076-NLR-NLR-V-65-BOARD-OF-TRUSTEES-OF-MARADANA-MOSQUE-Petitoner-and-MINISTER-OF-EDUCATION-and-a.pdf
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Board of Trustees of Maradona Mosque v. Minister of Bducaiion – – – – – – *■
1963Present: Herat, J.
BOARD OB TRUSTEES OF MARADANA MOSQUE, Petitioner, andMINISTER OF EDUCATION and another, Respondents
S. C. 573/61—Application for a Mandate in the nature of Certiorarion the Hon. Badi-ud-din Mohamed, Minister of Education, andMr. S. F. de Silva, Director of Education
Assisted Schools and Training Colleges (Special Provisions) Act, No. 5 of 1960, asamended by Act No. S of 1961—Sections 4 (1), 6 (J), 11—Declaratory orderunder Section 11—Can it be questioned by Certiorari ?—Difference between a“ judicial act ” and an “ executive act”.
Certiorari does not lie to question or quash a ministerial or executive acteven if done illegally.
Section 11 of the Assisted Schools and Training Colleges (Special Provisions)Act provides that “ -where the Minister is satisfied …. after consultation withthe Director, that any unaided school is being so administered in contravention
of any of the provisions of this Actthe Minister may by order published
in the Gazette declare that, with effect from auoh date as shall be specified inthe order, (1) such school shall cease to be an unaided school, (2) such schoolshall be deemed for all purposes to be an assisted school, and (3) the DirectorshalL be the Manager of suoh school.”
Held, that a declaratory order marie under Section 11 of the Assisted Schoolsand Training Colleges (Special Provisions) Ant and the consequential vestingorder under Section 4 are ministerial and not judicial acts. They cannottherefore be questioned, by way of certiorari.
Where 52 teachers out of a total of 64 teachers in an unaided school (ZahiraCollege, Colombo) were not paid their salaries by the Manager of the School—Held, that an order under Section 11 of the Assisted Schools andTraining Colleges (Special Provisions) Act was legally valid.
HERAT, J.—Board of Trustees of Maradana Mosque v. Minister of Education 377
Application for a writ of certiorari on the Minister of Educationand the Director of Education.
H. V. Perera, Q.C., with S. Sharvananda, Izadeen Mohamed and BalaNadarajah, for the Petitioner.
A. C. Attes, Deputy Solicitor-General, and V. Tennakoon, DeputySolicitor-General, with E. L. de Silva and B. 1. Obeyesekera, CrownCounsel, for the 1st and 2nd respondents.
Cur. adv. vult.
September 3, 1963. Herat, J.—
Section 6 (1) of Act No. 5 of 1960 as amended by Act No. 8 of 1961(the Assisted Schools and Training Colleges Special Provisions Acts)provides that in the case of all unaided schools the salaries of teachersshould be paid on or before the 10th day of every succeeding month.A breach of that provision is a breach of a provision of the Act.
Section 11 of the said Act No. 5 as amended by Act No. 8 aforesaidprovides that “ where the Minister is satisfied …. after consultationwith the Director, that any unaided school is being so administered incontravention of any of the provisions of this Act … the Minister mayby order published in the Gazette declare that with effect from such dateas shall be specified in the order (1) such school shall cease to be anunaided school, (2) such school shall be deemed for all purposes to be anassisted school, and (3) the Director shall be the Manager of such school.”
At all relevant times Zahira College, Maradana, was an unaidedschool within the meaning of the said Act No. 5 of 1960 as amended byAct No. 8 of 1961. The Petitioner which is the Board of Trustees of theMaradana Mosque is an incorporated body under section 7 of th e MaradanaMosque Ordinance, No. 22 of 1924. The Petitioner at all relevant timeswas the Manager of the said Zahira College. It is an admitted fact andestablished on the affidavits filed in these proceedings that the salaryfor July 1961 of 52 teachers out of a total of 64 teachers belonging to thestaff of Zahira College was not paid to them by or before the 10th ofAugust 1961, which date according to the provisions of section 6 of ActNo. 5 of 1960 as amended by ActNo. 8of 1961 was the latest date for thepayment of their salaries. There was clearly a contravention of section 6of the Act and if the Minister was satisfied in consultation with theDirector of Education that the school in question was being administeredin contravention of the provisions of the Act, the Minister was entitledto make an order under section 11 declaring that the school was nowan assisted school and that the Director was the Manager. And afterthis was done a vesting order vesting the school premises in the Growncould be made under section 4 (1) of Act No. 8 of 1961. This was alsodone.
