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BHARATHI AND OTHERS
SUPREME COURTS.C. APPEAL NO. 59/87C.A ,L.A. (S.C.) NO. 22/87C.A. APPEAL NO. 57/87RANASINGHE. C.J.
SENEVIRATNE, J. & AMERASINGHE. J.. •
OCTOBER 3 and 4 1988.
' Writs of'.Certiorari' and Mandamus Liquor licence — Excise' DepartmentCircular No. 221 Of- 14:02.1986 — Are decisions of the Government Agent,decisions .of the Excise- Commissioner ? — Is concurrence of Member ofParliament necessary ? — Judicial review — Is a liquor licence a vested right’inproperty ? — Natural Justice — Audi alteram partem — Does cenainty of nochange in decision obviate necessity to afford opportunity to be heard ? Legitimateexpectation —Would court be acting in vain where relevant year of .licence ispast ?■'' –
._ The.petitioner was anvapplicant for a. liquor licence for 1987. He had beengranted liquor licences for the^two preceding years and in respect of 1987 hewas written to and asked to pay the licence fees. When he went to the office of4he Government Agent he was informed' by the accountant that no licence could'be> issued to him as he failed to: obtain the consent of ail the members ofParliament in the constituency in terms’ of Circular NO. 221 of 14.02.1986. Heappealed to the Minister of Finance but received no response. He then movedfor a writ of mandamus to compel .issue.of the licence. The Court of Appeal
Sundarkaran v. Bharathi and Others
refused the application holding that the consent1 of all-the members of theconstituency this being a multi member constituency was’an absolute imperativeand judicial review was inappropriate because this was a matter of executivepolicy.
All that Circular 221 required was that the members of,the Parliament of
the constituency should be consulted. Their concurrence was not an essentialrequirement… —
The decision of the Government Agent was the decision'of the actingExcise Commissioner.
The court will not question the correctness of; the conclusions or. thedecision not to issue the licence but the court can examine the decision-makingprocess in the interests of administrative Justice.
It was not enough that the Government Agent had taken into account all thecircumstances and not- relied exclusively on the objections of the Member ofParliament. It was imperative in natural Justice that the petitioner should havebeen heard-before he was-refused the licence. The assumption that the result isobvious from the-outset does not obviate the requirement (hat-the principle audialteram partem should .be complied with..
'The licence has a money value and’toas a vested right in property..As an
existing licence •—holder with legitimate expectations of success W obtaining,the'licence' the petitioner was' entitled to a full and. fair’opportunity of beingheard. The: duty of fairness Tn cases of this type requires the decision maker-hotonly to determine the application honestly and without bias or caprice but alsofa'ir^by hearing him,according to L,avv..,- .
The court will not'-be acting in-vain in quashing the determination not toissue the licence for T 98-7 because the right of the petitioner to be fully .aridfairly heard in future applications'is being recognised.
R v. Northumberland Compensation Appeal Tribunal ex Parte Shaw [1 952] 1All E.R. .122.127 ;
. Ridge’v. Baldwin [ 1 96.3] 2 AII E.R.~66.9'1 ;
Chief Constable of North Wales Poliqe v. Evans[ 1962], 3 All E.R'. 141. 151 :
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K.M. Dayaratne v. Y.M.W. Bandara S.C. NO. 924/77 October 3rd 1978 :(1983) Bar Association Law Journal Reports. Vol 1 Part 1 p. 23 :
■' Cooper v. Wandswroth Board of' Works [ 1 983) 14 CBNS 180:
R v. Secretary of State for the Environment ex p. Brent London BoroughCouncil [1922) 2 W.L.R. 693.734; (1983) 3 All E.R. 321 :
. General Medical Council v. Spackman  A.G. 627. 644 ;  2 All
E.R. 66 H.L.
