009-NLR-NLR-V-80-SHARVANANDA-J.–Sirisena-and-Others-V.-Kobbekaduwa-Minister-of-Agriculture-an.pdf
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SHARVANANDA, J.
Since a division of the Supreme Court was “of the opinion that the ordersmade by the learned High Court and District Court Judges'on the face of therecords appeared to be illegal in view of the provisions of section 24 of theInterpretation Ordinance as amended by the Interpretation (Amendment)' ActNo. 18 of 1972” the Petitioners/Plaintiffs in the several cases were noticed toappear and show cause as to why the said orders should not be set aside inthe exercise of the powers of revision of the Supreme Court in terms ofsection 354(1) of the Administration of Justice Law No. 44 of 1973.
The impugned orders consist of orders granting an injunction to thePetitioners, by the High Court in the exercise of its jurisdiction under section21 of the Administration of Justice Law, and orders granting interiminjunction to the Plaintiff by the District Court in the exercise of its powersunder sections 662 and 664 of the Civil Procedure Code read with section 42of the Administration of Justice Law, against the Hon. H. S. R. B.Kobbekaduwa, Minister of Agriculture and Lands, restraining him, his agentor officer, from taking further steps or proceedings towards acquisition of theproperties (referred to in the schedule to their petition or plaint) and fromejecting the Petitioner/Plaintiff from the said properties. On the application
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of some of the parties noticed, that the questions that arise for considerationin these cases are fit and proper questions for authoritative decision by theSupreme Court, as they are of fundamental importance in regard to the rightof the citizen to obtain interim injunction against a Minister of State or StateOfficer in the circumstances set out in the several plaints in the said cases,the Hon’ble the Acting Chief Justice made order under section 4(3)(c) of theAdministration of Justice Law that the matters in dispute be heard anddecided by a Bench of nine judges of the Supreme Court as they are ofgeneral and public importance.
The main question in issue that was canvassed in this Court was whetheran injunction under section 21 of the Administration of Justice Law orinterim injunction under sections 662 and 664 of the Civil Procedure Coderead with section 42 of the Administration of Justice Law or a permanentinjunction could be issued or granted against a Minister or an officer of theCrown, in view of the prohibitive provisions of section 24 of theInterpretation (Amendment) Act No. 18 of 1972.
The general allegation of the plaintiffs/petitioners finding each his causeof action for a declaration that the purported acquisition is a nullity is that theMinister had misused the powers vested in him by the Land Acquisition Actfor the purpose of political revenge and/or personal vendetta. This allegationwas supported by affidavits which were considered sufficient by the variousCourts to justify the issue of the interim relief viz. interim injunction prayedfor. Objections filed by the Respondent Minister to have the injunctiondissolved have either been rejected or are awaiting further inquiry.
It is only as an issue of pure law that the question arises whether the Courtis barred by the provisions of section 24 of the Interpretation (Amendment)Act from issuing an injunction whether interim or perpetual, under whatevercircumstances, against the Minister or officer of the Crown and in particulareven when there is colourable exercise or abuse of his power by the Ministeror officer. This section reads as follows:
“24(1) Nothing in any enactment whether passed or made before orafter the commencement of the ordinance shall be construed to conferon any Court, in any action or other civil procedure, the power to grantan injunction or make an order for specific performance against theCrown, a Minister, a Parliamentary Secretary, the Judicial ServiceCommission, the Public Service Commission, or of any member orofficer of such Commission, in respect of any act done or includedor about to be done by any such person or authority in theexercise of any power or authority vested by law in any suchperson or authority.
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Provided, however, that the preceding provisions of this subsection shallnot be deemed to affect the power of such Court to make, in lieu thereof, anorder declaratory of rights of parties.
(2) No Court shall in any civil proceeding grant an injunction or make anorder against an officer of the Crown if the granting of the injunction or themaking of the order would be to give relief against the Crown which couldnot have been obtained in proceedings against the Crown.”
Does this provision provide a blanket exclusion of injunction against theCrown, Minister, etc. and officers of the Crown and afford to them a charterof immunity from any restraint by way of injunction whether the powersexercised by them are validly or bona fide exercised or not? The learnedSolicitor-General appearing for the Minister went to the length of stating thatsection 24 precludes the Court from granting any injunction interim orpermanent against a Minister whatever the legal quality of his action be andthat the Minister’s fiat is a complete answer to the Plaintiffs/Petitionersapplication for interim injunction. On the other hand counsel appearing forthe plaintiffs argued that the immunity conferred by section 24 attaches onlyto acts of the Minister done in legal and bona fide exercise of the powersvested in him. These two approaches reflect two conflicting philosophies orattitudes and point to opposite directions of future development in legalthinking.
I approach the consideration of the issue in these cases with the anxiouscare which Judges of the Court have always given, and, I am confident willalways give, to questions where it is alleged that the liberty and rights of thesubjects have been unjustifiably interfered with. It is well to remember thatthe jurisdiction of the Courts has always been the only refuge of the subjectagainst the unlawful acts of the Executive and its erring officers. Courts existfor the administration of justice and have an inherent power to review theexercise by the executive of its statutory powers which impinge on thecitizens’ rights and interests. An independent judiciary to which ourconstitution has entrusted the judicial power of the people is at once aguarantee and a bulwark of the freedom and rights of the subjects. Theconcept of Rule of Law assumes that the judicial power of the State extendsto the review of judicial, quasi-judicial and executive acts and that anyrestriction on this power of review is a threat to the Rule of Law. Hence thereis a presumption against ousting the jurisdiction of Courts to determine theextent of statutory powers. The exclusion of the jurisdiction of the Court isnot to be readily inferred but such exclusion must be either explicitly statedor clearly implied. A Court of Law, naturally, approaches in a critical spiritany legislation which is calculated to impede a Court in the discharge of itsduty to administer justice. Hence a Court will be disposed to construe anysection, if possible, so as to avoid that result.
