007-NLR-NLR-V-80-WEERARATNE-J.–Sirisena-and-Others-V.-Kobbekaduwa-Minister-of-Agriculture-and-.pdf
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GUNASEKERA, J. – Sirisena and Others v. Kobbekaduwa,
Minister of Agriculture and Lands
133
WEERARATNE, J.
This Bench was constituted by the Chief Justice on the ground thatquestions of general and public importance were involved in several cases inwhich interim injunctions were issued by the relevant High Courts andDistrict Courts on the Honourable H. S. R. B. Kobbekaduwa, Minister ofAgriculture and Lands, restraining him from taking any further steps towardsthe acquisition of the relevant petitioners’ properties and from evicting thepetitioners’ servants and agents from the lands or buildings standing thereon.The injunctions were to be valid and operative for a stipulated period of time,during which the petitioners were to seek their appropriate relief from therelevant Courts.
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At a stage when the petitioners were taking necessary steps to obtain relieffrom the said Courts, as undertaken by them, this Court issued notices signedby a Bench of Three Judges of the Supreme Court, to the petitioners, toappear and show cause as to why the orders of the said High Courts andDistrict Courts should not be set aside in the exercise of the powers ofrevision. The Respondents-Defendants and the Attorney-General were alsonoticed to appear.
When the present matter was taken up for hearing Counsel for thePetitioners as well as the Attorney-General agreed that the matters which arisefor decision by this Bench are similar in all the cases in which the said partieswere noticed, except certain cases which concerned the Land ReformCommission. Consequently, the remaining appeals were consolidated forhearing before this Bench of Judges.
A resume of the course this matter took leading up to the questionsdiscussed before us would indeed be helpful. It was the case for the petitionerthat the respondent as Minister of Agriculture and Lands sought to acquire 70perches of land called ‘Nithamaluwa’ which is altogether 82 acres in extent asdescribed in the schedule ‘A’ and schedule ‘B’ in the petition. In this case itwould be relevant to state that after the notices under section 2 and section 4of the Land Acquisition Ordinance were issued stating that the land wasrequired for a “public purpose,” the declaration under section 5 waspublished. Thereafter an order under proviso (a) of section 38 of the Act wasmade, and if all the relevant prerequisites in terms of the Act were legally andvalidly attended to, not only would the declaration of the Minister undersection 5 of the said Act have been conclusive but also would the order madeunder the proviso to section 38 of the Act have been conclusive evidence ofthe title of the State to the land so acquired. In short, the whole of theacquisition proceedings, by 11th December, 1973 were attended to except thatthe order to take possession of the said land was communicated to thepetitioners by letters PI dated 12th February, 1974.
In this connection it would be relevant to mention that the Minister had thepower to revoke the relevant vesting orders until such time actual possessionof the said land was given to the State as set out in section 39 of the saidAcquisition Act. Consequent to an application filed in the District Court ofBandarawela an interim injunction was granted on the 24th April, 1974restraining the defendant Minister from taking any further steps in the saidacquisition.
On the 11th March, 1974 the petitioners moved the High Court for aninjunction and on the 14th March, 1974 the Judge granted the injunction validuntil the 25th April, 1974 restraining the respondent Minister from taking anyfurther steps towards the said acquisition within which time the petitioners asstated by him would seek their relief from the District Court. Then on the 28th
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Minister of Agriculture and Lands
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March, 1974 the respondent Minister had made an application in the HighCourt stating the steps taken to acquire the said property. The allegation madeby the petitioners that the respondent Minister was influenced by false andmalicious representation made to him by S. D. Delungahawatte, Member ofthe National State Assembly for Uva-Paranagama, was denied, but, it wasfurther averred that the said acquisition was made in furtherance of the landpolicy of the Government, solely for the public purpose of village expansion.An affidavit of the Minister was also filed. The learned High Court Judge inhis order dated 9.4.74 gave his reasons for rejecting the submissions made bythe Deputy Solicitor-General who appeared on behalf of the respondentMinister and said, inter alia, that the petitioners were entitled to question thevalidity of the said acquisition proceedings and to show that they were voidab initio and, therefore, a nullity. He further stated that the basis of thepetitioners’ complaint is that the said acquisition was done mala fide and foran ulterior purpose, and if so proved the proceedings would be a nullity. Itwas indeed significant that there was no appeal or an application in revisionmade thereafter from the order of the High Court, and in the meantime the sixweeks’ period given in respect of the injunction had elapsed.
Thereafter the notices referred to earlier were issued on the petitionerssigned by three Judges of this Court to show cause why the said orders of theHigh Court should not be set aside, since the orders “on the face of the recordappeared to be illegal in view of the provisions of section 24 of theInterpretation Ordinance as amended by Act No. 18 of 1972.”
