V. A. SUGATHADASA, Petitioner, and (1) B. A. JAYASINGHE, (2) THE MINISTER OF LOC

103-NLR-NLR-V-59-V.-A.-SUGATHADASA-Petitioner-and-1-B.-A.-JAYASINGHE-2-THE-MINISTER-OF-LOC.pdf

Sugalhadasa v. (7) Jayasinyhe, (2) The Minister oj Local Government
457
1958 Present :Weerasooriya, J., SansonI, J., and Sinnetamby, J.V. A. SUGATHADASA, Petitioner, and (1) B. A. JAYASfXGHE,(2) THE MINISTER OF EOCAX. GOVERNMENT, RespondentsApplications Numbers 11 (Quo Warranto), 12 (Certiorari)
and 13 (Mandamus)
Municipal Councils Ordinance Xo. 20 oj 1047—Sections 21,. 47, 97, 130, 171 (3),277, 2S0, 2S4—Power oj Minister to dissolve Council for inconipclency, etc.—Must he act “judicially ” ?—Effect of words “ If it appears to the Minister ”—Urban Councils Ordinance Xo. G1 of 1030, s. 106 (1)—Town Councils OrdinanceXo. 3 of 1046, s. 107 (7)—Village Communities Ordinance (Cap. 103), s. 61—Ceylon (Constitution) Order in Council, 1046, s. 16 (1)—Public SecurityOrdinance Xo. 26 of 1047, Part II—Quo warranto—Certiorari—Mandamus.
Section 277 (1) of the Municipal Councils Ordinance Xo. 29 of 1947 rends asfollows :—
“If at any time, upon representation made or otherwise, it appears to thoMinister that a Municipal Council is not competent to perform, or persistentlymakes default in tho performance of, any duty or duties imposed upon it, orpersistently refuses or neglects to comply with any provision of law, theMinister may, by Order published in tho Gazette, direct that the Council shallbe dissolved and superseded, and thereupon such Council shall, withoutprejudice to anything already done by it, bo dissolved, and ceaso to have,exercise, perform and discharge any of the rights, privileges, power's,- duties,and functions conferred or imposed upon it, or vested in it, by this Ordinanceor any other written law. ”
Held, that, although a summary dissolution of tho Council necessarily affectsthe legal rights of its members as a body and is independent of considerations ofpolicy and expediency, Section 277 (1) of tho Municipal Councils Ordinance doesnot impose any duty on tho Minister to act judicially or quasi-judiciallybefore lie exercises his power of summary dissolution. The Minister must beguided only by the merits of the caso and is not obliged to give a. hearing totho Councillors and consider their objections, if any. Me is tho sole judgeas to whether tho Council is not competent to perform its duties, provided,however, that there is no misconstruction of tho words “ not competent ”and tliero are sufficient circumstances from which it is apparent to him thatthe Council is not competent to perform the duties imposed upon it.
7^^-PPLICATIONS for writs of quo tcarranlo, certiorari and mandamusin respect of an order made by the Minister of Local Government sum-marily dissolving the Colombo Municipal Council on December 2, 1957.
A strike of the empIo3’ces of the Colombo Municipal Council hadbrought about a complete suspension of certain essential Municipalservices such as conservanc3r, garbage removal, supervision of municipalmarkets and slaughterhouses, and prevention and control of infectiousdiseases. There was no immediate prospect of the strikers returningto work. In the meantime the Council itself was unable to meet,. in20lix-'
J. N. B 4525—1,593 (7/5S)
458 Sugathadasa v. (1) Jayasinghe, (2) The Minister of Local Government.
order to decide on what measures to adopt, nor could its executiveofficers take the necessary measures on their own responsibility -withoutany mandate from the Council.
In the aforementioned circumstances the Municipal Council wassummarily dissolved by the Minister under the provisions of section 277of the Municipal Councils Ordinance No. 29 of 1917 and a Special Com-missioner was appointed. Soon afterwards the present applicationswere filed.'
R.Pritt, Q.C., with E. D. 1 Vi kra m ana yoke, Q.G., H. W.. Jaye-■warclene, Q.C., Isadeen Mohamed, G. G. Weeramanlry, L. Mulutantri,H. D. Tambiah and Carl Jayasinghe., for the petitioner.
D. S. Jayawickreme, Q.G., with G. T. Samcrawickrame, for the 1strespondent.
Douglas Janssc, Q.C., Acting Attorney-General, with F. H. Lawton, Q.G.,V. Tennekoon, Senior Crown Counsel, JR. S. Wanasitndcra, Crown Counsel,and H. L. de Silva, Crown Counsel, for the 2nd respondent. (Mr. F. H.Lawton, Q.C., of the English Bar, appeared with the permission of theCourt.),
The following cases were cited in the argument : Subramaniam v.Minister of Local Government 1 ; Fernando v. University of Ceylon 1 2 ;TjBO v. Land Commissioner 3 ; Ladamuttu Pillai v. The Attorney-General 3aR. v. Manchester Legal Aid Committee 4 ; Board of Education v. Rice 5 6 ;Local Government Board v. Arlidge G ,- De Verteuil v. Knaggs 7 ; Coojwr v.Wandsworth Board of Works 8 ; Ilojikins’ case 9 ; The King v. LondonCounty Council 10 * ; Smith v. The Queen 11 / Smith v. East Ellor RuralDistrict Council12 ; Associated Picturchouse v. Wrenbury 13 ,• St. Pancrasca-se 14 ; R. v. Brighton Corporation 15 ,- Short v. Poole Corporation 16 ;Roberts v. Hopivood 17 ; Sydney Municipal Council v. Campbell18 ; TheKing v. Board of Education 19 ; Demetriades v. Glasgow Corporation 20 ;Lazarus Estates, Ltd. v. Beasley 21 ; The Minister of Health v. The King(Ex-parle Yabbe) 23 ; Perera v. Sockalingam Chelliar 23 ; Wijesinghe v.Mayor of Colombo 2 ! ; Vine v. National Dock Labour Board 25 ; The Queenv. Commissioners for Special Purposes of the Income Tax 2S; Point of Ayrv. Lloyd George 27; Robinson v. Minister of Town and Country Planning 26;
1 (1057) 50 JY. L. R. 251.
– (1056) SS 2r. L. R. 265.
3(1055) 57 2s. L. R. ITS.
3a (105S) 50 K. L. R. 313..
(1953) 2 Q. B. 413.
6 1911 A. C. 1S2.'
1015 A. C. 132.
Z 1018 -A. C. 557.–
8 L. T. 278.•
Z24 Q.'B. 712..
J0 (1931) 2 K. B. 215.■
L. R. 3 A. C. 614 al 623.
1S (1956) 2 W. L. R. 8S8, 000.
11 27 Q. B. D. 371, 375.
15 So L. J. K. B. 1552, 1551.15 (1026) 1 Ch. 66.
>' 1025 A. C. 578, 613, 601.
13 1025 A'. C. 338.
13 (1910) 2 K. B. 165, ITS.
(1951) 1 A. E. R. 457, 463.31 (1956) 2 ir. E. R. 502, 508.1031 A. C. 404.
(1046) 47 K. L. R. 265.