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“It is a principle not by any means to be whittled down that the subject’srecourse to Her Majesty’s Courts for the determination of his rights isnot to be excluded except by clear words. That is a ‘fundamental rule’from which I would not for my part sanction any departure” — perViscount Simonds in Pyx Granite Co. Ltd. v. Ministry of Housing.15'
Sachs, J. in Commissioner of Customs and Excise v. Cure and DeeleyLtd.'52 referred this well-known rule that a statute should not be construed astaking away the jurisdiction of the Courts in the absence of clear andunambiguous language to that effect. This leaning rests in a reluctance todeny to the subject access to the seat of justice. This denial can findexpression in a complete deprivation of remedy or even in the substitution ofa restricted remedy. The learned Solicitor-General conceded that thispresumption operates when a complete ouster or removal of jurisdiction isaimed at, but not when only a remedy is suppressed. He compared sections22 and 24 of the Interpretation (Amendment) Act and stated that as section24 preserves the subject’s right to a declaration of his rights, while seeking toextinguish the remedy of injunction, this presumption does not lie. I regretthat I cannot appreciate this distinction. The presumption operates wheneverthere is a complete or a restricted ouster of the traditional jurisdiction of theCourt. Any erosion of the Court’s jurisdiction to determine a cause or togrant any particular remedy which an aggrieved person is ordinarily entitledto is not to be lightly presumed. In Ceylon declaratory relief challengingadministrative action is generally sought with an injunction (both interim andpermanent). An injunction will be granted to restrain a public officer fromdoing or threatening to do a wrongful act in the colourable exercise of hisstatutory powers — Buddhadasa v. Nadarajah, (supra). Coercion is generallynecessary to ensure that law is obeyed. Prevention is better than cure. Aninjunction restrains a threatened wrong before it takes place. An interiminjunction effectively stops the executive from using its powers, pendentelife for unauthorised purposes causing irreparable danger or mischief. Theefficacy of the injunction is indisputable. A civil Court, in the exercise of itsordinary civil jurisdiction has the jurisdiction to grant the remedy of interimand permanent injunctions in all appropriate cases to prevent or arrest thethreatened wrong. If such a valuable remedy is to be denied to a complainantof injustice committed by the executive there must be express or clearstatutory language of exclusion. The presumption is against such legislativeintent to take away the preventive jurisdiction of the Court.
Rule of law is the very foundation of our Constitution and the right ofaccess to the Courts has always been jealously guarded. Rule of law dependson the provision of adequate safeguards against abuse of power by theexecutive. Our Constitution promises to usher in a welfare state for our 3
l3,(1960) A C. 260 at 286.
,52(1962) IQB 340.
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country. In such a state, the Legislature has necessarily to create innumerableadministrative bodies and entrust them with multifarious functions. They willhave power to interfere with every aspect of human activity. If theirexistence is necessary for the progress and development of the country theabuse of power by them, if unchecked, may defeat the legislative scheme andbring about an authoritarian or totalitarian state. The existence of the powerof judicial review and the exercise of same effectively is a necessarysafeguard against such abuse of power.
“It is characteristic feature of modern democratic government in theCommonwealth that unless a statute provides to the contrary, officials orothers are not exempted from the jurisdiction of the ordinary tribunals.. . Behind Parliamentary responsibility lies legal liability and the acts ofMinisters no less than the acts of subordinate officials are made subjectto the Rule of Law . . . and the ordinary Courts have themselvesjurisdiction to determine what is the extent of his legal power andwhether the orders under which he acted were legal and valid”— perDias S.P.J. in re Agnes Nona (supra).
Review by the Courts of an act or decision of an administrative agencyhas always been based on an allegation that the agency has exceeded orabused its powers and has acted ultra vires. When a power is exceeded orabused any acts done in such excess or abuse of the power is done withoutauthority. The ultra vires doctrine effectively controls those who exceed orabuse the administrative discretion, which a statute has given.
Administrative power derives from a statute and is circumscribed by it.The Courts will intervene not only to prevent powers being exceeded, butalso to prevent their being abused by the application of the ultra viresdoctrine. If the repository of a power exceeds or abuses its authority, thepurported exercise is a nullity. For the proper or lawful exercise of a statutorypower, there should not only be a compliance with the substantive formaland procedural conditions laid down for its performance but also withimplied requirements governing the exercise of discretion. A power isgenerally associated with the exercise of a discretion. All statutory powersmust be exercised in good faith and for the purpose for which they weregranted. The repository of power must act fairly and have regard to relevantconsiderations and not allow itself to be influenced by irrelevantconsiderations.
“It is well settled that a public body invested with statutory powers musttake care not to exceed or abuse its powers. It must keep within thelimits of the authority committed to it. It must act in good faith andmust act reasonably” — per Lord Macnaughten in WestminsterCorporation v. London cfe N. W. Railway Co. (supra)
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“It is in this field of the extent of the powers of government that theCourts have a traditional and important part to play in the control ofadministrative agencies” Garner ‘Administrative Law’ (3rd edition) atpage 104.
“Their (Courts’) task is to contain administrative activity within thebounds of delegated power; to apply to administrative action the test oflocality …” — vide article of Professor L.L. Jaffe and Edith G.Henderson “Judicial Review and the Rule of Law (1956) 72 L.Q.R. 345.
