FORBES & WALKER TEA BROKERS v. MALIGASPE AND OTHERS

043-SLLR-SLLR-1998-V-2-FORBES-WALKER-TEA-BROKERS-v.-MALIGASPE-AND-OTHERS.pdf


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FORBES & WALKER TEA BROKERS
v.
MALIGASPE AND OTHERS
COURT OF APPEALYAPA, J. AND
U. DE Z. GUNAWARDANA. J.
C.A. NO. 191/98NOVEMBER 11. 1998
Writ of certiorari – Licensing of Produce Brokers Act, No. 9 of 1979 – Applicationfor new licence – Applicability of regulations 8 (b), 11 and 11A – Locus standi- Person aggrieved – Lex non cogit impossibilia – Meaning of the word “every".
The petitioner sought to quash the decision made by the appropriate authorityunder Act No. 9 of 1979 granting a licence to Asia Siyaka Commodities (Pvt)Ltd. the 3rd respondent which authorised the 3rd respondent to carry on thebusiness of licensed produce broker for tea.
It was contended that the 3rd respondent could not have been issued with alicence on 22. 2. 98 to do business as a produce broker during the year 1998as the 3rd respondent had failed to submit the application before the 30th ofSeptember of the preceding year 1997 as required by regulation 11.
It was contended on behalf of the 3rd respondent that a company entering thebusiness for the first time is governed by regulation 11A of 13. 6. 81, and notby regulation 11. It was further contended that the petitioner has no locus standito invoke the jurisdiction of the Court of Appeal.
Held:
The Requirement in regulation 8 (b) did not apply to an application madeby a company seeking to enter the relevant business for the first timebecause regulation 8 (b) which imposed the requirement that the applicationmust be accompanied by an audited balance sheet and profit and lossstatement for the 3 years immediately preceding must necessarily be reador understood subject to the overriding maxim of interpretation – lex nonlogit impossibilia.
Per Gunawardana, J.
"The argument that the law required every application for a licence, evenwhen it related to a new business and was made for the first time ought
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to be accompanied by an audited balance sheet in respect of the 3 yearsimmediately preceding, if accepted would vindicate Mr. Bumble's opinionabout the law – that law is an ass'."
2. The tendency in the past seems to have been to limit the locus standito persons who had a particular interest or grievance of his own and abovethe rest of the community. In more recent years, the concept of locus standiseems to have been progressively widened to extend standing to 'almostanyone coming to court to get the law declared and enforced'. The strictconcept that the applicant for judicial review must have an interest superiorto that of the general public has been transformed in England and seemsto be virtually jettisoned.
Per Gunawardena, J.
"I take it that Rule of Law means that no one is above the law and anecessary corollary of that proposition is that no one can flout the law withimpunity. Prerogative writs, certiorari in particular are the means wherebyallegations such as issuing licences contrary to and in disregard of theprovisions of the law can be brought to light in order to get the unlawful
, conduct stopped and so vindicate the rule of law".
APPLICATION for a Writ of Certiorai.
Cases referred to:
Whitehead v. James Stott Ltd. – 1949 1 KB 358.
Galashiels Gas Co. Ltd. v. O'donne – 1949 Ac 275.
. Suiters v. Briggs – 1922 1 AC 1. .
Harding v. Price – 1948 – 1 K1B 695.
Kikabhoy v. I. T. Commissioner – AIR 1950 Bom. 6.
Secretary of State v. Pumendi Narayan – 1LR 1940 Cal 123.
Thiru Manikkam Co., Ltd. v. Tamil Nadu State – 1977 AIR SC 518.
Hardware v. Glidden & Co. – 284 US 151, 158.
Chuni Singh v. Union of India – 1968 AIR Delhi 196.
Patents Agents v. Lockwood – 1894 AC 347.
Wijesinghe v. Tea Export Controller – 39 MLR 437.
ft V. Richmond Confirming Authority – 1970 AER 481.
Gouriets Case – 1977 1 AER 696.
ft. v. Greater London Council – Ex P. Blackburn 1976 1 SLR 550.
Dr. Mohideen v. Bangladesh – 48 DLR SC Bangladesh.
ft v. Paddington Valuation Officer – 1965 – 2 AER 836.
K. N. Choksy, PC with Romesh de Silva, PC and Harsha Amerasekare for
petitioner.
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Saleem Marsoof DSG for 1st and 2nd respondents.
D. S. Wijesinghe, PC with Gomin Dayasiri, Kushan de Alwis, Dilan de Silva andPrasanne Obeysekare for 3rd respondent.
November 11, 1998.
U. DE Z. GUNAWARDANA, J.
This is an application made by the petitioner for a Writ of Certiorarito quash the decision made on or about 26th February, 1998 by the1st respondent, who is the appropriate authority under the Licensingof Produce Brokers Act No. 9 of 1979, granting a licence to AsiaSiyaka Commodities Private Ltd., which is cited as the 3rd respondentto the application, thereby authorizing the 3rd respondent to carry onthe business of licensed produce broker for tea.
It is pertinent to observe that the petitioner which is a dulyincorporated company, itself is a licensed produce broker in tea andhas been granted a licence in that regard.
The argument of the learned President's Counsel for the petitioneris that the 3rd respondent couldn't have been issued with a licenceon 26th February, 1998, to do business as a produce broker duringthe current year, ie 1998, as the said 3rd respondent company hadfailed to submit the application for licensing to the appropriate authority(1st respondent) before the 30th-day of September of the precedingyear, ie 1997 as required by regulation 11 published in the Gazettenotification dated 27. 8. 1979 the relevant excerpt of which regulationreads thus: "Every application for a licence for a particular year shallbe submitted to the appropriate authority on or before the thirtiethday of September of the year immediately preceding that year . . ."It is, admitted by the 3rd respondent that the application was madenot before the 30th September, 1997, as the 3rd respondent companyought to have done, if, in fact, regulation of 27. 8. 1979 applied tothe date before which any application had to be made whether thatapplication related to a new business or not. It is common groundthat the relevant application, for licence in respect of the current year,ie 1998, had been made by the 3rd respondent on the 16th ofFebruary, 1998.
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The 1 st and 3rd respondents counter the position of the petitioneroutlined above by submitting that the 3rd respondent which is ad-mittedly a firm or company entering the business of a produce brokerfor the first time is exempted from the requirement of making theapplication for a licence on or before the 30th of September of thepreceding year, ie 1997 as 3rd respondent (being a company enteringthe business for the first time) is governed not by the above-mentionedregulation 11 but by regulation 11A of 03. 06. 1981 which reads thus:"Every application for a licence made by an individual firm or companyentering the business of a produce broker for the first time shall bedetermined by the appropriate authority within thirty days from the dateon which such application was made".
The pith and substance of the argument advanced, at first, by thelearned counsel appearing for the 1st and 3rd respondents is this:inasmuch as the appropriate authority is required by regulation 11Ato make a determination one way or the other within 30 days, inrespect of the application for a licence made for the first time, it isopen to such an applicant seeking to enter the business of a producebroker to forward or submit the application at any time during theyear. In other words, what that argument connotes is this, ie the factthat it is stated in regulation 11A (which was inserted on 03. 06. 1981into the original regulation 11) that the appropriate authority shall makea determination within 30 days in respect of the application (madeby a person entering the business for the first time) ought to beconstrued to mean also that the said application can be made at anytime during the year. If the requirement that relevant application oughtto be decided within 30 days can mean that it also can be madeat any time during the year – then the statement that an applicationcan be made at any time during the year ought to convey the meaningor must admit of the construction that the relevant application shallbe dealt with within 30 days. If the fact or statement "A" means thefact "B" as well – then fact or statement “B" must necessarily mean"A" as well. Just as much as the statement (had there been sucha provision) that the relevant application can be made during the yearat any time in itself can never mean that the said application mustbe decided within 30 days or within any time limit at all – the statementor the requirement that a determination has to be made in respectof the application within 30 days can never admit of the interpretationor the sense that the said application can be made at any time -more so as the requirement in the original regulation 11 that the
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application shall be made on or before the 30th of September of thepreceding year applies in all its rigour, as would appear from thesequel, to an application made by a person entering the businessfor the first time, as well. In fact, that is the solitary question, vizwhether the requirement in regulation 11 that the application has tobe made before 30th September of the year immediately precedingis applicable to an application made by a person entering the businessfor the first time, as well – that demands consideration and thedecision of this application depends solely and squarely on thatquestion.