378 HERAT, J.—Beard of Tntoleas of Maradona Mooque v. Minister of Bduartion
The Minister in consultation with the Director acted under section 11and published an order in the Government Gazette declaring that hewas satisfied in consultation with the Director that there had been acontravention of the provisions of section 6, and declaring Zahira Collegean assisted school and that it was Director-managed. Subsequentlya vesting order vesting the school premises in the Grown was duly madeand published in the Government Gazette.
The Petitioner in this application seeks a writ of certiorari to quashthese order’s.
In my opinion this application must fail for two reasons. The firstreason is that a writ of certiorari does not lie in the circumstances of thiscase. It is trite law that remedy by way of certiorari only lies to questionand quash a judicial act. It does not lie to question or quash aministerial or executive act, even if doue illegally. Such an act, even ifillegal or ultra vires, must be canvassed by a different procedure. Are theacts of the Minister in making the declaratory order under section 11and the consequential vesting order under section 4 “ judicial' ’acts or“ executive”—“ administrative ” acts ? One must look at the relevantprovisions of the statute before one answers this question. Section 11requires the Minister to be satisfied in consultation with the Directorthat the Act is being contravened. Giving these words their plaingrammatical meanings, all that the statute requires the Minister to dois to consult the Director and satisfy himself of contravention. Thereis no requirement for an inquiry of any sort, far less for a judicial inquiry.I am not in the habit of burdening my judgments by copious quotationsfrom other men’s minds, but I am humble enough to spend much timein reading and meditating upon the opinions of other judges and legalwriters on the difference between a " judicial ” act and an “ executive ”act. The result of what I have read makes me come to the conclusionthat the essence of a "judicial act” is where the law predicates aninquiry by the judicial process before the reaching of the conclusionwhich results in the act. On the other hand an executive act is done by aprocess where the law predicates no prior judicial process before thearrival of a mental decision preceding the act. The exercise of judgmentis not the test. For instance an administrator has to decide on whichof two plots of land, A or B, a housing scheme is to be erected. Beforehe decides to build on plot A rather than, on plot B, he will consider manyfactors and undoubtedly exercise his powers of judgment—but hisdecision in favour of plot A and not in favour of plot B is not a judicialact. The law does not require him to go through the judicial process.The essence of the judicial process is inquiry, the taking and considerationof evidence, and the hearing of both sides interested in the matter. Veryoften, even where purely immaterial, or executive acts are concerned, thevalue of the judicial process is such that the person called upon to decideadopts the judicial procsss by holding some sort of inquiry andhearing both sides, but the act still remains a ministerial act. In thecase of the statute tinder consideration, there is no requirement of anyinquiry. The Minister can consult the Director and can satisfy himself
The Chairman, Urban Council, Trincomalee v. Kaudasaniy
379
by perusing the file forwarded by the Director. If the Minister is thenpersonally satisfied that there has been a contravention of a provision ofthe Act, it is open for him to act under section 11. It may be thatthe act of the Minister is unjustified but as his act is a purely ministerialjone it cannot be questioned by way of certiorari but has to be tested inour Courts in other ways. The great writ of Certiorari must be jealouslyguarded and upheld no doubt, but it must be confined to its properscope and not allowed to hamper the administration in its legitimate.sphere.
The second reason why in my opinion the present application failsis the following. The act of the Minister was intra vires and not ultravires. The words of section 11 are “ being administered in contraventionof the provisions. ’ ’ In my view one flagrant act of contravention satisfiesdhe condition of “being administered in contravention”. As stated•earlier, 52 teachers out of a total of 64 were not paid their salaries for July1961 by 10th August 1961, and they had brought their grievances to thenotice of the Director. The Director and the Minister acted in consulta-tion with each other and the order under section 11 was legally valid.I uphold the validity of the Minister’s act and I hold that in the circum-stances of the case it was a perfectly honourable and legal action for theMinister to do.
I also hold that the vesting order under section 4 of Act 8 of 1961 was■a ministerial act and cannot be questioned by way of certiorari. Infact it is a purely consequential order flowing from the order made undersection 11. I also hold that this order was intra vires.
In the result, t hold that the application of the Petitioner fails and is•dismissed with costs payable to both the Respondent?.
Application dismissed.