RANASINGHE v. THE CEYLON STATE MORTGAGE BANK

014-SLLR-SLLR-1981-1-RANASINGHE-v.-THE-CEYLON-STATE-MORTGAGE-BANK.pdf


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Ranasinghe v. Ceylon State Mortgage Bank
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RANASINGHE
v.THE CEYLON STATE MORTGAGE BANK
SUPREME COURT.
SAMARAKOON, C. J., ISMAIL. X. SHARVANANOA. X. WANASUNDERA, J.ANOWIMALARATNE, X
S.C. No. 46/80—C. A. (S.C.) APPLICATION 325/72-O.C. KANDY 9588/L.
APRIL 6. 7, 1981.
Declaratory Judgement—Determination by bank to redeem property sold underhypothecary decree—Vesting order published by Minister of Finance—Declarationsought challenging power of bank to make determination— Objection to jurisdiction ofDistrict Court—Whether it has jurisdiction to review order of inferior tribunal—Determination by a statutory authority—Whether District Court empowered to makesuch a declaration under section 217 1C) of Civil Procedure Code—Objections toapplication for redemption taken under section 70 (Bj 15j of Act No. 33 of 1968 andsection 23 of Interpretation (Amendment) Act, No. 18 of 1972—Whether Courtsprecluded from questioning bank's determination—Ceylon State Mortgage Bank Act,(Cap. 398) as amended by Act No. 33 of 1968, sections 10 (B) (2) (1) (a), 70 (B) (2)(11 (a). 71 (2) (b).
The plaintiff purchased at a public auction held in execution of a hypothecarydecree entered against one A, the premises described in the schedule to the plaint. Anapplication was made for the redemption of the property by A to the State MortgageBank under the provisions of Act No. 33 of 1968 which amended the State MortgageBank Act (Cap. 398). Despite objections taken by the plaintiff on the ground that thebank was precluded from entertaining the application for redemption by reason of theprovisions of section 70 (8) (2) (1) (a) and section 10 (B) (2) (1) (a) a determination toredeem the property was made by the bank. The plaintiff's objection was based on thefact that A was disqualified from obtaining relief under the act as his income exceededthat laid down in the section.
This action was filed by the plaintiff in the District Court challenging the power ofthe bank to make such a determination. A preliminary issue was heard as regards thejurisdiction of the District Court to hear and determine this action and the learnedDistrict Judge held that he had jurisdiction. On appeal, the Court of Appeal holding thatthe District Court had no supervisory jurisdiction over a determination by the bank andthat the proper remedy was to invoke the jurisdiction of the Appellate Court byway ofwrit of certiorari, allowed the appeal. The Court of Appeal took the view that theoriginal Court cannot by means of a declaratory order review the decisions of inferiorbodies unless such power is expressly conferred by statute.
Held (Wimalaratne, J. dissenting)
The plaintiff was entitled in law to maintain an action for a declaration. Section217 (G) of the Civil Procedure Code permits a declaratory judgment without grantingany substantive relief for remedy and a declaration granted under these provisionscannot correctly be termed a "supervisory order" inasmuch as there is no order in thefirst place; and secondly it is not a judgment that the machinery of the law could
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enforce. If the term "supervisory" in reference to a declaratory judgment is intended Iddescribe the function of review which is a process that must necessarily take place beforea Court pronounces upon the legality or otherwise of a decision of a body such as aninferior tribunal then such exercise is not forbidden by law.
An objection taken on behalf of the Bank under the provisions of section 70 (Bl (6)of the amending Act No. 33 of 1968 that clauses (a) and (b) precluded the District Court'from entertaining this action could not be sustained, as the proceedings before the Bankwere now complete and clause (a) did not therefore apply; and as far as clause (b) wasconcerned the matter that now arises for decision was the fundamental question as towhether the property was one which the bank wes authorised to acquire and if the bankhad no power to make such a determination acquisition would be of no effect in lawto vest title in the bank. Further the validity of the acquisition could only be questionedin a properly constituted action to question the vesting order made by the Minister ofFinance.
The provisions of section 23 of the Interpretation (Amendment) Act, No. 18 of1972, do not prohibit the District Courfhom making a declaration such as that soughtby the plaintiff as his attack is on the very jurisdiction of the bank to make thedetermination and that the bank was not empowered to make the impugned order. Ifthis wes so, the order of the Bank is a nullity.
Thiagarajah v. Karthigesu, (1966) 69 N.L.R. 73.
Perera v. The People’s Bank, (1975) 78 N.L.R. 239.
Leo v. Land Commissioner, (1955) 57 N.L.R. 178.
The Land Commissioner v. Ladamuttu Pillai, (I960) 62 N.L.R. 169; (1960)3W.L.R. 526
Singho Mahatmaya v. The Land Commissioner, (1964) 66N.L.R. 94.
16) Healey v. Minister of Health, (1955) 1 a8 221; (1954) 3 W.I .R 222; (1954)2AIIE.R. 580.
Barnard v. National Dock Labour Board, (1953) 2 Q.B. 18; (1953)1AH E.R. 1113;(1953) 2 W.L.R. 995.
Ibeneweka v. Egbuna, (1964) 1 W.L.R. 219; 108Sol. Jo. 114.
Imperial Tobacco Co. Ltd. v. Attorney-General. (1979) 2 W.L.R. 805; (1979)2AIIE.R. 592.
Attorney-General v. Sabaratnam, (1955) 57 N.L.R. 481.
Anisminlc v. Foreign Compensation Commission, (1959) 2 AC. 147; (1969)2 W.LR. 163; (1969) 2 All E. R. 1128.
Ex parte Jolliffe, (1873)42 L.J.Q.B. 121.28L.T. 132, (1873) L.R. 8 Q.B. 134.
Application of A. W. Shaw (1860-62) Ram. Reps. 118.
In the matter of the application of John Ferguson, (1874) 1 N.L.R. 181.
King v. Samaraweera, (1917) 19 N.L.R. 433
(10) Attorney-General v. Chanmugam, (1967) 71 N.L.R. 78.
(17) Dyson v. Attorney-General, (1911) 1 KB 410.
APPEAL from a judgment of the Court of Appeei reported in (1980) 2 Sri l_R. 11.
V. S. A. PuHenayagam. with F. Mustapha. Miss M. Kanapathipillei and Miss D.IMjesundera, for the plaintiff-appellant.
H. L. de SUse, with S. Snares*. J. Joseph and A 0. deAlwis, for the defendant-respondent.
Cur. adv. vult
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Ranasinghe v. Ceylon State Mortgage Bank (Samarakoon; CJJ
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July 7,1981.
SAMARAKOON, C. J.
