VYTHAILINGAM, J. – Sirisena and Others V. Kobbekaduwa, Minister of Agriculture a

003-NLR-NLR-V-80-VYTHAILINGAM-J.–Sirisena-and-Others-V.-Kobbekaduwa-Minister-of-Agriculture-a.pdf


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VYTHIALINGAM, J.
These applications raise important questions in regard to theconstruction of section 24 of the Interpretation Ordinance as amended bythe Interpretation (Amendment) Act, No. 18 of 1972 and the practice andprocedure relating to the exercise by this Court of its power to call for andexamine the records of any subordinate Court and in the exercise of itsrevisionary powers to make any order thereon as the interests of justicemay require.
On 13 May, 1974, Pathirana, J. and Wijesundera, J. directed theRegistrar of this Court to call for the records in the following cases:-VI/74 High Court of Badulla 11; 12; 13; 15; 1/28; 1/25 High Court
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Kandy 6/74 High Court of Ratnapura and 4/6 D.C. Bandarawela, L/10568,L/10569 and L 10570 D.C. Kandy.
Thereafter the same two Judges and Udalagama, J. made the followingorder:-
“The Registrar,
Supreme Court,
Colombo.
In terms of section 354 (1) of the Administration of Justice LawNo. 44 of 1973, having perused the records in the following casesin order to satisfy ourselves as to the legality and propriety of the ordersmade by the learned High Court and District Court Judges and theregularity of the proceedings in respect of such orders, we are of theopinion that the said orders on the face of the record appear to be illegal inview of the provisions of section 24 of the Interpretation Ordinance asamended by the Interpretation (Amendment) Act No. 18 of 1972.
Notice Petitioners/Plaintiffs to appear and show cause as to why thesaid orders should not be set aside in the exercise of our powers ofrevision.
Notice Respondents/Defendants and the Attorney-General.Petitioners/Plaintiffs will be noticed to appear to show cause on
14.6.1974.
H.C.P. Ratnapura 6/74 APN/GEN/13/74 – Order made on
13.5. 1974.
D.C. Kandy L. 10568 APN/GEN/10/74 – Order made on
22.4.1974.
D.C. Kandy L. 10569 APN/GEN/11/74 – Order made on
'
D.C. Kandy L. 10570 APN/GEN/12/74 – Order dated
22.4.1974.
H.C. Badulla V/I/74 APN/GEN/6/74 – Order dated
and 9.4.1974.
H.C. Kandy 1/25/74 APN/GEN/74 – Order dated 17.5.74."
Subsequently a similar order was made by the same three Judges inrespect of the following cases:- 7 8 9
7.H.C. Kandy 1/28/74 APN/GEN/14/74 — Order dated
29.4.1974
8.H.C. Kandy 11/74.APN/GEN/8/74 — Order dated 22.2.1974
9.H.C. Kandy 15/74/APN/GEN. 12.74 — Order dated 5:3.1974
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It will be noticed that although twelve cases were originally called for,order to issue notice were made in respect of only nine of these cases. Intwo of the cases originally called for i.e. H.C. Kandy 12 and 13 of 1974the Attorney-General had moved this Court in revision in S.C.Applications No. 290/74 and 291/74 but withdrew the applications as theinterim injunctions issued in these cases had expired by effluxion of timeand there was no longer a live issue in these cases. Probably for thisreason the parties in these two cases were not noticed. The third case isD. C. Bandarawela L.6. which is on the list of applications before us now.
1 may mention but without comment that the order referred to dated
in H.C. Ratnapura 6/74 APN/GEN/13/74 in respect of whichnotice to show cause has been issued is an order dissolving the interiminjunction issued by the Court, on the ground that the petitioner in thatcase had not been able to establish- to the satisfaction of the Court thatirremediable mischief would ensue to him if the interim injunction wasnot issued. On the main issue before us the learned High Court Judge heldthat section 24 of the Interpretation Ordinance did not preclude his issuingthe interim injunction. But since it had been dissolved by his order of
there was nothing more to be done.
The parties noticed in applications APN/GEN/6 & 7/74 filed petitionand affidavit before the Hon. The Acting Chief Justice and prayed thatthese and certain other cases referred to in their petition be directed to beheard by five or more Judges as the matters in dispute in the said casesare both of general and public importance. This was supported beforethe Acting Chief Justice who directed that the matter be argued on
and the three Judges before whom the matters came up inpursuance of the notices issued directed that the cases be re-listed in aweek’s time.
After hearing parties on 18.6.1974 the Acting Justice directed “undersection 14(3) (c) of the Administration of Justice Law No. 44 of 1973 thatthe applications numbers APN/GEN/6/74, 7/74, 9/74, 10/74, 11/74, 12/74,13/74, 15/74 and 16/74 now pending before the Supreme Court be listedfor hearing on 8th July, 1974, before a Bench of nine Judges as thematters in dispute in the said cases are of general and public importance.”This Bench of nine Judges was accordingly constituted by the ChiefJustice and altogether eighteen applications have been listed before us fordisposal.
In three of these cases APN/GEN/2 1 /74, 22/74 and 23/74 thedefendants are the Land Reform Commission and interim injunctions
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have been issued restraining them. In the course of the argument thelearned Solicitor-General conceded that section 24 of the InterpretationOrdinance did not apply to the Land Reform Commission and accordinglythe notices in those cases were discharged and the records were directed tobe returned to the respective Courts.
As 1 have already pointed out in the Ratnapura High Court caseAPN/GEN. 13/74 the interim injunction has been dissolved by the HighCourt Judge himself while in every one of the other eight High Courtcases APN/GEN/6/74, 8/74, 12/74, 14/74, 15/74, 18/74, 19/74, 20/74,the interim injunctions have spent themselves by effluxion of time andthere is no longer any live issue before us. Notices in all these HighCourt cases will also have to bev discharged and I would accordinglydirect that the notices should be discharged in these cases, sincetheoretical issues or hypothetical questions are not determined by Courts.
We are therefore left with the six District Court cases in D.C.Bandarawela APN/GEN/7/74, D.C. Kandy APN/GEN/9/74, 10/74, 11/74,16/74 and D.C. Gampola APN/GEN/24/74. All these cases relate toproceedings for the acquisition of land under the provisions of the LandAcquisition Act Cap. 460 and the defendant in each of these cases is theHon. H. S. R. Kobbekaduwa, Minister of Agriculture and Lands. In allthese cases interim injunctions were issued restraining the defendant fromproceeding with the acquisition and from evicting the plaintiffs.
In the three Kandy cases APN/GEN/9/74, 10/74 & 11/74 which havebeen referred to as the Bowlana Estate cases the defendant filed answerand objections to the issue of the interim injunction on 31.5.74 andapparently on account of the urgency of the matter trial and inquiry hadbeen fixed for 12.6.74. But for the unfortunate circumstance of this Courthaving called for the records ex mero motu these cases would in allprobability have now been finally concluded one way or other, subject ofcourse to any appeal. In the other three cases dates had been given for theanswer and objections of the defendant but before the due dates therecords have been called for by this Court and they were accordinglyforwarded to this Court. 1 have no doubt that the same procedure in regardto fixing an early date for trial and inquiry would have been followed inthese cases as well.
In all these cases the plaintiffs allege that the decisions and orders ofthe defendant are bad in law and of no force or avail as they wereinstigated and influenced by others particularly by Members ofParliament for the respective areas to secure political and personalrevenge and that they were made in bad faith for an ulterior motive andfor an extraneous purpose and therefore, ultra vires. All the Counsel who
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appeared for the various plaintiffs in these cases submitted that suchorders and decisions were null and void and were not protected against theissue of interim injunctions by the prohibition contained in section 24 ofthe Interpretation Ordinace. The learned Solicitor-General however arguedthat bad faith and excess of jurisdiction were irrelevant consideration as apower can be exercised in good faith or in bad faith. The prohibition insection 24 was absolute and the Courts are precluded from issuinginjunctions, however corrupt, capricious, arbitrary, irrelevant or regardlessof the nature and purposes of the statute the act of the repository might be.
His submission was that in these circumstances the subject was onlyentitled to a declaration of his rights if he succeeded in proving his case.He argued that on establishing a prima facie case he could not obtain aninterim injunction to preserve the property in status quo in order that inthe event of his ultimately succeeding, the declaration he could obtaincould he meaningful.
In considering whether the amending Act was ever intended to anddoes have this startling effect one may be permitted a few preliminaryobservations. In England “For three centuries however, the Courts havebeen refusing to enforce statutes which attempt to give public authoritiesuncontrollable power. If a Minister or Tribunal can be made a law untoitself it is a made potential dictator; and for this there can be no place in aconstitution founded on the rule of law … In effect they have establisheda kind of entrenched provision. . . that no executive body or tribunalshould be allowed to be the final judge of the extent of its own powers.”50
The basis for this is that the exercise of governmental authority directlyaffecting individual interests must rest on legitimate foundations. Forexample powers exercised by the State, its Ministers, and centralgovernment departments must be derived directly or indirectly fromStatute or the Common Law, and the ambit of those powers is determinedby the Courts, save in so far as their jurisdiction has been excluded byunambiguous statutory languages.
As W. Friedman observes51 “The State could through its legislature andexecutive arms extend its functions, its powers and authority until itengulfs all aspects of the community. This of course is the case intotalitarian states where the judiciary functions essentially as a specialisedbranch of the executive. The Courts are expected to protect and enforcethe policies of government. Such a philosophy and structure of powers are
H. W. R. Wade — Constitutional and Administrative aspects of the Anisminic Case. 1969
85 LQR 198 at 200.
W. Friedman — The State and Rule of Law in a Mixed Economy. Tagore Lectures 1971
Calcutta University.
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incompatible with the idea of a mixed economy where the economicfunctions of the state as provider, controller, and entrepreneur are assignedan important, perhaps even a prominent place, but the private sector ismeant to retain a definite function and place of its own.”
Such is our case and our Republican Constitution provides in Article131 (1) for the independence of Judges and other State Officersadministering justice without being subject to any direction or otherinterference, although it is the National State Assembly which, asthe Supreme Instrument of State Power exercises the judicial powerof the people through Courts and other institutions created by law.[Sections 5(c],
In this context the Courts have an important and proper function toperform. As Basnayake, C.J. pointed out in Ladamuttu Pillai v. TheAttorney-General (supra) “The interpretation of statutes is the properfunction of the Courts and once legislation has been enacted thelegislature looks to the Courts to declare its true meaning and upon thatmeaning to determine whether the powers entrusted to the creatures ofstatute have been exceeded or not. The principles governing the exerciseof their functions by statutory functionaries have been declared by theCourts of England and other Commonwealth countries and are now wellestablished and in my view afford valuable guidance in the considerationof the questions arising on this appeal.”
The decisions of the Supreme Court in some respects in this case wereset aside by the Privy Council but not in regard to this part of thejudgment. As long ago as 1910 Farwell L.J.52 declared “Subjection in thisrespect to the High Court is a necessary and inseparable incident to alltribunals of limited jurisdiction; for the existence of the limit necessitatesan authority to determine and enforce it; it is a contradiction in terms tocreate a tribunal with limited jurisdiction and unlimited power todetermine such limit at its own will and pleasure — such tribunal would beautocratic not limited …”
The principles referred to by Basnayake, C.J. may be conveniently! summarised thus: “That authority must genuinely address itself to thematter before it; must not act under the dictation of another body disableitself from exercising a discretion it must not or do what it has beenforbidden to do, nor must it do what it has not been unauthorised to do. It .must act in good faith, must have regard to all relevant considerations andmust disregard all irrelevant considerations, must not seek to promotepurposes alien to the letter or spirit of the legislation that gives it power toact and must not act arbitrarily or capriciously.33
52 R. V. Shoreditch Assessment Committee (1910) 2 KB 859 at 880.
“Judicial Review of Administrative Action — 2nd edition 271 S.A. de Smith.
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He groups them for convenience into two broad classes, which howeverare not mutually exclusive; failure to exercise discretion and excess orabuse of discretionary power. W. Friedman refers to these two broadclasses as (a) excess of statutory powers and (b) objectionable motives.”Bernard Schwartz and H. W. R. Wade in their comparative study ofJudicial Control of Administrative Action in England and America 55 haveclassified them as follows:— “Fundamentally the court’s jurisdiction restson two distinct principles, excess of jurisdiction or ultra vires and error onthe face of the record. If an act is within the powers granted it is valid. If itis outside then it is void. No statute is needed to establish this. It isinherent in the constitutional position of the Courts. A void act iscommonly-said to be ultra vires or without jurisdiction. In this contextjurisdiction merely means legal authority or power”.
