058-NLR-NLR-V-39-MAHA-NAYAKA-THERO,-MALWATTA-VIHARE-v.-REGISTRAR-GENERAL-et-al.pdf
186
Maha Nay aka Thero, Malwatta Vihare v. Registrar-General.
1937
Present: Soertsz J.
MAHA NAYAKA THERO, MALWATTA VIHARE v.
REGISTRAR-GENERAL et al.
In re Application for a Writ of Mandamus.
Buddhist Temporalities Ordinance—Expulsion of Buddhist priest from theOrder—Application to remove his name from the register—Refusal by theRegistrar-General—Ordinance No. 19 of 1931, s. 41 (5).
The Registrar-General is under a legal duty under section 41 (5) of theBuddhist Temporalities Ordinance, No. 19 of 1931, to remove the name ofa Buddhist priest from the register on being required to do so by the MahaNayaka on the ground that the priest has been expelled from the Order.
The section contemplates the total removal of a name and not merely amodification of the details set out in the form.
The Supreme Court will not exercise its discretion to issue a writ ofmandamus where it is not convinced of the propriety ot the motives of theapplicant.
N February 14, 1934, a public meeting of the beneficed Bhikkus of
C3 me -ivicai w a Ltd rtateiiui^ lauueui. iu me ivauiapura uisinci was
held at Pelmadulla and it unanimously elected Urapola RatnajotiThero, the intervenient, to be the Viharadhipati of Sripadasthana. OnFebruary 18, another meeting which was held at Kiriel.l.a elected Moron-tuduwe Dhammananda Thero to be the Viharadhipati. The formerofficiated in that office from June, 1934. On a complaint made byDhammananda Thero, the Maha Nayaka Thero of Malwatta Vihare, thepetitioner, summoned Ratnajoti Thero to attend a meeting of the MahaSangha Sabhawa on August 27, 1934. The. intervenient refused to submitto the jurisdiction of this tribunal. On May 26, 1935, he was informedthat he had been expelled from the Sangha by the Maha Sangha Sabhawawhich inquired into his conduct 'in his absence.
On May 29, 1935, the Maha • Nayaka Thero wrote to the Registrar-General that he had removed Ratnajoti Thero’s name from his registerand requested the Registrar-General to make the necessary modificationunder section 41 (5) of the Ordinance. This request was not compliedwith, a similar request was made on October 12, 1936, with the same effect.In January, 1937, he asked for a writ of mandamus on the Registrar-General.
On February 23, 1937, Ratnajoti Thero prayed to be allowed tointervene. He submitted an affidavit which questioned the motives under-lying the application of the Maha Nayaka Thero.
H. V. Perera (with him J. R. Jayewardene, Muttucumaru, andGooneratne) in support of the petition.—Section 41 of the BuddhistTemporalities Ordinance, No. 19 of 1931, requires a register to be kept bythe Registrar-General and the Maha Nayaka. Further it provides thatthe Maha Nayaka must make the necessary corrections to keep it up todate. The intervenient was expelled on May 6, 1935, and the Registrar-General refused to alter his register. This is a test case, because bhikkusare expelled from the Order for misconduct.
[Soertsz J.—What happens if the Registrar-General does not modify ?]
The register is prima facie evidence of the facts contained therein. Inview of the fact that some people masquerade as bhikkus, those bhikkuswhose names do not appear in the register could be prosecuted under
187
Maha Nay aka Thero, Malwatta Vihare v. Registrar-General.
section 42. The Maha Nayaka, himself, is liable if he does not performhis duties. The Ordinance does not say how a bhikku ceases to be one. Ithas nothing to do with the ecclesiastical laws. The Registrar-General doesnot say that expulsion is one of the ways of ceasing to be a bhikku. Hehas quite rightly modified the register with regard to deceased bhikkus.
The Registrar-General is not required to make any inquiries to thecorrectness of the decision of the Maha Sangha Sabhawa which expelledthe intervenient. (Attadassi Unnanse v. RewataThe intervenient saysthat he did not subject himself to the jurisdiction of the Maha SanghaSabhawa and he cannot be disrobed except on his own voluntary will.