Appeal from Judgment of the Court of Appeal reported in (1987) 2 Sri L.R.243•
H.L. de Silva P.C. with ED. Wickremanayake. M.S.M. Suhaid and Miss L.N.A:de~ Silva' for petitioner. M.S. Aziz. D.S.G. with- P. Karunaratne S-.C.. and N.R.Laduwahetty S.C. for respondents.‘
•Cur. adv. vulL
November 4 “1988’ ••
'■In December 1985;the Petitiorier-'Appellani.had applied to theGovernment. Agent.. Kandy (the predecessor in office of the 2ndRespondent-Respondent) for licences to seN liquor. The.Government' Ag.ent referred' the application, to the AssistantGovernment.-Agent of the 'ar.ea where thejicensed prermses wereto be. situated-.ln terms of Excise Department Circular No. 212issued, to all Government Agents by the-Excise Commissioner,the Assistant Government Agent on – 18th December 1985reported , on the area of the premises and the location of_ thep:r.ernise§v'fn“' relation •vto"places_'-6f‘. wo'rshfp and; schools andrbcOmmerided'the granting of the licences.
Excise Department Circular No. 212 reproduced the following.decision on 4th September 1 985 by the Cabinet of. Ministers :
'"'The matter .of the issue of licences for the sale of liquor'was discussed and it. was decided ■'that, the-licensing of• wholesale'-end. retail outlets for the distribution'of alcoholic'beverages .should be liberalised by authorising the ExciseCommis'sioneCto issue licerices'Tb'r 'the7 sale of liquor to
$CSundarkaran v. Bharathiand Others (Amerasinghe. J.)49
private wholesale ■ and retailers ^.recommended byGovernment Agents, after'consultation with the M-P'. of thearea, according to the needs of each area. " :•
By .letter dated 10th December . 1 985 a Member of Parliamentof the area recommended the;, issue of the licence to thePetitioner-Appellant. f ."
Licences for the sale,, of bottled, toddy. and. 7 Foreign liquor(including locally made malt liquor) not to be consumed; on.thepremises " were issued for the year ending, on 31st'December1985: Similar licences were issued again fdr the year, ending- on' 31st December 1986._ ;,■
By Excise; Department Circular No. 22t1 dated 14th February'1986 'addressed' to “all Government Agents,, the ExciseCommissioner'cancelled his, previous instructions, contained inCirculars Nos. 212 arid 213 and issued new instructions toGovernment Agents on the criteria for deciding whether liquor ;
licences should be granted or refused' Paragraph 5 of .Circular
No. 221 stated as follows ;::
" No liquor licence will be'issued.-by the Government'Agent. ■ without the concurrence of the M.P. of the areal In the case'df^Multi-MembCr .Coristifueri'cies alt .the Member's of'the-
Constituericy should ' be . consulted before ^licences are.issued. In Constituencies where there..are no Members ofParliament the District Minister Shall'be consulted. In
■. Opposition Member Constituencies the District Ministershoul.d.''be'C,6nsdlted 'beforeriicences are issued. "
By his Circular letter, dated ' 22rid October ’ 1986. theGovernment- Agent wrote to the Petitioner-Appellant asking him,to pay his-licence fees-for the purpose of renewing- his licencesfor the year. 1 987.' However, .when the Petitioner-Appellant wentto the office of the Government Agent, to make the_required. payments, he was .informed .by fhe Government Agent's.Accountantthatriolicencecouldbeissuedtohim.-
– The. reason, given was -,that in terms of paragragh 5'Of theinstructions issued by the Excise Commissioner-, in Circular-;
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No. 221 he was not qualified to receive the licences since he hadfailed to obtain the consent of all the Members of Parliament inthe Constituency. He was informed that one Member ofParliament in the Multi-Member Constituency in which thepremises to be licensed was situated had objected to the issue oflicences to the Petitioner-Appellant.
Using the right of appeal given by Section 9 of the ExciseOrdinance, the Petitioner-Appellant appealed through his letterdated 3rd January 1 987 to the third Respondent-Respondent,namely, the Minister of Finance " to review my casesympathetically and request the G.A.. Kandy to renew my licencefor the current year so that I could continue in business. "
Not having received even so much as an acknowledgment ofthe receipt of that appeal to the Minister, the Petitioner-Appellant .applied on 1 5th January. 1 987 to the Court of Appeal praying for
the issue of a Writ in the nature of a Writ of Certiorariquashing the refusal by the Second Respondent-Respondent — the Government Agent — to renew thelicences applied for ;
; (b) the issue of a Writ of Certiorari quashing the decision ofthe Third Respondent-Respondent.—the Minister ofFinance — to disallow the appeal to him by thePetitioner-Appellant;
(c) the issue of a Writ in the nature of Mandamus directingthe Second Respondent-Respondent — the GovernmentAgent — to renew the licences for the year 1 987
, (d) costs
(e).. such' other and further relief as to the Court of Appealmight seem meet.
