PIYASENA vs. ASSOCIATED NEWSPAPERS OF CEYLON LTD AND OTHERS

017-SLLR-SLLR-2006-V-3-PIYASENA-vs.-ASSOCIATED-NEWSPAPERS-OF-CEYLON-LTD-AND-OTHERS.pdf


sc
Piyasena vs.
Associated Newspapers of Ceylon Ltd. and Others
113
PIYASENAvs
ASSOCIATED NEWSPAPERS OF CEYLON LTD. AND OTHERSSUPREME COURT.
DR SHIRANI BANDARANAYAKE, J.
UDALAGAMA, J.
SOMAWANSA, J.
FR 390/2005.
JULY 27, 2006.
SEPTEMBER 4, 28, 2006OCTOBER 25, 2006.
Fundamental rights- Articles 3,4,12(1) -Article 126- Constitution,-Acts ofThe Associated Newspapers of Ceylon Ltd ANCL Special Provisions Law28 of 1973 – Section 17 – Amenable to fundamental rights jurisdiction?Narrow view-Broader view Test Control – Functions test ?-Rules of SupremeCourt – Rule 44 (1) (c)-Non compliance?-ls it fatal ?
The petitioner alleged that by the promotion granted to the 7threspondent by the 2nd respondent, Associated Newspaper of Ceylon Ltd.,(ANCL), his fundamental right guaranteed in terms of Article 12 wasviolated.
The respondent contended that, the application should be dismissedin limine as (1) ANCL is not amenable to fundamental rights jurisdiction
Rule 44(l) (c) of the SC Rules have not been complied with.
On the preliminary objections raisedHELD:
It is not disputed that ANCL is a creature of statute, as its statuswas changed by ANCL Special Provisions Law No. 28 of 1973,provision has been made in the law that not less than 75% of thetotal number of all the shares of the company be vested in thePublic Trustee on behalf of the government. Unlike the othercorporations, in terms of Section 17 of the law, the Minister isempowered to make regulations for the purpose of giving fullforce and effect to the principles and provisions of the law.
It is evident that ANCL is an instrumentality or an agency of theState subject to direct control by the government.
114
Sri Lanka Law Reports
(2006) 3 Sri L R.
Held further:
It is apparent that in terms of Rule 44(1) (c) what is necessary isto tender only the documents and affidavits which are available tothe petitioner. There is no compulsion in terms of Rule 44 (1) (c)to make an effort to tender documents which are not in thepossession of the petitioner.
It is not possible to restrict the applicability of fundamental rightsthrough mere technicalities.
In terms of the Rule 44 1 (4) once a petitioner has pleaded adocument in his petition he would be entitled to submit it, ‘as isavailable to him' and with the permission of Court or have Courtto call for such document.
Per Dr Shirani Bandaranayake. J
“It is also important to note that it was the responsibility of the 2ndrespondent to have disclosed relevant and material facts if they were todeny the averments of the petitioner; if the respondents were to deny theposition taken up by the petitioner, the onus was on the respondents to. produce such material facts, and disclose that to this Court’.
APPLICATION under Article 126 of the Constitution.- on a PreliminaryObjection taken.
Cases referred to –
Thadchanamurthi vs. Attorney General – 1978-79-80- 1 Sri LR154
Velmurugu vs. Attorney General 1981 – 1 Sri LR 406
Ireland vs. United Kingdom – Decision of European Court ofHuman Rights January 18, 1978.
Marriadas vs. Attorney General and another – FRD – Vol 2 397
Wijetunga vs. Insurance Corporation – 1982 1 Sri LR 1
Gunawardane vs. Perera – 1983 1 Sri LR 305
Perera vs. University Grants Commission – 1978-79-80 1 Sri LR128
Peter Leo Fernando vs. Attorney General and others – 1985 1 SriLR 341
Rajaratne vs.Air Lanka – 1987 1 Sri LR 128
Leo Samson vs. Air Lanka 2001 1 Sri LR 94
sc
Piyasena vs. Associated Newspapers of Ceylon Ltd.
and Others (Dr Shirani Bandaranayake, J.)
