059-NLR-NLR-V-69-A.-T.-DURAYAPPAH-Mayor-of-Jaffna-Appellant-and-W.-J.-FERNANDO-and-others-Re.pdf
Duruyappah v. Fernando
265
[Pbivy Council]
Present: Viscount Dllhorne, Lord Guest, Lord Devlin, LordUpjohn, Lord PearsonA. T. DURAYAPPAH (Mayor of Jaffna), Appellant, andW. J. FERNANDO and others, Respondents
Privy Council Appeal No. 29 of 1966
8. G. 250/1966 — Application for a Mandate in the natureof Write of Certiorari and Quo Warranto and Injunctionon W. J. Fernando and others
Municipal Council—Powers o] Minister to dissolve Council for incompetency, etc.—Audi alteram partem principle of natural justice—Considerations applicable—Duty of Minister to observe the principle—Unlawful dissolution of Council—Is the Minister’s Order then a complete nullity or is it voidable only at the electionof the Council t—Incapacity of Mayor of Council to challenge the Order inde-pendently—Difference, in effect, between nullity and voidability—MunicipalCouncils Ordinance (Cap. 252), as amended by Act No. 12 of 1959, ss. 34, 37,277—Certiorari.
Section 277 (1) of the Municipal Councils Ordinance, as amended by ActNo. 12 of 1959, ie as follows :—
" (1) If at any time, upon representation made or otherwise, it appears tothe Minister that a Municipal Council is not competent to perform, orpersistently makes default in the performance of, any duty or duties imposedupon it, or persistently refuses or neglects to comply with any provision oflaw, the Minister may, by Order published in the Gazette, direct that theCouncil shall be dissolved and superseded, and thereupon such Council shall,without prejudice to anything already dono by it, be dissolved, and ceaseto have, exercise, perform and discharge any of the rights, privileges, powers,duties and functions conferred or imposed upon it, or vested in it, by thisOrdinance or any other written law.’”.
The Minister of Local Government (the fourth respondent) made an Orderon 29th May 1966 stating that it appeared to him that the Jafina MunicipalCouncil was not competent to perform the duties imposed upon it and that,pursuant to the powers conferred upon him by Section 277, he directed that theCouncil should be dissolved and superseded forthwith. This Order dissolvingthe Counoil was made by the Minister without giving the Council the rightto be heard in its own defence. The Order was challenged in the presentCertiorari proceedings by the appellant, who was the Mayor of the Councilat the time of the dissolution.
Held, that, before exercising his powers under Section 277, the Minister wasbound to observe the rule of natural justice, audi alteram partem. The Sectionconfers upon the Minister a single power to act in the event of one or moreclosely allied failures and he can only do so, in the circumstances of thepresent case, after observing the principle audi alteram partem.
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“ There are three matters which must always be borne in mind when con-sidering whether the principle (attdi alteram partem) should be applied or notThese three matters are : First, what is the nature of the property, the officeheld, status enjoyed or services to be performed by the complainant of injustice.Secondly, in what circumstances or upon what occasions is the person claimingto be entitled to exercise the measure of control entitled to intervene. Thirdly,when a right to intervene is proved what sanctions in fact is the latter entitledto impose upon the other. It is only upon a consideration of all these mattersthat the question of the application of the principle can properly bsdetermined.”
Sugathadaea v. Jayasinghe {69 N. L. R. 457) overruled.
However, inasmuch as the Order of the Minister was only voidable in anaction by the Council, and not a nullity of which advantage could be takenby any other person having a legitimate interest in the matter, the Mayorhad no right to complain independently of the Council. Accordingly, the Mayorwas not entitled to maintain the present aotion and appeal.
Api
?PEAL from a judgment of the Supreme Court reported in
[1966) 67 N.L.B. 25.
T. 0. Kellock, Q.C., with M. Solomon and M. I. Hamavi Haniffa,for the petitioner-appellant.
E. F. N. Gratiaen, Q.G., with R. K. Handoo, for the 4th respondent.
E. F. N. Gratiaen, Q.C., with Walter Jayawardena, for the 1st, 2ndand 3rd respondents.
Cur. adv. will.
