001-NLR-NLR-V-80-PATHIRANAJ.–Sirisena-and-Others-V.-Kobbekaduwa-Minister-of-Agriculture-and-L.pdf
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PATHIRANA, J. – Sirisena and Others v. Kobbekaduwa,
Minister of Agriculture and Lands
Present: Pathirana, J., Udalagama, J., Wijesundera, J.,Perera, J., Ismail, J., Weeraratne, J.,
Vythialingam, J., Sharvananda, J., and Gunesekera, J.
SIRISENA AND OTHERSv.
HONOURABLE H. S. R. B. KOBBEKADUWA, MINISTER OFAGRICULTURE AND LANDS, Respondent
S.C. APN/GEN/6/74H.C.Bctdulla-V/l/74
S.C. A PN/GEN/7/74D.C.Bandarawela -1/6
S.C. APN/GEN/8/74H.C.Kandy-11/74
S.C. APN/GEN/9/74D.C.Kandy-U10568
S.C. APN/GEN/10/74D.C.Kandy-U10569
S.C. APN/GEN/11/74D.C.Kandy-U.10570
S.C. APN/GEN/12/74H.C.Kandy-15/74
S.C. APN/GEN/13/74H.C.Ratnapura-6/74
S.C. APN/GEN/14/74H.C.Kandy-1/28/74
S.C. APN/GEN/15/74H.C.Kandy-1/25/74
S.C. APN/GEN/16/74H.C.Kandy-U10586
S.C. APN/GEN/18/74H.C.Kandy-1/37/74
S.C. APN/GEN/19/74H.C.Kandy-1/38/74
S.C. APN/GEN/20/74H.C.Kandy-1/39/74
S.C. APN/GEN/24/74D.C.Gampola-X/1152
Administration of Justice Law No. 44 of 1973 section 14 (3) and section 354 (I) – Land
Acquisition Ordinance (Chapter 460) — Interpretation Ordinance (Chapter 2) section 24introduced by Interpretation (Amendment) Act No. 18 of 1972 – Applicability.
Interim injunctions were issued, some by High Courts to be in operation for specificperiods pending institution of actions in the District Courts, and some by District Courtspending final determination of actions, in each case against the Minister of Agriculture andLands, restraining him from taking any further steps towards the acquisition of landsbelonging to the petitioners. In terms of section 354 (1) of the Administration of JusticeLaw. No. 44 of 1973, three judges of the Supreme Court having perused the records inorder to satisfy themselves as to the legality and propriety of the orders made, were of theopinion that the said interim’injunctions on the face of the records appeared to be illegal inview of the provisions of section 24 of the Interpretation Ordinance introduced byInterpretation (Amendment) Act. No. 18 of 1972. The petitioners/plaintiffs in the caseswere noticed to appear and show cause why the said interim injunctions should not be setaside in the exercise of the revisionary powers of the Supreme Court. In terms of sections. 14 (3) of the Administration of Justice Law No. 44 of 1973 a bench of 9 judges wasconstituted by the Chief Justice to hear the matter in dispute as it was of general and publicimportance. Since there was a common legal question, by consent of parties all cases wereconsolidated.
Held: by the majority, Perera J., Vythialingam J., Ismail J., Weeraratne J., andSharvananda J., (Pathirana J., Udalagama J., Gunesekera J., and Wijesundera J.,dissenting) that the prohibition contained in section 24 of the Interpretation Ordinanceintroduced by the Interpretation (Amendment) Act No. 18 of 1972 does not apply to a casewhere an interim injunction was sought against a Minister in respect of any act done byhim without jurisdiction, ultra vires or in bad faith.
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Counsel:
Argued on:
Decided on :
H. W Jayewardene with Mark Fernando, J. C. Ratwatteand Hiran Jayawardene for the Petitioners in S.C.APN/GEN/6/74 TO 11/74; 13/74, 14/74 & 24/74.
M. Tiruchelvam with Dr. N. Tiruchelvam, A. J. 1.Tillakawardene and R. R. Thiyagarajah for the 1stPetitioner in S.C. APN/GEN/12/74 & 16/74.AZ ZZA
V. S. A. Pullenayagam with A. P. Niles, Miss P. C.Rajanayagam and T Rajendran for the 2nd Petitioner inS.C. APN/GEN/12/74 & 16/74.
L. W. Athulathmudali with Daya Pelpola and A. J. /.Tillakawardene for the Petitioner in S.C.APN/GEN/18/74.
Nimal Senanayake with Rohan Perera for the Petitionerin S.C. APN/GEN/15/74.
W Jayewardene with L. W. Athulathmudali and A. J.
Tillakawardene for the Petitioners in S.C.APN/GEN/19/74 & 20/74.
Siva Pasupati, Acting Solicitor-General with K. M. M.B. Kulatunga, Senior State Counsel, G. P. S. de Silva,Senior State Counsel, and D. C. Jayasuriya, StateCounsel, for the Attorney-General.
8th, 9th, 10th, 11th, 12th, 16th, 17th, 18th, and 19thJuly, 1974.
3rd September, 1974.
3rd September 1974. Pathirana, J.—
My brother Wijesundera, J., and I directed the Registrar, Supreme Court,to call for the records of the cases which are the subject-matter of theseapplications. Thereafter, my brothers Udalagama, J., and Wijesundera, J., andI, in terms of section 354 (1) of the Administration of Justice Law, No. 44 of1973, having perused the records of these cases in order to satisfy ourselvesas to the legality and propriety of the orders made therein, we were of theopinion that the said orders on the face of the records appeared to be illegalin view of the provisions of section 24 of the Interpretation Ordinance asamended by the Interpretation (Amendment) Act No. 18 of 1972. These wereorders granting in each case interim injunctions against the Minister ofAgriculture and Lands restraining him and/or his agents from taking anyfurther steps towards the acquisition of the lands belonging to therespondents to these applications.
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PATHIRANA, J. – Sirisena and Others k Kobbekaduwa,
Minister of Agriculture and Lands
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Injunctions in some of these cases were obtained in the High Court to bein operation for a specified period (which has since expired) pending theinstitution of actions in the District Court, while in the other cases interiminjunctions were issued by the District Courts pending the finaldetermination of the actions.
We issued notices on the petitioners/plaintiffs-respondents to appear andshow cause as to why the said orders should not be set aside in the exerciseof the revisionary powers of this Court. We also noticed the Attorney-General. We took this step of noticing the parties ex mero moto as it was ourview that section 24 of the Interpretation (Amendment) Act No. 18 of 1972was open to the construction that the Courts have no power to grant aninjunction against the Minister in respect of his orders made in connectionwith the acquisition of the lands in question.
I might mention at this stage that these orders were made by us inChambers.
At the sittings held on 14th June, 1974, before my brothers Udalagama, J.,Wijesundera, J.., and myself, Counsel appearing for the plaintiffs-respondentsin some of these cases brought to our notice that applications had been madethat morning before the Acting Chief Justice under section 14(3) of theAdministration of Justice Law No. 44 of 1973 to have these matters listedbefore a Bench of five Judges on the ground that questions involved in thesecases were matters of general or public importance. Pending the decision ofthe Acting Chief Justice under section 14(3) (c) of the Administration ofJustice Law, we adjourned sittings. On the 18th of June, 1974, AUes, A.'C.J.,after hearing counsel who supported the application and the Acting Solicitor-General, directed under section 14(3) of the Administration of Justice Lawthat these applications which were pending before us be listed for hearing onthe 8th of July, 1974, before a Bench of nine Judges as the matters in disputein the said cases were of general or public importance. The present Bench ofnine Judges was accordingly constituted by the Chief Justice on the 5th of •July, 1974, to hear these applications.
As there were common legal questions involved in all these applications,by consent of Counsel appearing for the respondents and the ActingSolicitor-General, who appeared for the Minister of Agriculture and Lands,all these applications were consolidated as it was understood that a decisionon the common legal questions would dispose of all applications.
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At the argument before us the points for decision may be brieflysummarised as follows
Whether section 24 of the Interpretation (Amendment) Act wouldapply to a case where an interim injunction was sought against theMinister in respect of any act done by him without jurisdiction, ultravires or in bad faith, and whether such act is outside the scope ofsection 24 of the said Act.
Whether the order of the Supreme Court under section 354(1) of theAdministration of Justice Law calling for the records of these caseswith a view to examining them and satisfying itself as to the legalityor propriety of the orders made therein were done in the exercise ofany jurisdiction lawfully vested in the Supreme Court and, therefore,whether the present Court hearing these applications was properlyconstituted.
The three main grounds on which the respondents by their Counsel soughtto attack the orders of the Minister made under the Land Acquisition Actwere one or other of the following
The orders were made mala fide and therefore were ultra vires and a.nullity. That the proposed acquisition had been initiated andproceeded with by the Minister who had been influenced bymalicious and false representations, which were politically motivatedby personal and political animosity of individuals towards the personswhose lands were acquired.