115
Jayakody vs. Sri Lanka Insurance and Robinson Hotel CompanyLtd., -2001 1 Sri LR 365
Som Prakash Rekhi vs. Union of India – AIR 1981 SC 212
Sukhdev Singh vs. Bhagatram – AIR 1975 – SC 133/
Ramana Dayaram Shelty vs. The International Air port Authorityof India – AIR 1979 SC 1628
Ajay Hasia vs. Khalid Kujid – 1981 AIR SC 487
Romesh Thappar vs. State of Madras – AIR 1950 SC 124
Prem Chanr Gag vs. Excise Commissioner UP – Air 1963 – SC 996
B.V.M. Fernando and others vs. Associated Newspapers of CeylonLtd.-SC FR 274/2004.
Cur adv. vull.
J.C. Weliamuna for Petitioner
Aravinda Athurupana for 2,3,4,5,7, 8th respondents.
November 23, 2006.
DR. SHIRANI BANDARANAYAKE, J.
The petitioner, an Assistant Manager Security Services (Operations)of the Associated Newspapers of Ceylon Ltd., viz., the 2nd respondent(hereinafter referred to as ANCL) alleged that by the promotion grantedto the 7th respondent as Manager Operations at ANCL, his fundamentalright guaranteed in terms of Article 12(1) of the Constitution was violatedfor which this Court granted leave to proceed.
When this matter was taken up for hearing, learned Counsel for the2nd to 5th, 7th and 8th respondents (hereinafter referred to as thelearned Counsel for the 2nd respondent), took up a preliminary objectionstating that ANCL is not amenable to fundamental rights jurisdiction,as ANCL, which is a limited liability Company or its officers is/are notinstrumentalities of the State and that the petitioner has not filed anymaterial to show that ANCL falls within the meaning of executive oradministrative action in terms of Article 126 of the Constitution.
Accordingly learned Counsel for the 2nd respondent submitted that,
the petitioner should have annexed the gazette notificationreferred to in paragraph 3(b) of the petition to indicate thatANCL has been listed as an institution under the Ministry ofInformation and Media;
116
Sri Lanka Law Reports
(2CC6) 3 Sri L R.
as ANCL is a Company, the petitioner should have filed form48 and share certificates to indicate that the State has themajority of the shares in ANCL; and
for the reasons referred to in i and ii above, learned Counselfor the 2nd respondent contended that there was non-compliance with Rule 44(1) (c) of the Supreme Court Rules of1990.
In the circumstances, it was decided to take up the preliminaryobjection for consideration and both learned Counsel were so heard.
On a consideration of the preliminary objection raised by the learnedCounsel for the 2nd respondent, it is apparent that his objection isbased mainly on two grounds; namely
the impugned act/s by the 2nd to 8th respondents do notconstitute executive or administrative action and therefore thepetitioner cannot invoke the fundamental rights jurisdiction ofthis Court; and
the petitioner has not complied with the Rule 44(1 )c of theSupreme Court Rules of 1990, as he had not taken steps tofile relevant and necessary documents along with his petitionor thereafter.
Having stated the objections of the learned Counsel for the 2ndrespondent, let me now turn to examine the said objections.
Whether the impugned act/s by the 2nd to 8th respondentsconstitute executive or administrative actionAlthough Article 126 of the Constitution refers to executive oradministrative action, with reference to fundamental rights, theConstitution does not provide any definition to this concept. It wouldtherefore be necessary to analyze the case law in order to considerthe definition in this respect. The case law, it is to be noted, clearlyindicates a gradual evolution towards broadening the concept, sincethe early decisions after 1978.
sc
Piyasena vs. Associated Newspapers of Ceylon Ltd.
and Others (Dr. Shirani Bandaranayake, J.)
