017-NLR-NLR-V-57-B.-D.-GUNAPALA-Petitioner-and-HON.-MR.C.-W.-W.-KANNANGARA-Minister-of-Local-G.pdf
1955•Present: Swan; J. 'D. G UNA PAL A, Petitioner, and HON. MR. C. W. W.ICANN ANGARA (Minister of Local Government), Respondent
S.C. 260—Applioaiionfor a Mandate in the nature of a Writ of Certiorarito quash an order purported to have been made under Section 61 ofthe Village Communities Ordinance'
Village Communities Ordinance—Section 62—Removal of Chairman of a VillageCommittee from office—Executive function of Minister—Certiorari.
When tho Minister of Local Government, by virtue of the power vested inhim by section 61 of the Village Communities Ordinance,- removes the Chairmanof a Villago Committee from office on being satisfied “ that there is sufficientproof of misconduct in tho performance of his duties, he performs on executiveand not a judicial net. Such act cannot be tho subject of a writ of certiorari.
./.PPLICATION for a writ of certiorari on the Minister of LocalGovernment.
Sir Lalita Jfajapakse, Q.C., with CL T. Samaraicickreme, G. C.Weerasinghe and T. G. Qoonesekera, for the petitioner.
T.S. Fernando, Q.C., Acting Attorney-General, with V. S. A.Pullenayagum and Merryn Fernando, Crown Counsel, for the respondent.
Cur. adv. vult.
March 25, 1955. Swan, J.—
This application was filed on 9.0.51. It came before my. brotherGmiasckara on 11.6.54 who allowed notice on the respondent. .Thomatter now comes up before me for disposal. Mr. T. S. Fernando whoappears for the respondent has taken tho preliminary objection that awrit of certiorari does not lie.
The petitioner was the Chairman of the Ambagamuwa VillagoCommittee. The respondent by his order dated the 14th May 1954 andpublished in the Government Gazette bearing No. 10,073 dated 21st May1954 removed tho petitioner from office on the grounds of (a) misconductin the performance of his duties as imposed by the -Village CommunitiesOrdinance and (6) abuse of the powers conferred upon him by thoOrdinance. The petitioner states that one of the consequences of thoorder is that under Section 62 of tho said Ordinance tho petitioner isdisqualified for a period of four years from exercising his civic rights as avoter and from being a candidate in an election for .a Village Committee.In point of fact as the result of various amendments .the petitioner isdisqualified from election to membership of a Local Authority for fiveyears but his right to vote at an election is not- taken away.
The petitioner in the affidavit supporting his application states thaton 22.4.54 the Commissioner of Local Government called upon him foran explanation wliy he had failed to account for in- the cash book n partof the electricity fees collected by the Committee’s collector. lie dulysubmitted liis explanation on 20.4.54. At no time was there any allega-tion of misconduct on his part, nor of any abuse of his powers as Chairman.The order removing him from office was made without any inquiry, andwithout giving him an opportunity to show eauso why such an ordershould not bo made.
The respondent and the Commissioner of Local Government have filedtwo affidavits dated the 11th December 1954. In the affidavit of therespondent it is stated that representations were made to him in or aboutApril 1954 that the petitioner had failed to account for monies that hadbeen roccived from tho consumers in the Bogawantalawa area and hedirected an immediate inquiry to be field. An inquiry was accordinglyheld by an Investigating Officer and it revealed that tho petitioner hadfailed to bring into account a sum of Rs. G94‘10 for a period of overseven months until the examination of the books by the InvestigatingOfficer. Tho respondent direct eel the Commissioner of Local Governmentto draw the petitioner’s attention to this lapse and to notice him to showcause why action should not be taken against him under Section 61 oftho Village Communities Ordinance. Tho petitioner by his letter dated25.4.54 showed cause. Having Considered the explanation given inthat letter as well as all other material before him the respondent wassatisfied that there was sufficient proof of (ft) misconduct in theperformance of the petitioner’s statutory duties and (b) abuse of hisstatutory powers. Tho respondent therefore in tho bona fide exerciseof the powers vested in him by Section Cl of tho Village CommunitiesOrdinance made order removing the petitioner from the office of Chairmanof the Village Committee of Ambagamuwa.
Section Gl of the Village Communities Ordinance reads as follows :—If at any time the Minister is satisfied that there is sufficient proof
of—
(tt) incompetence and mismanagement, or
persistent, refusal or wilful neglect to perform the duties imposedby this Ordinance, or
(e) misconduct in tho performance of those duties, or(re) persistent disobedience to or disregard of the directions,instructions or recommendations of the Executive Committee,or
(r/) abuse of the powers conferred by this Ordinance,
on tho part of tho Chairman of a Village Committeeor on tho part of the Village Committee, the Ministermay by order published in the Gazette—
{ii) dissolvo tlio Committee, and direct the Government Agenteither to tako steps for tho election of a fresh Committee ordirect tho Assistant Commissioner to administer tho affairsof that area for such period as may bo specified in the order. ”
Under Section 42 of tho Courts Ordinance a writ of certiorari wouldlie not only against regularly constituted judicial tribunals but alsoagainst bodies which while not oxisting primarily for the discharge ofjudicial functions j-et have to act analogously to a judge in respect ofcertain of their duties. For that statement of -tho law wo havo thoauthority of the Privy Council in the case of Nakkuda Alt- v. Jaijaratne l.
The first question to consider is whether in acting under Section 61of the Village Communities Ordinance the respondent was acting in ajudicial or quasi-judicial capacity, or whether lie was performing whatwas a purely administrative or ministerial function. If he was actingin an executive or administrative capacity writ of certiorari does not lie.
In Dankoluica Estates Co. Ltd. v. The Tea Controller – Socrtsz, J., heldthat an order made b3^ tho Tea Controller under Section 15 (l) of theTea Control Ordinance was one made by him in an administrative orministerial capacity and the Tea Controller not being under a duty toact judicially when he made the order is not amenable to the writ ofcertiorari.
In Nakkuda Alt v. Jayaralne1 it was held that upon the properconstruction of tho words ‘‘has reasonable grounds to believe ” theController of Textiles was not amenable to a mandato in tho nature ofcertiorari in respect of action taken under Regulation 62 of tho Defence(Control of Textiles) Regulations 1946 as ho did not act judicially orquasi-judiciallv..•■
In Bandiya v. The Land Commissioner3 Gunasekara, J., held thatunder t lie Rand Redemption Ordinance tho Land Commissioner’sauthority to acquire an agricultural land depended not upon its havingbeen sold or transferred in the circumstances set out in Section 3 (I) butupon his being satisfied that it had been so sold or transferred. If he wasso satisfied his acquisition of tho land would be an executive and not ajudicial act, and could not therefore be the subject of a writ of certiorariand prohibition.
On an examination of tho Villago Communities Oidinanco and havingregard to the language of Section 61 I would unhesitatingly say that theMinister when ho decides to act as empowered by the section is performingan executive function pure and simplo. Sir Lalita Rajapakso concededthat it was tho Minister who had to be satisfied of the various matterssot out in tho sub-paragraphs but ho argued that tho words “ that there issufficient proof of” could only moan that ho was performing a judicial orquasi-judicial function. I do not think bo. One must construe thesection as a whole and not emphasize parts of it taken out of their contoxt.
I uphold the preliminary objection. Tho application is refused withcosts._.
Applications refused.
• (19-50) -51 X. L. B. 157.» (1911) U X, It. R. 197. –
a (1950) 59 N. L, R. 95.