DANKOLUWA ESTATES CO., LTD v. THE TEA CONTROLLER

049-NLR-NLR-V-42-DANKOLUWA-ESTATES-CO.,-LTD–v.-THE-TEA-CONTROLLER.pdf


Dankolutoa Estates Co., Ltd., v. The Tea Controller.
197
1941Present: Soertsz J.
DANKOLUWA ESTATES CO., LTD. v. THE TEACONTROLLER.In the matter of an application for a writ of Certiorari.
Writ of certiorari—Order of Tea Controller under section 15 (1) of the TeaControl Ordinance {Cap. 299)—Order made in ministerial capacity—Notunder duty to act judicially—Tea Controller not amenable to writ—Estoppel by res judicata—Courts Ordinance, s. 42 (Cap. 6.)
An order made by the Tea Controller under section 15 (1) of the TeaControl Ordinance is one made by him in an administrative or ministerialcapacity and the Tea Controller, not being under a duty to act judiciallywhen he made the order, is not amenable to the writ of certiorari.
Where the petitioner’s application is barred by the operation of section7 (3) of the Tea Control Ordinance and by the decision of the SupremeCourt in his application for a writ of mandamus a writ of certioraridoes not lie.
T
HIS was an application for a mandate in the nature of a writ ofcertiorari quashing the order made by the Tea Controller in his letter
addressed to the petitioner’s agents, Messrs. Whittall & Co. By a returndated July 31, 1933, made in compliance with section 9 (1) of the TeaControl Ordinance, 1933, the agents, on behalf of the proprietor, declaredthat Dankoluwa Tea Estate was 441 acres in extent and wholly plantedin tea at the date and claimed that the yield would be a thousand poundsper acre. They asked for a special assessment, which was granted andthe Tea Controller fixed the standard crop for the year of assessment
198Dankoluioa Estates Co., Ltd., v. The Tea Controller.
1933-1934 at 311,500 pounds. The proprietor accepted that assessmentas well as the assessments made on that basis for the subsequent yearsof control under that Ordinance, viz., 1934-1938. The Tea ControlOrdinance, at present in force, came into operation on April 1, 1938.By their letter dated August 31, 1938, the agents informed the TeaController that they had discovered that their return made in 1933was erroneous in respect of the extent of the estate and that the correctextent was 411 acres. Thereupon the Controller, purporting to actunder sections 15 and 17 of the Ordinance, declared on November 29,1939, that in respect of the periods 1933-1934, 1934-1935, 1935-1936,1936-1937, 1937-1938, 1938-1939, 1939-1940, the standard crops wouldbe deemed to have been reduced to the amounts stated in the order,that the over issue that had occurred in consequence of the error in extentwould be adjusted in the manner indicated in the order. The petitionerwas dissatisfied at the order and appealed to the Board of Appeal. Theappeal was considered by the Board and was dismissed.
The petitioner then applied to the Supreme Court for a writ of mandamusagainst the Tea Controller to compel him to issue the coupons he withheldin respect of the amount over-issued. The Supreme Court decidedagainst the petitioner./.
. L. M. de Silva, K.C. (with him E. F. N. Gratiaen and D. W. Fernando),for the petitioner.—The proviso in section 15 (1) of the Tea ControlOrdinance (Cap. 299) was intended to prevent the Controller from doingwhat he has done in the present case. As to the history of the legislation,the draft of the present Ordinance appears in the Gazette of December 17,1937, Part II., page 1271. Section 15 appears there without anyproviso. Nor was there any such proviso in section 20 of the olderOrdinance, No. 11 of 1933. The proviso in section 15 (1) was deliberatelyand advisedly inserted to surmount the difficulty created by the rulingin Wijeyesinghe v. Tea Export Controller1. To interpret any portion of astatute, not merely the words but also the history of it may be considered—Eastman Photographic Materials Co. v. Comptroller-General of Patents1,Babappu v. Don Andris et al *.
In the order he made the Tea Controller exercised powers beyondthose given to him by the Ordinance. When a public authority acts inexcess of jurisdiction writ of certiorari would lie. There is no differencein principle between certiorari and prohibition. The King v ElectricityCommissioners' deals fully with .the scope of the writ and is the founda-tion of the present application. See also Frome United Breweries Co.,Ltd. v. Bath Justices ‘ and The King v. Postmaster-General *.
Application for mandamus was made in connection with this samematter7, but that would not stand in our way. Where want of juris-diction is patent, the person aggrieved is entitled to a writ of certiorariex debito justitiae—The Queen v. The Justices of Surrey *, Farquharson v.Morgan’.
[19371 39 A7. L. R. 437.* [1926) A. C. 586 at 602.
*.[1898) A. C. 571 at 515.* (1928) 1 K. B. 291.
(1910) 13 N. L. R. 213 at 277.7 (1940) 18 C. L. W. 55.
[1924) 1 K. B. Ill at 206, 192, 194-5, 204.* L. R. (1870) 5 Q. B. 466.
*(1894) 1 Q. B. 552.
Dankoluwa Estates Co., Ltd., v. The Tea Controller.
199
Section 7 (3) of the Tea Control Ordinance which says that the decisionof the Board of Appeal shall be final and conclusive would not be a bar tothe present application. Certiorari can only be taken away by expressnegative words—The Laws of England (Hailsham) Vol. 9, pp. 861—2;Ex parte Bradlaugh *; Rex v. Jukes ’.
