Moreover, it is significant that when the 2nd Petitionerattained majority the name of the nominated successor, thatis, the 2nd Petitioner was included in the paddy lands register.This is stated by the inquiring officer in the very last paragraphof the notes of inquiry R3 where he states that “ In 1965, PaddyLand Register, the name of the nominated successor to thispermit Naga Pushanam has been included. Later, in 1968 thename of the mother of Naga Pushanam and the presentclaimant to this permit Rasamma has been included.” So that,whatever she may have done in 1968 her possession was asguardian of the 2nd Petitioner and not in her own right. More-over, it is nobody’s contention and no such procedure was everadopted, that the permit was cancelled for non-compliance withany of its provisions by the 2nd Petitioner.
The rates payable in' terms of the permit were throughoutpaid by the Petitioners as shown by Cl to C23 and by no oneelse. In his affidavit the respondent states that the paymentswere accepted on the basis that the permit holder NagamuthuMurugupillai was alive and that the payments were made on hisbehalf. This is obviously and demonstrably untrue. The receiptC13 dated 16.2.1962 for payment of rates for 1959-60-61 were saidto have been received from “ the heirs of N. Murugupillai ” andnot payment on his behalf.
It was submitted by Mr. G. P. S. de Silva, who appeared forthe respondent, that the land had now been divided into twoequal halves and permits issued to the 1st Petitioner, andWijeratne. This is stated in paragraph 6 of the respondent’saffidavit where he states that the permits were issued, on 1.3.1972.Mr. Silva submitted that mandamus will issue only for the doingof a thing and not to undo what has already been done. He reliedon the passage at page 434 of S. A. de Smith’s Judicial Review of
* [I960) 62 N.L.R. 215.
VYT HI ALINGAM, J.—Rasan.mah tr. Manamperi
Administrative Actions, First Edition, which is as follows : “ Norin general, will it lie for the purpose of undoing that which hasalready been done in contravention of statute.”
. In the. case of Mohamedu v. de Silva1 52 N. L. R. 562, Windham,
J., said at page 565, “ Secondly, the Court will not grant a manda-ipus to undo an act already done, nor will it allow the validity ofan act purporting to have been done under a statute (as thelicence in the present case purported to be issued under theButchers Ordinance) to be tried in an action for mandamus.In Ex parte Nash* (1850) 15 A. B. 95, Lord Campbell, C.J., inrefusing, to grant a mandamus commanding a railway companyto remove its seal from the register of share holders on theground that it has been irregularly fixed said ; * The writ ofMandamus is most beneficial: but we must keep its operationwithin legal bounds and not grant it at the fancy of all mankind.We grant it when that has not been done which a statute ordersto be done ; but not for the purpose of undoing what has beendone. We may upon an application for a mandamus entertain thequestion whether a corporation not having affixed its seal, bebound to do so; but not the question whether, when they haveaffixed it, they have been right in doing so. I cannot givecountenance to the practice of trying in this form questionswhether an act professedly done in pursuance of a statute wasreally justified by the statute
Ex parte Nash was the very case on which S. A. de Smithbased this statement on which reliance was placed by Mr. deSilva. But this is not an inflexible rule as is shown by the factthat de Smith continues to say “though in some situations itcan be employed to achieve such a purpose indirectly, as wherethe unlawful act is treated as a nullity and the competent autho-rity is ordered to perform its duty as if it had refused to actat all in the first place. ” In this sense mandamus has in recenttimes become “ certiorarified ” (see Kleps “ CertiorarifiedMandamus ” 1950, 2 Stamford Law Review, 285) though not tosuch an extent as in India and in some American Jurisdictionswhere it has almost ousted certiorari as the leadingadministrative remedy.
In this case what is asked for is the writ to compel therespondent to issue the permit in her favour and not to cancelthe permits issued to the 1st Petitioner and Wijeratne althoughit will “ achieve such a purpose indirectly. ” The distinctionbetween an act which is a nullity and one which is merelyvoidable was clearly brought out by the Court of Appeal in the
1 (1949) 62 N. L. R. 662.* (IS50) A. B. 95.
