RASAMMAH (Wife of N. Murugupillai) and another, Petitioners, and A. P. B. MANAMP

065-NLR-NLR-V-77-RASAMMAH-Wife-of-N.-Murugupillai-and-another-Petitioners-and-A.-P.-B.-MANAMP.pdf


Rasammah v. Manamperi
313
1974 Present : Walgampaya, Vytliialingam and Walpita, JJ.
RASAMMAH (Wife of N. Murugupillai) and another,Petitioners, and A. P. B. MANAMPERI (Government Agent,Anuradhapura), Respondent
S. C. 372/72—Application for a Writ of Mandamus
Land. Development Ordinance (Cap. 464)—Sections 26, 77, 80, 84, 85—Death of a permit-holder—Failure of nominated successor toapply for permit within specified time—Resulting position—Mandamus—Whether the remedy lies to undo that which hasalready been done—Question of undue delay in applying for theWrit.
One M was issued a permit in January 1937 under the Land .Development Ordinance in respect of an allotment (Lot 19) of land.In February 1944 he nominated as his successor his daughter, the2nd petitioner, who was then about two years old. He died on12.8.55, survived by his widow, the 1st petitioner, and the 2ndpetitioner who was then a minor. The authorities concerned decided,after an inquiry had been held, that the 2nd petitioner had failedto apply for a permit within one year from the date of the deathof the permit-holder M, and should therefore be deemed, undersection 85 of the Land Development Ordinance, to have surrenderedto the Crown her title as successor to the land. The petitionerswere informed about this decision on 14.9.71 and again on 1.10.71.Thereafter, on 1.3.72 a fresh permit was issued to the 1st petitionerfor a half share of the Lot 19 and another permit in. respect of theother half share was issued on the same day to a third party W.The present application for a Writ of Mandamus was filed on22.6.72 to compel the respondent to issue the permit in respectof Lot 19 to the 2nd petitioner alone as the nominated successorof M. It was alleged that an application in terms of section 85 ofthe Land Development Ordinance had in fact been made by the 1stpetitioner on behalf of the 2nd petitioner on 18.1.56 and that the1st petitioner, as the mother and natural guardian of the 2ndpetitioner, had remained in possession of the land until the 2ndpetitioner, who was a minor at the time of M’s death, attainedmajority and also thereafter.
Held by Walgaivepaya, J., and Walpita, J. (Vythialtngam, J.,dissenting) : —
On the facts of the present case it could not be found thatany application on behalf of the 2nd petitioner was in fact madeon 18.1.56 in terms of Section 85 of the Land DevelopmentOrdinance. Therefore, in view of the non-compliance with therequirement of that Section, Lot 19 should be deemed to havereverted back to the Crown.
Alternatively, qs the respondent had already issued twopermits to the 1st petitioner and W in respect of Lot 19 on 1.3.72,a Writ of Mandamus could not be granted. In general. Mandamuswill not lie for the purpose of undoing that which has alreadybeen done in contravention of Statute.
Per Walpita, J. (Vythialingam, J., dissenting) —There was unduedelay in making the present application for a Writ of Mandamusand, even for this reason alone, the 2nd petitioner was not entitledto succeed.
IXXVII-14
1#—A J 0203—3.000 (74/JO)
WALGAMPAYA, J.—Raeammah v. Manamperi
314
Application for a Writ of Mandamus on the GovernmentVgent of Anuradhapura.
M Tiruchelvam, with M. Sivarajasingham, for the petitioners.
G. P. S. de Silva, Senior State Counsel, with A. S. M. Perera,State Counsel, for the Attorney-General.
Cvr. adv. vult.
May 11, 1974. Walgampaya, J.—
This is an application for a Writ of Mandamus on therespondent made under Section 32 of the Courts Ordinance.
The 1st Petitioner is the wife of the late NagamuthuMurugupillai, and the 2nd Petitioner is his daughter.
