THE ATTONEY-GENERAL , Appellant, and S. SABARATNAM, Respondent

118-NLR-NLR-V-57-THE-ATTONEY-GENERAL-Appellant-and-S.-SABARATNAM-Respondent.pdf

1955-Present: Gratiaen, J., and Swan, J.T1LK ATTOltXKY-G15XERAL, Appellant, andS. SABA R ATX A31, Respondent
S'. a. 10S—J). a. Colombo, :U,SJ//JI
■* _
Quia timet action—ttenady aj declaratory decree—Jurisdiction <>J Court to ynml it—
Liability of Crotm.
A party who hus a concrete dispute with another may obtain in anticipation adeclaration by Court that his opponent docs not have a good cause of actionagainst him. Tlio jurisdiction of Court to grant a declaratory dccreo is,of course, discretionary, and would not he exercised for the purpose of makingpremature pronouncements as to future contingent rights of litigants.
Tlio Crown enjoys no special immunity from declaratory decrees in caseswhere they woidd be appropriate in actions between private litigants..
The plaintiff, when lie was a 7’ublic IVorks Department overseer, had beencalled upon by the Director of Public Works to refund a certain sum of moneywhich was alleged to have been over-paid to him. Plaintiff denied that there-had been any over-payment, but the Director persisted in his claim for a refund.Keen after he retired from the Public Service, tlio Government refused to with-draw its claim for a refund and, the plaintiff alleged, was withholding paymentof arrears of salary and pension duo to him. Ifo instituted tlio present actionasking for a formal declaration in his favour that, inter alia, ho was not liabloto refund any sum of money.
Held, that the action was maintainable.
A
-iA.PPEAJj from a judgment of the District Court, Colombo.
V. Teiutckoon, Crown Counsel, with K. 11. de Foit-scka, Crown Counsel,for the defendant appellant.
S'. J. V. Chclvanayakam, Q.C., with 11. Munikkavasayar, for the phtinlifTrespondent.
Cur. adv. full.
November 28, 1955. Ghatiakx, J.—
This is an appeal by the Attorney-General on behalf of the Crownagainst a declaratory decree to the effect that “ the allegation made bythe Government that a sum of Rs. 10,009/57 had been over-paid to theplaintiff on his bill Xo. 37 for work done in January 1948 was wronglymade, and that the plaintiff is not liablo to refund any monies received onaccount of the said bill Xo. 37. ”
The form of the decree under appeal is certainly unusual, but it wasentered in circumstances which rarely occur in the proceedings betweentlio. Crown and a subject or even in private litigation. The facts as
21LVJt
2J. X. 1> 50171—1,592 (7/3G)
found bj- tlie learned trial Judge upon the issues which were framed atthe trial are no longer in dispute. ' Shortly stated they are as follows':The plaintiff had been a Public Works Department overseer stationedat all material times in Point Pedro. The Department was then engagedin the construction of “ the Mahadeva causeway ”, but found some diffi-culty in inducing private contractors to enter into sub-contracts under-taking part of the work. Accordingly, the plaintiff and two other
P.W. D. overseers wcje persuaded, in addition to their normal duties, tocarry out certain items of works on sub-contract. In due course, theplaintiff submitted for payment through the usual channels his Bill No. 37setting out particulars of his claim that Its. 15,892/17 was due to him forwork done and materials sujiplied up to January 1948. This bill was dulysettled, but on 25th May 1949 the (then) Director of Public Works wroteto him alleging that there had been an overpayment of Its. 10,007/77 andcalling upon him to refund this sum within three weeks. The letter alsoalleged that there had been a further over-payment the precise extentof which was still under official investigation, and that a claim for a refundunder that head would also be sent to him.
Correspondence then passed in the course of which the plaintiff deniedthat there had been any over-payment, but the Director persisted in hisclaim for a refund which was.later restricted, however, tolls. 10,003/37.
In .1950 the plaintiff fell ill, and retired from the Public Service on 30lhSeptember on medical grounds. The Government had even at- that pointof time refused to withdraw its claim for a refund. In due course, theplaintiff instituted this action on 25th June 1951 setting out the factsrelating to the dispute, and asking for a declaration in his favour that,inter alia, he was not liable to refund anj- part of the sum paid to himthree years previously on Bill No. 37. Part of his complaint against theCrown was that “ insisting on the correctness of its demand for a refundthe Government was wrongly withholding the plaintiff’s (retiring)pension. ”
The Attorney-General, on behalf of the Crown, tiled an answer (amilater an amended answer) repeating the allegation that there had been anover-payment as previously suggested, and disputing, in a negative-form,the averment that the plaintiff was not liable to refund Its. 10,003/37 tothe Government-. In addition the Attorney-General pleaded, as a matterof law, that the plaintiff was not entitled to a bare declaratory decree as tohis non-liability to the Crown.
