022-NLR-NLR-V-57-D.-C.-WIJEWARDENA-Appellant-and-THE-PUBLIC-TRUSTEE-Respondent.pdf
Present :Sansoni, J., and Fernando, A.J.
C. AVI J E WAR D EX A, Appellant,-rrW THE PUBLIC THUSTKE,
Respondent
.«S'. O. 31S—D. C. Colombo, 2-1G ‘Special
lluddhist Ecclesiastical Law—Sripada.il/iiiuti—Xominntion of Trustee by 1 ihuradhi-.palhi—Public T r it sice's refused to issue letter of appointment to 1 rustce
Dispute us to person entitled to be- Viharadhipnllti—Hemcdy of Trustee. Mandamus or retjulur action ?—Procedure for election of 1 ilutrudhipalhiJluddhisl Temporalities Ordinance [Cap. 222), ss. 2, 10 (/). 11, 33, U Public.Trustee Ordinance- [Cap. 73). s. 3—Civil Procedure Code [Cap. Xf>). *. 217(.K) and [O).'
Sub-section 2 of section It of tho Buddhist Temporalities Ordinancejnrovidos :—
Whenever a nomination is duly maclo under sections 9 or 10 and roportoclto tho Public Trustee it shall be tho duty of tho Public Trustee to forth-with isstio a letter of appointment to tho person so nominated unlesssuch appointment would contravene* the provisions of this Ordinance.
iSub-section 3 (6) further provides :—
Whenever by reason of any disputes as to tho person entitled to makesuch nomination inoro than one person, is reported to tho Public Trusteeas having been duly nominated trusteo of any temple, the Public Trustcoshall, pending a legal nomination, …. if be thinks fit provi-
sionally appoint as trustee any person duly qualified.
Defendant, the Public Trustee, refused to issue a letter of appointment totho plaintiff when the latter was nominated as Trustco of Sripndastliana byD. who was duly elected on February 18, 1934, ns Viharndhipathi of Sripadas-thana. Ido alleged, on clearly untenable ground, that tho office of Viharadhi-jinthi bad been duly filled by tho election of one it. on Fobrunry 14, 1934, andthat It. had made his own nomination to tho trusteeship. In thesocircumstances plaintiff sued tho Public Trustee asking (1) for a declarationthat ho was fbo duly appointed Trusteo of Sri pa das t liana, and (2) that thoPublic Trustee be directed to issue to him a letter of appointment as suchTrustee.-
Held, (Ferxaxdo, A.J., dubitaute), that it was wrong to rofuso tho plaintiffrelief on the ground that ho should have applied for a writ of Mandamus ;tho District Court had jurisdiction to grant in a regular action the reliof forwhich the plaintiff prayed, if it found that D. was tho properly electedViharndhipathi.
Custom and procedure relating to tho election of the Viliaradhipathi of Sri-padasthana in tho Kntnnpura District of the Province of Sabaragamuivareviewed.
A.PPEAL from a judgment of the District Court, Colombo.
H. IF. Jayeuardene, Q.C., with IF. D. Gunasekera, Jf. L. de Silva andC. E. Jayeuardene, for the plaintiff appellant.
H. A. Wijemunne, Crown Counsel, withfor tlio defendant respondent.
V. Tennekoon, Crown Counsel,Cur. adv. vult.
December In, 19n4. S.vxsoxr, J.—
. The plaintifF-appellant sued the Public Trustee (the defendant-respon–dent) asking (1) for a declaration that he is the duly appointed. Trustee ofSrijiadasthana in the Ratnapura District of Sabaraganiuwa Province and
that the Public Trustee bo directed to issue to him a letter of appoint-ment as such Trustee. The plaintifF claimed that onthe 9th March, 1947,he was nominated as Trustee by Morontuduwe Sri Dhammananda NayakaThera, the duly a2>pointed Nayaka Thera of Sripadasthana, who reported•such nomination to the Public Trustee but the Public Trustee re fused to issue
a letter of appointment to him. The Public Trustee in his.answer deniedthat Dhammananda Thera had any legal right to the office of NayakaThera of Sripaxlastha'na, and the legal capacity to nominate the plaintiff asTrustee. He denied that the refusal by him to issue a letter of appoint-ment was wrongful. -Another defence raised was that tho District Courthad no jurisdiction to entertain this action in the absence of any provisionin the Buddhist Temporalities Ordinance (Cep. 222), conferring juris-diction on such Court in a case whero the Public Trustee has refused toissue a letter of appointment in terms of section 11 of that Ordinance.