Upon a permit issued by the Government Agent ofAnuradhapura on 29.1.1937, Nagamuthu Murugupillai wasallotted lot 19 in I. S. P. P. 3 an extent of 2 acres, 3 roods and3 perches, under the Land Development Ordinance, Volume 12,
E. C.. Chapter 464.
Under Section 26 of the Land Development Ordinance, the
permit so issued was :— “personal to the permit-
holder and upon his death no title whatsoever to the land heldunder such permit shall pass or accrue to his heirs or to anyperson other than a successor duly nominated by such permit-holder in the manner hereinafter provided. ”
Then Section 77 of the same Ordinance states whom thepermit-holder could nominate as his successor. The person sonominated will have his name endorsed on the permit in termsof Section 80 of that Ordinance, and under Section 85, “ Asuccessor duly nominated by a permit-holder, who fails to makeapplication for a permit within a period of one year reckonedfrom the date of the death of that permit-holder, shall be deemedto have surrendered to the Crown his title as successor to theland. ’’
The permit holder Murugupillai died on 12.8.1955. On thepermit itself, as evidenced by Rl, the age of the 2nd Petitionerdescribed as the permit-holder’s daughter who has been nomi-nated, was 2 years. However, after Murugupillai’s death, the 2ndPetitioner had made no application to get herself substituted asrequired by Section 85 of the Act
VVALGAMPAYA, J.–Hasammah v. Manampen
316
The documents filed with the petition and affidavit of thePetitioners show that acreage taxes and water taxes were paidto the Anuradhapura Kachcheri under the name of Murugupillaiwithin the years 1957 to 1972, except for certain years, namely,1962, 1963, 1964 and 1966, when curiously the taxes have beenpaid in th^ name of the 2nd petitioner.
If the age of the 2nd Petitioner is correctly given as 2 yearsin El, she should have been born round about 1942, and shewould have been 21 years old in about 1962. Perhaps, it was forthat reason that between 1962 and 1966 water taxes were paidin the name of the 2nd Petitioner, and there is an admission bythe 1st Petitioner in R5 that although the 1st Petitioner couldnot apply for a transfer she continued cultivating the field inquestion paying all taxes and other rates.
Presumably according to documents C19, C20, C21 and C22.the 1st Petitioner changed her mind and paid taxes to theKachcheri from 1968 onwards in her name. And then on 23.12.1970she wrote letter R2 to the Kachcheri stating, inter alia, thatafter her husband’s death she had been possessing the lot allottedto the permit-holder and enjoying the same and asking that thepermit be transferred in her name as the legal wife of thedeceased, and to nominate her daughter Raja Letchumie, aged16, as her nominated successor.
It is surprising that in R1 the 1st Petitioner has suppressedthe fact that the 2nd Petitioner was the nominated successorof the deceased Murugupillai, and perhaps she suppressed thematter of the nomination of the 2nd Petitioner for the reasonthat by the time R2 was written the 2nd Petitioner was living inKalmunai.
In view of the imperative provisions of Section 85 of the LandDevelopment Act, whatever hardship the situation may causeto the 2nd Petitioner, her rights would be deemed to have beensurrendered to the Crown in view of her failure to get herselfa permit within one year of the death of the permit-holder. I
I am of the view that as a result of the prevarication of the1st Petitioner, the 2nd Petitioner has suffered and the 1stPetitioner should consider herself lucky that she has at leastby the order of the authorities concerned got a permit for a halfshare of the land. That order has been made by the authoritiesafter an exhaustive inquiry ; and after the 1st Petitioner wasinformed of that order she has come to this Court.
316WALGAMi'AYA, J.—Baaammah v. Manamperi
In R4A paragraph 3 there is the statement:“ As this land
has been developed for a period, of years by L. M. John Singhoand his son it is fair and reasonable that this land be dividedinto two sections between L- M. Wijeratne and you. A decisionhas been taken to this effect in terms of the same, the KachcheriSurveyor will divide the land accordingly in due course. Afterthe Kachcheri Surveyor’s report is received, a permit will beissued. ” And on 1.10.1971. the 1st Petitioner was informed thatthe decision referred to earlier could not be varied.
