J. B. TEXTILES INDUSTRIES LTD. v. MINISTER OF FINANCE AND PLANNING

022-SLLR-SLLR-1981-2-J.-B.-TEXTILES-INDUSTRIES-LTD.-v.-MINISTER-OF-FINANCE-AND-PLANNING.pdf


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J. B. TEXTILES INDUSTRIES LTD.
v.MINISTER OF FINANCE AND PLANNING
COURT OF APPEAL.
RANASINGHE. J. AND H. A. G. DE SI LVA, J.
C.A. 1137-40/79.
MAY 27. 28, 29; JUNE 1,11, 12, 15,16, 18,19,22,23, 1981.
Business Undertakings (Acquisition) Act, No. 35 of 1971, sections 2(1) and 7(1)—Acquisition by primary Vesting Order—Duty of Minister to observe rules .of naturaljustice before making such order—Effect of words “final and conclusive" in section2(4)-Effect of approval by Parliament of primary Vesting Order—Whether reports ofspeeches made in Parliament can be considered by Court—is Minister "a person" withinmeaning of paragraph (b) of first proviso to section 22 of Interpretation Ordinance asamended by Act No. 18 of 1972—Appeal to Minister referred to Advisory Board-Functions of Board—Section 7(3) of Act No. 35 of 1971—Exercise of discretionaccording to law as distinct from power coupled with duty—Effect of failure to stateproper basis in claim for relief— Writs of certiorari and mandamus.
On 29th December, 1976, the Acting Minister of Finance acting under the powersconferred on the Minister by section 2(1 Mb) of the Business Undertakings(Acquisition) Act, No. 35 of 1971, made a primary Vesting Order |P2) vesting thebusiness undertakings of the petitioner-company in the Government. No opportunityvuas afforded to the petitioner of being heard before this was done. The said VestingOrder was not laid before the National State Assembly within 60 days of its publicationin the Gazette as specified in sub-section 2(3) of the Act but a Competent Authoritysaid to have been appointed under section 3 took possession of the business undertakingsof the petitioner and thereafter continued to manage and administer the same. On 5thSeptember, 1977, the present respondent in his capacity as Minister of Finance revokedthe primary Vesting Order P2 and made a fresh primary Vesting Order P7 in respectof the same business undertakings, which said order was published in the Gazette. Thepetitioner was not granted an opportunity of being heard before the said Order P7 alsowas made. The said Vesting Order P7 was subsequently laid before the National StateAssembly and approved by resolution.
The National State Assembly was dissolved on 18.5.77 and after a General Electionat vdiich the Government in which the Minister who had made the original Order P2,
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had held office, was defeated, another political party assumed office. The secondprimary Vesting Order P7 was made thereafter.
The petitioner appealed against the said primary Vesting Order P7 to the respondentas provided for under section 7(1) of the said Act and the said appeal was referred bythe respondent to the Advisory Board established under the provisions of section 7(2), asprovided for therein. At the hearing before the Advisory Board evidence was led interalia to establish that the original primary Vesting Order P2 had been made mala fide andto achieve certain political objectives of the then Member of Parliament for the areaand though the Attorney-General was represented no evidence was led to controvert orcontradict such allegations. The Advisory Board advised the respondent that inasmuchas there were reasons other than economic reasons which had prompted the earlierOrder P2, the second Order P7 was unjustified. The respondent did not in pursuance ofthis advice revoke the primary Vesting Order P7 although there was provision fordoing so under section 7(3).
The petitioner thereafter applied for a writ of certiorari quashing the said primaryVesting Order P7 and for a writ of mandamus directing the respondent to revoke the saidprimary Vesting Order. The above facts applied to two companies both of which madesimilar applications to Court so that there were four applications pending at the instanceof two petitioners. At the hearing it was agreed that the submissions in the 4 applicationswould be consolidated and the Court should deliver one judgment thereafter and makeappropriate orders in each of the applications on the basis of the conclusions arrivedat in the said judgment.
Held
Where a Statute empowers a Minister to make orders which interfere with the rightsof property enjoyed by a citizen, the Minister is, in the absence of clear and expressprovision to the contrary set out in the Statute concerned, ordinarily under a duty toobserve the principles of natural justice and/or to act fairly before he exercises suchpowers, even though the said Statute itself is silent in regard to the adoption of such aprocedure. This the respondent had failed to do in the present case and such failurehad caused considerable prejudice to the petitioners.
A primary Vesting Order which is an order made by the Minister of Finance undersection 2(1) of the Business Undertakings (Acquisitions) Act, No. 35 of 1971, is anOrder made by "a person" within the meaning of paragraph Ibl of the first proviso tosection 22 of the Interpretation Ordinance (Cap. 2) as amended by Act No. 18 of 1972and approval by Parliament of such an order under section 2(3) of the Act, does notelevate the said order to the position of an Act of Parliament. Accordingly, the firstproviso to section 22 of the Interpretation Ordinance, as amended, operated to makesuch an order amenable to review by the Courts despite section 2(4) of Act, No. 35 of1971 which provides that such an order shall be final and conclusive and shall not becalled in question in any Court whether by way of writ or otherwise.
Accordingly the petitioners were entitled to the issue of a writ of certiorari as prayedfor.
Held further
Speeches made in Parliament cannot be taken into consideration in order todetermine whether the primary Vesting Order P7, was made merely in order to get overcertain .defects which affected the earlier Vesting Order P2 as contended by counsel forthe petitioner.
The provisions of section 7(3) of the Act vested in the Minister a discretion whetheror not to accept advice tendered by the Advisory Board appointed under section 712),which discretion however the Minister had to exercise according to law, such as by
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observing the principles of natural justice which he had failed to do in the instant case.However, the petitioners were not entitled to relief by way of mandamus as this basis hasnot been expressly set out in the petition. The petitioners' claim for relief by way ofmandamus was on the basis that section 7(3) conferred not a discretion but a powerwhich the Minister was obliged to exercise in accordance with the advice tendered bythe Advisory Board.
Per Ranasinghe, J. "If, as is'clear, a Court cannot take into consideration anything saidor done in Parliament to aid it in the construction of a provision of a statute passed byParliament itself, still less legitimate would it be for the Court to take into considerationanything so said and done for any other purpose."
Casas referred to
Johnson & Co. (Builders) Ltd. v. The Minister of Health, (1947) 2 All E.R. 395:177L.T.455.
Miller v. Minister of Health. (1946) K.B. 626: 62 T.L.R. 611; (1947) L.J.R. 146.
Bushel! and another v. Secretary of State for the Environment, (1980) 2 All E.R.608.
Padfield v. The Minister of Agriculture, (1968) 1 All E.R. 694; (1968) 2 W.L.R.936: (1968) A.C 997.
Congreve v. Home Office, (1976) 1 All E.R. 697; (1976) 2 IV.L. R. 291; (1976)Q.B. 629.
Laker Airways Ltd. v. Department of Trade, (1977) 2 All E.R. 182; (1977) Q.B.643; (1977) 2 W.L.R. 234.
Secretary of State v. Tameside, (1976) 3 All E.R. 666; (1976) 3 W.L.R. 64i;(1977) A.C. 1014.
Liversidge v. Anderson, (1941) 3 AH E.R. 338; (1942) A.C. 206; 116 L. T. 1.
Re Liverpool Taxi Owners Association, 11972) 2 All E.R. 589; (1972) 2 W.L.R.1262.
Fernandopulle v. Minister of Lands and Agriculture, (1978) 79 (2) N.L.R. 119.
T. Hoffmann—La Roche end Co.. A.C. and others v. Secretary of State for Tradeand Industry, (1974) 2 All E.R. 1128; (1975) A.C. 295; (1974) 3 W.L.R. 104.
Church of Scientology-of California v. Johnson- Smith, (1972) 1 All E.R. 378;(1972) 1 Q.B. 522; (1971) 3 W.L.R. 434.
Davis v. Johnson. (1978) 1 All E.R. 1132.
British Railway v. Pickin, (1974) 1 All E.R. 609; (1974) 2 W.L.R. 208; (1974)A.C. 765.
Bagg'scase, (1615) 11 Co. Rep. 93b.
Wood v. Wood (1874) L.R. Ex. 190.
Cooper v. Wandsworth Board of Works, (1863) 14 C.B. (NS) 180.
Board of Education v. Rice, (1911) A.C 179.
Local Government Board v. Arlidge (1915) A.C. 120.
Ridge v. Baldwin, (1963) 2 All E.R. 66; (1964) A.C. 40; (1963) 2 W.L.R. 935;127J.P. 295.
(20A) Ridge v. Baldwin. (1963) 1 Q.B. 530; (1962) 2 W.L.R. 716; (1962) 1 All E.R.834; 126J.P. 196.
Durayappah v. Fernando. (1967) 69 N.L.R. 265; (1967) 2 A.C. 337; (1967) 2 AllE.R. 152; (1967) 3 W.L.R. 289.
(221 Pearlberg v. Varty, (1972) 2 All E.R. 6: (1972) 1 W.L.R. 534.
Fairmount Investments Ltd. v. Secretary of State for the Environment, (1976)2 All E.R. 865. (1976) 1 W.L.R. 1255.
CA J. B. Textiles Industries Ltd. v. Minister of Finance & Planning (Banasinghe. J.) 241
H. ft. Ameradesa at. at. v. The Land Reform Committion et. at. (197/) 79 (1)N.L.R. SOS.
Wiseman v. Bomeman, (1969) 3 AH S.R. 275; (1969) 3 W.L.R. 706; (1971) A.C.297.
Shareef v. Commissioner for Registration of Indian and Pakistani Residents, (1965)67 N.L.R. 433 IP.C.);(1966) A.C. 47; (196S) 3 W.L.R. 704.
General Medical Council v. Spackman. (1943) A.C. 627.
Annamunthodo a. Oilfields Workers' Trade Union, (1961) A.C. 945; 60 C.L. W. 36;(1961) 3 AH E.R. 621; (1961) 3 W.L.R. 650.
Anlsminic v. Foreign Compensation Commission, (1969) 1 AH E.R. 208; (1969)2A.C. 147; (1969) 2 W.L.R. 163.
Re H. K. (an infant).. (1967) 2 Q.B. 617.
R. v. Gaming Board for Greet Britain, ax parte Benaim and another, (1970) 2 AIIE.R. 528; (1970) 2 W.L.R. 1009; (1970) 2 Q.B. 417.
In Re Pergamon Press Ltd. (1970) 3 AH E.R. 535; (1970) 3 W.L.R. 792; (1971)Ch. 388.
Leary v. National Union of Vehicle Buildings. (1970) 2 All E.R. 713; (1970)3 W.L.R. 434; (1971) Ch. 34.
Julius v. Lord Bishop of Oxford. (1880) 5 A.C. 214.
Reg. v. Tithe Commissioner, (1850) 14 Q.B. 474; 19 L.J.Q.B. 177.
APPLICATION for Writs of Certiorari and Mandamus.
H. L. de Silva, witti Ranjit Abeysuriya and Gomin Dayasiri, for the petitioners.
K. N. Choksy. with B. Eliyatamby and Lakshman de Alwis, for the respondents.
Cur. adv. vult.
August 31.1981.
RANASiNGKE, J.
The petitioner-company, which has filed this application toobtain a writ of mandamus directing the respondent to revoke,in terms of the provisions of section 7 (3) of the BusinessUndertakings (Acquisition} Act, No. 35 of 1971 (hereinafterreferred to as the "said Act"), and in accordance with the advicetendered to him by the Advisory Board constituted under theprovisions of section 7 (2) of the said Act, the primary VestingOrder, made by the respondent, on 6.9.77, vesting in theGovernment of Sri Lanka. The petitioner-company, has also filedin this Court, on the same day, application bearing No. 1139/79also against respondent, praying for a writ of certiorari quashingthe aforesaid primary Vesting Order made by the respondent on6.9.77. Along with these two applications filed by the petitioner-company were also filed in this Court, also against the respondent,two further applications by an allied company of the petitioner-company called and known as the J. B. Fishing Industries Ltd.,bearing Nos. 1138/79 and 1140/79, praying for similar writs of
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mandamus and certiorari respectively. The basis for each of theseapplications is also the same as that upon which the petitioner-company itself has prayed, in the corresponding application, forrelief by way of writs of mandamus and certiorari.
