005-NLR-NLR-V-80-ISMAIL-J.–Sirisena-and-Others-V.-Kobbekaduwa-Minister-of-Agriculture-and-Land.pdf
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ISMAIL, J. – Sirisena and Others v. Kobbekaduwa,
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Ismail, J.
At the hearing of these several appeals the Solicitor-General appearingfor the Attorney-General and Attorneys for several respondents agreed toconsolidate the arguments in all these appeals as common legal questionsarose for consideration in all these matters listed for argument. It wasagreed that decisions on these questions that were common in these appealswould dispose of all these applications. The matters that arise forconsideration in these appeals can broadly be categorized under two sub-heads:-
Was the order of the Supreme Court calling for the records in theabove cases with a view to examining these records on thequestion of legality or propriety of the orders made therein done inthe exercise of any jurisdiction lawfully vested in the SupremeCourt and whether this Court had been properly constituted for thehearing of these applications?
In interpreting section 24 of the Interpretation (Amendment) Actwhether an Injunction would lie against the Minister in respect ofany act done by him either mala fide, ultra vires or withoutjurisdiction and whether such act falls outside the scope of section24 of this Act?
I will now proceed with the first question, namely, whether the powersof revision, vested in the Supreme Court under section 354 of theAdministration of Justice Law, had been properly exercised in this case.Proceedings in this case were originally initiated by my brothers Pathirana, J.and Wijesundera, J., directing the Registrar of the Supreme Court to callfor the records of eleven (11) of the cases which were the subject-matter ofthese applications. The records had thereafter been submitted to mybrothers and thereafter they along with my brother Udalagama, J. hadexamined the records to satisfy themselves with regard to the legality andpropriety of the orders made in those respective cases. They had apparentlyformed the view ex facie from the records that orders appeared to be illegalin view of provision under section 24 of the Interpretation Ordinance(Amendment) Act No. 18 of 1972. In all these cases apparently interiminjunctions had been granted against the Minister of Agriculture and Landsrestraining him and his officers from taking any further steps in theacquisition of these lands belonging to the respondents in thoseapplications. In some of the cases interim injunctions had been issued bythe District Court pending a final determination of the judgment. In theother cases injunctions had been issued by the High Courts to be inoperation for a specific period to enable the respondents to file action inthe appropriate District Courts.
Notices had thereupon been issued on the respondents in these cases toappear and show cause why the orders granting Interim Injunctions in
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those cases should not be set aside in the exercise of the revisionary powersof this Court. The Attorney-General had also been noticed. In making theseorders my brothers had apparently formed the view that section 24 of theAct, No. 18 of 1972 precluded the Courts from granting an injunctionagainst the Minister in these cases. It is also to be noted that these ordershad been made in chambers.
Subsequently on the return to notices the matter came up for hearing atthe sitting held on 14 June 1974 before my three brothers and the partieshad been represented by counsel in that sitting. While matters werepending it had been brought to the notice of Court that applications hadbeen made under section 14 subsection 3 of the Administration of JusticeLaw and on that very morning before the Acting Chief Justice to havethese matters listed for argument before a bench of five Judges as questionsinvolved in these cases were matters of general or public importance.Sittings of the Court had thereupon been adjourned pending the decision bythe Acting Chief Justice on these applications to have these matters listedbefore a fuller bench. Subsequently after hearing arguments adduced bycounsel appearing for both parties the Acting Chief Justice had made orderthat these applications which were pending before three Judges on14.6.1974 be listed before a bench of nine Judges in view of theimportance of legal questions that arose in these cases which were ofgeneral or public importance. The present bench was duly constituted onthe 5th of July 1974 to hear these applications. It was at this hearing that byconsent of counsel appearing for respondents and for the Attorney-Generalthat arguments in these appeals have been consolidated in view of the factthat there were common legal questions which arose for determination inall these applications.
Counsel appearing for respondents took up the position that the originalorder calling the records in these cases made by two Judges in chamberswas not a step warranted by the provisions of the Administration of JusticeLaw. Counsel also proceeded to argue that the order made by three of mybrothers in chambers issuing notices to show cause why the interiminjunctions granted in these applications should not be set aside and forappearances of parties on a specified date was not one warranted by theprovisions of the Administration of the Justice Law. Counsel forrespondents contended that both these orders should be made at a sitting ofthe Supreme Court. He drew our attention to section 7 of theAdministration of Justice Law. This section states that the sittings of everyCourt shall be held in public and all persons shall be entitled freely toattend such sittings. In certain instances the section gives the right to aJudge in his discretion to exclude persons where proceedings relate tofamily relations, sexual offences and in the interest of order and securitywithin the Court premises. Counsel also to supplement this argumentreferred to section 14; the proviso to this section states that the appellatejurisdiction in respect of judgments and orders of the Magistrate’s Courts
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shall be exercised by at least two judges and its jurisdiction in respect ofjudgments and orders of the District Courts and High Courts shall beexercised by at least three Judges. Counsel proceeded to argue that in theseinstances three Judges should have, at a sitting of the Court as contemplatedin section 7, made the order calling for records in these respectiveapplications and also made order under section 354 of this Act.
