032-SLLR-SLLR-1998-1-THE-SURVEYORS’-INSTITUTE-OF-SRI-LANKA-ACTING-SURVEYOR-GENERAL.pdf
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THE SURVEYORS' INSTITUTE OF SRI LANKA
v.ACTING SURVEYOR-GENERAL
COURT OF APPEALDR. RANARAJA, J.
C.A. 55/97C.A. 303/9704TH, JULY 1997.
Writ of Certiorari and Mandamus – Institute of Surveying and Mapping (ISM)- Act No. 21 of 1969 – Doctrine of ultra vires – Distinction between ultra viresand acting without jurisdiction – Surveyors' Ordinance.
The ISM set up by Act, No. 21 of 1969 conducted three year Diploma course(Advanced Level), or a Degree course with a three-year residential requirementor a six-year residential cum training course. The ISM also conducted HigherDiploma Course of one year's duration, Diploma for Cartographic Technicians,Diploma for Photogrammetric Technicians, Diploma for Remote ServingTechnicians, Diploma for Air Photo Lab Technicians and several short-term trainingprogrammes and refresher courses.
The ISM also trained surveyors for the award after three years of a Diploma(Advanced Level).
A selection test scheduled to have been held to fill vacancies in Cl. Ill GradeIII of the Sri Lanka Survey Service published in the Government Gazette wascancelled by the Secretary, Ministry of Agriculture, Lands and Forestry by ordermade on July 08, 1996 and the Acting Surveyor-General made a decision to callfor applications for a training course in surveying at the ISM. These officers wouldbe employed to assist the Title Registration Programme and would not be trainedas surveyors.
The petitioners contended that the only courses provided in law for training ofsurveyors at the ISM was the Diploma and/or Degree in surveying sciences. Hencethe cancellation of the Gazette notice calling for applications for post of Surveyorsin Class III Grade III was illegal, unreasonable and arbitrary. The Surveyor-Generalacted in excess of his powers when he called for applications for the purportedtraining course in surveying to train Survey Assistants.
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Held:
In essence the doctrine of ultra vires permits the Courts to strike downdecisions made by bodies exercising public functions which they have nopower to make. Atrting ultra vires, and without jurisdiction have essentiallythe same meaning although in general the term "vires* has been employedwhen considering administrative decisions and subordinate legislative ordersand "jurisdiction" when considering judicial decisions or those having ajudicial flavour.
Under the Surveyors' Ordinance it is the Minister who has the right toframe regulations for the holding and conduct of examinations of candidatesfor annual licences. But the regulations framed have not been followedwith the establishment of the ISM which had as one of its functions theprovision of instruction in surveying, levelling and mapping.
The ISM was elevated to a degree awarding institute. If the ISM couldgrant degrees to graduates who passed out at the Institute, there is noreason why H cannot grant certificates to persons who successfullycomplete the course in surveying especially when the Surveyor-Generalhas given the assurance that those persons will be employed to assistthe title registration programme only and will not be undergoing trainingas surveyors.
Further the Secretary has assured the President of the Surveyors' Institutethat the Ministry intends to initiate action to call for applications for therecruitment of surveyors to Class III Grade III of the survey service indue course.
In the above circumstances no relief by way of certiorari or mandamusis called for.
APPLICATIONS for writs of certiorari and mandamus.
R.K. W. Gunasekera for petitioner.
Elmore Perera for Intervenient petitioner.
S.Sri Skandarajah, SSC for respondent.
Cur. adv. vult
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JULY 04, 1997.
DR. RANARAJA, J.
Introduction:
The Surveyors' Institute of Sri Lanka, the petitioner in C.A. 55/97, isa statutory body incorporated by the Surveyors' Institute of Sri LankaAct, No. 22 of 1982. The Institution of Survey Engineers, Sri Lanka,the petitioner in C.A. 303/97, was incorporated on 10th April, 1984,as a company with limited liability, under licence issued by the Registrarof Companies. Both petitioners claim to have as one of their objectsthe maintenance of high standards of competence in the professionalconduct and general conduct of their members. Both applications havebeen filed inter alia:
for writs of certiorari to-
quash the decision dated 8.7.96 of the Secretary, Ministryof Agriculture, Lands and Forestry, to cancel the selectiontest scheduled to have been held to fill the vacanciesin class III grade III of the Sri Lanka Survey Servicepublished in the Gazette No. 890 dated 22.9.1995, asamended by the Gazette No. 919 dated 11.4.1996,published in the Gazette of 26.7.1996.