H. V. Perera, K.C. (with him J. E. M. Obeysekere and P. de Silva)for the respondent.—Three preliminary objections can be taken againstthis application.
Firstly, the question involved in this application has already beenexamined and dealt with by the Board of Appeal, on an appeal takenby the petitioner. The petitioner, having submitted the question foradjudication by that Board, cannot now move this Court for a writ ofcertiorari—Queen v. Justices of Salop *; Queen v. Justices of Leicester &Compton *; Lakshmanan Chettiar v. Commissioner, Corporation of MadrasLakshmanan Chettiar v. Kannaper’.
Secondly, section 7 (3) of the Tea Control Ordinance prevents thepetitioner from making this application. The decision of the Board ofAppeal is final and conclusive. Consequently, if certiorari lies at all,it will be only against the Board and not against the Controller. Theeffect of “ final ” and “ without appeal ” is considered in Rex v. Nat BellLiquors, Ltd.'. Section 15 (2) makes the order of the Board res judicataas between the Controller and the petitioner—Spencer Bower on ResJudicata (1924) pp. 102, 115; Hukm Chand on Res Judicata pp. 29—32;Hoystead et al. v. Commissioner of Taxations. Further, this Court has,in the application for mandamus, held that the Borad of Appeal hadjurisdiction to adjudicate on this matter. A previous judgment by aCourt of co-ordinate jurisdiction has to be followed—Cramb v. Goodwin °;Papworth v. Battersea Borough Council,0.
Thirdly, and most important of all, the order of the Tea Controllerwas not an order involving a judicial act but was purely administrative.Certiorari will lie against an officer in respect only of an act performedby him in a judicial capacity. In every judicial act there is a “require-ment by law either to hear some person on application made by him orto give a decision on a matter submitted by a third party. For theessential ingredients of a judicial act and the manner in which it has to beexercised, see Rex v. Electricity Commissioners ”; Rex v. The LondonCounty Council“; Rex. v. Legislative Committee of the Church AssemblyErrington et al. v. Minister of Health ”; Rex v. Hendon Rural DistrictCouncil “. For difference in effect between the words “ if it appears tohim ” and “ if it appears to him on sufficient ground shown ” see Rex. v.Kensington Income Tax Commissioners " and De Vertenil v. Knaggs et at”.
1 (1877) 3 Q. B. D. 609.
* 8 Term Rep. 542.
8 29 L. J. M. C. 39.
4 29 L. J. M. C. 203.
‘ (1926) I.L. R. SO Mad. 130.
4 J. L. R. 50 Mad. 121.
’ (1922) 2 A. C. 162 et seq.
8 (1926) A. C. 155 at 163, 165, 168.
” (1918) A. C. 557.
• (1919) WeelclyNotea 86 at 87.
19 (1915) L. J. (84 K. B.) at 1885.11 (1924) 1 K. B. 411.
** (1931) 2 K. B. 215.
“ (1928) 1 K. B. 411.
14 (1935) 1 K. B. B. 249.
•» (1933) 2 K. B. 696.
14 (1913) 3 K. B. 870 at 889.
200SOERTSZ J.—Dankoluwa Estates Co., Ltd., v. The Tea Controller.
In regard to the merits of the application, it is true that section 15 ofthe original Bill did not contain any proviso, but it did not also containsub-section (3). Full effect has to be given to section 17 (5), particularlyto the words “for any period ”,
M. de Silva, K.C., in reply.—It is not proper in a matter of thiskind to raise technical objections, and, unless there is no escape fromsuch objections, relief should be granted—Rex v. London County Council'.
The appeal to the Board of Appeal does not preclude us from askingfor certiorari—Queen v. Justices of Surrey *. Where excess of jurisdictionis patent, writ will issue no matter what the conduct of the petitionermight have been—Farquharson v. Morgan ’. On the question whetherthe Controller or the Board of Appeal should be the respondent to thisapplication, the order that is outstanding is the order of the Controller;the order of an Appellate Court is deemed to be the order of the lowerCourt—K. K. Roy v. R. Bx Roy et al. The application may be madeagainst the Controller—London Corporation v. Coxr';9 Halsbury
(Hailsham) p. 836.
The result of the previous application for mandamus cannot operateas res judicata. The question at issue on that occasion was quite differentand the decision does not contain an adjudication on the point whetherwe are entitled to the additional coupons or not. Vide the citation fromCaspersz-in Katiratamby et al. v. Parupathipillai et al.’. The powers ofthe Board of Appeal under section 15 of Cap. 299 are limited and we hadno power to obtain from the Board a decision that the Controller actedoutside his jurisdiction.
A judicial act need not always be preceded by an application or thehearing of objections submitted to the statutory authority by a thirdparty—Rex v. Doherty All that is necessary is the power to determineand decide—Rex v. Legislative Committee of the Church Assembly *;Rex v. Hendon Rural District Council °; Rex v. BoycottReg. iNicholson ",
Cur. adv. vult.
January 15, 1941. Soertsz J.—
In this matter the petitioner, the Dankoluwa Estates Company, Limited,prays for an order absolute quashing the order made by the respondent,the Tea Controller, in his letter dated November 29, 1939, addressed tothe petitioner’s agents, Messrs. Whittall & Company.
