Sudhakaran v. Bharathi
v.BHARATHI AND OTHERS
COURT OF APPEAL.
RAMANATHAN, J. AND GOONEWAflDENE, J.
4UNE 4, 5, 10. 12. 17, 18 and 19. 1987.'
Writs of Certiorari and Mandamus-Application to renew'liquor licences – ExciseOrdinance, Section 28A(l).
The 2nd respondent refused to renew the petitioner's liquor licences influenced by theobjections of the 1 st Member of Parliament while the Minister (3rd respondent) madeno response to the petitioner's appeal. Hence the petitioner sued for certiorari to quashthe refusal of 2nd respondent to renew the licences, certiorari to quash what heclaimed was a decision by the 3rd respondent to disallow his appeal and mandamus tocompel the Government Agent to grant the renewal. The petitioner founded hisapplication on the basis that he had a legitimate expectation to have the licencesrenewed. At the argument it was contended that the legitimate expectation was also toa fair hearing.
The grounds of judicial review can be classified under three heads:
The decision not to renew these licences, being not one enforceable in private law. andthe petitioner's case being that he was deprived of a legitimate expectation of a renewalhe can rely only on the ground of procedural impropriety.
The petitioner’s case being based upon legitimate expectation, when the 2ndrespondent considered the question of renewal of the licences for 1987 he was entitledto give effect to current policy embodied in a circular and be influenced by theobjections of the 1 st Member of Parliament. The Court is not entitled to examine thereasons for withholding of consent by the Member of Parliament and their validity.
While legitimate expectation gives an applicant locus standi to ask for judicial review itdiffers from wrongful or ultra vires action. It is wrongful or ultra vires action whichjustifies the granting of judicial review and that too only if all the circumstances point toan exercise of the Court's discretion that way. Even assuming there was legitimateexpectation, the 2nd respondent in refusing the renewal of the licences, influenced bythe objections of the 1 st Member of Parliament which he considered relevant, has notacted wrongfully or ultra vires so as to justify the exercise of judicial review by the court.
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The question whether certiorari will lie against the 3rd respondent may have becrvi,erelevant if there had been some action by the 3rd respondent. The mere silence of the3rd respondent does not constitute a disallowing of the appeal so as to be amiable tocertiorari.
Cases referred to:
Dayaratne v. G. A. Kegalle-S.C. Application No. 92477: SC Minutes of28 11.1978..
Mclnnes v. Onslow Fane-11978] 3 All ER 211.
The Council of Civil Service Unions v. Minister for the CivH Service-[ 1984] 3 All EF
A. C. of Hongkong v. Ay Yuen Shiu-[ 1983] 2 AH ER 346.
Schmidt v. Home Secretary-] 1969] 1 AIIER 904, 909: 1969 2 Ch. 149, 170.
Ridge v. Baldwin- 2 All ER 66.,
Associated Provincial Picture Houses Ltd. v, Wednesbury Corporation-11947] 2AIIER 680;  1 KB 223.
O'Reilly v. Mackman- 2 AC 237.
Findley v. Secretary of State for the Home Department -[ 1984] 3 All ER 801.
R v. Northumberland Compensation Appeals Tribunal ex p. Shaw- 1 AllER 122/127.
Chief Constable of North Wales Police v. Evans - 2 All ER 141, 154.
APPLICATION for writs of Certiorari and MandamusE. D. Wickremanayake for petitioner.
Shibly Aziz DSG with Parakrama Karunaratne S. C. for respondent.
Cur. adv. vult.
September 10. 1987.
JUDGMENT OF THE COURT
In this application the petitioner seeks judicial review by way of ordersof Certiorari directed against the Government Agent of Kandy the 2ndrespondent'and the Minister of Finance the 3rd respondent withrespect to certain decisions said to have been made by them. He alsoseeks an order of Mandamus directed against the former.