December 15, 1966.[Delivered by Lord Upjohn]—
The first and principal question in this appeal is whether the fourthrespondent who is the Minister of Local Government (who will be referredto as the Minister) was justified in exercising his powers under section 277of the Municipal. Councils Ordinance (Chapter 252) as amended byAct No. 12 of 1959 (this Ordinance as amended will be referred to as theMunicipal Ordinance) to .dissolve the Jaffna Municipal Council (hereafterreferred to as the Council) without giving it the right to be heard in itsown defence. In other words was the Minister before exercising hispowers under section 277 hound to observe that rule of natural justice,which is neatly and briefly stated in the recently resuscitated Latinexpression “audi alteram partem”. While it was an issue in the lowercourts, it is now no longer disputed that the Minister acted in complete
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good faith and that in fact he would have given the Council the opportunityof being heard but for the urgency of the case as he or his advisersregarded it and it is not in doubt that if he was bound to observe theprinciple audi alteram partem he failed to do so. Their Lordships willonly state that while great urgency may rightly limit such opportunitytimeously, perhaps severely, there can never be a denial of that opportunityif the principles of natural justice are applicable.
The Council was constituted under the Municipal Ordinance as themunicipal authority for the district of Jaffna, a very large and importanttown, and there was thereby conferred upon it all the usual powers andduties of a local authority in their area. Only a brief review of theprovisions of the Municipal Ordinance constituting these particular localauthorities is necessary. By Part I the Minister was empowered to declareany area to be a municipality, to define the limits of any municipality sodeclared and to assign a name and designation to the Municipal Councilto be constituted for the municipality so declared (sections 2 and 3). TheMunicipal Council constituted for each municipality was (subject toreserved powers irrelevant to this judgment) to be the local authoritywithin the administrative limits of the municipality charged with theregulation, control and administration of all matters'relating to the publichealth, public utility services, public thoroughfares and generally with theprotection and promotion of the comfort, convenience and welfare of thepeople and amenities of the municipality (section 4).
By Part II elaborate provisions were made for the election of Councillors,their terms of office and for the election by the Councillors of the Mayorand Deputy Mayor, from time to time.
Section 34 is important:
“ (1) Every Municipal Council shall be a corporation withperpetual succession and a common seal and shall have power,subject to this Ordinance, to acquire, hold and sell property, and maysue and be sued by such name and designation as may be assignedto it under this Ordinance.
The common seal of the Council shall remain in the custodyof the Commissioner, and shall not be affixed to any contract of otherinstrument on behalf of the Council, except in the presence of theMayor or Deputy Mayor and the Commissioner who shall sign theirnames to such contract or other instrument in token of their presence. ’ ’
Sections 35 and 37 provided for the vesting in the Council of muchimmovable property, waste lands, quarries, lakes and waterworks, Crownlands (made over with sanction of the Govefnor-General), public parks,gardens and open spaces, all streets, public markets and public buildings.
The following Parts of the Municipal Ordinance expanded in greatdetail these all important general powers and duties conferred uponMunicipal Councils to which detailed reference is unnecessary. By
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Part IX (section 185 onwards) every Municipal Council was bound toestablish a Municipal Fund and its powers and duties in relation theretowere elaborated. Then by Part XII (section 230 onwards) everyMunicipal Council was empowered to levy rates (with the sanction of theMinister) on property within the municipality –
By Part XIV headed " Central Control ” section 277 (1) enacted :
" (1) If at any time, upon representation made or otherwise, itappears to the Minister that a Municipal Council is not competent toperform, or persistently makes default in the performance of, anyduty or duties imposed upon it, or persistently refuses or neglects tocomply with any provision of law, the Minister may, by Orderpublished in the Gazette, direct that the Council shall be dissolvedand superseded, and thereupon such Council shall, without prejudiceto anything already done by it, be dissolved, and cease to have,exercise, perform and discharge any of the rights, privileges, powers,duties and functions conferred or imposed upon it, or vested in it,by this Ordinance or any other written law. ”
There was a general local election for Councillors to the Council inDecember of 1963 and 18 members were by the constitution of the Councilelected to it for the term of three years expiring at the end of 1966.