In view of the arguments adduced by counsel for respondents it isnecessary to consider what is meant by a ‘sitting of a Court.’ A sitting of aCourt necessarily means where a Court assembles to hear the case; that iswhere the Court adjudicates on the rights of parties. Clearly the acts donebefore a Court sittings commence such as issue of notices and calling forrecords would be ministerial acts. When a Court issues such notices or ordersthe Court is at that stage not adjudicating the rights of parties.
Reference to section 11 of the Act indicates that “The Supreme Court shallbe the only Superior Court and shall have, subject to the provisions of thisLaw, jurisdiction for the correction of all errors in fact or in law committed byany subordinate Court and sole and exclusive cognizance by way of appeal,revision and restitution in integrum of all actions, proceedings and matters ofwhich such subordinate Court may have taken cognizance, and such otherjurisdiction as may be vested in the Supreme Court by law.”
It will be seen that the Supreme Court by section 11 of this Law in additionto having sole and exclusive jurisdiction in appeals, revisions and therestitution in integrum is also vested with the jurisdiction for the correction ofall errors in fact or in law committed by any subordinate Court. Now section14 to which I have made reference prescribes the composition of Courts forhearing of appeals in respect of orders and judgments from the Magistrate’sCourts, District Courts and the High Courts. But section 14 does not indicatethe number of Judges who have to function where the Supreme Court has tomake any correction in respect of errors of fact or law committed by anysubordinate Court.
The second proviso to section 14 indicates that jurisdiction under section12 shall be exercised by not less than three Judges. It will therefore be seenthat the number of judges who will have jurisdiction for the correction of allerrors of fact or in law committed by subordinate Courts is not prescribed bythis law. In this connection one has to refer to section 40 which indicates thatthe jurisdiction vested in any Court by this Law shall include all ministerialpowers and duties incidental to such jurisdiction and nothing in this law shallbe deemed to limit or affect the powers of any Court to make such orders asmay be necessary to do justice or to prevent the abuse of the process of theCourt.
It appears to me therefore that the calling of these records in the firstinstance by two Judges in chambers and subsequently issue of notices to show
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cause by three Judges in chambers are ministerial acts and are acts involvingministerial powers and contemplates duties incidental to such jurisdiction anddid not come within the ambit if section 14 of the Law. Such ministerial actsin my view are not the acts that had to be done at a sitting of Court ascontemplated under section 7 of the Law. Incidentally it will be noted that incertain applications the law provides for one Judge to make orders inchambers.
It also appears to me that these questions are really academic though Iventure to say the steps taken are not in conflict of any of the provisions of theLaw. Since the present bench to hear and determine these cases has beenconstituted in accordance with the provisions of section 14(3) (c) of theAdministration of Justice Law and the present bench has been constituted tohear and determine all these applications by the Acting Chief Justice by thepowers conferred on him. I am also of the opinion that the original ordercalling for records and the subsequent order issuing notices to show cause arepurely ministerial acts and are not therefore in any way in conflict with anyexpress provision of the law. I therefore hold'that the objections on thequestion of jurisdiction must necessarily fail. I therefore hold that since thisbench is properly constituted under section 14(3) (c) that this Court has thejurisdiction to hear and determine all these applications.
The next question that arises for consideration is solely concerned with theinterpretation of section 24 of the Interpretation (Amendment) Act of 1972.Section 24(1) of the yct reads:—
24. (1) Nothing in any enactment, whether passed or made before or afterthe commencement of this Ordinance, shall be construed toconfer on any Court, in any action or other civil proceedings, thepower to grant an injunction or make an order for specificperformance against the Crown, a Minister, a ParliamentarySecretary, the Judicial Service Commission, the Public ServiceCommission or any member or officer of such Commission, inrespect of any act done or intended or about to be done by anysuch person or authority in the exercise of any power or authorityvested by law in any such person or authority:
Provided, however, that the preceding provisions of thissubsectibn shall not be deemed to affect the power of such Courtto make, in lieu thereof, an order declaratory of rights of parties.
(2) No Court shall in any civil proceeding grant any injunction ormake an order against an officer of the Crown if the granting ofthe injunction or the making of the order would be to give reliefagainst the Crown which could not have been obtained inproceedings against the Crown.
ISMAIL, J. – Sirisena and Olliers v. Kobbekaduwa,
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In the light of the wording of this section, counsel for respondentscontended that this section excluded any act done or intended to be done orabout to be done by a Minister either mala fide or without jurisdiction or inexcess of his powers. Counsel for respondents contended that such acts were anullity and fell outside the scope of section 24(1) and where such acts weredone mala fide or without jurisdiction or in the pretended exercise of theMinister’s powers the Court could grant an injunction against the Minister.Counsel for respondents contended the words “in the exercise of any power orauthority vested in law by such person or authority” necessarily contemplatedthat these words referred to the bona fide genuine, lawful or due exercise ofthe powers and not to mala fide exercise of powers or purported or pretendedexercise of powers or exercise of powers without jurisdiction.
