055-NLR-NLR-V-66-KADAWATA-MEDA-KORALE-MULTI-PURPOSE-CO-OPERATIVE-SOCIETIES-UNION-LTD.-Petitioner.pdf
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Kadawata Meda Korale Multi-Purpose Co-operative Societies
Union Ltd. v. Batnavale
1963Present: T. S. Fernando, J.
KADAWATA MEDA KORALE MULTI-PURPOSE CO-OPERATIVESOCIETIES UNION LTD., Petitioner, and A. RATNAVALE (DeputyFood Controller) and another, Respondents•ST. C. 311 of 1963—-In the matter of an Application in the nature ofWrits of Certiorari and/or Mandamus under Section 42 of the Courts
Ordinance
Certiorari—Food Control Act {Cap. 171)—Section 8—Revocation of authorisationissued to a wholesale dealer—Procedure—Are functions of Deputy Food Con-troller of a judicial or administrative nature ?—“ If he considers it expedientso to do in the interests of the public ”—Applicability of audi alteram partemrule—Natural justice—Question of penalty versus revocation—Mandamus. 1
1{1963) 65 N. L. R. 73 at p. 84.
Kadawata Meda Korale Multi-Purpose Go-operative Societies
Union Ltd. v. Hatnavale
221
The petitioner Union was a wholesale dealer which was authorised, in terms-of Regulations made under section 6 of the Food Control Act, to deal in rationedcommodities. It received from the 1st respondent (the Deputy Food Con-troller) a letter dated June 27, 1963, which read as follows:—•
“ I hereby cancel the licence issued to the Kadawata Meda Korale Multi-purpose Co-operative Societies Union Ltd. as a wholesale dealer under clause8 (1) of the Food Control Act, No. 25 of 1950. ”
Sub-sections (1) and (2) of section 8 of the Food Control Act are in thefollowing terms:—
“8. (1) The Food Controller may, if he is satisfied that any distributor,merchant or dealer has contravened the provisions of any Order or regulationmade or deemed to be made under this Act, or if he considers it expedientso to do in the interests of the public, revoke any authorisation or directions,relating to the sale or supply of any food, article of food or cattle, issued tosuch distributor, merchant or dealer.
(2) In any case where it would be lawful for the Food Controller in accor-dance with the provisions of sub-section (1) to revoke any authorisations ordirections, he may, on an application made by the distributor, merchant ordealer, as the case may be, in lieu of such revocation, order such distributor,merchant or dealer to pay a penalty of an amount not exceeding five thousandmpees. ”
Held : Where a Deputy Food Controller, acting under the second part, and notunder the first part, of section 8 (1) of the Food Control Act, revokes the authoritygranted to an authorised wholesale dealer because he considers it expedientso to do in the interests of the public, he is acting in an administrative and notin a judicial or quasi-judicial capacity. In such a case, there is no obligationon him to comply with the requirements of the. aztdi alteram partem rule.Accordingly, a writ of certiorari is not available to question the revocation ofauthority granted to the dealer.
Weeraratne v. Poulier (48 N. L. R. 441), Edirisinghe v. JRajendra (49 N. L. R-at 500) and Nakkuda Ali v. Jayaratne (51 N. L. R. 457) followed.
Ridge v. Baldwin (1963) 2 A. E. R. 66 distinguished.
The provisions, however, of sub-section (2) of section 8 impose an obligationon the Deputy Food Controller, in every case of intended revocation of authori-sation, to give notice to the dealer about the action proposed to be taken againsthim, so that he may, if so advised, show that a payment of penalty should besubstituted in place of the revocation. The statutory duty of the DeputyFood Controller to give such notice is enforceable by mandamus.
Application for writs of certiorari and/or mandamus against theDeputy Food Controller.
H. W. Jayewardene, Q.C., with M. T. M. Sivardeen and L. C.Seneviratne, for the petitioner.
A. C. Alles, Solicitor-General, with. V. Tennekoon, Deputy Solicitor-General, H. L. de Silva and P. Naguleswaran, Crown Counsel, for therespondents.
Cur. adv. vuU.
2*—R 19752 (8/64)
222
T. S. FERNANDO, J.—Kadawata Meda K or ale Multi-Purpose Co-
operative Societies Union Ltd. v. Ratnavale
December 12, 1963. T. S. Fernando, J.—
This proceeding has been the subject of prolonged argument before me,and the application for the intervention of this Court has been stren-uously pressed on behalf of the petitioner and equally strenuouslyresisted on behalf of the respondents. I have had the advantage ofable arguments on both sides and I must here express my indebtednesstherefor to learned Counsel.