Mr. H. W. Jayewardene appearing on behalf of the petitioners before thisBench submitted that there was no live issue for this Court to consider inregard to the injunction since it has expired; secondly, that neither party northe Attorney-General moved in this matter invoking the jurisdiction of thisCourt; and, thirdly, that the respondent Minister had acted in bad faith inmaking orders under section 5 and section 38 of the Land AcquisitionOrdinance in that he was influenced by the said Member of the National StateAssembly. Counsel for both sides very strenuously argued the questionrelating to the applicability of section 24 of the Interpretation Ordinance asamended by Act No. 18 of 1972. Counsel for the petitioners contended thatsection 24 of this Act has no application in the granting of an interiminjunction in this case, if it can be shown that the act of the authority investedwith the power to acquire the said land was done for an ulterior purpose andconsequently mala fide. Several Senior Counsel who made their submissionsthereafter associated themselves with the arguments advanced byMr. Jayewardene and raised their points in support of the petitioners’ claimfor a temporary injunction. I shall, however, deal with any other points madeby them later in the course of this judgment.
The learned Solicitor-General, on the other hand, argued that theLegislature in framing section 24 of the Interpretation Act has thought that it
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would not be in the public interest that injunctions should be granted, and, heposed the question as to why the words set out in section 24 should only applyto bona fide acts also.
Before I deal with section 24 of the Interpretation Ordinance it would behelpful to consider shortly some of the legal implications of an injunction. Aninjunction is a judicial process, which is an order, to refrain from doing an act.A temporary injunction, also known as an interim or an interlocutoryinjunction as referred to in section 21 and section 42 of the Administration ofJustice Act No. 44 of 1973 and Chapter 48 of the Civil Procedure Code, has ahistory of equitable relief. The Courts would not permit any person within itsreach to do what is contrary to its notion of equity. In the case of Ratwatte v.The Minister of Lands (supra) Samarawickrame, J. referring to a passage fromHalsbury’s Laws of England (Simonds Ed.) Vol. 21, page 365 stated that inorder that an interim injunction may issue it is not necessary that a Courtshould find a case which would entitle the plaintiff to relief at all events; it isquite sufficient if the Court finds a case which shows that there is a substantialquestion to be investigated, and that matters ought to be preserved in statusquo until that question can be finally disposed of.
In regard to the scope of the injunction inquiry one of the specialcircumstances which the Court must consider in granting an injunction is thatirremediable damage would ensue from the acts sought to be restrained. Itwas argued that in a case such as this an injunction should be granted because,otherwise, the defendant would proceed with its unlawful act and thepetitioners would be deprived of their property.
In short, it was submitted that when there is an allegation of mala fide onecannot wait for the case to be over for the reason that irremediable damagecould be done by one who bears malice.
The Legislature in section 24 of the Interpretation (Amendment) Act No.18 of 1972 has indeed taken away from the Courts the power to grant aninjunction against a Minister of State “. . . in respect of any act done orintended to be done or about to be done by any such person in the exercise ofany power or authority vested by law in any such person …” The importantquestion, however, which arises in the present matter is whether the taint ofmala fides, if established, would reduce to a nullity the act involving theexercise of power by the authority invested with the right to acquire any landunder the Land Acquisition Act; or if one poses the question differently, doessection 24 take within its sweep even mala fide exercise of power by therelevant authority, and consequently no injunction lies?
Seeking as we are to interpret a section of the Statute it would be helpful tobear in mind, in this connection, the words of Viscount Simon:-
“The golden rule is that the words of a statute must prima facie be giventheir ordinary meaning. We must not shirk from an interpretation whichwill reverse the previous law, for the purpose of a large part of our
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Statute law is to make lawful that which would not be lawful withoutthe Statute, or conversely prohibit the results which would otherwisefollow,” in the case of Abrahams v. Mac Fisheries Ltd.133 Frazer, J.stated:- “In order to ascertain the true meaning (of the Legislature) it isnecessary to ascertain the circumstances with reference to which thewords were used and what was the object appearing from thosecircumstances which the Legislature had in view.”
The language of the Act, it was submitted by Counsel, is clear andunambiguous. The Draftsman has not used any words which would becolourable in the slightest degree, such as for instance “ostensible” or“purported” or “apparent,” which might involve spurious exercise of power.In short, section 24 of the Interpretation (Amendment) Act refers to an actdone or intended or about to be done in the exercise of any power or authorityvested in law . . . ,” and not any act done in the “purported” exercise of power,or “ostensible” exercise of power or “apparent” exercise of power. Thisphrasing indicates that the Legislature implied, as Mr. Pullenayagamsubmitted, “ex-hypothesis” that an act could not be done mala fide, in whichevent the act is not covered in section 24. On a plain reading of the provisionit is indeed clear that no other rule of interpretation can be applied so as tomodify the plain meaning. As was stated by Lord Symonds, “to do so wouldbe to amend the enactment, and thereby participate in a naked usurpation ofthe legislative function under the thin guise of interpretation.”
In this connection a matter discussed at some length by Counsel on bothsides was the question whether speeches made by Honourable Ministers andMembers of the House are permissible as an aid to interpreting theInterpretation (Amendment) Act in question. Craies in his work on StatuteLaw refers to the words of Lord Wright in the Privy Council:
“It is clear that the language of a Minister of the Crown in proposing inParliament a measure which eventually becomes law is inadmissible . . .because it does not follow that those recommendations wereaccepted.” IMCraies goes on to state:-
“The same rule is adopted in Canada . . It would appear, however,that the same considerations that apply to speeches in the Assemblywould not apply to matters such as the history of the Legislature or theobjects and reasons or other matters in a Bill presented before theLegislature.”