When these applications were taken up for inquiry, whilst onegroup of counsel appeared for the petitioner in each one of thefour applications, another group appeared for the respondent ineach of the four said applications; and both Mr. H. L. de Silva,who led for the petitioners, and Mr. K. N. Choksy, who led for therespondents, consolidated the submissions each of them had tomake -in respect of all four applications and they both agreedthat this Court should consider their respective submissions madein respect of the applications for both mandamus and certiorari,in the course of the judgment of this Court in any of the fourapplications and thereafter make appropriate orders in each of theother three applications on the basis of the conclusions arrived atin the said judgment. In these circumstances, this Court hasdecided to consider the submissions made by both counsel inregard to relief by way of both mandamus and certiorari coveringall four applications, in the judgment in this applicationNo. 1137/79—made by the petitioner-company for a writ ofmandamus, and thereafter make appropriate orders in the otherthree applications referred to above—for certiorari made by thepetitioner-company in application No. 1139/79, and for writsof mandamus and certiorari made-bv J. B. Fishing Industries Ltd.in application Nos. 1138/79 and 1140/79 respectively. I
I shall at this stage set out the facts and circumstances whichare relevant in the several applications referred to above-for bothwrits of mandamus and certiorari: that J. B. Textiles IndustriesLtd. is a public limited liability Company duly incorporatedunder the provisions of the Companies Ordinance (Cap. 145) andwas, at times material to these applications, the owner of thebusiness undertaking which carried on the manufacture ofsynthetic textiles at premises No. 133, Meetotamulla Road,Wellampitiya: that J. B. Fishing Industries Ltd. is also a publiclimited liability company duly incorporated under the provisionsof the said Companies Ordinance (Cap. 145) and was, at timesmaterial to these applications, the owner of the businessundertaking for the manufacture of fishing nets which was alsocarried on at the aforesaid premises bearing No. 133,Meetotamulla Road: that the shareholders of both petitioner-
CA J. B. Textiles Industries Ltd. v. Minister of Finance & Planning (Ranasinghe, J.) 243
companies, referred to above, are citizens of Sri Lanka and aredomiciled in Sri Lanka: that the Business Undertakings(Acquisition) Act, No. 35, of 1971, the preamble to which statesthat it is an Act to provide for the acquisition for the Government,whether by agreement or compulsorily, of any businessundertaking, for the requisitioning or compulsory acquisition ofany property necessary for the purposes of that undertaking andfor matters connected therewith or incidental thereto, becameoperative as from 1.10.1971: that on 29.12.1976 the ActingMinister of Finance made a primary Vesting Order, under theprovisions of section 2 (1) (b) of the said Act, which waspublished in Government Gazette No. 245/7A of the same date,29.12.1976, and an extract of which is P2. vesting the aforesaidbusiness undertakings of both petitioners: that the said primaryVesting Order, ^P2, was made without affording either of thepetitioners any opportunity of being heard as to why the saidbusiness undertakings should not be so vested in the Government:that the petitioners appealed from the said primary Vesting Order,P2, to the respondent, in terms of the provisions of section 7(1)of the said Act, copies of which said appeals are marked "P3":that the said primary Vesting Order,* P2, was not laid before theNational State Assembly within the period specified in sub-section (3) of section 2 of the said Act: that ^ CompetentAuthority, said to have been appointed under the provisions ofsection 3 of the said Act, took possession of the aforesaid businessundertakings of both petitioners, together with the property ofthe said business undertakings, on 29.12.1976 and has continuedto manage and administer the said business undertakings: that noAdvisory Board, as set out in the provisions of section 7 (2) ofthe said Act, was appointed: that the said National StateAssembly was prorogued on 5.2.1977 and later dissolved on18.5.1977: that on 5.7.1977 the petitioners instituted actions inthe District Court of Colombo praying for a declaration that thesaid primary Vesting Order, P2, was null and void and that the saidbusiness undertakings and their respective property be returnedto the petitioners: that P4 and P5 are respectively copies of theplaints filed by the petitioners and the answers filed by theAttorney-General in the said actions: that, on 5.9.1977, therespondent in his capacity as Minister of Finance, revoked the saidprimary Vesting Order, P2, a copy of which said order ofrevocation published in the Government Gazette is "P6": that onthe following day, on 6.9.1977, the respondent made a freshprimary Vesting Order, P7, in respect of the same business
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undertakings referred to above, and which was published in theGovernment Gazette: that the petitioners were not granted anopportunity of being heard before the said primary VestingOrder, P7, was made: that the petitioners did on 29.1.1977, fileappeals, copies of which are marked as P8, against the said primaryVesting Order, P7, to the respondent in terms of section 7 (1) ofthe said Act : that a motion for the approval of the said primaryVesting Order, P7, was laid before Parliament on 4.10.1977:that Parliament by a resolution, did as is evidenced by P9, approvethe said primary Vesting Order, P7 on 20.10.1977: that the PrimeMinister appointed an Advisory Board in terms of section 7 (2)of the said Act: that the said appeals of the petitioners, P8 werereferred by the respondent to the said Advisory Board in terms ofsection 7 (2) of the said Act: that at the hearing before the saidAdvisory Board, which commenced on 23.12.1977 and wasconcluded on 2.3.1978, the petitioner led evidence, inter alia, toestablish that the first primary Vesting Order, P2 had been madeby the then Acting Minister of Finance mala fide and forextraneous reasons and to achieve certain partisan politicalobjectives of the then Member of Parliament for Kolonnawa inwhich electorate the petitioners' business undertakings referredto above were situate: that although at the said hearing a DeputySolicitor-General represented the Attorney-General, no evidencewhatever was led to controvert or contradict the allegations ofmala fide made by the petitioners: that, on 16.2.1978, the saitfDeputy Solicitor General in feet expressly informed the saidAdvisory Board that the Attorney-General had been inconsultation with the respondent and that he (the DeputySolicitor-General) has to announce that the respondent has statedthat there is no material which could be placed before the saidAdvisory Board to controvert or contradict the material which hadbeen already placed before the said Advisory Board by thepetitioners and that he, the Deputy Solicitor-General, is also notpossessed of any material with which to cross-examine thewitnesses who had given evidence for the petitioners: thatthereafter, on 15.3.1978, the said Advisory Board submitted areport to the respondent tendering its advice to the respondent interms of section 7 (2) of the said Act: that, according to the saidreport, dated 15.3.1978, submitted by the said Advisory Board tothe respondent, a copy of which was marked before this Court, on
by learned counsel appearing for the respondent as"X", the said Advisory Board has advised the respondent that themembers of the said Board are of the view that there were reasons
CA J. B. Textiles Industries Ltd. v. Minister of Finance & Planning {Ranasinghe, J.) 245
other than economic reasons which had prompted the originaltake-over of the business undertakings (i. e. P2) of the petitionersand that the vesting of the said business undertakings of thepetitioners was unjustified: that no communication has beenreceived by the petitioners from the respondent in regard to eitherthe advice so rendered to the respondent by the said AdvisoryBoard or the action the respondent has taken or proposes to takeupon such advice: that the petitioners by letter dated 19.2.1979(P12) requested the respondent to revoke the said primary VestingOrder, P7: that the respondent has not yet revoked the saidprimary Vesting Order, P7: that the Government has thereafterinvited the petitioners to participate in a joint venture with 51% ofthe shares in the said undertaking to be held by the Governmentand the balance 49% to be held by the petitioners: that thepetitioners have declined to accept the said proposal.
The position taken up by learned counsel on behalf of thepetitioners in respect of the petitioners' claims for relief in theform of a writ of mandamus is: that the power vested in therespondent by the provisions of section 7 (3) of the said Act isone vested in the respondent for the purpose of being used for thebenefit of persons in the position of the petitioners in respectof whose business undertakings the Advisory Board advises thatthe primary Vesting Orders be revoked: that the object of vestingsuch power in the respondent is to effectuate a legal right: that anundertaking was given in Parliament by the Prime Minister to actin accordance with the advice of the Advisory Board: that,therefore, the petitioners are entitled to call upon the respondentto exercise the said power of revocation, and the respondent isunder a legal duty to revoke the said primary Vesting Order whencalled upon to do so by the petitioners: that the undertakinggiven by the Prime Minister on the floor of the House on behalfof the Government, as is evidenced by the document P9 which is acopy of the Hansard of 20.10.1977, is one which is compatiblewith the respondent's duty and is accordingly binding on therespondent and must be honoured: that, although the provisionsof section 7 (3) of the said Act are couched in permissive language,they nevertheless do vest in the respondent a power coupled witha duty to exercise such power: that the respondent is vested withan enabling power which the respondent is under a duty toexercise upon receipt of advice from the Advisory Board that theprimary Vesting Order be revoked, and the exercise of which saidpower the petitioners have a right to demand of the respondent.
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I shall first consider the petitioners' application for relief byway of certiorari.
A mandate in the nature of a writ of certiorari is sought forby the petitioners only against the aforesaid primary VestingOrder P7 made by the Respondent on 6.9.1977. The groundsupon which the petitioners seek to have P7 quashed are: that P7was made without affording the petitioners an opportunity ofbeing heard: that P7 has, therefore, been made in violation of therules of natural justice: that the fact that the petitioners did havean opportunity of making representation to an Advisory Boarddid not dispense with the requirement to observe the principles ofnatural justice even before a primary Vesting Order is made:that P7 was made without jurisdiction in that it was made for acollateral purpose and not for a purpose for which the power wasconferred: that it was made ultra vires and in excess of theauthority vested in the respondent by the said Act: that it wasmade merely to cure a procedural irregularity which affectedthe validity of the earlier primary Vesting Order P2 and not uponany independent ground or reason for vesting the said businessundertakings of the petitioners: that the mala tides whichattached to P2 and vitiated P2 also affects P7 and renders it nulland void: that the subsequent approval of P7 by a resolution ofParliament does not in law cure it of its earlier infirmities.
The position put forward on behalf of the respondent to resistthe petitioners' claims for both writs of mandamus and certiorariis: that, according to the official documents and other materialavailable to the respondent, P2 had been made by the respondent'spredecessor-in-office in consultation with the then Cabinet ofMinisters and the relevant administrative officials in furtherance ofthe governmental policy: that the documents R1— R6 contradictthe petitioners' allegation of mala fide tainting the said Order P2:that, upon the respondent assuming office in July, 1977, therespondent reviewed and reconsidered whether or not the vestingof the petitioners' business undertakings should continue anddecided that it should: that the Order P7 was thereupon made asa matter of governmental and administrative policy in the publicinterest: that the advice rendered to the respondent by the saidAdvisory Board on 15.3.1978, in consequence of the appeal madeby the petitioners is based purely upon the representations made bythe petitioners to the said Advisory Board: that the respondenthaving considered the said advice and having also consulted the
CA J. 8. Textiles Industries Ltd. v. Minister of Finance & Planning IRanasinghe.JJ 247
relevant Minister and also the Cabinet of Ministers decided not torevoke the said Order P7: that the said decision not to revokeP7 was taken by the respondent in the exercise of the undoubteddiscretion vested in the respondent by section 7(3} of the saidAct and was arrived at on the basis of, inter alia, Governmentalpolicy and the public interest and rested upon, among othermaterial, the documents R1 to R16: that the provisions of section7(3) do not cast an imperative duty or obligation on therespondent to revoke a primary Vesting Order upon being advisedto do so by the Advisory Board: that the respondent is not boundto accept and act upon the advice of the Advisory Board: that thesaid provisions in law vest in the respondent a discretion whetherto make an order of revocation or not: that in so deciding therespondent is not guided only by such advice, but that therespondent can and must also be guided by considerations ofGovernmental policy and the public interest: that, in so acting,the respondent acts in a purely executive character: that therespondent owes no duty to the petitioners the performanceof which could be compelled by way of a writ of mandamus: thatin making primary Vesting Order under the provisions of section2(2) of the said Act the respondent acts throughout in hisexecutive capacity and does so in the exercise of an unfetteredand absolute discretion based upon considerations o^Governmental policy of State and public interest: that such anorder is not an order or decision which is, in, law, amenable toa writ of certiorari: that any interference with the exercise ofthe said discretion vested in the respondent would amount to asubstitution of the view of the Court to that of the respondentwho alone is the authority empowered by Parliament to makesuch an Order: that there is no requirement that the petitionersshould have been heard before the Order P7 was made: that, evenif the petitioners did have any such right to be heard at thatstage, the failure to do so has not caused the petitioners anyprejudice, as they have thereafter, in pursuance of the rightto appeal granted to them by section 7(1) of the said Act, infact appealed to the Advisory Board before which they did havea full and sufficient opportunity of presenting their case: thatthis Court has no jurisdiction to grant the writs prayed for bythe petitioners in view of the provisions of section 22 of theInterpretation Ordinance (Cap. 2) as amended by Act No. 18of 1972: that the said Order P7 is not a purely executive Order,but is "an executive cum legislative order" as it has also beenapproved by Parliament, and, as it has the sanctity of an Act of
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Parliament, it is beyond the pale of judicial review: that thepetitioners cannot make use of any speeches made in Parliamentby the respondent or the Prime Minister or any other Ministeror Member of Parliament referring to the "take-over” of thebusiness undertakings of the petitioners to support any positionor preposition put forward by the petitioners in these proceedings,as Hansard is, as far as this Court is concerned, "a closed book'.'