That orders which were made by the Minister to acquire certain landswere of an indefinite corpus, and that the descriptions adopted thereinfail to give effect to the requirements of the Act, and, therefore, theyare not in conformity with the law.
That the Minister in the notice issued, had failed to specify the publicpurpose for which the lands were acquired.
These grounds, according to Counsel for respondents, come within thescope of the principles, according to which the Courts are prepared to applythe ultra vires doctrine and review the exercise of administrative, judicial, orlegislative acts of the executive.
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PATHIRANA, J. – Sirisena and Others v. Kobbekaduwa,
Minister of Agriculture and Lands
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These principles are broadly summarised by Lord Reid in Anisminic Ltd.,v. Foreign Compensation Commission':
“It has sometimes been said that it is only where a tribunal acts withoutjurisdiction that its decision is a nullity. But in such cases the word“Jurisdiction” has been used in a very wide sense, and I have come tothe conclusion that it is better not to use the term except in the narrowand original sense of the tribunal being entitled to enter on the inquiry inquestion. But there are many cases where, although the tribunal hadjurisdiction to enter on the inquiry, it has done or failed to do somethingin the course of the inquiry which is of such a nature that its decision is anullity. It may have given its decision in bad faith. It may have made adecision which it had no power to make. It may have failed in the courseof the inquiry to comply with the requirements of natural justice. It mayin perfect good faith have misconstrued the provisions giving it power toact so that it failed to deal with the question remitted to it and decidedsome question which was not remitted to it. It may have refused to takeinto account something which it was required to take into account. Or itmay have based its decision on some matter which, under the provisionssetting it up, it had no right to take into account. I do not intend this listto be exhaustive. But if it decides a question remitted to it for decisionwithout committing any of these errors it is as much entitled to decidethat question wrongly as it is to decide it rightly.”
Counsel for the respondents forcefully submitted that section 24(1) of theInterpretation (Amendment) Act No. 18 of 1972 excluded any act done orintended or about to be done by a Minister in the pretended exercise of hispowers or any act done mala fide or without jurisdiction. Such acts were anullity and were therefore outside the scope of section 24(1). In regard tosuch acts the power of the Court was therefore always available to grant aninjunction against the Minister.
Much emphasis was made on the use in section 24(1) of the words:
“ in the exercise of any power or authorityvested in law by such person or authority ”,
and an argument was built upon it that these words only refer to real orgenuine or lawful or bona fide exercise of power, and not pretended,purported or mala fide exercise of power.
' (1969) 2 N.L.R. 163 at 170 and 208 (1969) 1 ALL E.R. 208 at 243-244.
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Reliance was placed on the cases of Karunanayake v. C. P. de Silva,Minister of Lands,1 and Ratwatte v. Minister of Lands3 — where temporaryinjunctions were granted by the Supreme Court against the Minister of Landsrestraining him from taking further steps in the acquisition of certain landsunder the Land Acquisition Act. It was, therefore, contended that section24(1), by reason of the particular phraseology employed by the Legislautrewas designed deliberately to preserve the right to obtain injunctions againstthe State and State Officers for any act done in the pretended or mala fule orillegal exercise of any power or authority. To buttress their argument Counselreferred to the use of the words: “In the exercise or apparent exercise” insection 22 of the Act, and the deliberate omission of the words “apparent” or“purported” in section 24(1), although in the original Bill the words usedwere:
“Any act done or purported to be done or intended or about to be done byany such person or authority in the exercise or purported exercise of anypower or authority vested by the law in any such person or authority”.
To give effect to the interpretation that was sought to be placed on the so-called limitation clause in section 24(1) by learned Counsel for therespondents, it would become necessary to read into that section words like,“in good faith” or “in the lawful exercise”.
In approaching the task of interpreting section 24(1) what one must lookfor is not what the intention of Parliament ought to be, but what it is.
Learned Counsel for the respondents also made the submission that evenif the'Legislature intended to deprive the Courts of the power to grant aninjunction against a Minister and any other person or authority referred to insection 24(1), the language of the Statute falls short of what the Legislaturemay have intended to achieve. For this purpose a comparison was made ofthe language used in section 21 of the Crown Proceedings Act 1947 and thewords in section 24 of our Act, and it was submitted that a qualification orlimitation was introduced into section 24(1) by the deliberate use of thefollowing words which were not used in the Crown Proceedings Act:-
“In respect of any act done or intended or about to be done by any suchperson or authority in the exercise of any power or authority vested bylaw in any such person or authority”.
3 (1968) 70N.L.R. 398.
3(1970) 72 N.L.R.60.
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PATHIRANA, J. -Sirisena and Others v. Kobbekaduwa,
Minister of Agriculture and Lands
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In order to appreciate the argument of Counsel on both sides it would beuseful to reproduce the provisions of section 21 of the Crown ProceedingsAct and section 24 of the Interpretation (Amendment) Act around whichmuch argument was addressed to us to stress the point that there was afundamental and obvious difference in the two statutory provisions. LearnedSolicitor-General maintained that our section 24 was in line with section 21of the Crown Proceedings Act 1947 although different language has beenemployed in two statutes.
Section 21(1) of the Crown Proceedings Act 1947 reads as follows:-
“21(1) — In any civil proceedings against the Crown the Court shall,subject to the provisions of this Act, have power to make all suchorders as it has power to make in proceedings between subjects,and otherwise to give such appropriate relief as the case mayrequire:
Provided that:-
where in any proceedings against the Crown any such relief is sought
as might in proceedings between subjects be granted by way ofinjunction or specific performance, the Court shall not grant aninjunction or make an order for specific performance, but may inlieu thereof make an order declaratory of the rights of the parties;and
in any proceedings against the Crown for the recovery of land or
other property the Court shall not make an order for the recoveryof the land or the delivery of the property, but may in lieu thereofmake an order declaring that the plaintiff is entitled as against theCrown to the land or property or to the possession thereof. TheCourt shall not in any civil proceedings grant any injunction ormake any order against an officer of the Crown if the effect ofgranting the injunction or making the order would be to give anyrelief against the Crown which could not have been obtained inproceedings against the Crown”.
An officer of the Crown is defined as including a Minister.
Section 24 of the Interpretation (Amendment) Act reads as follows:—
24( 1) — Nothing in any enactment, whether passed or made before orafter the commencement of this Ordinance, shall be construed toconfer on any Court, in any action or other civil proceedings, thepower to grant an injunction or make an order for specificperformance against the Crown, a Minister, a ParliamentarySecretary, the Judicial Service Commission, the Public ServiceCommission, or any member or officer of such Commission, inrespect of any act done or intended or about to be done by anysuch person or authority in the exercise of any power or authorityvested by law in any such person or authority;
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Provided, however, that the preceding provisions of this subsectionshall not be deemed to affect the power of such Court to make, inlieu thereof, an order declaratory of rights of parties.
(2)- No Court shall in any civil proceedings grant any injunction ormake an order against an officer of the Crown if the granting of theinjunction or the making of the order would be to give reliefagainst the Crown which could not have been obtained inproceedings against the Crown.
The learned Solicitor-General submitted that it would be necessary toexamine the past history and the circumstances surrounding the enactment ofthe Interpretation (Amendment) Act No. 18 of 1972 as this will facilitate thetask of interpretation. It was necessary to find the raison d’etre for thisenactment by Parliament in order to find out the intention of Parliament andto arrive at the real meaning of the statute. To arrive at the real meaning, itwas always necessary to get at the exact conception, aim, scope and object ofthe whole of the Act. For this purpose, he suggested that we should acceptthe test laid down in the Heydon's case*, namely,
What was the law before the Act was passed;
What was the mischief or defect for which the law has provided;
What remedy Parliament has provided;
The reason for the remedy.
The learned Solicitor-General submitted that this was an appropriate casewhere in order to find out the intention of Parliament it would be desirablethat we should read the speech of the Minister who introduced the legislationin Parliament. No doubt, at one time the Courts frowned upon, and did notapprove of reference to parliamentary history in order to interpret legislation.The main reason given by the English Courts for such disapproval was thatthe language can be regarded only as the language of the three Estates of theRealm, namely, the Sovereign, the Lords and the Commons, and the meaningattached to it by its framers or by individual members of one of those Estatescannot control the construction of it. This criticism may not apply to the Actwe are considering as at the time the Act was passed the legislature wasunicameral.
However, in more recent times, even in England, there has been aprogressive recognition of the rule that Parliamentary history is notinadmissible in certain circumstances in the interpretation of statutes.
‘Heydon’s Case (1584) 3 Co. Rep. 7a; Maxwell on Interpretation of Starnes 12th Edition 40, 96.
