V. I. PERERA, Appellant, and PEOPLE’S BANK and two others, Respondents

032-NLR-NLR-V-78-V.-I.-PERERA-Appellant-and-PEOPLE’S-BANK-and-two-others-Respondents.pdf


Perera v. People’s Bank
239
1975 Present: Sirimane, J., Vythialingam, Jv and Ratwatte, J.V. 1. PERERA, Appellant, and PEOPLE’S BANK and two others,
Respondents
S. C. 16/70 (lnty)—D. C. Colombo 1257/ZL
Jurisdiction—Powers of the District Court to grant declarations—Doesthe District Court exercise a supervisory Jurisdiction—Appropri-ate remedy where a judicial or quasi judicial determination ofStatutory authority is challenged.
The District Court has no jurisdiction to grant a declara‘ion ina regular action where such declaration is sought as a supervisory-remedy to challenge the validity of a judicial or quasi judicialdetermination made by a statutory au hority. Where it is soughtto question such determination, the appropriate remedy is toInvoke th'' supervisory jurisdiction of fhe Supreme Court byway of a Writ of Certiorari.
^^PPEAL from a judgment of the District Court, Colombo.
C. Ranganathan with N. S. A. Goonetilleke and S. Thalayasing-ham for the plaintiff-appellant.
H. L. de Silva with J. S. B. Kitto for the 1st and 2nd defendants-respondents.
240
SIRIMANE, J.-—Perera v. People's Bank
H. W. Jayawardene with D- C. Amerasinghe and Miss S.Fernando for the 3rd defendant-respondent.
Cur. adv. vult
December 2, 1975. Sirimane, J.—
The plaintiff appellant who was the purchaser on 24.5.61 at asale in execution on a mortgage decree entered in D. C. Colombocase No. 3429/MB, of the property which is the subject matterof this action, sued the 1st defendant respondent (the Peoples’Bank) for a declaration that the said property is not subjectto acquisition under the provisions of the Finance Act No. 11of 1963. The 2nd defendant respondent i; the Secretary of theLand Redemption Branch of the Peoples’ Bank and the 3rddefendant respondent, who was allowed to intervene in thisaction, is the mortgagor of the property against whom thedecree referred to above was entered.
The Peoples’ Bank is authorised under Section 71 of theFinance Act No. 11 of 1963, to acquire premires if it is satisfiedthat those premises were sold or transferred in terms of, andsubject to the limitations laid down by, that section, and tonotify its determination to the owner. It is on receipt of noticeof such a determination that the plaintiff instituted this actionfor a declaration that the 1st defendant has no authority tomake the proposed acquisition for the reasons stated in para-graph 12 of his plaint. A number of issues were raided at thetrial but issue No. 25 was tried as a preliminary issue. That issuewas as to whether the Court had jurisdiction Jo try the caseas the remedy if any available to the plaintiff was by way ofwrit and not by way of regular action. The learned Trial Judgeafter hearing submissions on both sides answered this issueagainst the plaintiff appellant and dismissed his action withcosts. In doing so he followed the decision in the case of SinghoMahataya V. The Land Commissioner (66 N.L.R. 94) whichheld that the appropriate remedy for the plaintiff in similarcircumstances was by way of an application for certiorari. Thiscase followed the earlier case of Leo V. The Land Commissioner(57 N.L.R. 178) and the case of Ladumuthupillai v. The LandCommissioner (62 N.L.R. 169) decided by the Privy Council.The learned Trial Judge was undoubtedly bound by the decisionsin these cases and was right in answering the preliminary issueagainst the plaintiff appellant.
The learned Counsel for the plaintiff appe’lant, however,urged that the decisions in these cases should be reviewed byus as we are free to do so and submitted that though the wr!tof certiorari may be an appropriate remedy, it does not exclude
SIRIMAJNT3, J.—Terera v. People's Bank
241
a regular declaratory action, and that both such remedies areavailable to a plaintiff. He cited certain English cases referredto by Zamir in his book, “ The Declaratory Judgment ” whereat page 98 he says :
“ As against the last two cases, there is ample authorityto support the proposition that a declaration may be madein circumstances in which a prerogative order could issue.The first clear case to this effect was Cooper V. Wilson,The plaintiff, a police officer, was dismissed from the policeforce shortly after he had handed in a resignation noticeand his dismissal was approved by the local Watch Com-mittee. He claimed a declaration that he had duly resigned,that his dismissal was therefore invalid, and that conse-quently he was entitled to certain payments. The defendantsargued that the decision of the Watch Committee could bechallenged only on appeal pursuant to the Police (Appeals)Act, 1927, or by certiorari. The majority of the Court ofappeal (Greer and Scott LJJ ; Macnaghten J. dissenting)rejected this argument and made the declaration claimed.Greer L.J. in the leading judgment, said that he did notthink
‘ that the power which the plaintiff undoubtedly possessedof obtaining a writ of certiorari to quash the order for hisdismissal prevents his application to the court for a decla-ration as to the invalidity of the order of dismissal. ’ ”
This was followed in the case of Barnard V. National DockLabour Board (1953—2 Q.B. 18) where certain dock workerswere suspended and their appeal to a statutory tribunal dis-missed and they claimed a declaration that they were wronglysuspended. The defendants submitted that their only remedywas by way of certiorari, but the time for such an applicationhad already exp'red. The Court of Appeal held that it had powerto make the declaration. Denning L.J. stated that he did notdoubt that the Court had the power to ‘nterfere with decisionsof statutory tribunals not only by certiorari but also by wayof declaration.