VYTHI ALINGAM, J.—Rasammah v. Manamperi
-case of Regina v. Paddington Valuation Officer and another-Ex-parte Peachery Property Corporation Ltd.,1 1966, 1 Law Reports
Q.B.D. 380. In that case the applicants applied for an order ofCertiorari to quash the existing valuation as being invalid in lawand for a mandamus to compel the preparation of a new list ona proper basis. This was refused.
But Lord Denning M.R. said at page 402, “ It is necessary todistinguish between two kinds of invalidity. The one kind iswhere the invalidity is so grave that the list is a nullityaltogether. In which case there is no need to quash it. It isautomatically null and void without more ado. ” The case ofRex v. The Revising Barrister for the Borough of Huxley * (1912,
R. 3 K.B.D. 518) was a case where mandamus was issued toundo what had already been done.
In that case a revising barrister for a Parliamentary borough,owing to an accident to his right hand availed himself of clericalassistance to mark upon the lists of voters the results of hisdecisions as pronounced orally in Court. By some inadvertencethe clerk omitted to strike off the lists the names of somepersons who had been successfully objected to and whose nameswere ordered by the revising barrister to be expunged. Themistake was only discovered some months after the register hadcome into operation. It was held that the Court could grantthe writs of mandumus to correct the mistake by directing therevising barrister to expunge the names previously ordered byhim to be deleted.
Channell, J., said at page 531 “ Those being the facts which Iassume, a question of some difficulty arises as to whether mistake
can be set rightthat principle is applicable
also to cases where the non performance arises from mere in-advertence, where he cannot have had his attention directed tothe matter cannot have refused upon demand to perform them. ”Darling J., quoted with approval the words of Martin B. inanother case, “ Instead of being astute to discover reasons fornot applying this great constitutional remedy for error and mis-government we think it our duty to be vigilant to apply it inevery case to which by any reasonable construction it can bemade to apply. ” (529)
In this case the new permits could only have been issued ifthe land had reverted to the Crown. As I have pointed out ithad not, because the nominated successor had complied withSection 85 and had been in possession throughout. The permithad not been cancelled under the Ordinance or surrendered bythe person entitled to it. The land was therefore not at the
1 (1966) 1L.R.Q.B.D. 380.1912 L.R. 3 K.B.D. 518.
v v-»-H rATJKflAW. J.—JRasammah v. Manamperi
disposal of the Crown and the permits in favour of the 1stPetitioner and Wijeratne were issued without jurisdiction andare a nullity altogether. On the principle enunciated by LordDenning MJt. in the Peachery’s case (Supra) Mandamus willissue.
Alternatively the permits were issued in error on the wrongpresumption that the land had reverted to the Crown and onthe basis of the principle set out in the Revising Barrister's casemandamus will issue to set the matter right.
Mr. Silva also argued that the undue delay on the' part of thepetitioners in making this application is fatal to the grant of anyrelief in their favour. Mr. de Silva relied on the case of AbdulRahuman v. the Mayor of Colombo1 (69 N.L.R. 211), where dieapplication was refused on the ground of the delay on the partof the Petitioner in making the application for a mandamus.That was an application for a butcher’s licence for the year 1965and it was refused on 16.10.1964. The application was made only' in June 1965.
"There is no express limitation for bringing the applicationexcept in relation to applications for orders of mandamus to beaddressed to quarter sessions, but unless the application is madewithin a reasonable time after the right to apply (or to demandperformance of the duty) has arisen the Court will in its dis-cretion refuse the application. The periods of delay which havecaused the Courts to exercise their discretion against applicantshave ranged from sixty five years to a few weeks.** Butundoubtedly delay, is a factor which the Court must take intoconsideration in exercising its discretion.
in this case the 2nd Petitioner had no reason to apply ordemand performance until the permits were issued in favourof the 2nd Petitioner and Wijeratne. She had applied within thestipulated period in terms of Section 85 and was in possession.The new permits were issued Only on 1.3.1972 and this applicationvras filed on 22:6.1972 and there has been no such delay as woulddisentitle her to the issue of the writ. Even if one assumes, thatshe was present at the inquiry on 9.1.1971, she could only haveapplied when she became aware of the letter ‘ B ’ and it isunlikely that the 1st Petitioner would have revealed this to herirwHll after She herself became aware of the results of the inquiryon the letter B4 dated 14.9.1971. I hold therefore that there hasbeen no such delay as to justify my refusing to exprdse my‘discretion in favour of the 2nd Petitioner.
