VADAMARADCHY HINDU EDUCATIONAL SOCITETY LTD., Petitioner, and THE MINISTER OF ED

069-NLR-NLR-V-63-VADAMARADCHY-HINDU-EDUCATIONAL-SOCITETY-LTD.-Petitioner-and-THE-MINISTER-OF-ED.pdf


322 Vadamaradchy Hindu Educational Society Ltd. v. Minister of Education
1961Present: H. N. G. Fernando, J.VADAMARADCHY HINDU EDUCATIONAL SOCIETY LTD.,Petitioner, and THE MINISTER OF EDUCATIONand another, RespondentsS. C. No. 34 and No. 407 of 1960—Application for a mandate in the
nature of a Writ of Certiorari
Assisted Schools and Training Colleges (Special Provisions) Act, No. 5 of 1960—Sections 5, 6 (6), 11, 15—Unaided School—Failure of proprietor to maintaindue facilities—Order of Minister appointing the Director of Education asmanager—Duty of Minister to hold a proper inquiry before making sttch Order—Natural justice—Certiorari.
32»
Vadarrusradchy Hindu Educational Society Ltd. v. Minister of Education
-_£t———
Section. 11 (6) of the Assisted Schools and Training Colleges (Special Provi-sions) Act, No. 5 of 1960, provides that:—
“ Where the Minister is satisfied—
(b) after consultation with the Director, that any School which, bjrvirtue of the provisions of this Act, is being administered as anunaided school, is being so administered in contravention of anyof the provisions of this Act or any Regulations or Orders madethereunder or of any other written law applicable in the case ofsuch school,
the Minister may, by Order published in the Gazette, declare that, with
effect from such date as shall be specified in. the Order—
such school shall cease to be an unaided school;
such school shall be deemed for all purposes to be an assisted school,,and
the Director shall be the manager of such school.”
On 30th December 1960 a party made certain complaints by letter to theDirector of Education stating that the petitioner, which was an EducationalSociety and the proprietor of an unaided school, had, in breach of section 5 ofthe Assisted Schools and Training Colleges (Special Provisions) Act, No. 5 of1960, ceased to maintain certain facilities and services that were maintained;by the School immediately prior to 21st July 1960. The complaints were that(1) the School Hostel had been closed down, (2) the Post-Primary Schoollatrines had been demolished, (3) the School Playground had been convertedinto a timber depot, (4) a section of the Primary School which housed theHandicraft Laboratory bad been fenced off. The Director then wrote to thepetitioner on 11th January 1961 requesting him to show cause on or before25th January why an Order under section 11 (6) should not be published. Thepetitioner replied on 23rd January explaining that the complaints werefabricated with an evil motive and reqresting an inquiry at the spot if theDirector was not satisfied with the explanations. By letter dated 26thJanuary the Director informed the Principal of the School that the Ministerof Education had ordered that the School should be taken over for DirectorManagement with effect from 1st February 1961.
It was admitted that an Order under section 11 is “ quasi-judicial ”,
Held, that the power to make an Order under section 11 does not dependon any consideration of public policy, nor upon the existence of facts on accoimtof which such considerations may render a decision necessary or desirable. On.the contrary, the power depends on the Minister’s satisfaction that facts existwhich establish a contravention of the Act or its Regulations, which contra-vention (by section 15) would itself be a punishable offence. The question,,therefore, in the present case was whether there was an “ inquiry conductedwith due regard to the rights accorded by the principles of natural justice tothe petitioner against whom it was directed (See The University of Ceylonv. Fernando, 61 N. L. R. 505 (P.C.)).
The denial of a “ fair opportunity ” to the petitioner “ to correct or contra*-dict any relevant statement to his prejudice ” and the failure of the Director toinspect the School and hold an inquiry on the spot through an officer of hiaDepartment entitled the petitioner to a writ of certiorari quashing the Orderof the Minister.
