H. R. AMARADASA and ANOTHER, Petitioners and THE LAND REFORM COMMISSION and AN

049-NLR-NLR-V-79-1-H.-R.-AMARADASA-and-ANOTHER-Petitioners-and-THE-LAND-REFORM-COMMISSION-and-AN.pdf


Amaradaau v. Lcn*C Rcforitz Commission
Ouo
Present: Samerawickrema, J., Rajaratnam, J.,
Sirimane, J., Weeraratne, J., and Sharvananda, J.
H. R. AMARADASA and ANOTHER, Petitionersand
THE LAND REFORM COMMISSION and ANOTHER,Respondents
S. C. 869, 870, 871 and 872/74—Application for Mandatesin the nature of Writs of Certiorari
Writs of Certiorari—Lend. Reform Law, No. 1 of 1972, section 13—Ordermade by Land Roform Commission declaring certain alienationsnull and void—Appeal to Minister—Order affirmed—Duty to actjudicially—Need to observe audi alteram partem rule—Effect ofthe breach of rules of natural justice—Order a nullity—Interpre-tation Ordinance as amended by Act No. 18 of 1972, section 22.
The petitioners, in each of these applications, prayed for theissue of writs of certiorari to quash the orders made by the LandReform Commission (1st respondent) and the Minister ofAgriculture and Lands (2nd respondent) in the purported exerciseof their powers under section 13 of the Land Reform Law, No. 1 of1S72. The 1st respondent made order declaring the alienation byway of donations by the 1st petitioner in favour of 4 of his children,who are severally the 2nd petitioners in each of these applications,null and’ void. The 1st petitioner and the child in whose favour thealienation were made in each case preferred appeals to the 2ndrespondent. The 2nd respondent on appeal refused to vary theorder made by the 1st respondent.
The petitioners stated that the alienations were a. bona fideparental distribution of property, not calculated to defeat thepurposes of the Lana' Reform Law. The ground on which the WTitof certiorari was sought was that the respondent had made orderwithout giving the petitioners an opportunity of being heard orshowing cause against the order declaring the alienation null andvoid. This was not disputed by the 1st respondent.
Held (Samerawickrema, J. dissenting) :
That it was incumbent on both the Land Reform Commissionand the Minister, who had to review the finding of the Commission,to give to the parties a reasonable opportunity of presenting andstating their case before arriving at a determination. In theexercise of their powers under section 13 both the Commissionand the Minister are under a duty to act judicially and each has toobserve the rule of audi alteram partem and respectively accordboth an original hearing and an appellate hearing before makingtheir determination. The parties are entitled to a reasonable hearingat both levels.
That therefore the determination of the Commission beingvitiated by its failure to act in accordance with the norms ofnatural justice is a nullity. The fact that the Minister affirmed it inappeal, therefore, could not give it any sanction in law despite thefact that section 13 (5) made the decision of the Minister final andconclusive.
That by appealing to the Minister the petitioners are in noway prevented from now asserting the nullity of the decisionsgiven. There was no suggestion of waiver and by appealing thepetitioners were in fact not affirming but disaffirming the validityof the decision appealed against.
1*—A 082495
606
Amaradaaa v. Land Reform Commission
Tnat section 22 of the Interpretation Ordinance as amendedby Act No. 18 of 1972 entitled file petitioner to challenge thedecisions on the ground of the breach of principles of natural justicein prerogative writ proceedings such as these.
Cases referred to?
Cooper v. Wandsworth &oard of Works (.1863) 14 C. B. N. S. 180
Russe v. Duke of Norfolk, (1940) 1 All E. R. 109.
Wiseman v. Borneman, (1969 ) 3 All E. R. 275 : (1969) 3 W.L.R.705; (1971) A. C. 297.
Pearlberg v. Varty. (1972) 2 All E.R. 6; (1972) 1 W. L. R. 534.
R. v. Payne (1896) 1 P. B. 577.
Attorney-General v. Times Newspaper Ltd. (1973) 3 W. L. R. 298 ;(1973) 3 All E. R. 54; (1974) A. C. 233.
Leami v. Nat:onal Union of Vehicle Builders, (1970) 2 All E. R. 713 ;(1970) 3 W.L.R. 434; (1971) Ch. 34.
Spackman v. Plumstead Board of Works, (1885) 10 A.C. 229.
Board of Edocation v. Rice, (1911) A.C. 179.
Ridge v. Baldwin, (1964) A.C. 40 ; (1963) 2 All E.R. 66; (1963) 2W. L. R. 935.
Durayappdh v. Fernando, 69 N. L. R. 265 ; (1967) 2 A. C. 337 ; (1967)2 All E. R. 152 ; (1967) 3 W. L. R. 269.
Board of Trustees, Mara d ana Mosque v. Mahmud, 68 N. L. R. 217 ;(1967) 1 A.C. 13 ; (1966) 1 All E. R. 545 ; (1966) 2 W. L. R. 921.
Shareef v. Commissioner for P.egistration of Indian and PakistaniResidents, 67 N. L. R. 433 ; (1966) A. C. 47 ; (1965) 3 W. L. R. 704.
McDowell v. Standard Oil Company, (1927) A. C. 632.
Turner v. Shearer, (1972) 1 W L. R. 1387 ; (1973) 1 All E. R. 397.
Req v. Shearer, (1972) 1 W. L. R. 1540 : (1972) 3 All E.R. 1121 ; 57Cr. App. R. 113.
General Medical Council v. Spackman, (1943) A.C. 627.
Annam'unthodo v. Oilfields Worker’s Trade Union. 60 C. L. W. 96;(1961) A. C. 945 ; (1951) 3 AV E. R. 621 ; (1961) 3 W.L.R. 650.
Anisr.iinic Ltd. v. Foreign Compensation Commission, (1969) 1 AllE. R. 208 ; (1969) 2 A. C. 147; (1969) 2 W. L. R. 163.
R. v. Electricity Commissioners, (1924) 1 K. B. 171.
Estate & Trust Agencies (1927) Ltd. v. Singapore ImprovementTrust, (1937) A. C. 898 ; (1937) 3 All E. R. 324.
Local Government Board v. Arlidge, (1915) A. C. 120.
Paclfield v. Minister of Agriculture, (1958) 1 All E. R. 694 ; (1968) 2W. L. R. 924 ; (1968) A. C. 997.
Franklin v. Minister of Town & Country Planning, (1918) A. C. 87Jayaioardena v. Silva, 72 N. L. R. 25.
Jayawardena v. Silva, 73 N. L. R. 289 ; (1970) 1 W. L. R. 1365.Fernando v. Jayaratnc. 78 N. L. R. 123.
PPUCATIONS for Writs of Certiorari.
H. W. Jayewardene, Q.C., with N. R. M. Daluwatte, J. C. Rat-watte. Mi&s S. Fernando and C. S. Hettihewa, for the 2ndpetitioner.
SA3CEKAWICKREMA, J.—Amuradasa v. Lund Reform Commission 507
E. D. Wickremanayake, Additional Solicitor-General, with V. C.Gunatileke, Deputy Solicitor-General, J. C. Boange, StateCounsel, and G L. M. de Silva, State Counsel, for the 1st and2nd respondents..
.(fur adv. vult.
June 16, 1977. Samerawickrema, J.
Land Reform Law, No. 1 of 1972, provided for a ceiling onagricultural land which may be owned by any person. Section3 (1) and (2) of the said law reads—
“3. (1) On and after the date of commencement of this Lawthe maximum extent of agricultural land whichmay be owned by any person, in this Law referredto as the “ ceiling ” shall—
if such land consists exclusively of paddy land,
be twenty five acres ; or
if such land does not consist exclusively of
paddy land, be fifty acres, so however thatthe total extent of any paddy land, if any,comprised in such fifty acres shall notexceed the ceiling on paddy land specifiedin paragraph fa).
(2) Any agricultural land owned by any person in excessof the ceiling on the date of commencement or thisLaw shall as from that date—
(a) be deemed to vest in the Commission ; andfb) be deemed to be held by such person under astatutory lease from the Commission. ”
In terms of section 18, a person who owned an extent of agricul-tural land over the maximum permitted is required to make adeclaration in the prescribed form of the total extent of agricul-tural land that was held by him. Though Law No. 1 of 1972 cameinto force on the 26th August 1972, section 13 (1) of that lawrequired any person who had alienated any agricultural landon or after 29th May, 1971, to report such alienation to theCommission and under section 13(2) the Commission is
empowered for certain circumstances to declare such alienationnull and void.
The file of the Land Reform Commission was available toCounsel at the hearing of this application. They referred us tocertain matters contained in documents in that file. It appearsthat the first petitioner has in his return stated that he owned122 acres paddy and 158 acres of other land. After he had madesales and other alienations, nearly fifteen in number, including
OUSSASiEKA Vi'lCK_KEilA, J .—Amaradaaa v. Land 1-U jmin Cctnmiseicn
the four alienations in favour of his children, which are the sub-ject matter of the applications before us, he was left with 67A.1R. OP. and his wife with 25A. 1R. 14P. of agricultural land. Inthe form presc^jjaed under section 18 the declarant has to set outthe extent of land owned »by him, the extent of land owned byhis spouse, the extent of land owned by each of his children,irrespective of age. If he has made any alienation after 29th May,1971, section 13 requires him to make a return and the formprescribed under that provision requires him to set out interalia the extent of land he had owned before he made the firstalienation, and he has to attach separate forms giving the detailsof each alienation including the extent of land alienated and theextent of land in excess of the ceiling held by him prior to thatalienation. In the affidavit filed by him in these proceedings, the2nd petitioner states he joined the 1st petitioner in making thedeclaration under section 18 in respect of Charleswick Estate.Apart from the form and declaration under section 18 the 1stpetitioner appears to have made about 15 returns setting outalienation made by him.
In the exercise of powers under section 13 (2) of the LandReform Law, the 1st respondent, the Land Reform Commission,made order declaring alienation by the first petitioner in favourof four of his children who are severally the 2nd petitioners inthe applications before us, null and void. The first petitioner andthe child in whose favour the alienation was made in each casepreferred appeals to the Minister of Agriculture and Lands. TheMinister refused to vary the order made by the 1st respondent,the Land Reform Commission.
