A. S. M. HASSAN, Petitioner, and THE CONTROLLER OF IMPORTS AND EXPORTS, Responde

035-NLR-NLR-V-70-A.-S.-M.-HASSAN-Petitioner-and-THE-CONTROLLER-OF-IMPORTS-AND-EXPORTS-Responde.pdf


T. S. FERNANDO, J.—Hassart v. The Controller of Imports and Exports 149
1967Present: T. S. Fernando, J., and Alles, J.A. S. M. HASSAN, Petitioner, and THE CONTROLLER OF IMPORTS
AND EXPORTS, Respondent
8. C. 453 of 1966—Application for Writs of Certiorari and Mandamus
Import and Export (Control) Act (Cap. 236)—Sections 2 and 3—Import (Licensing)Regulations, 1963, Regulation 2—Issue or cancellation of licences thereunder—Controller's power is purely executive and not judicial—Licensee need not beheard before his licence is cancelled—Natural justice—Certiorari.
Regulation 2 of the Import (Licensing) Regulations, 1963, made by theMinister under section 2 of the Import and Export (Control) Act, reads asfollows :—
“ No person shall import goods of any description into Ceylon exceptunder the authority of a licence granted by the Controller and subject tosuch conditions as may be specified therein. ”
Held, that Regulation 2, more especially when it is read with a Notice that“ the Controller may at his discretion refuse to register any application or cancelany registration already effected ”, confers on the Controller the widest possiblepowers in the matter of the issuing of licences. In issuing licences or cancellinglicences already issued he is performing no more than a purely executive oradministrative function answerable only to the Minister who appointed himand who in turn is answerable to Parliament in respect of the administrationof the Act by officers appointed by him. As the Controller has no duty to actjudicially, he is not bound to afford a person an opportunity of showing causeagainst the cancellation of a licence already issued to him. Accordingly,certiorari does not lie to quash an order made by the Controller cancelling theregistration of a person as a Ceylonese Trader.
APPLICATION for writs of certiorari and mandamus against theController of Imports and Exports.
H. W. Jayexvardene, Q.C., with S. Sharvananda, N. Kasirajah and
Chakradaran, for the petitioner.
L. de Silva, Crown Counsel, with P. Naguleswaran, Crown Counsel,for the respondent.
Cur. adv. vult.
July 31, 1967. T. S. Fernando, J.—
The Import and Export (Control) Act (Cap. 236) which came into forceon 8th April 1955 for the purpose of providing for the control, inter alia,of the importation and exportation of goods made provision in section 3thereof for the appointment of officers (including a Controller of Imports
—H 10108(12/67)
160 T. S. FERNANDO, J.—Hassan v. The Controller of Imports and Exports
and Exports) for the purpose of the said Act. By section 2 (1) of the Actthe Minister is empowered to make, with the approval of the Cabinet ofMinisters, regulations providing for the prohibition or regulation of theimportation or exportation of goods of any specified description ; bysection 2 (2) he is empowered to make, with similar approval, regulations
restricting to persons of any prescribed class or description the issueof licences required by any scheme of control that may be introduced,
specifying the persons or authorities by whom and the circumstancesin which licences may be issued, refused, cancelled or suspended, and
providing for a right of appeal to the Minister against any decision ofthe Controller ; and section 2 (4) requires the regulations that are madeunder section 2 to be published in the Gazette and provides for the date onwhich they shall come into force. The regulations are required to bebrought before both Houses of Parliament for approval, and any regulationwhich fails to receive such approval is deemed to be rescinded as froma date indicated in section 2 (4).
The Minister, on 10th January 1963, acting in terms of section 2,made certain regulations called the Import (Licensing) Regulations, 1963(published in Gazette No. 13,477 of 11th January 1963), and regulation2 of these Regulations is reproduced below :—
“ No person shall import goods of any description into Ceylon exceptunder the authority of a licence granted by the Controller andsubject to such conditions as may be specified therein.”
