v.SRI LANKA INSTITUTE OF ARCHITECTS
COURT OF APPEAL
J. A. N. DE SILVA, J. (P/CA)
C.A. 296/2000JANUARY 19, 2001FEBRUARY 01, 2001
Sri Lanka Institute of Architects – S.4A(l)(a). S.4(f). Act I of 1976 -Amended by 14 of 1996 – S.3. S.3(c) Is the statute which incorporatedthe Sri Lanka Institute of Architects a Public enactment or a privateone? Distinction between Private Acts and Public Acts ■ Application formembership not approved by Council – Does a Writ lie?
(1) The Sri Lanka Institute of Architects has been conferred with veryclear statutory functions. The powers of the Institute are exercised interms of the incorporating statute and they are clearly of Publiccharacter. Thus, the Institute of Architects exercise a public functionrendering it amenable to writ jurisdiction.
(ii) Once a member satisfied the criteria laid down in the 2nd schedule interms of S.8( 1) of Law No. 1 of 1976 as amended the Council of theSri Lanka Architects Institute has no discretion but to admit such aperson as an Associate. Fernando v. Sri Lanka Institute of Architects1"- not followed.
APPLICATION for a Writ of Mandamus.
Cases referred to :
Fernando v. Sri Lanka Institute of Architects – CA 709/94 -C. A. M.13.02. 1996
Nanayakkara v. Institute of Chartered Architects – 1981 2 SLR 52
Abeydeera v. Wljesundera- 1983 2 SLR 267
Jayalingam v. University of Colombo – CA 415/01 – CAM 14. 08. 87
Faiz Musthapa P.C.. with H. Withanachchi and Dr. Slvagl Felix for Peti-tioner.
Shibly Aziz PC., with S. Sriskantha for Respondent.
Cur. adv. vult.
Sri Lanka Law Reports
I200H 3 Sri L.R.
May 11. 2001.
J. A. N. DE SILVA. J. (P/CA)
The petitioner in this application seeks a mandate in thenature of a writ of mandamus directing the respondents toadmit/enroll the petitioner as a Corporate Member in thecategory of Association of the Sri Lanka Institute of Architects.(1st respondent) which is a body incorporated under and byvirtue of the Sri Lanka Institute of Architects Law No. 1 of 1976.
The facts as set out by the petitioner in the petition arebriefly as follows. The petitioner passed the part 1 and part 11examinations of the Sri Lanka Institute of Architects held in theyear 1992 and 1996 respectively. Thereafter the petitioner satfor the part 111 examination of the said institute so as to obtainthe necessary qualifications to be admitted to the category of"Charted Architect" with the Architects Registration Board.
By letter dated 12. 02. 1998 the petitioner had beeninformed by the Chairman, Board of Architectural Education,on the instructions of the Sri Lanka Institute of Architects thathis results had been withheld "pending clarification of certainmatters pertaining to his conduct." Further the petitioner hadbeen requested to answer a questionnaire which was attachedto the above mentioned letter. The petitioner answered thequestionnaire and forwarded the same to the Chairman, Boardof Architectural Education with a covering letter dated23. 02. 1998. As the Institute was silent the petitioner sent areminder dated 04. 03. 1998 requesting his results be releasedearly. After a delay of almost 10 months the Sri Lanka Instituteof Architects by letter dated 05. 09. 1998 released the results ofthe examination to the petitioner. In terms of the said letter ornotification the petitioner had successfully completed the part111 examination of the said Institute held on 12. 11. 1997.
Thereafter the petitioner on 17. 09. 1998 made anapplication to be enrolled as a Corporate Member in the categoryof Associate of the Sir Lanka Institute of Architects. This
Ariyaratne v. Sri Lanka Institute of Architects
(J. A. N. De Silva, J. (P/CA) )
application was sponsored by three Corporate Members ofwhom one was a Fellow as required by the relevant Regulations.
Here too the petitioner experienced inordinate delay andby letter dated 04. 06. 1999 he made a request to expedite thematter. The petitioner was then informed by letter dated
10. 1999 that is one year since his original application formembership, that his application had been referred to acommittee for an "investigation". The petitioner by letter dated
02. 2000 informed the President of the Sri Lanka Instituteof Architects that the delay in processing his application wasunprecedented and that he had been discriminated. Heattributed delay due to malice on the part of some Members ofthe Council.
By letter dated 15. 02. 2000 the petitioner was informedthat his application for membership, was not approved by theCouncil pending a report by a Special Committee.