324H. N- G. FERNANDO, J.— Vadcvmaradchy Hindu Educational
Soc<ety Ltd. v. Minister of Education
Application for a writ of certiorari on the Minister ofEducation and the Director of Education.
S. Sharvananda, with Bala Nadarajah, for the petitioner.
C. F. Jayaratne, Crown Counsel, for the respondents.
Cur. adv. vult.
November 10, 1961. H. N. G. Fernando, J.—
The petitioner, an Educational Society, was the proprietor of a Schoolwhich was, under the Education Ordinances of 1939 and 1951, an“ Assisted School ” in receipt of grants from State Funds. On 29thNovember 1960, in terms of section 5 of the Assisted Schools andTraining Colleges (Special Provisions) Act, No. 5 of 1960, the petitionerelected to administer the School as an un-aided school.
Section 6 (b) of the Act provides that :—
“ The proprietor of any school which, …. is an un-aided
.school—
shall continue to maintain all such facilities and services aswere maintained by such school on the day immediatelypreceding the twenty first day of July, 1960 ; ”
Section. 11 (6) of the Act provides that :—
“ Where the Minister is satisfied—
(6) after consultation with the Director, that any school which,by virtue of the provisions of this Act, is being administeredas an un-aided school, is being so administered in contra-vention of any of the provisions of this Act or any Regulationsor Orders made thereunder or of any other written lawapplicable in the case of such school,
the Minister may, by Order published in the Gazette, declare thatwith effect from such date as shall be specified in the Order—
such school shall cease to be an unaided school;
such school shall be deemed for all purposes to be an unaidedschool, and
the Director shall be the manager of such school
On 28th December 1960, the petitioner discontinued the services ofthe Principal and all the other teachers of the School with effect from31st December, informing them at the same time of the decision of the
325
H. N. G. FERNANDO, J.— Vadamaradchy Hindu Educational
Society Ltd. v. Minister of Education
Executive Committee of the Society to advertise for new teachers, andstating that the former assistant teachers could be re-employed onbasic salaries if the Manager was satisfied that they will co-operatewith the Management.
By a letter dated. 30th December 1960 the President of the NorthernProvince Teachers’ Association informed the Director of Educationof these discontinuances, adding that neither December salaries norsalaries in lieu of notice had been paid. Further the letter stated that :—
the School Hostel had been closed down ;
the Post-Primary School latrines had been demolished ;
the School Playground had been converted into a timber
depot;
a section of the Primary School which houses the HandicraftLaboratory had been fenced off.
The Director then wrote to the Society hi5* letter of 11th January1961, stating that adequate notice had not been given to the teachersand requesting that at least one month’s notice be given. Referringto the conditions in section 6 (b) of the Act, he asked for a list of theentire staff proposed to be employed in their place, in order “to ascertainwhether you fulfil the conditions ”. He asked also for the date whenthe School will re-open after the Vacation.
The Director then stated that the four matters mentioned abovehad “ been brought to his notice ”, and enumerated them in termswhich are identical with those used by the President of the Teachers’Association. There follows this statement :—“ You have thus failedto continue and maintain all facilities and services as were maintainedon the day immediately preceding 21st July 1960. You are herebyrequested to show cause on or before 25th January 1961 why an Orderunder section 11 of the Act should not be published declaring that (theschool) should cease to be an unaided school and deemed for all purposesto be an assisted school ”.
To that letter the President of the Society replied on 23rd January1961 by letter which was received at the Director’s office on the 24th.This letter began with a statement that the complaints were fabricatedwith au evil motive and requesting an inquiry on the spot.
In regard to the unpaid salaries for December, the President statedthat the Director was liable to pay them ; and in regard to the matterof notice, that the teachers had preferred to take their legal remedy inthe courts. A list of the 32 members of the new staff was sent with theletter, the President stating that more appointments are being made andthat a complete list would be sent shortly. (Apparently the numberof teachers discontinued in December had been 43). He added thatthe School had re-opened on 18th January 1961.