• Nineteen issues-were framed for adjudication at the trial ; of these, ISrelated to the principal dispute as to whether the plaint iff had in fact beenoverpaid on Bill No. 37. The other issue introduced the legal objectionthat the plaint disclosed no’cause of action.-■
The learned trial Judge,’ after a careful assessment- of the oral anddocumentary evidence, held that the plaintiff was not liable to refund any..part of the money received by him in settlement- of Bill No. 37. • He also ‘.decided that-, in the particular circumstances of this case,-the plaintiff.'vvas eniitfed, (“ forwhal it was worth ”) to a formal declaratory decreeus to his non-liability.
OTiATIARX, .T.—The Attorney-General i>. Enhamj.nmn'JSfJ
;!X.
The Crown lias at long last accepted the findings of fact in favour of theplaintiff on the dispute which commenced on 2oth Stay 1949. In theresult-, the plaintiff must at least receive considerable comfort- from thedecision of an independent tribunal that, at the time of his retirementafter over 26 years of public service, tlicro was no foundation for theaccusation that he had " got away ” with public funds.
The only ground of appeal raised before us on behalf of the Crown wasthat the plaintiff could not claim a formal decree absolving him from theimputation of liability to-refund monies to the Government. I am gladto say that I find myself unable, as a matter of Jaw, to upholdthis objection. The Courts in Ceylon arc not completely powerless insituations of this kind, and are vested with a discretion to enter a decree ofa declaratory nature although prevented from granting more substantialrelief to the successful litigant.
It is perfectly true that the jurisdiction conferred on our Courts by theCivil Procedure Code to grant declaratory decrees is not quite so wide asthat enjoyed in Kngland and South Africa. We have no express pro-cedure, for instance, for the settlement of disputes in anticipation by wayof ” originating summons ” as to the interpretation of a statute, a testa-mentary disposition, or a written contract. Nevertheless, there arc manyinstances in which our Courts have properly assumed jurisdiction tomake binding declarations which would serve some tangible purpose con-cerning the rights and liabilities of litigants in respect of “ concrete,genuine disputes ” .ns ojijxxsed to “ controversies of a purely academicnature ”. The jurisdiction is, of course, discretionary, and would notbe exercised for the purpose of making premature pronouncements as tofuture contingent rights of litigants (particularly if all the persons likelyto be affected are not before the Court). For recent rulings on this sub-ject, see /fcxcarithar tie’s case *, Naganathar’s case 2 and Seilvain's case 3.
The Crown enjoys no special immunity from declaratory decrees incases where they would bo appropriate in actions between private liti-gants. “ The King is the fountain and head of justice and equity, and itshall not be presumed that lie will be defective in either ; it wouldderogate from the King’s honour to imagine that what is equity against acommon peison should not be equity against him. ” Pawlett v. TheAttorney-General J. It is important to realise that any decree against theCrown for the payment of money to a private individual is itself declara-tory in effect- though not in form. The Crown is immune from allordinary modes of enforcing judgments, but in the ultimate result-, theobligations arising under the decree arc invariably honoured.
In Kngland, the Crown Proceedings Act of 1947 now makes special,procedural provision for the remedy of declaratory decrees against the.Attorney-General as representing the Crown. – But even before that date,-the-Attorney-General had long since been regarded as amenable in thatcapacity to such proceedings.
1 (1051) 53 N. h. Ii. ICO.3 (10-ji) 55 X. L. It. TIG.
* {1953) So .V. L. It. 310.*{IGG7) Hard -IG5 at 1G0 ; 115 E. It. 550.
. In Dyson v. A.G.X, Cozens-Hardy M. R. explained that the Court has adiscretion, having regard to all the circumstances of a particular case, todecide whether or not a declaratory judgment should bo granted to en-able a party to a concrete dispute, who expects to be made defendant, toobtain in anticipation a declaration that his opponent lias no good causeof action against him. In some cases, of course, the Court may wellsay wait until you are attacked, and then raise your defence. ” Inothers, it may properly decide that justice requires the person aggrievedto he protected from the imputation of liability. See also Dyson's case aand lie. Clay: Clay r. Jloolh3 where the Court refused a declaratorydecree in the particular case, but Eve J. indicated (page 7fl) tFiat theposition would have been different if a “ specific right- had lieenasserted ” and a claim unambiguously formulated.