“The Courts read the statute as containing an implied limitation that theadministrative decisions shall be reasonable or that it shall conform tocertain implied purposes or that particular facts exist. It is assumed thatParliament could not have intended otherwise. If therefore the impliedrestriction is violated, the act is just as unauthorised and void as thecrudest excess of power.
In the Bracegirdle case56 it was argued by the law officers of the Crownthat the Order in Council gave absolute power to the Governor to makethe order of deportation of a British subject from Ceylon as the sectionwas wide in its terms and unambiguous, and that it could not bequestioned in a Court of Law. All three Judges of this Court had no ■difficulty in holding that, on a proper construction of the Order-in-Councilas a whole, the power could only be exercised in a state of emergency, thatthe Supreme Court was entitled to inquire whether the conditionsnecessary for the exercise of the power had been fulfilled, and there beingno such state of emergency as contemplated in the Order-in-Council theorder of deportation was invalid.
Abrahams C.J. remarked in the case “now this power claimed by theLearned Attorney-General is a very wide power, and if the legitimacy ofthe claim is admitted it means that from 5th August 1914 right down tothe present day (19th May, 1937) then in the words of Mr. Perera there hasbeen in contemplation of law no personal liberty in Ceylon”— (at 209).
It is undoubtedly true that, Parliament being sovereign and supreme,can vest absolute power in any executive authority, and so word the terms
** (1947) 10 Mod L.R. 384.
” Legal Conirol of Government — Bernard Schwartz and H . W. R. Wade 210.
36 In re Mark Antony Lyster Bracegirdle (1937) 39 N.L.R. 193.
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of the grant of such power as to exclude review by the courts on anyground whatsoever. However, as Lord Wilberforce remarked in the .Anisminic case (supra) “although, in theory perhaps, it may be possible forParliament to set up a tribunal which has full and autonomous powers tofix its own area of operation, that has, so far, not been done in thiscountry.”
But if Parliament does so it must do it in clear and unambiguouslanguage. “The wellknown rule that a statute should not be construed astaking away the jurisdiction of the Court in the absence of clear andunambiguous language to that effect now rests on a reluctance to disturbthe established state of the law or to deny to the subject access to the seatof justice. “It is,” he, (Viscount Simonds) said in another case “a principlenot by any means to be whittled down that the subject’s recourse to HerMajesty’s Courts for the determination of his rights is not to be excludedexcept by clear words. That is … a fundamental rule from which I wouldnot for my part sanction any departure.” 57
The question is whether in respect of the matters in issue in these casesthis has beeen done by Parliament. It is said that the new section 24 of theInterpretation Ordinance takes away from the courts power to issue aninjunction to restrain Ministers and the bodies and persons specified in thesection, in respect of acts done or intended to be done by them. Thatsection in its entirety is as follows:—
“24 (1) Nothing in any enactment, whether passed or made before or afterthe commencement of this Ordinance, shall be construed to conferany court, in any action or other civil proceedings, the power togrant an injunction or make an order for specific performanceagainst the Crown, a Minister, a Parliamentary Secretary, theJudicial Service Commission, The Public Service Commission, orany member or officer of such Commission in respect of any actdone or intended or about to be done by any such person orauthority in the exercise of any power or authority vested by law inany such person or authority:
■Provided, however, that the preceding provisions of thissubsection shall not be deemed to affect the power of such Court tomake, in lieu thereof, an order declaratory of rights of parties.
(2) No Court shall in civil proceeding grant any injunction or make anorder against an officer of the Crown if the granting of theinjunction or the making of the order would be to give reliefagainst the Crown which could not have been obtained inproceedings against the Crown.”
” Maxwell — Interpretation of Statutes —■ 12th edition 58.
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It is at once apparent that what the section does is to prohibit a court,notwithstanding anything in any other enactment, from issuing aninjunction or from making an order for specific performance in respect ofany act done or intended to be done, by any Minister, or body or personsenumerated therein, in the exercise of any power or authority vested bylaw, in any such person or authority. (The emphasis is mine). It enablesa court, however, to issue a declaration in lieu thereof. It does not vest anyauthority or power in any such person to do any act. What the exact natureand scope of such authority or power, as to whether it is absolute orlimited and if so in what respect, are all matters which have to bedetermined by an examination of the provisions of the statute or lawwhich confers that power.
In these cases the act done or intended to be done is the acquisition ofland, and the power or authority to acquire land is vested by the LandAcquisition Act (Cap. 460). It is therefore necessary to examine itsprovisions. Under this Act the Minister must first decide that land in anyarea is required for a public purpose. Having done so he is empowered todirect the Acquiring Officer to make investigations for selecting land forthe public purpose (section 2). Provision is made for the payment ofcompensation if damage is caused in the course of such investigations(Section 3). Thereafter if the Minister considers that a particular land issuitable for a public purpose he should direct the Acquiring Officer tocause a notice to be given to the owners of the particular land (section 4).
If the owners object, the objections have to be condsidered and decidedand then the Minister has to decide whether the land should or should notbe acquired under the Act (sec. 4 (10), and when the Minister so decideshe has to make a written declaration that such land is needed for a publicpurpose and that it will be acquired and direct the Acquiring Officer tocause such declaration to be published – section 5(1). “A declarationmade under subsection (1) in respect of any land or servitude shall beconclusive evidence that such land or servitude is needed for a publicpurpose” (section 5 (2)). There follow detailed provisions in regard toassessment, determination and payment of compensation.
Section 3|8 makes provision for the order called a vesting order,directing the Acquiring Officer to take possession of the land. The provisoto section 438 enables the Minister to take steps on occasions calling forurgent acquisition provided a notice under section 2 or section 4 has beenexhibited. A vesting Order may subsequently be revoked if possession hasnot actually been taken, in pursuance of that order. It will be seentherefore that the power to acquire land is given only if the Ministerconsiders that the land is needed for a public purpose. There are well-known principles of law which govern the exercise of this discretion,subjective though it is.
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In particular the Courts are stringent in requiring that discretion shouldbe exercised in conformity with the general tenor and policy of the statuteand for proper purposes and that it should not be exercised unreasonably.In other words, every discretion is capable of unlawful abuse and toprevent this is the fundamental function of the courts. Unfettereddiscretion is a contradiction in terms. “Bernard Schwartz and H. W. R.Wade (at page 255).
If the repository of a power exceeds its authority or if a power isexercised without authority, such purported exercise of power may bepronounced invalid. The lawful exercise of a statutory power presupposesnot only compliance with the substantive, formal and proceduralconditions laid down for its performance but also with the impliedrequirements governing the exercise of that discretion. All statutorypowers must be exercised (i) in good faith (ii) for the purposes for whichthey are given and not for an extraneous purpose (iii) with due regard torelevant considerations and without being influenced by irrelevantconsiderations and (iv) fairly and in some contexts reasonably.58
The term bad faith as used here as opposed to good faith, requiresexplanation. As Lord Somerville observed in the East Elloe case (supra)“Mala fides is a phrase often used in relation to the exercise of statutorypowers. It has never been precisely defined as its effects have happilyremained in the region of the hypothetical cases. It covers fraud andcorruption.” So much so “that the reservation for the case of bad faith ishardly more than formality.” Per Lord Radcliff in Nakkuda Ali v.Jayaratne.59
“It is an abuse of power to exercise it for a purpose different from thatfor which it is entrusted to the holder, not the less because he may beacting ostensibly for the authorised purpose. Probably most of the.recognised grounds of invalidity could be brought under this head;introduction of illegitimate considerations, the rejection of the legitimateones, manifest unreasonableness, arbitrary or capricious conduct, themotive of personal advantage, or the gratification of personal ill will.However that may be, an exercise of power in bad faith does not seem tome to have any special pre-eminence of its own among the causes thatmake for invalidity. It is one of several instances of abuse of power and itmay or may not be involved in several of the recognised grounds that havebeen mentioned.” Lord Radcliff in East Elloe— at page 870. (supra)
But of course it is a recognised ground of invalidity. “Bad faith,dishonesty — those of course stand by themselves”— Lord Greene, M.R.60Its consequences are serious as Denning, L.J. pointed out in the Court of
!* Halsbury 4ih edition Vol. I paras 60,62, 66“Supra (1948) IKB 228
”(1950) 51 NLR 457 PC
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Appeal; “ No Judgment of a Court or order of a Minister can be allowed tostand if it has been obtained by fraud. Fraud unravels everything. TheCourt is careful not to find fraud unless it is specially pleaded and proved.But once it is proved it vitiates judgments, contracts, and all transactionswhatsoever.”61
And finally “The concept of bad faith eludes precise definition, but inrelation to the exercise of statutory powers it may be said to compromisedishonesty (or fraud) or malice. A power is exercised fraudulently if itsrepository intends to achieve an object other than that for which hebelieves the power to have been conferred. His intention may be topromote another public purpose or private interests. A power is exercisedmaliciously if its repository is motivated by personal animosity towardsthose who are directly affected by its exercise.” (S. A. de Smith — page315).
However a distinction has been made between an act withoutjurisdiction and an error within jurisdiction. Discretion implies that thereis a choice and where the choice is made without any of the taints whichgo to jurisdiction then the courts cannot interfere with the choice of theMinister and say that he should have made the other choice and therebysubstitute its own decision for that of the Minister, even if he is wrong. Anofficial exercising the discretion committed to him must be at liberty to gowrong. It is inherent in discretionary power that it includes the power tomake mistakes.
In the Carltona Case (supra) Green, M. R. said “Parliament whichauthorises this regulation commits to the executive the discretion todecide, and with that discretion if bona fide exercised, no Court caninterfere. All that the Court can do is to see that the power which it isclaimed to exercise is, one which falls within the four corners of thepowers given by the legislature and to see that these powers are exercisedin good faith . . . apart from that the Courts have no powers at all toinquire into the reasonableness, the policy, the sense or any other aspect ofthe transaction.”
It is in this sense that the observations of T. S. Fernando, J. inP. Kannusamy v. The Minister of Defence and External Affairs 62 must beunderstood. He said, “where the Act permits the Minister to disallow anapplication where the Minister is satisfied that it is not in the publicinterest to grant it, I cannot conceive that Parliament intended that thisCourt should review a disallowance of an application by examining
61 Lazarus Estates Ltd. v. Bearely (1956) I All E.R. 341 at 345 (1956) 1 QB 702.
“(1961)63 N.L.R. 380
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whether it is actually not in the public interest to grant it. Parliamentclearly intended that the Minister should be the sole judge of therequirements of public interest. The decision of the Minister is a thing forwhich she must be answerable in Parliament, but her action cannot becontrolled by the Court.”
The Courts in Ceylon have given full effect to this principle where theact is within jurisdiction. In the case of Government Agent v. Perera65 thisCourt held that it was for the Governor to decide whether a particular landwas needed for a public purpose or not and that the District Court had nopower to entertain any objection to it on the ground that it was not soneeded. This decision was approved by the Privy Council in Wijesekera v.FestingJH This matter came up again in D. H. Gunesekera v. Minister ofAgriculture and Lands.65
In a very short judgment of just twelve lines H. N. G. Fernando, J. (ashe then was) said: “The consequence of the publication of the declaration(under section 5(1)) is that subsection 2 of section 5 operates to renderthe declaration conclusive evidence that the land was needed for a publicpurpose. The question whether the land should or should not be acquiredis one of policy to be determined by the Minister concerned and even ifthat question may have been wrongly decided, subsection 2 of section 5renders the position one which cannot be questioned in the Courts.”Apparently in all these cases no question of excess or abuse of power wasinvolved.
In the case of Gamage v. Minister of Agriculture and Lands66 thequestion of the order of the Minister being null and void because theproposal for the said acquisition was motivated by personal and politicalanimosity, as in these cases, and that it was therefore ultra vires, wasraised. After the notice under section 2(1) of the Act had been given theMinister made an order under the proviso (a) to section 38. Noconclusiveness attaches to the publication of the notice under section 2(1)unlike in the case of a declaration under section 5(1). Pathirana, J. withRajaratnam, J. agreeing, held following the cases referred to by me abovethat the validity of the Minister’s decisions could not be questioned in aCourt of Law.