1)5 2 KB 18 at 34.
'“(1935) A C. 448 at 458.
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Lord Halsbury stated:-
“The subject matter with which the Legislature was dealing and thefacts existing at the time with respect to which the Legislature waslegislating would be relevant matters in interpreting the Act.” (VideHerron v. Rathmines and Rathgar Improvement Commissioners,(supra).
Our Courts have considered as admissible the history of legislation andeven the statement of objects and reasons set out in a “Bill” in order todetermine whether an Act was declaratory of the pre-existing law (videWeeramantry, J.) in Costa v. Bank of Ceylon, (supra).
In the case of Liyanage v. Queen,'37 the Privy Council even examined aWhite Paper issued prior to legislation in order to decide the question of ultravires in regard to certain legislation. The Courts in England have indeed beenconservative in regard to reports of Commissions and White Paper. In fact,Lord Denning stated:-
“We do not refer to legislative history as they do in America. We do notlook at explanatory memoranda which preface a Bill before Parliamentand we do not have recourse to objects in Hansard.”138
On the question of memorandum prefaced to Bills, however, Craies statesthat they are of considerable importance but has not so far been adopted inconstruing an Act. (vide Craies on Statute Law, 7th Edition at page 131).Craies certainly does regard the draft Bill as an important aid to Courts inconstruing a Statute, although the English Courts have been as I have statedconservative about it, and many other such aids which have been foundacceptable in Sri Lanka and other countries.
The point is that whilst a sound reasoning is advanced by English Courtsfor regarding parliamentary speeches as inadmissible no such reasons areadequately given in respect of Draft Bills which our Courts have certainlyaccepted as a satisfactory aid.
In the case of Rathmines and Rathgar Improvement Commissioners,(supra) which was referred to by the learned Solicitor-General, Lord Halsburyat the appeal did not appear to agree with the Justice’s observation at the trialthat the plans and sections were prepared for the construction of a reservoir“with substantially different objects and represent designs from whichsubstantial departures were intended to be sanctioned by amendments
117 68 N.L.R. 265.
,M Leiang v. Cooper (1965) 1 QB 232.
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made in the Bill, during its passage through Parliament … or that acomplicated set of work were enacted to be executed for one purpose . . .according to a set of plans designed for another purpose. (I confess I amwholly unable to discover).” Lord Halsbury took the view that there was nodisharmony in respect of the Act sought to be interpreted and held that theplain meaning of the Act arising obviously from the grammaticalconstruction of the words and sentences that it contains should be given. Inthis view of the matter the question of this learned Judge interpreting the Actby references to the Bill does not arise.
I have been at pains to deal at some length on the question ofadmissibility of Draft Bills proposed in the State Legislature in this matterfor the reason that on an examination of the “Bill” which was referred to byCounsel on both sides we find in the draft section 24 the following words:—
“. . . in respect of an act done or purported to be done by any suchperson or authority in the exercise or purported exercise of power . . .vested by law in any such person or authority.”
Whereas, in the Act passed by the legislature the word “purported” wasremoved altogether. This might be regarded as a significant departure fromthe Draft Bill and shows the intention of the legislature which was indeedcircumspect in this matter. The question then arises as to what indeed are thelegal implications of the allegations of mala fides made by the petitioners inrelation to the words “any act done … in the exercise of any power orauthority vested by law in any such person.” In short, would mala fides ifalleged and established reduce the act of any authority under the Statute to anullity in those circumstances?
I have shown that the legislature never intended under the cover of section24 to protect any authority that does any palpably illegal acts amounting tomala fides by making such an act not justiciable in a Court of Law. Theprinciple is also well established that no public body or authority can beregarded as having statutory authority to act in bad faith or from corruptmotives, and any actions purporting to be that of the body but proved to be inbad faith would certainly be held to be inoperative (Warrington, L.J. in 134Law Times at page 115).135
Halsbury states in the 4th Edition, para 60 at page 67:—
“The exercise of Statutory power is invalid unless the repository of thepower has acted honestly and in good faith.”
“However, when fraud is alleged the Court will decline to quash unlesssatisfied that the fraud was clear, manifest and was instrumental in
Short v. Borough of Poole.
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procuring the order impugned” (vide De Smith — Judicial Review ofAdministrative Action — 2nd Edition, page 421).
“When prima facie case of misuse of power has been made out it is opento the Court to draw the inference that unauthorised purposes have beenpursued if the competent authority fails to adduce grounds supportingthe validity of its conduct” (vide Halsbury, 4th Edition, page 67).
In the case of Lazarus Estates v. Bearely, (supra) Denning, L. Jstated:—
“No judgment of Court, no order of a Minister can be allowed to stand ifit had been obtained from fraud. Fraud unravels everything.”
Counsel for the Petitioners discussed the cases under section 88 of thePolice Ordinance and section 461 of the Civil Procedure Code and stated thatthe words “done or intended to be done” in section 24 appear in section 88 ofthe Police Ordinance. These words have been interpreted over the years asreferring to acts done bone fide and not mala fide. It was submitted thatwhen the Legislature subsequently used almost the identical phraseology insection 24 of the Interpretation (Amendment) Act it implies legislativeadoption of the interpretation given by Courts to such language.
