050-NLR-NLR-V-13-NUGAWELA-v.-RATWATTE.pdf
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Present: Mr. Justice Wood Renton and Mr. Justice Grenier.
July 13,1910
NUGAWELA v. RATWATTE.
31, D. CKandy, 5, Special.
Privy Council—Appeal—Dismissal of ' trustee by District Committee—Issue of writ by District Court—No appeal lies to the Privy Councilas of right—Buddhist Temporalities Ordinance, No. 8 of 1908,ss. 16 and 35.
The petitioner wasdismissed from theofficeof trusteebythe
District Committee under powers vested in it by section 16 of theBuddhist Temporalities Ordinance of 1905; in pursuance of thatdismissal the District Court of Sandy issued. a writ, under section85 of the said Ordinance, requiring the petitioner to deliver uppossession of thetemple propertiesunderhiscontrol.The
petitioner appealed tothe Supreme Courtagainsttheorderofthe
District Court allowing the issue of writ; the appeal was dismissed,He then applied for leave to apjjeal to the Privy Council.
Held, that no appeal lay as of right to the Privy Council.
rpHE facts appear in the headnote.
H. A. Jayewardene(with him BamarawickramaandB.L.
Pereira), for the respondent.—The decision of the District Committeein regard to the dismissal of the trustee is “ final and conclusive ”(section 16 of Ordinance No. 8 of 1905). The District Courtmerely acted ministerially in the matter. Where an Ordinanceenacts that the decision of a body shall be final and conclusiveno appeal to the Privy Council lies as of right against suchdecision. Counsel cited In re Wi Matu's Will,1 Tlieberge v. Landry,2Cushing v. Dupuy.3
The trustee has no pecuniary interest in the properties belongingto the temple. The interest of the trustee is analogous to theinterest which an administrator has over the property of theintestate; it has been held that an administrator's interest over theintestate's property is worth nothing (In re Estate of Rowther 4).
Baton, for the petitioner.—The matter in dispute involves, atleast indirectly, title to property over Rs. 5,000 in value. The titleto the temple property is vested in the trustee for the time being.[Wood Renton J.—The trustee is not claiming any property of anypecuniary value in these proceedings.] The position is analogousto a possessory action where the criterion of value-, is the value of
'(1909) 78L.J. 17.
• {1376) 46 L. J. P. C. 1. 3;
2 A. C. 102,106.
3 (1880) 49 L. J. P. C. 63, 67;
5 A. C. 409.
« (1903) 2 Bal. 25.
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Jain 13,1910 the property.
in a possessory action no question of title is involved,Nugawdav. and the right to possess may be of very little or no pecuniary value.
Ihuwatuappeai ijes to the Privy Council against an order dismissing
a possessory action. See 0. B. C. Estates Co. v. Brooks and Co.,1Abdul Aziz v. Abdul Rahim.2 Counsel also referred to Hadjiar v.Pitche.3
The present appeal is not on the merits; it questions the juris-diction of the District Committee to make the order it made. Anorder made without jurisdiction is not ” conclusive and final.” Thepetitioner has a right to appeal to the Privy Council because hequestions the jurisdiction of the District Committee and the DistrictCourt.
July 13, 1910. Wood Kenton J.— .
In this case the appellant applies for leave to appeal to thePrivy Council from a judgment of the Supreme Court dated March21, 1910, affirming a refusal by the District Judge, Kandy, tovacate an order made by him, on the application of the respondent,under section' 35 of the Buddhist Temporalities Ordinance (No. 8 of1905), for the issue of a writ requiring the appellant to deliver uppossession of the property of certain temples in the Province ofKandy. The material facts of the case, in so far as it is necessaryto state them for the purpose of dealing with the present application,are these. The appellant is Basnayaka Nilame of Kandy, and assuch alleges that he is entitled to the possession of the propertyhere in question. Proceedings were taken against him under section16 of ” The Buddhist Temporalities Ordinance. 1905,” by, or onbehalf of the District Committee. An inquiry was held, and as theresult of that inquiry the appellant was dismissed from office; andm pursuance of that dismissal, the District Court of Kandy issueda writ, under section 35 of the Ordinance of 1905, requiring him todeliver up possession of the temple properties under his control.Against the order of the District Judge allowing the issue of thewrit an appeal was taken to the Supreme Court. The appeal wasdismissed, and the question we have now to decide is whether thejudgment of the Supreme Court dismissing that appeal is itselfappealable as of right to the Privy Council. Both the CourtsOrdinance, 1889, section 42, and rule 32 of the scheduled rulesappended to Ordinance No. 31 of 1909, expressly reserve theprerogative right of the Crown to grant special leave to appeal tothe Privy Council in any case; and rule 1 (6) of the scheduled rulesenables the Supreme Court itself to grant such leave to appeal fromany judgment, whether final or interlocutory, which is not appealableas of right, if, in the opinion of the Court, the question involved .is one which, by reason of its great general or public importance, or
(1892) 1 S. C. R. 1.* (1910) 13 N. L. R. 79.
2 (1893) A. C. 193.
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otherwise, ought to be submitted to His Mayesty in Council for </«dy 13,1910decision. We are not concerned here, however, with appeals by Woodspecial leave. The appellant’s claim is that he is entitled to appeal Rbnton «!•as of right. On behalf of the respondent it was urged, first, that Nugatcela v.the circumstances of the present case do not satisfy the requirements Ratumu,of rule 1 (o) of the scheduled rules as to appealable value; and, inthe next place, that an appeal is directly excluded by the provisionsof section 16 of the Buddhist Temporalities Ordinance, 1905. I willdeal with each of these objections in turn.
Section 16 provides that the decision of the District Committeein-regard to the dismissal of a trustee shall be “ final and conclusive.’1.