PATHIRANA, J. – Sirisena and Others v. Kobbekaduwa,
SCMinister of Agriculture and Lands9
In the case of Beswick v. Beswick,5 Lord Reid made these observations:
“ In construing any Act of Parliament we are seeking the intention ofParliament and it is quite true that we must deduce that intention fromthe words of the Act. If the words of the Act are only capable of onemeaning, we must give them that meaning no matter how they gotthere. But if they are capable of having more than one meaning we are,in my view, well entitled to see how they got there. For purely practicalreasons we do not permit debates in either House to be cited; it wouldadd greatly to the time and expense involved in preparing casesinvolving the construction of a statute if counsel were expected to readall the debates in Hansard, and it would often be impracticable forcounsel to get access to at least the older reports of debates in SelectCommittees of the House of Commons; moreover, in a very largeproportion of cases such a search, even if practicable, would throw nolight on the question before the Court”.
The reason given for discouraging the use of debates in order to find outthe intention of Parliament was the delay, the expense and theimpracticability involved in preparing cases involving the construction ofstatutes if Counsel were expected to read all the debates in the Hansard.
In Regina v. Warnerthe question arose whether in regard to possessionof drugs without being duly authorised contrary to section 11(1) of the Drugs(Prevention or Misuse) Act, 1964, the section imposed an absoluteprohibition to possess or whether it was dependent on proof of mens rea. TheAct did not make any specific reference to mens rea as an ingredient of theoffence. Lord Reid at page 1316 said:—
“The rule is firmly established that we may not look at the Hansardand in general I agree with it for the reasons I gave last year inBeswick v. Beswick (1968) A.C. 58”.
He, however, went on to say :—
“This is not a suitable case in which to reopen the matter but I am boundto say that this case seems, to show that there is room for an exceptionwhere examining the proceedings in Parliament would almost certainlysettle the matter immediately one way or the other. Members of both
3(1967) 3W.L.R. 932 at 937 (1968) Ac 58.‘ (1968) 2W.L.R. 1306.
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Houses are particularly interested in the liberty of the subject and if itwere intended by those promoting a Bill to extend the old but limitedclass of cases in which absence of mens rea is no defence, I wouldcertainly expect Parliament to be so informed. Then, if Parliamentacquiesced, those who dislike this kind of legislation would know whomto blame. But if the words of the Act are not crystal clear and Parliamenthas not been told of this intention, I would hold without hesitation that itwould be wrong to impute to Parliament an intention to depart from itsknown desire to prevent innocent persons from being convicted”.
The rule against the use of Parliamentary history of a statute is almostimpossible to reconcile with the mischief rule in Heydon’s case for itexcludes the main source of the reference for the evil the legislature intendedto remedy. The learned Solicitor-General submitted that if the contention ofthe learned Counsel for the respondent is accepted, then section 24 of theInterpretation (Amendment) Act merely laid down the existing law and wasa re-statement thereof. He submitted that when Parliament legislates, it doesso with a purpose, and some meaning must be given to the purpose for whichthe legislation was directed.
As much emphasis was laid down by learned Counsel for the respondentthat there was a certain fundamental difference in our section 24(1) andsection 21 of the Crown Proceedings Act, 1947 and also that the word“purported” which was in the original Bill was deleted from section 24(1)and also in view of the contention of the learned Solicitor-General that thislegislation sought to provide a remedy to cure a mischief, I would think thatthis is an appropriate case where we should read the speech of the Minister atthe time he introduced the Bill in the House of Representatives on theSecond Reading. I would confine myself only to the reading of the speech ofthe Minister, and not to speeches of the other members of the House. I tookthe precaution while doing so, to seek assistance from the Minister’s speechonly in regard to such matters as are relevant to finding out what was the lawbefore the amendment was introduced; what was the mischief sought to beremedied, and what was the remedy advanced? In interpreting the Act,however, I propose to only consider the language of the Act and the wordstherein.
It would be relevant, in order to appreciate the argument of the Solicitor-General, to refer to cases where injunctions have been issued by our Courtsin respect of acts done by Public Officers and Ministers.
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PATHIRANA, J. – Sirisena and Others v. Kobbekaduwa,
Minister of Agriculture and Lands
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The Solicitor-General submitted that in this country injunctions werenever available against the Crown. He relied on the passage in Buddhadasav. Nadaraja1 where Sansoni, J., had made the observation :—
“Counsel treated as axiomatic the proposition that no injunction lies
against the Crown.”
A Public Servant, however, could be restrained in his individual capacityfor any wrong'ful act done or intended to be done by him. The position wasthe same in England. In Raleigh v. Goscheris, the plaintiffs commenced anaction against the Lords Commissioners of the Admiralty for an allegedtrespass said to have been committed on their lands for which they claimeddamages and they asked for an injunction to restrain further trespass on theland which they say was threatened. It was held that although the plaintiffscan sue any of the defendants individually for the trespass committed orthreatened by them, they could not sue them as an official body and that asthe action was a claim against the defendants in their official capacity, it wasmisconceived and would not lie.
In the case of Buddhadasa v. Nadaraja (supra), an application was madefor an injunction to restrain the respondent in the supposed performance ofhis functions as Deputy Fiscal from wrongful seizing and selling theimmovable property of the petitioner in alleged pursuance of the provisionsof section 79(2)(a) of the Income Tax Ordinance. It was held that the servantof the Crown purporting to act in his official capacity on behalf of the Crowncan be restrained from so acting by an injunction issued against him as anindividual. In this case the defendant was sued as N. Nadaraja of Colomboholding office as Deputy Fiscal, Western Province.
In Ladamuttu Pillai v. The Attorney-GeneraP Basnayake, C.J., held thatneither our Civil Procedure Code nor any other enactment imposed aprohibition such as is contained in section 21(2) of the Crown ProceedingsAct. Our Courts are free to entertain any action against the Crown or itsofficers and there are no fetters imposed by statute on suing the Crown or itsofficers in actions to which the Crown or a Public Officer is a party and ourCourts are free to make any order they may make between subject andsubject. Similarly, in the grant of injunctions, our Courts are free to act undersection 86 of the Courts Ordinance, whether the defendant be the Crown or aservant of the Crown or a subject, and there is no fetter on our freedom of
’ (1955) 56 N.L.R. 537 at 544.‘(1898) I Ch 73.
5 (1957) 59 N.L.R. 313.
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action as in England. This case went up to the Privy Council — LandCommissioner v. Ladamuttu Pillai'0. Their Lordships reserved their opinionupon the question as to whether in the circumstances, such as those in thepresent case, any injunction against the Attorney-General could or ought tobe granted.
In Karunanayake v. de Silva (Minister of Lands) — (supra) in proceedingsunder the Land Acquisition Act, the notice under section 4, the declarationunder section 5 and the order under section 38 of the Minister, did not set outdefinite boundaries on the south and west of the land sought to be acquired.It was held, therefore, that there could not be an acquisition of anindeterminate corpus. The notice, order and the declaration of the Ministerwere therefore defective in regard to the description of the land so as torender them of no force or effect in law as they failed to refer to a particularland, and, therefore, were not in conformity with the law. An interiminjunction was accordingly issued by the Supreme Court on the Minister.
In Ratwatte v. Minister of Lands — (supra) it was held that the petitionerswere entitled to the issue of a temporary injunction restraining the Ministerin respect of the acquisition of the land in question. Samarawickrema J., saidthat upon the matters placed before Court, the question arose whether, ingiving directions for the acquisition, the Minister wittingly or unwittinglygave effect to a design or plan by a political opponent of the petitionerswhich was calculated to protect the interests of himself and his relatives andcause loss and detriment to the petitioners and, if the Minister did so butacted unwittingly, whether the petitioners were entitled to relief. He furtherobserved that it was necessary that Courts, while discouraging frivolous andgroundless objections to acquisitions, should be vigilant, if it is open to themto do so, to scrutinise acquisition proceedings where it is alleged that they aredone mala fide and with an ulterior motive. A temporary injunction wasgranted to restrain the Minister in respect of the acquisition of the lands. Infact, Samarawickrema, J., went on to hold that, in order that an injunctionmay issue, it was not necessary that the Courts would find a case whichwould entitle the plaintiff to relief at all events; it is quite sufficient if theCourt finds a case which shows that there is a substantial question to beinvestigated and that matters ought to be preserved in status quo until thatquestion can finally be disposed of.
These decisions virtually, according to the Solicitor-General, opened theflood gates for a spate of applications for injunctions on the Minister in orderto restrain him from taking further steps in acquiring the lands which the
'“(Privy Council) (I960) 62 N.L.R. 169.
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PATHIRANA, J. – Sirisena and Olliers v. Kobbekaduwa.
Minister of Agriculture and Lands
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Minister sought to acquire. In fact, while introducing the Bill in Parliament,the Minister remarked. “On this ground of mala fide there are today pendingsome sixty land acquisition cases against the Minister of Lands.”
It is against this background that the Solicitor-General submitted that thisCourt must consider why the Legislature thought of enacting section 24 inthe form in which it occurs, the mischief it seeks to cure and the remedy itproposes to advance.
It would be relevant at the outset to understand, the circumstances underwhich the Interpretation (Amendment) Act No. 18 of 1972 was enacted, andits scope. The Legislature would have been more than aware that resort toready-made formulae of “Judge-made” law through the machinery of theCourts had been used either to delay or halt the administrative process of theState in a country like ours which, in the words of the Minister, “ is in cryingneed of development”.
