104-NLR-NLR-V-61-A.-MUNASINGHE-Appelicant-and-W.-T.-JAYASINGHE-Government-Agent-Respondent.pdf
Munasinghe v. Jayasinghe
425
Present : T. S. Fernando, J.MUNASINGHE, Applicant, and W. T. JATA^ENGHE (Government
Agent), Respondent
S. G. 349—Application for Writs of Certiorari and Mandamus on the
Government Agent, Polonnaruioa
Certiorari—Public -Performances Ordinance {Cap. 134)—Rule, AS made under s. 3—Grant or refusal of licence by local authority—Is it a judicial act ?
By Rule A5 made in terms of section 3 of the Public Performances Ordinance—•
“ On receipt of an application for a licence, the local authority, after suchinquiry as he thinks fit, and after the payment of the fees mentioned inrule A3, may, if he sees no objection, grant, a licence, subject to the conditions,as he may consider necessary in the interests of the safety and the comfortof the public.’3
Meld, that the effect of the expressions tc if he sees no objection ” and “ aftersuch inquiry as he thinks fit ” is that the grant or refusal of a licence by thelocal authority is merely an executive (or ministerial) and not a judicial {or-quasi-jndicial) act. A writ of certiorai is, therefore, not available in respectof a refusal of the licence.
426
T. S. FERNAJrDO, J.—Munaeinghe v. Jayas-inghe
fib PPLICATIOK for Writs of Certiorari and Mandamus on the Govern-ment Agent, Polonnaruwa.
A. G. Nadaraja, -with 8. Ponniah, for the' applicant.
M. Tiruchelvam, Acting Solicitor-General, -with H. L. de Silva, CrownCounsel, for the respondent.
Cur. adv. wit.
May 29, 1958. T. S. Ferkashdo, J.—
The applicant who has heen refused an extension of a licence for anerection for th© purpose of public performances in the shape of exhibitionsof pictures by means of cinematographs applies to this court for mandatesin the nature of writs of certiorari and mandamus, certiorari to quashthe order of refusal and mandamus to direct the local authority to holdan inquiry and to grant the extension of the licence. The local authorityfor the place in which the public performances are to be given isthe Government Agent, Polonnaruwa, and the respondent was at allrelevant times the holder of that office.
Buies made in terms of section 3 of the Public Performances Ordinance(Cap. 134) regulate the manner in which licences may be granted- Therelevant rule is rule A5 published in Gazette No. 7,004 of 4th April, 1910—(see Vol. 2 of the Subsidiary Legislation, page 143)—and that part ofthis rule with which we are concerned in this application reads asfollows :—
“ On receipt of an application for a licence, the local authority,after such inquiry as he thinks Jit, and after the payment of the feesmentioned in role A3, may, if he sees no objection, grant a licence,subject to the conditions as he may consider necessary in the interestsof the safety and the comfort of the public.’*
There is no role dealing specifically with extensions of licences alreadygranted, and it was not disputed at the argument that the rule govern-ing the granting of licences reproduced above governed any extensionas well.
•The relevant facts are qaite simple and are admitted. The applicanthad been granted by the respondent a licence for an erection for exhibitingcinema films in respect of a period of six months expiring on 28th.February, 1957. This licence had been extended on two occasions, eachsuch extension covering a period of one month. The latter of the twoextensions was due to expire on 30th April, 1957, and the applicantapplied on 26th April, 1957, for a further extension to cover the period1st May to 31st August, 1957. This extension was at first refused, butsubsequently was allowed in part to enable the applicant to exhibitfilms up to 30th June, 1957. The applicant, not satisfied with anextension of the licence for a period of only two months, insisted on an
T. 3. 3TERNAXD0, J.—Munasinghe v. Jayasingh e
427
inquiry being held in respect of the application for the remaining twomonths. No inquiry of the nature demanded by the applicant washeld. The applicant contends that the respondent is by law under aduty to hold an inquiry while the respondent denies that there is anysuch legal obligation upon him. The application made to this Courtdepends upon the existence of a legal duty on the respondent to hold-an inquiry such as that contended for by the applicant, viz., an inquiryof which the applicant must have notice and at which he must he givenan opportunity of showing cause against the refusal of the extension.
