PRADESHIYA SABAWA , HINGURAKGODA , AND OTHERS vs. KARUNARATNE AND OTHERS

054-SLLR-SLLR-2006-V-2-PRADESHIYA-SABAWA-HINGURAKGODA-AND-OTHERS-vs.-KARUNARATNE-AND-OTHERS.pdf


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PRADESHIYA SABAWA, HINGURAKGODA, AND OTHERSvs
KARUNARATNE AND OTHERSCOURT OF APPEAL.
SOMAWANSA, J. (P/CA).
WIMALACHANDRA, J.
CA(PHC) 76/96.
WRIT PHC(APN) 8/96.
H. C. ANURADHAPURA 19/95.
Writ of Certiorari/Mandamus – List of selection of lessees-SelectionContrary to law?-Pradeshiya Saba Act 15 of 1987 – Delay – is it fatal?What are the grounds of issue of Writ of Certiorari?-Could the Courttake into consideration the consequences which the writ will entail?-Locus standi.
The 1st and 2nd petitioners – respondents filed an application forwrits of Certiorari and Mandamus in the High Court pleading theHingurakgoda Pradeshiya Sabha acted contrary to law in selecting
CA
Pradeshiya Sabawa, Hingurakgoda, and others Vs.
Kamnaratne and others (Andrew Somawansa, J.(P/CA))
411
lessees for the shops at Hingurakgoda. The High Court issued a writquashing the selections and issued Writ of Mandamus compelling thePradeshiya Saba to make the selections according to the tenderprocedure (P18). The respondent – petitioners seek to quash the saidorders on the basis that, the High Court erred in granting a Writ ofMandamus to select through another procedure (P18) without quashingthe method of selection already adopted when the method of selectionitself is not challenged by the respondent-petitioners in their applicationto the High court, further that, the petitioner respondents in coming tothe High Court. It was further contended that, the peti'tioner-Respondents did not have Locus standi.
HELD :
The petitioner – respondents admit that they made anapplication and participated at the interview but were notselected, then the petitioner- respondents having acceptedthe selection criteria are not entitled to claim that the methodof selection is invalid. They cannot challenge the method ofselection by way of Writ of Mandamus directing a new methodof selection.
Per Somawansa. J,
The High Court Judge unfortunately did not realize that thesereliefs (Certiorari and Mandamus) in the present case areinconsistent to each other and even if a Writ of Certiorari wasgranted he could not have granted the Writ of Madamus asprayed for".
The method of selection was published in April 1995, theinterviews were held in July 1995, the agreements were signedwith the selectees and keys handed over in August 1995. The
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application to the High Court was filed in September 1995.Their own conduct would show that they acquiesce in themethod of selection.
This is not case where the petitioner – respondents state thatthey received the highest marks at the interview but were notselected, there is no guarantee that the petitioner -respondents will be selected even on a fresh selection. Thepetitoner respondents have no status or right to maintain theapplication for writ.
Per Somawansa. J (P/CA),
“The High Court judge had erred in going through thecorrectness of the allegations of the petitioner – respondentsand imposing his decision over the decision of the interviewPanel without understanding the limited scope of the inquiryin a writ application"
One should keep in mind the consequences that would flow ifthe order of the High court judge is not set aside for theselection list will stand quashed when selected 36 are alreadycarrying on business in shops from August, 1995. They haveentered into valid agreements, rents have been paid and the36 selectees are in occupation of the aforesaid 36 shops.Thus not setting aside of the order of the High Court Judgewould bring disastrous consequences.
A Court before issuing a Writ of Mandamus, is entitled to take intoconsideration the consequences which the issue of the writ will entail.
Appeal from an order of the High Court of Anuradhapura.
CA
Pradeshiya Sabawa, Hingurakgoda, and others V's.
Karunaratne and others (Andrew Somawansa, J.(P/CA))
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Cases referred to :
Jayaweera vs Assistant Commissioner of Agrarian Service1996-2sri LR 70
Sarath Huiangamuwa vs Siriwardena, Principle, VishakaVidyalaya, Colombo 05 and Others- 1987 1 Srt LR 275, 278
Bisomenika vs G. R. De Alwis 19.82- SRI LR 368 (DB)
Abdul Rahuman vs The Mayor of Colombo -69 NLR 211
(b) Inasitamby vs Government Agent, Nothern Province 34NLR33
King vs Parry – 2,6 Ad and E 810
Ananda Kasturiarchchi with Ms. A. Weerasekera for 1st – 17th, 19th,20th petitioners respondents – petitioners.
A. A. de Silva PC with Sarath Weerakoon for 1st, 2nd petitioner -respondents.
Cur. adv. vult.
17th March, 2006.
ANDREW SOMAWANSA. J. (P/CA):
The appeal bearing no. CA/(PHC) 76/96 and the revisionapplication bearing No. CA(PHC) 08/96 arises out of an order madeby the learned High court judge of the Provincial High Court of theNorth Central Province holden at Anuradhapura dated 16.01.1996issuing writ of certiorari quashing the list of selections marked Pe5 and a writ of mandamus competing the 1 st and 2nd appellant toselect the lessees according to tender procedure marked P18.
