GUNASEKERA, J. – Sirisena and Others V. Kobbekaduwa, Minister of Agriculture and

006-NLR-NLR-V-80-GUNASEKERA-J.–Sirisena-and-Others-V.-Kobbekaduwa-Minister-of-Agriculture-and.pdf


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GUNASEKERA, J.
On the application of Mr. H. W. Jayewardene, Counsel appearing for thepetitioners, in application Nos. APN/GEN/6 & 7/74; and Mr. M. Tiruchelvam,Counsel appearing for the petitioners in application No. APN/GEN/7/74, andthe Acting Solicitor-General consenting, the Acting Chief Justice, A.C.A.Alles, in terms of section 14(3) of the Administration of Justice Law No. 44of 1973, made order referring these eleven applications for decision by aBench of nine Judges.
In all these applications either a High Court or a District Court has issuedan ‘interim injunction’ restraining the Minister of Agriculture and Lands fromtaking steps for the acquisition of some land or premises for a public purpose,in terms of the Land Acquisition Ordinance, until, in the case of the HighCourts, a declaratory action was filed in the appropriate District Court afterdue notice in terms of section 461 of the Civil Procedure Code had been givento the Minister, and in the case of District Courts, until, a final determinationof the declaratory actions pending in those Courts.
In all these cases, this Court had on the order of Mr. Justice Pathirana,Mr. Justice Udalagama and Mr. Justice Wijesundera, acting in terms ofsection 354 of the Administration of Justice Law issued Notice on thepetitioners, in these cases, to show cause why the orders of injunction issuedagainst the Miniser should not be set aside and the question that now arisesfor determination by this Court of nine Judges, is whether, in law, suchinjunctions could have issued or can remain in force against the Minister,in these several cases, in view of the provisions of section 24 ofthe Interpretation Ordinance, introduced by Interpretation (Amendment) ActNo. 18 of 1972.
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Section 23 & 24 of that Act are in these terms:
“23. Subject to the provisions of section 24, where a Court of original civiljurisdiction is empowered by any enactment, whether passed or madebefore or after the commencement of this Ordinance, to declare a right orstatus, such enactment shall not be construed to empower such Court toentertain or to enter decree or make any order in any action for adeclaration of a right or status upon any ground whatsoever, arising outof or in respect of or in derogation of any order, decision, determination,direction or finding which any person, authority or tribunal is empoweredto make or issue under any written law.
Provided, however, that the provisions of this section shall not be deemedto affect the power of such court to make an order or decree relating to thepayment of damages.”
“24. (1) Nothing in any enactment, whether passed or made before or afterthe commencement of this Ordinance, shall be construed to confer on anyaction or other civil proceedings, the power to grant an injunction or makean order for specific performance against the Crown, a Minister, aParliamentary Secretary, the Judicial Service Commission, the PublicService Commission or any member or officer of such Commission, inrespect of any act done or intended or about to be done by any such personor authority in the exercise of any power or authority vested by law inany such person or authority.
Provided, however, that the preceding provisions of this subsection shallnot be deemed to affect the power of such court to make, in lieu thereof,an order declaratory of rights of parties.
(2) No Court shall in any civil proceeding grant any injunction or make anorder against an officer of the Crown if the granting of the injunction or themaking of the order would be to give relief against the Crown which couldnot have been obtained against the Crown.”
The proper approach to interpreting any statute has been stated thus:
‘The literal construction then, has, in general but prima facie preference.To arrive at the real meaning, it is always necessary to get an exact conceptionof the aim, scope, and object of the whole Act, to consider, according to LordCoke (Heydon’s case (supra)),
what was the law before the Act was passed;
what was the ‘mischief’ or defect for which the Law had not provided;(lii^what remedy the Parliament has appointed; and
(iv) the reason for the remedy.
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(Maxwell’s Interpretation of Statutes. 9th Edition: Page 22).
