S. K. SUBRAMANIAM, Petitioner, and THE MINISTER OF LOCAL GOVERNMENT AND CUTURAL

064-NLR-NLR-V-59-S.-K.-SUBRAMANIAM-Petitioner-and-THE-MINISTER-OF-LOCAL-GOVERNMENT-AND-CUTURAL.pdf

254
Subramaniam f. Minister of Local Govsrnment and Cultural Affairs
1957Present-. Gunasekara, J.S. K. SUBRAMANIAM, Petitioner, and THE MINISTEROF LOCAL GOVERNMENT AND CULTURALAFFAIRS et al., RespondentsS. C. 152—In the matter of an Application for a mandate in theNATURE OF A WRIT OF CERTIORARI UNDER SECTION 42 OF
the Courts Ordinance
S. C. 274—In the matter of an Application for mandate in thenature of a Writ of Quo Warranto under Section 42 ofthe Courts Ordinance
Certiorari—Quo warranto—Member of a Town Council—Removal from office—Dulyof Minister to act judicially—Town Councils Ordinance, Ko. 3 of 1910,s. 197 (1), (2), (3)—Local Authorities Elections Ordinance, -Vo. 53 of 1910,s. 10 (2)—Courts Ordinance, s. 42.-
An Order under Section 197 (1) of tlio Town Councils Ordinance removinga member of a Town Council from offico can bo made by the Minister only ifho “ is satisfied that there is sufficient proof” of any of the facts enumerated
GtXN'.A SEKAK.4, J.—Subramaniatn v. Minister of Local Government
and Cultural Affairs'
255
in that Section. When making such Order, the Minister not only exercises apower which involves legal authority to determine questions affecting the rightsof subjects but is also under a duty to act judicially, and would therefore benmenablo to certiorari if the member in question is not first given a fairopportunity of showing cause against an Order being made against him.
Under Section 197 of tho Town Councils Ordinance a member who is not theChairman cannot bo removed from tho office of member on the ground that ata timo when he was tho Chairman ho was, as Chairman, guilty of conduct forwhich ho.could have been removed from the office of Chairman.
Gunapala v. Kannangara {1955) 57 N. L. R. C9 not followed.
j/^lPPLICATIONS for writs of certiorari and quo uxirranto.
H. V. Perera, Q.G., with Izadeen Mohamed and H. D. Tambiah, forpetitioner in both applications.
M. Tiruchelvam, Acting Solicitor-Genera], with V. G. B. Perera,Crown Counsel, for 1st respondent in Application 152 and 2nd respondentin Application 274.
No appearance for 2nd respondent in Application 152.
H. C. Keerthisinghe, for 3rd respondent in Application 152 and 1strespondent in Application 274.
September 6, 1957. Gitsasekama, J.—.
These two applications, for mandates in the nature of writs of certiorariand quo warranto respectively, arise out of the same facts and wereheard together. They relate to an Order made by the Minister of LocalGovernment and Cultural Affairs (who is a respondent to both applica-tions) in the purported exercise of powers vested in him by section 197of the Town Councils Ordinance, No. 3 of 1946. The relevantprovisions of the section, as amended and modified by subsequentlegislation, are in these terms :..
“ (1) If at any time the Minister is satisfied that there is sufficientproof of—
persistent refusal to hold or attend meetings or to vote or to’ transact business at any meetings that may be held ; or
wilful neglect, or misconduct in the performance, of the duties
imposed by this Ordinance; or •.
persistent disobedience to or disregard of the directions,
instructions .or recommendations of the Slinister or of the
' Commissioner; or.
incompetenceand mismanagement; or
256
GUNASEKAJRA, J.—Subramaniatn v. Minister of Local Government
and Cultural Affairs
abuse of the powers’ conferred by this Ordinance, on the part ofthe Chairman or on the part of any Town Council or any of the' members thereof, the Minister may, as the circumstances ofeach case may require, by Order published in the Gazelle—r
(i) remove the Chairman from office ; or-
(ii) remove all or any of the members of the Council fromoffice, and direct that a by-election in accordance withthe provisions of written law for the time being-applicable in that behalf shall be held for the purpose
of electing a member in place of each member spremoved ; or.