(1048) 50 A'. L. R. 87.
33 (1956) 3 A. E. R. 930.■
36 (1888) 21 Q. B. D. 313, 31027 (1043) 2 A. E. R, 546. .851, S5i, 850,_*
13 (1018) 1 K. B. 223, 227.
33 (1947) 1 A. E. R.
Sugathadasa v. (1) Jayasinghe, (2) The Minister of Local Government
459
Robinson v. Sunderland Corporation 1 ; Dankoluwa Estates Co., Ltd. v.Tea Controller2 The King v. Artidel3 ; Land Release Com-pany v. Postmaster-General4; Reg. v. Metropolitan Police Com-missioner 5 ; Nakkuda Ali v. Jayaratne 6 ; Franklin v. Minister of Townand Country Planning 7 ; R. v. Nat Bell Liquors, Lid $■; R. v. Northum-berland Compensation Appeal Tribunal9 ; Cooper v. Wilson10 ; Queen v.Lords Commissioners of the Treasury 11; Associated Provincial PictureHouses, Ltd. v. Wednesbury 13 ; The King v. Minister of Health 13 ; Rex v.fjorufon Rent Tribunal11 ; In re Smith and Fawcett, Ltd 55.
Cur. adv. vult.
[The following Older was delivered by the Court:—]April 7, 195S—
On the 2nd December, 1957, the Minister of Local Government andCultural Affairs, by Order published in the Ceylon Government Gazette.Extraordinary Ho. 11,211 and made under section 277 (1) of the MunicipalCouncils Ordinance, Ho. 29 of 1947, directed that the Colombo MunicipalCouncil shall be dissolved and superseded as from that date. There wasalso jmblishcd in the same Gazette an Order by the Governor-Generalunder section 277 (2) appointing Mr. B. A. Jayasinghe as the SpecialCommissioner to have, exercise, perform and discharge all the rights,privileges, powers, duties and functions conferred or imposed upon orvested in the said Council or the Mayor by the Municipal CouncilsOrdinance or by any other written law.
At the time of the making of these orders the Mayor of the ColomboMunicipal Council (hereinafter referred to as “ the Council ”) was Mr. V.A. Sugathadasa, while the Municipal Commissioner was Mr. B. A. Jaya-singhe. Arising from the orders, three applications have been filed byMr. Sugathadasa as petitioner and were argued together before us atthe same hearing. Application Ho. 11 is for a writ of quo warrantodeclaring that the appointment of Mr. B. A. Jayasinghe as a SpecialCommissioner is void. The respondent to that application, is Mr. Jaya-singhe. Application Ho. 12 is for a writ of certiorari quashing the orderdissolving and superseding the Council. Application Ho. 13 is for awrit of mandamus. The Minister of Local Government and CulturalAffairs (hereinafter referred to as “ the Minister ”) is the. respondentin both these applications.■
1 (1S0D) 1 Q. B. 751, 754, 757.s (4041) 42 2v. L. R. 197, 207.
3 (100G) 3 Commonwealth L. R.
557, 566, 572, 570.
* (1350) Ch. 435, 410.
*(1953) 2 A. E. R. 717, 720.
« (1950) A. C. 66 ; 51 JV. L. R.7 1913 A. C. 104.
■-15
« (1922) 2 A. C. 128, 145, 151,
153, 154, 155, 15G, ICO.
(1951) 1 1C. 13. 711 and (on appeal)
(1952) 1 K. B. 33S.
(1937) 2 1C. B. at 324.
(1871) L. R. 7 Q. B. 387, 394, 397.13 (194S) 1 K. B. 223, 227.
457.la (1929) 1 1C. B. 619, 624—625..
3* (1951) 1 1C. B. 641, 646, 647.
(1942) Ch. 304, 308.’
460
Sugathadasa v. (i) Jayasinghe, (2) 2Vie Minister oj Local Government
According to' the affidavits filed by the petitioner in the threeapplications, the Council at the time of its premature demise consequenton the Minister’s order consisted of thirty-one Councillors representingthe thirty-one wards comprising the Colombo Municipal limits and hadbeen in existence less than twelve mouths, its term of office havingcommenced on the 1st January, 1957. The thirty-one members wereelected at the general election which took place in December, 1956,and many of them had considerable previous experience in municipalaffairs. Nineteen out of this number, including the petitioner, weremembers of the United National Party while only five were membersof the Mahajana Eksath Peramuna, said to be the party which runs thecentral Government. These are matters of common ground. Thepetitioner also referred in his affidavits to an extract of a speech allegedto have been made by the Prime Minister on the 22nd December, 1956,as indicating the animus of the central Government against a Councilwhich was so largely comprised of members of the United NationalParty, and it was sought to substantiate the allegation of such a speechby means of three newspaper reports marked A, B and C annexed tothe affidavits, but these as 11011 as so much of the affidavits as relatesto the speech were objected to by Mr. Lawton, who appeared for theMinister, on the ground of hearsay and irrelevance. The particularstatement imputed in documents A and B to the Prime Minister is thatthe five members in the Council who belong to the Government party" will rule Colombo " despite the numerical strength of the membersbelonging to the United National Party^. But the document C givesanother version of the speech—as allegedly stated by the PrimeMinister himself—to which no exception could fairly be taken.Mr. Pritt’s reply to the objection on the ground of hearsay was that,in proceedings such as these, under the relevant English Orders and rulesrelating to affidavits to which he drew our attention as governing theease, it is open to us to permit a fact to be proved by a statement ofbelief in an affidavit. In regard to the objection on the ground ofirrelevance he submitted that what the Prime Minister said had a bearingon the bona fidcs of the Minister in making the order of dissolution.But we fail to see what relevance the passage relied upon, said to occur- in a speech made nearly a year before, can have to the issue of good faith.Moreover, there is uncertainty as to what precisely was stated on that-occasion. f'e hold, therefore, that the matters objected to cannot betaken into consideration in these proceedings.
It is also stated in the petitioner’s affidavits—-and this does not appearto he in dispute—that in the early part of November, 1957, a number ofwidespread strikes had taken place, many of them involving Governmentdepartments, and that these strikes led the Government to raise the costof living allowances paid to those of its employees drawing salaries underthree hundred rupees per month by an amount which involved anadditional annual expenditure of about fifty-two million rupees.
Towards the middle of November the strike fever seems to have spreadto the Council employees, and some tu'enty demands, as set out in thedocument BD, were put forward on their behalf before the Coiuicil.
