THAJUDEEN v. SRI LANKA TEA BOARD AND ANOTHER

037-SLLR-SLLR-1981-2-THAJUDEEN-v.-SRI-LANKA-TEA-BOARD-AND-ANOTHER.pdf


CA Thajudeen v. Sri Lanka Tea Board and Another (Ranasinghe, JJ 471
THAJUDEEN
v.
SRI LANKA TEA BOARD AND ANOTHER
COURT OF APPEAL
RANASINGHE. J.. AND SENEVIRATNE, J.
C. A. APPLICATION 1596/77
DECEMBER 3. 1980 AND FEBRUARY 13. 1981.
Writ of Mandamus will it be granted where facts are in dispute ?
VVhHip ti n mcjur ?c';ts oro in dispute and the legal result ol the facts is subject to contro-vrrs/ and it is necessary that the questions should be canvassed in a suit where partieswould have ample opportunity of examining the witnesses so that the Court would bebetter ab'e to judge which version is correct, c writ will not issue.
Mandamus .s pre-em nently a discretionary remedy. It is an extraordinary, resi-dua y and suppieiory remedy to be g-anted only when there is no other means of obtai-ning lustice. Even though el* other requirements for securing the remedy have been satis-fied by the app: leant, the court will deebne to exercise its discretion in his favour if aspecific alternative remedy like a regular action equally convenient, beneficial and effec-tive is available.
Cases referred to
(1) Ghosh v. Damodar Valley Corporation A. I. ft. 1953 Cal. 581.
12) Parraju v. General Manager B.N. Rly. A. 1.8. 1952 Cal. 610.
Application for writ of Mandamus
H. L. de Silva for petitioner.
K. N. Choksy with K. Kanag Iswaran for respondent.
Cur. adv. vult.
March 31,1981.
RANASINGHE, J.
The petitioner, who has been registered as a Manufacturer in termsof the provisions of sec. 6, Tea Control Act No. 51 of 1957 in res-pect of the Amugala Tea Factory at Danture, Kadugannawa,has- instituted these proceedings for a writ of Mandamus to compelthe Respondents to pay the petitioner a sum of Rs. 143,284.15,which, the petitioner states, is due to him as subsidies for themonths of February, March and May 1979 and which said sumof money the Respondents were obliged to pay in terms of a
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11981 ] 2 S.L.R.
"Guaranteed Minimum Price Scheme for Green Tea Leaf "opera-ted by the Respondents in accordance with the circulars, tenderedwith the petition marked P2 and P3, issued by the Tea Commi-ssioner.
Learned Counsel appearing for the Respondents has urgedseveral grounds why the petitioner's application for ? writ of Man-damus must be refused: that the petitioner has no legal right to theperformance of the duty of which he claims performance: thatthere is no statutory duty cast on the Respondent to perfom anysuch duty : that there is a dispute on the facts, as to whether ornot the sum of money claimed by the petitioner is due to him:that the petitioner's application is, in effect, to obtain payment ofmoney from public funds: that, as the petitioner has failed toexhibit with his petition the two documents, which have beenproduced by the Respondents marked R6, R7, he has been guiltyof suppression of material facts.
The basis of the Petitioner's claim is that he did in accordancewith the terms and conditions of the aforesaid Guaranteed Mini-mum Price Scheme for Green Tea Leaf, purchase, during the rele-vant period, for manufacture in the Amugala tea factory and didalso pay the minimum price specified in respect of such purchases,and that he has also forwarded the requisite returns. The petitio-ner states that although he has fulfilled all the terms and condi-tions necessary to qualify for the payment of the subsidy payableunder the said scheme, the respondents have failed and neglectedto make the said payment. The Petitioner has, in paragraph 6 ofthe petition, set out in detail how the sum of Rs. 143,284.33'which he claims as the amount due to him in terms of the saidScheme has been computed.
A consideration of the terms and conditions of the saidGuaranteed Minimum Price Scheme for Tea Leaf the particulars ofwhich are set out in the document P2, shows that the main objectof the said scheme is the guarantee to the tea small-holder of aminimum price for the green tea leaf supplied to a factory regis-tered under the said scheme, and that the essence of the subsidypaid to the registered owner of a tea factory, is the actual purchaseof green tea leaf by him from a tea small-holder which, aftermanufacture in such factory, only fetches a price which is belowthe specified price. The subsidy is paid only in respect of actualpurchases made. The quantum of the subsidy depends on both theprice realised by the tea made and the quantity of green tea leafactually purchased.
The 2nd Respondent has, in his affidavit filed in support of
CA Thajudeen v. Sri Lanka Tea Board and Another (Ranasinghe, JJ 473
the objections put forward on behalf of the Respondents, averredthat an inspection of the Petitioner’s factory carried out on
revealed that quality tea cannot be manufactured at thePetitioner's factory in its existing state: that the petitioner hadexaggerated green tea leaf intake with a view to claiming the teasubsidy money: that though the entries made in the factory,register showed there were large intakes of green tea leaf, the leafdealers who were supposed to have supplied the leaf to the fac-tory, were not in a position to prove such supply: that entries inthe Factory registers showed green tea leaf intake far in excess ofthe factory's withering and drying capacities.