Pathirana, J., distinguished the two cases cited by counsel for theappellants in that case on the ground that certain public bodies were givenpowers to acquire land for certain specific purposes but the acquisitionturned out in fact to be for other purposes not intended by the statute andmotivated by some ulterior object. He said “It is different from a case
(1907) 7 N.L.R. 313.(1919) A.C. 646.
(1963) 65 N.L.R. 119.(1973) 76 N.L.R. 25.
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where a public functionary is given the powers to decide something andpursuant to those powers the public functionary makes a decision in whichcase the Court cannot impose its own idea of what ought to have beendecided as the statute intended the powers of decisions to lie elsewhere.” -(at pages 30, 31.)
This is perfectly true if the decision whether right or wrong, was withinjurisdiction. But in that case the challenge was for ultra vires on theground of bad faith and improper purpose and it goes'directly tojurisdiction and this aspect does not appear to have received anyconsideration. Cases are cited as illustrating the principles involved andnot because they are on the identical facts. Acquisition of land to pay off agrudge, whether it be political or personal, or for a private purpose or nopurpose at all when one can acquire only for a public purpose is equally infraud of the statute as acquiring land for one purpose when power is givento acquire it for another purpose. The fundamental principle ofadministrative law and the general theory on which judicial control overadministrative acts is based is the doctrine of ultra vires. If the grant ofsubjective powers takes away the consideration of the question of ultravires, then the whole basis of judicial review of administrative actions istaken away.
The “conclusive evidence” clause also does not help at all. In theAnisminic case Lord Wilberforce said “In every case, whatever thecharacter of a tribunal, however wide the range of questions remitted to it,however great the permissible margin of mistake, the essential pointremains that the tribunal has a derived authority, derived, that is fromstatute, at' some point, and to be found from a consideration of thelegislature, the field within which it operates is marked out and limited. . .Equally, though this is not something that arises in the present case, thereare certain fundamental assumptions which without explicit treatment inevery case necessarily underlie the remission of power to decide such as (Ido not attempt more than a general reference, since the strength and shadeof these matters, will depend on the nature of the tribunal and the kind ofquestions it has to decide) the requirement that a decision must be made inaccordance with the principles of natural justice and good faith …. Thequestion what is the tribunal area, is one which it has always beenpermissible to ask and to answer and it must follow that an examination ofits extent is not precluded by a clause conferring conclusiveness, finalityor unquestionability on its decisions.” (Anisminic case, page 243and 244.)
In the case of the Land Redemption Ordinance No. 61 of 1942section 3 (4) sets out that “the question whether any land which theLand Commissioner is authorised to acquire under subsection 1 should or
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should not be acquired shall, subject to any regulation made in that behalfbe determined by the Land Commissioner in the exercise of his individualjudgment” and “every such determination of the Land Commissioner shallbe final”. It was held by this Court in Herath v. Attorney-General61 and inLadamuttu Pillai v. Attorney-General (supra) that this subsection did notmake final any decision made by the Land Commissioner in excess of thepowers conferred by subsection 1.
In both these cases the Privy Council expressed agreement withthis view. In the case of Government Agent of Northern Province v.Kanagasunderam (supra) the Government Agent acquired a portion of abuilding, although he was requested by the defendant to acquire the wholeof the building. It was held that, as section 44 of the Ordinance providedthat a part of a house shall not be compulsorily acquired, if the ownerdesires that the whole should be taken, the taking of possession of a partonly of the building was unlawful and that the defendant was entitled toan injunction restraining the Government Agent or his agent from takingpossession pending the determination of the action.
This question of the effect of a “conclusive evidence” clause wasconsidered by the Supreme Court in India in the case of Smt: Somawantiet al v. The State of Punjab (supra) which was also a case under the LandAcquisition Act of India. Section 6(3) of the said Act states that adeclaration made by the Government that a particular land is needed for apublic purpose or for a company shall be conclusive evidence that the landwas so needed. Mudholkar, J. who delivered the main judgment in thecase said, “the conclusiveness is not merely regarding the fact that theGovernment is satisfied but also with regard to the question that the landis needed for a public purpose or for a company. Then again theconclusiveness must attach not merely to the need but also to the questionwhether the purpose is a public purpose or what is said to be a company isa company. There can be no need in the abstract. It must be a need for apublic purpose or a company.” (at page 160).
He then went on to say that the finality however was subject to oneexception. “That exception is that if there is a colourable exercise ofpower, then the declaration will be open to challenge at the instance of theaggrieved party … If it appears that what the Government is satisfiedabout is not a public purpose but a private purpose or no purpose at all,the actions of the government would be colourable as not being relateableto the power conferred upon it by the Act and its declaration would be anullity,” (page 164) and that the declaration being vitiated by fraud itcould not be protected by subsection 3 of section 6.
" (1958) 60 N.L.R. 193.
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(1978) Vol. 80 N.L.R.
The Courts therefore can inquire into the question as to whether theMinister’s decision is ultra vires the power or authority vested by law inhim. If it is, then it is null and void and will remain as if it had never beendone at all. Every case, in which the vires of an administrative action ischallenged, involves the problem of statutory interpretation. There arereally three main rules of interpretation, though with a number of subrules, explanatory riders and technical rules. The first is the “Literal rule”which directs that plain words must be given their plain meanings. This issummed up in the words of Jervis, C.J. “If the precise words used areplain and unambiguous, in our judgment, we are bound to construe themin their ordinary sense even though it does lead in our view of the case, toan absurdity or manifest injustice.” 68
Clearly a strict application of this rule would be manifestly unjustwhere it causes injustice and leads to absurdity and so “The Golden Rule”was developed. This means that the literal meaning of the words can bemodified to avoid injustice or absurdity. This was done by Lord Reid inthe case of Luke v. Inland Revenue Commissions'* where he said “To applythe words literally is to defeat the obvious intention of the legislature andto produce a wholly unreasonable result. To achieve the obvious intentionand to produce a reasonable result we must do some violence to the words. . . The general principle is well settled. It is only when the words areabsolutely incapable of a construction which will accord with the apparentintention of the provision and will avoid a wholly unreasonable result, thatthe words of the enactment must prevail.”
The third rule which is the oldest and also most suited to modernconditons is what is known as the “Mischief Rule”. It is as follows: “ thatfor the sure and true interpretation of all statutes in general (be they penalor beneficial, restrictive or enlarging of the common law) four things areto be discerned and considered:
(1st) what was the common law before the making of the Act;
(2nd) what was the mischief and defect for which the common law didnot provide;
(3rd) what remedy the Parliament hath resolved and appointed to curethe disease of the common law; and'
(4th) the true reason of the remedy;
and then the office of all the judges is always to make such construction aswill suppress the mischief and advance the remedy and to suppress subtleinventions and evasions for continuance of the mischief and pro privato
(1851) IICB 378 al 391.
(1963) I All E.R. 655 al 664.
sc
VYTHIALINGAM, J. – Sirisena and Others v. Kobbekaduwa,
Minister of Agriculture and Lands
7/
commodo and to add force and life to the cure and remedy according tothe true intent of the makers of the Act pro bono publico.” (Heydon’sCase — supra.)
Formulated by the Barons of the Exchequer nearly four centuries ago ithas been accepted, approved and followed ever since. Three centurieslater Lindley, M. R. said, “In order properly to interpret any statute it is asnecessary now as it was when Lord Coke reported Heydon’s case toconsider how the law stood when the statute to be construed was passed,what the mischief was for which the old law did not provide, and theremedy provided by the statute to cure that mischief.”70 It was applied in1960 in the case of Smith v. Hughes.1' In that case it was held thatprostitutes who attracted the attention of passers-by from balconies orwindows were soliciting in a street.”
Lord Parker, C.J. said in that case “For my part I approach the matter ofconsidering what is the mischief aimed at by this Act. Everybody knows,that this was an Act intended to clean up the streets to enable people towalk along the streets without being molested or solicited by commonprostitutes.” The learned Solicitor-General submitted that the words herewere plain and unambiguous, and that we should give them their plainmeaning. If however, there was any ambiguity in the sense that the wordsshould be read subject to any or all of the presumptions of law in regard toexcess of jurisdiction and ulterior purpose, then we should apply theMischief Rule and interpret the enactment so as to suppress the mischiefand advance the remedy.
He submitted that for this purpose we should look at the Hansardparticularly at the Minister’s speech and ascertain the intention ofParliament and to find out what the mischief was that was sought to beremedied and the history of the legislation. For my part I am of the viewthat we ought not to do so unless there is such great ambiguity in thewords that looking at Hansard alone would be decisive. In the case ofBeswick v. Beswick (supra) Lord Upjohn said “For purely practical reasonswe do not permit debates in either House to be cited . . . Moreover in avery large number of cases such a search even if practicable would throwno light on the question before the Court. But I can see no objection toinvestigating in the present case the antecedents of S.C. 56.” and heproceeded to refer to the proceedings of the Joint Committee of bothHouses on the Consolidated Bills, merely to see that there was nothing inthe proceedings which weakened the normal presumption againstalteration of the previous law by the Consolidating Act. This wasconsidered quite exceptional.
70 In re Mayfair Property Co. (1898) 2 Ch. 28 at 35.71 (1960) 1 W.L.R. 830
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The general rule today is quite clear. Parliamentary history oflegislation is not a permissible aid in construing a statute. Quite obviouslyan Act is often the product of compromise, and the interplay of manyfactors, the result of this being expressed in a set form of words. Thequestion may well arise in such a case as to whose intention it is that isthought to be relevant. Lord Denning’s suggestion that the intention ofParliament and that of the Ministers should be considered wasunanimously condemned by the Judges of the Court of Appeal in Magorand St. Mellons, R.D.C. v. Newport Corporation (supra).
In that case Lord Simmonds said, “ It is sufficient to say that thegeneral proposition that it is the duty of the Court to find out the intentionof Parliament not only of Parliament but of Ministers also, cannot by anymeans be supported. The duty of the Court is to interpret the words thatthe legislature has used. These words may be ambiguous, but even if theyare, the power and duty of Court to travel outside them on a voyage ofdiscovery are strictly limited”, (page 841).
In the case of Assam Railways and Trading Co. Ltd. v. I.R.C.12LordWright in the Privy Council with the other Lords concurring said “that thelanguage of a Minister of the Crown in proposing in Parliament a measurewhich eventually becomes law is inadmissible …” Reports ofCommittees and Commissions may however be admitted for the limitedpurpose of finding out what was the mischief intended to be remedied, butnot to show what the intention of Parliament was.
In the case of Kodakan Pilla v. P. B. Mudannayake 73 Lord Oaksey said“ It is common ground between the parties and in their Lordships’ opinionthe correct view that judicial notice ought to be taken of such matters asthe reports of Parliamentary Commissions and such other facts as must beassumed to have been within the contemplation of the legislature when theActs in question were passed.” The Report of the Soulbury Commission1945 was looked into in that case, where the question involved waswhether certain legislation was ultra vires or not. So also in another casewhen the question as to whether mens rea was an essential element of aparticular statute Lord Reid who dissented in the case thought that it wasnecessary to go behind the words and look at other factors ,74
As far as the mischief which was sought to be suppressed is concernedI accept the learned Solicitor-General’s statement as to what it was; but Ireject the invitation to go on a voyage of discovery to ascertain theintention of Parliament. It must be determined primarily from the wordsused in the enactment.
12 (1935) AC 445 at 448."(1953) 54 N.L.R. 433.
74 Warner v. Metropolitan Police Commissioners (1968) 2 W.L.R. 1303.
sc
VYTHIALINGAM, J. -Sirisena and Olliers v>. Kobbekaduwa,
Minister of Agriculture and Lands
73
In. this connection Mr. Jayewardene mentioned the changes that hadtaken place in the Committee Stage of the Bill. I am equally clear that wecannot construe the Act by reference to these changes or to the originalBill. “The alterations made in it during its passage through Committee areas the Court said in R. v. Hertford College wisely, inadmissible to explainit”. In Herron v. Rothmines et Commissioners, Lord Haslbury, L.C. saidwith reference to the construction of a local Act “I very heartily concur inthe language of Fitz Gibbon, L.J. that we cannot interpret the Act byreference to any Bill nor can we determine its construction by reference toits original form.75”
Undoubtedly for a proper application of the “Mischief Rule” ofinterpretation it is necessary for us to look at what the previous law was,what the mischief intended to be suppressed was and what remedy hasbeen provided by Parliament. In regard to the first we do not need to lookat what this Member or that Minister said in Parliament to find out whatthe law was. The Judges are the best persons who should know what thelaw was or at least they ought to. As for the second, if the mischief hadreached such proportions as to require Parliamentary intervention then itwould be a matter of common knowledge and Judges would be well awareof it. Lord Parker said in Hughes v. Smith, (supra) “Everybody knows …”As I have said I am however, prepared to accept the statement from thebar by the learned Solicitor-General as to what the mischief intended to beremedied in these cases was. What the remedy provided by Parliamentwas is a matter which has to be gathered by what it has said in theenactment itself.