Separate applications have been filed in this Court forcertiorari in respect of each alienation declared null and voidby the 1st petitioner and the child in whose favour the alienationhad been made by him. The ground on which a mandate in thenature of a writ of certiorari is sought is that the 1st respondenthad made order without giving the petitioners an opportunity ofbeing heard or showing cause against the order declaring thealienation null and void.
The relevant provisions of the Land Reform Law reads—
“ 13 (1) Where on or after May 29, 1971, any person who ownedagricultural land in excess of the ceiling has alienatedany agricultural land to any other person, suchalienor shall, within three months of the date ofcommencement of this Law, report such alienation tothe Commission in the prescribed form.
SAJlEKAWTCKREMA. J.—Amamdasa v. Land Rejortn Commission o‘ 9
(2) Where the Commission finds that any alienation ofagricultural land on or after May 29, 1971, has beencalculated to defeat the purposes of this Law theCommission may by order made under its hand declarethat such alienation is null and void. Ktfery such ordershall be sent by registered? post to the alienor andalienee of the agricultural land to which that orderrelates.
(3) Any alienor or alienee aggreved by an order madeunder subsection (2) may within three weeks of thereceipt of such order appeal to the Minister in theprescribed form, and the Minister may on such appealmake such order as the Minister may deem fit in thecircumstances of the case.
Where no appeal has been preferred under sub-section
within the time allowed therefor against the ordermade under subsection (2), such order, or where anappeal has been preferred, the order as amended,varied or modified on appeal shall be published inthe Gazette. The order as published shall be final andconclusive and shall not be called in question in anycourt, whether by way of writ or otherwise.
Where the Commission under the provisions of sub-section (2) declares that any alienation is null andvoid, no right, title or interest shall be deemed to havepassed to the alienee under the instrument of suchalienation and such agricultural land shall vest in theCommission and the alienee shall be deemed to holdsuch land under a statutory lease from theCommissioner. ”
Mr. Jayawardene appearing for the petitioners submittedthat the alienor and the alienee should be heard by the Commis-sion before they declare any alienation null and void. He pointedout further that the Commission had to decide whether thealienation was “calculated to defeat the purposes of the law ”and that therefore the Commission had to address its mind tothe intention of the alienor and alienee at the time the aliena-tion was made. The word “ calculated ” according to the OxfordDictionary has two meanings—
Reckoned, estimated, devised with forethought.
Fitted, suited, fit, apt; of a nature or character proper
or likely to.
510
SAMERAWICKREJIA, J.—Amaradasa v. Land Rejorm Commission
In the case of Turner v. Shearer, (1972) 1 W.L.R. 1387, Shaw, J.held that the phrase “ to be calculated to deceive ” in section 52of the Police Act, 1964 meant “ likely to deceive or reasonablylikely to deceive”. In arriving at his decision he relied on adictum of Loi*I Cave, L. C. in Macdowell v. Standard OilCompany, (1927) A.C. 63?, where he states —
“ It has been long ago decided and is quite clear that theword “ calculated to deceive ” which are found in section11 of the Trade Marks Act, 1965 do not mean “ intended todeceive ” but “ likely or reasonably likely to deceive ormislead the trade or the public. ”
In the case of Regina v. Davison, (1972)1 W.L.R. 1540
Brown, J. held that in section 5 of the House to House Collec-tion Act, 1939 the words “ calculated to deceive ” meant “ likelyto deceive Dicta in judgments also indicate the use of theword “ calculated ” in the same sense. In Rex v. Payne, (1896)
1 Q.B. 577 at 580, which dealt with a matter of contempt thefollowing dictum appears —
“ . .. .the applicant must show that something has beenpublished which either is clearly intended, or at least iscalculated, to prejudice a trial which is pending. ”
In Attorney-General v. Times Newspapers Ltd., (1973) 3 W.L.R.p. 298 at 318, appears the following dictum by Lord Diplock—
“ In my view these cases support the proposition I havealready stated ; that contempt of Court in relation to acivil action is not restricted to conduct which is calculated(whether intentionally or not) to prejudice the fair trialof that action -…”
Should section 13 (2) be read as meaning “ any alienation hasbeen intended or designed to defeat the purposes of this law ”or “ as any alienation has been of such a nature that it is likelyto defeat the purposes of this law. ” If one has regard to theconsequences of an order to the parties who made the alienationone would be inclined to give the former meaning; but ifone has regard to the purposes of the law and the nature ofthe administrative tribunal who is vested with functions ofmaking the decision one will be inclined to give provision tothe latter meaning. As I find it possible to come to a decision onthese applications without expressing any definite view on theinterpretation of the provision for another case in which it mayarise.
SA>IEBAWICKREMLA, J.—Atnaradaea v. Lend Rfjo>m Ccn.mis»ion 511
The principle that, where a statute provides for an order tobe made which will prejudice the rights of a party, even if thestatute is silent on the question, the Court will imply a rulethat the principles of natural justice should be applied is onethat is followed by our Courts. The dictum of B^ies, J. in Cooperv. Wandsworth Board of "Works that ‘ although there are nopositive words requiring that the parties shall be heard, thejustice of the common law will supply the omission of the legis-lature ’ has been consistently applied. The principles of naturaljustice however are not fixed or rigid but are flexible anddepend on the circumstances of each case. The oft quoted dictumof Tucker, L.J. in Russel v. Duke of Norfolk, (1940) 1 A.E.R.109 at 118, is apposite—
“ There are, in my view, no words which are of universalapplication to every kind of inquiry and every kind ofdomestic tribunal. The requirements of natural justice mustdepend on the circumstances of the case, the natureof the inquiry, the rules under which the tribunal is sitting,the subject matters that is being dealt with, and so forth.Accordingly I do not derive much assistance from thedefinitions of natural justice which have been from timeto time used, but, whatever standard is adopted, one essen-tial is that the person concerned should have a reasonableopportunity of presenting the case. ”
The basis for the rule that the principles of natural justicewill be implied into a statutory provision and the circumstancesin which that rule will be applied must be considered. The basisof the rule appears to be that Parliament is not to be presumed totake away a party’s right without giving him an opportunityof being heard. The circumstances in which the rule will beapplied appears to flow from this and the rule will be appliedwhenever, on the terms of the provisions of a statute taken bythemselves, a party’s rights may be taken away without hi3being given a fair opportunity of being heard. The position islucidly stated by Lord Guest in his speech in the House ofLords in Wiseman v. Bomeman, (1969) 3 A.E.R. 274 at 279—
“ It is reasonably clear on the authorities that where astatutory tribunal has been set up to decide final questionsaffecting parties’ rights and duties, if the Statute is silent onthe question, the Courts will imply into the statutory provi-sion a rule that the principle of natural justice should beapplied. The implications will be made on the basis thatParliament is not to be presumed to take away parties’ rightswithout giving them an opportunity of being heard in their
*12SAMJEJRAWTCKBE>iA, J.— Amaradnsa r. Land Reform Cemmissio-n
interest. In other words parliament is not be presumedto act unfairly. The dictum of Byles, J. in Cooper v. Wands-worth Boaxd of Works is clear to the effect and has beenfollowed in many subsequent cases. ”
• _
It is necessary that a Court should consider the provisions ofthe statute and decide whether such provision do or do not afforda party an opportunity of being heard before an order is madewhich has the effect of taking away his rights. In the case ofWiseman v. Borneman, Lord Reid said—
“ Natural justice requires that the procedure before anytribunal which is acting judicially shall be fair in all thecircumstances, and I would be sorry to see this fundamentalgeneral principle degenerate into a series of hard and fastrules. For a long time the Courts have, without oppositionfrom Parliament, supplemented procedure laid down inlegislation where they have found it to be necessary for thispumose. But before this unusual kind of power is exercisedit must be clear that the statutory procedure is insufficientto achieve justice and that to require additional steps wouldnot frustrate the apparent purpose of the legislation. ”
In the case of Pearlberg v. Varty, (1972) 2 A.E.R. p. 6 at p.16, Lord Pearson addressed his mind to the same subject—
“ Where the person affected can be heard at a later stageand can then put forward all the objections he could havepreferred if he had been heard on the making of theapplication, it by no means shows that he suffers an injusticein not being heard on that application. Ex parte applicationsare frequently made in the Courts. I have never heard itsuggested tfeat it is contrary to natural justice on the groundthat at that stage the other party is not heard. The fact thatit is possible to get an order obtained on ex parte applicationto the Court amended or anulled without delay does not, inmy view, bear on the point. The fact is that he is not heardon the making of the application. And that is the taxpayer’scomplaint here. He can appeal against the assessment; andon the hearing of an appeal he can if he wishes put forwardany point he would have made if heard on the application.His liability to tax will not be finally determined withouthis being heard, if he wishes to be heard. ”
Tn the same case Lord Hailsham of St. Marylebome, L.C.
“It is true of course that the Courts will lean heavilyagainst any construction of a Statute which would bemanifestly unfair. But they have no power to amend or
SA. KRAWICIvKK'L'. Atnuradasa r. l.< „d Jl-jitte <?c*i:W*eicn ©13
supplement the language of a statute merely because onone view of the matter a subject feels himself entitled to alarger degree of say in the making of a decision than theStatute accords him. ”
•*
Section 13 which is the statutory provision under considerationprovides that the order of the Commission is to be published inthe Gazette if no appeal is made against it and if there is anappeal the order as amended varied or modified in appeal is tobe published. Meanwhile the order is to be sent to both thealienor and the alienee and either of them may appeal to theMinister. On an appeal the Minister has the very wide powerof making any order as he may deem fit in the circumstancesof the case. Subsection 6 refers to the effect of an order of theCommission but in the context it is clear that is to be readsubject to subsection 5 and it is an order of the Commissionwhich is not appealed against or an order as amended, variedor modified in appeal that is to have the effect provided for. Inany event, even if the order of the Commission is in strict theoryin force from the time it is made, the only effect is that thealienee is deemed to be a statutory lessee. Accordingly, in termsof the provisions of the law, his possession of the property andhis enjoyment of rights in respect of it are intact pending anappeal.