Sugnlhadasa v. (/) Jayasinghc, (2) The Minister of Local Government -J(jl
The first, of these demands was an all-round increase of Us. 50 per monthon the basic monthly salary or wages of every employee. They wereconsidered by the Finance Committee of the Council at- a meeting heldon the 25th November, 1957, at which the petitioner presided, andaccording to the draft minutes of that meeting as set out in the documentRIO it was resolved b3' the Committee to recommend all the demands toGovernment and to request it to pay to the Council “ immediately agrant to cover all the commitments of the 20 demands ”. That the“commitments” would have amounted to approximately five millionrupees per annum (document El 2) and that the Council’s depleted financeswould not have enabled the Council to meet this additional expendituredid not deter the Finance Committee from passing this resolution. Asappears from the document I’ll, the resolution was passed on the basisof an understanding between the Finance Committee and the represen-tatives of the Municipal Employees Union that the central Governmentshould pay the piper, failing which the 7,000 Council employees whowere members of the Union were to take “ necessary action ”, which inthe context meant nothing less than strike action. This resolution wasfollowed up by a letter from the petitioner to the President of the ColomboMunicipal Employees’ Union (I?2) in which the petitioner, so to speak,washed his hands off the business by stating that the Council should notbe blamed if the Government refused to grant the demands as recommen- *ded, a suggestion which was magnanimously acceded to by the Presidentin his letter JR'S, where he also took the opportunity of stating that he did-not expect Government to grant the demands. The collaboration thusshourj between the petitioner and the Colombo Municipal Council Em-ployees’ Union is in strange contrast indeed to the petitioner’s attitudetowards it only one month previously when in a letter to the Commis-sioner of Local Government (R4) he referred to it as “ a misguided bodywhose destinies appear to be seriously mixed up with politics of a certainbrand ”, and described certain recommendations contained in amemorandum prepared by that body relating to the administration ofthe Council in such terms as “ rubbish, utter rubbish ” and “ tripeIn that same letter he said that “ the Union would be doing a far betterservice, both to its members and the ratepayers of the city, if it advisedits members to give a fair return for the salaries and wages paid to themby this Council and thus remove from the minds of the public the generalimpression that Municipal emplo3'ees did hardly do a halfday’s work forthe salary and other emoluments enjoyed by them. ”
Ft w ould appear that out of some 7,250 officers and servants of theCouncil about 2,285 are members of the Local Government Service andas such they are under the control of the Local Government ServiceCommission. The majoritj* of the emplo3’cc.s including the entire labotirforce engaged in conservancy and garbage removal services were, how-ever, under the control of the Council. The question of granting thedemands which had been recommended by the Finance Committee ofthe Council had necessarily to be considered by the Local GovernmentService as well as the Government authorities. On the 29th November, ,1957, as no decision had been arrived at by those authorities in regard toihe demands, the Joint Council of the Colombo Municipal Council Trade
2*—^-J. X. 1J 4S25 (7/5S1_
4G2
Svgalhadosa v. (/) Jayasinghe, (2) The Minister of Local Government
Unions addressed the letter El to the Minister communicating theirdecision to call a strike of all the Coxincil’s employees (with certain ex-ceptions which need not be specified) as from midnight of that day. At■the appointed hour the strike commenced, involving about 6,000 workersincluding those at the eleven sewage pumping stations situated in variousparts of the city of Colombo, and those employed in the conservancj' andgarbage removal services. In regard to the cessation of operations atthe sewage pumping stations, the affidavit of the petitioner is at issueon certain points with the counter-affidavit of Mr. Gunawardene, the Per-manent Secretary to the Ministry of Local Government and CulturalAffairs, which was filed on behalf of the Minister. It is more or lesscommon ground, however, that if the pumping stations did not functionfor an appreciable period a situation would have arisen which, both fromthe point of view of the possible damage to the sewerage system, as wellas the danger to the health of the inhabitants of the city, it was essentialto avoid by taking prompt action. But the petitioner maintains thatthe actual gravity of the situation has been much exaggerated as part of aplan “ designed to give the impression of great chaos and crisis ”. Thepetitioner has also categorically stated that within three hours after thestrike commenced there was a conference which he attended at theresidence of the Governor-General and at which it was decided to callupon the military to man the pumping stations. The affidavit of Mr.Gunawardene seems to suggest that nothing was done in that behalf until■ late on the 30th November, 1957, when the decision referred to was arrivedat after the Municipal Engineer had explained to the petitioner as wellas to the Minister the serious consequences likely to ensue if the cessationof work at the pumping stations was prolonged. But it is not necessaryto probe further into these conflicting versions as the decision to call inthe military was implemented by midnight on the 30th November, andit is not in dispute that by such action any apprehended danger from thepumping stations not functioning was averted for the time being at least.
The position with regard to (he effect- of the strike on the scavengingand conservancy services was entirely different. That the adequatemaintenance of these services in the city of Colombo is the responsibilityof the Council is undeniable. The duties of the Council in that connectionare clearly set out in sections 17, 97 and 130, inter alia, of the MunicipalCouncils Ordinance. As Mr. Lawton put it, these duties have to beperformed by the Council in fair weather or foul, but, we would add,only in so far as is reasonably practicable. That the strike immediatelybrought about a complete interruption of these services is not disputedby the petitioner. The affidavits of Mr. B. A. Jayasinghe, the SpecialCommissioner, and of Dr. Nadarajah, the Chief Medical Officer of Health,Colombo Municipality, disclose that, in addition, there were other essen-tial services which had been entirely suspended by the Council such asthe supervision and control of municipal markets and slaughter houses,and the prevention and control of infectious diseases.
The petitioner has stated that on the 1st December ‘"he took steps ”to have the garbage which had collected during the previous twentyfour hours in the Pet tali cleared with the assistance of the office bearers.
Sugathtidasa r. (/) Joyasinghe. (2) The Minister of Local Government
463
of the Kaohcheri Market Union. He does not say what concrete resultsthese steps produced. According to Mr. Jayasinghe what the petitioner' did in dealing with this problem was no more than to request the MarketUnion officials to clean up the Kachcheri Road Market, which is quitedifferent from cleaning up the entire Pettah area. This statement inMr. Jayasingho’s affidavit has not been contradicted by the petitioner.Again, in regard to the situation brought about by the failuro of the3runieipal conservancy services, the petitioner makes the followingsomewhat cryptic statement :“ X had discussions with the Medical
Officer of Health of the Colombo Municipality who consequently pro-ceeded to make arrangements to deal with tho situation by certainmethods of improvisation with the assistance of the Director of Medicaland Sanitary Services ”. Apparently having had these discussionsthe petitioner was content to assume that ho had adequately dealt withthat particular situation, and that no further action on his part wasnecessary. Dr. Nadarajah’s affidavit, however, throws a litt-lo morelight on this subject. According to him although the Director of HealthServices had offered a quantity of tropical chloride of lime for use inlatrine buckets no arrangements could be made for distributing thestuff among the people who needed it, and the matter ended there. '
On the 29th November, 1957, a requisition signed by three membersof the Council under section 19 (1) of the Municipal Councils Ordinancelor the summoning of a special meeting of the Council was received by thepetitioner. As four clear days’ notice of the meeting had to be giventhe petitioner instructed the Secretary of the Council to convene it forthe oth December. But on the 30th November these instructions werecountermanded by the petitioner. The reason given by him for thisstep is the absence of the Municipal clerical staff and dislocation of workbrought about by the strike. It is'difficult to understand why theabsence of the clerical staff should have made it impossible for such asimple matter as the issue of the requisite notices to tho thirty-oneCouncillors being attended to. If, however, the reason is a valid one itshow's to what extent the Council was paralysed, even on the very firstday of the strike, in regard to any action that it might, or should, havetaken to meet an emergency the gravity of which was increasing witheach hour during which the strike continued. As far as tho Council vrasconcerned it could have decided on such measures as the situation de-manded only by means of resolutions passed at its meetings, which wouldthen be implemented by executive action on tho part of the Council'sofficers. It does not appear that the special power given to the MunicipalCommissioner by section 171 (3) of the Municipal Councils Ordinancein regard to tho exercise and performance of his duties and functionsunder the Ordinance “in eases of extreme urgency” could have beenavailed of, in tho absenco of any special resolutions passed at a meetingof tho Council, to deal with the many urgent problems that the strikehad created. The businoss which in terms of tho requisition would havebeen transacted at the special meeting of the Council originally convenedfor the 5th December related, apparently, only to the demands whichthe Finance Committee of the Council had already considered at itsmeeting held on.the 25th November, and had nothing to do with the
404 Sugathadasa v. (J) Jayasitighe, (2) The Minister oj Local Government
situation brought about by the strike, "which actually commenced severalhours after the requisition had been submitted to the petitioner. -But'it is clear that had the strike continued up to the 5th December it wouldhave been possible for the Council, under section 21 of the MunicipalCouncils Ordinance, to have brought- up at that meeting a special reso-lution which would have enabled the Council to consider what measureswere necessary to deal with the emergency..