When this matter was taken up for argument both counsel invitedCourt to decide the matter on the written submissions alreadytendered. They also agreed that the Judgment delivered in final
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appeal bearing no. CA(PHC) 76/96 would be binding on the revisionapplication bearing no. CA(PHC) APN 08/96.
The relevant facts are : the 1st and 2nd petitioners-respondentsfield an application for writ of certiorari and mandamus pleadingthat Hingurakgoda Pradeshiya Sabha constructed a shoppingcomplex with 36 shops at Hingurakoda and published a noticecalling for applications to lease the aforesaid 36 shops, interviewswere held to consider the aforesaid applications, that the list ofselections declared by the 2nd appellant marked pe 5 consist ofseveral persons who are not eligible to be selected on the groundpleaded therein and in any event, selections as contained indocument marked Pe5 is contrary to law as the selections of somelessees referred to therein is contrary to the provisions in thePradeshiya Sabha Act and to the Local Government Commissioner’sinstructions dated 18.03.1995 and also to the Pe5 notice. Further,the said selections are bad in law as the 2nd appellant has actedin excess and or abuse of power based on political considerationand also the applications of the petitioners-respondents were notconsidered due to malice and political reasons. In thecircumstances they prayed for a writ of certiorari to quash theselections as contained in document Pe5 and a writ of mandamusto compel the 1st and 2nd appellants to make the selectionsaccording to the instructions of the Local Government Commissionerby a proper interview.
At the conclusion of the inquiry into the application made by theIsland 2nd petitioners- respondents the learned High Court judgeby. his order dated 16.01.1996 held with the 1st and 2nd petitioners-respondents. It is from this order that the appellants have preferredthe instant final appeal as well as the application for revision.
Counsel for the 1st to 17th, and 19th and 20th respondentscontends that the learned High court Judge erred in granting a writ
CA
Pradeshiya Sabawa, Hingurakgoda, and others Vs.
Karunaratne and others (Andrew Somawansa, J.(P/CA))
415
of mandamus to select through another procedure viz: accordingto tender procedure marked P18 without quashing the method ofselection already adopted marked pel when the method of selectionPel itself is not challenged by the petitioners in their applicationto the High Court. The petitioners had only prayed to issue a writof certiorari to quash the list of selectees Pe-5. However they didnot seek to quash the method of selection. The selection procedureadopted by the Pradeshiya Sabha is in accordance with Pe – 1,which had been published in the newspapers in April 1995. It is onthe said method of selection the stall holders were selected andthe petitioners-respondents were not selected, the petitioners-respondents claim that some of the respondents – respondents orsuccessful tenants did not have the necessary qualifications tofall within the criteria laid down in Pe.1. At the same time theypleaded that they are qualified under Pe. 1. In other words theyadmit the method of selection. Their grievance was that no propermarks were given under the said procedure. Thus they do notchallenge the method of selection Pel..
it is to be seen that the petitioners – respondents admit thatthey made an application in terms of Pe 1 and participated at theinterview but were not selected thus the petitioners-respondentshaving accepted the selection criteria is not entitled to claim thatthe method of selection in invalid. They could obtain relief by wayof writ of certiorari quashing the list of selection on grounds alleged(ie. on the criteria that selectees were not qualified), if that wastrue but certainly cannot challenge the method of selection (forwhich they have not pleaded any grounds) and to ask the Court byway of writ of mandamus directing a new method of selection.
The learned High Court judge unfortunately did not realize thatthese reliefs (ie. Certiorari and mandamus) in the present case areinconsistent to each other and even if a writ of certiorari was grantedhe could not have granted the writ of mandamus as prayed for.
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As contended by counsel for the 1st to 17th, 19th and 20threspondents there is undue delay on the part of the petitioner-respondents in coming to Court. It is to be seen that the method ofselection was published in newspapers in April 1995 and thepetitioners-respondents participated at the interviews held in July1995. The selections were formally done and the agreements withthe successful tenants too were signed in the month of August1995 and the opening ceremony was held on 01.08.1995 and keysof the shops were handed over and it was on 05 September 1995that the respondents petitioners made the instant application tothe High Court. Their own conduct would show that they haveacquiesced to the method of selection and was quite content toallow 4 months to pass by from the time the entire selection processwas over. Our Courts have constantly refused relief of certiorari ormandamus when there is undue delay and the term undue delaydoes hot mean that there should be a long delay but depends onthe facts and circumstances of each case.
In the case of Jayaweera vs. Asst. Commissioner of AgrarianServices per Ratnapuram Jayasuriya, J:
“A petitioner who is seeking relief in an application forthe issue of a writ of certiorari is not entitled to relief asa matter of course, as a matter of right or as a matter ofroutine. Even if he is entitled to relief, still the Court hasa discretion to deny him relief having regard to hisconduct, delay, laches, waiver, submission to jurisdiction- are all valid impediments which stand against the grantof relief.