The facts that gave rise to this application are not in controversy,and may be shortly stated: By a return dated July 31, 1933, made incompliance with section 9 (1) of the Teai Control Ordinance of 1933,Messrs. Whittall & Company, acting on behalf of the proprietor,declared' that the Dankoluwa Tea Estate was 441 acres in extent, andwholly planted in tea, at the date December 31, 1932. They claimedthat “ the yield for the full period wo uld, therefore, approximate athousand pounds per acre’’, and they asked for a special assessment.
1 (1931) 2 K. B. 215.
*L. R. (1ST0) 5 Q. B. 466.
3 (1894) 1 Q. B. 552.
* (1872) 14 Moore's Ind. App. Cases 465.
6 L. B. (1867) 2 H. L. at 280.
» (1921) 23 N. L. R. 209 at 211.7 (1910) 26 T. L. R. 502.
8 (1928) 1.K B. at 419.
8 (1933) 2 K.B.at 705.
>• (1939) 2 K. B. 651.
“ (1899) 2 Q. B. a t 473.
SOERTSZ J.—Dankoluwa Estates Co., Ltd., v. The Tea Controller. 201
Such an assessment was made by a Mr. Lloyd Jones. Acting upon thatassessment, the Tea Controller fixed the standard crop for the year ofassessment 1933-1934 at 311,500 pounds. The proprietor accepted thatassessment, as well as the assessments made upon that basis, for thesubsequent years of control under that Ordinance, namely, the years1934-1938.
The Tea Control Ordinance now in force, came into operation on the1st of April, 1938. By their letter dated August 31, 1939, Messrs.Whittall & Co. informed the Tea Controller that they had discoveredthat their return made in 1933 was erroneous in respect of the extent ofthe estate, and that the correct extent was 411 acres 1 rood and 10 perchesand not 441 acres as stated therein. Thereupon, the Controller purport-ing to act under sections 15 and 17 of the Ordinance, declared onNovember 29, 1939, that in respect of each of the periods 1933-1934,1934-1935,1935-1936,1936-1937,1937-1938,1938-1939, and 1939-1940,
the standard crops of the estate would be deemed to have been reducedto the amounts stated in his order; that the over-issue that hadoccurred in consequence of the error in extent would be adjusted in themanner indicated in that order; and that the issue of coupons for exportlicences would, from the date of the order, be made on the basis of therevised assessment. The petitioner was dissatisfied and in pursuance ofthe right given to him by section 15 (2), he appealed to the Board ofAppeal, on the following grounds :—
The decision of the Tea Controller is contrary, to law, and is
inequitable;
The previous assessments of the standard crop are correct;
In any event, the alleged error is one of over-assessment, and the
Controller had no power to make any order affecting the stand-ard crop …. for any period of assessment prior to the
date of the order appealed from;
The productivity of the estate at all material times exceeded the
quantity previously assessed by the Controller.
This appeal was considered by the Board, and was dismissed on March4, 1940. The Board held, inter alia, that “ Section 15 of the Ordinancegives the Controller power to correct such errors, and this is what he hasdone. He has, in no way, interfered with the rate per acre, so that thequestion of an over-assessment or under-assessment does not arise ”.
The petitioner then applied to this Court, on June 11, .1940, for a writof mandamus against the Controller, to compel him to issue to thepetitioner the coupons he withheld in respect of the 111,069 pounds which,he alleged, had been over-issued. That application was dealt with bymy Lord the Chief Justice, and was decided against the petitioner. Inthe course of his order, the Chief Justice said (Dankoluwa Estates Co.,Ltd. v. The Tea Controller J1; —
“ The petitioner’s claim for a Mandamus is based on the contentionthat the respondent, by his order dated November 29, 1939, has underthe first part of the sub-section reduced the standard crop of theestate without taking into consideration paragraph (b) of the proviso,and in consequence of such illegal order, made deductions under section17 (5) of the Ordinance. On behalf of the respondent, Mr. Perera
1 iO XT r T>
202SOERTSZ J.—Dankoluwa Estates Co., Ltd., v. The Tea Controller.
° contended that a writ of mandamus cannot issue inasmuch as thelegality of the deductions …. including the interpretation ofproviso (b) to section 15 (1) was a matter for the Board of Appealunder .section 15 (2), and had been decided in favour of the respondent….. Ground (c) in the case presented by the petitioner to theBoard …. raised the right of the respondent to make anyorder affecting the standard crop …. for any periods ofassessment prior to the date of the order appealed from. Thelegality of retrospective action by the Controller and the question of-the interpretation of proviso (b) to section 15 (1) was, therefore, inissue. Although such an issue was directly raised by the petitionerbefore the Board of Appeal, his Counsel has contended that theBoard …. was not vested with any such power. I cannotaccept that contention. The words in section 15 • (2) that the Boardmay on appeal (a) “ confirm the order ” seem to me to give the Boardpower to decide as to whether the Controller has correctly interpretedthe provisions of section 15 (1).”
I have quoted at this length from the order made by the Chief Justice,in view of the plea of res judicata that was based upon it and advancedby respondent’s Counsel. I shall deal presently with that plea. As tothe rest of the Chief Justice’s order, it is sufficient to say that he cameto the conclusion that the application for a writ of mandamus wasmisconceived because the legal right the petitioner sought to enforceby means of that writ was one within the competence of the Board ofAppeal to grant.