On an examination of the provisions of s-ection 13 it appearsthat ttrre is in fact an opportunity to the parties to show causeby way of an appeal to the Minister before their rights are infact prejudicially affected. In the case of such statutory provi-sions, on the statements of law which I have set out above, it isnot possible to imply a rule that the parties should have anopportunity of being heard by the Land Reform Commissionas well. On one view of the matter it may appear to be betterthat they should have such an opportunity but as Lord Hailshamhas pointed out, this is not sufficient to give the Court power toimply into the statute the requirements of natural justice. It isonly where on the provisions of the statute the rights of partieswill be taken away without an opportunity of showing cause thatthe Court has power to do so.
In this matter when the 1st petitioner reported the alienationin the prescribed form in terms of section 13(1) he had’ anopportunity of giving his reasons why the alienation should notbe declared null and void as there is a cage in the form forthat purpose. The two appeals filed by the alienor and alienee,the 1st and 2nd petitioner, set out their ground's and reasonsand to the petition filed by the 2nd petitioner there was annexedan affidavit of the 1st petitioner.
1 **—A 082495
614
SAMERAWICKREMA, J.—■Amaradcea r. Land J?form Ccnm-strion
Mr. Jayawardene relied on the decision in Leary v. NationalUnion of Vehicle Builders, (1970) 2 A.E.R. 713. In that case,which dealt with the expulsion of a Trade Union member, itwas held that the lack of natural justice before the committeeof the branch fluion which was the trial body was not cured bythe appellate body granting a full rehearing. But the basis ofthat decision was that the appellate body had a strictly appellatejurisdiction and could not grant a rehearing. At p. 720 Megarry,J. said—
“Now in the present case the hearing by the appealscouncil seems to me to have been in substance a completerehearing, with the witnesses called and heard, and completeliberty of action for the plaintiff to present his case in full.Indeed, the members of the quite differently constitutedbranch committee might well have been put in some practi-cal difficulty if they had been required to devote two days todisposing of the case. Nevertheless it was not to the appealcouncil that the rules confided the issue of expulsion or not.It may be that the matter was properly brought before theappeals council by the combined effect of r.2(13), r.6(l) andthe decision of the executive committee ; but any such juris-diction is merely appellate. If a man has never had a fairtrial by the appropriate trial body, is it open to an appellatebody to discard its appellate functions and itself give theman the fair trial that he has never had ? ”.
The Minister’s powers are by no means strictly appellate andgo even beyond a rehearing. In fact an appeal to him ratherresembles an appeal to Caesar by a Roman citizen. The order ofthe Commission is not to be published until the time for appealwas possed and on appeal he has the very wide power of makingany order as he may deem fit in the circumstances of the case.I should not be understood to say that the Minister is empoweredto act arbitrarily or capriciously, but within the limits of fairnessand impartiality he has the widest and almost untramslledpowers to make any decision.
The point made against the order of the 2nd respondent apartfrom any infirmity in respect of the proceedings and the orderof the Land Reform Commission is that he did not give thepetitioners hearing on the appeals. The principles of naturaljustice do not require that a party should be given an oral hear-ing. Powers and functions under the Land Reform Law aregenerally administrative though the power of declaring an aliena-tion null and void is quasi-judicial. There may w"ll be a largenumber of alienations between the 29th May, 1971, and the
RAJ ARATNAM, J.—Ainaradana v. Land Befortn Ccmvnsaion
516
coming into force of the Land Reform Law. It would not befeasible to insist an oral bearing in all the cases relating to thesaid alienations. The Minister may, however, be .well advised togrant an oral hearing in an appropriate case even though it maynot be obiligatory in law for him to do so but thq failure to givean oral hearing, particularly where there had T>een no requestfor one, cannot be a ground for invalidating the Minister’sorder, m view of the recent amendments to the InterpretationOrdinance the only grounds on which this Court may issue awrit of certiorari quashing the Minister’s order is—
that he has acted ex facie without jurisdiction.
that he has failed to observe the principles of naturaljustice.
In fact the only ground taken on behalf of the petitioners wasthe latter. This Court is therefore precluded from going into thevalidity or sufficiency of grounds on which the Minister’s orderwas made.
I desire to refer to one matter that was raised in the courseof the argument. It was suggested that an order declaring analienation null and void entailed the consequence that no com-pensation to anyone was payable in respect of the land whichwas the subject matter of the alienation. The learned AdditionalSolicitor-General stated that his understanding of the provisionswas not to that effect. It appears to me that a forfeiture of com-pensation in respect of alienation altogether to both the alienorand alienee would require express provision which is not foundin the Land Reform Law.
The first petitioner had died pending the hearing of the appli-cation but the learned Additional Solicitor-General had noobjection to the proceedings being continued on the applicationmade by the 2nd petitioner in each case. The applications failand are accordingly dismissed. The matter appears to have beenargued as a test case and therefore I am not disposed to makeany order as to costs.
Rajahatnam, J.
I have before me the draft judgments prepared by Samera-wickrema, J. and Sharvananda, J. which have received by res-pectful consideration and with the greatest respect I regret myinability to agree with Samarawickrema, J.’s order. On the otherhand I agree with the order and reasons of Sharvananda, J.
510
RAJARATNAM- J.—Atnaradasa v. Land Jtejonn Cctr.imssinn
It is settled law and a settled principle accepted in both judg-ments “ that Parliament is not to be presumed to take away theparties’ rights Without giving an opportunity of being heard intheir interest. In other words Parliament is not to be presumedto act unfairly. **When the Land Reform Law states in s. 13 (2) :
“ Where the Commission finds that any alienation of agri-cultural land on or after May 29, 1971 has been calculated todefeat the purposes of this law, the Commission may byorder made under its hand declare that such alienation isnull and void”.
it is clear that the Commission acus as a quasi judicial tribunalmaking a quasi judicial decision. I agree with Sharvananda, J.that it has all the ingredients and features laid down by thePrivy Council in Duraiappa’s case for a judicial determination,and its decision is on the question whether the alienation after acertain date “ has been calculated to defeat the purposes of thislaw I am unable to agree with Samerawickrema, J. that thewords “ calculated to defeat ” does not necessarily imply designedto defeat or intended to defeat, but can even mean likely or rea-sonably likely to defeat. Lord Cave’s observation in MacdowelPscase was in regard to a different statute where the object of thelaw was to include all Trade Marks likely or reasonably likelyto mislead the trade or public. Section 13 (2) of the Land ReformsLaw however does not empower the Commission to declare allalienations after May 29, 1971, as null and void. It contemplatesonly such alienations as are “ calculated to defeat the purposesof the Law ”, so that I cannot agree with the proposition that inregard to this law the words “ calculated to defeat ” means likelyor reasonably likely to defeat and not necessarily intended ordesigned to defeat the law.
Moreover I find it difficult again to agree that without deter-mining the strict meaning of the words calculated to defeat it ispossible to determine the rest of the questions before us. In myview the Commission can in certain circumstances necessarilyinfer the calculation to defeat the law but these circumstancescan be explained and the law demands that the person againstwhom this inference is to be made must be given an opportunityto be heard and to explain. I agree with Sharvananda, J. thatthe audi alteram rule must apply at this stage. The finding ofthe Commission which is a quasi judicial decision has a finalityunlike in the decision taken in the Wiseman v. Borneman case,and the Pearlberg case referred to.
Now s. 13 (3) refers to the appeal to the Minister which eitherthe aggrieved alienor or alinee may make and the Minister mayon such appeal make such order as the Ministry may deem fit
SIP.IMAKE, -i .—Amaradasa v. Lend Reform Commission
517
in the circumstances of the case. Is this like an appeal of aRoman citizen to Caesar where the Minister *may make anyorder as he deems fit in the circumstances of the case. If it canbe likened to an appeal to Caesar, then the Misnster can makeany order “ which he may deem fit ih the circumstances ", andhe has an unfettered discretion to dispence a favour to some anddeny it in similar situation to others. If that is so, this provisionoffends s. 18(1) of the Constitution which ensures to all equalprotection of the laws and it is unlikely it would have passedthrough the careful scrutiny of the Constitutional Court. On theother hand if the Minister himself has to make a quasi judi-cial decision in appeal in the circumstances of the case, he musthave the material facts and the reasons for the order of theCommission to make “ any order which he may deem fit in thecircumstances ”. In which case, it is necessary that the materialfacts must include the case of the aggrieved alienor and alineetogether with the reasons for the quasi judicial finding of theCommission.
I agree with respect with the order and reasons set out bySharvananda, J. and the applications of the petitioners thereforemust succeed.
Sirimane, J.
I regret I am unable to agree with the judgment of Samera-wickrema, J. I agree with the view that when the Land ReformCommission has to make a determination under section 13(2)of the Land Reform Law, No. 1 of 1972, as to whether an aliena-tion is null and void as one calculated to defeat the provisionsof that Law or not, and the Minister in appeal from such adetermination under section 13(3), acts in a quasi judicial capa-city and must therefore observe the rule of natural justice thatthe alienor and the alienee must be given an opportunity ofbeing heard before an order adversely affecting their rights ismade.
For the reasons set out in the judgment of Sharvananda, J.,with which I agree, I would allow the applications and quashthe orders declaring the alienations null and void.
Weeraratne, J.
I am in agreement with the majority view that the audialteram partem rule has not been properly observed at the stageat which it should have been applied in the course of the statu-tory proceedings in respect of these applications. The rule is sofundamental and vital, in regard to the manner in which justicehas to be administered in proceedings of a certain character,that I prefer not to let the matter rest with a mere agreement
518
\ 1 IKKAI!ATjNK. J.—Amaradaeu o. Laud Reform Commission
by me. The said rule constitutes one of a trilogy of basic princi-ples of fair prdcedure required of a tribunal under a duty toact judicially. •
••
The body in question is .the 1st Respondent, the Land ReformCommission which is charged by the appropriate provisions otthe Land Reform Law to find whether any alienation of agri-cultural land on or af;er May 29, 1971, has been calculated todefeat the purposes of that law. In the event of the Commissionmaking such a finding it may by order declare that such aliena-tion is null and void.