It will be useful at this stage to make a general survey of theprovisions of the said Act No. 35 of 1971. As already set out, ithas as its main objective the making of provision for theacquisition either by agreement or compulsorily, of businessundertakings by the Government for the Government; and section2(1) makes provision for the Minister of Finance, of his ownmotion or at the request of another Minister, either to direct theSecretary to the Treasury to acquire a business undertaking byagreement, or by an Order published in the Gazette to vest in theGovernment anv business unriertakina- suh-sertinn of thissection states that from the date on which such businessundertaking is either acquired or vested, the Government shallhave absolute title to such business undertaking free from allencumbrances: sub-section (3) requires such vesting order to belaid before the House of Representatives for approval within theperiod specified therein: and, in terms of sub-section (5), wheresuch approval is refused, such business undertaking is deemednever to have vested in the Government: in terms of sub-section
, where such approval is granted, such vesting order becomesfinal and conclusive and is not to be called in question in anyCourt whether by writ or otherwise: section 17 defines a businessundertaking to mean any undertaking of a commercial, industrial,agricultural or professional nature, inclusive of all properties,movable or immovable, used for the purposes of such undertaking:once a business undertaking is acquired by or vested in theGovernment, section 3 authorises the appointment of one or morecompetent authorities to manage and administer the affairs ofsuch a business undertaking: section 4 deals with the rights andliabilities of a business undertaking subsisting at the date of suchacquisition by, or vesting in the Government; section 5 empowersthe competent authority to take possession of such businessundertaking, and, in terms of section 6, the competent authority ismade subject to the general or special direction of the Minister;section 7(1) enables the proprietor of a business undertaking, inrespect of which a Vesting Order is made, to appeal to the Minister
CA J. B. Textiles Industries Ltd. v. Minister of Finance & Planning fRanasinghe, J.) 249
of Finance against such vesting order, and in terms of sub*section(2) the Minister of Finance may refer such an appeal to anAdvisory Board, which is appointed by the Prime Minister, and thesaid Advisory Board shall advise the Minister on the questionwhether such Order should be revoked: and sub-section (3) statesthat "the Minister may, after considering the advice tendered tohim by the said Advisory Board, revoke the primary Vesting Orderin respect of which the appeal was made"; section 8 deals withthe compulsory transfer to the Government of movable orimmovable property required for the purposes of any suchbusiness undertaking so acquired by or vested in the Government;section 9 deals with the exclusion from a Vesting Order of anyproperty, which has vested in the Government by virtue of suchVesting Order, by a divesting Order, and the effect of such adivesting Order; section 10 provides for the requisitioning ofproperty (and the derequisitioning thereof) for the purposes ofsuch a business undertaking: the operation of a bank accountby the owner of a business undertaking, which is so acquired byor vested in the Government, is prohibited or controlled by theprovisions of section 11; the regulation making power is dealtwith by section 12; section 13 empowers a person authorizedin writing by the Minister to enter the premises or place whereany business undertaking is carried on and inspect its books andproperties, and also demarcate its boundaries, and call for anyinformation relating to it: section 14 empowers the Minister(or any person authorized by him) to serve a notice of claim onan owner of a business undertaking declaring that such businessundertaking is required for the purposes of the Government;sub-section (3) prohibits the alienation to any person other thanthe Government of any property of or any rights in respect ofany business undertaking in respect of which such a notice ofclaim has been made; sub-section (4) requires the furnishing ofinformation, relating to any business undertaking, which theMinister specifies, by persons when requested to do so by theMinister; section 15 sets out the various offences made punishableby this Act; payments in respect of any property acquired by orvested in the Government are regulated by section 16; and lastlythe provisions dealing with interpretation are embodied insection 17.
It will be useful at this stage to consider the position ofMinisters when they exercise powers and functions which havebeen entrusted to them -&y Parliament under various provisions of
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law, and also the question whether or not the exercise of suchpowers is subject to the supervision of the Courts, and, if so, thenature and extent of such judicial review.
In the case of Johnson & Co. (Builders) Ltd. v. The Minister ofHealth (1) where the question of the nature and the character ofthe functions exercised by a Minister who is called upon toconfirm a compulsory purchase order made under the provisionsof the Housing Act, came up for consideration. Lord Greene,
M.R., stated: that the decision whether to confirm or not mustbe made in relation to questions of policy; that the Minister, indeciding whether to confirm or not , will like every Ministerentrusted with administrative duties, weigh up the considerationswhich are to affect his mind, the preponderating factor in many, ifnot all, cases being that of public policy, having regard to all thefacts of the case; that, generally speaking, firstly the functions ofthe Minister in carrying such provisions into operation arefundamentally administrative functions; that, in carrying themout, he has the duty which every Minister owes to the Crown,viz., to perform his functions fairly and honestly and to the bestof his ability; that his functions are however administrativefunctions, subject only to the qualification that, at a particularstage and for a particular and limited purpose there is superimposedon his administrative character a character which is looselydescribed as "quasi-judicial"; that the language which has alwaysbeen construed as giving rise to the obligations, whatever they maybe, implied in the words "quasi-judiciai" is to be found in theduty to consider the objections which is superimposed on aprocess of Ministerial action which is essentially administrative;that such a process may begin in all sorts of manners—thecollection of information, the ascertainment of facts, and theconsideration of representations made from all sorts of quarters,and so forth, long before any questions of objection can ariseunder the procedure laid down by the Act; that at that stage, inacting to carry the Act into effect or for purposes relevant to it andbearing on it, the Minister is an executive officer of Government,and nothing else; that the administrative character in which heacts reappears at a later stage in that after considering theobjections, which may be regarded as the culminating point of hisquasi-judicial functions, there follows something which again ispurely administrative, viz., the decision whether or not to confirmthe order; that that decision must be an administrative decision,because it is not to be based purely on the view that he forms of
CA J. B. Textiles Industries Ltd. v. Minister of Finence & Planning (Banasinghe. J.12S1
the objections, vis-a-vis the desires of the local authority, but is tobe guided by his view as to the policy which, in the circumstances,he ought to pursue; that it is in respect of the public interest thatthe discretion that Parliament has given to the Minister comesinto operation; that it could well be that, on considering theobjections, the Minister may find that they are reasonable andthat the facts alleged in them are true, but, nevertheless, he maydecide that he will overrule them: that his action in so deciding isa purely administrative action, based on his conceptions as to whatpublic policy demands: that his views on the matter he must, ifnecessary, defend in Parliament, but that he cannot be called on todefend them in the Courts; that it is clear that the decision of theMinister is not impeachable in the Courts on the grounds onwhich a judicial decision might be impeached; that, for instance,it would be impossible for an objector to attempt to get thedecision set aside on the grounds that the evidence at the inquiry,or the evidence put before the Minister in his quasi-judicialcapacity, was insufficient to support his decision to confirm theorder; that, in a nutshell, the decision of the Minister is a thingfor which he must be answerable in Parliament, and his actionscannot be controlled by the Courts; that, if a Minister actsunfairly, his action may be challenged and criticized in Parliament;but that it cannot be challenged and criticized in the Courts unlesshe has acted unfairly in another sense, viz., in the sense of having,while performing quasi-judicial functions, acted in a way whichno person performing such functions, in the opinion of the Court,ought to act. At page 403, in discussing further the obligationimplied by the use of the word “quasi-judicial" Lord Greenequotes the observations of Henn Collins, J., in the case of Miller v.Minister of Health, (2):
"I think one must remember in approaching these mattersthat the question what a Minister shall or shall not do whenacting administratively is not one that can be determined onany principle of law, nor yet on any principle, as I see it, ofnatural justice as between the Minister and any one member ofthe community. The Minister, acting in his administrativecapacity is governed by considerations of expediency. He has todecide ultimately, I suppose, subject to the review andgovernance of Parliament-what in his view is best for thecommunity. No principle of natural justice as between anyindividual and the Minister of the Crown has any place in thatkind of administration, but when questions as to whether those
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administrative powers should be exercised have been referredto him by Act of Parliament, in this case the Housing Act,1936, at that point he has to consider judicially the matter thatis so brought before him. That does not mean, as the authoritieshave shown, that he is not to use any knowledge which hascome to him, so to speak extra-judicially, but all the materialwhich has been formulated for his judicial consideration mustbe (made) available to him on both sides. That is the meaningof his acting with natural justice in a judicial capacity".
Johnson's case (supra) has recently been considered by theHouse of Lords in the case of Bushed and another v. Secretaryof State for die Environment (3) in which the applicability of theprinciples of natural justice at a public local inquiry held to enableobjections to be heard in respect of two schemes proposed by theMinister for the construction of two stretches of motor way,and the duty of the Minister is regard to the material consideredby him when arriving at a decision were discussed. Lord Diplock,in the course of the judgement, referred to Lord Greene'sjudgment in the Johnson case (supra) as a "neglected but luminousanalysis of the quasi-judicial and administrative functions of aMinister as confirming authority of a compulsory purchase
order", and stated that that judgment contains a
salutary warning against applying to procedures involved in themaking of administrative decisions concepts that are appropriateto the conduct of ordinary civil litigation between private parties.Whilst affirming the views of Lord Greene, in regard to the variousstages of the decision-making process, Lord Diplock states, atpage 617, with reference to the 'quasi-judicial' stage, which isreached when the Minister is considering the objections:
"In doing this he must act fairly as between the promotingauthority and the objectors; after the inquiry has closed hemust not accept from third parties fresh evidence whichsupports one side's case without giving the other side anopportunity to answer it. But when he comes to reach hisdecision what he does bears little resemblance to adjudicatingon a Ms between the parties at an inquiry. On the substantivematter, viz. whether the order should be confirmed or not,there is a third party who was not represented at the inquiry,the general public as a whole whose interests it is the Minister'sduty to treat as paramount"
CA J. B. Textiles Industries Ltd. v. Minister of Finance & Planning (Ranasinghe, J.) 253
These principles were also considered by the Mouse of Lords irrthe case of Padfield v. The Minister of Agriculture (4), in whichthe question which arose for consideration was whether, where astatute provided that a committee of investigation shall hecharged with the duty, "if the Minister in any case so directs", ofconsidering and reporting to the Minister on any complaint madeto the Minister as to the operation of a scheme dealing with themarketing of milk in England and Wales, the Minister was under aduty to refer to the committee of investigation a complaint madeto him by the appellants, who are members of the South-Eastregional committee of the Milk Marketing Board, in regard to theprices paid for milk under the said scheme, and whether theMinister could be compelled by way of mandamus to make suchreference. The Minister, in that case, had declined to refer the saidcomplaint to the said committee of investigation setting out intwo letters the reason for so doing. Lord Morris stated , in thecourse of the judgment at page 706: that, when a Minister who isvested with executive discretion proceeds properly to exercise hisjudgment then it is no part of the duty of any Court to act as aCourt of Appeal for his decision or express an opinion as towhether it was wise or unwise: that a Court could intervene onlywhen the Minister failed or refused to apply his mind to or toconsider the proper question, or where the Minister misinterpretedthe law or proceeded on an erroneous view of the law, or wherethe Minister bases his decision on some wholly extraneous
oQpcirjorjjTiMn #jr tftij|hih im iv;*£*!!$;muh !i!U *JJ
which he should have taken into account. At page 717, LordUpjohn stated: that a Minister in exercising his powers and dutiesconferred upon him by statute can only be controlled by aprerogative order which will only issue if he acts unlawfully; thatunlawful behaviour may be stated as an outright refusal toconsider the relevant matter, or by misdirecting himself in point oflaw, or by taking into account some wholly irrelevant orextraneous consideration, or by wholly omitting to take intoaccount a relevant consideration: that the policy reasons uponwhich a Minister may act should not be based upon politicalconsiderations; that unless a Minister acts unlawfully and therebyoverstepped the true limits of his discretion and thus exceeds hisjurisdiction, the Court has no jurisdiction to interfere; that a Courtin such a case, acts not as a Court of Appeal and has nojurisdiction to correct the decision of a Minister acting lawfullywithin his jurisdiction however much the Court may disagree withits exercise.
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In this case the House of Lords in asserting the right of theCourts to review an allegedly absolute discretion of the Minister,held that the Minister had acted unlawfully, and rejected the theoryof an unfettered discretion vested in the Minister, which theCourts cannot review. At page 702, Lord Reid stated that thereis no authority to support the unreasonable proposition that itmust be all or nothing—either no discretion at all or an unfettereddiscretion. At page 699 Lord Reid also stated:
"He may disagree with the view of the committee as topublic interest, and if he thinks that there are other publicinterests which outweigh the public interest that justice shouldbe done to the complainers he would be not only entitled butbound to refuse to take action. Whether he takes action or not,he may be criticised and held accountable to Parliament, butthe Court cannot interfere."