quash the decision of the Acting Surveyor-General to callfor applications for a training course in surveying at theInstitute of Surveying and Mapping communicated in theGazette notice dated 27.9.1996, and;
a writ of mandamus directing the Secretary, Ministry ofAgriculture, Lands and Forestry and the Surveyor-Generalto proceed with the recruitment of candidates to ClassIII Grade III of the survey service as per the said Gazette noticeand resume forthwith the Bachelor's Degree Course in surveyingservices at the Institute of Surveying and Mapping (I.S.M)Diyatalawa.
Since the relief claimed is identical in both applications, a singlejudgment will bind parties in both applications.
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The Institute of Surveying and Mapping (ISM):
The I.S.M. was established by Act No. 21 of 1969, (a) to provideinstruction in surveying, levelling and mapping, (b) to hold examina-tions for the purpose of ascertaining the persons who have acquiredproficiency in surveying, levelling and mapping, (c) to grant diplomasto persons, who have pursued approved courses of study in theInstitute and who have passed the examinations of the Institute.
Since 20th February, 1971, the I.S.M. has been administered byan officer appointed by and under the directions of the Surveyor-General. By order under section 25(A) of the Universities Act, No.16 of 1978, published in the Gazette Extraordinary No. 620/4 of24/7/90, the I.S.M was recognized as a degree awarding institution.
The Deputy Surveyor-General by notice published in the Gazetteof 8.11.91, called for applications for admission to the Degreecourse in surveying from those who had obtained passes in PureMathematics, Applied Mathematics, Physics or Chemistry at the G.C.E.(Advanced Level) held in 1987, 1988 or 1989 or passes in at leastthree (3) of the above subjects with not less than 25% in the 4thsubject in one sitting with an aggregate of 180 marks or more andto fill the vacancies in class III grade III of the Sri Lanka Surveyors'Service. It appears that three batches of undergraduates have beenadmitted to the I.S.M. since then till the notice was published callingfor applicants to fill the vacancies in class III grade III of the Sri LankaSurveyors' Service (S.LS.S.). Those appointed were to undergo athree- year period of training, of which not less than two were to beat I.S.M and the balance one year in practical training. Those whosuccessfully completed the training and passed the Diploma of SurveyTechnician (Advanced Level) were to be confirmed in service. TheDegree Course which was conducted earlier was either (a) a threeyear residential course or (b) joining the S.LS.S. as a surveyor inclass III grade III, following the first two years of the residential course,to be followed by three years of field service and returning in thesixth year to follow the third year of the residential course. Thus theI.S.M. conducted three year Diploma course (Advanced Level) forthose recruited to the S.L.S.S. at class III grade III level, or a Degreecourse with a three-year residential requirement or a six-yearresidential cum training course for those recruited to that grade ofthe S.LS.S.
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The I.S.M. has also conducted Higher Diploma Course ofone year duration, Diploma for Cartographic Technicians, Diplomafor Photogrammetric Technicians, Diploma for Remote SensingTechnicians, Diploma for Air Photo Lab Technicians and several short-term training programmes and refresher courses for employees of theSurvey Department.
The I.S.M. has also trained surveyors for the award after threeyears of a Diploma (Advanced Level) for several Government depart-ments and statutory boards.
A distinction has therefore to be drawn between the coursesconducted by the I.S.M. to train persons as surveyors and others forimparting knowledge in surveying and allied subjects at a higher orlower level than the courses to be successfully completed by a personseeking to obtain a licence to practise as a surveyor.
Training Course in Surveying at ISM:
By notice dated 2.9.96 published in the Gazette of 27.9.96 (P6), theActing Surveyor General called for applications for a training coursein surveying at the I.S.M. The educational qualifications requiredfor following course were: (1) a pass at the S.S.C. or G.C.E. (O/L)examination in 6 subjects in not more than 2 sittings with creditpasses in Language or Literature, Mathematics, Science and in oneother subject and a pass at the G.C.E. (A/L) examination in 4 subjectsin one sitting with Pure Mathematics (with special consideration beinggiven to those having a pass in Physics), (2) for those employedin the Survey Department, a pass at the S.S.C. or G.C.E. (O/L)Examination with Language and Mathematics.