■: '. v. •
On 10th September. 1987, the Court of Appeal after hearingCounsel for ;the 'Petitioner and Respondents dismissed thePetitioner's application with costs.
SCSundarkaran v. Bharathi and Others (Amerasinghe, J.)
On 1 5th October. 1 987, the Court of Appeal granted leave toappeal to the Supreme-Court on the matters of Law set out inparagragh 7 of the petition’ of appeal. Paragraph 7 of that,petition states as follows: "Being aggrieved by the saidjudgment, the appellant asked for leave to appeal, to. the SupremeCourt, upon the following substantial questions of law, viz.,'thatthe Court of Appeal has.erred in holding that:'
the 2nd respondent (the Government Agent) was entitledto refuse the renewal of the said licences for the year
:1987 upon the ground that the 1st Member for
.Harispattuwa Electorate had objected to the renewal ofthe said licences ;
the said decision was. in the circumstances of this case,hot liable to be quashed by way of a Writ of Certiorari ;
the failure of the 3rd Respondent to deal- with theAppellant's appeal in the circumstances of this case, was-
' . hot a refusal liable' to be quashed by way of a Writ ofCertiorari ;
the local Option' Polls regulation made under the ExciseOrdinance (Vol 1. Subsidiary Legislation) did not apply inrelation to the licences issued .tojhe Appellant and thateven if they did apply, would not affect the Appellant's
. , claim for relief;,‘
■ (e) the Appellant was hot entitled to a Writ of Mandamus tocompel the issue of the licences , to him for the year '■ T987.' '
In his appeal to this Court the Petitioner-Appellant prays that
this Court :•
(a) quash byvay of a Writ of Certiorari .
(i)- the determination "of the – 1st Respondent — theActing Commissioner of Excise — not to renew t;hePetitioner-Appellant's licence for the year 1 987
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(ii) the refusal or rejection of the appeal made by theappellant to the 3rd Respondent —the Minister ofFinance :
issues a Writ of Mandamus compelling the 1stRespondent — the Acting-Commissioner of Excise — to
. renew the Appellant's licences for 1 987 :
Costs ; and
such other and further relief as to the Court may seemmeet
The first prayer in the appeal to this Court is this : that wequash by way of a Writ of Certiorari the determination of theActing Commissioner of Excise not to renew the Appellant'slicence for the year 1 987.
Th.e Acting Excise Commissioner himself made no decision torefuse -to renew the licence. The refusal was made by theGovernment Agent of Kandy. Counsel for the Resporidents-Respondents insisted that the. Government Agent acted for andon behalf of the Excise Commissioner from whom he took hisorders .and directions in matters relating to the issue of liquor .licences and was. to use his own words, a mere " collector ofrevenue. " We may. therefore accept the position that thedecision of the Government Agent was the decision of the ActingExcise Commissioner.
Counsel for the. .Petitioner-Appellant supported his case onfour main grounds, viz. 1
(1) that Circular No. 221 issued by the Excise Commissionerwhich the Government Agent used as the basis of hisdecision was ultra vires and invalid in law because thestatutory discretion conferred on the Government Agentcould be curtailed only by Rules made by the Minister by• virtue of the powers conferred upon him by Section 32 of the-'Excise Ordinance.-(Cap 64 vol. Ill Legislative'Enactments1980 Ed.)-,
SC' Sundarkaran v. Bharathi and Others (Amerasinghe. J.)
that if Circular Mg. 22-1 was not altogether invalid then atleast the directions contained in paragraph 5 of that Circularwere ultra vires and invalid in- law because, by virtuallyconferring a power of veto on- Members of Parliament, afetter had been placed improperly u’pon-The use of the
1 discretionary power conferred, by statute on the GovernmentAgent since such'fetter was. imposed by Circular instructionsand-not by-legislation'or subsidiary, legislation, as it might■ ■ have been.
that if Circular No’ 221 and paragraph 5 thereof were valid inlaw. the Court of Appeal had misdirected itself by erroneouslyconstruing the direction given in paragraph 5. to consult theMembers of Parliament in a Multi-Member Constituency tomean obtaining the consent of such Members ;
that the-Petitibner-Appellant had a " legitimate expectation "that a licence would be issued-'to him and that therefore her r had a right to be heard before the Government'Agent madeany: decision on'-the application for the renewal of thelicences..
