nATJinK'TiiR.A'i'N K J.—Controller of Textiles v. Mohamed Miya.
1948Present: Soertsz S. P. J. and Canekeratoe J.CONTROLLER OF TEXTTLES, Petitioner, and MOHAMED MIYA,
S. C. 478—Application for conditional leave to appeal to thePrivy Council in Application No. 751,419.
Privy Council—Conditional leave to appeal—Certiorari quashing order made byTextile Controller—Civil right—Value of property—Legislative EnactmentsChapter 85, section 3.
Where the Supreme Court granted a mandate in the nature of a writ ofCertiorari quashing an order by whioh the Textile Controller had revoked twolicences—
Held, that an appeal lay to the Privy Council under section 3 of Chapter 85of the Legislative Enactments.
Application for conditional leave to appeal to the Privy Council.
H. W. R. Weerasuriya, C.C., with V. Tennekoon, C.C., for thepetitioner.
H. V. Perera, K.C., with C. E. L. Wickremesinghe, for the respondent.
Cur. adv. wit.
January 16, 1948. Cahekeratne J.—
This is an application for leave to appeal to His Majesty in Council froman order made by this Court. The respondent is a licensed dealer intextiles and the petitioner the Controller of Textiles. The latter made anorder revoking two licences, granted to the respondent, on Febru-ary 22, 1947, and on his application a mandate in the nature of a writ ofcertiorari was issued quashing the order made by the petitioner.
The power to grant leave to appeal is to be found in Chapter 85 of theCeylon Legislative Enactments which contains substantially the pro-visions of Ordinance No. 31 of 1909. The application would not be allowedunless the case fulfils the requirements of section 3 of Chapter 85, and thelimitations and conditions prescribed by the rules in the Schedule. Theapplicant must be party to a proceeding in the Supreme Court and thatproceeding must be a civil suit or action L The relevant rule in the caseof an application for leave to appeal is rule one, which is, omittingunnecessary words as follows :—
Subject to the provisions of these rules, an appeal shall lie—
as of right, … where the matter in dispute on the appeal
amounts to or is of the value of five thousand rupees or upwards,or where the appeal involves directly or indirectly some -claim orquestion to or respecting property or some civil right amountingto or of the value of five thousand rupees or upwards ; and
1 Sec. 3 of Chap. 85, C. L. E.
108 CANEKfiBA'JflK J.—Controller of Textiles v. Mohamed Udiya.
(6) at the discretion of the Court,, in the opinion of
the Court, -the question involved in the appeal is one which, byreason of its great general or public importance or otherwise,,ought to be submitted to His Majesty in Council for decision.
In support of the application it is said, first that the appeal involves aclaim or question to or respecting property of the required value, secondlythat it involves a claim or question to or respecting a civil right. It is alsourged, that even if these grounds be insufficient to justify a grant, theorder granting a mandate has a grave effect upon the power of the Control-ler of carrying on his work, and that the case is one which ought to be sub-mitted for decision to the Privy Council whatever may be the amountinvolved in the appeal. To these it was answered that the mandate wasissued in a criminal cause or proceeding, but that, if it was a civil matterthe case was below the monetary value prescribed by the rule.
In issuing a mandate in the nature of a writ of certiorari, this Court-exercises an original jurisdiction ; proceedings must be initiated in theSupreme Court itself by the person desiring relief, the writ of certi-orari may be had in either civil or criminal proceedings. It lies to removefor the purpose of quashing the determination of persons or bodies whichare by statute entrusted with judicial or quasi-judicial functions out ofthe ordinary course of legal procedure. Thus Justices of the Peace whenacting in the capacity of licensing Justices do not constitute a Court in theordinary sense of the word but their acts nevertheless are judicial actsand certiorari lies in respect of orders made by such persons in the capacityof licensing Justices. From a decision of the original Court (the King’sBench Division) in such a matter an appeal lies to the Court of Appeal (inEngland) as this is not a case which is of criminal character1.
The answer to the contentions of the parties depends upon the trueconstruction of the rule. It is an affirmative enactment shoving how theCourt is to act. It is obvious that the language used in the rule imposes alimitation on the right of an applicant. It may be said that part “ a ” isonly a partial limitation : part “ b ” on the other hand gives and applicantonly a right to submit the question to the discretion of the Judges.