The “Old Law” and the “Mischief’ in this instance are best illustrated byreference to the facts of one of the above cases, No. APN/GEN/8. TheMinister’s affidavit, filed in this case reveals that for the purpose of villageexpansion, as far back as 21st March, 1971, notices were published to acquireBowalana estate in Hewaheta electorate, in extent 1253 acres, 1 rood, and 34perches, and that the necessary steps were being taken for this purposewithout any objection by the owners of the Estate, till on 22.9.74, oneMuthiah Pillai of Kumara Stores, Bowalana Group, filed this applicationNo. APN/GEN/8/74, in the High Court of Kandy for an ‘interim injunction’restraining the Minister from proceeding further with the acquisition until hefiled an action in the District Court for declaration that the acquisition was anullity on the ground of malafides on the part of the Minister of Agricultureand Lands. Muthiah Pillai states that he is the owner of an extent of one acretogether with the building thereon called ‘Kumara Stores’ situated in RoyalDivision, Bowalana Group, and that he had been residing there running abusiness for 27 years. He had himself applied for an allotment of land in theproposed scheme of village expansion but had not received one, and thereafteralleging that the Minister “is motivated by malice” as he is hostile to theTamil population of the area who supported the United National Party at thegeneral election in 1970, he avers that the whole scheme of village expansionis a fraud and nullity.
The Minister filed affidavit stating, inter alia:
this respondent denies the allegation that the said acquisition has beenmotivated by malice or illwill and states that the acquisition has beeneffected solely for a public purpose, namely, village expansion infurtherance of the land policy of the government.
in view of the provisions of section 24 of the Interpretation Ordinanceas amended by Act No. 18 of 1972 this Court has no jurisdiction togrant any injunction against the respondent restraining him fromproceeding with the said acquisition.
The High Court granted an injunction on 22.2.74 to be effective till 5.4.74and thereafter in District Court, Kandy case No. L/10570(APN/GEN/ll/74),on these same averments on 22.4.74 the District Court of Kandy, issued afurther “interim injunction” against the Minister to be effective “until the finaldetermination of the action.”
The entire scheme of village expansion in that locality has thus beeneffectively stalled, and whatever the urgency of the scheme or, howeverpressing the need of the people, and whatever the chances of proving
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mala fides of the Minister on these averments, further proceedings will bestayed until the end of a long drawn out District Court trial which has not yetbegun, and a decision on appeal by this Court. The learned acting Solicitor-General mentioned in the argument that there were over 35 cases of landacquisition for public purposes held up by pending actions filed on the groundof mala fides.
The ‘mischief’ is also not of recent times. During the regime of theprevious Government of the United National Party the government sought towiden a “one way” diversion road to ease traffic on the very narrow part ofthe trunk road from Colombo to Badulla going through Balangoda town and .on the allegation of political revenge and malice on the part of the thenMinister this Court issued an ‘interim injunction’ restraining the Ministerfrom acquiring a few perches of land necessary to effect the much neededwidening of the diversion. (See Ratwatte v. Minister of Lands (supra)).Whether the proposed declaratory action was filed or not or whether theproposed acquisition was abandoned we do not know, but this road remainsthe same even today and if the present Government of the United Frontdecided to abandon the diversion and widen the trunk road, the owners of theland on either side of the trunk road, who belong to the opposite politicalparty, will allege political revenge and malice in the same way and obtain(unless the amending law prevents it) a similar injunction and the congestionon the trunk road will remain for ever.
It was submitted at the argument by Mr. Jayewardene himself that theprevious Government had many of its land acquisitions stayed in this samemanner and that a Draft Bill was presented to Parliament to amend the LandAcquisition Ordinance so that disputes of this nature would have beenreferred to the Supreme Court for a quick and early decision within a periodof three months, but that owing to opposition in Parliament the proposedlegislation was abandoned and ultimately only amending Act No. 20 of 1969was passed to introduce the Land Acquisition Ordinance.
“Section 51 A(l): Where any decision, declaration or Order to which thissection applies, and any act or thing done under or in consequence ofsuch decision, declaration or Order is called in question in any courtwhether by way,.of action, appeal, application in revision or any mandatein the nature of a writ referred to in Section 42 of the Courts Ordinance,such court shall give the highest priority to the hearing and disposal ofsuch action, appeal application or mandate, and for that purpose shallordinarily hear and dispose of such action, appeal, application or mandatebefore all other business or cases pending or being heard or disposed ofby such Court.
(2) This section shall apply to any decision made under section 4, anydeclaration made under section 5, and any Order made under section 38.”