, Although Mr.'Aziz for the Respondents-Respondents arguedthat the Government Agent had taken all the circumstances intoaccount and did not rely exclusively on the'objections'to theissue of the licences by one of the several Members of'Parliament, I am inclined to agree with Mr. H.L. de' Silva. P.C. whoargued that, whatever the Government Agent may or may nothave done. the;Court of Appeal had erroneously refrained fromgranting the relief prayed for by the PetitionenAppellant on theground that, the fa’ilure to obtain the unanimous support.of.all theMembers of Parliament of that Constituency was conclusive ofthe matter.
In my view, the duty of-t-he Government Agent acting- inaccordance with Circular No. 221 in the case of a Multi-MemberConstituency is to consult all the Members of Parliament in thatConstituency. The relevant words* of instruction in paragraph 5are-as follows : " In the case of Multi-Member Constituencies allthe Members of the Constituency should be consulted before
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licences are issued. " The Court of Appeal, however, in my view,erroneously, took the view that the direction required not merelyconsultation but also concurrence. Ramanathan J. who deliveredthe Judgment of the Court, discussing the effect of Paragraph 5of Circular No. 221 (P8) said: "The change that had beeneffected by it. so far as is relevant here and with respect to Multi-Member Constituencies was that all the Members of Parliamenthad to be " consulted " which in the context in which such wordis used in P8 had to mean that these licences had to be issuedwith their " concurrence ", as is the .word used with respect tosingle member constituencies.-"
There. is a great difference between ' consult andconcurrence .
Notwithstanding the' argument of. Counsel for .the•Respondents-Respondents that the Government Agent had-exercised his discretion' after considering all the circumstances,including.-.but not entirely depending upon the objection to theissue of the licences by one of the Members of .Parliament, theCourt of Appeal .was' of .the view that it was the failure of thePetitioner to obtain the unanimous support of all the Members ofParliamenMhat was the decisive factor.
Ramanathan. J. says :
" The Petitioner contends that he went to the KandyKachcheri to make the payments due for the issue of the’jJicences for the year 1987 when he was informed …. thatsuch licences .could not-. … be issued as the First lyiember. of Parliament for• this electorate had objected ; that when-Jhe Petitioner pointed, out that the 2nd Member of theelectorate had recommended the issue , he was told , inresponse-that in terms of Circular (P8) in the case of Multi-Member'Constituencies both Members had to consent "- (sic.) " 'and that therefore they could, not be issued ….."
. -In coming to the conclusion that the matter before the, Court ofAppeal was inappropriate for judicial, review because it was " a-onatterof executive policy,", Ramanathan, j. says : .
Sundarkaran v. Bharathi and Others (Amerasinghe. J.)S5
The thinking of the Government Agent the 2ndRespondent.that this was. something he should take account• of even in the case of .renewal, is we think'not such 'as'would enable us to describe such thinking or thesubsequent decision based thereon as unreasonable, (Thathis decision w.as in fact not to renew such licences, and thatbased solely upon the objections of the 1st Member ofParliament, we have no doubt and this is made clear by hisown affidavit at paragraph 1-8 (1) (h)). " .
Paragraph 18 (1) (h) of the-Second Respondent's Affidavit, it.must be pointed out in .fairness, to the'2nd Respondent, does notshow that his decision is based " solely upon the objections ofthe 1st Member of Parliament. "
What the Second. Respondent states in paragraph 1.8.,(1) (h) isthis: .. …
" I have examined the nature of th,e objections and after. having given consideration to them I am satisfied that.thecontinuing of a liquor shop in this area will affect the: religious'susceptibilities of the public of that area and willhot be conducive to their interests. I have decided thereforethat the licences should not be renewed for 1987." '
Imight have dismissed the Petitioner-Appellant's, appeal on the. basis thatsithe-2nd Respondent had in fact acted independently,without considering himself, as Counsel for the Petitioner-Appellant'contended. being "vetoed " by. the decision of OneMember of Parliament but for- the fact that i am not satisfied thatin arriving at his decision the 2nd Respondent-Respondent, (theGovernment Agent), had sufficiently informed himself of the factsof-the matter before him. ';1:.