This Court has granted the plaintiff-appellant leave to appeal ona question of law. The facts are as follows:
One Sunil Subasiri Abeysundera was at one time the owner ofthe premises described in the schedule to the plaint. It was sold inexecution of a hypothecary decree entered against him and waspurchased by the plaintiff at the public auction held in executionof the decree. Subsequently Abeysundera made an applicationto the People's Bank requesting the bank to acquire the propertyunder the provisions of Part VIII of the Finance Act, No. 11 of1963, The plaintiff objected to this application on the ground thatthe bank was not empowered to acquire the property andtherefore such acquisition would contravene the provisions ofsection 71 (2) (b) of the said Act. We are informed that thereafterthe bank took no steps to proceed with the matter. In the year1968 Abeysundera took advantage of the provisions of Act 33of 1968 which amended the State Mortgage Bank Act, No. 16of 1931 (Cap. 398), and made an application for the redemptionof the said property. The plaintiff objected to this application too,stating that the bank was precluded from entertaining the saidapplication by reason of the provisions of section 70 (B) (2) (1)
of the Act and the provisions of section 10 (B) (2) (1) (a) ofthe Act because Abeysundera was in receipt of an income of overten thousand rupees during the 3 years immediately preceding hisapplication, which fact disqualified him from relief under the Act.Nevertheless the bank made a determination to redeem theproperty. The plaintiff then instituted this action in the DistrictCourt against the bank challenging its power to make such adetermination. An issue which challenged the jurisdiction of theDistrict Court to hear and determine this action raised by the bankwas taken up for hearing as a preliminary issue and the DistrictJudge ruled against the bank. On appeal to the Court of Appealthat Court held that the District Court had no supervisoryjurisdiction over the decision of the bank and allowed the appeal.The Court of Appeal was of opinion that the proper remedy wasto invoke the supervisory jurisdiction of the Supreme Court byway of writ of certiorari as the original Court cannot by means ofa declaratory order review the decisions of inferior bodies unlesssuch power is expressly conferred by statute.
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At the hearing counsel for the bank submitted that theprovisions of section 70 (B) (5) of the Amending Act No. 33 of1968 precluded the District Court from entertaining the action.That section reads as follows:
"(5) No civil court shall entertain any action —
in respect of any matter which is pending before thebank relating to any acquisition to be made underthis Chapter; or
in respect of the validity of the procedure followedby the bank relating to such acquisition, or to thevalidity of such acquisition.”
Sub-section 6 of this section provides that the question whetherany premises which the bank is authorized to acquire should orshould not be acquired shall be determined by the bank whichdetermination is final and conclusive and shall not be called inquestion in any court. We are not called on at this stage to decideany question with regard to the finality of the decision of thebank. The submission of counsel of the bank only involves theapplication of sub-sections (a) and {b) of the section. It iscommon ground that pursuant to the determination of the bankthe Minister of Finance by Vesting Order No. 9 of 14.07.1970published in Government Gazette No. 14,914/9 of 16.07.1970vested the property in the bank. At date of action proceedingsbefore the bank were complete and the matter was not pendingbefore the bank. The provisions of section 70 (B) (5) (a) aretherefore not relevant now. The provisions of section 70 (B) (5)
are also not applicable. The validity of the acquisition can onlybe questioned by a properly constituted action to question thevesting by the Minister of Finance. The bank took no action to,and in fact, could not, vest the property in itself. Furthermore thequestion that arises now for decision is not a matter concerningprocedure but a fundamental question as to whether the propertywas one which the bank was authorized to acquire. If the bankhad no power to determine to acquire the property in questionacquisition is of no effect in law to vest title in the bank. Theprovisions of section 70 (B) (5) cannot avail the bank now.
Counsel for the respondent contended that the District Courthad no jurisdiction to entertain this application as it invoked an
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appellate jurisdiction which the District Court clearly did notpossess. Section 217(G) of the Civil Procedure Court permits aDistrict Court to "declare a right or status”, "without affordingany substantive relief or remedy". Jurisdiction is conferred by theprovisions of the Courts Ordinance (Cap. VI). Section 62 of thatOrdinance, which is only a re-enactment of the Charter of 1833,
confers on District Courts "original jurisdiction in all civil
mattersand in any other matter in which jurisdiction has
heretofore been, is now, or may hereafter be given to the DistrictCourts by law". This dispute in this case is purely a civil matterconcerning a dispute arising out of a denial of a right to propertywhich gives a cause of action within the meaning of section 5 ofthe Civil Procedure Code. The District Court therefore had rightlyentertained this application. Whether it should grant such adeclaration is quite another matter. The limitations upon suchdeclaratory power are dealt with in the judgment of Fernando,S. P. J. in Thiagarajah v. Karthigesu (1).
Lastly it has been contended that the District Court cannotgrant the declaration prayed for in the plaint because it has nosupervisory jurisdiction to seek to remedy a judicial or quasijudicial determination made by a Statutory Authority—in thiscase the bank. The Court of Appeal has upheld this contention. Ithas followed the decision in Perera v. The People's Bank{2). Thefacts of the case are as follows: The plaintiff-appellant in that casewas the title-holder by purchase of a land sold on a hypothecarydecree against the 3rd defendant-respondent. The 2nd defendant-respondent was the Secretary of the Land Redemption Branch ofthe People's Bank. The bank acting under the provisions of section71 of the Finance Act, No. 11 of 1963, was satisfied that the landwas sold or transferred in terms of,* and subject to the limitationslaid down by, that section. It therefore notified the plaintiff -appellant of its decision. The plaintiff-appellant instituted anaction in the District Court of Colombo praying for a declarationthat the bank had no authority to make the proposed acquisition.A preliminary issue had been raised as to whether the Court hadjurisdiction to try the case because the remedy was by way of writand not by way of declaration in a regular action. The trial Judgehad decided against the plaintiff-appellant. The appeal was heardby three Judges of the Supreme Court. Sirimane, J. was notdisposed to follow the English practice. He held that the"appropriate remedy (was) by way of certiorari and not by regularaction". His reasoning is as follows:
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"In cases such as this where a statutory authority actsjudicially in arriving at a determination in terms of that statute,I am of the view that where it is sought to question or challengethe validity of such determination the appropriate (and notmerely the more appropriate) remedy is by way of writ ofcertiorari. Even apart from the fact that the Court isundoubtedly exercising a supervisory jurisdiction in suchmatters, the declaratory action in this country is not aprocedure that is conducive to an expeditious decision of such adispute. When the legislature entrusts a statutory authority tomake determinations in accordance with that statute for thepurpose of achieving the aims for which such statute wasenacted, it is essential that any dispute touching such adetermination should be expeditiously disposed of one way oranother so that such authority may act or refrain from actingin such matters. If however such statutory determinations aremade the subject of a regular declaratory action the inevitabledelay in such a procedure may well completely defeat thepurposes of such statute. The instant case affords a goodexample of such a situation. The determination that is beingquestioned in this case was meant by the terms of the statuteunder which it was made to enable a debtor in difficultcircumstances to redeem through the People's Bank hisproperty that was sold against him on a mortgage decree. Theproperty in this case was sold about 24.05.61 and in consequenceof a determination under the Finance Act 11 of 1963 thisaction was filed in April 1964 and the preliminary issue decidedin the District Court in February 1970. We are now in 1975-over 11 years after the action was instituted. The remedy byway of writ on the other hand would be much more expeditious.I am therefore in respectful agreement with the decisionfollowed by the learned Trial Judge above referred to that theappropriate remedy of the plaintiff was by way of an applicationfor a writ of certiorari."
