WICKREMASINGHE v. CEYLON ELECTRICITY BOARD AND ANOTHER

026-SLLR-SLLR-1982-2-WICKREMASINGHE-v.-CEYLON-ELECTRICITY-BOARD-AND-ANOTHER.pdf


CA
Wickremannghe
Cevlon Elect) icm Hoard
607
WICKREMASINGHE
v.
CEYLON ELECTRICITY BOARD AND ANOTHER
COURT OF APPEAL
L.H. DE ALWIS, J.. AND SENEVIRATNE. J.
C.A. 1049/82SEPTEMBER 10. 1982
Writ of Certiorari – Electricity Act – Natural ,Ju.ticc – Dispensability – of ruleDelegation of authority and resumption – Abdication of statutory authority.
By Notice dated 6.4.82 the 1st respondent intimated to.the petitioner that itintended to survey the petitioner's land, lop off branches and cut down trees,dig trenches, erect posts and fix wires etc. for the purpose of carrying transmissionlines from Victoria to Colombo.
Before the petitioner could lodge her objections within the time given the 2ndrespondent sent a. letter to the 1st respondent with copy to her stating that hehad inquired into the petioner's objections and was of the view that the proposedroute was the most suitable. He authorized under s. 15(71 the 1st respondent totake all steps necessary to erect tines across the petitioner's land.
The petitioner appealed against this order on the grounds that petitioner wasnof given'an opportunity Of being heard, that there was non-compliance withstatutory preconditions and that there Was an abdication of authority.
Held –
That the petitioner. was given an opportunity of being heard after thecommencement of hearing although in .the circumstances of the case theaiidi’ alteram parte n rule could have been dispensed with. .
There was no abdication of authority because responsibility for delegated…n work remained in the party delegating.
| Authority co.uld be delegated, and resumed.-after revocation of delegation.
Cases' referred to:
/< .
Silva v. Attorney-General (1958) 60 N.L.R. 145
' Manton v. Brighton Corporation 11951) 2 K.B. .19.?
608
Sri Lanka Law Reports
(1982) 2 S.L.R.
The Ceylon Co-operative. Employees Federation v. The Co-operative EmployeesCommission (1976) 78 N.L.R■ 518
De Verteuil i Knaggs (1918) A.C. 557 (P.C.)
Re Pergamon Press Ltd.. (1971) Ch. D. -388• (6) Ridge v. Baldwin (1964) A.C. 40
(7) Ex parte Ostler (1977) Q.B.l). 122APPLICATION for writ of certiorari.
Lai: Mustapha for petitioner.
J.C. Boange for 1st respondent.
P. Tennekoon. S.S.C for 2nd respondent.
Cur. adv. vult.
September 17. 1982L.H. DE ALWIS, J.
The 1st respondent is a body corporate created and established bythe Ceylon Electricity Board Act, No. 17 of 1969 and has all thepowers conferred on a licensee by the Electricity Act, Chap. 205.The petitioner is the owner of the lands, called NithulgahamulaKumbura and Uadagamayage Kumbura in extent about two acressituated in Medasiyapattuwa in the district of Matale.
By notice dated 6.4.82 (P2) issued under the Electricity Act, Chap.205, the 1st respondent intimated to the petitioner that it intendedto survey the petitioner’s land, lop off branches of trees, mark andcut down trees on the land, dig trenches, erect posts and affix wiresand perform other acts on the said land.
The petitioner lodged her objections with the 2nd respondent, andwas directed to attend an inquiry before an Officer authorised by the2nd respondent, on the 2nd of July 1982. The petitioner was unableto attend the inquiry due to ill health and submitted a medicalcertificate stating that she was unfit to attend the inquiry for a periodof 14 days. The inquiry was then postponed for the 12th of July1982. On that day her husband appeared on her behalf at the inquiryand wished to be furnished with a detailed statement of the workcontemplated to be carried out under section 15(2) of the ElectricityAct. He was informed that the next date of the inquiry would beintimated to him.
