Perera v. Forests Department
SUPREME COURTM.S. PereraVs.Forest Department and Another
S.C. Appeal No 1/80 – S.C. Application No. 645/73(C.A.)
M.C. Gampaha Case No. 657071A
Forest Ordinance as amended by Act Ho. 13 of 1061 — section 24 the Regulation(5) made thereunder by the Minister empowering Official to perform certain acts— Ultra Vires Rule – Delegatus non potest delegare.
Accused Appellant was convicted by a Magistrate for transporting timber intoor out of prohibited areas without a permit from an authorised 'officer andthereby contravening regulation (5)2 marie by the Minister under section 24 ofForest Ordinance. Appellant moved in revision to have conviction set aside onthe ground that the regulations were ultra vires the Minister's powers.
The Appellant contended that the aforesaid regulations were ultra vires andinvalid as the Minister to whom Parliament had delegated power to (a) specifythe area within or out of which timber could not be transported without a permitand (b) to designate the officer authorized to issue the permit, could not validlydelegate that power to the Conservator of Forests.
Held: that the regulation 5(1) or (2) is not ultra vires the Minister's powers asthe Conservator acts as the Minister himself and his decision is the Minister'sdecision and that offical is the alter ego of the Minister.
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from Judgment of the Court of Appeal.
Argued on:Decided on:
Sharvananda J, Wanasundera J. and Ratwatte J.Walter Jayawardene, Q.C., withNimal Senanayake, Senior Attorney-at-Law,Kithsiri Gunaratne, (Miss)S.M. Senaratneand Saliya Mathew for theAccused – Petitioner- Appellant.
M.M. Zubair, SeniorState Counsel, for theAttorney-General.
12th, 15th & 25 th January 1982.
11th March 1982.Cur. a(jv
The accused-appellant was cnarged along with another with havingtransported timber in a prohibited area without a permit and therebycontravened Regulation 5(2) made under the Forest Ordinance. Hewas convicted on his own plea and fined Rs. 100/-, while the otheraccused was discharged. He moved in revision to have the saidconviction quashed on the ground that the Regulation in questionwas ultra vires and therefore his conviction and sentence were illegal.The Court of Appeal rejected his contention and dismissed theapplication. The appellant has preferred this appeal from the judgmentof the Court of Appeal.
Section 24(1) of the Forest Ordinance (Cap. 451) as amended byAct No. 13 of 1966 provides as follows:
“The Minister may make regulations respecting the transit of allforest produce by land or water. Such regulations may, amongother matters:
Prohibit the transport of timber within, into, or out of anyspecified local area without a permit from any Forest Officerduly authorised to issue the same or otherwise than inaccordance with the conditions of such permit.”
The other provisions are not material for the present purposes.
The Minister made the relevant Regulation 5 published in Part Iof Government Gazette No. 14710/7 of 29th August 1966. It readsas follows:
Perera v. Forest Department (Shurvananda. J.)
“1. The Conservator of Forests may, by notification publishedin the Gazette, for the purpose of section 24(1 )(b) of theOrdinance specify any area as an area Within, into, or outof which timber of any species specified 'in the notificationshall not be transported without a permit issued by, anofficer authorised in that behalf.
2. No person shall within or out of any such area transport orcause to be transported timber of any species specified insueh notification without a permit issued by a Forest Officerauthorised in that behalf by the Conservator of Forests.”
The notification made by the Conservator of Forests is publishedin Gazette No. 14710/7 of 29th August 1966.
It was the contention of senior Counsel for the Appellant that theaforesaid Regulation is ultra vires and invalid in law. as the Ministerto whom Parliament has delegated the power (a)'to specify the areawithin or out of which timber could not be tahspbrted without apermit, and (b) to designate the officer authorised to issue the permit,could not validly delegate that power to the Conservator of Forests.He based his argument on the maxim “delegatus non potest delegare"and relied on two unreported judgments which had upheld' thiscontention. The first of these case was the case of Wickremaratnev. Samarasinghe et al (S.C. 1238 – 39/68, M.C! Badulla 7280 – S.C.minutes of 8th May 1970). In that case, Dc Kretser J.. sitting alone,held that the delegation was ultra vires as offending the principle“delegatus non potest delegares." According to himi a perusal ofRegulation 5 established that the Minister was thereby giving theConservator of Forests the right to decide:
“(a) Which the specified local areas arc “within, into, or outof which” timber could not be transported without a permit,and
Who the Forest Officers are to whom the Conservator hadgiven authority to issue permits.”
and that these rights which have been entrusted by Parliament tothe Minister by section 24 to be exercised by him personally hadbeen wrongly delegated by him to the Conservator of Forests. Hereferred to the significance of section 65 of the Forest Ordinancewhich provides that “ail regulations or rules made or approved by
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the Minister under this Ordinance shall be published in' the Gazetteand shall thereupon haVe the force of law.” He adverted also tosection 59(e) of the Ordinance and stated that under this provision,the Minister “could not authorise the Conservator to authorise otherofficers to issue permits.” He concluded that Regulation 5(1) and(2) were bad because of unauthorised sub-delegation.