At this stage, I think, it would be convenient to examine sections 15and 17 for they, after all, are the origin of the controversy that hasarisen between the parties. Section 15 consists of three sub-sections.Sub-section (1) enacts that if it appears to the Controller at any timethat an error has been made in the assessment of the standard crop ofany estate or small holding in respect of any period of assessment, whetherunder the 1933 Ordinance or under “ this Ordinance ”, he may by orderdeclare that the standard crop of that estate or small holding for that periodshall be deemed to Jiave been increased or reduced as the case may be,by the amount in respect of which the assessment was in error; and theexportable maximum of that estate or small holding for that period shallbe deemed to have been duly increased or reduced. Sub-section 17 (5)carries the scheme to a logical conclusion by enacting (5) (a) that “ wherethe exportable maximum of any estate or small holding for any period ofassessment is deemed, in consequence of an order under section 15 (1),to have been increased or reduced, it shall be lawful for the Controllerto cause an amount equivalent to the amount by which that exportablemaximum is so deemed to have been increased or reduced …. to beadded to or deducted from the exportable maximum of that estate orsmall holding or of any other estate or small holding of the same proprietor,for the period of assessment during which that order is made, or forany one. or more succeeding periods, in such instalments as he may,in his discretion determine”. (5) (b) goes on to say that “it shall belawful for the Controller to cause to be added to or deducted from theexportable maximum …. for any period of assessment, any
SOJERTSZ J.—Dankoluwa Estates Co., Ltd., v. The Tea Controller. 203
amount that has been wrongly omitted from or included in … .the exportable maximum …. for any one or more precedingperiods of assessment ” . . . .
Shortly stated, these sections say that where owing to an error,standard crops have been over or under-assessed, and consequently theexportable maxima wrongly fixed, the Controller may readjust thestandard crops and exportable maxima, and make good the differencesthat have occurred in the issues of coupons for export licences to theparties concerned by additions to or deductions from those issuablein the period of assessment in which the error is discovered and the orderis made and/or in future periods. Such a piece of legislation is, if I maysay so, perfectly intelligible. That was, substantially, the positionunder the Ordinance of 1933, and that was the shape of things fore-shadowed in the draft of the present Ordinance published in the Govern-ment Gazette of December 17, 1937. In the draft, section 15 stoodunencumbered by the provisos, and by sub-section (2) (a), (b), (c), and (3).
There was no discrimination made betWeen errors of over-assessmentand those of under-assessment. But, on the very day of the Gazettenotification, this Court delivered judgment in the case of Wijeyesinghe v.Tea Export ControllerS pointing out that it might create a hardship—so it appeared to that Bench—if in the case of an estate or small holdingthat had changed hands, the new proprietor should be called upon tosuffer a deduction on account of an over-issue made to the old owner.That view appears to have influenced those concerned in putting the newOrdinance on the Statute Book, and they seem to have thought that theaddition of proviso (b) to sub-sectien 15 (1) in cases of errors of over-assessment would obviate the hardship suggested in the case of Wijeye-singhe v. Tea Export Controller (supra). It would appear that the fulleffect of this proviso on sub-section 15 (1) and sub-section 17 (5) (a) and
was not considered, or at least, was not appreciated. The proviso isin these terms : “ provided that where such error is one of over-assessmentan order under this sub-section i.e., 15 (1) shall not affect the standardcrop of any estate or small holding for any period of assessment prior tothat in which the order is made
The resulting position is that on the one hand, sub-section 15 (1) saysthat in cases of errors of over-assessment in respect of any period,the Controller may by order declare that the standard crop for thatperiod …. shall he deemed to have been reduced, by the amount inerror; on the other hand, the proviso says that in cases of errors ofover-assessment, the standard crops of periods prior to the order shall notbe affected, that is to say, shall not be deemed to have been reduced.Moreover, while sub-section 17 (5) (a) and (b) says that it shall be lawfulfor the Controller to make deductions on account of over-issues duringany periods of assessment, the proviso by enacting that, in cases of over-assessment, standard crops prior to the date of the order shall be un-affected, prevents the Controller from doing in respect of those periodswhat sub-section 17 (1) declares it lawful for him to do. In short,the proviso largely contradicts sub-section 15 (1) and renders sub-section17 (5) almost completely nugatory in cases of over-assessment.
1 39 N. L. R. 437.
204SOERTSZ J.—Dankoluwa Estates Co., Ltd., v. The Tea Controller.
So far as his case is concerned, the petitioner frankly admits that hiscontention is that although, owing to an error on his part, his estate wasassessed on the footing that it was thirty acres larger than it really was,yet his past and future coupons remain completely unaffected by hiserror. He says he is entitled to retain all the benefit he received in thepast, and to go on receiving coupons on the mistaken assumption madeat the time of assessment that his estate was thirty acres larger thanit is. A happy state of things indeed. It must, however, be said for thepetitioner that the good fortune that results to him from, what he-contends, is the correct interpretation of these sections of the Ordinance,has caused him some embarrassment, for he seeks to redeem it with theplea that he is only getting back on the roundabouts, what he had lostupon the swings, if I may put it in that way. He protests that hisplantation was really more productive than it was treated as being forthe purpose of assessment, although that assessment was made by anexpert nominated by him, and was accepted by him without demur.
