122-NLR-NLR-V-61-P.-S.-BUS-CO.-LTD-Petitioner-and-MEMBERS-AND-SECRETARY-OF-CEYLON-TRANSPORT-B.pdf
P. S. Sits Co., Ltd. v. Members and Secretary of Ceylon Transport Board 491
1958Present:Sinneta&by, J.P. S, BUS CO., LTD., Petitioner, and MEMBERS AND SECRETARYOF CEYLON TRANSPORT BOASD, Respondents
S. C. 605—Application for a Writ of Quo Warranto or in the alternativefor a Writ of Certiorari under section 42 of the Courts Ordinance {Gap. 6).
Quo warranto—Certiorari—Discretion of Court as to issue of a prerogative writ—-Actof Parliament—Can a Court of law investigate the question whether a statuteteas duly passed ?—Motor Transport Act, No. 48 of 1957—Ceylon (Constitution)Order-in-Council, 1946, ss. 11 (1) (s), 19, 38, 34, 35, 38—Ceylon Constitution(Special Provisions) Act, No. SS of 1964.
A prerogative writ is not issued as a matter of course and it is in the discretionof Court to refuse to grant it if the facts and circumstances are suoh as towarrant a refusal. A writ, for instance, will not issue where it would hevexatious or futile.
Tn the present application for a Writ of Quo Warranto or, in the alternative,for a Writ of Certiorari, the petitioner sought to challenge the validity of theMotor Transport Act No. 48 of 1957 on the ground that “ the House of"Representatives which was one of the bodies that passed the said Act was notconstituted according to section 11 (1) («*) of the Ceylon (Constitution) Order-in-Council, 1946, as amended by tbe Ceylon Constitution (Special Provisions)'Act No. 35 of 1954 ”.
It was contended that inasmuch as one of the members of the House ofRepresentatives had been elected to represent two electoral districts, the Houseof Representatives consisted of 94 elected members only, instead of 95 members,and was therefore not properly constituted. It was further urged that for-this reason all its legislative acts were invalid, void and of no legal effect.
Held, that the absence of any suggestion that the passage of the MotorTransport Act through the House of Representatives was effected by a baremajority of one vote and that if there were 95 members the result wouldhave been different was a circumstance that the Court should take intoconsideration in exercising its discretion.
Held farther, that the Court should also take into consideration the disastrousconsequences of granting the writ.
Quaere, whether a Court of law can go behind an Act of Parliament andinvestigate the question whether it had been duly passed by a majority votein the House of Representatives.
^APPLICATION for a Writ of Quo Warranto or, in the alternative,for a Writ of Certiorari on the Members and Secretary of the CeyloaTransport Board.
E. 22. S. 22. Coomarasvxtmy, with 22. A. 22. Gandappa, V. Nalliah andHilmy Mohideen, for the petitioner.
Gut. adv. vuli„
492
SUs NET AMBIT, J.—P. S. Bus Co., Ltd. v. Members and Secretary ctf
Ceylon Transport Beard
February 6, 1958. Sutnetambt, J.—
The petitioner in tbis .case, is.the P. S. Bus Co., Ltd-, which has itsregistered office in Kandy and held a stage carriage permit by -virtueof which it was carrying on business as public carriers transportingpassengers for hire along certain specified routes. The company ownedthe buses enumerated in the schedule attached to the petition.
With the object of nationalising the public transport services Parlia-ment enacted Act No. 48 of 1957 by which was created a Board calledthe Oeylon Transport Board charged with the duty of providing'* efficient regular omnibus services in Ceylon This Act gave widepowers to the Minister of Transport to requisition and take over busesand other property belonging to various companies who were engagedin the business of providing regular omnibus services. The Ministerwas also authorised to make vesting orders in respect of properties, thathad been used ox were intended to be used by the holder of a stage carriagepermit, vesting such properties in the Ceylon Transport Board. Beforesuch an order could be made, however, the Act required an officerauthorised by the Minister, by notice published in the Government Gazetteand certain newspapers, to declare that the property in question wasrequired by the Ceylon Transport Board. The 8th respondent whowas the Secretary of the Ceylon Transport Board, being duly authorisedto do so, gave the requisite notice in respect of buses belonging to thepetitioner in compliance with the provisions of section 19 (1) of the Act.Respondents 1 to 6 apparently are the members of the Board thoughthis is not quite clear from the averments in the petition. The applica-tion to this Court was for a Writ of Quo Warranto or, in the alternative,for a Writ of Certiorari to inquire by what authority or jurisdiction the8th respondent issued a notice on the petitioner in respect of the busesspecified in the schedule and for an order quashing the action of the 8threspondent in so issuing the notice.