It must not be forgotten that the argument put forward on behalfof the 1 -3 respondents by their respective learned President's Counsel,originally or at the very outset, was that regulation 11 of 27. 08. 1979had no application whatsoever to the applications made by thoseseeking to enter the business for the first time and new applicationscould not even be made thereunder although that argument sufferedsomewhat of a metamorphosis, perhaps, when they had an intuitiveperception of the right thing do and credited the court also with alittle insight and conceded that new applications made for the firsttime could be made under regulation 11 of 27. 08. 1979 as well. Itwill be recalled that earlier they drew the attention of the court toregulation 8 (b) in P2 (Government Gazette dated 27. 08. 1979) andargued that in view of the requirement (imposed by the said regulation8 (b) which regulation was of the same date as regulation 11, ie27. 08. 1979) that an audited balance sheet in respect of the 03 yearsimmediately preceding ought to accompany the application couldn'tbe complied with by those seeking to enter the business for the firsttime – those seeking to enter the business of produce broker for thefirst time could not make an application for a licence (to carry onthe business of produce broker) under regulation 11 of 27. 08. 1979and that the new applicants were permitted to do so only after theintroduction of regulation 11A of 03. 06. 1981. But, since the argumentthat the regulation 11 had no applicability and relevance to newapplications was advanced, which was, in fact, the only solitary argumentput forward at first and since there is a possibility of that argumentbeing resurrected elsewhere, that argument too demands considera-tion in this order – although it has now been abandoned – for thecounsel for the 1 – 3 respondents later submitted that those seekingto enter the business of a produce broker for the first time could makethe application for the licence either under regulation 11 or 11 A.
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The stance that the 1 – 3 respondents adopted towards the endingof their submissions was that a new applicant had to submit theapplication for a licence before the 30th September of a particularyear only if he chose to make the application under regulation 11but that a new applicant was entitled to make the application at anytime of the year if he (new applicant) made the application underregulation 11A – because regulation 11 A, as the learned President'scounsel for the respondents argued, authorized the making of anapplication, by a person seeking to enter the business for the firsttime – at any time of the year.
It is to be observed that the original regulation 11 {supra) basicallycovered or made provision in regard to 2 matters: (a) the date beforewhich "every application" for a licence had to be made; and (£>) datebefore which the determination' had to be made by the appropriateauthority in respect of that application.
It is relevant to notice one significant point in this regard. It is this:prior to the introduction of regulation 11A although an application hadto be made on or before the 30th September of the preceding yearthere was no express or strict requirement that a determination inrespect of the application had to be made within thirty days. Of course,regulation 11 in its original form, ie before the introduction of 11 A,required the application to be made on or before the 30th of Septemberof a particular year and the determination in respect thereof to bemade before the 30th of October of the same year. But underregulation 11 of 27. 8. 1979 an application could be made well beforethe 30th of September, say, January of a particular year, and yet asthere was no requirement until the introduction of regulation 11 A, thata determination had to be made within 30 days of the date of makingthe application, the appropriate authority was under no duty to makea determination in respect thereof until 30th October of that year. Theobject of regulation 11A was plainly to require the relevant authorityto make a determination in the case of applications relating to newbusiness within 30 days of the making of the application, and thesaid regulation 11A left untouched the other matter covered by regu-lation 11 dated 27. 08. 1979, viz the date of making the application- so that "every application" so far as the date before which it hadto be made was concerned, irrespective of whether it related to anold or new business, continues to be governed, as it did before theintroduction of regulations 11 A, by regulation 11. It is to be understood
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that regulations 11 and 11A are not two separate and distinct regu-lations as such. They are integral to each other and act reciprocallyon each other and neither can be interpreted in isolation. Had regu-lation 11A not been introduced – regulation 11 would have providedfor or covered "every application" relating to both old and new businessas regards both the date of making “every application" and the datebefore which or the period within which such application had to bedealt with by the appropriate authority. The learned President's Counselfor the respondents had, at first, argued, rather tentatively and irreso-lutely, that regulation 11 of 27. 8. 1979 does not, in fact, apply toan application in respect of a new business and that it (regulation11) never did. To vindicate that submission reference was made inparticular to regulation 8 (b) in P2 (Government Gazette – 27. 8. 1979which required every individual or firm making an application for alicence to furnish an audited balance sheet and a profit and lossstatement for the three years immediately preceding the year in whichthe application was made. The argument, somewhat discursive in itsgenre, which, in some degree, accentuates the tendency to baffle,seems to be as follows and I take it meant this: inasmuch as anindividual or firm seeking to enter the business for the first time cannotpossibly furnish information with regard to an audited balance sheetand profit and loss statement in respect of the 3 years immediatelypreceding the date of the application as required by regulation 8 (£>)in the Government Gazette of 27. 8. 1979- the regulation 11
contained in the same Gazette (of the same date) couldn't have hadin contemplation, and therefore could not have applied to an appli-cation made by a person or firm seeking to enter the relevant businessfor the first time. By means of this argument the respondents wereseeking to show that regulation 11 is wholly irrelevant and thereforehad no application or relevance to an application in respect of a newbusiness which application (in respect of a new business) thereforewas governed solely by regulation 11A which was introduced byGazette on 3. 6. 1981. But it is worth notice that regulation 11A issilent on the question as to the date on which or when an applicationin respect of a new business has to be made, clearly because thelegislature intended that the provision in regulation 11 with respectto the date before which the application has to be made, ie 30th dayof September was to govern all applications, indiscriminately whetherthey related to old or new business. Assuming for the sake ofargument, that regulation 08 (b) (in the Government Gazette of27. 8. 79) applied, as argued by the respondents, to an application
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in respect of a new business which had the effect of disqualifyingah application relating to a new business – then it cannot in the samebreath, be argued logically that regulation 11 in the same Gazettedid not apply or did not have in contemplation an application in respectof a new business. Assuming that the said regulation 08 (b) in theGovernment Gazette of 27. 8. 1979 did apply also to an applicationin respect of a new business (which cannot rationally be thought tobe so) the application (in respect of a new business) failed becauseit could not satisfy the impossible condition, viz furnishing an auditedbalance sheet and so on in respect of the 03 years immediatelypreceding and not because it (the application) related to a newbusiness – because if the requirement of furnishing an audited balancesheet in respect of the preceding 03 years was not there – theapplication could not have been disqualified even if the applicationrelated to a new business and so couldn't furnish an audited balancesheet in respect of the preceding three years. Nowhere is it statedin any one of the regulations in the Government Gazette of 27. 8.1979, in which Gazette regulation 08 (b) too appears, that noapplication in respects a new business can ever be made. Anyhow,if as originally argued by the learned President's Counsel for the 1stand 3rd respondents, if it was the failure or rather the impossibilityto satisfy the requirement in regulation 08 (b) – ie to furnish an auditedbalance sheet, etc. for the past 3 years that made or renderedregulation 11 inapplicable to an application in respect of a newbusiness – then dispensing with that requirement by the amendmentof the said regulation which amendment was introduced by theGovernment Gazette of 3. 6. 1981 should logically make regulation11 now applicable to applications relating to even a new business- subject of course, to the amendment introduced by regulation 11A. In any event the meaning of the term "every application" as usedin regulation 11 cannot be limited to applications other than thoserelating to a new business. The word "every" is a term which admitsof no qualification or limitation. The word "every is used in the senseof everything which means all things which would include all mannerof or all kinds of applications, irrespective of whether they related toa business already in existence or not. In the new Shorter OxfordEnglish Dictionary, illustrating the meaning of the term "every" theexpression: "every theory is open to objection" – has been explainedto refer to all theories that may exist. Likewise, the phrase "everyapplication" in regulation 11 dated 27. 9. 1979 ought to be construedto include or embrace all applications ie each single application, that
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may conceivably be made. In fact, the very fact that the regulationdated 27. 8. 1979 was amended by the insertion of regulation 11A(03. 06. 1981) is proof of the fact that if not for the said amendmentthe provisions in regulation 11 would have applied to an applicationmade for the first time even as regards the period within which adetermination had to be made in respect of the same ie an applicationmade for the first time.
The arguments put forward on behalf of the respondents beingalways in a flux – the learned Additional Solicitor-General at one stage,submitted that in interpreting regulation 11 of 27. 8. 1979, the words:"excepting the applications made by a firm or company entering thebusiness of a produce broker for the the first time" – has to be readinto the said regulation. I do not think that the legislature ever intendedto exclude or remove the applications made for the first time fromthe operation or purview of regulation 11. Although "the object of allinterpretation is to discover the intention of Parliament" yet as LordParker, CJ. said: "the intention of Parliament must be deduced fromlanguage used". "Words are not to be construed contrary to theirmeaning, as embracing or excluding cases merely because no goodreason appears why they should not be embraced or excluded".Whitehead v. James, Stott Ltd.m, Galashiels Gas Co., Ltd. v. 0'Donnd2)."The duty of court is to expound the law as it stands and to leavethe remedy (if one be resolved upon) to others" – Sutters v. Briggs<3)per Lord Birkenhead. As Lord Mersey said: "It is a strong thing toread into an Act of Parliament words which are not there and in theabsence of clear necessity it is a wrong thing to do”.