“ ‘The remedy of certiorari’ he then added, ‘is hedgedround by limitations and may not be available. Why thenshould not the court intervene by declaration andinjunction ? If it cannot so intervene, it would mean thatthe tribunal could disregard the law, which is a thing noone can do in this country
Learned Counsel for the respondents submitted that the deci-sions followed by the Trial Judge were correcfy decided.Learned Counsel for the 1st and 2nd respondents submitted
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SIRTMANE, J.—Perera v. People's Bank
that the supervisory jurisdiction in this country is only exercisedby the Supreme Court and where an authority empowered bystatute has acted judicially and arrived at a determination anyperson questioning that determination must invoke the super-visory jurisdiction of the Supreme Court by way of a writ ofcertiorari and it is not open to such person to file a regularaction. He submitted that the High Courts in England (unlikethe District Court here) exercised both an original and super-visory jurisdiction. He cited from Zamir’s book referred to aboveat page 69 : —
“ The juri'diction of the superior courts to make declara-tion is two fold ; original and supervisory. The originaljurisdiction may be invoked for the determination of disputesat first instance ; the supervisory juri diction is exercisedto review decisions arrived at by other bodies. In many casesthe courts have both original and supervisory jurisdictions.Accordingly, upon a particular issue they may be resortedto either in the first instance or, if the issue had alreadybeen decided by another authority, for the review of thatdecision. Furthermore, both original and supervisoryjurisdictions may be exercised in one action ; the court maydeclare invalid a decision of an administrative authorityand then proceed to declare upon the disputed right oranother related right of the plaintiff.”
He submitted that the case of Cooper V. Wilson (Supra) wasdistinguished in Australia as reported in Zamir at page 99 thus :
* The fact that in Cooper v. Wilson the action was notonly for a declaration of invalidity, was given much weightin an important Australian case. In Tooweemba FoundryProprietary Ltd V. The Commonwealth the High Courtof Australia held that the decision of an administrativetribunal acting under a statute or a regulation could notbe challenged in an action claiming only a declaration thatthe decision was invalid, the appropriate proceedings beingprohibition or certiorari. Cooper V. Wilson was distinguishedon the ground that there the main claim was monetary andthe claim for a declaration as to the invalidity of theadministrative dec sion was only incidental.”
He also referred to pages 225-226 which states :
“ In some cases a declaration of right is the only remedyclaimable. This is often so when the plaintiff seeks a negativedeclaration or a dec’aration of his future right. In mostcases, however, the plaintiff can claim another remedy inaddition to or in lieu of declaratory relief. If in such a case
SIRTJIAXE, J.—Perera v. People's Brnk
243
a mere declaration is sought, the court in its discretion mayrefuse it on the ground that the plaintiff should have pro-ceeded for the other remedy. But the courts do not as a ruleexercise this discretion so as to refuse a declaration solelybecause an alternative remedy—be it even as expedient asa declaratory judgment—is available. The availability ofanother remedy will be a sufficient ground for the dismissalof declaratory proceedings only where the court is convincedeither that it is the intention of the legislature that in casessuch as the one before the court that remedy should ordina-rily be pursued, or that in the circum tances of the casethat remedy is more appropriate than a decaratopyjudgment. ”
and at page 230 :
“ It is suggested that usually the availability of a prero-gative order will not be a sufficient ground for the dismissalof declaratory proceedings. There may, however, be somecases in which only a prerogative order, and not a declara-tion, will be considered a proper remedy. ”
On a consideration of the submissions made and the citationsof learned Counsel on both sides it certainly appears that evenin England the question is not entirely free from doubt asstated by Zamir at page 100 thus :
“We may then conclude that it is now ‘clear law that theQueen’s courts can grant declarations by which they pro-nounce on the validity or invalidity of the proceedings ofstatutory tribunals’. But is it so in all cases in whichcertiorari can issue ? The answer is not free from doubt.Differences of opinion on this question were revealed inthe recent Pyx Granite case. There the Court was askedto declare, inter alia, that conditions imposed by the Ministerof Housing and Local Government on a developmentpermission were invalid. In the Court of Appeal LordDenning held that a declaration was an appropriate remedy,though certiorari was probably available ; Morris L.J. con-curred on this point; but Hodson L.J. was of the opinionthat ‘ It is doubtful whether at this time the Minister’sdecision could properly be impeached by declaration. Thatcould have been done by certiorari. ’ ”
It must be observed that the jurisdiction conferred on ourCourts by the Civil Procedure Code to grant declaratory decreesis not as wide as that enjoyed by the English Courts whosedeclaratory jurisdiction is virtually unlimited. It mut also beobserved that the English High Court exercises both an original
244
SHUMAN .E, J.—Pcrera v. People’s Bank
and a supervisory jurisdiction els already stated and that thereis a time limit within which relief by way of writ may besought.