It is not disputed that of the schemes of control introduced by theController one was the restriction to a particular class of persons describedas Ceylonese Traders of the issue of licences to import goods described as“ Ceylonised Goods ” from certain areas described as “ Ceylonised Areas”.As part of that scheme the Controller published in Gazette No. 14,152 of27th August 1964 a notice R1 described as Import Control Notice No. 18of 1964 calling for applications for registration as Ceylonese Traders. Itwas expressly declared in the said notice that “ the Controller may at hisdiscretion refuse to register any application or cancel any registrationalready effected ”, and that “ an appeal against the decision of theController should be lodged with the Minister within a period of tendays from the date of communication of the decision The petitioner on4th September 1964 made an application for registration pursuant to thisnotice and received from the Controller letter PI of 6th January 1965informing him that he is registered provisionally as a Ceylonese Traderfor 1965 for the purpose of trading with “ Ceylonised Areas ” and inrespect of “ Ceylonised Goods
Under the scheme of control allocations of import quotas were to bemade to registered Ceylonese Traders based upon their declared importsof the respective classes of goods during certain specified previous years.The petitioner, after his provisional registration P 1, received licences toimport certain goods, but was informed by the Controller by letter P 2
T. S. FERNANDO, J.—Hassan v. The Controller of Imports and Exports 151
of 22nd April 1965 that, as certain specified customs certificates submittedby him to substantiate bis statements of import declarations have beenfound to contain untrue particulars, the issue of import allocations andlicences to him is being stopped with immediate effect. P2 was followedby letter P 4 of 17th May 1965 in which the Controller informed thepetitioner that the certificate of provisional registration of 6th January1965 is cancelled as he had obtained import quotas by making falsedeclarations.
The petitioner appealed unsuccessfully to the Minister against thisorder of the Controller, and on 2nd November 1966 made this presentapplication seeking the issue by this Court of mandates in the nature ofWrits of Certiorari and/or Mandamus quashing (by way of certiorari) theorder (1) of cancellation of his provisional registration as a CeyloneseTrader and (2) of cancellation of the import allocations and licences issuedto him and directing (by way of mandamus) the Controller (1) to restorehis registration and (2) to restore to him the cancelled allocations andlicences, and also to issue to him all allocations and licences he may beentitled to in the future by virtue of his registration as a Ceylonese Trader.The delay in seeking the intervention of this Court is explained by thecircumstances that the petitioner had first to exhaust the other remedyof appeal to the Minister available to him and that the Minister made hisorder only as late as October 1966.
We are now in the year 1967 and, even if the petitioner could havesatisfied us that there is here a case meriting the intervention of this Court,Mandamus is of no avail to direct the Controller to restore the cancelled1965 licences inasmuch as an order to that effect would now provefutile. Fully appreciating the position resulting from the long delay,Mr. Jayewardene stated that the petitioner would be content if the orderof cancellation of his registration as a Ceylonese Trader is quashed because,as he stated, the issue of allocations and licences follows and is dependenton the maintenance of the registration which is the recognition of thepetitioner’s status.
It is not disputed by the Controller that he did not afford the petitioneran opportunity of showing cause against the cancellations of the licencesand the registration. A failure to observe the well-known rule of naturaljustice is therefore admitted, but it is the position of the Controllerthat the rule does not require to be observed in this case where he hadno duty to act judicially. Whether there was such a duty mustultimately depend on an interpretation of the relevant statute andregulations having the force of law. The only law governing the issue ofimport licences is to be found in the Import (Licensing) Regulationsearlier referred to by me. Regulation 2 which I have reproduced aboveconfers on the Controller the widest possible powers in the matter of theissuing of licences. In issuing licences or cancelling licences alreadyissued he is performing no more than a purely executive or adminis-trative function, answerable only to the Minister who appointed him
162 T. S. FERNANDO, J.—Haasan v. The Controller of Imports and Exports
and who in turn is answerable to Parliament in respect of the adminis-tration of the Act by officers appointed by him. While the powerconferred on the Controller of Imports bears a close resemblance to thepower given by the relevant regulations to the Controller of Textilesand examined by the Privy Council in the case of NakJcuda Ali v.Jayaratne 1, it may be described as even less fettered than the powergiven to the latter. In NaJcJcuda All’s case the power of the Controllerof Textiles to cancel a licence was conditioned—see Regulation 62—bythe Controller having “ reasonable grounds to believe that the dealeris unfit to be allowed to continue as a dealer ”. Here the power of theController of Imports is unconditioned at any rate by law. I must ofcourse presume that officials of this rank act with due responsibilityand, even where they are taking purely executive or administrativeaction, it must not be assumed that they are free to act unfairly. WhileI would welcome the day when the rules of natural justice are observedeven in the performance of purely executive action, I cannot overlookthe circumstance that the law has hitherto not recognised the existenceof such a duty ; and, indeed, in all probability there wall always remaincertain classes of executive action where it would be impracticable todefer such action until the party to be affected is heard in oppositionthereto.
