030-SLLR-SLLR-2002-3-WICKREMASINGHE-AND-ANOTHER-v.-THE-URBAN-DEVELOPMENT-AUTHORITY.pdf
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Wickremasinghe and Another v.
The Urban Development Authority
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WICKREMASINGHE AND ANOTHER
v.THE URBAN DEVELOPMENT AUTHORITY
COURT OF APPEALJAYASINGHE, J.
CA NO. 856/99JUNE 20, 2001
Writ of certiorari – Urban Development Authority (Amendment) Act, No. 4 of 1982,section 23 (3) – Revocation of powers granted to a Pradeshiya Sabha bythe Urban Development Authority – Should the revocation be done in consultationwith the local authority? – Can it be revoked without any reason being assigned?- Fair hearing – Legitimate expectation.
On or about 01. 07. 1991 the planning and development within the KataragamaPradeshiya Sabha was transferred to the Chairman and the Secretary in termsof section 23 (5) of the Urban Development Authority (Amendment) Act, No. 4of 1982. The said powers were withdrawn on 01. 02. 1999 without any reasonbeing assigned.
Held:
Rules of natural justice demand that there has to be a fair hearing beforean administrative authority acts or makes decisions affecting the rights ofsubjects.
Legitimate expectation is pivoted on fairness and reasonableness; as longas these two components coexist there can and always will be legitimateexpectation.
A public authority has a duty to act with fairness and consistency in dealingwith the public and if it makes inconsistent decisions unfairly and unjustly,it misuses its powers.
APPLICATION for a writ in the nature of certiorari.
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Cases referred to :
Attorney-General v. Silva – 60 NLR 145.
Prathap Singh v. State of Punjab – AIR (1964) SC 72.
Rowjee v. State of Andra Pradesh – AIR (1964) SC 962.
Breen v. Amalgamated Engineers' Union – (1971) 2 QB 175.
Padfield v. Minister of Agriculture, Fisheries and Food – (1968) AC 997.
Ridge v. Baldwin – (1964) AC 40.
Shibly Aziz, PC, with S. Dayaratne for petitioners.
R. K. W. Goonesekera with Shiranthi Jayatillake for 1st to 9th and 12th and 13threspondents.
Cur. adv. vult.
August 03, 2002
C. N. JAYASINGHE, J.
This is an application for a writ of certiorari to quash the decisionof the 1st to 3rd respondents revoking the powers granted to theKataragama Pradeshiya Sabha in terms of section 23 (5) of the UrbanDevelopment Authority (Amendment) Act, No. 4 of 1982 in respectof planning and development of the Kataragama Pradeshiya Sabhaarea: to quash the decision of the 1st to 3rd respondents to appointa new Planning Committee for the said area; for a writ of mandamuscompelling the 1st to 3rd respondents to revest in the petitionersthe said powers; for interim relief restraining the 4th to 14th respondentsfrom carrying out any functions in relation to planning and developmentand for costs.
The petitioners state that with effect from 01. 07. 1991 planningand development within Kataragama Pradeshiya Sabha wastransferred to its Chairman and Secretary in terms of section 23(5) of the Urban Development Authority Act, No. 4 of 1982, videP1, that the services of the representative of the Urban Development
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Authority who was a member of the Planning Committee was withdrawnas from 18. 11. 1998 by P2 and thereafter by letter dated 01. 02.1999 the 2nd and 3rd respondents withdrew the powers of planningand development vested in the said Kataragama Pradeshiya Sabha,vide P3. The said notice was published in the Press. Petitioners state 20that the powers vested in the other Pradeshiya Sabhas by the UrbanDevelopment Authority in terms of the said provision still remain withthose Pradeshiya Sabhas and petitioners allege that aforesaid withdrawalof powers is discriminatory, arbitrary and unreasonable and that theconduct of the respondents is politically motivated illegal and / orunreasonable.
The respondents in their objections alleged that powers delegatedto the said Pradeshiya Sabha were withdrawn, inter alia, for the reasonthat Kataragama Pradeshiya Sabha had issued unauthorised buildingpermits in the area and also allowed unauthorised constructions in 30the lands belonging to the Urban Development Authority without itsapproval. The respondents deny that the Kataragama PradeshiyaSabha was singled out and discriminated and stated that the powersdelegated to the Anuradhapura and Nuwara Eliya local authoritieshave also been withdrawn. The respondents denied that they actedmala fide.
