30 HOWARD C.J.—Dankoluwa Tea Estates, Ltd. v. The Tea Controller.
1940Present: Howard C.J.
DANKOLUWA TEA ESTATES, LTD. v. THE TEA CONTROLLER.
In re Application for a Writ of Mandamus
Tea Control Ordinance (Cap. 299),s. 15 (1) and (2)—Error in Standard produc-tion—Deduction of coupons—Retrospective effect of order—Powers ofBoard of Appeal—Writ of mandamus.
A writ of mandamus will not lie to compel the Tea Controller to issuecoupons deducted by. him on the ground that the deduction is illegalunder proviso (b) to section 15 (1) of the Tea Control Ordinance, wherethere is a right of appeal to the Board of Appeal from an order undersection 15 (1).
The words in section 15 (2) that the Board may on such appeal confirmthe order seem to give the Board power to decide as to whether theController has correctly interpreted the provisions Of the section.
HIS is an application for a writ of mandamus on the TeaController.
E. F. N. Gratiaen (with him F. C. de Saram), for the petitioner.
V. Perera, K.C. (with him J. E. M. Obeyesekera), for the respondent.
Cur. adv. vult.
September 12, 1940. Howard C.J.—
This is an application by the Dankoluwa Estates Company, Limited,the petitioner, for -the issue of a writ of mandamus directing the TeaController, the respondent, to issue to the petitioner 111,069 lb. teacoupons which have been wrongfully withheld from the petitioner. Thefacts so far as material for the decision of this application are as follows : —The standard crop of the petitioner was duly assessed for the periods
HOWARD CJ.—Dankoluwa Tea Estates, Ltd. v. The Tea Controller. 37
1933-1938 as specified in paragraph 4 of the petition and he received teacoupons on the basis of such assessments. By an order dated November29, 1939, the respondent made an order under section 15 (1) of the TeaControl Ordinance (Chapter 299) reducing the assessment of the standardcrop of the said estate on the ground that an error had been made in theprevious assessments. The petitioner admitted this error which arosefrom a bona fide mistake in the previously declared extent of the saidestate. In his order of November 29, 1939, the respondent on thebasis of the revised acreage reassessed the standard crop for the years1933-34,1934-35,1935-36,1936-37,1937-38,1938-39,1939-40. In
accordance with such reassessment the respondent calculated that thetotal over-issue to the petitioner from 1933-34. to 1938-39 amounted to111,069 lb. The coupons due to the petitioner for 1939-40 amounted to330,314 lb. of which 286,650 lb. had been issued. The balance due for1939-40 therefore amounted to 43,664 lb. which deducted from 111,069 lb.the over-issue, left a balance over-issue of 67,405 lb. In his order ofNovember 29, 1939, the respondent stated that this amount of 67,405 lb.would be deducted from the future issue of coupons in respect of theestate. The petitioner appealed to the Board of Appeal constitutedunder the Ordinance against the respondent’s order. The grounds ofappeal were as follows : —
The decision of the Tea Controller as contained in his letter to the
appellant of November 29, 1939, is contrary to law and isinequitable.
It is submitted that the previous assessments of the standard crop
of the appellant’s estate are correct.
In any event the alleged error, if any, is,one of over-assessment,
and the Controller had no power to make any order affectingthe standard crop of the appellant’s estate for any periods ofassessment prior to the date of the order appealed from.
The productivity of the appellant’s estate at all material times
exceeded the quantity previously assessed by the Controller.
On March 26, 1940, the Board of Appeal dismissed the appeal. Theorder of the Board consists of two parts. The first part is typewritten,signed by Mr. S. Obeyesekere as Chairman of the Board of Appeal andstated to be dictated on March 26, 1940. The second part is described asa rider, is also signed by Mr. S. Obeyesekere as Chairman of the Board ofAppeal, and is partly in type and partly in handwriting. Although therider is signed by Mr. Obeyesekere as Chairman of the Board, its phraseo-logy suggests that it is merely a reflection of his own individual viewsand not those of the Board as a whole. In dismissing the appeal of the• petitioner the Board in the first part of its order examines the claim ofthe Controller to revise the assessment on the basis of the new acreage.The contention of the petitioner that there was no error in the productivityof the estate and hence under section 15 of the Ordinance the Controllercould not revise the assessment although there was a shortage in theacreage of 29 acres 2 roods 24 perches is also considered. The petitioner’scontention that there was no error in productivity was based on a reportfrom Mr. S. F. H. Perera in which the later attempted to nullify thespecial Assessor’s finding. The Board have found that the special