Lord Upjohn at page 719, referring to the claim of an"unfettered" discretion, states that even if such an adjective wereused in a statute it could:
"do nothing to unfetter the control which the judiciaryhave over the executive, namely that in exercising their powersthe latter must act lawfully and that is a matter to bedetermined by looking at the Act and its scope and object inconferring a discretion on the Minister rather than by the use ofadjectives."
The House of Lords took the view that, although the Minister wasvested with a discretion, such discretion had not been properlyexercised according to law and directed that the Minister berequired to consider the matter according to law. In this caseTheir Lordships also considered the question whether a Ministershould give reasons for a decision made by him in the exercise ofa statutory discretion vested in him. In dealing with the argumentthat the Minister is not bound to give reasons. Lord Upjohn atpage 719 stated:
"that without throwing any doubt on what are well knownas the club expulsion cases, where the absence of reasons hasnot proved fatal to the decision of expulsion by a clubcommittee, a decision of the Minister stands on quite a differentbasis: he is a public officer charged by Parliament with the
CA J.B. Textiles Industries Ltd. v. Ministar of Fmanca & Planning (RarminghB, J.i 255
discharge of a public discretion affecting Her Majesty's subjects;if he does not give any reasons tor his decision it may be ifcircumstances warrant it, that a Court may be at liberty tocome to the conclusion that he had no good reason forreaching that conclusion and directing a prerogative order toissue accordingly".
The decision of the House of Lords in this case has been referredto by de Smith in his book entitled ''Judicial Review ofAdministrative Action "{4th edition) at page 293 as " an importantlandmark in the current era of judicial activism in this area ofadministrative law".
In the case of Congreve v. Home Office, (5), where thecomplaint was ot a misuse ot power by the Home Secretary in thathe exercised his statutory powers for an unlawful purpose byrevoking a radio licence. Lord Denning, M.R. at page 709 stated:that where a Minister misuses the power conferred upon him byParliament the Courts not only have the authority but it is alsotheir duty, to correct such misuse of power by the Minister or hisdepartment, no matter how much the Minister may resent it;and at page 718 Roskill, L.J. stated that: it is not for the Courtto decide whether or not the executive has acted reasonably savein the sense that, if the action is shown to be such that noreasonable authority could have taken it, then and then only
should the Court interfere: that, provided the Minister acts within
the four corners ot his jurisdiction, the Court cannot interfere.
Laker Airways Ltd. v. Department of Trade, (6), is also a casein which the Court ot Appeal was called upon to review theexercise by a Secretary of State of a statutory power to revoke anair-carrier licence, and Lord Denning at page 193 reaffirmed theprinciple that when discretionary powers are entrusted to theexecutive by statute the Courts can examine the exercise of suchpowers so as to see that they are used properly and not improperlyor mistakenly under the influence of a misdirection in fact or inlaw, and at page 194 stated that, if it is found that a Minister hasexercised his powers improperly or mistakenly so as to impingeunjustly on the legitimate rights or interests of the subject, thenit is the duty of the Courts to intervene and say so.
The view that, where a Minister was required by a statute to be'satisfied,' a Minister had an unlimited discretion which could not'
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be challenged in the Courts, unless bad faith was shown wasrejected in the case of Secretary of State v. Tameside (7), where inthe Court of Appeal Lord Denning, M.H. stated that the theory ofan unlimited discretion adopted in the case of Liversidge v.Anderson, (8), during the War was accepted only in regard toregulations in war time or immediately after the War when thedecisions of the executive had to be implemented speedily andwithout question and that such statements do not apply today.In the House of Lords, which affirmed the decision of the Courtof Appeal, Lord Diplock observed that the decision to be takenis a matter for the Secretary of State and that it was not for theCourt to substitute its own opinion for that of the Secretary ofState, but that it is for the Court to determine whether it has beenestablished that in reaching his decision the Secretary of State hasdirected himself properly in law and had in consequence takeninto consideration matters which he ought to have considered andexcluded from his consideration matters that were irrelevant towhat he had to consider.
That a Corporation in considering applications for hackneycarriage licences under a statute was under a duty, in exercisingsuch administrative function to act fairly, and that even wherethe Corporation's function was administrative, the Court wouldnot hesitate to intervene, if it was necessary to secure fairness,and that the duty to act fairly meant that the Corporation shouldbe ready to hear persons or hodies whose Interests were affected,was laid down by the Court of Appeal in England in the case ofRe Lsverpoo! Taxi Owners Association, (9).
in the recent case of Femandopulle v. Minister of Lands andAgriculture, (10) at 119, His Lordship the Chief Justice observed:
"When Common Law rights are involved, the Court alwayshas a right of review, Reg. v. Barnsley Council, Ex parte Hook,(1976) 1 W. L. /?. 1052. The Common Law right to possessionof one's property is one of these. Reg. vs. Agricultural LandTribunal, Ex parte Davis,(1953) 1 W.L.R. 722."
A consideration of the principles referred to above clearlyshow: that, although Ministers may be vested with wide discretionin the exercise of statutory powers given to them by Parliament,there is, however, no power which is unfettered and which theCourts cannot ordinarily review: that, in exercising theirdiscretion Ministers owe a constitutional duty to perform it
CA J. B. Textiles Industries Ltd. v. Minister of Finance & Planning (Ranasinghe, J.) 257
fairly, honestly, reasonably and to the best of their ability: that,in doing so, the Ministers must obey all elementary rules offairness: that, although the ultimate decision of a Minister ispurely administrative, based also upon considerations ofgovernmental policy and his conception of what public interestdemands, yet in the decision-making process his functions mayalso, at a certain stage, be quasi-judicial: that questions of policyare matters entirely for the Ministers: that policy must not bebased on political considerations which are extraneous: that,although a Minister is not bound to give reasons for a decisionmade by him in the discharge of a statutory discretion, yet it ismost desirable that he should; for, if he does not, the Court may,in appropriate circumstances, come to the conclusion that theMinister had no good reason for arriving at such conclusion:that, the Courts can and must intervene where there has been anabuse of power: tnat the Courts can interfere with Ministerialdiscretion only where the Minister is shown to have acted in excessof power, which Parliament has conferred upon him: that thegrounds upon which Courts can so interfere with the exercise ofa discretion and get the Minister back on the right road are badfaith, capricious or arbitrary exercise of power, acting onulterior purpose: that no Court would declare the action of aMinister invalid and illegal merely because the Minister has actedineptly or without tact: that the Courts can review to see thatsuch powers are used properly and not improperly or mistakenlyunder the influence of h misriirec.iinn in rant nr in law, andwhether the Minister has asked himself the right question andtaken reasonable steps to acquaint himself with the relevantinformation to enable him to answer it correctly; that, wherethe Minister acts within the four corners of his authority, theCourts cannot and will not interfere.
As already set out the petitioners attack P7 on several grounds;that it has been made in violation of the principles of naturaljustice and or the duty to act fairly; that it was made merely forthe purpose of curing a procedural defect which affected P2, andnot after any independent consideration of the necessity for thepresent Government to take over the said business undertakings:that it is contaminated with the mala fidas which vitiated theearlier order P2.
Mr. Choksy contended that even if P7 was beset withinfirmities at the time it was first made by the respondent, its
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subsequent approval by Parliament has operated to cure it of itsprevious shortcomings, if any, and to clothe it with all the sanctityof an Act of Parliament. He maintained that P7 is not a purelyexecutive act but "an executive cum legislative act". It seemsto me that, in view of the principles set out in the judgment ofthe House of Lords in the case of F. Hoffmann-La Roche andCo. A.G. and others v. Secretary of State for Trade and Industry(II), this argument cannot be accepted. In that case the Secretaryof State for Trade and Industry made an order in the form of astatutory instrument under the provisions of section 10(1) of theMonopolies and Restrictive Practices (Inquiry and Control) Act of1948. This order had to be laid before and affirmatively approvedby both Houses of Parliament for it to become permanent. Indiscussing the legal status of such an order Lord Morris, at page1140, stated:
"The order then undoubtedly had the force of law.Obedience to it was just as obligatory as would be obedience toan Act of Parliament. There was only the difference thatwhereas the Courts of law could not declare that an Act ofParliament was ultra vires, it might be possible for the Courtsof law to declare that the making of the order (even thoughaffirmatively approved by Parliament) was not warrantedwithin the terms of the statutory enactments from whichit purported to derive its validity";
and Lord Wilberforcc at page 1145, expressed as follows:
"That an attack can be made on a statutory instrument forwant of power needs no demonstration, and I agree with yourLordships that it makes no difference, for this purpose, thatthe instrument has been laid before and approved by the twoHouses of Parliament";
and Lord Diplock at page 1153 elucidated the principle thus:
"My Lord, in constitutional Law a clear distinction can bedrawn between an Act of Parliament and subordinatelegislation, even though the latter is contained in an ordermade by a statutory instrument approved by resolutions ofboth Houses of Parliament. Despite this indication that themajority of members of both houses of the contemporaryParliament regard the order as being for the common weal, Ientertain no doubt that the Courts have jurisdiction to declareit to be invalid if they are satisfied that in making it the Minister
CA J. B. Textiles Industries Ltd. v. Minister of Finance & Planning (Ranasinghe, J.) 259
who did so acted without the legislative power conferred onhim by the previous Act of Parliament under which the orderpurported to be made; and this is so whether the order is ultravires by reason of its contents (patent defects) or by reason ofdefects in the procedure followed prior to its being made (latentdefects)"; and
Lord Cross, at page 1159, said as follows:
"I am not, any more than Lord Diplock,
prepared to agree with the viewthat an order made
by statutory instrument acquires the status of an Act ofParliament if it is approved by resolutions of both Houses ofParliament."
Having regard to the principles set out above, I am of opinionthat this Court has the power to review the said Order P7, and,notwithstanding the fact that P7 has subsequently been approvedby an affirmative resolution of Parliament, declare it to be invalidif this Court is satisfied that the respondent has, in making thesaid order, not acted in the manner required by law.
The petitioners rely upon the materia! placed before theAdvisory Board at the hearing of their appeal, and the contents ofthe report of the S3id Advisory Board, a copy of which wasmarked as "X" by learned counsel for the respondent at the
their allegation of mala tides as against the earlier Order P2. Atthe hearing or the said appeal before the Advisory Board noevidence was led on behalf of the respondent to contradict theevidence placed by the petitioners. On the other hand theAdvisory 8oard was, on 16.2.1978, expressly informed by learnedDeputy Solicitor-General, who had appeared as amicus, that theAttorney-General had inquired from the respondent as to thematerial that was available "to contradict or controvert" theevidence led by the petitioners and that the respondent hadinformed the Attorney-General that there was no such materialas could be placed before the Advisory Board, and that theAttorney-General too has no material from any other sourcewhich could be placed before tfie Advisory Board "to contradictor controvert" the material already placed before the AdvisoryBoard by the petitioners. The learned Deputy Solicitor-Generalhad further informed the Advisory Board that he was not inpossession of even any material with which tocross-examine the
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witnesses who had testified on behalf of the petitioners. It mustbe noted that, by that time, not only the documents R1-R6,which had come into existence before the respondent took office,but also the documents RIO and R11, which have come intoexistence after he took office, would have been available to therespondent Even so, the respondent had not thought it fit toplace them before the Advisory Board, and had instead permittedthe evidence so placed by the petitioners to go unchallenged anduncontradicted. In these circumstances, I do not think therespondent can now be heard to contend that the material set outby him~which does not contain any material which was notavailable to the respondent on 16.2.78, the date on which thelearned Deputy Solicitor-General made the aforesaid statementbefore the Advisory Board—contradicts the petitioner's allegationthat the first preliminary vesting order made on 29th December,1976, was made mala fide. The evidence led by the petitionersbefore the Advisory Board and the report "X" are all matterswhich have taken place after the date on which the Order P7was made. There is nothing before us which shows, or from whichit could be inferred, that the respondent was aware, at or beforethe date on which he made the Order P7, of the material sobrought to light by the said evidence and the said report. Nor hasany allegation of malice on the part of the respondent himselfbeen made. P7, it must also be noted, has been made on 6.9.77,after P2 had been revoked the previous day, 5.9.77, by P6. P7 is,therefore, an entirely new Order having, in law, a separate andindependent existence of its own. Furthermore, the documentsR7, R8, R9 and R10 show that the Order P7 has been made onlyafter the respondent had had consultations with his Ministerialcolleagues, who had interests in regard to such matters, and hehad been advised that die said business undertakings ofthe petitioners should vest in the new Government as well.