(hi) dissolve the Council.
Every Order made under sub-section (1) shall contain suchdirections and such supplemental, consequential and incidentalprovisions as may be necessary for the purpose of giving effect to theOrder, and shall, on publication in the Gazette, have the force of law
The Order in question refers to the petitioner, Sir. S. K. Subraiuaniam,and was published in the Gazette of the 26th October 1956. It recitessection 197 of the Town Councils Ordinance and the relevant subsequentlegislation, and states that the Minister “ being satisfied that there issufficient proof of i. incompetence and mismanagement ; and ii. abuseof the powers conferred by the first-mentioned Ordinance, on the part ofMr. Sarawanamuthu Kasipillai Subramaniam, a member of the RattotaTown Council”, removes him “from the office of member of thatCouncil ” and directs that a bj'-election be held to fill the vacancy. Anelection was held in pursuance of this Order and on the ISth February1957 Mr. Zainul Abdeen (who too is a respondent to both applications)was declared elected a member of the Council in place of the petitioner.In each of the Applications the petitioner asks that the Minister’s Ordershould be quashed and that it should be declared that the petitioneris and continues to be a member of the Council. In Application No. 274he also asks that the election of Mr. Abdeen be set aside as being badin lawr.•
The petitioner had been elected a member of this Town Council at ageneral election held in December 1954, and his term of office, whichbegan on the 1st January 1955, was due to expire in the ordinary courseon the 31st December 1957. His account of the circumstances in whichthe Order in question was made, as set out in each of the two petitionsand the affidavits filed in support of them, is as follows. He was electedChairman of the Council on the 17th Januar3' 1955. By a letter datedthe 11th July ’1956 he was called upon to show cause why an Ordershould not bo made by the Minister under section 197 of the TownCouncils Ordinance upon certain grounds that were specified in the letter.
GUXASEKATtA, J.—Subramaniam v. SUinixtcr of Local Gaverment
and Cultural Affair-i
257
The letter, which was from the Permanent Secretary to the Jlinistryand was addressed to the petitioner as Chairman of the Council,was in these terms :•
“ Com plaint by Ratepayers' Association
The Hon’ble the Minister, whose attention has been drawn torepresentations made by the Ratepayers’ Association of Rattotaagainst your administration, has directed me to request you to state,within two weeks from the date of receipt of this letter, whether youhave an}' cause to show against action under Section 197 of the TownCouncils Ordinance in view of :—'
Your failure to reply to the 13 letters sent by 3Ir. Piyumasinghe,
Member of Your Council ;
Your taking upon yourself duties which normally should be
performed by Health O/Iicers, thereby causing a deteriora-tion in the sanitary condition of the Town and its conservancyand scavenging services ; and-
Your permitting the Vice-Chairman to contravene the law and
act in an arbitrary and prejudicial manner as indicated inmy letter of even date to the Vice-Chairman, a copy of whichis annexed for your information. ”
The petitioner replied by a letter dated the 25th July 1956 denying theseallegations. Later, by a letter dated the 5th October 1956 and addressedto the Assistant Commissioner of Local Government, Central Region, hotendered his resignation “ from the office of Chairman only ” as fromthe* 16th October 1956. He says that he did so in compliance with arequest made to him by the ^linister at an interview and that after hisresignation from the office of Chairman he “ continued to be a memberof the said Council and he was at no time informed of any default on hispart as a member of the said Council ”. He complains that the Ministerdid not give him anyr notice of an intention to remove him from the office-of a member of the Council, or communicate to him at any time anycharges against him cs qua- member of the said Council ”, or give him anopportunity of meeting such charges.