A certificate was to be issued to those completing the 15 monthresidential training course. By a notice published in the newspapers(P7), the Acting Surveyor-General informed the public that the officersundergoing training under the programme will be employed to assistthe Title Registration Programme only and that they will notbe undergoing training as surveyors.
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Complaint of the petitioners:
The petitioners state that surveying is a learned profession, which needbasic educational and intelligence levels to acquire competence. Atpresent, the only courses that are provided in law for training ofsurveyors at the I.S.M. is the Diploma and/or Degree in SurveyingSciences. The Secretary's purported cancellation of the Gazette noticecalling for applications for the posts of surveyors in class III gradeIII is illegal, unreasonable and arbitrary. Since the only courses thatare provided in law for training of surveyors at the I.S.M. are theDiploma and/or Degree in surveying sciences, the conduct of trainingcourses in surveying is ultra vires and the Surveyor-General has actedin excess of the powers vested in him by law when he called forapplications for the purported training course in surveying to trainSurvey Assistants. It is alleged that until 1991 'Survey Assistants' weredesignated "Survey Labourers" and the only training they received wason the job which was more than sufficient for the efficient dischargeof their duties and any formal training in excess of two weeks willbe a waste of time, scarce resources and public funds.
It is also submitted that the selection of departmental employeesholding positions such as Technical and Administrative Officer, Draughts-man, Programmetric Technical Officer, etc. and granting them full payleave for a period of 15 months to be trained as Survey Assistantsis contrary to the provisions of the Establishments Code and thereforeultra vires the powers of the Secretary and the Surveyor General.
The petitioners have alleged that 115 applicants, 43 of whom areSurvey Department employees, have been selected to follow thecourse which was to commence on 31.3.97.
The question that arises is whether either the Secretary or theSurveyor-General acted without legal authority in (a) cancellingthe notice calling for applications to fill the posts of surveyors inclass III grade III and (b) commencing a training course in surveyingat the I.S.M.
The Doctrine of Ultra Vires:
In essence, the doctrine of ultra vires permits the Courts to strikedown decisions made by bodies exercising public functions which
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they have no power to make. Acting ultra vires, and acting withoutjurisdiction have essentially the same meaning, although in generalthe term "vires" has been employed when considering administrativedecisions and subordinate legislative orders, and “jurisdiction" whenconsidering judicial decisions, or those having a judicial flavour – DeSmith, Woolf and Jowell – Judicial Review of AdministrativeAction, 5th Ed. p. 229.
The simple proposition that a public authority may not act outsideits powers (ultra v/res) might fitly be called the central principle ofadministrative law – Wade & Forsyth – Administrative Law 7th ed.p. 41. A public authority that has acted unlawfully has acted in a waythat is ultra vires or beyond its powers or to use another phrase, thebody has acted without jurisdiction. A decision will be ultra vires wherethe public body has exceeded the scope of the powers vested in itby statute, or has breached one of the recognized principles developedby the Courts to govern the exercise of discretionary power. CliveLewis – Judicial Remedies in Public Law – p 128.
An administrative decision is flawed if it is illegal. A decision isillegal if (a) it contravenes or exceeds the terms of the power whichauthorises the making of the decision or (b) it pursues an objectiveother than that for which the power to make the decision was con-ferred. The task for the Courts in evaluating whether a decision isillegal is essentially one of construing the content and scope of theinstrument conferring the power in order to determine whether thedecision falls within its "four corners". De Smith (Ibid) p 295.
Any administrative act or order which is ultra vires or outsidejurisdiction is void in law, i.e. deprived of legal effect. This is becausean order to be valid it needs statutory authorisation, and if it is notwithin the powers given by the Act, it has no leg to stand on. TheCourt will then quash it or declare it to be unlawful or prohibit anyaction to enforce it. – Wade & Forsyth (Ibid) p 43.
The invalidity of an act must be established and cannot bepresumed, and the Court may refuse to assist an individual inestablishing that invalidity. Even if invalidity could potentially beestablished there are circumstances where the Court will not interveneto quash the act. Rules governing standing, and the time limits forbringing applications for judicial review, may prevent a particular
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individual from establishing the invalidity of an act. In addition, theCourts have a wide discretion to refuse a remedy. In the words ofProfessor Wade, "the truth of the matter is that the Court will invalidatean order only if the right remedy is sought by the right person inthe right proceedings and circumstances" – Clive Lewis (Ibid) p132.