The enactment under which the Controller of Textiles has to act isthe Defence (Control of Textiles) Regulations, 1945. The effect of theregulations was to place restrictions on the sale of textiles on the groundprobably that the free sale of them was injurious to the public interestsor safety. A rule placing such a restriction affects materially the rightof a man to carry on a trade or deal in goods. He cannot, since theenactment of the regulations, deal in textiles unless he obtains a licencefrom the Controller. The power of granting a licence, or the right ofrefusing it, is conferred on the Controller : he would be expected toexercise the discretion honestly and in the spirit of the enactment. Aregulation of this nature has an obvious and close similarity to a lawwhich places restrictions on the sale of intoxicating liquors or poisonousdrugs. A power to revoke or call back the licence is conferred on thesame authority by regulation 62. The Controller has certain other powerstoo, e.g., making a punitive order under regulation 58. A revocation of
1 R.v. Sunderland Justices (1901) 2 K.. B 357. R.v. Woodhouse (1906) 2 K. B.501.
CANEECERATNE J.—Controller of Textiles v. Mohamed Miya.
-a licence under regulation 62 can hardly be said to be an order madein a criminal proceeding. It is an order of the same species as the grantor refusal of a licence to sell intoxicating liquor, drugs.
The leave of the Court must be obtained under clause “ b ” that the-case is one that is fit to be appealed from. Clause “ b ” gives the Courta power. But what is the nature of that power ? It is a discretionarypower : it imposes upon the Judges the duty of determining whetherin their view the case is one which is fit to be submitted to the highesttribunal. The question upon an application of this nature is whether,considering all the circumstances of the case, and the interests of theparties and of the public, the case ought to be submitted to His Majestyin Council for decision. If the case involves questions of a complex•or highly important nature calling for the view of a superior tribunalfor settling the rights of numbers of persons, even if the amount claimedin the action was small, the Judges may well be of opinion that it shouldbe heard in the highest tribunal. There are many other circumstanceswhich would properly influence the decision of a Court as to the proprietyof allowing an application such, for instance, as was once remarked, aconstitutional right. The refusal or cancellation of a licence may havethe effect of preventing a man from carrying on a trade he desires orone he was carrying on but it can hardly be regarded as the denial ofthe civil right of a person. The words “ civil right ” are used in contra-•distinction to the word “ property ”. An order designed to create or•to dissolve a status, would affect the civil right of a person—an orderthat a man should not be permitted to exercise the franchise may, perhaps,he one.
I now come to what is the difficult and certainly the most important partof the case, namely, whether or not the appeal involves some questionto or respecting property of the required value. The word “ property ”is a very comprehensive term, it is descriptive of every possible interestwhich a person can have, it will include things movable and immovable,■corporeal and incorporeal, e.g., a right of action, a patent; thus rightsarising from contract would fall within the term. The words respectingproperty are used in contradiction to the words “ to property ” anda question about property must arise between two persons—they wouldinclude any question whatever that is connected with property, so aquestion relating to one’s property, that is one which affects a person’sproperty in the sense of taking away apart of his property or causinghim loss or damage would be one respecting his property. If the effectof an order made by A is to prevent B from taking delivery of goodsconsigned to him, the order is one relating to the property of B and ifa dispute arises between the two as regards the validity of the orderthere is a question at issue between them. The words “ respectingproperty ” are wide enough in scope to enable the petitioner to the reliefhe seeks. The respondent had, according to his affidavit, stocks of thevalue of about Rs. 400,000 ; there were also textiles imported by himlying at the Customs of the value of about Rs. 175,000 and textiles intransit of the value of about Rs. 175,000. He had further placed ordersfor textiles of the value of about Rs. 8,000,000. He was allowed by theController a period of fifteen days within which to dispose of his stocks
DIAS J.—The Attorney-General v. Herath Singho.
(see letter D, referred to in the affidavit). Considering the great demandfor textiles at this time, it is probable that he would have been able totransfer a considerable part of the stocks to another dealer or dealers.Even if it is assume that he would be successful in disposing of all hisstocks, there would still remain the goods lying at the Customs, whichthe respondent was not allowed to remove on the orders of the petitionerbefore the cancellation of the licence and the goods in transit. Theestimated value of these is well over Rs. 5,000.
The application for leave to appeal should be allowed with costs.
Soertsz S.P.J.—I agree.