There was an averment in paragraph 8 of the Petition that on18.1.1956, the 1st Petitioner applied to the Government Agent,Anuradhapura, for a permit in favour of the 2nd Petitioner asthe nominated successor of the aforesaid permit-holder. Thiswas the first time that there was a reference to such a letter.There was no such reference in the earlier correspondence bet-ween the 1st Petitioner and the authorities concerned. In proofof that averment in paragraph 8 was the document B annexedto that petition of the Petitioner which refers to the letterdated 1S.1.1956, but in view of what I have said earlier thatthere was no reference at all to this letter in the Petitioner’scorrespondence with the authorities, and in view of the veryaffirmative position taken up by the Respondent in his affidavitin paragraph 10 where he stated, inter alia, “ the applicationdated 18.1.1956 is not in my files, nor is a copy of the lettermarked B in the file of the Colonization Officer. ” No referenceto the said application dated 18.1.1956 was made at the inquiryheld by the District Land Officer, nor was the said letter markedB produced at any stage of the said inquiry. The question there-fore whether letter B is an authentic document is open to gravedoubt.
There remains for consideration the question whether a Writof Mandamus will lie in the circumstances of this case. StateAttorney has argued that such a Writ is in the discretion ofthis Court. He has referred to S. A. de Smith, on Judicial Reviewof Administrative Action, 2nd Edition, page 563, where it is
held :— “ nor in general will it lie for the purpose
of undoing that which has already been done in contravention ofstatute. ”i
Mr. Tiruchelvam has submitted an authority—51 N.L.R. page262. where Gratiaen, J., has held that the Court will not exerciseits discretion to refuse a writ where an authority flagrantlyexceeded the limited statutory powers conferred on it. I do notthink that authority could apply to the facts of the instantcase, where in spite of the prevarication of the 1st Petitioner,the authorities concerned have made a very equitable order.
VVXEH AL.TNGAM, .T.—RaSammah v. Manomperi
317
Mr. Tiruchelvam has also submitted an authority, namely, Rex■v. Haceley Revising Barrister1 1912, 3 K, B, 518, at page 532.That authority too will not have a bearing on the present case,because, as was stated by Channell, J., in his judgment at page532 : “ In the present case the revising barrister has performedthe judicial part of his duty. If he had merely made some errorin the performance of that part of his duty, a mandamus wouldnot lie to correct him. But having performed the judicial partof his duty, he omitted by inadvertence to perform the mecha-nical part of it, namely, to deliver to the town clerk the list of
voters as revised by himIt is that act which he ought
to have done and which would have been done but for inadver-tence which we can now order him to do”
For all these reasons the application is refused with costs.Vythialingam, J.—
I regret I am unable to agree.
The two Petitioners pray for the issue of a mandate in thenature of a Writ of Mandamus ordering and directing theGovernment Agent, Anuradhapura, the respondent to issue apermit to the second Petitioner, as the nominated successor ofher farther, the permit-holder, of a land held by him on permitNo. 133/3 issued under the Land Development Ordinanceand for the issue of a certified copy of the said permit to herfather.
In regard to the issue of the certified copy of the originalpermit the respondent has not in his affidavit denied the factsaverred by the Petitioners in their affidavit. The 2nd Petitioneras the nominated successor under the permit is entitled to theissue of a certified copy of the permit and the respondent is induty bound to issue it on the payment of charges if any. He hasfailed to perform this duty although a demand was made andmandamus will lie to secure the performance of this, duty byhim
Admittedly Nagamuthu Murugupillai was issued the permitNo. 183/3 (Rl) in the year 1936 under the Land DevelopmentOrdinance in respect of Lot 19 in I. S. P. Plan No. 3 at MahaNelubewa in the Anuraihapuia District. On 13 2.1944 he nomi-nated as his successor, his daughter the 2nd Petitioner/ then saidto be two years old and this was duly endorsed on the permitRl. He died on 12.8.1955 (A) and the 2nd Petitioner would thenhave been a minor 12 to 13 years old. The 1st Petitioner is thewidow of Murugupillai and the mother of the 2nd"(Petitioner,
* (1912) 3 K. B. 518.