It also appears to me that the position taken up on behalf of thepetitioners, that P7 was made merely to get over a proceduraldefect which affected P2, cannot also be said to be established.The petitioners rely on, in order to establish this allegation, thespeeches said to have been made in Parliament by the then PrimeMinister (P9—Col 1749-50), the respondent (P9—Col 1747-48) andthe Minister of Lands and Land Development and MahaweliDevelopment (PI 1— Col 105). Learned counsel for the respondenthas objected to the said speeches being taken into considerationin determining this matter, for the reason that "Hansard is a closed
CA J. B. Textiles Industries Ltd. v. Minister of Finance & Planning (Ranasinghe, J.) 261
book as far as the Courts are concerned". Mr. de Silva concedesthat speeches made in Parliament cannot be looked into in orderto aid in the interpretation of a statutory provision, but hesubmitted that such speeches could be looked into in order to findout how an Act has been implemented by the Government.Mr. de Silva also relies on the said speeches to show how and whythe Order P7 came to be made, and the undertaking said to havebeen given by the Prime Minister.
The Parliament (Powers and Privileges) Act, No. 21 of 1953(Cap. 383), the Preamble to which states that it is, inter alia, tosecure freedom of speech and debate or proceedings in the House,sets out in: section 3 that the freedom of speech debate orproceedings in the House shall not be liable to be impeached orquestioned in any Court or place out of the House: section 4 thatmembers shall not be liable to any civil or criminal proceedings inrespect of anything said or done by them in Parliament: section 7that the immunities to be enjoyed by the members are to be thesame as those enjoyed by the members of the House of Commonsof the Parliament of the United Kingdom: section 9 that allprivileges, immunities and powers of the House shall be part ofthe general and public law of the Island and shall be judiciallynoticed by all Courts of the Island. Section 57 of the EvidenceOrdinance sets out the facts of which Courts must take judicialnotice; and, amongst them is set out, in sub-section (4), the course
of proceedings of the » enislatvirp of the Island. The provisions ofsection 78 (3) of the Evidence Ordinance set out the manner inwhich the proceedings of the Legislature of this Island can beproved. Both sections 57 and 78 of the Evidence Ordinanceappear in Part H of the Evidence Ordinance which is entitled"On Proof" and provide for the mode of proving facts which arein issue and facts which are relevant. These two sections do notdeal with the admissibility and relevancy of facts. They areconcerned only with the mode of proof.
The question of the admissibility of evidence of what is said anddone in Parliament was gone into in the case of Church ofScientology of California v. Johnson-Smith, (12). In that case anaction for libel was brought before the Queen's Bench Divisionagainst a member of Parliament for defamatory remarks made bythe defendant during a television interview; and when thedefendant put forward the defence of fair comment and privilege,the plaintiff in reply alleged malice. In order to establish malice.
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the plaintiff sought to adduce evidence, including extracts fromHansard, of what the defendant had said and done in Parliament.Browne, J. held that what is said and done in Parliament in thecourse of proceedings in Parliament cannot be examined outsideParliament for the purpose of supporting a cause of action eventhough the cause of action itself arose out of something doneoutside Parliament, and so shut out such evidence. The House ofLords did also, in the cases of Davis v. Johnson, (13), and BritishRailway Board v. Pickin, (14), rule out, though on other grounds,applications to refer to proceedings in Parliament.
It is clear that "the parliamentary history" of a statute,in the sense of the debates which took place in Parliament whena Bill was considered, cannot be referred to by a Court to aid itin construing a provision of a statute—vide Craies: On StatuteLaw (7th Edition) pages 128*130. In fact Mr. de Silva himselfaccepted the position that speeches made in Parliament, in thecourse of the debate when a bill is presented to Parliament, cannotbe referred to in Court as an aid in the construction of theprovisions of a statute, it seems to me that in taking cognizanceof "the course of proceedings of Parliament" all that a Court coulddo is to take cognizance, for instance, of the Parliamentaryagenda, of the dates on which a Bill was placed on the agendaand thereafter moved, of its procedural progress throughParliament, and the date on which it received the Speaker'sCertificate. The Court cannot inquire into what was done priorto the Bill being introduced to Parliament, or why ,t was sointroduced, and what the members sain and Hid in relation to itin Parliament. Any reference or inquiry by Court into anythingthat is alleged to have been said or done by a member ofParliament during the various stage of the progress of a Billthrough Parliament may involve an adjudication by Court, whichthe Court is not competent to undertake. If, as is clear, a Courtcannot take into consideration anything said or done inParliament to aid it in the construction of a provision of a statutepassed by Parliament itself, still less legitimate would it be for theCourt to take into consideration anything so said and done for anyother purpose.
It therefore appears to me that the petitioners are not entitledto rely on the said documents P9, and P11 for the purpose forwhich they have sought to produce them before this Court inthese proceedings.
CA J.6. Textiles Industries Ltd. v. Minister of Finance & Planning (Ranasinghe. J.i 263
In this view of the matter, I am of opinion that the challengeto the validity of the Order P7, made on the grounds, that it isriddled with the mala tides which afflicted the earlier Order P2and that it was made for a collateral purpose, namely to overcomea procedural infirmity which affected P2, and was not made afteran independent consideration of the necessity to vest the saidbusiness undertakings in the present Government, must fail.
I shall now proceed to consider the attack made upon the saidOrder P7 on the ground that it has been made in violation of theprinciples of natural justice.
English law recognises two principles of natural justice: audialteram partem (that the parties be given adequate notice and anopportunity of being heard), and nemo judex in causa sua (thatan adjudicator be disinterested and unbiased). One of the earliestinstances in English law of a person being given relief because hehad not been given an opportunity of being heard could be foundin Bagg's case (15) where a chief burgess of Plymouth, who hadbeen disfranchised for unbecoming conduct was reinstated byway of Mandamus as he had been removed without notice orhearing (Smith: page 159) In the 19th century seyeral decisionsestablished that the rule of audi alteram partem should governthe conduct of every tribunal or body of persons invested withauthority "to adjudicate upon matters involving civil consequencesto individuals"—M/nnrf v. VJnnrl (16) at 196 (Smilh page 160/:that, where a statute authorising interference with property orcivil rights was silent on the question of notice and hearing, the
Courts did invoke the "justice of the common lawto
supply the omission of the Legislature”, and lay down the rulewhich was "of universal application and founded on the plainestprinciple of justice", that public authorities must either give theperson concerned "notice that they intend to take this matterinto their consideration with a view to coming to a decision, or, ifthey have come to a decision, that they propose to act upon it,and give him an opportunity of showing cause why such stepsshould not betaken"— Cooper v. Wandsworth Board of Works, (17),at 194.
Although about the beginning of the 19th century the Houseof Lords in the case of Board of Education v. Rice (18) statedthat officers of State who had the duty of deciding or determiningquestions "must act in good faith and fairly listen to both sides.
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for that is a duty lying upon everyone who decidesanything”, yet, four years later in 1915 in Arlidge's case
(19), the House of Lords held that a government departmentdetermining a housing appeal was not obliged to divulge aninspector's report to the appellant even though the reportcontained statements prejudicial to his case which he might havewished to controvert.This decision, according to Smith, page 164,marked the beginning of a partial retreat by the English Courtsfrom their earlier position and that for nearly half acentury—until the 1960s—the English Courts showed a markedreluctance to hold that an implied duty to give prior notice andopportunity to be heard was imposed on persons and authoritiesempowered to make decisions in the general field of administrativelaw. During the period of the two World Wars "although enormouspowers over persons and property were vested in the Governmentthe Courts showed an understandable reluctance to scrutinize theexercise of essential powers in such a way as to make it moredifficult for the Government to govern” (Smith, page 165), and"to interfere with the discretion of the Ministers—in fighting theWar—and repairing the ravages done by it” Denning: TheDiscipline of the Law, page 88.
This attitude of the English Courts continued till the 1960s.Then came the decision of the House of Lords in the case of Ridgev. Baldwin, (20), which has been hailed as a land-mark in the fieldof administrative law. This case dealt with the dismissal of a ChtefConstable by a Watch-Committee which gave the Chief Constableno notice of the proposal to dismiss him, or of the particulars ofthe grounds on which such dismissal was based; nor an opportuniyof placing his case. The House of Lords held, inter alia, that thedismissal was bad for failure to observe the rules of natural justiceand that although such dismissal had been affirmed by theSecretary of State whose decision was said to be final and bindingunder the provisions of the relevant Act, yet such decision couldnot make valid that which was a nullity. Lord Reid cited withapproval the decision in Cooper's case (supra) and quoted therule, set down by Erie, C. J. and described as a rule 'of universalapplication and founded on the plainest principles of justice” byWilles, J. that no man should be deprived of his property withouthis having an opportunity of being heard, and that that has beenapplied to many exercises of power which in commonunderstanding would not be at all a more judicial proceeding thanwould be the act of the district board in ordering a house to be
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pulled down, and in which case Byles J. had also stated that,although there are no positive words in a statute requiring that theparty shall be heard, "yet the justice of the common law willsupply the omission of the Legislature". Lord Reid also expressedthe view that the duty to observe the rules of natural justiceshould be inferred from the nature of the power conferred uponthe authority.
The applicability of the principles of natural justice wasconsidered by the House of Lords in the case of Durayappah v.Fernando,(21): and their Lordships stated that outside
well-known cases such as dismissal from office, deprivation ofproperty and expulsion from Clubs, there is a vast area where theprinciple can only be applied upon most general considerations,and that in such cases three matters must always be borne in mindwhen considering whether the principle should be applied or not:
"There are three matters which must always be borne inmind when considering whether the principle (audi alterampartem) should be applied or not. These three matters are: First,what is the nature of the property, the office held, statusenioyed or services to be performed by the complainant ofinjustice. Secondly, in what circumstances or upon whatoccasions is the person claiming to be entitled to exercise themeasure of control entitled to intervene. Thirdly, when a rightto intervene is proved, what sanctions in fact is the latter entitledto impose upon the other, it is only upon a consideration of allthose matters that the question of the application of theprinciple can properly be determined."
This judgment also makes it clear that, 'in the well-known classesof cases', which includes the deprivation of property, in theabsence of any express provision to the contrary in the relevantstatute, the principles of natural justice should be applied.
Any discussion of the modern concepts of the principles ofnatural justice would not be complete without a reference to theoft-quoted observation of Lord Hailsham, L.C. in the case ofPeartberg v. Varty, (2.2):
"The doctrine of natural justice has come in for increasingconsideration in recent years, and the Courts generally andYour Lordships' House in particular have, I think rightly.
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advanced its frontiers considerably. But at the same time theyhave taken an increasingly sophisticated view of what it requiresin individual cases."
The House of Lords has considered the applicability of theprinciples of natural justice and the duty to hear in the case ofFairmount Investments Ltd. v. Secretary of State for theEnvironment. (23), also. In that case the applicant owned severalhouses in an area which the local council had, under the provisionsof the Housing Act of 1957, declared to be a clearance area.Subsequently the Council made a compulsory purchase order forthe purpose of demolishing the houses. The applicant objected;and the Secretary of State appointed, in terms of the provisionsof the said Act, an inspector to hold an inquiry. The Councilpublished, before the said inquiry, documents showing thereasons for the compulsory purchase proposal and a summary ofthe principal grounds of unfitness. There was no reference tofoundations and no suggestion that the foundations were sodefective as to rule out any question of rehabilitation. No referencewas made to the foundations even at the inquiry. At the end of theinquiry the inspector visited the houses in question, and in hisreport stated that, because of certain defects in the foundations,and other previously stated defects, satisfactory rehabilitationwould not be a financially viable proposition. Thereafter theSecretary of State confirmed the compulsory purchase order. Theappellant thereupon sought an order, under the provisions of thesaid Act, quashing the said compulsory purchase order. The Houseof Lords held that ihe decision of the Secretary of State had beenmade in breach of the rules of natural justice since it was basedupon as opinion formed by the Inspector as to the inadequacyof the foundations which had not been part of the Council's caseand which the applicant had had no opportunity of refutingeither by showing that the opinion was erroneous or by showingthat the inadequacy did not render rehabilitation impracticable.Viscount Dilhorne stated, at page 869, with regard to therespondents' (who were the applicants) complaint:
"Just as it would have been contrary to natural justice ifthe Secretary of State in making his decision had taken intoaccount evidence received by him after an inquiry without anobjector having an opportunity to deal with it, so here in myview it was contrary to natural justice for his decision toconfirm the order to be based to a very considerable extent on
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an opinion, which investigation might have shown to beerroneous
"By the failure to give the respondents any opportunity todeal with these matters, they were in my opinion substantiallyprejudiced"; and
Lord Russell of Killowen, at page 874, stated:
" But in this case I am unable consonant with the essentialprinciples of fairness in a dispute to uphold the compulsorypurchase order. All cases in which principles of natural justiceare invoked must depend on the particular circumstances ofthe case. I am unable in the instant case to generalise. I canonly say that, in my opinion, in the circumstances I haveoutlined, Fairmount has not had—in a phrase whose derivationI nor Your Lordships could trace—"a fair crack of the whip."
