037-NLR-NLR-V-73-W.-A.-NONAHAMY-Appellant-and-K.-A.-HALGRAT-SILVA-and-4-others-Respondents.pdf
H. Jf. G. FERKANDO, C.J.—Konahamy v. Halgrat Silva
217
Present: H. N. G. Fernando, C.J., Alles, J., and Wijayatilake, J.
W.A. NOXAHAMY, Appellant, and K. A. HALGRAT SILVAand 4 others, Respondents
5. C. 4S-3I66 (F)—D. C. Matara, 2406!L
Conciliation Boards Act No. JO of JOiS, as amended by Act No. 12 of 10C3—Sections6 (a) and 1J—Conciliation Boards—Scope and nature of tlicir functions—Actionbrought in District Court for right of tvay—Application for interim injunction—acquirement of pro>Iuction of Chairman's certificate—Constitutional validity ofsuch requirement—Courts Ordinance, ss. 20, SO, ST.
Where, pending an action in a District Court for a declaration of a right ofcartway over a land which was situated in a Conciliation Board area, theplaintiff applied to tho District Court under sections SG and S7 of tho CourtsOrdinance for an interim injunction restraining tho defendants from obstructingtho plaintiff’s user of tho cartway—
Held by Febxando, C.J., and Wijayatilake, J. (Alles, J. dissenting), thattho District Court had no jurisdiction to grant an injunction under sections SGand 87 of tho Courts Ordinance in tho absonce of a certificate issued by theChairman of tho Conciliation Board in terms of section 14 of the ConciliationBoards Act. In such a ease, tho insistonco upon a production of the Chairman’scertificate docs not in any way constitute an erosion of tho jurisdiction of theCourts, for there is no ousting or orosion of judicial powor unless such power istaken awoy from the Courts and conferred on some other authority.
Held further, that tho case of IVickrcmaratchi v. Inspector of Police, Nittambuu-a(71 N. L. R. 121) was wrongly docidod in so far as it held that section 14 of theConciliation Boards Act docs not apply in a caso where parties do not desire torefer a disputo to a Conciliation Board.
Appeal from a judgment of the District Court, Matara.
E. S. P. Cooviarasivain;/, with C. Chakradaran, T. Joganalhan,*5. C. B. Walgampayct and P. JI. Kuntkulasuriya, for the plaintiff-appellant.
N. S. A. Goonelillcke, for tho 1st defendant-respondent.
Cur. adv.vult.
June 24, 1970. H. X. G. Fernando, C.J.—
The plaintiff in this case filed a plaint on 5th June 1966 alleging thatshe and her predecessors in title had as owners of a certain land acquireda right of way by prescription over a cart road on the land of thodefendants. In the alternative the plaintiff claimed a cartway ofnecessity over the land of the defendants. Alleging that the defendants
lxxiit—10
1*—J 15351—2,255 (8/70)
218
11. X.-G. FKRXAXDO, C.-T.—Xanahamy r. Ualgrat Silva
have obstructed tJie use of the cart road by erecting a barbed wire fenceacross the road, the plaintiff claimed a declaration of a right of way anddamages. In addition the plaintiff prayed for an interim injunctionrestraining the defendants from obstructing the plaintiff’s- user of theroad.
The District Judge having accepted the plaint issued summonstogether with a notice of injunction effective until the hearing of theplaintiff’s application for the same. The defendants thc-reVipon filedobjections and the enjoining order was stayed until the holding of aninquiry- by the Court.
One of the objections taken against the issue of the injunction was inthe following terms :—
“ The plaintiff cannot have and maintain this action and/or thisapplication for an injunction in view of tlie provisions of the Concilia-tion Boards Act and the amendments thereto. The plaintiff has notcomplied with the provisions of the Conciliation Boards Act Mo. IO of1058 as amended by Act Mo. 12 of 1963.”
This objection was upheld by the learned District Judge who made ortlerdismissing the application for an interim injunction, and the plaintiffhas appealed against that order.
Section 14 (1) of the Conciliation Boards Act Mo. 10 of 1958 provides asfollows:—.