117'’
In Thadchanamurthi vs. Attorney General<1) a very narrow view wastaken while considering an infringement of fundamental rights byexecutive or administrative action, where it was stated that torture bypolice officers were unlawful and ultra vires of the duties of the policeofficers and therefore it would not amount to state action. It was alsostated that the State would be liable for the wrongs of its subordinateofficials only when an ‘administrative practice’ had been adopted. Afew years later in Velmurugu v Attorney General12> in the majority viewit was held that if liability is to be imputed to the State it must be onthe basis of an administrative practice and not on the basis of anauthorization, direct or implied, or that those acts were done for thebenefit of the State. However, in the minority decision, Sharvananda,J. (as he then was) had taken a broader view in giving a meaning to thephrase ‘executive or administrative action’ to encompass all actionsby State officials. Referring to several judgments of other jurisdictionsand especially the decision in Ireland vs. United Kingdom ,3)Sharvananda, J. (as he then was) stated that,
“There is no justification for equating ‘executive oradministrative action’ in Article 126 to 'administrativepractice' or to acts resulting from administrative practice.Practice' denotes ‘habitual or systematic performances’ andcontemplates a series of similar actions. No known canonor statutory interpretation warrants such a narrow or limitedconstruction of the phrase ‘executive or administrativeaction’, which, ordinarily understood, embraces in its sweepall acts of the administration, especially when what is atstake is the subject’s. Constitutional remedy. In my view, allthat is required of a petitioner under Article 126 is that heshould satisfy this Court that the act of infringementcomplained of by him is the action of a State official orrepository of State power. Any violation of fundamental rightsby a public authority, whether it be an isolated individualaction or consequent to administrative practice, furnishes,in my view, sufficient basis for an application under Article126.”
This view expressed in 1981 was reiterated by Sharvananda , J.,(as he then was) in Mariadas vs. Attorney General and Another andin Wijetunga vs. Insurance Corporation.™ The interpretation thuspropagated by Sharvananda, J. (as he then was) was again referred toin Gunawardena vs. Perera.™
118
Sri Lanka Law Reports
(2006) 3 Sri L. R.
In Perera vs. University Grants Commission™ Sharvananda, J. (ashe then was), again referred to the phrase 'executive or administrativeaction’ within the framework of Articles 17 and 126 of the Constitutionand stated that,
“The expression ‘executive or administration action’embraces executive action of the State or its agencies orinstrumentalities exercising governmental functions.”
A Divisional Bench of this Court in Peter Leo Fernando vs. AttorneyGeneral and Others1® referred to the interpretation given bySharvananda. J. (as he then was) to the phrase ‘executive oradministrative action’ in Velmurugu vs. Attorney General and Others(supra), Perera vs. University Grants Commission (supra) and inWijetunga vs. Insurance Corporation and Another (supra) and quotedwith approval the principle, which had emerged through theaforementioned decisions in giving a meaning to the concept of‘executive or administrative action’. Colin-Thome’, J. in his judgment,thus stated that the test to be applied in deciding, whether the actionin question is executive or administrative, is to examine the nature ofthe functions and the degree of control that has been exercised.
In Rajaratne vs. Air Lanka Ltd.,1® the question, which arose was asto whether the actions of Air Lanka Ltd., would come within the meaningof executive or administrative action.’Atukorale, J. after an exhaustiveexamination of Sir Lankan and Indian cases, took the view that theexpression executive or administrative action in terms of Article 17and 126 of the Constitution should be given a broad construction andAir Lanka Ltd., was a Company formed by the government, owned bythe government and controlled by the government and these functionsrender Air Lanka an agent or organ of the government, which is therebyamenable to the fundamental rights guaranteed in terms of articles 17and 126 of the Constitution.
The Divisional Bench decision in Leo Samson vs. Air Lanka1'® andthe decision in Jayakody vs. Sri Lanka Insurance and Robinson HotelCompany Lfd.,("> on the other hand had used different parameters indeciding whether government control is exercised over a respondentCompany. Accordingly in Leo Samsons case (supra), the Court had
sc
Piyasena vs. Associated Newspapers of Ceylon Ltd.
and Others (Dr Shirani Bandaranayake, J.)
119
applied the deep and pervasive control test’ whereas in Jayakody(supra) the Court after examining the structure of the respondent HotelsCompany had held that although it was carrying on ‘commercialfunctions’ it would still be a State agency.
