037-NLR-NLR-V-26-Application-of-S.-E.-FERNANDO-for-a-Mandamus-on-the-Rubber-Controller.pdf
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Present: Jayewardene A.J.
Application of S. E. Fernando for a Mandamus on theRubber Controller
Mandamus—Application for writ of mandamus on Rubber Controller—*When does mandamus lie !—Exercise of discretion by officer.
Where an application was made for a mandamus on the BubberController to restore the names of two lands * to the Register ofBubber Estates and to issue to the applicant monthly certificatesof production, the Supreme Court refused to issue a mandamusas it did not appear that the Bubber Controller had not exercisedhis discretion, or that he had exercised it upon some wrong principle,or that be had been influenced by extraneous considerations whichhe ought not to have taken into account.
H. V. Pererat for applicant.
Illangakoon, C.C., for respondent.
August 25, 1924.' Jayewardene A.J.—
This is an application for a writ of mandamus on the RubberController directing him to restore the names of two lands calledKekunagahawela Group and Keraketiya to the Register of RubberEstates and to issue to the applicant monthly certificates of pro-duction from April, 1924. A rival claimant, one S. C. Fernando, hasappeared claiming these certificates. As regards the land Kekuna-gahawela the Controller by his affidavit states that this land appearsto be in the possession of S. C. Fernando to whom he is prepared toissue certificates to dispose of any rubber produced on the estate.As regards the other estate, it is said to be identical with the 19-acreblock of Muttetuhena referred to in the Controller's affidavit. Forthe rubber produced on this estate, certificates are being sent toS. C. Fernando. The applicant in his counter affidavit states thatcertificates or coupon No. 1,601 M (2) were issued to him by theRubber Controller from December, 1928, to March, 1924, for thesecond-named estate, and that since April this year they are beingissued to S. C. Fernando. It is contended for the Controller thatno writ of mandamus can issue in this case as he has performedhis duty under the Ordinance, and has in the exercise of hisdiscretion preferred S. C. Fernando’s right to the certificate tothat of the present applicant. A mandamus is -never granted toreview the exercise of a discretion or an erroneous judgment.“ The decision however erroneous of the proper officer—a tribunalon a matter within his or its jurisdiction cannot be called inquestion by mandamus. ’’ Shortt on ‘‘ Mandamus, ’’ p. 263. I
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1924.
Jatbwab*DBm A.J.
Application
ofS.E.
Fernando
might also refer to the case of Bex v. Registrar of Companies. 1 Inthat case an application was made for a rule on the Registrarof Joint Stock Companies to show cause why a writ of mandamusshould not issue directed to him to retain and register the memo-randum and articles of association of a certain company. TheRegistrar had refused to register the company as its name resembledthat of another company already registered. The application wasrefused* as there was no ground for saying that the Registrar inexercising his discretion had come to a wrong decision, andAvory J., in the course of his judgment, said:—
** I agree that this rule should be discharged thougti upon a some-what broader ground. In my opinion this rule could onlyhave been made absolute if the applicants had satisfied usthat the duty of the Registrar under sections 8 and 15 ofthe Companies (Consolidation) Act, 1908, was purelyministerial. I think that the moment it is admitted thatthe Registrar must exercise some discretion in the regis-tration of a company, the name of which is suggestedto be either identical with that of another company alreadyregistered or so nearly resembling it as to be calculated todeceive, then in order to displace the decision of theRegistrar and justify this Court in interfering by mandamus,it would be necessary for the applicants to show one ormore of three things; either that the Registrar had not infact exercised any discretion in the particular case, or thathe had exercised it upon some wrong principle of law, orthat he had been influenced by extraneous considerationwhich he ought not to have taken into account. 1 thinkthat one of these three things at least must be made outto justify this Court in interfering by mandamus. "
As was hold by Bertram C.J. the Rubber Controller who has tomake up the register has an inherent right to alter it from time totime as occasion arises, and if two rival claimants appear he has tochoose between the two, and must exercise some discretion in doingso. Applying the principle laid down by Avory. J. in the abovecase which seems to modify to some extent the principles laid downin the earlier authorities, it is impossible to say that in this case theRubber Controller has not exercised his discretion, or that he hadexercised it upon some wrong principle, or that he had been in-fluenced by extraneous considerations which he ought not to havetaken into account. He is prepared to issue the certificates to theperson who is in possession. The applicant no doubt produced adeed of lease from the registered owner who has since died. Thelease was executed by the registered owner, the wife of the applicant,a few days before her death, and it is impeached as a document
1 (1912) 3 K. B. 23.
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obtained when the wife was unable to understand the nature of the 1924*transaction and with a view to defraud her other heirs, one of whom jAyBWAR>is the rival applicant S. C. Fernando. These facts and the circum- dbpaj.stances under which it was produced to the Controller make mesuspect its validity. These observations apply to the land Kekuna- ©/S. B,gahawela. As regards the other land the Rubber Controller has Fernandoissued the certificates to S. C. Fernando as the land was registeredunder his name, and the certificates were issued to the applicant’swife Dislin Fernando before her death at" the request of S. C. Fer-nando, her brother. This is denied by the applicant who saysthat the certificates have been issued to him, and he gives theirnumber. (See paragraph 6 of £is counter affidavit.) Perhaps theRubber Controller has some explanation to offer. I should like tohear his explanation of the applicant’s statement before making afinal order. The Controller’s explanation embodied in an affidavitis now before me. He says that the 19-acre block was registeredin the name of Mrs. S. Dislin Fernando, and the certificates weresent to the applicant as agent of Dislin Fernando* ( This explainshow the certificates No. 1,061 M (2) came to be in the hands of theapplicant. As in the case of the other land the Controller is issuingthe certificates to S. C. Fernando who is in possession of both theselands. The Controller also points out that the issue of certificatesto persons other than the possessor of a land would prevent thedisposal of the rubber produced from the land in view of. a rulemade by the Governor and dated July Id, 1923. The applicantadmits that S. C. Fernando is in possession of the lands, but he saysthat the latter took forcible possession of them, and that he is prose-cuting him before the Police Court of Kalutara. However thatmay be, the Controller has acted rightly in issuing the certificatesto the man in possession. He'alone can make any use of them.
The question who has the better right to the possession of the land ,is in dispute between S'. E., and S. C. Fernando, and that disputeshould be settled by a regular action. For the reasons given earlierin this judgment I do "not think the discretion exercised by theController can be interfered with. The names of the lands havebeen re-entered in the register. I therefore refuse this application.
Application refused.