“ Where a Penal of Conciliators has been constituted for anyConciliation Board area,—
(a) no proceedings in respect of any dispute referred to in paragraphs(a), (b) and (c) of section 6 shall be instituted in, or be entertainedby, a civil court unless the person instituting such proceedingsproduces a certificate from the Chairman of such Panel that suchdispute has been inquired into by a Conciliation Board and it hasnot been possible to effect a settlement of such dispute by theBoard, or that a settlement of such dispute made by a ConciliationBoard has been repudiated by all or any of the parties to suchsettlement in accordance with the provisions of section 13 ;
The dispute referred to in paragraph (a) of Section 6 of the Act is—
“ any dispute in respect of any movable property that is kept, orany immovable property that is wholly or partly situate,., in aConciliation Board area.”
In the present appeal the appellant does not contest either the positionthat the land to which this action relates is situated in a ConciliationBoard area or the position that the dispute in this action is one in respectof immovable property in that area. The question which thereforearises is purely one of law.
H. N. G. FERXAXDO, C.J.—Xonaham'j v. Halgral Silva
219
Counsel’s first submission was that the Legislature lias not in s. 14 ofthe Act expressed an intention that the condition set out in that section(i.C. the production of a Certificate from the Chairman of the panel ofConciliators) applies in a case where what is sought from the Court is aninterim injunction and not a decree in a regular action. There are inmy opinion two answers to this submission. In the first place, s. 14expressly bars the institution or entertainment of proceedings unlessthe requisite Certificate is produced, and I can think of no ground onwhich to hold that an application to a Court for an injunction is not aproceeding. If the Legislature did intend that the section is to apply intho case of such an application, the expression which the Legislatureused was perfectly appropriate to convey that intention.
The second answer to Counsel's submissions depends on the provisionsof ss. SG and S7 of the Courts Ordinance, which are the provisions oflaw' empowering a District Court to issue injunctions. That power isexpressed in section SG of the Courts Ordinance thus:—
" In any action instituted in any District Court or Court of Requosts-
(a) where it appears from the plaint that the plaintiff demands and isentitled to a judgment against the defendant restraining thecommission or continuance of an act or nuisance the commissionor continuance of which w’ould produce injury to the plaintiff;
(*)
(c)it shall be lawful for such court, on its appearing by the affidavit of theplaintiff or any other person that sufficient grounds exist therefor, togrant an injunction.”
It is thus apparent that the District Court has jurisdiction to grant aninjunction only in an action in which it appears from the plaint thatcertain matters are made out. Accordingly the jurisdiction to grantan injunction can only be exercised after the Court has entertained aplaint. Counsel was compelled to agree that in the absence of the requisitecertificate under s. 14 of the Conciliation Boards Act the Court in theinstant case had no jurisdiction to entertain the plaint. If then therewas not before the Court a plaint duly filed, the condition precedent forthe exercise of the Court’s jurisdiction under s. SG of the Courts Ordinanceto grant an injunction was not satisfied ; in other words, the grant of aninjunction is a step in an action duly instituted by the filing of a plaint,and if the Court has no jurisdiction to entertain a particular action, thena fortiori the Court has no power to take a step in the action. The pointis made manifest in the language of s. SG which has been cited above :it cannot appropriate^ “appear from the plaint that the plaintiffdemands and is entitled to a judgment against the defendant ”, unlessthere is before the Court a plaint in an action duly instituted.
220II. X. G. FERNAXDO, C.J.—S'onahamy v. tlalynU Silva
Section 87 of the Courts Ordinance also is of some relevance in thisconnection. An examination of s. S7 shows that the earliest point oftime at which an injunction may be granted is at the stage when summonsis issued on the defendant. While s. S7 permits a Court to grant aninjunction ex parte and without prior notice to the defendant, theinjunction must in such a case “ accompany the summons ”, that is tosay, the injunction will be served on the defendant together with thesummons. But in a case where no summons can issue because no plainthas been duly entertained, then there cannot be compliance with therequirement in s. S7 for the injunction to accompany the summons.Even therefore if we were to assume that s. 14 of the Conciliation BoardsAct does not prevent a Court from entertaining an application for aninjunction filed independent^ and not together with or in the course ofan action, it becomes clear from ss. S6 and 87 of the Courts Ordinancethat a Court will have no jurisdiction to grant such an application.