CAWickremasinahc r. Ceylon Kleemein Hour,/ il II. </<■ Aiwa. J > Nl(>
. In the meantime the_ 2nd respondent inspected the petitioner's landin the absence of the petitioner arid on 16.7.82 sent a letter (1*3) tothe General. Manager of the Ceylon Electricity Board /Senior CentralEngineer, Kandy) with a copy to the petitioner, stating that he hadinquired into the objections of the petitioner to the erection of theproposed power line across her land, and after inspection of the land,was of the view that the proposed circuit was the mdst suitable onefor the erection of the electricity transmission line. Under section15(7) of the Act he authorised the Electricity Board to take allnecessary action to erect the said transmission line across the Tandof Mrs. Wickremasinghe, and,,for that purpose to perform the actsspecified in the notice. P2..issued under section. 15(2). He. also directedthat the necessary frees , on the land should be cut down . andcompensation be paid fpr, them. •
ft is.this order of the 2nd respondent,,dated 16.7.82 (P3). that the-petitioner seeks to quash by the issue of a :Writ of Certiorari., >•«
The Senior Central Engineer attached=t<o the Electricity Board inKandy filed an affidavit stating that the'purposc of laying the electricity’transmission lines is to supply adequate power to the Victoria Projectwhich is part of the Accelerated Mahawcli Programme, and is ofcrucial importance to the country. As a result of the lack of electricpower the Government has to incur an additional expenditure ofseveral lakhs of rupees on the purchase of diesel oil to operate thegenerators to supply the additional electricity. The supply of electricityalong’ the proposed line has been held up as a result of the ‘stayorder^ issued by this Court.
pn 30.9.82 when the matter came up for hearing before this Court,in view of the urgency of the matter, it was agreed among Counselfor the respective parties that the Government Agent should-'inspectthe petitioner’s land again on or before 3.9.82 in the presence ofthe petitioner and -some technical officer of the Ceylon Electricity'Board with a view to ascertaining a suitable route for the fixing ofthe transmission lines causing -as little damage as possible to thepetitioner’s land. .The petitioner was permitted to take up anyobjections at that inspection. The Government Agent has since held'a second inspection and has filed his report dated 1.9.82 grantingthe 1st respondent permission to install the transmission lines acrossthe petitioner’s land. The petitioner was given an opportunity offiling a further affidavit after considering the Government AgcnCsReport, and he has now done so.
610
Sri Lanka I .an' Reports
(m2) 2 S.I..R
Counsel for the petitioner challenged the order of the 2nd respondentdated 16.7.82(P3), on. three grounds, as set out in the summary ofhis written submissions tendered to Court.
They are as follows:-
violation of natural justice;
non-compliance with the statutory pre-conditions for the
exercise of the power;
abdication of statutory authority.
P3 is a letter written by the 2nd respondent to the 1st respondentwith a copy to the petitioner stating that he inquired into thepetitioner’s objections and had inspected her land. He stated thathe approved of the proposed laying of the electricity transmissionline across the petitioner’s land as the most suitable route andauthorised the 1st respondent to take all necessary action undersection 15(7) of the Act, subject to the payment of compensationfor the trees cut down in the process.
Dealing with items (a) and (b) together, learned Counsel submittedthat there was a non-compliance, with the provisions of the ElectricityAct which resulted in a violation of natural justice.