It is to be borne in mind that the ultra vires doctrine is not confined tocases of plain excess of power; it also governs abuse of power as when apower is granted for one purpose is exercised for a different purpose or for acollateral object or in bad faith. In law the consequences are exactly thesame; an improper motive or a false step in procedure, will make anadministrative act just as illegal or invalid as does a flagrant excess ofauthority — see Wade, Administrative Law (2nd edition) 47.
“An act is no less valid because it is an abuse of power than because itis an excess of power in the narrow sense of the term” — de Smith,Judicial Review of Administrative Action, 2nd edition at 302.
Thus abuse of power or discretion constitutes a ground of invalidityindependent of excess of power. An Act or thing done in abuse of power isultra vires that authority and thus becomes in law a nullity. The power is ineffect regarded as not having been exercised.
“The exercise of a power for an improper purpose is not an exerciseof power conferred for purposes defined in the statute which confers
it” — Wade and Phillips, Constitutional Law (7th edition) 647.
Mr. Jayewardene contended with force that when a statute refers to theexercise of power it contemplates that the power shall be exercised in goodfaith and that it is inconceivable that the Legislature should have intended tosanction the exercise of powers otherwise than in good faith. The burden ofhis argument was that there is always a presumption that when theLegislature creates statutory powers and invests persons or bodies withauthority to exercise such power, the Legislature intended such acts to beperformed bona fide for the purpose for which the authority or power iscreated. If therefore the Legislature seeks to give protection to such acts bymaking persons who exercise such powers immune from action, then suchimmunity must necessarily apply only to the acts done bona fide in theexercise of such powers. Authorities from advanced systems of jurisprudencegenerally support this proposition urged by him. In my view, this propositionis well founded in law as the following citations demonstrate.
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A provision that the decision of a Board of Tribunal “shall not bechallenged, appealed against, quashed or called in question or be subject toprohibition, mandamus or injunction, in any Court on any groundwhatsoever” has been held by the High Court of Australia as makingjurisdictional defects invulnerable provided that the Board’s decision wasa bona fide attempt to exercise its power, that it related to the subject-matter of the legislation and that it was reasonably capable of reference tothe power given to it. R v. Hickman, ex parte Fox and Clinton (supra). Thisstatement of the law has been quoted with approval and generally followedin the Australian Courts.133,154
It is of the utmost importance to uphold the right and indeed the duty ofthe Courts to ensure that powers shall not be exercised unlawfully whichhave been conferred on a local authority or the executive, or indeed anyoneelse, when the exercise of such powers affect the basic rights of anindividual. The Courts should be alert to see that such powers conferred bystatute are not exceeded or abused — per Salmon L.J. in Rex v. Barnetand Camden Rent Tribunal. 133
“In considering whether there has been a valid reference it is necessaryto consider whether on the facts of the case there has been a valid and
bona fide exercise of the power conferred by Parliament on them
It will be within the power and duty of this Court so as to interfere incases where there is not a bona fide exercise of the powers given byParliament” — per Lord Goddard, S.J. in R v. Paddington RentTribunal.l56
In Demetriades v. Glasgow Corporation'5'' the House of Lords in applyingregulation 51(2) of the Defence (General) Regulations 1939 which providedthat: “While any land is in, the possession of a competent authority … theland may be used by or under the authority of the competent authority forsuch purpose and in such manner as that authority thinks expedient” held thatunder the regulation the competent authority had an unrestricted discretionwith regard to the use of requisitioned property provided that it bona fideconsidered that the use to which the property was being put or the manner inwhich it was being used was necessary and expedient to effect the purpose ofthe requisition and that in the absence of averments of bad faith, ulteriormotive, or possibly perverseness, on the part of the authority, thejurisdiction of the Court was excluded as the competent authority was thejudge of the use which it should make of the land.
'« King v. Muray et at. (1948) 77 CLR 387.
”* Coal Miners Industrial Union of Workers of W. Australia v. Amalgamated Collieries ofW. Australia (1960) 104 CLR 437.
(1972) I All E.R. 1185 at 1188.
”*(1949) I All E.R. 720 at 725.
(1951) I All E.R. 457.
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“To pretend to use a power for the purpose for which alone it was given,yet in fact to use it for another, is an abuse of that power and amounts tomala fides. For to profess to make use of a power which has been givenby statute for one purpose only, while in fact using it for a differentpurpose, is to act in fraudem legis …. such an use is a mere simulatorypretext” — per Davis, S.J. in Van Eck v. Etna Stores (supra).
The Supreme Court of India stated in Somawanti v. State of Punjab (supra)(an appeal involving acquisition proceedings under their corresponding LandAcquisition Act) that the declaration of the Government that the land isneeded for a public purpose will be final, subject however, to one exception.That exception is, that if there is a colourable exercise of power, thedeclaration will be open to challenge at the instance of the aggrieved party. Ifit appears that what the Government is satisfied about is not a public purposebut a private purpose or no purpose at all, the action of the Government iscolourable as not being relatable to the power conferred upon it by the LandAcquisition Act and its declaration will be a nullity. To such a declaration theconclusiveness of section 6(3) of the Act will not extend. For, the questionwhether a particular action was the result of fraud or not is always justiciable. . . The condition for the exercise of the power by the State Government isthe existence of a public purpose and if the Government makes a declarationunder section 6(1) in fraud of the powers conferred upon it by that section,the satisfaction on which the declaration is made is not about a matter withrespect to which it is required to be satisfied by the provision and thereforeits declaration is open to challenge as being without any legal effect. (Thisjudgment of the Indian Supreme Court is apposite to the instant cases beforethis Court. The provisions of section 6 of the Indian Land Acquisition Actcorrespond to the provisions of section 5 of our Land Acquisition Act andthe law set out therein applies equally well to our section 5). This view wasapproved in the later cases of Rajah Anand v. State: ofU.P., (supra).