The petitioner Union, a wholesale dealer authorised by the 1st res-pondent, the Deputy Food Controller, in terms of Regulations madeunder the Food Control Act, No. 25 of 1950, to deal in rationed commo-dities, received from the latter the letter P6 of June 27, 1963 which wasin the following terms :—
“ I hereby cancel the licence issued to the Kadawata Meda Korale
Multi-purpose Co-operative Societies Union Limited as a wholesale
dealer under clause 8 (1) of the Food Control Act, No. 25 of 1950. ”
Aggrieved by this cancellation the petitioner moved this Court onJuly 1, 1963 claiming the issue by the Court of (a) a writ of certiorariquashing the order purported to be conveyed by P6 as well as an earlierorder made on June 3, 1963 (to which I shall refer later), (6) a writ ofmandamus directing the 1st respondent to continue the supply of foodand rationed articles as if there had been no cancellation of the licence,and (c) an interim order directing the 1st respodent to continue the supplyof food and rationed articles to the petitioner pending the final hearingand determination of the application.
When the application came up before this Court on July 1, 1963,ex parte in the first instance, it was heard by Herat, J. and Abeyesundere, J.,who, after hearing counsel in support, made order directing notice toissue on both respondents and also granting the relief (c) claimed by thepetitioner, viz. an order that, pending the final disposal of the application,the revocation of the authorisation as a wholesale dealer be suspendedand rendered inoperative and that “ the usual food rations ” be issuedto the petitioner until the final disposal of the application. Upon receiptof notice of this interim order, the respondents applied to the Court onJuly 4, 1963 for a revocation of the order alleging that it had been ob-tained on a misrepresentation of a material fact, viz. the allegation in thepetition and affidavit that unless the interim order was made the issue ofweekly rations to some 117,000 ration card holders will be seriouslyjeopardised. It would appear that the motion for the vacation of theinterim order could not be taken up for hearing before July 22, 1963 onaccount (1) of other work of the Court and (2) of want of sufficient timefor counsel to get ready for argument. The application came on forhearing before me on this last-mentioned date along with the motion forvacation of the interim order. The learned Solicitor-General contendedthat the order of this Court “ suspending and rendering inoperative ” the
T. S. FERNANDO, J.—Kadawata Meda Korale Multi-Purpose Co-
operative Societies Union Ltd. v. Ratnavale
223
revocation of the authorisation of the petitioner had been made withoutnotice to and without hearing the 1st respondent and that he was anxiousto argue that that order cannot stand. I inquired from Counsel for theparties whether it would not be more satisfactory if I went on to hearthe whole matter so that there may be a final determination, of all thequestions raised, a course in which learned counsel acquiesced.
The Food Control A.ct, No. 25 of 1950 (Cap. 171), which is an Act tomake provision for the regulation and control of the distribution, transportand supply of food enables the Minister to make Order, inter aha, for theregulation and control of the supply etc. of rice. Section 6 of the Actempowers the Minister to make regulations for the purpose of carryingout or giving effect to the principles and provisions of the Act, and interms of that section certain regulations have been made and publishedin Gazette No. 10,416 of June 20, 1952, and thereafter amended from timeto time. These regulations bear the short title of The Food ControlRegulations. Section E thereof governs the allocation and rationingof controlled commodities, and Part III of that Section relates to thesupply and distribution of controlled commodities in places other thanestates. Rice is a controlled commodity. It is subsidised both, to theproducer and to the consumer. Under Regulation 5 (1) of the said PartIII-, the Deputy or Assistant Food Controller for any district or area may,in order that supplies of any controlled commodity be made availablefor sale, in accordance with the regulations, to the inhabitants of thatdistrict or area, inter alia, authorise such number of wholesale dealersas he may consider expedient to sell supplies of any controlled commodityto specified authorised distributors or persons in charge of depots. TheDeputy Food Controller for the Ratnapura district authorised the peti-tioner, in terms of these regulations, to be a wholesale dealer in respectof Kadawata Meda Korale.