Initial suggestion, if not the argument, of the learned AdditionalSolicitor-General that in construing the regulation 11 one should writeor read into the said regulation the words: "excepting the applicationsmade by a firm or company entering the business of a produce brokerfor the first time" carries with it the necessary and irresistible implicationthat if the suggested words are not read into regulation 11 as it standsthe said regulation would necessarily include "every application"without exception, whether, the application was made in respect ofan established business or a new one.
There is a blatant and conspicuous inconsistency inherent in theargument, put forward on behalf of the respondents, ie that regulation08 in the Government Gazette 27. 08. 1979 when it spoke of : "every
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individual firm or company making an application under theseregulations for a licence . . . shall furnish the following informationto the appropriate authority:
. . .
The audited balance sheet and a profit and loss statement forthree calendar years immediately preceding the year in which anapplication for such licence is made" – applied also to an applicationin respect of a new business making an application for a licence forthe first time but that regulation 11 in the same Gazette of the samedate vyhich regulation 11 also spoke of: "Every application for a licence. . did not apply to an identical application ie to new applicationor application made by a person or firm seeking to enter the relevantbusiness for the first time. The argument of the learned President'sCounsel for the respondents, it will be recalled, was that the aboverequirement enunciated in regulation 08 (b) ie of furnishing a balancesheet operated to disqualify a new application made for the first time.If, as argued by the learned President's Counsel for the respondents,the aforesaid regulation 08 (b) (27. 08. 1979) applied to a newapplication as well made by a person or firm seeking to enter therelevant business for the first time, it is not open to them to contendthat regulation 11 contained in the same Gazette of the same datedid not apply to an application made for the first time – for regulation08, as was pointed out earlier, speaks of "every individual firm orcompany making an application under these regulations for a licence"which mode of expression is, in substance, no way different from thephraseology of regulation 11 (27. 08. 1979) and does, in fact, meanor connote "every application for a licence" which is exactly thephraseology employed in regulation 11 of 27. 08. 1979.
But the true legal position is that the requirement in regulation08 (b) (contained in the Gazette dated 27. 08. 1979) did not, in fact,apply to an application made by a firm or company seeking to enterthe relevant business for the first time because the regulation 8 (b)which imposed that requirement, viz that the application for a licencemust be accompanied by an audited balance sheet and profit andloss statement for the 3 years immediately preceding must necessarilybe read or understood subject to the overriding and time-honouredcanon or maxim of interpretation which is so well-known ie lex noncogit impossibilia which means that impossibility is an excuse for nonperformance of a duty or obligation – an aspect which was not touched
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on by any one of the parties to this application. Conditions imposedby law “are understood as dispensing with the performance of whatis prescribed when performance of it is impossible" – Maxwell on theInterpretation of Statutes. For instance, in Harding v. Pricef4* the trailerof a vehicle collided with and damaged a stationary car. But owingto the noise made by the vehicle as it travelled along – the driverwas unaware that the accident occurred because he did not hear thenoise of the impact or the collision and so did not report the matterto the police as required by section 22 (2) of the Road Traffic Act1930. The driver was held to be not guilty of failure to report theaccident to the police – the reasoning of Lord Goddard CJ. beingas follows: “. . . unless a man knows that the event has happened,how can he carry out the duty imposed? If the duty be to report,he cannot report something of which he has no knowledge . . . anyother view would lead to calling on a man to do the impossible". Byanalogy, a person who has not been in the relevant business, andwho is seeking to enter the relevant business making an application“for the first time” if required to submit an audited balance sheet anda profit and loss statement for the three years immediately previousto the year in which the application for a licence is made for the firsttime – there is something inherently impossible in that condition forhe simply cannot comply with that condition since he had not beenin that business during the 3 years immediately preceding. Above all,that such a person seeking to enter the business for the first timemust be excused willy-nilly from complying with such a requirement,is the common sense approach to adopt is all too plain. This aspectwas not touched upon, in the course of argument, although this casewas argued by the very aristocrats amongst the President's Counsel.Perhaps, it is not the habit of great men to descend from their loftymental pinnacle to the humble level of ordinary minds.
The argument on the part of the learned counsel for the respondent,to make it appear that the law "in its majestic equality" required everyapplication for a licence, even when it related to a new business andwas made for the first time ought to be accompanied by an auditedbalance sheet in respect of the 03 years immediately preceding, ifaccepted would, perhaps, vindicate Mr. Bumble's opinion about thelaw, ie that "law is ass" (Mr. Bumble had as little respect for the rulesof syntax and grammar as he had for the law and chose to disregardthem when he spoke and did not think it necessary to use "an" beforevowel sounds). Although perhaps it is true that it is due to its
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impartiality far more than to its wisdom that are the due influenceand reputation which the law has possessed at all time – yet, in thiscontext, the law has exhibited its robust common sense by clarifyingor making it more manifest, so to say (by means of the amendmentof 03. 06. 1981 if it can properly be called an amendment for it isnot ari amendment but a veritable clarification) what the intention ofthe authority (that framed or enacted the regulation) was as expressedin regulation 8 (b) – however belated the clarification may be. Theclarification in the Gazette of 03. 6. 1981 is not an amendment ofthe law as such but a mere explanation because it makes clear, whatperhaps would otherwise, have been somewhat of an enigmaticregulation to the uninitiated. It is not an amendment in the sense ofan act or regulation which alters or changes the law but an elucidationaimed at preventing the possibility of any misconception arising in themind of the reader that regulation 8 (b) operated to disqualify anapplication made for the first time unless it was accompanied by anaudited balance sheet in respect of the 03 years immediately preceding- for the law must be clear even to the ordinary citizen. To cite fromBindra:". … It is not necessary to hold that in every case wherethe legislature amends the law that it does so because but for theamendment the effect would have been something different. Thereare innumerable cases in the history of legislation where the legislaturehas added or deleted words in order to clarify the position. VideKikabhoy v. I. T. Commissioned Amendments are often made to clearup ambiguities and such amendments which are intended to preventmisinterpretation do not in themselves alter the law in any way. Whenthe legislature amends to clarify things it does not necessarily meanthat the original act did not include and cover those things". In thecase of Secretary of State v. Purnendu Narayarf* their Lordships didnot assent to the proposition that any amendment made in thelanguage of any legal enactment must be taken to import a changein law.
When regulation 08 was clarified by Gazette dated 03. 06. 1981to prevent the requirement in regulation 8 (b) in Gazette dated27. 08. 1979, viz that an application for license must be accompaniedby an audited balance sheet in respect of the 03 years immediatelypreceding the date of the application being misunderstood or miscon-strued to apply to even an application made for the first time relatingto new business – its object was not an amendment in the senseof an act which changes the law. A law or regulation can be said
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to be amended when "something is added to or taken from it". Whena clarification was made, as had been done by what may be calleda clarifying amendment of regulation 8 (to) by the Gazette dated
06. 1981, there was no change introduced in the legal position- the legal position continuing to remain the same as it was priorto the said clarification – the legal position at all times, being thatan application made for first time need not, as it possibly couldn'tcomply with the requirement of furnishing an audited balance sheet,etc., in respect of the 03 years immediately preceding, be accompainedby such an audited balance sheet. Of one thing one can be sure,if of no other, that is, that regulation 8 (b) of 27. 08. 1979 was neverintended by the authority who framed it to apply to applications madefor the first time, reasons being, at least, twofold: (i) the authority orbody that made the relevant regulations, the regulation 8 (to) inparticular, must be presumed to know the canons of interpretation andthe "regulations that have been enacted by the said authority oughtto construed in keeping therewith – just as much as the legislativelanguage will be interpreted on the assumption that the legislaturewas aware of. . . the rules of statutory construction …" – Sutherland:Statutory Construction. The fact, that no statute or regulation, as hadbeen pointed out above, ought to be construed so as to require aperson to do the impossible, is a salient and inveterate maxim ofinterpretation calls for remark in this regard;
(ii) To hold that the regulation 8 (to) of 27. 08. 1979 applied toa firm or company that had not been in business earlier and as suchhad to furnish an audited balance sheet and so on in respect of the3 years immediately preceding the date of the application (which ismade for the first time) would obviously produce an irrational con-struction because that would involve the absurdity of requiring a firmor company that had never ever been in business before to furnishan audited balance sheet for 03 years immediately preceding the dateof the application made – be it noted – for the first time. It wouldbe an injustice to the wisdom of the body itself that framed the relevantregulation to proceed on the assumption that that body was so devoidof concern for common – sense as to have expected that even thepeople, making applications for a licence to start a business (for thefirst time) ought to comply with that requirement of furnishing anaudited balance sheet in respect of the 03 years immediately precedingthe date of the application. Even assuming for the sake of argumentthat the intention of the authority that enacted or framed the regulation
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8 (b) was of doubtful significance or was enveloped in doubt thatis, even if it is doubtful whether the authority that framed the relevantregulation intended it (the said regulation 8 (b) to apply to an ap-plication for a licence made for the first time – yet, paradoxicallyenough, as argued by the learned Additional Solicitor-General himself"the intention which appears to be most in accord with convenience,reason, justice and legal principles in all cases of doubtful significanceis presumed to be the true one". Vide Maxwell on The Interpretationof Statutes. But the fact that the intention of the authority that framedregulation 8 (b) was not of doubtful significance and that the framingor the enacting authority never intended that regulation 8 (b) of27. 08. 1979 ought to apply to an application made for the first time,is evidenced by the clarification or explanation given in the Gazettedated 03. 06. 1981 that an application made for the first time doesnot come within the operation or purview of regulation 8 (b) of27. 08. 1979. It is worth repeating, for it simply cannot be helped,that the clarification made by the of Gazette of 03. 06. 1981 is notan amendment of the law – since it does not represent a changein the intention of the enacting or framing authority for, the enactingauthority could not have possibly intended that the requirementenunciated in regulation 8 (b) should be complied with by a personmaking an application for a licence for the first time for to supposethat the enacting authority intended that regulation 8 (b) applied inall its rigour to even to an application which is made for the first timein respect of new business would be contrary to common sense asit is humanly impossible for a person making an application for thefirst time to comply with that requirement.