In view of all these differences and the somewhat doubtfulstate of the English cases and the different conditions prevailingin that country, I do not think that we can strictly follow theEnglish practice in granting declaratory decrees.
In cases such as this where a statutory authority acts judiciallyin arriving at a determination in terms of that statute, I am ofthe view that where it is sought to question or challenge thevalidity of such determination the appropriate (and not merelythe more appropriate) remedy is by way of writ of certiorari.Even apart from the fact that the Court is undoubtedly exercis-ing a supervisory jurisdiction in such matters, the declaratoryaction in this country is not a procedure that is conducive toan expeditious decision of such a dispute. When the legislatureentrusts a statutory authority to make determinations inaccordance with that statute for the purpose of achieving theaims for which such statute was enacted, it is essential thatany dispute touching such a determination should be expedi-tiously disposed of one way or another so that such authoritymay act or refrain from acting in such matters. If however suchstatutory determinations are made the subject of a regulardeclaratory action the inevitable delay in such a procedure maywell completely defeat the purposes of such statute. The instantcase affords a good example of such a situation. The determina-tion that is being questioned in this case was meant by theterms of the statute under which it was made to enable a debtorin difficult circumstances to redeem through the Peoples’ Bankhis property that was sold against him on a mortgage decree.The property in this case was sold about 24/5/61 and in conse-quence of a determination under the Finance Act 11 of 1963this action was filed in April 1964 and the preliminary issuedecided in the District Court in February 1970. We are now in1975—over 11 years after the action was instituted. The remedyby way of writ on the other hand would be much more expedi-tious. I am therefore in respectful agreement with the decisionfollowed by 1he learned Trial Judge above referred to that theappropriate remedy of the plaintiff was by way of an applicationfor a writ of certiorari.
The Interpretation (Amendment) Act No. 16 of 1972 whichcame into operation on 11th May 1972. by Section 23 now preeluded a Court of original civil jurisdiction from granting thetype of declaration sought bv the plaintiff in this case. This doesnot necessarily mean that such an action was available before
VYTHTALINGA3I, J.—Perera v. People's Banh
245.
this enactment but it certainly lays at rest any doubts that mayhave existed in the matter. Learned Counsel for the appellantwhile conceding that this enactment precluded actions such asthe instant one from being instituted in the original courts,maintained that since that enactment would not operateretrospectively it would not affect the rights of the plaintiffappellant in this action. Learned Counsel for the 3rd respondenthowever submitted that it is not a question whether the enact-ment is retrospective or not as it is the jurisdiction of the originalcourt that has been taken away and the instant action is there-fore no longer maintainable. However that may be, it is notnecessary for me to decide this question in view of my earlierconclusion that in matters such as this the appropriate remedyis by way of certiorari and not by regular action. For thesereasons the appeal is dismissed with costs.
Wthialingam, J.—
I have had the advantage of reading the judgment proposedby my brother Sirimane, J. and I agree that the appeal shouldbe dismissed with costs. But as the appeal raises a fundamentalquestion in regard to the jurisdiction of the District Courts in.this country I would like to set out my own reasons as well.
The plaintiff-appellant in this case purchased the propertysubject matter of this action at a sale held on 24th May 1961in execution of a decree entered in a mortgage bond actionNo. 3429 MB against the third respondent who died during thependency of this appeal and whose widow has now been subs-tituted in his place. On an application made by the third res-pondent the first respondent Bank made a determination toacquire the premises under the provisions of the Finance ActNo. 11 of 1963, and The Peoples’ Bank Act No. 29 of 1961.