This was not a case in which there was agreement on thematters, which formed the basis for the 2nd Respondent'sdecisionTp refuse th.e>granting of the licences.
For example, in>his affidavit'filed in the Court of Appeal, the2nd Respondent.says in paragraph 18 (e) :
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I also received a letter dated 4.12.86 from the Secretary.Ministry of Finance and ' Planning annexing acommunication dated 1.12.86 addressed to the Hon.Minister of Finance and Planning from the Hon. First M.P.for Harispattuwa objecting to the issue of the licence in hiselectorate (and another in the same electorate). In -this letterthe First M.P. for Harispattuwa has complained that theselicences have been granted without him being consulted "(sic.). " The First M.P. for Harispattuwa has also informed methat the issue of these licences have created a public outcryamong his constituents as the outlets are situated in nearproximity to religious places and that there is a misapprehensio.n gaining ground that as he. is a member of aminority community he is not taking steps to curb theopening of taverns and. liquor stores near places ofBuddhist religious worship. "
The 1st Member for the Multi-Member "Constituency ofHarispattuwa swears in his affidavit- filed before the Court ofAppeal as follows :
" I Abdul Cader Shahul Hameed. being a Muslim, do herebysolemnly, sincerely and truly, declare and affirm as follows ;
1. I aiji the 1st Member of Parliament, for Harispattuwahaving represented the constituents of Harispattuwa as, their elected representative continuously for the past 27years.
.2: .This long association with Harispattuwa, which is aipredomina'ntly SinhalarBuddhist electorate. ' and themeetings with the constituents, which I make a point ofholding regularly, has given . me a very intimateunderstanding of the needs and wishes of the electorate.
' 3. * P recall that numerous constituents of Harispattuwa. someof yyhom representing religious and social organisations,made representation's to me objecting strongly to thesiting -of: two, liquor shops at Alawathugoda, andRanawana respectively.
Sundarkaran v. Bharathi and others (Amerasinghe. J.j
I conveyed these objections .to the Government Agent.Kandy, and informed the latter of t'he increasing publicpressure which was building up in my electorate over thesiting of these two liquor shops.
I also state that several of my constituents met me
recently in. Harispattuwa and indicated their relief that theliquor shops have not been opened'•in 1987 andexpressed their appreciation that the authorities haveconsidered their protests. "’
On the other hand, the Petitioner-Appellant contends that thepremises sought to be licensed was .not near places of Buddhistreligious worship and did not offend the religious susceptibilities •of the people of the area concerned; He argued'that the 2ndMember of Parliament who was herself a1 Buddhist supported.thegranting of the licences.
In her affidavit to the Court of Appeal dated 14th March 1 987she says :
" 1I am .the affirmant abovenamed. I am the 2nd Member ofParliament for the electoral district of Harispattuwa. Tama Member of the United National Party to which the 1stMember of Parliament for Harispattuwa. Mr. A.C.S.Hameed also belongs.
3-. /I state that I am a Sirihala Buddhist and l am deeply .concerned about the religious susceptibilities not only ofthe Sinhala Buddhists in my electorate but also about thereligious' susceptibilities of all my constituents whatevercommunity or religion " (sic)"th*ey belong ".
5'. I state ’that-the "Headquarters" of the "BuddhistBalamandalaya " referred to in paragraph 18 (g) of theaffidavit filed by. the 2nd Respondent is not a place ofreligious worship. The premises are little more than a
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shed'and I am aware that they have been rented out. interalia, for a Muslim Wedding reception at which meat wasserved"
From his affidavit dated 30th March 1987 it is clear that theGovernment Agent (the 2nd Respondent-Respondent) hadsatisfied himself that the premises to be licensed was in closeproximity to the Bauddha Balamandalaya premises which hethought was a place, of religious worship. However, thePetitioner-Appellant strongly disputes the claim that the premisesoccupied by the Katugastota Bauddha Balamandalaya is in fact aplace of religious worship.