It was apparent at the very outset of the argument before us that thepetitioner had to fail unless he could satisfy us that Nakkuda All’s case(supra) was not applicable. It is a decision of the highest appellateCourt of this Country and is binding on us. The position there wasthat dealings in textiles were restricted to such persons as held textilelicences issued by the Controller of Textiles, and in effect a dealer whocould not get or who lost a textile licence was out of the textile businessso long as the scheme continued in operation. As Lord Radcliffe putit—see p. 463—“ In truth when he (the Controller) cancels a licence heis not determining a question ; he is taking executive action to withdrawa privilege ”. It is undoubtedly correct, as Mr. Jayewardene submitted,that this decision has been the subject of some criticism from academiclawyers, one of whom referred to it as ushering in the twilight of naturaljustice2. In a court of law, however, it is a decision of very highauthority and in a Ceylon court it remains of the highest and bindingauthority.
Our attention was invited also to certain criticisms of this case in thejudgments of the House of Lords in Ridge v. Baldwin 3. It must, however,be noted that only Lord Reid of the five judges who heard that casedoubted—see p. 79—the correctness of the Nakkuda Ali decision. LordEvershed dissented—see p. 94—from the view taken by Lord Reid thatthe decision ought not to be followed. The only other judge whoreferred to it, Lord Hodson, expressed no definite view—see p. 133—preferring, as he said, to “ retreat to the last refuge of one confronted1 (1950) 51 N. L. B. 457.* Professor E.W.B. Wade in (1951) 67 L. Q. B. at 103.
• (1964) A. C. 40.
T. S. FERNANDO, J.—Hassan v. The Controller of Imports and Exports 153
with as difficult a problem as this, namely, that each case depends onits own facts In the recent case of Durayappah v. Fernando *, LordUpjohn, giving the reasons of the Privy Council and referring to LordReid’s analysis of the case of Rex v. Electricity Commissioners 2 in Ridgev. Baldwin {supra) stated that “ it should not be assumed that theirLordships necessarily agree with Lord Reid’s analysis of that case orwith his criticism of the Nakkuda case ”.
Mr. Jayewardene finally sought to gather some support for thepetitioner from the decisions in what are called the Livelihood Cases,particularly those of Lawlor v. Union of Post Office Workers 3 and Naglev. Feilden 4. The first of these is not, in my opinion, an authorityrelevant to the application before us because the claim there rested oncontract ; and, in the second, what the Court of Appeal had before itwas an appeal from an order made in Chambers dismissing an appealfrom an order of a Master in Chambers striking out a plaintiff’s statementof claim. Lord Denning M.R. expressly stated there that he does notdecide the question but merely that there was a serious question fordetermination. More to the point is the case of Russell v. Duke of Nor-folk 5, where the Court of Appeal held that, assuming that the applicationfor a licence and the licence itself together constituted a contract to permitthe trainer to act as such, the stewards had power under the contract intheir unfettered discretion to withdraw the trainer’s licence withoutany inquiry at all, and it was impossible consistently with an unfetteredand absolute discretion to imply a term in the contract that an inquiry,if held, should be in accordance with natural justice.