In the case of Perera v. Jayawardene'w a Divisional Bench of the SupremeCourt held that:—
“It is a well-established principle that when a word has received judicialinterpretation and the same word is re-enacted, it must be deemed tohave been re-enacted in the meaning given to it. . ..”
Counsel for the Petitioners submitted that the authorities on section 88 ofthe Police Ordinance and section 461 of the Civil Procedure Code show thata Public Officer acting maliciously cannot be said to be purporting toexercise power. In the Hirdaramani case (supra) the Court held that a publicauthority vested with the power to do an act must act bona fide — it couldnot exercise such power with an ulterior object, in which event the intentionof the Public Servant is to defeat the Statute. Counsel for the Petitionerssubmitted that section 24 of the Interpretation Act is not worded to create acomplete Ouster in the manner it was suggested that section 45 of the CourtsOrdinance was affected by Regulation 55 of the Emergency Regulations inthe case reported in 76 N.L.R. page 316 (supra).
In the case of David v. Abdul Coder (supra) the Privy Council stated,inter alia:— 140
140 (19471 49 N.L.R. 1 al 9.
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“ . . . but, a malicious misuse of authority as pleaded may cover a set ofcircumstances which go beyond the mere presence of ill will and it isonly after the fact of malice relied on by the plaintiff has been properlyascertained that it is possible to say in a case of this sort whether therehas been any actionable breach of duty.”
In the Canadian case of Roncarelli v. Duplessis, (supra) Rand, J. stated:—
“The act of the defendant through the instrumentality of the commissionbrought about the breach of an implied statutory duty towards theplaintiff. There can be no question of good faith when an act is donewith improper interest and for a purpose alien to the very Statute.”
In the South African case reported in 1947, Volume II, South African LawReports, page 984, (supra) the Court held that when a public body or anindividual exceeds its powers, the Court will exercise restraining influence,and if while ostensibly confining itself within the scope of its powers, itnevertheless acts mala fide or dishonestly for ulterior reasons which oughtnot to influence the judgments, or with unreasonableness so gross as to beinexplicable except on grounds of mala fides or ulterior motive, Court willinterfere.
It will be seen that the view of the Courts in England and the RomanDutch Law Jurisprudence coincides with the opinion of our Courts of Law.The Indian Supreme Court too takes a similar view in regard to the impact ofmala fide in relation to the exercise of power under a Statute. In the case ofSomawanti v. State of Punjab (supra) the Supreme Court of India heldthat:—
“If the purpose for which a land is being acquired by the State is withinthe legislative competence of the State a declaration of the Governmentwill be final, subject to the exception that if there is colourableexercise of power the declaration will be open to challenge at theinstance of the aggrieved party. If what the Government is satisfiedabout is not a public purpose but, for instance, a private purpose or no
purpose at all, the action of the Government would be colourable
and the declaration would be a nullity …. for the question whethera particular act is a fraud or not is always justiciable. An acquisitioncould be set aside not only because it is motivated by mala fides buteven when a fact is taken into consideration which was irrelevant.”(Raja Anand v. Uttar Pradesh (supra)).
From what I have stated earlier it would appear that the legislature withmuch circumspection used the language in section 24 of the Interpretation(Amendment) Act which indicates that fraud or mala fides is not removedfrom the purview of the Courts. Fraud or mala fides need not be mentioned
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in the Statutes because they are regarded as exceptions. The situationhowever would be different if, ns in Roncarelli’s case referred to earlier, theauthority is declared by a Statute entitled to protection although he hasexceeded his powers or jurisdiction and acted clearly contrary to law.
Mr. Tiruchelvam, in support of the petitioners, contended that the primaryintention of the legislature when it enacted section 24 was to confer on thesubject the benefit of a declaratory decree. Such a decree would becomefutile unless an interim or a Stay Order is made. He submitted that temporaryinjunctions were not affected by section 24 of the Interpretation Ordinance.He also argued that the Supreme Court has the inherent power to issue a StayOrder in an appropriate case.
In regard to section 24 providing for a declaratory decree it was arguedthat a meaning consonant with the object of the legislature, and if not futile,should be given unless there is express unambiguous provision. Therefore,says Counsel, a necessary counterpart to the proviso inferentially would be apermanent injunction accompanying a declaration. Counsel stated that thedemolishing of a house, for instance, would make a declaration of theDistrict Court factually and/or legally inoperative and futile. One of theprinciples in regard to declarations is that they will not be granted if thedeclaration would be of no practical use, as for instance, the demolishing ofthe subject-matter of the acquisition as illustrated earlier. It is for that reasonthat interim injunctions were not removed from the purview of the Courts insection 24 of the Interpretation Ordinance.
It was further argued by Counsel that if the Court is not empowered toissue an interim injunction having regard to section 24, then, nevertheless,the Court has the inherent power to grant interlocutory relief in declaratoryproceedings.