It is common ground that according to custom the right to appoint theXaj'aka Thera of Sripadasthana is vested in the priests of the MahvattaBranch of tho Siamese Sect resident in the Ratnapura District (as it wasthen called) or Sabavagamuwa Province (as it is now called) who elect oneof their number ; a further qualification is that the priests exercisingthis right must bo ordained priests. The judgment of this Court inVan/lerstraaten's Reports, page. 215, provides a useful starting point for areview of the early history of this office. The judgment of 1S71 decidedthat Hikkaduwa Sri Sumangala Thero had been duly elected, and hocontinued in office till he died in 1911. There then arose a dis'pute betweenthe Karaka Maha Sangha Sabhawa and the Mai watt a priests of theRatnapura District as to how his successor should be chosen. A settle-ment of tho dispute, known as tho Vaughan Settlement, was arrived at on7th December, 1911. It purports to bo a decision of the Karaka Maha.Sangha Sabhawa in the following terms :—
That tho High Priests a-ppointcd by oiir Malia Sangha Sabhawa forthe Sabavagamuwa Disaweny or the District of Ratnapura do hold ameeting of our section of the Siamese sect resident in Ratnapura Districtat a suitable place in the District for the election of a high priest forAdam’s Peak and that the signatures of those present at the meeting infavour of the different applicants ho obtained and forwarded with therespective applications and the list of signatures ; they be carefullyexamined by us and the candidates for whom a majority of votes hasbeen given be- duly appointed High Priest cf Adam’s Peak and that- anAct of Appointment be issued by us and the Government be informedof such appointment. ”
It was signed by the Mahan ay ake Thera and two .Aim NayakaTheras of Malwatta Yiharabefore the Government Agent, Central Province.An election was held on 21st January, 1912, at which Paragala SobithaThera was elected. It would appear that a list of the priests qualified tovote was sent to tho Mahanayaka Thera some days before the election so asto obviate subsequent objections to tho qualifications of electors, andhe had the list printed after perusal. The Mahanayaka Thera had.informed the Government Agent, Central Province, that if a priest withthe necessary qualifications attended the election his name would be addedto the list of voters after inquiry into his claims. It was also agreedbetween the Government Agent, Central Province, and the Mahanayake-Thera that the election should be by ballot-, a list of voters being sent tothe latter together with the result of the election. On receipt of the report-
of the election the Sabhawa met and appointed Sobita Thera and askedthe Government Agent to accept him. He functioned as Nayako Therauntil ho died on 29th November, 1912.
The election of his successor took place on 9th February, 1913, and Ram-bukpotha Pannasara TJicra -was elected. A report of the proceedings wassent to the Mahan ay ake Thera by the Government Agent, Sabaragamuva,and it disclosed that a dispute had arisen at the election over the qualifi-cation of certain i>riests. Apparently the presiding High Priest had gonebeyond considering whether they had the minimum qualifications requiredof an elector, and disqualified twenty priests. The Government Agentasked the Sabhawa to inquire into the question of the rights of these priestsand to decide whether the election should stand or be set aside. The Snn-gha Sabhawa accordingly considered the matter and reported to the Gov-ernment Agent that they had appointed Rambukpotha Pannasara Thera asNayaka Thera of S'ripadasthana and asked the Government Agent toaece2>thim, which the Government Agent did. Rambukpotha died in 1925.
Tiie compilation of a list of voters preparatory to the election of asuccessor seems to have engaged the attention of certain priests. Urapolaltatnajotlii Thera who contested the election with Morontuduwc Dham-mananda Thera forwarded a list to the Mali ana yakc Thera in 1925, statingthat ho tried in three ways to make a correct list, viz., by informing thelikely candidates, by informing the Ratcmaliatmayas, and by inviting thevoters (through notices in the Press) to send in their names. He suggestedthat if any names have been omitted they can be added after referencehas been made t-o the Lekam Mitiya. His letters show ihat lie wasendeavouring toconform to the wishes of the Maha Sangha Sabhana. Hut-difficulties seem to have existed in regard to holding a meeting to electa Naj'aka Thera and the Government Agent, Sabaragamuwa, wrote to theMahanayaka Thera in 1929 suggesting that they might be overcome if thelatter would call the meeting and incside over it. No election was heldthat year. Even in 1931 there still seems to have been some difficultyabout the preparation of the list of voters. ZDhuminarakitta Thera, awitness called bjr the Public Trustee, wrote in that year to MorontuduwcSri Dliammananda Thera pointing out that t: a list- devoid of defects suchas omissions and additions is a work of the utmost necessity”. Ho alsogave expression to certain views as to how the eligibility of a voter shouldbe decided.
On 1st November, 1931, the Buddhist Temporalities Ordinance, (Cap.2-22), came into operation. It contained provisions for the compulsoryregistration of Buddhist priests. According to the amended form set outin the Schedule, applications for registration had to be sent in duplicate totho Registrar-General, countersigned by the Mahanayake Thera (or XimkcThera in the case of a sect which had no Mahanayake Thera) of tho Nikayaor the District Nayake of the Nikaya. The Registrar-General wasexpected to retain a copy and scud the other to the Mahanayake Thera orNayake TJicra, as the case may be. The countersignature was obviouslyintended to ensure tjiat a responsible person had scrutinised the applica-tion before it was filed by the Registrar-General and entered in a‘ registerto be kept by him. It was with this object that the Schedule as originally
enacted was amended on 11th March, 1032, for according to the form asoriginally enacted if was sufficient if the application was countersigned bythe Robing or Ordaining Tutor. But in spite of the clear provisions of theOrdinance the Registrar-General, with the concurrence of the 3.{misterof Home Affairs, seemed intent on countenancing a contravention of therequirements of the Ordinance by permitting priests who were not- autho-rised to do so to countersign the applications for registration. Ho per-sisted in accepting applications which did not comply with thestatutory requirements. On 6th November, 1932, the Mahanayake Therawrote to the Registrar-General:—'
Uposliita Pasparamaya.,Kandy,
Gth November, 1932..
The Registrar-General,
Colombo.
