046-SLLR-SLLR-2003-V-2-RATNAYAKE-v.-EKANAYAKE-COMMISSIONER-GENERAL-OF-EXCISE-AND-OTHERS.pdf
CA
Ratnayake v Ekanayake, Commissioner General of Excise
.and others (Sripavan, J.)
299
RATNAYAKE
v
EKANAYAKE,
COMMISSIONER GENERAL OF EXCISE AND OTHERS
COURT OF APPEALSRIPAVAN, J.
C.A. 992/03NOVEMBER 6, 2003
Writ of certiorari – Liquor licence granted – Place of public religious worshipestablished subsequent to issue of licence – Gazette silent – Failure to give anopportunity when cancelling licence – Rule of audi alteram partem.
Held:
Where the Gazette is silent with regard to situations where a place ofworship is established subsequent to the issue of a licence – the refusalis illegal.
If the principles of natural justice are violated in respect of any decision,it is indeed immaterial whether the same decision would have beenarrived at in the absence of the departure from the essential principlesof justice. The decision must be declared to be no decision.
APPLICATION for a writ of certiorari.
Cases referred to:
Gamlathge Ranjith Gamlath v Commissioner General of Excise andtwo others – CA 1675/02 CAM 28.3.2003
Emington v Minister of Health – (1935) 1 KB 245
Schmidt v Secretary of State for Home Affairs (1969)2Ch. 149 at 170
R v Flintshire County Licensing Committee ex.p Barret – (1957) 1 QB350
General Medical Council v Spackman – (1943) AC 627 at 644Ronald Perera with D. W.Johnthasan for petitioner
Janak de Silva, State Counsel, for respondent
Cur. adv .vult.
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Sri Lanka Law Reports
[2003] 2 Sri L.R
November 24, 2003SRIPAVAN, J.
The petitioner carried on the business of a retail liquor shopat premises No.34, Ragala, Halgranoya under the name “DilaniForeign Liquor Shop” from 1987 until 1994. When the petitioner'sliquor licence was not renewed in 1995, the petitioner instituted afundamental rights application and upon a direction issued by theSupreme Court, the petitioner obtained the licence for the year1995. Thereafter, in 1996, 1997 and 1998 the petitioner obtainedthe licence for the relevant years on the orders made by theSupreme Court. Thus, the petitioner alleges that he continued hisretail liquor business at the aforesaid address without a break.
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 till31 st December 2002. It is common ground that the issuance of liquorlicences from 1st January 2002 is governed by the ExciseNotification No.837 and published in the Government Gazette(Extraordinary) 1158/31 dated 14th November 2000 marked P1.Even though the petitioner made an application for a liquor licencefor the year 2003 in terms of the said Notification marked P1, he didnot receive any reply till May 2003. A letter dated 23rd May 2003 sentby the third respondent was received by the petitioner on 30th May2003 according to which the licence was refused on the basis that aMuslim Mosque is situated close to the petitioner's liquor shop in vio-lation of P1. The petitioner seeks to quash the said letter dated 23rdMay 2003 (P12) on the following grounds.
that the petitioner has been carrying on the said liquorshop in the same location for several years and as such hehas a legitimate expectation to have the liquor licencerenewed without 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 after•the petitioner commenced his liquor business is not a validreason for the refusal of his licence; and
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Ratnayake v Ekanayake Commissioner General of Excise
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that in any event, commencing from 1st January in termsof the Excise Notification No.859 published in theGovernment Gazette (Extraordinary) 1307/3 dated 22ndSeptember 2003 marked P16, premises where a licence hasbeen in continuous operation for ten years or more at thesame 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 theyear 2002, the first respondent has failed to give an opportunity tothe petitioner to controvert or contradict the report marked 1R5.This conduct on the part of the first respondent is in fact contra-venes the cabinet decision marked 1R1. I would like to quote aparagraph from my own judgment in Gamlathge Ranjith Gamlath vCommissioner General of Excise and two others.<1>
“It is one of the fundamental principles in the administrationof justice that an administrative body which is to decide must hearboth sides and give both an opportunity of hearing before a deci-sion is taken. No man can incur a loss of property by judicial orquasi-judicial proceedings unless and until he has had a fair oppor-tunity of answering the complaint made against him. Thus, objec-tors at public inquiries must be given a fair opportunity to meetadverse evidence, even though the statutory provisions do notcover the case expressly. (Vide Emington v Minister of Health <2>)The Court would certainly regard any decision as having grave con-sequences if it affects proprietary rights. In Schmidt v Secretary ofState for Home Affairs W at 170 Lord Denning M.R. suggested thatthe ambit of natural justice extended not merely to protect rights butany legitimate expectation of which it would not be fair to deprive aperson without hearing what he has to say.”
Where a refreshment licence was refused to a theatre whichhad enjoyed it for over fifty years on the ground that it should betreated equally with a new theatre where an application has beenrefused and because there were other facilities nearby, the Courtobserved that the licensing committee were held to have given toolittle weight to the fifty years’ enjoyment and too much to rigid con-sistency. (Vide R v Flintshire County Licensing Committee ex.pBarrett).W
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On an undertaking given by the learned State Counsel on24th July 2003 an inquiry was held on 13th August 2003 by a com-mittee presided over by the fourth respondent.
According to the report of the said committee marked P14, itwould appear that the committee too recommended that the peti-tioner's application for a FL4 licence for the year 2003 be consid-ered. However the first respondent has refused the licence to thepetitioner as evidenced by the letter dated 29th August 2003marked P15.
This Court is of the view that the petitioner has no controlover the construction of the Muslim Mosque ten years after he com-menced his liquor business. (Vide P13) The petitioner’s applicationfor the renewal of his licence for the year 2003 was refused due tono fault, of the petitioner. The petitioner should not be penalised onan unreasonable basis. Nobody, of course can dispute that the firstrespondent has a discretion in the matter. It is a discretion to beexercised reasonably, fairly and justly. It would appear that the firstrespondent issued the licence to the petitioner in the year 2002upon the recommendations of the relevant officials including thefourth respondent. The said licence was cancelled subsequently onan arbitrary basis violating the principles of natural justice. “If theprinciples of natural justice are violated in respect of any decision itis, indeed, immaterial whether the same decision would have beenarrived at in the absence of the departure from the essential princi-ples of justice. The decision must be declared to be no decision.” -per Lord Wright in General Medical Council v SpackmanW at 644.
Considering the totality of the material placed before thisCourt, I am of the view that the first respondent's refusal to issuethe FL4 licence to the petitioner for the year 2003 is arbitrary, capri-. cious and unreasonable especially where the gazette marked P1 issilent (as opposed to the Gazette marked P16) with regard to situ-ations where a place of public religious worship is established sub-sequent to the issue of a licence to a business premise.
In the circumstances, a writ of certiorari is issued quashingthe documents marked P12 and P15 dated 23rd May 2003 and29th August 2003 respectively. A writ of mandamus is issued on therespondents directing them to issue the FL4 licence, forthwith to
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the petitioner for the balance period in the year 2003 upon paymentof the licence fee by the petitioner on a pro-rata basis. The peti-tioner is also entitled to costs in a sum of Rupees 7500 payable bythe first respondent.
Application allowed.