Now, the proviso to section 24 (1) of the Interpretation (Amendment) Actsets out that the provisions of section 24 shall not be deemed to affect thepower of the Court to make order declaratory of the rights of parties “in lieuthereof’. The words “in lieu thereof’ could only refer to “. . . the power togrant an injunction or make order for a specific performance against theCrown.” The latter words “in lieu thereof’ seem clearly referable to onlypermanent injunctions, if one considers the plain meaning which must begiven to the provision. When subsection (1) sets out the two alternatives of“the power to grant an injunction,” or “make order for a specificperformance” it would appear that what was intended by this juxtaposition ofwords constituting that phrase is only referable to a permanent injunction. Inthe light of this argument the provisions of section 24(1) do not covertemporary or interim injunctions and the Courts would not be fettered in theirpower to grant interim injunctions in appropriate cases under the existingprovisions for granting such equitable relief. If this be so it would be
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unnecessary to deal with the question of inherent powers of the Courtadvanced by Counsel.
The Solicitor-General in his reply submitted that section 24 deals withcases where the legislature intended that orders of Tribunals and other suchauthorities are taken out of the purview of the Courts in respect of remedieswhich persons were hitherto entitled to obtain. He further submitted that thewords “any act” cover both bona fide as well as mala fide “acts,” and that ifthe State withdraws the remedy no one could complain since nobody has avested right in such a remedy.
In this connection Mr. H. W. Jayewardene submitted that the legislaturecould take away the jurisdiction of Courts to review any matters completely,just as Courts were abolished and new Courts set up. The question, however,is whether the legislature did really intend to remove the protection affordedby injunctions even in those instances where there is mala fides. As wasposed by Lord Reid in the Anisminic Case (supra):-
“It may have given its decision in bad faith. It may have given a decisionwhich it had no power to make. It may have failed. . . to comply with therequirements of natural justice. It may in perfect good faith havemisconstrued the provisions giving it power to act, so that it failed todeal with the questions remitted to it and decided some question whichwas not remitted to it. It may have refused to take into accountsomething which it was required to take into account.”
All these were illustrated as instances which could well result inproceedings being a nullity.
It seems to me that having regard to the cases in which allegations of thesort envisaged above are made the Legislature was indeed circumspect insection 24 not to use language which might even give a hint that the Courtsare ousted when it comes to dealing with such allegations. The fact that theState Assembly with deliberate care felt advised to omit the word“purported” from the words “a purported exercise of power” in the Draft Billis indeed a clear indication as to what the Legislature had in mind whenamending the draft legislation in that manner. It is indeed manifest that theState Assembly never intended to remove from the purview of the Courtsmala fide acts and leave public officials free to act both mala fide or bonafide in the manner suggested by the Solicitor-General.
In this connection it is perhaps relevant to state that it is most unlikely thatthe Legislature which is the repository of all judicial power ever intended toinvest the power in a statutory authority to act mala fide or bona fide inStatutes such as this. The authorities show that “no public body can beregarded as having statutory authority to act in bad faith or from corrupt
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motives …. and any actions purporting to be from that body wouldcertainly be held to be inoperative.” If the Legislature did intend that suchbodies could act even mala fide it certainly must be stated in no uncertainterms. It is indeed a well-known rule of interpretation of statutes that where aCourt is seeking to interpret legislation by which it is sought to create rightssuch legislation must be strictly resolved in favour of the subject. On thecontrary we find here section 24 not stating anything to that effect. On theother hand we find that the Legislature has reassured the “people” fromwhom it derived its own judicial power that it would not jeopardise the trustimposed by the “people,” by even including a word like “purported” whichmight be a prop to an argument that mala fide acts of public officials wouldbe outside the jurisdiction of courts of law.
The Solicitor-General in arguing that the power which is exercised by therelevant authority could be exercised either mala fide or bona fide sought toreinforce his argument by submitting that it was the duty of the Court toascertain the purpose for which the legislation was passed, and that thedisease which it intended to cure could be drawn from the speech of theMinister in the House which showed that the intention of the legislature wasto bar the grant of injunctions because a number of acquisition proceedingswere stayed when mala fides were alleged, resulting in considerable delay.The consideration of any delay could not be adequate reason in this instance,since, the State could act under section 46 of the Administration of JusticeAct and nominate a special Court for the hearing of land acquisition casesexpeditiously. This method has indeed been found to be exceptionallysatisfactory in respect of bribery cases.
Further, as submitted by opposing Counsel a prosecution for swearing afalse affidavit is not the only means of meeting a false and inaccuratestatement in a petition supporting an affidavit. The State could move Courtto dissolve the interim injunction obtained on such an affidavit, havingregard to section 666 of the Civil Procedure Code, and even obtaincompensation from the petitioner under section 667 of the Civil ProcedureCode. It was argued that in any event the fact that the legislature did notaccept the Bill in its original form in regard to section 24 was someindication that there was rethinking on this question by the legislature.
I have already adverted to the legal implications of the impact of malafides in respect of the said provision earlier in this judgment. Hence, I do notthink it necessary to say anything more on that point. The Solicitor-Generalfurther raised the question whether it could ever be contended that theParliament, having provided in section 24 for a declaration of the right ofparties, withdrew the remedy by way of injunction only in respect of bonafide and valid acts, when in the same breath the Parliament provided insection 22, where there was an ouster of the jurisdiction of the Court,whereby no order, decision, determination, discretion or finding could be
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questioned save on the two grounds set out therein. It seems to me that if theSolicitor-General’s contention is that mala fides were sought to be excludedin section 22 in the manner that the provision was drafted, the Legislature ifit so intended would quite obviously have provided for an ouster in section24 too in the same manner. The fact that the Legislature did not choose to doso is indeed an indication that an ouster in respect of section 24 was not whatwas intended.