In this connection reference was made to section 22 of the Interpretation(Amendment) Act. It is clear that section 22 of this Act completely does awaywith the jurisdiction of Court. Section 24 on the other hand clearly restrictsonly a remedy that is open to a subject. Section 22 reads:—
22: Where there appears in any enactment, whether passed or madebefore or after the commencement of this ordinance theexpression “shall not be called in question in any Court,” or anyother expression of similar import whether or not accompanied bythe words “whether by way of writ or otherwise” in relation toany order, decision, determination, direction or finding which anyperson, authority or tribunal is empowered to make or issue undersuch enactment no Court shall, in any proceedings and upon anyground whatsoever, have jurisdiction to pronounce upon thevalidity or legality of such order, decision, determination,-direction or finding, made or issued in the exercise or theapparent exercise of the power conferred on such person,authority or tribunal:
Provided”
It will therefore be seen that the exclusion of the jurisdiction of the Courtsin section 22 is so specific as to leave no ambiguity. The exclusion of thejurisdiction of the Court in section 22 is absolute. The words are “no Courtshall in any proceedings and upon any ground whatsoever, havejurisdiction pronounce upon the validity or legality of such order, decision,determination, direction or finding, made or issued in the exercise or theapparent exercise of the power conferred on such person, authority ortribunal.”
The words that arise for determination in these proceedings in section 24are the words “in respect of any act done or intended or about to be done byany such person or authority in the exercise of any power of authority vested
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in law in any such person or authority.” It will therefore be seen that thelanguage in section 24 subsection (1) with regard to the limitation of theCourt’s powers is different to the exclusion of the Court’s jurisdictioncontemplated in section 22 of the Interpretation Act.
In this connection it will be pertinent to refer to the Draft Bill presented tothe Parliament. This bill was referred to in the arguments adduced by counselfor the respondents as well as by the learned Solicitor-General. Thephraseology of the Draft Bill in relation to section 24 occurs in this form:—
“. . . . in respect of any act done or purported to be done by any such
person or authority in the exercise or purported exercise of powers vested
by law in such person or authority.”
The Parliament had considered the Draft Bill at the Committee stage and-ultimately in the Bill to which assent was given the words “purported to bedone and purported exercise of powers” had been deleted. One must takeit that the legislative body had considered the Draft Bill and the impact of thewords “purported to be done and purported exercise of powers” and haddecided to delete these words from the Bill that had ultimately been passed.The legislature must have given careful consideration to the draft that hadbeen presented and it is very significant that these words had been deleted inthe Bill that was ultimately passed by the legislature. The question ariseswhether in deleting these words it was intended to exclude mala fide acts, actsin excess of jurisdiction and acts without jurisdiction from the scope ofSection 24.
Reference was also made by Counsel on both sides to the CrownProceedings Act of 1947 passed by the Parliament. Section 21 of that Actreads as follows:—
“21 (1) In any civil proceedings against the Crown the Court shall subjectto the provisions of this Act, have powers to make all such ordersas it has power to make in proceedings between subjects, andotherwise to give such appropriate relief as the case may require:
provided that:—
Where in any proceedings against the Crown any such reliefis sought as might in proceedings between subjects begranted by way of injunction or specific performance, theCourt shall not grant an injunction or make an order forspecific performance but may in lieu thereof make an orderdeclaratory of the rights of the parties; and
In any proceedings against the Crown for the recovery ofland or other property the Court shall not make an order for
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the recovery of the land or the delivery of the property, butmay in lieu thereof make an order declaring that the plaintiffis entitled as against the Grown to the land or property or tothe possession thereof.
(2) The Court shall not in any civil proceedings grant any injunctionor make any order against an officer of the Crown if the effect ofgranting the injunction or making the order would be to give anyrelief against the Crown which could not have been obtained inproceedings against the Crown.”
The Solicitor-General argued that the provisions of section 24 of theInterpretation (Amendment) Act was practically similar in the wording ofsection 21(1) of the Crown Proceedings Act. In examining this contention onehas to keep in mind that the relief by way of injunction against the Crown hasalways been available to a subject in our country, whereas in England reliefby way of injunction against the Crown was never available to a subject. It isin the light of the background of the law existing in England that the CrownProceedings Act was enacted. In Ceylon, however, the subject always had theright of going into Court and ask for an injunction. The Civil Courts in ourcountry always had the right to grant either an interim injunction orpermanent injunction in appropriate cases so that a status quo between partiescan be maintained until a suit is finally determined. In the case reported inBuddhadasa v. Nadarajah, (supra) there was an application for an injunctionto restrain the respondent in his supposed performance of his functions asdeputy fiscal from wrongly seizing and selling the movable property of thepetitioner in alleged pursuance of the provisions of section 79 subsection (2)of the Income Tax Ordinance. It was held that the servant of the Crownpurporting to act in his official capacity on behalf of the Crown can berestrained from so acting by an injunction issued against him as an individual.The facts in this case indicated that the deputy fiscal was sued in his ownname and was described by the office he held at the time. In that case theCourt considered whether a servant of the Crown purporting to act in hisofficial capacity on behalf of the Crown can be restrained in so acting by aninjunction issued against him as an individual. After reviewing severalauthorities which were cited in the course of the arguments in that case theCourt held that imsuch an event an injunction could be issued as anindividual.