The petitioners aver that the said Commission has acted con-trary to and in violation of the principles of natural justicein making the order declaring an alienation, in which they wereparties, null and void. They state that no opportunity was given■to them to be heard, before the said order was made on theground that the alienations had been “ calculated to defeat thepurposes ” of the Land Reform Law. The Writ of Certiorari cal-led for in the applications could, if allowed by the Court, quashthe decisions of the Commission if there is disclosed a failure toobserve the said rule. If I were to put it succinctly an essentialpre-requisite to the issue of such a Writ is that the Commissionmust be clothed with the character of a body exercising at leastquasi-judicial functions, in that it is under a duty to act judicial-ly. Some of the more obvious characteristics of a body exercisingsuch functions if we were to consider the authorities, are primari-ly that there must be something in the nature of a “ Lis ” beforesuch a body, which would then proceed to weigh the pros andcons of the matter. Facts would necessarily have to be consideredin that process and a decision made.
In contrast a Minister or body performing purely minisieiialor administrative functions acts “ in a prescribed manner inobedience to the mandate of a legal authority, without regardto his own judgment or the property of the act to be done. ”(Ferris on Writs, at page 238). Such a body has to examine thequestion before it by way of expediency or policy and consequen-tially is under no duty to act judicially, Franklin v. MinisterTown and Country Planning, (1948) A. C. 87, House of Lords.It seems to me that even though there is a wealth of authority,and commentaries on this subject, there is no need to proceedbeyond what has been just stated, to describe the Land ReformCommission as a body which must act judicially under section13 of that Law, for it is invested with all the characteristics ofsuch a body. The “ Lis ” before it is the precise question whether“ any alienation of agricultural land on or after May 1971 hasbeen calculated to defeat the purposes of this Law ” The Com –
WEEKAIiATXK, J.—Amaruuusa v. Luvrt fit-form Commissiono 19
mission woiild naturally have to weigh the facts before it andmake an order which must necessarily decide and declarewhether the alienation is a valid one under the. said provisions,or null and void. This order may on an appe^J.to the Ministerunder section 13 (5) of the law be ‘i amended, varied or modi-fied ” by him, and when once published in the Gazette shall befinal and conclusive. Nevertheless the fact that an order of theCommission was altered by the Minister would not change thecharacter of the body constituted in the manner described earlierand whose duty it was to act judicially.
If then the said Commission is obliged to act judicially, thequestion does arise as to whether the alienee, who is obviouslya party interested, as much, if not more than the* alienor inthis matter before the Commission, should and must necessarilybe heard by the Commission before an order adverse to himis made. The case Pearlberg v Varty, (1972) 2 A.E.R. page S.has been referred to by my brother Samerawickrema, J. whodraws attention to a passage in the judgment of ViscountDilhome to the effect that when a person affected can be heardat a later stage and can then put forward all the objections hecould have preferred, he would not suffer an injustice is noting heard at some earlier stage.
If we examine the context in which Viscount Dilhorne madethe proposition just mentioned it would be observed that hiswords applied to the facts of the case he was dealing with. Therethe Commissioner in a Revenue case had only to determinewhehler a prima facie case is made out when dealing with amatter involving a late assessment proposed to be made, whichcould only be done with the leave of a Commissioner “ given on
being satisfied by an inspectorof the Board that there
are reasonable ground for believing that tax has or may havebeen lost to the Crown owing to the fraud or wilful default-orneglect of any person. ” The Commissioner granted leave with-out givii-g the tax-payer an opportunity to be heard. The tax-payer thereafter complained that these assessments wereinvalid on the ground that the Commissioner had acted ultravires in granting leave without giving him an opportunity to beheard. The House of Lords held that since the Commissioner had
YKIlKA_KATiE, I.—-Amaradosa c. Land Reform t Hi'wisfwi.
merely to decide whether a prima facie case is made out therewas no requirement for the tribunal to hear both parties and thatthe determination was an administrative decision. There was pro-vision however ?0r the tax-payer to appeal against this decision.We find similar situations in our country as for instance whentax officialsmake arbitraryorlateassessmentswhen the
tax-payer sends :no returns. Such an assessment is an adminis-trative actand there isalwaysthe rightto appeal
to a Boardwhich is requiredtoact judicially and hear
both parties. The present matter is however quite different.The LandReform Lawhasprovided fora Land
Reform Commission and invested it with very wide powers todecide the question whether any “ alienation has been calculatedto defeat the purposes of this law, ” and after a considerationof the material placed before it, the Commission has the statutoryauthority to declare any such alienation null and void. It is asshown earlier abundantly clear that this Commission has theduty to act judicially, in which event it would have to observethat rule of natural justice and bear not only the alienor butalso the alienee as shown in some detail earlier. Even thoughthere is an appeal which the alienee has to the Minister, theCommission acting judicially would perforce have to hear thealienee before an order adverse to him is made. Inthis connection it must be noted that even the alienorhas not been heard in the manner required and inthe spirit of the " aldi alteram partem ” rule of naturaljustice. There may be a mistaken belief that when the alienorfills column 21 of the form furnished to him by the Commissionwhich requires him to state “ why the alienation should hot bedeclared void ” it would be tantamount to his being given anopportunity to be heard. There could be no compliance with therule in this manner because such a course presupposes that anyalienation within the period set out in the provision is void unlessthe alienor proves that it is not calculated to defeat the purposesof the law..That is not the law, since the statute does not providefor.suph a presumption to be available to the Commission. Onthe contrary it seems to me that in the context of section 13, thesaid Commission upon an alienation reported to it under thissection if it' .is.,prima- facie inclined to hold that it was calcula-ted to defeat the purposes of the law, to be void, is under a duty
AVEERAKATaE, J.—Amaradasa v. Land Rtjotf> t'cnunissio-n
621
to call upon the alienor and the alienee to show cause why thealienation should not be declared void. In doing so however thfrCommission would have to indicate the particular characteristicspertaining to the alienation which would lejd tc the in-ference that it was calculated to defeat the purposes ol the law.The “ audi alteram partem ” rule is based on fairness and I findit difficult to see how a fair hearing could be given unless thecourse just referred to is followed. The hearing may of coursebe by way of written submissions or orally. The law relatingto this is indeed quite clear and this Court could always takethe view that the statutory proceedure is insufficient to ensurejustice and consequently not frustrate the apparent purpose ofthe Legislature and give effect to the implied duty of the Com-mission to grant a hearing in a manner contemplated by therule.
The statutory provisions dealing with an appeal to the Ministermight at first blush appear to grant extraordinary & powersA scrutiny of these powers however shows that like any appel-late body the order of the Commission could be “ amended, variedor modified ” by the Minister. My brother Samerawickrema, J.in his judgment states that “ The Minister’s powers are by*nomeans strictly appellate and go even beyond a re-bearing. ” Helikens the appeal to the Minister to “ an appeal to Caesar bya Roman citizen ”. He states however that the Minister whilsthaving the widest and almost untramelled powers must never-theless act within the limits of fairplay. What evoked this com-ment may perhaps be the words in section 13 (3) of the lawwhich sets out that the “ Minister may on such appeal make suchorder as the Minister may deem fit in the circumstances of thecase We must necessarily examine this power in order tosatisfy ourselves as to the scope of that power. The first ques-tion we would ask ourselves is whether the Minister acts, inappeal as an administrative authority under a duty to act judi-cially. When we apply the texts applicable to such a latter bodywe find that he would have a ‘ Lis ’ in the form of an appealbefore him. The parties, both alienor and alienee, if theyappeal as they have done, would have to be heard since it isprovided by law. Then there has to be a final decision by the
1***—A 082495
522
WEERAR.4TNE, J.—Atnaradasa v. Lend Rejc.ni Cctnmisaion
Minister. These as would be observed constitute the essentialfacts of a body that is expected to act judicially. Quite apartfrom any other consideration, here we find the Minister enter-taining an appeal from the Commission which as I have shownearlier is obliged to act judicially. Surely the Legislature wouldnot have intended an order of such a Commission which hasacted as a judicial body, which order is final and conclusiveunless amended, varied or modified by the Minister in appealwould be dealt with by the Minister by “ subjective ” standardsbased on policy or expediency rather than by “objective ”standards of a body required to act judicially. The argumentthat subjective ” standards could be applied would depend onthe view one takes of the words “ as the Minister may deem fitin the circumstances of the case. ” In this connection if we wereto draw any inference from the matters relating to a Minis-terial appeal, as shown above the words “may deem fit inthe circumstances of the case, ” could not be spelt out as beingthe power to do as he pleases. He would possess such a
.power to do so only “ when a statute under which a
tribunal is set up permits it to reach its decision on its ownknowledge and without any evidence, then if it has observedthe formalities prescribed by the statute and has not excludedany evidence to it, its decision cannot be impugned. ’’ (Halsbury,3rd edition page 66). It must be borne in mind that the Ministercan do what he deems fit only “in the circumstances of the case. ”Therefore the Minister could act only within those limits, and hisdecision must necessarily be on precisely the same issues whichthe Land Reform Commission has to answer.
Having regard to what I have stated above, it seems clear thatthe Land Reform Commission has acted in breach of a funda-mental principle of natural justice by not complying with the"andi alteram partem” rule. Thus the proceedings before theCommission including its order would necessarily be void. The*•’ Minister would not have had before him the necessary materialin order*to exercise his powers under the provisions of sections13 f.3) and (5) of the Law, since the Commission had not invitedthe petitioners to place their case before it, in the manner and
WEEBAKATNE, J.—Amaradasa v. Zand Reform Commission
523
spirit required by the rules of natural justice as describedearlier. In this state of the matter it seems clear that the ordermade by the Minister in appeal from the finding of the Commis-sion would indeed be bad and consequently jruid.
