110-NLR-NLR-V-70-H.-R.-PODI-APPUHAMY-Appellant-and-THE-GOVERNMENT-AGENT-KEGALLA-Respondent.pdf
544
H. N. G. FERNANDO, S.P.J.—The Queen v. Adambawa
9r
Present:Alles, J.
H. R. PODI APPUHAMY, Appellant, and THEGOVERNMENT AGENT, KEGALLA, Respondent
S. C. 635jl967—M. C. Kegalla, 59559
Heavy Oil Motor Vehicles Taxation Ordinance (Cap. 249), as amended by s. 22 ofFinance (No. 2) Act No. 2 of 1963—Section 2 (7)—Order made by Minister-Requirement that it should be laid before House of Representatives within aspecified period—Effect of non-compliance—Control of Prices Act, s. 4 (3)—Holidays Act No. 17 of 1965, ss. 11 (4), 12 (2)—Ceylon Tourist Hoard Act of1966, s. 48—Interpretation of statutes—Delegated legislation—Point of timeat which it becomes valid.
An Order made by the Minister under section 2 of the Heavy Oil MotorVehicles Taxation Ordinance, as amended by section 22 of the Finance (No. 2)Act No. 2 of 1963, is valid even though there is no strict compliance with sub-section 7 (6) of that Section by its being laid before the House of Representativeson a date subsequent to the termination of the specified period. The provisionsof section 2 (7) (b) are not mandatory. The Order, therefore, in such a case,can be utilised for the imposition of tax at the altered rate.
Appeal from a judgment of the Magistrate’s Court, Kegalla.
M.M. Kumarakulasingham, with C. Ganesh, for the defendant-appellant.
N.Tittauella, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
November 11, 1967. Alles, J.—
In this appeal Counsel has questioned the validity of an Order made bythe Minister under the Heavy Oil Motor Vehicles Taxation Ordinance(Cap. 249), as amended by Section 22 of the Finance (No. 2) Act No. 2of 1963, under which the Government Agent, Kegalle, filed a certificatein the Magistrate’s Court seeking to recover from the appellant a s»mof Rs. J?,948 as tax for the period 1.11.64 to 30.9.65.
ALLES, J.—Podi Appuhamy.v. Go'&rnment Agent, KegaUa
545
Section 22 of the Finance Act introduced a new sub-section to section 2of the Heavy Oil Motor Vehicles Taxation Ordinance and reads asfollows :—
“ (7) (a) The rates prescribed in the First Schedule to this Ordinancemay, from time to time, be varied by the Minister of Finance by Orderpublished in the Gazette.
(6) Every Order made under paragraph (a) of this sub-section shallcome into force on the date of its publication in the Gazette or on suchlater date as may be specified in the Order, and shall be brought beforethe House of Representatives within a period of one month from thedate of the publication of such Order in the Gazette, or, if no meeting ofthe House of Representatives is held within such period, at the firstmeeting of that House held after the expiry of such period, by a motionthat such Order shall be approved. There shall be set out in aSchedule to any such motion the text of the Order to which themotion refers.
(c) Any Order made under paragraph (a) of this sub-section whichthe House of Representatives refuses to approve shall, with effectfrom the date of such refusal, be deemed to be revoked but withoutprejudice to the validity of anything done thereunder. Notification ofthe date on which any such Order is deemed to be revoked shall bepublished in the Gazette.”
When this same point was raised at the trial, the learned Magistratetook the view that sub-section (7) (c) validated the Order but in myopinion he was in error in so holding because there was never a refusalof approval by the House as contemplated by this sub-section.
The Order made under sub-section (7) (a) has been produced and markedP2 and was published in the Gazette of 29.4.63 prescribing the new ratesto be effective from 1.5.63. According to the evidence of the ClerkAssistant to the House of Representatives the first meeting of the Housewithin a period of one month from the date of the publication of P2 wason 17.7.63, on which date, according to (7) (6), the Order should havebeen brought before the House, but the Order was in fact brought up onlyat the fifth session which took place on 20.8.64. Counsel thereforesubmits that in view of the non-compliance with the provisions of sub-section (7) (6), P2 was not valid and therefore could not be utilised forthe imposition of any tax. It was Counsel’s submission that the require-ment of bringing the Order before the House within the specified periodwas mandatory and he sought support for his view from a passage fromDe Smith on Judicial Review of Administrative Action where the learnedauthor was dealing with the subject of delegated legislation and inparticular with the Statutory Instruments Act of 1946. That Actprovided in section 2(1) that when a statutory instrument was made itshall be sent to the Queen’s Printer, numbered and printed and sold andin section 4 (1) that where any instrument was required to be laidbefore Parliament after being made, a copy must be laid befofe bothHouses and shall be so laid before the instrument comes into
546
AliLES, J.—Podi Appttham^ v. Government Agent, Kegalla
operation. De Smith was of the view that the rules governingprinting and issue are no more than directory. In regard to layingbefore Parliament he states as follows :—
" If, however, the instrument is required to bo laid before Parlia-ment, it is arguable that the instrument acquires legal validity onlywhen it is so laid. It is true that laying requirements have generallybeen regarded as directory both by the courts and by learned commen-tators ; but the wording of the 1946 Act is very strong and there is arecent dictum to the effect that these words are to be read in theirliteral sense ; moreover, the duty to lay an instrument before Parlia-ment, especially when it is accompanied by a provision for theannulment or affirmation of the instrument by resolution, is aconstitutional safeguard of some value, and an omission to carry out thisduty ought not to be lightly regarded.”