The petitioner has drawn attention in his affidavit to the fact- that onthe 30th November when he decided to cancel his previous instructionsfor the summoning of the special meeting, an ordinary general meetingof the Council had already been called for the 9th December, 1957, andthat the business for the purpose of which the special meeting was to beconvened could have been brought up at the general meeting by a reso-lution in the manner previously referred to. But it is obvious—and nosubmission to the contrary was addressed to us on the petitioner’s behalf—that the consideration of the urgent matters requiring immediate atten-tion which had already arisen on the 30th November as a result of thestrike could not possibly have been postponed for the general meetingfixed for the 9th December, 1957.
. The order of dissolution was signed by the Minister at about 4 p.ru.on the 2nd December, 1957. The petitioner has given as one of thegrounds for his allegation of bad faith against the Minister that ‘"'therewas every chance of the strike being settled on that day ”. He alsostated that on tire 30th November, 1957, the representatives of the strikershad dropped their demand for a wage increase and were concentratingon obtaining only a temporary relief allowance. But the documentB8, which is a communication dated the 30th November from thechairman of the Joint Council to the acting head of the Cabinet makes itclear that the Joint Council had “ unanimously resolved to continuetho strike until decisive conclusions are reached on all the demandssubmitted ”. Furthermore, Mr. Gunawardcne has stated in his affidavitthat on the 2nd December, 1957, lie presided at discussions between theJoint Council and f he Local Government Service Commission with regardto the demands made by the Joint CoimciJ, that the chairman of theLocal Government Service Commission intimated that the Commissionwas not prepared to agree to the demand for an increase of Hs. 50 on thebasic monthly salary of all employees of the Council who were membersof the Local Government Service and that the chairman of the JointCouncil thereupon said that he would advise the strikers to continuethe strike. According to Mr. Gunawardene these discussions endedat 2.30 p.m…
Having considered the various affidavits that have been filed wo accept-the statements relating to the position on t-lie 2nd December as set- out inthe affidavits" of Mr. Gimewardene, Mr. Jayasinghe and Dr. Nadarajah.That position may he summarised as follows. The strike had broughtabout a complete suspension of certain essential municipal services suchas. conservancy, garbage removal, supervision of municipal marketsand slaughtci’ houses, and prevention and control of infections diseases.
Sugathnlasa v. {}} Jaja*inghe, {2} The Mini-tier of Local Gpvernmenl
465
There was no immediate prospect of the strikers returning to work.In the meantime the Council itself was unable to meet in order to decideon what measures to adopt, nor could its executive officers take thenecessary measures on their own responsibility without any mandatefrom the Council. It .is on the basis of these findings that we shall nowproceed to consider the qu »stions of law relating to the three applicationsbefore us.-
The principal question that arises is whether under section 277 (I)of the Municipal Councils Ordinance a duty was imposed on the Ministerto have acted .judieally or quasi-judicially in respect of any step takenby him towards the making of the order the validity of which is chal-lenged in these proceedings. That question is of particular importancein relation to the application for a writ of certiorari.
In considering the numerous authorities setting out the circumstancesin which, and against whom, the writ of certiorari will issue, we cannotdo better than begin with the general principle as stated by Atkin. L. .J.,in R v. Elcclricify Commissioners 1 that s; whenever any body of personshaving legal authority to determine questions affecting the right ofsubjects and having the duty to act judicially, act in excess of their legalauthority they are subject to the controlling jurisdiction of the King’sBench Division exercised in these writs ”. In the present case it is notin dispute that the action taken by the Minister affected the legal rightsof the Council as a body, or of the individual Councillors, and much ofthe arguments addressed to us on both sides pertained to the complexproblem of whether the Minister was under a duty to act judicially or not.As pointed cut in R v. Alav.chx-slcr Legal Aid Committee – the duty toac-t judicially may arise in widely different circumstances which it wouldbe impossible, and, indeed, inadvisable to attempt to define exhaustively.
How wide these cireumstan -es may be is to bo gathered from thefollowing eases, which are only a few out- of tho innumerable instanceswhere the writ of certiorari has issued. In The Queen v. Saunders3,where accounts had to be examined and items of expenditure allowed ordisallowed (according to law) Crompton, J., held that the passing of theaccounts was a judicial ac-t. In The King v. Woorlhouse A an order madeby licensing justices referring to quarter sessions an application for renewalcf a licence was brought up and quashed by way of certiorari. In R -v.Rost master General. Ex Parle Carmichael5 audit v. Roccotl 6 it washeld that even the giving of a medical certificate, in the eric-umstancesexisting in those c-ase^, was in the nature of a judicial act. The decisionin Labouchere v. The Earl of Wkarnclifje which was action for adeclaration, seems to have gone partly on tiie basis, that the committeeof a club function as a quasi-judicial bedy when proceeding under therules against a member for alleged misconduct. In that case the rides 'provided for the expulsion of a member if " in the opinion of thecommittee '’ suc-h action was eailc-d for.,
. 1 (1021) 1 K. B. IT I at 205.1 (JOOG) 2 JC. B. 50 J.
* (1052) 1 .4. E. R. 4S0.5 (192S) J 1C- B. 291.
J 3 E. «C- B. 704 at 7TS.* (1939) 2 .4. E. B. 62G.
.7 (1ST9) 13 Ch.D. 310.'
4G6 Sugaihadasa v. (1) Jayti-thtghc, {2) The Minister of Local Government.
What is meant by the expression. “ quasi-judicial ” was consideredby the House of Lords in Vine v. National Dock Labour Board1. – Accord-ing to Lord TCilmnir (the Lord Chancellor) it means “ that the functionsso described can vary from those which are almost entirely judioial to- thos.e in which the judicial element is small indeed Lord Somervellobserved that an examination of the cases does not show that- the ex-pression suggests a well marked category of activities to which certainjudicial requirements attach, aud that where the Court had to considerwhether a Minister, tribunal or board has to act judicially the respect inwhich the judicial procedure has to be observed will depend on thestatutorv or other provisions under which the matter arises.
