Gnanasambanthan v. Rear Admiral'
Perera and Others
v.REAR ADMIRAL PERERA ANDOTHERS
SUPREME COURTAMERASINGHE, J.,
S.C. APPEAL NO. 49/96COURT OF APPEALAPPLICATION NO. 1369/85OCTOBER 12, 1998.
Certiorari and Mandamus – Necessary parties – Failure to implead necessary party- Emergency (Rehabilitation of Affected Property, Business or Industries)Regulations – Rehabilitation of Property and Industries Authority (REPIA).
It is both the law and practice in Sri Lanka to cite necessary parties to applicationsfor Writs of Certiorari and Mandamus. In an application for a Writ of Certiorarito quash the divesting order and for a Writ of Mandamus directing the firstrespondent to make order divesting the property to the petitioner, REPIA theauthority that made the divesting order sought to be quashed by Certiorari wasa necessary party. Failure to implead REPIA was a fatal irregularity.
Cases referred to:
Shums v. People's Bank and others (1985) 1 Sri LR 197.
Faquir Chand Anant Ram v. Gopi Chand AIR (1962) Punjab 117.
Karunaratne v. Commissioner of Co-operative Development (1978)
79 Sri LR (2) 103.
Ramasamy v. Ceylon State Mortgage Bank (1976) 78 NLR 510.
Dissanayake v. Siyane Adikari Co-operative Stores Union (1958)
60 NLR 140.
Amritsar Improvement Trust v. Custodian EP AIR (1964) Punjab 110.APPEAL from judgment of the Court of Appeal.
S. Sivarasa P.C with A. R. Surendran and Arul Selvaratnam for appellant.Ikram Mohamed, P.C with Ian Fernando and A. M. Faiz for 3rd respondent.
Cur. adv. vult.
Sri Lanka Law Reports
 3 Sri LR.
October 29, 1998AMERASINGHE, J.
The petitioner had been carrying on business at No. 2, Main Street,Avissawella, from 1956 as a tenant of the second and third respond-ents.
In 1982, the second and third respondents transferred the rearportion of the premises to the petitioner's son. At the same time, thefront portion was transferred to the petitioner on condition that thesecond and third respondents were entitled to a retransfer of thepremises on payment by them of a stipulated sum of money withinfive years. However in 1983 the premises were damaged in the ethnicdisturbances of that time.
Any immovable property damaged or destroyed on or after July24, 1983, by riot or civil commotion was declared as "affected property"by section 19 of the Emergency (Rehabilitation of Affected Property,Business or Industries) Regulations made under section 5 of the PublicSecurity Ordinance (Cap. 40).
By its letter dated 27 August, 1983, (3R2) the Rehabilitation ofProperty and Industries Authority (REPIA), in the exercise of its powersunder the regulations referred to above, divested the property to thesecond and third respondents. The letter was signed by the firstrespondent who was the Chairman of REPIA.
The petitioner applied to the Court of Appeal for a Writ of Certiorarito quash the divesting order and for a Writ of Mandamus directingthe first respondent to make order divesting the property to thepetitioner.
The Court of Appeal upheld a preliminary objection raised by thefirst respondent that since REPIA was the authority concerned withthe making of divesting orders, the failure to make REPIA a partyshould lead to the dismissal of the petition. The Court of Appeal upheldthe objection.
Gnanasambanthan v. Rear Admiral
Perera and Others (Amerasinghe, J.)
The regulations state that "REPIA shall consist of five Directors. . . one of whom shall be named as Chairman of REPIA". Thereare certain things the Chairman was empowered to do. For instance,in terms of regulation 11 (3) he could give notice of the repudiationof liabilities. However, there are other things, including the divestingof affected property which he cannot do. Regulation 14 makes it clearthat it is REPIA that was empowered to make a divesting order. Ifthe order made on the 27th of August, 1983, was invalid, REPIA,and not the Chairman, should have been made a respondent. Whatis sought to be quashed is the order of REPIA and not that of itsChairman.
Learned counsellor the appellant submitted that in an applicationfor a Writ of Certiorari it is the decision of a functionary or tribunalthat is sought to be quashed. The functionary or tribunal is not orderedto do anything or refrain from doing anything. He cited Shums v.People's Bank and Others(1>. In that case the Minister of Finance, whowas not a juristic person, had been made a party by official designationand not by name. It was held that the Minister could be cited as arespondent nomine officii.
That case related to an application for a Writ of Certiorari. In thematter before us the petitioner seeks both a Writ of Ceriorari and aWrit of Mandamus. In any event the question before us is not whetherthe Chairman of REPIA could be cited nomine officii, which perhapswas possible in respect of the application for Certiorari but not inrespect of the application of Mandamus, but whether REPIA shouldhave been cited as a necessary party, since the decision was onewhich only REPIA was empowered to make.
Learned counsel for the petitioner submitted that a court shouldnot refuse to grant relief to a citizen merely on the ground of omissionto implead the authorities concerned if otherwise on the merits thejustice of the case demands or warrants interference. Reliance wasplaced on Faquir Chand Anant Ram v. Gopi Chand2K In that case,the court was considering the practice of the Indian courts in mattersrelating to Article 227 of the Indian Constitution. Moreover, the court
Sri Lanka Law Reports
119981 3 Sri LR.
was of the view that the petition failed on the merits. Attractive asit seems, superficially I am of the view that the obiter dictum of thelearned judge in that case is stated in terms that are too wide tobe accurate. In my view it is both the law and practice in Sri Lankato cite necessary parties to applications for Writs of Certiorari andMandamus. For the reasons already explained, REPIA was a nec-essary party and in my view the failure to implead REPIA was a fatalirregularity. Eg : see Karunaratne v. Commissioner of Co-operativeDevelopment3>; Ramasamy v. Ceylon State Mortgage Bank*4']Dissanayake v. Siyane Adikari Co-operative Stores Uniorf*.
Learned counsel for the petitioner submitted that the failure to makethe party who made an impugned order would not justify the rejectionof the petition without reference to the merits of the case. He referredto Amritsar Improvement Trust v. Custodiani*61 in support of hiscontention. In that case the Authority (the "Competent Officer") whoseorder was assailed was a party. It was the appellate authority whoconfirmed that order who was not cited and in these circumstancesit was held that the rejection of the petition without reference to themerits of the case would not be justified. In the matter before me,it is the authority whose order is being assailed who has not beenimpleaded. In any event, how does one go into the merits of a casewithout hearing the necessary parties.
For the reasons set out in my judgment, I affirm the decision ofthe Court of Appeal and dismiss the appeal with costs.
GUNAWARDANA, J. – I agree.
GUNASEKERA, J. – I agree.