RAWAYA PUBLISHERS AND OTHER
v.WIJEDASA RAJAPAKSHA, CHAIRMANSRI LANKA PRESS COUNCIL & OTHERS
COURT OF APPEALDE SILVA, J. (P/CA)
C.A. 1166/99SEPTEMBER 21™, 2000OCTOBER 31th, 2000JANUARY 8th, 2000
Writ of Certiorari – necessary party not been made a party – Is it fatal?Who is a necessary party?
The Petitioner sought to quash the Order made by the Respondents whereinthey (the Sri Lanka Press Council) directed the Petitioner to apologise tothe complainant X, within one month from the receipt of the said order.The complainant X was the Secretary – General of the Janatha VimukthiPeramuna (J. V. P)
On the preliminary objection raised, that the said X in whose favour theOrder which is sought to be made has not been made a party to theapplication –
(i) In the content of writ applications a necessary party is one withoutwhom no order can be effectively made.
The Order of the Press Council is in his (X) favour. The Petitioner cannotbe permitted to proceed with an application keeping the originalcomplainant out of the proceedings.
APPLICATION for a Writ of Certiorari.
Cases referred to :
James Perera u. Godwin Perera – 48 NLR 1 10
Gunatllake v. Government Agent, Galle – 47 NLR 49
Farook v. Siriwardena-Election Officer & others – 1997 1 SLR 145
Carron v. The Government Agent. Western Province – 46 NLR 237
Abeydeera and 162 others v. Stanley Wijesundera. ViceChancellor, University of Colombo & Others – 1983 2 SLR 267
Sri Lanka Law Reports
120011 3 Sri L.R.
Ramasamy u. Ceylon State Mortgage Bank and others – 78 NLR510
Udit Narayan Singh v. Board of Revenue. AIR 1963 – SC 786
Prabodh Verma u. State of Uttar Pradesh – AIR 1985 SC 167
Upul Jayasoorlya for Petitioner.
Ikram Mohamed PC., with Kapila Liyanagamage for Respondents.
Cur. adv. unit.
July 27, 2001.
J. A. N. DE SILVA, J. (P/CA)
The petitioners in this application seek to quash the ordermade by the first to seventh respondents on 02. 11. 1999wherein they directed the petitioners to apologize to thecomplainant one Tilwin Silva, within one month from thereceipt of the said order. The complainant Tilwin Silva claimsto be the Secretary – General of the Janatha Vimukthi Peramunaand the complaint has been made to the Press Council bydocument marked P2.
When this application came up for hearing a preliminaryobjection on behalf of the respondents was raised that theGeneral – Secretary of the Janatha Vimukthi Peramuna in whosefavour the order which is sought to be quashed has been madehas not been made a party to this application and the failure todo so is fatal to the application filed by the petitioners. On thisquestion both parties agreed to tender written submissions andfinally did so on the 8th of January 2001.
In the written submissions the respondents referred to andrelied on the following decisions of the Supreme Court.
(1)James Perera v. Godwin Perera"1 2 3
(2)Gunathilaka v. Government Agent GalleKI
(3)Farook v. Siriwardena, Election Officer and Others131
In Perera v. Perera (Supra) it was held that in anapplication for a writ of mandamus to compel a local authority
CA Rawaya Publishers and other u. Wijedasa Rajapaksha, Chairman 215Sri Lanka Press Council & Others (J. A. N. De Silva, J. PICA)
to issue a bakery license in favour of thi petitioner incircumstances prejudicial to the rights of the person who wasalready holding the license, the failure to make the holder ofthe license as a party respondent is a fatal irregularity. In twoearlier cases a similar objection was sustained viz in Carron v.The Government Agent Western Province14' and Gunathilakev. The Government Agent Gglle(Supra). In the case ofAbayadeera and 162 Others v. Stanley Wijesundara, ViceChancellor University of Colombo and Another151 It was heldthat 115 students of the North Colombo Medical College arenecessary parties and the failure to make them respondents isfatal to the petitioners application.
In Farook v. Siriwardena(Supra) his Lordship JusticeKulatunga at page 148 has stated as follows "there is anotherpoint although it had not been previously raised namely that
T.K. Azoor who had been nominated by the party as its newmember of the Municipal Council and whose rights are affectedin these proceedings had at no stage was made a party to theapplication made to the Court of Appeal. This itself is fatal tothe validity of this application."
Counsel for the petitioner tried to distinguish all theauthorities cited by the respondents and submitted that in allthose cases the Court has recognized the fact that if anapplication is made to add a party omitted in the originalapplication the Court will allowsuch an application irrespectiveof delay. He specifically relied on the decision in Ramasamy v.Ceylon State Mortgage Bank and Other161 where the Ministerwho made the vesting order under the relevant Act in respect ofthe redemption of land was not made a party to the applicationof writ of certiorari but was allowed to be added as a partyrespondent on an application made 4 years after the case wasoriginally filed.
It should be noted that in Ramasamy's case Court primarilyconsidered the power it has to deal with the question of lachesand Justice Wanasundara stated that "principle of laches mustbe applied carefully and discriminate^ and not automaticallyand as a mere mechanical device." In that case the Ministerwho was in charge of the subject was made a party and when
Sri Lanka Law Reports
(20011 3 Sri L.R.
the objection was taken that he was not the person who madethe order Court considered the circumstances of the case andpermitted the addition, because otherwise grave prejudicewould have been caused to the petitioner. The Court wasconsidering about the proprietary rights of the petitioner.
In the instant case the Counsel for the petitioner submittedthat Tilwin Silva is not a necessary party but a useful party, inthe circumstances the addition should be permitted. TilwinSilva is the complainant in the case. The order of the PressCouncil is in his favour. Petitioner cannot be permitted to proceedwith an application keeping the original complainant out ofthe proceedings.
In the context of writ applications, a necessary party is onewithout whom no order can be effectively made. A proper partyis one in whose absence an effective order can be made butwhose presence is necessary to a complete and final decisionon the question involved in the proceedings. In the case of UditNarayan Singh v. Board oj Revenue171 it has been held thatwhere a writ application is filed in respect of an order of theBoard of Revenue not only the Board itself is a necessary partybut also the parties in whose favour the Board has pronouncedthe impugned decision because without them no effectivedecision can be made. If they are not made parties then thepetition can be dismissed in limine. It has also been held thatpersons vitally affected by the writ petition are all necessaryparties. If their number is very large, some of them could bemade respondents in a representative capacity (vide PrabodhVerma v. State oj Uttara Pradesh181 also see Encyclopedia ofWrit Law By R M. Bakshi)
As stated earlier Tilwin Silva is the complainant. Failure tomake him or Janatha Vimukthi Peramuna a party to thisapplication is a fatal irregularity. Petitioners should not bepermitted to use the process of Court to cover their lapses. Thisapplication is dismissed with costs.
RAWAYA PUBLISHERS AND OTHER v. WIJEDASA RAJAPAKSHA, CHAIRMAN SRI LANKAN PR