The petitioner states that on May 26, 1963, the 2nd respondent who isthe Assistant Food Controller for the same District, acting on the ordersof the 1st respondent, purported to inspect the stocks of rationed ricelying at the main store of the petitioner. The petitioner admits that onthat occasion the 2nd respondent objected to the practice employed by thepetitioner of issuing rice to the estates on a Friday and Saturday inrespect of the week commencing on the following Monday for distributionto their labourers who are holders of rice ration books.
The petitioner received from the 1st respondent letter PI of June 3,1963, in which the allegation was made that “ when the Assistant FoodController inspected the petitioner’s store at Balangoda on May 26,1963, a shortage of 1170 cwts., 1 qr., 16 lbs of white rice was detected ”.It was further stated in Pi that “ the subsidised value and the penaltyat the rate of 25% (Rs. 58,760*40) should be paid into this office within14 days from the date of this letter ”. This is the order of June 3, 1963referred to in the prayer of the petitioner. The petitioner replied to
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T. S. FERNANDO, J.—Kadawata Meda Korale Multi-Purpose Co-
operative Societies XJnion Ltd. v. Ratnavale
this by P2 of June 17, 1963 alleging that the statement that there was ashortage was false, that the petitioner was not given an opportunityof being heard before a demand for the value of the shortage and apenalty was made, that the action taken was not bona fide and had beendesigned for reasons of political expediency to assist the politicalopponents of the president of the petitioner Union. P2 also containedan enquiry as to the provision of law under which the demand for pay-ment of subsidised value and penalty was made. Thereupon by letterP3 of June 23, 1963 the 1st respondent requested the manager, thestorekeeper and administrative secretary of the petitioner Union to bepresent at the 1st respondent’s office at 10.30 a.m. on June 26, 1963.The petitioner by letter P4 of June 25, 1963 inquired from the 1st res-pondent, with reference to the letter sent to the three officers above-mentioned, why those officers were wanted. It is alleged (and thatallegation is not denied) that the petitioner had no officer styled e ad-ministrative secretary ’. The manager and storekeeper, however,on June 26th attended the office of the 1st respondent where they werequestioned on certain matters, and the manager was thereafter writtento again (by P5 of June 26th)—this time with reference to the enquiryin P4—requesting him to be present at 10 a.m. on July 4th at the 1strespondent’s office for an inquiry under the Pood Gontrol Act. Thisinquiry fixed for July 4th was not held because, by letter P6 of June27th .already referred to, the 1st respondent—despite the contents ofP5—purported to cancel the petitioner’s licence. P6 the terms of whichhave been reproduced earlier in this judgment does not indicate underwhich of the two limbs of section 8 (1) of the Pood Control Act thecancellation was effected.
Section 8 (1) is in the following terms :—
“ The Pood Controller may, if he is satisfied that any distributor,merchant or dealer has contravened the provisions of any Order orregulation made or deemed to be made under this Act, or if he consi-ders it expedient so to do in the interests of the public, revoke anyauthorisation or directions, relating to the sale or supply of any food,article of food or cattle, issued to such distributor, merchant ordealer. ”
This sub-section (1) reproduces substantially the wording of regulation18 (1) of the Defence (Food Control) (Special Provisions) Regulations,1943—-vide Gazette No. 9131 of June 5, 1943. Under that regulation18 (1) it had been provided that—
“ The Deputy Pood Controller for any district or area may at anytime, if he is satisfied that any authorised distributor or wholesaledealer has acted in contravention of or failed to comply with anyprovision of the Ordinance (No. 22 of 1937) or of these regulations orof the Control of Prices Ordinance, No. 39 of 1939, or of any order
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T. S. FERNANDO, J.—Kadawata Meda Korale Multi-Purpose Co-
.operative Societies Union Ltd. v. Ratnavale
or regulation made thereunder, or if he considers it expedient so to doin the interests of the public, by Order revoke the authority grantedor the directions issued to that distributor or dealer under Regulation 5of this Part.”