Section 15(2) of the Electricity Act requires that before a licenseeenters on any land for the purpose specified in sub-section (1), heshall give thirty days notice stating as fully and accurately as possiblethe nature and extent of the acts intended to be done. Such noticeshall be substantially in the prescribed form. The complaint of learnedCounsel for the petitioner is that the notice P2 dated 6.4.82 givento the petitioner did not set out the proposed route, for the installationof the high tension electric line over the petitioner’s land. But asthe notice P2 itself discloses and as the petitioner himself admittedin his affidavit, the notice did state that the 2nd respondent intendedto survey the petitioner’s land, lop off branches of trees on the saidland, mark the trees standing thereon,, cut down the trees, digtrenches, erect posts, affix wires and perform other acts on the saidland. The 1st respondent could not possibly, at that stage, give anyindication as to the route along which the transmission lines shouldbe taken over the petitioner’s land before he inspected and surveyedthe land. In my view the notice P2 was a sufficient compliance withsection 15(2) of the Electricity Act and the petitioner has no causefor complaint on'that ground.
Section 15(4) provides for the lodging of objections in writingwithin 14 days, to any of the intended acts of the licensee, by the
(VI
Wi, krrimiini;lir r (I'b-cin. i:v /(. -,//,/ 11 II ,h■ ,./ I
61
person on whom notice under section 15(2) is served. The GovernmentAgent is thereafter required to fix the matter for Hearing and togive notice of'the date to the person concerned.
Section 15(6) requires the Government Agent to hold the inquiryand to give the party concerned an opportunity to he hetjrd or todirection officer_.to hold such inquiry, on his behalf and to, makerecommendations, to him..,. .
Section 15(7) provides that upon the conclusion of the inquiry Jieldby the Government Agent or upon receipt of the recommendationsmade by the officer directed to hold the inquiry, the Governmentagent may, subject1 to such terms, conditions and stipulations as hethinks fit, authorize dr prohibit any of the acts mentioned in thenotice given under sub-section (2).
The inquiry into the petitioner's objections .was commenced, onthe directions1 of the 2nd respondent, by the Addl. GovernmentAgent, with notice to the. petitioner, but before it was concluded,tjie ..Government. Agent inspected.,'the land., himself and made theorder PS.cp/nplained^f, -Stripeittqujryv was not concluded, it issubmjtfed,.that .the.petitioner was rpt..gi,vpn a. full hearing, in violationof ,the p^ipcipl^S.of.natural justice. Thereafter, when the 2nd respondenttoak.pv.iyr, the. inquiry and inspected(and. the petitioner was notgiven an .opportunity of being .present, and raising any objections inviolation of .natural justice.
When the matter came up for. hearing before this Court on 30.8.82.in view of the urgency of the matter it was agreed that the Governmentagent should again visit the, land in the presence of the petitionerafter giving her notice, and decide ,upon a convenient, route for thelaying of the transmission lines causing, as little damage as possibleto,.the petitioner’s land. The petitioner was permitted to raise anyobjection at that inspection. It is after the second inspection thatthe 2nd respondent filed his report dated 1.9.82 in Court. Theinspection was carried out on that day by the 2nd respondent in thepresence of the petitioner’s husband and the Electrical Superintendentof the Ceylon . Electricity Board. After taking into consideration theobjections raised by the petitioner’s husband, the 2nd respondentsaw no reason to vary the order he had made earlier and was ofthe view that the 1st respondent should be granted permission toinstall the transmission lines across the petitioner’s land as pointedout by the 1st respondent and to cut down the necessary trees. .
612
Sri Umka Law Reports
(1982) 2 S.L.R.
Learned Counsel for the petitioner contended on the authority ofSilva Vs. The Attorney-General, (1) that once a power is delegatedto another officer, it denudes the delegating authority of that powerand such power cannot be exercised thereafter unless the delegationis formally revoked by a second order, so that it was not open tothe 2nd respondent to inspect the petitioner’s land and make hisorder P3, while the delegation of the power to hold an inquiry tothe ‘Additional Government Agent was still in force. The case reliedupon is clearly distinguishable from the present case! There, thePublic Service Commission which was vested with the appointment,transfer, dismissal and disciplinary control of public officers in thePublic Service Commission under the Ceylon (Constitution and Inde-pendence) Orders-in-Council 1946 and 1947, delegated its power ofdismissal of the accused to the Director of Irrigation. But before theDirector of Irrigation could make an order dismissing the appellant,the Public Service Commission decided to dismiss him while thedelegation of its power to the Director of Irrigation was still in force.