In December 1985 the petitioner applied to the then GovernmentAgent, Kandy (the predecessor in office of the present 2ndrespondent) for licences to sell liquor at premises No. 60, Ranawana
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Katugastota situated within the administrative district of Kandy.The Government Agent referred this application for report to, inter alia,the Assistant Government Agent of the area who made a favourablerecommendation (P1). The applicant on being found to satisfy therequirements for tht issue of such licences as contained in therelevant cabinet decision embodied in the circular dated 15th October1985 (P3), the 1st respondent ihn Excise Commissioner by letterdated 20th December 1985 (P2) notified the Government Agent ofhis lack of objection to the application. The 2nd member of Parliamentfor the relevant electorate (this being a multi member constituency) bya letter dated 10th December 1985 also made a favourablerecommendation, a requirement of circular P3.
Consequently, the Government Agent issued to the, petitionersimultaneously on 24th December 1985 four licences (PS, P5A, P6and P6A). P5 authorised the sale at these premises of foreign liquor(including locally made malt liquor) and P5A authorised the sale at thesame premises of bottled toddy, both kinds not to be consumed onthe premises and both licences valid up to 31 st December. 1985. P6and P6A were two similar licences valid for the entirety of the year1976.
Thereafter, it is the case of the petitioner that he commenced andcontinued the business of selling liquor under these licencesin accordance with the terms of their issue and without fault and forthe purpose of procuring stocks and purchasing these premisesobtained a. loan of Rs. 750,000 expecting .to repay the same out ofthe income generated from the business.
On 22nd October 1986 the 2nd respondent sent to the petitioner aletter (P7) (routinely sent out to all licencees according to the affidavitof the 2nd respondent) calling upon him to make certain statedpayments for the issue of similar licences for the year 1987 by whichtime circular No. 221 dated 14th February 1986 (P8) had come intooperation and whose terms suspended the terms of the earlier circularP3. The change that had been effected by it, so far as is relevant hereand with respect to multi member constituencies, was that all themembers of Parliament had to be "consulted" which in the context inwhich such word is used in P8 had to mean that these licencees hadto be issued with their "concurrence", as is the word used with respectto single member constituencies.
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The petitioner contends that he went to the Kandy Kachc***' tomake the payments due for the issue of the licences for th» year 1987when he was informed (apparently by the accounts*it of the 2ndrespondent according to the latter's affidavit) that ouch licences couldnot, on the directions of the 2nd responderc, be issued as the firstMember of Parliament for this electorate had objected; that when hethe petitioner pointed out that the 2nd Member for the electorate hadrecommended their issue he was told in response that in terms ofcircular P8 in the case of Multi Member constituencies both membershad to consent and that therefore they could not be issued but thatwhen he requested that such decision be communicated to higi inwriting, that was refused. He contends that he then appealed againstsuch refusal to the 3rd respondent the Minister by letter dated 3rdJanuary 1987(P9) but that he received neither response noracknowledgement.
The petitioner's case, as presented upon his papers filed in thisCourt, is that having spent a large sum of money in respect of thisbusiness, involving repayment of monthly instalments of a loan takenfor the purpose, and having carried it on in accordance with the lawand other administrative requirements without any complaint from the .relevant authority, he had a "reasonable expectation" of having thelicences renewed for the year 1987. He complains that the refusal torenew these licences is unreasonable, contrary to law and ultra viresthe scope of the policy of the Excise Ordinance and amounts todenying him his livelihood. It is to be observed however that there is noprecise complaint in those terms by the petitioner in his papers, thathe was not given an opportunity.of being heard before the decision,not to renew these licences, was made. While asking therefore for anorder of certiorari to quash the alleged refusal by the 2nd respondentthe Government Agent to renew these licences, upon the basis thatthe latter was in breach of his legal duty .the petitioner asks formandamus to compel such renewal. He also asks for certiorari toquash, what he terms, the decision of the 3rd respondent the Ministerto disallow his appeal.