* (1995) 69
WALPITA, J.— Rasammah v. JManamperi
The 1st Petitioner lias not a sufficient legal interest in theissue of a permit in favour of the 2nd Petitioner nor dpes therespondent have any duty towards her in regard to this. Her' application is therefore refused but in the circumstances withoutcosts.
I accordingly allow the application of the 2nd Petitioner andissue mandamus on the respondent as prayed for, in prayers (a)and (b) of the Petition. The 2nd Petitioner will be entitled to hercosts.
Walpita, J.—
This was an application for a Mandate in the nature of a Writof Mandamus ordering and directing the Respondent, Govern-?xnent Agent, Anuradhapura (a) to issue a permit under, theLand Development Ordinance Chapter 464 of the' LegislativeEnactments to the 2nd Petitioner as the nominated successor inrespect of the land held under the permit No. 138/3, (b) to issuea certified copy of the said permit and for > costs of theapplication.
The first Petitioner was the wife of one Nagamuttu Muruga-pillai of Malwathu Lane, Anuradhapura, deceased and the 2ndPetitioner is the daughter. The said Nagamuthu Murugapillaihad been in or about the year 1936 allotted lot 19 in I. S. P. P.3 in extent 3A. 3R. 2P. at Maha Nelubewa in the AnuradhapuraDistrict, and was issued permit No. 138/3 under the provisions Ofthe said Land Development Ordinance. Prior to his death on12.8.55, the said .Nagamuttu Murugapillai had nominated the 2ndPetitioner as his successor and the nomination had been dulyendorsed on the said permit in terms of the said LandDevelopment Ordinance.
The Petitioners in this petition alleged that the 2nd Petitionerwho is 27 years old now was a minor at the time of the deathof N. Murugapillai and the 1st Petitioner as the mother andnatural guardian applied by Petition dated 18.1.56 to the G, A.Anuradhapura for a permit in favour of the 2nd Petitioner asthe nominated successor. The Petitioners further stated1 that theColonisation Officer acknowledged receipt of that, application andreplied by letter marked B' that thereafter the 1st Petitioneron behalf of the 2nd Petitioner remained in possession of theland, cultivated it and paid the necessary fees and taxes,, receiptsfor which, marked Cl to C23, were produced. That in spite ofthe request for the regularisation Of the title of herself and the2nd' Petitioner, the > Respondent considering that no applicationhaving been made within a year of the death of Murugapillai
WAX.PITA, J.—Rasammah v. Manampcri
as required by Sec. 85 of the Land Development Ordinanceregarded the title of the 2nd Petitioner as having been surren-dered to the Crown ; that since then about a half share of thesaid lot has been allotted to one Wijeratne and in spite of thePetitioner’s proctor having applied for a certified copy of thepermit this was refused, though the Respondent is under a legalduty to issue such certified copy. For these reasons the Petitionerapplied for a Mandate in the nature of a Writ of Mandamusordering the Respondent to issue a permit to the 2nd Petitioneras the nominated successor of Nagamuthu Murugapillai and alsoto issue a certified copy of such permit.
The Respondent in his affidavit filed in this Court states thatthe 1st Petitioner informed him for the first time by a letterdated 23.12.70 produced marked R2, that her husband had diedin 1955 and asked for a transfer of the permit in her name. Onreceipt of that letter an inquiry was held by a District LandOfficer and it transpired that one John Singho cultivated theland from 1960-1971. The inquiry notes were produced as R3 andR3A.