In Union Government v. Fakir158 the Appellant Division of South Africawas confronted with a provision of their Immigration Regulation Act No. 22of 1913 which read as follows:
“No Court of law in the Union shall . . . have jurisdiction to review,quash, reverse, interdict or otherwise interfere with any proceeding, act,order or warrant of the Minister, immigration officer or master underthis Act and relating to the restriction or detention … of a person who isbeing dealt with as a prohibited immigrant.”
Counsel for the Minister argued in limine that even if there had been malafides on the part of the immigration officer, the Court would have nojurisdiction to interfere or make a restraining order. The Court held that;
(1923) S.A.L.R. AD 466.
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“wide though the language may be, it does not exclude the jurisdictionof the Courts under every circumstance. Cases may be conceived inwhich interference would be justified. If there was a manifest absence ofjurisdiction or if an order were made or obtained fraudulently acompetent Court would be entitled to interfere . . . The contentionadvanced on behalf of the immigration authorities on this point is far toowide. The fact that an order purports to be done under the act will notexclude the interference of the courts where there was no jurisdiction todeal with the matter at all or where it has been dealt with not bona fide.but fraudulently.”
In Roncarelli v. Duplessis (supra) Rand, J. of the Supreme Court ofCanada stated:
“There is no such thing as absolute and untrammelled discretion, that isthat action can be taken on any ground or for any reason that can besuggested to the mind of the administrator, no legislative act can,without express language, be taken to contemplate an unlimited orarbitrary power, exercisable for any purpose, however capricious orirrelevant regardless of the nature or purpose of the statute. Fraud andcorruption in the commissioner may not be mentioned in such statutes,but they are always implied as exceptions. Discretion necessarilyimplies good faith in discharging public duty: there is always aperspective within which a statute is intended to operate; and any cleardeparture from its lines or objects is just as objectionable as fraud orcorruption.”
Giving the judgment of the Privy Council in Francis v. Chief of PoliceLord Pearson stated at page 257:155
“The object (of the act in question) is to facilitate preservation of publicorder. That being the object of the Act, he (the Chief of Police) mustexercise his powers bona fide for the achievement of that objectRoncarelli v. Duplessis (supra) — per Rand J.
“Parliament commits to the executive the discretion to decide and withthat discretion, if bona fide exercised, no Court can interfere. All thatthe Court can do is to see that the power which it is claimed to exerciseis one which falls within the four corners of the powers given by theLegislature and to see that those powers are exercised in good faith" —per Lord Greene, M.R. in Carltona Ltd. v. Commissioner of Works(supra).
“For such an order to be validly made the Permanent Secretary must inmy view form an opinion in good faith … If of course he acts in bad
'"(1973) 2 All E.R. 251 at 257.
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faith in making an order under Regulation 18(1), the provisions takingaway the right of the Court to call the order in question would not apply.In such an event the Court’s jurisdiction to interfere remains untouchedbecause, when the Permanent Secretary acts in bad faith,-he hasobviously not made the order for detention because he is of opinion thatthe person in respect of whom the order is made is likely to act in amanner prejudicial to the public safety and that he should be preventedfrom so acting but because the Permanent Secretary has some otherobvious (oblique) reason” — per G. P. A. de Silva, S.P.J. inHirdaramani v. Ratnavale (supra).
In the very same case, Samarawickrema, J., at page 119 quoted withapproval a passage from S. A. de Smith – Judicial Review of AdministrativeAction (2nd edition) page 315 which states:
“If a discretionary power has been exercised for an unauthorisedpurpose it is generally immaterial whether its repository was acting ingood faith or in bad faith. But where the Courts have disclaimedjurisdiction to determine whether the prescribed purpose have in factbeen pursued, because the relationship between the subject-matter of thepower to be exercised and these purposes are placed within the solediscretion of the competent authority (as where a power is exercisable ifit appears to be the authority or expedient for the furtherance of thosepurposes) they have still asserted jurisdiction to determine whether theauthority has in good faith endeavoured to act in accordance with theprescribed purposes” and concluded as follows — “I am therefore of theview that regulation 55 will not apply to the case of a person unlawfullydetained under an invalid detention order made in abuse of the powersconferred by Regulation 18(1)” — page 120.
“1 do not see how the order of an executive officer . . . which is malafide can be distingushed. Here too he would be acting outside hisjurisdiction as the Regulation clearly contemplates an order based on anopinion formed bona fide. It may well be that in the result an inquiryinto the question of mala fide may end in a blind alley . . . but that doesnot mean that this Court should shut its door to a person who on the faceof his petition has a prima facie case of bad faith showing that therespondent had acted dishonestly and/or with an ulterior and/orcollateral purpose and therefore in fact he had not exercised his opinionas contemplated under the Regulations” — per Wijayatilake, J. inGunasekera v. Ratnavale (supra).
In David v. Abdul Cader (supra) the Privy Council held that an applicantfor a statutory licence can have a right to damages if there had been amalicious misuse of the statutory power to grant the licence. The Court heldthat the plaintiff was entitled to have his claim for licence subjected to abona fide determination by a public authority.