The Amendment seeks to strike a fair balance between the demands andpressures of a planned economy in a developing country like ours, andindividual rights and liberties on the other hand. This is a perennial questionthat has always agitated legislators viz. how far individual liberties can beaccommodated amidst the ever-expanding activities of the State in ensuringto the people the larger freedoms like freedom from want, freedom fromhunger and freedom of the opportunities of life. This is a problem whichaffects all countries of all political complexions. In fact this problem wasposed by the late Earl Warren, the former Chief Justice of the United Statesof America, when he protested that “ Our Judges are not monks or scientists,but participants in the living stream of our national life, steering the lawbetween the dangers of rigidity on the one hand and of the formlessness onthe other . . . Our system faces no theoretical dilemma but a singlecontinuous problem of how to apply to ever-changing conditions, the neverchanging principles of freedom.”
The Minister of Justice, the Hon’ble Felix Dias Bandaranaike, inintroducing the Bill spoke on the same lines — vide official report (Hansarddated 20th April, 1972, Col: 634):—
“As a Minister of the Government, what I am proposing is to deal with• situations existing today to try to find out a formula which, on the one
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side, keeps the law consonant with the needs of society to protect itsinterests and to safeguard development in a country which is in cryingneed of development and, on the other hand, ensures that individualrights and liberties of citizens of this country are not sacrificed in thatprocess.”
At this stage, it will not be out of place to deal with the submission madeby Mr. Athulathmudali. He submitted that in the interpretation of legislationunder the Republican Constitution, the Courts must pay heed to theobjectives of a socialist democracy one of which is in Article 16(2) of theConstitution, i.e. raising the moral and cultural standards of the people.These are principles which should guide the making of laws and thegovernance of Sri Lanka. It was submitted that when a Court does'interpret astatute, it may interpret it on the basis that the Legislature does not, on theexcuse of executive expedition, condone mala fide acts and does not legislateto cover up or protect mala fide executive conduct. I fail to see the relevanceof this argument to the problem in hand. But, there is in our Constitutionanother basic cardinal principle which may necessitate re-thinking by theCourts in future interpreting statutes which affect individual rights andfreedoms. Hitherto, the principle was accepted that statutes which interferewith the liberty of the subject and property rights should be interpretedstrictly and always in favour of the subject. Under the RepublicanConstitution, Article 18(1) sets out the fundamental rights and freedoms. Inthis exhaustive list, one does not find a recognition of the fundamental rightsto property. Article 18(2), however, states as follows:—
“(2) • The exercise and operation of the fundamental rights and freedomsprovided in this Chapter shall be subject to such restrictions as thelaw prescribes in the interests of the national unity and integrity,national security, national economy, public safety, public order, theprotection of public health or morals or the protection of the rightsand freedoms of others or giving effect to the principles of the StatePolicy set out in section 16.
(3) All existing laws shall operate notwithstanding any inconsistencywith the provisions of subsection (1) of this section.”
The problem that is ever recurring in both the legislative andadministrative segments of any Government is as to how and in whatcircumstances it is possible to accommodate individual rights and freedoms
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against the impact of legislation to promote the larger freedoms which thecommunity is entitled to. This is, to some extent, resolved in our RepublicanConstitution in Article 18(2) which states categorically that the exercise andoperation of the fundamental rights and freedoms shall be subject to suchrestrictions as are set out in the subsection.
Under our Constitution, the ultimate control of legislative powers is in apolitical body, the elected Legislature. The Judiciary performs an auxiliaryfunction of interpreting statutes and reviewing administrative action. In thiscontext, it is best always to leave policy to the elected organs of State andinterpret such policy as far as the Judiciary is concerned intelligently,especially having in the background Article 18(2) of the Constitution.
Time and again, Parliament had legislated to make orders, determinations,directions or findings of some person or authority, “final and conclusive”.But, the Courts have held that these words do not have the effect ofexcluding judicial review. ‘Final ’ meant, according to judicial decisions inrelation to a particular administrative decision, merely that the particularremedy cannot be taken any further; which did not deprive that disappointedlitigant such other remedies as he may have or excluding him from recourseto the Courts. In recent times, most sweeping exclusion clauses like “shallnot be questioned in any proceedings or in any Court,” were introduced intolegislative language in regard to administrative decisions. In Anisminic Ltd.,v. The Foreign Compensation Commission — (supra) where although therelevant statute stated that the determinations “cannot be questioned in anyproceedings whatsoever,” the House of Lords imposed an implied statutoryrestriction in the language of its enactment by stating that the determinationmeans a real determination and does not include any apparent or purporteddetermination which, in the eyes of the law, has no existence because it is anullity.
Although some of these powers were intended to be “Judge-proof’ andwere within the domain of pure policy which no legal control could touch,the Courts have, in the words of Professor Wade, “contrived to make anumber of successive sorties into this territory, using as their passport somestatutory restriction which they have been able to discover.”
The tendency of the Courts by the process of judicial interpretation todefeat the intention of the legislature has been the subject of criticism.Professor Friedmann in his book “The State and the Rule of Law in a MixedEconomy” quotes the following passage at page 80:—
“It is quite clear that the Courts have created a situation in which it ispossible to extend the scope of judicial review indefinitely and in a
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manner which, of its nature, defies definition. In many, if not most, ofthe cases where exercises of discretionary powers have been reviewed,the Court has, by a process of statutory “interpretation”, convertedapparently absolute discretions into discretions which are hedged aboutby limitations which would have startled the parliamentary draftsman.The nature of the process by which this result is achieved is most oftenobscured by the terminology employed, the references to good faith,proper purposes, extraneous considerations, reasonableness and so on -but in each case the Court has in fact given a restricted interpretation toa power which is, on the face of the statute, more or less unlimited.”
He attributes this tendency to the influence of the Common Law Courtsand also of Judges who are generally without administrative training andexperience. He also states that they are also predominantly steeped in theindividualistic tradition of the Common Law, “wanting in that they appear todisregard the social element in a problem”. The countries with a full-fledgedsystem of administrative justice are headed by a tribunal of status equal withthat of the highest Civil Court, and staffed by highly trained lawyers with alifelong experience in administration.
At this1 stage it would be useful to refer to two English decisions whichwere in the forefront of the argument of Counsel appearing on both sides.
In Smith v. East Elloe Rural District Council" the preclusion clause was inrespect of an order made under the Acquisition of Lands (AuthorisationProcedure) Act 1946. The Order may have been questioned in the HighCourt within a period of six weeks from the notification of the Minister’sconfirmation on the ground of substantial prejudice by procedural error, orultra vires, but apart from this remedy after the expiration of that periodsuch order “shall not either before or after it has been confirmed, made orgiven be questioned in any legal proceedings whatsoever.”
The House of Lords in a majority judgment held that the Order could notbe questioned in a Court of law on any ground whatsoever. ViscountSimonds took the view that the judgment of the Statute covered everypossible ground of challenge, including good faith.
(1956)2 W.L.R. 888. (1956) 1 All E.R. 855.
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In fact, in this case the Court directly dealt with the question of malafides. Much reliance was placed by the Solicitor-General on this case.
In the other case — Anisminic Ltd v. Foreign Compensation Commission— (supra) the preclusion clause stated: “the determination by the Commissionof any application made to them under this Act shall not be called andquestioned in any Court of Law.” The House of Lords by a majority took theview that these words will not preclude a determination which has beenarrived at on a consideration of facts which the Commission had no right totake into consideration. This was not a case, as the judges admitted, dealingwith mala fides in the sense understood in the East Elloe case.
In the Anisminic case references were made to the East Elloe case and nodoubt opinions were expressed that the latter case was not a satisfactorydecision and that it would need consideration in an appropriate case.
Counsel appearing for the respondents cited a number of cases fromAustralia, South Africa, England, India, and also from our Courts based onthe principles set out in the Anisminic case, to the effect that an exclusionclause in respect of an executive act or decision did not preclude the Courtsfrom going into the question whether the act or decision was made in goodfaith, or within jurisdiction.
I might at this stage mention that both the East Elloe and Anisminicdecisions are more relevant in regard to section 22 of the Interpretation(Amendment) Act. This section deals specifically with any enactmentcontaining the expression “shall not be called in question in any Court” orany other expression of similar import whether or not accompanied by thewords “whether by way of writ or otherwise in relation to any order,decision, determination, direction, or finding made or issued in the exerciseor the apparent exercise of the power conferred on such person, authority, ortribunal.” This section goes on to say that no Court shall in any proceedingsand upon any ground whatsoever, have jurisdiction to pronounce upon thevalidity or legality of such order, etc. In the proviso to this section there arethree exceptions in regard to the writs of this Court.