Having said that, let me now turn-to examine the position of theapplication under review.
The petitioner in his petition had stated that the 2nd respondent isin terms of the provisions of Section 2 of the Associated Newspapersof Ceylon Ltd. (Special Provisions) Law, No. 28 of 1973 (hereinafterreferred to as the Law), a Company other than a private Companywithin the meaning of the Companies Act, No. 17 of 1982. In suchcircumstances could it be possible to hold that the actions of the 2ndrespondent come within the purview of ‘executive or administrativeaction' in terms of Article 17 and 126 of the Constitution?
It is not disputed that the 2nd respondent falls within the categoryof a Company. The chief contention of the learned Counsel for the 2ndrespondent was that, since the decision of Leo Samson (supra), thenecessary requirement in proof of ‘ executive or administrative action’would be the ‘deep and pervasive’ test. Learned Counsel furthercontended that ‘neither Leo Samson’s case (supra) nor Jayakody’scase (supra) has whittled down the requirement of deep and pervasivestate control’.
In Leo Samson’s case (supra) one of the petitioners had allegedthat the termination of his services by the Chief Executive Officer ofSri Lanka Airlines Ltd. was violative of Article 12(1) of the Constitution.The other petitioner had alleged, inter alia, that his being posted asManager, Kuwait is violative of Article 12(1) of the Constitution.
A preliminary objection was raised on behalf of Sri Lankan Airlinesthat consequent to the Shareholders Agreement signed by theGovernment with Air Lanka and Emirates Airlines and the amendedArticles of Association of Air Lanka, the impugned acts do not constitute‘executive or administrative action’. This Court held that the ‘executiveor administrative action’ would include executive or administrative
120
Sri Larks ls# Reports
#zcr S Sri L. H.
action of the State or its agents or instrumentalities. In deciding soIsmail, J. had stated that, it was clear from the provis'or.s of thememorandum and Articles of Association and the ShareholdersAgreement that the management, power, control and authority overthe business of the Company were vested in the Investor with certainmanagement decisions, being vested exclusively in it.
It is thus clear that the Court had based its decision on aconsideration of the provisions of the amended Articles of Associationand the Shareholders Agreement and accordingly had held that theGovernment had lost the ’deep and pervasive’ control exercised earlierby it over the Company.
The decision in Jayakody (supra), had considered the rationale ofLeo Samson (supra) and answered in the negative the question as towhether the judgment in the latter would affect the decision taken inJayakody vs. Sri Lanka Insurance and Robinson Hotel Co. Ltd. (supra).The Court in Jayakody’s case (supra) took the view that the 2ndrespondent in that case is a State agency and therefore its action areexecutive or administrative in character. Therefore in Jayakody (supra)the Court had taken the view that the test to decide whether an actcomes within the purview of executive or administrative action wouldbe to consider whether the party in question is a State agency and toconsider whether the State has the effective ownership of such, establishment and if so whether such an establishment would comeunder the category of State Agency.
Therefore it is apparent that whilst Leo Samson (supra) hadconsidered the kind of control, which is necessary to come within theframework of executive or administrative action, in Jayakody (supra)the Court had examined the character of the establishment in order todecide whether there could be executive or administrative action carriedout by such an institution. Accordingly it is apparent that the decisionin Jayakody (supra) could be clearly distinguished from the decisionin Leo Samson’s case (supra).
Considering the circumstances and the questions that has arisenin the present application, it is apparent that they are quite similar tothe questions, which had been considered in Jayakody vs. Sri Lanka
SCPiyasena vs. Associated Newspapers of Ceylon Ltd.121
and Others (Dr Shirani Bandaranayake, J.)
Insurance and Robinson Hotel Co. Ltd. (supra). Moreover on such acomparison, and for the reasons aforementioned, it is also apparentthat the present application could thus be distinguished from that ofthe decision of Leo Samson (supra).
The question before this Court therefore is to examine whether ANCL,is a State Agency. ■
Learned Counsel for the 2nd respondent strenuously contended thatANCL is not an entity controlled by the State, but.that it is a Companyand its decisions cannot be questioned in terms of Article 126 of theConstitution.