The above observations of Lord Somervell appear to be particularlypertinent in the present case where the question already indicated by uswill have to be decided on the provisions of the Municipal CouncilsOrdinance, with special reference to section 277 (1) thereof. In thecourse of our examination of those provisions it will be necessary to referto certain allied provisions in other enactments also. Section 277 (1),as amended, is in the following terms—-
■ ‘ If at any time, upon representation made or otherwise, it appearsto the Minister that a Municipal Council is not competent to perform,or persistently makes default in the performance of, any duty or dutiesimposed upozi it, or persistently refuses or neglects to comply withany provision of lav, the Minister may, by Order published in theGazette, direct that the Council shall be dissolved and superseded,and thereupon such Council shall, without prejudice to anythingalready done by it, be dissolved, and cease to have, exercise, performand discharge any of the rights, privileges, powers, duties, and functionsconferred or imposed upon it, or vested in it, by this Ordinance or anyother written law’
The first time when a power of summary dissolution of a MunicipalCouncil was entrusted by the legislature to any authority was in 1936under section SS (1) of the Colombo Municipal Council (Constitution)Ordinance (Cap. 191) the jjrovisions of which have been taken over intosection 277 (1) of the Municipal Councils Ordinance. Under the earlierenactments the power of dissolution was given to the Governor.
Section 277 (1) of the Municipal Councils Ordinance has its counterpart-in various other ordinances dealing with the setting up of loc-al bodiesas, for example, section 19G (1) of the Urban Councils Ordinance, Ko. 61.of 1939, section 197 (1) of the Town Councils Ordinance, Kb. 3 of 19IG,and section Gl of the Village Communities Ordinance (Cap. 193). Butwhereas, in the formulation of the condition precedent for the exerciseof the statutory power given in section 277 (1) of the Municipal CouncilsOrdinance, the introductory words used arc: “ If, at any time, uponrepresentations made or otherwise, it appears to the Minister that …
. ”, the corresponding word in the specified sections of the other enact-ments mentioned above are: “If at any time the minister is satisfied
.5 0956) 3 .4. E. Ji. 939, at 913, 950.
Sugathadasa v. (J) Jayasinghe, [2) The Minister of Local Government
4G7
that there is sufficient proof of …. The particular differences,in language relied on by Mr. Lawton are represented by the words thathave been italicized.
These differences apart, it is by no means iuiusii.il that in enactmentssetting up administrative or autonomous bodies there should be specialprovision made for their summary dissolution. Indeed, in the normal,case, the power of dissolution of such a body would appear to b<? a neces-sary provision. Bveii in the case of a sovereign bod3r like the BritishParliament there exists a power (by virtue of the prerogative of theCrown) to dissolve it at any time, without question, though the matteris now governed by certain well defined conventions. As stated byDicey in his Law of the Constitution (9th edition, p. 433) this prerogativecan be constitutionally employed so as to override the will of the partyin power. But the explanation for the exercise of it in this way is thatan occasion has arisen on which there is fair reason to suppose that theopinion of the party in power no longer represents the opinion of thenation.
In respect of the Parliament of Ceylon the prerogative of dissolutionis enshrined in section 15 (1) of the Ceylon (Constitution) Order in Council,1946, which confers on the Governor-General the power to dissolveParliament from time to time. Xow, although a dissolution of Parlia-ment necessarily affects the legal rights of its members in various ways,it does not seem open to any doubt that the power can be exercised withoutthe members themselves, as a body or individually, or any other personat all, being heard in objection, nor can it be called into question in anyCourt of law. The simple reason, of course, is that it is somefhingdone inthe exercise of the Crown’s prerogative. While, therefore, there is littleanalogy between the power of dissolution of an autonomous body like aMunicipal Council, it is well to bear in mind that the exercise of a summarypower such as this, though involving the legal rights of the bodies con-cerned, does not necessarily connote that the authority exercising thepower is, in the absence of a requirement to do so (whether imposedexpressly or by implication) obliged to give a hearing to those whoselegal rights will be affected by the exercise of the power.
Section 277 of the Municipal Councils Ordinance is the first of a numberof provisions appearing in Part XIV thereof under the heading “ CentralControl ”. Another of those provisions is section 2S4 which, inter alia,provides for a dissolution of the Council by the Minister either uponany variation of the limits of the Municipality for which the existingCouncil was constituted or for the. purpose of constituting any otherlocal authority in its place. The power of dissolution conferred underthis section seems to be a clear instance, as conceded by Mr. Pritt, of apurely administrative function hi the exercise of which no question arisesof the Minister being obliged to act in a quasi-judicial maimer. In regardto the discretion given under section 277 (1) to the Minister whether,in a case where it appears to him that the state of affairs enabling him toact exists, he should proceed to make an order of dissolution or not,we did not understand Mr. Prifcfc to go to the length of submitting that "
46SSugathadasa v. (1) Jayasinghe, (2) The Minister of Local Government _ • – .
the exercise of that discretion is in the nature of a .quasi-judicial act.It will be observed that the section uses no express language which fettersthe discretion given to the Minister whether or not to make an order ofdissolution where " it appears ” to him that any of the pre-requisiteconditions exists. But Mr. Pritt submitted that before that stage is' reached, there is, in respect of the question which the Minister has neces-sarily to consider, namely whether any of the pre-requisite conditionsexists or not, an obligation (though not in express terms) to act quasi-judicial^. In other words, according to Bfr. Pritt, the Minister shouldin determining that question give a hearing to the Councillors and considertheir objections, if any..
One of the provisions of the Municipal Councils Ordinance which wassubjected to close scrutiny at the hearing before us is section 280, whichalso occurs in Part XIV. That section reads as follows :—
:c If at any time it appears to the Minister that any Municipal Councilis omitting to fulfil any duty or to carry out any work imposed upon itby this Ordinance or any other written law lie may give notice to theCouncil that unless, within fifteen days, the Council shows cause tothe contrary, he will appoint a special officer to inquire into and reportto him the facts of the case, and to recommend what steps such officerthinks necessary for the purpose of fulfilling sueh duty or earningout such work. Such inquiry shall be conducted, as far as may bepracticable, in an open manner
Under this section, before the Minister exercises the power given to himlie is required to notify the Council of his intention to do so, in order thatthe Council may have an opportunity of showing cause to the contrary.Mr. Pritt in dealing with the implications arising from this section boldlytook the bull by the horns and argued that if prior to the exercise of themuch lesser power conferred under the section the Minister is requiredto give a hearing to the Council, it would be reasonable to suppose thatthe legislature never intended that the far more drastic power of disso-lution under section 277 (1) should be exercised without a similar oppoi-tunity being given to the Council. But an argument which is equallytenable, if not more so, would be that while under section 2S0 noticeis required to bo given to the Council and a procedure indicated as tothe manner of giving it and of conducting the inquiry that follows, thelegislature deliberately refrained from providing for sueh matters inrespect of the power of dissolution of the Council whether under section'284 or section 277 : and that the reason why the legislature deliberatelyrefrained from doing so in section 277 is that it intended that the Ministershould be the solo judge of whether any of the pre-requisite conditionsexists or not.