On the question whether the word “ calculated ” in section13(2) of the Land Reform Law should be interpreted in thecontext of the provisions as “ intended ” or “ designed ” and not“ likely ” or “ reasonably likely ”, I am in agreement with thereasons given by my brother Sharvananda, J. to the effect thatit is the former meaning that should be given and not the latter.The reasoning given by my brother, if I may say so with respect,analytically leads to the conclusion he arrives at namely thatthe law should be construed to mean “ any alienation… .intendedor designed to defeat the purposes of the law ” on theother hand we do not got much assistance from the two casescited by Counsel appearing on behalf of the respondents,since the learned judges in delivering their judgmentsin those cases do not state their reasons for construingthe words “ calculated to deceive ” as “ likely ofreasonably likely ” to deceive. Viscount Cave in the case ofMe Dowall v. Standard Oil Co., (1927) A. C. 632, in interpre-ting the Trade Marks Act where the said words appear, merelystates “ it is quite clear that they mean likely or reasonablyLikely ”. Browne, J. in the second case, R. v. Davison, (1972) 3A.E.R. 1121, states “when one reads the paragraph as a whole itplainly means likely to deceive. ” The wording of the provisionsin each of these cases are to a large extent similar. In the TradeMarks cose (1927 AC 632) the mark used was alleged as“ calculated to deceive ”, whilst in the case relating to theunauthorised use of badges, a badge had been used, in the houseto house collection for charity, “so nearly resembling a pres-cribed badge.. . ” I find my brother’s reasoning sufficientlycompelling to justify the interpretation he has given to theprovision, which he has sought to interpret.
•
I accordingly hold that the orders of the Land ReformCommission and the Minister must be quashed. The writs ofcertiorari as applied for by the petitioners must therefore issqe
524SHAKVAN-AfubA, J.—Amaradusa r. Land Iiejorm Commission
quashing the orders made by two respondents under theLand Reform Lay.
As this was regarded as a test case I make no order as to costs.SHARVANANDA, J.
I have read the judgment in draft of Samerawickrema, J.I regret my inability to agree with his judgment.
These are applications filed by the petitioners praying for theissue of writs of certiorari quashing the orders made by thetwo respondents, i.e. the Land Reform Commission and theMinister of Agriculture and Lands, in the purported exercise oftheir powers uder section 13 of the Land Reform Law, No. 1of 1972, declaring the alienations made by way of donations byth£ 1st petitioner in favour of the 2nd petitioner in each of theabove applications null and void. The impugned instruments ofalienations are Deeds Nos. 3589 to 3592 dated 29.12.71, and attes-ted by C. E. Pindeniya, N. P. The 1st petitioner is the father, andall the donees are his children. The 1st petitioner states thatat the time of the execution of the said deeds, the 1st petitionerwas old, being over 67 years of age, and that in anticipation ofhis death, he distributed, by these deeds, certain undivided por-tions of Charleswick Estate, wliich was of extent 86 acres belong-ing to him, to his children to set them up in life. The petitionersstate that it was a bona fide parental distribution, not calculatedto defeat the purposes of the Land Reform Law, They complainthat they were not heard by the respondents prior to these alie-nations being declared void by the latter and that no opportunitywas given to them to show cause why the alienations shouldnot be declared void on the alleged ground that they were calcu-lated to defeat the j^urposes of the Land Reform Law and that noreasons were given by the 1st respondent as to how or whyit reached such a prejudicial finding against them. Their prayerfor relief is based on their allegations that the respondents haveexercised their statutory powers against them without observingthe fundamental principles of natural justice that a person shouldbe heard, audi alteram partem, before action is taken againsthim.
525
SHARVANANDA, J.—Amaradasa v. Land Inform Commission
As the applications raised an important question of law, as towhether the exercise of power by the Land Reform Commissionand the Minister under section 13 of the Land Reform Law iscontrolled by the doctrine of audi alteram partem and, if so, thelegal consequences of non-observance of that principle in suchexercise, the applications were referred by the Honourable theChief Justice, under section 14(3) of the Administration of Jus-tice Law, to a tench of five Judges, and as all the applicationswere based on similar allegations, they were all heard together.
Every tribunal or other body exercising judicial or quasi-judicial functions is expected to observe certain fundamentalrules of natural justice in the exercise of its power. These rulesmust guide it in the discharge of its judicial functions. InSpackman v. Plumstead Board of Works, (1885) 10 A.C. 229,it was held that in the absence of special provisions as to howthe person who is to decide is to proceed, the law will imply nomore than the substantial requirements of justice shall not beviolated, for he is not a judge in the proper sense of the word. Inmorden administrative law, ‘ natural justice ’ finds expression intv;o principals : that a Judge must not be biased in his adjudica-tion and that no man shall be condemend unheard. The situationsin which a duty will arise to act judicially according to naturaljustice cannot be exhaustively catalogued. Prima facie, a dutyto act judicially can be spelt in the exercise of a power to deter-mine questions affecting the rights of subjects. The judicialelement is inferred from the nature of the power. A duty to actjudicially in conformity with the rule of audi alteram partemis imposed by the common law on administrative bodies whosedecisions prejudicially affect individuals or property. Primafacie, a duty to act judicially will arise in the exercise of apower to deprive a party of his property, rights or legal status.Thus, a .person or body determining a justiceable controversybetween parties, or between itself and a single party, must giveeach party a fair opportunity to put his own case and to corrector contradict any relevant statement prejudicial to him—Boardof Education v. Rice. (1911) A.C. 179 ; Ridge v. Baldwin, (1964)A.C. 40 ; Duraiappa v. Fernando, 69 N.L.R. 265 P.C. It is contrarv
526
SHAKVANAJs JLlA, J.—Amaradasa v. Land Reform Commission
to natural justice that a party’s contentions may be overruled byconsiderations in the judicial mind which the party has noopprotunity of controverting and that the undisclosed evidencemay, if subjectedTto criticism, prove to be misconceived or basedon false premises.
In a statute empowering an official or body to give a decisionadversely affecting the rights, liberty or property of an indivi-dual, a legal presumption usually operates that the audi alteram;partem rule has to be observed. It is a general principle ofstatutory construction that in the absence of plain statutorylanguage to the contrary, any provision giving power to a tribunalto make an order which will affect the interests of an individualis to be construed as a power which will not be exercisable unlessthe person affected has had the opportunity to be heard. It is tobe construed in accordance with the rule of audi cJteram partemand not in derogation therefrom. “ The justice of the common lawwill supply the omission of the legislature. ”—per Byles, J. inCooper v. Wandsworth Board of Works, 14C.B.N.S. 180 at 194.
Lord Guest, in Wiseman v. Borneman, (1969) 3 A.E.R. 275at 279. formulated the presumption thus :
“It is reasonably clear on the authorities that where astatutory tribunal has been set up to decide final questionsaffecting parties ’ rights and duties, if the statute is silent onthe question the Courts will imply into the statutory provi-sion a rule that the principles of natural justice should beapplied. This implication will be made on the basis thatParliament is not to be presumed to take away parties 5rights without giving them an opportunity of being heardin their interest. In other words, Parliament is not to bepresumed to act unfairly. ”
In Duraiappa v. Fernando, 69 N.L.R. 265, the Privy Councilpredicated three matters to be borne in mind when consideringwhether an implied duty to observe the audi alteram partemrule should be inferred : first, the nature of the complainant’s
SHAKVAXAXIiA, J.—Auiaiadasa. v. Land Refott Cot,(Missiono27
interest ; secondly, the conditions under which the administrativeauthority is entitled to encroach on those interests (e.g., wheremisconduct is proved) ; and thirdly, the severity of the sanctionthat it can impose. It stated that it is only upon a shnsideration ofall these matters that the question of the application of the prin-ciple can be determined. In Board of Trustees, Maradona Mosquev. Mahmud, 68 N.L.R. 217, the Privy Council interfered with thedecision of the Minister of Education to implement the policyof taking over schools which were not being maintained pro-perly and set aside the judgment of the Supreme Court whichheld that the act in question was purely ministerial. It held thatthe Minister, in making an order in terms of section 11 of theAssisted Schools and Training Colleges Act. No. 8 of 1961, thatthe school (Zahira College. Colombo) of which the appellantswere the proprietors should cease to be unaided, that it shouldbe deemed an A.ssisted School and that the Director of Educationshould be its Manager, was acting in a judicial or quasi-judicialcapacity and was under a duty to observe the rules of naturaljustice in satisfying himself whether there had been a contra-vention of the provisions of the statute.
In the case of Shnreef v. Commissioner for Registration ofIndian and Pakistani Residents, 67 N.L.R. 433 P.C., the facts wereas follows : The appellant made application for registration asa citizen of Ceylon under the provisions of the Indian' andPakistani Residents (Citizenship) Act, No. 3 of 1949. He producedhis school certificate to prove the fact of his uninterruptedresidence in Ceylon between 1936 and 1943. The Deputy Com-missioner who held the inquiry in terms of section 10 of theAct refused application on the ground that the schoolcertificate produced by the appellant was not genuine. . Thefinding of the Deputy Commissioner was based chiefly on areport of an investigating officer and upon a letter written byan Inspector of Schools on the basis of a report made to.theInspector by some person. These reports were not disclosed tothe appellant at the inquiry. During the whole conduct of theinquiry, the appellant was never told the details of the case
62«BHAKVANdaUA, J.—Ainarada&u v. Li na ti-jona Commiauut.
against the genuineness of the school certificate and he wasnever given a.proper opportunity of answering that case. Inquashing the .order of the Deputy Commissioner, the PrivyCouncil observftl that:
“ When conducting the inquiry under sections 10, 13 or 14,he (the Deputy Commissioner) is acting in a semi-judicialcapacity. In this capacity he is bound to observe the
principles of natural justicethat the party should
be given fair notice of the case made against him and thathe should be given adequate opportunity at the proper timeto meet the case against him. ”
The relevant provisions of section 13 of the Land Reform Law(herein referred to as the Law) read as follows : —
13. (1) Where on or May 29, 1971, any person whoowned agricultural land in excess of the ceilling hasalienated any agricultural land to any other person, suchalienor shall, within three months of the date of commence-ment of this Law, report such alienation to the Commissionin the prescribed form.
Where the Commission finds that any alienation ofagricultural land on or after May 29, 1971, has been calculatedto defeat the purposes of this Lazo, the Commission may byorder made under its hand declare that such alienation isnull and void. Every such order shall be sent by registeredpost to the alienor and alienee of the agricultural land towhich that order relates.
Any alienor or alinee aggrieved by an order madeunder section 2 may, witliin three weeks of the receipt of suchorder, appeal to the Minister in the prescribed form, andthe Minister may on such appeal make such order as theMinister may deem fit in the circumstances of the case.