The applicability of the principles of natural justice in respectof administrative orders, the legal effect of a failure to observesuch principles, and the question whether such failure could becured by a subsequent full opportunity of being heard before anappellate tribunal were all considered by a Bench of five judgesof the Supreme Court in the case of H. R. Ameradasa et at. v.The Land Reform Cnmmir.r.icn at aL (24). The question whichtheir ! ordships were called upon to consider was whether in theexercise of their powers under the provisions of section 13 of theLand Reform Law, No. 1 of 1972, the Land Reform Commissionand the Minister are controlled by the principle of audi alterampartem and if so, the legal consequences of the failure to observesuch principle. Their Lordships (by a majority) held that boththe Land Reform Commission and the Minister were under aduty to observe the said principle of audi alteram partem, andthat the failure by the Land Reform Commission to do so renderedits decision a nullity which cannot be cured even by a validhearing subsequently by the Minister. Sharvananda, J. in thecourse of His Lordship's judgment, stated: that every tribunalor other body exercising judicial or quasi-judicial functionsis expected to observe fundamental rules of natural justice in theexercise of its power, that the judicial element is inferred from thenature of the power: that a duty to act judicially in conformitywith the rule of audi alteram partem is imposed by the common
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law on administrative bodies whose decisions prejudicially affectindividuals or property: that prima facie a duty to act judiciallywill arise in the exercise of a power to deprive a party of hisproperty, rights or legal status: that a person or body determininga justiciable controversy between parties or between itself and asingle party, must give each party a fair opportunity to put hisown case and to correct or contradict any relevant statementprejudicial to him: that it is contrary to natural justice that aparty's contentions may be overruled by considerations in thejudicial mind which the party has no opportunity of controvertingand that the undisclosed evidence may, if subjected to criticism,prove to be misconceived or based upon false premises: that itis a general priniciple of statutory construction that, in theabsence of plain statutory language to the contrary, any provisiongiving power to a tribunal to make an order which will affect theinterests of an individual is to be construed as a power which willnot be exercisable unless the person affected has had theopportunity to be heard: that it is to be construed in accordancewith the rule of audi alteram partem and not in derogationtherefrom: ‘that the justice of the common law will supply theomission of the legislature." His Lordship also quoted theobservations of Lord Guest in Wiseman v. Bomeman, (25) at 279that:
"if the statute is silent on the question the Courts will implyinto thn sfaiuiory provisions a rule that the principles of naturaljustice should be applied. This implication will be made on thebasis that Parliament is not to be presumed to take awayparties' rights without giving them an opportunity of beingheard in their interest. In other words, Parliament is not to bepresumed to act unfairly".
His Lordship referred to the case of Shareef v. Commissioner forRegistration of Indian and Pakistani Residents (26), where, on anapplication for registration as a citizen, the Deputy Commissioner,who held the statutory inquiry refused the application on aground which was based chiefly on a report of an investigatingofficer and upon a letter written by an Inspector of Schoolsneither of which was disclosed to the appellant at the inquiry andthe appellant was not informed of the details of the material reliedagainst him and was not given an opportunity of answering thecase against him, the Privy Council, having taken the view that theDeputy Commissioner was acting in a semi-judicial capacity and
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was therefore bound to observe the principles of natural justice,stated:
"the party should be given a fair notice of the
case made against him and that he should be given adequateopportunity at the proper time to meet the case against him.”
His Lordship also considered the effect of a breach of the duty toobserve the principles of natural justice and concluded, after aconsideration of the principles set out in the cases of GeneralMedical Council v. Spackman (27), at 644—5, Annamunthodo v.Oilfields Workers' Trade Union, (28), and Ridge v. Baldwin (supra)and Anisminic v.Foreign Compensation Commission (29), that abreach of the said duty is a matter that affects jurisdiction andrenders the decision or determination a nullity and therefore void.His Lordship further proceeded to consider what are the featuresof natural justice and what natural justice requires; and havingreferred to the judgment of Lord Hudson in the case of Ridge v.Baldwin (supra) and Halsbury (4th Edition) Vol. I, page 93, andde Smith (4th Edition) page 172, stated that the three features ofnatural justice are:
the right to be heard by an unbiased tribunal;
the right to have notice of the charges of misconduct; and
the right to be heard in answer to those charges;
and that natural justice does not always require that the parties beentitled to an oral hearing, and that at times it would be fair todecide on the basis of written representations, but that the personsaffected must be appraised of and given a proper opportunity,
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.
Smith (4th Edition) page 238-9, discusses the concept of aduty to act fairly thus:
“That the donee of a power must 'act fairly' is a long-settledprinciple governing the exercise of discretion, though itsmeaning is inevitably imprecise. Since 1967 the concept ofduty to act fairly has often been used by judges to denote an
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implied procedural obligation. In general it means a duty toobserve the rudiments of natural justice for a limited purposein the exercise of functions that are not analytically judicialbut administrative. Given the flexibility of natural justice, itmay not have been strictly necessary to use the term 'duty toact fairly' at all, but its usage is now firmly established in thejudicial vocabulary. Its value has lain in assisting the extensionof implied procedural obligations to the discharge of functionsthat are not analytically judicial, and in emphasing that actingin accordance with natural justice does not mean forcingadministrative procedures into a strait-jacket. The comparativelyrecent emergence of this use of the 'duty to act fairly' may alsoenable the Courts to tackle constructively procedural issues thathave not traditionally been regarded as part of the requirementsof natural justice."
Wade too discusses the modern concept of "acting fairly" in hisbook on Administrative Law (4th Edition). At page 446 and 447Wade states: that although Ridge v. Baldwin sorted out theconfusion caused by the artificial use of the word 'judicial' todescribe functions which were in reality administrative, it did noteliminate this misnomer from the law: that a means of doing sohas appeared in a later line of cases which lay down that power ofa purely administrative character must be exercised 'fairly'meaning in accordance with natural justice which, according toHarman, L.J. in Ridge v. Baldwin, (20 A) at 578 (and quoted withapproval in the House of Lords by Lord Morris in the case ofWiseman v. Borneman (supra)), "after all is only fair play inaction”: that by this simple verbal short-cut the result is reacheddirectly that administrative powers which affect rights must beexercised in accordance with natural justice: that the Courts nowhave two strings to their bow, namely, an administrative act maybe held to be subject to the requirements of natural justice eitherbecause it affects rights or interests and therefore involves a dutyto act judicially in accordance with the classic authorities andRidge v. Baldwin (supra) or it may simply be held that itautomatically involves a duty to act fairly and in accordance withnatural justice.
In the year 1966 in the case of Re H.K. (An Infant) (30) wherean officer at the London Airport refused to admit a boy fromPakistan on the ground that he appeard to be well over 16 yearsof age, Lord Parker, C.J., held: that, even if an immigration officeris not acting in a judicial or quasi-judicial capacity, he must
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neverthless act fairly: that good administration and an honest orbona fide decision must require not merely impartiality, normerely bringing one's mind to bear on the problems, but actingfairly: that the rules of natural justice, which would apply in acase such as that, is merely a duty to act fairly.
This somewhat simple basis for natural justice was also adoptedby Lord Denning M.R. in the cases of /?. v. Gaming Board forGreat Britain, ex parte Benaim and another, (31), and RePergamon Press, (32).
In this latter case, at page 399, Lord Denning stated as follows:
"Seeing that their work and their report may lead to suchconsequences, I am clearly of the opinion that the Inspectorsmust act fairly. This is a duty which vests on them, as on manyother bodies, even though they are not judicial or quasi-judicial,but only administrative."
In this connection it has also to be remembered that Article 10of the Universal Declaration of Human Riyhts, adopted by theGeneral Assembly of the United Nations in 1948 provides:
"Every one is entitled in full equality to a fair and publichearing by an independent and impartial tribunal in thedetermination of his rights and obligations and of any crinfmalcharge against him."
Although the Declaration lacks binding force in internationallaw, yet it postulates a common standard of achievement, and ithas now become an accepted presumption of statutoryinterpretation that Parliament does not intend to legislate incontravention of the provisions of the Convention—vide Smith(supra) page 246—7. Sri Lanka has also now acceded to thetwo Internationl Instruments—The International Covenant onCivil and Political Rights, and The International Covenant onEconomic, Social and Cultural Rights. Against this background itis not unreasonable to construe the said Act as not being intendedto interfere with the availability of the principles of natural justiceto those in respect of whose business undertakings primaryVesting Orders are made under the provisions of the said Act.
On a consideration of the principles set out above I am ofopinion that, where a statute empowers a Minister to make orders
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which interfere with the rights of property enjoyed by a citizen,the Minister is, in the absence of a clear, and an expressprovision to the contrary set out in the said statute itself,ordinarily under a duty to observe the principles of natural justiceand or to act fairly before he exercises such powers, even thoughthe said statute itself is silent in regard to the adoption of such aprocedure.
With regard to the question whether a hearing given on anappeal is an acceptable substitute for a hearing not given or notproperly given earlier, Wade (4th Edition) at page 465 states:that in principle there ought to be &n observance of naturaljustice equally at both stages: and that natural justice is violatedif the true charge is put forward only at the appeal stage: that ifnatural justice is violated at first stage, the right of appeal is notso much a true right of appeal as a corrected initial hearing: thatinstead of a fair trial followed by appeal, the procedure is reducedto’unfair trial followed by fair trial. Smith: (4th Edition) at page193, whilst discussing this question whether the absence of ahearing before a decision is made could be adequatelycompensated for by a hearing ex post facto, states: that, whilst aprior hearing may be better than a subsequent hearing, asubsequent hearing is better than no hearing at all:that, althoughthe Courts have held that statutory provisions for anadministrative appeal or even full judicial review on the merits aresufficient to negative the existence of any implied duty to hearbefore the original decision is made, this approach, however, maybe acceptable where the original decision does not cause seriousdetriment to the person affected, or where there is also aparamount need for prompt action, or where it is impracticableto afford antecedent hearings.
Whether the failure observe the principles of natural justiceat the initial stage when an order is made could be remedied bya full opportunity being granted to an aggrieved party at a laterstage before an administrative appellate body was consideredby Megarry, J. in the case of Leary v. National Union of VehicleBuilders (33), which was also quoted with approval bySharvananda, J. in Amaradasa's case (supra). In that case (Leary'scase) L., who had been a member of the defendant union formany years, was excluded by the branch committee on the groundthat L. was in arrears with his contributions. This decision was
CA J. B. Textiles Industries Ltd. v. Minister of Finance & Planning f Ranasinghe, J.) 273
taken by the branch committee without any notice to L.Thereafter L. appealed to the executive committee; and theexecutive committee held an inquiry at which L. was present andwas afforded a full hearing. At the conclusion of the inquiry theexecutive committee decided to endorse the exclusion of L., butgranted L. permission to appeal to the Appeals Council. L.appeared before the Appeals Council and presented his own case.The Appeals Council too dismissed L's appeal. L. thereupon cameinto Court seeking declarations and an injunction; and, in thecourse of the judgment Megarry, J. at page 720, stated:
"If one accepts the contention that a defect of natural justicein the trial body can be cured by the presence of natural justicein the appellate body, this has the result of depriving themember of his right of appeal from the expelling body. If therules and the law combine to give the member the right to a fairtrial and the right of appeal, why should he be told that heought to be satisfied with an unjust trial and a fair appeal ? Evenif the appeal is treated as a hearing de novo the member is beingstripped of his right to appeal to another body from theeffective decision to expel him. I cannot think that naturaljustice is satisfied by a process whereby an unfair trial, althoughnot resulting in a valid expulsion, will nevertheless have theeffect of depriving the member of his right of appeal when avalid decision to expel him is subsequently made. Such adeprivation would be a powerful result to be achieved by whatin law is a mere nullity; and it is no mere triviality that might bejustified on the ground that natural justice does not meanperfect justice. As a general rule, at all events, I hold that afailure of natural justice in the trial body cannot becured by a sufficiency of natural justice in an appellate body."