The petitioner's contention is that he is duly qualified to beenrolled as a Corporate Member in the category of Associateand the respondents have failed and/or refused to admit himdue to malice, ill will or for some extraneous and inexplicablereasons. He further contends that such long delay without avalid reason is capricious, arbitrary, mala fide and in excess ofauthority. The present application for a writ of mandamus is todirect the Authority concerned to admit/enroll the petitioner asa Corporate Member.
At the hearing of this application the learned President'sCounsel Mr. Shibly Aziz who appeared for the respondentssubmitted that the application of the petitioner is misconceivedas the relief prayed for cannot be granted in law against one ormore of the respondents. Mr. Aziz contended that the Sri LankaInstitute of Architects is a private body and does not exercisepublic functions and therefore not amenable to writ jurisdictionof Court. He further submitted that the relationship of themembers is based on contract and in these cases declarations
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and injunctions are the appropriate remedies, certiorari andprohibition are out of place, since the Court's supervisory powersover public authorities are not concerned with private contracts.The attention of Court was drawn to the chapter dealing with"Domestic Tribunals and Disciplinary Board" in WadesAdministrative Law 7lh Edition page 641. Mr. Aziz relied on thedecision of this Court in Fernando u. Sri Lanka Institute ofArchitectswhere Justice Ranarajah expressed the followingview.
"Membership of the S. L. I. A entails the acceptance of therules and regulations governing membership. Membership is abody, be it statutory or otherwise does not by itself give it a publiccharacter. The relationship between a member and the S. L. I. A.is by (its very) nature contractual and of a private character.The duties the S. L. I. A. is called upon to perform are not dutiesin the public domain (vide Section 3 of Law No 1 of 1976).There is no obligation cast on an otherwise qualified Architectto seek membership of the S. L. 1. A. Thus the petitioner isseeking not to enforce a public law right but a mere privateright. The right the petitioner seeks to enforce lacks statutoryflavour and which he cannot in any way claim to be statutorilyprotected."
In view of the above observations of Justice Ranarajah it isnecessary to consider whether the statute which incorporatedthe Sri Lanka Institute of Architects is a Public enactment or aPrivate one. The law No 1 of 1976 is a general Act which hasbeen enacted to regulate the profession of Architects. Thisstatute is similar in nature to the statutes regulating the differentprofessional bodies such as Medical Practitioners OrdinanceNo 26 of 1927 (as amended). Charted Accountants Act No 23of 1959, Surveys Act No 21 of 1969 and Valuers Law No 33 of1975.
The distinction between a Public Act and Private Act hasbeen clearly demonstrated by several legal writers. FrancisBennim in "Statutory Interpretation" (3rd Edition 1997 Page 122)
Arlyaratne v. Sri Lanka Institute of Architects
(J. A. N. De Silva, J. (P/CA))
referring to the difference between a Public Act and a PrivateAct states as follows.
"A private Act is one which is not a public Act. Alternativelyit may be described as one coming into existence of the giving ofroyal assent to a private Bill; that is founded upon a petitiondeposited by the promoter. A private Bill goes through aprocedure different and its promotor must satisfy aParliamentary Committee that it deserves to be enacted. Itchanges the law in a limited way purely for the benefit of itspromotor and parliament accepts the duty to make sure noone else will be unfairly prejudiced by it."
Similarly Sir Rupert Cross in his book Interpretation ofStatutes (3rd Edition 1995) sees the distinction between theprivate and public enactment as follows.
"A distinction is drawn between public general Acts andprivate Acts. A public general Act relates to some matter of publicpolicy, while a private Act relates to the affairs of some individualor body in a manner which is not of public concern."
Dr. J. A. L. Cooray in his book Constitutional andAdministrative Law of Sri Lanka (2nd Edition Page 256 – 257)refers to the special procedure adopted for the enactment ofprivate Bills in Sri Lanka.
Mr. Faiz Musthapha, President's Counsel who appeared forthe petitioner submitted that the view expressed by JusticeRanarajah does not accurately reflect the true legal position ofthe plaintiff; specially in view of the fact that the original Act No1 of 1976 was amended by Act No 14 of 1996. It was thesubmission of Mr. Musthapha that in terms of the amendment,it is no longer possible for a person to describe himself as aCharted Architect, Architect or Architectural Licentiate or suefor professional fees unless he is duly registered as a ChartedArchitect, Architect or Architectural Licentiate as the case maybe.
Sri Lanka Law Reports
12001) 3 Sri L.R.
It is important to note that Section 3 of the principalenactment (Law No 1 of 1976) sets out the general objectives ofthe Sri Lanka Institute of Architects. Section 3(b) is to thefollowing elfect.
'To protect and promote the interests, status, welfare, rightsand privileges of the profession of Architects in Sri Lanka, andthe interests of the public in relation to that profession and ofpersons desiring to qualify as Architects."