The Minister in his speech in Parliament gave an example as to why hethought this amending legislation was necessary. Official Report of theHansard of 20th April, 1972, 650:
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“On the ground of mala fides there are today pending some sixty landacquisition cases against the Minister of Lands, every one of which is anallegation that somebody made a speech, and so on. I think in Balangodathere were two rival applications: the U.N.P. wanted to build a roadthrough Ratwatte land, and the S.L.F.P. wanted to drive a road throughsome of Aboosally’s boutiques;
Mr. Dudley Senanayake: Both are mala fide.
The Hon. Felix R. D. Bandaranaike: The net result was that bothapplications had been dealt with and held up: hoping for a change ofGovernment these cases are kept going for three, four or five years at atime. It does not matter to me, but please understand this, that if thisargument is upheld, then Balangoda will never have a road. This countrywill remain for ever a country of footpaths and hovels. No developmentwill be possible. The Government will not be able to acquire land. LocalGovernment will come to a grinding halt. Local bodies have beendepositing moneys day after day asking for the acquisition of land. It willnot be possible for us to have roads, housing schemes, burial-grounds andso on, and the city will continue to be a city of slums.
Our Hon. Minister of Housing and Construction has just returnedfrom Singapore, and I think he will agree that if in Singapore theyinterpreted mala fide in the way in which people seem to have interpretedmala fide, in Ceylon, Singapore will not be what it is today.”
The Minister also referred in his speech to the East Elloe and theAnisminic case.
I shall now proceed to examine the crucial question raised in theseapplications whether any act done mala fide, or outside jurisdiction isexcluded from the scope of section 24(1), and therefore whether in order topermit this interpretation words like “in good faith” or words of like effectshould be read into section 24(1).
I will assume for purposes of argument, but certainly without deciding it,that the following three grounds relied on by Counsel for the respondents, ifestablished, render the order of the Minister a nullity.
Mala fide in the sense that the order was maliciously or politicallymotivated at the instance of those who were totally antagonistic to therespondents in these applications;
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That an order seeking to acquire an indeterminate corpus was anullity;
That an order that did not specify the public purpose for which theacquisition was intended was a nullity.
Section 24(1) does not relate to or deal with the interpretation of words,like, “shall not be called and questioned in any Court” or “final” or “finaland conclusive” or “conclusive evidence” or “conclusive proof’.
In my view section 23 and 24 have a common purpose; while section 23,according to the marginal note, deals with construction of enactments givingpower to Courts to declare rights or status. Section 24, according to themarginal note, deals with construction of enactments giving power to Courtsto grant injunctions, or make orders for specific performances. Section 23says that subject to the provisions of section 24 an original Court shall not beconstrued to have the power to entertain or enter decree or make any order inany action for a declaration of the right or status upon any groundwhatsoever in respect of an order, determination, etc., which any person,authority, or tribunal is empowered to make or issue under any written law.It, however, preserves the remedy by way of damages.
Section 24(1) states that no enactment shall be construed to confer in anyCourt in any action or other civil proceedings the power to grant aninjunction or to make an order for specific performance against the Crown, aMinister, or any other person or authority mentioned therein in respect ofcertain acts. The proviso, however, does not affect the power of such Courtto make, in lieu thereof, an order declaratory of the rights of parties, and istherefore an exception to section 23.
The only question I have to decide is whether the concluding lines ofsection 24, which I have quoted earlier, contain a qualification or limitation,namely, whether the remedy by way of injunction or specific performance isavailable against acts illegal, mala fide, or outside jurisdiction.
Learned Counsel for the respondents conceded that if section 24 stoppedat the word “Commission” then it would cover any act whether made in goodfaith or otherwise.
In the task of interpreting this so-called “limitation clause” in section24(1) I find guidance in the observation made by Lord Simonds in the
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East Elloe case (supra) — at page 893 Viscount Simonds:
“My Lord, I think that anyone bred in the tradition of the law is likely toregard with little sympathy legislative provisions for ousting thejurisdiction of the Court, whether in order that the subject may bedeprived altogether of remedy or in order that his grievance may beremitted to some other tribunal. But it is our plain duty to give the wordsof an Act their proper meaning and, for my part, I find it quiteimpossible to qualify the words of the paragraph in the mannersuggested. It may be that the legislature had not in mind the possibilityof an order being made by a local authority in bad faith or even thepossibility of an order made in good faith being mistakenly, capriciouslyor wantonly challenged. This is a matter of speculation. What isabundantly clear is that words are used which are wide enough to coverany kind of challenge which any aggrieved person may think fit to make.I cannot think of any wider words. Any addition would be meretautology. But, it is said, let those general words be given their full scopeand effect, yet they are not applicable to an order made in good faith.But, My Lords, no one can suppose that an order bears upon its face theevidence of bad faith.
Lord Simonds further said:
“The only way of giving effect to Counsel’s third proposition would beto insert after the word “whatsoever” in para 16 some such words“unless that it is alleged that the order or certificate was made in badfaith.” But I can find no justification in inserting these words. To do sowould be legislation and not interpretation.”
At page 900 Lord Morton of Henryton observed thus:
“Effect can only be given to Counsel’s third proposition if some wordsare read into paragraph 16. Counsel suggested that the words “made ingood faith” should be read in after “order” and also after “certificate”. Icannot accept this suggestion. It would be impossible to predicate of anyorder or certificate that it was made in good faith until the Court hadinquired into the matter, and that is just what paragraph 16 prohibits.”
Lord Radcliffe at page 911 states as follows:
“At one time the argument was shaped into the form of saying that anorder made in bad faith was in law a nullity and that, consequently, all
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references to compulsory purchase orders in paragraphs 15 and 16 mustbe treated as references to such orders only as had been made in goodfaith. But this argument is in reality a play on the meanings of the word‘nullity’. An order, even if not made in good faith, is still an act capableof legal consequences. It bears no brand of invalidity upon its forehead.Unless the necessary proceedings are taken at law to establish the causeof invalidity and to get it quashed or otherwise upset, it will remain aseffective for its ostensible purpose as the most impeccable of orders.And that brings us back to the question that determines this case. HasParliament allowed the necessary proceedings to be taken?” .
Counsel for the respondents on the other hand submitted certain decisionsunder section 88 of the Police Ordinance and under section 461 of the CivilProcedure Code, and submitted that the language used in these Statutes wasin pari materia with the language used in section 24 and that it must beassumed that the Legislature when it enacted section 24(1) must be presumedto have intended the same interpretation as the Courts have placed in respectof these two sections.
Section 88 of the Police Ordinance states that all actions and prosecutionsagainst any person which may be lawfully brought for anything done orintended to be done under the provisions of this Ordinance or under thegeneral police powers hereby given, shall be commenced within threemonths after the act complained of shall have been committed, and nototherwise, and also that one month’s notice in writing should be given to thedefendant before the commencement of the action.
In Perera v. Hansard 12 it was held that the defendant did not act bona fidein obtaining the warrant and that he was fully aware of the illegal act bywhich it had been issued. It was, therefore, not anything done or intended tobe done under the provisions of this Ordinance, or under the general policepowers and therefore the defendant was not entitled to notice. Similar viewswere expressed in Punchi Banda v. Ibrahim et al 13 which laid down thatsection 88 only protected acts which a police officer did in the reasonableand bona fide belief that he is acting within the scope of his authority. Othercases were also cited in support of this principle.
Section 461 of the Civil Procedure Code deals with the requirement of onemonth’s notice before an action is instituted against the Attorney-General as
l! 8 see l.
(1927) 29N.L.R. 139.
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the representative of the Crown, or against a public officer “in respect of anact purporting to be done by him in his official capacity.”
On this matter there are conflicting decisions. In Appusirtgho Appu v. DonAron14 it was held that a public officer who does an illegal act mala fide inthe pretended “exercise” of statutory powers cannot be said to be“purporting” to act under the statute which confers those rights, and thereforewas not entitled to the notice of action provided for by that section.
In De Silva v. Ilangakoon'5 it was held that the allegation of malice in theplaint did not exempt the plaintiff from his duty to act in conformity withsection 461 of the Civil Procedure Code.
Reliance was also placed on the Canadian case of Roncarelli v. Duplessis.'6The question arose whether the defendant was entitled to notice underArticle 88 of the Code of Civil Procedure which was almost on similar termswith our section 461 of the Civil Procedure Code. The question was whetherthe act was done “in the exercise of his functions” within the meaning ofArticle 88. The majority of the Judges in this case held that these words didnot contemplate an unlimited arbitrary power exercisable for any purpose,whatsoever, capricious or irrelevant regardless of the nature of the purpose ofthe statute.
There were two dissenting judgments in this case. Taschereau J., at page124 however, held that it was a fallacious principle to hold that an error,committed by a public officer, in doing an act connected with the object ofhis functions, strips that act of its official character and that its authority mustthen be considered as having acted outside the scope of his duties.Fauteux J., at page 125 held that a public officer was not considered ashaving ceased to act within the exercise of his functions by the sole fact thatthe act committed by him might constitute an abuse of power or excess ofjurisdiction, or even a violation of the law. The jurisprudence of theprovisions which has been settled for many years, is to the effect that theincidence of good or bad faith has no bearing on the right to the notice . . .He did not commit it on the occasion of his functions, but committed itbecause of his functions.”