326
H. N. G. FERNANDO, J.— Vadamaradchy Hindu Educational
Society Ltd. v. Minister of Education
The President thereafter dealt in great detail with the 4 allegationsmade about the Hostel, the latrines, the playground and the HandicraftLaboratory, his explanations being briefly as follows :—
The Hostel had been meant originally for teachers, but therebeing only six resident teachers some pupils had also been admittedin order to run it economically. It was closed with the disconti-nuance of the teachers, but “ with the appointment of new teachersthe Hostel has now been re-opened **.
The Latrines had been built on adjacent private land with theleave of its owner. He had demolished them in order to put upa house on his land. The students had not been inconveniencedbecause other latrines were available for their use. New latrineswere being provided and would be ready in about a week’s time.
The former Playground had been situated on some leased land formany years, but the Society had purchased its own land for a play-ground and used it as such since about 1955 and held the SportsMeet there in that year. The leased land had also been continuedin use until its owner claimed back the land on the expiration ofthe lease in September 1960.
The Handicraft Laboratory had been housed since 1957 in abuilding erected by the President at his personal cost; althoughit was intended as the Meeting Hall of the Society it was usedfor the Handicraft Laboratory until December 1960, when theLaboratory was shifted to a new building erected for the purpose.
The President concluded by stating that all facilities were being dulyprovided at the School and by repeating his request for an inquiry atthe spot if the Director was not satisfied with the explanations.
By letter dated 26th January 1961 the Director of Education informedthe Principal of the School that the Minister of Education had orderedthat the School should be taken over for Director Management witheffect from 1st February 1961. The Government Gazette of 27th Febru-ary 1961 contains the Order (undated) in which the Minister makesthe declaration under section 11 of the Act in respect of the School.
In the Petition to this court dated 30th January 1961, the petitionerapplied for a Mandate in the nature of a Writ of Certiorari setting asidethe Order of the Minister. The petitioner also prayed for a directionfrom the court that the respondents, the Minister of Education andthe Director of Education, do desist from carrying the impugnedOrder into execution ; a direction to that effect (pending the disposalof the main application) was given by the court (T. S. Fernando, J.), on31st January 1961.
. CJpon this Petition (No. 34 of 1961), the principal point argued beforeme has been that the respondents failed to hold a proper inquiry beforetaking action under section 11 of the Act. It was common ground
H. N. G. FERNANDO, J.— Vadamaradchy Hindu Educational32T
Society Ltd. v. Minister of Education
that the Order of the Minister was referable to paragraph (6) of section 11and was made in pursuance of the power to make declarations underthat section if the Minister is satisfied that there has been a contraven-tion of the provisions of the Act or of any Regulation made thereunder.It was also common ground that the contravention, if any, had beenagainst section 6 (6) of the Act, namely the failure to maintainfacilities and services as at 20th July 1960.
One minor point can be disposed of without difficulty. Crown Counselargued for the respondents that Certiorari will not lie against an Orderunder section 11, because the Minister thereby only makes a “ declara-tion ” of the matters stated therein with respect to a school, and doesnot in law make an effective Order. This argument would be of someforce if it is further contended that such a “ declaration ” is merely anexpression of a wish or intention and has no legal force or effect. Nosuch contention was, or indeed could have been, maintained, for thelegal effect of such an Order is quite clearly that a school to which itrelates thereby ceases to be un-aided and becomes an assisted schoolsubject to the Management of the Director. In fact the Director’sletter of 26th January above referred to correctly interprets the effectof the Order, namely that the school becomes thereby subject to DirectorManagement.