From this statement I deduce two basic reasons:
The District Court is "undoubtedly exercising asupervisory jurisdiction".
A declaratory action causes undue delay and thereforeprevents expeditious disposal of the dispute. The remedyby way of writ of certiorari "would be much moreexpeditious".
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For these two reasons he concludes that the remedy by way ofcertiorari is the appropriate (and not merely the more appropriate)remedy. In this context the use of the word "appropriate" canonly mean "proper" or "suitable". One cannot but concur withthe second reason in the light of the facts of that case. But is it nota statement of policy? I know of no law in Sri Lanka which statesthat the expeditious disposal of a case should guide a litigant indeciding the form in which and the Court in which his actionshould be filed. Nor does the law state that such considerationsshould guide a court in deciding whether it is to entertain anaction or not. If prudence be the guide, then no doubt suchconsiderations will hold sway. The law does not however lay downsuch a condition. This second reason of Sirimane, J. is therefore astatement of policy applicable to the administration of justice.It is not a statement of the law.
The first reason given by Sirimane, J. has not been amplifiedand we do not therefore have the benefit of the reasoning behindit. However there is a clue to it in that he states the District Judgewas "right in answering the preliminary issue against the plaintiff-appellant" following the decisions in three earlier cases, it isnecessary therefore to examine these earlier cases.
The first of these cases is the case of Leo v. Land Commissioner
. There the Land Commissioner purporting to act under theprovisions of the Land Redemption Ordinance, No. 61 of 1942,which empowered him to redeem agricultural property sold on ahypothecary decree, sought to acquire premises which consisted of"a substantial dwelling house, a brick wall, a temporary latrine anda garden containing 181 coconut trees and several plantainbushes." The purchaser had made considerable improvements tothe premises at a cost of Rs. 20,000 to render it fit for residenceby him. The Supreme Court held that it was manifestly notagricultural land and therefore the Land Commissioner had actedin excess of his jurisdiction. The order was quashed by writ ofcertiorari. The application in Leo's case was for a writ of certiorariwhich is clearly a supervisory jurisdiction. There is no statement inthe judgment which categorically deals with the applicability oravailability of a mere declaratory decree nor even a discussion ofthe subject. However I find a statement which seems to suggestthat another remedy has to be resorted to when the disputeevolves round a question of fact about which there is a conflict ofevidence. Gratiaen, J. states at page 182:
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" If upon the facts, the excess of jurisdication is manifest, orif the evidence before the superior Court is plainly insufficientto justify a conclusion that the limited jurisdication has notbeen exceeded, certiorari will lie. On the other hand, thedispute may turn on a question of feet about which there is aconflict of evidence: in that even the Court will generallydecline to interfere by way of certiorari leaving it open to theaggrieved party to challenge the jurisdication of an inferiortribunal in a regular action where the issue can be moreconveniently disposed of."
He does not however refer to a declaratory decree.
The next case is the Privy Council decision in LadamuttuPillai v. The Land Commissioner (4). The plaintiff in this casesought a declaration in the District Court of Colombo that theLand Commissioner had no power to acquire the land which wasthe subject of the dispute as he was a bona fide purchaser forvalue. He also asked for an injunction restraining the LandCommissioner from acquiring the land. The District Judge has inhis answer to issue 4 stated that "the question of law whether theLand Commissioner had authority to acquire a particular land issubject to review by the District Court but his decision on facts isfinal". The Privy Council ordered the restoration of the Order ofthe District Court and the dismissal of the action because it heldthat on the facts established the land could be acquired under theprovisions of the Land Redemption Ordinance. In regard to theconstitution of the action it had this to say:
"While their Lordships must reserve their opinion upon thequestion (which in view of the conclusions reached by theirLordships does not immediately arise) as to whether incircumstances such as those in the present cause any injunctionagainst the Attorney-General could or ought to be granted theirLordships consider that if the authority of a Land Commissionerto make a determination under section 3 of the LandDevelopment Ordinance is challenged the appropriate procedureis by way of an application for certiorari (see Leo v. LandCommissioner (1955) (57 N.L.R. 178)). The Land Commissioneras the judicial tribunal the validity of whose action is beingtested may then conveniently be brought before the higherCourt so that if necessary his decision or order may be broughtup and quashed. If in some particular case it can be shown that
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a determination has not been within the competence of a LandCommissioner and if an application is made which results in anorder to bring up and quash his determination then thedifficulties which the present proceedings bring into reliefare avoided. It was Mr. Amarasinghe who was the LandCommissioner in July, 1949, when these proceedings began andwhose proxy was filed and on whose behalf an answer waspresented. If a declaration were now to be made—who wouldbe bound? If an injunction were to be granted—who would beenjoined?"
The case of Leo v. The Land Commissioner has been cited as anexample of "appropriate procedure". As stated above that casedid not decide that certiorari was the only procedure or that anaction for a declaratory judgment was not open to the plaintiff.The Privy Council refers to the fact that an injunction ordeclaration would be of no value due to the fact that theincumbent in the office of Land Commissioner had changed sincethe action was instituted, and therefore if it became necessary tobring up and quash the decision or order of the Land Commissionerthe only way it could conveniently have been done was by way ofa writ of certiorari as was done in the case of Leo v. LandCommissioner. The decision of the Privy Council is no authorityfor the proposition that it cannot in a case such as this adopt asupervisory jurisdiction by way of a declaratory decree.
The third case is the case of Singho Mahatmaya v. The LandCommissioner (5). This was also instituted against the LandCommissioner seeking a declaration that a land depicted in PlanNo. 86 dated 14.7.1946 was not liable to be acquired in terms ofthe provisions of the Land Redemption Ordinance. The DistrictJudge upheld an objection taken by the respondent that theaction cannot be maintained as it had been instituted against theLand Commissioner nomine officii. The Supreme Court approvedof this ruling but decided the appeal on another matter whichquite apparently was not the matter on which the appeal wasmade to the Supreme Court. G. P. A. Silva, J. in delivering thejudgment of the Court stated that in Ladamuttu's case the PrivyCouncil had ruled that "if the authority of the Land Commissionerto make a determination under section 3 of the Land RedemptionOrdinance (mistakenly called the Land Development Ordinance) ischallenged the appropriate procedure was by way of an applicationfor certiorari. They did not say that certiorari was the more
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appropriate procedure". Silva, J. therefore concluded that theappellant could not in any event maintain the action. As pointedout earlier, this is an erroneous view as the Privy Council did notin Ladamuttu's case say that the only course open to an aggrievedparty was by writ of certiorari. It only pointed to the mostconvenient course that could be adopted for the purpose ofachieving an effective order leading to a finality in the dispute. Inview of what I have stated above I am unable to agree with thecontention that the authorities cited support the proposition thatonly a remedy by certiorari is available to the plaintiff.