There is no doubt that this Council went through troublous times ;within the period of years of its election four Mayors were successivelyelected, the appellant having been elected as recently as the 31st March1966. Although their LordshipB are not directly concerned with suchmatters it may be stated as a matter of history that a number of complaintswhether justifiable or not, as to the conduct of the Council and thecouncillors were made to the Minister. He therefore sent theCommissioner of Local Government to inquire into these matters withinstructions to report immediately. The Commissioner of LooalGovernment visited Jaffna on 27th and 28th May 1966 and it is fair tosay that the appellant, who had been informed by the Minister of hisimpending visit gave to him every facility that he required for this purpose.He had full access to all the minutes of the Council but he did not askanyone any questions or give any member of the Council any opportunityof expressing their views on any matter. His report, first orally and thenin writing, was received by the Minister on 29th May who on thesame day made an Order stating that it appeared to him that the JaffnaMunicipal Council was not competent to perform the duties imposedupon it and that pursuant to the powers conferred upon him by section 277as amended he directed that the Council should be dissolved andsuperseded on 29th May 1966. On 30th May 1966 the Governor-General appointed the first, second and third respondents to be specialcommissioners to exercise perform and discharge the rights privileges
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powers duties and functions conferred upon the Council or the Mayorby the Municipal Ordinance. This Order dissolving the Council is.challenged by the appellant and indeed by another councillor but yourLordships are not concerned with that second challenge.
Upon the question of audi alteram partem the Supreme Court followedand agreed with the earlier decision of Sugathadasa v. Jayasinghe1,a decision of three judges of the Supreme Court upon the samesection and upon the same issue namely whether a Council was notcompetent to perform its duties. That decision at p. 471 laid down as ageneral rule that words such as ‘ where it appears to ’ or ‘ if it appears tothe satisfaction of ’ or ‘ if the …. considers it expedient that ’ or ‘ ifthe …. is satisfied that ’ standing by themselves without other wordsor circumstances of qualification, exclude a duty to act judicially ”.
Their Lordships disagree with this approach. These various formulaeare introductory of the matter to be considered and aro given littleguidance upon the question of audi alteram partem. Tho statute canmake itself clear upon this point and if it does cadit quaestio. If it doesnot then the principle stated by Byles J. in Cooper v. The Board of Worksfor the Wandsworth District 2 must be applied. He said this :
“ A long course of decisions, beginning with Dr. Bentley's case,and ending with some very rocent cases, establish, that, althoughthere are no positive words in the statute requiring that the partyshall bo hoard, yet the justice of the common law will supply theomission of the legislature. ”
If the law were otherwise then such cases as Capel v. Child 3, wheretho words are in fact very similar to tho words of section 277, must havebeen differently decided. That case is in fact an important landmark inthe history of tho development of the principle audi alteram partem. Thesolution to this case is not to bo found merely upon a consideration of theopening words of section 277. A deeper investigation is necessary. TheirLordships were of course referred to the recent caso of Ridge v. Baldwin 4where this principle was very closely and carefully examined. In that caseno attempt was made to give an exhaustive classification of the cases wherethe principle audi alteram partem should bo applied. In their Lordships’opinion it would bo wrong to do so. Outside well-known cases such asdismissal from office, deprivation of property and expulsion from clubs,there is a vast area where the principle can only be applied upon mostgeneral considerations. For example, as Lord Reid when examining thecase of Rex v. Electricity Commissioners 8 pointed out, Bankes L. J. inferred(he judicial element from the nature of the power and Atkin L. J. did thesame. Pausing there however, it should not be assumed that their Lordshipsnecessarily agree with Lord Reid’s analysis of that case or with his
1 (1958) 59 N. L. R. 157.3 Crompton and Jarvis 558.
* 14 C. 11. N. S. 180 at 194.4 (1964) Appeal Cases page 40.
At page 76 of 1964 Appeal Cases.
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criticism of the Nakkuda case. Outside the well-known classes of cases,no general rule can be laid down as to the application of the goneralprinciple in addition to the language of the provision. In their Lordships’opinion there are three matters which must always be borne in mindwhen considering whether the principle should be applied or not. Thesethree matters are : First what is the nature of the property, the officeheld, status enjoyed or services to be performed by the complainant ofinjustice. Secondly in what circumstances or upon what occasions is theperson claiming to be entitled to exercise the measure of control entitled tointervene. Thirdly when a right to intervene is proved what sanctions infact is the latter entitled to impose upon the other. It is only upon aconsideration of all these matters that the question of the applicationof the principle can properly be determined. Their Lordships thereforeproceed to examine the facts of this case upon these considerations.