The plaintiff thereupon filed this action in the District Courtof Colombo for a declaration that the property was not subjectto or capable of acquisition by the Peoples’ Bank and that thePeoples’ Bank is not empowered in law to acquire the saidproperty and for a permanent and interim injunction restrainingthe defendants from proceeding with the acquisition and fromtaking any steps in that direction.
The determinat'on of the Peoples’ Bank to acquire the premisesin suit undoubtedly affects the plaintiff’s rights in respect ofhis property as it is a denial of his right to it, and he therefore,has a cruise of action to sue the defendants. Section 217 of theCivjl Procedure Code (Cap. 101) classics the types of decreeswhich a court may make and section 217 (h) sets out that if
24 6
VYTHIALIXGAM, J.—Per era v. People’s Bank
may without affording any substantive relief or remedy declarea rignt or status. Ordinarily the action would have beencompetent.
But here the Bank claims to have acted in the exrcise of anauthority vested in it by statute. Section 71 of the Finance Act11 of 1963 empowers the Peoples’ Bank to acquire any agri-cultural, residential or business premises which are sold inexecution of a mortgage decree or was transferred in thecircumstances specified in the section and subject to the limi-ta.ions laid down therein. Subsection 3 sets out “that thequestion whether any premises which the Bank is authorised toacquire under this part of this Act should or should not beacquired shall be determined by the Bank and every suchdetermination of the Bank shall be final and conclusive andshall not be called in question in any Court
The process by which the Bank arrives at this determinationinvolves the decisions, on the existence of a number of factsand circumstances, which must necessarily be made on anevaluation and assessment of evidence. It must be satisfiedfirstly that the property is agricultural, residential or businesspremises, and thereafter that it was at any time before or afterthe appointed date but not earlier than the first day of January,1056 either sold in execution of a mortgage decree by a Courtagainst the owner of such premises or transferred in one ormore of the circumstances set out in paragraphs (b), (c) and
of subsection 1, of section 71. Thereafter it must decide thatthe restrictions set out in sub-section 2 do not prevent the acqui-s' tion. It is only then that the Bank can determine whether theproperty should or should not be acquired.
' While this last determination whether the property shouldor should not be acquired may be a purely administrative deci-sion guided at that final stage by considerations of policy andexpediency and is the determination of the Bank, neverthelessthe earlier decisions on which the final determination is madehave to be arrived at by a quasi judicial process or a processwhich is closely analogous to the judicial.
Earlier the power to acquire property in almost identicalcircumstances was vested in the Land Commissioner under theLand Redemption Ordinance No. 61 of 1942 as amended byOrd:nance No. 62 of 1947. In Leo V. The Land Commissioner (57N.L.R. 173) in dealing with the process bv whichthe Land Comm'ssioner arrives at the decision toacquire property under the Ordinance, Gratiaen, J. observedat page 136 “The preliminary issues on which the Commissionermust satisfy himself under section 3(1) have to be decided
VYTHTALTXGAM, J.—Perera v. People’s Bank
24 r
solely on the facts of the particular case, solely on the evidencebefore him and apart from any extraneous considerations. Inother words he must act judicially and not judiciously. Parker,J. has also explained by reference to the earlier authorities thatthe judicial p:ocess when invoked for the purpose of reachinga consequential administrative decision does not necessarilyrequire that there should even be a lis (in the strict sense ofthe term) or a duty to hear two sides. In some contexts thetribunal has authority to act only on its own knowledge andinformation ; in others it may act ex parte. The true test iswhether, as Sir Hartley Shawcross argued, the tribunal mustapply a legal mind in reaching a decision based solely on thefacts of the particular case. ”
In the instant case however it would be impossible for thePeoples’ Bank to act on its own knowledge or information orex parte on the application of a vitally interested party, themortgagor. For instance in regard to the limitations some ofthe matters on which the Bank has to be satisfied are that theaverage statutory income for the three years preceding thedate of the application was less than ten thousand rupees, that- the premises were reasonably required as a residence of theowner and that he had no other such premises, that it was bonafide purchased by the owner for valuable consideration and ifit was agricultural premises that he had no other such premises.Obviously the Bank cannot arrive at a fair decision on any ofthese matters without giving an opportunity to the personwhose property is sought to be acquired, to be heard inopposition.
