075-NLR-NLR-V-48-BUHARI-et-al-Petitioner-and-JAYARATNE-Controller-of-Textiles-Respondent.pdf
224
Buhari v. Jayaratne.
1947
Present: Dias J.
BUHARI et al, Petitioners, and JAYARATNE (Controllerof Textiles), Respondent.
Applications Nos. 58 and 59 for Writs of Certiorari.
Regulation 62 of Defence (.Control of Textiles') Regulations, 194S—Cancellation of Textile dealer’s licence—Controller cannot ordersuch cancellation without grounds—Effect of words “ has reason-able grounds to believe ”—Writ of certiorari.
By Regulation 62 of the Defence(Controlof Textiles)
Regulations, 1945,“ Where the Controller has reasonable grounds
to believe that any dealer is unfit to be allowed to continue as adealer, -the Controller may cancel- the textile licence or -textilelicences issued to that dealer ”.
Held, that the Controller is not entitled to cancel the licenceof a dealer without any grounds for his finding that the dealer isunfit to hold a textile licence.
Per Dias J.— “The word ‘ believe ’ is much stronger than‘ suspect ’ and involves the necessity of showing that the circum-stances were such that a reasonable man must have felt convincedin his mind of the fact in which he ‘ believed It is not sufficientthat • a person has reason to suspect. Unless there is evidenceneither a person nor a court can ‘ have reason to believe ’ that afact exists. ”
DIAS J.—Buhart v. Jayaratne
225
A
PPLICATIONS for writs of certiorari against the Controller ofTextiles.
E. F. N. Gratiaen, K.C. (with him D. W. Fernando), for both petitioners.
Af. F. S. Pulle, Acting Solicitor-General (with him H. Deheragoda, C.C.),for the respondent.
Cur. adv. vult.
May 30, 1947. Dias J.—
The two petitioners are brothers. They are both licensed dealers intextiles. By consent of parties the argument and decision of bothapplications were consolidated because the facts are precisely thesame.
Each of the petitioners is moving for a writ of certiorari or a writ ofmandamus against the respondent, who, at the material date, was theController of Textiles. It was conceded at the argument that thequestion of the issue of a writ of mandamus does not arise in theseproceedings.
Each of the petitioners has filed an affidavit. No counter-affidavithas been filed by the respondent.
The petitioners’ story is that licensed dealers in textiles are issuedcoupons to purchase textiles which they sell by retail for which theyobtain coupons from the buyers. It is customary for dealers toaccumulate such coupons by means of which they obtain fresh stocksfor sale.
It is alleged that on December 13, 1946, the petitioner in applicationNo. 58 came in his car from Matugama to Colombo bringing with himin a suit case 10,000 coupons belonging to him and another 10,000belonging to his brother, the petitioner in application No. 59, for thepurpose of purchasing textiles at Colombo. En route his car developed adefect and while the petitioner in application No. 58 was changing histyre, his suit case containing the coupons was stolen by one of the crowdof idlers who had been attracted to the spot. A prompt complaint wasmade to the Police and on the following day the loss of the coupons wasreported to the Textile Controller by telegram and letter—seeexhibit A.
Without holding any inquiry into the matter, the respondent by hisletter, marked B, dated January 17, 1947, wrote to the petitioners asfollows :
“ With reference to the alleged loss of your coupons on December 13,1946, I find that you are a pereon unfit to hold a textile licence, henceI revoke your licence under Regulation 62 with effect from January 30,
”
The Regulation under which the respondent purported to act is 62in the Defence (Control of Textiles) Regulations, 1945 That regulationreads as follows:—“ Where the Controller has reasonable grounds to
1 See Defence Regulations in force on October lt 1946, p. 108.
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DIAS J.—Buhari v. Jayaratne
believe that any dealer is unfit to be allowed to continue as a dealer, theController may cancel the textile licence or textile licences issued to thatdealer.”
Admittedly the Controller held no kind of investigation into thetruth or otherwise of the allegation that these textile coupons werestolen. The Controller did not refer the matter to the Police. Thepetitioners were not called upon for any inquiry, nor has any chargebeen framed against them, departmentally or otherwise, for making afalse allegation or giving false information.
The petitioners’ affidavits stand uncontradicted. I am, therefore,entitled to presume that the Controller acted without any grounds forhis finding that these petitioners were unfit to hold a textile licence.
The words “ has reasonable grounds to believe “ have been judiciallyinterpreted in Rex v. Banks' and Rex v. Harrison and others'. Theword “ believe ” is much stronger than “ suspect ” and involves thenecessity of showing that the circumstances were such that a reasonableman must have felt convinced in his mind of the fact in which he“ believe ”. It is not sufficient that a person has reason to suspectKarthigesu v. Alwis ’. Unless there is evidence, neither a person nor aCourt can “ have reason to believe ” that a fact exists—Litten v.Perera *.
Furthermore it has been decided in the case of Abdul Thassim v. EdmundRodrigo' that when the Controller exercises functions under Regulation62, he is a “ person or tribunal ” within the meaning of section 42 of theCourts Ordinance, and the fact that he can only act under Regulation 62when he has “ reasonable grounds ” indicates that he is acting judiciallyand not exercising merely administrative functions. A writ of certiorariwill therefore lie against the Controller if he acts without jurisdictionunder Regulation 62.
It is also a cardinal rule of justice that officers exercising judicial orsemi-judicial functions must act in good faith and fairly listen to bothsides, for that is a duty lying upon everyone who has to decide anything—per Lord Loreburn L.C. in The Board of Education v. Rtee *. See also ourlocal cases.—Dharmarama v. WimalaratneAtadasi Unnanse v. RewataUnnanse Nuku Lebbe v. Thamby *.
The learned Acting Solicitor-General has quite rightly not attemptedto justify the irregular proceedings.
The order nisi is therefore made absolute with costs in regard to each
petition.
Order made absolute.
*(1916) 2 K.B.at p. 622.
1 (1938) 159 Law Times Rep. 95.■* (1929 ) 30 N. L. R. at p. 508.
(1908) 11 N. L. R. at p. 94.
‘ (1947) 48 N. L. R. 121.
(1911) App. Cases at p. 182.’ (1913) 5 B. N. C. 51.
(1928) 29 If. L. R. at p. 364.
• (1913) 16 N. L. R. 94.