That matter apart, Crown Counsel did not contend that an Orderunder section 11 is anything but quasi-judicial The power to makethe order does not depend on any consideration of public policy, norupon the existence of facts on account of which such considerationsmay render a decision necessary or desirable. On the contrary, thepower depends on the Minister’s satisfaction * that facts exist whichestablish a contravention of the Act or its Regulations, which contra-vention (by section 15) would itself be an offence punishable by fine andimprisonment. It is not often that a decision antecedent to the exerciseof power to make an administrative Order so closely resembles thedecisions on matters of pure fact antecedent to the exercise of judicialpower. Manifestly therefore, the question for me, in the language ofthe recent judgment of the Privy Council in the University of Ceyloncase1 is whether there was an “inquiry conducted with due regard tothe rights accorded by the principles of natural justice to the petitioneragainst whom it was directed
A preliminary consideration which seems to me not one to be ignored,is that, in the University of Ceylon case 1 and the one before me, theauthority whose Order is challenged made a decision of first instanceand was not as in the Arlidge case 2 merely reviewing a decision in appeal.
1 'ihe University of Ceylon v. Fernando, 61 N. L. R. 505 (P.C.).
8 L. C. B. v. Arlidge, (1915) A.C. 120.
328
H. N. G. FERNANDO, J.—Vadamaradchy Hindu Educational
Society 'Ltd. v. Minister of Education
Before passing to a consideration of the main question, it is necessaryto take account of the affidavits filed on behalf of the respondents.I do not quite understand the statement in paragraph 3 of the Director’saffidavit which, in reply to paragraphs 5, 6 and 7 of the Petition, admitsonly the receipt of notice of a “ purported election ” under section 5of the Act No. 5 of 1960. If the election was merely “purported”and not legally effective, the petitioner’s School did not become anuq-aided school and surely could not have been tbe subject of an Ordermade under section 11 of the Act “ after consultation with the DirectorBut fortunately the implied denial of the validity of the election undersection 5 is of no consequence.
The Director in paragraph 8 of his affidavit states that his letterof 11th January 1961 was written “ on representations made to me ”,and he refers immediately thereafter and in the same paragraph to theletter which he had received from the President of the Teachers’ Associa-tion, the contents of which I have already summarised. The DirectordoeB not give any other reason for his decision to call upon the petitionerto “ show cause ”, and it would therefore appear that this was his solereason. Of course the Director rightly took some action upon the com-plaint made to him, particularly in seeking an explanation in regard tothe four specific matters which appeared to fall within the scope ofsection 6 (b) of the Act. But did the letter from the President of theTeachers’ Association justify the Director’s statement in his ultimatumdated 11th January to the petitioner Society that “ You have thusfailed to continue and maintain all facilities and services, etc.” ?
For present purposes the most important averment in the Director’saffidavit is made in paragraph 9, where the Director states that “ onthe material furnished in the letter of 23rd January 1961 (that is thepetitioner’s explanation in regard to the charges made by the Presidentof the Teachers’ Association), and on information received by me fromthe officers of my Department in the Northern Province, the HonourableMinister after consulting me made the Order ”, which the petitionernow challenges.
The “facts” having been now stated, the judgment of Their Lordshipsof the Privy Council in the University of Ceylon case 1 happily makeit otiose for me to refer to earlier English cases which have been acted uponby the courts in Ceylon. For present purposes, I can mention usefullyonly the decision in Spackman’s case 2. There Spackman had been theco-respondent in a Divorce case, in which a civil court had held thathe was guilty of adultery with the defendant wife in the case. Whenin a subsequent proceeding before ’the British Medical Council, theobject of which was to strike Spackman off the Register of MedicalPractitioners on the ground of infamous conduct, an attempt was made 1
1 The University of Ceylon v. Fernando, 61 N. L. It. 505 (P.C.).
* General Medical Council v. Spackman, (1943) A.G. 627.