(1906) 9 N.L.R. 138.(1956)57 N.L.R. 457.
(1959) Canadian Law Reports 121.
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These decisions which have been cited show that even in respect oflanguage which Counsel claimed is in pari materia with the language insection 24 there have been both restrictive and non-restrictive interpretationsplaced on the material words. In the context of section 24 and thecircumstances under which it was enacted, especially having regard to themischief which it sought to remedy, in my view, the restrictive interpretationsought by Counsel for the respondents cannot be given to section 24. Thevery problem that Parliament was called upon to deal with arose out of arestrictive interpretation being placed by Courts in respect of such words. Inthis connection I would approve the principle cited by Craies on Statute Law,7th Edition, page 125:—
“The dominant purpose in construing a statute is to ascertain the intentof the legislature, to be collected from the cause and necessity of theAct being made, from a comparison of its several parts and fromforeign (meaning extraneous) circumstances so far as they can justly beconsidered to throw light upon the subject.”
Moreover the words “any act” in section 24 are words of very wideamplitude intended to cover acts done both within and outside jurisdiction,bona fide or mala fide. The legislature would have failed to achieve itsobjects of suppressing the mischief and advancing the remedy if a restrictiveinterpretation is given to the words “in the exercise of any power orauthority.”
I find support also for this view in the words of Viscount Simond L.C., inthe case of Nokes v. Doncaster Amalgamated Collieries Ltd.'1
“Judges are not called upon to apply their opinions of sound policy soas to modify the plain meaning of statutory words, but where, inconstruing general words the meaning of which is not entirely plainthere are adequate reasons for doubting whether the Legislature couldhave been intending so wide an interpretation as would disregardfundamental principles, than we may be justified in adopting anarrower construction. At the same time, if the choice is between twointerpretations, the narrower of which would fail to achieve themanifest purpose of the legislation, we should avoid a constructionwhich would reduce the legislation to futility and should rather acceptthe bolder construction based on the view that Parliament wouldlegislate only for the purpose of bringing about an effective result.”
(1940) A.C. 1014 at 1022.(1940)3 All. E.R. 549.
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The following passage from Maxwell, Interpretation of Statutes (9thEdition, 1946) pages 288-9 also lays down an important principle in thisconnection:
“The effect of the rule of strict construction might be summed up in theremark that, where an equivocal word or ambiguous sentence leavesreasonable doubt of its meaning which the canons of interpretation failto solve, the benefit of the doubt should be given to the subject andagainst the Legislature which has failed to explain itself. But it yields tothe paramount rule that every statute is to be expounded according to itsexpressed or manifest intention and that all cases within the mischiefaimed at are, if the language permits, to be held to fall within itsremedial influence”.
The citations therefore also meet the point raised and put forward byCounsel for the respondents that even if Parliament intended to achieve acertain object the language of the enactment failed to achieve this object.
The learned Solicitor-General in support of his contention submitted thatthere is another way of finding out the intention of Parliament in order todetermine the ambit of section 24(1). His position was that the purpose ofsection 24(2) was to prohibit an injunction against a State Officer for any actdone in the course of his official duty where the grant of the injunctionwould in effect be a grant of an injunction against the State. This was thesame position in England. Section 24, in fact, is intended to meet thissituation. In fact section 24(2) is similar to section 21(1) of the CrownProceedings Act, 1947, and is intended to meet the same purpose that section21(1) was intended for. De Smith in Judicial Review of AdministrativeAction makes the following comment:
“The 1947 Act left unaffected the law on proceedings against an officerof the Crown in his private capacity; it reaffirmed the rule that noinjunction will lie against the Crown, and it provided that no injunctionshall be granted against an officer of the Crown if the effect of grantingit will be to grant relief against the Crown which could not have beenobtained against the Crown directly. The effect of the latter provisionappears to be to preclude the award of an injunction against anyGovernment department or other body that is a Crown servant, oragainst a Minister or any other officer of the Crown for any act done inhis official capacity”.
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The mischief sought to be remedied by section 24(2) by prohibiting theCourt to grant an injunction against a State official for an act done in hisofficial capacity, the object of which is to prohibit an injunction against theState, will continue if the interpretation contended for by Counsel for therespondents is accepted in regard to section 24(1), namely, that an injunctioncould be granted against the State in respect of an act done mala fide oroutside jurisdiction.
I agree with the Solicitor-General that section 24(2) must not beinterpreted in a way so as to come into conflict with section 24(1). Looked atfrom this point of view, section 24(1) is wide enough therefore to bringwithin the ambit any act whether intra vires or ultra vires or in good faith orin bad faith.
I am not, therefore, prepared to accept the submission of Mr. Jayewardenethat the restriction placed in Subsection (2) of section 24 is subject to thelimitations contained in the so-called “limitation clause” in subsection (1).
Counsel for the respondents particularly, Mr. Tiruchelvam, pressed hardthe contention that the prohibition of the grant of an injunction contemplatedin section 24(1) was not an interim or interlocutory injunction but apermanent injunction. He summed up his argument in this way: He invitedus to look at the proviso to section 24(1) which reserved the powers of Courtto make in lieu of granting an injunction an order declaring the rights ofparties. A declaratory order must in its nature be a final order after thehearing when the Court is in a position to determine and declare the rights ofparties; so that, when the proviso to section 24(1) states that this subsectionshall not be deemed to effect the power of such Court to make in lieu thereofan order declaratory of rights of parties, the contention is put forward that asan order declaring the rights of parties must be made as a final order at theconclusion of the hearing, the words, “in lieu thereof’ would, in the context,refer to a permanent injunction and not an interim injunction because it is apermanent injunction which is ordered at this stage. I am not prepared toagree with Counsel in giving this narrow interpretation to the word“injunction”. In the circumstances under which this legislation was enactedand the mischief it was sought to remedy the word “injunction” in section24(1) refers to both interim and permanent injunctions. If it was the intentionof the legislature to restrict its meaning, it could have done so in simplewords.
In rejecting the contention of Counsel on this point, I find some assistancein section 21 of the Crown Proceedings Act and the two decisions of theEnglish Courts on that section. Section 21(1) (a) prohibits the grant of aninjunction against the Crown, but in lieu thereof the Court may make anorder declaratory of the rights of parties. This is on the same lines as theproviso to our section 24( 1).
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In the International General Electric Company of New York, Ltd. andAnother v. The Commissioner of Customs and Excise IS, the plaintiffs startedan action inter alia for the declaration that the defendants were not entitled todetain their goods and moved ex -parte for an interim declaration, Upjohn,
C., observed :
“It will be observed that the form of the motion is unusual. It does notask for an interlocutory injunction, and if that is good and sound reason,that as the Commissioners of Customs and Excise are a Department ofthe Crown no injunction could be obtained against them. That is becauseof Section 21 of the Crown Proceedings Act of 1947”.
It was held that in proceedings against the Crown it was not possible toobtain an order which corresponded to an interim injunction or an interimdeclaration which did not determine the rights of parties but was onlyintended to preserve the status quo.
Upjohn, L.J., after following the decision in Underhill v. Ministry ofFood 19,
“Speaking for my part I simply do not understand how there can be suchan animal, as I ventured to call it in argument, as an interim declaratoryorder which does not finally declare the rights of the parties. It seems tome quite clear that, in proceedings against the Crown, it is impossible toget anything which corresponds to an interim injunction. When youcome on the question of a final injunction, no doubt a declaratory ordermay be made in lieu thereof, for that finally, determines the rights ofparties”.
In Underhill v. The Minister of Food — (supra) Justice Romer observed:
“Mr. Buckley, on behalf of the Minister of Food, says that this Court hasno jurisdiction to make a kind of interim declaration in substitution forthe interlocutory injunction which, quite clearly, it has no power to grant. . . Accordingly, he says that, just as I cannot grant an interlocutoryinjunction against the defendants in this case even if in all respects aprima facie case has been made out, I cannot as an alternative make aninterim declaration either. In my judgment, that submission is right. I donot think that this Court has, or has intended to have, jurisdiction undersection 21 of the Act to make something in the nature of an interim
"(1962) 1 Ch. 784. (1962) 2 AU E.R. 398 at 399.
" (1950) I TLR Vol. 66,730 ai 733. (1950) I ALL E.R. 593.
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declaration of rights which would have no legal effect and which, as Isay, might be the very opposite of the final declaration of the right whichwould be made at the trial after hearing of evidence and after going atlength into all matters in issue”.
It is, therefore, very clear that in the Crown Proceedings Act of 1947 theword “injunction” also means an interim injunction and these decisions havedefinitely laid down that under section 21 of the Crown Proceedings Act aninterim injunction cannot be granted.
Our proviso to section 24(1) is on the same terms as its counterpart insection 21 of the Crown Proceedings Act which reads:
“…. but may in lieu thereof make an order declaratory of the rights of theparties”.