Where no appeal has been preferred under sub-section (3) within the time allowed therefor against theorder made under sub-scection 2, such order, or where an
529
sHAKYAK&NDA, J.—Amaradasa v. Lend Bjerm Ccn:v:issio>.
appeal has been preferred, the order, as amended, variedor modified on appeal, shall be published in the Gazette.The order so published shall be final and conclusive and shallnot be called in question in any Court, whether by way ofwrit or otherwise.
Where the Commission under the provisions of sub-section 2 declares that any alienation is null and void, noright, title or interest shall be deemed to have passed tothe alienee under the instrument of such alienation andsuch agricultural land shall vest in the Commission and thealienee shall be deemed to hold such land under a statutorylease from the Commission-
The Commission referred to herein is the Land Reform Com-mission which is a corporate body constituted in terms of section43 of the Law. Section 13(2) thus vests the Commission withthe power of making an order -ieclaring certain alienations nulland void. Section 13(6) states the consequences of suchdeclaration. The order that is made by the Commission, subjectto appeal, divests the alienee of his rights to that land. Thecase falls within the principle of Cooper v, Wandsworth Boardof Works, 14 C.B.N.S. 180, where it was held that no man is tobe deprived of his property without having an opportunity ofbeing heard. According to the criteria laid down by the PrivyCouncil in Duraiappa v. Fernando, the determination in issue hasall the ingredients and features of a quasi-judicial decision.
The jurisdictional fact that vests the Commission with thepower to make the order under section 13 (2) of the Law is thefinding that “ any alienation of agricultural land on or after May29, 1971, had been calculated to defeat the purposes of the Law. ”The purposes of this Law, as set out in section 2, are—
to ensure that no person shall own agricultural land in
excess of the ceiling ; and•
to take over agricultural land owned by any person in
excess of the ceiling.
530SHAKYAXANI|At J.—Amuradata v. Land Kejcn,i Lcvuniaaion
The Land Reform Law, No. 1 of 1972, was certified on 26thAugust, 1972, and came into operation on 26th August, 1972. Itwas gazetted as a*Bill on 28th June, 1972.
••
The word ‘ calculated ’ in such contexst normally means4 designed ’ or ‘intended'. But, the prima facie meaning cam bedisplaced by the context in which the word is used and thesubject matter. It can be well appreciated that the words‘ calculated to deceive' found in section 11 of the English TradeMarks Act should have been construed as ‘‘ likely or resonablylikely to deceive or mislead ” the trade or public – see Lord Cavein Macdowell v. Standard Oil Company, (1927) A.C. 632. Thewords of a statute are to be understood in the sense in whichthey best harmonise with the subject of the enactment and theobject which the Legislature had in view. What must be ascer-tained is their meaning in the section of the statute. The question
arises whether the words “any alienation has been
calculated to defeat the purposes of the Law ” appearing insection 13(2) of the Law should be construed to mean “anyalienation has been intended or designed to defeat the purposesof the Law ”, or “ any alienation was likely to defeat the purposesof the Law ”. It is to be noted that the Land Reform Law doesnot invalidate, zpso facto, all alienations made on or after May29, 1971, by a person owning any extent in excess of the ceiling.It seeks to avoid only alienation of a certain character. If thelikely result of such alienation made after May 29, 1971, on thatperson’s proprietory land structure is the test, as would be thecase if the word ‘ calculated ’ is to be read in the sense of ‘ likelythen all alienations made after that date by such persons willbe struck, as every alienation by such person will tend to defeatthe purposes of the Law. The Legislature never intended such aconstruction or result. In my view, the Legislature did notintend to guillotine honest or bona fide alienations. It intendedto avoid alienations which were executed in anticipation of theLaw, with a View to forestalling the provisions of that Law byreducing the extent of land that would be taken over as beingin excess of the ceiling fixed by that Law. Moreover, the words
SHAR VAX AXD A, J.—Amuradaaa v. Land Jtt/orrj Commission531
“ as to be calculated ”, which were the words construed in Turnerv. Shearer, (1972) 1 W.L.R. 1387, and Regina v. Dainson, (1972)
1 W.L.R. 1540, reach out for the effect, divorced from any meansrea. But, here, the words has been calculated ”„ki the context,refer to past transactions and underline the animus behind theimpugned act. In my view, what the Legislature sought to strikedown was the alienation which was done with a view to defeat-ing the proposed legislation. Before the Commission decides tomake an order under section 13(2), it has come to an objectivedetermination that the relevant alienation was designed todefeat the purposes of the Law.
The Commission will have to have material other than themere conveyances to arrive at the finding that the alienationwas motivated by the selfish desire to foil the Law. The animusof the executants will have to be probed into. It was then obliga-tory on the Commission to give the parties a fair opportunity tocorrect or controvert any incriminating circumstance or materialwhich tended or pointed to that conclusion. The parties may beable to explain away any suspicious featue, or to demonstratethe falsity of the premises or the unsustainability of the finding.It is not disputed that the Commission did not disclose its handto the parties or give to the parties an opportunity of explana-tion and possibly the correction of misapprehension. Thus, therewas a total breach of the principles of natural justice.
What is the effect of such breach ? In General Medical Councilv. Spackman, (1943) A.C. 627 at 644 and 5, Loard Wright said :
“ If the principles of natural justice are violated in respectof any decision, it is indeed immaterial whether the samedecision would have been arrived at in the absence of thedeparture from the essential principles of justice. Thedecision must be declared to be no decision. ”
In Annamunthodo v. Oilfields Workers’ Trade Union (1961)A.C. 945, the Privy Council held that an order of expulsion ofa member of a Trade Union was invalid for want of the obser-vance of the rules of natural justice.
332SHAKY AXJ|>DA, J.—Amarciiasa r. U i <1 Reform Commission?
Breach of natural justice goes to jurisdiction and renders thedecision or determination void, not voidable. The omission,like the disregard of any other mandatory procedural require-ment, denudeS»the action of its statutory authority and makesit ultra vires and a nullity. The leading case of Ridge v. Baldwin,(1964) A.C. 40, settled this point. The majority of the LawLords emphasised that a decision given without regard to theprinciples of natural justice is void and that a body with apower to decide cannot lawfully proceed to make a decisionuntil it has afforded to the person affected a proper opportunityto state his case. In the view of Their Lordships, failure to givea hearing to the party affected by its decision results in thetribunal acting without jurisdiction. As Lord Wilberforce saidin Anisminic v. Foreign Compensation Commission,(1969)
1 A E.R. 208 at 244 :
“ There are certain fundamental assumptions which,without explicit re-statement in every case, necessarilyunderline the remission of the power to decide, such as therequirement that a decision must be made in accordancewith the principles of natural justice and good faith. "
Lord Pearce, at page 233, observed :
“Lack of jurisdiction may arise in various ways
or while engaged in a proper inquiry, the tribunal maydepart from the rules of natural justice. Thereby it wouldstep outside its jurisdiction. It would turn its inquiry intosomething not directed by Parliament and fail to make theinquiry which Parliament did direct. ”
Their Lordships, in the Anisminic case, re-emphasised thatif a tribunal had failed in the course of the inquiry to complywith the requirements of natural justice, its decision is anullity. Such decision is however deemed to be valid, at leastas against third parties, until it is successfully impeached bythe person aggrieved. “ If the decision is challenged by theperson aggrieved on the grounds that the principle has notbeen obeyed, he is entitled to claim that as against him, it isvoid ab ifnitio and has never been of any effect. ” Per LordUpjohn in Duraiappa v. Fernando, 69 N.L.R. 265 at 274.
SHAKYAXAXDA, J.— -Auuirudaiia v. Land jge/byi Cci/unissio/i, 033
Section 13 (3) provides for an appeal by an alienor or alienee,who is aggrieved by an order made under section 13 (2), to theMinister in the prescribed form within 3 weeks of the receiptof such order; and on such appeal, the Minister may makesuch order as he may deem fit in the circumstances. Section13(5) provides that where no appeal has been preferred under
sub-section (3), such order, or where an appeal has
been preferred, the order as amended, varied, or modified onappeal, shall be published in the Gazette and that such orderso published shall be final and conclusive.
It was the submission of the Additional Solicitor-Generalthat in the scheme of the Law, the order made under section13 (2) by the Commission is only an interim order and that itbecame final and acquired legal force in terms of section 13(5)only if the aggrieved party did not appeal to the Minister, or.if the appeal is affirmed, amended, varied, or modified by theMinister. He urged that it was sufficient if an opportunity ofbeing heard was afforded at the stage of appeal by the Ministerjnd that it was not necessary for the Land Commission, priorto making its order under section 13(2) to hear the parties.He referred us to the judgments of the House of Lords inWiseman v. Bomeman. (1969) 3 A.E.R. 275, and Pearlberg v.Varty, (1972) 2 A.E.R. 6, in support of his contention.
In Wiseman v. Bomeman, (1969) 3 A.E.R. 275, the tribunalhad, under section 28 (5) (b) of the English Finance Act 1960,merely to determine on the material before it, whether therewas a prima facie case for proceeding to take steps for taxassessment. This was a most limited decision. There was noquestion of the tribunal binding the taxpayer. In this contextLord Reid, very properly, observed :
“ It is, I think, not entirely irrelevant to have in mindthat it is very unsual for there to be a judicial determina-tion of the question whether there is a prima facie case.Every public officer who has to decide whether to prosecuteor raise proceedings ought first to decide whether there is aprima facie case, but no one supposes that justice requires
534SHAKVAN-^XDA, J.—Amaradctsa v. Land Reform Commiseicnt
that he should first seek the comments of the accused or thedefendant .on the material before him. So, there is nothinginherently.unjust in reaching such a decision in the absenceof the othlsr party. ”
•
.In the course of their judgments, Lord Guest, Lord Donovanand Lord Wilberforce however expressed the view that thereis no difference in principle, as far as observance of the rulesof natural justice is concerned, between decisions which arefinal and those which are not. “The requirements of naturaljustice must depend on the circumstances of the case, the natureof the inquiry, the rules under which the tribunal is acting, thesubject matter that is being dealt with and so forth. ” (seeTucker L. J. in Russel v. Duke of Norfolk, (1949) 1 A.E.R. 109at 118.)
