142-NLR-NLR-V-48-WEERARATNE-Petitioner-and-POULIER-FOOD-COMMISSIONER-et-al.-Respondents.pdf
Weeraratne v. Poulier, Food Commissioner.
441
1947
Present: Dias J.
WEERARATNE, Petitioner, and POULIER, FOODCOMMISSIONER, et al., Respondents.
S. C. 134—Application for a Writ of Certiorari and Mandamuson the Food Commissioner and the Assistant Food Controller,
Kandy District.
Certiorari—Food ControKSpecial Provisions) Regulatoins, 1943—Section' 18(1 >Revocation of authority given to “authorised distributor’’—“If heconsiders it expedient so to do in the interests of the public’’—DocsDeputy Food Controller act in a judicial or an administrative capacity ?
1 (Ullfl) 21 X. L. It. r,l.• (1925) 6 C. L. /fee. 74H.
1 (1921) 23 X. L. R. ISO.
442
DIAS J.—Weeraratne v. Poulier, Food Commissioner.
Section 18 (1) of the Food Control {Special Provisions) Regulations,1943, empowered the Deputy Food Controller to revoke the authoritygiven to an “ authorised distributor ” if he considered it expedientso to do in the interests of the public.
Held, that in acting under these powers the Deputy Food Controllerwas acting in an administrative capacity and not in a judicial capacity,and that certiorari did not lie.
Abdul Thassim v. Edmund Rodrigo 1 (.Five Judges) distinguished.Franklin v. Minister of Town Planning- (House of L.ords) considered.
PPLICATION for writs of certiorari and mandamus.
E. B. Wickramanayake (with him H. Samaranayaka), for the petitioner.No appearance for the respondent.
H. H. Basnayake{ K.C., Acting Attorney-General (with him WalterJayawardene, Crown Counsel), for the added respondent.
Cur. adv. vult.
September 17, 1947. Dias J.—
Sec. 18 (1) of the Food Control (Special Provisions) Regulations, 1943,reads as fololws : —
“ 18.(1) The Deputy Food Controller for any district or area may
at any time, if he is satisfied that any authorised distributor ..
has acted in contravention of or failed to comply with any provisionsof the Ordinance, or of these Regulations … . or if he considers
it expedient so to do in the interests of the public, by order revoke theauthority granted …. to that distributor …. underRegulation 5 of this Part.
(2) Every order made by the Deputy Food Controller underparagraph (1) of this Regulation, shall be final and conclusive ”.
The petitioner is a trader carrying on business at Gampola in the Kandydistrict under the name of Weeraratna Bros. The added-respondentis the Deputy Food Controller for the Kandy district.
It is common ground that under section 5 (1) (b) of the Regulations thepetitioner had been appointed an “ authorised distributor ” of rice andHour. The date of his authorisation has not transpired. On March 18,1947, the added-respondent gave the peititoner notice by his lettermarked “ A ” that the registration of his licence as an authorised dis-tributor under the Food Control Scheme was cancelled with effect fromMarch 31, 1947. The added-respondent followed this up by his. lettermarked “ R1 ” to the following effect: “ The revocation with effect fromMarch 31, 1947, of the authority granted to you as an authorised dis-tributor was made as I considered it expedient in the interests of thepublic in terms of Regulation 18 (1)….” This letter is dated
March 28, 1947. It is also common ground that before making theseorders no notification was given to the petitioner of the intention torevoke his authority, nor was he afforded an opportunity of being heardor showing cause against the proposed revocvation of his authority.
1 (1947) 48 N. L. R. 121.* (1947) 2 A. E. S. 289.
DIAS J.—Weeraratne v. Poulier, Food Commissioner.
443
The original respondent has now dropped out of these proceedings,and no relief is claimed against him. When the added-respondentbecame a party to these proceedings he filed the affidavit “ XI ” wherehe repeats that he withdrew the authority granted to the petitionerbecause he considered it expedient in the public interest so to do, andadded : “ I exercised the power of revocation given me by law in goodfaith after considering a report in the accuracy of which I had goodgrounds to believe
The case for the petitioner is that this case cannot be differentiatedfrom the principle laid down by the Full Court in Abdul Thassim v>Edmund RodrigoIt is contended that the petitioner was exercisingjudicial or quasi-judicial powers in this matter, and that as his authoritywas revoked without his being heard, the added respondent actedirregularly and without jurisdiction. It is submitted that by means ofcertiorari this Court will quash the order of the added-respondent. andby means of mandamus compel him to restore the authority to thepetitioner.
The Attorney-General, on the other hand, contends that the added-respondent acted in an administrative and not in a judicial or quasi-judicial capacity, and that, therefore, the Courts have no jurisdiction toquestion the validity of an administrative act. It is also submitted thatas Regulation 18 (2) makes the order of the added-respondent “ find andconclusive ”, there is nothing further that can be done, and that thepetitioner’s remedy, if any, is to move the executive.