I, therefore, hold that section 24(1) prohibits the Court from granting aninterim injunction as well against the person or Authority specified in thesection.
The statutory exclusion of judicial review is looked down upon byjurisdictions which follow the principles of the common law like in Englandand this country for the reason that there is a cardinal rule that access to theCourts in circumstances where such access will otherwise lie for thedetermination of his rights should not be denied to the citizen save by clearwords of the statute. It is for this reason that Courts have exercised theirsupervisory jurisdiction to question the validity of executive acts anddecisions in cases involving ouster clauses. But the question is whether thesupervisory jurisdiction of the Courts is completely excluded by thelegislation prohibiting one of the many remedies or reliefs which the Courtcan grant to an aggrieved party to question the validity of executive actions.In the case before us the remedy prohibited is by way of injunction.
To answer this question it is necessary to know the content and scope ofthe remedy by way of injunction. An injunction is an order of Court and it isdiscretionary relief addressed to a party in proceedings before it, andrequiring that party to refrain from doing or to do a particular thing. Inadministrative law it is frequently sought and granted on the ground thatwhat the agency proposes to do will be or would be ultra vires.
Ah interim injunction is a provisional remedy granted before the hearingon the merits and its sole object is to preserve the subject in controversy in
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ilS then existing condition, that is, in status quo, and without determiningany question of right. An interim injunction decides no fact, fixes no right,and, is not at all necessary to the final determination of the case.Samarawickreme, J., in Ratwatte v. Minister of Lands (supra) observed that inorder that an interim injunction may issue it is not necessary that the Courtshould Find a case which would entitle the plaintiff to relief at all events. It isquite sufficient if the Court finds a case which shows that there is asubstantial question to be investigated, and that matters ought to be preservedin status quo until that question can be finally disposed of.
The resulting position is that although at the time an interim injunctionissues from a Court there is no adjudication of the rights of parties. It may aswell be that at the end of the hearing the Court will come to a finding againstthe party in whose favour the interim injunction had been granted. Section24(1) by depriving the Court of the power to grant an interim injunctiontherefore does not deprive the Court of the power to adjudicate on the rightsof an aggrieved party against an administrative order.
A perpetual injunction is one granted by a judgment which finallydisposes of the injunction suit which forms part of the judgment upon' hearing of the merits and it can be properly ordered only upon the finaljudgment. The aggrieved party before he obtains a permanent injunction hasthe satisfaction of having an adjudication of his rights, and in the case of achallenge of executive action, a declaration that such action is ultra vires oroutside jurisdiction.
Section 24(1) therefore, while giving the aggrieved party the right toobtain an order declaring his rights merely tells him that he is not entitled tothe other remedy of a permanent injunction.
Despite the fact that the remedy by way of an injunction is not availableto an aggrieved party under section 24(1), access to the Courts is not deniedto him as under the Interpretation (Amendment) Act the Court can give anorder declaring the rights of the parties against the person or authoritymentioned in section 24(1) which includes the Minister and the aggrievedparty can ask for an order for damages.
For those reasons I am of the view that section 24(1) does not contain apreclusive clause in the sense in which it is understood in the Anisminiccase, and in the cases cited based on the principles laid down in that case.Section 24(1) merely deprives a party of the remedy which he would beotherwise entitled to ask. It merely deals with the construction of anenactment depriving the power of the Court to grant an injunction.
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PATHIRANA, J. – Sirisena and Others v. Kobbekaduwa,
Minister of Agriculture and Lands
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Mr. Jayewardene’s comment that it is not a significant answer, norcomfort or solace to the subject to be told that he can still obtain adeclaration for what it is worth and should be content with it while hisproperty is demolished or he is ejected from his home and his hearth, isequally applicable in regard to those persons affected by the CrownProceedings Act 1947 in England as they are in the same plight. The remedyfor this is not through the Courts but elsewhere.
The English Courts which have interpreted sweeping ouster clauses as inthe Anisminic case as not standing in their way to question the legality of adetermination by a person or authority, have refused to enter the arena toquestion the legislative privilege which a Minister in England enjoys of notbeing subject to the issue of an injunction against him in view of section21(1) of the Crown Proceedings Act. In fact, the English decisions which Ihave cited have reiterated the position that injunctions are not available evenif a prima facie case is established.
One can now understand the reason why in England after the CrownProceedings Act, 1947 when certain remedies which were hitherto notavailable to the subject against the Crown in Courts were made available forthe first time against the Crown, injunctions were treated as an exception.
I shall now deal with the submission of Counsel on which much reliancewas placed, namely, that while in the Bill, section 24 dealt with “any actdone or purported to be done” and “in the exercise or purported exercise ofany power or authority,” the word “purported” was omitted in the Act. Thecontention was that this was deliberately done to keep acts done mala fide,outside jurisdiction or in the pretended exercise of power, outside the scopeof section 24. In support of his argument certain decision under section 88 ofthe Police Ordinance and section 461 of the Civil Procedure Code werecited. The language used, it is submitted, is in pari materia with the languagein section 24. It will be more appropriate to deal with the cases in section 461of the Civil Procedure Code as the words in this section are :
“In respect of an act purporting to be done by him in his officialcapacity”.
In some of the cases cited by Counsel it has been held that where the acthad been done by a public officer mala fide or from an ulterior motive, then anotice under section 461 need not be given to the defendant. If thesedecisions are correct, then it would appear that acts done mala fide or in thepretended exercise of power did not come within the scope of “an actpurporting to be done”. In de Silva v. Ilangakoon — (supra), Basnayake, C.J.,
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however, took the contrary view and held that even when there is anallegation of malice in the plaint, a notice must be given in conformity withsection 461. The Chief Justice goes on to say that the word “purported”means ordinarily “profess” or “claim” or “mean” or “imply”. He has alsocited a passage from the judgment of Lord Simonds in Gill and Another v.King20 – in interpreting the words “an offence alleged to have been committedby him while acting or purporting to act in the discharge of his official duty”in section 197(1) of the Indian Criminal Procedure Code.
“Their Lordships while admitting the cogency of the argument that inthe circumstances prevailing in India a large measure of protection fromharassing proceedings may be necessary for public officials cannotaccede to the view that the relevant words have the scope that has insome cases been given to them. A public servant can only be said to actor to purport to act in the discharge of the official duty, if his act is suchas to lie within the scope of his official duty. Thus a Judge neither actsnor purports to act as a Judge in receiving a bribe, though the judgmentwhich he delivers may be such an act; nor does a Government medicalofficer act or purport to act as a public servant in picking the pocket of apatient whom he is examining, though the examination itself may besuch an act. The test may well be whether the public servant, ifchallenged, can reasonably claim that, what he does, he does in virtue ofhis office”'.
It will thus appear that the words “purport” would have been in thecontext in which section 24 was enacted a surplusage, especially in view ofthe use of the words “any act” in section 24. Both an act and an actpurporting to be done are done by a public officer by virtue of his office orwithin the scope of his official duty. The two examples given by LordSimmonds refer to acts which are neither acts nor acts purporting to be donewithin the scope of a person’s official duty.
When a public officer does an official act, he claims, professes, meansand implies that he does it by virtue of his office. This also accounts for thedeletion of the words “purporting” in section 22 and the insertion instead ofthe word “apparent”.
Mr. Tiruchelvam submitted that section 24(1) contemplated only caseswhere the power to grant injunctions is contained in an enactment, andtherefore this section could not affect injunctions which the Courts hadinherent power to grant. The enactments usually invoked by the Courtswhich give them the power to grant injunctions may be set down asfollows:
(1948) 1 A.I.R. Privy Council 128.
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Minister of Agriculture and Lands
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Under the repealed Courts Ordinance, the Supreme Court had this powerunder section 20, and the District Courts and the Courts of Requestsunder sections 86 and 87. Section 217(f) of the Civil Procedure Code isalso referred to as the source of this power.
Under the Administration of Justice Law, the High Court is given thejurisdiction formerly vested in the Supreme Court by section 21. TheDistrict Court and the Magistrate’s Court are given the power to grantinjunctions under section 42.
As far back as 1895 it was held in the case of Mahamadu v. Ibrahim21 —that this Court had no inherent power to issue injunctions and its jurisdictionis restricted to cases referred to in section 20 of the Courts Ordinance.
When the jurisdiction of Courts in regard to its powers on any matter isreferable to a statute, there is no inherent jurisdiction in the Courts toexercise its powers in regard to those same matters.
I therefore, reject this argument and hold that section 24(1) cannot beconstrued as excluding the inherent powers of the Court to grant injunctionswhen such powers do not exist.
I shall now deal with the question of jurisdiction raised by Counselchallenging the constitution of the present Bench of nine Judges of this Courtto hear and determine these applications.