The Court of Appeal does not deny the plaintiff's right to seeka declaration but states the declaration sought by him cannot begranted because it seeks to review a decision of a StatutoryTribunal. Such a supervisory power, in the opinion of the Court ofAppeal, can only be exercised if expressly conferred by "specificstatutory provision". The dictum of Morris, L. J. in the case ofHealey v. Minister of Health (6) at 231 is-cited as authority forthe proposition. The facts of the case are as follows:By a letterdated December 31, 1952, written by the Minister of Health tothe plaintiff, who was a shoemaker employed by the MorgannwgHospital Management Committee, the Minister determined,pursuant to Regulation 60 of the National Health Service(Superannuation) Regulations, 1950 that the plaintiff was not amental health officer within the meaning of the regulations. Theplaintiff in his action sought from Court a declaration "that hewas, and at all times had been, a mental health officer withinthe meaning of the regulations". The Court held that what theplaintiff was seeking to do was to induce the Court to substitute itsdeclaration in place of the declaration made by the Minister. Allthree Judges were ^clearly against making such a declaration.Denning, J. at page 227 stated –
"The plaintiff's object is clear: he is seeking in theseproceedings to get the court to say that the Minister's decisionwas wrong. It was wrong, he says, either in law or in fact orin both, but it was certainly wrong; and that is a ground for thecourt making a declaration saying what the right order shouldhave been."
At page 228 he gave his reasons as follows:
"The relief which is sought does not include a declarationthat the Minister's determination was invalid. It seeks only a
CARanasinghe v. Ceylon State Mortgage Bank (Samarakoon, CM 131
declaration that the plaintiff is and was a mental health officer.It is obvious that if the court were to consider granting thisdeclaration it would have to hear the case afresh. The plaintiffwould have to give evidence showing how he spent his time andthe Minister would have to be allowed to give evidence inanswer to it. In short the court would have to re-hear the verymatter which the Minister has decided. If the court were toembark on a re-hearing of this sort there is no telling where itwould stop. Every person who was disappointed with aMinister's decision could bring an action for a re-hearing. Thatwould be going much too far. Suppose that the court didre-hear the matter and decide in the plaintiff's favour, and didgrant the declaration for which he asks, what would happen tothe Minister's decision? So far as I can see, it would still standunless the Minister chose of his own free will to revoke it.There would then be two inconsistent findings, one by theMinister and the other by the court. That would be a mostundesirable state of affairs. In my opinion, if the court were toentertain this declaration, it would be going outside its provincealtogether. It would be exercising a jurisdiction to “hear anddetermine" which does not belong to it but to the Minister."
Morris, J. expressed himself thus at page 230:
“It seems to me clear that what is claimed in the statement ofclaims is a review, by way of appeal, of the decision of theMinister. The court is being asked to decide a question whichby regulation 60 is to be determined by the Minister. The courtis not asked to revoke the Minister's determination and if thecourt made a declaration as asked then the fate of the Minister'sdetermination might remain obscure. In substance what isundoubtedly sought, however, is a declaration binding on theMinister which would reverse his previous decision. This canonly mean that the plaintiff is seeking to appeal from theMinister. His action and his claim can have no other significanceor intention."
Parker, J. pointed out at page 232 that the "issue to be tried iswhether, the Minister having made a determination, this court hasjurisdiction by declaration, not to declare that his determinationis null and void or that it should be quashed, but to make anotherdetermination and one in the opposite sense to that made by theMinister." He held that the court had no such jurisdiction. Headded—
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"To hold otherwise would be to invest the court with anappellate jurisdiction, as opposed to a supervisory jurisdiction,which it certainly has not got. A right of appeal is the creatureof statute, and the regulations give no right of appeal."
Parker, J. makes a clear distinction between an appellatejurisdiction and a supervisory jurisdiction. He was there notdealing with a supervisory jurisdiction and the case is therefore notof any assistance in deciding the present case in which the solecontention is that the District Court of Kandy had no jurisdictionto make a supervisory order by way of a mere declaration. There isno doubt that our District Courts do not have a general appellatejurisdiction from a decision of a tribunal. Such a jurisdiction canbe exercised only if granted by Statute. Instances of such appellatejurisdiction are to be found in section 41 of the Rural CourtsOrdinance (Chapter 8), section 12 (5) of the Trade Marks Ordinance(Chapter 150), section 16 of the Trade Unions Ordinance (Chapter138) and section 30 of the Estate Duty Act, No. 13 of 1980.
Sirimane, J. states that the law in England on this matter is notclear, and he therefore steered clear of English precedent. TheHigh Court in England possesses both an original and a supervisoryjurisdiction. However the law in England does recognise a nakeddeclaratory order. Denning, L. J. in Barnard v. National DeckLabour Board (7) had no doubt that the English Courts did havethe power "to interfere with the decisions of Statutory Tribunals"by way of declaration. At page 41 he states thus:
"I think that there is much force in Mr. Pauli's contention; somuch so that I am sure that in the vast majority of cases thecourts will not seek to interfere with the decisions of statutorytribunals; but that there is power to do so, not only bycertiorari, but also by way of declaration, I do not doubt. Iknow of no limit to the power of the court to grant adeclaration except such limit as it may in its discretion imposeupon itself; and the court should not, I think, tie its hands inthis matter of statutory tribunals. It is axiomatic that when astatutory tribunal sits to administer justice, it must act inaccordance with the law. Parliament clearly so intended. If thetribunal does not observe the law, what is to be done? Theremedy by certiorari is hedged round by limitations and maynot be available. Why then should not the court intervene bydeclaration and injunction? If it cannot so intervene, it would
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mean that the tribunal could disregard the law, which is a thingno one can do in this country.'
In the case of Ibeneweka v. Egbuna (8), the plaintiffs asked fora declaration of title to land against defendants who, until the suitwas instituted, had done nothing to dispute that title. Theyhowever put the plaintiff to proof of his title and the trial Judgefound, that they were championing the rights of those notrepresented, on which basis the case was fought, and that theunrepresented parties were in reality fighting the suit. The PrivyCouncil held that a declaration of title in plaintiff's favour wasproperly entertained and granted. At page 224 the Privy Councilstated—
"The general theme of judicial observations has been to theeffect that declarations are not lightly to be granted. The powershould be exercised "sparingly", with "great care and jealousy",with "extreme caution", with "the utmost caution". These areindeed counsels of moderation, even though as, Lord Dunedinonce observed, such expressions afford little guidance forparticular cases. Nevertheless, anxious warnings of this characterappear to their Lordships to be not so much enunciations oflegal principle as administrative cautions issued by eminent andprudent judges to their, possibly more reckless, successors.After all, it is doubtful if there is more of principle involvedthan the undoubted truth that the power to grant a declarationshould be exercised with a proper sense of responsibility and afull realisation that judicial pronouncements ought not to be'issued unless there are circumstances that call for their making.Beyond that there is no legal restriction on the award of adeclaration. "In my opinion", said Lord Sterndale M. R. inHanson v. Raddiffe U.D.C. (1922) 2 Ch. 490, 507; 38 T.L.R.667, CA.) "under Order 25 r.5, the power of the court to makea declaration, where it is a question of defining the rights oftwo parties, is almost unlimited; I might say only limited byits own discretion. The discretion should, of course, beexercised judicially, but it seems to me that the discretion isvery wide."