A proper construction of Import Control Notice R1 and of the otherrelevant notices leaves no room for doubt that the discretion of theController in regard to the registration of persons as Ceylonese Tradersand the issue of allocations and licences is of such a plenary kind that,as learned Crown Counsel submitted, a right to a hearing of any kindbefore cancellation can be effected is ruled out. In respect of bothmatters the Controller is taking pure executive action, and the decisionof Nakkuda Ali’s v. Jayaratne {supra) is a sufficient answer to thepetitioner’s claims on this application.
Although what I have pointed out above is sufficient to dispose ofthe application before us, I should, nevertheless, like to refer also totwo authorities of a persuasive character brought to our attention byCrown Counsel. The first is a decision of the High Court of Australiain Metropolitan Meat Industry Board v. Finlayson 6 that dealt with anapplication for a writ of mandamus commanding the Meat Industry 1
1 {1966) 69 N. L. R. 265.* (1966) 1 A. E. R. 694.
« (1924) 1 K. B. 171.* (1949) 1 A. E. R. 109.
• (1965) l A. E. R. 353.• (1916) 22 C. L. R. 340.
154 T. S. FERNANDO, J.—Hassan v. The ConroUer of Imports and Exports
Board to hear and determine according to law an application for itsconsent for the slaughtering of cattle. Section 19 of the Meat IndustryAct, 1915 (H. S. W.), provided that “ no person shall, except with theconsent of and under the conditions prescribed by the MetropolitanMeat Industry Board, within the Metropolitan abattoir area, slaughterany cattle or dress any carcase for human consumption, except at apublic abattoir Section 20 provided that “ The consent of the Board,under the last preceding section, may be given in such form, and subjectto such terms and conditions as the Board may in its absolute discretiondetermine The High Court held that under those sections the Metro-politan Meat Industry Board have an absolute and unfettered right togrant or withhold their consent, and, therefore, that on an applicationfor their consent they need not give reasons for withholding it, or,before determining whether to grant or withhold it, inform the applicantof any objection which they think stands in his way so that he mayhave an opportunity of meeting it. The second is a decision of theKing’s Bench Division, R v. Barnstaple Justices, ex parte Carder 1, whichhas a particular bearing on a scheme like that for registration of CeyloneseTraders outlined in Notice R1 preparatory to the issue of allocations andlicences, the notice itself being something that is not provided by law.The Cinematograph Act of 1909 empowered county councils and justicesof the peace to grant licences to persons to use “ premises specified inthe licence ” for the purposes of a cinema, subject to certain terms,conditions and restrictions. A practice was stated to be in existencewhereby, in cases where it was intended to erect premises for useas a cinema, justices were asked to approve the plans of the buildingto be erected, and thereby honourably to commit themselves or theirsuccessors to grant the licence after completion of the premises. Onapplication made for writs of certiorari and mandamus, it was held by theCourt that the Act gave no power to grant licences except in respect ofpremises actually in existence, and that the practice was beyond thepowers given by the Act, and unenforceable. Lord Hewart, L.C.J. therestated that it is impossible to contend that justices, in sitting forthe preliminary purpose of considering plans of a building not yet con-structed, are engaged in a judicial proceeding such as may be broughtto the notice of the court for the purpose of obtaining the issue of aprerogative writ of mandamus or of certiorari, and that the applicationwas one in respect of an essentially extra-judicial proceeding.
The above considerations have compelled me to dismiss thisapplication.
In regard to costs, it is right to mention that there are before us sevenother similar applications preferred by other applicants seeking to quashsimilar cancellations. I refer to S. C. Applications 454 to 457 and 493to 495 of 1966. Counsel appearing for the respective parties there arethe same as counsel on this application. They were agreed that these
1 (1937) 4 A. E. B. 263.
T. S. FERXANDO, J.—Muttuioappa v. The Eastern Shipping Corporation Ltd. 155
seven applications should abide the result of Application No. 453. Anorder in respect of them is being made separately today ; but in respectof all eight applications we order that the Controller will be entitled tocosts as on one application alone, such costs being borne in equal sharesby each of the eight applicants. Accordingly we order the applicant inNo. 453 to pay the Controller one-eighth of his taxed costs.
Allks, J.—I agree.
Application dismissed.
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