Where a Deputy Food Controller, acting under the said DefenceRegulation 18 (1) revoked the authority granted to an authorised dis-tributor of rice and flour because he considered it expedient so to do inthe interests of the public, Dias J. in Weeraratne v. Poulier1 held that theDeputy Food Controller was acting in an administrative and not in ajudicial capacity, and that a writ of certiorari was not available toquestion the revocation. That learned judge, however, observed—see page 444—that “ it may be that under the first part of regulation18 (1) the Deputy Food Controller when making an order thereunderacts in a quasi-judicial capacity.” In the following year in the case ofJEdirisinghe v. Rajendra2, Dias J. expressed himself more definitelythus:—
“It will be seen that sub-section (1) of regulation 18 creates twoseparate jurisdictions, namely (a) the authority or licence may berevoked if the Deputy Food Controller is satisfied that a distributoror wholesale dealer has done something wrong, and (6) where theDeputy Food Controller considers it expedient so to do in the interestsof the public. It is common ground between the parties that if,in this case, the Court holds that the authority of the petitioner wasrevoked under jurisdiction (a), the order cannot stand, because therespondent acted without jurisdiction inasmuch as the petitionerwas not afforded an opportunity of being heard in his defence. Onthe other hand, it is agreed that if the petitioner’s authority wasrevoked under jurisdiction (6), this would be a purely administrativematter and that the relief claimed cannot lie.”
And again,—at page 501—
“As I have already pointed out, section (regulation ? ) 18 (1)creates two separate and distinct jurisdictions available to the DeputyFood Controller. The first jurisdiction arises only when he “issatisfied ” that there has been a breach or a contravention of theregulations. In such a case the officer acts judicially, and he cannotbe said to be “ satisfied ” until he has given the petitioner anopportunity of being heard. The second jurisdiction, which is notcognizable by the Courts, arises “ if he considers it expedient in theinterests of the public ” to revoke the authority or licence. ”
The petitioner complains that there has been no compliance by the1st respondent with the audi alteram partem rule. The learned Solicitor-General contends that this rule of natural justice has to be observedonly if the revocation of the authorisation granted to the petitioner
(1947) 48 N. L. R. 441.
2 (1948) 49 N. L. R. at 500.
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T. S. FERNANDO, J.—Kadawata Meda Korale Multi-Purpose Co-
operative Societies Union Ltd. v. Ratnavale
was effected under the first limb of section 8 (1) of the Act. He pointsout that the 1st respondent effected the revocation by resorting to thesecond and not to the first limb of that sub-section. Mr. Jayewardeneargued that in spite of the averments in the affidavit presented by the1st respondent to this Court the facts disclose that he must have actedunder the first limb. If so, he argued, there was no doubt that he wasunder a duty to act judicially and the writ of certiorari must issue asnatural justice has been violated. It is therefore necessary to examinethe material before me to decide under what part or limb of section 8 (1)the 1st respondent can be said to have acted.
In the absence of any indication in P6 itself which would assist in adecision of this question, one must fall back on a scrutiny of the affidavits.
The 1st respondent in his affidavit of July 4, 1963, states that whilepreliminary investigations were still being conducted by his assistant,the 2nd respondent, into the matter of the shortage, he received on June26, 1963 from the Assistant Commissioner of Co-operative Developmenta copy of a letter of June 18th—R 2—addressed to him by the petitionertogether with a copy of that officer’s reply to the petitioner— R 1—bywhich the latter was requested to inform the 1st respondent of the actionit (the petitioner) had taken. The 1st respondent goes on to state thaton perusing the contents of R 2 he gathered that the petitioner, had, afterbeing apprised of certain irregularities, complied with the requirementsof the law and with the directions issued by the 2nd respondent for oneweek and, alleging inconvenience, had decided to revert to the old practiceand to continue to act in breach of the Food Control Regulations andcontrary to the directions given by the 2nd respondent. He avers thathe considered it not to be in the interests of the public to continue as anauthorised wholesale dealer a person who had expressly declared hisintention to act in contravention of the Food Control Regulations anddirections issued by the 2nd respondent and that, accordingly,he considered it expedient in the interests of the public to revoke theauthorisation granted to the petitioner to be a wholesale dealer. Thathe avers was the reason for revoking the authorisation by letter R3 (sameas P 6). Much argument could have been avoided in this case had the1st respondent indicated in R 3 the limb of the section 8 (1) under whichhe made the revocation.