Sometimes the language adopted in an enactment is by itself clearenough to furnish an answer to the question whether the act, for theperformance of which provision is made, is of an administrative orquasi-judicial nature. For example, in the case of Franklin v. The Ministeroj Town and JCounly Planning1 power was given under section 1 (1)
1 [10IT) 2 .1. It. 2.S9.
469
Sttgaihatlasa v. (1) Jayasinghe, (2) The Minister of Local Government
of The Xew Towns Act, 4940, to the appropriate .Minister if he was•• satisfied, after consultation -with the local authorities who appear t<him to be concerned that it is expedient in the national interest that anyarea of land should be developed as a new town to make an ordeidesignating that area as the site of the proposed new town. Althoughthere was also provision in the Act requiring public notice to be givenof the proposed order and for a public inquiry into any objections raised,it was held that the duties imposed on the Minister under section I ofthe Act were purely administrative. In this case expediency and policywere matters which on the words of the statute clearly entered into theconsideration of the question whether an order should be made or not.Robinson v. The Jlinister of Town Planning 1 was a case under theTown and Country Planning Act, 1944, section 1 (1) of which began asfollows :“ Where (the Minister) is satisfied that it is requisite for the
purpose of dealing satisfactorily with extensive war damage in the areaof a local planning authority that …. ” Lord Greene, M.R.,
expressed the view that the words requisite " and “ satisfactorily ”clearly indicated that the question was one of opinion and policy, matterswhich were peculiarly for the Minister himself to decide, and that noobjective test was possible, even though there was provision for theholding of a public enquiry.
On the other hand, in the case of De Verteuil v Knaggs 2, where powerwas given in an ordinance to the Governor of Trinidad, “ on sufficientground shown to his satisfaction to transfer the indentures of immi-grants from one employer to another, the Privy Council were of the opi-nion that although no special form of procedure was prescribed therewas an obvious implication that some form of inquiry must be made,such as will enable the Governor fairly to determine whether sufficientground had been shown to his satisfaction for the removal of the inden-tured immigrants They accordingly held that in making such aninquiry there was, apart from special circumstances, a duty of giving toany person against whom a complaint was made a fair opportunity tomake any relevant statement which he may desire to bring forward and afair opportunity to correct or controvert any relevant statement broughtforward to his prejudice. As regards the special circumstances whichwould justify the Governor, acting in good faith, to make an older oftransfer without giving the person affected an opportunity of being heard,their Lordships gave as an instance the making of an order in an emer-gency, where promptitude is of great importance. Although in thatcase there was no question of the Governor's order having been made incircumstances of any emergency, Mr. Lawton relied oU-these observationsof their Lordships as laying down a principle of general applicability.He submitted, therefore, that having regard to the emergency thatexisted at the time when the order of dissolution in the present case wasmade, the failure (which is conceded) cf the Minister to give the Councilan opportunity of showing cause against it should, even on the view thatthe Minister was under a duty to act judicially, be excused.
1 11047) 1 A. E. Jl. Sol. at S57.
– (101S) .4. G. 557.
470
Sngathadasa. u. (7) Jayasinghe, (2) The Minister of Local Government
The wording of the ordinance considered in the last mentioned casebears a close resemblance to the introductory words in those sections ofthe Urban Councils Ordinance, Xo. Cl of 1939, the Town Councils Ordi-nance, Xo. 3 of 194G, and the Village Communities Ordinance (Cap. 193)which correspond to section 277(1) of the Municipal Councils Ordinance,and which words (to quote them once again) are :“ If at an}- time the
Minister is satisfied that there is sufficient proof of …. " The
decision in Subramaniam v. The Minister of Local Government and CvUuralAffairs1, which is one of the local cases relied on by Mr. Pritt, seems tohave turned mostly on those words appearing in section 197 (1) of theTown Councils Ordinance. In holding that the Minister was under adutv to act judicially in the course of arriving at a decision to make anorder under that section, Gunasekara, J., stated as follows : *'' Quitedearly the question whether there is sufficient proof of a fact is one thatcan onlv be decided on evidence, and not on considerations of policy orexpediency. ” These observations suggest that on the wording of thesection there were two decisive factors influencing the conclusion that theMinister was under a duty to act judicially, namely, a form of enquiry be-taking evidence was indicated and considerations of policy and expcdiencywere irrelevant. He, therefore, refused to follow an earlier decision ofthis Co art (also a judgment of a single Judge) in Gunapala v. Kannangara -where a contrary view was expressed on the identical wording in section <31of the Village Communities Ordinance.
Another case relied on by Mi*. Pritt is Fernando v. The University ofCeylon 3. The relevant provision of law that was considered in this casecommenced with the words Where the Vice-Chancellor is satisfied that
_.. But-, as the judgment sufficiently indicates, the finding
that the Vice-Chancellor of the University- was under a duty to act judi-cially in respect of the particular allegation which he investigated wasbased not so much on the wording as on the consideration that the truthor falsity of the allegation could not fairly be detcrmiiul except by'theapplication of the judicial process or a form of procedure closely analo-gous to it, and without regard to questions of polic-y and expediency.Yet another local case to which our attention was drawn by Mr. Pritt isthat of Leo el al. v. The Land Commissioner 4 which dealt with the powersof the Land Commissioner under the Land Redemption Ordinance, Xo. (31of 1942, to acquire “ agricultural land ” if he is satisfied that it is land inrespect of which certain specified conditions were fulfilled. The reasonfor one of the findings in that case, that- a du(j~ to act judicially wasimposed.on the Land Commissioner, is contained in the following obser.vations of Gratiaen, J., (at page ISO) : ” One has only to examine tin-provisions of section 3(1) (a), (6) and (c) to appreciate that the issuewhether any ‘ agricultural land ’ is in fact qualified to become the subjectof an order for acquisition can never be .answered correctly except byapplication of the judicial process and without regard to questions oladministrative policy and expediency
1 (1057) 50 IV, L. Ji. 251.- (10551 57 X. L. n. CO.
3 (1050) 5S X. n. 205.• (1055) 57 X. L. U. 175.
Sugalhada-ia v. {!) Ja'jasinghe, {2) The J/tni-t/cr oj Locat’Governmcnt
471
In Xakkuda Alt v. Jayaralne (Controller of Textiles) 1 the words “ wlierethe Controller has reasonable grounds to believe that …. ” in a
regulation were considered by the Privy Council, and it was held that theyshould be treated as imposing a condition that there must in fact existsuch reasonable grounds known to the Controller, before he can validlyexercise the power of cancellation. Put their Lordships added that itdoes not necessarily follow from this that the Controller must be actingjudicially in exercising the power, and on a consideration of various other• matters they decided that he was under no such duty.
In Dankolmca Estates Co., Ltd., v. The Tea Controller2 the view takenwas that the words “ if it appears to the Controller ”, unqualified as theywere, left it open to the Controller to come to a conclusion from any infor-mation he may choose to. receive and he was under no duty to actjudi eially.
