069-NLR-NLR-V-72-A.-G.-FERNANDO-Petitioner-and-W.-W.-D.-DHARMASIRI-Chairman-Urban-Council-Wa.pdf
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G. P. A. SILVA, A.C.J.—Fernando v. Dharmasiri
1969 Present: G. P. A. Silva, A.C.J., and Siva Snpramaniam, J.
A. G. FERNANDO, Petitioner, and W. W. D. DHARMASIRI(Chairman, Urban Council, Wattegama), Respondent
S.C. 116/69—Application for Writ of Mandamus in D.C. Kandy,
7617 jL.
Mandamus—Whether it lies when a specific statutory remedy is available—Erectionoj a building in an Urban Council area—Certificate of conformity—Refusal ojChairman of Council to issue it despite order of tribunal of appeal—Remedythen of person who erected the building—Housing ami Tenon ImprovementOrdinance (Cap. 2GS), ss. 15, IG, SS, 95.
Mandamus does not lio where there is a specific statutory remedy availableproviding for a mode of enforcement.
The Chairman of an Urban Council refused to issue a proper certificate ofconformity to the petitioner in respect of a building although he had beenordered to issue one by the District Court upon an appeal preferred to it by thepetitioner in terms of section 16 of tho Housing and Town ImprovementOrdinance. Thereupon the petitioner made tho present application for a writof mandamus on tho Chairman directing him to issue the certificate ofconformity.
Held, that mandamus was not available to tho petitioner inasmuch ns section95 of the Housing and Town Improvement Ordinance provided a specialstatutory remedy whereby it was incumbent on tho petitioner to follow thoprocedure laid down in tho Civil Procedure Code for the enforcement of adecree.
Application for a writ of mandamus on the Chairman,Urban Council, Wattegama.
Ninial Senanayake, with Sam Silva, for the petitioner.
II: Wanigalttnga, with J. Weerasekera and K. Tiruchelvam, for therespondent.
Cur. adu. vult.
July 26, 1969. . G. P. A. Silva, A.C.J.—
The petitioner in this application is the owner of certain premises atWattegama which is within the area of authority of the WattegamaUrban Council and the respondent is the Chairman of the Urban Council.On the 26th December, 1962 the petitioner submitted a plan of aproposed building consisting of a row of five tenements for approval bythe respondent- as the competent authority under the Housing and TownImprovement Ordinance (Ch. 2CS of the New Legislative Enactments).After giving due notice on 2nd June 1963 in terms of section 10 (a) of the
G. P. A. SILVA, A.C.J.—Fernando v. Dharmasiri
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said Ordinance, the petitioner commenced building operations andcompleted the building in Fcbrua^', 19C4. On 24th February, 1964, interms of section 15 (2) of the said Ordinance, the petitioner applied to theChairman for a Certificate of Conformity to enable him to occupy thesaid buildings. As there was no response to this application the peti-tioner preferred an appeal to the District Court, which was constitutedthe tribunal of appeal for the purpose by section S3 of the said Ordinancewith a view to obtaining an order from the District Court requiring theRespondent to issue the said Certificate of Conformit}'. On the 23rdNovember 1968 the parties appear to have arrived at a settlement andthe District Judge made the following order. “By consent it is nowagreed that the Chairman of the Defendant-Council will issue a certificateof conformity to the Plaintiff in respect of the building which is thesubject matter of this application on or before 30.11.68
In view of the above I allow the appeal of the plaintiff as aforesaid anddirect the Chairman of the Defendant-Council to issue_the" certificate' ofconformity as stated above.
This, however, is without prejudice to the rights of parties in respectof the land.”
On the 30th November 1968 the respondent issued in terms of theorder of the tribunal a document which purported to be a Certificate ofConformity which permitted him to occupy the house but in which,certificate the words, “ conforms with the requirements of the UrbanCouncil ” were deleted by the respondent. As the words which •weredeleted were themselves the most material words which the petitionerrequired if the Certificate was to have the effect of the Certificate ofConformity, the petitioner wrote to the respondent a letter informinghim that he should issue a Certificate of Conformity in terms of section15 of the Housing and Town Improvement Ordinance which was theonly Certificate contemplated by the tribunal of appeal. To this letterthe respondent did not reply. These were the facts that led up to theapplication made to this Court for a Writ of Mandamus on the respondentdirecting him to issue a Certificate of Conformity in accordance withthe provisions of section 15 (1) (stc) of the Housing and TownImprovement Ordinance in respect of the building referred to.