To advert first to the order asked for on the Minister the 3rdrespondent, we do not think that his mere silence constituted in thecircumstances of this case a disallowing of any appeal by thepetitioner, in the manner contended so as to be amenable to certiorariand such order in our view must be refused. The question whether
Sudhakaran v. Bharathi (Judgment of the Court)
certiorari would lie may have become relevant if there had been someaction taken by the Minister, in the manner set out therein, undersection 28A(1) of the Excise Ordinance which was introduced byAmending Act, No. 14 of 1977 (see in this connection the judgmentof this Court in Dayaratne v. G. A. Kegalle (1) S.C. Application No.924/77 decided on 28.11.1978 to which we had occasion to call theattention of Counsel at the hearing before us). For completeness thatsection is reproduced here:
'28A(1) Notwithstanding anything in the Ordinance if. uponrepresentations or otherwise the Minister considers it necessary todo so', he' may, without assigning reason therefor direct theauthority granting a licence to grant a licence or to renew or cancel alicence and such authority shall give effect to such direction."
We do not thrnk it becomes necessary to dwell any further with anydegree of particularity upon the relief sought against the Minister.
The affidavits filed by and on behalf .of the respondents togetherwith their anhexures, demonstrate that the objections of the 1stMember of Parliament for this electorate were not made mala fide (norwas it suggested differently), but that he was impelled by severalrepresentations made, to take the stand he did. There was, we think,clear reason for him to believe that the religious susceptibilities ofvarious persons and organisations in the electorate were disturbed bythe location of this tavern in this place although in point of uc tual factthe contention of the petitioner could well be correct that v> threference to the time the licences were first issued, there hadoccurred no change with respect to the distance of this tavern fromschools and places of religious worship (properly so called) such aswould have had the effect of offending against the requirements rf therelevant circulars. Of importance to note though is that, theconcurrence of the 1 st Member of Parliament was a requirement forthe issue of a new licence in terms of the current circular (P8), suchnew requirement as will appear later, being in our view a matter ofexecutive policy and therefore not properly a subject for judicialreview. The thinking of the Government Agent the 2nd respondentthat this was something he should take account of even in the case ofrenewal, is we think not such as would enable us to describe suchthinking or the subsequent decision based thereon as unreasonable(That his decision was in actual fact not to renew such licences, and
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that it was based solely upon the objec..ons of the 1st Member ofParliament, we have no doubt and this is made clear by his ownaffidavit at paragraph 18(1 )(h)).
Counsel for the petitioner, in his opening'dfgument at the hearingbefore us, rested his case on the basis that it was governed by theprinciples enunciated by Megarry V.C. in the case of Mclnnes v.. OnslowFane (2). The Vice Chancellor there dealt with three situations thatarise in licencing cases which were what he called, application cases,forfeiture cases and expectation cases. He said (at page 218) "First,there are what may be called the forfeiture cases. In these, there is adecision which takes away some existing rights or position, as when amember of an organization is expelled or a licence is revoked. Second,at the other extreme there are what may be called the applicationcases.-These are cases where the decision merely refuses to grant theapplicant the right or position that he seeks, such as membership ofthe organization or a licence to do certain acts. Third, there is anintermediate category which may be called the expectation cases,which differ from the application cases only in that the applicant hassome legitimate expectation from what has already happened that hisapplication will be granted. This head includes cases where an existinglicence holder applies for renewal of his licence, or a person alreadyelected or appointed to some position seeks confirmation from someconfirming authority. …….
The intermediate category, that of the expectation cases, may atleast in some respects be regarded as being more akin to theforfeiture cases than the application cases; for although in form thereis no forfeiture but merely an attempt at acquisition that fails, thelegitimate expectation of a renewal’of the licence or confirmation ofthe membership is one which raises the question of what it is that hashappened to make the applicant unsuitable for the membership orlicence for which he was previously thought suitable".