Mr. Jayewardene, for the petitioner, has argued that the statementin the affidavit that action was taken because the 1st respondentconsidered it not to be in the interests of the public to continue thepetitioner as a wholesale dealer is an afterthought induced by a realisationon the part of the 1st respondent of the position that as a result of thenon-observance of the rules of natural justice the revocation pf theauthorisation was liable to be quashed by this Court on the application 'made thereto on July 1, 1963. He points to the fact that there was nolegal authority for the imposition of the penalty indicated in P 1. Thepetitioner has hitherto not been informed of the existence of any such
.T. S- FERNANDO, J.—Kadawata Meda Korale Multi-Purpose Co-227
operative Societies Union Ltd■ v. Ratnavale
authority, and the learned Solicitor-General himself could point to none.The 1st respondent’s affidavit—vide para. 3-—where it refers to P 1—states that ** in addressing that letter I was not acting or purporting toact in the exercise of any judicial or quasi-judicial power. The letterwas only a demand for payment of money which I thought was due tothe Crown It is also emphasized that the inquiry which was initiatedby the 1st respondent, presumably as a result of the protest P 2, was stillpending—it had actually been adjourned for July 4th—when the revoca-tion was abruptly effected on June 27th. The petitioner by a secondaffidavit of July 7th has pointed to a letter, also bearing date June 18—P 16 D—which he states was sent by him to the 1st respondent, andwhich, it is contended, would have proved to the latter that the petitionerhad no intention to act contrary to regulations or directions. Thesetwo documents, K>2 and P16 D, are important in the determination of thequestion now being examined, and may usefully be reproduced below.They both bear the same date, June 18, 1963.
P.16 E (or R 2) addressed by the petitioner to the Assistant Commis-sioner of Co-operative Development is in the following terms :—
“ In view of the Deputy Food Controller’s complaint we tried thisweek with very grea+ difficulty to store our rice rations at the Unionand issue rice on Monday and Tuesday. For this we had to curtailbringing provisions and other goods to find store accommodation.Yet we were unable to issue the rations although we worked up to11.30 p.m.
As a result there had been some complaints from estates andauthorised dealers. Hence we are reverting back to our old system. ”
while the terms of P. 16 D are as set out below :—
“ In view of your complaint that rice should not be issued on Fridaysand Saturdays, we wanted to give your suggestion a trial. To doso we had to stop bringing other essential goods and with difficultystore a part of the rice on our verandah and even outside at greatrisk. If there was rain a large quantity of the rice could have beendamaged.
Although we worked till 11.30 p.m. on 17.6.63 with additionalstaff, we could not issue all our customers for the day.
In view of the many complaints and the impossibility of carryingout your order we wish to revert to the practice we have so far followedof issuing rice on Fridays and Saturdays too.
We will be doing so from next week if we do not hear from youto the contrary in the meantime. ”
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T. S. FERNANDO, J.—Kadawata Meda Korale Multi-Purpose Go-
operative Societies Union Ltd. v. Ratnavale
The 1st respondent denies by affidavit that there is any record of thereceipt of letter P. 16 D. The Secretary of the petitioner has submittedan affidavit of July 7th stating that letters P. 16 D and P. 16 E were bothposted on June 18th and that this fact is borne out by the outward letterregister which is in his possession. In these days of notorious uncertaintyin the delivery of letters committed to the post, I am not able to reach aconclusion—faced as I am by the denial of the 1st respondent—that thisletter P. 16 D did reach the 1st respondent. On behalf of the 1st res-pondent it has been contended that even the statement that P. 16 D wasposted is open to doubt. It is submitted that, if P. 16 D and P. 16E werewritten and posted on the same day, it is significant that in informingtwo officers of the same fact, two letters couched in language differingone from the other had to be resorted to. The simpler and more straight-forward course of action, the learned Solicitor-General commented, wouldhave been to Bend the Assistant Commissioner of Co-operative Develop-ment an information copy of the letter addressed to the 1st respondent.There is, in my opinion, force in this comment.
Reaching, as I have done, the conclusion that on the material beforeme, the 1st respondent did not receive P. 16D, but had only P.16 E orR2 before him, it is not possible for me to reject the assertion of the 1strespondent tha t in the matter of the revocation of the authorisation grantedto the petitioner he acted under the second limb of section 8 (1) of theAct. Therefore, following the authority of the cases of Weeraratnev.Poulier (supra) and Edirisinghe v. Rajendra (supra), I am forced to theconclusion that the 1st respondent has not been shown to have beenacting in a judicial or quasi-judicial capacity in taking the action thathas been challenged on this proceeding.