Generally speaking the remedy by way of mandamus, which in anyevent is a discretionary remedy granted by this Court, would be availablewhere there is a specific legal remedy without a mode of enforcing it. Insuch an instance the absence of a mode of enforcement would be adefect in the law and the procedure by way of Writ would step in tosupply that defect. Counsel for the petitioner has submitted that thisremedy would be available not only in cases where there is no provisionfor the enforcement of a public right but also where the remedy providedby law is not equally effective. In other words he argues that in order
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G. P. A. SILVA, A.C.J.—Fernando v. Dharmasiri
to exclude the remedy by way of a Writ of Mandamus there must be analternative and effective remedy. In the case of Sirisenci v. Kotaivera-Udagama Co-operative Stores Ltd.,1 it was held by Gratiaen J. that eventhough an alternative remedy was also available a Writ ofCertiorari would lie to quash the proceedings of a tribunal whichflagrantly exceeded the limited statutory powers conferred on it. Thiscase has only a very remote bearing on the princijde involved in thepresent application. Gratiaen J. was considering in that case the legalityof a purported award made by an arbitrator under the Co-operativeSocieties Ordinance. The award was challenged by the petitioner on theground that he had ceased to be an officer of the Society at the relevantdate and that the purported reference to arbitration was ultra vires thepowers of the Registrar of Co-operative Societies under Rule 29. As Rule29 did not empower the compulsory reference to arbitration of a disputebetween a registered Co-operative Society and a person who had ceasedbefore the purported reference to be an officer of the Society, it was clearthat the award which was challenged by the petitioner was one whichavos made in excess of . the statutory jurisdiction which the secondrespondent purported to possess. Gratiaen J. in deciding that caseappears to have been guided by the observations made by Cnklccote L.J.and Humphreys J. in the case of JR ex v. Wandsworth Justices, ex parteLeid 2 in regard to the availability of an order of Certiorari even wherean appeal lay. In allowing the application Gratiaen J. observed : “ It isnot in dispute that a public officer and an extra judicial tribunal, actingno doubt, through ignorance, have flagrantly exceeded the limitedstatutory powers conferred on them by tiic provisions of the Co-operative
Societies OrdinanceI consider that there is no compelling
principle of law which fetters this Court’s discretion to quash theillegal award”
From a close examination of the judgment of Gratiaen J. and theobservations of Caldecote L.J. and Huniphrej'S J. it would appear thatthe principle that they intended to enunciate was that a Writ of Certiorariwas an appropriate remedy in cases where there was a clear excess ofjurisdiction by an inferior tribunal. This is a special remedy intended togrant relief to a person who has suffered by reason of the decision of atribunal which had no jurisdiction to make any order at all. What thesuperior court in fact docs in that situation is not to set aside or revisethe actual finding of .the inferior tribunal but to declare the order madeto be null and void. Although it has been customary for appellatecourts to deal .with excesses of jurisdiction, a careful analysis of theprovisions of the Courts Ordinance relating to the exercise of apjjcllatejurisdiction may well justify the view that Courts of Appeal can properlycorrect only errors in fact or in law committed by an inferior court in the-lawful exercise of its powers and that, where there is no lawful exerciseof such powers, that is, where it acts without jurisdiction, the appropriateremedy is by way of a Writ of Certiorari. For, there is a clear distinction
1 (1940) 51 A'. L. F. 2G2.
2 (1942) 1 A. E. If. 50.