(Dharmarama v. Wimalaratna".) He can take appropriate proceedings ifhe is dissatisfied with the decision of the tribunal.
Counsel cited Woodhouse on Sissiyanu Sissiya Paramparawa, pp. 19, 22.
WijewardLene, S.-G. (with him Basnayake, C.C.), for the Registrar-General.—Under section 41 of Ordinance No. 19 of 1931, an-UpasampadaBhikku sends a form in duplicate countersigned by his Nayaka Theroto the Registrar-General. A Nayaka Thero may be the leader of ten ortwelve priests. There is no office as Nayaka Thero' or Maha NayakaThero known to Buddhist ecclesiastical law, which recognizes onlyUpasampada Bhikkus and Samaneras. The Registrar-General sendsone of the forms to the Nayaka Thero. The Registrar-General has tomake the forms into a bound volume. This bound volume correspondsto the Lekam-mitiya of the olden days. It is a mere collection of formsgiving the names of the bhikkus, the dates of robing, the dates of ordina-tion. When a person ceased to be a bhikku no entry was made to thateffect in the Lekam-mitiya.
The register kept under the Ordinance also does not provide for suchan entry. Section 41 (5) provides only for corrections, additions, andalterations. Obviously the word “ alterations ” has a very restricted-,meaning, as otherwise the Legislature would not have included“ corrections ” and “ additions ”. Withthis restrictedmeaning
“ alteration ” cannot connote “ deletion ”.
[Soertsz J.—Then what is meant by keeping the registers up to date ?]
The registers are kept up to date by making'the necessary corrections,additions, and alterations in respect of the particulars mentioned in theforms. The form does not provide for an entry to be made when abhikku disrobes himself.
Moreover, the Nayaka or Maha Nayaka cannot compel the Registrar?General to make the alterations. There is a duty imposed on theRegistrar-General but there is no corresponding right in the Nayaka Theroto compel the Registrar-General to perform that duty.
To interpret section 41 as making it obligatory on the Registrar-Generalto remove the name of a bhikku from his register at the request of theNayaka Thero against the wishes of the bhikku concerned, will place thebhikkus in a dangerous position. A Nayaka dissatisfied with a particularbhikku may report him to have ceased to be a bhikku-and the Registrar-General will then have to remove his name. The bhikku cannot thenhold himself out as a bhikku, for if he does so he makes himself liable tobe charged under section 45. Such an interpretation will lead to results7 {1923) 29 .V. L. 11. 331.* {1913) 5 Bal. Notes. 57.
188 SOERTSZ J.—Mafia Nay aka Thero, Malwatta Vihare v. Registrar-General.
not countenanced by Buddhist ecclesiastical law. No one can compela bhikku to disrobe himself. Even the Maha Sangha Sabhawa has no suchauthority. .It has no right of deprivation, and its decrees can only beenforced by ordering other bhikkus not to associate with the delinquentbhikku (Sumangala TJnnanse v. Dhammarakkita ‘).
Attadassi TJnnanse v. Rewata (supra)" is distinguishable. It dealt withthe office of incumbent and not with the status of a bhikku.
The present application is closely connected with the Viharadhipatishipof Sripadasthana. The Maha Nay aka Thero does not appoint such aViharadhipati nor can he dismiss him. A writ of mandamus will not begranted unless the application is made in good faith.
L. A. Rajapakse (with him Canakaratne, Ranawake, and Senaratne), forthe intervenient.—As this is an extraordinary remedy, there must be alegal right in the applicant himself to obtain a writ. If he happens tocome in as a Buddhist, then there must be a specific right. (Rex v.Lewisham Union “, Rex v. Peterborough Corporation ’)
Since the issue of a writ of mandamus is an equitable remedy, the Courtmust see whether its issue would cause someone to do something notin keeping with the law. The issue of the writ will cause incalculabledamage to the intervenient.
The bona fides of the petitioner must be inquired into.
Adam’s Peak Case4 gives the history of the claim to appoint theViharadhipati of Sripadasthana. Modification in section 41 (5) of theOrdinance will not include the cancellation of a name. It refers topartial alteration. (Shorter Oxford Diet., vol. I., p. 1269.)