A 10203 (74/10)
318
VYTHlALINGAM, J.—Raaammah v. Mariam peri
Section 85 of the Land Development Ordinance, Chapter 464requires a successor duly nominated by a permit-holder to makean application for a permit within a period of one year fromthe date of the death of the permit-holder. If the nominatedsuccessor fails to make such an application he shall be deemedto have surrendered to the Crown, his title as successor to theland. The Petitioners aver in their affidavits that the 1stPetitioner as the mother and the natural guardian of the 2ndPetitioner made an application dated 18.1.1956 for the issue of apermit in favour of the 2nd Petitioner and that they received thereply dated 30.1.1956 (B).
A certified copy of this reply has been produced markedB and it is as follows:—
«C.O’s Office,
Hidagama.
N. Nagapusanam,
Malwata Lane,
Anuradhapura.
Reference to your petition dated 18.1.56 to G.A., N.C.P., totransfer lease permit please attend my office on 3.2.1956 at 3 p.m.,with the permit for an inquiry.
Sgd. Colonisation Officer,Nochehiduwa. ”
The letter is addressed to the 2nd Petitioner and obviously theapplication must have been made either by her or on her behalf.The evidence at the inquiry and the affidavits do not disclosewhether an inquiry was held in accordance with the letter 1B *or as to what happened to this application. The respondent in hisaffidavit does not deny the receipt of the application or thesending of the letter * B All he says is that the letter is not inhis files and that there is also no copy of the letter ‘ B ’ in thefiles of the Colonisation Officer. These facts do not lead to thenecessary inference that the application was in fact not receivedor that the letter ‘ B ’ was not sent by the Colonisation Officer.
The affidavit also refers to the fact that the application dated18.1.1956 was not referred to and the letter * B ’ dated 30.1.1956was not produced at an inquiry held many years later by theDivisional Land Officer. This inquiry was in respect of anapplication made by the 1st Petitioner dated 23.12.1973 (R2) forthe issue of a permit in her name as the widow of Murugupillaiand for the nomination of her daughter Rajaledchimy as her
VYTHIALINGAM, J.—Rasammah v. Manamperi
319
successor. The inquiry was held on several dates and the notesof the inquiry have been produced marked (R3). There is noindication as to whether the 2nd Petitioner had notice of thisinquiry and as to whether she was present at all at the inquiry.
On one of the dates of inquiry 20.7.1971 the inquiring officerstates that the person mentioned as the nominated successor tothis permit was his daughter Nagapushanam, that is the 2ndPetitioner, and that * It is understood that now she is marriedand living in Batticaloa District.’ It is clear from this that the2nd Petitioner was not present at the inquiry. Otherwise theInquiring Officer would not have said that it was understoodthat she was living in Batticaloa but would have recorded herstatement.
It is true that on the very first date of inquiry the InquiringOfficer states that the nominated successor stated that Naga-muththu Murugupullai died in 1955. If she was present and if itwas she who said this, it is strange that the Inquiring Officerdid not record her statement or question her as to whethershe had made an application in terms of Section 85 or not. Hedid not even give her an opportunity to produce any proof shemay have had that an application was in fact made, althoughhe did give the first Petitioner an opportunity to produce thedeath certificate of Murugupillai and her own rice ration book.He thereafter postponed the inquiry witnout recording anystatements at all and without taking any further proceedingson that day.
In any event, even if she was present on that very first dateit is quite clear that she was not present on any other dates ofinquiry and she took no part whatever in the proceedings atthe inquiry. However, I am satisfied that no adverse inferencecan be drawn against the Petitioner from the mere fact that shewas present on the first day and said that her father died in 1955or from her failure to produce the letter ‘ B ’ or to refer to theapplication of 18.1.1956. As I have pointed out she was only 12or 13 years at the time of her father’s death and may not havebeen aware of what was being done or its significance, or shemay not even have remembered at all.