It is however an accepted fact that fundamental rights jurisdictioncannot and should not be frustrated on the grounds of lack of jurisdictionwithout ascertaining the true character of the Institution and thereforeit is essential that the true legal character of the Institution in questionbe examined before arriving at a decision. In fact this position hasbeen considered by Krishna Iyer, J. in Som Prakash Rekhivs. Unionoflndia^ upholding the views of Mathew, J. in his land mark decisionin Sukhdev Singh vs. Bhahgatram(u) which was adopted by Bhagwati,J. in Ramana Dayaram Shetty vs. The International Air Port Authorityof lndia.(U)
In Ramana Shetty’s case (supra), Bhagwati, J. considering thedoctrine of agency propounded by Mathew, J. in Sukhev Singh (supra)states that,
“Where a Corporation is wholly controlled by governmentnot only in its policy making, but also in carrying out thefunctions entrusted to it by the law establishing it or by theCharter of its incorporation, there can be no doubt that itwould be an instrumentality or agency of government"
Upholding the views expressed by Mathew, J. in Sukhdev Singh(supra) Bhagwati, J. in the Judgment of a Divisional Bench in AjayHasia v Khalid Mujib{iS) clearly stated that,
“The Government in many of its commercial ventures andpublic enterprises is resorting more and more frequently to
122
Sri Lanka Law Reports
(2006) 3 Sri L R.
this resourceful legal contrivance of a corporation becauseit has many practical advantages and at the same timedoes not involve the slightest diminution in its ownershipand control of the undertaking. In such cases, the trueowner is the State, the real operator is the State andthe effective controllorate is the State andaccountability for its actions to the community and theParliament is of the State.” (emphasis added)
In Ajay Hasia (supra) the society in question was registered underthe Societies Registration Act for the purpose of establishing anEngineering College, which was sponsored, supervised and financiallysupported by the Government. The Indian Supreme Court held thatsuch a society should be an instrumentality or an agency of the State.
It is therefore evident that careful attention should be given to severalfactors, which are relevant in considering whether a Company or aCorporation is an agency or an instrumentality of the Government.Having this in mind let me now turn to examine the status of the 2ndrespondent.
It is not disputed that ANCL is a creature of a statute as its statuswas changed by the Associated Newspapers of Ceylon Ltd. (SpecialProvisions) Law, No. 28 of 1973 (as amended). The preamble to thisLaw clearly states that it is',
“A Law to change the status of the company carrying onbusiness under the name of the Associated Newspapers ofCeylon Limited, to provide for the redistribution of the sharesof such company, and for the reconstitution of the bodyresponsible for the management and administration of thebusiness and affairs of such company”
Provision has been made in this law that not less than 75% of thetotal number of all the shares of the Company be vested in the PublicTrustee on behalf of the Government (Section 2(b) of the Law).Moreover, unlike the other Companies, in terms of Section 17 of thelaw, the Minister is empowered to make regulations for the purpose ofgiving full force and effect to the principles and provisions of this law.Section 11 of the law provides the Minister to revoke or amend the
SCPiyasena vs. Associated Newspapers of Ceylon Ltd.123
and Others (Dr Shirani Bandaranayake, J.)
Memorandum and Articles of Association of the Company by regulationpublished in the Gazette.
It is pertinent to note the provisions made in terms of section 16(1)of the Law read with section 9 to 12 of the Public Corporations (Financial'Control) Act, where the accounts and property of ANCL are to be auditedby the Auditor General.
Considering the aforementioned factors, it is thus clear that ANCLis prima facie a statutory body with government control.
Learned Counsel for the petitioner in fact submitted that as averredin paragraph 3(b) of the affidavit of the petition, ANCL is an institution,which functions under the direct purview of the Ministry of Informationand Media. The petitioner had thus averred that,
“Moreover, by Order of Her Excellency the President,
published in the Government Gazette (Extraordinary) of28.04.2004, the ANCL has been listed as an institution underthe purview of Ministry of Information and Media."