Remedy by way of injunction both interim and perpetual have been alwaysrecognised by law as being available to the subject to restrain the threatenedwrong before it takes place. An injunction also is issued to prevent or arrest athreatened wrong and is granted in appropriate cases to maintain a status quountil a final determination of the matter in issue.
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It is well settled law that all powers vested by statute must be exercised ingood faith and for the purposes for which it is granted. The person in whomthe powers reposes must act within the powers and cannot act outside suchpowers, if such person abuses his authority or the power granted to him thepurported exercise would be a nullity.
In the case reported in Tobin v. Rex,IW a naval officer purported to act inpursuance of a statutory authority wrongly seized a ship of the suppliant. Itwas held on demurrer to a petition of right that the statement of the suppliantshowed a wrong for which an action might lie against the officer, but did notshow a complaint in respect of which a petition of right could be maintainedagainst the queen, on the ground, amongst others, that the officer in seizingthe vessel was not acting in obedience to a command of Her Majesty, but inthe supposed performance of a duty imposed upon him by Act of Parliament,and in such a case the maxim ‘respondent superior’ did not apply. Again inMusgrave v. Pulido,™ it was held that the Governor of a colony cannot defendhimself in an action for trespass for wrongly seizing the plaintiff’s goodsmerely by averring that the acts complained of were done by him as Governoror as acts of the State. Similarly in the case reported in 1901 A.C. page 561,131an aboriginal inhabitant of New Zealand sued the Commissioner of CrownLands for an injunction to restrain the Commissioner from advertising the saleor disposal of lands as being the property of the Crown. The respondent’sauthority to sell on behalf of the Crown is derived solely from the statute andis confined within the four corners of the statute. If the lands were not withinthe powers of those sections as alleged by the appellant, the respondent hadno power to sell the land, and his threat to do so was an unauthorised invasionof the appellant’s alleged rights. It will therefore be seen that the remedy byway of injunction is often invoked to prevent powers being exceeded and isoften invoiced in cases where ultra vires doctrine is applicable. Thereforestatutory powers must be exercised in good faith and for the purposes forwhich such powers had been granted and must act reasonably.
In the case reported in 59 NLR – page 313, (supra) the Supreme Court wasof the view that neither in our Civil Procedure Code nor in any otherenactment was there any provision as contemplated in section 21 subsection 2of the Crown Proceedings Act. Basnayake, C.J., proceeded to hold that aninjunction under section 86 of the Courts Ordinance can be issued against theLand Commissioner restraining him from taking steps to acquire a landunlawfully. This matter went up in appeal to the Privy Council in 62 N.L.R.page 169 (supra). Their Lordships in that case reserved their opinion upon thequestion as to whether in the circumstances such as those in the present casean injunction against the Attorney-General could or ought to be granted. Inthe case reported in 70 NLR – page 398 (supra) it was held that there was
16 C.D.N.S. 310.
130 (1879) 5 A.C. 102.
1,1 N. Tanaki v. Baker.
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uncertainty as to the precise location of the land. The plaintiff was thereforeentitled to an interim injunction restraining the acquisition. The facts of thatreported case indicated that the notice under section 4 the declaration of theaction filed under section 5 and the order under section 38 of the LandAcquisition Act did not set out the particular land to be acquired. Thejudgment that was delivered by T. S. Fernando, J., indicated that acquisitioncannot be made of an undetermined corpus and therefore an interiminjunction as applied for by the plaintiff was granted. In the case reported in72 NLR-page 60, (supra) on the facts of that reported case it was held thatthe petitioner was entitled to issue temporary injunction restraining therespondents in respect of the acquisition of the lands. In order that an interiminjunction may issue it is not necessary that the Court should find a casewhich would entitle the plaintiff to relief at all events. It is quite sufficient ifthe Court finds a case where there was a substantial question to beinvestigated, and the matter ought to be preserved in status quo, until thatquestion can be finally disposed of. In the light of applications that have beenmade in several of the cases under review it will be necessary to point outcertain observations made by Samerawickrame, J. at page 63 of the reportedcase. He states,
“I cannot resist the observation that it is remarkable how often over theyears it has turned out by some extraordinary coincidence that the publicinterest appeared to require the acquisition of lands belonging to personspolitically opposed to the party in power at the time. It is, therefore,necessary that Courts, while discouraging frivolous and groundlessobjections to acquisition, should be vigilant, if it is open to them to do so,to scrutinise acquisition proceedings where it is alleged that they are donemala fide and from an ulterior motive. In fairness to the persons againstwhom the petitioners have made allegations, I should state that the Court isnot called upon, at this state, to consider the truth of the petitioner’s caseand it has not done so. . .”