The 2nd Respondent has also, in the said affidavit, averredthat, in view of the said shortcomings revealed "by the said inspec-tion, the 2nd Respondent decided to take action against the Peti-tioner and the dealers from whom the Petitioner is said to havepurchased the green tea leaf in respect of which the subsidy wasclaimed, and, pending such action, to suspend the payment of thesubsidy to the Petitioner: that the Petitioner was called upon toshow cause why the registration of the said factory should not becancelled; why the payment of the subsidy should not be with-held; why legal action should not be instituted against the Peti-tioner for attempting to defraud the subsidy monies by makingfalse entries in the registers. The Respondents have also deniedthat the Petitioner has complied with the terms and conditionswhich would entitle him to the payment of the said subsidy.
A comparison of the respective positions taken up by theRespondents and the petitioner unmistakably shows that theclaim of the Petitioner, that he is entitled to the amount set out inhis petition, is denied by the Respondents and that such denial isnot based only upon questions of law alone. One of the maingrounds of objections raised in respect of the said claim is thatthe said sum of money is not, in fact, due. This objection is onebased upon questions of fact. The Respondents dispute thecorrectness of the figures relating to the purchases of the greentea leaf. They deny that such quantities of green tea leaf were in• fact purchased as claimed by the Petitioner. The very foundationsof fact, which the petitioner must establish to prove that he is, infact, entitled to claim the payment of the sum of money, which heseeks to compel the Respondents to pay him, are therefore, notonly not admitted by the Respondents but are also very strenuouslydenied and disputed by the Respondents. The basic and funda-mental issues of fact the proof of which is essential, to the claimfor the relief the Petitioner seeks in these proceedings, have in thefirst instance to be established by the Petitioner. In the absence ofincontrovertible proof or an admission by the Respondents of
13,
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11981 2 S.L R.
such matters of fact, the Petitioner's claim to the payment of thesaid sum of money cannot be maintained. All such disputedmatters of fact must be resolved before a mandatory order, such asis claimed by the Petitioner in these proceedings, goes out fromthis Court. The issuance of such an order carries with it theimplication that this Court is satisfied that the said amount is infact due to the Petitioner and that there is no question about thebasic primary ouestions of fact upon which the Petitioner's claimis founded When, however, such questions of fact are in disputethey can and must only be settled by a regular action between thedisputants before the appropriate Court of First Instance. Suchquestions, the decision of which calls for the leading of evidence,both oral and documentary and the cross-examination of witnessesare all questions which can be best decided by way of regularprocedure falling within the ordinary jurisdiction of the Courts ofFirst Instance.
Having regard to both the nature of the Petitioner's claim andthe position taken up by the Respondents, it appears to me thatthe Petitioner's is a claim which can, not only be convenientlydecided by way of a regular action in the District Court but alsothat, that is the most appropriate form of action in which itShould be decided.
CHOUDRI in his book on the Law of Writs and FundamentalRights (2nd Ed.), Vol.2, states at page 381: "The rule has beenstated that mandamus will not lie to compel a public officer toperform a duty dependent upon disputed and doubtful facts, orwhere the legal result of the facts is subject to controversy*.! f theright is in serious doubt the discretionary power rests with theofficer to decide whether or not he will enforce it, till the rightshall have been established in some proper action, and discretionfairly exercised in such circumstances cannot be controlled bymandamus;" and, at page 449: "Where facts are in dispute and inorder to get at the truth it is necessary that the questions shouldbe canvassed in a suit where parties would have ample opportu-nity of examining their witnesses and the Court would be betterable to judge which version is correct, a writ will not issue."
That the remedy by way of an application for a Writ is nota proper substitute for a remedy by way of a suit, specially wherefacts are in dispute and in order to get at the truth, it is necessarythat the questions should be canv~ ’d in a suit where the partieswould have ample opportunity t ^mining their witnesses andthe Court would be better able to judge which version is correct,has been laid down in the b ‘'an cases of: Ghosh v. DamodarValley Corporation, *11 Pom Genera! Manager B. N. Rly,(2)
CA Thajudeen v. Sri Lanka Tea Board and Another (Ranasinghe, J.)475
Mandamus is “pre-eminently a discretionary remedy," and"Mandamus has always been awarded as an extraordinary, resi-duary and 'suppletory' remedy to be granted only when there isno other means of obtaining justice. Even though all other require-ments for securing the remedy have been satisfied by the appli-cant, the court will decline to exercise its discretion in his favour ifa specific alternative remedy "equally conveninent, beneficial andeffectual is available" — vide De Smith's Judicial Review ofAdministrative Action (4th Ed.) ps. 540, 561. "The court will,as a general rule and in the exercise of its discretion, refuse anorder of mandamus when there in an alternative specific remedyat law which is not less convenient, beneficial and effective . . . .and the court will not, in general, interfere to enforce the law ofthe land by the extraordinary remedy of an order of mandamus incases where an action at law will lie for complete satisfaction"—vide Halsbury (4th Ed.) para 126, ps. 135—6.
In this view of the matter, it appears to me that, as the majorgrounds of fact, upon which the Petitioner's claim for the pay-ment of the sum of money in question are founded, are beingdisputed by the Respondents, and, as the most appropriate proce-dure for the settlement of such a dispute is an action by way ofregular procedure before the appropriate Court of First Instance,and such an action by way of regular procedure also constitutes an"equally convenient, beneficial and effective" remedy, this Courtshould, in the exercise of its discretion, refuse the Petitioner'sapplication. It is, therefore, not necessary to consider the Respon-dent's other grounds of objections. I
I make order accordingly dismissing the Petitioner’s applica-tion with costs.
SENEVIRATNE, J. I agree.
Application dismissed.