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This shows that the ‘mischief’ was common ground at the argument andthis makes it unnecessary for this Court to refer to the speech of the Ministerof Justice, in the Hansard, introducing the Bill of the amending Act, in theNational State Assembly, as the learned acting Solicitor-General invited us todo. He also submitted that not one of the many declaratory actions filed in thismanner throughout the years had succeeded in proving malafides on the partof the Minister. Counsel for the petitioner claimed that there had, in fact, beenone case where the District Judge held that there was mala fides but even inthat case the Acting Solicitor-General says the finding was not one of actualmalice but “statutory malice.”
It is in this context and, mainly, with the intention of remedying this“mischief’ of holding up acquisitions of lands for essential public purposes onthe mere allegation of malice on the part of the Minister, that the Legislatureenacted the above sections 23 & 24.
“A statute is the ‘will’ of the Legislature, and the fundamental rule ofinterpretation, to which all others are subordinate, is that a statute is to beexpounded according to the intent of them that made it. If the words of thestatute are in themselves precise and unambiguous no more is necessary thanto expound these words in their natural and ordinary sense, the wordsthemselves in such a case best declaring the intention of the Legislature.”(Maxwell, ibid, Page 1)
Our section 24, it was common ground, was modelled on section 21 of theCrown Proceedings Act of 1974 of England and it was also conceded that ifour section had been identical with section 21 of the England Statute (see itsreproduction in 59 N.L.R. at 332), the High Courts and the District Courtscould not have issued these “interim injunctions,” for in the law of Englandtoday, as deliberately enacted in that Act, no injunction can issue against aMinister, even if, as in these instant cases, it is alleged that the Minister actedmala fide and “infraus legis.” Considering the “mischief’ it is also apparentthat the intention of the National State Assembly was to equate our law to thatprevailing in England since 1947 and it is our function to decide whether theLegislature has achieved this in section 24, or whether owing to the differencein language in our section the “old law” and the “mischief’ remained just thesame as before the enactment of section 24.
The Acting Solicitor-General has explained that the difference in languagebecame necessary because in England a Minister is included in the definition“Officer of the Crown” and so it was sufficient to absolutely bar the issue ofinjunctions against the Crown in Section 21(1), and in Section 21(2) to bar theissue of injunctions against an officer of the Crown, only if the effect ofissuing an injunction against him would be to give the relief of injunctionagainst the Crown. As in our country a Minister (and at the time of thisenactment, members of the Public Service Commission and the Judicial
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Service Commission) were not “Officers of the Crown,” they had to bespecially mentioned in section 24(1). But in the order to bar the issue ofinterim injunction against them, not absolutely, but only in respect of their“official acts” the legislature added these words:
“in respect of any act done or intended or about to be done by any such
person or authority in the exercise of any power or authority vested by law
in any such person or authority” (hereafter referred to as “those words”).
He contended that the Minister of Agriculture and Lands had in all theinstant cases acted in the exercise of his power or authority given to him bythe Land Acquisition Ordinance and that therefore on a plain reading of thesection 24(1) no injunction could have issued against him.
Mr. Jayewardene, however, contended that the'introduction of these wordsin section 24(1) has the result of leaving the law as it was prior to itsenactment. Firstly, he argued that whenever the law referred in a statute to“any act done in the exercise of a power,” the Legislature necessarily intendsand refers only to“a bona fide" or “lawful” “exercise of power,” and that wemust read the words “bona fide or lawful” into these words and that the resultwould then be that this prohibition does not apply in the instant case,” becausemala fides are alleged, and the injunctions could have issued and can remainin these cases. He supports this argument by reference to section 88 of thePolice Ordinance which limits the time within which an action may bebrought against a police officer “for anything done or intended to be doneunder the provisions” of that Ordinance and the cases where it has been heldthat a police officer who is found to have acted maliciously and not in thebona fide exercise of his official duties was not entitled to rely on thislimitation of actions Perera v. Hansard (supra) page 1, Van Haught v.Keegal,m Ismalanne Lokka v. Haramanis (supra) and Punchi Banda v.Ibrahim (supra). He relies also on the cases, Appu Singho v. Don Aron (supra),Abaran v. Banda (supra) and Saranankara v. Kapurala (supra) which havedecided that the requirement of notice of action in sections 461, CivilProcedure Code “in respect of an act purported to be done by a public officerin his official capacity” applied only to bona fide acts and that if it was provedthat the official had acted mala fide he could not rely on this statutoryrequirement.