In the present case* on the other hand, the legislature by section15(6) of the. Electricity Act has empowered the Government Agentto hold the inquiry or to direct an officer to hold such inquiry andmake recommendations to him which the Government Agent mayor may not adopt. The delegate has no power to decide the matterbut only to make recommendations to the delegating authority. It isonly the Government Agent who is empowSted to make a decisionthat is final.
In Manton Vs. Brighton Corporation, (2) it was held that a statutorypower to delegate will normally include a power to revoke thedelegation when desired. Slade, J. at page 403 said that the delegatingpower can at any time resume their authority by saying that in theirjudgment not only can they resume their own authority with whichthey have never parted but they can revoke the authority which theyhave delegated. He further said “one cannot divest oneself of one’sstatutory duties. One can get another to perform them, and if heperform them properly, well and good; if he does not, one will stillhave to perform them oneself and therefore one cannot divest oneselfof those duties. I was told that, whereas most of the functions ofthe Standing Committee were to make recommendations to theCouncil, there was also in some cases entrusted to the StandingCommittees the exercise of executive powers. In so far as they merelymake recommendations, the remedy of the appointing authority iseasy; they may merely refrain from adopting the recommendations
C /lWickrcmus'in^hr » (V»*/«»« I lc* tm n lUunJ i! // Jr Aiwts. j613
when they do not like them. In so far as the delegation is of executivepowers, it seems to me it must he the ease that the appointor can tdetermine the authority of the appointee."
In the instant case, probably in view of the slow progress of theinquiry caused by a,.postpnncmcnt clue to the tendering of a medicalcertificate by the petitioner and in view of the urgency of the matterthe 2nd respondent apparently decided to expedite the inquiry bytaking it over himself and inspecting the land. As the delegatingauthority he had in this case the power to revoke the delegationgiven to the Additional Government Agent and to take over theinquiry himself. This submission therefore fails.
It was next contended that the order made bv the 2nd respondentafter his first inspection of the petitioner’s land was a nullitv in viewof the violation of the principles of natural-justice and cannotsubsequently be validated by a second inspection, after the mattccicame to Court. But no objection was taken to this procedure byCounsel for the petitioner when it was suggested in Court as themost suitable way of solving the problem in view of the urgency ofthe situation. It must be said in fairness to learned Counsel for thepetitioner, that he willingly agreed to having another inspection heldprovided his client was given an opportunity of being present andof raising any objections there. Having been a party to such anagreement it does not now lie in his mouth to challenge the validityof the second inspection. It must be noted that certiorari is adiscretionary remedy and this Court has the power to withhold it ifit thinks fit. This Court will do so.in the case of an unmeritoriouspetitioner, even though there has been a clear violation of naturaljustice. Wade ibid 455. Moreover, as will be pointed out later, notmuch prejudice and detriment has been caused to the petitioner bythe procedure adopted.
The contention of learned Counsel was that sub-sections 4.6 and7 of section 15 of the Act contemplate an inquiry at which oralevidence and submissions are made and that an inspection of theland is no substitute for it. He relied on the case of The CeylonCo-operative Employees Federation Vs. The Co-operative EmployeesCommission, (3) where it was held that the words “to hear appealsout of disciplinary orders" prima facie appears to bring in the ruleof audi alteram partem and the right to make oral submissions. l)eSmith in Judicial Review of Administrative Action. 4th L:.d. page 1*12however states “Doubtless there are also many cases where procedures
614
Sri Lanka Law Reports
(1982) 2 S.L.R.
involving inspection, testing or examination can be regarded asadequate substitutes for hearings.”