Upon these allegations of fact the petitioner originally sought to havehimself restored to the office of a member of the Council by a mandatein the nature of a writ of mandamus directed to the Chairman. Hi3application for the issue of such a mandate, which was filed on the 27thXovember 1956, was taken up for hearing before H. G. Fernando, J.on the 13th March 1957. After some discussion it was laid by*until thedetermination of an application for a writ of certiorari which the petitionerundertook to file. The circumstances in which it was laid by are setout as follows in my' brother Fernando’s order.
“ The Attorney-General on behalf of the 2nd respondent, the Ministerof Local Government and Cultural Affairs, has stated to Court that .in his opinion the appropriate remedy which the petitioner mightseek would be.by* way of an application for a Writ of Certiorari.
25SGU2 ASEKARA, J.—Subramaniam v. 1Minister of Ijocal Government
and Cultural Affairs
Apparently, the reason why such an application was not actuallymade was that it was thought that the decision of this Court in thecase reported in 57 K. L. R., page 69, would have been adverse to suchan application. The Attorncy^General now states that the iliuisterof Local Government has been advised that that decision should notbe relied upon, particularly in view of the earlier decision of threeJudges in the case reported in 51 X. L. R., page 105.
Having regard to these matters, Counsel for the petitioner nowundertakes to make an application for a Writ of Certiorari andrequests that the present application be laid by for consideration, ifnecessary, after the determination of the fresh application.”
The present application for a mandate in the nature of a writ ofcertiorari was filed in pursuance of this arrangement on the ISth March1957, and the application for a mandate in the nature of a writ of quounrranto was filed on the 27th May 1957.
At the hearing of these applications before me the learned actingSolicitor-General, who appeared for the Minister, contended that certioraridid not lie, and that even if it did the facts set out in the petitioner’sown affidavits showed that the Minister had complied with the require-ments of the law. (The allegations of fact made by the petitioner inhis affidavits have not been contradicted in these proceedings.)
The source of the jurisdiction of this Court to issue mandates in thenature of writs of certiorari and other prerogative "writs is section 42of the Courts Ordinance (Cap. 6), which empowers the Court to issuesuch mandates “ according to law ”. As was pointed out in NakkadaAlt v. Jayaratne1 ‘‘ when s. 42 gives power to issue these mandates* according to law ' it is the relevant rules of English common law thatmust be resorted to in order to ascertain in what circumstances and underwhat conditions the Court may be moved for the issue of a prerogativewrit In accordance with these rules,
“ Wherever any body of persons, having legal authority to determinequestions affecting the rights of subjects and having the duty to act .judicially, act in excess of their legal authority they are subject to thecontrolling jurisdiction of the King’s Bench Division exercised in thesewrits. ” Per Atkin, L. J., in The King v. Electricity Commissioners 2.
An order published under section 197 of the Town Councils Ordinanceremoving a member of a Town Council from office also has the effect-funder section 10 (2) of the Local Authorities Elections Ordinance,No. 53 of 1946) of disqualifying him for 5 years for election as a memberof any local authority or for sitting or voting as such member. It isnot disputed by the acting Solicitor-General that the powers conferredon the Minister by section 197 of the Town Councils Ordinance involvelegal authority to determine questions affecting the rights of subjects,but he contends that the Minister is not under a duty to act judicially",
and therefore certiorari does not lie.
1 [i960) 51 X. L. R. 457 at 401.
– [1904] 1 K. B. 171 at 201.
Gl'XASEKARA, J.—Sultrair.ania»< v. yihiister oj Locil .Government 259
and Ctiltural Affairs
. There is support for this contention in Gunapala v. Kunnangara-where it was held that the hlinister of Local Government performs -anexecutive and not a judicial act when he exercises the power vested inhim by section Cl of the Village Communities Ordinance (Cap. 19S) toremove from office the Chairman of a Village Committee. There is nodifference that is material to the present question between the provisionsof that section and those of section 197 of the Town Councils Ordinance,and the decision in Gunapala's case is therefore in point. This was thedecision winch, the Alim's ter had been advised by the Attorney-General,
“ should not be relied upon, particularly in view of the earlier decision ofthree Judges in the case reported in 51 N. L. R. page 105 ”.
