Kuruppu f. Rajapaksu. Conservator of Forests
COURT OF APPEALKuruppuVs.
Keerthi Rajapaksa, Conservator of Forests
C.A. 338/78 – M.C. Panadura 33743
Forest Ordinance Section 24 Regulation 5 made thereunder – Rule delegatus nonpotest delegare – may Minister's administrative powers be delegated?
The accused appellant was charged along with two others. The chargeagainst the first and second accused was that they had transported logswithin into or out of an area specified in the Gazette notification dated29.8.66 without a permit from an authorized officer mentioned in the.gazettg.
The accused appellant was charged with aiding and abetting.
All three accused were convicted but only the accused appellant appealed..
The Defence urged that regulation 5 made by the Minister under theForest Ordinance and published in the Gazette was ultra vires the powervested in the Minister under section 24 (I) (b) on the grounds that theregulations empower the Conservator of Forests to specify the area withininto or out of which no timber of any species could be transported withouta permit from an authorized officer.
HELD Regulation 5 made section 5 of Forests Ordinance is not ulravires the Minister’s powers quoting Greene M.R. in Caltona Ltd. vs.
Commissioner of Works “The duties imposed upon Ministers
and ' the powers given to Ministers are normally exercised under the
authority of Ministers by respcwsiblc^rfficcrs of the department
Ministers being responsible ip Parliament will see that important dutiesare committed to experienced officials. If they do not do that Parliamentis the place where complaint must be made against them.
Sri Lanka Law Reports
[1982} 1 SLR
Appeal from Judgment of the Magistrate of Panadura.
Before:Rodrigo, J.&L.H.De Alwis, J.
Sisira de Abrew, State Counsel forAttorney-General.
Cur. adv. vult.
The appellant was a Forest Officer. He was prosecuted as thethird accused for aiding and abetting the 1st and 2nd accused tocommit an offence under the Forest Ordinance (Chapter 4S1). It isalleged to be an offence under the Forest Ordinance to transportwithin, into, or out of, any area specified in the Gazette Notificationdated 29.8.1966 any timber not excepted therein without a permitfrom any of the officers mentioned in this Gazette Notification. Thecharge levelled against the first two accused was that they committedan offence of this description – that they transported IS logs ofHendawaka timber without a permit. None of the accused gaveevidence at the trial. They were each convicted and sentenced. Thefirst and second accused have not appealed.
The lorry that was transporting the IS logs was signalled to bestopped by two Forest Officers of the Flying Squad of the ForestDepartment at a point on the.. Colombo – Galle Road at a placecalled Gorakana not far away from Moratuwa towards Panadura.The logs were found to be stamped with a seal discovered later tobe tne seal in the custody of the 3rd accused. He was the BeatOfficer attached to the Ingiriya Forest area. He had been given theseal and was authorised to stamp tree trunks when authority is givenby the Forest Range Officer to fell them on applications made byprospective purchasers. For transporting the felled trees after cuttingthem into logs a permit has to be obtained. The 2nd accused produceda permit when the lorry was stopped and the logs were examined.They were stamped but were found to be of a different species anddescription from those mentioned in the permit. The permit wasconsequently retained by the Flying Squad Officer and he initiatedan investigation. He also seized the logs in the lorry.
Kuruppu v. Rajapaksa, Conservator of Forests (Rodrigo. J.)
At the trial this permit was not forthcoming. The Flying SquadOfficer, Rajapaksa giving evidence said that somehow it has beenmisplaced. He, however, produced what he calleci a triplicate copyof the permit obtained from the Forest Range Officer’s office. Permitsare said to be made out in triplicate. This copy had the number ofthe lorry, the date of transport, name of the permit holder (2ndaccused), the plade from which and to which the timber is transported.It also Contained'the description of the logs in-detail, authorised tobe transported on that permit including their kind, length and girthamong others. Objection was taken to the reception of this copy.But it was admitted in evidence by order of the Magistrate. Ishall come back to this matter later.
If the permit handed over by the 2nd accused to Rajapaksa wasthe original of the triplicate copy produced in evidence there is littledoubt that the logs were not'covered by the permit in the hands ofthe 2nd accused and it follows that the logs were being transportedwithout a permit though they were stamped. Neither the accusednor the Forest Ranger of the Department who gave evidence himselfwas able to speak to, leave alone produce, a permit or a copy thereofbearing the same date to cover the description and number of logsseized on this day — 1.8.71. If there was one to cover the logsseized on this day the 3rd accused would not have found it beyondhis resourcefulness being a forest officer to have a copy produced.It is inconceivable that two permits would have been issued for thetransport of the same number of logs but of different description,length, breadth and girth by the same officer to the same permitholder along the same route on the same day at the same time. Thetheoretical possibility, however, remains. But this possibility was remov-ed by the evidence of the witnesses from the Forest Department. Theytestified that the 3rd accused, when called upon by them was, unableto point out the stamps of the trees that arc supposed to have beenfelled from which logs described in the permit produced or thoseseized by the Flying Squad Officer were cut. The defence tried tomake out that the alleged triplicate copy of the permit handed overto Rajapaksa is in fact not a triplicate copy of the permit and thatthe 2nd accused had a permit in respect of the logs that were seizedbut a triplicate copy of that permit is not forthcoming from theForest Department for some reason better known to them. Thewitnesses from the Forest Department including the Forest Rangervehemently denied this suggestion, and they asserted that the copy
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that the Department is producing marked P2 is the triplicate copyof the permit that was retained by the Flying Squad.