In the present case learned Counsel for the petitioner agreed inCourt to the adoption of the procedure of an inspection at whichhe^..opportunity of being present and of making oral
objections, ^e refjort of the 2nd respondent dated 1.9.82 tenderedto this.Jpou^t. shows ffiat the petitioner’s husband was present at thesecond inspection and did raise objections which are dealt with inthe report. The alternative routes suggested by the petitioner’s husbandfor laying the transmission lines, have been carefully examined bythe 2nd respondent with the assistance of the technical expert, inthe person of the Electrical Superintendent, 'ahd 'have been ruledout as ndt feasible. Ultimately the route proposed' by thfe 1st‘respondentwas approved as it involved the felling of the least1 rttihibe'r of'treeson the petitioner’s land. In my view an on-the-Spdt iWspeCfibrt of thesite affords a far better approach to a solution'of this‘nature "thanany oral evidence and submissions can provide in an Office room.The subrttiSsibn' of learned1'Counsel must fail.
lili s’-J! "I ■..-■■J:' i l
Broadly speaking.'howevej;, one can say that the Courts will showspecial restraint in applying, tests of legality where (1) a power is
exercisable in “emergency conditions” or (2) the policy content
of the power is large and its.exercise affects large numbers of people.De Smith ibid p. 297. That urgency may warrant disregard of theaudi alteram partem rule in other situations is generally conceded.De Smith ibid p. 191.
In De Verteuil Vs. Knaggs, (4) their Lordships of the Privy Councilsaid “The particular, form of inquiry must depend on the conditionsunder which the discretion is exercised in any particular case, and
no general rule applicable to all conditions can be formulatedIt
must, however, be borne in mind that there may be special circumstanceswhich would justify a Governor, acting in good faith, to take actioneven if he did not give an opportunity to' the person affected tomake any relevant statement or to correct or controvert any relevantstatement brought forward to his prejudice. For instance, a decisionmay have to be given on ah emergency, when promptitude is ofgreat importance; or there might be obstructive conduct on the-partof the persons affected”
The application of natural justice, resting as it does upon statutoryimplication, must always be in conformity with the scheme of theAct -’afhd with the subject-matter of the case. ‘In the application of
615
CAWickremasinghe i*. Ceylon hJi'ctr'u ify fit>arJ (l .It. tie Alui*. J.)
the concept of fair, play there must be real flexibility.' Sometimesurgent action may have to be taken on grounds-of, public health orsafety, for example to seize and destroy bad meat.-exposed for saleor to order the removal to hospital of.a person with an infectiousdisease. In such cases the normal presumption that a hearing mustbe given .is rebutted by the. circumstances of the case. Wade -Administrative Law, 4th Ed.p. 451.
In re- Pergamon Press Ltd., (5) Sachs. L.J. said at page 403“In the application of the concept of fairplav: there must -bereal flexibility, so that very different situations may helmetwithout producing procedures, unsuitable to the object, .in .hand.That need for flexibility has been emphasized in a number ofauthoritative passages in the judgments cijed, to this Court.[Russel Vs. Duke of Norfolk [1949] 1 ACR .-109, . Wiseman VBorneman [1971] A.C. 297. It is only too easy to frame aprecise set of rules which may appear impeccable on paper andwhich may yet hamper, lengthen and indeed, perhaps evenfrustrate the activities of those engaged iit investigating orotherwise dealing with matters that fall. within their propersphere. In each case careful regard -must be had to the scopeof the proceeding, to the source of its jurisdiction (statutory inthe present) the way in which it normally falls to be conductedand its objective."
In Ridge Vv. Baldwin (6), Lord Reid said at page 72. thatwhere a Minister was not dealing with a single isolated case,but with something like, say, a scheme for an important newroad, his primary concern would not be with the damage tolandowners’ rights but with the fulfilment of his policy: and thatit would be quite wrong to require the Minister to act in thesame sort of way as a board of works decidingWhether a'houseshould be pulled down. Wade ibid 471. Allhough this passagehas been subjected to severe criticism by' Professor Wade' itappears to have been adopted by Lord ’ fVeriniifg in Lx parteOstler (7) where he said: “In making ‘a‘ judical’ decision. thetribunal considers the rights of parties without regard to thepublic interest. But in administrative? decision (such as a compulsorypurchase order) the public interest plays'aniiiipbr tarn part. Thequestion is, to what extent are private fights to be subordinatedto the public interest.” I am in respectful agreement with these* dicta as applicable to the facts of this case.