Mr. Jayewardene next contended that, even if it be held that the 1strespondent was acting under the second limb of section 8 (1), there wasan obligation on him to comply with the requirements of the Midi alteramlpartem, rule. He placed great reliance on the very recent decision of theHouse of Lords in Ridge v. Baldwin1 where some doubt was cast on thedecision of the Privy Council in Nakkuda Ali v. Jayaratnea, notablyin the judgment of Lord Reid. The learned Solicitor-General, in sub-jecting the Pood Control Act and the Regulations to close analysis,appeared to equate the authorisation granted to the petitioner to a licenceor privilege, and thus to seek support for his argument for the exclusionof the remedy of certiorari in this case by reliance on the following obser-vations of the Privy Council in Nakkuda All's case. Observed LordRadcliffe in that case : “ In truth when he cancels a licence he is notdetermining a question: he is taking executive action to withdraw aprivilege because he believes and has reasonable grounds to believe thatthe holder is unfit to retain it Por the reason so stated the PrivyCouncil held that the Textile Controller in that case had not the duty toact judicially. Subjecting a long line of cases decided by English courts
1 (1963) 2 A. E.R. 66.
* (1951) A. C. 66—51 N. L. R. 157.
T. S. FERNANDO, J.—Kadawata Meda Korale Mvlti-Purpose Co-
operative Societies Union Ltd. v. Ratnavale
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to close analysis, Lord Reid in Ridge v. Baldwin (supra) concluded thatthe judgment in Nakkuda Ali’s case when it followed and applied LordHewart’s statement of the law in R. v. Legislative Committee of the ChurchAssembly1 that before certiorari can issue, not only must the personor body have legal authority to determine questions affecting the rights ofsubjects but “ there must be superadded to that the characteristic thatthe body has to act judicially ” was given under a serious misapprehensionof the effect of the older authorities and therefore cannot be regarded asauthoritative. It must be noted, however, that of the other four judgeswho participated in the judgment of Ridge v. Baldwin, only Lord Hodsonreferred to Nakkuda Ali’s case; and he himself, when making but apassing reference thereto in connection with cases arising out of theissue and withdrawal of licences, observed “ It may be that I must retreatto the last refuge of one confronted with as difficult a problem as this,namely, that each case depends on its own facts and that here thedeprivation of a pension without a hearing is on the face of it a denialof justice which cannot be justified on the language of the sub-sectionunder consideration. ”
Counsel for the petitioner argued that, as the issue of mandates in thenature of writs of certiorari, mandamus, etc., under section 42 of the CourtsOrdinance is governed by the relevant rules of English Common Law—vide Abdul Thassim v. Edmund Rodrigo 2 and Nakkuda Ali v. Jayaratne(supra)—under English law today the decision in Nakkuda Ali’scase must be considered to have been superseded by that in Ridge v.Baldwin. Accordingly he argued that this latter case calls to be appliedas being the relevant English authority on the subject. Even if Iwere to make the assumption that is the basis of learned counsel’s argu-ment, I am bound to observe that I feel there is force in a submission putforward before me by Mr. Tennekoon on behalf of the respondents thatin making the statements he has made in Ridge v. Baldwin in referenceto Nakkuda Ali’s case and R. v. Legislative Committee of the ChurchAssembly (supra), Lord Reid does not appear to have taken into considera-tion the circumstance that both these last-mentioned cases dealt withapplications for certiorari or prohibition, while Ridge v. Baldwin was acase of a pure declaratory action. Had this last-mentioned case beenone arising out of an application for certiorari or prohibition, and had,on a close analysis thereof, the majority decision of the House been shownto be that, where a person or body has legal authority to determinequestions affecting the rights of subjects, the judicial element has to beinferred from the nature of the power I might have been constrained toconsider seriously that the 1st respondent was under a duty to observethe audi alteram partem rule even when exercising his powers under thesecond limb of section 8 (1). But such not being the case, it is my duty toconsider Nakkuda Ali v. Jayaratne (supra) binding on me. It may alsobe noted that Mr. Ridge was dismissed by the Watch Committee partly,
1 (1928) 1 K. B. 411, at 415, 416.
a C1947 48 N. L. R. at 128.
230 T. S. FERNANDO, J.—Kadawata Meda Korale Multi-Purpose Co-
operative Societies Union Ltd. v. Ratnavale
at any rate, as the latter thought he was negligent in the discharge of hisduty. Under section 191 (4) of the Municipal Corporations Act, 1882,the Watch Committee was empowered to dismiss any borough constable“ whom they think negligent in the discharge of his duty, or otherwiseunfit for the same Had the dismissal been effected solely because theWatch Committee thought Mr. Ridge was “ otherwise unfit ”, it appearsto be doubtful whether the principles of natural justice would have hadto be observed. .