The Solicitor-General further submitted that section 24 which might haveamounted to an ouster clause later became, by reason of the amendment, aprovision which merely substituted one remedy for another.
It seems to me that the proviso to section 24(1) merely emphasises that adeclaratory action which was hitherto available is indeed still available thusremoving any doubt on that point. There is indeed no substitution of aremedy here as suggested, but, a mere reassertion of an existing remedy.
The Solicitor-General then argued that regard must be had to the principleof State policy found in Art. 16(2) of the Constitution, which provides for therapid development of the whole country. If this aspect of the matter wasforemost in the mind of the Legislature it seems to me that the Legislaturewould have unhesitatingly included the ouster clause in section 24 of the saidAct.
I have discussed earlier in the judgment the point urged by the Solicitor-General that nowhere in the Act was it necessary that the “public purpose”should be set out. Reasons can be given why it is indeed necessary andimportant for the Minister to set out the “public purpose.” The fact that the“public purpose” is required to be set out by Statute in other countriesimplies that it is indeed a necessary requirement to set out the purpose and itis most likely that such countries have inserted that provision out of anabundance of caution.
Affidavits were filed by the petitioners in the respective Courts on thismatter supporting applications for interim injunctions as required by therelevant provisions of the Civil Procedure Code. As I have stated earlier theonly question for consideration in regard to the grant of an interim injunctionis whether there is a triable issue for decision by the Courts.
When a petitioner files an affidavit in support of an application for aninterim injunction it would be necessary for the respondent to controvert thataffidavit and lead counter-affidavits and any evidence necessary for thatpurpose. In the absence of such material being placed, the Court would haveto judge the allegations merely on tests of probability with nothing moresubstantial in reply.
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As was mentioned by Ayanger, J. in the case of Rowjee v. AndharPradesh, (supra)—
“It is no doubt true that allegations of mala fides and of impropermotives on the part of those in power are frequently made and thatfrequency has increased in recent times. . . consequently it has becomethe duty of the Court to scrutinize these allegations with care so as toavoid being in any manner influenced by them in cases where they haveno foundation, in fact. In this task which is thus cast on the Court itwould conduce to a more satisfactory disposal and consideration ofthem if those against whom allegations are made came forward toplace before the Court their version of the matter so that the Courtmay be in a position to judge. . .”
It would be helpful to examine the material that could be placed beforethe Court by the authority vested with the power under a Statute to actunder the Land Acquisition Ordinance, in regard to such acquisition, inorder to meet an allegation of bad faith:—
The respondent it is alleged by the petitioners has not stated thepublic purpose for which the land is required. The petitionerswould thus be in an unfavourable position in regard to raising anyobjections. In Somawanti’s case cited earlier the Supreme Court ofIndia held that such a declaration should not be arbitrarily, made bythe Government. The respondent’s affidavit does not contain thematerial upon which such a decision was taken which, consideringthe manner in which public affairs are conducted, would be onrecord. The public purpose was not even specified in either of thesection 2, section 4 or section 5 notices of the respondent madeunder the Acquisition Act. This aspect of the matter is, perhaps,important since the Act sets out that a declaration under section 5“shall be conclusive evidence” that the land is needed for a “publicpurpose.”
If there has been a colourable exercise of power in regard to thequestion of the “public purpose” such an exercise would be opento challenge at the instance of the aggrieved party, and if so held_ the declaration would be a nullity.
It is alleged by the petitioners that the proposed acquisition planhas been initiated by the respondent who had been influenced bymalicious and false representations made to him by the Memberfor Uva-Paranagama who is personally and politically antagonistictowards the petitioner as alleged in para 6 (c) of the petition in theHigh Court. In this connection the respondent should perhaps have
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been able to produce material to satisfy the Court that he hassought the advice and assistance of reliable and knowledgeablepersons and that even though he may have heard the views of theMember for the area he could satisfy the Court, having regard tothe nature of the advice given, that he acted responsibly and withgood reason in respect of the said acquisition. The material onwhich the respondent acted in a public and official matter like thisshould and would normally have been entered in departmentalfiles. The respondent, therefore, should have had no difficulty inplacing such material before Court in order to assist it, and thusstave off the interim injunction in that way by meeting theallegation of mala fides at the very inception of Court proceedings.In this way even unnecessary delay which may be of importanceto the State could be avoided. There are other matters generallywhich may be relevant in regard to acquisitions, as for instance ifthe respondent could show that plans were drawn and landssurveyed which, if done, would indeed be helpful material tosatisfy a Court on the issue of bad faith alleged against therespondent. One finds that no such material is set out in theaffidavits of the respondent Minister and of the public officialsbeyond a bare negation of the facts alleged in the petition.