616
Sri Lanka Law Reports
(!9H2) 2 S.L.R.
In the present case the supply of adequate electrical power to theVictoria Project is of the utmost urgency for the implementation ofthe Accelerated Mahaweli Programme. As the description of thisscheme connotes it is a matter of great public urgency. There cannotbe any delay. The delay in taking the electricity transmissidn linesacross the petitioner's land not only impedes the progress of thisscheme but also involves the Government in very heavy expenditureof lakhs bf rupees on the purchase of diesel to operate the generatorsthaj are now used to provide the additional power to the VictoriaProject. The affidavit of the Senior Central Engineer attached to theCeylon Electricity Board, which is filed of record, bears this out.
The report of the Government Agent tendered to Court after thesecond Visit to the petitioner's land is that the proposed Ukkuwela-Pangollemada tfansmission 'line is a new one and not connected withthe 4th circuit referred to.
It is a new transmission line to be separately installed to feed theVictoria Project. The Victoria Project is presently supplied withelectricity from the Eriyagama Power Station which also supplieselectricity to towns like Katugastota, Akurana etc.. The installationof the new transmission line will be for the exclusive use of theVictoria Project which requires more electric power in order that .work may proceed according to schedule. It is in these circumstancesthat the Government Agent after his inspection of the petitioner'sland took the view that the installation, of the proposed transmissionline over the petitioner’s land was the most expeditious way in whichpower could be supplied to the Victoria Project. No lack of bonafides is alleged in this decision and the view of the GovernmentAgent appears to be reasonable in the context of the larger interestsof the public.
The petitioner has not suffered any real detriment by the procedureadopted by the Government Agent'in'this case. The AdditionalGovernment Agent who held the first abortive'inquiry was empoweredonly to make recommendations to ithe Government Agent. It wasopen to the Government Agent either to accept or reject therecommendations. The final decision was his. He has since with theconsent of the petitioner visited the land and made a second inspection.At the second inspection the petitioner’s husband has stated hisobjections to various matters and after a careful consideration ofthem the Government Agent, with the technical assistance of theElectrical Superintendent, has reached the same conclusion as he haddone on the earlier occasion and which has been embodied in P3.
CAWickrenuisinfihr r. CeylonIIV lio.n,l tl II Atn-iw ./ )0)17
It is finally submitted by learned Counsel for the petitioner thatthe 2nd respondent has abdicated his statutory authority to the 1strespondent and authorised the latter to do as it pleases. The 2ndrespondent is an administrative officer and cannot be expected tohave any technical knowledge about laying of Klectricity Transmissionlines across a land. He has in his report permitted the laying of thetransmission lines as pointed out by the technical expert, the ChiefElectrical Engineer, in the presence of the petitioner's husband andafter paying due regard to the latter's objections. That in no waymeans that he has abdicated his powers under the Act to the CfiiefElectrical Engineer. After approving the route, he has authorizedthe felling of the trees that would be necessary for the installation.Under the Act he has authorised the following acts, viz; the installationof the transmission lines across the petitioner's land, which mustobviously have been also pointed out to the petitioner's husbandwho was present at the inspection and the felling of the trees forthis purpose. Not being a technical expert I do not think it wasnecessary for the 2nd respondent to have detailed every single actthe 1st respondent was required to perform once authority wasgranted to take the transmission wires across the petitioner's land.
For all these reasons, this Court is not disposed to grant thediscretionary remedy asked for. The application is dismissed withcosts fixed at Rs.525/-
SENEVIRATNE, J. — 1 agree.
Application dismissed.