It is clear from the application R2 that the widow was tryingto get the permit in her favour and to get the other daughterRajaledchimy nominated as her successor and thereby deprivethe 2nd Petitioner of her rights. In her application R2 she didnot mention that the 2nd Petitioner was the nominated successorof her late husband. It is more than probable that she would
820
VYTIII ALIN GAM, J.—Raaammah v. Manamperi
have hidden the fact that an application was made in terms ofSection 85 and that the reply ‘ B ’ had been received. It is alsoprobable that the 2nd Petitioner was told that the applicationand the copy of the letter ‘ B * were not in the files and that theland had reverted back to the Crown and she may haveaccepted it without being aware of the true position. For thisreason she may not have taken any further part in theproceedings.
It is also quite clear that when the permit was not issued toher for the whole land, but only for one half of it the 1stPetitioner has joined with the 2nd Petitioner in filing thisapplication- It is quite apparent that in this matter the 1stPetitioner has been acting from improper motive and withcomplete lack of good faith. A court will not use its discretionarypower to grant the writ where it is not convinced of the proprietyof the Petitioner’s motives. These principles are set out as followsin Halsbury, Vol. II pages 85 and 86, Simonds Edition: —
“ The grant of an order of mandamus is, as a general rule, amatter of discretion of the Court. Tt is not an order granted asof right and it is not issued as a matter of course. Accordinglythe Court may refuse the order, not only upon the merits butalso by reason of the special circumstances of the case. On theother hand the Court may grant leave to apply for an order ofmandamus even though the right in respect of which it is soughtappears to be doubtful. The Court will take a liberal view indetermining whether or not the order shall issue, not scrupulouslyweighing the degree of public importance attained by thematter which may be in question, but applying this remedy inall cases to which upon a reasonable construction, it can beshown to be applicable.”
. Quoting this passage from an older edition of Halsbury,Soertsz J., said at page 191 in the case of Maha Nayaka TheroMalwatte Vihare v. Registrar-General1 at 39 N. L. R. 186 : ** Inview of this responsibility to which Courts are called, I haveconsidered most anxiously the facts that I have been put inpossession of by the affidavits of the different parties to thisapplication and I have reached the conclusion that I shouldnot use my discretionary power in favour of the Petitioner inthis instance because I am not convinced of the propriety ofhis motives.”
Moreover, “ not only must it appear that the applicant ishimself a person having a real interest in the performance ofthe duty sought to be enforced but also that he makes the
1 39 X.L.R. 186.
VYTHTAL.TNGAM, J.—Rasammah v. Manamperi
321
application in good faith and not for an indirect purpose. If itappears that the application for the mandamus is really onbehalf of some third party the order will be refused. ” Vol. IIHalsbury—Simonds Edition—106.
In this case, however, the bad faith and improper motive is,all on the part of the 1st Petitioner and not on the part of the2nd Petitioner. No taint of this attaches to the 2nd Petitionerand one cannot refuse the writ to the 2nd Petitioner on theground of bad faith and improper motive on the part of the1st Petitioner. Indeed, the 1st Petitioner is not seeking any relieffor herself and she need not have been joined as a Petitionerat all unless of course it is clear that the 2nd Petitioner isseeking to get the benefit for the 1st Petitioner. If in fact thepermit is issued in favour of the 2nd Petitioner there is nothingshe can do for the benefit of the 1st Petitioner. In any eventthere are sufficient safeguards in the Ordinance by way ofprovisions for the cancellation of permits to prevent thishappening.
The genuineness and the authenticity of the letter ‘ B ’ whichclearly shows that an' application as contemplated in Section 85had in fact been made within the period stipulated in the Sectionwas not challenged. Indeed if that was the position it wouldhave been the easiest thing for the respondent to have filed anaffidavit from the Colonisation Officer concerned or if he wasnot available for any reason, then from some other officer withknowledge of the facts to the effect that no application was, infact, received and that no such reply as ‘ B ’ v/as sent. This hasnot been done and the conclusion is irresistible that theapplication as contemplated by Section 85 was in fact made.
