080-NLR-NLR-V-71-P.-B.-DISSANAYAKE-Petitioner-and-I.-O.-K.-G.-FERNANDO-and-another-Respondents.pdf
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Disaanayake v. Fernando
Present : Weeramantry, J., and Wijayatilake, J.P.B. DISSANAYAKE, Petitioner, and I. O. K. G. FERNANDO
and another, Respondents
S. C. 132/67—Application for Writs of Certiorari and Mandamus
Firearms Ordinance (Cap. 182)—Sections 6 (1) (b), 6 (1) (c), 6 (1) (d)—Licence to use agun—Power of Government Agent to withdraw the licence—Communication ofreasons not necessary—Certiorari—Delay in application—Reasons must be setova.
Section 6 (i) (b) of the Firearms Ordinance reads as follows :—
“ A Government Agent may by notice served upon the • holder thereofwithdraw any licence or permit issued under this Ordinance when (for reasonsto be recorded by him in writing) the Government Agent deems it necessaryfor the security of the public peace to withdraw such licence or permit. ”
Held, that, when a Government Agent withdraws the licence issued toa person to use and possess a gun, Section 6 (1) (b) imposes no requirement on himto communicate to the licence holder the reasons which he may record.
Where there has been delay in seeking relief by way of Certiorari, it isessential that the reasons for the delay should be set out in the papers filed inthe Supreme Court.
.APPLICATIONS for writs of certiorari and mandamus.Nihal Jayawickrema, for the Petitioner.
C. Ounatilaka, Crown Counsel, for the 1st Respondent.
Cur. adtf. vidt.
WEERAMANTRY, J.—Dissanayake v. Fernando367
September 25,1968. Weeramantry, J.—
The petit ioner, a Grade 1 teacher and the Head Master of a Govern-ment School, was the holder of a licence to possess and use a single barrelbreach loading gun from the jTear 1950.
The first respondent, tho Government Agent within whose local juris-diction the petitioner resided at tho material time, by a letter dated 4thDecember 1965. withdrew the liccnco issued to the petitioner to use andpossess this gun. This action of the first respondent was stated to be intho oxcrcise of tho powors vested in him under the provisions of sections6 (1) (6) and 6 (1j(d) of tho Firearms Ordinance, Cap. 182.
The petitioner contends that this action of the first respondent iscontrary to law and not. in conformity with the provisions under which hepuqDorted to act inasmuch as the requirements of neither section 6 (1) (6)nor section 6 (1) (d) have been satisfied. On this basis the petitioner seeksa Writ of Certiorari quashing the decision of the first respondent and aWrit of Mandamus on tho 2nd respondent renowing tho licence issued totho petitioner to use and possess the gun for the year 1967 and directinghim to return tho guii, which the petitioner had surrendered to the firstrespondent, in deference to his orders.
Tho petitioner stressos in particular the phraseology of section 6 (1) (d)which permits the Govommcnt Agent to withdraw a licence if he is satisfiedthat the possession and use of tho gun by its holder is dangerous to thelife or property of any other person or persons. In contrast to thislanguage, section 6 (1) (b) enables the Government Agent to act ifhe deems it necessary for the security of the public peace to withdrawsuch licence.
The submission based on this difference in phraseology is that section6 (1) (d) requires that the Government Agent be satisfied after dueinquiry into the existence of an objective state of affairs, namely that thepossession and use of the gun.by its holder is dangerous.-' On the otherhand section 6 (1) (6) only requires the Government Agent to deem itnecessary, involving therefore no finding of fact by,him and imposing arequirement of a purely subjective nature.
The decision under section 6 (1) (d) is therefore, in the petitioner’scontention, a. judicial or quasi-judicial one, and oh this basis a Writ ofCertiorari is sought to quash the order in so far as it purports to be basedon section 6 (1) (d)…
In regard to section 6 (1) (b) the decision of the Government Agent isimpugned on the basis that this section must be read as containing arequirement that the reasons recorded by the Government Agent shouldbe communicated to the licence holder. This procedural requisite nothaving been complied with, the order in so far as it purports to. be madeunder section 6 (1) (6), is said to be irregular and invalid.
358
WEERAMANTRY, 3.—Diaaanayake v. Fernando
It is submitted for the petitioner, and the Crown does not contest thisposition, that there was no communicnt ion to the petitioner of the reasonsfor the decision of the Government Agent. The Crown contends,however, that the Government Agent has in fact recorded reasons for hisdecision and that the language of section 6 (1) (6) imposes no roquiromenton the Government Agent to communicate to the licence holder the reasonswhich he may record.
I shall deal first with this objection raised in regard to section 6 (1) (6)as it is the simpler of the two bases on which the order is attacked.
It is apparent that section 6 (1) (6) does not specifically require theGovernment Agent to convey to the petitioner the reasons ho records.It is particularly important to note that soction 6 (1) (6) deals with thocase where the security of the public peace is involved and one can wellvisualise situations where a Government Agent, finding it necessary toact under this provision, has good reason to consider it inexpedient tocommunicate or divulge the grounds of his action to the licenco holder.Government Agents in taking this kind of decision no doubt actupon credible information which they receive, informal ion which mayemanate from sources to reveal which at that particular stage may tendto prevent rather than to promote the public peace which this provisionis designed to foster.