Mr. Jayewardene who spearheaded this challenge maintained that thethree Judges of this Court had no jurisdiction to call for and examine therecords in these cases, to issue notices in the manner they were. done. Allconsequential proceedings up to the constitution of the present Bench weretherefore irregular and illegal. He prefaced his argument by saying that theapplications did not come up before this Court either by way of appeal or inrevision at the instance of any of the aggrieved parties who have not on theirpart moved this Court. Implicit in this contention is the suggestion that theMinister in question was not interested in the outcome of this hearing. It isneedless to say that the Solicitor-General of the State appeared before us onbehalf of the Minister and put the case of the State as effectively as it shouldbe to the effect that the orders of the subordinate Courts in grantinginjunctions against the Minister were illegal orders.
I might skip over some of the preliminary points raised by Mr. Jayewardeneas being of pure academic interest, for example, about the indivisibility ofthe Supreme Court under the Administration of Justice Law.
!1 (1895)2N.L.R. 36.
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Even the main matter which I propose to deal is only of academic interestas we could have dismissed his contentions in limine on two grounds.
Firstly, the Chief Justice acting in terms of section 14(3) of theAdministration of Justice Law had directed the constitution and nominatedthe composition of this Bench. The application for the constitution of thisBench was made by Mr. Jayewardene and Mr. Tiruchelvam before the ChiefJustice under section 14(3) on the ground that the matters involved in theseapplications are of general or public interest. This Court therefore derives itsjurisdiction to hear and determine the applications on the direction of theChief Justice and this direction is beyond challenge and review.
Secondly, it was within the competence of this Bench once it sat, todecide that this was a fit case where the revisionary powers of this Courtshould be exercised once the matters in controversy were brought to itsnotice.
After a few initial skirmishes, Mr. Jayewardene conceded that when thetwo Judges called for the records from the Courts below they were acting ina purely ministerial capacity and as such he was not questioning its legality.In fact section 40 states that the jurisdiction of this Court by law shall includeall ministerial powers and duties incidental to such jurisdiction, and section354(1) which gives this Court powers of revision states that it may adoptsuch procedure as it may consider fit.
Section 14 states that the jurisdiction of the Supreme Court may beexercised in different matters at the same time by several judges of the Courtsitting separately, provided that its jurisdiction in respect to the judgment andorders of the Magistrate’s Court shall be exercised by at least two Judges andits jurisdiction in respect of judgments and orders of District Courts and HighCourts shall be exercised at least by three Judges. No complaint can be madeon this ground too as the orders and notices to show cause in terms of section354(1) were issued by three Judges of this Court.
What was considered improper and done without jurisdiction is that theorder under section 354(1) noticing the parties to show cause was done in theexercise of the judicial power of the State and therefore should have beendone at sittings in public of the Court and not in chambers although theywere done ex mcro motu under section 13. Our attention was drawn tosection 7 which states that the sittings of every Court shall be held in publicand all persons are entitled to attend such sittings subject to certainexceptions.
In my view, the sittings of the Court in public means the sittings toexercise the judicial power of the State to decide controversies betweensubjects or between the State and subjects when it assembles after giving an
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Minister of Agriculture and Lands
33
opportunity to the party proposed to be affected by any order that the Courtmay make. Orders made in this case do not come within this category.
I do not see the necessity for Judges of this Court acting ex mero motuwhen issuing notices in any matter of a revisionary nature that it ismandatory that they should do so at public sittings of the Court. Firstly, noprejudice is caused to any of the parties as an order prejudicial to one orother of the parties will be made only after the parties have been noticed andan opportunity given to show cause. Secondly, it is not always necessary thatthe parties should be heard before the Judges decide ex mero motu to issuenotice. Thirdly, when issuing notice the Judges do not come to adetermination regarding the rights of parties.
The contention raised on the ground of jurisdiction is without merit andtherefore fails.
Mr. Jayewardene submitted that in the event of this Court holding that thesubordinate Courts did not have the power to issue injunctions against theMinister by reason of section 24(1), this Court should not reverse or varysuch orders unless such orders have prejudiced the substantial rights of eitherparty or occasioned a failure of justice. I cannot agree with this submission.Interim injunctions have been ordered on the Minister despite the fact thatthe Courts had no power to do so. By no stretch of reasoning can it be saidthat the substantial rights of the State have not been prejudiced in the caseswe are dealing with. As a result of illegal orders being made by the Courts inthe face of the statute, the machinery of the Government and itsadministrative processes under the Land Acquisition Act have come to adead halt. Besides, these cases are apt to be cited as precedents against otherorders of the Minister unless the orders are varied or set aside.
I should think that a duty lies on this Court when such orders come upbefore this Court, if on a review it is found that such orders are illegal, to setthem aside. In doing so it makes no difference that some of the orders are not‘live orders’ in the sense that the injunctions have expired and that thereforethere is nothing for the Court to set aside. I cannot subscribe to thisproposition either. There is on the face of the record an illegal order. Itmatters not that the effect and the force of the order have expired. It is theduty of this Court to tell the subordinate Court and all parties affected by itthat it is an illegal order and the only way effective it can achieve it is to proforma set it aside.
This is the conclusion that I have unhesitatingly come to on theconstruction of section 24(1) of the Interpretation (Amendment) Act No. 18of 1972 as to the intention of Parliament in enacting the section and the
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meaning thereof. In order, however, to dispel any doubt in the matter, I havelooked into the translation of the Bill in the official language, that is, theSinhala version. Words of the widest amplitude have been used in the Act inEnglish. Section 24(1) refers to any action or other Civil Proceedings … inrespect of any act done … by any such person or authority … in theexercise of any power . . . vested in any such person or authority. As I haveremarked earlier, there is no necessity or room anywhere in this section forany form of restrictive interpretation.
I am not unmindful of the fact that in looking into the Sinhala version ofthe Bill which was before Parliament that this particular amending legislationwas enacted before the Republican Constitution was inaugurated on the 22ndof May, 1972. The date of assent of the Interpretation (Amendment) Act isthe 11th of May, 1972. Article 9 of the Constitution of Sri Lanka states thatall laws shall be enacted or made in Sinhala and there shall be a Tamiltranslation of every law so enacted or made. Under the present Constitution,therefore, all Bills are presented to the Legislature in Sinhala and enacted inSinhala. But prior to the enactment of the present Constitution a Sinhalatranslation of the Bill was made available to the Members of the House ofRepresentatives. This is quite understandable as the composition of thelegislature has in recent years been predominantly Sinhala speaking. Theofficial language of the country is Sinhala. Business of the House isconducted in Sinhala, but any member may address the House in English orTamil. Of the 157 members in the House, only 31 are non-Sinhala speaking,but I presume even they understand Sinhala. The more articulate of theSinhala speaking members who constitute the decisive voting majority andwho represent rural opinion and aspirations follow the proceedings in thelegislature in Sinhala, participate in debates in Sinhala, and when they votefor a Bill, I presume, they have before them the Sinhala version of the Bill.
I shall now quote the relevant portion of section 24(1) of the Interpretation(Amendment) Bill in Sinhala, insofar as the so-called ‘limitation clause’ isreferred to therein.
As I have pointed out earlier although in the Bill section 24(1) dealt with“any act done or purported to be done” and “in the exercise or purported
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Minister of Agriculture and Lands
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exercise of any power or authority,” it is my view, that the word “purported”was a surplusage and its omission in the Act did not make any significantdifference. In my view, the Sinhala version of the relevant controversial linesof the Bill which was before Parliament is not open to any restrictiveinterpretation as suggested by Counsel for the respondents. It follows thatone cannot even read into it words like “in good faith”. The languagein the Sinhala version of the Bill, in my view, is clear, precise andunequivocal as to the intention of Parliament to deprive the Courts of thepower to grant an injunction against the Minister under any circumstanceswhatsoever.
I, therefore, hold that all orders of the District Courts and the High Courtsissuing interim injunctions against the Minister of Agriculture and Lands inrespect of the applications under review are illegal and have been madewithout jurisdiction. Therefore, exercising the revisionary powers of thisCourt, I quash all such orders irrespective of the fact that they are in force orhave expired.
In the circumstances of the case and as the matters in issue were raised exmero motu by this Court, Ijtrtake no order as to costs.
We are deeply obliged and much thankful to Counsel appearing on bothsides for the very valuable, and painstaking assistance they have given us
both by exhaustive oral and written submissions.
i
Before I conclude I wish to make these observations: In the contemporarysociety in which we live there are social changes and upheavals which aretaking place every moment to solve the problems of the people. It isnecessary that in order to effect, consolidate and guarantee these changes thatthose who wield the executive power of the State must be armed withadequate and far-reaching powers, unobstructed as far as possible and unlessit is absolutely necessary, by extraneous interference. These powers are givento public functionaries in trust by the Legislature representing the power ofthe people. Implicit in repositing these extensive powers by the legislature isthe duty expected from those who exercise powers that they will do so withcircumspection and above all with a sense of justice. There may be momentswhen they will derive infinite delectation in exercising these powers but atthe same time they must also remember in doing so that “it is excellent tohave a giant’s strength; but it is tyrannous to use it like a giant”.