As to the first matter it cannot be doubted that the Council of Jaffnawas by statute a public Corporation entrusted like all other MunicipalCouncils with the administration of a large area and the discharge ofimportant duties. No one would consider that its activities should belightly interfered with. Their Lordships may notice here an argumentaddressed to them that as this was a local authority subject to the superiorpower of the Minister under section 277, the exercise of this power wasa matter properly left to him as the one responsible to the Legislature towhom he was answerable for his actions and he could not be responsibleto the Courts under the principle audi alteram partem. Their Lordshipsdissent from this argument. The legislature has enacted a statute settingup municipal authorities with a considerable measure of independencefrom the central government within defined local areas and fields ofgovernment. No Minister should have the right to dissolve such anauthority without allowing it the right to be heard upon that matterunless the statute is so clear that it is plain it has no right of self-defence.However this consideration is perhaps one of approach only. The secondand third matters are decisive. Upon the second matter it is clear thatthe Minister can dissolve the Council on one of three grounds : that it
is not competent to perform any duty or duties imposed upon it (forbrevity their Lordships will refer to this head as incompetence) ; or
persistently makes default in the performance of any duty or dutiesimposed upon it; or (c) persistently refuses or neglects to comply withany provision of law.
A preliminary argument was addressed to their Lordships on the footingthat incompetence was the equivalent of inability to perform its duties.This argument was based on certain observations in the Sugalhadasa caseat page 475 where the judges expressed the opinion that the Councilbecame not competent to perform the duties imposed upon it whencircumstances arose that rendered it incapable of performing them. Itwas argued that the words in the statute “ not competent ” were equivalentto “ not able to undertake ” and it was said that in the circumstances of
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this case it had not been shown that the Council were not able toundertake their duties and so could not be found to be incompetent. TheirLordships do not agree with this argument and do not think that thejudges in the Sugathadasa case intended to go as far. It may be that aCouncil is so incompetent that it is not able to undertake anything, butinability to undertake its duties (which may arise from circumstancesoutside anyone’s control) is not the test as to incompetence.
While their Lordships are only concerned with the question ofincompetence, the true construction of the section must be consideredas a whole and its necessary intendment in the light of the common lawprinciples already stated. It seems clear to their Lordships that it is amost serious charge to allege that the Council, entrusted with these veryimportant duties, persistently makes default in the performance of anyduty or duties imposed upon it. No authority is required to support theview that in such circumstances it is plain and obvious that the principleaudi alteram partem must apply.
Equally it is clear that if a Council is alleged persistently to refuse orneglect to comply with a provision of law it must be entitled (as a matterof the most elementary justice) to be heard in its defence. Again thisproposition requires no authority to support it. If, therefore, it is clear thatin two of the three cases, the Minister must act judicially, then it seems totheir Lordships, looking at the section as a whole, that it is not possible tosingle out for different treatment the third case hamely incompetence.Grammatically too any differentiation is impossible. The Section confersupon the Minister a single power to act in the event of one or more closelyallied failures and he can only do so after observing the principleaudi alteram partem. Had the Minister been empowered to dissolve theCouncil only for imcompetence and on no other ground it might have beenargued that as “ incompetence ” is very vague and difficult to defineParliament did not intend the principle audi alteram partem to apply, inthe circumstances, but their Lordships would point out that charges ofinefficiency or failing to be diligent or to set a good example have beenheld subject to the principle, see Fisher v. Jackson1. The thirdmatter can be dealt with quite shortly.The sanction which
the Minister can impose and indeed, if he is satisfied of thenecessary premise, must impose upon the erring Council is as completeas could be imagined; it involves the dissolution of the Council andtherefore the confiscation of all its properties. It was at one momentfaintly argued that the Council was a trustee and that it was not thereforebeing deprived of any of its property but this argument (soon abandoned)depended upon a complete misconception of the law of corporations. Astatutory corporation such as a Municipal Corporation, like every tradingcorporation owns its property and the corporators have no proprietaryinterest in it but like them it can deal with its property only in accordancewith its constitution. In the ease of a trading company that is laid down
1 (1891) 2 Oh. 84.
