015-SLLR-SLLR-2004-V-1-RATNAYAKE-v.-COMMISSIONER-GENERAL-OF-EXCISE-AND-OTHERS.pdf
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Ratnayake v Commissioner-General of Excise and others
(Sripavan. J.)
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RATNAYAKEv
COMMISSIONER-GENERAL OF EXCISE AND OTHERSCOURT OF APPEALSRIPAVAN, J.
C.A. 992/2003NOVEMBER 6,2003
Writ of certiorari – Issue of liquor licence – Rule of audi alteram partem – Licencein continuous operation for over 10 years-Applicability of the distance rule – Nonconsideration of Regulations – Legitimate expectation – Does writ He?
The petitioner had been carrying on the business of a retail liquor shop from 1987.The petitioner made an application for a licence for 2003 and was refused in May2003 on the basis that a Muslim mosque is situated close to the petitioner’s liquorshop.
The petitioner contended that he had a legitimate expectation to have his licence.No hearing was granted to the petitioner prior to making the impugned decision,that the construction of the mosque 10 years after the petitioner commenced hisbusiness is not a valid reason for the refusal and the authorities had not consid-ered the relevant circular where it had been laid down that, when a licence hasbeen in continous operation for 10 years or more at the same location the dis-tance rule will not be adhered to.
Held:
When refusing the petitioner’s licence for 2002, the 1st respondent hasfailed to give an opportunity to the petitioner to controvert or contradict thereport relied upon by the respondent.
"No man can incur a loss of property by judicial or quasi judicial proceed-ings unless and until he has had a fair opportunity of answering the com-plaint made against him”
The refusal to issue the licence for the year 2003 is arbitrary, capriciousand unreasonable, especially where the gazette marked P1 (14H-2000)is silent as opposed to gazette marked P16 (22.09.2003). The petitionerhad no control over the construction of the Muslim mosque 10 years afterhe commenced his liquor business.
APPLICATION for a writ of certiorari.
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Cases referred to:
Gamlathge Ranjit Gamlath v Commissioner General of Excise and others -CA1675/02 – CAM 28.03.2003
Errington v Minister of Health – (1935) 1 KB 249
Schmidt v Secretary of State for Home Affairs (1969) 2 Ch. 149 at 170.
R v Flintshire County Licensing Committee ex. p Barret (1957) 1 QB 350.
General Medical Council v Spackman – (1943) AC 627 at 644
Ronald Perera with D. W. Johnthasan for petitionerJanak de Silva, State Counsel for respondents.
Cur.adv.vuft
24 November, 2003SRIPAVAN, J.
The petitioner carried on the business of a retail liquor shop at 01premises No. 34, Ragala, Halgranoya under the name ’’Dilani ForeignLiquor Shop” from 1987 until 1994. When the petitioner’s liquorlicence was not renewed in 1995, the petitioner instituted a funda-mental rights application and upon a direction issued by the SupremeCourt, the petitioner obtained the licence for the year 1995.Thereafter,in 1996, 1997 and 1998 the petitioner obtained the licence for the rel-evant years on the orders made by the Supreme Court. Thus, the peti-tioner alleges that he continued his retail liquor business at the afore-said address without a break.10
When the petitioner’s liquor licence for the year 2002 wasrefused, he filed C. A. Appl 1670 / 2002 and this court by way of aninterim order allowed the petitioner to carry on his liquor business till31st December 2002. It is common ground that the issuance of liquorlicences from 1st January 2002 is governed by the Excise NotificationNo. 837 and published in the Government Gazette (Extraordinary)1158/31 dated 14th November 2000 marked P1. Even though the peti-tioner made an application for a liquor licence for the year 2003 interms of the said Notification marked P1, he did not receive any reply
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Ratnayake v Commissioner-General of Excise and others
(Sripavan. J.j
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till May 2003. A letter dated 23rd May 2003 sent by the third respon-dent was received by the petitioner on 30th May 2003 according towhich the licence was refused on the basis that a Muslim Mosque issituated close to the petitioner’s liquor shop in violation of P1. Thepetitioner seeks to quash the said letter dated 23rd May 2003 (P12) onthe following grounds:
that the petitioner has been carrying on the said liquor shopin the same location for several years and as such he hasa legitimate expectation to have the liquor licence renewedwithout any hindrance.
that no valid hearing was granted to the petitioner by therespondents prior to the making of the impugned decisionmarked P12.
that the construction of the Muslim Mosque ten years afterthe petitioner commenced his liquor business is not a validreason for the refusal of his licence; and
that in any event, commencing from 1st January in terms ofthe Excise Notification No. 859 published in theGovernment Gazette (Extraordinary) 1307/3 dated 22ndSeptember 2003 marked P16, premises where a licencehas been in continuous operation for ten years or more atthe same location, the distance rule will not be adhered to.