It is true that the Act does not state that the Ban t musthold an inquiry and consider evidence or representations byinterested parties before making a determination under sub-section 3 of section 71. But as Byles, J. observed in Cooper V.Wandsworth Board of Works (1863) 14 C.B.N.S. 180 at 194“ Although there are no positive words in the statute requiringthat the party shall be heard, yet the justice of the common lawwill supply the omission of the legislature.” And in regardto the very same Ordinance now under consideration afterobserving that there was no provision in regard to ah inquiryH. N. G. Fernando. C.J. said in Munasinghe V. The Peoples>Bank, 73 N.L.R. 385 at page 388, “Nevertheless the rules ofnatural justice must be observed and the documents which Ihave referred to indicate that these rules are being observedby the Bank. The plaintiff had the opportunity and was in factable to state the grounds upon which he urged that this casedoes not fall within the scope of section 71 (1).”
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VYTHIALINGAM, J.—Perera v. People's Bank
Where the repository of a power has to act in a judicial orquasi judicial manner in the exercise of that power the Courtshave always claimed the right to interfere where it acts withoutor in excess ol jurisdiction, where there is an error of law onthe face ol the record or on the ground of bias or in violationcf the principles of natural justice. In the classic formulationof Lord Atkin in R. V. Electrcity Commissioners (1924, 1 K.B.171 at 205 “whenever any body of persons having legal autho-rity to determine questions affecting the rights of subjects andhaving the duty to act judicially act in excess of their legalauthority they are subject to the controlling jurisdiction of theKings Bench Division exrcised in these writs. ”
Today when there is a proliferation of governmental and otherbodies or persons having power to take actions seriously affec-ting the subjects the reference to “ legal authority ”, “ duty toact judicially ”, “ Questions affecting the rights of subjects ” inthe above passage have been considered to be unduly restrictive.Thus “ Questions affecting the rights of subjects ” in LordAtkins dictum has now become “ Questions affecting subjects "and “ legal authority ” did not have to be statutory—R. V. Cri-minal Injuries Compensation Board (1967, 2 All E.R. 770) adecision not viewed favourably however by Sharvananda, J. inFernando V. Jayaratne—S.C. Minutes of 30.7.1974. S milarlyacting in a judicial or quasi judicial capacity “has now come tomean “ with a duty to act fairly ” Durayappah Vs. Fernando(69 N.L.R. 265 P.C.) So it seems now, that any power judicial,quasi judicial, or administrative may be subject to review ifits exercise might have a sufficiently serious effect on subjectsand if it is a power which can be exercised only in circumstanceswhich are specified or after some sort of factual evaluation.However for the purposes of the present case it is sufficient forme to accept Lord Atkins, formulation.
Nor will an exclusion clause such as found in Section 71 (3)which makes the determination of the Bank final and conclusiveand which cannot be called in question in any Court of lawexclude the jurisdiction of the Courts to review such determi-nations. In the case of The Land Commissioner Vs. LadamuthuPillai, 62 N.L.R. 169 which was also a case of an acquisitionunder the provisions which were somewhat similar to section71 it was pleaded that the determination of the Land Commis-sioner to acquire the estate was final and conclusive and couldnot be questioned in the proceedings and that the court hadno jurisdicion to entertain the action.
D-nlinS wbh this plea Lord Morris nf Bnrth-V—-CJnost deli-vering the judgment of the Privy Council said at Page 180, 181
VYThTALXNCAM, J.—Perera v. People's Bink21C
“Their Lordships consider that any question of finality in theLand Commissioner's determination can only arise in regardto his exercise of individual judgment whether he should orshould not acquire any land which he is authorised to acquireunder subsection 1. His personal judgment can only be broughtto bear upon the question as to whether or not he should acquireland that is covered by the wording of subsection 1. The ante-cedent question as to whether any particular land is land whichthe Land Commissioner is authorised to acquire under theprovisions of subsection 1 is not one for his final decis on butis one which if necessary must be decided by the Courts ofLaw. ”
So here too while the final determination whether the landshould or should not be acquired is one for the Bank alone andis not questionable in a court of law yet the antecedent questionas to whether it is land which it is authorised to acquire or notis a matter which, if need be, can be reviewed by a court inappropriate proceedings. The plaintiff in the instant case seeksa declaration that the property is not subject to or capable ofacquis tion by the Bank and that it is not in law empoweredto acquire it. She has also prayed for a permanent and interiminjunction restraining the defendants from proceeding with theproposed acquisition of the land and from taking any steps inconnection with it.
But the Bank in coming to a decision that it has the powerto acquire the property and in making the determination toacquire it was acting in pursuance of authority vested in it bystatute. The court cannot issue the injunctions prayed forunless it holds that the dec sions and the determination of theBank are null and void- Nor wou’d a naked declaration with-out such a f'nd'ng be of any avail to the plaintiff as suchdecrees are not capable of execution; nor can possession begiven—M. A. Perera V. W. M. Perera et al (68 N.L.R. 262)although it is true that “Courts of justice have always assumedso far without disillusionment that their declaratory decreesagainst the Crown will be respected”, per Gratiean, J. inAttorney-General Vs. Sabaratnam (57 N.L.R. 481 at 485).