In the present action, the plaintiff has asked for and obtained, afteradjudication, a decree that the “ specific right ” persistently assertedagainst him by the Crown since April 1949 docs not exist, and that theclaim “ formulated ” against him has no foundation. In all the circum-stances of this case, I am satisfied that the learned Judge lias properlyexercised his discretion in favour of the plaintiff. It is no small matter for aretired public officer, with a record of long and honourable service underthe Crown, to have over his head the constant threat of litigation for therecovery of a substantial sum of money which he docs not in fact owe theGovernment. With the passage of time, there is always a real danger thatthe best evidence of his non-liability might cease to be available if andwhen the threatened litigation does materialise. I can think of no casein which the protection of a declaratory decree would be more appro-priate. It is based on the quia timet remedy.
The institution of the plaintiff’s action was virtually an invitation to theCrown either to withdraw the earlier allegation or alternatively to counter-claim the sum of Rs. 10,003/17. The decision to decline both invitationswould have been cpiite inexplicable in the ease of a private litigant claim-ing to be the genuine creditor of his adversary. Mr. Tcnnckoon, whoargued the appeal before us with admirable fairness and moderation, toldus that-, in the absence of instructions on the point, lie was not in a positionto explain why the Crown in this ease persisted in asserting at the trialthat money was due which it did not seek (even after the lapse of so manyyears) to recover through the usual machinery of the Courts. In thesecircumstances, the Grown can hardly complain that the plaintiff suspects,and has unequivocally insinuated, that the executive prefers to resort to anindirect- (and less commendable) method of recovery by withholding hisarrears of salary and his retiring pension until the alleged debt is liqui-dated. The unchallenged and uncontradictcd evidence of the plaintiffon this point was to the following effect :
“ The defendant did not accept my explanation and persisted inasking for the money, and then stopped my salary and my securitymoney and my pension. I appealed to them even to pay me an ali-mentary allowance, but that was also refused …. I had waited
> (1011) 1 K. 13. 110 at 417.* (1013) 1 Ch. D. LSS.
•3 (1010) 1 Ch. C6.
for years before I came into Court. My pension has been stopped fortwo years and one month, and X had to come into Court for a declarationthat they were not entitled to a refund in this matter. ”
This evidence was given over three years ago, and it is not denied that thepension “ earned ” by this public officer who retired in September 19o0 isstill being withheld for reasons which have never been divulged. Itis therefore very desirable that the plaintiff should receive the formal con-firmation of a judicial decree declaring that he is not in fact a debtor of theCrown. This is the only form of assistance that he can receive from aCourt of justice which is powerless to compel the payment of salaries topublic servants or of pensions to retired public officers.
The plaintiff has complained that his arrears of salary have notbeen paid. The Courts cannot assist him ; “ his only claim is on thebounty of the Crown ” and " his only remedy lies in an appeal of an officialor political kind … by petition, by memorial or by remon-
strance. ” see High Commissioner for India v. Lall where the JudicialCommittee entered a decree declaring that the plaintiff was still a memberof the Indian Civil Service, but declined to enter a judgment in his favourfor arrears of salary upon that basis. Equallj-, the Courts cannot compelthe Crown to pay the present plaintiff any pension which he may have"earned'’. The Minutes on Pensions serves as a reminder that "publicservants have no absolute right to any pension or allowance under theserules. ” Gunaivardene v. The Attorney-General Accordingly, ho is" entitled only to expect ” a pension, but " this expectation, though itmight be relied on with full certainty, is none the less not a legal right ”,Considine v. Me Inerney 3. But Courts of justice have always assumed,so far without disillusionment, that their declaratory decrees against theCrown will be respected. For this additional reason, I would affirm thejudgment under appeal in the confident belief that it may thereby assistthe plaintiff to obtain through the proper channels extra-legal reliefagainst suspected departmental victimisation. It has now been clearlyestablished that he is not a debtor of the Crown. It is therefore quiteunthinkable that the learned Judge’s verdict on the facts, which have notbeen challenged by the Attorney-General, would be insolently ignored for'the purposes of any future administrative decision connected with thepayment of salary or pension which the plaintiff is “ entitled to expect ”.
I would dismiss the appeal with costs.
Swan, J.—I agree.
Appeal dismissed.
1 (19JS) A. 7. R. P. C. 121. .* (1013) 49 X. L. R. 359.
3 (191G) 2 A. C. 1G2 at 170.