The earlier decision to which the Attorney-General referred was that ofa Divisional Bench in the case of de Mel v. de Silva 2, where the questionwas whether it was competent to this Court to issue a mandate in thenature of a writ of prohibition to a Commissioner appointed by theGovernor-General under the Commissions of Inquiry Act, aSTo. 17 of19IS, to investigate and report whether any member of the, ColomboMunicipal Council had committed certain acts of bribery. A statutethat came into operation after the issue of the commission, entitled theColombo Municipal Council Bribery Commission (Special Provisions)Act, Xo. 32 of 1919, required the Governor-General to cause to be publishedin the Gazette any finding by the Commissioner that such acts of briberyhad been committed by a member of the Council. It also provided thatupon the publication of such a finding in the Gazette the councillor againstwhom the finding was made would immediately forfeit various civiclights. The Court held that the Commissioner was a person havinglegal authority to determine questions affecting the rights of members ofthe Council and having a duty to act judicially, and that it was thereforecompetent to the Court to grant the application for a mandate. '
-It was stated in the judgment of the Divisional Bench 3 that the Com-missioner had to inquire into various allegations of bribery and for thatpurpose he had to examine witnesses on oath or affirmation “ and reacha decision on such evidence with regard to the allegations made againstthe petitioner While it so happened that in that case the person whohad “ legal authority to determine questions affecting the rights ofsubjects ” also had the power to examine witnesses on oath or affirmationit is not necessary tlmt such a person should have that power in orderthat he may be under a duty to act judicially. Thus, it was pointed outin R. v. Manchester Legal Aid Committee 4 that “ an administrative bodyin ascertaining facts or law may be under a duty to act judicially notwith-standing that its proceedings have none of the formalities of and are notin accordance with the practice of a court of law ” ; and in Board ofEducation v. Rice 3 that it may have such a duty though it has no powerto administer an oath and need not examine witnesses. The Commis-sioner in de Mel's – ease was under a duty to act judicially because’ hisdecision, upon questions- affecting the rights of subjects, was one that
1 (19-55) 57 xY. L. B. 69.’ (1949) 51 xV. L,. B. 105 at page 111.
* (1949) 51 -V. L. B. 10-5.'« [1952] 1 All E. B. 480 at 489..-
5 [1911] A. C. 179 at 182.’
2C0GTJEA SEKARA, J.—Subramanian. v. A!inister of Local Government
. and Cultural Affairs
had to depend upon the proof of certain allegations of fact, and not becausehe had the power to examine witnesses on oath or affirmation or had someof the other attributes of a court.'
An axithority whose decision is in question would be one that is undera duty to net judicially “ if it is exercising, after hearing evidence andopposition, judicial functions in the sense that it has to decide on evidencebetween a proposal and an opposition ” : ft. v. London County Council1.Such a ease must be distinguished from one where there is committed toan executive authority “ the decision of what is necessarj' or expedient ”(Carllona, Ltd. v. Gommissioners of Works 2) ; for if an administrativebody in arriving at its decision “ at no stage has before it any form of lisand -throughout has to consider the question from the point of view ofpolicy and expediency, it cannot be said that it is under a duty to actjudicially ” : It. v. Manchester Legal Aid Committee 3.