G. P. A. SILVA, A.C.J.—Fernando v. Dharmasiri323
between an error committed by a Court in assuming a jurisdiction whichit does not possess, resulting in subsequent proceedings being a nullity,and an error committed by a Court in matters of law or of fact after aproper .assumption of jurisdiction. According to what I have referred tons a justifiable view the correction of the former would fall within thescope of a Writ of Certiorari and the latter within the scope of theappellate court. It does not appear from the judgments of Caldccote L.J.or Humphreys J. or that of Gratiaen J. that any argument on the basis ofsuch a distinction was advanced for consideration by them. In thatevent they may well have reached the same conclusion they did butthrough a different approach. Thus no right of appeal being availableto revise a nullity committed by a tribunal acting in excess of jurisdiction,that is, without jurisdiction, the decision would have been in favour ofCertiorari on the basis of the general principle that was expressed intheir judgments, namely, that as a rule Certiorari lay only where theremedy of appeal was not available. A consideration of the converse
case would also support the view-I ha ve-taken For, in the cases
referred to, if the application for Certiorari was against an error of lawcommitted by the tribunal after a proper assumption of jurisdiction, Ishould imagine that such application woidd have been refused on theground that the applicant should have sought his appropriate remedy byway of appeal. If the view that I have expressed is correct, it seems tome that the general principle that Certiorari will not lie where there isan alternative remedy would still prevail because an appeal proper willnot lie where there is an excess of jurisdiction. A further reason thatinclines me to treat that as the more reasonable view is because it isgenerally accepted that remedies by way of Writs are extraordinaryremedies which have been evolved from their inception to meet situationswhere no other remedy was available and it is very doubtful whetherthat remedy would have been extended to cases where there was analternate remedy.
It is to be noted that even while coming to the conclusion he did inthat case Gratiaen J. conceded the general principle that a superiorcourt will not as a rule make an order of Mandamus or Certiorari wherethere is an alternative and equally convenient remedy. Even if thequestion adverted to earlier is a matter of doubt, such doubt can nrisoonly in respect of a Writ of Certiorari but not in respect of a Writ ofMandamus, the issue of which is governed by the general principle thatthe applicant must be without any other remedy. Where such otherremedy is not merely one at common law but is one prescribed by thestatute itself which created the right, there is no escape for an aggrievedparty from pursuing the remedy laid down in the statute.
<•*
In the present application there are some further difficulties, evenassuming that the existence of an alternative remedy does not precludethe remedy of Mandamus. For, it has been made to this Court not inthe first instance but after proceeding half way and obtaining an orderfrom the appropriate tribunal which granted the petitioner’s prayer. As
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G. P. A. SILVA, A.C.J.—Fernando v. Dharmasiri
counsel for the respondent has submitted with justification, I think, theapplication is in effect for the execution or enforcement of the orderobtained from the tribunal of appeal. I am not aware of, nor Hascounsel for the petitioner brought to the notice of this Court, anydecision which supports the view that a Writ of Mandamus is availablefor this purpose. Document A which contains the order of the tribunal;and Document B which is the purported Certificate of Conformity issued,in compliance with that order demonstrate that the petitioner .'hassought the Writ of Mandamus only because the certificate issued is,notthe certificate contemplated by section 15 of the Housing and TownImprovement Ordinance or, as it is submitted by counsel, because
the respondent has refused to comply with the Order.•?
– – ♦*. •
Section 95 of the Ordinance provides that any award of the tribunalshall be enforced by the District Court as if it had been a decree or orderof that Court. In view of-this provision, it was incumbent on thepetitioner to follow the procedure laid down in the Civil Procedure Codefor the enforcement of a decree. He should therefore follow Lthatprocedure in the first instance with a view to enforcing an award made bythe tribunal of appeal. It was sought to be argued that that procedurewas inapplicable to an order of the type that’ the petitioner had toenforce. It would, I think, be premature and undesirable for this Courtto decide that question at this stage. If for an}' reason the petitionerexhausted this procedure and, having failed to achieve his object owingto a hiatus in the procedure provided, thereafter approached this Courtthe problem of course would be different. The petitioner has admittedlynot sought the aid of these provisions but instead has come to this Courtapplying for a Writ of Mandamus for enforcement of an order whichshould be executed as a decree of the District Court. Not only, is thisprocedure unknown to law but the procedure is being resorted to in theteeth of specific provision for the enforcement of an order by the tribunalhaving been made by the statute which created the rights and obligationsinvolved. Counsel for the respondent cited to us the case of The Queen■ v.The Victoria Park Company1 in which this precise question was con-sidered. In the course of the judgment- Lord Denman C.J. observed :—
“ But, assuming the judgment to be correctly entered up in.'that form,and we think-it docs not lie in the mouth of the plaintiff to contend thatit is not-, it seems to us to form a decisive answer to the first- part at leastof the application : because the plaintiff then has the ordinary legalremedy of an execution ; and we cannot direct a Mandamus to go orderingthe payment to be made, merely because, under the circumstances theexecution may produce no fruits.” The answer which Lord Denmanconsidered to be decisive on the question raised in that ease would applywith greater force to the present case in view of the special statutory-provision making it obligatory on the District Court to enforce an awardof tho tribunal as if it had been its own order or decree. By necessary-implication, this provision also directs the holder of the award to seekthe assistance of the District Court for its enforcement.