In my view here the words are clear, precise and unambiguous. We addor subtract nothing from them. We are only construing them subject to“the fundamental assumptions which without explicit restatement in everycase necessarily underlie every remission of a power and which are asmuch part of a statute as its express words, namely that they shall beexercised bona fide and for the purposes for which they were entrusted byParliament to such repository. This is so not because the words are notclear but because the law requires it. As stated earlier the fundamentalprinciple of administrative law is the doctrine of ultra vires and the sourceof this principle is the common law as laid down in decided cases by theJudges.
If Parliament intended that these fundamental principles should notapply in this case it should have said so in clear and unmistakablelanguage, or it must arise by necessary implication from the words used inthe enactment. “ To alter any clearly established principle of law a distinctand positive enactment is necessary.”76 And again “ If it is clear that itwas the intention of the legislature in passing a new statute to abrogate the
75 Craies on Statute Law 7th edition 129.7S Ibid 121.
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(1978) Vot. SO N.L.R.
previous common law on the subject, the common law must prevail, butthere is no presumption that a statute is intended to override the commonlaw. In fact the presumption, if any, is the other way for the general rule inexposition is this, that in all doubtful matters and where the expression isin general terms, the words are to receive such a construction as may beagreeable to the rules of the common law in cases of that nature forstatutes are not presumed to make any alteration further or otherwise thanthe Act does expressly declare”.77
There are here no express words taking away the ultra vires rule. Norcan I find anything in the words from which this can be necessarilyimplied. In fact all the evidence in the words of section 24 points in acontrary direction. The omission of the words “purported” or the use ofsome such words as “ostensible” or “apparently” in relation to the words“act done, intended or about to be done” and the inclusion of the words“in the exercise of any power or authority vested by law” can only meanthat the rule in regard to ultra vires was intended to apply.
The learned Solicitor-General submitted that the mischief which wassought to be remedied was the delay caused in the implementation ofGovernment policy particularly in regard to village expansion and landreform, by the filing of these actions and the issue of interim injunctionsrestraining the Minister or other state servant from proceeding with theacquisitions. He said that actions were filed on the flimsiest grounds ofmalafides which is easy to allege but almost impossible to prove, interiminjunctions obtained for the mere asking, and then various devices wereadopted to keep the case going in the hope that a change of Government atthe next General Elections would result in the acquisitions beingabandoned. He said that there were eighty odd such cases pending in theCourts in the island today.
Even if there is some ambiguity in the words of the enactment, and Isay that in this respect there is none, then although the rule in regard to theCourt adopting a construction which will suppress the mischief andadvance the remedy is a valid one, yet in this case there is another equallyvalid rule of construction which prevents us from doing so, namely that aconstruction should be adopted which will prevent the abuse of power. Togive such a construction would be to enable the repository of the powerwhen acquiring land for a public purpose to do so for an ulterior purposeor no purpose at all and even to act corruptly, capriciously or arbitrarily.
Ibid 339.
sc
VYTH1ALINGAM, J. – Sirisena and Others v. Kobbekaduwa,
Minister of Agriculture and Lands
75
I do not say that Parliament cannot confer such arbitrary powers. It can.But if it does so it must do it in clear and unambiguous language or atleast use such words as leave no room for doubt that it has done so bynecessary implication. As I have pointed out there are no such words here.“Enactments which confer powers are so construed as to meet all attemptsto abuse them, and so the courts will always be ready to inquire into thebona fides of a purported exercise of a statutory power. The moderntendency seems to be against construing statutes so as to leave the personor body upon whom a power is conferred absolutely untrammelled in theexercise of it.”78
In the case of Padfield and others v. Minister of Agriculture, Fisheriesand Food et al. 79 the House of Lords decisively rejected the Minister’sclaim to unfettered discretion. In this case which has been hailed as alandmark in British Administration Law (see The Myth of Unfettereddiscretion80) the statute provided for complaints by milk producers againstthe Milk Marketing Board to be referred to a committee of investigation“if the Minister in any case so directs”. The Minister refused to refer acomplaint. The House ordered him to do so. In the course of the speechesLord Pearce said, “He (the Minister) cannot simply say albeit honestly ‘Ithink that in general the investigation of complaints has a disruptive effecton the scheme and leads to more trouble than (on balance) it is worth, Ishall therefore never refer anything to the committee of investigations’. Toallow him to do so would be to give him power to set aside for his periodas Minister the obvious intention of Parliament namely that anindependent committee set up for the purpose should investigategrievances and that their report should be available to Parliament.” (atpage 714).
So here we cannot adopt an interpretation under the guise ofsuppressing the mischief and advancing the remedy which will in effectgive the repository of the power absolute and arbitrary power whichParliament never did give and can never be intended to have given unlessthe wordsi used clearly say so. I do not wish to be understood as sayingthat the Minister has done or will act in this unreasonable way. All I amsaying is that to adopt any other interpretation would only make itpossible for anyone, so minded, to do so. We cannot do this without theexpress or necessarily implied permission of Parliament. When Parliamenthas chosen not to say that no injunction shall issue whether the act is donebona fide or mala fide it is beyond our power to say so.
™ Maxwell-Interpretation of Statutes 146.“ (1968) L.Q.R. 166.
” (1968) 1 All E.R. 694.
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(1978) Vol. 80N.LR.
It may be that there have been cases which have dragged on for someyears. But there are built-in safeguards against delay. The LandAcquisition Act provides in section 51A for the giving of priority to casesunder the Act and State Counsel can always insist on this right. As I havepointed out at least in two of these cases trial had been fixed within twoweeks of the filing of answer and objections. In England in one case a trialwas concluded within three days81 and in another within three weeks32from the date of the issue arising. The streamlining of procedures underthe legal reform carried out by the Minister of Justice and the new senseof urgency which now pervades our courts in regard to the avoidance ofdelays will all lead to elimination of further delays in the disposal ofcases.
Interim injunctions are only issued ex parte where there are stronggrounds and where all necessary facts are disclosed, and the plaintiffshows that there is a serious matter to be tried83 and where irreparableharm or damage would be done to him if the interim injunction is notissued.
In considering this question of harm or damage it is a well-recognisedprinciple of injunction law that the balance of convenience to the partiesand the nature of the injury which the defendant on the one hand, wouldsuffer if the injunction was granted and he should ultimately turn out to beright and that which the plaintiff on the other hand might sustain if theinjunction is refused and he should ultimately turn out to be right, shouldbe taken into consideration.81 Quite obviously different considerationswould apply where the state is a party than when it is a mere matterbetween private individuals. It may be that when an act is done in theinterests of the state and the welfare of the people as a whole some harmor damage would inevitably be the result to purely private interests and insuch case the rights of the individual have to be sacrificed in the largerinterests of the community as a whole. So also in times of emergency orgreat national cataclysms such as floods, famine, and pestilence urgentana immediate action would be necessary. In such cases too, applying theprinciple of “balance of convenience” the courts would not cause delay byissuing interim injunctions even if some individual or individuals have tosuffer irreparable harm or damage. Where the material relevant to the
“ Marsh (Wholesale) Lid. v. Customs and Excise Commissioners (1970) 2 QB 206.
K Lee v. Department of Education and Science (1967) 66 L.G. R. 211.
u D. S. Dissanayakc v. Agricultural and Industrial Corporation (1962) 64 N.L.R .283.
“ Yakkaduwe Sri Pragnarama Thcro v. Minister of Education (1962) 64 N.L.R. 283.
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VYTHIALENGAM, J. – Sirisena and Others v. Kobbekaduwa,
Minister of Agriculture and Lands
77
substantial dispute is wholly or mainly relevant to the application forinterim relief the court can proceed to trial and inquiry into the applicationfor interim relief at one and the same time85 where the defendant isprejudiced by the grant of an interim injunction he can come by way ofappeal to this Court86 or in urgent cases by way of an application inrevision as was done in two of these cases.871 therefore see little merit inthe submission that some delay in the implementation of governmentpolicy in the circumstances of these cases is such a vital factor that weshould give to the section an interpretation in order to avoid delays even ifsuch an interpretation should mean that the executive would have absoluteand autocratic powers to act as it pleased.
Indeed as Mr. Athulathmudali submitted we are prevented by theRepublican Constitution from giving an interpretation which would givethe impression of promoting or sanctioning acts done corruptly and malafide and thereby helping to promote the moral and cultural depravity ofthe people. Section 16(1) sets out the principles of state policy whichshould guide the making of laws and the governance of Sri Lanka whichincludes the administration of justice. Section 16(2) (f) sets out one ofthese principles as follows “raising the moral and cultural standards of thepeople”. One cannot do these by setting the seal of judicial or for thatmatter legislative approval on corrupt or mala fide acts or by seeming todo so and thus opening the door wide for the commission of such acts.
The learned Solicitor-General submitted that there was not one singlecase which had succeeded on the ground of mala fides. Mr. Jayawardenesaid that when objections were pressed the government had abandoned theacquisitions and these matters did not therefore come up for decision. TheSolicitor-General said that when the law officers of the state found that theacquisition were not justified they had advised against acquisition. Thismay be one reason why there are no such cases. Another was suggested byLord Radcliff in.the East Elloe case when he said “Indeed I think it plainthat the Courts have often been content to allow such circumstances (i.ethe grounds for invalidity) if established to speak for themselves ratherthan to press the issue to a finding that the group of persons responsiblefor the exercise of the power have actually proceeded in bad faith” – (atpage 870).
" Richard Perera & Others v. Albert Perera (1963) 67 N.L.R. 445 at 449.
Murugesu v. N. D. A. P. Co-operative Union Ltd. (1952) 54 N.L.R . 517.
“ The Ceylon Hotel Corporation v. V. C. Jayatunge (1969) 74 N.L.R. 442.
” SC 290774 and 291/74.
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(1978) Vol. 80N.LR.
If the Solicitor-General’s submission is restricted to mala fides in thesense of corruptly and fraudulently it may be that it would be difficult tofind a case where such an allegation had succeeded. But if it is used in thewider sense of covering most of the grounds of invalidity in the sense offraud on the statute or the Roman Dutch Law concept of fraudem legemthen there are many cases to be found in the books. We have in the courseof the argument been referred to a very large number of cases from manyjurisdictions and in some of which ouster clauses properly so called wereinvolved. It is not necessary to refer to all of them but a few call forcomment.
It is best to begin with the recent triology of Ceylon cases dealing withthe emergency regulations. Regulation 18(1) of the Emergency(Miscellaneous, Provisions and Powers) Regulations No. 6 of 1971enabled the Permanent Secretary to the Minister of Defence and ExternalAffairs to make an order for the detention of a person if he is of opinionthat such order is necessary with a view to preventing that person fromacting in any manner prejudicial to the public safety and to themaintenance of public order.
Regulation 19(1) of these regulations confers power on any policeofficer, any member of the Ceylon Army, Royal Ceylon Navy or RoyalCeylon Air Force, or the Commissioner of Prisons and certain otherpersons to search, detain for purposes of such search or arrest withoutwarrant any person
who is committing an offence under any Emergency Regulation
or
who has committed an offence under any Emergency regulation
or
whom he has reasonable ground for suspecting to be concerned in
or to be committing or to have committed an offence under any
Emergency Regulation.