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In Partap Singh v. State of Punjab, (supra) the Supreme Court of Indiaobserved:
“The two grounds of ultra vires and mala fide are thus most inextricablymixed. Treating it as a question of ultra vires, the question is what is thenature of the power which has been granted to achieve a definite objectin which case, it would be conditioned by the purpose for which it isvested. Taking the present case of the power vested in Government topass the impugned orders, it could not be doubted that it is vested inGovernment for accomplishing a defined public purpose viz. to ensureprobity and purity in the public service. The nature of the power thusdiscloses the purpose. In this context the use of that power for achievingan alien purpose — wreaking the Minister’s vengeance on the officerwould be mala fide and a colourable exercise of that power and wouldtherefore be struck down by the Courts.”
Further, according to certain judgments of our Supreme Court good faithhas been held to condition the right to the notice under section 461 of theCivil Procedure Code and also to entitle a Police Officer to claim the benefitof section 83 of the Police Ordinance — vide 9 N.L.R. 138, 16 N.L.R. 49,3 C.W.R. 121, 23 N.L.R. 192 and 29 N.L.R. 139 (supra).
Thus in carrying out their task of enforcing the law, the Court presumesthat bad faith cannot be said to have been authorised by a statute and insistson powers being exercised truly for the purpose indicated by Parliament andnot for any ulterior purpose. The Court is solicitous that when the agencyexercises the power, it shall not act mala fide or frivolously or vexatiouslybut shall act in good faith and for the achievement of the objects theenactment had in view. The Court intervenes to prevent not the use of powersbut the misuse of power. When the exercise of the discretion is not a lawfulexercise of the discretion because the powers are exceeded or abused, then itis considered that there has been no exercise of the statutory powers ordiscretion in terms of the law.
The learned Solicitor-General did not challenge the general propositionthat statutory powers must be exercised bona fide but contended that for thepurpose of section 24 of the Interpretation (Amendment) Act any exercise ofpowers whether bona fide or mala fide falls within the ambit of section 24 asthere is no express limitation of the kind of exercise. He states that theintention of the legislature was to prevent the Court granting injunction andstaying acquisition proceedings because it was found by experience thatthough large numbers of acquisition proceedings were stayed by issue ofinterim injunction on grounds of mala fides, not one case had over the yearssucceeded on that ground. He admitted that he had not, however, taken intoaccount the number of acquisitions which were abandoned or withdrawn
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after institution of action, challenging such acquisitions. He further referredus to the speech made by the Minister of Justice, when he introduced theInterpretation Amendment Bill, to show the intention behind section 24 andargued that the Minister’s speech furnished a guide to the construction of thesection.
The primary rule of construction is to intend the Legislature to havemeant what they have actually expressed. The object of all interpretation, isto discover the intention of the Legislature.
“but the intention of Parliament must be deduced from the languageused” – per Lord Parker, C.J. in Capper v. Baldwin.'6"
The duty of the Court is to interpret the words the Legislature has used andnot to travel outside on a voyage of discovery.
“ A mere conjecture that Parliament entertained a purpose which,however natural, has not been embodied in the words it has used, if theyare literally interpreted, is no sufficient reason for departing from theliteral construction” – per Lord Haldane in Lumsden v. Commissioner ofInland Revenue.'6'
If the words properly construed admit of only one meaning, the Court is notentitled to deny to the words that meaning, merely because the Court feelsthat the result is not in accordance with the intention of the Legal Draftsmanor the Minister. Proper construction necessarily involves certain built-inassumptions which ordinarily apply unless excluded. The Legislature intendsstatutory powers to be exercised in good faith and for the purpose for whichthey were conferred. It is entirely repugnant to the intention of theLegislature that the statutory power which it grants should be abused.
“Enactments which confer powers are so construed as to meet allattempts to abuse them . . . Though the act done was in execution of thestatutory power and within its letter it would nevertheless be held not tocome within the power, if done otherwise than honestly and in the spiritof the enactment” — Maxwell on Interpretation of Statutes 11th editionat 116, 117.
“The rule of improper purpose is essentially an implied maxim ofstatutory interpretation that even though a discretion is expressed inunqualified terms the statute must be taken to read that thediscretion must be exercised for the purpose contemplated by thestatute” – Principles of Administrative Law by Griffith and Street (4thedition 225 – 226)
(1965) 1 All E.R. 787 at 791.
'“(1914) A C. 877 at 892.
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“There are certain fundamental assumptions, which without explicitrestatement in every case, necessarily underlie the remission of thepower to decide, such as the requirement that a decision must be madein accordance with principles of natural justice and good faith” — perLord Wilberforce (1969) 1 All. E.R. 208 at 244 (supra).
Thus it is a fundamental rule of construction that all statutory powers mustbe exercised in good faith and to promote the objects of the enabling Act. Itis the basis of the grant of power to any administrative agency. The Courtwill read implied limitations into an ostensibly unfettered grant of power.“Fraud and corruption may not be mentioned in statutes but they arealways implied as exceptions.” These limitations are implicit in the natureand character of the power itself.
“Mala fides will be an implied exception to any exclusionary provisionof this nature which on the face of it precludes a Court from questioningthe validity of an order made thereunder” — per G. P. A. de Silva. S.P.J.in Hirdaramani v. Ratnavale (supra).
In the case of Padfield v. Minister of Agriculture (supra) where the discretionthat was conferred on the Minister was “to act as he thought fit,” the Houseof Lords held that the discretion was not wholly unfettered in that it had to beused to promote the policy and the objects of the Act in question. Thus, thoserules of construction set out above militate against the construction of section24 of the Interpretation (Amendment) Act as contended for by the Solicitor-General. It is well that such a construction cannot be accepted, or otherwise,the door will be open for unfettered abuse of power by administrative bodies.As was said by Achner, J. in Clinch v. I.R.C. (supra).