The Ordinance does not enlarge the powers of a Nayaka.
H. V. Per era, in reply.—Only the ecclesiastical law as enforced inCourts must be considered (Saranankara Unnanse v. Indajoti Unnanse c.)Attadassi Unnanse v. Rewata Unnanse (supra) considers only thejurisdiction to expel a bhikku. Once the order of expulsion is there, theMaha Nayaka and the Registrar-General must make the necessaryalteration. A priest can cease to be a priest by expulsion. He would losehis civic rights as a bhikku (Devarakkita v. Dhammaratne *, Dharmaramav. Wimalaratna (supra) ). If the applicant is one of a special position, hecan ask for a writ of mandamus. (The King v. Manchester Corporation'.)
Cur. adv. vult.
May 27, 1937. Soertsz J.—
' This is an application for a writ of mandamus on the Registrar-General.The petitioner is the Maha Nayaka Thero of the Malwatta Vihare in Kandy.He complains that although acting in pursuance of the power given tohim by section 41 (5) of the Buddhist Temporalities Ordinance, No. 19 of1931, he had removed the name of Urapola Ratnajoti from his register onthe ground that that priest “ has been declared by the Karaka MahaSangha Sabhawa at Malwatta to be unfit any further to continue as abhikku ”, the Registrar-General to whom he duly conveyed that fact,refuses to fulfil his obligation under that section of the Ordinance“similarly to modify the registers he is required to keep”.
11 N. L. R. 360, at p. 365.* VanderHraaten Re.p. 215.{1897) 1 Q. B. 498.,5 (1919) 20 N. L. R. 385.141 L.J.Q.B.85..’{1918)21 X. L. R. 355.T {1911) 1 K. B. 560.SOERTSZ J.—Maha Nay aka Thero, Malwatta Vihare v. Registrar-General. 189
The facts are as follows:—On May 29, 1935, the petitioner wrote letterS 1 to the Registrar-General informing him that 'he had removedRatnajoti Thero’s name from his register and “ trusting that the Registrar-General would make the necessary correction in his ”. The Registrar-General, however, replied by letter R 2 of June 6, 1935, stating thatsection 41 (5) “ does not contemplate cases of expulsions of bhikkus fromthe Sangha Again, on October 12, 1936, the petitioner wrote letter Cinforming the Registrar-General that he had removed the. names of fivebhikkus from his register. Ratnajoti Thero’s name is among them. TheRegistrar-General by his letter D replied that he had modified his registerin respect of four of the five names mentioned but that “ no endorsementwas made in the declaration of Urapolla Ratnajoti, as the BuddhistTemporalities Ordinance does not contemplate expulsion from thepriesthood ”. The petitioner appears to have then addressed himselfto various authorities and quarters to secure the Registrar-General’scompliance with the law, but without success.
He came into Court with this application in January, 1937.
After order nisi had been issued on the Registrar-General, UrapolaRatnajoti submitted his petition and affidavit on February 23, 1937, andprayed to be allowed to intervene, and to be heard before final order wasmade. As he was vitally concerned in the matter,' he was given • theopportunity he sought and his Counsel was heard. The Solicitor-Generalwas heard on behalf of the Registrar-General.