. Sir,
List of Registered Bhikkus
I have the honour to request you to be good enough as to furnish me-• or the Government Agent, Sabaragamuwa, with an accurate list of'Upasampada Bhikkus resident in the Ratnapnra District whose names-have been duly, registered under Ordinance Xo. 19 of 1931.
The absence of this list has now become the only obstacle in the way.of electing a Xayake Thero for Adam’s Peak which post has been vacant. for several 3-ears and cannot be kept vacant any longer as there is a-popular clamour for an early appointment.
I use the words accurate and duly in paragraph 1 deliberately as a' copy of a list purported to have been sent by you to the Government'Agent, Sabaragamuwa, has reachodmethroughXayakeThero of Sabara-gamuwa, and this list is a curious one as apart from seven namesappearing twice each I also sco therein the names of a large number ofBhikkus whose applications for registration have not been counter-signed either by theNayake Thero of Sabaragamuwa or by mo althoughI made it quite clear to the Bhikkus of m3* sect b>* notification in thepapers and otherwise that all applications for registration should becountersigned cither b>* me or b}- the District Naj-aka Thero of theDistrict in which the applicant- resides. I maj* mention incidentally -that it is not onlx* because of the cons idera ble amount of error and dis- •crepanc3* which ma3* creep into the register by your acceptance of appli-cation forms not correct^* countersigned (the intention of the Ordi- .nance being obvious from the provision at the end of the 2nd page of theprinted application form) but also in the interests of discipline andproper administration of m3' largo sect that I insisted and doinsist now that all applications should be countersigned as aforesaid-
I would therefore specially point, out that a list you will bo goodenough to furnish should include the names of only those Bhikkus whosoapplications have been countersigned either by the Chief High Priest cfSabaragamuwa or by me.
I am, Sir,
Yours faithfully,
(Sgd.) Pahamunne Sri Sumangala(In Sinhalese)
Malm Xayake Thero of Malwatte.
I quote this letter in full as it shows plainly with what intention the Maha-nayake Thera was insisting on strict compliance with the Ordinance.There followed further correspondence between the Reg istrar-Genera 1and the Mahami3rakc Thera which indicates clearly that while the Maha-naj-ake Thera was insisting on registration according to the provisions ofthe Ordinance the Registrar-General did not think such compliance wasan essential requisite of registration.
The Mahanayake Thera caused a notice to be published in the issue ofthe Sinhala Bauddhciya of 2Sth January, 1933, headed “Voters concerningthe Xayakc-ship of Sripadasthana It draws attention to an order madeby him with regard to the certifying of the declaration forms and requiresthose who have not complied with the order to send certain particularsabout themselves for comparison with the Lekam Mitiya ; it states thatthose whose claims are established will have their names entered in thelist of voters, while those who do not comply with the requirements setout in the notice by the 10th February, 1933, will not be permitted to takepart in any acts connected with. Sripadasthana “ as the permanent resi-dents of Ratnapura District belonging to our Xikaya It will thus beseen that those priests who had failed to comply with the earlier order ofthe Mahanayake Thera were as a last opportunity given two weeks within,which to have themselves included in the list of voters by sending therequired particulars and proving themselves to be eligible. Bearing inmind what had happened earlier I do not consider this too short a time forthe purpose, nor has any witness been called to say that he was not awareof these requirements. On the 2Sth April, 1933, tlio Mahanayake Theraagain appealed to the Registrar-General to remove from his register thodeclarations which had been improperly countersigned. Xn liis letter hequotes instances of declarations which had not been countersigned correctlyand contained incorrect entries. He pointed out that “ otherwise therewill be serious litigations and troubles among the Bhikkus of the (Ratna-pura) District and thereby we will also have to face innumerable troublesand concludes “ Therefore we wish to remind you again that it is yourduty according to law to return those declaration papers to the respectiveBhikkus On 7th October, 1933, a resolution was passed by the ICarakaMalm Sang 1 ia Sabhawa in the following terms :—•
– “ In accordance with the Order of Sangha issued on the decision of ourKaraka Maha Sangha Sabha in connection with, the registration of
' Bhikkus under the Section 41 of the New Buddhist Temporalities Ordi-• nance, the Bhiklcus hitherto registered as belonging to our MalwattoVihara section and permanently resident in the Batnapnra District andwho had obtained the certification of the Chief High Priest of the•Sahara gam uwa Province or that of the Mahanayako Them should berecognised as voters regarding the Nayakaship of Sripadasf liana or asour Bhikkus resident in Batnapnra District. Anyone who docs not. accept the Order of Sangha docs not possess any claim, power, right orresponsibility as one of our Bhikkus of Batnapnra District. Therefore,the list of Bhikkus who were registered as above, should be sent to theChief High Priest of Sabaragnmuwn Province, certified as the list ofvoters regarding the Nayakaship of Sripadast liana."
The list of voters prcparod in accordance with this resolution lias been pro-duced. It is document D I dated !)th October, 1033, which was publishedin the issucof tho Sin/<«£a- Bauddhaya of J3th January, 1034. It was certi-fied as correct by the Mnhanayakc Thera. By his letter to the Editorof .the Dinamina and published in the issue of lGth January, 1034, theMahanayako Thera explained that the list of voters compiled in accordancewith the resolution of the Sabhawa was sent to the Chief Priest of theRatnapura District- for the purpose of summoning a meeting to elect a'Viiiaradhipathi for Sripada. He stated further that it must be consideredtho final list, and that- no priests who failed to comply with the resolutionreferred to would have any right to interfere in any matter connected withthe administration of Sripada, nor would anyone elected by the votes ofsuch, priests be recognised by him as Viiiaradhipathi of Sripada. The-need for such a- letter obviously arose from the move on the part-ofcertain priests and laymen to hold a meeting—which was in fact held on14th Pebruary, 1934—independently of the Sabhawa. for tho very purposeof electing a Viiiaradhipathi.