Counsel for the appellant referred to the case of Wickremaratclii v.Inspector of Police, Nillambuwa 1 in which a conviction for an oifcnccunder s. 314 of the Penal Code was challenged in appeal on the groundthat the prosecution had been instituted without production of thecertificate of the Panel of Conciliators required bj's. 14 of the ConciliationBoards Act. In that case this Court upheld the conviction for twodifferent reasons. Firstly the Court rejected the proposition—
“ that every dispute or offence of the kind enumerated in s. 6must in the first instance be referred to a Conciliation Board and acertificate obtained from the Chairman, before proceedings can beinstituted or entertained in an established Court of law. ”
Alles J. thought that s. 14 must be read with some qualification, becauseotherwise it would have “ completely ousted the jurisdiction of a Magis-trate’s Court in respect of certain offences ”, and “ would be tantamountto an erosion of the-jurisdiction vested in the established courts of law ”.
I am satisfied however that even the strictest application of the provisionsof s. 14 would not have any such drastic consequences. All that thesection requires is that certain offences or disputes camiot be the subjectof Court proceedings unless the Conciliation Board have first the opirnr-tunity to consider the matters which gave rise to the dispute or to thecommission of the offence. In the case of an offence, the Board willattempt to settle the “ trouble ” (if I am so call it) by compoundingthe offence if such a course is desirable ; in the case of a civil dispute theBoard will attempt to resolve tho matters in dispute by a settlement.Iir either case, the Board will merely be persuading the parties to endtheir differences. Thus the part played by the Board is really to assistthe parties to settle “ troubles ” without an invocation of the judicialpower of the State. The function of the Board is beneficial and quiteunobjectionable, because it is a function which is often performed bymutual friends of disputants or by administrative officials. If the1 (1968) 71 N. L. R. 121.
H. N. G. FERN'AKDO, C.J.—Wonahamy r. Halgral Silva221
Board’s effort at making peace fails, and if recourse to the judicial poweris not avoidable it is the Courts alone that can exercise that power.I am therefore unable to agree that insistence upon a production of theCertificate referred to in s. 14 of the Act in any way constitutes an erosionof the jurisdiction of the Courts. There is no ousting or erosion of judicialpower, unless such a power is taken away from the Courts and conferredon some other authority.
Section 0 of the Conciliation Boards Act reads as follows :—
“ The Chairman of the Panel of Conciliators constituted for anyvillage area may, and shall upon application made to him in thatbehalf, refer for inquiry to Conciliation Boards constituted out ofthat Panel the following disputes and offences :
any dispute in respect of ans- movable property that is kept, or
any immovable property (hat is wholly or partly situate, inthat Conciliation Board area ;
(c) (d) ”.
In the judgment in Wichremaratchi's ease, it is stated that the onlydisputes and offences which can be referred for an inquiry to r ConciliationBoard arc those which the Chairman may of liis own motion refer to aBoard or such disputes and offences which the parties desire to be referredto the Board There is implicit in this statement the opinion that if aparty does not desire a dispute to be so referred, then that dispute can bebrought to the Courts without production of the Certificate referred toin s. 14.
I cannot agree with this opinion. Section C does not mention thodesire of parties to refer disputes for inquiry. When s. 14 imposes acondition precedent of the production of a Certificate from the Board,what is necessary is that the Board’s functions have been antecedentlyexercised ; this exercise can take place because of action taken by theChairman of his own motion, or because the parties have desired to seekthe mediation of the Board, or else because a parts- who wishes to cometo Court is compelled as a first step to submit to an attempt at conciliation.Thus it seems to me that a dispute can be referred to a Conciliation Boardunder s. C, not by two methods but by throe, the first and the thirdbeing compulsory so far as the parly is concerned. I
I should add that Counsel appearing for the appellant in the presentappeal did not argue that any action to which s. 14 applies can be enter-tained by a Court without the production of the Certificate referred toin that section. His argument in substance was that in the applicationof s. 14 a distinction can be drawn between an action as such and anapplication for an injunction. That argument lias been dealt with inthe earlier part of this judgment. I would hold for these reasons thatthe case of Wickremaratchi r. Inspector of Police, Kittambuica, was wrongly!*•J 1335J (5/70)
•too
H. N. O. FERNANDO, C. T.—S'onnhnrmj v. ffolgral Silva
derided in so far as it held that a. 14 does not apply in a ease where partiesdo not desire to refer a dispute to a Conciliation Board. I should addHint in the instant case it;is not necessary to consider the correctnessof the further finding that the defect in tho prosecution was curableunder s. 425 of tho Criminal Procedure Code.