Mr. Jayewardene relied also ou certain observations in ProfessorDe Smith’s treatise on Judicial Review of Administrative Action (seepages 46 and 279) in support of the argument that rights of individualswhich attract the duty to act judicially are not necessarily “ rights ”in the jurisprudential sense of attributes to which correlative dutiesare annexed. But an attempt to equate the functions of the PoodController or his Deputies under the Act and the Regulations to that ofan ordinary licensing authority may lead to fallacious results. It is^ not an unimportant circumstance that under the Act and the Regulationsthe appointment of dealers and distributors is at the absolute discretionof the Controller or his Deputies. There is nothing revolutionary in theconcept of licences or authorisations also being at the absolute dis-cretion of these officers where they are satisfied that the public interestrequires it. Referring to the maxim audi alteram partem, Stratford A.C. J.in Sachs v. Minister of Justice1 stated :
“ Sacred though the maxim is held to be, Parliament is free toviolate it. In all cases where by judicial interpretation it has beeninvoked, this has been justified on the ground that the enactmentimpliedly incorporated it. When on the true construction of theAct, the implication is excluded, there is an end of the matter. ”
I would respectfully adopt this observation as being applicable evento the powers of Our own Parliament. One has therefore to examinethe relevant provision of the law to reach a decision whether it impliesan observance by the authority concerned of tho rule of natural justice.I do not consider that the interpretation of the relevant words here—“ The Food Controller may, if he considers it expedient so to do in theinterests of the public, revoke …. ”—admits of any seriousargument. In taking action under the second limb of section 8 (1) theFood Controller (or his Deputy—see definition in Section 3) is clearlydeciding the matter on questions of policy. There is no room forthe argument that the Courts can exercise any form of supervision orcontrol in the decision as to what is or is not in the interests of the public.That is a decision committed by Parliament solely to the specified publicofficer. I therefore respectfully agree with the statement of law aslaid down by Dias J. in the cases cited above which arose out of theanalogous Defence Regulations.
1 (1934) SS. A. L.R. —A. D. 11 at 38.
T. S. FERNANDO, J.—Kadawata Meda, Korale Multi-Purpose Co-
operative Societies Union Ltd. v. Batnavale
231
Does the law so laid down apply without qualification in a similarcase arising out of the Food Control Act ? It appears to me that underthe Act there is a significant difference that calls for notice. Section 8of the Act contains a sub-section (2) which requires to be reproducedhere :—
8 (2)—“ In any case where it would be lawful for the Food Controllerin accordance with the provisions of sub-section (1) to revoke anyauthorisations or directions, he may, on an application made by thedistributor, merchant or dealer, as the case may be, in lieu of suchrevocation, order such distributor, merchant or dealer to pay a penaltyof an amount not exceeding five thousand rupees. ”
It has been suggested that the Act (No. 25 of 1950) was enacted in atime of peace, and that it was considered necessary to mitigate the rigourof the law which obtained in time of war and in the immediate post-warperiod when the food problem was acute by which a revocation of anauthorisation was final and conclusive. Whatever may have been thereason that prompted Parliament to introduce sub-section (2), it issufficient for the purpose of this judgment to note that an amendment ofthe law has been introduced and to ascertain its meaning. I cannot seethat the language admits of any serious doubt. The existence of thephrase “ where it would be lawful ” in conjunction with “ in lieu of suchrevocation ” makes it reasonably plain that before revocation is effectedeither (a) by reason of a contravention having been made out or (6)because it is expedient in the public interest, opportunity has to be givento the person affected to show that a penalty should be imposed ratherthan a revocation effected. The problem now reduces itself thereforeto one of plain construction of a statute. No doubt, the question ofpenalty versus revocation only arises upon an application by the partyaffected. But how is that party to make such an application unless heis given notice of the action intended to be taken by the statutoryauthority ? In the case of an alleged contravention of an order or regula-tion, an opportunity would have been granted to the person affectedto prove the contrary before the Food Controller satisfied himself that acontravention was made out. An analogy would be the reaching of averdict of guilty or not guilty in a criminal case. Even in such a case thestatute appears to require that the Controller should inform the partyaffected that the contravention is proved to the Controller’s satisfactionand then it is open to that party to apply for the substitution of a penalty.To continue the earlier analogy, this would be the stage of passingsentence where a verdict of guilty has been reached. Where action hasbeen taken on the ground of expediency, in the interests of the public,the party affected may not know anything at all of his impending fate.If he first learns of the action taken only when he receives a letter revokinghis authorisation, he is faced with a e fait accompli % but it was arguedthat it is open to him to apply to mitigate the rigour of the revocationby the imposition on him of the lesser penalty. I am quite unable to
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T. S. FERNANDO, J.—Kadawata Meda Korale Multi-Purpose Co-
operative Societies Union Ltd. v. Ratnavale
agree that sub-section (2) of section 8 provides for mitigation of penaltiesalready imposed. On the contrary, it is plain that in every case ofintended revocation the party affected must be noticed of the actionproposed to be taken so that he may, if so advised, apply for the substi-tution of the punishment indicated in that sub-section.
