012-SLLR-SLLR-1980-V-2-Jayasena-v.-Punchlappuhamy-and-Another.pdf
Jayasena v. Punchiappuhamy and Another
COURT OF APPEAL.
RANASINGHE, J. AND TAMBIAH, J.
c.a. application no. 130/80.
AUGUST 11, 1980.
Writ of certiorari—Purchase of right to prospect for gems—licenceissued to petitioner—Revocation of stick licence without inquiry—Naturaljustice—Whether administrative or judicial act—Will writ lie in thesecircumstances—Further relief granted by way of order restoring suchlicence—Writ of mandamus.
At a gem auction held by the State Gem Corporation, RatnapuraBranch the petitioner purchased the right to prospect for gems in anarea depicted as Lot 17 on a Plan. A licence was issued to him validfor one year. After a period of over 7 months the licence was recalledand the 2nd respondent who was the Regional Manager of the Co'pora-tion’s Ratnapura Branch, informed the petitioner that he was cancellingthe same. The petitioner was not given an opportunity to show causeagainst the said cancellation.
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The petitioner thereupon filed this application for a writ of certiorarito quash the decision of the 2nd respondent; and for a writ of manda-mus to compel the respondents to issue his licence allowing him toprospect for the balance period of the one year which was unexpiredwhen the licence was recalled.
It was submitted on behalf of the respondents that the revocation of thelicence was an administrative act and therefore not subject to anyrequirement of natural justice.
Held
The petitioner had the 1'ight to prospect for gems and a_ licence1valid for one year had been issued. The revocation of the petitioner’slicence took, away his existing right to prospect for a further period ofabout four months and this was done without his being heard. In thesecircumstances the petitioner had made out a case for the issue of a writof certiorari quashing the order cancelling his licence.
The petitioner who had also prayed for the issue of a writ of man-damus was entitled to a further order directing the respondents toextend the validity of his licence for the unexpired period thereof. Therespondents had in their affidavits not indicated that the Lot allotted tothe petitioner was no longer available and the justice of the case requiredthat the petitioner be granted this relief.
Per. Tambiae, J.:1
“ Recent decisions, in England and in this country, have advanced thefrontiers of natural justice. The Writ of Certiorari is not confined tojudicial or quasi-judicial acts. It extends even to administrative acts thataffect the rights of subjects (per Samarakoon, C.J., in Fernandopulle v.The Minister of Lands and Agriculture). "
Cases referred to
Fernandopulle v. Minister of Lands, (1978) 79 (2) N.L.R■ 115.
Mclnnes v. Onslow Fane, (1978) 3 All E.R. 211; (1978) 1 W.L.R. 1520 .
APPLICATION for writs of certiorari and/or mandamus.
A. C. Gooneratne, Q.C., with Iqbal Mohamed, for the petitioner.
T. M. S- Nanayakkara, for the respondents.
Cur. adv. milt.
September 19, 1980.
TAMJBIAH, 3.
At the gem auction held on 4th March, 1979, by the State GemCorporation (Ratnapura Branch) the petitioner purchased forRs. 10,000 the right to prospect for gems within the area of theriver bed depicted as Lot 17 in Plan (PI). The licence issued tothe petitioner is annexure (2R1), was valid for 1 year and m thenormal course would have expired on 3.3.80. It was a conditionof the grant of the licence that the petitioner would not damagethe river banks and the lands adjoining Lot 17-
The petitioner has alleged in his petition that he commencedoperations in Lot 17 on 8.3.79 and that on 12.3.79, the EnforcementOfficer of the Gem Corporation inspected the site and was satisfiedthat the pits dug were within Lot 17. In May 1979, the 2nd res-dent, the Regional Manager of the Corporation, visited the site
CAJayasena v. Punchiappuhamy (Tambiah, J.)46
and informed the petitioner that he was prospecting for gemsoutside the boundaries of Lot 17 and ordered him to come withhis licence to the Regional Manager's office, at Ratnapura. Hewent to the 2nd respondent’s office and the latter imposed a fineof Rs. 1,000 without any justification, which the petitioner paidin order to avoid a cancellation of his licence. He thereafterresumed gemming operations.