This appeal has been heard before a bench of three Judges upon areference made by tiro two Judges before whom it was originally listed.I understand that or.e reason for the reference was that tho questioncan arise whether the provisions of s. 14 of the Conciliation Boards Actwill prevent the exercise by the Supreme Court of the power to issueinjunctions. It is not however necessary to consider that question onthe present occasion since this appeal can be disposed of independentlyof it.
After the preparation of tills judgment I Iiavo had the advantage ofreading the judgment prepared in this appeal by my brother Allcs J-One of the grounds of his dissent is that “ if tho Legislature requiredtho subject to obtain a certificate from an officer appointed by the Execu-tive it would appear that it authorised a procedure which did not secureto tho judiciary, in the words of Lord Pearce, ‘ a freedom from political,legislative and executive control ’. ” The phrase thus adopted by mybrother from the judgment of Lord Pearce in Liyan-age’s case 1 occursin that part of the judgment which considered a contention that the1902 Acts “ amounted to a direction to convict the appellants or to alegislative plan to secure the conviction and severe punishment of theappellants and thus constituted an unjustifiable assumption of judicialpower by the legislature, or an interference with judicial power, whichis outside the legislature’s competence.. With respect, a similar,contention cannot be advanced against a provision which merely requiresthat a prospective litigant must attempt to havo his dispute settledamicably by conciliation before ho has recourse to the Courts in anaction. The provision does not bear in my opinion any semblance of acontrol of the Judiciary ; if control is at all involved, it is only a somewhatloose control of the litigant’s right to institute an action, by (at theworst) delaying the institution.
We have been familiar for many years with s. 13 of the Rent RestrictionAct, which prohibits the institution of an action for ejectment (exceptin specified cases) unless the Rent Control Board has first authorisedtho institution. It has never been seriously argued that this sectionunconstitutionally ousted or interfered with the jurisdiction of the Courts.This, despite the fact that s. 13 has in practice almost totally preventedthe institution of ejectment actions except on the grounds specified in thesection. If then s. 13 has been accepted as a valid piece of legislation,it must follow that the slight restraint which the Conciliation BoardsAot imposes on litigants has to be accepted as valid.
1 (1965) 68 iV. L. R. 265.
ALLES, J.—Nonahamy v. Halgral Silva
223
The order of the learned District Judge dismissing the applicationfor an interim injunction is affirmed, and the appeal is dismissed withcosts.
Au.es, J.—
I have had the advantage of reading the judgment of My Lord theChief Justice but, I think there is one aspect of this case which meritsfurther consideration and which compels me to tako a view differentfrom that taken by the learned Chief Justice.
The provisions of Sections 86 and 87 of the Courts Ordinance wereobviously intended to give immediate relief to the party concerned butit scents to me that the party seeking such relief is likely to be frustratedif he has first to obtain a certificate from the Chairman of the Board of •Conciliators. For instance, in the present case the plaintiff wouldhave to make liis application to tl*/* Chairman ; a Conciliation Boardconsisting of three members will have to be constituted; tue disputewill have to be referred to the Board ; the Board must meet and issuesummons on the opposing party ; an inquiry will have to be held and theBoard will only then be able to arrive at a conclusion whether it couldgrant relief to the plaintiff. Since the powers of a Conciliation Boardare only confined to the settlement of disputes and the compounding ofoffences, even if the dispute regarding the right of way was referred tothe Board, it would not have been open to the Board to issue an enjoiningorder as this can only be done through the mediation of the Courts oflaw. Consequently the only result of making an application to theConciliation Board would be to cause unnecessary delay to the partymaking the application—delay that would be fatal to the interests ofthe party concerned.
Such being the case, the question immediately arises wheher the subject
is not effectively deprived from obtaining relief under Sec'. 80 and
87 of the Courts Ordinance to which he is entitled under the provisionsof the law and whether thereby there has not been an interference withthe judicial power of the Slate. It has now been established since thedecision of the Privy Council in Queen v. Lhjr.ina.ye 1 that' the judicialpower of the State has been unaffected by the Constitution and restson the provisions of law under which the Courts function (the Charterof J list ice of 1 $33 and other laws including the Courts Ordinance). Thereforeif the Legislature required the subject to obtain a certificate from anofficer appointed by the Executive it would appear that it authorised aprocedure which did not secure to the judiciary, in the words of Lord.IVarcc, “ a freedom from political, legislative and executive control ”.
