Hafi v Dayananda Dissanayake, Commissioner of Elections
and others lDissanayake, J.)
DIVISIONAL SECRETARY, GALEWELACOURT OF APPEALSR1PAVAN, J.
C.A. 1565/2002JUNE 11, 2003
Writ of Certiorari – Grant of Liquor Licence – Rule of Audi Alteram Partem -Licence expired – Right of petitioner to be heard in future applications consid-ered.
A Committee appointed after Inquiry, with the petitioner attending the saidInquiry, recommended that, the licence issued to the petitioner for the year2002 should not be cancelled. However, the 2nd respondent, rejected the rec-ommendation purely on a report submitted subsequently, on the basis that theoriginal information submitted by the petitioner was incorrect or false. The peti-tioner was not afforded an opportunity to controvert or contradict the secondrespondent.
(i) No man can incur a loss of property by judicial or quasi judicial pro-ceedings unless and until he has had a fair opportunity of answeringthe complaint made against him.
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(ii) Objectors at public Inquiries must be given a fair opportunity to meetadverse evidence, even though the statutory provisions do not coverthe case expressly.
Per Sripavan, J.
"It is not a futile exercise to issue a Writ of Certiorari because the deci-sion complained of related to year 2002, which had already expired, theCourt is not acting in vain because the right of the petitioner to be fullyand fairly heard in future application is recognized.”
APPLICATION for a Writ of Certiorari.
Cases referred to :
Gamalath v Commissioner General of Excise and two others CA1675/02 – CAM 28.3.2003.
Errington v Minister of Health – 1935 1 KB 249
Schmidt v Secretary of Stale for Home Affairs -1969 2 Ch. 149 at 170
Marshreq Bank PSC v Arunachalam – 2001 – 3 SRI LR 128
Regina v Barnsley Metropolitan Borough Council Exp. Hook 1976 1WLR 1052
Sudakaran v Barathi- 1989 1 SRI LR 46Mohan Pieris for petitioner
Janak de Silva, S.C, for respondents.
Cur. adv. vult.
July 14, 2003
SRIPAVAN, J.The petitioner obtained a FL 11 category licence from the sec- 01ond respondent for the years 1999, 2000, 2001 and 2002 for thesale of liquor in premises No.169, Dambulla Road, Galewala. Thepetitioner alleges that the 2nd respondent by letter dated
(P4) informed the petitioner that licence would standcancelled with effect from 30.09.2002. The petitioner seeks a man-date in the nature of a writ of certiorari to quash the said decisioncontained in P4.
The learned State Counsel appearing for the respondents sub-mitted that the second respondent received a general complaint 10
Nimalasiri v Divisional Secretary, Galewela
from one Sumeda Amarasiri of Raja Maha Place, Galewala chal-lenging the location of premises within the Galewala town limits towhich liquor licences were issued. Accordingly, the second respon-dent appointed a Committee in terms of Cabinet decision dated
headed by the first respondent as the Chairman of theCommittee to summon the parties concerned, hold an inquiry andto submit a report to him. It would appear that the petitioner attend-ed an inquiry held on 09.04.2002 and based upon the findings, theCommittee recommended by its report dated 11.04.2002 (2R5) thatthe relevant licensed premises was outside" the radius of 50020
meters from the temple and recommended that the licence issuedto the petitioner for the year 2002 should not be cancelled.However, it appears that the second respondent thought it fit todirect the first respondent to obtain a official survey report to con-firm the distance. The recommendation of the first respondent wassubmitted by her report dated 13.08.2002 (2R9) which indicatedthat the distance from the licensed premises to Sri Bodhi RajaMaha Viharaya was 491 meters. If the second respondent rejectedthe original recommendation made by the Committee and actedpurely on the report submitted subsequently marked 2R9 on the 30basis that the original information submitted by the petitioner wasincorrect or false, then the second respondent should have giventhe petitioner an opportunity to controvert or contradict the saidreport.
In this context it may be relevant to quote a paragraph from myown judgment in Gamalath v Commissioner – General of Excise
and two others J1)
"It is one of the fundamental principles in the adminis-tration of justice that an administrative body which is todecide must hear both sides and give both an opportuni- 40ty of hearing before a decision is taken. No man can incura loss of property by judicial or quasi-judicial proceedingsunless and until he has had a fair opportunity of answer-ing the complaint made against him. Thus, objectors atpublic inquiries must be given a fair opportunity to meetadverse evidence, even though the statutory provisionsdo not cover the case expressly (Vide Errington v Ministerof Health(2). The Court would certainly regard any deci-
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sion as having grave consequences if it affects propri-etary rights. In Schmidt v Secretary of State for Home 50<
Affairs<3) at 170 Lord Denning M.R. suggested that theambit of natural justice extended not merely to protectrights but any legitimate expectation of which it would notbe fair to deprive a person without hearing what he has tosay."
It is well established when a body of persons are conferred withthe power to make decision affecting individuals the Court will notonly require the procedure prescribed to be followed, but wouldalso ensure the attainment of fairness. In the case of MarshreqBank PSC v Arunachalani4> this Court held that “as far as possible 60and feasible in the interest of justice and fair play all the partiesshould be afforded an opportunity of being heard before making anorder or varying an existing order". In Regina v BarnsleyMetropolitan Borough Council, exp HookW Lord Denning M.R. heldthat the rules of natural justice applied to the revocation of a licenceto trade at a market because of the importance of the right to thestall-holder; it was irrelevant whether the Council was exercising anadministrative or judicial function.
A decision to cancel the petitioner's licence was made withouthearing him which deprived a vested right in property. Learned 70State Counsel urged that it is a futile exercise to issue a writ of cer-tiorari because the decision complained of related to the year 2002which had already expired. However, following the decision inSudakaran v Barathi and others(6) this Court issues a writ of certio-rari quashing the decision of the second respondent contained inthe letter dated 27.08.2002 marked (P4). Thus this Court is not act-ing in vain because the right of the petitioner to be fully and fairlyheard in future application is recognized. I
I cannot bring myself to accept the position taken up by thelearned State Counsel that all necessary parties have not been 80made respondents to this application and as such this applicationshould be dismissed in limine. Learned State Counsel submittedthat the members of the Committee who conducted the inquiryshould have been made parties to this application. The petitioner isnot seeking to have the report of the Committee to be set aside; it
Nimalasiri v Divisional Secretary, Gaieweia
is only the decision/determination of the second respondentmarked (P4) is being challenged in these proceedings. Since thesecond respondent has been made a party, I overrule the objectionraised by the learned State Counsel.
I make no order as to costs since this Court granted interim reliefto the petitioner operative until 31.12.2002.
NIMALASIRI v. DIVISIONAL SECRETARY, GALEWELA