A possible answer to this question as to what it is that happened tomake the applicant unsuitable for the licences for which he waspreviously thought suitable is, as we have already suggested, that thecircular P8 which came into operation as a statement of policy afterthe issue of the earlier licences, stipulated the requirement althoughwith respect to hew licences, that the concurrence of all members inthe case of multi member cpnstituencies was needed. Thewithholding of such concurrence by one member in response to public
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pressure, based upon grounds linked to religion and religioussusceptibilities (even if the location of the premises was beyond thedistance specified from schools and places of religious worship) couldwell be considered the new factor which caused the 2nd respondentto refuse the renewal. As pointed out already the petitioner's papersdo not complain of his not having been given an opportunity of beingheard by the Government Agent before the refusal of renewal. Yet,that .was relied upon in the opening argument of his Counsel. Withregard to this, we think there was nothing that the petitioner couldplace before the Government Agent in an effort to change his mindwhen the ground of refusal was that the 1 st member of Parliament forwhatever reason was withholding his consent. Any attempt atpersuading anyone to the contrary, if the opportunity was madeavailable, should have been directed to persuading the 1 st Member ofParliament whose opposition to the renewal played the dominant rolein impelling the Government Agent to refuse renewal.
The problem however does not end there having regard to the turnthe arguments took at a subsequent stage. When the DeputySolicitor-General Mr. Aziz was being heard in argument against thesubmissions of Mr. Wickremanayake Counsel for the petitioner, inview of the very strong reliance placed on behalf of the petitioner upon'legitimate expectation" particularly with reference to the principles inthe case of Mclnnes v. Onslow Fane (supra), we invited argument inthe context of the decision of the House of Lords in the case of TheCouncil of Civil. Service Unions v. Minister for the Civil L'ervice(3)(hereinafter for convenience referred to as the Civil Service ccse)which is considered to be expositive of the developed law in England inthis regard up to the present, as the subsequent cases show.
Mr. Aziz adopted the reasoning contained in the speeches there assupporting altogether his position that the petitioner's claim must fail.Mr. Wickremanayake then in reply took a position which in our viewwas not the one he took during his opening argument. Indeed, wethink it would not be inaccurate to say that the two positions appear incertain respects, not to be altogether compatible with one another. Hislater contention was to the following effect. The Government Agenthas a discretion with respect to application cases where new licencesare applied for, whether or not they should issue, and in exercisingthat discretion would take account of the need by an applicant for alicence to satisfy certain stated requirements which would include
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those demanded by policy considerations. The Excise Ordinance alsoin certain designated areas gives a discretion to the GovernmentAgent with respect to forfeiture cases (for example under section 56).With respect to renewal cases. Counsel argued, there was nodiscretion left in the Government Agent at all and, as of necessity, hehad to grant such renewal. He contended that if any renewal was to bewithheld, that had to be done as a result of a local option poll held inaccordance with Regulations framed under the Ordinance (ascontained in Volume I of the Subsidiary Legislation). Apart from that, inhis argument, the only instance where a discretion is made,available,whether to renew a licence or not, is that given by section 28A (1) ofthe Excise Ordinance, and that to the Minister and not to theGovernment Agent. In the .result, he claimed, it was mandatory for theGovernment Agent to have renewed these licences in the performance’of his public duty so to do, and on' failure thereof was liable bymandamus to be compelled to make such renewal.
In the result we find ourselves mystified as to whether it is the caseof the petitioner that the orders asked for lie because of a failure on thepart of the 2nd respondent the Government Agent to act in conformitywith his (the petitioner's) legitimate expectations or on the other handthese orders would lie on account of the Government Agent's failureto correctly understand the applicable law and give effect to it; twopositions we think are, in the circumstances of this case, somewhatdiscordant with one another, as we will endeavour to show at a laterstage.
