CA Wickramasinghe and Another v. Senanayake, Minister of Media,
Tourism and Aviation and Others141
WICKRAMASINGHE AND ANOTHER
v.SENANAYAKE, MINISTER OF MEDIA, TOURISMAND AVIATION AND OTHERS
COURT OF APPEALRANARAJA, J.
C.A. NO. 373/97OCTOBER 13, 1997
Writ of Certiorari/Prohibition – Sri Lanka Rupavahini Corporation Act, No. 6 of1982 – ss. 28, 30 (1), 31 – License for establishment and maintenance of privateTelevision Broadcasting Station – Power of Minister to cancel license once issued- Privilege or right under s. 28 – Could the Minister appoint an Inquiring Officerto hold an Inquiry under Act, No. 6 of 1982 – S. 17, Interpretation Ordinance.
The 3rd respondent was appointed by the 1st respondent Minister of Media, toinquire into 5 charges against the petitioner. The petitioner sought to quash theorder made by the 3rd respondent and further sought to prohibit the respondentsfrom holding the said Inquiry.
There is no provision in the Sri Lanka Rupavahini Corporation Act or anyregulation framed thereunder which enables the 1st respondent Minister,or 2nd respondent Secretary to the Ministry to cause the 3rd respondentto hold an inquiry into the amended charges.
It would be preposterous for a Minister to claim that the licence whichwas issued to the petitioner was a privilege, which could be withdrawnat his whim and fancy. The least the petitioner would expect is a fair trialin a court of law for offences set out in the Sri Lanka Rupavahini CorporationAct or regulations framed thereunder prior to the cancellation of the licenceissued to him.
APPLICATION for Writs of Certiorari and Prohibition.
K. N. Choksy P.C., with Luxman Perera for petitioner.
P. G. Dep, D.S.G for respondents.
Cur. adv. vult.
Sri Lanka Law Reports
(1998) 2 Sri L.R.
October 13. 1997DR. RANARAJA, J.
This application is tor inter alia, (a) a Writ of Certiorari quashing thedecision (P17) of the. 3rd respondent, who was appointed by the 1strespondent Minister of Media, to inquire into five charges against thepetitioner appended to letter P7 dated 18.2.97, sent by the 2ndrespondent Secretary. Ministry of Media, (b) a Writ of Prohibitionprohibiting the 1st and/or 2nd respondent from causing the said inquiryto be held and (c) a Writ of Prohibition prohibiting the 3rd respondentfrom holding the said inquiry.
Learned D.S.G for the 1st and 2nd respondents at the outsetsubmitted that as instructed by the 2nd respondent, he had noobjection to relief (a) above, being granted. Of consent of the petitioner,1st and 2nd respondents, I therefore issue a Writ of Certiorari quashingthe order P17 of the 3rd respondent. It is to be noted that noticehas been served on the 3rd respondent by registered post on 5.5.97.He has not participated in these proceedings.
Learned counsel for the petitioner, however not being satisfied withrelief in terms of (a) above, submitted that he is entitled to reliefsin prayers (b) and (c) above, on the law as it stands. He submittedthat section 28 of the Sri. Lanka Rupavahini Corporation Act, No. 6of 1982, which reads:
"(1) No person other than the Corporation established under thisAct shall maintain a television broadcasting station unless sucha person has obtained a licence from the Minister.
The Minister may in consultation with the Corporation issueto any person a licence for the establishment and maintenanceof a private television broadcasting station.
No licence shall be issued by the Minister unless he is satisfiedthat the person applying for a licence has such technical,financial and professional qualifications as may reasonably berequired for the purpose of establishing and maintaining aprivate broadcasting station."
does not give the Minister a statutory power to cancel a licence onceissued. In the circumstances, it was further submitted that the onlyother way the Minister could have vested himself with that power
CAWickramasinghe and Another v. Senanayake, Minister
of Media, Tourism and Aviation and Others (Dn Ranaraja, J.)143
was by acting under the provisions of section 31 .of the Act, whichby subsection inter alia, (1) gives the power to the Minister to makeregulations relating to all or any of the matters prescribed or in respectof which regulations are required 6c‘ authorised to be. made. If suchregulations had been framed under, section 31 read with section17 (1) (d) of the Interpretation Ordinance, the Minister could haveconferred upon himself the power to issue or. refuse licenceis underthe Sri Lanka Rupavahini Corporation Act and also have providedfor the cancellation of such licences by Court.
On an examination of the provisions of section 17, of the Inter-pretation Ordinance it is clear that where such regulations are framedfor the cancellation of a licence,, prior to such cancellation certainconditions must be satisfied. Inter alia, (a) penalties for the breachof any rules must be clearly set out, (section 17 (1) (b), (b) thecancellation of a licence is possible only by Court upon the convictionof the offender (licence holder) on two or more occasions for thebreach of such rules – (section 17 (1) (d) (ii). The Minister cannotconfer upon himself any power to cancel a licence, once granted,by framing rules to that effect. The principle underlying those pro-visions being that one must not be the Judge of his own cause.