In regard to the interpretation of section 15, another difficulty iscreated by sub-section (3), which comes in to darken the obscurity.It says that “ for the purposes of this section an error in the assessmentof the standard crop ” . .includes an over-assessment of the
standard crop ” . . . . This is very baffling. I cannot imaginewhy it was thought necessary to insert a sub-section to say what wasperfectly obvious, for in regard to assessment, errors can only be errorsof over- or under-assessment, if one disregards clerical or arithmetical errorsas being other than errors “ in the assessment ”. Moreover, proviso (o)of sub-section 15 (1) begins by saying “ where such error is one ofover-assessment ”,
In view of these difficulties, I have subjected sections 15 and 17 to asmeticulous an examination as I am capable of, in search of an interpreta-tion that would reconcile these repugnancies, but I have not been able tofind any such interpretation. Nor were Counsel able to assist me to thatend. The expenditure of ingenuity and resource that Mr. Perera lavishedupon these sections, in an endeavour to harmonize their discordant parts,failed to solve any of my difficulties. It seems to me that a satisfactorysolution is possible only by means of legislation, and not by interpreta-tion, “ horrendas canit ambages …. obscuris vera involvens ”.
This case. I think, affords an instance of what Lord Herschell had inview when he said in West Derby, Union v. Metropolitan Life InsuranceSociety, Ltd.1: “ One knows perfectly well that it not infrequentlyhappens that persons are unreasonably apprehensive as to the effect ofthe enactment …. and accordingly a proviso is inserted toguard against the particular case . . . ., and you have theenactment so construed against the intention of the Legislature as toimpose a liability upon a number of people who …. were notpresent and therefore …. were not in a position to protecttheir own interests ”.
As sections 15 and 17 stand now,, it cannot be denied that there appearsto be considerable force in the submission of the petitioner that the orderof the Controller is ultra vires in so far as it disregards proviso (b) to
' (1897) A. C. 847 at pages 655-6.
SOERTSZ J.—Dankoluwa Estates Co., Ltd.., v. The Tea Controller205
section 15 (1). But whether that submission is entitled to prevail or not,seems to me to depend on what the correct rule of interpretation is in acase such as this, of repugnancy between a proviso and its main section,and between a proviso and an independent section like section 17. Inthese circumstances, it is not at all clear that the order of which there iscomplaint involves a usurpation of jurisdiction^ and is not merely anerroneous interpretation by the Controller of section 15, such, for instance,as the interpretation given by the Board of Appeal when it said that“ the question of an over-assessment or under-assessment does not arise:because there has been no interference with the rate per acre". If theController’s order is, on the face of it, no more than an erroneousinterpretation of the law, it would, under the old procedure have beena case for error, and, therefore, is not a case for certiorari. But there isno occasion for me to address myself to these questions, for after careful' consideration of the arguments advanced, and of the cases cited byCounsel during the discussion, I have reached the conclusion that theapplication fails in limine on the grounds:
that the Controller was acting in a ministerial capacity, and wasnot under a duty to act judicially when he made the order inquestion, and that, therefore, certiorari does not lie; (b) thatthe matter involved in this application is res adjudicata betweenthe parties, and for that reason, too, this is not a case for thewrit of certiorari.
This writ of certiorari is an ancient writ, and when it is first encountered,and for a long time thereafter, it ran from superior Courts to inferiorCourts properly so called, that is to say, to Courts such as we have inmind when we speak of “ Courts of Law ” or “ Courts of Justice ”. Othertribunals with which a New Despotism as Lord Hewart describes it,has made us familiar, were scarcely known in those days. But whenthis modern Legislation set up administrative bodies vested with judicialor quasi-judicial functions, the scope of this writ was enlarged, and itcame to be sent to those bodies as well.
There is a long line of English cases in which it is stated in clear termsthat the writ of certiorari, unless expressly withheld by Statute, enablessuperior Courts to examine the proceedings of all inferior Courts and ofall Statutory authorities vested with judicial or quasi-judicial functions,and if upon such examination it be found that they, under pretence of anAct, proceed to usurp a jurisdiction greater than they have in commonlaw, or greater than the Act warrants, to direct them to have theirproceedings returned to the superior Court to the end that it may seethat they keep themselves within their jurisdiction. The leading caseon this point is that of Rea: v. Electricity Commissioners *. Atkin L.J.,as he then was, discussing the writs of prohibition and certiorari said“ the operation of the writs has extended to control the proceedings ofbodies which do not claim to be or would not be recognized as Courts ofJustice. Whenever any body of persons having legal authority todetermine questions affecting the rights of subjects, and having the duty toact judicially, act in excess of legal authority, they are subject to the
i (1924) 1 K. B. 171.
42/18
206SOERTSZ J.—Dankoluwa Estates Co., Ltd., v. The Tea Controller
controlling jurisdiction exercised by these writs”. Slesser L.J. inadopting and analysing this dictum in Rex v. The London County Council1said “ Atkin L.J. lays down four conditions under which a rule forcertiorari may issue. He says: ‘wherever any body of persons (first)having legal authority, (secondly) to determine questions affectingthe rights of subjects, (thirdly) having the duty to act judicially, (fourthly)act in excess of their legal authority, they are subject to the controllingjurisdiction exercised by these writs ’ ”, Other very eminent Judgeshave expressed themselves in similar terms.