It may well be that the conclusion arrived at by the 2ndRespondent-Respondent that the place was a place, of religiousworship was a right conclusion.
It would appear from Paragraphs 12 and 18 of the 2ndRespondent-Respondent's affidavit dated 1 st March 1987 that hehad received and considered protests against the issue oflicences' from several organisations.'However, the-Petitioner-Appellant in t Paragraghs 4 and 5 of His affidavit dated 20th'March -1 987 challenges’the relevance of the representations-andeven challenges the very existence of one of the;organisations.
v I do not question the correctness, of the conclusions'of the 2ndRespondent-Respondents on these matters. Nor do I questionhis decision not. to issue the licences. These are matters for thedecision of the appropriate authority vested with the power of.making such decisions. -Indeed it would be an improperusurpation of authority for me'to do so. (See R v.Northumberland.Compensation Appeals Tribunal. Ex parte Shaw, (1) : Ridge v.Baldwin, (2), and,.Chief Constable of. North Wales- Police v. Evans(3). I am, however,-not satisfied with the decision making processin the instant case. I do not think that the Respondents actedfairly and therefore consider the matter to be one which deserves-judicial review in.the. interests of administrate justice. (See NorthWales Police'v. Evans (sup'ra. loc.'cit).
The circumstances in which the. 2nd Respondent-Respondentdecided' not to renew’-the licences -of- the1 Petitioner-Appellant
$CSundarkaran v. Bharat hi and others (Amerasinghe. J.)
sho.w that he had failed, to give the Peti.tioner-Appellant anopportunity of meeting the objections :which ;were supposed tohave been made against the issue of the licences. He had beenissued licences forthe two preceding years.- he-had received, anotice from the 2nd Respondent-Respondent requesting, him. tomake payments for obtaining his licences for 1987 'and inpursuance of a legitimate expectation that he would be is.suedthe licences.-he had raised a loan of Rs, 760.0,00 to develop his.liquor sales business. lt seems to me to. be manifestly unjust andimproper that a.decision to refuse to renew the licences was .made in the. circumstances of this case withbut hearing thePetitioner-Appellant who: was being deprived not merely of. aprivilege but a vested right in property, (See per Vythialingam,. J.(Abdul C.ader. J. agreeing), in the ease of K.M. Dayaratne v.Y.M.W. Bandara (4). ..
-. In Dayaratne's case the Petitioner-had'been granted a . licenceannually under the Excise Ordinance to sell foreign liquor at hisshop at Mawanella. Subsequently., on the orders of . theRespondent, who was the Government Agent, the shop wasclosed, by the Police. The..licence issued .was cancelled on theorders of the Minister acting in terms of section 28A of theExcise Ordinance. The.Petitioner had not been given a hearing,Vythialingam J. .says at p-. 2-7 :,…
" In deciding" whether the principle audi-alteram partem• should be applied in the instant c.asej would follow theapproach adopted by the Privy Council in. Durayappah's-case- (A.T. Durayappah v. IA/.:J. Fernando 69- N.L.R. ,265).There Lord Upjohn said at. page 270. "In Their .Lordship'sopinion there are, three matters which must always be bornein mind in considering whether the principle should be •. adopted or not. The three matters are : First, what is thenature of the property, the office held, status enjoyed, orservices to be performed by the complainant of injustice'.Secondly, in what circumstances or upon what occasions isthe person claiming to exercise the .measure of controlentitled to intervene. Thirdly, when a right to intervene isproved what sanction in fact, is the latter entitled to imposeon the other. It is only upon a consideration of all these
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matters that the question of the application of the principlecan properly be determined. " In regard to the first matter, .here there is no complaint in regard to any office held,status'. enjoyed, or services to be performed by thePetitioner. Re must come, if at all. as the holder of a right inproperty. "
Vythialingam. J.. after analysing the various authorities on thesubject, says at p. 2.9 :
The fact that the licence in the instant case has a moneyvalue cannot be doubted. The Petitioner paid Rs. 450/- aslicence fee for the full year 1977, On the strength of thelicence he stocked his shop with foreign liquor….. Hecould have made profits by the' sale of the liquor. The
licence can be sold or sub-rented . Under the
general condition attaching to all Excise Licences sets out" No privilege manufacture, supply,, or sale or any interesttherein " shall be sold or transferred or sub-rented without■ the Government Agent's previous, permission. (Paragraph13 General Conditions Applicable to All Excise Licencesfrom and After September 30.- 1955 Vol. I. SubsidiaryLegislation p. 585). So that the Petitioner had at that time avested-right in property which had money value. "
It has been repeatedly. recognized that no man is to bedeprived-of his property without having an opportunity of beingheard. Even if what he had was mere permission to which theAppeliant-Petitioner'had no legal entitlement or claim of right,the. refusal of the permission which had previously been grantedI think may be at least sufficiently comparable to the act of takingaway property so that the audi-alteram partem rule will apply. Iam unable to agree with learned Counsel for the Respondentsthat the Petitioner-Appellant was'simply "hoping" against "hope"of being granted a renewal of a licence. Re had. in my view, alegitimate expectation of sucdess and therefore a right to a fulland fair^pportunity of being heard.