Regulation 18(10) sets out that an order for detention made by thePermanent Secretary under Regulation 18(1) shall not be called inquestion in any court on any ground whatsoever. Regulation 55 excludesthe application of section 45 of the Courts Ordinance. Then section 8 ofthe Public Security Ordinance (Cap. 40) states “No emergency regulationand no order, rule or direction made or given thereunder shall be called inquestion in any Court”. Regulation 18(10) therefore is merely repetitive ortautologous.
sc
VYTHIAL1NGAM, J. – Sirisena and Others i: Kobbekaduwa,
Minister of Agriculture and Lands
79
In the first of these cases (supra) one Hirdaramani was detained by order,made by the Permanent Secretary under Regulation 18(1). His detention waschallenged by a Writ of Habeas Corpus on the ground that the detention wasnot for a purpose authorised in the regulation but for an extraneous ofulterior purpose namely the facilitating of the investigation into certaincontraventions of the Exchange Control Act and other laws and thereforemala fide. A Divisional Bench of three Judges of this Court heldunanimously on a consideration of affidavit evidence, that mala fides on thepart of the Permanent Secretary had not been established as a question offact. It was also held by de Silva, S. P. J. and Samarawickreme, J. (Fernando,C. J. dissenting) that Regulation 55 was not applicable to persons unlawfullydetained.
Silva, S. P. J. cited by way of example a person who was sentenced toimprisonment for attempted murder of the Permanent Secretary and who inprison made known his intention to do what he had earlier failed to achievewhen he got out of jail. Then if on his release the Permanent Secretary madean order for his detention under Section 18(1) for his own personal safety itwould not be open to this Court to say that it will^not question this orderbecause of the prohibition contained in Regulation 55. Samarawickreme, J.cited a more felicitous example. He said “For example, the order would notbe in terms of the Regulation and would be a sham if the PermanentSecretary were to make it for a purely private purpose such as the detentionof the rival to the woman he loved” – (at page 112).
i
H. N. G. Fernando, C.J. thought that since the power was vested in aperson specially selected by the Prime Minister and one in whom she wouldhave had absolute confidence and since there was appeal to her there weresufficient safeguards against abuse and so Regulation 55 was intended to beabsolute. He also thought that here we had done something which in thewords of Lord Wilberforce had so far not been done in England. This ofcourse was dependent on the presumption that the Permanent Secretarywould always act in good faith. But if he did not, what then? Could it be saidthat the intention of the Governor-General was that even such an act wasbeyond the reach of the Courts? Whatever be the degree of confidence onemay have “Every discretion is capable of unlawful abuse, and it is the Courtwhich must decide where this point is reached. Only within its lawfulboundaries is discretion free”.88
Wade — Administrative Law 3rd Edition 78.
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(1978) Vol. 80N.LR.
The second of these cases was Gunasekera v. de Fonseka 89. Here anotherDivisional Bench of this Court had no difficulty in holding that the arrest of adetainee by a Police Officer on the orders of his superior was unlawfulbecause he himself had no reasonable ground for suspecting the detainee tobe concerned in or to be committing or have committed an offence. On thevery day of his release on the orders of the Supreme Court the detainee wasagain arrested on an order made by the Permanent Secretary acting undersection 18(1) while the detainee was in the Colombo Law Library havingconsultations with his lawyers.
This gave rise to the third of these cases — Gunasekera v. Ratnavale(supra). Another Divisional Court held unanimously that the petitioner hadnot established mala fides on the part of the Permanent Secretary. They thenwent on to consider the exclusion clauses. Alles, J. agreed with thedissenting view of H. N. G. Fernando C. J. while Wijayatilake, J. agreed withthe majority view in Hirdaramani. Although the head-note says thatThamotheram, J. was of the same view as Alles, J. yet I am far from clear inmy own mind about this. It is true that he said at page 366 “ I have quotedthese passages from the three Lords in the East Elloe case who held in theface of a section like 8 of the Public Security Ordinance it was not open toCourt to inquire into an allegation of mala fide when the determination ororder in question was prima facie valid. With all respect I agree with theirreasoning”.
But earlier he said “Where the connection between the subject-matter ofthe power to be exercised and the purposes prescribed by a statute isexpressed to be determinable by the Competent Authority all that the Courtcan do is to see that the power which it claims to exercise is one which fallswithin the four corners of the powers given by the legislature and to see thatthose powers are exercised in good faith” – at page 363. Then he goes on tosay that challenging an order under section 18(1) is almost an impossibilityand that therefore judicial review has been reduced to a formality.
But he concludes this part of his judgment by saying “But it is clear thatthe jurisdiction of the Court is only taken away provided that the order onwhich the government is relying is an order ‘made under the Ordinance’. Itmust be made by the detaining authority in the proper exercise of its power.It would not be an ‘an order’ made under the Ordinance if it was mademerely in the colourable exercise of its power or if the detaining authorityexceeded the powers given to it under the Ordinance … The order must notbe made for an ulterior purpose, a purpose which has no connection with thesecurity of the State or the efficient prosecution of the war”.
"(1972) 75 N.L.R. 246.
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VYTH1ALINGAM, J. – Sirisena and Others i>. Kobbekaduwa,
Minister of Agriculture and Lands
81
These three cases dealt with Emergency Regulations, like the “peculiar”90case of Liversidge v. Anderson91 during the war when the House of Lords, bysome process of mental gymnastics, held that the words “if a man has” areequivalent to saying “if a man thinks he had” thus turning an objective testinto a purely subjective one. These were cases which related to anunprecedented state of emergency in Ceylon, when Courts are prone to givean interpretation which will not unduly hinder the government in takingmeasures for the security and safety of the state. Nevertheless it is clear thatthese three cases preserved the right of the Court to intervene in the case ofultra vires action even though wide language was used in the privativeclauses.
In two cases the Supreme Court in India held that mala fides had beenestablished against Chief Ministers, of State Governments, one being an actof political revenge and the other out of personal animosity. In the case of C.S. Rowjee v. The State of Andra Pradesh92 the question involved was thenationalisation of bus services in particular areas in the State. A Committeehad laid down criteria for determining the area to be taken up fornationalising the bus services and had laid down the order in which thisshould be done. This order was accepted by the corporation after detailedconsideration in February 1961 and was embodied in its annual report dated
and was published in April, 1962.
Under the Act it was the Corporation which had to form the “opinion”that for the purpose of providing an efficient, adequate, economical andproperly co-ordinated transport service it should be ran and operated by theState Transport undertaking and to be “satisfied” that such services should inthe public interest be provided for any area or route. The fact that theCorporation had accepted the report of the Committee and had published itshowed that they had formed the "opinion” and were “satisfied” thatnationalisation should be proceeded with in the areas in the order set out.
The General Elections were held in the State in February, 1962. The ChiefMinister and his party' candidates were contested by the bus operators inKurnool. The Chief Minister assumed office on 12th March, 1962, and on19th April, 1962 he had a conference with the corporation officials and hesuggested that the order in which the areas should be taken up fornationalisation should be changed and that the area in which the plaintiffs
operated their buses should be taken up first.
"Ridge v. Baldwin (1964) A.C. 40 at 73.
“(1964)51 A.I.R.S.C. 962.
(1942) A.C. 206.
82
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(1978) Vol. 80N.LR.
On 4.5.1962 the Corporation adopted a resolution changing the order.The plaintiffs then brought this action challenging the action on the groundof mala fides in that the action was taken on account of political rivalry andin order to ruin financially the Chief Minister’s political opponents and notfor the purpose of the Ordinance.
Ayyangar, J. in the course of his judgment said at page 972 “The firstmatter that stands out prominently in this connection is the element of timeand the sequence of events”. He went on to say “What the Court isconcerned with and what is relevant to the inquiry in the appeals is notwhether theoretically or on a consideration of the arguments for and againstnow advanced the choice of Kurnool as the next district selected fornationalisation of transport was wise or improper but a totally differentquestion whether this choice of Kurnool was made by the Corporation asrequired by section 68(c) or whether this choice was in fact and in substancemade by the Chief Minister and implemented by him by utilising themachinery of the Corporation as alleged by the appellants. On the evidenceplaced in the case we are satisfied that it was as a result of the conference of
and in order to give effect to the wishes of the Chief Ministerexpressed there that the schemes now impugned were formulated by theCorporation” – (at 978).
It is possible to regard this case as one where an authority entrusted with adiscretion had in the purported exercise of its discretion acted under thedictation of another body or person, in which case such an act would also beinvalid. Yet in this case the Chief Minister had claimed in Parliament theright to lay down general principles of policy for the guidance of theCorporation and in changing the order he was acting for purposes of politicalrevenge and to ruin his political opponents financially, and not for thepurposes of the Act.
The other case is Pratap Singh v. The State of Punjab (supra) where theSupreme Court held that the act in question was not for the purpose of theenabling statute but in order to wreak personal vengeance. The Petitioner inthat case was a Civil Surgeon in the employ of the State Government and in1960 he fell from favour of the Chief Minister over his treatment of the ChiefMinister’s son and because he was not prepared to accommodate the ChiefMinister’s wife in her demands for drugs. He therefore decided to retire andin December he was granted leave preparatory to retirement on reaching 55years which was on 15.6.1961 and this grant of leave was gazetted on21.1.1961.
On 15.1.1961 a weekly, The Blitz carried an article against the ChiefMinister and which contained all the allegations of fact relied on bythe petitioner in the case. On 18.3.1961 his wife wrote to The Blitzconfirming the allegations and in the same month she circulated amongthe members of Parliament all these allegations. On 3rd June 1961 the
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Chief Minister who was also the Minister of Health revoked the ordergranting leave, made order calling the petitioner back to service andsuspending him pending inquiry into certain allegations in regard to hisconduct while he was in service.
The Supreme Court held by a majority of three to two that the impugnedorders were made to wreak vengeance and that the impugned orders werevitiated by male ftdes. In the course of the judgment it was said “the attackon the orders may be viewed from two related aspects – of ultra vires pureand simple and secondly as an infraction of the rule that every power vestedin a public authority has to be used honestly, bona fide and reasonably . . .where a power is exercised for a purpose or with an intention beyond thescope of or not justified by the instrument creating the power in legalparlance it would be a case of fraud on a power though no corrupt motive orbargain is imputed (page 82).
In the Canadian case of Roncarelli v. Duplessis (supra) the appellant wasthe owner of a restaurant in a busy section of Montreal and for a continuousperiod of 34 years had a liquor licence which was necessary for the financialsuccess of his restaurant business. He became involved with, a religous sectknown as the Witnesses of Jehovah. There was violent reaction to this sectand meetings were broken up, property damaged and individuals ordered outof communities by the Roman Catholics. The provincial administrationdecided to act and large-scale arrests were made of persons selling thepublications of the sect for peddling wares without a licence.
Out of about 1000 persons so arrested about 380 were bailed out by theappellant and promptly went back to selling the publications again.Mounting resistance stopped surety bail and imposed cash bail and othermeans of crushing the movement were sought. One of the matters lookedinto was the appellant’s position and his use of money which he obtainedfrom profits of the liquor licence, a privilege given by the State, to further themovement.
Under the Act the cancellation of a permit was in the discretion of theliquor Commission and the appellant’s licence was cancelled and applicationfor renewal refused. It was held that the cancellation was malicious and notfor the purpose of the Act by a majority of six to three. In the course of hisjudgment Real J., said “from the evidence of Mr. Duplessis andMr. Archaubault (of the Liquor Commission) it appears that the action takenby the latter as general manager and sole member of the Commission wasdictated by Mr. Duplessis as the Attorney-General and the Prime Minister ofthe province and that step was taken as a means of bringing to a halt theactivity of the Witnesses, to punish the appellant for the part he had played,not only by revoking the existing licence but in declaring him barred fromone for ever, and to warn others that they similarly would be stripped ofprovincial privileges if they persisted in the activity . . .” (pages 133,134).
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He continued “A decision to deny or cancel such a privilege lies withinthe discretion of the Commission, but that means that decision is to be basedupon weighing of considerations pertinent to the object of the administration.No legislative Act can without express language be taken to contemplate anunlimited, arbitrary power exerciseable for any purpose, however capriciousor irrelevant regardless of the nature or purpose of the statute. Fraud andcorruption in the Commission may not be mentioned in such statutes, butthey are always implied as exceptions. Discretion necessarily implies goodfaith in public duty; there is always a perspective within which a State isintended to operate and any clear departure from its lines or objects is just asobjectionable as fraud or corruption.” (Page 140).
“What could be more malicious than to punish this licensee for havingdone what he had an absolute right to do in a matter utterly irrelevant to theLiquor Act? Malice in the proper sense is simply acting for a reason andpurpose knowingly foreign to the administration, to which was added herethe element of intentional punishment by what was virtually vocationoutlawing . . .” (page 141), and again “a punishment which inflicted on himas it was intended to do, the destruction of his economic life as a restaurantkeeper within the province.”