Section 3(c) of the original Act was amended by Section 2of the amending Act to include non members. The new Sectionreads thus,* "Members of the Institute and for Architects andArchitectural Licentiates who are not members of the Institute".
Section 4(f) empowers the Institute to prescribe the termsand conditions of and the supervisory control and regulate theengagement, training, transfer and dismissal of persons desiringto qualify as Architects.
By Section 3 of the amending Act a new Section viz 4 (ff)was introduced which widened the scope. New Section (fT) readsthus, "to appoint investigating committees and disciplinarycommittees to inquire into complaints of professionalmisconduct against Architects or Architectural Licentiatesregistered under this Law, who are not members of the Institute.
In addition to this new Section 4A( 1) imposes a statutoryrestriction on the use of title Charted Architect, Architect orArchitectural Licentiate unless registered in accordance withthe provisions of the enactment. Section 4A(2) stipulates that aperson, unless registered as a Charted Architect, Architect orArchitectural Licentiate under and in terms of Law No 1 of 1976as amended shall not be entitled to institute or maintain anyaction in a Court of Law for the recovery of any fees forprofessional services rendered by him as a Charted Architect,Architect or Architectural Licentiate.
Ariyaratne v. Sri Lanka Institute of Architects
(J. A. N. De Silva, J. (P/CA))"
Prom the above Sections it is clear that the Institute possesthe power to regulate the profession for the benefit of the generalpublic. The resulting position is that when the Institute exercisethe said power it displays a public character. It is a wellestablished principle that even where a body exercises de factopower, despite the absence of visible means of legal support,having neither statutory nor contractual powers it is neverthelessamenable to judicial Review (Vide Wade Page 629 8th Edition).
In Nanayakkara v. Institute of Charted Accountants121Court held that even in the context of a contract of employmentif it had a statutory flavour, an employee was entitled to seekjudicial review. It is to be noted that the Institute of ChartedAccountants Act No 23 of 1959 was also incorporated in a similarway as the Sri Lankan Institute of Architects.
It is clear from the provisions referred to above the SriLankan Institute of Architects has been conferred with very clearstatutory functions. The powers of the Institution are exercisedin terms of the incorporating statute and they are clearly of publiccharacter. In these circumstances I hold that the Institute ofArchitects exercise a public function rendering it amenable towrit jurisdiction of this Court.
The petitioner's complaint is that Section 8(1) of theSri Lanka Institute of Architects Law No 1 of 1976 lays down thedisqualifications that preclude membership and that he is notdisqualified in any manner whatsoever for membership as setout in Section 8(1) and is eligible to be admitted as a CorporateMember in the category of Associate.
It was further pointed out by Mr. Musthapha, PC that interms of rule 1.1 Schedule A Part 11 of the regulations made byand approved by the general body of the Sri Lankan Institute ofArchitects, and published in the Gazette Extraordinary of20. 12. 1996 the petitioner is entitled to be admitted andenrolled as a Corporate Member in the category of Associate.
Rule 1.1 provides as follows.
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"The council shall admit as an Associate of the Instituteany person who has passed either the qualifying examinationstherefor prescribed by the second schedule to these regulationsor any other examination or examinations which the Councilhas, by a resolution passed by a two – third majority, acceptedas being equivalent thereto. The Council may accept aqualification or qualifications granted by any Foreign University.Institute or National Body of Architects as entitling the holderthereof to apply for Associate Membership of the Institute."
The Secbnd Schedule to the Regulation provide. Inter aliathe necessary qualifications to be admitted as a Associate asfollows.
"SLIA Part 111 Examination or the Special EquatingAssessment and a Viva Voce held by SLIA for registrationmembers of the Institute."
In the circumstances it is clear that once a member satisfiesthe criteria laid down in the 2nd Schedule in terms of Section8(1) of Law No 1 of 1976 as amended the Council of the SriLanka Architects Institute has no discretion but to admit sucha person as an Associate.
As there is a long and inordinate delay in releasing his resultsand thereafter a further delay in processing his application thepetitioner has reasons to believe that it may be due toprofessional jealousy or ill will on the part of some members ofthe Council towards him. I am also mindful of the fact that awrit of mandamus could be issued against a Corporate Body asstated in Abeyadeera v. Wljesundera131 and Jayaltngam v.University of Colombo141.
I hold that the petitioner is entitled to get a mandate in thenature of a writ of mandamus and direct the 1sl respondent toperform its statutory duty forthwith. The petitioner's applicationis allowed with costs.
ARIYARATNE v. SIR LANKA INSTITUTE OF ARCHITECTS