“One of the vital functions of the Courts is to protect the individual fromany abuse of power by the executive, a function which nowadays growsmore and more important as governmental interference increases.”
Every legal power must have legal limits. Where discretion is absolute,man has suffered. Absence of arbitrary power is the first essential of the Ruleof Law. In view of these revered principles of statutory interpretation clear orexpress words are required to convince me that the Legislature intended toimmunise mala fides or ultra vires acts of the executive from the correctiveof injunctions. An intention to deprive a subject of an effective, equitableremedy like an injunction cannot be gathered from inconclusive orambiguous language. Explicit words are necessary to achieve that purpose.But then, the counsel for the Minister states that acquisition proceedings andother urgent schemes are held up by stay orders issued by Courts and thedelay is frustrating. He vehemently protested that the interests of the State
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should be preferred to the interests of a few individual landowners, to whomit might cause hardship. His argument assumes that judges are in the habit ofgranting injunction for the mere asking. I regret that experience of the orginalCourts does not warrant this facile assumption. Interim injunctions are issuedonly when the Court is satisfied on the material placed before it that there isa strong prima facie case in support of the right which the plaintiff isasserting and that there is a substantial question to be investigated and thatmatters ought to be preserved in status quo until the question can be finallydisposed of. Acceptance of the Solicitor-General’s argument will result in aperson aggrieved being unable to invoke the jurisdiction of the Court torestrain the Minister and his officers from inflicting irreparable damage onprivate rights by abuse of powers entrusted to them. A blanket exclusion ofinjunctive relief is hard to justify as Courts can be trusted to see that theirjurisdiction to grant injunction is not abused. A scheme of democraticgovernment like ours no doubt at times feels the lack of power to act withcomplete all-embracing swiftly moving authority. No doubt a governmentwith distributed authority subject to be challenged in a Court of law, at leastlong enough to consider and adjudicate the challenge, labours underrestrictions from which other types of government are free. It has not beenour tradition to envy such governments. The Rule of Law involves suchrestrictions. The price is not too high in view of the safeguards which thesehealthy restrictions afford. In any event, in the matters of delay complainedof by the Solicitor-General the Government is not helpless. The delay canhowever, be reduced or eliminated by the highest priority being given to thehearing and disposal of the Land Acquisition cases, as contemplated bysection 2 of the Land Acquisition (Amendment) Act No. 20 of 1969.Counsel’s argument that the overriding public interest should prevent theissue of injunction despite alleged illegality of the acquisition also overlooksthe fundamental rights of equality before the law and equal protection of thelaw which are enshrined in section 18 of our Constitution and fundamentalprinciples of our Common Law. If section 24 intended favoured treatment togovernment agencies language more precise has to be employed to manifestsuch intention.
The sheet-anchor of the Solicitor-General’s submission that theLegislature has by the provision of section 24 sought to give finality andsecurity from challenge, as far as any issue of injunction is concerned, to actsdone or intended to be done by any authority in the exercise (whether bonafide or mala fide) of any powers vested in him in the majority decision of theHouse of Lords in the case of Smith v. East Elloe Rural D.C. (supra). Thefacts in that case are as follows— The validity of a compulsory purchaseorder confirmed by a Minister could be challenged by the owner within sixweeks of the date of the order on the ground that its authorisation was not‘empowered’ to be granted under the enabling Act. After six weeks had
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elapsed according to clause 16 of the statute, it could not be questioned “inany legal proceedings whatsoever.” The property owner brought an action along time after the prescribed period, claiming a declaration that the orderwas void because it had been fraudulently procured. The House of Lordsheld by a majority that the plain words of the Act precluded judicial reviewafter the expiry of the six weeks period, and some of their Lordships were ofthe view that even within the six weeks’ period, the order could not bechallenged on the ground of bad faith. The majority of the Law Lords heldthat there was nothing ambiguous about clause 16. Viscount Simonds saidthere was no justification for the introduction of limiting words such as “ifmade in good faith” and there is the less reason for doing so when thesewords would have the effect of depriving the express words “in any legalproceeding whatsoever” of their full meaning and content.” Lord Radcliffaffirmed that “Courts of Law have always exercised a certain authority torestrain the abuse of statutory powers … It is an abuse of power to exerciseit for a purpose different from that for which it is entrusted to the holder, notthe less because he may be acting ostensibly for the authorised purpose.Probably most of the recognised grounds, of invalidity could be broughtunder this head; the introductions of illegitimate considerations, the rejectionof legitimate ones, manifest unreasonableness, arbitrary or capriciousconduct, the motive of personal advantage, or the gratification of personalill-will” but stated:
“But if so, I do not see how it is possible to treat the provisions ofparagraph 15 and 16 of Part IV of the Schedule 1 of the Act as enactinganything less than a complete statutory code for regulating the extent toand the conditions under which Courts of Law might be resorted to for thepurpose of questioning the validity of a compulsory purchase order withinthe protection of the Act … I should think paragraph 16 concluded thematter, and that it did not leave to the Courts any surviving jurisdiction.”
