pay, arrives at a wrongfigure, this is an order which the Board has the power to make.If the Board makes order of ejectment that order has the brandof invalidity on its forehead ; the former has not.
The decision of the House of Lords in Anisminic Ltd. v ForeignCompensation Commission (3) must be considered in this con-nection. Section 4 (4) of the Foreign Compensation Act, 1950,contained an ouster clause in these words: “ The determinationby the Commission of any. application made to them under thisAct shall not be called in question in any court of law”. Themajority of the House held that the term “ determination ” shallnot be construed as including everything which purported to bea determination, but was not in fact a determination, becausethe Commission had misconstrued the provisions of the orderdefining their jurisdiction; and accordingly the court was notprecluded from inquiring whether or not the order of the
CAJames v. Board of Review (WimalaraJne, P.)129
Commissioner was a nullity. Lord Reid gave the following reason:“ There are many cases where, although the tribunal had juris-diction to enter on the inquiry, it has done or failed to do some-thing in the course of the inquiry which is of such a nature thatits decision is a nullity. It may have given its decision in badfaith. It may have failed in the course of the inquiry to complywith the requirements of natural justice. It may in perfect goodfaith have misconstrued the provisions giving it power to act sothat it failed to deal with the question remitted to it and decidedsome question which was not remitted to it. It may have refusedto take into account something which it was required to takeinto account. Or it may have based its decision on some matterwhich, under the provisions setting it up, it had no right to takeinto account. I do not intend this list to be exhaustive. But ifit decides a question remitted to it for decision without commit-ting any of these errors it is as much entitled to decide thatquestion wrongly as it is to decide it rightly, ” at p. 171. HisLordship seems to imply thereby that if the Commission hadrefused to take into account something which it was requiredto take into account, then the determination is a nullity, andnotwithstanding the ouster clause certiorari would lie to quashsuch determination.
Had the Paddy Lands Act been the only Statute underconsideration, this statement of the law would have beenapplicable, and notwithstanding the provisions contained insection 59 (3) it would be open to this court to review thevalidity of the Board’s decision. But the Interpretation(Amendment) Act enacted in 1972 compels us to look at theproblem from another angle. That Act expressly provides thatwhere a ‘ no certiorari ’ clause is contained in a statute, a deter-mination could be questioned if and only if, the conditions speci-fied in the proviso to section 22 have not been satisfied. In thatsituation, the reasoning of Lord Morris of Borth-Y-Gest is morein consonance with our legislation. Said Lord Morris: “If atribunal, while acting within its jurisdiction makes an error oflaw which it reveals on the face of its recorded determination,then the court, in the exercise of its supervisory function, may
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correct the error unless there is some provision preventing areview by a court of law. If a particular issue is left to atribunal to decide, then even where it is shown (in cases whereit is possible to show) that in deciding the issue left to it thetribunal has come to a wrong conclusion, that does not involvethat the tribunal has gone outside its jurisdiction. It followsthat if any errors of law are made in deciding matters whichare left to a tribunal for its decision such errors will be errorswithin jurisdiction. If issues of law as well as of fact arereferred to a tribunal for its determination, then its determina-tion cannot be asserted to be wrong if Parliament has enactedthat the determination is not to be called in question in anycourt of law ”, at p. 182.
Much the same view has been expressed by de Smith, that“ a no certiorari clause would probably be held to take awaythe power to quash for patent error of law not going to juris-diction, inasmuch as a determination flawed by such a defectis not a nullity but merely voidable”, at p. 323 (3rd Ed.).
The following words of Viscount Simonds in the East Elloecase appear to be most relevant to the problem under considera-tion:— “I think that anyone bred in the tradition of the lawis likely to regard with little sympathy legislative provisions for
ousting the jurisdiction of the CourtBut it is our plain
duty to give the words of an Act their proper meaning
What is abundantly clear is that words are used which are wideenough to cover any kind of challenge which an aggrievedperson may think fit to make ” at p. 750; and I may substitutein the context of our legislation, any kind of challenge, ongrounds other than those specified in the proviso.
If we were to place the wide meaning as contended for byCounsel for the petitioner, to the words “ empowered to make ”we would be legislating to restore the plenary powers whichthis court exercised prior to the amendment. That plainly isnot our function. I would accordingly uphold the preliminaryobjection and refuse this application with costs payable by thepetitioner to the 6th respondent.
In view of the substantial and important question of lawinvolved I would grant the petitioner leave to appeal to theSupreme Court.
TAMBIAH, J.—I agree.
James v. The board of Review (Paddy Lands ) and another