When, therefore, the Court had to decide on the grant of theinterim injunction, which as I have stated earlier only raises thequestion whether there is a triable issue for a decision by theCourts or not, it is not surprising that, in the absence of helpfulmaterial which the respondent may well have been possessed of,the Court has granted the said interim injunctions. It is indeedsignificant that the Attorney-General did not make an appeal fromthe said order of the Court nor had he applied by way of revisioneven though his Deputy Solicitor-General had appeared andpresented arguments on this matter. The Solicitor-General’s maincontention as shown earlier rested on the argument that the words. “any act” in section 24 applies to both bona fide as well as malafide acts and consequently the Courts would not have jurisdictionto restrict such an act.
I have already in some detail dealt with this aspect of the Solicitor-General’s argument earlier in this judgment and for the reasons already givenand authorities cited hold that "mala fide unravels everything” and that theCourts do have jurisdiction in this matter having regard to the properconstruction that should be placed in respect of section 24 of theInterpretation (Amendment) Act.
It was further argued for the petitioners that the interim injunctions issuedin certain of the cases which came up before us had expired andconsequently there was no live issue to be decided upon.
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Once the time has passed for making orders in regard to the question ofthe interim injunction can we now proceed to lay down what correct law ison this matter? In short, the case is dead and consequently there would be nofurther judicial act to be done. Section 354 of the Administration of JusticeLaw No. 44 of 1973 provides for the Supreme Court to call for and examinethe record of any case for the purpose of satisfying itself as to the legality orpropriety of any judgment or order passed therein, or as to the regularity ofthe proceedings of such Court. The Supreme Court, adopting such procedureas it thinks fit, could then exercise its revisionary powers and pass anyjudgment or make any order “which it might have made had the case beenbrought before it in due course of appeal. Section 11 of the said Act,which deals with the powers of the Supreme Court in respect of appeals fromany subordinate Court, provides that the Supreme Court, inter alia, “may inaccordance with law affirm, reverse or vary any judgment or order or givedirections to such subordinate Court or … order a further hearing.”
In the case under review nothing further possibly could be done by theSupreme Court since the injunction, which is the issue involved before us,applies no more.
The word “Court” as defined in the Civil Procedure Code “means a Judgeempowered by law to act judicially.” Once the period of the interiminjunction has elapsed there is no judicial act to be performed by the Court.The word “action” is defined as proceedings for the prevention or redress ofa wrong. There is no such “proceeding” once the injunction has expired.
If under section 353 referred to earlier the Supreme Court can exercise inrevision only such powers as it could exercise in an appeal there is clearly nopower which the Supreme Court could exercise by way of revision to doanything further in respect of the issue of an interim injunction which hasexpired. Any pronouncement, therefore, which we make in respect of any ofthe cases in which the interim injunctions have expired would be purely anacademic adventure which the Supreme Court has no power to indulge in.There is no provision for the Supreme Court to make declarations as to whatis the correct law in a situation like this. If the Supreme Court presumes to doso it would not be acting judicially. The provisions of the Civil ProcedureCode and the Administration of Justice Act, which I have adverted to earlier,show that the Supreme Court can only determine live issues for otherwise itwould be exercising its revisionary powers to correct matters where the issueis dead. If the Supreme Court does so it would be acting without jurisdictionand any pronouncements made by it would be consequently withoutjurisdiction.
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In the case of Ex Parte Morris141— Roper, J. cited with approval a passagefrom the judgment of Greenberg, J. in the case of Ex parte Ginsberg142 whostated:—
“The common law in South Africa as to declaratory orders werediscussed in Geldenhuis and Meethling v. Beuthim (1918 A.D. 426) byInnes, C.J. who said in the course of his judgment that Courts of Lawexist for the settlement of concrete controversies of rights, not topronounce upon abstract questions or to advise upon differingcontentions, however important.”
Greenberg, J. goes on to state:—
“This limitation of the functions of a Court of Law has beenfundamental in our conception of the function of the Court . . . Thelegislature must have been aware of the fact that there is no dearth ofAdvocates and Attorneys competent to advise upon legal problems andthere is no reason to think that it intended to set up the Courts asconsultative or advisory bodies in competition with the members ofthese respected professions.”
In the Annotated Constitution of the United States of America, publishedin 1952 it is stated (at page 549):—
“Perhaps no portion of constitutional law pertaining to the judiciary hasevoked such unanimity as a rule that the Federal Courts will not renderadvisory opinions.”
It seems clear that in a civil matter such as this it is not open to the Courtto decide upon any matter which is not a live issue. If the Court proceeds todo so it seems clear that it would be acting without jurisdiction.
There remains a submission made by Mr. Jayewardene that it is not opento a single Judge, sitting in chambers or even in open Court, acting by way ofrevision, to call upon a party to show cause, which, according to him, is anexercise of judicial power. A single Judge, he submitted, finds no place in theCourt structure provided by the Administration of Justice Act; he, therefore,cannot sit alone or in chambers when he acts judicially.
The question raised by Mr. Jayewardene could be largely resolved byconsidering whether calling upon a party to show cause involves an exerciseof “judicial power” or not. In the case of Queen v. Liyanage (supra) thequestion arose as to whether the Minister had the power to direct a Trial-at-Bar and nominate Judges. The Court ip its order stated:—
141 Ex parte Morris (1954) 3 S.A.L.R. 154.
Ex Parte Ginsberg (1936) T.P.D. 155.