The petitioner further states that on 27.7.79, another officer ofthe Corporation visited the site and forcibly removed 3 waterbailing pumps on the ground they were found outside Lot '17and he was ordered to come to the 2nd respondent’s office, thenext day. On 28-7-79, he went to the 2nd respondent’s office andthe latter imposed a fine of Rs- 3,000, again without justification.On a complaint by him to the 1st respondent, the Chairman ofthe Corporation, an inquiry was fixed at the site for 17.8.79. Onthis day, one of the Chief Executive Officers of the Corporation,one Egalahewa, was present and a survey was made which re-vealed that the petitioner was prospecting within the boundariesof Lot 17. The water pumps were returned to him without theimposition of any fine. He again commenced operations.
According to the petitioner on 24.10.79, the 2nd respondentvisited the site and ordered him to come to his office with hislicence. He attended his office on 28.10-79 and without any inquiry,the latter took his licence and stated he was cancelling the same.The 2nd respondent had requested him to come to his office togive him back his licence and though he visited the office onseveral occasions, the licence was not returned to him. He alsowrote to the 1st respondent but was unable to obtain relief-The petitioner has annexed Plan (P5) to show that he wasprospecting for gems within the boundaries of Lot 17.
It is the petitioner’s case that in revoking the said licence, the2nd respondent was actuated by malice; the cancellation of thelicence was made without any inquiry and there was a violationof the principles of natural justice. He has applied for a writ ofcertiorari to quash the decision of the 2nd respondent cancellinghis licence; a writ of mandamus to order the respondents toissue to him- his gemming licence to prospect for gems withinLot 17 in Plan (PI) , and for an order directing the respondents mextend the validity of the licence for a further period of 4 months,being the unexpired period of the licence issued to him.
The 2nd respondent has filed affidavit and has stated that ona complaint (annexune 2R2) by the adjoining land owner, oneDharma Wijesinghe, that his land has been encroached upon bythe petitioner, he was ordered by the 1st respondent by letter
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dated 22.10.79 (annexure 2R3) to investigate and report; that hevisited the site and found that the petitioner had encroachedon the land of Wijesinghe and had dug pits outside the boundaryof Lot 17 ; that he submitted a report to the Chairman in 24.10.79(annexure 2R6) and that he cancelled the said licence on beingconvinced that the petitioner had encroached on the adjoiningland. He also annexed to his affidavit, complaints made byDharma Wijesinghe to the Police regarding the alleged encroach-ment by the petitioner on his land (annexures 2R4 and 2R5). The1st respondent has also filed affidavit supporting the position of■the 2nd respondent. He has also stated that in view of the com-plaints against the petitioner and the contents of the report(annexure 2R6) he had justly and reasonably exercised his dis-cretion and decided not to disturb the decision of the 2nd res-pondent. It is significant that neither the 1st nor the 2nd respon-dent has controverted the specific allegation of the petitioner thathis licence was cancelled without due inquiry. Learned counselfor the respondents conceded that when the 2nd respondent visit-ed the site on 24.10.79 to investigate and report, the petitionerwas not present; he also conceded that the petitioner was notgiven an opportunity of showing cause, before the revocation ofhis licence.
On the issue raised, that the order of cancellation of the licencewas made in bad faith and with malicious intent, on the materialplaced before us, we are not inclined to hold with the petitioner.There remains the question of the violation of the principles ofnatural justice, to be considered.
Learned counsel for the respondents contended that the revo-cation of the licence was an administrative and not a judicial actand therefore not subject to any requirement of natural justice.
Recent decisions, in England and in this country, have advancedthe frontiers of natural justice. The writ of certiorari is notconfined to judicial or quasi-judicial acts. It extends even toadministrative acts that affect the rights of subjects (perSamarakoon, C.J. in Femandojyulle v- The Minister of Lands andAgriculture (1) at 119).