Counsel for the Respondents-Respondents urged that thedecision had not been made capriciously. As an existing Licence–
Sunda'rkaran v. Bharaihi and others (Amerasinghe. J.)
holder with legitimate expectations the Petitioner-Appellant wasentitled to much more. The doty of fairness in cases of this typerequires the decision maker not only to determine the applicationhonestly and without bias or caprice but also fairly by hearinghim according, to the law.
There are. I think, .in the words of Erie. C.J. in Cooper v.Wandsworth Board of Works (5) " a great many advantageswhich might arise in the way of public order., in the way of doingsubstantial justice, and in the way of fulfilling the..purpose of thestatute by the restriction we put upon them. that.they, shouldhear the party before they inflict upon him such a heavy loss. "
Counsel for the Respondent-Respondents argued that,a fairhearing would make no difference to the result in this case..'" Procedure and merits should be kept strictly apart sinceotherwise the merits may be prejudged unfairly."' (H.W.R. WadeAdministrative Law. 5th Edition p. 475). The so called " nodifference ".argument has been properly rejected on rhorethanone occasion (e g. See Ft. v. Secretary of State. for the■Environment ex. p. Brent London Borough Council (6)). but Ishould like to recall the words of Lord Wright in General MedicalCouncil/. Spackrrian (7). His Lordship.said :
If the principles of natural justice are violated in respect ofany decision it-is. indeed, immaterial whether the samedecision would have been arrived at in the absence of theessential principles of justice. The decision must be.
■ declared no decision.'"
The perils of assuming that a result is obvious from the outsetwas vividly and elegantly expressed by Megarry.J. n John v.flees (8) in-the following, words .•
" As everybody who has anything tp do with the law willknow the path of the law is strewn with examples of open' and shut cases which.- somehow were not of unanswerablecharges which, in the event, were completely answered : of■inexplicable, conduct which was fully explained; of fixed' and unalterable determinations that, by discussion, suffered. a change. "
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I do not believe that this Court will be acting in vain or thatquashing the determination of the 1st Respondent not to renewthe Petitioner-Appellant's licences for the year 1987 andrequiring that the Petitioner-Appellant be fully and fairly heardbefore a decision with regard to any future applications forlicences are-made, will be only a. useless formality.
I would express no opinion on the question of the validity ofthe Circular in question or the validity of Paragraph 5 thereofbecause it is unnecessary for me to do so having regard to theopinion I have reached on the third and fourth propositions ofCounsel for tho Petitioner-Appellant. I prefer to leave theseimportant questions open until they , arise in a case wheredecisions on them are necessary.
/For the reaso.ns I have given I set aside the judgment of theCourt of Appeal, quash .the decision of the Respondents andmake order .that the Respondents-Respondents do hear anddetermine according to law i.e. make due inquiry upon its meritsany' application for a licence to sell liquor by the Petitioner-Appellant may hereafter make. ■ I
I order that a sum of Rs. 2100 be paid to.the Petitioner-Appellant as costs of the proceedings before the Court of Appealand this.Court.' i ' '
ranasinghe; c.j. — I agree
SENEVIRATNE. j. — I agree
Judgment of Court of appeal set aside. Decision of Respondentsquashed. Respondents directed to make due inquiry upon meritsin future applications for a licence.
SUNDARKARAN v. BHARATHI AND OTHERS