On a consideration of all the aforementioned facts andcircumstances, it is evident that ANCL is an instrumentality or anagency of the State, subject to direct control by the government. Insuch circumstances,' there is no possibility of construing that the actsof ANCL cannot come under the jurisdiction of fundamental rights,guaranteed in terms of Article 126 of the Constitution. Accordinglycould it be said that the impugned acts by ANCL do not constituteexecutive or administrative action and therefore the petitioner cannotinvoke the fundamental rights jurisdiction of this Court?. The answerto this question is clearly in the negative as it is clearly evident fromthe reasons aforesaid that ANCL is an authority, which falls within theparameters of an instrumentality or agency of the State.
Non-compliance with Rule 44(1) (c) of the Supreme CourtRules of 1990.
Learned Counsel for the 2nd respondent strenuously contendedthat the petitioner had not complied with Rule 44(1) (c) in reference totwo matters alleged in paragraph 3(b) of his petition. Paragraph 3(b) of
124
Sri Lanka Law Reports
(2C06) 3 Sri L R.
the petition as referred to earlier, deals with the legal status of ANCL,where the petitioner had stated that,
“In terms of the provisions of Section 2 of the AssociatedNewspapers of Ceylon Ltd. (Special Provisions) Act, No. 28of 1993 (hereinafter ANCL Act), the 2nd respondentAssociated Newspapers of Ceylon Limited (hereinafterANCL) is a Company other than a private Company withinthe meaning of the Companies Act, No. 17 of 1982. Furtherin terms of Section 2(b) of the ANCL Act not less than•seventy-five per centum of all the shares of the Companyshall vest in the Public Trustee on behalf of the Government.Moreover, by Order of Her Excellency the President,published in the Government Gazette Extraordinary of
the ANCL has been listed as an institution underthe purview of Ministry of Information and Media.”
Learned Counsel for the 2nd respondent submitted that the petitionercannot rely on the Law by itself and submit that 75% of the shares ofANCL are held by the Public Trustee as at the date the petitioner hadfiled his petition.
Learned Counsel for the 2nd respondent further contended that ifthe petitioner had wanted to rely on share holding position, he shouldhave filed a copy of the Annual Return of ANCL. He also submitted thatif the petitioner has not annexed to the petition any such document toindicate that at least 75% of the total shares of ANCL, being vested inthe Public Trustee, as at the time of the .petition, that would amount tonon-compliance with Rule 44(1 )(c) of the Supreme Court Rules of 1990.
Rule 44 of the Supreme Court Rules of 1990 is contained in Part IV,which deals with the applications under Article 126. Rule 44(1 )(c) ofthe aforesaid Rules is in the following terms :
“tender in support such petition, such affidavits anddocuments as are available to him."(emphasis added).
It is thus apparent that in terms of Rule 44(1 )(c), what is necessaryis to tender to Court only the documents and affidavits, which areavailable to the petitioner. In such circumstances could it be possible
SCPiyasena vs. Associated Newspapers of Ceylon Ltd.125
and Others (Dr Shirani Bandaranayake, J.)
for this Court to consider that in terms of Rule 44(1 )(c), the petitioneris under an obligation to tender all the relevant documents?
Rule 44(1) (c) clearly specifies that the petitioner has to tender toCourt in support of his application, the petition, affidavit and otherdocuments as are available to him. Thus Rule 44(1 )c is emphatic onthe point of the types of documents that should be tendered to Court.What it states is that, the petitioner should tender only the documents,which are available to him. In other words, there is no compulsion interms of Rule 44(1 )(c) to make an effort to tender-documents, whichare not in the possession of the petitioner. What is necessary in termsof Rule 44(1 )(c) is to tender all relevant documents to support thepetitioner’s application, that are available to him at the time of filingthe application. The petitioner, should plead for any other relevantdocuments and should file them as and when they are available to thepetitioner with the permission of the Court.
The basis of this position could be clearly understood by examiningthe nature of the fundamental rights jurisprudence vis a vis, the civiland criminal litigation process.