It was contended both in the petition and at the hearing that the MotorTransport Act, No. 48 of 1957 (to give the Act its statutory title) wasinvalid and a nullity for the reason that
** the House of Representatives which was one of the bodies thatpassed the said Act was not constituted according to section 11 (1) (a)of the Ceylon (Constitution) Order-in-Council, 1S46, as amended bythe Ceylon Constitution (Special Provisions) Act, No. 35 of 1954.”
Act No. 35 of 1954 amended section 11 of the Ceylon (Constitution)Order-in-Council, 1948, and provided that the House of Representativesshall consist of 95 elected members elected by the voters of the electoraldistricts specified in the Proclamation made under section 43 of the Order-in-Council of 1946 and published in Gazette No. 9595 of 30th August,1946. It would appear that one member, namely the Honourable B. G.Senanayake, had been elected to represent two electoral districts, viz.,Kelaniya and Haxnbadeniya. It was contended that the number of
SIN>» ETAITBY, J.—-P. S. Bits Co., Ltd. v. Members and Secretary of493
Ceylon Transport Board
elected members was thus reduced to 94 and that in consequence theHouse of Representatives was not properly constituted. It was furtherurged that for this reason all its legislative acts were invalid, void andof no legal effect.
The first question that immediately arises for consideration is whethera Court of law can go behind an Act of Parliament and investigate thequestion of whether it had been duly passed. The learned Counsel whoappeared for the petitioner was unable to cite one single case in whichthe prerogative writs were invoked in order to test'the validity of an Actpassed by the British or any Dominion Parliament. It was conceded—«.-ndJ indeed, there are decisions of this Court to that effect—that inregard to prerogative writs the Supreme Court follows the practice andprocedure obtaining in England. It was contended by learned Counselthat the reason why no applications for a prerogative writ were madein England was because of the sovereignty of the British Parliament aDdbecause it was not open to a court of law to question that sovereignty.This was finally established in Prince's case1 and is embodied in the tritebut commonplace saying that the British Parliament can do anythingexcept make a man a woman and a woman a man. It is now clearlyand firmly established that legislative acts passed by the British Parlia-ment cannot be impeached in Courts of Daw. Are the same principlesapplicable to acts passed by a Dominion. Parliament ? In view of mydecision to dispose of this application on another ground I shall dealwith this question only very briefly.
Unlike the British Parliament the legislative bodies in the variousdominions are creatures of Statute. They are bound by the provisionsof the Acts or Orders-in-Council by which they were created and theycannot act in contravention of those provisions. This question wasactively canvassed in South Africa in the case of Harris v. Minister of theInteriora which was heard by a Bench of five Judges. In that caseit was held that the Parliament of the Union of South Africa was governedby the terms of the South Africa Act of ISOS, which was an Act of theImperial Parliament, creating the Union of South Africa and giving itits Parliment. Under the provisions of sections 35 and 152 of thatAct, commonly known as the entrenched provisions, no law. which dis-qualifies persons on the ground of race or colour only from enjoying■franchise rights, shall be valid unless passed by a two-third majorityvote of the total membership of the Senate and of the House of Assemblyin feint session. The Union Parliament by Act No. 46 of 1951. whichwas passed by a bare majority vote in both Houses sitting separately,imposed certain disqualifications in respect of the franchise on voterswho came under the category of “ non-Europeans ”. The Act dulyreceived the Governor-General’s assent and was officially enrolled amongthe Statutes of the Union. A voter, whose rights were affected by theA at. applied to Court for an order declaring the Act invalid, null andvoid. In the course of the hearing before the Appellate Court it was
1 ULoad Philii-ps—Cases on ConstU-uHonal Late—page 7.
J 1352) 2 S. A. L. B. 42S.