In the case of Imperial Tobacco Co. Ltd. v. Attorney-General (9)it transpired that the plaintiff had started a "Spot Cash"advertising scheme to promote the sale of their cigarettes. Prizeswere offered to be won. The Director of Public Prosecutions
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launched a prosecution against the plaintiff on the basis that thescheme was an unlawful lottery. The plaintiff sought a declarationfrom Court that it was not a lottery. The Court of Appeal heldthat such a declaration was rightly granted in spite of the pendingprosecution as there was "a really debatable question ofconstruction on which it is desirable that an authoritative rulingshould be speedily obtained". In England the power to grantdeclarations is contained in Order XXV Rule 5 of the Rules of theSupreme Court 1883. It reads as follows:
"No action or proceeding shall be open to objection on dieground that a mere declaratory judgment or order is soughtthereby, and the Court may make binding declarations of rightwhether any consequential relief is or could be claimed or not."
Section 217 (G) of the Civil Procedure Code enacted in 1889permits a declaratory judgment without granting any substantiverelief or remedy. Both provisions permit a naked declaratoryjudgment. There is no doubt, as pointed out by Fernando, S.P.J.in Thiagarajah v. Karthigesu (1) at 79, that our legislature intendedto adopt the English Law contained in Order XXV Rule V. Inthat case a mere declaration of status was granted to plaintiff.Declaratory actions are common in modern times. Such an actionwas the only remedy available against the Crown in imperial timesand is so, with some limitation, against the State today, "and Courtsof Justice have always assumed so far without disillusionmentthat their declaratory decrees against the Crown will berespected"—perGratiaen.J. in Attorney-Generalv.Sabaratnam{")."The essence of a declaratory judgment is that it states the rightsor legal position of the parties as they stand, without changing themin any way; though it may be supplemented by other remedies insuitable cases." (Wade, Administrative Law, Ed. 4, page 499)."A declaratory judgment merely states in authorative fashion thelegal position of the parties in a given situation, without any orderto do or not to do anything. Since there is no demand forobedience, no execution can ensue; the declaration is a basis forfuture action by the parties. Each of them is free to disregard it,though in practice, in most cases, if a party does not conform hisconduct to it, he will lay himself open to some coercive remedyat the instance of the other party. Yet a declaratory judgmentcannot be executed as such because there is nothing in it toexecute." (Remedies of English Law by Lawson, page 30). Suchjudgments and orders bear fruit only if those who are adversely
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affected by them choose to respect them and act accordingly.Besides certain limitations that Judges usually observe, and shouldobserve in exercising their discretion to make a declaration, (videThiagarajah v. Karthigesu (supra) ), there are no other limitationsthat can be considered. It is now stated that there is a limitationin that "supervisory orders" cannot be made because a DistrictCourt has no jurisdiction to do so. "Supervisory Orders" is not alegal term but a convenient expression used by lawyers and Judgesalike to denote cases where orders are made invalidating the orderor judgment of another tribunal such as quashing orders by way ofwrit of certiorari or prohibition. "Supervisory Order" is not aterm that can be applied to a declaration under the provisions ofsection 217 (G) Civil Procedure Code because there is no order inthe first place, and secondly, it has no teeth and is therefore notone that the machinery of the law could enforce. "Supervisory"in reference to a declaratory judgment is a loose term to describethe function of review which is a process that must necessarilytake place before a court pronounces upon the legality or otherwiseof a decision of a body such as an inferior tribunal. Such anexercise is not forbidden by law.
Vythialingam, J.( while agreeing with Sirimane, J. in Perera v.Peoples' Bank (supra), has advanced an additional reason. Hestates that District Courts have not been granted supervisoryjurisdiction because they are courts of record and not superiorcourts. Supervisory jurisdiction if granted to District Courts aregranted by means of an appellate jurisdiction expressly providedfor in the statute, even though they are not superior courts ofrecord. No other supervisory jurisdiction is granted either expresslyor impliedly in law. If however he intended to refer to "supervisory"in the sense of "review" which is a preliminary step to a nakeddeclaration, I need only say that the law does not either expresslyor impliedly prohibit it.
An argument was addressed to us based on the provisions ofsection 23 of the Interpretation (Amendment) Act, No. 18 of1972. it was contended that the District Court was prohibitedfrom making the declaration sought by the plaintiff on the groundthat the dispute arises "out of or in respect of or in derogation ofany order, decision, determination, direction or finding which anyperson, authority or tribunal is empowered to make or issue underany written law". The attack in this case is on the very jurisdictionof the bank and hence that is was not empowered to make the
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impugned order. If that be so the order of the bank is a nullity.Anisminic v. Foreign Compensation Commission (11).
I am of opinion that the appellant is entitled in law to maintainthis application for a declaration. The appeal is allowed with costs.
ISMAIL, J.—I agree.
SHARVANANDA, J.-l agree.
WANASUNDERA, J.-I agree.
WIMALARATNE, J.
I regret that I have to dissent from the conclusion arrived at by MyLord the Chief Justice on the answer to the question as to whetherour District Courts have jurisdiction to declare the decision of astatutory body null and void. The statutory body in this case isthe State Mortgage Bank, and the decision is one made by it byvirtue of powers vested under section 70B (1) of the Ceylon StateMortgage Bank and Finance (Amendment) Act, No. 33 of 1968.That section authorised the bank to acquire any agricultural,residential or business premises if the bank was satisfied that thosepremises were, at any time not earlier than 1.1.52, sold in executionof a mortgage decree or were transferred in the circumstancesspecified in the section, and subject to the limitations laid downtherein. The circumstances under which the bank made the decisionto acquire the premises belonging to the plaintiff are set out in thejudgment of the Chief Justice, and it is unnecessary for me torepeat them.
The plaintiff is seeking in these proceedings before the DistrictCourt to get that Court to say that the bank's decision was wrong,either in law or in fact or in both, and that that is a ground for thecourt making a declaration saying that the decision has no forceor effect in law. For this purpose the plaintiff, invokes theprovisions of section 217 (G) of the Civil Procedure Code, whichreads as follows:
"217. A decree or order of court maywithout affording
any substantive relief or remedy—
(G) declare a right of status."