Mr. Jayewardene next argued on the basis that the main part of section21(1) contains a “preclusion provision” and he relied on several decisions ofthe Courts of England, Australia, Canada, South Africa, and India and our twocases of, Hirdaramani v. Ratnavale (supra) and Gunasekera v. Ratnavale(supra), all of which affirmed the fundamental rule of interpretation acceptedby these Courts, that where a statute contained, in respect of a decision of atribunal or other authority, an ouster clause, with words in the nature of “shall
(1917) 4 C.W.R. 258.
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not be called in question in any Court,” an allegation that the tribunal orauthority had acted mala fide would give the Courts jurisdiction to examinesuch decision despite such clause. He relied also on the dicta in these caseswhich said that mala fides reduces an act or decision of a person or authorityto a nullity.
I think these submissions are unacceptable because they are based, on anexamination of the main part only of section 24(1), separately, and torn out ofits context, and apart from and ignoring, the proviso. For a properadjudication of the question involved in these cases section 23 and section24(1) in its entirety, must be considered as a whole and proper meaning anddue emphasis must be given to the proviso (see Jayasekera v. CeylonInsurance Company Limited'*) and specially to the words ‘in lieu thereof’therein.
Such an examination of these sections shows quite clearly as far as aMinister of State is concerned,
Section 23 (except as allowed in section 24) has now abolished ortaken away from the courts its jurisdiction to entertain and from thecitizen the right he had (Ladamuttu Pillai v. Attorney-General (1957)59 N.L.R. at 333) to bring a declaratory action to question on anyground whatsoever any order, decision or direction made by aMinister acting under any written law.
Far from containing an ouster or preclusion clause, the proviso tosection 24(1) expressly and as an exception, restores that jurisdiction,and right, taken away by section 23, and permits the filing of such adeclaratory action, but,
only in cases where an interim injunction (or specific performance)would be the normal remedy, and so in actions such as the instantcases, and,
only “in lieu of’ such injunction; as section 24(1) bars the Courts
from issuing an injunction in respect of any “act” done by theMinister in the exercise of any power or authority vested by law inhim.i
From these statutory provisions it follows that, as far as the instant casesare concerned,
(1) as section 23 has abolished the declaratory actions against a Ministeracting under a written law, on any ground whatsoever, these instantcases brought against the Minister of Agriculture and Lands acting in
•»( 1966)69 N.L.R 505.
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terms of the Land Acquisition Ordinance, could only have been filedin terms of the proviso in section 24(1) and that therefore these casesare completely governed and limited by the provisions of section24(1).
(2) the words “in lieu thereof’ in the proviso necessarily mean that thedeclaratory action in the proviso and the barred injunction, in lieu ofwhich it is given, relate to one and the same.
“Act done or intended or about to be done by any such person orauthority in the exercise of any power or authority vested by law in anysuch person or authority.”
These words are not repeated in the proviso as that would be inelegantdrafting, but for a proper understanding of the -section, the words “in lieuthereof’ compels us to read the proviso,
“provided, however, that the preceding provisions of this subsectionshall not be deemed to affect the power of such court to make, ‘in lieuthereof’ an order declaratory of rights of parties in respect of such actdone or intended or about to be done by any such person orauthority in the exercise of any power or authority vested by law inany such person or authority.”
It follows logically from this that we cannot introduce the words “bonafide” into these words in the main part of the section because, owing to thewords ‘in lieu thereof’ automatically we have to add them to these samewords, present by implication, in the proviso, and we cannot do so specially inthese cases where mala fides is alleged without making nonsense of thesection. The rules of interpretation will not permit us to add anything to thesewords in this context, as they only make sense without the addition of anyunauthorised words. However in these cases, if any words are to be added atall to the main part, the allegation in the section under the proviso being thatthe acts are mala fide, only the word “mala fide” may be added whereMr. Jayewardene has suggested “bona fide. ”
I therefore hold that no injunction can ever issue in any declaratory actionbrought under the proviso because the section in plain and unambiguouswords gives the action and bars the injunction in respect of the same “cause ofaction,” if I may use those words analogously. I also hold that these wordsonly refer in the context to a state of fact, and not a state of mind and that inthis context the existence of this state of fact has to be found by a court by anobjective test looking only at the act complained of and the empowering law,and not looking into, if that is possible at all, the mind of the Minister. Thequestion whether an interim injunction should issue arises for decision at thebeginning of the declaratory action, and mala fides can only be established atthe end of such case.