Section 35 enacts in substance that, when a dismissed trusteerefuses or neglects to deliver up possession of the temple property,the District Court may issue a writ requiring him to do so. It shallbe competent, the section provides, " to such Court to issue itswrit to the Fiscal or Deputy Fiscal and give possession accordingly,as if it were a writ issued in execution of its own decree.” Thesection goes on to provide that “ for this purpose the applicationaccompanied by the order of dismissal, duly certified under the handof the President of the District Committee, shall be •prima facieevidence of the facts stated in the said order, and shall be sufficientauthority for the Court to act as aforesaid.” The effect of thesetwo sections, taken together, is to preclude any appeal from thedecision of the District Committee dismissing a trustee, providedalways—a point specifically dealt with in section 16—that, beforedismissal, the trustee, who shall be dismissed, has been called uponto answer specific charges formulated against him, and has beenallowed an opportunity of defending himself, to empower the DistrictCommittee to issue a writ of possession, on application made forthat purpose, accompanied by the order of dismissal, duly certifiedunder the hand of the' President of the District Committee, and toput the writ so issued on the same footing as a writ issued by the.
District Court itself in the execution of one of its own decrees.
The real object of the present appellant is, in my opinion, not torecover or retain possession of the temple properties, which he hasscheduled to his petition, and of which the value according to himis greatly in excess of the appealable amount, but to bring underreview the proceedings of the District Committee which led up to hisdismissal. I am disposed to think that, in such a case as this, thevalue of the temple property cannot be taken as the criterion of theappellant’s interest. But even if there be any doubt on that point,
I am clarly of opinion that the provisions of section 16 of OrdinanceNo. 8 of 1905 exclude all appeal as of right to the Privy Council.
When the case came up before the Supreme Court in appeal, noobjection was taken that an appeal would not lie. It is unnecessaryto decide now whether, if that objection had been taken at thatstage, it would necessarily have prevailed, in view of the wide powers
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July IS, 1920 conferred on the Supreme Court by section 39 of the Courts Ordi-nance, 1889, including, as they do, “the correction of all errors,Kenton J. in fact or in law* which shall be committed by any District Court/'Nugawelav. 1 think, however, that the words “ final and conclusive ” in sectionRaiwatte 16 do exclude an appeal as of right to the Privy Council (seeCushing v. Dupuy1). Mr. Bawa argued that final and conclusiveeffect is given to such decisions, only in regard to the questionwhether or not facts justifying the dismissal have been established,and that, in spite of anything contained in the section, it was opento him to impeach the constitution of the District Committee whichhad disposed of the case. If carried out to its logical conclusion,this argument would, I think, practically defeat the" obvious intentionof the Legislature in enacting the section in question, to constitutethe District Committee as a guasi-judicial body for the determinationof the class of cases with which it deals, and to make its decisionfinal, subject to the condition that the trustee whom it was soughtto remove from office had been put clearly in possession of thecharges against him and had had a reasonable opportunity ofmeeting them. There would be very few caces of inquiries undersection 16, in which some objection to the election or the constitu-tion of the District Committee on the ground of disqualification orinterest could not be discovered. Section 16 itself does not supportMr. Bawa's argument on this point; it does not limit the final andconclusive effect of the decision of the. District Committee dismissinga trustee to the grounds of such dismissal. It enacts that thedecision of the Committee “ in regard to such dismissal " shall be“ final and conclusive." I think that the effect of these words isto-give finality and conclusiveness to the decision of dismissal itself.If the decision of the District Committee is not appealable as ofright, still less so is an order made by the District Court in theexercise of the auxiliary jurisdiction conferred on it by section 35.
It may perhaps be desirable that I should point out what is theobject of the Legislature in providing that the decision of the DistrictCommittees should be final and conclusive. Under the schemeenacted by the Ordinance, District Committees have no funds attheir disposal from which they can defray the cost of supportingtheir decisions if challenged in a Court of Law. It is thereforenecessary, if these bodies are to discharge the duties assigned tothem by the Ordinance, that, subject to £he requirements of theproviso to section 16 having been satisfied, full effect should be givento the provison that their decisions should be final and conclusive.It the meaning of these words is to be whittled down, as suggested bythe appellant, the powers of District Committees would be greatlyimpaired. They would hesistate to take any action which is likely■to involve them in heavy litigation.
I would dismiss this application with costs.
1 (7880) 5 A. C. 409.
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Grenier J.—
I am clearly of opinion in .this case that the appellant is notentitled as of right to appeal to the Privy Council from the judgmentof the Supreme Court dated March 21, 1910. Indeed, I thought atthff argument that his appeal from the decision of the DistrictJudge should not have been entertained by this Court in view ofthe language employed in section 16 of Ordinance No. 8 of 1905,which makes special provision that the decision of the DistrictCommittee in regard to the dismissal of a trustee shall be “ finaland conclusive.” To my mind it seems that it was the intention ofthe Legislature, such intention being also expressed in unmistakableterms, .to. give the District Committee .the power to dismiss a trustee,and that such power was in every sense absolute and unrestricted.It cannot be presumed that in dismissing the appellant the DistrictCommittee did not act strictly in accordance with the provisionsof the Ordinance, and I agree with the remarks of my brother inhis judgment, which I have had the advantage of reading, that thereal object of the present appellant is to bring under review theproceedings of the District Committee which led up to his dismissal.Then, as regards the value of appellant’s interests, I do not see howwe can be guided by the value of the temple property of which hewas a.t one time trustee. What the appellant is seeking to establishis his status and position as a trustee, and I fail to see how .the valueof the temple property can be regarded as the criterion of hisinterests. It would be difficult to assess the value of his status astrustee. I would dismiss this application with costs.
July 13,1910
Nugawela v.Ratwatie
Application dismissed.