The second1 decision was Podiratne and another m Range ForestOfficer Puf/a‘/ab7 r(S^i '163/72,' M.CT Puttalam 11394 – S.C. minutesof 11th November 1975)( Which was a decision of two Judges of thelast Supreme Court, where Wecraratne J., with Tennekoon CJ.agreeing, followed the decision of De Kretser J. and held thatRegulation 5 was ultra vires the Forest Ordinance on the ground ofalleged sub-delegation, as held by De Kretser J.
However, in the case of R.F.O., Ratnapura, v. Nandasena (S.C.969/73, M.C. Ratnapura 82530 – S.C. minutes of 27 February 1975),Walpita J., with Ismail J. agreeing, disagreed with the judgment ofDe Kretser J! and held that Regulation 5 did not involve anydelegation of legislative power that was vested in the Minister andthat1 what was delegated was only an ‘administrative power’, thedelegation of which power was not prohibited. This judgment ofWalpita J. had apparently not been brought to the notice of WeeraratncJ. and Tennekoon" CJ.
Section 24 of the Forest Ordinance authorised the Minister tomake regulations respecting the matters referred to in that section.Section 65 of the Ordinance vests these regulations with the forceof law on their publication in the Gazette. It is not disputed thatthe aforesaid Regulation 5 along with the other Regulations appearingin Gazette No. 14710/7 were made by the Minister. He has exercisedthe power delegated to him by the legislature. He has not delegatedthat function to the Conservator of Forests. All that he has doneunder the aforesaid Regulation 5 is-to impose on the Conservatorof Forests the duty or obligation of-’specifying the areas and thespecies of timber to which the regulations arc to apply and toempower the Conservator 'to': authorise “Forest Officers to issue therelevant permits for the' transportatidn 6f such timber.
The question in issue is whether by Regulation 5 the Minister hasfiub-delcgatcd to the Conservator of Forests, his principal Forest
Perera v. Forest Department (Sharvananda. J.)
Department official, a part of the legislative powers vested in himby section 4 of the Ordinance, as held by De Kretser J., or merelydelegated a part of his administrative powers, as held by Walpita J.
There is a strong presumption against construing a grant of delegatedlegislative power as empowering the delegate to sub-delegate thewhole or any substantial part of the law-making power entrusted toit. – see King Emperor v. Benoari Lai Sarma (1945] A.C. 14, 24.“When Parliament has specifically appointed an authority to dischargea legislative function, a function normally exercised by Parliamentitself, it cannot readily be presumed to have intended that its delegateshould be free 'to empower another person or body to act in itsplace.” (De Smith – Judicial Review of Administrative Action, 4thEd. at 300). It is undoubtedly true that the Minister acting undersection 24 must himself discharge the duty of legislation there castupon him and cannot transfer it to other authorities. In my view,the Minister has not by Regulation 5 delegated his-legislative powersat all. By that regulation, the Minister has endowed'the Conservatorof Forests with the administrative power of specifying ©r demarcatingthe areas within or out of >which timber or any; species specifiedtherein could not be transported without a permit and-of authorisingForest Officers to issue the relevant permit.
Denning LJ. in Lewisham Borrough Council r. Roberts ( 1A.E.R. 815 at 824), brought out the distinction:
“I take it to be quite plain that when a Minister is entrustedwith administrative, as distinct from legislative, functions he isentitled to act by any authorised official of his department. TheMinister is not bound to give his mind to the matter personally.That is implicit in the modern machinery of Government."
In the same case, Jenkins J. elaborated at page 828:
“A Minister must perforce, from the necessity of the case, act
through his departmental officials, and where
functions are expressed to be committed to a Minister, thosefunctions must as a matter of necessary implication, be exercisableby the Minister either personally or through his departmentalofficials, and acts done in the exercise of those functions areequal acts of – the Minister whether they are done by him
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personally, or through his departmental officials, as in practiceexcept in matters of the very first importance they almostinvariably would be done. No question of agency or delegationas between the Minister and Mr. O’Gara (the official) seems tome to arise at all.”
Constitutionally there is no delegation by the Minister to hisofficials. When an officer exercises a power or discretion entrustedto him, constitutionally and legally that exercise is the act of theMinister. If a decision is made on the Minister’s behalf by one ofhis officials, then that constitutionally is the Minister’s decision. Itis not strictly a matter of delegation. It is that the official acts asthe Minister himself and the official’s decision is the Minister’sdecision. When a Minister is entrusted with administrative as distinctfrom legislative functions, he is entitled to act by any authorisedofficer of his department. The Minister is not bound to give hismind to the matter personally. This is implicit in the modern machineryof Government. In the Lewisham Borrough Council case (supra), itwas held that the powers there in question were not legislative butmerely administrative and that the Minister was entitled to delegatethem, as he did.
■ The .rationale of the principle has been lucidly explained by LordGreene MR. in Carltona, Ltd. v. Commissioner of Works (1943] 2
E.R. 560 at 563.