The first question that arises upon the application to this Court iswhether the respondent as the local authority is performing a judicial•or quasi-judicial act in ordering or refusing the grant of a licence orwhether he is only performing an executive act. Mr. Nadaraja appearingfor the applicant has relied on the decisions in South- Western Bus Go.,Ltd. v. Arumugam£ and The King v. Woodhouse* in contending thatthe respondent’s function is judicial and not executive. In the firstof those cases Jayetileke J., after examining sections 4, 12 and 13 of theOmnibus Services Licensing Ordinance, No. 47 of 1942, concluded thatthe provisions of those sections implied that the character of thejurisdiction vested in the Commissioner of Motor Transport to grantor refuse a licence under that Ordinance was essentially judicial. Inthe second case, the Court of Appeal held that the granting or refusingof a licence by the justices at the general annual licensing meeting isa judicial act. The learned Solicitor-General has, on the other hand,drawn my attention to the observations of Lord Greene in AssociatedProvincial Picture Houses Ltd. v. Wednesbury Corporation3—a case inwhich the proprietors of a cinema theatre sought to obtain a declarationthat a certain condition imposed on the grant of permission for sundryperformances was ultra vires—-which indicate that the learned Masterof the Rolls thought that the grant of a licence by the Corporation ofWednesbury for the exhibition of cinema films Was not a judicial butan executive act. I was referred also to the remarks made by LordRadcliffe in Nakkuda Ali v. Jayaratne4 that a Textile Controller incancelling a licence granted by Mm to a person authorising him to dealin textiles, a controlled commodity, was not “ determining a question ”but merely “taking executive action to withdraw a privilege”. The•observations of the Queen’s Bench Division in M. v. Manchester LegalAid Committee5 that “ where a decision is that of a court then, unless,as- in the case, for instance, of justices granting excise licences, it isacting in a purely ministerial capacity, it is dearly under a duty to actjudicially ” would appear at first sight to doubt the correctness of thedecision in The King v. Woodhouse (supra). Be that as it may, authoritiescan be quoted in support of the view that the grant or refusal of certainkinds of licences has been held to be a judicial act and of other kindsof licences has been considered as amounting to the performance onlyof an executive act. The decision whether the respondent in the case
{1947) 48 N. i. B. 385.* {1947) 2 A. E. B. at 682.
L. B. {1906) 2 K. B. D. 501.4 {1950) 51 N. L. B. at 463.
{1952) 1 A. 3£. B. at 489.
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T.FERNANDO, J.—Munasinghe v. Jayaainghe
before me -was performing a judicial (or quasi-judicial) as opposed to anexecutive (or ministerial) act must, I think, depend ultimately on anexamination and interpretation of rule A5 already referred to above.
It will be observed that the local authority may, if he sees no objection,grant a licence. The grant or refusal is, of course, in the discretion ofthe local authority; but the words “if he sees no objection”, whilethey may on a cursory reading of them appear superfluous, would seemto require the local authority, before granting a licence, to considerwhether there are objections to such a grant. Does the fact that he isobliged to consider whether there are objections to the grant imposeon him a duty to act judicially 1 His decision in the matter of granting-a licence must obviously be actuated in whole or in part by questionsof policy or expediency and he is, therefore, in my opinion, performing-merely an executive act when he decides to grant or refuse a licence.The conclusion I have reached on this point does not, however, disposeof this application. It is now well settled that even when the decisionis that of an administrative (as opposed to a judicial) body and isactuated in whole or in part by questions of policy, “ the duly to actjudicially may arise in the course of arriving at that decision ” —see
v. Manchester Legal Aid Committee (supra). Is there anything in raleA5 or in the context thereof which can be said to impose upon therespondent an obligation to act judicially in the course of arriving athis administrative decision ? The rule permits him to exercise hisdecision " after such inquiry as he thinks fit”. The grammatical andnatural construction of this phrase leads me to infer that he must make—I refrain advisedly from saying hold—an inquiry and is not free todispense With an inquiry altogether. But the very rule which obligeshim to make inquiry has constituted him the sole judge of the natureof the* inquiry that should be made by him. The position might wellhave been different if the material words in the rule were “ after inquiry ”and not “ after such inquiry as he thinks fit The words being whatthey are, it is not possible without giving a strained construction to thephrase to conclude that he is obliged to hold an inquiry in the natureof a judicial inquiry of which the applicant must have notice. I amof opinion that it was competent in law for the respondent to make aninquiry in the nature only of an investigation to ascertain whether there-could be any valid objection to the grant of the licence.. The respondent’saffidavit discloses that he has made investigations into the desirabilityof extending the licence granted to the applicant and he has thereforecomplied with the legal requirements of the rule. As I am of opinionthat the respondent was not -under a duty to act judicially in the courseof arriving at what I hold to be an administrative decision, it followsthat a writ of certiorari is not available to the applicant. The respondenthas performed his statutory duties and therefore no occasion arises toconsider the issue of an order in the nature of a writ of mandamus.
The application therefore fails and must be dismissed with costs whichI fix at its. 300.
Application dismissed.