What emerges from the evidence is the prevalence of a fraudulentpractice resorted to by some officers of the Department. There is aconcerted effort by the Government to conserve the valuabte'timberof our forests and to that end to educate the younger generation inparticular of the need to conserve trees of rare species. This effortis frustrated by the fraudulent practices of some officers, of theDepartment itself. This is one such instance. What appears to havehappened is this: Authority is obtained on an application to cut downand remove some cheap trees. The timber described in-the permitproduced are of that category. But they are in fact not cut downbecdOsfe th'ey ’ are useless. Instead valuable "trfees are cut down(Hfendawakafirtiber seized on this occasion nirsaid.-to be vary:;valuable)a'frcf1 8 perriiitHs issued to transport whatf‘purports do *be.-the logsJfrt>ih"!fhe frees thetltroned in !thfe perrftit. T6! avoid"detefctiOn logs'Worn trfees cut down elsewhere Without duthority; are-stamped' afterthe trees are felled arid ctit into'logs when the'prbper procedure*-for’ stamping is to Stantp the – trees1 'befoi^ they; are cut1 down -into flogs.Thus when a lorry’ is'’St’bpped,iby:'’a‘!PoIice Officer he-’is shown apermit and the stamps ort~the logs’ — care is! taken to carry thenumber of logs specified'’jii‘the! permit. !The-Police-Officer finds thatthe number of logs tally 'with that ^in the- permit'arid they carry , thestamp. He cannot make ’dtit 6rife kind of timber from another andthe lorry is signalled on.:
That this is What happens is borne out by’ the evidence of PoliceSergeant Mfendis. On a' tip off that illicit‘ timber is being loaded intoa lorry in the forest, he went there'to find that, off the main roadinside the forest in Ingiriya, a group of persons were loading a heapof logs into a lorry and a person, identified by him as the 3rdaccused, was stamping the logs. The Sergeant had thought’thatbecause the logs were being stamped it was not illicit timber: Lateron in the morning, however, the Sergeant had waited for this lorryon more information being received and seeing it coming had signalledit to stop. He then examined the logs and asked for the permit.The number tallied. They were stamped. Besides, the 3rd accussedwas also inside the lorry. The Sergeant recognised him to be a ForestOfficer and he allowed the lorry to go. He could not make out whatkind of timber it was. The 3rd accused had thereafter got off the
Kuruppu v. Rajapaksa. Conservator of Forests (Rodrigo, J.)
lorry, at some point of the journey -before it was signalled to *bcstopped again by the Flying Squad.
I shall now turn to the reception in evidence of the alleged triplicatecopy of the permit handed over to Rajapaksa by the 2nd accused.It was important for the defence to get this copy, out .of the. wav,either on the ground.of inadmissibility or on the.ground that .thiswas not a copy of the permit which the accused handed over to Rajapaksa.
It was not clear whether two of the triplicates were carbon copies.The Forest Ranger, however, had identified his own signature onthe copy produced. In addition, there was in the handwriting of the3rd accused an endorsement on the back of this copy .that instructionshad been carried out. This copy therefore is admissible either asprimary evidence or as secondary evidence of its original… The, originalis alleged to be lost and therefore secondary evidence, .would beadmissible. The matter, however, does not end there, for it is thedefence case that the copy produced was not the copy,of the permitretained by Rajapaksa. The burden was on the prosecution to provethat the copy produced as P2 was the copy of, th£,,permjf handedover. This burden can be discharged only by produciugrCinjjumstantialevidence. On a consideration of the-circumstances,-referred to by meearlier there can be little doubt that the triplicate copy P2,is in factthe triplicate copy of the permit handed over to Rajapaksa. 1,therefore, hold that the document P2 had been rightly .admitted inevidence and that the trial Judge had rightly taken the view that thecopy P2 is a triplicate copy of the permit retained by Rajapaka. 1am confirmed in this view by a consideration of the evidence ofRajapaksa and the Forest Ranger who said that Rajapaksa showedthe permit to him that day itself and it was with the aid of theparticulars specified therein that they were able to look forandobtainits triplicate copies one of which is the document P2 produced. Thatthe timber that was seized belonged to Hcndewaka species has beenproved through the evidence of the Government analyst and therewas no serious contest that the seized timber did not belong to thespecies described in the triplicate copy P2…..:
The defence, however, urged that the regulation (?) made by theMinister under the Forest ordinance and published in the GovernmentGazette on 29.8.66 is ultra vires the powers, vested in him under s.24(!)(b). The ^regulation empowers the Conservator of Forests to
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specify areas within, into, or out of which no timber of any speciesunless excepted can be transported without a permit issued by anAuthorised Officer. (It is. said to be ultra vires on the principle of“delegatus non potest delegare”.