494HTNTyETAMBY, J.—-P. <S. .S-its Co., Ltd. v. Members and Secretary of
Gey Ion Transport Board
submitted on behalf of the Grown that the South African Parliamentwas a sovereign Parliament and could by an Act passed by a bare majorityvote change the rights of voters. It was urged that, after the passingof the Statute of Westminster, the entrenched provisions of the SouthAfrica Act must be regarded as repealed, that the supreme and sovereignlaw making body in the Union was the Union Parliament, and that theSupreme Court of South Africa had no power to pronounce upon thevalidity of an Act of Parliament duly promulgated, printed and publishedby proper authority. The Supreme Court held that the Union Parlia-ment was not sovereign in the sense that it could over-ride the expressprovisions of the South Africa Act, but that it had unrestricted power toamend that Act provided only that it complied with the requirementsof sections 35 and 152. It further held that the Act of 1951 contravenedthe provisions of these sections and that it was therefore invalid. Thelearned Counsel for petitioner also referred to the recent case in Pakistanin which certain legislation was declared invalid by the Courts, becausethe Governor-General's assent had not been given, but as the report ofthis case is not available I shall not comment on it.
In Ceylon itself in the case of Kodakan/piUai v. Mudanayake1 theSupreme Court, and in appeal the Privy Council, considered the validityof certain provisions of the Citizenship Act No. 18 of 1948 and Parlia-mentary Elections (Amendment) Ordinance No. 48 of 1949 and ruledthat they were infra vires of the Ceylon legislature.
The Ceylon Parliament like the Parliament of the Union- of SouthAfrica cannot be regarded as sovereign in the sense in which the BritishParliament is so regarded. The Ceylon Independence Act passed bythe British Parliament does not alter the position. This Act providedfor the attainment by Ceylon of fully responsible status within theBritish Commonwealth of Nations. It practically re-enacted certainprovisions of the Statute of Westminster, which having been passed in1931, would apply to the Dominions then in existence like South Africaand would not apply to Ceylon. The Ceylon Independence Order-in-Council passed in 1947 was intended to give effect to the Act. It revokedinter alia sections 30, 36 and 37 of the 1946 Order-in-Coxmcil which hadreserved certain legislative powers in the Queen, but it left unaffectedthe restrictions imposed by section 29 of the Order-in-Couneil, 1946.It also gave the British Parliament the power to legislate only at therequest and with the consent of Ceylon. It is thus clear that the sovereigntyof the Ceylon Parliament is not absolute as in England where anyenactment can be passed by a bare majority.
In the present case it is not suggested that Parliament acted in con-travention of any of the provisions of the law by which it was created.But it is contended that inasmuch as Parliament was not properlyconstituted all its deliberations and decisions, which would include thepassage of the Motor Transport Act, are of no force or effect. Theissne in the case is therefore very different to the issues that arose eitherin the Harris case in South Africa or KodakanpiUai's case in Ceylon.Parliament had full authority to legislate and pass by a bare majority
1 (1953) 54 27. L. B. 433.
SrXNBTAMBY, J.—JP. a. Bus Co., Ltd. v. Members and Secretary of495-
Ceylon Transport Board
the enactment referred, to as the Motor Transport Act. Once the Acthad been passed, received the Royal Assent and had been gazetted thequestion arises as to whether it is open to any party to attack the validityof the Act on the ground that it had not been duly passed by a majorityvote in the House of Representatives—for this in effect is what the con-tention of the applicant in this case amounts to. In regard to thismatter it will be useful to state what the position is in England. It wouldappear that no English Court would “have jurisdiction to adjudicate uponthe procedural steps resulting in the enrolment of a measure as an Actof Parliament.” In the case of Edinburgh & Dalkeith Railways v.Wauchope1 the House of Lords refused to declare a private Act invalidon the ground that it had been passed without the giving of notice asrequired by the Standing Orders of the House. Lord Campbell in thecourse of his judgment stated :
“ All that a Court of Justice can do is to look at the Parliamentaryroll: if from that it should appear that a Bill has passed both Housesand received the Royal Assent no Court of Justice can inquire intothe mode in which it was introduced into Parliament, nor into whatwas done previous to its introduction, or what passed in Parliamentduring its progress in its various stages through the House. ”
If the same considerations apply to Bills passed by the Dominionlegislatures it would appear that the validity of such Bills cannot bequestioned in the Courts. In dealing with the question whether theenacting clause in a Bill is conclusive evidence of what it statesCentlivres, C. J. in the South African case already referred to observed :
“ Had Act 46 of 1951 stated that it had been enacted by the King,the Senate and the House of Assembly in accordance with the re-quirements of sections 35 and 152 of the South Africa Act, it may bethat Courts of law would have been precluded from inquiring whetherthat statement was correct.”
