071-NLR-NLR-V-57-J.-C.-MUNASINGHA-Petitioner-and-B.-DEVARAJAN-A.-G.-A.-Puttalam-Respondent.pdf
1955Present: SansonI,. J.
TOC o "1-5" h z
J. C. MUNASIXHA, Petitioner, and B. DEVARAJAN(A. G. A., Puttalam), Respondent ..
S. C. 14S—lx the Matter of ax Application for Writof Mandamus under Section -42 of theCourts Ordinance * ' ■'
J|'rit of Mandamus—Availability ayainsl a servant of the Crown—Land, AcquisitionAct—Sections 1G mul 27—Award oj compensation—31 ode of enforcing paymentof it.-
A writ of mandamus does not lio against a servant of tlio Crown whero thefluty sought to bo enforced is not one which is imposed on the servant himselfbut is imposed on him only in tho capacity of agent for tlio Crown. It does not’ tliereforo lio to order an Assistant Government Agent to pay to a particularperson money awarded ns compensation for land acquired under tho LandAcquisition Act. The proper remedy in such a case is a regular action againstthe Crown. '''
A.PPLIOATIOX for a writ of mandamus.
S. J. V. Ch dean ay a ka>n, Q.C., with A. C. Na'darajah, S.Thangarajahand C. Tr. IIunasinghe, for the petitioner.
V. Tcnnekoon, Crown Counsel, with C. H. 31. P. Fernando, CrownCounsel, for the respondent. …
Cur. adv. vult.
May 19, 1955. Sansoni, J.—
The petitioner a2>plies for a writ of Mandamus on the Bes2iondentwho is the Assistant Government Agent, Puttalam, ordering him to paythe petitioner the balance sum due to him as compensation for his landwhich was acquired by the Government. Consequent on an agreementarrived at between the parlies an award was made by the respondentunder section 10 of the Land Acquisition Act, No. 9 of 1950. Thepetitioner non- submits that under section 27 a statutory' duty is caston the rcs2>ondcnt to tender and 2iay to him the sum now claimed asall the conditions stipulated in the Act have been satisfied.
The res2iondcnt in his affidavit showing cause against the grant ofthe a2i]ilication has explained why he failed to pay the petitioner theamount claimed. He lias stated that the amount was retained by lumat the request of the Director of Fisheries who claimed that the petitionerowed it as a debt due to the Department of Fisheries. The respondentlias further stated in his affidavit that in tendering and paying com-pensation awarded under the Land Acquisition Act and in setting offt-hc claim of the Department of Fisheries as a debt due to the Crown,
he was afc all times acting as an agent of the Crown. The claim of theDepartment of Fisheries is disputed by the petitioner and I do not intendto consider this aspect of the"dispute ; nor need I deal with the objectionthat this application has been made in order to deprive the Crown ofthe amount said to be due to the Department of Fisheries. .
It seems to me that this application must fail for the reason thata writ of Mandamus docs not lie against the Crown, nor against a servantof the Crown where the dutjr sought to be enforced is not one which isimposed on the servant himself but is imposed on him-only in the capacityof agent for the Crown. The principle on which the rule is based is statedin 9 JIailsham, page 761:—“ As no Court can compel the Sovereign toperform any duty, no writ of Mandamus will lie to the Crown. Where itis sought to establish a right against the Crown the appropriate procedureis by way of petition of right. 2Tor will the writ lie against a Secretaryof State in his capacity as an agent for the Crown ; for in that capacityhe is responsible to the Crown alone, and is under no legal duty towardsa subject The same r.ule applies as regards other persons acting asservants of the Crown.•
The position of the respondent in this matter is that of an agent orservant of the Crown within the meaning of the above rule. The peti-tioner’s land was acquired by the Crown and the Crown accordinglybecame liable to pay him compensation. In paying the compensationawarded, the Crown acts through its servant who in this instance is therespondent. It is not, of course, the respondent’s money that has to hepaid to the petitioner under section 27 of the Act; it is the money of theCrown which would come into and leave the hand of the respondentmerely as a servant of the Crown..
The first case to settle the ride was R. v. Lords Commissioners of theTreasury, where it was held that money voted as a sujjply to theCrown for certain specific pmposes and paid to the Treasury is paid tothe latter as servants of the Crown and no Mandamus lies to order theTreasury to pay such money to a particular person. Lush, J., in thecourse of his judgment said :—“ I think that the applicants have failedto make out that which is essential to entitle them to a writ of Mandamus,namely, that there is a legal duty imposed upon the Lords of theTreasury—a duty between them and the applicant—to pay over thissum of money. The only statute which.can be brought to aid at all isthe Appropriation Act; and that, as it seems to me, clearly shews thatthe money is voted to the Crown upon trust that the Crown will dispenseit for certain specified purposes. When the money "gets to the hands ofthe Lords Commissioners of the Treasury, who are responsible fordispensing it, it is in their hands as servants or agents of the Crown ;and they are accountable," theoretically to the Crown, but practicallyto the House of Commons; and in no sense are they accountable to thisor any other court of justice ”. The proper remedy in such a case is,in England, a petition of right and, in Ceylon, a regular action against
the Crown. In a later case, R. v. Commissioners for special purjioses ofIncome Tax V Lindley, L.J., pointed out the distinction between anapplication to enforce payment of money by the Commissioners (whichcannot be nllowed) and one to enforce the making of an order by theCommissioners without which a repayment of tax cannot be obtained,and which it is the duty of the Commissioners to make (which wasallowed by the Court). There is a dictum of Lord Herschell to the sameeffect in Commissioners for special purposes of Income Tax v. Pemsel 2.
These authorities are sufficient to answer Mr. Chelvanayakam’ssubmission that in view of the peremptory terms of the Act the respondentuas bound to pay the petitioner the compensation awarded. But I amby no moans sure that this remedy would be available even where theduty to pay is imposed on one who is not acting as a servant of the Crown.In the case of R. v. Hit If and Selby Railway Co. 3, an Act provided thata railway Company “ shall forthwith pay ” a bridge Company compen-sation under certain conditions which existed in that case. It was soughtto recover the compensation by way of Mandamus but the Court refusedto grant the writ as an action lay and would be as effectual a remedyas Mandamus. The decision in R. t St. Katherine Dock Co. 4 cited byMr. Chelvanayakam proceeded on the ground that there was no otherlegal remedy.
I therefore dismiss this application with costs.
Application dismissed.
* 21 Q. 11. D. 313.3 (1844) 6 Q.B. 70.
3 (1S91) A. C. 531, at page 509.1 (1832) 4 B. and Ad. 360.