A consideration of the provisions of Act No. 35 of 1971,which has been set out earlier in this judgment, shows thatacquisitions of business undertakings, in terms of the provisionsof the said Act, have not been contemplated to be alwayscompulsory. The preamble itself states that it is an Act to providefor acquisitions either "by agreement or compulsorily". If suchacquisitions are by agreement then clause (a) of sub-section (1)of section 2 confers the necessary power. If it is otherwise, then
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it is clause (b) of the same sub-section (1) that would have to beavailed of. The provisions of sections 13 and 14 of the said Actgive an indication that the legislature did contemplate a situationwhen certain preliminary steps would have to be taken beforeresorting to the provisions of section 2. Section 13 provides forpowers of entry into places where business undertakings are beingcarried on, for the taking of inventories of the properties of suchbusiness undertakings, for the inspection of books, registers,documents of such business undertakings, for the demarcation ofthe boundaries of such business undertakings, and for calling forreturns and information. Section 14 provides for the service of a"notice of claim" on a proprietor of a business undertakingdeclaring that such undertaking is required for the purposes ofthe Governemt. The effect of such a "notice of claim" is toprevent the alienation of such business undertaking thereafter toany person other than the Government. There is nothing in thisAct which expressly or impliedly prohibits the proprietors of abusiness undertaking, which the Government proposes to takeover, from being heard before a primary Vesting Order is made.On the contrary it contemplates negotiations with a view to atake-over by agreement. If such negotiations are not successfulthere could still be a take-over, but without the consent of theproprietor.
The consequences of a primary Vesting Order, as far as theproprietor of the business undetaking affected is concerned, areextremely serious and far-reaching: once such an order is made,the title to such business undertaking vests absolutely in theGovernment, as from the date of such vesting, free from ailencumbrances: a competent authority is appointed to manageand administer the affairs of such business undertaking: thecompetent authority so appointed then takes possession of theproperty of such business undertaking, and begins to functionsubject to the directions of the Minister of Finance: the Ministerof Finance has also the power to direct the Bank, in which theproprietor of such business undertaking had an account at thetime of such take-over, not to permit such proprietor to operatesuch bank account.
A primary Vesting Order, therefore, constitutes a serious
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interference with the Common Law right of the proprietor of abusiness undertaking to own, possess and enjoy such property.Such an Order could also operate not only to incur financial lossand damage to a proprietor but also to deprive a proprietor of hismeans of livelihood.
Section 7 (1) of the said Act gives an aggrieved proprietor theright of appeal to the Minister of Finance within fifteen days ofthe date of a Vesting Order. Although sub-section (2) of section7 requires the Minister of Finance to refer such an appeal to anAdvisory Board there is, however, no time limit specified beforethe expiration of which such reference should be so made. So toohas no time limit been set out before the expiration of which suchAdvisory Board should tender its advice to the Minister ofFinance. As things turned out in this case, the petitioner's appealhad been taken up by the Advisory Board only on 23.12.77; andthe 'hearing before the said Board was concluded only on 2.3.78;and the Advisory Board's advice to the Minister had been tenderedon 15.3.78—six months after the petitioners had been effectivelydispossessed of their property. In such circumstances even asuccessful appeal could very well turn out to be only a Pyrrhicvictory. Futhermore, it has also been submitted—and, as will beseen later, with success—that the Minister of Finance is under noobligation to accept a recommendation made by the AdvisoryBoard to revoke a primary Vesting Order. It must also be notedthat, in this case, the respondent did not, as already stated,controvert or contradict the material placed before the AdvisoryBoard by the petitioners to support their position that the OrderP2 is vitiated and is bad in law. Not a tittle of evidence was ledon behalf of the respondent before the Advisory Board to repudiatethe allegation of mala tides alleged by the petitioners, andto justify the taIce-over effected by the respondents' predecessor-in-office by P2. Not only were the documents R3 and R10, whichwithout doubt would have been available to the respondent, notplaced before the Advisory Board, the respondent even went tothe extent of informing the Advisory Board through the DeputySolicitor-General, that he was not possessed of any material withwhich to counter the petitioner's position so categoricallyplaced before the Board. Had the documents R3 and or R10 beenplaced before the Advisory Board the petitioners would thenhave had a full opportunity of countering their contents and
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stating what they had to state in defence. Whatever thepetitioners so stated, with regard to R3 and or R10, would havebeen available to the respondent when the occasion arose for himto exercise the power vested in him under section 7 (1) of the saidAct I do not think that it is, in these circumstances, now opento the respondent to fall back and rely upon R3 and or R7 tosupport the making, by him, of the Order P7. Of the documentsproduced by the respondent before this Court and referred toin paragraph 22 of the respondent's statement of objections thedocuments R1 to R10 are the only documents prior to the date ofP7: and out of these documents too, R3 and R7 are the onlydocuments of any consequence in regard to this matter. Noexplanation has been proferred by the respondent as to why therelevant contents of R3 and or R10 were not placed before theAdvisory Board, and the petitioners thereby given an opportunityto meet the extremely serious allegations levelled against thepetitioners in the said documents R3 and or R10 which have onlyto be perused to realise the considerable prejudice that would becaused to the petitioners if one is in any way influenced bythe allegations set out in them without informing the petitionersof the said allegations and giving the petitioners a reasonableopportunity of answering such allegations. There is nothing in R3and or R10 the disclosure of which would have prejudiced thepublic interest. On the other hand public interest demands theexposure of such miscreants. A disclosure of the contents of R3and or R10 and any other material available to the respondent,and considering what the petitioners had to state would not haveimpeded any prompt action which had to be taken by therespondent. The provisions of the said Act empowered therespondent with sufficient authority to take such preventiveaction as would have been necessary. There has been no allegationof any emergency—national or otherwise—which necessitated anyurgent action. The monetary value of the property taken over was,as far as it affected the petitioners, extremely high. Against thisbackground the respondent should not have, in my opinion,taken into consideration any of the allegations set out in R3 andor R10 both of which contain matters highly prejudicial to thepetitioners, without first hearing what the petitioners themselveshad to state in regard to such allegations. A failure to follow sucha course of action would result in a contravention of the principlesof natural justice and a violation of the "duty to act fairly".Fairness, as it seems to me, demanded that the petitioners wereinformed of the matters that were being counted against them,
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and that they were afforded a reasonable opportunity of meetingthat which was being alleged against them, before the primaryVesting Order P7 was made.
On a consideration of the foregoing, I am of opinion that,although there is no express requirement in section 7 (1) of thesaid Act that the Minister should, before making a primary VestingOrder, give the proprietor of the business undertaking sought tobe compulsorily acquired an opportunity of being heard, yet, I amof opinion that the Minister is, in doing so, under a duty toobserve the principles of natural justice and or the duty to actfairly. The respondent has clearly failed to observe the said ruleand or to discharge such duty. Such failure has also causedconsiderable prejudice to the petitioners.
It is clear that a breach of the principles of natural justiceand the duty to act fairly render the decision affected thereby badin law and void—vide Ridge v. Baldwin, (supra); Amaradasa's case(supra); and Wade; (4th Edition, pages 447-9).
Mr, Choksy also contended that the petitioners are not entitledto maintain these applications in view of the provisions of section22 of the interpretation Ordinance, as amended by Act No. 18of 1972.
Section 2 (4) of the said Act provides that a primary VestingOrder shall, subject to a refusal by the House of Representatives toapprove it, be "final and conclusive and shall not be called inquestion in any Court whether by way of writ or otherwise".Section 22 of the Interpretation Ordinance, as amended, statesthat the effect of such an expression is to shut out the jurisdictionof the Courts upon any ground whatsoever to pronounce upon thevalidity or legality of such an order, decision, determination,direction or finding made or issued in the exercise or the apparentexercise of the power conferred upon a person, authority ortribunal. The first proviso to the said section 22, however, takesout of the purview of the said section, the power of the Courtsto issue, inter alia, writs of certiorari, mandamus and prohibitionwhere the Supreme Court (this would now include this Court) issatisfied that, though the person, authority or tribunal, uponwhom the power to make or issue such order, decision,determination, direction or finding is conferred, was bound toconform to the rules of natural justice, yet, such person, authority
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or tribunal, has failed to conform to the said rules.
As set out earlier, I have taken the view that: the respondentwas bound to observe the principles of natural justice and "to actfairly" before making the primary Vesting Order P7: that therespondent has, however, failed to do so: that such failure has alsocaused the petitioners considerable prejudice.
The basis tor this objection put forward on behalf of therespondent is that the said primary Vesting Order, P7, has notbeen made by a "person, authority, or tribunal "as contemplatedby paragraph (b) of the first proviso to the aforesaid section 22.The contention adduced in support is that: a primary VestingOrder made under section 2 (1) by the Minister is required bysub-section (3) to be laid before Parliament, within the periodspecified therein, for affirmative approval by Parliament: thatwhat becomes operative in the order made by the Minister andapproved by Parliament: that such an Order is an "executivecum legislative" Order, and is not caught up by the aforesaidparagraph (b). I,
I,however, find myself unable to accept this submission. Aprimary Vesting Order made under the provisions of the saidAct is an act of the Minister of Finance. It is made by the Ministerof Finance, either ex mero motu, or at the request of anotherMinister. This comes into operation from "the primary vestingdate", which date is also specified by the Minster of Financehimself in the said primary Vesting Order itself. The moment itcomes into operation it attracts to itself the provisions of sub-section (2) of section 2 of the said Act. It is only sometimethereafter, before the effluxion of the time limit set out in sub-section (3), that the primary Vesting Order so made is laid beforeParliament. The resolution passed by Parliament is to approve thesaid Order. Such approval does not elevate the said Order to theposition of an Act of Parliament. Such approval does not changeits original character of one made by the Minister. Such resolutionmerely approves something that has already been done by another.There is no adoption of the Order by Parliament as one done ormade by itself. It remains what it was—an act of the Minister—a statutory instrument made by the Minister. Parliament merelygives it, as it were, its blessings. The principle set out in theF. Hoffman-La Roche and Co. case (supra) clarify the truenature and status, in law, of an Order such as P7. P7, in my
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opinion, is an "Order" made by a "person".
Section 22 of the Interpretation Ordinance was also consideredin Amaradasa's case (supra). The Supreme Court, however,allowed the application for a writ of certiorari. In that case too thethe application was founded on the assertion that a duty toobserve the principles of natural justice has been violated. I amof the view that this objection put forward on behalf of therespondent is not entitled to succeed.
Having regard to ail that which has been set out above, I am ofopinion that the petitioners are entitled to the isssue of a writ ofcertiorari as prayed for.
I have given this matter the anxious consideration that a matterof this nature and importance deserves; more so because, in thewords of Lord Denning, M.R., (in the case of Laker Airways Ltd.v. Department of Trade (supra) at page 194):
"It is a serious matter tor the Courts to declare that aMinister of the Crown has exceeded his powers. So serious thatwe think hard before doing it. But there comes a point when ithas to be done. These Courts have the authority and I wouldadd the duty, in a proper case, when called on to inquire intothe exercise of a discretionary power by a Minister or hisdepartment. If it is found that the power has been exercisedimproperly or mistakenly so as to>.impinge unjustly on thelegitimate rights or interests of the subject then these Courtsmust so declare. They stand, as ever, between the executive andthe subject, alert, as Lord Atkin said in a famous passage,'alert to see that any coercive action is justified in law'. SeeLiversidge v. Anderson. To which I would add 'alert to see thatdiscretionary power is not exceeded or misused".
In view of all that has been set out above, the "point" has, in myopinion, been reached in this case; and it behoves this Courtnot only to exercise its authority, but also to do its duty.
I accordingly, make order issuing a writ of certiorai quashingthe aforesaid primary Vesting Order P7.
Even though, in view of my order upon the application for awrit of certiorari, a consideration of the relief sought for by way
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of mandamus would be unnecessary, yet, as this matter was alsoargued in depth by learned counsel, appearing for the petitionersand the respondent, I propose to consider this particular groundof relief as well. The relief by way of mandamus will of course beconsidered on the assumption that P7 is a valid Order.
The relief which the petitioners have prayed for by way ofmandamus, as set out in paragraph (a) of the prayer to the petition,is: “for an order in the nature of a writ of mandamus directingand ordering the respondent to revoke the primary Vesting Orderdated 6th September, 1977, in accordance with the advice tenderedto him by the Advisory Board pursuant to the appeal made to himby the petitioners."