H. N. G-. FERNANDO, J.—Vadomaradchy Hindi*. Educational320’
Society Ltd. v. Minister of Education
to lead evidence that the finding of the court might have been wrong,the Council declined to entertain such evidence, it was held that theCouncil should not have declined to hear the further evidence. Whichmeans of course that upon the new evidence the Council might havereached an opinion different from that formed by the Divorce courton the evidence which was available to it. What is striking in the decisionis that the tribunal was held not to have made “ due inquiry ” beforedeciding a question of fact, despite the existence of a judgment of acivil court holding that the fact had been proved. The considerationthat the tribunal in that case was expressly directed by the relevantstatute to hold due inquiry does not in my opinion distinguish thatcase from the present one, for an inquiry sufficient in the circumstanceswas one of the rights accorded by the principles of natural justice to aperson against whom an Order under section 11 of the Ceylon ActNo. 5 of 1960 was proposed to be made. In accordance with the PrivyCouncil's recent decision, the Minister can follow what procedure hethinks best, but “ subject to the obvious implication that some form ofinquiry must be made, such as will fairly enable him to determinewhether he should hold himself satisfied that the charge in questionhad been made out ”. If the pre-existence, in the Spackman case1, of adecree of a competent court as to the facta probanda did not obviatethe necessity for an inquiry into those facts, there would surely be aneed for inquiry if all that the Director had before him was a series ofallegations made by the President of the Teachers’ Association.
Crown Counsel did not argue before me that either the matter ofthe dismissal by the petitioner in December 1960 of the former Satffof the School, or the matter of the sufficiency or competence of the newStaff employed in January 1961, could in any way have constituteda failure on the petitioner’s part to comply with the provisions insection 6 (b) of the Act. The “charges ” against the petitioner relatedto the closure of the Hostel, the Playground and the Handicraft Labo-ratory, and to the demolition of the Latrines, and the petitioner wasby the Director’s letter of 11th January 1961 duly informed of the*“ charges ” and offered the opportunity to meet them. But was a“fair opportunity” given to the petitioner “to correct or contradictany relevant statement to his prejudice ” ?
The prejudicial statements must be taken to have been made againstthe petitioner by the President of the Northern Province Teachers’Association ; for in paragraph 8 of the Director’s affidavit it is statedthat the letter of 11th January 1961 was written on representationsmade to the Director, and in support of that statement a copy of thePresident’s letter is attached. In these circumstances, it would notbe reasonable to suppose that there had been at that stage any adverseofficial report to the Director from any official of his Department. Had 1
1 General Medical Council v, Spackman, (1943) A.C. 627.
330
EL. N. G. FERNANDO, J.— Vadamaradchy Hindu Educational
Society Ltd. v. Minister of Education
such, been the case, one would have expected some mention of such a reporteither in the letter of 11th January itself or in the affidavit, or in both.I feel bound to deal with the matter on the footing that the Directordoes not claim to have received any such official report at that stage.
When, therefore,the Director received the Society’s letter of 23rd January1961, the position would seem to have been that the Department hadbefore it the original “ complaint ” of 30th December 1960 from thePresident of the Teachers’ Association on the one side, and the Society’sexplanations on the other. In regard to each one of the four matterscomplained of, the Society in a sense admitted the correctness of thebare facts stated in the complaint, but proceeded to state further factswhich, if true, would establish that the facts complained of did notconstitute a contravention of section 6 (6) of the Act :—the Hostelhad been closed in December, but had re-opened when the new termcommenced in January ; some latrines had been demolished by theowner of the land on which they had stood, but new latrines were beingprovided and would be ready very soon ; the former Playground onleased land had been taken back by its owner, but a new Playgroundhad been provided in anticipation some years before ; the former Handi-craft Laboratory was being put to a different purpose, but the Laboratorywas now housed in a new building. Indeed, even if (as was not argued)the matter of the dismissal of the former Staff could at first sight havebeen considered to have been a breach of section 6, there was theexplanation that the School had re-opened in January with a new Staff.