The petitioner had purchased the right to prospect for gemsfor a sum of Rs. 10,000. The licence (2R1) was valid for one yearand would have in normal course, expired on 3.3-80. The peti-tioner had a right to prospect for gems until the said date. Therevocation of the permit in October 1979 took away from thepetitioner his existing right to prospect for a further period ofabout 4 months and this was done without his being heard.
CAJayasena v Punchiappuhamy (Tambiah, J.)47
In Mclnnes v. Onslow Fane (2), Megarry V-C in discussingthe type of decisions which are subject to the requirement -ofnatural justice, observed (at p. 218)—
“ First, there are what may be called the forfeiture cases.In these, there is a. decision which takes away some existingright or position, as where a member of an organisation isexpelled or a licence is revoked. Second, at the other extremethere are what may be called the application cases. Theseare cases where the decision merely refuses to grant theapplicant the right or position that he seeks, such as mem-bership of the organisation, or a licence to do certain acts.Third, there is an intermediate category, which may becalled the expectation cases, which differ from the applicationcases only in that the applicant has some legitimate expec-tation from what has already happened that his applicationwill be granted. This head includes cases where an existinglicence-holder applies for a renewal of his licence, or aperson already elected or appointed to some position seeks
confirmation from some confirming authority
It seems plain that there is a substantial distinction bet-ween the forfeiture cases and the application cases. In theforfeiture cases, there is a threat to take something awayfor some reason ; and in such cases, the right to an unbiasedtribunal, the right to notice of the charges and the right tobe heard in answer to the charges (which, in Ridge v.Baldwin, (1963) 2 All ER 66 at 114, (1964), AC 40 at 132-Lord Hodson said were three features of natural justice whichstood out) are plainly apt. In the application cases, on theother hand, nothing is being taken away, and in all normalcircumstances there are. no charges, and so no requirementof an opportunity of being heard in answer to the charges.Instead, there is the far wider and less defined question ofthe general suitability of the applicant for membership ora licence. The distinction is well-recognised, for in gene-ral it is clear that the courts will require natural justice tobe observed for expulsion from a social club, but not on anapplication for admission to it. The intermediate category,that of the expectation cases, may at least in some respectsbe regarded as being more akin to the forfeiture cases thanthe application cases; for although in form there is no for-feiture but merely an attempt at acquisition that fails, thelegitimate expectation of a renewal of the licence or con-firmation of the membership is one which raises the questionof what it is that has happened to make the applicantunsuitable for the membership or licence for which he was*previously thought suitable. ”
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The petitioner has made out a case for the issue of a Writ ofCertiorari to quash the order of the 2nd respondent cancellingthe licence issued to him. We accordingly quash the said order.
The petitioner has also prayed for the issue of a Writ ofMandamus to compel the respondents to issue him his gemminglicence to work the said Lot 17 in Plan (PI). The licence wasvalid for one year commencing on 4-3 79 and expiring on 3.3.80;so. that on the face of it, it would appear that the petitioner couldnot obtain an order from this Court for the issue of a licence fora period which has already expired. The petitioner, in his prayer,has asked that we make order, directing the respondents to extendthe validity of the licence for a further period of 4 months, beingthe unexpired period of the licence. There is nothing in theaffidavits of the respondents to indicate that Lot 17 in Plan (PI)is no longer available to the petitioner, as the right to prospect forgems in this Lot has been sold to a 3rd party since the cancella-tion of the petitioner’s licence and therefore it is not within theirpower to grant the extended period asked for. The justice of theease requires that we accede to the request of the petitioner. Weaccordingly make order directing the respondents to issue tothe petitioner his gemming licence to work the said Lot 17 inPlan (PI) for a further period of 4 months, commencing 1stOctober 1980. The petitioner’s right to prospect for gems in thisLot 17 for the said period will be subject to the conditionscontained in the licence (2R1).
The application of the petitioner is allowed with costs fixedat Rs. 1,050.
RANASINGHE, 3.—I agree.
Application allowed.
K. Thevaraiah,Attorney-at-Law.