Mr. Wickremanayake also contended that the petitioner's interestsin these licences were interests in property as was held in Dayaratne v.G. A. Kegalle (supra) and thus renewal could not be withheld withoutgiving him an opportunity of being heard. Indeed, in that case which ,dealt with a direction made by the Minister under section 28A (1) ofthe Excise Ordinance to cancel an existing licence, Vaithialingam J.,held that the licencee enjoyed was not a mere privilege but a 'vestedright in property". However this last contention of Counsel based upona duty to give a hearing is one, we think, not altogether necessary forhis argument that it was the duty of the Government Agent as a matterof compulsion to renew these licences, If that argument be correctand there was this statutory duty imposed upon the GovernmentAgent, the question of granting the petitioner an opportunity to beheard before making a decision to the contrary has no significance.
Sudhakaran v. Bharathi (Judgment of the Court)
Whether an opportunity was so provided or not,-and if the former,what the petitioner did say or even if he said nothing, there had to beone result, namely, that the licences had to be renewed with theGovernment Agent having no choice in the matter.
Counsel's argument that the discretion was vested in the Ministerand not in the Government Agent, in the case of renewal, is one wehowever find we cannot accept. If that argument be correct, then,prior to section 28A( 1) being introduced into the Excise Ordinance byway of amendment in 1 977 (granting to the Minister the authority tomake directions under its provisions) there would have been nodiscretion available either to the Minister or to the Government Agentand thus renewal of a licence had to be a continuous and automaticprocess, a situation we think was never in the contemplation of thelegislature having regard to the provisions of the Excise Ordinance andthe nature of the legislation dealt with therein. Counsel's submissionwith respect to local option polls too, we think, is similarly untenable.Upon an examination of the Regulations framed in this regard we haveto come to the conclusion that they deal with taverns and otherpremises licenced to sell liquor for consumption on the premisesthemselves and therefore have no application to the instant case. Evenif they do have application, we do not .think that that would affect theresult of this application.
Getting back to the ground upon which judicial review is sought, thepetitioner relies upon what he, in his papers, has termed “reasonableexpectation”, as we referred to earlier. The expression 'reasonableexpectation" is now we think understood to mean the same as“legitimate expectation". In the Civil Service Case (supra) Lord Diplock(at page 949) said-
"I prefer to continue to call the kind of expectation that qualifies adecision for inclusion (among those susceptible to judicial review) . .
a 'legitimate expectation' rather than a 'reasonable
expectation' in order thereby to indicate that it has consequences towhich effect will be given in public law, whereas an expectation orhope that some benefit or advantage would continue to be enjoyed,although it might well be entertained by a 'reasonable' man wouldnot necessarily have such consequences'.
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In'the same case Lord Fraser who gave the leading speech said (atpage 944)-
“I agree with Lord Diplock's view expressed in his speech in thisappeal that 'legitimate' is to be preferred to 'reasonable' in thiscontext. I was responsible for using the word 'reasonable' for thereason explained in Ng Yuen Shiu (4) but it was intended only to beexegetical of ’legitimate'".
In the same case Lord Roskill said (at page 954)-
'The introduction of the phrase 'reasonable expectation' into thisbranch of our administrative law appears to owe its origin to LordDenning M.R. in Schmidt v. Secretary of State for Home Affairs (5)(where he used the phrase 'legitimate expectation'). Its judicialevolution is traced in the opinion of the Judicial Committee delivered
by Lord Fraser in A. G. of Hong Kong v. Ng Yuen Shiu (supra)
…. Though the two phrases can, I think, now safely be treated assynonymous for the reason there given by my noble and learnedfriend, I prefer the use of the adjective 'legitimate' in this contextand use it in this speech even though in argument it was theadjective 'reasonable' which was generally used. The principle maynow be said to be firmly enshrined in this branch of the law. As thecases show, the principle is closely connected with a 'right to beheard'. Such an expectation may take many forms. One may be anexpectation of prior consultation. Another may be an expectation ofbeing allowed time to make representations".
In Schmidt v. Secretary of State for Home Affairs (supra) (at page909) Lord Denning said-
“The speeches in Ridge v. Baldwin (6) show that an administrativebody may. in a proper case, be bound to give a person who isaffected by their decision an opportunity of making representations.. It all depends on whether he has some right or interest or, I wouldadd, some legitimate expectation of which it would not be fair todeprive him without hearing what he has to say".