Once an application is made it is incumbent on the respondent"to issue the permit. He may perhaps hold such inquiry as hemay deem necessary. If as a result of such inquiry he comes tothe conclusion that a permit should not for any reason be issued“to the nominated successor of the permit-holder, then it is forhim to show that this was so. Such is not the case here, for, itwas the case for the respondent that he was not aware that anapplication was made, as the application was not in his files andthe copy of the letter * B ’ was not in the files of the ColonisationOfficer. So he proceeded on the assumption that no applicationbad been made within the stipulated time.
Section 84 of the Ordinance sets out that “Upon the death ofa permit-holder, the duly nominated successor of that permit-holder shall be entitled on application made to the GovernmentAgent, to receive a permit for the land which was alienated to
322
VYTII! ALIN GAM, J.—Rasammah v. Manamperi
the deceased permit-holder. ” The application having been dulymade the respondent was legally bound tn issue the permit andhe has failed to perform the duty enjoined on him by law.
The Petitioners state that the 1st Petitioner has been in posses-sion and cultivating the field on behalf of the 2nd Petitioner eversince the death of her father. The statement that she waspossessing the field on behalf of the 2nd Petitioner is contradictedby her statement in her Petition R2 where she states that shewas possessing the said allotment and enjoyed the same. Butthis is not a material consideration in view of the other evidenceand the legal position. The fact that the 1st Petitioner alone andno other outsider was in possess;on of the field as the owner isborne out by the entire testimony of all the witnesses at theinquiry held by the Land Development Officer.
Weeramantri, Govi Mandala Sevaka and earlier Secretaryof the Cultivation Committee said that the 1st Petitioner's namehad been included in the Paddy Lands list as owner cultivatorand that John Singho upto 1960 and thereafter his son Wijeratnewere the ande cultivators of this field. John Singho said thatfrom 1955 to 1960 he worked this field and gave 15 bushels aslease per season to Rasamma the 1st Petitioner. After 1960he gave the cultivation to his son Wijeratne. He admitted thathis name was not included in the Paddy Lands list.
Wijeratne said that he was working this field from 1961 andpaying 15 bushels per season. He wanted the land given to himas it had been worked by his farther and himself continuously.
Karunaratne the Vidane said that the field was worked on andebasis and that the brother of the 1st Petitioner also worked thefield for 2 or 3 seasons and Wijeratne continues to work the fieldon an ande basis upto date. Herath Banda the Secretary of theCultivation Committee said that the names of John Singho andWijeratne do not appear on the Paddy Lands list. Sirimawathiesaid that the field was worked by Murugupillai and after hisdeath the 1st Petitioner brought some people and cultivated it.She also worked the field from 1960-1963 and after that the 1stPetitioner worked the field with hired labour. The evidence is,therefore overwhelming that possession was with the 1stPetitioner throughout and that John Singho and later,Wijeratne were merely ande cultivators under her.
As I pointed out earlier, the 2nd Petitioner was a minor andhaving elected to succeed by virtue of the application dated13.1.1956 as the nominated successor of the permit-holder shewas entitled to possession. The 1st Petitioner being the natural
VYTHIALINGAM, J.—Raaammah v. Mana.mperi
32a
and lawful guardian of the 2nd Petitioner, her possession was inlaw the possession for and on behalf of the minor. In the case ofSamichchiappu v. Baronchihamy1—62 N. L. R. 215, where thenominated life holder who had failed to succeed to the holdingsued the widow for the value of the produce it was held that shewas not entitled to succeed as the nominated successor hadsucceeded to the land on her failing to do so. Basnayake, C.J.,said at page 214. “ He (the nominated successor) being a minorit must be presumed that the 1st defendant., his mother managedit for his benefit after he succeeded to it. ”

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.
*24
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
325
-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
327
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
328
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
329-
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
3C0
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
331
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.