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in its memorandum and articles of association. In the case of a statutorycorporation it is laid down in the Statute, or Municipal Ordinance, byvirtue of which it is incorporated hut it is important to rememberthroughout that it owns its property (it may hold property as a trustee seesection 37 of the Municipal Ordinance but that i3 quite a different matter).The Council owned large areas of land, had a Municipal Fund and wasempowered to levy rates from its inhabitants though it was bound toapply them in accordance with its constitution. In their Lordships'opinion this case falls within the principle of Cooper v. Wandsworth Boardof Works (supra) where it was held that no man is to be deprived of hisproperty withou t having an opportunity of being heard. For the purposesof the application of the principle it seems to their Lordships that thismust apply equally to a statutory body having statutory powers, authoritiesand duties just as it does to an individual. Accordingly on this groundtoo the Minister should have observed the principle.
For these reasons their Lordships have no doubt that in the circumstancesof this case the Minister should have observed the principle audi aUerampartem. The case of Sugathadasa v. Jayasinghe (supra) was wronglydecided.
Had the matter remained there their Lordships would have allowed theappeal and held the Order of 29th May 1966 to have been inoperative.However during the hearing of the appeal, their Lordships raised thequestion, not taken i^ the Court below, whether the appellant was entitledto maintain this action and appeal. This question is of some generalimportance. The answer must depend essentially upon whether the Orderof the Minister was a complete nullity or whether it was an Ordervoidable only at the election of the Council. If the former, it must followthat the Council is still in office and that, if any councillor, ratepayer orother person having a legitimate interest in the conduct of the Councillikes to take the point, they are entitled tp ask the court to declare thatthe Council is still the duly elected Council with all the powers and dutiesconferred upon it by the Municipal Ordinance.
Apart altogether from authority their Lordships would be of opinionthat this was a case where the Minister’s Order was voidable and not anullity. Though the Council should have been given the opportunity ofbeing heard in its defence, if it deliberately chooses not to complain andtakes no step to protest against its dissolution, there seems no reason whyany other person should have the right to interfere. To take a simpleexample to which their Lordships will have to advert in some detailpresently, if in the case of Ridge v. Baldwin (supra) the appellant Ridgewho had been wrongly dismissed because he was not given the opportunityof presenting his defence, had preferred to abandon the point and acceptthe view that he had been properly dismissed, their Lordships can seeno reason why any other person, such, for example, as a ratepayer ofBrighton should have any right to contend that Mr. Ridge was still theChief Constable of Brighton. As a matter of ordinary common sense,
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with all respect to other opinions that have been expressed, if a person inthe position of Mr. Ridge had not felt sufficiently aggrieved to take anyaction by reason of the failure to afford him his strict right to put forwarda defence, the Order of the Watch Committee should stand and no oneelse should have any right to complain. The matter is not free ofauthority, for it was much discussed in that case. Lord Reid at page 80reached the conclusion that the Committee’s decision was void and notmerely voidable and he relied upon the decision in Woodv. Wood1.Their Lordships deprecate the use of the word void in distinction tothe word voidable in the field of law with which their Lordships areconcerned because, as Lord Evershed pointed out in Ridge v.Baldwin at page 92, quoting from Sir Frederick Pollock, the wordsvoid and voidable are imprecise and apt to mislead. These words havewell understood meanings when dealing with questions of proprietaryor contractual rights. It is better, in the field where the subject matter ofthe discussion is whether some Order which has been made or whethersome step in some litigation or quasi litigation is effective or not, toemploy the verbal distinction between whether it is truly a “ nullity ”,that is to all intents and purposes, of which any person having a legitimateinterest in the matter can take advantage of or whether it is“ voidable ”only at the instance of the party affected. On the other hand the word“ nullity ” would be-quite inappropriate in questions of proprietary orcontractual rights ; such transactions may frequently be void but theresult can seldom be described as a nullity. In the field now underconsideration there are many cases illustrating the difference, see forexample Macfoy v. United Africa Company Limited 2 where it was heldthat a failure to comply with certain rules of the Supreme Courtrendered the proceedings