38 HOWARD C.J.—Dankoluwa Tea Estates, Ltd. v. The Tea Controller.
Assessor has made due allowance for all relevant factors and in rejectingMr. Perera’s report.is not prepared to find that the finding of the specialAssessor was incorrect. In endorsing this finding the order states thatthe Board is of opinion that section 15 of the Ordinance gives the Con-troller power to correct such errors and this is what he has done.' Theorder further states that the proprietors cannot be allowed to takeadvantage of their own mistake and that had they sent an accurate returnin 1933 the maximum they could have got was 411,350 lb. and not441,000 lb. In these circumstances the Board expresses the opinionthat the appeal should be dismissed.
In submitting to this Court his argument in support of the application,for a mandamus Mr. Gratiaen has conceded that the order of the Board isas against the petitioner, final and conclusive for the purposes of theOrdinance, so far as the standard crop for the period 1939-40 and for thesucceeding periods of assessment is concerned. He complains, however,that the respondent in his order of November 29, 1939, has deducted fromthe issue , of coupons for 1939-40 and 1940-41 in respect of the over-issuesfor the previous years an amount of 111,069 lb. He maintains that therespondent had no power under the Tea Control Ordinance to giveretrospective effect to his order. In this connection my attention hasbeen directed to section 15 (1) of the Ordinance. The material parts ofthis section are worded as follows : —
“ (1) … . the Controller, if it appears to him at any time that
an error has been made in the assessment of the standard crop of anyestate or small holding in respect of any period of assessment. . . .may by order declare that the standard crop of that estate. . . .for that period shall be deemed to have been. … reduced by
the amount in respect of which the assessment was in error ; and the^exportable maximum of that estate. … for that period shall
be deemed to have been …. reduced …. to such anamount as would have been the exportable maximum of that estate…. for that period if such error had not been made :
Provided that where such error is one of over-assessment, an orderunder this sub-section—
shall not be made unless and until the estate or small holding has
been inspected by the Controller or by some person authorizedby the Controller in that behalf, and
shall not affect the standard crop of any estate or small holding
for any pei’iod of assessment prior to that in which the orderis made.
The petitioner’s claim for a mandamus is based on the contention thatthe respondent by his order of November 29, 1939, has under the firstpart of the sub-section reduced the standard crop of the estate withouttaking into consideration paragraph (b) of the proviso and ift consequenceof such illegal order made deductions under section 17 (5) of the Ordinance.
On behalf of the respondent Mr. Perera has contended that a writ ofmandamus cannot issue inasmuch as the legality of the deductions madeby the respondent including the interpretation of proviso (b) to section15 (1) of the question was a matter for the Board of Appeal under section
HOWARD C.J.—Dankoluwa Tea Estates, Ltd. v. The tTea Controller. 39
15 (2) of the Ordinance and has been decided by the Board in favour ofthe respondent. In other words the jurisdiction of this Court is ousted.Mr. Perera also maintains that, even if the jurisdiction of this Court is notousted, the respondent has given the correct interpretation to sections15 (1) and 17 (5) of the Ordinance and the deductions were properly andlawfully made. It is obvious that if I come to the conclusion that in thecircumstances I have no jurisdiction and therefore a writ of mandamuscannot issue, interpretation by me of the legal effect of provision (b)would be merely obiter and would serve no useful purpose.
The grounds on which a writ of mandamus will be granted has beenstated in a number of English cases. The principles formulated hereinare applicable in Ceylon. In The King v. Port of 'London Authority', itwas held by Scrutton L.J. that one reason against granting a mandamuswas the existence of another and equally convenient remedy by way ofappeal to the Board of Trade. Reference to this principle is to be found inShortt on Informations, Mandamus and Prohibition, pp. 232-246. Onpage 236 it is stated as follows : —
“ If, supposing the applicant has a right, there is a mode of enforcingit by appeal or writ of error, a mandamus will be refused ”.
