028-SLLR-SLLR-1996-1-MAHINDASOMA-V.-HON.-MAITHRIPALA-SENANAYAKE-AND-TWO-OTHERS.pdf
364
Sri Lanka Law Reports
[1996] 1 Sri L.R.
MAHINDASOMA
V.
HON. MAITHRIPALA SENANAYAKE AND OTHERS
COURT OF APPEAL.
DR. GUNAWARDENA, J.
ASOKA DE SILVA, J.
C.A. APPLICATION NO. 17/96.
11, 12, and 16 JANUARY 1996.
Provincial Council – Dissolution of the Provincial Council by the Governor-Writ of Certiorari and Prohibition- When would the Court would grant interimrelief? – Principles governing issue of stay order.
The Petitioner made an application for interim relief by way of restrainingthe second Respondent, the Commissioner of Elections, from holding theelections to the Provincial Council, in particular, from receiving nominationstill the final determination of this application.
Held:
that the Court will be guided interalia, by the following principles, ingranting interim relief:
Will the final order be rendered nugatory if the petitioner is successful?
Where does the balance of convenience lie?
That on a consideration of the facts and circumstances of this case, if astay order is not granted the final order would be rendered nugatory.
That on a balance of convenience and in the public interest, it isappropriate to grant a stay order.
APPLICATION for interim relief by way of a stay order.
K.N. Choksy P.C. with L.C Seneviratne PC., E.P. Paul Perera, M.D.KKulatunge, Daya Pelpola, D.H.N Jayamaha, S.G. Mohideen, Raja Dep,Ronald Perera, R.L.Perera, Nigel Hatch and Anil Rajakaruna for Petitioner.
E.D. Wickramanayake with Dr. JayampathyWickremaratne. M.A.G.M. Gazzali,Palitha Mathew, Gaston Jayakody and P. Obeysekera for 1st Respondent.
Shibiy Aziz P.C. with K.C. Kamalasabayson, D.S.G., Parakrama KarunaratneSSC and K. Arulanathan S.C. for 2nd Respondent.
CA Mahindasoma v. Maithripala Senanayake and Others (Gunawardana, J.)365
Cur.adv.vult.
January 16, 1996.
DR. GUNAWARDANA, J.
We have heard the submissions of the learned Counsel for thePetitioner. The learned Counsel for both the Respondents consented toaccept notice. We issued notice as a prima facie case was made outand in view of the consent expressed by the learned Counsel for theRespondents to accept notice.
The learned Counsel for the Petitioner made an application for in-terim relief, by way of restraining the second Respondent from holdingthe elections to the Provincial Council till the final determination of thisapplication.
The learned counsel for the Petitioner submitted that in terms ofArticle 154B (8)(c) of the Constitution the Governor has the power todissolve the Provincial Council. However, Article 154(8)(d) states thatthe Governor can exercise this power, only in accordance with theadvice of the Chief Minister, so long as the Chief Minister commandsthe support of the majority of the Provincial Council.
He submitted that, therefore the Governor has no discretion in thematter and should follow the advice of the Chief Minister. He pointedout that paragraph 8 of Article 154(b) of the Constitution deals with theGovernor's powers in relation to the Provincial Council. He submittedfurther that when dissolving the Provincial Council the Governor isbound by the procedure laid down in Article 154(8)(d) and should actaccording to the advice of the Chief Minister, as he is the people'srepresentative.
The learned Counsel for the 1 st Respondent submitted that underArticle 4(b) of the Constitution, the exercise of the executive power isvested with the President. Therefore, the President has the power togive directions to the Governor. He pointed out that the Governor isbound by the directions given by the President as the Governor isappointed by the President.The Governor has no discretion, and hasto carry out the directions given by the President.
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Sri Lanka Law Reports
[1996] 1 Sri LR.
The learned Counsel for the 2nd Respondent, the Hon. AttorneyGeneral submitted that, Article 154 F(2) provides that “ If any questionarises whether any matter is or is not a matter as respects which theGovernment is by or under this Constitution required to act in his dis-cretion, the decision of the Governor in his discretion shall be final,°
He argued that in view of the said provision, the decision of the Gover-nor that he has a discretion in the matter is final and cannot be ques-tioned in any Court. However, he conceded that the reasonableness ofthe use of the discretion can be questioned in Court. He further sub-mitted that when the Governor acts under Article 154B(8) (c) the Gov-ernor has a discretion to decide whether to follow the advice of theChief Minister or not. The learned Counsel added that there is no ex-press provision in the Constitution for the President to dissolve a Pro-vincial Council.
Thus a substantial question of law has arisen as to whether theGovernor has a discretion when he acts under Article 154B(8)(c) of theConstitution, which can only be decided, after hearing full argument,having given the opportunity to the Respondents to file their objec-.tions. Therefore, the question of granting interim relief has to be con-sidered.
This Court has set out on a number of occasions the matters whichshould be taken into consideration when granting interim relief.
The learned Counsel for the Petitioner cited a case of this courtC.A. No 112/ 85, Court of Appeal minutes dated 30.01.85, where it hasbeen stated that when the Court is considering the issue of a stayorder the Court will be guided inter alia by the following principles :-
Will the final order be rendered nugatory if the Petitioner is
successful?
Where does the balance of convenience lie?
On a consideration of the facts and circumstances of this case,we are of the view that if a stay order is not granted the final order willbe rendered nugatory. We are also of the opinion that on a balance ofconvenience and in the public interest it is appropriate to grant a stayorder.
CA Mahindasoma v. Maithripala Senanayake and Others (Gunawardana, J.)367
Accordingly we hereby issue a stay order, restraining the 2nd Re-spondent from proceeding to act in the terms of the notice, publishedin Gazette No: 904/13 dated 04.01.96, marked 'P-5' pending the hear-ing and the final determination of this application, and in particularfrom receiving nominations.'
The Registrar, Court of Appeal is directed to inform the 2nd Re-spondent of this interim order made by this Court, restraining the 2ndRespondent from proceeding to act in terms of notice published inGazette No: 904/13 dated 04.01.96, marked' P-5' pending the hearingand the final determination of this application, and in particular fromreceiving nominations.
The Registrar is further directed to inform the 2nd Respondent ofthis order, by telegram or fax, at the expense of the Petitioner.
J.A.N. OE SILVA, J. – I agree.
Stay order dismissed.