In effect therefore the plaintiff is challenging the act of astatutory body empowered by the legislature to act in thatway on the well known grounds on which such acts areusually challengeL namely, that it did not follow the principlesof natural justice that the act was not bona fide and that it wasultra vires its powers. As Zamir points out in his work on TheDeclaratory Judgment at page 67 “The jurisdiction of the supe-rior courts to make declaration is two fold:original and
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VYTHTALTXCAM. J.—Perera v. People's B ni
supervisory. The original jurisdiction may be invoked for thedetermination of disputes at first instance; the supervisoryjurisdiction is exercised to review decisions arrived at by otherbodies” and at page 68 “Further more both orig nal and supe. vi-sory jurisdictions may be exercised in one action. The court maydtclare invalid a dec sion of an administrative authority andthen proceed to declare upon the disputed right or anotherrelated right of the p.aintiff”.
Here the plaintiff has invoked bothjurisdict'ons—the
original as well as the supervisory jurisdiction and thequestion of fundamental importance which arises for decisionin this case therefore is whether a District Court has juris-diction to grant a declaration in cases where it is sought asa supervisory remedy to challenge the validity of judicial orquasi judic al acts. The earlier cases on this point are neithersatisfactory nor conclusive as they did not deal with it inthis form.
In the case of Walter Leo V. The Land Commissioner(57 N.L.R. 178) it was held that a writ of Cert orari wasavailable against the Land Commissioner if, purporting to actunder the Land Redemption Ordinance, he orders the compul-sory acquisition of property which is not agricultural land withinthe meaning of section 3 (1) and 8 of that Ordinance. However,in that case the petitioner had moved by way of writ and thequest.on posed here did not arise for decision.
In the case of Fernando V. The Unversity of Ceylon (55N.L.R. 265) the Supreme Court held that the act complained ofwas a purely administrative act and that the proper remedy wasnot by way of certiorari which did not 1'e to quash purelyadministrative actions but for a declaration that the decis;onwas nail and void. Here too the question of the jurisd ction ofthe District Court to make such declarations was not gone into.In appeal the Privy Counsel dealt with the case on the meritsani left this question open, Lord Jenkins stating “Their Lord-ships conclusi-n on the mer'ts of the case makes it unnecessaryfor them to cons:der the University’s submission to the effectthat the Court had no jurisdict on to grant the declaratoryrelief sought by the p’aint'ff-—The University of Ceylon V.
F. W. Fernmdo (61 N.L.R. 505)
In that case the p’a ntiff had brought the action in the Dis-trict Cnu-t of Colombo for a dec’aration that a decision of theBoard of Re-id~nce and Disciplme of the University to suspendh m from all Un versitv exami^a'ions for an indefmite perodand t^e find ng of a Comm'ssion of Inquiry set Un bv theVice Chancellor, on which such decision was based, were null
VYTHTATjI^ GAM, J.—Perera v. People's Bank
251
and void. The case of Liadamuthu Pillai V. TheAttorney-
General (59 N.L.R. 313) was also an action questioning theauthority of the Land Commissioner to acquire certain landsunder the Land Redemption Ordinance, tiled in the DistrictCourt praying for an injunction restraining the defendants Lornproceeding with the acquisit ons- A Divisional Bench of threeJudges of the Supreme Court held that the right to institute aregular action to obtain a declaratory decree and an injunctionwas not excluded by the fact that a writ of certiorari a'so maybe available. The question was considered more from the pointof view as to whether the availability of a writ of certiorariexcluded the dec aratory act on and the question of the juris-diction of the District Court to make declarations in its super-visory capacity was not considered.
The case went up to the Pr'vy Council— The hand Commis-sioner V. hadamu'hu Pillai (62 N.L.R. 169) and was theredecided on other grounds. But in passing, as it were the PrivyCouncil said “The r Lordships consider that if the autho-
rity of a Land Commissioner to make a determination underSection 3 of the Land Development Ordinance (?) s cha’Iengedthe appropr ate procedure is by way of an application forCertiorari (See Leo V. The Land Commissioner). The LandCommissioner as the judicial tribunal the valdity of whoseaction is being tested may then conveniently be brought beforethe h gher Court so that if necessary his decis;on or ord"T maybe brought up and quashed. ” This was all that was said inrespect of this matter and there was no detailed examinationof this question.