The petitioners thereafter filed counter objections.
The learned President's Counsel submitted that the petitioners whowere the Chairman and Secretary of the Kataragama PradeshiyaSabha at the time were neither informed of any failing on their part 40in relation to the powers delegated nor asked to answer any allegationsagainst them. Mr. Goonesekera, however, submitted that there is nocondition to be satisfied prior to revocation, such as opportunity toshow cause. This is so because there is no decision that affects therights of the person to whom power is delegated and there can beno legitimate expectation of a continued exercise of delegated powers.
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The matter for determination by this court is therefore, whether, suchdelegated authority can be revoked by the delegating authority withoutany reason being assigned.
Section 23 (5) provides that:
"The authority may delegate to any officer of a local authority,in consultation with that authority any of its powers, duties andfunctions relating to planning within any area declared to be adevelopment area under section 3 and such officer shall exercise,perform or discharge such power, duty or function so delegatedunder the direction, supervision and control of the authority."
Mr. Aziz sought the intervention of court complaining that the UrbanDevelopment Authority gave no reasons for the revocation of theauthority granted in terms of section 23 (5) submitting that upon thesepowers being delegated, the Kataragama Pradeshiya Sabha engageditself on extension development projects with the legitimate expectationthat the Pradeshiya Sabha would be permitted to continue. If the UrbanDevelopment Authority gave reasons for jts decision, the PradeshiyaSabha could have persuaded the Urban Development Authority topermit the status quo to remain. He submitted that the revocation ofthe authority was done unreasonably and mala fide in that the otherPradeshiya Sabhas have been permitted to exercise the powers thathave been delegated to them. He submitted that this court will interveneboth on the grounds of unreasonableness and mala fide. Mr. Azizalso submitted that section 23 (5) allows the Urban DevelopmentAuthority to delegate to any officer of a local authority any of itspowers, duties and functions relating to planning in any area declaredto be a development area and that such delegation is discretionary.No local authority can demand that these powers be delegated toit. To that extent the delegation is discretionary. He submitted thatsuch delegation will have to be done in consultation with the localauthority. There was, therefore, a consensus between the UrbanDevelopment Authority and the local authority regarding the exercise
so
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of the powers delegated. Thus, any revocation of the powers delegatedunder section 23 (5) must necessarily be done in consultationwith the local authority and when there is a withdrawal of the powersthe local authority will know the reason why it has been done. InAttorney-General v. Silvam it was held that the process of revocationmust follow the same route as the delegation.
Mr. Aziz argued that discretionary power exercised by publicauthority must be reasonable and transparent. Wade and Forsyth 8thed. at page 351 says that:
"For more than three centuries it has been accepted thatdiscretionary power conferred upon public authorities is not absoluteeven within its apparent boundaries, but is subject to generallegal limitations. These limitations are expressed in a varietyof different ways, as by saying that discretion must be exercisedreasonably and in good faith, that relevant considerationsonly must be taken into account, there must be no malversationof any kind, or that the decision must not be arbitrary orcapricious …" It is further stated at page 356 °. . . statutorypower conferred for public purpose is conferred as it were upontrust, not absolutely – that is to say that it can validly be usedonly in the right and proper way which Parliament when conferringit is presumed to have intended … (the argument) that unrestrictedpermissive language confers unfettered discretion, the truth is that;in a system based on the rule of law unfettered governmentaldiscretion is a contradiction in terms . . ."
The learned President's Counsel submitted that it is now anestablished tenant of Administrative Law that no discretionary poweris unreviewable. He relied on de Smith Woolf Jowell in Judicial Reviewof Administrative Action where it is stated at page 311 (5th ed.) that:
“Meanwhile our brief excursus into judicial control of discretionarypower indicates that no statutory power is any longer unreviewable."