1 {IS41) I Q. D. -J.SS.
SIVA SUPRAMANIAM, J.—Fernando v. Dhannasiri
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Counsel for the petitioner has submitted to us a number of otherdecisions in support of his contention. On an examination of thesedecisions it would appear that they lend some support to his contentiononly in a limited way and in relation to certain special situations. Theydo not however support a general proposition that Mandamus will alsolie despite the presence of other remedies. It is hardly necessaryto embark on a detailed consideration of these decisions as theydo not persuade me to take a view contrary to what I have alreadyexpressed.
The application is accordingly dismissed with costs.
SrVA SUPRAMAKIAM, J.—
I agree to the order proposed by My Lord the Acting Chief Justice.The facts are fully set out in his judgment.
The right which the petitioner seeks to enforce in this case and the"corresponding duty imposed on -t-he-respondent -arise,_not—under thecommon law, but under S. 15 of the Housing and Town ImprovementOrdinance (Cap. 26S). The same statute prescribes the remedy fordefault or breach of that duty. It provides as follows under S. 16 :—
"Any person aggrievedby any refusal of a certificate of the
Chairman, or by any delay of the Chairmanin complying
with the provisions under S. 15, may appeal to the tribunal of appeal,and the tribunal on any such appeal (subject always to the provisions ofthis Ordinance or any other enactment) may make such order as it maydeem just." S. 95 provides that " any award or order of the tribunalshall be enforced by the District Court as if it had been a decree or orderof that Court.”
When the respondent failed to issue the certificate of conformity, thepetitioner proceeded under the statute and appealed to the DistrictCourt of Kandy which, in terms of S. S8 (1) of the Ordinance, is thetribunal of appeal for the area in question. He obtained an order fromthat Court directing the respondent to issue a certificate of conformity interms of S. 15 of the said Ordinance. His substantial complaint is thatthe respondent has not complied with that order.
In paragraphs 17 and 18 of his petition he has averred as follows:—
" 17. The petitioner respectfully submits that the respondent rsunder a statutory duty to issue a certificate of conformity in accor-dance with the provisions of S. 15 of the Housing and Town Improve-ment Ordinance and is under a duty to comply with the order made bythe tribunal of appeal in D.C. Kandy No. 7547/Land. 18. Thepetitioner respectfully submits that it is illegal and unlawful for thorespondent to fail to carry out the order of the tribunal of appeal."
The petitioner, however, failed to take the further steps available to himunder the statute to have the order of the tribunal of appeal enforced.He has, instead, applied to this Court for a mandate ** directing the
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SIVA SUPjRAMA2CI.AM, J.—Fernando v. Dharmasiri
respondeat to issue the certificate of conformity in accordance with.• the provisions of S. 15 (I) of the Housing and Town ImprovementOrdinance
The learned counsel for the petitioner conceded that he is not entitledto apply to this Court for a writ of mandamus to compel the respondentto carry out the order of the District Court-. He submitted, however,that it was open to the petitioner to have applied to this Court in thefirst instance for a mandate when the respondent failed to comply withhis statutory duty under S. 15 of the said Ordinance and the fact thathe followed the procedure under S. 1G up to a certain stage is no bar tohis 2D resent application.