Learned counsel for the petitioner argued that, in view of the wordingof the sub-section (2), as an opportunity had to be granted to the petitionerbefore its authorisation was revoked, the remedy by way of certiorarito quash became available. I entertain some doubt whether non-compliance with a statutory requirement such as the one in question issufficient to convert what was essentially an administrative or executiveact to an act which attracted to it liability to interference by way ofcertiorari or prohibition. I am not unmindful of those decisions whereit has been held that the duty to act judicially may arise in the Course ofwhat is primarily an administrative function, e.g. R. v. ManchesterLegal Aid Committee 1. I prefer, however, to rest my decision on thebasis that here the Deputy Food Controller was, on a proper constructionof section 8 (1) and (2), under a duty to give notice to the petitioner thathe intended to revoke the authorisation granted to him before makingthe revocation itself so that the petitioner may decide whether he shouldmake the application specified in section 8 (2). On that view of the law,the 1st respondent has failed to perform a statutory function which was apre-requisite to action revoking the authorisation of the petitioner. Theorder P 6 or It 3 was therefore, in my opinion, void.
Mandamus is a remedy which is available in the discretion of the Courtto require public officials to carry out their duties and to supply a defectof justice even if there be another but less convenient and effectualremedy. In the exercise of this Court’s discretion, I am of opinion that amandate in the nature of a writ of mandamus should issue compellingthe 1st respondent to give the petitioner notice of intended revocation ofits authorisation as a wholesale dealer. Mandamus has been invoked onthis application when it was first filed in this Court although, no doubt,the reason stated for such invocation is something other than that forwhich I now propose to grant it. It is always open to this Court topermit a petitioner to amend his application but, although for purposes oftechnical perfection an amendment of the prayer might have been insistedupon, I do not consider it necessary to require compliance at this stagewith such a rule of technicality and delay the decision of this Court anylonger when the argument of counsel for the parties has made it obviousthat there is no defence to the demand for interference by way of‘mandamus ’. The order of June 27, 1963 communicated to the petitionerhas, therefore, to be quashed. It is accordingly quashed, and a mandatewill issue to compel the performance of the statutory function indicatedabove.
1 {1952) 1 A. E. R. at 489.
Gomes v. Leelaratna
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In view of the course the argument took before me, it is permissibleto add that if all that can be adduced against the petitioner is that it hasby taking the action indicated in P. 16 E (or R2) shown, in a letteraddressed to a person other than the 1st respondent himself, a disincli-nation to comply with lawful directions issued by the authorities, the 1strespondent may yet be inclined to consider whether the interests of thepublic may not be sufficiently met by the imposition of an appropriatepenalty in terms of section 8 (2). The petitioner has made an attemptto show that by P 16D it indicated a willingness to comply with thedirections if the 1st respondent insisted on such a compliance in spite ofthe difficulties experienced.
The petitioner has prayed also for a quashing of the “ order ” of June 3,1963 contained in letter PI requiring it to pay a sum of Rs. 58,760/40by way of subsidised value and penalty. The demand contained inPI has not been supported at the argument and, indeed, it did notappearto be doubted that the request could not be supported at law. I do notconsider it necessary in the circumstances to deal with that part of theprayer.
The 1st respondent must pay to the petitioner the costs of this applica-tion. There was no necessity for the 2nd respondent to have been madea party to this application and, therefore, I make no order for costs asagainst him.
Order of Deputy Food Controller partly quashed.