After the inquiry the land was divided in two equal allotmentsand a permit was issued to the 1st Petitioner in respect of oneallotment. On the same day the other share was allotted toWijeratne by another permit. By letter dated 14.9.71 the firstPetitioner was informed of the Respondent’s decision to dividethe land. A copy of this letter was marked R4 and R4A. The1st Petitioner’s reply to this is produced as R5 and the Respon-dent’s reply to R5 intimating his inability to change his decisionmarked R6 and R6A. The Respondent also stated that theapplication of the 1st Petitioner dated 18.1.56 and also a copy ofthe letter of the Colonisation Officer, marked B were not in thefiles of the Respondent or in that of the Colonisation Officer. Healso said that no reference to the letter of 18.1.56 was made atthe inquiry by the District Land Officer, nor was the letter ofthe Colonisation Officer marked B produced at any stage of thesaid inquiry. Receipts for payments made were issued on thebasis that Nagamuthu Murugapillai was alive and the paymentswere made on his behalf.
The application for a Writ is made by the two Petitioners tothis Court, the 1st Petitioner as the widow and the 2nd Petitioneras the nominated successor of Nagamuthu Murugapillai toenforce the request made on 18.1.56 by the 1st Petitioner onbehalf of the 2nd Petitioner who was a minor at the time. R2 wasthe acknowledgement they allege of that letter by the Colonisa-tion Officer. Writ asked for here is to direct the Respondent toissue a permit to the 2nd Petitioner the nominated successor of
WAI/PJTA, J.—liasammah v. Manamperi
Nagamuthu Murugapillai. No relief is sought here on behalf ofthe 1st Petitioner. The 2nd Petitioner being a major now, therewas no need for the 1st Petitioner to join in this applicationwith her at all. I shall comment on the conduct of the 1stPetitioner again later.
If an application dated 18.1.56 had in fact been made on behalfof the 2nd Petitioner then there would be no question that thepermit given to N. Murugapillai cannot be deemed to have beensurrendered under the Land Development Ordinance Section85, she would be entitled to the permit. The question that arises,which has to be determined here is whether such an applicationwas in fact made. Now R2 the letter dated 23.12.70 sent by the1st Petitioner to the Respondent refers to the death of herhusband in 1955, that he left no Will and his estate is notsubjected to a Testamentary action and thus she asked for atransfer of the annexed permit in her favour, as the legal wifeof the deceased and also to nominate her child Raja Ledchemi asthe nominated successor. There is no reference here to heralleged application made on behalf of the 2nd Petitioner in 1956.No copy of that Petition has been produced but letter markedB has been produced purporting to be a letter from theColonisation Officer acknowledging the Petition dated 18.1.56,and requesting her to attend his-office on 3.2.66, with the permitfor an inquiry. There is no evidence as to whether the Petitionerwent for such inquiry what happened at such inquiry or whetherthere was in fact such an inquiry. Another strange circumstanceis that the 2nd Petitioner who now claims the permit made noreference to this letter of 1956 at any time until the filing of thispetition for a writ before this Court. She has been a major fornearly seven years now but she appears to have not mentionedthis application of ’56 at the inquiry conducted by the LandDevelopment Officer. One is therefore forced to the conclusionthat the 2nd Petitioner was either not interested in getting thepermit all this time or acquiesced in her mother the 1st Petitionertrying to get the permit for herself as the widow of NagamuttuMurugapillai : both petitioners being well aware that no applica-tion was made as was said to have been made in 1956.
In the permit No. 138/3/(b) issued to N. Murugapillai thenominated successor is the 2nd Petitioner but the 1st Petitionerin her letter of 23.12.70., R2, does not refer to this nor does shegive any reason as to why the permit should not be issued tothe 2nd Petitioner as the nominated successor, endorsed on theface of the permit. The Respondent in his affidavit says he haslooked into his file as well as that of the Colonisation Officerand finds there is no such application of 18.1.56 nor is there a
WALPITA, J.—Rasammah v. Manamperi
copy of the letter marked B in the Colonisation Officer’s file.There is no suggestion that such letter has been destroyed orremoved and I see no reason to reject the Respondent’s affidavit.The only inference one can draw from the Petitioners’ conductand Respondent’s affidavit is there was no such application on18.1.56 and the authenticity of letter B is to say the leastextremely doubtful and besides this is the first time that it isbeing produced or referred to, it was not shown to the Respondentbefore this. In my view, the reference to a so called applicationof 18.1.56 is an afterthought made for the purpose of thisapplication for a Writ as the Petitioners have now realised thatthat is the only legal basis on which the 2nd Petitioner canclaim the permit. In the circumstances, I am of opinion thatthe Respondent was right in holding that the permit issued toN. Murugapillai had been surrendered, in terms of Section 85of the Land Development Ordinance.