Article 126 of the Constitution clearly states that the Supreme Courtshall have sole and exclusive jurisdiction to hear and determine anyquestion relating to the infringement or imminent infringement byexecutive or administrative action of any fundamental right or languageright declared and recognized by Chapter III or Chapter IV of theConstitution. Article 4(d) emphasizes on the exercise of sovereigntythrough the fundamental rights jurisdiction and states as follows :
“the fundamental rights, which are’by the Constitutiondeclared and recognized shall be respected, secured andadvanced by all the organs of government, and shall not beabridged, restricted or denied, save in the manner and tothe extent hereinafter provided;….-.”
It is therefore to be noted that in terms of Article 126 read with Article4(d) of the Constitution, it is apparent that the fundamental rightsguaranteed by the Constitution cannot be ‘abridged, restricted or denied’and it is evident that it would be the duty of this Court to ensure thatsuch rights are not abridged, restricted or denied to the People’
126
Sri Lanka Law Reports
(2006) 3 Sri LR.
These rights, which are fundamental in nature, are inalienable asArticle 3 of the Constitution clearly states that,
“In the Republic of Sri Lanka sovereignty is in the peopleand is inalienable. Sovereignty includes the powers ofgovernment, fundamental rights and the franchise.”
Fundamental rights are conferred on the people, which areinalienable. Therefore such rights are to be enjoyed by them. The solepurpose of incorporating a Chapter on Fundamental Rights in theConstitution was to protect and promote such rights and this wasdone on behalf of the people. These rights have established a firmfoundation for a democratic society, which is rid of all inequalities,which should lead to a new social order and thus the fundamentalrights are chiefly for the betterment of the individual and would eventuallylead to the formation of a just society. Unlike an ordinary legal right,which is protected and enforced by the ordinary law, the fundamentalrights are guaranteed and protected by the Constitution and they areavailable only against executive or administrative action. Referring tosuch fundamental rights, Patanjali Sastri, J., (as he then was) inRomesh Thappar v State of Madras^commented that,
“This Court is thus constituted the protector and guarantorof fundamental rights and it cannot, consistently with theresponsibility so laid upon it, refuse to entertain applicationsseeking protection against infringements of such rights.”
• A decade later, in 1963, Gajendragadkar, J., in Prem Chand Garg vExcise Commissioner, U.P(U) emphasized the important position heldby the fundamental rights jurisdiction in a democratic system in thefollowing words:
“The fundamental right to move this Court can, therefore,be appropriately described as the cornerstone of thedemocratic edifice raised by the Constitution.”
In such circumstances it is quite clear that it is not possible torestrict the applicability of fundamental rights through meretechnicalities.
sc
Piyasena vs. Associated Newspapers of Ceylon Ltd.
and Others (Dr Shirani Bandaranayake, J.)
127
Having said that let me now turn to examine the contention of thelearned Counsel for the 2nd respondent in his preliminary objection onthe ground of non-compliance with Rule 44(1 )(c) of the Supreme CourtRules of 1990.
The main submission of the learned Counsel for the 2nd respondentis that,
the petitioner had not filed form 63 of the Companies Act; and
the petitioner had not filed the Gazette Notification to supportthe submissions referred to in paragraph 3(b) of the petition.
It is not disputed that the petitioner in his petition dated 28.09.2005referred to the legal status of the 2nd respondent in paragraph 3(b) ofthe petition, which paragraph was re-produced earlier. That paragraphclearly stated the number of shares that was vested with the PublicTrustee and referred to the Gazette Extraordinary of 28.04.2004, whereANCL was listed as an institution under the purview of the Minister ofInformation and Media.
The Company Secretary of ANCL in her affidavit dated 04.01.2006,denied the averments in paragraph 3(b) and had averred that,
“ I deny the averments in paragraph 3(b) of the saidpetition except that the provisions of the AssociatedNewspapers of Ceylon Limited (Special Provisions) Act, No.
28 of 1973 are applicable to the 2nd respondent."
Paragraph 3(b) of the petition, as referred to earlier, speaks of theLaw and its provisions, which states that not less than seventy-fiveper centum of its shares being vested in the Public Trustee.