I wish to say at once that the position taken up by the Registrar-Generalhas no legal or logical justification. In response to the request addressedto him by the petitioner, he made the necessary modifications in the caseof those bhikkus who were reported to have died or disrobed, but herefused to modify the register in regard to the bhikku who was reportedto hs * • C: been expelled on the ground that the Ordinance does notcontemplate expulsion from the priesthood. This sounds to me, if I maydescribe it so, like an anticipatory echo of the argument of the learnedSolicitor-General that, in law, a Buddhist priest can never be expelledfrom the priesthood. To use his own words “ once a priest, always apriest ”. Whether that is a correct proposition in pure Buddhistecclesiastical law is not as clear as the Solicitor-General sought to makeout. Mr. Perera quoted passages from the Vinaya Pitaka which seemed torefute that proposition. Be that as it may. There can be no doubt thatso far as the Courts are concerned, expulsions from the priesthood havelong been recognized. In Attadassi Unnanse v. Rewata *, it was held thata Buddhist Priest who has been expelled from the priesthood cannot claimto retain an incumbency on the ground of prescription. In. Terunnanse v.Abeynayake * it was held that a priest who had been expelled from thepriesthood for the commission of any parajika offence must be con-sidered to have suffered a “ degradation to the rank of a laymanWoodhouse in a footnote on page 18 of his Sissiyanu■ Sissiya Paramparauiaquotes from F. Spiegel as follows : Qui sacerdos cum femina coitum fecitnon amplius sacerdos erit, non sakyaputrae asscela sicut vir aliquis decisocapite amplius vivere non potest ita sacerdos postquam cum famina coitumhabuit, non amplius sacerdos erit. And parajika‘is only one of the groundsofexpulsion. The Solicitor-General however relied on a passage from the1 29 N. L. B. 36J.* (1908) 2 Matara Case 21.
190 SOERTSZ J.—Maha Nay aka Thero, Malwatta Vi hare' v. Registrar-General.
judgment of the District Court of Kandy which was affirmed, on appeal tothe effect that even the Maha Sangha Sabhawa the highest ecclesiasticalcourt of the Buddhist Church “ has no right of deprivation and its decreescan only be enforced in a negative way, namely, by an interdict orderingall other priests to boycott the delinquent by ceasing to associate withhim in any religious functions until he is brought back to the paths ofrectitute (Sumangala Vnnanse v. Dha.mmarakk.ita ) I do not findmuch support for the Solicitor-General’s argument in this passage, for thefact remains that whatever the process, negative or positive, the resultachieved is the same. The delinquent is for all practical purposes nolonger a priest. He may continue to perform the functions of a priest,but he has not the right to do so. He is a pretender “ until he is broughtback to the paths of rectitude ”. In my opinion, therefore, the refusal bythe Registrar-General to modify his register for the reason urged by theSolicitor-General is unwarranted. The reason put forward by theRegistrar-General himself that the Ordinance does' not contemplateexpulsions is hardly intelligible. The Ordinance does not expressly referto death or disrobing and yet the Registrar-General has taken notice ofthem. All the Ordinance does is to invest the Maha Nayaka Thero andthe Nayaka Thero of every Nikaya with the right and imposes upon themthe duty v to make all such corrections additions or alterations as may benecessary to keep up to date their' registers ”. Death and disrobing aretwo events that necessarily affect the “up-to-dateness” of the register.And no less must expulsion effect it, provided, of course, the expulsion isrecognized in Buddhist law. As I have already observed, our Courtshave always proceeded on the footing that Buddhist law recognizesexpulsions.
With regard to the contention that this would amount to giving thetwo Theros referred to arbitrary powers, it must be assumed that theLegislature was satisfied that ecclesiastical dignitaries of that eminencewould act with a proper sense of responsibility. If, however, the Legis-lature did not intend to give the Maha Nayaka Thero and the NayakaTheros such power, the remedy is surely in the hands of the Legislature.
The next point taken by the Solicitor-General and by the intervenient’sCounsel was that the “ corrections, alterations, and additions ” referredto in section 41 (5) are corrections, alterations and additions in the detailsset forth in Form A of the Ordinance, and that those words and the words“ modify ” and “ modification ” in the latter part of section 41 (5) showthat the total removal of a name from the register was not in contem-plation. I am quite unable to entertain this argument. The words“ corrections, alterations and additions …. as may be necessaryto keep up to date his registers of Upasampada bhikkus …. andthe relevant details regarding them ” suggest no doubt whatever to mymind that both total removal of the names of bhikkus’ and alterations,corrections and additions in and to the details were intended.
As for the bearing of the words “ modify ” and modifications ” onthe meaning of section 41 (5), it was strongly urged that these words donot fit the case of a removal of a form, but .only the case of some change. effected in the form. But that it is to overlook the fact that the sectionrefers not to “modifying” or “the modification of” forms, but of
i 11 .v. I., p at „ 36S.