It is relevant to note that with the guidelines and conditionsreferred to in P16 coming into force, the Excise Notification 837 (P1)is rescinded and all categories of licences shall be issued in accor-dance with P16. When cancelling the petitioner’s licence for the year2003, the first respondent has failed to give an opportunity to the peti-tioner to controvert or contradict the report marked 1R5. This conducton the part of the first respondent in fact contravenes the cabinet deci-sion marked 1R1. I would like to quote a paragraph from my ownjudgement in Gamlathge Ranjith Gamlath v Commissioner General ofExcise and two others^).
”lt is one of the fundamental principles in the administration ofjustice that an administrative body which is to decide must hear bothsides and give both an opportunity of hearing before a decision istaken. No man can incur a loss of property by judicial or quasi-judicial
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proceedings unless and until he has had a fair opportunity of answer-ing the complaint made against him. Thus, objectors at publicinquiries must be given a fair opportunity to meet adverse evidence,even though the statutory provisions do not cover the case expressly.(Vide Errington v Minister of Health)*®. The court would certainlyregard any decision as having grave consequences if it affects pro-prietary rights. In Schmidt v Secretary of State for Home Affairs P) at170 Lord Denning M. R. suggested that the ambit of natural justiceextended not merely to protect rights but any legitimate expectation ofwhich it would not be fair to deprive a person without hearing what hehas to say’.
Where a refreshment licence was refused to a theatre which hadenjoyed it for over fifty years on the ground that it should be treatedequally with a new theatre where an application has been refused andbecause there were other facilities nearby, the Court observed thatthe licensing committee were held to have given too little weight to thefifty years’ enjoyment and too much to rigid consistency. (Vide R vFlintshire County Licensing Committee ex. p Barrett.**)
On an undertaking given by the learned State Counsel on 24thJuly 2003 an inquiry was held on 13th August 2003 by a committeepresided over by the fourth respondent. According to the report of thesaid committee marked P14, it would appear that the committee toorecommended that the petitioner’s application for a FL4 licence for theyear 2003 be considered. However the first respondent has refusedthe licence to the petitioner as evidenced by the letter dated 29thAugust 2003 marked P15.
This court is of the view that the petitioner had no control over theconstruction of the Muslim Mosque ten years after he commenced hisliquor business (Vide P13). The petitioner’s application for the renew-al of his licence for the year 2003 was refused due to no fault of thepetitioner. The petitioner should not be penalised on an unreasonablebasis. Nobody, of course can dispute that the first respondent has adiscretion in the matter. It is a discretion to be exercised reasonably,fairly and justly. It would appear that the first respondent issued thelicence to the petitioner in the year 2002 upon the recommendationsof the relevant officials including the fourth respondent. The saidlicence was cancelled subsequently on an arbitrary basis violating theprinciples of natural justice. “If the principles of natural justice are vio-
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Ratnayake v Commissioner-General of Excise and others
(Srioavan, J.).
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lated in respect of any decision it is, indeed, immaterial whether thesame decision would have been arrived at in the absence of thedeparture from the essential priniples of justice. The decision must bedeclared to be no decision”. – per Lord Wright in General MedicalCouncil v SpackmanS5)
Considering the totality of the material placed before this Court,
I am of the view that the first respondent’s refusal to issue the FL4 100licence to the petitioner for the year 2003 is arbitrary, capricious andunreasonable especially where the gazette marked P1 is silent (asopposed to the Gazette marked P16) with regard to situations wherea place of public religious worship is established subsequent to theissue of a licence to a business premise.
In the circumstances, a writ of certiorari is issued quashing thedocuments marked P12 and P15 dated 23rd May 2003 and 29thAugust 2003 respectively. A writ of mandamus is issued on therespondents directing them to issue the FL4 licence, forthwith to thepetitioner for the balance period in the year 2003 upon payment of the 110licence fee by the petitioner on a pro-rata basis. The petitioner is alsoentitled to costs in a sum of Rupees 7500 payable by the first respon-dent.
Application allowed.