To this extent, therefore a law which requires recourse to a ConciliationBoard before an ajiplication is made under SectionsSG or 87 is one whichis likely to affect the jurisdiction of '-he District Court in.preventingthe subject from obtaining an effective remedy, for the practical effectof such a course would be to make the law laid down in Sections SG and1 (lOGi) CS A L. n. 2GS.
224
WIJAYATILAKE, J.—Xonahamy v. Halgrat Silva
S7 almost a dead Idler. Such a deprivation would be tantamount toan interference with judicial power. I am not unmindful of the factthat the subject can have direct recourse to the Supreme Court underSection 20 of the Courts Ordinance for immediate relief but this is noanswer to the virtual abrogation of the powers of the District Courtunder Sections S6 and S7. Although (he Conciliation Boards-Act is asalutary piece of legislation which deserves to be encouraged, if some ofits provisions infringe upon the rights of Ihe subject and fetters recourseto the established Courts of law, one has to be cautious and. considerwhether such provisions affect judicial power. When the relief availableunder Sections S6 and S7 is circumscribed in this manner, being dependent,on a cer tificate issued by the Chairman of a Board of Conciliators, thereis, in my view, an ouster of the jurisdiction of the District Court and aconference of such power, however limited it may be, on a ConciliationBoard (where a proceeding is deemed to be a judicial prru?oo<li'ng) in’the«*nco f the. Millie of. 1°« mi cllcctivc re ni edy.
If however, in spite of the peremptory provisions of Section 14 of theAct, there is room for a view, on a construction of the provisions of theentire Act, that it is open to the parties in certain circumstances toinvoke the machinery of the established Courts without the necessityof obtaining a certificate from the Chairman, the problem raised by mewill not arise for consideration. In my opinion, such a view is possibleon an examination of some of the language used in the Act—..“ appli-cations made to him (the Chairman) in that behalf ” in Sections 6 and14 (2) and the constant use of the words “reference to a Board ’’in otherSections—and also the absence of any positive requirement imposingan obligation on a party to obtain a certificate, Section 14;.merelyimposing a prohibition on the institution of proceedings in Court onlyin certain stated circumstances. This is the view that appealecf to mewhen I delivered the judgment in Wickretna rat chi v. Inspector of-Police,Nitlambuiva *.
I am therefore of the opinion that the learned District Judge was inerror in requiring the plaintiff to produce a certificate before entertaininghis application for an injunction. I would allow the appeal with.costs.
WlJAYATILAKE, J.
I have had the benefit of reading the judgments prepared by MyLord the Chief Justice and my brother Alles, J. Much as I agree withthe latter that parties seeking urgent relief by way of injunctions wouldbe seriously prejudiced to the point of near disaster if they are compelledto go before the Conciliation Board with its incidental delays in summoninga. meeting and taking action, I. respectfully agree with the constructionand interpretation of My Lord the Chief Justice of Sections S6 and S7of the Courts Ordinance read with the Conciliation Boards Act. Hodoubt it will work serious hardship in certain situations but the principalobject of the Act being to prevent parties rushing to litigation in Courts,
1 (1068) 71 jV. L. R. 121.
225
Podiappu v. Assistant Commissioner oj Agrarian Services
the Act seeks to afford an opportunity to parties to settle their disputeswith the aid of the Conciliation Board before pursuing the matter inthe Courts.
With great respect I am unable to agree with my brother Allc3 J.that in effect there would be an erosion of judicial power as an aiggrievedparty could still make an application for on injunction direct to thoSupreme Court. This procedure can cause severe hardship to the parties,the cost of litigation being so high, but at the same time it can act as abrake to frivolous applications for injunctions. Perhaps, this is anaspect which warrants early consideration by the Law Reforms Commis-sion. As I have already observed on a construction and interpretationof the relevant statutes I am in entire agreement with My Lord the ChiefJustice and I would respectfully subscribe to his judgment dismissingthe Appeal with costs.
Appeal dismissed.