In Attorney-General of Hongkong v. Ng Yuen Shiu (supra) in the PrivyCounsel Lord Fraser said (at page 350)-
"The narrower proposition for which the respondent contendedwas that a person is entitled to a fair .hearing before a decisionadversely affecting his interest is made by a public official or body, ifhe has a 'legitimate expectation' of being accorded such a hearing".
Sudhakaran v Bharathi (Judgment of the Court}
The authorities do not make altogether clear as one sees from thecitations, as to what this expectation refers (whether one calls it'reasonable' as the petitioner has in his papers or 'legitimate' as is theword used by Megarry V.C. in Mclnnes v. Onslow Fane (supra)) that isto say, whether such expectation is on the one hand, of a hearingbefore the making of the decision or perhaps to put the same thingsomewhat differently that official powers shall not be used arbitrarily,or, on the other hand, whether such expectation is that the benefitsought (in the instant case the renewal of the licences for the year1987) would be granted.
The Civil Service case (supra) itself provides examples of the twoways in which this expression has been used. Lord Fraser who in theearlier case of A.G. of Hong Kong v. Ng Yuen Shiu (supra) appears tohave used it with reference to the right to be heard, himself in the CivilService Case (supra) used it with reference to the benefit sought thus(at page 943)
"But even where a person claiming some benefit or privilege has nolegal right to it as a matter of private law, he may have a legitimateexpectation of receiving the benefit or privilege, and if so, the Courtwill protect his expectation by judicial review as a matter of publiclaw".
(Parenthetically, Lord Fraser extends protection even to a 'privilege',which in the submission of Mr. Aziz was the nature of the entitlementthat the petitioner had with respect to these licences). Lord Oiplock inthis regard said in the same case (at page 952)
"Prima facie, therefore. Civil Servants employed at G.C.H.Q. who
were members of National Trade Unions havea legitimate
expectation that they would continue to enjoy the benefit of suchmembership"
This, citation suggests that he used this expression with reference tothe benefit sought, but he continued (also at page 952) thus:
"Sothey (the applicants for judicial review) were entitled as a
matter of public law under the head of 'procedural propriety' beforeadministrative action was taken on a decision to withdraw thatbenefit to have communicated to the national trade unions by which. they had theretofore been represented, the reason for suchwithdrawal and for such unions to be given an opportunity to■ comment on it".
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This last passage is perhaps a pointer to a correct approach to thisapparent confusion, and interestingly in this connection Professor H.W. R. Wade in his work "Administrative Law" 5th Edition (at page465) says "There is some ambiguity in the dicta about legitimateexpectation, which may apparently mean either expectation of a fairhearing or expectation of a licence or other benefit which is beingsought. But the result is the same in either case; absence of legitimateexpectation will absolve the public authority from affording a hearing".
To repeat, the petitioner upon his papers contends that hislegitimate expectation was to have his licences renewed. His Counselat the hearing in opening argument appeared to contend that thelegitimate expectation was also to a fair hearing. But if the result bethe same, as Professor Wade says, then it is important to note thatwhatever position is relied on, the petitioner, if he became entitled as amatter of public law to be heard before a decision was taken againsthim, that requirement of a hearing was one falling under the head of"procedural propriety", the significance of which will appear presently.