The petitioner contends that the requirement that reasons be recordedin writing is meaningless unless it be construed as requiring a communica-tion of such reasons to the licence holder. It is easy however to appre,-ciate the need for such a recording of reasons, for it is essential that thereshould be a permanent record of the reasons underlying the order. With-out such a record it would not be possible for the order to be reviewed byany higher administrative authorities who may have occasion to considerit, nor would the successor of the official who made the order have anyguide as to why it was made. Tho need for a statutory requirement thatthese reasons be recorded can therefore welLbe understood in the contextof internal and purely departmental requirements. Such a record wouldalso be essential in the event of any further application by tho licenceholder at any future point of time.
We do not therefore feel justified, in the absence of express languagein the section itself, in reading the section as imposing on the GovernmentAgent the duty of communicating his order. Had this been the intentionof the statute this could certainly have been expressed with greaterclarity as for example by using phraseology such as “ for reasons to berecorded in writing and communicated to the licence holder. ” To readthis section in the sense contended for by the petitioner is to limit itsoperation by restricting the Government Agent’s right to act to an extentbeyond what the statute contemplates, and it is a settled principle thatwords of limitation ought not to be read into a statute if this can beavoided1.
1 Crates, Statute Law, 6th ed. p. 176.
WEERAMANTRY, J.—Diaeanayake v. Fernando
359
It is not without significance that the legislature has used insection 6 (1) (b) language making the decision a purely subjective one,and requiring only that the Government Agent should deem itnecessary for the security of the public peace, whereas by contrast insection 6 (1) (c) and 6 (1) (d) ho is required to be satisfied objectively inregard to the existence of a particular state of fact. It is also not withoutsignificance that the situation of a danger to the publio peace,contemplated by section 6(1) (6), is one of potentially graver import andpossibly greater urgency than the situations contemplated by sections6 (1) (c) and 6 (1) (d).
Should it be the position in a given case that a Government Agent actsperversely or maliciously without in fact deeming such action necessaryfor the socurity of the public peace there may be other reliefs open to anaggrieved licence holder, but no such ground of complaint exists or hasbeen urgod upon the present application.
In the result no valid grounds of objection exist in regard to the actionthe Government Agent has taken in terms of section C (1) (6).
If the petitioner is to succeed in his present application he must satisfythis Court that there has been non-compliance with the requirements ofboth sub-sections under which the Government Agent has purported toact. So long, therefore, as the Government Agent was entitled to actunder 6 (1) (6) the question w hether he was entitled also to act under 6(1)(d) becomes purely academic. I do not propose, therefore, to go into theimplications of the argument that Certiorari lies in respect of 6 (1) (d)and the many interesting and difficult questions it raises regarding theattributes of a judicial or quasi-judicial decision. Indeed there may wellbe substance in the petitioner’s contention, though we cypress no opinionon this matter, that in regard to the latter sub-sections the GovernmentAgent cannot act unless satisfied upon an inquiry of a quasi-judicialnature.
Inasmuch as the petitioner fails to satisfy us in regard to the illegalityof the Government Agent’s action under section 6 (1) (b), his petition thatthe Government Agent’s decision be quashed must clearly fail.
The application for a Writ of Mandamus for the return of the gun mustalso necessarily fail inasmuch as its issue is dependent on the petitionerbeing successful in his application to quash the order of the GovernmentAgent.
Another ground on which the petitioner would in any event be facedwith difficulty is that although the order of the Government Agent wascommunicated to him in December 1965 he did not seek relief from thiscourt till. March 1967. It is submitted that this delay has arisen hiconsequence of an attempt by the petitioner to have this matterreconsidered departmentally. However, where the extraordinary process
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WEERAMANTRY, J.—Dieaanayake v. Fernando
of this Court is sought after such a long lapse of time, it is essentialthat the reasons for the delay in seeking relief should be set out in thepapers filed in this Court.
Before parting with this judgment we feel constrained to observe thatthis Court expects of public officers to whom wide powers have beenentrusted by the Legislature, the utmost fairness and responsibility in theperformance of the duties so committed tc them. This view, oft onexpressed by this Court, bears repetition in the context of the everincreasing powers committed by modem statutes to public functionaries.Such powers, it need hardly be observed, are conferred iu the confidencethat their very amplitude imposes upon their recipients a duty toensure that fairness and responsibility will characterise the manner oftheir oxercise.
It is fortunately not necessary in the presont case for us to considerfurther the legal implications of a failure to observe these requisites in thedecision to withdraw the petitioner’s licence, for no allegation of such anature has been made against the respondents.
For the reasons indicated earlier in this judgment, the petitioner’sapplication is dismissed with costs.
Wijayatilaks, J.—I agree.
Application dismissed.