voidable and not a nullity. On the other side, isthe very recent decision of their Lordships, Board in C. Devan Nair v. YongKuan Teik where a failure to comply with a rule was held to makepurported subsequent proceedings a nullity. Their Lordships understandLord Reid to have used the word “ void ” in the sense of being a nullity.In the same case Lord Hodson'at page 135 took the view that the decisionof the Watch Committee in Ridge v. Baldwin was a nullity. On theother hand Lord Evershed, though he differed on the main question asto whether the principle audi alteram partem applied, devoted aconsiderable part of his judgment to the question whether the decisionwas voidable or a nullity and with this part of his judgment Lord Devlinexpressly stated his agreement, lord Evershed at page 88 onwardsexamined the case of Wood v. Wood in some detail and he reached theconclusion (page 90) that in Wood v. Wood the question whether thepurported exclusion from the association by the Committee was void orvoidable was not essential or indeed material to the claim made in theaction by the plaintiffs for damages against the members of the Committee.He continued, speaking of that case “ certainly in my judgment it cannotbe asserted that the judgments in the case cited or indeed aDy of themsupport or involve the proposition that where a body such as the Watch
1 L.R.9 Exchequer 190.» (1961) 3 W. L. B. at page 1406.
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Committee in the present case, is invested by the express terms of astatute with a power of expulsion of any member of the police force andpurports in good faith to exercise such power, a failure on their part toobserve the principle of natural justice, audi alteram partem, has theresult that the decision is not merely voidable by the Court but is whollyvoid and a nullity
Lord Morris of Borth-y-Gest also considered this question and reachedthe conclusion that the Order of the Watch Committee was voidable andnot a nullity. He examined the question as to the nature of the reliefthat the party aggrieved (Ridge) would apply for, which would be thatthe decision was invalid and of no effect and null and void. TheirLordships entirely agree with that and with the conclusions which he drewfrom it, namely that if the decision is challenged by the person aggrievedon the grounds that the principle has not been obeyed, he is entitled toclaim that as against him it is void ah initio and has never been of anyeffect. But it cannot possibly be right in the type of case which theirLordships are considering to suppose, that if challenged successfully bythe person entitled to avoid the Order yet nevertheless it has some limitedeffect even against him until set aside by a court of competent jurisdiction.While in this case their Lordships have no doubt that in an action by theCouncil the Court should have held that the Order was void ab initio andnever had any effect, that is quite a different matter from saying that theOrder was a nullity of which advantage could be taken by any other personhaving a legitimate interest in the matter.
Their Lordships therefore are clearly of opinion that the Order of theMinister on 29th May 1966 was voidable and not a nullity. Beingvoidable it was voidable only at the instance of the person against whomthe Order was made, that is the Council. But the Council have notcomplained. The appellant was no doubt Mayor at the time of itsdissolution but that does not give him any right to complain independentlyof the Council. He must show that he is representing the Council orsuing on its behalf or that by reason of certain circumstances such forexample as that the Council could not use its seal because it is in thepossession of the Municipal Commissioner or for other reasons it has beenimpracticable for the members of the Council to meet to pass the necessaryresolutions, the Council cannot be the plaintiff. Had that been shownthen there are well known procedures whereby the plaintiff can sue onbehalf of himself and the other corporators making the Council a .defendantand on pleading and proving the necessary facts may be able to establishin the action that he is entitled to assert the rights of the Council. Thathowever is not suggested in this case. The appellant sets up the case thatas Mayor he is entitled to complain but as such he plainly is not. If theCouncil is dissolved, the office of Mayor is dissolved with it and he hasno independent right of complaint, because he holds no office that isindependent of the Council. If the Mayor were to be heard individuallyhe could only deal with complaints against the Council with which
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ex hypothesi the Council itself did not wish to deal. So accordingly, itseems to their Lordships that on this short ground the appellant cannotmaintain this action.
For these reasons which differ entirely from those in the Court belowtheir Lordships have therefore humbly advised Her Majesty that theappeal should be dismissed. In the circumstances however there willbe no Order as to the costs of this appeal.
Appeal dismissed.