An Order under section 197 (1) of the Town Councils Ordinance can bemade only if the Minister “ is satisfied that there is sufficient proof ” ofany of the facts there enumerated. Quite clearly the question whetherthere is sufficient proof of a fact is one that can only be decided on evidence,and not on considerations of policy or expediency. The acting Solicitor-General points out, however, that the Minister has a discretion as towhether an Order under that section should or should not be made, andcontends that in the exercise of that discretion the hLinister may take intoaccount considerations of policy and expediency (such as, for instance, apaucity of persons qualified for election) and therefore certiorari doesnot lie to review such an Order. The answer to this contention is thatbefore the Minister can make an Order in the exercise of his discretion hemust decide on evidence whether there is proof of the necessary facts,and at that stage he has a duty to act judicially. Such a situation isdiscussed in the following passage in the judgment in R. v. ManchesterLegal Aid Committee * :•
■ “ When, on the other hand, the decision is that of an administrativebody and is actuated in whole or in part by questions of policy, the dutyto act judicially may arise in the course of arriving at that decision.Thus, if, in order to arrive at the decision, the body concerned has toconsider proposals and objections and consider evidence, then there isthe duty to act judicially in the course of that inquiry. That, as itseems to us, is the true basis of the decision in Erringlon v. Ministerof Health 5. "While the Minister’s decision to confirm the clearanceorder was an administrative act for the purpose of which he was en-titled and bound to take into consideration questions of policy, yet,before arriving at the decision, he had to consider the objections of theproperty owners and the views of the local authority. In other words,at one stage of the proceedings leading up to his decision there wassomething in the nature of a lis before him, and at that stage there was aduty to act judicially, as, for instance, not to hear one side behind theback of the other. Again, in R. v. London County Council1, all that it
* [1931} 2 K. B. 215 at 233.1 [1952} 1 All E. B. ISO at 490.
3 [ 1943} 2 All E. Jl. 5C0.* Ibid, at p. 4S9.
» [193-5} 1 K. B. 249.
GUXASEKARA, -T.—Sufimmaniain v. Minister of Bocal Government 2C1
mil Cultural Affairs-
seems to us ScRt'TTOX, L.J., was saying was that in the ease of theLondon County Council it was enough to make them amenable to cer-tiorari that they had to decide on evidence between a proposal and anopposition during which they had a duty to act judicially.” .
With all respect to the learned judge who decided the case of Gunapalat Kannangara 1, I agree with the Attorney-General’s view that the deci-. sion in that case should not be relied upon particularly in view of the
decision in de 21 cl v. de Silva 2.
* „
The learned acting Solicitor-General has also based an argument on the
provision in subsection (2) of section 197 of the Town Councils Ordinancethat an Order made under subsection (1) “shall, on publication in theGazelle, have the force of'law The argument is that by this provision theMinister has been vested with a delegated legislative power and that thevalidity of an Order made in the purported exercise of that power cannotbe questioned unless it is id Ira vires on the face of it. It is contendedthat for this reason certiorari does not lie even though the Order is onethat can be arrived at only by a quasi-judicial process.
I am unable to accept this contention. It is only an Order “ madeunder sub-section (1) ” that can “ have the force of law ” upon publicationin the Gazelle. Therefore an Order that has not been made in accordancewith the provisions of that subsection cannot have this effect even thoughthere is nothing on the face of it to show that it is ultra vires. There isno provision creating a conclusive presumption that an Order has beenduly made i f it appears to be regular on the face of it. Therefore the Courthas jurisdiction to go behind the Order in an inquiry as to its validity,and as the Minister is under a duty to act judicially in arriving at theOrder its validity can be inquired into in certiorari proceedings. –
There is support for this view in the decision of the House of Lords inMinister of Health v. The King3, where the effect of an enactment bywhich Parliament has delegated its legislative function to a Minister isconsidered. Section 10 of the Housing Act, 1925 (15 Geo. 5 c. 14), em-powered the Minister of Health to make an order confirming, with orwithout modifications, an improvement scheme made under the Act, andprovided that the order when made was to have effect as if enacted in thatAct. It was held that this provision did not prevent an inquiry into thevalidity of the order by way of proceedings in certiorari.
As the Order in question in the present ease was one that had to bearrived at by a quasi-judicial process it could not be validly made unlessthe petitioner was first given a fair opportunity of showing cause againstit. It is true that the Ordinance does not expressly provide that a coun-cillor must be given such an opportunity before he can be removed fromoffice ; but “ although there are no positive words in a statute requiringthat the party shall be heard, 3-et the justice of the common law willsupply the omission of the legislature’’. {Per Hylcs, J.,-in Cooper v.