Mr. H. L. de Silva has placed the petitioner's claim formandamus on the basis: that the provisions ot section 7 13) ofthe said Act, though couched in permissive language, does notoperate to vest in the respondent a discretion whether or not tomake an order of revocation upon being so advised by theAdvisory Board: that the said provisions, whilst conferring uponthe respondent an enabling power, do also cast an obligation uponhim to mcke an order of revocation if the Advisor/ Board soadvises the respondent: that the said power is so vested in therespondent to enable it to be exercised in favour of determinablepersons such as the petititoners in respect of whose businessundertaking 3 primary Vesting Order had been made, but which,upon an appeal being preferred, the Advisory Board has advisedthe respondent to revoke: that the said power is so vested toeffectuate a legal right, which persons such as the petitionerswould have to have such an Order revoked and to get back theirproperty which had been unjustifiably taken over by the State.Mr, de Silva relies very heavily upon the principles enunciated overa century ago by the Privy Council in the case of Julius v. TheLord Bishop of Oxford, (34), and approved subsequently inseveral cases, notably by the House of Lords in 1968 in thePadfieid case (supra). Mr. de Silva submitted that Julius's case(supra) is the "sheet-anchor" of his submissions.
The facts and circumstances of Julius’ case (supra) are: thatsection 3 of the Church Discipline Act provided that, in every caseot any clerk in holy orders who may be charged with any offenceagainst the Laws Ecclesiastical or concerning whom there mayexist scandal or evil report as hawing offended against the said
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laws, "it shall be lawful for the bishop of the diocese" withinwhich the offence is alleged or reported to have been committed,on the application of any party complaining thereof, or, if heshall think fit, of his own motion, to issue a commission underhis hand and seal to the persons specified in the said section forthe purpose of making inquiry as to the grounds of such charge orreport: that the appellant, Julius, was a parishioner of the parishof Clewer of which Rev. Carter was the rector: that Julius thoughtthat Mr. Carter not only himself practised but also permitted hiscurates to practise certain ritualistic observances in theperformance of Divine Services which were forbidden by the lawsof the Church of England: that Julius presented to the Bishop ofOxford, in whose diocese Clewer is situate, a letter Of complaint,dated 11.7.1878, as to those ecclesiastical offences, and applied tohave a commission issued by the bishop for an inquiry into thegrounds of the said charges, in terms of the provisions of Section 3referred to above: that, after some correspondence in regard tothis matter, the bishop refused the said application: that thereason for such refusal was set out by the bishop in a letter, dated10.8.1878, sent to Julius: that thereupon Julius moved theQueen's Bench Division and obtained a writ of mandamuscommanding the bishop to issue a commission or to send to theCourt of Appeal for the province letters of request in terms ofSection 13 of the said Church Discipline Act: that thereupon thebishop appealed to the Court of Appeal which allowed the appealand set aside the order of Queen's Bench Division: that, from thejudgment of the Court of Appeal, Julius appealed to the House ofLords. Although the House of Lords dismissed the appeal, TheirLordships, however, laid down the principles upon which thequestion — whether permissive language used in a statute to vest aperson with a power could, in certain circumstances, be construedas imposing upon such person the obligation to exercise suchpower in favour of a person who has a legal right to call for theexercise of such power — should be considered.
Earl Cairns, the Lord Chancellor, stated at page 222, asfollows: .
"The question has been argued and has been spoken of bysome of the learned Judges in the Courts below as if the words'it shall be lawful' might have a different meaning, and mightbe differently interpreted in different statutes, or in differentparts of the same statute. I cannot think that this is correct.The words 'it shall be lawful' are not equivocal. They are plainand unambiguous. They are words merely making that legaland possible which there would otherwise be no right or
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authority to do. They confer a faculty or power, and they donot of themselves do more than confer a faculty or power. Butthere may be something in the nature of the thing empoweredto be done, something in the object for which it is to be done,something in the conditions under which it is to be done,something in the title of the person or persons for whosebenefit the power is to be exercised, which may couple thepower with a duty, and make it the duty of the person inwhom the power is reposed, to exercise that power whencalled upon to do so. Whether the power is one coupled with aduty such as I have described is a question which, according toour system of law, speaking generally, it falls for the Queen'sBench to decide, on an application for mandamus. And thewords 'it shall be lawful' being according to their naturalmeaning permissive or enabling words only, it lies uponthose, as it seems to me, who contend that an obligationexists to exercise this power, to shew in the circumstances ofthe case something which, according to the principles I havementioned, creates this obligation."
In the course of his judgment the Lord Chancellor also quotedthe following words of Mr. Justice Coleridge in the case of Reg.vs. Tithe Commissioner(35).
"The words undoubtedly are only empowering, but it has beenso often decided as to have become an axiom, that in publicstatutes words only directory, permissory, or enabling, mayhave a compulsory force where the thing to be done is for thepublic benefit or in advancement of public justice."
Lord Penzance, at page 229, too set down the said principle asfollows:
"The words 'it shall be lawful' are distinctly words of permi-ssion only — they are enabling and empowering words. Theyconfer a legislative right and power on the individual named todo a particular thing, and the true question is not whetherthey mean something different, but whether regard being hadto the person so enabled — to the subject matter, to the generalobjects of the statute, and to the person or class of persons forwhose benefit the power may be intended to have beenconferred — they do, or do not, create a duty in the person onwhom it is conferred to exercise it."
At page 235, Lord Selbourne gave expression to the principlethus:
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“The question whether a Judge or a public officer, to whom apower is given by such words, is bound to use it upon anyparticular occasion, or in any particular manner, must besolved aliunde and, in general, it is to be solved from thecontext, from the particular provisions, or from the generalscope and objects, of the enactment conferring the power."
On an application of these principles to the facts and circums-tances of the case, Their Lordships came to the conclusion thatthe said section gave the bishop complete discretion to issue ordecline to issue such commission.
In the Padfietd case (supra)' in regard to this aspect of the casewhat arose for consideration was, as set out earlier, whether thewords, "if the Minister in any case so directs.. . " appearing in therelevant statute, should be construed as casting an obligationupon the Minister to refer to the committee of investigation,constituted under the said statute, an appeal made to the Minister,also in terms of the same statute, by a party aggrieved by an Ordermade by the Minister in terms of the selfsame statute. Relyingupon the principles set out in Julius's case (supra), it wascontended, on behalf of the applicants, that the said words notmerely conferred a power but also coupled such power with aduty. The view, which was taken by the House of Lords, however,was that the said words were sufficient to show that the Ministerhad a discretion, but that they gave no guide as to its nature orextent.
Mr. de Silva cited several other English cases where the afore-said principles, set out in Julius's case (supra), have been citedwith approval and followed. On an application of the said princi-ples to the facts and circumstances of each case the Courts have insome cases decided that the enabling power was not merelypermissive but was coupled with a duty casting an obligation toexercise it, whilst in others the decisions have been that they aremerely permissive and vest in such authority'a discretion. Theprinciples to be followed are clear; but the difficulty, as it veryoften occurs, is in the application of such principles to the factsand circumstances of the particular case.
A reading of sub-section (3) of Section 7 shows that therevocation set out therein is to be made by the Minister only“after considering the advice tendered to him by the AdvisoryBoard." The Minister is, therefore, expressly required to dosomething, namely, to consider the advice, which the AdvisoryBoard has given him, before setting out to take the next step
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which he has the power to do — namely, the act of revocation — interms of the said Section. These words do, at first sight, suggestthe existence of a requirement to pause and think beforeembarking upon an act of revocation. Mr. de Silva submitted thatall that the Minister was required to consider at that stage waswhether there is any fact or circumstance which would vitiatethe act of the Advisory Board — such as fraud, corruption, bias —and which would render invalid the advice so tendered by theAdvisory Board, and that, even so, the Minister cannot act on hisown without an order of a competent Court holding such adviceinvalid upon any such ground. I, however, find it difficult to limitthe Minister's consideration .in that way, that it should be limitedonly to the consideration of the question of the validity of theadvice, and that too only if there exists a determination by aCourt to that effect. It seems rather to have been intended thatsuch consideration should be of the content and the nature ofsuch advice, a consideration of the merits of such advice and thegrounds upon which such advice is so based. There is also anotheraspect of this matter. If; as is contended on behalf of the Petitio-ners, the Minister has no option but to give effect to the advice ofthe Advisory Board if such advice is that the Primary VestingOrder should be revoked, then that would in effect mean thatwhat becomes all important and operative is the view of thethree members of the Advisory Board, who, though appointed bythe Prime Minister and would be persons in whose ability, integri-ty and independence the Prime Minister has confidence are,nevertheless, persons who are not members of Parliament. The Pri-mary Vesting Order has, by the time the appeal is lodged, becomenot merely an act of the Minister alone but an act which has also,after due consideration by Parliament, received the approval ofParliament. That being so, it is most unlikely that Parliamentwould have intended that the continued existence of such an actshould depend upon the views of three "outsiders," howevereminent and capable they be, and that, if three such personswere to advise the Minister that such order should be revoked thenthe Minister should be bound to act in accordance with suchadvice. It seems to me that the intention was rather, that, whereadvice is tendered by the Advisory Board that a revocation bemade, before such advice is given effect to, the Minister shouldconsider the basis upon which such advice is preferred and alsohave regard to the impact, if any, the compliance with suchadvice would have upon the relevant policy of the government,and again have consultations with his Cabinet colleagues and anyother official experts. It is most unlikely that Parliament'sintention was to make the revocation dependent wholly upon theview of the members of the Advisory Board. Parliament would
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rather have intended that the revocation, if any, of such an Ordershould be the responsibility of a person, who is not only under aobligation to follow the normal conventions of Parliamentarygovernment before taking action to revoke an Order which has hadParliament's approval, but is also a person who could be calledupon to account for his actions on the floor of the House. This iseven more so as the acquisitions in respect of which appeals are soconsidered by the Advisory Board are acquisitions made compul-sorily.
In this view of the matter, it appears to me: that the provisionsof Section 7 (3) of the said Act vested in the Minister a discre-tion, and that he was not bound to act in accordance with theadvice tendered to him by the said Advisory Board: that it iswithin the discretion of the Minister whether or not to accept suchadvice and make an order of revocation in terms of Section7 (3) of the said Act; that, in arriving at such a decision theMinister exercises purely an administrative function based upon aconsideration of not only the advice of the said Advisory Boardand the material placed before the said Board by the Appellants,but also the relevant governmental policy and what the Ministerthinks is in the public interest: that, in so acting, the Minister isnevertheless under a duty to act fairly.
Even though the provisions of Section 7 (3) of the said Actvest a discretion in the Respondent, the question which' wouldthereupon arise is whether such discretion has been exercisedaccording to law. ilf, however, the Respondent has not exercisedsuch a discretion according to law, then, upon the authority ofthe Padfield case (supra), the Respondent could be directed bythis Court to exercise such discretion according to law. On theRespondent's own showing the Respondent has, in deciding notto revoke P7, taken into consideration, inter alia, not only thedocuments R3 and R10, referred to earlier, but also thedocument R14. Admittedly none of the contents of either of thesaid documents — R3, R10, R14, — have been communicated tothe Petitioners and the Petitioners afforded a reasonable opportu-nity of stating what they have to say in regard to them. In thecircumstances it would, having regard to the principles set outin the earlier part of this judgment, appear that a strong casecould be made out against the Respondent on this score as well.The Petitioners' claim for relief by way of Mandamus, as set outearlier, is, however, not on this footing — that an admitted discre-tion has not been exercised according to law and that Mandamusshould issue directing the re-exercise of such discretion accordingto law — but is on the basis that what was conferred on the
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Respondent was not a discretion but a power which he wasobliged to exercise in accordance with the advice tendered to himby the Advisory Board. This the Respondent has failed toestablish. The Petitioners' claim has not been presented in theirpetitions, as in the Padfield case, (supra), in the alternative -that, if the Minister is held not to be under a duty but to bevested with a discretion, then such discretion has not beenexercised according to law. That being so, I do not think thisCourt should consider the grant of relief upon a basis notexpressly set out in the petitions and in respect of which theRespondent was not called upon to meet in his statement ofobjections.
For these reasons, the Petitioners' claim for relief by way ofMandamus, as set forth in the petitioner, is not, in my opinion,entitled to succeed. The application for a Writ of Mandamus madeby the Petitioners — J. B. Textiles Industries Ltd. -• in these pro-ceedings, bearing No. 1137/79, is, accordingly, dismissed.
Although the Petitioners have, in their applications for Writsof Certiorari also prayed for Writs of Prohibition, at the hearingbefore this Court, however, no submissions were made on behalfof the Petitioners in regard to relief under this heading. Besides,the relevant facts and circumstances also show that the Petitioners'claim for relief on this basis cannot succeed. In the circumstances,the Petitioners' applications for relief by way of Writs of Prohibi-tion are also dismissed.
As the Petitioners have succeeded in their applications forWrits of Certiorari, but have failed in their claims for Writs of Man-damus and Prohibition, and, as all the applications were consoli-dated for the purpose of hearing submissions of Counsel, I directthe parties to bear their own costs of the respective applications.
De Silva, J.I agree.
Applications for Writ of Certiorari allowed.
Application for Writs of Mandamus and prohibition refused.