In the light of these decisions there has no doubt been a large increase inapplications for injunctions on the Minister to restrain him from acquiringlands the Minister has sought to acquire. The Solicitor-General submitted thatnot in a single instance has mala fides been established against the Minister.He also submitted that in cases where acquisition was shown to be ultra viresor without jurisdiction, administratively acquisition proceedings werewithdrawn on orders made by the Minister. He further contended that section24 had been introduced in order to obviate unnecessary prolonged delays inacquisition proceedings consequent on needless applications being made forinterim injunctions and perpetual injunctions alleging mala fides etc.
In the course of the argument we were also referred to extracts from theHansard where the Minister for Justice had drawn the attention of theParliament to delays consequent on applications made by way of injunctions,both temporary and perpetual, in acquisition proceedings. He also admitted
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that over 60 land acquisition matters today are pending because ofapplications being made on the ground of mala fide in those pending cases. Itis in this background that section 24 of the Interpretation (Amendment) Acthas been passed. As I indicated earlier there appears to be a substantialdifference between the Draft Bill that was prepared and the Bill that wasfinally drafted and passed at the Committee stage. The attention of theLegislature had been drawn specifically on two reported cases – Smith v. EastElloe Rural District Council & Others (supra) and Anisminic v. The ForeignCompensation Commission & Another, (supra) I will advert to these reportedcases later in my judgment. Extracts from these judgments had apparentlybeen cited in the course of the debate at the House and the Members of thethen Parliament were specifically made aware of legal implicationsconsequent on these reported cases. It was not as if the Members of the thenParliament were not aware of the existence of these cases which restricted theexercise of the powers of the Minister. It is with this background that theLegislature had modified the Draft Bill that had been presented and broughtout legislation in the form in which section 24 subsection (1) had beenframed. One therefore has to consider whether section 24(1) in thebackground of facts as I have indicated above, has ousted the jurisdiction ofCourts with regard to a remedy available to a subject completely, or whethersection 24 would only apply in cases of acts done within the four corners ofthe statute, that is, the Land Acquisition Act. The question really is whetherthe words used in section 24 subsection (1) closed the doors for injunctionsagainst the Minister in the case of malafides etc. or whether it is still open toa subject to come into Court and ask for injunctions interim or perpetual onapplications of mala fides etc. against the Minister. For this purpose it will benecessary to pay due regard to the wording of this section and to the judicialauthorities which were cited in the course of the arguments interpreting thephraseology used in section 24 or analogous to it.
It is to be noted that the words “purported to be done” and “purportedlyexercised” which appeared in the Draft Bill were omitted from section 24 ofthe Act when the Parliament passed the Bill in the present form. It is cleartherefore that the omission of these two phrases from the Bill which originallystood in the draft form had been after due consideration had been given andafter discussion at the Committee stage; the omission of these words istherefore significant and has materially changed the effect of this section.
It is also to be noted that the proviso to section 24 subsection (1) was not inthe Draft Bill but has been incorporated into the Bill that was passed at theCommittee stage. This proviso had been incorporated into this Bill verbatimfrom the English statute.
This proviso indicates that in lieu of the right of the subject to have aninjunction the Courts could give a declaratory decree.
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In Sri Lanka the subject under the common law always had the right to askfor a declaratory decree. Vide 69 N.L.R.-page 73132 57 N.L.R. page 401,(supra) and 72 N.L.R. page 337 (supra).
It is also necessary to refer to the 2nd subsection of section 24. Thissubsection too is identical to the subsection in the English statute. It will bepertinent to point out that in England the subject did not have the right to aninjunction either against the Crown directly or against an officer of the Crownand therefore against the Crown indirectly whereas in Ceylon the subject hada right to ask for an injunction against the public officer suing him in hispersonal capacity and designating him by office-vide-59 N.L.R.-page 313(supra).
In the course of the arguments analysing the provision of section 24 -subsection (1) reference was also made to section 88 of the Police Ordinanceand section 461 of the Civil Procedure Code.
In several cases that came up for determination in our Courts in respect ofthese two provisions of the law it was held that a police officer who actsmaliciously and not in the bona fide exercise of his official duties is notentitled to rely on the limitation of actions provided in section 79 (nowcorresponding to section 88 of Chapter 53) vide 23 N.L.R.-192 (supra).Section 79 of the Police Ordinance extends protection to any act which apolice officer does in the reasonable and bona fide belief that he is actingwithin the scope of his authority and which is not actuated by any malice orultra vires motive vide – 29 N.L.R.-139 (supra).
The Courts have also considered the impact of the words “An actpurporting to be done by him in his official capacity” with reference to section461 of the Civil Procedure Code-in the case quoted in 16 N.L.R.-page 49(supra) it was held that a public officer who does an act maliciously in thepretended exercise of his authority cannot be said to be “purporting to act” asa public officer and was therefore not entitled to notice of action. Similarly inthe case reported in 9 N.L.R.-page 138 (supra) Woodrenton, J. held that thepublic officer who does a legal act mala fide in the pretended exercise ofstatutory powers cannot be said to be purporting to act under the statute whichconfers those rights within the meaning of section 461 of the Civil ProcedureCode and was therefore not entitled to the notice of action provided by thatsection.
Basnayake, C.J., in 57 N.L.R. – page 457 (supra) was of the view that theuse of the words “purported” in section 461 covers both malicious acts as wellas the bona fide acts and acts within the statute. He proceeded to define whatis meant by “purported” and referred to the case 9 N.L.R. – page 138 (supra).