The learned District Judge answering a preliminary objection tojurisdiction, held that he had the jurisdiction to grant the decree
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asked for. The Court of Appeal by its judgment dated 6.3.80 insetting aside that finding, has taken the view that only a courtwhich exercises supervisory jurisdiction has the power to declarethe decision of a statutory body null and void: and that as ourDistrict Courts are not vested with supervisory powers overstatutory tribunals, they have no power to grant the declarationasked for. In reaching this conclusion the Court of Appeal hasbeen guided by a decision of the former Supreme Court in V. I.Perera v. The People's Bank (2). In the course of his judgment inthat case D. Q. M. Sirimane, J. observed (at p. 244) that "wherea statutory body acts judically in arriving at a determination interms of the statute, I am of the view that where it is sought toquestion or challenge the validity of such determination, theappropriate (and not merely the more appropriate) remedyis by way of certiorari". Vythialingam, J. in the course of hisjudgment, expressed the same view thus (at p. 253): "The DistrictCourt has no jurisdiction to grant a declaration in cases where it issought as a supervisory remedy to challenge the validity of ajudicial or quasi judicial act."
It does not appear from the proceedings that leave to appeal tothe Supreme Court was asked for from the Court of Appeal, nordoes it appear that that Court has granted leave to appeal. It wasby petition and affidavit dated 23.3.80 that the plaintiff asked forspecial leave from the Supreme Court. The Supreme Court hasgranted special leave by order dated 11.6.80.
In challenging the correctness of this decision, learned Counselfor the plaintiff appellant has contended before us that both theCourt of Appeal in the present case and the former Supreme Courtin Perera's case (above) have fallen into the error of classifying thejurisdiction exercised by the District Court as supervisory. Hesubmits that when a District Court enters a decree declaring a rightor status it exercises an original jurisdiction, even though in theprocess the Court may have to "review" the correctness of thedetermination of a statutory body or tribunal. The only limitationto the granting of such a declaration is the discretion vested in theCourt. Such a declaration is a harmless one, and is one made in the*exercise of the Court's original civil jurisdiction.
Learned counsel for the respondent bank has contended, on theother hand, that the District Court would be exercising asupervisory, and not an original jurisdiction when it declares the
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decision of a statutory body null and void, and that our DistrictCourts have not been vested with such supervisory jurisdiction.He submits that to ascertain the jurisdiction of an inferior courtone has to look at the founding statute, in this case the formerCourts Ordinance (Cap. 6). Section 62 gave the District Courtunlimited original civil jurisdiction, the only limitation being aterritorial one. Nowhere were they given a supervisory jurisdictionover statutory tribunals or other bodies exercising judicial or quasijudicial functions. In contrast, section 7 of the same foundingstatute designated the Supreme Court as the only superior court ofrecord, and by section 42 gave it full power to grant and issueaccording to law mandates in the nature of writs of mandamus,quo warranto, certiorari, procedendo, and prohibition, against anyDistrict Judge, Commissioner (of Requests), Magistrate or otherperson or tribunal. The only superior court being the SupremeCourt, the District Court in his submission, is an inferior court asfar as jurisdiction is concerned, and an inferior court can neverexercise supervisory jurisdiction except when the legislaturespecifically provides for it. It is only a superior court that hasinherent jurisdiction. An inferior Court has no inherent jurisdiction;its only jurisdiction is that vested in it by the statute creating it.
In the case of Ladamuttu Pi/lai v. The Land Commissioner (4),the Privy Council observed that "if the authority of the LandCommissioner to make a determination under section 3 of theLand Redemption Ordinance is challenged the appropriateprocedure is by way of an application for certiorari". Sirimane, J.has accepted that as a correct statement of the law. My Lord theChief Justice in his judgment, however, takes the view that "thatdecision of the Privy Council is no authority for the propositionthat it (the District Court) cannot in a case such as this adopt asupervisory jurisdiction by way of a declaratory decree". Indisagreeing with Vythialingam, J., the Chief Justice takes the viewthat the law does not expressly or impliedly prohibit the DistrictCourt from exercising a power of review. I regret I have to disagreefor the reason that section 217(G) of the Civil Procedure Codedoes not, in my view, empower a District Court, to "review"and/or declare as null and void the decision of a statutory body.
In this connection some important and fundamental distinctionsbetween superior and inferior courts have at the inception to benoted. A superior court is a court having inherent jurisdiction toexercise a power, whereas an inferior Court is a court whose
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jurisdiction and powers are limited to those matters or thingswhich are expressly deputed to it by its document of foundationor by legal custom —Stroud's Judicial Dictionary (1974), Vol. 5,p. 2685, 6. The presumption against ousting the jurisdiction of acourt is applicable only to a superior court—Maxwell—Interpreta-tion of Statutes (12th Ed.) 153; S. A. de Smith— Judicial Reviewof Administrative Action (4th Edition) 358. The reverse applies toan inferior court, that is that you must conclusively establish thatthe Court is vested with jurisdiction over the matter in question.Consequently it follows that a court has no power to make adeclaration on a subject relief in respect of which is beyond thejurisdiction of that court—Halsbury's Laws of England (4th Ed.)P- 171 para 185. When our Civil Procedure Code, by section 839,saved the inherent powers of the District Court to make suchorders as may be necessary for the ends of justice or to preventabuse of the process of Court, it did not vest any additional powerto act in excess of the District Court's jurisdiction as laid down inthe founding statute.
Both Sirimane, J. and Vythialingam, J. have, in support of theiropinions, made several references to Dr. I. Zamir's work on "TheDeclaratory Judgment (1962)". In the case of Thiagarajah v.Karthigesu (1), H. N. G. Fernando, S. P. J. (as he then was) has"freely borrowed" extracts from Zamir, which he has categorisedas "a comprehensive and very helpful study of Fnglish cases". Thiswork of Zamir has been referred to by such eminent jurists asS. A. de Smith and F. H. Lawson. This is what Zamir has to say,at p. 69:
"The jurisdiction of the superior courts to make a declarationis two fold: Original and supervisory. The original jurisdiction maybe invoked for the. determination of disputes at first instance; thesupervisory jurisdiction is exercised to review decisions arrived atby other bodies. In many cases the Courts have both original andsupervisory jurisdictions. Accordingly, upon a particular issue theymay be resorted to either in the first instance, or if the issue hadalready been decided by another body, for a review of thatdecision". As there has been some criticism of this statement, it isnecessary, in order to test its correctness, to trace in brief outlinethe history of the development of the declaratory judgment inEnglish Law.
