012-SLLR-SLLR-2005-V-3-LANKA-MARINE-SERVICES-PVT-LTD-vs.-SRI-LANKA-PORTS-AUTHORITY-AND-OTHERS.pdf
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Sri Lanka Law Reports
(2005) 3 Sri L R.
LANKA MARINE SERVICES (PVT) LTDVSSRI LANKA PORTS AUTHORITY AND OTHERSCOURT OF APPEALSRIPAVAN, J. ANDBASNAYAKE, J.
CA 829/2005.
JULY 6. 24, 27, 2005.
Petroleum Products (Special Provisions) Act, No. 33 of 2002. section 5 -Common User Facility (C.U.F.) agreement – Rights of parties in the CUFagreement – could it take away the statutory powers of the Minister?
The petitioner sought to quash the licenses issued by the Minister of Powerand Energy the 6th Respondent under the provisions of Act, No. 33 of 2002 tothe 4th and 5th respondents and further sought an interim order preventing the1st respondent Sri Lanka Ports Authority from permitting the 4th and 5threspondents from landing/transporting bunkers/marine fuel within the port ofColombo without using the common user facility (CUF).
It was contended that the CUF agreement was entered into on 20.08.2002among the petitioner, 4th respondent, 3rd respondent Ceylon PetroleumCorporation and the Secretary to the Treasury and that, the Government has interms of the CUF agreement covenanted, promised and undertaken that allbunkers/marine fuel handled and transported within the Port of Colombo shouldbe handled and transported using the CUF and that, the 4th and 5th respondentswere not parties to the CUF agreement. It was contended that the impugnedlicences are invalid ex- facie, contrary to the terms and conditions of the CUFagreement and be quashed.
HELD-
The impugned licences were issued in terms of the provisionscontained in section 5 of Act, No. 33 of 2002, passed by Parliament on17.12.2002.
The Act was passed after the CUF agreement was entered into by theparties.
The powers of the 6th respondent Minister as contained in the Actcannot be taken away by the CUF agreement.
The statute being superior reflects the will of the legislature and takespriority over the CUF agreement.
CA
Lanka Marine Services (Pvt) Ltd v Sri LankaPorts Authority and Others (Sripavan, J.)
61
Certiorari does not lie to remedy grievances from an alleged breachof contract.
APPLICATION for a writ of certiorari.
Cases referred to :
Podi Nona vs Urban Council, Horana (1981) 2 Sri LR 141
Jayaweera vs. Wijayaratne (1985) 2 Sri LR 413
Romesh de Silva, P. C. with Harsha Amarasekera for petitioner.
Wijedasa Rajapakse, PC. with Kapila Liyanagamage for 1st respondent.
S. S. Sahabandu, P. C. with S. Dissanayake for 3rd respondent.
Shibly Aziz, P. C. with W. Dayaratne for 4th respondent.
K. Kanag-lswaran, P. C. with Nigel Bartholameuz for 5th respondent.
M.Gunatilleke, Senior State Counsel for 2nd, 6th, 7th and 8th respondents.
Cur. adv. vult.
August 01,2005.
SRIPAVAN, J.The Petitioner whilst seeking to quash the licences marked P8, P9 andP10 issued by the sixth respondent under the provisions of Act No. 33 of2002 also seeks an interim order preventing the first respondent frompermitting the fourth and fifth respondents from handling and/or transportingbunkers/marine fuel within the port of Colombo without using the CommonUser Facility (hereinafter referred to as the CUF).
It is common ground that the CUF agreement marked P1 was enteredinto on 20th August 2002 among the petitioner, first respondent, thirdrespondent and the Secretary to the Treasury acting for and on behalf ofthe Government of Sri Lanka. The learned President's Counsel as averredin paragraph 57 of the petition submitted that the Government of Sri Lankahas in terms of P1, covenanted, promised and undertaken that all bunkers/marine fuel handled and transported within the Port of Colombo should behandled and transported using the CUF. It is observed that the fourth andthe fifth respondents are not parties to the said CUF agreement.
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Sri Lanka Law Reports
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Counsel contended that the first and the second respondents beprevented from acting contrary and/ or in breach of the CUF agreementand thereby the fourth and fifth respondents be prohibited from handlingand/or distributing bunkers/marine fuel to ships lying within the Port ofColombo without using the CUF, (Vide paragraph 83 of the petition.) Thepetitioner pleads in paragraph 35 of the petition that the first respondent isabout to permit the fourth and fifth respondents to supply bunkers/ marinefuel without using the CUF. It is on this basis Counsel submitted that theimpugned licences are invalid ex-facie, contrary to the terms and conditionsof the CUF agreement and be quashed. (Vide paragraph 43 of the petition.)
Having considered the submissions of the learned President's Counsel,the court is of the view that the first respondent's decision to permit thefourth and the fifth respondents to supply bunkers/ marine fuel withoutusing the CUF as contained in the document marked P6 is one takenwithin the context of the CUF agreement and not in the exercise of anystatutory powers vested in the first respondent authority. It is a decisionmade in the exercise of a power which springs from the agreement markedP1. The contractual relationship among the parties to use the CUF is notregulated by the statute. A distinction needs to be drawn between dutieswhich are statutory and duties arising merely from contract. Contractualduties are enforceable as matters of private law by ordinary contractualremedies. (Vide Podi Nona vs. Urban Council, Horana(,) Jayaweera vs.Wijayaratne(2) Certiorari lies where statutory authorities with powers vestedby Parliament exercise those powers to the detriment of the public. Itdoes not lie to remedy grievances arising from an alleged breach of contract.
The impugned licences were issued by the sixth respondent in terms ofthe provisions contained in Section 5 of Act No. 33 of 2002 passed byParliament on 17th December 2002. It is thus seen that the said Act waspassed after the CUF agreement was entered into by the parties. Thepowers of the sixth respondent as contained in the said Act cannot betaken away by the CUF agreement marked P1. In other words, the rightsof parties in the CUF agreement cannot override the statutory powers ofthe sixth respondent contained in Act No. 33 of 2002. The grounds onwhich the petitioner seeks to challenge the impugned licences aresuccinctly stated in paragraphs 79 and 80 of the petition.
Having regard to the established principles, the statute being superior,reflects the will of the legislature and takes priority over the CUF agreement?
CA
Mawsook vs People's Bank
63
‘ It is an authentic expression of the legislative will and the function of thecourt is to interpret the statute according to the intent of Parliament. Theresponsibility of this court is to construe and enforce the laws of the landas they are and not to legislate social or government policy on the basis ofthe CUF agreement. The court will only intervene and declare the act ofthe sixth respondent as invalid if it is found that the sixth respondent hasexercised his powers in violation of the provisions contained in the saidAct. The petition does not disclose any such violation by the sixthrespondent. In view of the foregoing, the court does not see any legalbasis to issue notice on the repondents. Notice is therefore refused.
BASNAYAKE, J. -1 agree.
Notice refused