This case really turned on the interpretation of a statutory expression. It heldthat an allegation of bad faith was not sufficient to overcome a statutoryprovision expressly excluding any possibility of judicial review. Thisdecision was a majority one (3-2) and Lord Reid who dissented was of theview that the general words in a statute should be read so as not to deprivethe Court of jurisdiction where bad faith is involved, (at page 868). Thisdecision can be supported only on the basis that the statutory language in thecontext there excluded jurisdiction to review the vires of an order since alimited period has been prescribed by statute for challenging its validity andsubstantial prejudice to other interest would be sustained if the order were tobe invalidated after the period had expired. This decision is today of doubtfulvalue in view of the observations of the House of Lords in Anisminic v.Foreign Compensation Commission (supra). In the later case, their Lordships
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expressed serious reservations about the majority decision in Smith v. EastElloe R.D.C. (supra) in so far as the case stands as authority for the principlethat after the expiry of the statutory period for challenge an order protectedby such a formula cannot be impugned even on the ground that it wasprocured by fraud. The principle enunciated in the Anisminic case was that astatute, by providing that a determination or an order of an authority cannotbe challenged in legal proceedings, does not prevent the Courts from holdinga determination or an order to be a nullity for being outside the jurisdictionof the authority. (Bad faith is a special facet of ultra vires doctrine, a bodyvested with discretionary powers acts ultra vires if it acts in bad faith or for awrong purpose. S. A. de Smith—: Constitutional and Administrative Law(1971) at page 549). Professor Wade in his article on Aspects of AnisminicCase 85 L. Q. R. 198 at 207 commenting on the East Elloe case (supra)remarked:
“It cannot be often that the House of Lords decides as appeal without anymention of the main principle of law which ought to be in issue. Hadreference only been made to the decisions holding that a no certiorariclause will not bar certiorari in case of fraud, the whole case would havebeen put in a different light.”
It is to be noted that the Supreme Court of India, had prior to the House ofLords decision in Anisminic case, expressed its reservation about thecorrectness of the East Elloe case -— (supra) vide A.I.R. 1963 S.C. 151 at 169— Somawanti’s case.
The judgments of their Lordships Reid, Pearce, and Wilberforce in theAnisminic case (supra) contain a lucid exposition of the general principlesgoverning determination of tribunals and judicial review thereof. They affordguidance in resolving the contentions raised in the instant case. Thoseprinciples are of universal validity and apply equally well to orders of aMinister or executive officer. As was stated by Lord Reid:
“There are many cases where, although the tribunal had jurisdiction toenter on the inquiry, it has done or failed to do something in the course ofthe inquiry which is of such a nature that its decision is a nullity. It mayhave given its decision in bad faith. It may have made a decision whichit had no power to make. It may have failed in the course of the inquiry tocomply with the requirements of natural justice. It may in perfect goodfaith have misconstrued the provisions giving it power to act so that itfailed to deal with the question remitted to it and decided some questionwhich was not remitted to it. It may have refused to take into accountsomething which it was required to take into account. Or it may havebased its decision on some matter which, under the provisions setting itup, it had no right to take into account. I do not intend the list to beexhaustive”— (pages 213-214).
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Commenting on the legal significance of a preclusive clause, LordWilberforce observed:
‘The question what is the tribunal’s area, is one which it has always beenpermissible to ask and answer, and it must follow that examination of itsextent is not precluded by a clause conferring conclusiveness, finality orunquestionability on its decisions. Those clauses in their nature can onlyrelate to decisions within the field of operation entrusted to the tribunal.They may, according to the width and emphasis of their formulation, helpto ascertain the extent of that field, to narrow it or enlarge it, but unlessone is to deny the statutory origin of the tribunal, and of its powers, theycannot preclude examination of that extent. It is sometimes said that thepreclusive clause does not operate to decisions outside the permitted fieldbecause they are a nullity . . . The Courts, when they decide that adecision is a nullity, are not disregarding the preclusive clause, just as it istheir duty to attribute autonomy of decision of action to the tribunalwithin the designated area, so as the counterpart of this autonomy, theymust ensure that the limits of that area which have been laid down areobserved, (page 244).
As stated earlier, the only instance in which the Court can interfere withan act of an executive body which is, on the face of it regular and within itspowers, is when it it proved to be in face ultra vires. Issues of bad faith,misuse of power, oblique motives, unreasonableness and collateral andindirect objects and so forth furnish examples of matters which if proved toexist establish the ultra vires character of the act in question. The power ofthe Court to interfere in such cases is not that of an appellate authority tooverride a decision or act of the executive authority, but is that of a judicialauthority which is concerned and concerned only to see whether theexecutive has contravened the law by acting in excess of the powers whichthe Legislature has confided in it. The Court does not pass judgments onissues of policy nor review an exercise of discretion but pass judgment onthe legality or validity of acts of government. The jurisdictional principleserves as the main plank of judicial review. If an act or decision is outsidejurisdiction, it is null and void for all purposes. There are no degrees ofnullity. If an act is a nullity, it is automatically null and void and there is noneed for an order of the Court to set it aside though it is sometimesconvenient or prudent to have the Court declare it to be so.
“No legally recognised rights found on the assumption of its validityshould accrue to any person even before the act is declared to be invalidor set aside in a Court of Law” — Hailsham (4th edition) vol. 1 para 27.
“You cannot put something or nothing and expect it to stay there, Itwill collapse” — per Lord Denning.162
'“Macfoy v. United Africa Co., Lid. (1961) 3 All E.R. 1169 ai 1172.