In the case of Sinqho Mahataya V. Land Commissioner(66 N.L.R. 94) the pla'ntiff brought the act’ion in the Courtseeking a declarat on that a land was not liable to b^ acquiredin terms of the Land Redemption Ordmanee. A preliminaryobjection that the action was not mainta nab’e against the LandCommissioner nomine officii was upheld by the trial judge whod smissed the plaintiff’s action. In appeal the appeal was notdecided on this issue but on the question now raised in theinstant case- G. P A. Sdva, J. with whom H. N. G. Fernando,
J. agreed said at page 95 “I see that th s appeal can be
decided without going into that question in view of the deci-sion of the Privy Council that ;n a case of this nature theapprooria+e procedure for a person aggrieved by an order foracquisition would be by way of an application for a writ ofcertiorari, as was done in the case of Walter Leo V. The Land
CommissionerThey did not say that certiorari was the
more appropriate remedy (96)”. At that tinv> the Supreme Court
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VYTHIALINGAM, J.—Perr.ra v. People's Bank
•was bound by the decision of the Privy Council and therewas no detailed examination of the decision of the PrivyCouncil.
This was pointed out by H. N. G. Fernando, J. himself in
Munasinghe V. The Peoples’ Bank (73 N.L.R. 385 at page 387)when he said “ Counsel for the plaintiff in appeal submittedthat the dec sion of this Court upon which the trial judge rebelshould be reviewed because in his submission the decision hadnot correctly construed the judgment of the Privy Council inThe Land Commissioner V. Ladamuthu Pillai. I must franklysay that although I concurred in the decision in the case re-ported in 66 N.L.R. 94 there appears to be some substance inthe Counsel’s criticism of that decision.” However it was consi-dered that the case did not provide a suitable opportunity forthe review of that decis'on as there the plaintiff had come intoCourt before the Bank made its determination and it was heldthat the action was premature.
The question was also raised in The Attorney-General V.Chanmugam (71 N.L.R. 78) but was not decided. The plaintifffiled an action in the District Court of Colombo for a declara-tion that the findings of a Commiss on of Inquiry appointed bythe Governor-General under the Commissions of Inquiry Act(Cap. 393) was null an! void and that he was entitled to fullemoluments during the period he was under suspension andalso pension or gratuity. The District Judge entered judgmentfor plaintiff as prayel for. In appeal the Supreme Court decidedthe case on the merits on the assumpton that the DistrictCourt had jurisdiction to grant the decree. Sirimane, J. aftersetting out the argument of the learned Crown Counsel thatthe jurisdiction of the Distr'ct Court was statutory and con-ferred on it by the Courts Ordinance (Cap. 6), that it was aninferior court and that the District Court had no supervisoryjurisdiction went on to po nt out at page 84 “There are certaindecis ons of this Court which favour the view that the juris-diction of the Distr ct Court in this matter should not berestricted.” But after referring to some of these cases he said“I do not propose to examine this question and express anopinion as it is unnecessary to do so in this case because theappellant must succeed on the other two grounds.”
District Courts in this country are creatures of statute andtheir jurisdiction and powers are defined and conf ned by thevarious statutes which give them jurisdiction but pr ncipallyby the former Courts Ordinance (Cap. 6) and now the Adminis-tration of Justice Law No. 44 of 1973. They have an uni mitedoriginal civil jurisdiction for actions in which the defendant
VYTHIALINGAM, J.—Percra v. People's Bank
253
resides, or the cause of action arises, or the land involved issituated within the district. The District Court is expresslydeclared competent to exerc se a testamentary, a revenue, amatrimonial and an insolvency jurisdiction as well as a jurisdic-tion over the estate of cestui que trust and over guardiansand trustees. Nowhere are they given any general supervisoryjuris iiction over statutory tribunals or other bodies or personsexercising judicial or quasi judicial functions.
Even though no such jurisdiction is given by statutes it wasargued that they are superior courts and are vested withsupervisory jurisdiction in the same way and to the sameextent High Courts in England are vested with suchjurisdiction. In England High Courts are undoubtedlysuperior Courts and not only exercise supsrv'sory juriidic-tion over statutory tribunals and other bodies but also havethe jur sdiction to issue mandates in the nature of writs and topunish for contempts ex facie. This is because of their histo—rical origin and is inherent in their constitution, as was ex-plained by Lord Cockburn, C.J. in Ex parte Jolliffe (42 L.J.Q.B.121).