No definite opinion was expressed by the learned Chief Justice whodelivered the judgment of the Court, but the suggestion was that it wouldbe conclusive. It is pertinent to note that in regard to sections 33 and34 of the Order-in-Council (1946) which placed restrictions on the powerof the Senate to delay or avoid legislation passed by the House of Re-presentatives a certificate from the Speaker that the Bill is a moneybill or, if it is not a money bill, that the provisions of section 34 (1) havebeen complied "with, is declared by section 35 to be conclusive evidenceof what is stated in the certificate. No such similar conclusive effectis given to the enacting words of a Bill prescribed by section 38 of theOrder-in-Council. The question is a difficult one and is not free fromdoubt, but it can certainly be stated that the effect of the enactingwords is at least to create a strong presumption in favour of validity.
1 {1842} 8 Cl. d> Fin. 710 {Also reported in 8 Eng. Hep. 273).
496SEN~NETAMBY, J.—P. S. Bus Co., Ltd. v. Members and Secretary of
Ceylon Transport Board
If the contention of learned Counsel for the petitioner is sound the.House of Representatives cannot function when the full complement of itselected members falls below 95. Section 19 of-the Order-in-.Councilis to the following effect :
“ Each Chamber shall have power to act notwithstanding anyvacancy in the membership thereof, and any proceeding thereinshall be valid notwithstanding that it is discovered subsequentlythat some person who was not entitled so to do sat or voted or other-wise took part in the proceedings
.Dees this section provide an answer to the difficulty ? It may beargued that section 19 is intended to cover a case where there is a vacancycaused by a member who has been duly elected dying, or becomingunseated, or vacating his seat for some other cause. "What then wonldbe the position if no nomination papers are banded in by any candidatefor election to an electoral area and no one is elected to that area—asdid in fact happen when the State Council elections under the Donough-more Constitution took place. If the contention of learned Counselis correct a Parliament so constituted would have no legal status. Ifind myself unable to agree with the proposition that because only 94individual members were elected to 95 electoral seats the House of.Representatives was not properly constituted.
I propose, however, to dispose of the petitioner’s application onanother ground which would be applicable even if the contention ofthe learned Counsel is sound and the views I have expressed above,untenable.
The prerogative writs are not issued as a matter of course and it isin the discretion of Court to refuse to grant it if the facts and circumstancesare such as to warrant a refusal. A writ, for instance, will not issuewhere it would be vexatious or futile. In a case where an election to anoffice would not be affected by an irregularity in conducting the election thewrit was refused in the case of Rex v. Ward1. It was not suggested thatthe passage of the Motor Transport Act through the House of Re-presentatives was effected by a bare majority of one vote and that ifthere were 95 members the result would have been different. It isappreciated that the petitioner asked for a writ on different grounds of amore fundamental character, viz., that therewasno valid and lawful Houseof Representatives in existence, but this circumstance is one of thematters a Court will take into consideration in exercising its discretion.The Court will also consider the probable consequences of granting thewrit—vide 9 Halsbury P 81 (Hailshain ed.) and the cases referred to there-in. In the present case the consequences of granting the writ can onlybe described as disastrous. It would result in all the legislation passedby Parliament since it came into existence and all its actions liable tobe regarded as illegal and of no effect. It would affect the rights andliabilities of several thousands of people who conducted their business
1 [2873) L. B. 8 Q. B. D. 210.
WEERASOOBIYA, J.—Piyadasa v. Panditharatna Hamine
49T
activities and their lives on the basis that legislation enacted by Parlia-ment is valid: it would disturb the peace and quiet of the country;and, above all, it will bring the government of the country to a stand-still. I take the view that in these circumstances even if the groundson which the application is made are valid no Court would exerciseits discretion in favour of the petitioner. I accordingly refuse the-application.
Application refused.