In Pearlberg v. Varty, (1972) 2 A.E.R. 6, the Commissioner ofTaxes granted leave under section 6(1) of the Income TaxManagement Act, 1964, to the raising of assessments on the tax-payer for certain years. This section provided that such assess-ments “ may only be made with the leave of a General or SpecialCommissioner given on being satisfied by an Inspector that thereare reasonable grounds for believing that tax has, or may havebeen lost to the Crown owing to the fraud or wilful default orneglect of any person ”. The taxpayer claimed that those assess -ments were invalid on the ground that the Commissioner hadacted ultra vires in granting leave without giving him an oppor-tunity to appear and be heard. The House of Lords rejected thecontention of the taxpayer on the ground that the function ofthe Commissioner in granting leave under section 6 (1) wasadministrative and not judicial and that the Commissioner’sdecision to give leave did not make any final determination ofthe rights of the taxpayer. It was held that the Commissioner’sdecision was in the class of purely administrative preliminarydecisions, taking away no rights, and in respect of which neitherreason nqr justice requires the persons concerned to be heardbefore the decision is made. It merely enabled the Inspector toraise an assessment. The determination of the rights and liabili-ties, if there is any dispute about them, came later when the
SHEAR V AN AJND A, J.—Amaradasa v. Land- Fyjotm Commission535
person who has been assessed for tax appeals against the assess-ment and his appeal is heard in a judicial pr quasi-judicialproceeding..
••
In line with these judgments of .the House of Lords is thejudgment of the Privy Council in the local case of Jayawardenev. Silva, 73 N.L.R. 289 :
Under the terms of section 130 of the Customs Ordinance, theCollector of Customs is given authority, where a person is con-cerned in exporting out of Ceylon any goods, the exportationof which is restricted, contrary to such restrictions, to imposea forfeiture of treble the value of the goods, or a penalty ofRs. 1,000 at his election. By the terms of section 145, all penaltiesand forfeitures which are incurred and sued for are recoverablein the name of the Attorney-General in the District Court. Itwas argued that the Collector was performing a judicial orquasi-judicial function in electing to impose a forfeiture ratherthan a penalty. The Privy Council endorsed the view of theSupreme Court that the proper test for deciding whether thefunction performed by a tribunal, such as the Collector, wasquasi-judicial was framed in the case of Duraiappa v. Fernando(supra) and agreed with the Supreme Court in rejecting thecontention that the Collector was, under section 130, performinga quasi-judicial fiinction. On this issue, Lord Guest, giving thejudgment of the Privy Council, stated as follows :
“ The Collector had the two functions to perform undersection 130. In the first place he had to decide as a preli-minary matter whether an offence was committed and, ifso, whether the appellant was concerned in it. It is agreedthat this was a preliminary decision which did not bindthe appellant. The issue would be tried when and if theAttorney-General took proceedings under section 145. Therights of the appellant were not in any way affected hy thisdecision. Having so decided, so to speak, that a £rima faciecase existed under section 130, the ultimate decision beingleft to the District Court, the Collector then had to electbetween imposing forfeiture of treble the value of the goods
SHAKVANAlvD.|, J.—Amaradasa r. Land Reform C cinmissicn
53*;
or a penalty of Rs. 1,000. When the Collector came to per-form the secpnd function of election, this was no doubt animportant matter, but a question purely within his discret-ion What he did was not to fix the extent of the
appellant’s liability, but* to fix a ceiling beyond which theDistrict Court, if it gave judgment for the Attorney-General,
could not go The only effect which can be said to
flow from the Collector’s right of election is that he is givenpower to fix Rs. 1,000, or some greater sum involving treblethe value of the goods and that it would be an advantageto the subject if he could persuade the Collector at thatstage to fix the lower sum. But this is purely a matter ofconvenience to the subject and his rights are adequatelypreserved. Their Lordships do not consider that at this stagethe Collector had made any determination or decision whichcould be described as quasi-judicial. ”
“The Collector makes no adjudication when he elects toseize goods as forfeit. Similarly there is no adjudication onthe facts by the Collector when he makes his election undersection 130 and the only determination having the legaleffect of adjudication is that which the Court will make inan action brought by the Attorney-General. There is thusno sanction attached to the Collector’s election on the natureof any compulsion to make payment. ” (see the judgmentof the Supreme Court in Jayawardene v. Silva, 72 N.L.R.25 at 33).
The nature of a report made by a Commissioner appointedunder the Commissioners of Inquiry Act came up for considera-tion by this Court in Fernando v. Jayaratne, 78 N.L.R. 123 andit was held that since the Commissioner had no legal authorityto determine question affecting the rights of individuals, he wasnot exercising judicial or quasi-judicial functions. In the courseof my judgment in that case, I stated that;
“ The only power that the Commissioner has is to inquireand make a report and embody therein his recommendation.He has no power of adjudication in the sense of passing anorder which can be enforced proprio vigore, nor does hemake a judicial decision. The report of the respondent hasno binding force ; it is not a step in consequence of whichlegally enforceable rights may be created or extinguished. ”
SKA K VAN AND A, •!.—A.nufatiaoa v. Lm,d Sefojn CciKtnission £-37
In my view, the determination made by the Land ReformCommission under section 13 (2) differs fundamentally in respectof the sanction attaching to it, from the preliminary finding of' a prima jacie case ” in Wiseman v. Bomeman ,»T)r the “ grant-ing of leave” to make an assessment an Pearlberg v. Varty ; orthe investigatory power of the Commissioner of Inquires inFernando v. Jayaratne ; or the order of forfeitui'e made by theCollector in Jayawardene v. Silva. The decisions referred to inthese cases had no binding effect, nor any impact on the inter-ests of the subject. On the other hand, the Commission’s findingforms an integral and necessary part of a process that culmi-nates in an action adverse to the subject. It cannot be equatedto a provicional decision which does not take effect until a pres-cribed period for lodging objections has expired. A provisionaldecision is a decision conditioned to become final on the otherparty failing to show satisfactory cause to the contrary. Theopportunity for hearing in such cases is afforded by the opportu-nity for lodging objections. An order nisi in proceedings ina trial Court is an example of a provisional order. No decisionhas been made. The final order in such proceedings is howevernot in the nature of an appeal. An appeal contemplates twodefinitive orders. The original order is binding until it is super-seded in appeal. The right of appeal does not militate againstthe existence of a right to a precedent hearing, and if that isdenied, to have the decision declared null and void. One of thecharacteristic attributes of a judicial proceeding is that it ter-minates in a decision that is binding and conclusive until it isannualled in appeal. It is because his interest is prejudlcallyaffected by the declaration made by the Commission that thealienor or alienee is granted a right of appeal, and being ag-grieved in terms of section 13(3), he appeals to the Minister.The declaration operates to annual the alienation, unless it isreversed or modified by the Minister on appeal. The declarationdoes not require the adoption or confirmation by another bodyfor it to acquire legal force. It is binding on the parties, unlessit is rescinded or modified by the Minister on appeal. In the caseof Rex v. Electricity Commissioners, (1924) 1 K.B. 171, thescheme that the Commissioners were empowered to make could
53SSHAKY'DA. .1.—Atnarctiuto r. Lotiil fitji .i, Ccir.mi&iiLn
not take effect until confirmed by the Minister of Transport andapproved by the Houses of Parliament. In the process, thesebodies could alter or even reject it. It was argued by theAttorney-General that the Commissioners came to no decisionat all and that they acted as advisors and merely recommendedan order embodying a scheme, and until it was approved by thebodies, it decided nothing and did not affect the rights .ofsubject. In rejecting the argument, Atkin, L.J. said :
“ In the provision that the final decision of the Commis-sioners is not to be operative until it has been approved bythe two Houses of Parliament, I find nothing inconsistentwith the view that in arriving at the decision of Commis-sioners themselves are to act judicially I know
no authority which compels me to hold that a proceedingcannot be a judicial proceeding subject to prohibition orcertiorari because it is subject to confirmation or approvaleven where the approval has to be that of both Houses ofParliament. ”
The Privy Council, in Estate and Trust Agencies Ltd. v. Singa-pore Improvement Trust, (1937) A.C. 898 at 917, quoted withapproval Atkin, L.J’s statement of the law that “ a proceedingis none the less a judicial subject to prohibition or certioraribecause it is subject to confirmation or approval by some otherauthority ”. A fortiori, the proceeding before the Commission isno less a judicial proceeding because, on an appeal to the Minis-ter in terms of the law, it may be reversed or modified. It isvested by law with more than a provisional status and hence aduty to act judicially arises in the conduct of it, and an antece-dent hearing should be granted to the party who will be affectedby it.
Section 13 (3) gives the parties a right of appeal to the Minis-ter in the prescribed form and the Minister is empowered tomake such order as the Minister may deem fit. Though thepower so vested in the Minister is of the widest amplitude, yetit is an appellate jurisdiction that the Minister exercises andnot an original jurisdiction. In terms of this section, the peti-tioners appealed to the Minister, but the Minister affirmed the
.SHARVANAXDA, J—Atnaradasa v. Land RefoAn CommissionH’iU
order of the Land Reform Commission, stating that he “ sawno reason to interfere with the said order of the Land ReformCommission”. In the petition of appeal, the petitioners did notspecifically adduce, as a ground of appeal, the fact that theywere not heard by the Commission. Apart from the chance ofstating their grounds of grievance in their petition of appeal,they were not provided with any other opportunity of support-ing their appeal with oral or written submissions. The petitionerscomplain that even in appeal they were denied the right ofhearing.
In Local Government Board v. Arlidge, (1915) A.C. 120, LordHaldane stated :
“ When the duty of deciding an appeal is imposed, thosewhose duty it is to decide it must act judicially. They mustdeal with the question referred to them without bias, andthey must give to each of the parties an opportunity of ade-quately presenting the case made. The decision must become to in the spirit and with the sense of responsibilityof a tribunal whose duty is to mete out justice. But it doesnot follow that the procedure of every such tribunal must
be the sameThe Board was not bound (on an
appeal) to hear the respondent orally, provided it gave himthe opportunity (of stating his case in writing). ”
It is the duty of the Minister who has to review the finding ofthe Commission to act judicially. As such, it is incumbent uponhim, before coming to a decision, to give a reasonable opportu-nity to the appellants, whose rights were in issue, to representor state their case.