Thus it is abundantly clear that the authority that enacted theregulation 8 (b) entertained no intention, that the requirementprescribed therein, viz that the application must be accompaniedby an audited balance sheet, should be complied with by a firm orcompany making an application for licence seeking to enter therelevant business for the first time as it possibly couldn't have doneso for reasons as explained above. This in turn further serves to makeit clear that Gazette dated 03. 06. 1981 merely made a clarificationof the intention of the enacting authority as expressed in regulation8 (b) dated 27. 08. 1979 and not an amendment of regulation 8 (b)in the technical sense, because the intention (of the enacting authority)was the same prior to the "amendment" to 8 (b) (introduced by Gazetteon 03. 06. 1981 which amendment was, in fact, a clarification) as
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it, ie the intention of the enacting authority was thereafter and at notime was it ever intended that a firm or company making an applicationfor the first time should submit an audited balance sheet and so onfor the three years immediately preceding. And when the amendment(clarification) of 03. 06. 1981 expressly says it, ie that requirementof an audited balance sheet will not apply in the case of newapplications made for the first time, the question is placed beyondany controversy. So that the argument, advanced at the beginning,on behalf of the 1st – 3rd respondents is not tenable – the argumentbeing that the provisions of regulation 11 dated 27. 08. 1979 couldnot and, in fact, did not, have in contemplation a new application beingmade thereunder, let alone govern such new applications, as theaforesaid requirement created by the regulation 8 (b) of the samedate as the regulation 11 – in the submission of the learned counselfor the respondents – operated as an insuperable legal impedimentto such an application made for the first time relating to a newbusiness being made under regulation 11.
The original position of the respondents, it is to be recalled, basedalmost wholly on the sheer impossibility of complying with regulation8 (b) of 27. 8. 1979 was that inasmuch as the regulation 11 (27.
1979) did not govern and had no applicability to applications madefor the first time the said regulation 11 of 27. 8. 1979 could not governsuch applications (made for the first time) even after the introductionof regulation 11A which regulation 11A alone (so the respondentsseemed to say) for the first time, facilated or enabled the making ofan application made for the first time relating to a new business andtherefore governed such an application ie, a new application to thetotal exclusion of regulation 11 of 27. 8. 1979. But as explained below,the regulation 11A of 3. 6. 1981 left intact the provision in regulation11 dated 27. 8. 1979 that "every application" (which expression admitsof no qualification or limitation) and embraced applications irrespectiveof whether they related to business already in existence or a newone had to be made before the 30th of September of the precedingyear. Needless to say, the argument put forward on behalf of therespondents, viz that the regulation 11A (03. 06. 1981) governsapplications made for the first time, both as regards the date or timeof making the application and also the period within which a deter-mination has to be made in respect thereof necessarily involves orentails the construction or interpretation of the saidregulation 11 A. The regulation 11A (03. 06. 1981) being what it is,
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that is an amendment of the law or a regulation, it will be particularlyhelpful, in the construction of regulation 11 A, to ascertain the previousstate of the law in order to get a better or clear insight into the meaningof the said regulation 11A of 03. 06. 1981 through an appreciationof the mischief in the previous state of the law which the amendmentof the earlier regulation (by means of 11A of 3. 6. 1981) was intendedto remedy. And the regulation 11A of 3. 6. 81 (which represents anamendment of the previous state of the law) is then construed, moreor less in such a way, as to suppress the mischief and advance theremedy. "The golden rule to follow in such a case is to find outwhat was the provision before the amendment; secondly, what wasthe defect in the previous law; thirdly, what remedy the legislaturehas adopted to cure the defect; and lastly, to find out the true reasonfor the remedy adopted". – Thiru Manikkam and Co. v. Tamil NaduState™.
The ascertainment of the previous state of the law involved theconsideration of the question whether regulation 11 of 27. 08. 1979governed the applications made by persons seeking to enter therelevant business, for the first time as well. I have made above areasoned finding that regulation 11 of 27. 08.. 1979 applied toapplications made for the first time as well. I have explained abovethat it is self-evident that the authority that framed regulation 11 of27. 8. 1979 could not have intended to preclude altogether applicationsfor licences being made by persons seeking to enter the relevantbusiness for the first time for such an interpretation would have ledto absurd results which would also be harsh. It is such an interpretationthat would have annihilated the fundamental rights for which thelearned President's Counsel for the 1st to 3rd respondents showedso much solicitude – for, then, no one (citizen) would be free or havethe right to engage in business as a produce broker except thosewho had already obtained licences and as to how they, ie those whoare already engaged in the business obtained licences would remainan impenetrable mystery which no human ingenuity would ever beable to explain – they, ie those who are already engaged in thebusiness, too, would have had to make an application for the firsttime. As argued by the learned President's Counsel for the petitionerwhose lucid submissions were characterised by discernment, regu-lation 11 dated 27. 08. 1979 basically covered two matters: (a) thedate before which an application, irrespective of whether it was madeby a person already engaged in the relevant business or one who
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was seeking to enter the relevant business for the first time to bemade; (£>) the date before which a determination had to be made bythe relevant authority in respect of such an application. In terms ofregulation 11 dated 27. 08.1979, as pointed out although the deadlinefor making an application for a licence (irrespective of whether suchapplication related to an established business or a new one) was 30thSeptember of the preceding year yet it, that is, the application couldbe made several months before that date ie 30th of September. Stillthe relevant authority was at liberty to delay making a determinationin respect of the application till 30th October for the law (regulation11 dated 27. 08. 1979) required him (the relevant authority) to makea determination in respect of the application only before the 30th ofOctober. The regulation 11A of 03. 06. 81 framed to deal with thatundesirable situation or state of affairs in which an applicant for alicence seeking to enter the relevant business for the first time hadto wait for several months for a determination in respect of the same.Perhaps, it would have been better and more sensible also to havepermitted a person seeking to enter the relevant business for the firsttime to make the application at any time. But the law has stoppedshort of doing that although, paradoxical as it may seem, it is notpermitted to be wiser than the law even in circumstances when thelaw is an ass for as Aristotle had said: "To seek to be wiser thanthe law is the very thing which by all good laws forbidden".
That regulation 11A dated 3. 6. 1981 had amended the regulation11 dated 27. 08. 1979 in relation to applications for licence madefor the first time only, but only in so far as the period or the timelimit within which a determination had to be made in respect thereofand left intact or untouched the provision in regulation 11 that – "everyapplication" (which must be interpreted to include applications of everykind whether they related to new or established business) had to madebefore the 30th of September of the preceding year which is self-evident from regulation 11A itself which reads thus: "Every applicationfor a licence made by an individual firm or company entering thebusiness of a produce broker for the first time shall be determinedby the appropriate authority within thirty days from the date on whichsuch application was made". Had not the terms of the regulation 11of 27. 08. 1979 applied to applications made for first time, that is,if new applications (made for the first time) could not have been madethereunder ie under regulation 11 of 27. 08. 1979 then of course,it would have had to be held that regulation 11A enabled a new
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application (made for the first time by a person seeking to enter therelevant business for the first time) to be made at any time. Althoughthe regulation 11A of 03. 06. 1981 itself, taken by itself or in isolation,did not in express terms or specifically authorize the making of a (new)application at any time of the year, yet the regulation 11A dated03. 06. 1981 (if taken in isolation) did not expressly impose a pro-hibition against new applications (made for the first time) being madeat any time of the year. "The courts are not to act upon the principlethat every procedure is to be taken as prohibited unless it is expresslyprovided for by the code, but on the converse'principle that everyprocedure is to be understood as permissible till it is shown to beprohibited by the law. As a matter of general principle prohibitionscannot be presumed". Vide Narasingh Das v. Mangal Dubey (1883)5 Allahabad.