Counsel submits on a parity of reasoning that in the instant case therequirement in sub-section (7) (6) is mandatory particularly since theword * shall ’ is used in the sub-section.
There is no provision of law in Ceylon corresponding to the StatutoryInstruments Act and in order to ascertain whether the particular pieceof subordinate legislation has the force of law at the time of its publi-cation in the Gazette or after it has been approved of by Parliament, onemust examine the terms of the Statute under which the legislation ismade and the language used. In Ceylon (and it must be so in Englandas well—vide the proviso to section 4 (1) of the Statutory InstrumentsAct) all subordinate legislation need not pass the scrutiny of Parliamentbefore it is declared to have the force of law and Parliament can decidewhether it should have such force or not. Subordinate legislation madeunder the Revenue laws or orders made under the Control of Prices Act tobe effective must have the force of law at the time of its publication inthe Gazette and not await the approval of Parliament. Crown Counselhas drawn my attention in this connection to several statutes under whichthis distinction is appreciated. Under section 4 (3) of the Control ofPrices Act an Order made by the Controller of Prices “ shall come intooperation when such Order is made and signed by the Controller”. Undersection 11 (4) of the Holidays Act No. 17 of 1965 all regulations madeby the Minister under the Act shall have effect only after it has beenapproved by the Senate and the House of Representatives and untilnotification of such approval is published in the Government Gazette.The same Act in section 12 (2) states that an Order made by the Ministerunder section 12 (1) shall come into force on the date of its publication inthe Gazette or upon such later date as may be specified thereunder. Undersection 48 of the Ceylon Tourist Board Act of 1966 an Order made undersection 47 would come into force upon the date of its publication in theGazette. There is therefore no uniformity with regard to the procedurethat has to be followed in Ceylon in regard to the time at whichdelegated legislation becomes valid.••
The question whether words similar to that found in sub-section (7) (b)are mandatory or directory has been the subject of discussion by
AXLES, J.—Podi Appuharry/ v. Government Agent, Kegalla
547
commentators. Craies (Statute Law 9th Edn. p. 317) seems to takethe view that requirements relating to time are only directory in nature.In the latest edition of Allen * Law and Orders 5 (1965) the followingpassage appears at pp. 145 and 146 :—
“ If the statute expressly indicates what the effect of non-complianceis to be, the matter is plain ; but in many cases it merely gives itscommand and says nothing about the consequences of disobedience.The courts then have to look at the general intendment of the section,and often of the whole statute, and, although there can be no invariablerule, the general principle of interpretation is well stated by Maxwell :
‘ Where the prescriptions of a statute relate to the performanceof a public duty ; and where the invalidation of acts done in neglectof them would work serious general inconvenience or injustice topersons who have no control over those entrusted with the duty,without promoting the essential aims of the Legislature, such pres-criptions seem to be generally understood as mere instructions forthe guidance and government of those on whom the duty is imposed,or, in other words, as directory only. ’
Although it is a little startling to say that a command to lay Ministerialregulations before the Legislature is ‘ a mere instruction for the guidanceand government of those on whom the duty is imposed ’, it is believedthat this principle is applicable to Statutory Instruments which arerequired to be laid and are subject to negative resolution. I understandthat this view has always been held in the departments, and it issupported by the fact that it is not uncommon to insert in statutes aprovision that if a Statutory Instrument is annulled within the pres-cribed period, this shall be without prejudice to acts done before theannulment. The same proviso is often made even for StatutoryInstruments which depend on positive Parliamentary resolution fortheir confirmation or continuance. In both cases the assumption is thatthe sub-legislation is valid from the beginning, but sub condicione.It is, in the phrase which is associated with a bond, * defeasible oncondition subsequent ’. ”
In the present case the Order is to come into force on the date of itspublication in the Gazette (language similar to some of the local Statutesreferred to earlier) and also requires c a positive Parliamentary resolutionfor its confirmation or continuance ’. The sub-section merely ' gives itscommand and says nothing about the consequences of disobedience ’and the general principle of interpretation stated by Maxwell in theabove passage would be applicable particularly in regard to the functionsof the Government Agent who issues the certificate and has no control overthe proceedings in the House.
I am inclined to adopt the principles laid down by Allen and hold thatin this case, even though there is no strict compliance with sub-section (7)(6)^ the Ord^r P2 is a valid Order under which a» certificate could beissued for the recovery of the tax. I would therefore dismiss the appeal.
Appeal dismissed.