The submission ,has received judicial consideration before and theresult is conflicting decisions. While de Kretser, J took the view inWickremaratne – R.F.C. Moneragala v. W.D. Samerasinghe et e/Wthat the regulation is ultra vires on the principle of the above maxim.A Bench of two Judges in R.F.O. Ratnapura v. P.A.D Nandasena(2) took the opposite view and held that the regulation was intravires. Weeraratne, J with whom Tennekoon, J, as he then was,agreeing, followed de Kretser, J in Podiratne & Another vs. R.F.O.Puttalam.fi) The case in which the Bench of two Judges disagreedwith de Kretser, J was, however, not brought to the notice ofWeeraratne, J and it was therefore not considered in that case. AHthese cases then came to be reviewed by Vythialingam, J (with VictorPerera, J agreeing) in H.S. Perera v. Forest DepartmentM) He saysthat the maxim is not a rigid rule which admits of no exception and, the mere designation of an officer to specify any forest area fromwhich transport of timber is prohibited is not a delegation of rulemaking power reposed in the Minister by the legislature but adelegation, if at all, of an administrative function.
Wade is quoted as saying(^) “that the rule cannot, however, becarried to the point of requiring a Minister of the Crown to givehis mind personally to all the things he is empowered to decide. Inempowering Ministers to act Parliament we}l knows that in very manycases the effective work must be done by departmental officials. Ifan Act provides, as so many Acts do, that the Minister may do thisor that, if satisfied that it is desirable, the power may be exerciseableby an official of the department for whom the Minister is responsibleto. Parliament; it may suffice that the official is satisfied and theMinister may never have known of the matter at all.”
Then de Smith puts the matter in this way: “Special considerationsarise where a statutory power vested in a Minister or a departmentof State is exercised by a departmental official. The official is thealter ego of the Minister or the Department and since he is subjectto the. fullest control by his superior he is not usually spoken of asa delegateThe Courts have recognised that duties imposed
Kuruppu r. Rajapaksa. Conservator of Forests (Rodrigo, J )
on Ministers and the powers given to Ministers are normally exercisedunder the authority of the Ministers by responsible officials of th'e
department’ In general, therefore, a Minister's
hot obliged to bring his own mind to bear upon a matter entrustedto him by statutes but may act through a duly authorised officer ofhis department."
Greene, M.R. had to consider in Carltona Limited v. Commissionerof Works whether a notice requisitioning the plaintiff's property sentby a departmental official of the Minister of Works and Planningon behalf of the Minister on a letterhead of the department wasvalid notice. The contention was that the Parliament had vested inthe Minister the power to requisition property and it is the Ministerhimself who had to bring his mind to bear on such an importantquestion affecting the rights of subjects and therefore it was notopen to the Minister to delegate such decision making power to asubordinate officer. Greene M.R. observed at page 563: “In theadministration of Government in this country the functions whichare given to Ministers (and constitutionally properly given to Ministersbecause they are constitutionally responsible) itre functions somultifarious that no Minister could ever personally attend to them.To take the example of the present case, no doubt there have beenthousands of requisitions in this country by individual Ministers. Itcannot be supposed that this regulation meant, that in each case,the. Minister in person should direct his mind to the matter. Theduties- imposed upon Ministers and the powers given to Ministersarc normally exercised under the authority of Ministers by responsibleofficers of the department. Public business could not be carried on
if that were not the case The whole system of departmental
organisation and administration is based on the view that Ministersbeing responsible to Parliament will sec that important duties arccommitted to experienced officials. If they do not do that Parliamentis the place where complaint must be made against them."
Then in the case of Hussein v. The Tribunal of Appeal under theLicencing of Traders Act(&) the question arose as to whether it wascompetent for the Minister to delegate to the Director of Commercethe power of appointing Licencing Authorities such as GovernmentAgents. It was conceded in that case that the Minister could appointthe Director of Commerce as the licencing authority but it wasrorutided that it was not competent to him to give power to the
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Director of Commerce himself to appoint others as GovernmentAgents to be licencing authorities. This contention was upheld takingthe view that empowering the Director of Commerce ;o appointlicencing authorities himself Was'a'delegation of power specially vested1 in the Minister by Parliament:'
Regard being had to the views expressed as set out above in theauthorities 1 hold that the Regulation (5)' made under s. 24(1) (b)of the Forest Ordinance is not ultra vires the Minister’s power.
For the above reasons I affirm the conviction and sentence anddismiss this appeal.
H. DE. ALWIS; J. — 1 agree.
S.C. • 1238-9/68 – M.C. Badulla 7280; S.C. Minutes of 8.5.1970.
S.C. 969/75 – M.C. Ratnapura 82529; S.C. Minutes of 27.2.1975.
S.C. 163-164/72 – M.C. Puttalam 11394; S.C. Minutes of 11.11.75.
C.A. 645/75'-M.C. Gampaha 65797/A; C.A. Minutes of 31.10.78.
Administrative Law, P.52.
Judicial Review of Administrative Action. 2nd Ed. pp. 290 & 291.
1943 (2) All E. R. 560.
65 NLR 63.