. A meeting to elect a Viiiaradhipathi of Sripadast-liana was fixed to heheld at Iviriclla Pahala Pansala on IStli February, 1934, at S’- 30 a’.m. andnotices of that meeting were published in the Dinamina newspaper of22nd January anil 2nd February, and in tho Sinhnlrt■ Bauddhaya of 3rdFobruary, by Morontuduwe Dhaminanaitda Thera as Chief High Priestof Ratnapurfi District. It was stated in the notices that it would be ** apublic meeting of priests having the qualifications and right to vote ".When read in tho light of the Mahaiiayake's letter of lGth January, 1934,and tho earlier notice of 28th January, 1933, the plain meaning of thesenotices is that only those whose names appeared in the list published on]3th January, 1934, need attend that meeting as voters.
. For the Public Trustee it was urged before us that as a result of thesenotices having been published in those terms priests who had tiie rightto vote were deprived of that right by the Sabhawa, which had no rightto prepare a list or impose conditions to be- satisfied before a name wasinserted in the list ; so long as a priest possessed the qualifications laiddown in tho Adam’s Peak judgment of 1S71, he should havo beon permittedto vote and tho notices convening tho meeting of IStli February, 1934.should have stated so in clear terms. For tho plaintiff it was submittedthat a list of voters ".is a necessary prerequisite of ail election, and the
Sabliawa wasthe proper authority to tlccido how the list should bo com-piled. Tho Sabliawa – resolution only declared that priests whoclaimed a right to vote should submit their claims in a certain way andby a certain date, and no priest who claimed to Ixs a member of theMalwatto sect should object to such a rule laid down by tho governingbody of that sect. Tho learned District .Judge took tho view that thopreparation of a list was not neccssarj^ ; he held that the effect of thepublication of the notices and letters I liavoreferred to was to disfranchiseseveral priests merely becauso they did not conform to the orders of theSabliawa with regard to the manner of getting their registration formscountersigned, and that tho Sabliawa had no power to prevent themfrom voting. Ho also held that several priests whose names appeared inthe register kept by the Registrar-G'enoral would have been deprived oftheir votes. He accordingly decided that the election of MorontudnwoSri Dhammananda Thera was bad and the nomination made by himcould not be regarded as having been duly made as required by theOrdinance.
The previous history of the matter seems to iudicut that the Sabliawa.was recognised, at any rate from the time of the Vaughan Settlement,as tho proper body to conduct the election of a Viharadhipathi. It hailinquired into the qualifications of certain priest, when a dispute arose in1913, the Mahanavakc Thera wa.- sent a list of voters in J 011 so as toobviate subsequent objections to the qualifications of the electors, andhe decided in J9I2 that only Upasampada priests were entitled tovote and that only their names should be included in the list of voters.H is true that tho ZVInhamiyakc Thera informed tho Government Agent,Central Province, in 1912 that he had no objection to the register or listbeing amended even just before tho election by adding to it any suitablepriest who may attend the meeting, but this was a course which lay inthe discretion of the Mahanayako Thera and may well have been permittedat that timo bccaus there was no register of priests such as came intoexistence under tho Ordinance. The preparation of a regi ter of votersat that time seems to have been a difficult matter. I havo alreadypointed out how Ratnajothi Thera wa trying in 102o to compile a correctand complete list, and that in 1931 tho witness Dharmarakittc Therawas insisting on a complete list. It seems to me that a list of voters wasnot only customary but even necessary, seeing how desirable it is toeliminate uncertainty and confusion in regard to those who should voteat the meeting : it also seems to me that the obvious authority to prescribe;how intending voters should apply to have their names included in sucha list, and the date by which such applications should be made, was theSabliawa. Can it be said that tho procedure directed to be followed by thosewho applied for registration was unreasonable, or imposed too heavy aburden on eligible voters ? It was at this period that the- recently enactedOrdinance would have come to the knowledge of all Bhikkus; theywould undoubtedly havo become aivaro of its provisions aiid the needto comply with them.- The Sabliawa was meielj* requiring them, morethan a year after the Ordinance came into operation, to do what theOrdinance required. I cannot see wliy-an3r priest should complain thathe ivas asked to obey t-hc law. – It is no argument to say that a bencficed
priest had. a. right to vote and the pioceduie laid down interfered with,that right. The light was open to all who had the qualifications, blitthey wero not entitled to disregard the authority of the Sabhawa so longas they claimed to belong to the Malwatta sect. It is not alleged that apriest who accepted the authority of the Sabhawa was improperlyexcluded from voting. Thero is no question of the priests who did notcomply with this order being expelled, for no order of expulsion was madenor was one necessary. If the Sabhawa has tho right to expel a priestfrom the priesthood it surely has the right to impose the lesser penalty ofdepriving him of tho right to vote for failure to observe such a reasonablerequirement as due registration. It is unfortunately truo that somepriests called to give evidcnco for the Public Trustee denied the supremeauthority of tho Sabhawa, but the decisions of this Court have repeatedlyheld that it is the highest ecclesiastical court to whoso decisions allpriests claiming to belong to the Malwatta sect must bow. Priests who-doubted the authority of the Sabhawa and violated the rules it laid downmust expect to lose the privileges which only a recognized member ofiho sect- can enjoy. I hold, therefore, that tho meeting of ISth February,1934, at which Morontuduwo Sri Dhammanaiula Thera was unanimouslyelected was a duly constituted one. Crown Counsel did not, veryproperly in my opinion, seek to support the validity of the earlier meeting-at which Ratnajothi Thera was elected. It- was clearly unauthorised,in that it had been summoned by priests and laymen who had no authoritywhatsoever to conduc t such an election. They were obviously acting inintentional defiance of the authority of the Malwatta Chapter. Yet,strange to say, one of the- defences put forward by tho Public Trustee to-tlie plaintiff’s claim was that the vacancy in the office of Vibaradhipathihad been duly filled by the election of Ratnajoti Thera, at a properlyconstituted meeting held on 14th February, 1934. Such a position is-clearly untenable in the face of the evidence as to how previous meetingsfor the election of a Yiharadhipathi were summoned and conducted, andthe learned District Judge quite rightly held that tho meeting of 14thFebruary, 1934, was not- a properly constituted one.