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The petitioners state that the conduct of the respondents is politicallymotivated and that the Member of Parliament for the area does notapprove of the area being administered by a United National Partydominated Pradeshiya Sabha; that there being a total absence ofcircumstance demonstrating the necessity for the said revocation, itis mala fide, and actuated by improper and collateral considerations.The 3rd respondent in his affidavit has not denied this allegation asfound in paragraph 16 of the petition. In Prathap Singh v. State ofPunjab the appellant, a civil surgeon, was initially granted leavepreparatory to retirement, but subsequently revoked and placed undersuspension and disciplinary proceedings instituted on an allegation ofbribery. The appellant alleged that disciplinary action was initiatedagainst him at the instance of the Chief Minister because he refusedto yield to illegal demands of the Chief Minister. The Chief Ministerdid not deny these allegations by affidavit or place any evidencecontradicting the allegations. The Supreme Court held that the allegationof mala fide was sustained. In Rowjee v. State of Andra PradeshBthe appellant alleged that the Chief Minister had acted mala fide inproposing the. nationalisation of certain transport routes because hesought to take vengeance on the private operators as they were hispolitical opponents. Court observed from the course of events andthe absence of an affidavit from the Chief Minister denying the chargeagainst him, mala tides on the part of the Chief Minister was established.
Mr. Aziz then went onto submit that the exercise of a discretionarypower on irrelevant grounds or without regard to relevant considerationsmake the exercise of discretion bad in law. In essence discretionmeans the power to objectively decide on the best course of actionwhen faced with alternatives. In such a situation it is imperative thatthe focus should fall on relevant considerations to the completeexclusion of the irrelevant. The learned President's Counsel chargedthat if the Urban Development Authority has been influenced byirrelevant considerations or if irrelevant considerations have beenomitted from consideration, its decision to revoke the delegation ofpowers would necessarily be unlawful. Mr. Aziz submitted that the
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bulk of the complaints against the petitioners are found in paragraph15 of the 3rd respondent's affidavit; some "misdemeanours0 date to1993-1995 and the others could have been explained if an opportunitywas given; some being trivial and some others not being valid. It isfor this reason that he submitted that the exercise of power had beenon irrelevant grounds. Lord Denning MR in Breen v. AmalgamatedEngineering Union® stated that:160
"The discretion of a statutory body is never unfettered. It isa discretion which is to be exercised according to law. That meansat least this: the statutory body must be guided by relevantconsiderations and not by irrelevant. If its decision is influencedby extraneous considerations which it ought not to have taken intoaccount then the decision cannot stand. No matter that the statutorybody may have acted in good faith nevertheless the decisionwill be set aside. That is established by Padfield v. Minister ofAgriculture, Fisheries and Food|S> which is a landmark in modernAdministrative Law."170
The petitioners also complained that they have been singledout in that the other Pradeshiya Sabha throughout the Island continueto exercise the power delegated to them by the Urban DevelopmentAuthority. They say that there was no reason for such discriminatorytreatment unless the Urban Development Authority was motivatedby improper and collateral considerations. The Court of Appeal inEngland time and again has held that a public authority has a dutyto act with fairness and consistency in dealing with the public andif it makes inconsistent decisions unfairly and unjustly it misuesits powers.ieo
Mr. Goonesekera argued that there can be no legitimate expectationof a continued exercise of delegated power. He submitted that thereis no decision that affects the rights of the person to whom the power.is delegated. I am unable to subscribe to this view. Legitimate expectationis pivoted on fairness and reasonableness. As long as. these two
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components coexist there can and always be the legitimateexpectation.
Rules of natural justice demand that there has to be a fair hearingbefore an Administrative Authority acts or makes decisions affectingthe rights of subjects. As Wade says in its broadest sense naturaljustice may mean simply the "natural sense of what is right and wrong"and even in its technical sense it is often equated with fairness. Ridgev. Baldwin{6} reinstated the right to a fair hearing as a rule of universalapplication in the case of administrative acts for decisions affectingrights and natural justice must apply where some legal right, libertyor interest is affected. Petitioner complains that the delegated authoritywas revoked without any reason being assigned.
I, accordingly, issue a writ of certiorari quashing order by the 1st,2nd and 3rd respondents’ 'P3' dated 01. 02. 1999.
Writ of certiorari quashing the decision of 1st, 2nd and 3rdrespondents’ decision to appoint a new Planning Committee.
Writ of mandamus compelling the 1st to 3rd respondents to revestin the petitioners the said powers in respect of Planning andDevelopment.
Application for writ is allowed with costs.
Application allowed.
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