It was also held that since it was a malicious act no malice under section88 of the Canadian Civil Procedure Code was necessary and the defendantswere ordered to pay $ 33,123.53 cts. as damages. It was an action in tort likethe Ceylon case of A. K. David v. M. A. M. M. Abdul Cader (supra) whichheld that an applicant for a statutory licence to run a cinema was entitled todamages if there has been a malicious misuse of the statutory power togrant that licence. But the essential thing in both cases was that a maliciousmisuse of discretionary power was held to be ultra vires and null and void,where the public authority was acting unlawfully but without committingan actionable wrong or tort then the aggrieved party would only be entitledto a declaration. But if the public authority acted unlawfully and alsocommitted an actionable breach of duty, such authority would also be liablein damages.
Australian Courts too have taken the same view. In the case of theMunicipal Council of Sydney v. Compwell et aln the Municipal Council hadstatutory power to acquire land for extending streets and also for carrying outimprovements in or remodelling any portion of the city. In June the Councilacquired land for the extension of a street and an injunction was issued onthe ground that the acquisition was not for that purpose but for the purpose ofgetting a benefit from the increment in the value of the land in consequenceof the acquisition.
(1925)A.C. 338.
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In November another resolution was adopted to acquire the identical landfor the improvement and remodelling of the area in the vicinity as well as forthe extension of the street. At that time the Council had no plan forimprovement or remodelling the area and no such plan was ever consideredor proposed to the Council. It was established in evidence that ihe wording ofthe November resolution was suggested by the Council’s solicitors. ThePrivy Council held that the new proposal was also for the identical purpose,that the area affected was identical and that the acquisition was invalidbecause “a body such as the Municipal Council of Sydney, authorised to takeland compulsorily for specified purposes will not be permitted to exercise itspowers for different purposes and if it attempts to do so Courts willinterfere”- (at page 343).
In King v. Hickman ex parte Fox & Clinton94 the Court had to consider theeffect of an ouster clause. This was in the widest possible terms and set outthat a decision of the Board “shall not be challenged, appealed against,quashed or called into question or be subject to prohibition, mandamus orinjunction in any Court on any account whatever.” The question was whethera particular matter was within the ambit of the “coal mining industry.” TheCourt held that any decision which upon its face appears to be within powerand is in fact a bona fide attempt to act in the course of its authority shall notbe regarded as invalid. But prohibition would lie in respect of a decision of aBoard on an erroneous finding that the matter was within the ambit of thatindustry.
The position is identical in South Africa where as in Ceylon the RomanDutch Law prevails. In the case of Van Eck N O. and Van Rehsburg N.O. v.Etna Stores93 certain quantity of bags of rice were seized under a war timemeasure which gave power to effect such seizures as may afford evidence ofa contravention of any prohibition or failure to comply with anyrequirements imposed by virtue of these regulations. The seizure howeverthough ostensibly for this purpose was in reality to obtain delivery of the ricefor the furtherance of the food distribution scheme. The Court held that itwas illegal although officers had acted out of good motive.
Davies A.J.A., said, “To pretend to use a power for the purpose for whichalone it was given, yet in fact to use it for another is an abuse of that powerand amounts to mala fides. For to profess to make use of a power which hasbeen given by a statute for one purpose only, while in. fact using it for adifferent purpose is to act in “fraudem legis” as distinct from merely using itfor another purpose which is “contra legem”.
70 C.L.R. 598.
(1947) 2 S.A.L.R. 984.
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The law in regard to where Courts will interfere with the exercise of itsrevisionary powers was set out in the case of “The African Reality Trust Ltd.,v. Johannesburg Municipality (supra) Wessels J., said at page 913, “We alsoagree with him (Bistowe J.,) where he says, “If a public body or individualexceeds its powers the Courts will exercise a restraining influence and ifwhile ostensibly confirming itself within the scope of its powers, itnevertheless acts mala fide or dishonestly or for ulterior reasons which oughtnot to influence its judgment or with an unreasonableness so gross as to beinexplicable except on the assumption of mala fides or ulterior motive, thenagain the Courts will interfere. But once this decision has been honestly andfairly arrived at upon a point which lies within the discretion of the body orperson who has decided it, then the Court has no functions whatever.”
In the case of The Minister of Justice et al. v. Musarurwa and Nkomoet al. (supra) the Minister by using the provisions of two Acts and doing actspermitted by each achieved the purpose of detaining a person which he couldonly have done under a third Act. It was held that this was unlawful as it wasfor an ulterior motive andJ or in excess of his powers although it was donebona fide. Two decisions of the House of Lords in England loomed large inthe argument before us. The first was Smith v. East Elloe (supra), where thevalidity of the orders for compulsory purchase of land was challenged asbeing wrongful and in bad faith. Under the 1946 Act an aggrieved partycould question the order within a period of six weeks under para 15 of theschedule on the ground that the authorisation of the compulsory purchase, “isnot empowered to bei granted” under the relevant Act or that therequirements of the 1946 Act have not been complied with. Para 16 provided“subject to the provisions of the last foregoing paragraph a compulsorypurchase order. . . shall. . .not be questioned in any legal proceedingswhatever.”
The plaintiff did not question the order within the six weeks period.Applying the literal test Viscount Simmonds, Lord Mortor of Heirylon andLord Radcliff were all of the opinion that the meaning of the words used inpara 16 was too plain to be qualified by any presumption in regard to badfaith prayed by the plaintiff. The minority, Lord Reid and Lord Sommervilleof Harrow held that they were not plain enough to deprive a persondefrauded of his remedy.
Thus the House of Lords held in this case that all that the Court could dowas to follow the plain meaning of the plain words of the ouster clausethough there were numerous conflicting opinions on what the plain meaningwas, and though a minority of their Lordships were prepared to hold thatthere was an implied exception for fraud, none of the relevant case lawrelating to the Courts’ disregard of “no certiorari clauses” and issuingcertiorari to quash for excess of jurisdiction and other decisions in regard tothe fundamental principles of enforcing jurisdictional limits were cited or
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■ considered. “It cannot often be that the House of Lords decides an appealwithout any mention of the main principle of law which ought to be in issue.Had reference only been made to the decisions holding that a no certiorariclause will not bar certiorari in case of fraud, the whole case would havebeen put in a different light.” (H. W. R. Wade).
In regard to the unsatisfactory results of the case Wade says that accordingto this decision, “many kinds of unlawful action are not challengeable evenwithin the six weeks. This extraordinary conclusion would allowuncontrollable abuse of the statutory power and is clearly contrary toprinciple.”96 This case has now been repudiated by the House of Lords inAnisminic and has not been followed by the Indian Supreme Court.
However, it remains in the books and has recently been followed in thecase of Routh v. Reading Corporation, where the Court of Appeal withoutmaking any reference to Anisminic, held in 1971 that a compulsory purchaseorder could not be challenged even on the grounds of bad faith outside theprescribed time limit. In 1973 in the case of Jeary v. Chailey, Orr L.J., said inreference to an ouster clause in the 1962 Town and Country Planning Actthat it was common ground that it “does not apply where the planningauthority in serving the ejectment notice acted outside the statutory powers .conferred upon them.” These reports are not available here, but the facts aretaken from 1974 March Modern Law Review, page 222.
However, it now seems clear that the ouster clause will be treated as astatute of limitation, though the time allowed was described by Lord Radcliffas being “pitifully inadequate.” Wade states “The House of Lords appear toassume that the verbal similarity between the Anisminic and East Elloe typesof ouster clauses means that they must be construed similarly. But whereaccess to the Courts is restricted only in terms of time, the Court mightreasonably treat the provision merely as a statute of limitation. On this basisthe conflicting decisions of the House of Lords could to some extent bereconciled, (supra 50).
In fact earlier in Uttoxeter UDC v. Clarke et al97 although on the facts it washeld that the acquisition was not for an ulterior purpose, para 16 was given aliteral meaning but treated as a statute of limitation. The Court said at page1321, “In its wisdom Parliament appears to have decided that the provisionof a limited period within which the action of the authority and Minister canbe questioned before the Court is a suitable procedure in cases such as thepresent and if H.M’s lieges do not adopt the procedure laid down byParliament, they cannot seriously suggest that they are suffering if having
* Wade – at 346, 347 .
(1962) 1 All E. R. 1318.
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laid by and let the time run out, they then seek to develop an argumentagainst the propriety of the order.”
This was also the basis on which Wijnyatilake J., distinguished the EastElloe Case from the ouster clause he was dealing with in the secondGunasekera case. He said “there the party affected had a right which was notexercised within a set period. In my opinion the rules of interpretation in thatcase should not be extended to a case such as this where the very right toquestion the order is challenged and there is no question of prescription.”
It was stated in the East Elloe Case that no real hardship was caused to theplaintiff because if she could establish bad faith on the part of any official,she could proceed personally against such official. However, it was from theoutset doubtful if on the facts the plaintiff in that case could have succeeded.Her property was requisitioned for housing evacuees in 1940, and acompulsory purchase order was made in 1948 but it was not derequisitionedtill 1951. She brought an action for damages in 1952 and succeeded ingetting £850/ as damages for trespass. She challenged the compulsorypurchase order only in 1954, six years later when her house had beendemolished and Council houses had already been put up.
It is also interesting to note that in subsequent proceedings against Pywellthe clerk concerned of the Council and a representative of the Ministry fordamages for conspiring to injure, her action was dismissed, Diplock J.,holding that there was no conspiracy, that damages for trespass had alreadybeen recovered and he was not satisfied that the clerk had in fact acted in badfaith. These cases are not reported but the facts have been taken from S. A.de Smith93 and Hood Phillips.99
The effect of this case is, as has been pointed out in Halsbury that, “ifhowever, public works had been constructed or third party rights had accruedon a site subject to a compulsory purchase order, on the assumption that theorder was impregnable, it is unlikely, despite the decision in Anisminic, thata Court would countenance a challenge to the order outside the statutoryperiod.100
In the Anisminic case the principle enunciated was that a statute, byproviding that a determination or an order of an authority or body cannot bechallenged in legal proceedings, does not prevent the Courts from holding adetermination or order to be a nullity for being outside, the jurisdiction of the
"(1956) 18 Mod. L.R. 541
w Leading Cases in Constitutional & Administrative Law – notes 396. 397.
in,>Ha!sbury 4th Edition Vol. 1 pg. 25 para 22.
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authority or body. In regard to this, the House was unanimous but as towhether the error was within jurisdiction or not the House was divided threeto two. In this case, the House of Lords has made it perfectly clear thatnullity is the consequence of all kinds of jurisdictional error, e.g. breach ofnatural justice, bad faith, failure to deal with the right question, and takingwrong matters into account. So much so that Lord Diplock said “Currenttrends may soon enable us to say of the English system, there is no questionthat cannot be turned into a jurisdictionable question.”
This decision has been critcised for stretching the doctrine of ultra vires toan extreme point, and that it leaves the Commission with virtually no marginof legal error, It comes perilously close to saying that there is jurisdiction ifthe decision is right. But none if it is wrong. D. M. Gordon Q.C., of theVictoria Bar points out that “one may well conclude that this case suppliesanother instance of the familiar phenomenon – a hard case making of badlaw”'.101 Since the amount involved in this case was £ 4 million it has alsobeen called a “value judgment.”
But the Courts are no more willing to see injustice done by misapplicationof the law than by technical excess of power. The Courts are entitled to applythe rule of interpretation against interpreting a law against causing injustice,if it can be done. Wade points out, “Whether there is excess of jurisdiction ormerely error within jurisdiction, can be determined only by construing theempowering statute which will often give little guidance, it is really aquestion of how much lattitude the court is prepared to allow, and when as inthe Anisminic case, a claim worth £ 4 million appears to have been wronglyrejected, the Court will naturally be disposed to intervene.”102 This willequally be true where State programmes are involved and will be allowed toprevail over private interests if the welfare of the people as a whole demandsit.
It may indeed be that the flexibility of the rules of interpretation hasenabled judges to import into their decisions their own preconceived notionsof what is reasonable and what is fair and just in the social and economicfields, and this may have resulted in a few bad decisions. Friedman pointsout that “Even without the abundant illustration of contradictory judicialapproaches to the interpretation of statutes it is patent that'these three rulescancel each other out. By emphasizing either the one or the other the judgescan adopt a broad or narrow approach, a reformist or conservativeattitude.”103
101 (1971) 34 Mod. L.R. II.
m Canadian Bar Review (1947) 1277.
im Administrative Justice (1971).