These decisions are not exhaustive of the matters that may be takeninto account where the wording of the statute is not clear as tothe intention of the legislature. What those matters are must necessarilj-depend. on the circumstances of each case. The ultimate test is,what did the legislature really intend by the language used t It may bestated as a general rule that words such as “ where it appears to …
or “ if it appears to the satisfaction of …. ”, or “ if the ….
considers it expedient that . – . . or “if the . . . .is satis-fied that . . . . ”, standing by themselves without other words orcircumstances of qualification, exclude a duty to act judicially. Theseare the well-recognised forms of expression by which Parliament, to anincreasing extent, entrusts the performance of various administrativefunctions to a Minister or other higly placed official relying on the sanctionthat the Minister will be answ erable to Parliament hi regard to the mannerin which those duties are performed. Whether such persons are also sub-ject to the control of the Courts in the performance of those duties willbe discussed at a later stage when we deal with the applications for thewrits of mandamus and quo warranto.
The words if ..■ -it appears to the Minister ….” in
section 277 (1) of the Municipal Councils Ordinance are not qualified inany way and they seem to make the Minister the sole judge of whether thestate of affairs which is a condition precedent for the exercise ofthe power appears to exist. -It is not an unimportant circumstance thatin this instance the power has been entrusted to the Minister himself andnot to a subordinate officer, and also that no right of appeal from his deci-sion is provided for. In the absence of any procedure as to how theMinister should set about obtaining information it is reasonable to holdthat he may act on reports of various officers as well as on his own know-ledge. But, iMr. Pritt- argues, an order of dissolution of the Council wrouldaffect the legal rights, of the Councillors and it is, therefore, proper thatthey should be given an opportunity of being heard. Tins argument,however, begs the very question that has to be decided since an obligationto give a hearing to the party affected does'not arise unless there is a duty
1 (1950) 51 JY. L. /?. 457.
* [1911) 42 JY. L. R. 197.
472 .Sugathadasa r. (1) Jayasinghe, (2) The Minister of Local Government – :
to act judicially. See, in this connection, the observations of Roche, J.,in Erringlon v. Minister of Health1. Numerous instances will he foundin the law reports of public officers being entitled to make administrative'orders affecting legal rights without the persons concerned havingany right to a hearing..
Mr. Pritt’s next argument is that a duty to act judicially arises if,in reaching a decision whether the conditions precedent exist for theexercise of the Minister’s power to make an order of dissolution, he maynot take into consideration policy and expediency. Granting that ques-tions of policy and expediency are irrelevant at that stage, no authoritywas cited to us for the proposition that in such a case what might other-wise have been an administrative act necessarily assumes the characterof a judicial act. No doubt, certain dicta in the'judgment in R v. Man-chester Legal Aid Committee (supra) may appear to give the impressionon a cursor}^ reading that they come near to enunciating such a pro-position because of the emphasis laid on policy and expediency in thediscussion of administrative acts. But we do not think that there can beany possible doubt that it is well within the competence of Parliament toentrust to a Minister or other authority a purely administrative power inthe exercise of which lie should be guided only bjr the merits of the case,as they appear to him, without taking into account questions of policyand expediency. If that, indeed, be the kind of power which the legis-lature intended to confer on the Minister under sect ion 277 (1) it is difficidtto suggest any more appropriate language in which that power could begiven than that actually adopted in the section.
We do not wish to be understood, however, as assenting to the viewthat questions of polic}' and expediency can never be taken into accountby the Minister in the exercise of his powers under section 277 (1).Instances there may well be where, notwithstanding that it appears tohim that a particular Municipal Council is not competent to perform, orpersistently makes default in the performance of, any duty imposed uponit, he would be entitled to take into account policy and expediency in 'deciding not to make an order of dissolution. But, on the other hand,in deciding to make such an order, it would seem that he must be guidedonly b}* the merits of the case, as they appear to him, and not by con-siderations of policy and expediency. In our opinion this docs not meanthat in making the order of dissolution a duty to act judicially is imposedon him.".'
The fact that under section 280 of the Municipal Councils Ordinancethere are requirements for the giving of notice and holding of an inquiryis, in onr view, more a circumstance against, than in favour of, the argu-ment of Me. I’ritt that a procedure should have been followed by theMinister of giving the Council a hearing before he decided to make the .order of dissolution. The omission to provide for any form of notice orinquiry in section 277 seems to be deliberate and indicates that thesematters were left entirely to the discretion of the Minister.‘ _ 1
1 (193:) 1 K. B. 271, cl 2S0.
Sugalhadasn v. (1) Jayasinghe, (2) The Jlinisfcr of Local Government 473
Tn our opinion in respect of no step which the Minister took in makingthe order in question was he obliged to act judicially. The objection• to the validity of that order on the ground that he did not give the Councila hearing, accordingly, fails. It is not necessary, therefore, to decidewhether in this case the Minister was excused by reason of the emergencyfrom giving the Council a hearing before he made the order.
Mr. Pritt submitted that even if the Minister was under no duty to actjudicial^- the Court would giant the application for certiorari if theMinister’s administrative order is found to be in excess of the powersconferred by section 277 (1) of the Municipal Councils Ordinance. Forthis submission lie relied on The Minister of Health v. The King {on theProsecution of Yabbe) 1. But as acting in excess of pou ers is one of thegrounds in support of the applications for -writs of mandamus and quowarranto it will be more convenient to consider that question in relationto those applications.
Mr. Pritt set out the following grounds on which he hoped to obtain thewrits of mandamus and quo warranto—(1) the powers conferred on theMinister under section 277 (l)of the Municipal Councils Ordinance havenot been validly exercised ; (2) the Minister exceeded his powers ; (3) hehas misunderstood or misconstrued them ; (4) he has wrongly used forone purpose powers given to him for another : (.7) he has taken extraneous■ matters into considerations ; (G) section 277 (1) did not apply to thiscase at all ; and (7) the order of dissolution was made unreasonably andin bad faith. It seems to us, however, that grounds (2) t-o (6) are muchthe same a? ground (1), and as between unreasonableness and bad faiththe distinction is a matter of degree only. As regards the power of theCourts to interfere with an administrative act on grounds such as these, seeAssociated Provincial Picture Houses, Ltd-., v. Wedne-sbury Corporation 2and also Lada-muttn Pillai v. The Atterney-General el aX. 3.
In considering the submissions addressed to us by Mr. Pritt underthese grounds it is necessary to state certain matters to which referencehas not yet been made. Under section 277 (2) of the Municipal CouncilsOrdinance power is given, in paragraph (a), to the Governor-Generalto appoint a special commissioner to function in the place of a MunicipalCouncil which has been dissolved by an order made under section 277 (1),and in paragraph (b), as an alternative, to the Minister to direct that anew Municipal Council in accordance with the provisions of the Ordinancebe constituted in place of the dissolved Council. Although the powersunder (a) are given to the Governor-General, according to the acceptedconstitutional practice he would not take action in that behalf excepton the advice of the Minister. Whether, therefore, upon the dissolutionof a Council under section 277 (1) action should be taken to appoint aspecial commissioner or to direct that a new Municipal Council beconstituted is essentially a matter hi the discretion of the Minister.
Mr. Pritt put forward the view that, a special commissioner havingalready been appointed in the present case, it is now not open to the
1 {1931) A '. C. 494, at 503. .1 (194S) 1 K. B. 223.