In the circumstances just stated, a mere preference for the writtenword of the President of the Teachers’ Association and a decision basedthereon, would have been unreasonable, for the President’s statements,even if true, did not establish the falsity of the Society’s explanations. Inregard to three at least of the four matters, the Society’s explanationwas that action had been taken recently (after 30th December whenthe * complaint ’ had been made) to remedy what might otherwise havebeen a short-coming. This is another reason why action based upon sucha preference would have been unreasonable. It is clear to me thereforethat, if the Order under section 11 was made solely after consideration ofthe two letters of 30th December and 23rd January, there was no inquiry“ such as would enable the Minister fairly to determine whether he shouldhold himself satisfied that the charges had been made out ”. It remainsto see whether, on the matters disclosed to the court in these proceedings,it is shown that other relevant information was utilised by the Ministerin an inquiry of the nature required by law.
The Society had in its letter of 23rd January twice requestedthe Director to hold an inquiry on the spot into the matters complained-of. Such a request was most reasonable in the circumstances, for visualinspection would easily demonstrate whether or not the Society’s expla-nations were correct. The fact mentioned in the Director's affidavitthat, there are officers of bis Department in the Northern Province, shows
331
H. TSf. a. FEKfiTANDO, J.—Vadamamdchy HinduJMuotkional
Society Ltd. v. Minuter of Education
that such cm inspection by one of those officers was possible, and thereis no reason to suppose that an inspection would not have been feasible-and convenient; as was pointed out in the Arlidge case 1 the Minister’sduty could have been duly discharged if “ his materials were vicariouslyobtained through his officials
In this connection the Director does not expressly controvert theaverment in paragraph 23 of the Petition that “ the respondents failedto hold a proper inquiry What the Director does state in paragraph9 of the affidavit is that “ information was received by him from officersin the Northern Province He does not specify what that informationwas or from whom and when he received it, nor does he state whetherand upon what matters those officers were called upon to furnish infor-mation. In the Arlidge case1 it is clear that an Inspector did in facthold an inquiry and made two reports to the Board on dates which arespecified in the judgments. The appellants in that case had made norequest to see those reports, but claimed in the courts that the failureto disclose them was contrary to the principles of natural justice. Uponthis aspect of the matter the rejection of that claim in the Arlidge case2does not assist the present respondents ; for here the question is whetherthere was in fact any inspection at all by any officer of the Departmentof Education.
I do not of course reject the Director’s averment of fact that someinformation was furnished to him by his officers, but the absence fromthe affidavit of any reference to any inspection of the School, and evenmore important, the lack of any affidavit from any such officer, is to mymind of much significance and compels me to the conclusion that therespondents have failed to prove that there was in fact any inspection,which could have served to test the correctness of the explanations givenby the Society in its letter of 23rd January 1961.
In seeking to arrive at a decision, it is helpful to consider the Universityof Ceylon case2 on the supposition that its facts were different, beingaltered to be analogous to those now arising before me. Let me supposethat the Vice-Chancellor had before him only two letters : one from thegirl student to the Vice-Chancellor alleging that the “ accused ” malestudent had prior to the examination written some words in Germanin the girl’s note book ; the second a letter from the “ accused ” (afterbeing informed of the accusation) stating that the accusation was falseand inviting the Vice-Chancellor to inspect the girl’s note book and see
1 L. O. B. V. Arlidge, {1915) A.C. 120.
* The University of Gey Ion v. Fernando, 61 N. L. R. 505 (P.G.).
332
H. IT. G. FERNANDO, J.— Vadamaradchy Hindu Educational
Society Ltd. v. Minister of Education
for himself whether it actually contained the words in German. If thenthe Vice-Chancellor did not himself inspect the note book or cause itto be inspected by some responsible delegate, but instead chose to relyon the girl student’s allegation without further inquiry, can it be heldby a court that by means merely of reading the two letters the Vice-Chancellor afforded to the “ accused ” student “ a fair opportunity tocorrect or contradict the relevant statement to his prejudice ”? Whenthe petitioner in the present case explained to the Director, as be virtuallydid, “ these buildings and facilities are in fact existing and available,come and see for yourself or send someone to see ” , would not an inspec-tion on the spot have been the only just means of affording a “ fair oppor-tunity ” to the petitioner ? Even if other means may have been suffi-ciently just, there is no indication that any other means were in factutilised.