From these dicta, it is. clear that one essential condition for the issue ofthis writ is that the authority against whom it is sought should be under aduty to act judicially. No amount of affectation of judicial form or ofcompliance with judicial and legal principles would be to the point unlessthere is a duty to act judicially. But if there is such a duty, then it is ofno consequence to inquire whether the proceeding was conducted withthe elaboration with which Courts of Law are familiar, or with the curtdirectness of method usually adopted by Statutory bodies. As ScruttonL.J. observed “ it is not necessary that it (i.e., the tribunal) should be acourt in the sense in which this court is a court; it is enough if it isexercising, after hearing evidence, judicial functions in the sense that ithas to decide on evidence between a proposal and an opposition; and it isnot necessary to be strictly a court; if it is a tribunal which has todecide rights after hearing evidence and opposition, it is amenable to thewrit of certiorari. ” In Rex v. Leg Committee of the Church Assembly ’,Lord Hewart C.J. said : “ In order that a body may satisfy the requiredtest, it is not enough that it should have legal authority to determinequestions affecting the rights of subjects ; there must be superadded tothat characteristic that the body had the duty act judicially. In thesame case, Salter L.J. said : “ the person or body to whom these writs areto go must be a judicial body in this sense that it has power to determineor decide, and the power carries with it, of necessity, the duty to actjudicially. He referred to the dictum of Holt C.J. in Rex v. Inhabitantsof Glamorganshire ", that the essential point was that the person or bodyshould have not only an authority, but also a jurisdiction.
In Errington v. Minister of Health *, Greer L.J. said : “ The powers ofthe Minister are contained in the Act, and under those powers he could,if no objection is taken on behalf of the persons interested in the property,make an order confirming the order made by the local authority; and inso far as the Minister deals with the matter of the confirmation aclosing order in the absence of objection by the owners,‘it is clear to meand I think to my brethren, that he would be acting in a ministerial oradministrative capacity. …
But, the position, in my judgment, is different when objections aretaken ”.
Section 42 of the Courts and their Powers Ordinance which givesjurisdiction to the Supreme Court to issue mandates in the nature ofwrit of mandamus, quo warranto, certiorari, &c., expressly adopts theview expressed in these and other English cases, for it provides for the
1 (1931) 2 K. B. 215.3 (1700) Ld. Bayne 580.
* (1928) 1 K. B. 411.4 (1935) 1 K. B. 249.
SOERTSZ J.—Danko luwa Estates Co., Ltd., v. The Tea Controller 207
issue of these writs “against any District Judge, Commissioner, Magis-trate or other person or tribunal ”.“ Other person or tribunal ”, in this
context must, in accordance with the ejusdem generis rule, be understoodto mean person or tribunal under a duty to act judicially.
It now remains to examine the position of the Tea Controller when heis acting under section 15 of the Ordinance. The relevant part of thatsection is in these terms : “ the Controller, if it appears to him at anytime that an error has been made …. he may by order declare
” No duty is laid upon him expressly or by implication, to hold
an inquiry, and to give the parties concerned an opportunity to be heard,and the section takes care to say that what he is called upon to do is byorder to declare, not to decide as he is required to-do by sections 10 and 11.To my mind the inference to be drawn from this difference in phraseologyis that the Legislature contemplates the Controller as acting in a judicialcapacity under sections 10 and 11, and in a ministerial or administrativecapacity under section 15, for as Lord Lorebume observed in one of thecases I have referred to “ to act in good faith and fairly to listen to bothsides is a duty lying upon everyone who decides anything ”. It is, ofcourse, undoubted that persons and bodies called upqn by statute toperform ministerial and administrative functions, are expected to act,and almost invariably do act “ judicially ” in one sense of that word,but they are not acting “ judicially ” in the meaning that word bears inthe phrase “ under a duty to act, judicially ” and in the equivalent phrasesfound in the speeches, opinions and judgments from which I have quoted.
In regard to this question whether the Controller is under a duty toact judicially under section 15, it is of no little significance that no appealis given to the party affected, in the direct manner in whicch he is givenan appeal from decisions made under sections 10 and 11, but sub-section15 (2) requires the Controller to serve a notice on the party affectedinforming him of the order, and it is only thereafter that the appeal isgiven. The implication of this is that the Legislature contemplates theController as acting in the absence of the party affected without holdingan inquiry and without giving him a right to be heard, when he by orderdeclares under sub-section 15 (1).
The cases of Rex v. Kensington Income Tax Commissioners1 and deVertevil v. Knaggs and another * support this view. In the earlier case,occasion arose to interpret the words “if the surveyor discovers”, inthe context : “ if the surveyor discovers that any properties or profitschargeable to income tax have been omitted …. the additionalCommissioners shall make an assessment in such sum as according totheir judgment ought to be charged on such persons, subject toobjection by the surveyor, and to appeal ”. Bray J. said: “ Does it(i.e., the word .* discovers ’) mean as contended by the applicant,ascertain by legal evidence? He has no right whatever to examine thetaxpayer on oath or to require him to give the particulars of his profitsand gains and to verify the same, or to call upon anyone to answerquestions. It would, therefore, seem most unlikely' that the Legislatureshould have intended by the -word ‘ discovers ’ that the surveyor was toascertain by legal evidence. That Act provides for a later trial, if I may1 (1913) 3 K. B. 07O» (1918) A. C. 557.
208SOERTSZ J.—Dankoluwa Estates Co., Ltd., v. The Tea Controller
call it so, of the question and when there is an appeal. The stage preced-ing the appeal is not that at which legal evidence is required …. In myopinion, it means * comes to the conclusion from the examination he makeseiand from any information he chooses to receive ’ The words I haveitalicized are peculiarly apposite to this case, for here too, the actprovides for a later trial of the. question if and when there is an appeal.-The later case assists by way of contrast. The relevant words were“ if at any time it appears to the Governor on sufficient grounds shown tohis satisfaction ”, and Lord Parmoor said : “ the acting Governor could notproperly carry through the duty entrusted to him without making someinquiry whether sufficient grounds had been shown to his satisfac-tion …. Their Lordships are of opinion that in making such aninquiry there is, apart from special circumstances, a duty of giving toany person against whom the complaint is made a fair opportunity tomake any relevant statement which he may desire to bring forward and afair opportunity to correct or controvert any relevant statements broughtforward to his prejudice ”.