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I need, further, only say that the fear expressed at the argument that if wedo not hold with the petitioners in this case, tomorrow the Minister of CulturalAffairs or the Inspector-General of Police can start land acquisitionproceedings and the courts shall be powerless to stop these proceedings isabsolutely groundless and based on a misreading, or rather non-reading, of theplain words of the section. Section 23 bars declaratory actions only in respectof a Minister’s decision authorised by written law and section 24 barsinjunctions in respect of a Minister’s acts done under a power or authorityvested by law in him and today no law authorises either the Cultural AffairsMinister or the Police Chief to acquire lands and the courts will be quite free,on account of the very words of these two sections, to entertain declaratoryactions and issue injunctions against these persons so acting.
Mr. Tiruchelvam argued, that section 24 only took away, if at all, thecourts’ power of granting injunctions, where such powers had been grantedby “enactment” and that inherent right of Courts to issue injunctions stillremains unaffected by section 24. However, our Courts were created by theCourts Ordinance and their power to grant injunctions was conferred only bythe Courts Ordinance and Civil Procedure Code, and they have no furtherinherent powers with regard to injunctions, and this was so stated as far backas 1895 in the case of Mohamadu v. Ibrahim (supra). He next argued that thewords “in lieu thereof’ meant that only ‘permanent injunctions’ were barredand Courts can still issue ‘interim injunctions.’ The Courts Ordinance and theCivil Procedure Code speak only of “injunctions” and section 24 bars“injunctions” and tin injunction whether it is limited in point of time or not,always remains an injunction. Besides, the purposes of an ‘interim injunction’is only to maintain the status quo until at the end of the action, a permanentinjunction can be issued, but if the permanent injunction itself cannot issue inlaw, there is no purpose in issuing an interim injunction until the end of thataction.
Mr. Jayewardene also submitted that there was no purpose in giving thecitizen a declaratory action if the courts could not make the litigationworthwhile to him by maintaining the status quo, pendente lite, and securingto him the fruits of his victory by a. permanent injunction. But in a similarsituation where the Court had no power to give effect to its declaration againstthe Crown, Gratien J., observed, “But courts of Justice have always assumed,so far without disillusionment, that the declaratory decree against the Crownwill be respected” (Attorney-General v. Sabaratnam (supra)). Besides, wehave by this amendment only brought our law in this respect in line with thelaw prevailing in England since 1947.
The fear, also expressed, that by the time a declaration is obtained the statewill have changed the nature of the property irretrievably can also be allayedby a similar assumption, that the State will respect pending actions in itsCourts and will seek the advice of its State Attorneys before proceeding insuch a challenged acquisition. If no injunction is available, proper use of the
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amended section 51(1) of the Land Acquisition Ordinance will be made in thefuture and the declaratory actions may well be decided before the varioussteps of acquisition are gone through.
The “old law” permitted declaratory actions to be freely filed against theMinister to question any acquisition inter alia, on the ground of his malaftdes, and though all such cases filed in the past have failed, the Courts werealways compelled to issue interim injunctions, on a mere averment of malaftdes in the affidavit filed with the plaint; and owing to the laws delaysthereafter, the acquisitions were just held up for many years. The amendmentstill preserves an unlimited right of action as in the past but, to remedy the“mischief,” has only stopped the almost automatic issue of an injunction andthis will certainly now discourage in the future the filing of any frivolousactions, aimed more at delaying proceedings. The genuine action will still befiled and the state will undoubtedly take heed of such, and where necessarystay further proceedings.
I will not deal with Mr. Jayewardene’s argument that we have nojurisdiction to hear and determine these cases because of the facts fully set outin the other judgments of this Court. These cases have been referred to us bythe Acting Chief Justice on Mr. Jayewardene’s own invitation and thatreference is impeccable, and we have the necessary jurisdiction.
I therefore hold that the injunctions issued by the various High Courts andthe various District Courts in these several cases before us, were issuedcontrary to law, and I make order that all these injunctions in these cases bevacated.
I have referred in my judgment only to the arguments of Mr. Jayewardeneand Mr. Tiruchelvam because these were the main arguments in the casewhich all the other Counsel supported. But I am thankful to all the Counselwho addressed us because they all developed individually various aspects ofthe problem before us and gave us all the assistance necessary.