The election of Morontuduwo Sri Dhammanaiula Thera was reported,to tho Public Trustee by the Mahanayake Thera on 20th February, 1934 ;he asked the Public Trustee to recognise the successful candidate as thoYiharadhipathi of Sripadasthana. On 24th February, 1934, tire PublicTrustee wrote to Morontuduwo Sri Dhammanaiula Thero inviting himto nominate a trustee, and the latter did so. But though three suchnominations were made at- various times the Public Trustee consistentlyrefused to issue letters of appointment to the nominees on the ground,that Ratnajothi Thera had also claimed to have been elected and had.also nominated a trustee. In 1943 Ratnajothi Thera died, and whenMorontuduwo Sri Dhammananda Thera again nominated a trustee howas asked by the Public Trustee whether he could establish his claim tobe Yiharadhipathi ; he was also asked to submit a statement of the-grounds of his claim. This request was complied .with, but t-ho PublicTrustee did not change his attitude. Eventually Morontuduwo SriDhammananda Thera nominated the plaintiff as trustee in 1947 and the-Public Trustee asked Morontuduwo Sri Dhammananda Thera to interview
lunij stating :—“ TJiis is a matter which has given me consiclerahleanxiety and concern for a long period. I feci that the time is now ripo-for any action that may be possible with a view to arriving at a satis-factory finality Nothing, however, came of the interview and this,action was therefore filed..
On the first day of the hearing Crown Counsel appearing for the PublicTrustee stated that ho did not press his legal objections with regard tothe jurisdiction of the Court and no issue was suggested on this point.When the trial was resumed some months later he took the objectionwith regard to jurisdiction and an issue was framed in the terms I haveset- out at the beginning of this judgment. The plaintiffs counsel objectedto the issue being framed on the ground that the objection to jurisdictionhad been abandoned, but I do not- think it cotdd have been rejected onthis ground since the parties had not even begun to lead evidence at thatstage. The objection, as I understand it, is that assuming the plaintiffto have a remedy for the failure of the Public Trustee to issue a letterof appointment he should not have filed a regular action butshould have sought relief by an application to this Court for a writ ofMandamus.
The plaintiff's complaint is founded on the provisions of section 11 ofthe Ordinance which reads :—
(1) Whenever a person is entitled to nominate a trustee undersections 9 or 10 it shall bo lawful for him to nominate himselfas such trustee unless lie has been removed from the office of'trustee under section 15 (2) or is disqualified from being atrustee by reason of section 14 :.
Provided that the head of the Xuwarawewa family maynominate himself a member of the Atamast-hana Committeenotwithstanding that he is in the Government Service.
Whenever a nomination is duly made under sections 9 or 10 and.
reported to the Public Trustee it shall be the dutjr of the Public.Trustee to forthwith issue a letter of appointment to the personso nominated unless such appointment would contravene theprovisions of this Ordinance.
(«) "Whenever no nomination is duly mado under sections 9 and 10
within the periods specified in the said sections or within anyfurther period that the Public Trustee may allow for suchpurpose, or
(<b) w henever by reason of anj-disputes as to the persoji entitled tomake such nomination more than one person is reported to thcrPublic Trustee as having been duly nominated trustee of anytemple, the Public Trustco shall, pending a legal nomination,,make any arrangement he thinks necessary for the safe manage-ment of the property of such temple, and if he thinks fit provi-sionally appoint as trustee any person duly qualified.