" Thiagarajah v. Karthigesu (1960) 69 N.L.R. 73.
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But it is clear that in the authority cited by him the word “purported” has notbeen given the meaning attributed in his judgment.
In the case reported in Hirdaramani v. Ratnavel (supra)-our Courts haveconsidered Regulation 55 of the Emergency Regulations by which rights inthe nature of habeas corpus have been denied to persons detained under theEmergency Regulations. It was held in that case that in such an instance anorder for detention can be challenged if it had been made in the abuse of itspowers.
In the course of the judgment in that case it was stated that the petitionerhad failed to establish a prima facie case against the good faith of thePermanent Secretary and therefore the onus did not shift to the PermanentSecretary to satisfy the Court of his good faith. The majority decision in thatcase however proceeded on the basis that in Regulation 55 although itprovides “that section 45 of the Courts Ordinance shall not apply in regard toany person detained or held in custody under Emergency Regulations” is notapplicable in the case of a person unlawfully detained under an invalid ordermade in abuse of the powers conferred by Regulation 18 subsection (1).
In this case the dictum in 75 NLR-page 477 (supra) was accepted andapproved. Considering the facts of that case, it was held that the AssistantSuperintendent of Police had proceeded to arrest a person under Regulation19 of Emergency Regulations No. 6 of 1971, merely on the orders of hissuperior officer and he was not personally aware of the actual offence ofwhich the person was suspected by his superior. It was held that such arrestwas liable to be declared to have been unlawful in habeas corpusproceedings.
In Sri Lanka unlike in England a subject could always sue an officer of theCrown-vide 72 N.L.R. 337 (supra) this right did not exist in England. Thesubject there did not have the right to sue the Crown but had to make anapplication by way of petition of right to sue the Crown. The CrownProceedings Act of 1947 simplified the process for the ordinary citizen undersection 21 of that Act. The Court is empowered to give some relief against theCrown as against the subject. The only limitation is that in case of aninjunction or for specific performance or for an order for recovery of rent ordelivery of other property, the subject will only be entitled to a declaratoryjudgment.
In Ceylon the right of the subject to ask for and obtain an injunctionagainst the Crown has been indirectly exercised in that the subject always hadthe right to proceed against the officers of the Crown though no authority wascited for or against the proposition that the subject in Ceylon had the right toobtain an injunction against the Crown itself. Therefore it will be seen that theprovisions contained in section 24 of the Interpretation Ordinance takes away
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the right a subject enjoyed in Ceylon right throughout. It will therefore beseen that where a statute seeks to take away from the subject a right alreadyexisting in that subject, very strict interpretation must be placed on the wordswhich seek to take away such right from the subject. The approach to thisquestion in our country must necessarily be different to the approach inEngland because in England the subject did not have the right to sue theCrown directly or indirectly.
It is therefore necessary to consider the several authorities which have beencited in the course of the arguments to find out whether the language used insection 24 of the Interpretation Act or language similar to the languageoccurring in section 24 have been judicially interpreted. It is for this verypurpose that reference was made to judicial decisions to interpret the languageused in section 88 of the Police Ordinance, section 461 of the Civil ProcedureCode and Regulation 55 of the Emergency regulations. In the light of thepreclusion clause in section 24 it will be necessary to consider whether suchclause operates where a person exercising the power, uses it for a mala fidepurpose or ulterior object.
In Smith v. East Elbe (supra) the preclusion clause was to the effect that anorder made under the Acquisition of Land (Authorisation Procedure) Act of1946 may be questioned in the High Court within 6 weeks from thenotification of the Minister’s confirmation on the ground of procedural erroror ultra vires, but after the expiration of that period such order “shall noteither before or after which has been confirmed or given be questioned in anylegal proceedings whatsoever.” The House of Lords by majority of 3 to 2 heldthat this order could not be questioned in any Court of Law on any groundwhatsoever and included malice and bad faith. This authority stoodunchallenged in England right up to 1969 when the case Anisminic v. TheForeign Compensation Commission (supra) was decided in the House ofLords.
Long before that in 1963-the interpretation of the preclusion clause cameto be considered in India in the case reported in 1963 AIR Supreme Court -page 151 in the case of Sornawanti and Others v. The State of Punjab (supra).The ratio decidendi in that case was in direct conflict to the ratio in the EastElloe case. In the course of the majority judgment in that case, it was held thatwhether in a particular case the purpose for which the land is needed is apublic purpose or not is for the State Government to be satisfied about. If thepurpose for which the land is being acquired by the State is within theLegislative competence then the declaration of the Government will be final,subject, however, to one exception. That exception is that if there is acolourable exercise of power the declaration will be open to challenge at theinstance of the aggrieved party. If it appears that what the Government issatisfied about is not a public purpose but a private purpose or not purpose at
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all the action of the Government would be colourable and not relatable to thepower conferred upon it by the Act and its declaration will be a nullity. Tosuch a declaration the protection of section 6 subsection (3) will not extend.For the question whether a particular action was the result of fraud or not isalways justiciable provisions such as section 6 subsection (3) notwithstanding.