In the case of the Sri Lanka Rupavahini Coroporation Act, certainoffences are set out in section 30 (1). Any person found guilty ofsuch offence and convicted by Court, would have been liable to havea licence granted to him under section 28 cancelled by Court, if therewere rules framed under section 31 to that effect. However there arenone.
In the alternative, the Minister could have amended section 28 ofthe Act. In fact, steps had been taken in that direction by the SriLanka Broadcasting Authority Bill, (vide section 7 (7) and section 13in the 3rd schedule of that Bill) which was held to be unconstitutionalby the Supreme Court.
It is the submission of learned counsel that in the absence of anypowers conferred on the Minister by statute or other provisions oflaw, the Minister could not have issued the amended charge-sheetappended to P7, nor appointed the 3rd respondent to inquire intothose charges..
Sri Lanka Law Reports
(1998) 2 Sri LR.
Learned D.S.G on the other hand argued that the petitioner hadonly a "privilege” and not a 'right1 under section 28 of the Act to alicence, which the Minister could withdraw at his discretion. If whatthe learned D.S.G states is correct, such an intention should havebeen expressly stated in licences P26 and P27. Even though theMinister has reserved the right to impose other conditions from timeto time, no conditions which render the petitioner liable to be chargedfor any breach or cancellation/withdrawal of the licence, have beenincorporated in either P26 and P27. It would be a preposterous fora Minister to claim, that the licence which was issued to the petitionerwas a. privilege, which could be withdrawn at his whim and fancy.The petitioner has invested large sums of money in establishing anddeveloping the Television Broadcasting Station. The least the petitionerwould expect is a fair trial in a Court of Law for offences set outin the Sri Lanka Rupavahini Corporation Act or regulations framedthereunder prior to the cancellation of the licence issued to him.
Other statutes have provided for the cancellation of licences forspecific reasons. For example, section 27 (1) of the Excise Ordinanceprovides, that subject to such restrictions as the Minister mayprescribe, the authority granting any licence permit, pass under thisOrdinance may cancel or suspend it … , (b) in the event of anybreach by the holder of such licence, permit or pass . . ."(c) If theholder thereof is convicted of any offence under this Ordinance, orany other law for the time being in force relating to revenue . . .“.In the Telecommunications Ordinance, section 11 grants the Telecom-munication Authority the power to revoke and determine any licencegranted for the installation, etc., of any telegraph or the importation,possession, etc., of wireless telegraphy apparatus, for the breach ofany conditions contained therein.
Similarly, other statutory provisions permit an authority to appointan inquirer before any disciplinary action may be taken against another.Thus section 277 (1A) of the Municipal Councils Ordinance grantsthe Minister the power to appoint a retired judicial officer to inquireinto and report upon the matters set out therein before taking actionunder section 277 (1) to remove a mayor, councillors or dissolve aCouncil.
All the statutes referred to, have expressly provided for the powerand procedure to be followed by an authority before he/she coulddeprive another of a licence or remove him from office.
CAWickramasinghe and Another v. Senanayake,- Minister
of Media, Tourism and Aviation and Others (Dr. Raparaja, J.)145
“Any administrative act or order which is ultra vires or outsidejurisdiction is void in law, ie: deprived of legal effect. This is becausein order to be valid it need statutory authorisation, and if it is notwithin the powers given by the :'Act, it has no legal leg to stand on.The Court will then quash it or declare it to be. unlawful or prohibitany action to enforce it. … an act found to be. outside jurisdiction(ultra vires) is void and a nullity, being destitute of the statutoryauthority without which it is nothing." Wade & Forsyth – AdministrativeLaw. 7th ed., p. 43.
The learned D.S.G was unable to point to any section the Sri LankaRupavahini Corporation Act or any regulation framed under the pro:visions of that Act, which enables the 1st respondent Minister or the2nd respondent Secretary to the Ministry, to cause the 3rd respondentto hold an inquiry into the amended charges appended to letter P7.The acts of the 1st and 2nd respondents, in serving a charge-sheeton the petitioner and appointing the 3rd respondent to hold an inquiry,are not within their statutory powers and therefore void in law anda nullity.
Accordingly, I issue Writs of Prohibition, (a) prohibiting the 1stand/or 2nd respondent from causing an inquiry to be held into theamended charges appended to P7, (b) prohibiting the 3rd respondentfrom holding the inquiry into the said charges.
The application is allowed in terms of prayers (b), (c) and (d) tothe petition without costs.
WICKRAMASINGHE AND ANOTHER v. SENANAYAKE ,MINISTER OF MEDIA ,TOURISM AND A