The principle formulated in the English cases is applicable here. Inthis connection I would invite attention to Poyser J’s reference inSamynathan v. Whitehom’, to the judgment of Wood Renton A.C.J. inAn application for a writ of mandamus on the Chairman of the MunicipalCouncil.'
The elucidation of the questions at issue has not been facilitated eitherfor myself or the parties themselves by the somewhat unusual formassumed by the judgment of the Board of Appeal, a semi-judicial body.Although dissenting judgments are not an unusual feature so far as Courtsof law are concerned, riders are unknown. Moreover although thelanguage of the rider seems to indicate that it is merely an expression ofopinion on the part of one of the members of the Board, the signatureappended thereto has assumed the same form as the main part of thejudgment thereby indicating that it may be the opinion of the wholeBoard and is added as explanatory of the order. The following passagesfrom the rider seem to throw an entirely different complexion on the mainpart of the order in relation to the Board’s interpretation of section15 (1) : —
“ A careful examination of Mr. Perera’s report and the circumstantialevidence, furnished by the appellant’s election not to appeal, satisfyme that there is no case for interference with the order so far as it- comes within the scope of section 15. Reference was made to contem-plated deductions. This question involves the construction of section17 (5) and action thereunder by the Controller. No appeal is providedregarding such action. In my view, the Appeal Board has no juris-diction in the matter ”.
Deductions from the period of assessment during which the order ismade or for any succeeding periods of assessment are, it is true, made1 (1919) 1 K. B. 176.3 35 N. L. B. 225.
3 IS N. L. R. 97.
40 HOWARD C.J.—Dankoluwa Tea Estates, Ltd. v. The Tea Controller.
under section 17 (5), but such deductions follow automatically once anorder revising the standard assessment and thereby the exportablemaximum is made under section 15 (1). Section 17 (5) merely providesnecessary machinery to put into effect an order under section 15 (1). Itwas the validity of the order under section 15 (1) that the Board wasasked to consider and it would appear that the opinion expressed in therider does not differ so far as section 15 (1) is concerned with that expressedin the main part of the order.
Ground (c) in the case presented by the petitioner to the Board ofAppeal raised the right of the respondent to make any order affecting thestandard crop of the appellant’s estate for any periods of assessment priorto the date of the order appealed from. The legality of retrospectiveaction by the Controller and the question of the interpretation of proviso(b) to section 15 (1) was therefore in issue. Although such an issue wasdirectly raised by the petitioner before the Board of Appeal, his Counselin this Court has contended that the Board of Appeal was not vested withany such power. I cannot accept this contention. The words in section15 (2) that the Board may, on any such appeal—
“ (a) confirm the order.”
seem to me to give the Board the power to decide as to whether theController has correctly interpreted the provisions of section 15 (1).
The question as to whether the Board in coming to a decision hasapplied its mind to the effect of the proviso on the power of the Controllerunder the first part of section 15 (1) is not so easy to decide. There is nota single reference to the proviso either in the main part of the judgment orin the rider. There is therefore nothing to indicate that it was presentin the minds of . the Board. On the other hand the rider states “thatthere is no case for interference with the order so far as it comes within thescope of section 15 ”. Moreover the main part of the judgment whichstates that the Board is of opinion that the appeal should be dismissed hasa paragraph phrased as follows : —
“ The Controller, however, acting under section 15 of the Ordinancedeclined to retain the present assessment and having revised it on thenew acreage as from 1933-34 proposes to deduct the over-issues. Theappeal is from this order.
The rider must, therefore, be taken to confirm the retrospective revisionof the assessment, whilst the main judgment in addition approved thedeductions consequent thereon. It may be that in coming to this decisionand in dismissing the appeal, there has been on the part of the Board ofAppeal a refusal to act in accordance with the law or a failure to actjudicially. I am not prepared to say on the material before me whetherthis is so or whether proceedings will lie against the Board. I am,however, of opinion that the legal right which the petitioner seeks toenforce by writ of mandamus was one that the Board could grant byappeal. In these circumstances proceedings against the respondent byway of writ of mandamus are misconceived. The application is, therefore,dismissed with costs. –
DANKOLUWA TEA ESTATES, LTD v. THE TEA CONTROLLER