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An act done in ostensible exercise of statutory powers but dishonestly orin bad faith is not in truth an exercise of the powers and is a nullity. Thestatement of Lord Radcliffe in the East Elbe case (supra) at page 871 that:
. “an order, even if not made in good faith, is still an act capable of legalconsequences. It bears no brand of invalidity upon its forehead. Unless thenecessary proceedings are taken at law to establish the cause of invalidityand to get it quashed or otherwise upset it will remain effective for itsostensible purpose as the most impeccable of orders”
does not fully describe the complete effect of a null and void act. The factthat legal proceedings will have to be resorted to, for a declaration of nullitydoes not alter the fact of “no act,” in the legal sense. Such declarationoperates retrospectively and restores parties to the status quo and confirmsthat in the eyes of the law the void acts or orders are not acts or orders of theauthority done in the exercise of a statutory power. When an act that is donewithout jurisdiction is quashed for that reason, the position is the same as ifno act had been done at all. In the eyes of the law there is no exercise of thepower unless the repository of the power had acted in good faith and withinthe framework of the law. The exercise must be a true or real exercise andnot a purported or apparent exercise. An apparent or purported exercise has,in the eyes of the law, no existence as it is a nullity and the act done inpursuance of it is also a nullity. Section 24 of the Interpretation(Amendment) Act thus can apply and relate only to acts done in theexercise of a power conferred by law. If the impugned acts are acts notdone in the genuine or true exercise of the statutory power then they are notdone in the “exercise of a power conferred by law” and are a nullity andsection 24 does not protect them. The ascertainment of the question whetherthe act is in the exercise of the statutory power or not is a task for the Courtand not for that authority. The Court determines the jurisdictional limits ofexecutive power. If the executive determination on this question is final, itwill sap the judicial power as it exists under our Constitution and establish agovernment of bureaucratic character.
“The essence of the decision in the Anisminic case is that the ousterclause would not prevent the determination of the Foreign CompensationCommission being set aside by the Courts if it was outside theCommissioner’s jurisdiction but that it could not be questioned on theground of mere error within the jurisdiction” — per Dr. Wade '85 L.Q.R.at 209.
The House of Lords in the Anisminic case correctly held that nullity is theconsequence of all kinds of jurisdictional errors e.g. breach of natural justice,bad faith, failure to deal with the right question and taking wrong mattersinto account. These principles militate against my accepting the argument ofcounsel for the Minister that section 24 catches up within its ambit all acts
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whether intra vires or ultra vires or done in good faith or bad faith. Applyingthe principles enunciated in the Anisminic case 1 am of the view that theorders of acquisition made by the Respondent-Minister, if not made by himin the bona fide or proper exercise of the power vested in him under the LandAcquisition Act are not orders made in the exercise of authority vested inhim by law and that in the circumstances section 24 has no application anddoes not inhibit the Court granting the relief of interim injunction. Therestriction placed in subsection (2) of section 24 is subject to the limitationcontained in clause 2 in subsection (1) because subsection (2) does not givethe public officer greater protection than is given to the Crown, Minister, etc.A public officer can also be restrained by injunction if he acts mala fide. Inmy view the orders made by the respective subordinate Courts on thematerial placed before them are legal and can be sustained. Neither principlenor authority compels me to the conclusion that section 24 affords a charterof immunity to the executive from being restrained in appropriate cases, byinjunction from invasion of a subject’s rights.
Before concluding I wish to state with all respect to the Judges whodecided the case of Hewawasam Gamage v. Minister of Agriculture andLands (supra) that the case was not correctly decided for the reasons set outabove. The Court was not justified in excluding from its consideration theallegation of mala fides on the part of the Minister. If the acquisition hadbeen motivated by political reasons and/or reasons extraneous to the LandAcquisition Act, the validity of the acquisition can be questioned in a Courtof Law. Further, in my view, the case of Karunanayake v. de Silva (supra)was correctly decided and should be followed in appropriate cases.
In view of the above conclusions I do not think it is necessary to go intothe question whether in any event section 24 bars the issue of interiminjunction. I see the force of Mr. Thiruchelvam’s argument that on ananalysis of section 24 it would appear that only permanent injunction iscontemplated; for, the proviso to the section speaks of granting an orderdeclaratory of rights of parties, in lieu of granting an injunction and themaking of a declaration is the final act of the Court. In lieu of an interiminjunction an order declaratory of the rights Of parties cannot be made. Asagainst this submission the learned Solicitor-General contends that theintention of the Legislature was to prohibit the issue of both interim andpermanent injunction and to bring the law in line with the provisions of theEnglish Crown Proceedings Act 1947. He drew our attention to the words ofthe English Act:
“Where in any proceedings against the Crown .. .
the Court shall not grant an injunction.”
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These words were held to exclude the grant of interlocutory injunction oran interim declaration. Underhill v. Ministry of Food (supra). InternationalElectric Co. & Customs and Excise Commissioner (supra) I reserve theconsideration of this aspect of the matter for another appropriate occasion. •
Mr. Jayewardene alleges that certain irregularities have taken place in theway the instant matters have been brought by way of revision before theSupreme Court. Since there has been a proper reference by the learnedActing Chief Justice under section 14(3) (c) of the Administration of JusticeLaw and this Court, as is presently constituted is validly seized of the matter,I do not think it is necessary to go into the question of the allegedirregularities. In passing I wish to say that counsel’s analysis of the varioussections of the Act impressed on me the importance of the open Court ruleembodied in section 7 of the Law. There is a duty laid upon every Court orTribunal to sit in public and administer justice, unless otherwise provided bylaw. But calling for the record for the purpose of examining it is not ajudicial act which should be performed while sitting with open doors.
In my view, the notices issued on the Plaintiffs/Petitioners should bedischarged and the records should be sent back for trial or inquiry to proceedin due course.
In the special circumstances, each party will bear his own costs in thismatter.
Section 24 of Interpretation
Ordinance
is not applicable
where the act of the Minister is withoutjurisdiction, ultra viresor is in bad faith.