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“For the purpose of this case we are content to accept the broadclassification of judicial power attempted by the Learned Attorney-Generalhimself.”
He stated that the judicial power is used is three senses:—
In the sense of the essence of judicial power; the strict judicialpower.
In the sense of the power of judicial review.
In a loose sense, has the meaning, the powers of a Judge, e.g.. . .the powers ancillary to the judicial power.
A concise statement of Griffiths, C.J. was accepted by the Privy Councilin the case of Labour Relations Board of Saskatchewen v. John East IronWorks Ltd.'n:—
. . the power which every sovereign authority must of necessity haveto decide controversies between its subjects, or between itself and itssubjects whether the right relates to life, liberty or propriety. Theexercise of this power does not begin until some Tribunal which has thepower to give a binding authoritative decision (whether subject to appealor not) is called upon to take action.”
It would appear that the calling for a record or noticing a party to appear,as was done in this case, certainly does not involve a strict exercise of“judicial power.” Such acts do not involve a decision relating to anycontroversy between a sovereign authority and the subject. Acts such asthose referred to above are merely at the best powers ancillary to “judicialpower” given to those persons performing judicial functions. A Judgenoticing a party to appear merely invites the party to come before him inorder to satisfy himself in regard to some matter. An inquiry in respect ofsuch a matter commences when he appears and is heard. The Judge “is calledupon to take action,” if I were to re-echo Griffiths, C.J.’s words, “only at thestage such party appears and is heard.” The calling for the record and thenotices directed to be served on the parties are therefore merely incidents inthe exercise of “judicial power.” One cannot say, as was said by the Court inthe Liyanage case, that such incidents of “judicial power” are “so muchincidental to the exercise of that power or incident in the exercise of thatpower as to form a part of that power itself.
This is indeed a function which is inconsistent with the judicial actioninvolving exercise of “judicial power.” There is in short no “ascertainment ofthe existing rights by the judicial determining of the issue of fact or law” 141
141 (1949), A. C. 149.
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involved here. The test provided by Holmes, J. in the case of Prentis v.Atlantic Coast Line Co.144 that “the nature of the final act determines thenature of the previous inquiry,” would not perhaps apply here because therewas no “previous inquiry” here; the real and substantive inquiry in thepresent matter appears to me to have commenced only once the partiesappeared and the inquiry commenced after notice was served.
If the acts of calling for a record or issuing a notice on a party, as wasdone here, do not'involve an exercise of “judicial power,” on the testsreferred to by me above, then such acts could be performed by a single Judgesitting in chambers. It seems to me that if an application for leave to appealand the granting or rejecting of such leave to appeal could be performed by aJudge sitting in chambers as provided in section 326 of the Administration ofJustice Act, then it would indeed be strange that the act of calling for arecord or merely noticing a party to appear, which I have contrived to show,do not involve the real exercise of “judicial power,” could not have beencontemplated by the Legislature to have been done by a single Judge inchambers, provided the substantial question involved is attended to in openCourt once the parties have appeared.
Mr. Jayewardene submitted that this is not a case in which the powers ofrevision should be exercised since the respondent has not exercised his right .of appeal or applied by way of revision to the Supreme Court.
It would appear that the provisions of section 354 give the widest powersto the Supreme Court to “call for the record of any case, whether tried or apending trial, in any Court for the purpose of satisfying itself as to thelegality or propriety of any judgment or order passed therein, or as to theregularity of the proceedings of such Court, and may having adopted suchprocedure as it may consider fit upon revision. . . . pass any judgment ormake any order which it might have made had the case been brought beforeit in due course of appeal.”
The Learned Solicitor-General has referred us to the case of Hyman v.Thornhill (supra) reported at page 106 in which Bonser, C.J. stated:—
“But the Supreme Court is not to be governed in these cases by the wishesof parties. The object at which this Court aims, in exercising its power ofrevision is the due administration of justice… ”
In the case of Perera v. Agidahamy145 Nagalingam, A.J. stated that thewords, “pass any judgment or make any order which it might have made hadthe case been brought before it in due course of appeal instead of revision(which is the identical wording in the present section 354 of the
(1908) 211 U.S. 210.
■« (1946) 48 N.L.R. 87 at 88
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Administration of Justice Act) can only lead to the conclusion that they donot prescribe the scope or put a limitation on the powers of this Court to dealwith an application in revision.”
Accordingly I take the view that there is no irregularity in the manner inwhich these proceedings were initiated and brought up before this Court.
For the reasons given I hold:—
that the provisions of section 24 of the Interpretation (Amendment)
Act No. 18 of 1972 have no application if it can be established thatthe act of the respondent Minister was mala fide, in the manneralleged by the Petitioners.
that once the period of the interim injunction has elapsed there is no
live issue for the Court to adjudicate upon the question raised inthis case, and if the Court proceeds to do so it would be actingwithout jurisdiction and consequently could not exercise itsrevisionary powers.
that assuming there is a live issue for this Court to adjudicate upon,
there is no irregularity in the manner in which these proceedingswere initiated and brought up before this Court.
The Notice issued on the Petitioners must, accordingly, be discharged andthe records returned to the relevant Courts.