It is thus evident that ANCL had not denied this position and thereforeit is apparent that the reference to the Law had been sufficient tojustify the proposition propounded by the petitioner.
Considering the fundamental rights jurisdiction exercised by thisCourt in terms of Rule 44(1 )(c) of the Supreme Court Rules of 1990, ithas been the practice of this Court to have a liberal approach inentertaining documents. There have been many instances, where
2-CMS430
128
Sri Lanka Law Reports
(2006) 3 Sri L R.
parties have moved Court to call for necessary documents. Needlessto say that, documents are necessary and vital for the purpose ofascertaining whether there has been a violation of any fundamentalrights as-the said jurisdiction is exercised and facts are ascertainedthrough affidavits and documents. It has also to be borne in mind thatin terms of Article 126(2) of the Constitution that in order to exercisethe fundamental rights jurisdiction, an aggrieved person should applyto this Court by way of petition within one month of the allegedinfringement Thus in order to advance the fundamental rights jurisdictionand also to ensure that such jurisdiction is not ‘abridged, restricted ordenied’ to the People, it would be necessary to give a liberal and apurposive construction to Rule 44(1 )(c) of the Supreme Court Rules of1990.
Considering all the aforementioned factors, it is evident that in termsof* Rule 44(1 )(c), once a petitioner has pleaded a document in hispetition he would be entitled to submit it ‘as is available to him’ andwithllfb permission of Court or move Court to call for such document.
It is also important to note that, it was the responsibility of the 2ndrespondent to have disclosed relevant and material facts if they wereto deny the averments of the petitioner. If the respondents were todeny the position taken by the petitioner, the onus was on therespondents to produce such material facts and disclose that to thisCourt. It is however not disputed that the respondents have not producedany material either to deny the contention of the petitioner or tosubstantiate their position. In such circumstances it would not be correctfor the learned Counsel for the 2nd respondent to state that the petitionerhad not complied with Rule 44(1 )(c) as he has not filed Form 63 of theCompanies Act.
Learned Counsel for the 2nd respondent also contended that thepetitioner should have filed the Gazette Extraordinary of 28.04.2004along with the petition.
As referred to earlier, the question of the aforesaid Gazette notbeing filed by the petitioner came up at the stage of hearing, whenpreliminary objections were raised by the learned Counsel for the2nd respondent. Learned Counsel for the petitioner submitted that,at the time of filing the petition, a copy of the said Gazette was notavailable and stated that a copy would be submitted along with his
sc
Piyasena vs. Associated Newspapers of Ceylon Ltd.
and Others (Dr Shirani Bandaranayake, J.)
129
written submissions. In fact the learned Counsel for the petitioner hadfiled a copy of the said Gazette, marked X, along with his writtensubmissions.
In these circumstances, the objection by the learned Counsel forthe 2nd respondent on the ground of non-compliance of Rule 44(1 )(c)of the Supreme Court Rules of 1990 cannot be sustained.
It would be worthy to note before I part with this judgment thesubmission of the learned Counsel for the petitioner where he statedthat, there were several cases filed against ANCL end that this Courthad considered those on their merits and none had held that the actionsof ANCL are not executive or administrative action in terms of Article126 of the Constitution. He cited the recent decision by this Court in
V. M. Fernando and Others v. Associated Newspapers of CeylonLimited(18) where the Court had considered ANCL as an agent of the•State.
On a consideration of all the material placed before this Court I holdthat the 2nd respondent, namely the Associated Newspapers of CeylonLtd., is a State agency and that its actions were therefore executive oradministrative in character and that the petitioner had complied withRule 44(1 )(c) of the Supreme Court Rules of 1990.
I accordingly overrule the preliminary objection, with costs in a sumof Rs. 10,000/- payable ANCL (2nd respondent) to the petitioner. Thisa,mount to be paid within one month from today.
Since this matter cannot be concluded before this Bench, this willbe listed before any Bench for hearing on the merits, on a date nextterm to be fixed by the Registrar of the Supreme Court.
UDALAGAMA, J. -1 agree.
SOMAWANSA, J. -1 agree.
Preliminary objections overruled.
Main matter to be listed for argument.