Lord Diplock in the Civil Service Case (supra) (at page 950 and 951)said “judicial review has I think developed to a stage today
whenone can conveniently classify under three heads; the
ground on which administrative action is subject to control by judicialreview. The first ground I would call 'illegality'. The second'irrationality' and the third 'procedural impropriety'
By 'illegality' as a ground for ji dicial review I mean that the decisionmaker must understand correct y the law that regulates his decision,making power and give effect to it
By 'irrationality' I mean what can now be succinctly referred to as'Wednesbury unreasonableness' (see Associated Provincial PictureHouses Ltd. v. Wednesbury Corporation(7)). It applies to a decisionwhich is so outrageous in its defiance of logic or of accepted moralstandards that'no sensible person who had applied his mind to thequestion to be decided could have arrived at it" I
I have described the third head as 'procedural impropriety' ratherthan failure to observe the basic rules of natural justice or failure to actwith procedural fairness towards the person.who will be affected bythe decision. This is because susceptibility to judicial review under this
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head covers also the failure by an administrative tribunal to observeprocedural rules that are expressly laid down in the legislativeinstrument by which its jurisdiction is conferred even where such
failure does not involve any denial of natural justiceAs respects,
'procedural propriety", I see no reason why it should not be a groundfor judicial review of a decision made under powers of which theultimate source is the prerogative (implying in this context that adecision made under powers, of which the ultimate source is astatute-and not the common law to which the lafel prerogative couldperhaps be sometimes given – is also susceptible to judicial review onthis ground)…. Indeed, where a decision is one which does not alterrights or obligations enforceable in private law but only deprives aperson of legitimate expectations, 'procedural impropriety' willnormally provide the only ground on which the decision is open tojudicial review.
It has by no means shown to us, nor indeed was it contended, thatthe refusal of renewal of a liquor licence is one. enforceable in privatelaw in the manner envisaged by Lord Diplock and we are ourselves areof the view that there is no room for thinking so.
It has by no means been shown to us, nor indeed was it contended,that the refusal of renewal of a liquor licence is one enforceable inprivate law in the manner envisaged by Lord Diplock and we areourselves of the view that there is no room for thinking so.
It is illuminating then to fit the petitioner's case into the classificationformulated by Lord Diplock in order to try to understand precisely whathe says. The decision not to renew these licences, being one notenforceable in private law, and the petitioner's case being that he wasdeprived of a legitimate expectation of renewal, consistently with thethinking of Lord Diplock, 'procedural impropriety' would we think bethe only ground on which such decision could be open to judicialreview. The corollary to that is that the argument of petitioner'sCounsel that the 2nd respondent was in breach of a statutory duty torenew these licences cannot succeed, inasmuch as, implicit in thatargument is the premise that the 2nd respondent failed to correctlyunderstand the applicable law which would then bring the petitioner'scase under the different head of 'illegality'.
Left then with the petitioner's case based .upon 'legitimateexpectation', we must express our view, even if we repeat ourselves indoing so, that at the stage the 2nd respondent considered the
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question of the renewal of these licences.for the year 1987, he wasentitled to give effect’ to current policy contained in the circular P8 andallow himself to be influenced by the objections of the 1 st Member ofParliament for the electorate. The fact that the consensus of theMember of Parliament (or of all Members in multi-memberconstituencies) was an essential requirement in terms of the circularP8, notwithstanding that the other requirements set out therein mayhave been met, must we think involve government policy. That impliesthat the Member of Parliament would be entitled to express hisobjections fpr reasons other than those referred to in the circular. Itwould in our view then, be not within the authority granted to theGovernment Agent to examine or query the grounds upon which suchobjections are based and therefore in allowing himself to be influencedby the objections of the 1 st Member of Parliament even though withrespect to renewal, the Government Agent himself we think wasendeavouring to give effect to current policy. Any inquiry then by us asto whether the 2nd respondent the Government Agent was justified inrefusing to renew these licences would take us into an excursion toexamine ourselves, the reasons for the withholding of the consent ofthe 1st Member of Parliament and the validity of such reasons, anexercise we do not intend to embark upon. With respect to that, wewould wish to reproduce here what Lord DiplOck said in the CivilService Case (supra) (at page 951) with respect to policy generally,albeit in a some what different context “Such decisions will generallyinvolve the application of government policy. The reasons for thedecision maker taking one course rather than another do not normallyinvolve questions to which, if disputed, the judicial process is adoptedto provide the right answer, by which I mean that the kind or evidencethat is admissible under judicial procedures and the way in which it hasto be adduced tend to exclude from the attention of the Courtcompeting policy considerations which, if the executive discretion is tobe wisely exercised, need to be weighed against one another, abalancing exercise which Judges by their upbringing and experienceare ill qualified to perform".