Another circumstance is that on the facts now alleged onlythe 2nd Petitioner could have made this application, she being amajor now, there was no need for the 1st Petitioner to join herin this application, as she has no right to the permit on her ownshowing, She has, however, joined in this petition, it seems tome, to justify a course of conduct adopted by her throughoutwhich amounts almost to a deception. The 2nd Petitioner herselfcannot be treated as an innocent party totally unaware of the1st Petitioner’s conduct all this time. She has been a major forseven years now. She has joined with the 1st Petitioner inmaking this appl'cation but made no attempt to apply to theRespondent, the Government Agent, at any time to have thepermit issued to her. The bona fides of both Petitioners are verymuch in question. The question then arises has the Respondentbeen remiss in any duty cast on him by law or has there beenany act of commission or omission on his part as regards theissue of this permit. On the documents placed before us and theaffidavits of the parties, I hold that the Respondent has actedcorrectly according to law.
The issue of a Writ of Mandamus is a discretionary remedy.“ The Writ of Mandamus is a high prerogative Writ and thegranting of it is a matter for the discretion of the Court. It is not aWrit of right and is not issued as a matter of course. Accordingly,the Court may grant the Writ even though the right in respectof which it is applied for appears to be doubtful and on the otherhand, the Writ may be refused not only upon the merits but alsoby reason of the special circumstances of the case ”. Halsbury’sLaws of England.
WALPITA, J.—Raaammah v. Manamperi
S. A. de Smith in his book Judicial Review of AdministrativeAction, 2nd Edition, p. 580 says of the Writ of Mandamus, “ sucha duty (that is a duty cast on a Public Officer under the law) willnot be enforceable by one whose ulterior motive is to advancethe private interests of another person To my mind, the appli-cation for the Writ made by the 2nd Petitioner who has joinedwith the 1st Petitioner is lealiy to advance the interests of the1st Petit-oner who has no right to the permit but who took allsteps to get this permit for herself from the Respondent evengoing to the extent of not disclosing to the Respondent a previousapplication said to have been made in 1356 on behalf of the2nd Petitioner. Besides, the 2nd Petitioner is now said to resideat Kalmunai and has shown no interest in this permit before thisand did not herself make an application to the Respondent in thefirst instance. Though she has now made th.s application to thisCourt, S. A. de Smith also states at page 578 : “ The general ruleis that the applicant before moving for the order, must haveaddressed a distinct and specific demand or request to theRespondent that he perform the duty imposed upon him, andthe Respondent must have unequivocally manifested his refusalto comply. ” In this case there was no such demand by the 2ndPetitioner only one by the 1st Petitioner who sought to get thepermit for herself. I am therefore unable to accept that there wasan application made in 1956 on her behalf. Even if there was, whywas not the Respondent reminded of that application by eitherPetitioner before this.
The decision of the Respondent on the application of the1st Petitioner of 2312.1970, R2, was made on 14.9.1971. She repliedto this on 16.9.1971 R5, but the Respondent confirmed his decisionon 1.10.1971, R6. The application to this Court for a Writ wasmade on 21.6.1972, eight months later. There is in my view unduedelay in making this application and for that reason alone thePetitioner will not be entitled to this Writ. 69 N.L.R. 211 ;73 N.L.R. 262. As the Respondent has already issued two permitsin respect of the said lot no purpose will be served in our issuinga Writ now. “ In general a writ will not lie for the purpose ofundoing that which has already been done in contravention ofStatute—Smith p. 563.
Therefore, taking all these matters into consideration, 1 am ofthe view that this application must be refused. The Respondentis entitled to the costs of this application.
Application refused.