In the Land Acquisition Act of 1894 the declaration under section 6 wasthat the particular land was needed for a public purpose or for a company andwas not to be made by the Government arbitrarily, but on the basis of materialplaced before it by the Collector. Subsection (3) of section 6 proceeds to statethat such declaration shall be conclusive evidence that the land is needed for apublic purpose or for the company. At page 166 of the judgment the SupremeCourt considered the East Elloe case (supra). Considering the principlesenunciated in the East Elloe case-Mudholkar, J. with whom the majorityJudges agreed stated, ‘The House of Lords held by majority that the actioncould not proceed except against the clerk for damages because the plainprohibition in paragraph 16 precluded the Court challenging the validity ofthe order. They also held that paragraph 15 gave no opportunity to a personaggrieved to question the validity of a compulsory purchase order on theground that it was made or conferred in bad faith. As we have already said thecondition for the exercise of the power by the State Government is theexistence of a public purpose or a purpose of a company and if theGovernment makes that declaration under section 6 — subsection (1) in fraudof the powers conferred upon it by that section the satisfaction on which thedeclaration is made is not about a matter with respect to which it is required tobe satisfied by the provision and, therefore its declaration is open to challengeas being without any legal effect. We are not prepared to go as far as theHouse of Lords in the above case.”
In the Anisminic case (supra) by a majority decision it was held that on atrue construction of section 4 subsection 4 of the Foreign Compensation Act1950, determination meant a real determination and not a purporteddetermination, and accordingly this subsection did not operate to excludeinquiry by a Court of Law in the present case. In the course of the judgmentthe dictum in the East Elloe case (supra) was doubted.
Lord Reid at page 215 states, “the case which gives most difficulty isSmith V. East Elloe Rural District Council and Others (supra) where the formof the ouster clause was similar to that in the present case. But I cannot regardit as a very satisfactory case. . . There was no citation of the authorities on thequestion whether a clause ousting the jurisdiction of the Court applies whennullity was in question and there was little about this matter in the speeches. 1do not therefore regard this case as a binding authority on this question … Ihave come without hesitation to the conclusion that in this case we are not
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prevented from inquiring whether the order of the commission was a nullity.It has sometimes been said that it is only when a tribunal acts withoutjurisdiction that its decision is a nullity. But in such cases jurisdiction hasbeen used in a very wide sense, and I have come to the conclusion that it isbetter not to use the term except in the narrow and original sense of thetribunal being entitled to enter on the inquiry in question. But, there are manycases where, although the tribunal had jurisdiction to enter on the inquiry, ithad done or failed to do something in the course of the inquiry, which is ofsuch a nature that its decision is a nullity. It may have given its decision in badfaith. It may have made a decision which it had no power to make. It mayhave failed in the course of the inquiry, to comply with the requirements ofnatural justice. It may in perfect good faith have misconstrued the provisiongiving it power to act so that it failed to deal with the question remitted to itand decided some question which was not remitted to it. It may have refusedto take into account something which it was required to take into account orit may have based its decision on some matter which, under the provisionssetting it up, it had no right to take into account. I do not intend this list to beexhaustive. But, if it decides the question remitted to it for decision withoutcommitting any of these errors it is as much entitled to decide that questionwrongly as it is to decide it rightly.”
At page 246 Lord Wilberforce agreeing with Lord Reid and Lord Pearcestates, “I cannot regard Smith v. East Elloe (supra) as a reliable solvent of thisappeal, or on any case where similar question arises. The preclusive clausewas indeed very similar to the present, but, however inevitable the particulardecision may have been, it was given on too narrow basis to assist us here.”
As I indicated earlier in the arguments before Parliament when the DraftBill was presented the attention of the House was pinpointed and specificallydrawn to the East Elloe case and the Anisminic case. The deletion of certainwords from the original Draft Bill and the incorporation of subsection (1)which did hot exist in the Draft Bill and had been made by the Houseapparently after considering the effect of these cases. The House mustnecessarily have given considerable thought to the wording of the Bill in thepresent form. The intention of Parliament therefore must be inferred from thewords used in the particular enactment, the language used in the enactmentand from an analysis of the language used. It is also indicative of the intentionof the Parliament that it had amended the original Draft bill substantially inorder to give effect to its intention.
Lord Simonds in 1951-2 All E.R.-page 839 (supra) states, ‘The duty ofthe Court is to interpret the words that the Legislature had used. Those wordsmay be ambiguous, but even if they are, the power and the duty of the courtto travel outside of them on a voyage of discovery are strictly limited.’ He
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proceeds to state that it is not the duty of the court once the intention ofParliament has been ascertained to fill in the gaps or for the Court to writewhat the Legislature has not written. That would be a naked usurpation of theLegislative function under the disguise of interpretation and he proceeds tostate, “and it is the least justifiable when it is guess work with what materialthe Legislature would if it had discovered the gap, had filled it in. If a gap isdisclosed the remedy lies in an Amending Act.”