SOERTSZ J.—Malta Nay aka Thero, Malwatta Vihare v. Registrar-General. 191
registers. And to me it seems beyond question that one “ modifies ” aregister or there is a “ modification ” of a register when one removes oneor more forms from it. Moreover, in the case of death, disrobing, orexpulsion it is not necessarily by the removal of the relevant form thatthe modification of the registers is effected. It may be effected by anendorsement on the form, and letter D seems to indicate that that is thecourse the Registrar-General takes.
I am, therefore, of opinion that if the matter stood in this position, andno other considerations arose, a clear case has been made out for the issueof a writ directing the Registrar-General to modify his registers. It is aduty the Statute casts upon him in imperative terms. It gives him nodiscretion and he is usurping functions he does not possess wheii' he actsin the manner in which he acted in this case. But the rejoinder suggestsitself at once that it would not have been possible for the Court to exerciseits discretion in the way in which it has been decided to exercise it in thiscase if the Registrar-General had complied with the petitioner’s request,rhe answer to that, as I conceive it, is that it is inevitable that sometimescurious results should flow from a strict adherence to the law. Never-theless the law must take its course. But when an application like thepresent finds its way into Court, albeit as a result of an obvious failure onthe part of some authority to discharge a duty imposed on him by law, itis subject to certain well-known principles and rules by which Courtsguide themselves in these matters. Some of those rules and principlesare set forth as follows in Halsbury’s Laws of England :—‘‘The writ ofmandamus is a high prerogative writ and the granting of it is a matter forthe discretion of the Court. It is not a writ of right and is not issued as amatter of course. Accordingly, the Court may grant the writ even thoughthe right in respect of which it is applied for appears to be doubtful, andon the other hand, the writ may be refused .not only upon the merits butalso by reason of the special circumstances of the case. The Court willtake a liberal view in determining whether or not the writ will issue ”.(10 Halsbury, p. 78.)
In view of this responsibility to which Courts are called, I have' considered most anxiously the facts that I have been put in possession ofby the affidavits of the different parties to this application and I havereached the conclusion that I should not use my discretionary power infavour of the petitioner in this instance because I am not convinced ofthe propriety of his motives.
The intervenient is a priest of longstanding and high status. He wasrobed in the year~1884 and ordained in 1900. He is the Anunayaka of theSabaragamuwa District, and at a meeting held in Pelmadulla on February14, 1934, he is said to have been elected unanimously by duly qualifiedvoters to the office of Viharadhipati of Sripadasthana. It is thiselection that has brought him into sharp conflict with the petitioner.The Maha Nayaka Thero questioned the validity of the intervenient’selection and held in favour of a rival candidate MorontuduweDhammananda Thero. Regardless of this, the intervenient entered uponthe office. The Maha Nayaka Thero retaliated by summoning him toappear before him and the Karaka Maha Sangha Sabhawa, and on hisfailure to do so, expelled him from the priesthood.
192 SOERTSZ J.-=—Maha Nay a lea Thero, Malwatta Vihare v. Registrar-General.
It. is not my purpose, and indeed it is hardly possible for me here, toenter into the merits of this matter. Suffice it to say that I am satisfiedon the material before me that there is a substantial dispute between theintervenient on the one side and Morontuduwe Dhammananda 'rfteroand the Maha Nayaka Thero on the other, for adjudication and determina-tion by a proper tribunal in a regular action. In this state of things,were I to make the order for a writ of mandamus absolute, I feel I shouldbe placing the intervenient in a position of great disadvantage, and evenof great danger. The modification of the register by the Registrar-General in obedience to the writ, will result by operation of section 41 (6)in the register so modified being prima facie evidence of the facts containedtherein in all Courts and for all purposes, and will render the intervenientguilty of an offence under section 42 of the Ordinance, and liable onsummary conviction to a fine of fifty rupees.
Bearing this in mind, and on a careful consideration of the whole matter,I have come to the conclusion that by reason of the special circumstancesof this case, I shouid exercise my discretion to refuse the application.
In regard to costs, I think the fairest order is that each party shouldbear his own costs.
Application refused.