This section introduced a change, because under the previous OrdinanceNo. S of 1905 a person who' was duly elected trustee became de juretrustee and no formal act of appointment- was necessary—Appuhamy v.Tinanhami . The argument for the plaintiff is that he is the dulynominated trustee and he therefore has a statutory right to tho grantof a letter of appointment by the Public Trustee, and tho Public Trusteehas a corresponding statutory duty to issue such a letter to him ; theplaintiff has undertaken in this action to provo his claim to bo the dulvnominated trustee, which means that the duly elected Yiharadhipatliihas duly nominated him. It is submitted that if he has establishedthese grounds of his claim it is not open to tho Public Trusted to refuseto perform the duty cast upon him by tho Ordinance. As against this,it was submitted for tho Public Trustee that tho'validity of the electionof Moro'iitudu We Dhammananda Thera cannot be decided in this actionsince the principal contestants arc not before the Court ; and even if itcan, the plaintiff should have applied for a writ of Mandamus. But aMandamus is not granted as of right, its grant is purely discretionary,and it is only available when there is no other remedy equally convenient,beneficial and effectual open to the applicant. The writ was inventedfor the purpose of supplying defects of justice, as Bowen L..J. said inJR. v. Commissioners of Inland. Revenue and the learned Lord Justicewent on to say :—“ By Magna C'havta the Grown is bound not to delayor prevent- any one from obtaining justice. If there is no other meansof obtaining justice a Mandamus is granted. But the procedure iscumbrous and expensive; and from time immemorial the Courts havenever granted the writ when there is another more feasible remedy 5'.So here, when it is well known that a regular action is the normal modeof proceeding I cannot sec why the plaintiff should be referred to anextraordinary procedure. The fate which overtook similar earlierapplications made to this Court indicate quite plainly that if the plaintiffhad asked for a Mandamus on the Public Trustee the latter would, inall probability, have resisted it on the ground that there existed a sub-stantial doubt as to who the de jure Yiliaradhipatlii was, which he couldnot resolve, and that he could not therefore, bo compelled to issue a letterof appointment until the doubt was rcsolvod. Such an objection wouldalso, in all probability, have been upheld. Notwithstanding the obviousobjection to an application for a Mandamus, Crown Counsel submittedthat tho plaintiff could not sue in a regular action. His argument was,as I understand it, that a public officer such as the Public Trustee couldnot be sued in such an action for having refused to perform a statutoryduty even though tho Public Trustee Ordinance, (Cap. 73), provides insection 3 that ” the Public Trustee shall bo a corporation sole underthat name, with perpetual succession ami an official seal, and may sueand be sued under the above name like any other corporation sole ”.I think his position was that if this action was upheld the door wouldbe opened to innumerable actions for declarations against public officers.Such an aremnent appears to have been dealt with by harwcll, L.J.,in Dyson r. Attorney General3, when he said “If inconvenience is a
{1953) 1 Q. B. IS.
legitimate consideration at all, the convenience in the public interestis all in favour of providing a speedy and easy .access to the Court fornny of His Majesty's subjects who have any real cause of .complaintagainst the exercising of statutory powers by Government departmentsand Government officials, having regard to the growing tendency toclaim the right to act without regard to legal principle and withoutappeal to any Court ”. To refuse the plaintiff relief on the groundthat he should have applied for a Mandamus seems to me therefore awrong thing to do. Has the plaintiff* then a right to bring this action,in which he can claim a remedy as of right l His claim ns duly nominatedtrustee, assuming he can establish it, is a claim to a status which conferscivil rights and duties. He will as trustee have vested in him the tem-poralities of Sripadasthana and he will have the duty of managing them.The refusal of the Public Trustee to issue a letter of appointment, and hisdenial that the plaintiff is the duly nominated trustee, gave tho plaintiffa cause of action, which entitled him to come into the District Court.It could, I think, be argued with force that the Public Trustee was notbound to issue a letter of appointment if he had a genuine doubt as tothe claim made by tho plaintiff, but his is not tho last word on tho matter.He was entitled to ask tho plaintiff to establish his claim in a court oflaw since “ Courts of law exist for the set tlement of concrete controversiesand actual infringements of rights ’. I think the Public Trustee wasacting within his rights in putting tho plaintiff to the proof of his claimand as ho is the defendant lie is entitled to resist that claim to suchextent as he considers proper, for while so resisting the claim he is alsojustifying his earlier refusal to issue a letter of appointment. But Xentertain no doubt also that the plaintiff is entitled to seek his legalremedy by regular action against tho Public Trustee, for to hold other-wise would be to tell him that the statutory provisions of section 11arc an empty thing, and that tho Public Trustee can bring them tonought by a bare assertion that there is a dispute. The Ordinanceprovides no special remedy, tribunal or procedure and when a statutoryduty is prescribed but no remedy for its breach is imposed it can boassumed that a right of civil action accrues to the person who is dam-nified by the breach. In Cutler v. Wandsworth Stand him LordSimonds said, repeating the words of Lord Kinnear in Muller v. Fife.Coal Co. 2, “ Wo arc to consider the scope and purpose of the statuteand, in particular, for whose benefit it is intended ”. It is also relevantto quote the words of Homer, L.-J., in Barnard v. National Dock LabourBoard3, “ Prima facie, it is tho right of evcr3'ono in this country who isinvolved in a legal dispute to have that dispute determined by HerMajesty’s Courts. That right can be taken away ; sometimes it can botaken away by contract, subject to certain safeguards, and it certainlymay bo taken away by statute ; but except to the extent to which it istaken away (and here wo are only concerned with parliamentary interrvention) then prima facie that right remains ”. In this case the DistrictCourt was the proper forum to which tho plaintiff should have goneto seek redress of his grievances. When one- considers that the dis-pute arose in this case beeauso of tho palpably insupportable claim to1 {1040) A. C. 39$.* {1912) A. C. 165.