I would also refer to a case in 1968-2 AER (supra) page 356. It wascontended in that case that there was sufficient grounds for inferring thatParliament intended to exclude the general rule that mens rea is an essentialelement in every offence. In the course of the judgment-Lord Reid stated,“the rule is firmly established that we may look at the Hansard and in generalI agree with it for reasons which I gave last year in Beswick v. Beswick.” Heproceeded to refer to the undesirability of looking into Parliament proceedingsin order to arrive at the intention of Parliament. He indicated that this wouldlead into realms of conjecture and lead to unnecessary speculation andsurmises.
Learned Solicitor-General referred us to Craies on Statute Law-7thEdition (supra)-page 125 and referred us to passage cited from Jawkins v.Gather . . . reproduced therein which reads, “The dominant purpose inconstruing a statute is to ascertain the intention of the Legislature to be . . ..from the course and the necessity of the act being made, from a comparisonof its several parts and from foreign circumstances so far as they could justlybe considered to throw light upon the subject.” This dictum wouldundoubtedly be good if the intention of the Legislature was reflected in thewording of section 24 had not been judicially interpreted in parallel instancesboth in our Courts and in Courts beyond our shores. In the same authoritycited by me at page 91 Willes, J. states, “No doubt the general rule is that thelanguage of an Act is to be read according to its ordinary grammaticalconstruction unless so reading it would entail some absurdity, repugnancy orinjustice .. . but I utterly repudiate the notion that it is competent to a Judge tomodify the language of an Act in order to bring it in accordance with hisviews of what is right or reasonable.”
In the context of this passage and in view of the avowed intentions of thethen Parliament the question arises for consideration whether the wording ofthis section was meant to cover an illegal act, a mala fide act, or an ultra viresact, or whether this section contemplated that the relief would not be availableonly in cases where an act is done within the four corners of this statute or inthe bona fide belief that the act is within the statute. Can it therefore be saidthat under the guise of this statute the Legislature sought to condone evenmala fide acts on the ground of expediency ?
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Undoubtedly by section 22 there was an ouster of jurisdiction of Court inno ambiguous terms. It would be seen that when one compares the words insection 22 with the words in section 24, the ouster clause in section 24 is notas emphatic nor as wide nor so absolute as in section 22. Words similar to orhaving the same effect as, “No Court shall in any proceedings and upon anyground whatsoever, have jurisdiction to pronounce upon the validity orlegality or such order, decision, determination, direction or finding, made orissued in the exercise or the apparent exercise of the power conferred on suchperson” is not reflected in the wordings of section 24. The wordings in section24 completely oust jurisdiction of Courts. If it was sought to oust one of theremedies that was open to the subject by section 24 one could conceivablyhave used words to like effect as in section 22. But the wording in section 24would bear close analysis, particularly in view of judicial review of caseswhere exclusion clauses of similar import have been made. The words inSection 24 …. “in respect of any Act done or intended or about to be done byany such person or authority in the exercise of any power or authority vestedby law in any such person or authority” appears to my mind to qualify theearlier part of section 24 – subsection (1) – when a person does any act in theexercise of any power or authority vested by law in any such person orauthority one clearly envisages a person acting within the four comers of thatLaw or of the authority. If a person acts bona fide in the belief that he is soentitled to Act under that Law or by that authority then clearly that personcannot be said to be acting mala fide or in the purported exercise of suchpower or without jurisdiction or excess of such power but if a person makesuse of the power or authority for co-lateral purposes and is actuated by maliceor mala fides then it appears to me that he would not be acting in the exerciseof any such power or any such authority. The deletion of the words“purported” in the Draft Bill to my mind is clearly indicative that the words“in the exercise of any power or authority” must necessarily mean in the dueor proper exercise of such power or authority.
If it was the intention of the Legislature that the section 24 was meant tocover up all acts including mala fides, those without jurisdiction and those inexcess of jurisdiction, then it appears to me that the use of the words “in theexercise of any power or authority” clearly negatives such intentipn on thepart of the Legislature.
It also appears to me that if subsection (1) stopped at the words “of suchcommission,” without the remaining parts of the section being incorporated inthis section then an argument could be adduced with force and logic behind it,that remedy by way of injunction would not be available to the subject inproceedings contemplated in section 24. The inclusion of the words from “inrespect of any Act” up to such person or authority” is in fact a limitation ofthe absolute withdrawal of the remedy in the earlier part of the section.
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On a careful consideration of all the authorities and references made byAttorneys for State and the respondents it is my opinion that the subject is leftwithout the remedy by way of injunction, perpetual and interim, by virtue ofthe provision of section 24 of the Interpretation Amendment Act only in caseswhere there has been a due or proper exercise of any power or authorityvested by Law in any person or authority who exercises that power, and thesubject will still have the right to resort to injunctions where mala fides andexcess of jurisdiction or absence of jurisdiction or bad faith etc. exists or isalleged to exist.
I am. therefore of the opinion that the notices issued in these several casesshould be discharged and the cases be remitted to the respective Courts for thecases to be proceeded with in the normal course.
I would make no order with regard to costs in this Court as these matterscame up for hearing at the instance of this Court.