But the principle, exemplified or enunciated in the Indian judgmentquoted above would not apply in the context of this applicationbecause, as explained above, that part of the specific provision inregulation 11 dated 27. 08. 1979 to the effect that: "every applicationfor a licence for a particular year shall be submitted to relevantauthority before the 30th day of September of the year immediatelypreceding" – remains unaltered or unaffected by the introduction ofregulation 11A of 03. 06. 1981 – thereby prohibiting or precluding themaking of a new application at any time of the year. The expressionie "every application" occuring or employed in regulation 11 of27. 08. 1979 includes both types of applications, viz applications madeby those already engaged in the relevant business and those appli-cations made by persons seeking to enter the relevant business forthe first time – because the word "every" like the word "any" is aterm which admits of no limitation or qualification and connotes widegenerality.
Thus, the law existing before the amendment introduced by regu-lation 11A of 03. 06. 1981 must be considered to continue to be goodlaw still in force except in so far as the amendment (regulation 11A) makes it clear on the face of it a change in the law as it stoodbefore the amendment.
That being so the principle that what is not prohibited must bedeemed to be permitted cannot apply in relation to the facts of this
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case because that part of the regulation 11 of 27. 08. 1979 whichprescribes the date of making the application ie, on or before the 30thof September of the preceding year still remains in force and appliesas explained above, to new applications as well and that requirementmust be taken as a prohibition against even a new application beingmade at any time of the year.
Further, the learned President's Counsel for the 1 st – 3rd respond-ents mounted somewhat of a challenge to the vires and constitution-ality of the relevant regulations ie 11 and 11A aforesaid as well.
The learned President's Counsel appearing for the 1st-3rdRespondents – the learned Additional Solicitor- General in particular- argued (to reproduce his argument in his own words): "It is furthersubmitted that the regulation in question would be ultra vires theConstitution if they are interpreted as suggested by the petitioner" -vide 7.07 of the written submissions.
The learned Additional Solicitor-General however, conceded thatthe regulations in question, that is, 11 and 11A are not intrinsicallyunconstitutional. It is, he argued, the interpretation contended for bythe petitioner's counsel, if accepted by the court, that will make theregulations ultra vires. I wonder whether an interpretation can evermake a regulation ultra vires, if, in fact, the regulation itself is inherentlysound. However, be that as it may, the argument of the learnedAdditional Solicitor-General that the court must, of necessity, placean interpretation on the regulations in order to prevent the regulationsor the statute from being invalid if that was what the learned AdditionalSolicitor-General intended to say – is wholly unacceptable. The truerule had been stated by Stone, J. in Hardware v. GUdden and Co.as follows: "A statute dealing with a subject within the scope of thelegislative power is presumably constitutional. It is settled law that ifany interpretation is possible which will save an act from the attackof unconstitutionality, that interpretation should always be acceptedin preference to an alternative interpretation, that might also be possible,under which the statute could be void. But it is not for the court toput an unnatural and forced meaning on the words that have beenused by the legislature in the search for interpretation to save statutoryprovisions or to read a policy which is not there merely because apolicy could have been given".
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However, this canon of interpretation that the court ought to upholdthe construction which preserves the validity of the regulation or thestatute, will apply and will have any relevance, if at all, only wheretwo constructions or interpretations are equally possible, and not asin the case in hand, where only one solitary construction and nothingelse is possible. This position, viz that preference should be givento the intra vires meaning only when there is ambiguity is placedbeyond controversy, paradoxically enough, by an excerpt from Bennionon Statutory Interpretation submitted to us in chambers while thewriting of this judgment was in progress. To quote: "where an itemof delegated legislation is ambiguous, one possible meaning beingultra vires and the other intra vires, preference should be given tothe latter". As has been explained above, the effect of regulation 11and 11 A is plainly to require the new applicants as well to makethe application for licence on or before the 30th of September of thepreceding year – irrespective of whether the application related to anon – going business or a new one. In this case, no other interpretationis conceivably possible.
It had also been contended, at one stage, on behalf of respondents,that regulation 11A of 03. 06. 1981 must be held to be ultra viresif the said regulation cannot be interpreted so as to permit the 3rdrespondent to make an application for a licence at any time of theyear. As pointed out earlier on in this order, if regulation 11 of 27.
1979 had no applicability to a person seeking to enter the tradeor business of a produce broker for the first time – it would havebeen open to a new applicant to make the application at any timeof the year. This position does not seem to have been distinctlyunderstood ie that, if at all, it is not regulation 11A of 03. 06. 1981but regulation 11 of 27. 08. 1979 that prevents or denies to the 3rdrespondent the right to make an application for a licence and so startor enter the business of produce broker as and when he wanted,So that the argument put forward in relation to regulation 11 A, vizthat it is ultra vires has to be examined or considered in relation toregulation 11 of 27. 08. 1979 – because it is the latter regulation,ie regulation 11 of 27. 08. 1979 by prescribing that the applicationfor licence shall be made on or before the 30th September of thepreceding year, that has restricted, if at all, the right to make anapplication for a licence at any time of the year and so taken awaythe right to enter the business as and when one wanted.
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The argument of the respondents was that the regulation 11A.which reference to 11A must now be treated, for the aforesaid reasonas a reference to regulation 11 preventing, as it did, the making ofan application for a licence at any time of the year thereby denyingto a person the right to start business as a produce broker immediately,ie as and when he wanted – involved or entailed – in the submissionof the learned President's Counsel for the 1st-3rd respondents – arestriction of a fundamental right to do business or engage in a tradeand therefore was ultra vires the Constitution.
It was further contended that even reasonable restrictions or limi-tations on a fundamental right could be introduced only by law, incontradistinction to a regulation – such as regulation 11. To vindicatethat submission reference was made to an excerpt from a 5-benchjudgment of the Supreme Court of Sri Lanka (in application SC No.3 of 1978) which is as follows: "The exercise of a fundamental rightgiven by Article 14 (1) (g) can be made subject to such restrictionsor may be prescribed by law in terms of Article 15 (5) of the Constitution. . . law here means any Act of Parliament . . . clearly regulationshave been excluded".
But the learned President's Counsel for the petitioner submittedrelying or an excerpt of the self-same judgment that reasonablerestrictions on fundamental rights could be placed in conformity withguidelines spelt out in the Act or the statute. To quote the relevantexcerpt: "Therefore the Constitution does not contemplate the con-ferment of power on the executive to make restrictions by regulationexcept in terms of the guidlines laid down in the Act itself. In thecircumstances whatever restrictions that are to be placed upon theexercise of fundamental rights in terms of Article 15 (5) must beprescribed by the Act. We find no such restriction for the issue oflicence prescribed by this Act".
The excerpts quoted above, which are somewhat obscure for thereseems to be, with respect, some inconsistency therein, for it seemsto say, so far as I can understand, that restrictions can be placedon fundamental rights also by means of regulations formulated inconformity with guidelines while in the same breath it states thatrestrictions that are to be placed upon the exercise of fundamentalrights in terms of Article 15 (5) must be prescribed by law as opposedto regulations. I think what it means is this, viz the restrictions on
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fundamental rights to be vaild must be prescribed by the statute orthe Act itself; if not so prescribed, reasonable restrictions on thefundamental, rights introduced by means of regulations can be saidto be valid only if such regulations have been framed in terms ofguidelines prescribed or spelt out in the Act itself.
If the above excerpts from the 5-bench judgment are not explicitenough in regard to the question whether or not reasonable restrictionscan be placed on fundamental rights by means of regulations – alldoubt in regard to this aspect had been dissipated in the case ofChuni Singh v. Union of India/9' where Dua, CJ. stated thus: "In allsuch cases the test is, has the legislature laid down intelligible stand-ards for the guidance of administrative agencies. Every statute hasto be adapted to complex conditions involving a host of details withwhich the legislature cannot deal directly. Filling in of such detailsmust be left to the administrative agencies . . . having regard to varyingdemands of the situation from time to time. The Constitution has neverbeen regarded as denying to the legislature the necessary resourcesof flexibility and practicability, though in so doing, the legislature isexpected to indicate something to be thus supplemented. In otherwords, the legislature must first adopt a policy or set an intelligiblestandard to which administrative action must conform. The legislaturethough best conversant with the needs of its subjects cannot dealwith all details required to be filled in and for this reason the matterof such details has of necessity to be left to the administrative agenciesin the interest of achievement of goals shared by different limbs ofa democratic government. The fact that the power has to be exercisedfor the purposes mentioned above provide the necessary safeguardsand guidelines for the administrative agencies to observe".