•-1 '195S) 59 JV. L. li. 313.' ■ '
474Svgathailasa v. (1) Jaya$inghet (i?) jVfie Afinister of Local Government –
Minister to give a direction for the' constitution of a new MunicipalCouncil, arid that ad hoc legislation would have to be enacted before anew Council can be established. He also drew attention to section 277 (4)which makes provision for any interim period that may elapse betweenthq dissolution of a Council and, either the appointment of a specialcommissioner, or the constitution of a new Council. During such period
the Municipal Commissioner is vested with all the rights, privileges,powers, duties and functions of the Council, the mayor or deputy mayor.
Mr. Pritt urged that in view of these provisions, and also if the legalposition be that with the appointment of a special commissioner theMinister put it out of his power to give directions at any future date forthe constitution of a new Municipal Council, there was no need for the
.Minister to have precipitated the appointment. This, again, is a matterfor the Minister. In the exercise of his discretion whether a specialcommissioner should be appointed or a new Council constituted, it isfor the Minister to consider to what extent he should be influenced bythe consequences that -would ensue from the appointment of a specialcommissioner in the first instance.
Reference was also made to the fact that in 19.33 on a state of emergencyarising in some parts of Ceylon, including the city of Colombo, the Councilwas.suspended for a certain period by means of a regulation made underPart II of the Public Security Ordinance, Iso. 25 of 1947. Thatregulation was published in the Ceylon Government Gazette Extra-ordinary' Io. 20,5GS dated the 16th August, 19.33. Mr. Pritt submittedthat, as on that occasion, action should have been taken under the PublicSecurity Ordinance to meet the situation caused by the strike and notunder section 277 of the Municipal Councils Ordinance as the latterprovision is, according to him, not intended to be invoked in an emergency.Assuming that the provisions of the Public Security Ordinance couldhave been invoked in such a situation; we do not think that what wasnot done under that Ordinance could possibly invalidate what was doneby the Minister under the powers conferred by section 277 (1) of theMunicipal Councils Ordinance, or throw doubt on the reasonablenessof the exercise of those powers, or on his good faith.
In the affidavit of the Minister he has stated that on the 2nd December,1957, it appeared to him that the Council was not competent to performthe duties imposed upon it, and that the facts on which he came to sucha conclusion were set out in his speech in the House of Representativeson the ISth December, 1957, as reported in Hansard a copy of which isthe document E. In that speech he has referred to the following matters :
the failure of the petitioner to hold a special meeting notwithstandingthat (as the Minister put it) under section 19 (1) of the Municipal CouncilsOrdinance when a requisition is submitted by three members of theCouncil it is obligatory on the Mayor to hold such a meeting ; (2) thepetitioner's inability or unwillingriess to take any action in regard tothe cessation of work at the sewage pumping stations up to the time whenthe military had to be called upon by the Governor-General to stepinto the breach, and (3) the inability or unwillingness of the petitioner
47:5
. S’tgnlhadara v. (/) Jnynsinghe, (:?) The Minister of Local Government
to take any action in regard to such essential services as conservancyand scavenging which had been completely interrupted since the strikecommenced.
The points Mr. Pritt made in regard to this speech are : (1) that it isan entirely one-sided version designed to give the impression of thepetitioner's negligence or incapacity, whereas the affidavit, filed by l hepetitioner shows that he took such steps as were reasonably possible inregard to the cmergenc' ; (2) that even assuming that- the petitionerwas negligent or incapable no allegation had been made against theCouncil, and there was no reason why the Council should be penalisedby dissolution for the petitioner’s negligence or incapacity ; and (3)that the Minister’s lack of good faith is disclosed by his failure to givea word of explanation as to why he had not directed that a new Council beconstituted in place of the one that had been dissolved. As regards (1),we have in an earlier part of tltis judgment recorded our findings as tothe position on the 2nd December, 195/, resulting from the strike, andno further comment is necessary. As regards (2), we think thatcircumstances had arisen which rendered the Council incapable of per-forming the duties imposed upon it. As regards (3), the Minister wasunder no duty to explain, and it is not justifiable, therefore, to inferbad faith merely because he gave no explanation.
In rhe Minister’s order dissolving the Council the ground stated fordissolution is that it appeared to him that the Council was not competentto perform the duties imposed upon it. Mr. Pritt submitted that thewords ‘not competent to perform ” in section 277 (I) of the MunicipalCouncils Ordinance connote “a chronic or settled state of inco/npetence ”and are not applicable to the situation in which the Council unavoidablyfound itself during the short period of sixty-four hours (with a Sundayintervening) that elapsed between the commencement of the strike atmidnight on the 29th Xovember, 1957, and the making of the order ofdissolution at I p.m. on the 2nd December, 1957. Xt is on tin's basis .that he submitted that section 277 (1) did not apply to this case and thatif. any action had to be taken against the Council it sliould have beenunder the Public Security Ordinance.
We are unable to agree with these submissions. In our opinion theCouncil became “ not competent ” to perform the duties imposed uponit when circumstances arose that rendered it incapable of performingthem. Oil our findings as recorded earlier the Council was not competent,in the sense explained, to perform the duties imposed on it.
' Furthermore, in the view that we have taken of the ^Minister’s functionsunder section 277 (1) of the Municipal Councils Ordinance, he was thesole judge as to whether the Council was-not competent to performits duties provided there was no misconstruction of the words “notcompetent ”. This does not, however, mean that he is an arbitraryjiidge of that question." As pointed out by Lord Radcliffe in NakkudaAh t Jaya-sekera (supra) words such as “ Where the Controller hasreasonable grounds to believe ” are to be construed as imposing a condi-tion precedent to the exercise of a power, but the value of the intended .
476
Amarasurii/a. Estates Etd., v. JZ*ttnayake
restraint is in effect nothing if the question whether the condition hasbeen satisfied is to be conclusively decided by the man who wields thepower. It was, therefore, held in that case that the words should betreated as imposing a condition that there must in fact exist reasonablegrounds known to the Controller before he can validly exercise the powerof cancellation of a licence. Applying such a test in the present case,it seems to'us that there were ample circumstances from which it couldhave appeared to the Minister that the Council was not competent toperform the duties imposed upon it.
In the result we hold that none of the grounds relied on by -Sir. Prittas invalidaling the order of dissolution (such as, a wrong exercise by the-Minister of the powers conferred on him, acting in excess of those powers,misconstruction of those powers, attention given to extraneouscircumstances, unreasonableness, bad faith, &c.) have been made out.
The applications for writs of certiorari, mandamus and cpio warrantotherefore fail and are refused with costs. Both Mr. Pritt and Mr. Lawtonwere agreed that this was a ease in which a special order for costs may bemade instead of the usual order for taxed costs. The petitioner willpay to the respondent in application Xos. 12 and 13 one set of costswhich we fix at rupees six thousand three hundred. The petitioner willalso pay to the respondent in application No. 11 as costs the sum ofrupees six hundred and thirty.
Sgd. H. Y. K. Wkkkasookiya,
Puisne Justice.
Sgd. M. C. Saxsoxi,
Puisne Justice.
Sgd. X. Sixxet.ajibv,
Puisne Justice.
Applications refused-