In O'Reilly v. Mackman (8) Lord Diplock in the House of Lords said(at page 275):
"In public law as distinguished from private law however suchlegitimate expectation gave to each appellant a sufficient interest tochallenge the legality of the adverse disciplinary award made againsthim".
Sudhakaran v Bharathi (Judgment of the Court)
In like manner in Findley v. Secretary of State for the HomeDepartment (9) (at page 830) Lord Scarman said-
"it is enough merely to note that a legitimate expectation can
provide a sufficient interest to enable one who cannot point to theexistence of a substantive right, to obtain the leave of the Court toapply for judicial review”.
The importance of these citations is to show that “legitimateexpectation”, if in point of fact found to be present, merely gives anapplicant for judicial review, locus standi to ask for it. As a reviewerhas pointed out with reference to this doctrine, it is important toremember that "legitimate expectation" is one thing and wrongful orultra vires action is another. The former, as he said, merely gives acomplainant, locus standi to seek judicial review; whereas it is thelatter which justifies the granting of judicial review and then only if allthe circumstances point to an exercise of the Court's discretion in thatway." (see The AH England Report Annual Review – 1985 -Administrative Law-at page 8).
Even assuming that there was a legitimate expectation as claimedby the petitioner, which as pointed out merely gave him locus standi toseek judicial review, we do not think that the 2nd respondent inrefusing the renewal of these licences, influenced by the objections ofthe 1 st Member of Parliament which he considered relevant, actedwrongfully or ultra vires so as to justify the exercise of judicial reviewby this Court.
We would also with respect to the contention of Counsel that it wasmandatory for the Government Agent to renew these licences, at thispoint repeat what we said earlier, that we are not convinced that thisis the correct position in law nor are we convinced that the 2ndrespondent was in breach of any public duty to renew them. Anexamination of the provisions of the Excise Ordinance and theRegulations framed under it does not demonstrate that whateverdiscretion has been given to the Government Agent with respect tothe granting of licences upon a new application has been limited orcurtailed in the case of renewal, in the manner contended.
One final thing, we think, must be said. What the petitioner seeksare, certiorari to quash what he claims is a refusal of the renewal ofthese licences by the Government Agent, certiorari to quash what he
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claims is a decision by the Minister to disallow his appeal from thatdecision and mandamus to compel the Government Agent to grantsuch renewal. In other words he asks this Court overall, to makeorders particularly by asking for mandamus in the manner he hasasked, to secure for him the renewal of these licences. Thepetitioner's claim we think is structured upon a misunderstanding^ ofthe scope of judicial review as it applies to an application of thisnature.
As far back as 1952 Denning Lord Justice (as he then was) pointedout in R. V. Northumberland Compensation Appeals Tribunal ex.pShaw (10) "The Kings Bench does not substitute its own views forthose of the tribunal, as the Court of Appeal would do”.
Lord Evershed in Ridge v. Baldwin (supra) (at page 91) referred to
"a danger of usurpation of power on the part of the Courts..under
the pretext of having regard to the principles of natural justice”. Headded 'I do observe again that it is not the decision as such which isliable to review; it is only the circumstances in which the decision wasreached".
In comparatively recent times Lord Brightman in Chief Constable ofNorth Wales Police v. Evans (-11) said "Judicial review is concernednot with the decision but with the decision making process. Unlessthat restriction on the power of the Court is observed the Court will inmy view under the guise of preventing the abuse of power, be itselfguilty of usurping power."
We are not satisfied that in the exercise of our discretion the reliefthe petitioner asks should be granted. This application therefore failsand it is accordingly dismissed with costs.