the office of Yiharadbiiiathi put forward by Ratnajoti Thera—whichthe Public Trustee went so far as to support against the claim' of.Morontuduwe Sri Dhammananda Thera until this appeal came beforethis Court—the need for affording the plaintiff a remedy is overwhelming.In seeking to establish his right tho plaintiff inu t, of course, establishthe right of Morontuduwe Sri Dhammanamla Thera, for if the latter hadno right the former can have none. But I see no objection to the rightof the Viharadliipathi being investigated in these proceedings, and a verythorough investigation it has been. If we were not satisfied that Moron-tuduwe Sri Dhaimnananda Thera’s right as Viharadliipathi has beenestablished, the plaintiff woidd necessarily fail. Section 217 of theCivil Procedure Code classifies the different kinds of decrees which aCourt may enter and provides inter alia that a decree may, withoutaffording any substantive relief or remedy, declare a right or status ”.Tho plaintiff is asking for a declaration of his right or status as tho dulynominated trustee and tho consequential rcliei he claims is the issue of aletter of appointment which is also a matter contemplated by section217 (e) of the Code for a decree may command the person against- whom' it operates to do any act not falling under any one of the foregoingheads It really matters not whether the plaintiff is only granted hisdeclaration or also granted the consequential relief, for I can hardlybelieve that the Public Trustee would refuse to pay heed to a declarationof a Court. But the consequential relief sought is one which I think theDistrict Court can grant. There may be cases where a person claims adeclaration of a right which he is te.chnically entitled to claim, but aCourt- may refuse to grant it on the ground that there has been nointerference with the light sought to be declared. Geldenhui/s i0Xcethling v. Benthint *. I d.o not regard this case as one of those cases,because there is more than a mere dispute of the plaintiff’s claim. Theplaintiff is effectually prevented from exercising his rights as trusteewhich he would have been entitled to exercise if the Public Trustee didnot refuse to issue to him a letter of appointment. Granting, then,that the power to make a declaration is discretionary I consider thisto be a suitable case for the- exercise of that- power in favour of the plaintiff.1'or over twenty years there has been only a provisional trustee managingthe temporalities of Sripadasthana and I consider that tho time hascome to make an end of the uncertainty which has shrouded an electionwhich, it seems to me, was in all respects valid. I therefore allow thisappeal and .set aside the judgment- of the learned District- Judge. Theplaintiff is entitled to a decree as prayed for in his plaint.
With regard to costs, I consider that the Public Trustee put forwardcertain defences wliic-h were unsustainable ; they unduly prolonged theproceedings in the lower Court- ; although he was entitled to ask that theplaintiff should establish his claim to tho satisfaction of the DistrictJudge, he put the plaintiff to unnccessary expense by raising certainissues for which there was little justification. I would therefore, undertheso circumstances, allow the plaintiff his costs in this Court and intho trial Court.
*A. D. VIC.
Tehxaxuo, A.J.—
I have had the benefit of reading the judgment proposetl by my brother,and only think fit to set out the reasons for my concurrence because thecase is one of more than ordinary interest and lias been keenly contestedin both Courts.
Upon the question whether the Public Trustee rightly refused to accept-the nominations to the trusteeship of Sripadasiluma which were madesuccessively by Dhnmmananda Thera in 1934, 1943 and 1947, the casefor the Public Trustee, at its highest, is founded on the provisions ofsection 11 (3) (6) of the Buddhist Teinjioralitics Ordinance :—“ Wheneverby reason of any disputes as to tho person entitled to make such nomina-tion more than one person is reported to the Public Trustee as beingduly nominated trustee of any temple, the Public Trustee shall, pendinga legal nomination, …. if ho thinks fit provisionally appointas trustee any person duly qualified ”. The Public Trustee must denyrecognition to each nominee when two or more priests, each disputingthe right to the incumbency in question, purport to make separatenominations. When, therefore, such a dispute exists, the Legislatureimposes as it were a doubt in the mind of the Public Trustee whichcannot be resolved until the dispute itself is settled. Once there hasbeen such a dispute between two 2iriests it seems to mo that the doubtis not removed up on the death of one of them : in other words, theLegislature coidd not have intended that the question whether Dhamma-nanda Thera or else llatnajothi Thera was validly elected as Incumbentwould be resolved automatically in favour of the survivor of the two-claimants.
A ilisjjutc of the nature contemplated by the section would undoubtedly^compel the Public Trustee to decline acceptance of a nomination pending■a determination binding on each priest who is a party to the dispute.But in my opinion the Legislature cannot have contemplated that anyrival claim, however arbitrary- or frivolous, was sufficient to constitute.such a dispute. If that were so, a farcical situation can be created bya succession of priests merely notifying the Public Trustee of a claim tothe incumbency in question.'
In this instance, Ratuajothi Thera’s claim was based upon an electionwhich in no respect conformed with the customs and formalities whichwere adopted in the two previous eases and recognised by the Govern-ment officers then responsible for the functions, which later devolvedon the Public Trustee. The three conditions of the “ Vaughan lSettle-ment ” were (a) the election meeting to be convened by the Chief Priestof the Mai watte Chapter for the District, (b) the Sangha Sabhawa toscrutinize the voting lists, and (c) the Sabhawa to approve and appoint-the successful candidate as Viharadhipathi. Ratnajotlii Thera’s alleged*’ election ” satisfied none of these conditions and gave him no shadowof a claim to nominate a trustee, and there was accordingly no dispute-of the nature contemplated by the Statute.