One can trace somewhat of an analogy between a case whereregulations have been framed in terms of guidelines prescribed in theAct itself and a case where provision is made in the Act, as issometimes done, to the effect that regulations made thereunder wereto have the same effect "as if enacted in this Act". In Institute ofPatents Agents v. Lockwood'0' Lord Herschell was of the opinion thatthe effect of these words was to make subordinate legislation asexempt from judicial review as the statute itself. Of course, such asituation cannot arise, in that way, in Sri Lanka in view of the guaranteeof fundamental rights in the Constitution and the Act itself, would bethe subject of judicial review in the appropriate court, at least, for the
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specified period. Sovereignty of Parliament is a peculiar feature ofthe British constitution and one consequence of Parliamentary sov-ereignty is that in the United Kingdom there are no constitutionalguarantees of the sort we have in this country. But what is of interestto us is this: as the regulations promulgated under an Act are treatedas having the force of the statute, where there is provision in theAct itself to that effect – whether one cannot take the innovativestep of according the same force to regulations framed in terms ofguidelines set out in the statute. In fact, that step can be said to havebeen taken in the 5-bench judgment (Sri Lankan) and even moreclearly in the indian judgment (Dua, CJ.) cited above.
Perhaps, there is even greater reason to recognize the practiceof formulating regulations in terms of guidelines laid down in the Actor statute than the usage of treating regulations promulgated underan Act wherein there is a provision that regulations made thereundershall have the same force or effect as if they were contained in theAct itself – because it is easier to detect any rule or regulationpromulgated in excess of authority when the limits of authority toformulate regulations are delineated in the guidelines in so many wordsthat it would be in the case where regulations acquire the force ofthe statute in virtue of the provision in the statute to that effect.
The learned President's Counsel for the petitioner pointed out thatregulation 11 of 27. 08. 1979 in particular, that being the decisiveregulation, had been formulated conformably to the guidelines speltout in section 2 (6) of the Licensing of Produce Brokers Act, No. 9of 1979 the relevant of which guidelines are as follows:
Subject to the provisions of this Act the circumstances inwhich licences may be granted or refused;
the person to whom and the period for which licences maybe granted;
the mode and manner in which applications for licences maybe made and disposed of.
The regulations 11 and 11A could both have been validly madein terms of any one of the guidelines adumbrated above and moreparticularly in terms of guideline (c) above because the said
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guideline (c) clearly empowers the making of rules with respect tothe "mode and manner in which applications for licences" are to bemade and disposed of which means that the guideline (c) aboveauthorizes the Minister to prescribe or specify the method of procedurefor making and disposing of applications for licences. As the saidguideline (c) reproduced above empowers the prescribing of a methodof procedure it must necessarily be taken to empower the Ministerto make regulations appointing a date, which he had done throughregulation 11 of 27. 08. 1979 by appointing 30th of September ofthe preceding year, before which the applications ought to be made,that, ie the making of an application, being an element or componentpart of the method of procedure relating to application for licence anddisposal thereof – which procedure the Minister is empowered toprescribe by the guidelines set out above. As the authority isempowered by the guidelines to prescribe the mode ie, the methodof procedure for licensing – the authority so empowered to make theguidelines must necessarily be taken to have been also empoweredto appoint a date, in the interests of sound administration, before whichthe applications have to be made or submitted.
It is worth pointing out that these regulations in question havingbeen laid before the Parliament and approved thereby have a demo-cratic and constitutional basis. There is the legal authority of thelegislature behind such regulations. While the right to pursue any lawfultrade or profession is recognised in any democratic country – yet theright of state to regulate such business where its unregulated operationmay injuriously affect the welfare of others is equally well settled.Regulation of freedom to trade or do business is an accepted modeand principle in any modern welfare state and Sri Lanka is noexception. Regulation is essential for social good. The preamble tothe Act ie, Licensing of Produce Brokers Act throws light on andexplains the objects sought to be achieved thereby. To quote fromthe preamble of the said Act: "An Act to provide for the regulationand control of the carrying on of the business of Produce Broker bythe introduction of and operation of a system of licensing and mattersconnected therewith or incidental thereto".
The preamble places it beyond controversy that the object of theAct, viz Licensing of Produce Brokers Act, No. 9 of 1979 is theregulation of business of a produce broker by the introduction of asystem of licensing. The preamble, it is said, unlocks the mind of the
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legislature. Through the power of regulation of trade or business thestate orders economy for social good. In fact, the state, if it choosesto do so, has an unqualifed power under Article 15 (5) (b) of theConstitution of Sri Lanka to completely forbid its citizens from engagingin certain kinds of trade or business. And it must not be forgottenthat even total deprivation of property or extinction or annihilation ofthe right to trade or do business would still be perfectly constitutionalif it is sanctioned and is in accordance with the Articles or theprovisions of the Constitution of Sri Lanka. As explained earlier, thesolitary issue for determination in this application was the interpretationof the above mentioned regulations 11 and 11 A. That issue wasmuddled immeasurably by the learned counsel for the 1 st-3rd respond-ents needlessly raising arguments (although lacking in zeal) in regardto the vires and constitutionality of the relevant regulations. They neednot have done that. Aricle 15 (5) of the Constitution of Sri Lankapermits restrictions to be imposed on the fundamental right to tradeor do business. There cannot be any such thing as absolute oruncontrolled liberty – the kind of idyllic liberty contended for or ratherenvisioned, by the learned President's Counsel for the 1st-3rdrespondents – for that will lead to anarchy and disorder. Thepossession and enjoyment of all rights as was observed by theSupreme Court of the United States in Jacobson v. Massachusettesare "subject to such reasonable conditions as may be deemed bythe governing authority of the country essential to safety, health,peace, general order and morals of community".
I think I have said enough to show that the regulations in questionare – if in fact they are restrictions – reasonable restrictions whichare authorized by and in harmony with the guidelines spelt out in theAct itself. To sum up, what has happened in this case is not the denialof a fundamental right to trade or do business as provided for byArticle 14 (1) (g) of the Constitution but the issuing of a licence tothe 3rd respondent by the 1st respondent in violation of constitutionallyvalid restrictions, imposed upon the exercise of the rights guaranteedunder the said Article.
Next, the question whether the petitioner has standing or locusstandi to invoke the jurisdiction of this court by way of certiorari fallsto be considered. When a question regarding status is raised in anygiven case, as has been done in this case, the traditional approachis to deal with it is as a threshold question. But the view that the
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requirement of locus standi cannot be divorced from consideration ofthe merits of the application has gained considerable acceptance oflate and it is not wholly inappropriate, therefore, to have consideredthe merits before the question of standing is considered for severaljudgments contain statements to the effect that if serious or graveillegality existed standing (locus stand) would be accorded. In otherwords, the question of locus standi cannot be properly considered inisolation of the relevant factual and statutory context. The Englishjudgments contain a number of references to the need to view standing(locus standi) expansively, yet they (the older judgments), are balancedby caution lest the gates be thrown open too wide.
As Lord Denning had said: "in administrative law the question oflocus standi is the most vexed question of air. – Perhaps, he wouldhave said so because the attitude of the courts on the question oflocus standi does not appear to be all that uniform – at least, in thepast. The relevant law obviously had been in a flux and still seemsto be somewhat so.
The law relating to locus standi, as at present, seems to besomewhat in a transitional stage although the trend undoubtedly seemsto be towards liberalisation of the rules (as to standing). In England,the rules of the court (which have now been incorporated into theSupreme Court Act of 1981) provided: The court shall not grant leaveunless it considers that the applicant has sufficient interest in thematter to which application relates.
Since the adoption of the above rule there is discernible a vigorousjudicial predilection which favours enlargement of the purview of theconcept of locus standi. Lord Denning, MR has expressed the view,extrajudicially, that the above rule (which has now been incorporatedinto the Supreme Court Act of 1981) "lays down one simple test andconfers standing on an ordinary citizen who comes asking that lawshould be declared and enforced". How far and to what extent thesechanges and innovations in the principles governing the grant of writsin English law will have a bearing in Sri Lanka remains to be seen;but there is no denying that Sri Lankan rules relating to standing,striking root in English principles and traditions, would not remainimpervious to such changes in the direction of liberalization that havetaken place in England.