Section 22 of the Interpretation Ordinance, as amended byAct No. 18 of 1972, specifies the grounds on which this Courtmay issue a writ of certiorari quashing a statutory authority’sorder :
that it has acted, ex facie, without jurisdiction, and
that it has failed to observe the principles of natural
justice.
j-to
SHARVAXA2|DA, J.—Ahiaradasu c. Lmui Reform Commission
According to Lord Hodson, in Ridge v. Buldunn, (1963)2 A.E.R. 66 at 114, the three features of natural justice are :
the right to be heard by an unbiased tribunal ;
the riglit to have jiotice of charges of misconduct; and
the right to be heard in answer to those charges.
" Natural justice does not invariably require that the parties beentitled to an oral hearing. It will sometimes be fair to determinean issue on the basis of written representations ; but the partiesconcerned must still be appraised of and given a proper oppor-tunity of replying to any allegations against them or otherrelevant evidential material. ”—Halsbury’s Laws of England(4th Edition) Vol. 1 at p. 93.
Natural justice generally requires that persons liable to bedirectly affected by proposed decisions or proceedings be givensufficient notice of what is proposed, so that they may be in aposition—
to make representations on their own behalf ; or
to appear at a hearing or inquiry (if one is to be
held); and
effectively to prepare their own case and to answer
the case (if any) they have to meet.
(vide S. A. de Smith on Judicial Review of Adminis-trative Action (3rd Edition) at p. 172.)
Although one who is entitled to the protection of the rule of• audi alteram partem ’ is prima facie entitled to put his caseorally, yet, in a number of contests, the rule will be satisfied byan opportunity to make written representations to the decidingbody. If the rule is to have reality, the party must know ingood time the case he has to meet. In order to protect hisinterests, he must be enable to controvert, correct or commenton material that may be relevant to the decision. Notice is thefirst limb o^f a proper hearing. The Land Reform Law does notcreate any presumption against alienations of agricultural landeffected on or after May 29, 1971. By the mere execution ofany such alienation, neither the alienor nor the alienee is placed
■SHAICVAis A> DA, J.- Ahiarudaea v. LoiuiCcir.intvxici> 541
on the defensive. They will have to be confronted with otherevidence or telltale. It is to be borne in mind that the partydirectly affected by the declaration made by the Commissionunder section 13 (2) is the alienee. On such declaration, section13 (6) makes the alienation null and* void and directs that notitle or interest shall be deemed to pass to the alienee under theinstrument of alienation. The finding under section 13(2) musthave reference to the alienee’s object of acquisition also. Thequestion of his participation in the calculation to defeat theLaw is relevant to deprive him of the property acquired by him.His acquisition also should be colourable. If after investigation,the Commission forms a tentative opinion on the materialavailable to it that the alienation comes within section 13 (2).there is a breach of natural justice if the Commission does notdisclose the particulars of the grounds on which its opinion wasbased and invite the comment or explanation of the party poten-tially prejudiced by such conclusion. On the facts before theCourt, the Commission does not appear to have observed thecanons of natural justice and fairness. By its cyclostyled letterdated 23.5.74, the Commission communicated its order withoutagain, disclosing its reasons for its findings that the alienationcame within the mischief envisaged in section 13(2). The partyaggrieved with the order is given a right of appeal by section13(3) to the Minister in the prescribed form. Cage 9 of theprescribed form requires the matters urged in support of tneappeal to be sent out by the appellant. In this context, the ques-tion whether reasons should be given for the adverse findingby the Commission assumes significance. There is no generalrule that reasons should be given for decisions by an adminis-trative body, but postulates of natural justice may warrant adeparture. A person prejudicially affected by a decision mustbe sufficiently notified of the case against him to enable him toexercise meaningfully his right of appeal. How can the appel-lant be expected to set out in his petition of appeal all mattersto be urged in support of the appeal if he is not notified of thegrounds of the adverse decision by the Commission ? He shouldnot be driven to surmise. It is said that natural justice is satisfiedif the Minister decides the appeal on the basis of the written
542SHABVAKA^DA, J.—Atnaradasa v. Land Reform Commission
representations contained in the petition of appeal. For thisproposition to be tenable, principles of fairness require that theCommission should at least apprise the parties of the reasons forits decision tft enable the party affected by its order tosubstantiate his* appeal.
The observation of Lord Upjohn in Padfield v. Minister ofAgriculture, (1968) 1 A.E.R. 694 at 719, has relevance to thiscontext:
‘‘ If a tribunal does not give reasons for its decision, it maybe, if circumstances warrant it, that a Court may be atliberty to come to the conclusion that it had no good reasonfor reaching that conclusion and directing a prerogativeorder to issue accordingly. ”
We were supplied copies of the various prescribed forms underthe Law. In respect of the report referred to in section 13 (1), therelevant forms are Form 3 and Form 3 : 1. Cage 22 of that formcontains the questionnaire :Why alienation should not be
declared null and void ? This question proceeds on the hypothesisthat the alienation is presumed to be null and void and caststhe burden on the alienor to rebut the presumption. In my view,the prescribed form (Form 3 : 1) is ultra vires in respect of cage22 and is not warranted by the provisions of the Law. TheMinister could not. in the exercise of his regulation-makingpower under section 62, have prescribed a form which is not inconformity with the provisions of the Law. On this view of thematter, it cannot be said that the alienor had an opportunity ofgiving his reasons in advance why the alienation should not bedeclared null and void. The Law did not require him to displaceany such presumption. It is said that the Minister was entitledto decide the appeal on the written submissions incorporatedin the petition of appeal and that the demands of natural justicehad been satisfied by this opportunity to make written sub-missions ip the absence of any request for oral hearing. Therewould have been some substance in this contention had the orderof the Commission fully set out the grounds of the decision
SHABVAJsANDA, J.—Ainaradana v. Land J.V/orji Commission543
appealed from, so that the appeallant would have been in posses-sion of all the arguments against him when the time came forhim to formulate the matters "to be urged by hiih in support ofthe appeal. In my view, in the circumstances,‘insofar as theappellate hearing by the Minister consisted only of the consider-ration of the petitioners’ petition of appeal and no other hearingwas afforded to the parties it was not an adequate hearing satis-fying the requirements of natural justice. But, even on theassumption that the appellate hearing by the Minister was suffi-cient in the circumstances, Mr. Jayawardene contended that adeficiency of natural justice in proceedings before the originaltribunal cannot be cured by a sufficiency of natural justice beforethe appellate tribunal and he referred us to the judgment ofMegarry, J. in Leary v. N. U., (1970) 2 A.E.R. 713, 718—20. Inthat case, after consideration of the authorities, Megarry. .T. heldthat a failure of natural justice in the trial body cannotbe cured by a sufficiency of natual justice in an appellate body.Professor S. A. de Smith, in his article on Administrative I,awappearing in Halsbury’s Laws of England (4th Edition) at page97, paragraph 77, summarises the legal position thus :
*• The effect of a failure to accord an adequate hearing oropportunity to be heard prior to a decision may be repairedby rescission or suspension of the original decision followedby a full and fair hearing or re-hearing ; but, if this sub-sequent hearing is conducted by an appellate body, the deci-sion' may still be open to challenge on the ground that theperson aggrieved has been denied a right to an original hear-ing and then to an appellate hearing. ”
In the exercise of their powers under section 13, both theCommission and the Minister are under a duty to act judiciallyand each has to observe the rule of audi alteram partem and res-pectively accord an original hearing and appellate hearing beforemaking its determination, and the parties are entitled to a rea-sonable hearing at both levels. The provision of only one hearing
■">448HA1<,'AXA^ J)A. -i.—Aim, dung v.Jirjorhi Ceuinijuion
does not satisfy the requirements of law. In my view, as statedearlier, the parties were not given any opportunity of being heard'by the Commission and they did not have an adequate hearingby the Minister4^ appeal. But, even if one assumes that the par-ties were given a sufficient hearing in law by the Minster, thatwill not cure the fundamental infirmity in the Commission’sdecision. The determination of the Commission is vitiated byits failure to act in accordance with the norms of natural justiceand, accordingly, is destitute of legal effect. Notwithstandingthat the decision of the Minister is made final and conclusive bysection 13 (5), that decision cannot give validity to a determinationwhich is a nullity—Ridge v. Baldwin (supra). If it was, in law,a nullity, the fact that the Minister affirmed it in appeal cannotgive it any sanction in law. One cannot appeal against a nullity.There was no decision in law to appeal against. The Minister’sdecision gets vitiated by the vice in the original decision. Asuper-structure cannot be erected on a nullity—it has to fall asthere is no foundation.
By appealing to the Minisier. the petitioners are in no wayprevented from now asserting the nullity of the respondents'decision. There is no question of waiver. By appealing withinthe statutory framework, the petitioners were not affirming thevalidity of the decision appealed against. Indeed, they were dis-affirming it–Ridge v. Baldwin, (1964) A.C. 40; Annamuv.-thodo v. Oilfield Workers’ Trade Union (1961) A.C. 945. Sothat even if the point had not been canvassed before the Ministerand the order of commission was affirmed by the Minister inappeal anu rendered final and conclusive by publication in theGazette, the petitioners are entitled to challenge the decision onthe ground of breach of principles of natural justice in a prero-gative writ proceedings—section 22 of the Interpretation Ordi-nance as amended by Act 18 of 1972. It is of the utmost importanceto uphold the right and indeed the duty of the Courts to ensurethat powers are not exercised in breach of principles of justicewhen the exercise of such powers impinges on the basic rightsof citizens.
545
VYTIIIALIA'GA3I, J.—FentatuJo v. Republic cj Sri Fanka
For the reasons set out above, the applications of the peti-tioners succeed. The petitioners are entitled to the issue of writsof certiorari quashing the orders made by the ’respondents inthe exercise of their powers under section 13 of tbfe Land ReformLaw. The said orders are declared nujl and void. As the matter•was argued as a test case, I allow the applications, but makeno order as to costs
Applications allowed.