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In his Tagore lectures in Calcutta University in 1970I(M quoting fromBerjafield and Whitmore’s principles of Australian Administrative Law hepoints out the dangers of extending the scope of judicial review indefinitelyand in a manner which defies definition. He was there concerned withmaking a plea for a developed and ascertainable body of administrative lawwhich until recently had been rejected as being alien to the principle of theunity of the common law. Dicey rejected its existence; Lord Hewart ChiefJustice, of England dismissed it in 1936 as “continental jargon” and asrecently as 1963 Lord Reid found it possible to say in Ridge v. Baldwin “Wedo not have a developed system of administrative law – perhaps becauseuntil fairly recently we did not need it. So it is not surprising that in dealingwith new types of cases the Courts have had to grope for solutions.”
Indeed in the post-war years the spirit of abnegation and sacrifice of thewar years lingered on and the reconciliation of the country to a great deal ofGovernment by executive decree continued and the Courts seemed to haveforgotten the art of applying to “the ever changing conditions of the world,the never changing principles of law.” So much so that Patrick Devlin, as hethen was, was prepared to give the common law its “death certificate.” Thiswas a period in which the leading cases made a catalogue of abdication anderror. During the last few years, however, all this has changed and there hasbeen a reactivation.
In these lectures he makes a plea for a special administrative tribunal andpoints out that ‘The countries with a fully fledged system of administrativejustice are headed by a tribunal of a status equal with that of the highest civilcourt, and staffed by highly trained lawyers with a lifelong experience inadministration.’’(page 80). He notes too that English Law is moving in thesame direction and quotes the Padfield case as being comparable with thedecision of the council d’Etal in the Affaire Barrell (1954) where theMinister of Interior was compelled to disclose the evidence for the exclusionof certain candidates suspected to be communists from admission to theNational School of Administration and annulled the decision of the Minister.In fact in two other cases Coleen105 and Ashbridge106 the English Courts havemoved nearer the American rule of invalidating acts on the ground ofinsufficiency or of no evidence.
But Friedman at no time denied the right or the necessity of judicialreview of administrative acts but insisted that it should be confined to thetwo main grounds (a) excess of statutory powers, and (b) objectionable
(1956) 9 Current Legal Problems 15.
'“Coleen Properties Lid. v. Minister of Housing and Local Government (1971) I All E. R. 1049
lm Ashbridge Investments Ltd. v. Minister of Housing and Local Government (1965) I W.L.R. 1320
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motives. He said eleswhere107 “Despite the extreme difficulty of extractingclear principles from the welter of decisions, it is submitted that the two maincauses of invalidity for ultra vires are excess power (exces de pouvoir) andabuse of power (detouruement de pouvoir). The first means checking legalacts by the terms of the enabling statute, the second means a check onadministrative discretion where motives alien to the administrative purposehave prevailed. The position is much confused however through thenebulous test of reasonableness, which the Courts apply to administrativeactions.”
Clearly the second of these grounds catches up bad faith or malafides fordealing with Lord Mac Naghten’s three separate requirements for invalidity,namely “it must keep within limits of the authority committed to it. It mustact in good faith and it must act reasonably.” He states, “The last propositionis involved in the second, if not in the first. This seemed to mean that Courtswere limited to an examination of excess of power and improper motive”-(at page 383).
It is undoubtedly true that in spite of the very lucid exposition of what ismeant by “reasonably” in the Wednesbury Corporation Case by Green M. R.in which he quoted the example given by Lord Warrington of a red-hairedteacher being dismissed because she had red hair; some unreasonabledecisions have been given on this ground. The most notorious case is what isknown as the Poplar Casem in which the House of Lords held that thedecision of a local body, which had authority to decide the salaries andwages of their employees, “as they may think fit;” to pay $ 4 per week tomen as well as women employees, was unreasonable and thereforeexcessive. Lord Atkinson delivered himself of the opinion that, “The Councilallowed themselves to be guided in preference of some eccentric principlesof socialist philanthrophy or by feminist ambition to secure equality of thesexes in the matter of wages in the world of Labour.”
Another such decision was the case of Prescott v. BirminghamCorporation.'™ In that case the Council had the authority to charge “suchfares and charges as they may think fit” in the bus and train services theyoperated. They decided to permit all men over 70 and all women over 60 totravel free within certain prescribed hours. The Court of Appeal held that thiswas ultra vires on the ground that the Council was not at liberty to use theratepayers’ money to inaugurate a new form of social subsidy.
I0’ The New Public Corporation (1946) 10 Mod L.R. 380, 381.
Roberts v. Hopwood (1925) A.C.
'”(1955) Ch. 210.
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Judges are human and essentially men of their time, place andcircumstance. But, “the best of them have always been conscious of thishuman aspect of judicial responsibility that the agony of judicial decision isto be aware of the policy choices without determining them by personalpredilection and that the one guiding thought was self-limitation of the Courtlest it should become a non-elected lawmaker superseding the legislature.”Friedman on Property Freedom and Security."0 An awareness of this dangeris in itself a sobering thought and a strong check on any such tendencies.
The Solicitor-General also submitted that our section 241 does nothingmore and nothing less than section 21 of the English Crown ProceedingsAct, 1947. In considering this submission, it is important to bear in mind thefact that whereas the English Crown Proceedings Act conferred on thesubjects a right which they never had before, that of suing the Crown, exceptin certain circumstances, our section 24 takes away a privilege which thesubject always enjoyed. The Solicitor-General pointed out that the subject inEngland could always proceed against the Crown by way of Petition of Rightand the granting of a fiat by the Attorney-General was a mere formality andsubmitted that this was a mere matter of form than of substance.
In this connection he quoted a passage from an article by Sir ThomasBarnes,1" at that time Procurator-General and Solicitor-General of England,as follows: “Everybody knows” said Lord Justice Bowen in In re Nathan,“that the fiat is granted as a matter I will not say of right, but as a matter ofinvariable grace by the Crown, wherever there is a shadow of claim maymove it as the constitutional duty of the Attorney-General not to advise arefusal of the fiat unless the claim is frivolous.”
But the classes of claims which could be made the subject of a Petition ofRight was itself restricted. “The only cases in which a Petition of Right isopen to the subject are where lands or goods or money of a subject havefound their way into the possession of the Crown and the purpose of thePetition is to obtain restitution or if restitution cannot be given, compensationin money or where a claim arises out of a contract as for goods supplied tothe Crown or to the public service. It is in such cases only that instances ofPetition of Right having been entertained are to be found in our books,”(Feather v. Queen) (ibid).
However, the Crown could not be sued in tort although such an actioncould be brought personally against an officer of the Crown responsible for
"“(1956) Mod L R. 464, 465.
111 Canadian Bar Review (1948) 387.
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the act – Releigh v. Goschen."2 The subject had no effective remedy againstthe Crown in the Country Court and owing to the peculiar procedure thesubject was at a disadvantage in some aspects. In 1921, Lord Borkenheadappointed a committee which reported and submitted a draft Bill in 1927, butnothing was done till 1947 when as a result of the pressure of strong publicopinion the Crown Proceedings Act was passed.
In Ceylon the subject can sue the Crown in contract as for instance forsalary earned by a Public Servant C. Kodeswaran v. The Attorney-General, 112 113and cases referred to therein – but not tort until recently. So also can aninjunction be issued restraining a servant of the Crown. Although it wasconceded as axiomatic that no injunction lies against the Crown in W. H.Buddhadasa v. N. Nadarajah: (supra) it was held that it could be issuedagainst the official in his personal capacity. In the case of Mallika Ratwatta v.The Minister of Lands, (supra) this Court issued a temporary injunctionrestraining the Minister from proceeding with the acquisition of certain landswhere it was challenged on almost identical grounds as in the instant case.
So also in the case of Government Agent Northern Province v.Kanagasunderam, (supra) it was held that an injunction could be issuedagainst the Government Agent restraining him from acquiring a house wherehis act was shown to be an excess of his powers. In Land Commissioner v.Ladamuttu Pillai, (supra), the Privy Council set aside the injunction issued, onthe ground that the Land Commissioner could not be sued nominee officii ashe was not a Corporation sole, and also because the injunction would haveprecluded a new determination under Section 3 i.e which had been broughtin by an amendment to the Ordinance after the impugned determination hadbeen made and the Act itself had since been amended. Although the PrivyCouncil upheld the judgment of the Supreme Court that the LandCommissioner was not entitled to make the determination he had made, thisquestion of whether an injunction could be issued or not, was left open.
A consideration of the two sections immediately reveals a vital differencein the wording. Section 21(1) in so far as it is relevant to the purpose of thiscase is as follows:- “In any civil proceedings by or against the Crown theCourt shall subject to the provisions of this Act have power to make all suchorders as it has power to make in proceedings between subjects andotherwise to give such appropriate relief as the case may require; Provided,that (a) where in any proceedings against the Crown any such relief is soughtas might in proceedings between subjects be granted by way of injunction or
112 Supra 8.
1,1 (1970) 72 N.L.R. 337.
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specific performance, but may in lieu therof make an order declaring of therights of parties …” Subsection 2 is identical with our section 24(2).
This section does not contain the words of limitations which have beenput into our section 24 namely, “in respect of any act done or intended orabout to be done by any such person or authority in the exercise of anypower or authority vested by law in any such person or authority.” In otherwords, while in England section 21(1) enables a Court in civil proceedingsagainst the Crown to grant any such relief as it could have granted inproceedings between subjects, except to issue injunctions or to order specificperformance our section protects the persons concerned against the issue ofan injunction only in respect of acts done or intended or about to done in theexercise of any power or authority vested by law. In other words, theprotection is afforded only if the act done is within the four corners of thepower or authority vested by law; otherwise it would not be in the exercise ofthat power or authority.
If this was not the intention, then there is no reason why these wordsshould have been dragged in and thrown into the section. If I understand theSolicitor-General correctly, he stated these words were put in because the actshould be in the exercise of any power or authority vested by law and notany act at all. But once one concedes that it must be an act in the exercise ofany power or authority vested by law, it follows that the exercise of anypower must be within the terms of the power and not ultra vires the power. Itis of significance to note that the decision of this Court in the Hirdaramanicase was delivered on 30th December, 1971, and the first of the Gunesekeracases on 21st January 1972 while the Act No. 18 of 1972 received the assenton 11th May, 1972. It has to be presumed that Parliament was aware of thesedecisions and the conclusion of these words is a clear indication that nochanges in the law as stated in these cases was intended.
In view of this significant.difference, the English cases on which it washeld that an interlocutory injunction will not lie, are not relevant. The first ofthese cases is Underhill v. Ministry of Food (supra). There the challengeagainst order was on the ground of excess of power as well as bad faith. Theplaintiff asked for an interim injunction pending trial but at the argumenttheir counsel conceded that in view of the Crown Proceedings Act 1947, hewould be asking for an alternative remedy of an interlocutory declaration.Romer J., held that the declaration referred to in the section was a finaldeclaration and that the Court could not issue an interlocutory declaration.
In the case of International General Electric Co., of New York Ltd., et al.v. The Commissioner of Customs & Excise, (supra) the Court of Appealapproved the decisions in Underhill, Upjohn L.J., saying that he could notunderstand how there could be “such an animal” and observed, “It seems to
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me quite clear that, in proceedings against the Crown it is impossible to getanything which corresponds to an interim injunction. But he said that incertain cases, it was proper on a motion or on a summons under R.S.C. 25 &2 to make some declaration of right on some interlocutory proceedings.
In the case of Harper v. Home Secretary"J the question was left open,while in Merricks v. Heathcoat Amory and the Minister of Agriculture"5 anattempt was made to obtain an injunction in his personal capacity or in someother capacity; it was held that from start to finish he was acting in hiscapacity as an officer representing the Crown and in such a case it wasconceded that no injunction could be obtained against him. Such concessionswould come easily to lawyers in bred in the tradition that no injunctionwould lie against the Crown.