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The test or the criterion for deciding whether an applicant for judicialreview has locus standi has been defined in English and local decisionsby using varying phraseology although all the criteria or the tests seemto point one thing, that is, that redress through medium of certiorarican be made available only to a person who has a genuine grievanceas opposed to a busy body who would make a futile and frivolousapplication – although strictness in the rules as to standing hasbeen, as pointed out above, considerably relaxed – in England since1981 – in what may be called the "new law" of standing (locus standi)- although seemingly, there are no signs of relaxation, as such, inthe local decisions nor any significant departure from the rule or theconcept that a person (applicant for certiorari) does not answer tothe character of a "person aggrieved" if he has only some grievanceor even an injury in common with the rest of the public". Howeverthe local (Sri Lankan) case of Wijesinghe v. Tea Export Controller1"'makes it clear that the concept of "party aggrieved" does not connotethat personal interest is sine quan non of locus standi. It is worthexplaining the facts of that case in some detail. In the said case theSupreme Court considered an application by the Tea Controller forissue of a writ of certiorari to have the legality of an order made bythe Board of Review appointed under the Tea Control Ordinanceinquired into and quashed. By his order the Tea Controller declaredthat the extent of an estate should be reduced from 32 acres to 24acres. The 4th respondent who was the owner of the estate appealedagainst the order to the Board of Review which set aside the saidorder of the Tea Controller. It was argued on behalf of the 4threspondent, who was the owner of the estate, that the Tea Controllerhad no status to make an application for certiorari on the basis thathe (the Tea Controller) was no more aggrieved or prejudiced thana judge of an inferior court would be whose decision is reversed onappeal. Nevertheless Fernando, AJ. (with whom Abrahms, CJ. agreed)held that the Tea Export Controller was a person sufficiently interestedto be entitled to apply for the writ of certiorari. This Sri Lankan caseis significant in that it breaks new ground by recognising the principlethat a personal interest, as such, is not a sine qua non of locus standito make an application for certiorari.
The petitioner in this application before us, as would be clear fromthe sequel, has a larger interest than, for instance, the interest thatthe Tea Export Controller had on the facts of that case reported in39 NLR for the application of the petitioner in this case, based as
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it is on a licence granted “personally" to the petitioner, gives thepetitioner's application to this court a distinctive personal character.It is to be observed that, in the general run of cases, a legal rightresiding in the applicant or a personal interest of his (the applicant's)have been recognised as alternative requirements of standing – forit is the personal interest that enables the applicant in any applicationfor judicial review to prove a grievance distinguishable from thatsuffered by the community at large. The official, ie the Tea Controllerin the case referred to above, cannot be said to have suffered anypersonal or individual harm when his order was overturned by theBoard of Review and perhaps the Tea Controller's interest, if any,was not superior to that which any ordinary member of the publichad in seeing that justice is properly administered or that the law isduly complied with.
Furthermore, the petitioner in the case in hand, unlike the TeaController, is not seeking judicial review purely from motives of publicinterest for the petitioner, in this case has a private licence duly issuedto him by authorities, ie, by the first respondent entitling the petitionerto carry on business as a produce broker for tea.
Even if the test that is adopted in order to decide whether thepetitioner in this case is to be accorded locus standi is the narrowtest, viz that the petitioner ought to have a “peculiar grievance beyondthat which affects the public at large" which concept now seems tobe obsolescent if, in fact, it is not obsolete – yet the petitioner oughtto be held to have satisfied that criterion for the petitioner being alicence holder to whom a licence had been validly and legally issuedhas a personal or private interest over and above that of the communityat large – in the form of a legitimate expectation that a firm or company,such as the 3rd respondent, to whom a licence had been wrongfullyand illegally issued, – and thus must be treated as having no licence,is not placed on the same footing and accorded the same right ie,the right to engage in the business of produce broker for tea to whichright the petitioner is also entitled, but on a licence validly issued tothe petitioner. So that by virtue of the fact that the petitioner is a.vaild licence holder – as opposed to one who holds an invalid licencein that it had been issued in violation of the relevant provisions ofthe law – the petitioner can aptly be said to be a person aggrievedbeyond any other member of the public because it is not every ordinarymember of the public who holds a licence as the petitioner does
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(1998) 2 Sri LR.
although every citizen, particularly one who is public spirited, can besaid to be concerned that the law is obeyed in the interests of all.
The traditional view is that an applicant for certiorari must showsome interest before being accorded standing. The fact that theapplicant ought to show some interest, in practice, means that thebasis of entitlement to judicial redress is some kind of personal injuryarising from violation, actual or threatened, of a legally protectedinterest of the person seeking redress by way of certiorari. The older,rather the conservative, view is that applicant must show that he haslegal capacity to challenge the act or decision by means of prerogativewrits in that he is an "aggrieved person" in the sense that there issome harm personalized to the applicant. In other words, the applicantis required to establish or prove some individual harm over and abovethat of the general community or the public at large – although thewaning of the rigid reliance on the concept that an applicant musthave an interest of his own at stake, seems to be a universal trend.A necessary corollary of the rule that the applicant ought not to beaccorded standing because his (applicant's) requirement or grievanceis one which is complained of "in common with the rest of the public"is to deny to the applicant access to court for no other or better reasonthan that governmental irregularity or illegality does affect a largenumber of people. This seems irrational for as Craig (tutor in law -Worcester College – Oxford) had said: "To deny access in such acase seems indefensible. If the subject matter of the case is otherwiseappropriate for judicial resolution … to erect a barrier of "no standing"would be to render many important areas of governmental activityimmune from censure for no better reason than that they do affecta large number of people. One might be forgiven for thinking thatthe common sense of the reasonable man would indicate the oppositeconclusion; that the wide range of people affected is a positive reasonfor allowing a challenge by someone". It is to be observed that thistest or criterion that the applicant for the prerogative Writ of Certiorarimust show some interest over and above the rest of the community- or else the writ should be refused was adopted by Darling, J. inft. v. Richmond Confirming Authority'2', the case cited by Mr. Choksy,President's Counsel, in the following terms: "In such a case the courtwill consider whether the interest of the applicant … or his grievanceis so like that of the rest of her majesty's subjects as to leave nosufficient ground for the issue of the writ".
CA
Forbes & Walker Tea Brokers v. Maligaspe and Others
(Gunawardana, J.)
407
The tendency in the past seems to have been to limit locus standito persons who had a particular interest or grievance of his own overand above the rest of the community. But in more recent years there .is in England a veering away from that view and the concept of locusstandi seems to have been progressively widened to extend standing,if I may use the words of Lord Denning, to almost "anyone comingto court to get the law declared and enforced". To deprive or to deny,as had been done in the past, locus standi to any applicant for judicialreview merely because he (the applicant) happens to share the injurycomplained of with others is utterly illogical as explained by LordWilberforce in the Gouriet case'13'. “A right is none the less a rightor a wrong any the less a wrong because millions of people havea similar right or may suffer a similar wrong. It is illogical to treatthe adequacy of interest of an applicant for judicial review to be ashaving being vitiated or wiped out by its being shared with a largeor indefinite group of persons; on the contrary, each member of thedefinite group ought to be treated as a person “interested" or havinga stake in the matter and accorded standing”.
In Sri Lanka the very fact of the enactment of the statute, ie theProduce Brokers Act shows that it has been found desirable to subjectthe activities of a produce broker to some form of governmental control.Licensing is undertaken in order to enforce or maintain standards -although, perhaps, the main reason may be the collection of revenue.Licensing, in principle, is also a way of restricting the number ofpersons engaging in any activity so as to ensure a reasonably securecontinuing livelihood for those already so engaged. So that viewedagainst the background of rationale for licensing there is no denyingthat the petitioner, who holds a valid licence to engage in the businessas a produce broker for tea has to, say the least, a personal or privatestake in the matter to which the application relates – over and abovethat of any other member of the public – the substance of thepetitioner's complaint to this court being that that the 3rd respondentought not to be permitted on an invalid licence to continue to engagein business as a produce broker for tea. And the 3rd respondentcan be prevented from operating on an invalid licence – in that ithad been granted in violation of express provisions of the law -contrary to the provisions of regulation 11 of 27. 08. 1979 – only byquashing the licence as prayed for by the petitioner.
408
Sri Lanka Law Reports
(1998) 2 Sri L.R.
Thus it would be seen that even if the more rigorous or stringenttest – of insisting that an applicant for the prerogative Writ of Certiorariought to have a private right or a particular grievance, if not a greaterinterest than any other member of the public – is adopted in thedecision of this case – still the petitioner in this case ought to beaccorded standing because the petitioner (firm) has a particular rightof its own, by virtue of the fact that it (the petitioner) is a licenceholder, over and above that enjoyed by any ordinary member of thepublic, because, as stated above, each and every member of com-munity does not hold a licence to engage in business as a producebroker. In other words, the petitioner has on his licence, duly issuedto the petitioner in accordance with the law, a right which it (thepetitioner) is entitled to have protected by the law. And the 3rdrespondent's carrying on the same business as the petitioner withouta valid licence on an illegal one (licence) must be treated as anunlawful interference with the lawful business of a produce brokercarried on by the petitioner to whom the licence has been validlygranted. Produce broking like any other trade or business for the doingof which a valid licence is required by law, ought to be treated asthe preserve of those who hold such a licence and one who seeksto engage in that business on an invalid licence must be treated asone who makes an unwarrantable or unlawful intrusion upon thepreserve of those who hold a valid licence. The holder of a lawfulright has a right to complain against a tresspasser.