The declaratory judgment had its origin in the Chancery Courtin the middle of the 19th Century as a means of construing wills
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and trust deeds. It gained full recognition in the field of privatelaw in the early part of the 20th century* and today declarationsare issued concerning matters of personal status, title to property,construction of contracts and other written documents. Its entryinto the field of public law has been comparatively recent and ithas been utilised by the citizen as a means of’challengingadministrative acts and decisions which he claims to be unlawful.It would seem that both the Court of Chancery as well as theCourt of Exchequer had always had, as part of their inherentpowers, the jurisdiction to make declarations of right not followedby consequential relief. The reluctance of the courts to promotethe development of the declaratory order led Parliament to enactthe Chancery Act of 1850 and the Chancery Procedure Act of1852, which made it lawful for the High Court of Chancery tomake binding declarations of right without granting consequentialrelief. As a result of the narrow interpretation of these statutes bythe Courts, the declaratory relief was still unavailable where it wasmost needed, namely, where no other remedy was available. Theextension of the scope of the declaratory order by the SupremeCourt of Judicature Act, 1873, was therefore a notable landmark.This Act transferred the jurisdiction of the superior courts ofcommon law and equity to the High Court, and empowered a RuleCommittee to make rules regulating the practice and procedure ofthe Court. It is to be noted that the Rule committee had nopowers to extend the jurisdiction of the Court—de Smith, p. 481.It had, by virtue of sections 16 and 23 of the Judicature Act, onlythe power to make rules for practice and procedure with respectto all matters over which the Supreme Court had jurisdiction. Byvirtue of such powers, Rules were made in 1833. Several ordersmade provisions for relief by way of declaratory orders, the mostimportant of which was Order 25 R5, which was in the followingterms: "No action or proceeding shall be open to objection, onthe ground that a merely declaratory judgment or order is soughtthereby, and the Court may make binding declarations of rightwhether any consequential relief is or could be claimed or not'*.This order was revoked in 1962 and was replaced by Order 15 R16 with only a minor rearrangement of the wording.
The limits of the declaratory power are not laid down in thisrule and the extent of the power was left to the discretion of theHigh Court. Now, the High Court was a superior court having aninherent jurisdiction, both original and supervisory. The landmarkin the use of the declaration ir public law is the case of Dyson v.
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Attorney-General (17). Under an Act of 1910 the Commissionerof Inland Revenue was empowered to demand from landowners,under threat of penalty, factual information which could be usedin valuing their lands. The notices sent out, however, demandedadditional information. A declaration was claimed in the King'sBench against the Attorney-General. The Court of Appeal heldthat the demand was wholly ineffective in law and that theland owner was entitled to the declaration. The court in grantingthe declaration was there exercising its original jurisdiction. SinceBarnard v. National Dock Labour Board (7), it is clear law that theQueen's Courts can grant a declaration by which they pronounceon the validity or invalidity of proceedings of statutory tribunalsas well. A declaration so made would be in the exercise of thecourts inherent supervisory jurisdiction. I am fully in agreementwith the statement that declaratory actions are common inmodern times and that the scope of the declaration has beenextended to great lengths, as would be seen from the judgmentsreferred to by the Chief Justice. But it has to be remembered thatthe progressive extension of the scope of the declaratory order waspossible in England because the High Court to which resort had tobe had was a superior court and was vested with inherentjurisdiction, both original and supervisory.
Proceedings in which declaratory relief is claimed under Order15 R16 may be instituted in any Division of the High Courtbefore a single judge. Alternatively, a declaration to determine amatter of public law may be brought either alone or in combinationwith certiorari, prohibition, mandamus or a claim for damages inan application for judicial review under Order 53 rr 1 (2), 2. Theapplication for leave to apply and the application itself mustnormally be brought in the Divisional Court of the Queen's BenchDivision— de Smith, p. 523.'
County courts, unlike the High Court, have no general jurisdictionto grant either declarations or injunctions except in respect ofdisputes relating to land whose net value for rating falls withinthe monetary limits of their jurisdiction, or as ancillary reliefwhen the principal claim otherwise falls within their jurisdiction—de Smith, p. 524.
It will thus be seen that the development of the declaratoryjudgment in England to the extent it has reached, enabling thereview of decisions of statutory bodies, was possible by reason of
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the inherent original and supervisory jurisdiction exercised by theHigh Courts as superior courts. Dr. Zamir's statement of the lawreferred to earlier therefore sets out the correct position as far asthe English Law is concerned.
We may now compare the jurisdiction of our District Courtswith the jurisdiction of the High Court in England. The foundingstatute, the Charter of 1833, by section 24, as well as itssuccessor, the Courts Ordinance, No. 1 of 1889, by section 62,vested in the District Court only an unlimited Original CivilJurisdiction. The jurisdiction referred to in section 217(G) of theCivil Procedure Code was already in existence immediately beforethe Courts Ordinance came into operation on 2.8.1890. Inconferring that declaratory jurisdiction the legislature seems tohave adopted the English procedure contained in Order 25 r 5 ofthe English Rules of the Supreme Court 1883.
Like the emphasis on the word "original" in relation to thisjurisdiction placed by H. N. G. Fernando, S. P. J. in Thiagarajah'scase (above at p. /6), one has to keep in mind that the declaratorydecree can be entered by the District Court only in the exercise ofits "original” jurisdiction. Nowhere is there any investment of a"supervisory" or "appellate" Civil Jurisdiction. The SupremeCourt being designated the only superior court of record, it followsthat the District Courts are inferior courts of record. Unless it isconclusively established that they are vested with a certainjurisdiction it cannot be presumed that they have that jurisdiction.The declaratory decree which the District Court is empowered toenter is, therefore, one which can be entered only in the exerciseof its "original" jurisdiction. It is similar to the jurisdictionconferred on the County Courts to make declaratory orders withinthe limits of their monetary and territorial jurisdiction, or asancillary relief to the principal claim made within jurisdiction.Nowhere have our District Courts been given supervisory declaratoryjurisdiction. They have been vested with wide powers of originalcivil jurisdiction, and are thus able to enter declaratory judgmentswithin the scope of that jurisdiction, especially in the field ofprivate law. The case of Thiagarajah v. Karthigesu (above), istypical of the wide extent of the jurisdiction of the District Court,in the exercise of its original jurisdiction, to declare a status. Butwhere the District Court is called upon to declare the decision of astatutory tribunal a nullity it is called upon to exercise a supervisoryjurisdiction which, in my view, it does not have.
SCRanasinghe v. Ceylon State Mortgage Bank (Wimalaratne, J.)143
The next contention of learned Counsel for the plaintiff hasbeen that even if the view be taken that District Courts are notinvested by any statute with supervisory jurisdiction, yet they dohave an inherent jurisdiction to review the decisions of inferiorstatutory tribunals, like the inherent jurisdiction exercised bythe High Court in England. It would, I think, be wrong to comparethe High Court in England with our District Courts in this respect,because historically the supervisory jurisdiction was inherent inthe High Court by virtue of its designation as a superior court.This is made clear in the judgment of Cockburn, C. J. in ex parteJolliffe (12): "It is laid down in Hawkins (pleas of the Crown) andother writers of authority that the power of committing forcontempt committed in the face of the courts is given to inferiorcourts, but it is nowhere said that they have the power so topunish contempts committed out of courts.