Submissions of Petitioners:
It is admitted that under the Surveyors' Ordinance, which wasenacted to provide for licensing of surveyors, it is the Minister, whohas the right to frame regulations for the holding and conduct ofexaminations of candidates for annual licences (section 7). The onlyregulations that have been gazetted in terms of the Ordinance arein P1. However, those regulations have not been followed with theestablishment of the I.S.M. which had as one of its functions theprovision of instruction in surveying, levelling and mapping (section3 (a)). It is submitted that clause (c) of section 3 must be read withclauses (a) and (b) and therefore the I.S.M. has the authority to grantonly Diplomas to those who pass the examinations of the Institute.This argument is contradictory to the averments of the petitioners thatthe I.S.M. was elevated to a degree awarding institute. If the I.S.M.could have granted degrees to graduates who passed out of theinstitute, there is no reason why it cannot grant certificates to personswho successfully complete the course in surveying at the I.S.M.,especially when the Acting Surveyor General has given the assurancethat those persons will be employed to assist the Title RegistrationProgramme only and will not be undergoing training assurveyors (P7). Similarly, the Secretary by letter dated 17.1.97 (P9)has stated that the trainees will not function as surveyors, nor wouldthey be recognized or treated as surveyors, as they are not recruitedin terms of the "Surveyors' Minute". The Surveyors' Ordinance providesthat the Surveyor General has the right to grant annual licences topractise as a land surveyor to persons who have passed theprescribed examinations in surveying. Where he has made a publicannouncement that the persons who are alleged to have commencedtraining as survey assistants will not be undergoing training assurveyors, the petitioners whose object is inter alia, to protect andpromote the interests, welfare, rights and privileges of the land surveyingprofession in Sri Lanka (Section 4 (L) of the Surveyors' Institute ofSri Lanka (Incorporation) Act, No. 22 of 1982), need have no fearthat, that object will be put in jeopardy.
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The petitioners, on whom the burden of proving that either theSecretary or the Surveyor-General had no authority to commencethe training course complained of, have been unable to point toany specific provision of law which prevents such a course beingconducted at the I.S.M. On the other hand, section 3 (a) providessuch authority to the Surveyor-General to administer and dischargethe functions of the I.S.M. (section 4 (3) ). It is to be noted that theSurveyor- General himself is a member of the Surveyors' Institute ofSri Lanka (section 3 (b) ). He, as the authority who grants annuallicences to surveyors, will no doubt refuse to issue licences to thosenot qualified.
It is submitted that the decision to discontinue the Degree coursein surveying sciences is contrary to all recommendations made anddecisions taken from time to time and irreparable harm will be causedto the profession of surveying unless the decision to discontinue theDegree course in surveying sciences and/or the Diploma course isquashed.
The letter of the Secretary dated 17.01.97 (P9) cuts across theallegation that the Degree/Diploma course has been discontinued. Inthat letter, the Secretary has assured the President of the Surveyors'Institute of Sri Lanka, that "This Ministry intends to initiate action tocall for applications for the recruitment of surveyors to class III gradeIII of the survey service in due course. All those who forwardedapplications for admission to class III grade III of the surveyors' servicein respect of the Gazette notification No. 890 of 22.9.95 will be madeeligible to apply for the new examination and they will be exemptedfrom the payment of examination fees if they have already paid suchfees". This statement has been reiterated in the affidavit filed by theSecretary. Thus what was decided at the meeting on "Future trainingof surveyors" held on 5.7.96 is of no relevance.
In this instant too the petitioners have failed to prove that therespondents have acted without authority in cancelling the earliernotice calling for applicants to fill vacancies in class III grade III ofthe S.L.S.S.
sc
Vaidyanathan v. Board of Review Ceiling on Housing
Property Law and Others
275
Conclusion:
The petitioners have failed to make out a case for relief by wayof certiorari or mandamus. The petitioners have no statutory right tothe latter relief, in any event. Thus their applications have to fail. Thereappears to be some apprehension that the Secretary and the Surveyor-General will renege on the assurances given and that the entireexercise is a subterfuge to recruit surveyors "through the back door".Public officials who have given assurances and sworn affidavits affirmingfacts to the contrary in Court, should think twice before they considerbreaching them.
The applications are dismissed without costs.
Applications dismissed.