Section 18 (1) of the Regulations indicates that the Deputy Food Control-ler can revoke an authority (a) if he is satisfied that an authorised distribu-tor has done something wrong or irregular and (b) “if he considers it ex-pedient so to do in the interests of the public ”. It is. clear that inrevoking the petitioner’s authority the added-respondent was actingunder (b). The question, therefore, is whether the added-respondent,when he withdrew the petitioner’s authority because he considered itexpedient in the interests of the public so to do, was acting in an adminis-trative capacity, or in a judicial or quasi-judicial capacity? It is notdenied that if he was acting in the latter capacity, the order cannot stand-It is equaly clear that if the added-respondent was acting in an adminis-trative capacity, this application must fail.
The question whether a public servant acted in an administrativecapacity or in a judicial or quasi-judicial capacity was considered bySoertsz J. in Dankoluwa Estates Co. v. The Tea Controller. In that casethe Tea Controller was empowered ” If it appears in him that an errorhas been made …. he may by order declare ….”
Soertsz J. said “ No duty is laid upon him expressly or by implication tohold an inquiry, and to give the parties concerned an opportunity to beheard, and the section takes care to say that what he is called upon todo is by order to declare, not to decide .. .. It is of course un-
doubted that persons and bodies called upon by statute to performministerial and administrative functions, are expected to act, and almostinvariably do act “ judicially ” in one sense of that word, but they arenot acting “ judicially ” in the meaning that word bears in the phrase
1 (1947) 48 AT. L. R. 121.*
(1941) 42 N. L. R. at p. 207.
444DIAS J.—Weeraratne v. Poulier, Food Commissioner.
‘ under a duty to act judicially ’ This decision was considered by theFull Court in Abdul Thassim v. Edmund Rodrigo (supra) and was distin-guished, because in the latter case the duty of the public servant concernedwas held to be of a judicial or quasi-judicial nature.
The matter came before the House of Lords in the case of Franklin v.The Minister of Town Planning'. The question was whether Section 1and Schedule 1 of the New Towns Act, 1946, conferred judicial oradministrative powers on the Minister for Town and Country Planning.This minister during the second reading of the Act had made certainpublic speeches which were alleged to show that he was biassed in regardto a certain order he subsequently made when the Act became law. Itwas held by the House of Lords that no judicial or quasi-judicial dutywas imposed by the Act on the Minister whose duties under the relevantprovisions were purely administrative. Therefore any reference tojudicial duty or bias was held to be irrelevant in that case.
There are local cases which afford some guidance in this matter. Undersections 113 and 119 of the Civil Procedure Code the duty is imposed onDistrict ^Judges and Commissioners of Requests of appointing “ sworntranslators” to their Courts. The Judge selects a proficient person whotakes the oath of office and to whom the Judge issues a certificate. Whena Judge revoked the authority given to a sworn translator, the SupremeCourt refused to interfere on the ground that the matter was an adminis-trative and not a judicial act.—In re a Sworn Translator Under theIncome Tax Ordinance the Commissioner is empowered to approve ofpersons who are styled “ authorized representatives When theCommissioner revoked the authority given to such a person the SupremeCourt refused to interfere. It was held that the Commissioner was notbound either to frame a charge or to hold an inquiry before withdrawingthe authorisation—Value v. Commissioner of Income Tax3. See alsothe observations of Canekeratne J. in the recent case of an applicationfor writs of certiorari and mandamus on the Local Government ServiceCommissioner (S. C. Minutes of September 15, 1947).
•No general rule can be formulated to govern every case. It is a questionfor decision in each case whether the powers conferred by the statuteor regulation are judicial or administrative. It may be that under thefirst part of section -18 (1) the Deputy Food Controller when making anorder thereunder acts in a quasi-judicial capacity. It is unnecessaryin the present case to consider this aspect of the matter, as the added-respondent acted under the latter part of section 18 (1).
In my opinion the powers conferred by the latter part of section 18 (1)of the Regulations confer administrative and not judicial or quasi-judicial powers. When an “ authorised distributor ” is appointed heis not given a licence, but merely an authority. Under section 5'(1) (b)of the Regulations the Deputy Food Controller is empowered toauthorise a sufficient number of persons to be authorised distributors ”.Assume that in January the Deputy Food Controller considers thatfifteen authorised distributors are necessary, but in March he forms the *
* {1947) 2 A. E.R. at p. 29j.
3 {1943) 45 N. L. R. 6.
3 (1932) 12 C. L. Ree. xciv.
445
Toussaint v. Dharmadasa.
v:ew that the number should be reduced to five. It seems to be un-reasonable to expect the Deputy Food Controller to issue ten notices tothose he wants to discontinue and call upon them to show cause whythey should not be discontinued. Such a requirement would bring theadministration of the Food Control system to a virtual standstill. Noauthorised distributor has the right to assume that his appointment oncemade can continue indefinitely or until control is finally terminated.
I hold that the powers conferred on the added-respondent under theletter part of section 18 (1) are not judicial or quasi-judicial, but are of anadministrative character to enable him to carry out the Food Controlregulations efficiently in the public interest. In this case the petitionerwas given reasonable notice of the withdrawal of his authority. If heconsiders that he has a grievane it is to the executive and not to theCcurts that he must apply for redress.
The application fails, and the rule nisi must be discharged with costs.
Rule nisi discharged.