"There is an obvious distinction between Inferior Courtscreated by statute and superior courts of law and equity. Inthese superior courts the power of committing for contempt isinherent in their constitution and has been coeval with theiroriginal institutions, and has been always exercised. The origincan be traced to the time when all the courts were divisions ofthe Great Curia Regis-the Supreme Court of the Sovereign—inwhich he personally, or by his immediate representative, sat toadminister justice. The power of the courts in this respect wastherefore an emanation from the Royal authority, which whenexercised personally, or in the presence of the Sovereign made acontempt of the Crown punishable summarily, and this powerpassed to the superior courts when they were created."
When the District Court of Kandy attempted in 1851 to issue awrit of habeas corpus without having statutory jurisdiction to doso, the Supreme Court held, in the Application of A. W. Shaw{ 13),that the District Court did not have inherent power to issue thewrit. On the other hand although prior to 1833 the SupremeCourt did have statutory powers to issue mandates in the nature ofwrits of mandamus, certiorari, procedendo and error, it did nothave statutory power to issue writ of habeas corpus. But it didissue writs of habeas corpus by virtue of its inherent powers,powers inherent only in Superior Courts.
Again when the District Court of Colombo established underthe Charter of 1833 attempted to commit for contempt ex facie,
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a Collective Court considered the jurisdiction of our DistrictCourts in the Application of John Ferguson (14), and MorganA.C.J. had this to say (at pp. 185, 187):
"Can our District Courts, then, be regarded as Superior Courtsin the sense in which the word was used in the decision lastreferred to? (i.e. Ex Parte Joliffe) Superior and inferior arerelative terms, and our District Courts undoubtedly havepowers much larger than those appertaining to English CountyCourts. It does not follow, however, that they are SuperiorCourts in the sense in which the Superior Courts at Westminsterand the High Court of Chancery are Superior Courts."
"Now District Courts cannot be regarded as Superior Courtsin this sense. It is true that they are Courts invested with veryimportant functions, and with an unlimited original civiljurisdiction within their own districts; but their jurisdiction isterritorially very limited in all cases, and in criminal matters isconfined to the trial and punishment of the lighter classesof offences. Unlike the Supreme Court and the SuperiorCourts at Westminister, a District Court has no control orsuperintendence over any other tribunal whatsoever".
The Charter of 1833 was replaced by the Courts Ordinance,No. 1 of 1890. The place of the District Courts establishedthereunder was considered in King v. Samaraweera (15), wherethey were held to be 'Inferior Courts of Record' and thus nothaving full jurisdiction to punish all descriptions of contemptsuch as the Supreme Court could exercise.
It is significant that when the legislature considered it necessaryto vest, in the District Court a right of appeal or a right of reviewit has always done so by legislation. A good illustration is providedby the repealed Rural Courts Ordinance (Cap. 8). A right of appealfrom the decision of a Rural Court was given to the District Courtby section 41(1) and a power of review was given by section 41 (6).So that unless Parliament by legislation vests in the District Courta power of review, that Court has in my view no inherentjurisdiction to review the decision of a statutory tribunal. If itdoes so, it would be acting in excess of its jurisdiction.
When we are called upon to decide whether the District Courthas jurisdiction with regard to any matter we cannot assume the
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power of making law for that purpose. It is the function ofParliament to apportion jurisdiction to the several courts setup bylegislation. We can only interpret what we find made, and interpretit in the sense we believe it to have been framed. Let me give anillustration which will make this clear. Section 13 of the CitizenshipAct (Cap. 349) empowers the Minister, if he is satisfied that anapplicant for citizenship has rendered distinguished public serviceor is eminent in professional, commercial, industrial or agriculturallife, to decide that he be registered as a citizen of Sri Lanka. It ispermissible to institute an action in the District Court seeking adeclaration of a status. Can it be said that a person would have a.right to institute an action for a declaration that he is a citizen,and in the process seek a review of the decision of the Minister notto grant him citizenship? I do not for a moment accept that thelegislature ever intended that District Courts should exercise suchsupervisory jurisdiction, and if we were to say that our DistrictCourts are empowered to do so, we would be making law in asense never intended by the legislature.
Vythialingam, J. in Perera's case (above) after analysing theearlier case law on the subject of the jurisdiction of the DistrictCourt to exercise a supervisory jurisdiction had come to theconclusion that the earlier decisions were not conclusive on thematter. A. L. S. Sirimane, J. in Attorney-General v. Chanmugam(16), appears also to have had doubts about the conclusiveness ofthe earlier decisions; so that Perera's case was the law when thelegislature enacted recently the Judicature Act, No. 2 of 1978,and the Code of Civil Procedure Act, No. 20 of 1977. If Perera'scase was not in accord with the intention of the legislature therewas ample opportunity for the legislature to have made itsintention clear when it enacted the recent legislation vestingjurisdiction in the several courts of first instance. It may beinferred, therefore, that the legislature has accepted that thedecision in Perera's case, delivered just two years earlier, hadinterpreted the law correctly with regard to this limitation in thejurisdiction of the District Court.
The answer to the question as to which of the courts of SriLanka had or has the jurisdiction to declare the decision of astatutory tribunal null and void is, in my view, contained insection 42 of the former Courts Ordinance, and now in Article140 of the Constitution of 1978. The former Supreme Court had,as much as the present Court of Appeal has, the power to issue
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according to Law orders in the nature of writs of Quo Warrantoagainst the judge of any Court, tribunal or other institution, orany other person. Now, Quo Warranto has been replaced byDeclaration and Injunction in England by Section 9 of theAdministration of Justice (Miscellaneous Provisions) Act of 1938.In Sri Lanka, therefore, it is the Court of Appeal that now has thejurisdiction to grant declarations annulling the decisions ofstatutory tribunals, both by virtue of the Constitution as well asby virtue of the inherent powers vested in it as a Superior Court.
I must not be understood as saying that the scope of thedeclaratory judgment cannot be developed in this country. It canand ought to be so developed to the extent it has developed inEngland. There seems to be no obstacle to its development in theDistrict Court, but only in the exercise of its original civiljurisdiction. The forum in which it has a bright future is theCourt of Appeal, which by virtue of its powers is vested with thenecessary jurisdiction to review the decisions of statutory bodies,and grant declarations in the process.
For these reasons I am of the opinion that although our DistrictCourts, in the exercise of their unlimited original Civil jurisdictionhave wide powers to enter declaratory decrees or orders in termsof section 217 G of the Civil Procedure Code, especially in thefield of private law, they have no jurisdiction, statutory orinherent, to review, and/or to declare null and void, the decisionsof statutory tribunals. Such powers of review of the decisions ofstatutory tribunals have always been exercised by the SuperiorCourts, namely, the Supreme Court under the Courts Ordinanceand the Administration of Justice Law, and now by the Court ofAppeal (subject, of course, to the appellate jurisdiction of theSupreme Court). I
I would, accordingly, dismiss this appeal with costs.
Appeal allowed.