The Wandsworth Hoard of Works 4). It is a well established principle .
“ that where judicial functions, or quasi-judicial functions, have to be
■1 {1955) 57 X. L. Ji. G9.=[19311 A. O. 491.-
1 {1919) 51 A'. L. 11. 105.* {ISO3) 11 G. B. [*t. S.) ISO at 191.
262GUNASEKARA, J.—Subrttmnniam’v. Minister of Local Government –
and Cultural Affairs
exercised by a Court or by a board, or any body of persons, it is necessaryand essential …. that the}' must always give a fair opportunityto those who are parties in the controversy to correct or to contradict anyrelevant statement prejudicial to their view ”. {Per Iloche, tL.J., inErringlon v. Minister of Health1).
It is contended for the Minister that such an opportunity was given tothe petitioner when he was informed by the letter of the 11th July 1936of the allegations made against him and was invited to state whether hehad “ any cause to show against action under section 197 of the TownCouncils Ordinance ” and was later granted an interview with the Ministeron the subject of this letter. The letter referred to complains about thepetitioner’s " administration ”, that is to say, the discharge of his functionsas Chairman of the Council, and the allegations that he was called uponto answer related solely to his conduct in that capacity The only evidenceas to what occurred at the interview is the averment in the petitioner’saffidavits that it was as requested by the jIinister on that occasion thathe resigned the office of Chairman. There is no evidence that there wasany discussion of the question of his continuing to be a member of theCouncil.
In terms of section 197 of the Ordinance, if the Minister is satisfied thatthere is sufficient proof of certain conduct ” on the part of the Chairmanor on the part of any Town Council or any of the members thereof”,he may, “ as the circumstances of each case may require ”, by Orderpublished in the Gazette (i) remove the Chairman from office or (ii) removeall or any of the members from office or (iii) dissolve the Council. TheMinister’s power to make these Orders is subject to the qualification“ as the circumstances of each case may require ”. It seems to me thatthis qualification implies that the Chairman may be removed from theoffice of Chairman only for conduct on-his part-in that capacity, thata member may be removed from the office of member only for conducton his part as a member and that the Council may be dissolved only forconduct on the part of the Council as such. A member who is not theChairman cannot be removed from the office of member on the groundthat at a time when he was the Chairman he was as Chairman guilty ofconduct for which he could havebeeen removed from the office of Chairman.Subsection (3) of the section provides that where the Minister removes aChairman from office “ the Chairman shall be deemed to vacate forthwiththe office of member of the Council as well as the office of Chairman ”.Provision for such "deeming” would be unnecessary if subsection (1)had the effect of empowering the Slinister to remove a Chairman from bothoffices upon proof of conduct which rendered him liable to be removedfrom the office of Chairman.
The petitioner has asserted in his affidavits that he had been given noopportunity of showing cause against the Order in question before it wasmade. The facts relied upon by the acting Solicitor-General as proving• the contrary only show that the petitioner was called upon to answerallegations that in his capacity of Chairman of the Council lie was guilty
i [J93o] I K. B. 249 at 2S0.
Siriwardnna v. Batalin
263
of conduct rendering him liable to be. removed from that office, and notthat he was required to meet a charge of conduct rendering him liable tobe removed from the office of member.
23oth applications arc entitled to succeed. The Order in question isquashed and it is declared that the petitioner continues to be a memberof the Council and that the election of Mr. Zainul Abdecn (the 3rd res-pondent in Application No. 152 and 1st respondent in Application No. 274)is void.-
It was agreed that an order for costs should be made only in respectof one Application. The petitioner will be paid the costs of ApplicationNo. 152 by the 1st respondent. I make no order as to the costs ofApplication No. 274.
Applications allowed.