“In the administration of government in. this country the functionswhich are given to ministers (and constitutionally properly given toministers because they are constitutionally responsible) are functionsso multifarious that no minister could personally attend to them. Totake the example of the present case no doubt there have beenthousands of requisitions in this country by individual ministries. 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 ministers arenormally exercised untfer the authority of the minister by responsibleofficials of the department. Public business could not be carried onif that were not the case. Constitutionally, the decision' of suchofficials is, of course, the decision of the minister. The minister isresponsible. It is he who must answer before Parliament for anythingthat his officials have done under his authority, and, if for any
Perera v. Forest Department (Sharvananda, J.)
important matter he selected an official of such junior standing thathe could not be expected competently to perform the work, theminister would have to answer for that in Parliament. The wholesystem of departmental organisation and administration is based onthe view that ministers being responsible to Parliament will see thatimportant duties are committed to experienced officials. If they donot do that, Parliament is the place where complaint must be madeagainst them.”
Thus, if a decision is made on the Minister's behalf by theConservator of Forests, then that constitutionally is the Minister'sdecision. It is not strictly a matter of delegation; it is that theConservator acts as the Minister himself and his decision is theMinister’s decision. That is the normal way in which executive businessis done. The official is the alter ego of the Minister.
Looked at in the light of the principles enunciated above, it appearsto me that the delegation in question in the present appeal is nota delegation of legislative power or function. There is nothing in thenature of entrustment of legislative power by that section – at mostthere is a delegation of administrative function or power only. Itrelated simply to specifying the area and the species of timber towhich the regulations are to apply; it further delegated to theConservator of Forests the power to authorise particular ForestOfficers to issue permits for the valid transportation of timber. Thereis, so far as I can see, nothing in the nature of legislation in sucha reservation. In my view. Dc Krctser J. had not addressed his mindto this aspect of the matter. He had failed to draw the distinctionbetween delegation of legislative power and conferment ofadministrative powers on his principal departmental officer, ‘viz. theConservator of Forests, and had thus come to misapply the maxim“delegatus non potest delegares” to the provision in Regulation 5.As Walpita J. in his judgment pointed out, “one cannot expect theMinister in the midst of his manifold duties to take upon himselfpersonally the task of specifying or demarcating the areas or thespecies of timber to which prohibition applies. This administrativematter has to be passed on to his Departmental officials, for whoseactions he is responsible to Parliament. Regulation 5 only makes thisclear. It is also not a matter of such vital importance to which itcan be said he must give his personal attention.”
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Mr. Jayawardene addressed us on section 65 of the Forest Ordinance,which provides that:
“All regulations;.or rules made or approved by the Ministerunder.this Ordinance, shall be published in the Gazette and shallthereupon have the force of law."
and submitted that this section does not preclude judicial review ofthe vires of the Regulation. He questioned the correctness of theview expressed by Lord Herschell in Institute of Patent Agents v.Lockwood (1894 A.C. 347) that the purpose of such a section wasto give subordinate legislation the same effect as an Act of Parliament.In Ran Banda v. River Valleys Development Board (71 N.L.R. 25),this question was considered and Weeramantry J. held that the clausethat the Regulation shall be “as valid and effectual as though it wereherein enacted” did not confer validity on a regulation which wasoutside the scope of the enabling powers. I agree with WeeramantryJ. that formulae such as contained in section 65 do not bar theCourt from reviewing the validity of the Regulation on the groundof being in excess of the statutory authority. This question wasrecently considered by the House of Lords in Hoffmann-La Rochev. Secretary, of State ( 2 A.E.R. 1128) and the majority of theCourt held that the Courts have jurisdiction to declare an ordermade by statutory instrument to be invalid, even though, in accordancewith the requirements of the enabling legislation, it has been approvedby both Houses of Parliament. Lord Morris stated the position thusat page 1140: “Whereas the Courts of Law could not declare thatan Act of Parliament was ultra vires, it might be possible for theCourts of Law to declare that the making of the order (even thoughaffirmatively approved by Parliament) was not warranted within theterms of the statutory enactment from which it purported to deriveits validity.” The view expressed by Lord Denning MR. in the Courtof Appeal in the same case  3 A.E.R. 945 at 954, 955 that“an order made by statutory instrument acquires the status of anAct of Parliament” was disapproved by both Lord Diplock and LordCross of Chelsea.
In my judgment, De Kretser J. in Wickramaratne v Samarasingheet al S.C. 1238 – 39/68, M.C. Badulla 7280 (S.C. minutes of 8thMay 1970) erred in holding that Regulation 5(1) and (2) was ultravires on the ground of sub-delegation of legislative power; the viewexpressed by Walpita J. in R.F.O., Ratnapura v. Nandasena (S.C.969/73, M.C. Ratnapura 82530 – S.C. minutes-of 27th February 1975)
Perera v. Forest Department .(Sharvunanda. J)
represents the correct legal position respecting the validity of Regulation5.
I hold that the aforesaid Regulation 5(1) and (2) is not ultra viresand 1 affirm the judgment appealed from and dismiss the appeal.
Wanasundera J. – I agree.
Rat watte J. – 1 agree.