The remaining ground of appeal was that Dhammananda Thera’s,election was rendered invalid by the alleged irregularities in the prepara-tion of the voters’ lists. In the absence of any rules binding on theSangha Sabhawa, it was in my opinion only reasonable for it, as theauthority responsible for the preparation of the list, to require thoseclaiming to bo voters to make their claims by means of applicationscountersigned by the District Malta Xayakc of the sect. But for this-countersignature, ihc Sangha Sabhawa would have experienced greatdifficulty in deciding whether or not a prospective voter did in factpossess the qualification of permanent residence in the RatnapuraDistrict ; and much confusion would have arisen on the election day ifclaims as to the qualifications were left to be decided at that late stage.The decisions and notices published by the Sangha -Sabhawa amountedin my view to no more than a reasonable and proper mode of avoidingsuch difficulty and confusion. I entirely agree with the conclusion,reached by my brother that Dhammananda Thera was duly elected the-Viharadipathi of Sri pa clast hana, and was accordingly entitled to make-a due nomination of the plaintiff as trustee.
Wc have then to decide whether the District Court has jurisdictionto grant a declaration that the plaintiff i; entitled to a letter of appoint-ment from the Public Trustee and to order the Public Trustee to issue thelettcr of appointment. The learned District Judge thought that he didhave jurisdiction, for the reason that section 33 of the Buddhist Tempora-lities Ordinance empowers the Court to order a person to discharge aduty imposed upon him by the Ordinance, upon an applicat ion made by anytrustee. But the definition of "trustee” in section 2, read with sections-10 (1) and 11, includes only a person who is nominated by the Viharadi-pathi and holds the requisite letter of appointment as trustee issued bythc Public Trustee. The plaintiff holds no such letter and is not jet a“trustee” entitled to make an application to the. Court under section33. The source of the Court’s jurisdiction has therefore to be sought-elsewhere.
It is argued for the plaintiff that under section 217 of the Civil Procedure?Code an order of a District Court—.
may enjoin a person to do any act (Head K),
may, without affording any substantial relief or remedy, declare a.
right or status (Head G).
In the present case, the plaintiff seeks orders under both these heads,and if it is clear that the Court had jurisdiction to make a mandatoryorder directing the issue of a letter of appointment (referable to.Head E>then the declaration (referable to Head G) would be merely formal or-even unnecessary. The difficult question, to my mind, is whether theDistrict Court has jurisdiction to make a mandatory order directing a-public officer to perform a duty imposed by statute, or whether, on the?contrary, the only remedy is by way of prerogative writ.
In. England tlie Common Law Procedure Act (1S54) and section 25of the Judicature Act (1873) provides for an action for mandamus “ tocommand the defendant to fulfil any duty in the fulfilment of whichthe plaintiff is personally interested In regard, however, to this remedy,which is additional to that by way of an application for the prerogativewrit of mandamus, views have been expressed indicating that its scopeis somewhat limited. Baxter v. London. Count;/ Council 1 was a casein which a coroner sued for a declaration of right that he was ent itled to acertain salary or to a Mandamus to enforce those rights. The Courtappeared to be quite satisfied that the coroner was entitled to the salaryhe claimed but was not being paid it. Nevertheless Pay J. thoughthis only remedy was by a Prerogative writ and he said " But it was nevercontemplated that the action for a mandamus was to supersede theprerogative, writ of mandamus. In this case no action will lie. I amperfectly clear that this is not an action which will lie between the parties,or a ease in which a statutable mandamus will be applicable, because noaction would lie, and a mandamus is only granted as an ancillary to theaction, and for the purpose of enforcing the private right-. ” Also inBeg. v. The Vestry of St. George, Southwark which was an applicationfor the prerogative writ of mandamus, it was argued that the appropriateremedy was an action for a. mandamus. Wright J. there said “ I thinkit is very doubtful whether the provision for a mandamus given eitherby the Common Law Procedure Act or the Judicature Act extends atall to any relief that could not have been claimed in an action before theCommon Paw Procedure Act, and whether the remedy given is notintended there as an additional mode of enforcing judgment which theCourt has power to give. ”
So far as our law is concerned it is worthy of note that there isno express provision as in England for an action for mandamus as distinctfrom the prerogative writ. Even in regard to the declaratory action itwas pointed out by Gratiaen J. in Hewavitharna v. Chandrawathie et al. 3that, unlike in England and South Africa, the Common Law Jurisdictionof the Court to grant declaratory decrees has not been enlarged b}'Statute ; and he referred to Order 25, Pule 5 of the Pules of the SupremeCourt (England).
I therefore entertain some doubts on the question whether the DistrictCourt had jurisdiction to grant the declaration and to make the orderprayed for in the present case. The point, however, was not strenuouslyargued for the respondent in this appeal, and I have not been convincedthat the District Court lacks the requisite jurisdiction. Agreeing as I doso completely with my brother as to the merits of the plaintiff’s case,
I feel disposed only to express some hesitation in concurring with theorder proposed by him allowing the appeal.’
Appeal allowed.
1 (1S90) 03 L. T. (X. S.) 767..* (1S92) 07 L. T. (A7. S.) 412.
{1951) S3 N. L. R. 169 at 176.