In the case of Sarath Hulangamuwa vs. Siriwardena, Principal,Visak Vidyalaaya, Colombo 5 and others2 at 278 per Silva selliah,J “It must be mentioned that aperson cannot sleep over his rights
CAPradeshiya Sabawa, Hingurakgoda, and others Vs.417
Karunaratne and others (Andrew Somawansa, J.(P/CA))
but must seek his legal remedy with expedition-particularly wherehe seeks a writ which is an extraordinary remedy granted underexceptional circumstances"
In the case of Bisomenike vs. C. R. de Alwis Sharvananda,(3)J(as he then was) stated :
“A Writ of Certiorari is issued at the discretion of thecourt, it cannot be held to be a writ of right or one issuedas a matter of course. The exercise of this discretion bycourt is governed by certain well accepted principles.
The court is bound to issue it at the instance of a partyaggrieved by the order of an inferior tribunal except incases where he has disentitled himself to thediscretionary relief by reason of his own conduct,submitting to jurisdiction, laches, undue delay or waiver…
The proposition that the application for writ must besought as soon as injury is caused is merely anapplication of the equitable doctrine that delay defeatsequity and the longer the injured person sleeps over hisrights without any reasonable excuse the chance of hissuccess in writ application dwindles and the court mayreject a writ application on the ground of unexplaineddelay… An application for a writ of certiorari should befiled within a reasonable time.”
in Abdul Rahuman vs. the Mayor of Colombo(4> the facts were:
In an application for a writ of mandamus on the ground that theMunicipal Council of Colombo did not comply with the statutoryrequirements of section 7(2) of the Butchers Ordinance-
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HELD:
“That in view of the delay on the part of the petitionerin asking for mandamus and the consequences of suchdelay the application should be refused”.
Another matter that is raised by the appellants is that thepetitioners respondents have no locus standi to maintain thisapplication for writ for even if the 1st and 2nd petitioners-respondents are within the minimum requirements laid down in thenotice marked Pe-1, that per se will not entitle them to be selected.Altogether there were more than 500 applicants and only thosewho received the highest marks at the interview were eligible to beselected. Marks were given according to the scheme laid down inX21. An independent interview panel consisting of senior publicofficers of the area, Assistant Director of Education, AssistantDirector of Planning, Administrative Officer, Education office heldthe interviews. The details of the marks received by each applicationin annexed (X23). Therefore, there is no guarantee that thepetitioners respondents will be selected even on a fresh selection.This is not a case where the petitioners-respondents state thatthey received the highest marks at the interview panel but was notselected. Therefore the petitioners- respondents have not statusor right to maintain the application for writ.
On the other hand, the allegation of the petitioner-respondentsis that four (4) persons named in paragraph 10 of the petition arenot eligible. But it is not alleged that petitioners- respondents hadobtained the next highest marks/score and therefore they areeligible if the four (4) were not selected. Thus, it is to be seen thatthe petitioners respondents have no right to maintain theapplications for writs.
CAPradeshiya Sabawa, Hingurakgoda, and others Vs.419
Karunaratne and others (Andrew Somawansa, J.(P/CA))
Futhermore, the learned High Court judge had erred in goingthrough the correctness of the allegations of the petitioners-respondents and imposing his decision over the* decision of theInterview Panel without understanding the limited scope of theinquiry in a writ application. The grounds of issue of writs ofcertiorari are :
acting in excess of jurisdiction or ultra vires;
breach of a mandatory provision or rule;
breach of rules of natural justice;
error of law on the face of the record ;
The learned High Court judge had not found that the list ofselection had been made in violation of any of the above principlesto justify the grant of writ of certiorari.
In passing I would say one should keep in mind the consequencesthat would flow if the order of the learned Hight Court judge is notset aside for the selection list will stand quashed when selected36 tenants are already carrying on business in the aforesaid shopsfrom August 1995. They have entered into valid agreements, rentshave been paid and the 36 selectees are in occupation of theaforesaid 36 shops thus not setting aside of the order of the learnedHigh Court Judge would bring disastrous consequences.
In this respect l would refer to the decision in Inasitamby vs.Government Agent Northern Province(5> it was held :
“A Court before issuing a writ of mandamus, is entitled to takeinto consideration the consequences which the issue of the writwill entail”.
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As referred to by Jayawardene, AJ in the aforesaid case theobservation of Lord Denman CJ in the King v. Parry<6> are worthy ofnote:
“The difficulties that might attend the reconstruction ofcorporations once dissolved, and the important functions nowvested in municipal bodies, would induce increased circumspectionin our proceedings. The inferior officers ought, indeed, to conformwith care to the provisions if the law; The willful departure fromthem this Court will visit with severity; and even negligence maynot always escape animad – version; but our discretion as to theissuing of quo warranto informations must be regulated by a regardto all the circumstances which attend the application and all theconsequences likely to follow. Upon the whole, for the reasonsstated, we think we act most in accordance with the current ofauthorities, with the Statute, and with the public interest, in refusingthe permission”.
For the foregoing reasons, I would allow the appeal and set asidethe order of the learned High Court Judge with costs. 1 st and 2ndpetitioner -respondents will pay a sum of Rs.10,000 to theappellants. This judgment to be binding on the revision applicationno. 08/96.
WIMALACHANDARA, J. — I agree.
Application allowed.