In the case before me, the words “ if it appear? ” are unqualified, and itseems to follow that in such a case, the person concerned may in thewords of Sray J., “ come to a conclusion from the examination he makesand from any information he may choose to receive ”.
The cases Mr. L. M. de Silva relied upon, on behalf of the petitioner,are distinguishable, and do not in any way militate against the decisionsgiven in the cases already referred to. At one stage, the case of Rex v.Doherty ' seemed to me to create a difficulty. But I find that in 9 Halsbury(Hailsham) at page 858, this case is cited in illustration of theproposition that “ the issue of a warrant of commitment by Justices,where it appears on the face of the conviction that the jurisdiction toissue it depends on the non-payment of money by certain date, is ajudicial act and certiorari will be granted in regard to it ”The ratio decidendi for granting certiorari in that case was that the pay-ment of the money due to be paid put an end to the “jurisdiction” toissue the warrant, and the issue of it thereafter had no “ jurisdiction ”to support it. In Queen v. Justices of Surrey 1 the Justices were actingon an application made to them, and they were under a duty to actjudicially. It was a condition precedent to their certifying in the mannerthey were requested to certify, that they should require certain thingsto be done. One of the things that had to be done was not dbne, and itwas’ held that their certificate was liable to be quashed by certioraribecause they had failed to equip themselves with jurisdiction bycomplying with legal requirements.
Reg. v. Nicholson0 is hardly to the point. There licensing Justicesgranted an emergency licence in respect of a new house to a holder of alicence who applied for it on the ground that the licensed house was goingto be demolished. Certiorari was asked for on the allegation that thenotices given by the applicant for the emergency licence were not inaccordance with legal requirements, and that, therefore, the Justiceshad acted without jurisdiction. ‘ Smith L.J. & Vaughan-Williams L.J.
» 28 T. L. R. 502.* (1870) L. R. 5 Q. B. 466.
3 (1899) 2 Q. B. 455.
• SOEBTSZ J.—Dankoluwa Estates Co., Ltd., v. The Tea Controller 209
held that the notices were good, and that in any event, they would -notexercise their discretion to issue the writ in the circumstances of thatcase. The Lord Justices regarded the licensing Justices as “ personsexercising judicial or what have been called quasi-judicial functions
The case of Farquharson v. Morgan' was, admittedly, one of actiontaken in excess of jurisdiction, as distinct from action in excess ofauthority. The distinction is fundamental. As pointed out by Salter J.in Rex v. Leg. Committee of the Church Assembly (supra), Holt C. J. said inRex v. Inhabitants of Glamorganshire* “this court will examine theproceedings of all jurisdictions erected by Act of Parliament ”. That wasa case in which the question was whether certiorari should go to bring upan order of Justices, made under Statutory rating powers, and counselhad argued that no certiorari could go, just as no certiorari lies to removeorders made by Commissioners of Bankrupts, and upon that, Holt C.J.observed “ as to the Commissioners of Bankrupts, they had only anauthority and not a jurisdiction”. Farquharson v. Morgan (supra) wasconcerned with a writ of prohibition. Lord Halsbury L.C. and Lopes and "Davey L.JJ. held that where the want of jurisdiction of an inferiortribunal is patent, prohibition is "of course”. The position is differentIn regard to certiorari. (See Queen v. Justices of Salop ’; Queen v.Justices of Leicester & Compton ‘; Lakshmanan Chettiar v. Commissioner,Corporation of Madras & Chief Judge Court of Small Causes *; LakshmananChettiar n. Kannaper".) In view of the principles enunciated in theseand other cases, even if it is assumed that the Tea Controller while actingunder section 15 of the Ordinance is acting in a quasi-judicial capacity,it is a question whether the petitioner is entitled to ask for certiorariagainst him, in the circumstances of this case, inasmuch as he hadsubmitted his dispute with the Controller to the Board, and they hadgiven their decision upon it.
Rex v. Hendon7 was a case in Which certiorari was sent on the groundof bias on the part of one of the members of the local authority. It isquite clear that there the local authority was under a duty to actjudicially. To quote from the judgment, “the hearing of the resolutionwas advertised; objections were invited and considered, and the decisionarrived at was a decision which conferred, contingently at any rate,a legal right and affected the rights of subjects The four conditionslaid down in Atkin L.J.’s dictum are present. So too in Rex v. Boycott8the writ of certiorari went to the respondent who was acting in a quasi-judicial capacity, and had usurped a jurisdiction which, in veiw of themanifest doubt that existed on the question whether the boy in the casewas educable or not, belonged to the Board of Education.
The conclusion to which I find myself driven by an examination of allthese cases is that, in this instance, the Tea Controller was under no dutyto act judicially, and that, therefore, he is not amenable to the writ ofcertiorari.
1 (1894) 1 Q. B. 552.‘ I. L. R. 50 Mad. 130.
« (1700) Ld. Bayne 580.* Ibid p. 121.
* 29 L. J. Mag. Cases 39.7 (1933) 2 K. B. 696.
« Ibid p. 203.* (1939) 2 K. B. 651.