If again, on the supposed facts of the University of Ceylon case 1 whichI have hypothetically assumed, the Vice-Chancellor had in additionmerely stated to the court “ I had the two letters before me and in additionI had some other information from a University official; but I do notdisclose who it was or what he said or when ”, would that additionalitem of evidence have justified a conclusion by a court that some honestand reliable official had in fact inspected the girl’s note book, and hadseen the words in German in the note book and reported accordinglyto the Vice-Chancellor, and further that the Vice-Chancellor had therebybeen satisfied that the entry in the note book was genuine and not fabri-cated ? I do not imagine that a court may properly presume the existenceof such weighty and important facts from such vague and slender evi-dence. In the same way, I am unable to assume from paragraph 9 ofthe Director’s affidavit that, before the Order under section 11 of theAct was made, (1) there had been an inspection of the School by someofficer, and (2) the officer thereafter furnished to the Director a Reportcontradicting any or all of the explanations set out in the Society’s letterof 23rd January 1961, and (3) the Minister took the Report into con-sideration and decided to accept it in preference to the Society’sexplanation.
The possibility that some officer had made an inspection of the schoolbefore the letter of the 23rd was written by the Society is rendered atleast unlikely in the face of the requests in that letter for an inquiry onthe spot. The possibility that such an inspection was held after thereceipt on 24th January of the Society’s letter, is very nearly ruled outby the time element, for the decision to take over the School is recordedin the Director’s letter dated 26th January. In these circumstancesthe only inference which validly arises from +he absence in the Director’s
1 The University of Ceylon v. Fernando, 61 N. L. R. 505 (P.<7.).
H. U. O. FERNANDO, J.— Vadamaradchy Hindu Educational333
Society Ltd. v. Minister of Education '
affidavit of any reference to an inspection of the School and/or any officialreport, is that there had in fact been no such inspection or report. Atthe lowest, the position is that the Director made no attempt to satisfythis court that an inspection had taken place. The court has necessarilyto hold that the respondents failed to prove that a fair opportunitywas afforded to the petitioner to meet the “ charges ” made against it.
Crown Counsel invited me to assume that, because the Minister mustbe taken to have acted honestly, there must have been some official in-spection followed by a Report, which has remained undisclosed probablybecause of considerations of secrecy. That such an assumption wouldbe unjust in the circumstances is easily made manifest. Had the Directoraverred in his affidavit that some specified officer had in fact made aninspection and furnished a Report, this court could not have deniedto the petitioner an opportunity (if he requested it) to disprove thefact of such an inspection. To assume that there had been an inspectiondespite the lack of an averment to that effect would be to hold that afact has been proved as against the petitioner in circumstances in whichno occasion has even arisen for the petitioner to deny the existence ofthat fact.
In view of the Order which has to be made in Application No. 34, itis not necessary to deal with the point taken in the subsequent Appli-cation No. 407. In this instance the petitioner has contended that theamendment of the Schedule to Act No. 5 of 1960, which amendmentwas effected by Act No. 8 of 1961 (2nd Schedule paragraph 1 (4)) has theeffect that the petitioner’s School is not one to which the Act of 1960applies for the reason that this School was conducted “ mainly for personsover 14 years of age ”. Having regard to the particulars available tothe court concerning the ages of the pupils in the School, the petitionerhas not established to my satisfaction that the School was conductedmainly for such persons. The Application No. 407 has therefore tobe dismissed.
In the Application No. 34 I make order that a Mandate in the natureof a Writ of Certiorari do issue quashing the Order under section 11of Act No. 5 of 1960 in so far as it contains a declaration under that sectionin respect of the J/Vadamaradchy Hindu Girls’ College, Point Pedro.
The respondents will pay to the petitioner the costs of the applicationfixed at Rs. 315.
Application No. 34 allowed.
Application No. 407 dismissed.