The cpicstion, however, is whether the petitioner could have appliedto this Court in the first instance for a mandate. In the caseof The Wolverhampton New Waterworks Co. v. Hatvkesfonl1 Willes J.said :—
“There arc three classes of cases in which a liability may beestablished founded upon a statute. One is, where there was a liabilityexisting at common law, and that liability is affirmed by a statutewhich gives a special and peculiar form of remedy different from theremedy which existed at common law: there, unless the statutecontains words which expressly or by necessary implication exclude thecommon law remedy, the party suing has his election to piu*suc citherthat or the statutory remedy. The second class of cases is, where thestatute gives the right to sue merely, but provides no particular formof remedy : there, the party can only proceed by action of commonlaw. But there is a third class, viz. where a liability not existing atcommon law is created by a statute which at .the same time gives aspecial and particular remedy for enforcing it. The remedy providedby the statute must be followed, and it is not competent to the partyto pursue the course applicable to cases of the second class.”
The present case falls within the third class referred to by Willes J.
The case of Pasmore el al. v. The Osicaldtivistle Urban District Council2is in point. By S. 15 of the Public Health Act 1S75, “every localauthority shall keep in repair all sewers belonging to them, and shall causeto be made such sewers as may be necessary for effectually drainingtheir district for the purpose of this ActBy S. 200, “ Where complaintis made to the Local Government Board that a local authority has made
default in providing their district with sufficient sewersthe Local
Government Board, if satisfied after due inquiry that the authority has
been guilty of the alleged default, shall make an order” The
plaintiff who was not satisfied with the adequacy of the sewers to carrythe liquids proceeding from his factories made no complaint to the LocalGovernment Board but claimed a mandamus commanding the local
1 G Common Bench Reports („Y.*S.) 3-3G tit p. 350.~ (7SOS) Appeal Cases 3S7.
SIVA SUPRA MAXI AM, J.—Fernando v. Dharmasiri
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authority to cause to be made such sewers as may be necessary foreffectually draining their district. Charles J. allowed the writ on theground that S. 299 had no application to a case where the question waswhether the defendants were bound to provide sewers for liquids flowingfrom the plaintiff’s factories at all, and that, unless excluded expresslythe plaintiff had a right to the judgment of a court of law upon thematter. He also held that the section introduced by the words “ Wherecomplaint is made ” did not make it imperative on the plaintiff to makea complaint to the Local Government Board and to submit to theirinterpretations of the statute l. The Court of Appeal, however, reversedthe decision and dismissed the application for mandamus on the groundthat the plaintiffs’ only remedy was under S. 299 of the Act 2. Thedecision of the Court of Appeal was affirmed by the House of Lords. Inthe course of his speech 3 Lord Halsbury said :—
“ The principle that where a specific remedy is given by a statute, itthereby deprives the person who insists ujion a remedy of any otherform of remedy than that given by the statute, is one which is very-familiar and which runs through the law. I think Lord Tenterdenaccurately states that principle in the case of Doe v. Bridges i. Hesays: ‘ where an Act creates an obligation and enforces theperformance in a specified manner, we take it to be a general rulethat performance cannot be enforced in any other manner
In the case of Wilkinson v. Barking Corporation 5 Asquith L.J.observed :
It is undoubtedly good law that where a statute creates a rightand, in plain language gives a specific remedy or appoints a specifictribunal for its enforcement, a party seeking to enforce the right mustresort to that remedy or that tribunal and not to others.”
The principle laid down in the aforesaid cases was adopted by thisCourt in the case of Hendrick Appuhamy v. John Appuhamy 6.
In the present case, as stated already, the same statute which createsthe right in favour of the petitioner and the correlative obligation on thepart of the respondent lias prescribed the remedy to which the petitioneris entitled on a breach of the obligation by the respondent. The rule oflaw enunciated above provides a sufficient answer to the petitioner’sclaim for mandamus. The application fails and must be dismissed withcosts.
Application dismissed.
1 (1S97) Appeal Cases 3S4.* (1S31) IB. <L- Ad. 847,859.
* Ibid. p. 625.* {1948) 1 K. B. 721.
» {1898) Appeal Cases p. 394.9 {1966) 69 N. L. B. 29.