210SOERTSZ J.—Dankoluwa Estates Co., Ltd., v. The Tea Controller •
This finding disposes of the petitioner’s application, but in deferenceto the long and able argument Counsel submitted on the question ofestoppel and res judicata, I think I ought to deal briefly with those matters.
It was contended for the respondent that the petitioner is barred frommaking this application by the operation of section 7 (3) of the Ordinance,and by the decision given by this Court on the petitioner’s applicationfor a writ of mandamus on the respondent. In regard to the effect ofsection 7 (3), Mr. de Silya conceded that it would have prevailed againstthe petitioner, if it had been competent for the Board of Appeal to decidethe question the petitioner submitted to them, namely, whether theorder of the Controller was intra or ultra vires. But he contended thatthat question was not within its competence. 1 am unable to agree withthat contention. But for the fact that Mr. de Silva took the pointI should have thought it beyond question that the matter submittedto the Board in ground (c) of the appeal was within its jurisdiction.Section 15 (2) gives a right of appeal to the registered proprietor withoutany qualification or reservation. He “ may appeal against that order ”,and so for as the Board'is concerned, it “may on any such appeal (a)confirm the order; or (b) if it is of opinion that there was no error in theassessment in respect of which the order was made, rescind the order or,
if it is of. opinion that there was an error in the assessment in respectof which the order was made, but that the error was of ah amount otherthan the amount mentioned in the order, vary the order accordingly ”,The second ground on which the petitioner based his appeal to theBoard, namely, that “ the previous assessments of the standard cropsare correct ”, if it is understood to mean that by virtue of the operationof proviso (b) to section 15 (1), the Controller was wrong in declaringby his order that there was an error in regard to them and that, theymust be deemed to have been reduced, then, on the petitioner’s own case,that was a matter which was within power, (b) of section 15 (2), and theBoard gave its decision on it when it ruled that “ Section 15 of theOrdinance gives the Controller power to correct such errors, and this iswhat he has done ”. But from the order made by the Board, and in thelight of ground (d) of the appeal, it would appear that in ground (b) ofhis appeal, the petitioner was submitting that the previous assessmentswere correct, in spite of the difference discovered in the extent of theestate, because the productivity of the estate was greater than it wassupposed to be for the purpose of those assessments. Mr. L. M. de Silvapresented his case on that footing, namely, that power (b) of the Board'did not vest it with the right to consider the question whether the orderwas ultra or intro vires. He went on to point out that power (c) did notapply to this case. In regard to power (a), he contended that by it theBoard was given the right to confirm the order, but not to set it aside, andthat, therefore, the Board had no jurisdiction to decide the question ofultra vires, because a finding adverse to the Controller would have beenpurely academic, in the absence of a right to set aside the order. Butin' my opinion, the Board was not as helpless as that. It had, atleast, the right to refuse to confirm the Controller’s order, and in thatway, to give the petitioner the relief he sought. In my judgment,therefore, the Board had jurisdiction to decide the question submitted
SOERTSZ J.—Dankoluwa Estates Co., Ltd., v. The Tea Controller 211
to it in ground (c) of the petitioner’s appeal, and it decided that question,—may be erroneously—when it held that the error in this case was notone of over-assessment, for the reason that there was “ no reduction madein the rate of pounds per acre ”. That decision is, by virtue of section7 (3), conclusive between the parties for the purposes of the present appli-cation, even if it were erroneous. (The King v. Nat Bell Liquors, Ltd.')
But the position is much more to the disadvantage of the petitioner,at the stage at which I am called upon to consider his application, becausebetween the decision of the Board and the present application there isinterposed the order of the Chief Justice, on the application for a writ ofmandamus. I have already quoted at length from that order in whichthe Chief Justice held that the Board had the power to decide thatquestion, and I am greatly reassured to find myself in respectful agree-ment with that ruling. But even if it were wrong, as was contended byMr. de Silva, it would, nevertheless, have bound the parties, providedthe subject-matter in dispute between them, then and now, is the same.I cannot agree with Mr. de Silva that an erroneous decision on a point ofpure law is not binding between the parties where the relief (meaningthe form in which redress is asked) sought on one occasion is differentfrom the relief (in the same sense) sought or another. Counsel reliedon a citation from Caspersz on Estoppel which occurs in the course ofthe judgment of Garvin A.J. in the case of Katiratamby et al. v. Parupathi-pillai et al.*, and submitted on the strength of that statement, that therelief sought on the Mandamus application was different from the reliefsought on the present application. But it seems to me that the words“for a different relief” in that context cannot fairly be made to yieldas much as Counsel sought to extract from it. In my opinion, thosewords must be understood to mean relief in respect of a different subject-matter, and not a different way of asking for relief in respect of the samesubject-matter. That appears to have been the view of Garvin A.J.too for, in the course of paraphrasing the quotation he had made, he said :“ these passages so far they apply to the matter immediately beforeus, are an authority for the proposition that an erroneous decision an apure question of law will operate as res adjudicata quoad the subject-matterof the suit in which it is given, and no further ” The sole question then iswhether the subject-matter is the same. I do not think there can be anyserious doubt on that point. Clearly the petitioner is seeking to reachthe destination he had in view when he asked for a mandamus, only by adifferent road, that of certiorari.
For these reasons, I must hold that that application fails, and the rulenisi must be discharged with costs.
Rule discharged.
1 (1923) 2 A. C. 128.
23 N. L. R. 20'j.