He said in the course of his judgment in that case “There isan obvious distinction between Inferior Courts created bystatute and Superior Courts of Law or Equity. In theseSuper or Courts the power of committing for contempt isinherent in their Constitution and has been coeval with theiroriginal institut ons and has been always exercised. The origincan be traced to the time when all the Courts were divisionsof the Curia Reg s—the Supreme Court of the Sovereign—in which he personally, or by his immediate representative satto administer justice. The power of the Courts in this respectwas therefore •an emanation from the Royal authority, whichwhen exercised personally, or in the presence of the Sovere'gnmade a contempt of the Crown punishable summarily and hispower passed to the Superior Courts when they were created."
District Courts in our country have never been regarded asSuperior Courts and it has been held that they'are not. Norhave they exerc sed any of the powers of such courts at anytime. Indeed the old Courts Ordinance in Section 7 statesthat The Supreme Court shall continue to be the onlysuperior Court of record while the Administration of JusticeLaw spates in Section 11 that the Supreme Court shall be theonly superior court of record. On the other hand, the old section62 states that the District Court shall be a court of recordand the Admin'stration of Justice Law classifies them underthe head of Subordinate Courts.
284
VYTHXALIJJOAM, J.—Perera v. People's Hank
In the matter of the Application of John Ferguson (1 N.L.R„181) it was held that the District Court did not have thepower to commit for contempt ex facie. Morgan A.C J. deli-vering the judgment of the Full Court after setting out thatthis' power vested only in the super or courts dealt with thequestion as to whether the District Court was a superior Court.He said at pa;e 185 “ Can our District Courts, then, be regard-ed as Saperior Courts in the sense in which the word wasused in the decision last referred to? (i.e. Ex Parte Jollifee)Superior and Inferior are relative terms, and our DistrictCourts undoubtedly have powers much larger than those apper-taining to English County Courts. It does not follow thatthey are Superior Courts in the sense in wh ch the SuperiorCourts at Westminister and the High Court of Chancery areSuperior Courts.”
And again at page 187 he said “Now District Courts cannotbe regarded as Superior Courts in this sense. It is true thatthey are Courts invested w th very important functions andwith an unlimited original civil jurisdiction within their owndistricts; bJt the r jurisdiction is territorially very limited inall cases, and in crim nal matters is confined to the trial andpunishment of the higher classes of offences. Unlike theSupreme Court and the Superior Courts at Westminister aDistrict Court has no eontrol or superintendence over any othertribunal whatsoever.” Th s case was decided in 1874 beforethe Courts Ordinance became law which was 2nd August, 1890.
But the position is no different under that Ordinance orunder the New Law. In the case of King v. Samaraweera (19N.L.R 433) it was held by a Full Bench that a District Courthad no power to comm't for contempt committed ex facie. WoodKenton, J. stated at page 435 “The fact that the section pro-vides that District Courts and Courts of Requests shall beCourts of Record does not show that the Legislature intendedto confer upon them unlimited jurisd ction in matters of thiskind. The County Courts in Eng’and have been made Courtsof Record by statute but their jurisdiction to pun:sh for con-tempt does not extend to acts done ex facie curiae ”. And Shaw,J. sa d at 437 “Yet. being Inferior Courts of Record, they hadnot the full jurisdiction to punish all descriptions of contemptsuch as is Dassed bv the Superior Courts in England and theSupreme Court in Ceylon.”
In regard to the writ of Habeas Corpus prior to 1933 althoughthe Supreme Court was g'vrn the power to issue mandates inthe nature of writs of mandamus, certiorari, procedendo anderror nothing was said about writ of habeas corpus Neverthe-less the Supreme Court did issue the writ though without
Nadaraja Ltd. v. Krishnadasan
258
express authority and no other infer.or court issued it- In 1835the District Courts were given a restricted right to issue the•writ. But this was only for a lim.ted period and it lapsed in1833. But in 1361 the District Court of Kandy issued such a writon the basis on which the Supreme Court had issued it withoutauthority earlier. The matter came up before the SupremeCourt in Re Application of A. R. Shaw (1860-62 Ramanathan’sReports 116) and it was held that the District Court d.d nothave the power to issue the writ.
Our District Courts are inferior courts and are in this respecton a par witn the County Courts in England. Zamir pointsout at page 304 “At any rate this change of language makes itclearer, if any clarification was needed that declarations forannulment of illegal acts of public authorities are generally notava lable in County Courts” and at page 305 he states, “Perhapsthe most unfortunate aspect of the limitations upon the juris-diction of County Courts is that they are in general unable toentertain actions for declarations that aimimstrative acts doneor threatened to be done are unlawful.”
I hold therefore that the District Court has no jurisdiction,to grant a declaration in cases where it is sought as a supervi-sory remedy to challenge the validity of a judicial or quasijudicial act.
Ratwatte, J—I agree-
Appeal dismissed•