Had not the petitioner satisfied court that the petitioner had apeculiar grievance or an interest over and above the interest whichany member of the public has in seeing that the law is not floutedwith impunity – still I would not have been backward in accordingor granting locus standi to the petitioner in this factual matrix for ifthe petitioner is affected by decision of the 1st respondent as, in fact,he is – it does not matter that it is a right or a private right whichthe petitioner shares in common, even assuming that it is so, withothers. To repeat the words of Lord Wilberforce "A right is none theless a right or wrong any the less a wrong, because millions of peoplehave a similar right or may suffer a similar wrong". I strongly feelthat the test or rather the concept of denying locus standi to anapplicant for judicial review for no other reason than that his interestor grievance is shared by many others in common with the applicantis as illogical and irrational as refusing to treat any one member ofthe public for a disease which has assumed epidemic proportions andhas afflicted virtually the entire community.
CA
Forbes & Walker Tea Brokers v. Maligaspe and Others
(Gunawardana. J.)
409
In the factual matrix of this case, I cannot conceive of any moreworthy applicant for judicial review than the petitioner in this matterto be accorded standing to challenge the order of the 1st respondentdated 26.02.1998 which order is clearly illegal because I cannotpossibly visualize anyone more directly or more genuinely affected bythe said order even assuming for the sake of argument that thepetitioner in this case who has applied for the Writ of Certiorari inrelation to the order in question – is one who has suffered some injuryin common with the rest of the public – which, in fact, is not so. Istrongly feel that the petitioner ought to be accorded the locus standibecause the recent trend of authorities seem to favour relaxation ofrules as to standing when the allegation of illegality is vindicated as,it had been, in this application. In R. v. Greater London Council ex.P. Blackburn(14) the Court of Appeal of Engalnd held that prohibitionmight issue at the instance of a private person applying from motivesof public interest to prevent the Greater London Council from licensingan indecent film. As Lord Denning, MR said: "If he has not sufficientinterest no other citizen has and unless any citizen has standing thereis often no means of keeping public authorities within the law”. Dearthand scarceness of Blackburns on the local scene seems to have keptthe law in this sphere somewhat stationary and static in Sri Lanka.
If there is no such means the result will be to encourage gov-ernment departments to break the law and so to "protect illegalitiescommitted by public servants". But there is no gainsaying that thevalid licence which the petitioner holds confers on the petitioner aninterest superior to that of the general public.
I take it that Rule of Law means that no one is above the lawand a necessary corollary of that proposition is that no one can floutthe law with impunity. Prerogative writs, certiorari in particular, are themeans whereby illegalities such as issuing licenses contrary to andin disregard of the provisions of the law, can be brought to light inorder to get the unlawful conduct stopped and so vindicate the ruleof law. The certainty that irregularities or illegalities will be exposedand removed I think, is the most effective way of making publicauthorities or servants conscious of their duty to act in obedience tothe law and so uphold the Rule If Law. Perusing the judgments andauthorities of more recent times on the matter of locus standi theimpression is irresistible that there is need for greater certainty in thisarea for, as at present, too much discretion seems to be allowed to
410
Sri Lanka Law Reports
(1998) 2 Sri LR.
the court so that the matter of standing seemingly depends on thewhim of the individual judge before whom the application for reviewcomes up for decision. Law ought, I presume, to move on the linessuggested by Lord Denning, MR in the direction of much widerconcept of locus standi which has now been accepted in Englandby the adoption of the New Rules of Court of 1978. Commenting onthe new rules of court Lord Denning said: As a result therefore, ofthe new procedure, it can I hope be said that we have in Englandan Actio Popularis by which an ordinary citizen can enforce the lawfor the benefit of all – as against public authorities in respect of theirstatutory duties – The Discipline of Law – page 133. The strict conceptthat the applicant for judicial review must have an interest superiorto that of the general public has been transformed in England andseems to be virtually jettisoned.
The question has been raised in the following form: If a governmentdepartment or a public authority transgresses the law can a memberof the public come to court and draw the matter to its attention. Hemay himself be affected by the breach. So many thousands of otherslike him. Is each and every one of them debarred from access tothe court?
I am spared the need to answer that question in this case becausethe petitioner, as has been repeatedly stressed in this order, beinga vaild licence holder, must be taken to have an interest superiorto that of the general public. But one can be sure of one thing, ifof no other, that is, that had the question enunciated above beenraised in England, as at present, since the marked liberalization ofrules as to standing after the process started somewhere in the lateseventies or early eighties, that question would almost for certain beanswered in the negative for the position is now settled that if it canbe shown that the applicant for judicial review is affected in somedemonstrable way, he ought, almost of necessity, to be accordedstanding. What has happened in this case is easy to explain: the 1strespondent has clearly acted in excess of the powers given to himby the Act and the regulations framed in conformity with the guidelinesspelt out in the Act. As such the court must have some power tointervene and award a remedy to the petitioner who is an aggrievedcitizen – aggrieved in the sense as had been explained above in thathe has a 'sufficient interest' to complain to the court.
CA
Forbes & Walker Tea Brokers v. Maligaspe and Others
(Gunawardana, J.)
411
In Dr. Mohideen v. Bangladesh it was held that the expression"any person aggrieved" approximates to what is called "sufficientinterest" which of course, depended on “the co-relation between thematter brought before the court and the person who is bringing it".However, in that case too it was further held that a person can besaid to have a "sufficient interest" only if he has some interest beyondthe interest of the general people of the country". This view seemscloser to the old traditional view which had been, as pointed out above,somewhat ridiculed by Craig although it is reminiscent of the theoryon which the decision in R. v. Richmond was rested. As had beenstated earlier Craig felt strongly that the "wide range of people affectedis a positive reason for allowing a challenge by someone".
Principles governing the prerogative writs being derived from Englishlaw, changes and innovations in England are bound to make theirpresence felt locally sooner or later. Yet the test or the concept of"sufficient interest" eludes precise definition which will introduce anundesirable element of uncertainty because of the imprecision, if I maysay so, inherent in the concept of “sufficient interest” itself which leavesthe court with considerable discretion in deciding whether or not tomake the remedy available for judicial review. But this degree ofuncertainty and imprecision is arguably compensated for by flexibilityand adaptability. As somebody had said, the rules governing judicialreview have no more substance at the core than a seedless grape,ie the rules are amoeba-like, shapeless and open to wide variationin interpretation. The obvious result is that it is very difficult to predictwith any degree of certainty just where the courts will not chooseto intervene. Time is especially favourable or opportune now for thewhole of the local cases relating to the concept of locus standi tobe reviewed for as had been observed by a celebrated judge: "If wenever do anything which had not been done before, we shall neverget anywhere. The law will stand while the rest of the world goeson; and that will be bad for both". The words such as "sufficientinterest" are easily written but whether they conduce to clearness andthe facility of administering justice may perhaps be open to argument.
Finally, it was also submitted on behalf of the 3rd respondent thatthe granting of certiorari would be productive of a great deal ofinconvenience and even loss – so far as the 3rd respondent wasconcerned, and that, in any event, the court in its discretion oughtto withhold the writ for that reason. I cannot be oblivious to the fact
412
Sri Lanka Law Reports
(1996) 2 Sri LR.
that the 3rd respondent had chosen to press ahead with his applicationfor the licence when the matter was, in fact, sub-judice and he musttake consequences of his own decision to take the risk. The 3rdrespondent seems to be one who has adopted – as a guide to action- the principle expounded by Thomas Fuller: "Boldness in businessis the first, second and third thing". It should be recognised thatcertiorari is available even if it results in far-reaching consequences.In R. v. Paddington Valuation Officer<16>, a grant of certiorari was soughtwhich would have invalidated valuation list prepared by the localauthority for an entire area. Although the remedy was not grantedin that case, Salmon, LJ was in no doubt that: "If the valuation officeracted illegally and thereby produced an unjust and invalid list, thiswould be an abuse of power and one which the courts would certainlyredress. It could be no answer that to do so would produce incon-venience for the rating authority – otherwise the law could be floutedand injustice perpetrated with impunity". It was also stated, at thehearing, by the learned President's Counsel for the 3rd respondentthat the 3rd respondent has already made an application before the30th of September, 1998 seeking a licence in respect of the year1999 – so that in consequence of this order – the 3rd respondentwill have to stay or discontinue its business only for a period of veryshort duration – a matter of few weeks.
For the aforesaid reasons I do hereby make order granting thewrit of certiorari as prayed for by the petitioner quashing the decisionmade by the 1st respondent on 26.02.1998 granting a licence to the3rd respondent.
HECTOR YAPA, J. – I agree.
Application allowed.