The lack of provision in the Crown Proceedings Act 1947 to the power toissue interim injunctions have been criticised. Wade calls it, “an unjustifiablelacuna, for interim relief may be just as necessary against the Crown asagainst any other defendant,”"6 S. A. de Smith states that the Act merely re-affirmed “the rule that no injunction would lie against the Crown;” and that,“the most unfortunate aspect of the present law is that no interlocutary reliefcan be obtained to restrain an unlawful act done by the Crown or its servants. . . ”"7 Street points out that this “may cramp the development of ouradministrative law.”"8
Mr. Thiruchelvam who appeared for some of the parties noticed,submitted that the term “injunction” as used in section 24(1) referred only toa permanent injunction and not to an interim or interlocutory injunction. Hepointed out that the proviso to that section by making provisions for the issueof a declaration of the rights of parties in lieu of an injunction clearly showedthat what was referred to was a permanent injunction, because one cannotissue an interim declaration of the rights of parties. Such a declarationdeclaring the rights of parties must of necessity be a final declaration. AsRomer J., pointed out in Underhill’s case, “It is an unheard of suggestion thatan interlocutory declaration should be made which might be in precisely theopposite sense of the final declaration made at the trial. .. .”
Harper v. Secretary of State for the Home Department (1955) 1 Ch. 238.
(1955) 1 Ch. 567.
Wade – Administrative Law 3rd Edition 114.
S. A. de Smith 464.
IIH
(1948) 11 Mod. L.R. 139.
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Commenting on the Underhill case J. A. C. Griffith1,9 states, “since theAct clearly intended declarations to take the place of injunctions, and sinceinterlocutory injunctions cannot be replaced, with the same effect by interimdeclarations, then the Act must refer only to final injunctions. Thereforeinterlocutory injunctions are not affected by the Act and may be grantedagainst the Crown.” I am much attracted by this submission but in view ofmy decision that where an act is ultra vires the power granted by a statute toa repository of the power, it is not an act done in the exercise of the powerand that therefore section 24 does not apply to confer on him an immunityfrom the issue of an injunction whether final or interlocutory, it is notnecessary for me to decide this question or also the submission that in theexercise of the inherent powers of the Court an order to stay proceedings foracquisition could be made pending final determination of the action.
This also disposed of the submission made by the Solicitor-General thatthis section merely took away one remedy and substituted another remedyfor it because there is no substitution of another remedy for an interlocutoryinjunction. He also submitted that the section did not oust the jurisdiction ofthe Court and that the cases cited in regard to the ouster clauses were notapplicable. He said that the Court could continue to hear and determine thecases and if at the end of the trial the Court was satisfied that plaintiff hadsucceeded it could issue a declaration of his rights. One has only to take aconcrete example to expose the underlying fallacy of this submission.
Let us suppose that a man has flourishing business in a building in whichhe and his family also reside and that it is his sole means of livelihood. If aMinister vested with power to acquire premises for a public purpose decidesto acquire these premises purely out of personal animosity or for politicalrevenge then, if he is not restrained by an interim injunction, he can destroythe building and throw the man and his family and goods out on the streets.In such a case if the man eventually succeeds in his action of what good isthe Court’s declaration of his rights to him?
The much vaunted dictum of Gratiaen J., that “Courts of Justice havealways assumed so far without disillusionment, that their declaratory decreesagainst the Crown will be respected”120 will be of no avail to him because hecannot get his building or business back. He can only get compensationwhich even without the aid of the declaration of his rights by Court, he is inany event always entitled to, under the Land Acquisition Act. So that thesection bars the Courts from giving him any effective relief and to that extentit ousts the jurisdiction of Courts. Nor is the remedy provided, in the realsense any remedy at all.
Mod. L.R. (1950) Vol. 13 502.
Attorney-General v. Sabaratnam (1956).
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It was also argued that where a land is acquired for a public purpose, itmay happen that it belongs to a political opponent or a personal enemy. Insuch a case, the Courts would not interfere if the “dominant,” the “real” the“true”, or the “principal” purpose was public interest and not political orpersonal revenge. The mere fact that a scheme serves some other purpose inaddition to its authorised purpose is not a legal objection, provided that theauthorised purpose is the genuine motive.121 In the Etna Stores case DaviesAJA said that it is the real purpose which has to be ascertained. In Rowjee’scase it was stated that whatever be the inclinations, desires or motives of theChief Minister, if the Corporation by an independent consideration of thesituation decided on the formulation of the impugned schemes their validitycould not be successfully impugned merely because the schemes satisfied thealleged grudge which the Chief Minister bore to the affected operators.
In Pratap Singh’s case the Court said that when confronted with a casewhere the purposes sought to be achieved are mixed, some relevant andothers alien to the purpose then the Courts have on occasion resolved thedifficulty by finding out the dominant purpose which impelled the action. Ifin such a situation the dominant purpose is unlawful then the act is unlawfuland it is not cured by saying that they have another purpose which waslawful.
The Solicitor-General also argued that if the interpretation whichcommends itself to me is given, then the sections has achieved preciselynothing because an order which is within jurisdiction needs no protectionand cannot be questioned by the Courts on the ground that it was made inerror. On the basis of the rule of construction “ut res magis valeat quampereat,” the Courts, he submitted must give it an interpretation which willgive it life and force and not one which will reduce it to futility. This isperfectly true. But a possible explanation is that which was suggested bySamarawickrema, J„ in the Hirdaramani case, although it did not commenditself to H. N. G. Fernando, C.J.
Samarawickrema, J., said at page 120, “The question has been posed as towhat has been gained by the inclusion of clause 55. It is no doubt true that inlaw the writ of Habeas Corpus will not issue to review a valid decision of astatutory authority. But it is true that Courts sometimes tend to review suchvalid decisions . . . section 45 of the Courts Ordinance empowers a writ toissue to bring up “the body of any person illegally or improperly detained.”The use of the word improperly might be regarded as authorising a Court toinquire into the impropriety of a legal and otherwise lawful detention.Whether this is in law a possible view or not, the draftsman may haveincluded the clause to preclude any possibility of a review by Court of
131 Westminster Corporation v. London North Western Railways (1905) A.C. 424.
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detention made by a valid detention order in view of past experience whichaccording to Rubinstein showed that the Courts were sometimes ready toreview valid decisions.”
So here too, where there is an obvious and palpable error of law whetheron the face of the order or otherwise, or on the facts, in the case of an ordermade within jurisdiction, the Courts may be tempted to interfere if grave andirreparable damage is done by such an order. It is possible, therefore, that thisprovision was included to ensure that in such a case no injunctions whetherinterim or permanent, are issued.
Mr. Jayewardene referred to certain cases under the Police Ordinancewhere language almost identical with that of the words of limitation insection 24 was held not to protect mala fide or malicious acts. Section 88 ofthe Police Ordinance (Chapter 53) sets out that all actions against any personfor “anything” done or intended to be done under the provisions of thisOrdinance or under the general police powers hereby given shall becommenced within three months” (formerly section 79). In the case ofIsmalanne Lokka v. Harmanis'22 it was held that this limitation does notapply where a police officer is found to have acted maliciously and not in thebona fide exercise of his official duties. It is unnecessary to refer to the othercases, but it is sufficient to say that these cases do lend support to the viewthat an act which is mala fide and in excess of one’s statutory powers is notprotected.
He also relied on certain cases decided in respect of section 461 of theCivil Procedure Code which requires notice to be given where a publicofficer is sued, in respect of any official act done by him. But these are nothelpful for two reasons. Firstly, there is a difference in the wording of thetwo sections. Section 461 refers to any act “purporting to be done” whereassection 24(1) refers to “any act done, intended or about to be done.” Theword “purporting” does not appear in section 24(1), and this makes a vitaldifference. The words of section 24(1) are more restrictive and does notextend to acts purported to be done or in the ostensible or pretended exerciseof a statutory power.
Secondly, the decisions are conflicting while the earlier cases (supra 14 and42) did hold that notice was not necessary in the case of acts donemaliciously or in the colourable exercise of the statutory power, yet thecorrectness of these decisions was doubted in the case of Ratnaweera v. S.I.Police C.I.D. et al (supra) as being too restrictive. Basnayake, C.J., in twolater cases held notice was necessary even where the officer concerned wasacting mala fide (supra 15 and 44).
Mr. Jayewardene also made some submission in regard to the jurisdictionof the Court in view of the fact that order to call for the records of these
,n (1923)23 N.L.R. 192.
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cases was made by two Judges and thereafter the examination of the recordsand the orders to issue notices were made by three Judges all in chambers.His submission was that these should all have been done by a properlyconstituted Bench sitting in public. He pointed to the fact that whereas underthe previous law this power could be exercised by the Supreme Court or anyjudge thereof, now the power is vested under section 13 and 354 of theAdministration of Justice Law No. 44 of 1973 in the Supreme Court as suchand this meant the Benches as provided for in section 14 and sitting in publicas required by section 7.
The obvious answer to this submission is that all these cases were pendingin the Supreme Court and an order was made by the Hon. Acting ChiefJustice, under section 14(3)(c) to refer these matters to this Bench of nineJudges. This is a valid order and even if this objection could have beenappropriately taken up before the three Judges before whom it came up in thefirst instance it cannot be taken up now. However, I am of the view that allthe orders were validly made in terms of the Act.
There must be a properly constituted Bench sitting in public only whenthe records have been called for and examined and it is found that anexercise of the Courts revisionary powers is probably necessary after partieshave been heard. The mere calling for a record, the examination of it and thedirection to issue notice are all ministerial acts involving no act of a judicialnature. Any Judge of the Supreme Court has the power to do so, inchambers. Section 7 requires only that sittings of every Court shall be inpublic where the judicial power is exercised. It does not require thatministerial or administrative acts should be done in public. The case cited byMr. Jayewardene are all cases where actual trial was involved.
In these cases after two Judges had called for and examined the recordsthree Judges directed that notice be issued. The Registrar stated in openCourt on 14.6.1974, that the general practice hitherto had been for him tosuggest the different Benches for the day for the approval of the Chief Justiceand that the Judges who ordered the notices would normally constitute theBench to hear the case. He also stated that the Acting Chief Justice hadapproved the Bench as suggested by him.
This was in accordance with the practice stated in Queen v. Liyanagemwhere it was observed that “there are various provisions in the CourtsOrdinance for the hearing of appeals, applications and other cases in theexercise of the original criminal jurisdiction of the Supreme Court by one,two, three or more Judges. The power to nominate the Judges in cases whereno express provisions has been made therefore appears to us to reside in the
m (1962) 64 N.L.R. 313 at 352.
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Court, although it is correct to say that by convention it is the Chief Justicewho for the purpose of convenience exercises such power.”
In one case S.C. APN/GEN/63/64 — Revision in M.C. Colombo SouthNo. 23159/A 124 Sri Skanda Rajah, J., had called for the record and the matterwas listed before him. Dr. Colvin R. de Silva who appeared for therespondent submitted that since the Judge had examined the record andissued notice there was the possibility that the accused and even the publicmight think that he would be biased. Sri Skandha Rajah, J., rejected thesubmission and referred to the fact that in matters of contempt of inferiorCourts the papers are circulated to all the Judges to ascertain their opinion asto whether a Rule should issue or not. In such a case could it be said that allJudges had disqualified themselves.
Whether the Judge or Judges who in the first instance call for andexamine the records should sit on the Bench which ultimately determines thecase is a matter essentially for them to decide.
I hold therefore that where the act of a repository of a statutory powers isin excess or in abuse of that power in the sense that it is mala fide or for apurpose alien to the enabling statute it is ultra vires such power, and a nullity.In the case of Regina v. Paddington Valuation Officer 125 Denning, M. R.said, “It is necessary to distinguish between two kinds of invalidity. The onekind is where the invalidity is so grave that the list is a nullity altogether. Inwhich case there is no need for an order to quash it. It is automatically nulland void without more ado.” It is as if it had never been made. In such a casesection 24(1) of the Interpretation Ordinance as amended by Act No. 18 of1972 has no application and Courts are precluded from issuing interiminjunctions if the facts are such and a consideration of the law relating toinjunctions warrants the issue of such injunction.
I have not considered the facts in these cases at all nor the truth orotherwise of the case for the plaintiffs in these cases. My decision is purelyon the legal question argued before us.
It remains for me to thank all the Counsel engaged in these cases for thevery valuable assistance rendered to us in the determination of the difficultissues involved.
I would direct that all the notices be discharged and that the records bereturned to the respective Courts to be proceeded with according to law. Asthese cases came up on the orders of Court ex mero motu there will be nocosts.
S.C. APN/GEN/63/64 minutes of 17/12/64.
1“ (1966) I Q.B.D. 360 at 402.