140-NLR-NLR-V-44-WIJESEKARA-v..-ASSISTANT-GOVERNMENT-AGENT-MATARA.pdf
533
Wijesekara v. Assistant Government Agent, Matara.
1943Present: de Kretser J.
WIJESEKARA v. ASSISTANT GOVERNMENT AGENT, MATARA.
In the Matter of an Application for a Writ of Mandamus.
Urban Council—Preparation of lists of voters—Discretion of GovernmentAbent—Ministerial duties—Urban Councils Ordinance, No. 61 of 1939,'s. 9 (1)—Writ of Mandamus.
When the Assistant Government Agent has once fixed a date for thecommencement of preparation of the list of voters under section 9 (ljof the Urban Councils Ordinance, he is not entitled to alter the date.
When he causes a list to be prepared under section 9 (1) he is actingas administrative officer in charge and is performing purely ministerialduties.
In such a case a writ of mandamus would lie against the AssistantGovernment Agent.i
Section 42 of the Courts Ordinance, which gives the SupremeCourt power to grant and issue mandates in the nature ofwrits (stated therein) "according to law’’, means that the writs wouldissue in the circumstances and under the conditions known- to theEnglish law ; these would include the persons against whom the writs-
would issue.
HIS was an application for a writ of Mandamus on the AssistantGovernment Agent of Matara. The facts are stated in the judgment.
H. V. Perera, K.C. (with him Cyril E. S. Perera), for petitioner.
Crosette-Thambiah, C.C., for respondent.>
Cur. adv. vult.
T
534 DE KRETSER J.—Wijesekara v. Assistant Government Agent, Matara.
October 13 & 20, 1943. de Kretser J.—
This is an application for a Mandamus on the Assistant GovernmentAgent of Matara and arises in the following circumstances. By section7 of the Urban Councils Ordinance, No. 61 of 1939, the qualification ofvoters is fixed, and that qualification must exist on the date of the com-mencement of the preparation of the list of voters which section 9 requiresto be prepared. No person is qualified to vote unless his name appearsin such list. The date on which the preparation is commenced is one,therefore, of the utmost importance, and the list prepared confers or. takes away legal rights on or from possible voters. It would be more,satisfactory if such an important date were definitely fixed by theOrdinance itself, but though it is not so fixed it is a date of which thepublic ought to be aware and necessarily must be aware, for such a listcan hardly be prepared in secrecy or in the privacy of some office.
• The Ordinance contemplates that the preparation of such a list willhave a commencement and that it will not be ended as soon as it isbegun. No provision is made in the Ordinance for any notice to begiven to the public of this important date but the Government Agent,who is a responsible officer, is presumably expected to do things in a fairand proper manner.
The respondent in this case did publish a notice in the GovernmentGazette of March 13, 1943, notifying “ for general information that thepreparation pf the electoral rolls for the forthcoming Matara UrbanCouncil Elections, 1943, will be commenced on April 12, 1943 ”. Whetherany further notices were posted up or not is not known, but it is admittedby Crown Counsel appearing for him that the respondent caused instruc-tions to be sent to the Vidane Arachchi of Matara some time beforeApril 12, ordering him to get the headmen within his peruwa to startthe making of the electoral lists, and that the Vidane Arachchi causeda notice to be published by beat of tom-tom on April 10 and 11, 1943,that the preparation of lists of qualified voters would commence on April12. Accordingly the lists were prepared by the headmen. It is furtheradmitted that it came to the notice of the respondent thereafter thatonly a comparatively small number of voters would be entitled to vote,the others being disqualified by reason of their not having paid all ratesand taxes due from them by April 12.
On this statement of facts it would appear that, however unfortunatethe consequences may be, it was the respondent’s plain duty to proceedin the manner indicated in the Ordinance.
I was informed that in two other Urban Councils the same situationhad arisen, and, on appeal to the authorities, remedial legislation hadfollowed with regard to those Councils. To judge by the affidavit andfrom statements of Counsel, the respondent seems to have thought hecould deal with the situation himself. What he did was, by a freshnotification in the Gazette, to cancel the previous notification and to fixJune 15 as the date on which the preparation of the electoral list wouldbe commenced. The later list was dealt with, and some persons seemto have objected to the inclusion of fresh names on the ground that'theproper date to be considered was April 12. The proceedings ire not
DE KRETSER J.—Wijesekara v. Assistant Government Agent, M&tara. 535
before me but I understood from Crown Counsel that the respondentruled that he was justified in taking the course he did and that the freshnames were properly on the list.
Crown Counsel suggested that as no Mandamus would lie if the respond-ent has exercised judicial functions, therefore no Mandamus shouldissue. In my opinion the Government Agent does not exercise judicialfunctions until the stage indicated in section 9 (2) is reaohed. When hecauses a list to be prepared under section 9 (1) he is acting as the adminis-trative officer in charge and is performing purely ministerial duties. Hegave instructions to his headmen, who presumably were told what theyhad to do and who, no doubt, would have with them the list already inexistence and would proceed to revise it. They would ascertain whetherthe candidates possessed the qualifications mentioned in section 7 andwere much better qualified to do that in the first instance than the Govern-ment Agent himself.
Crown Counsel next submitted that no Mandamus would lie where theOrdinance itself provided a sufficient remedy, and his position was thatthe remedy lay by way of objection under section 9 (2) and that suchobjection had in fact been taken and dealt with.
Section 9 assumes that the list had been properly prepared and thatsuch list contains the names of persons possessing the qualificationsspecified in section 7. For such list to be in order, therefore, the datewhen, a commencement was made with the preparation of the list is allimportant. Section 9 (2) contemplates objections to a list which hasbeen prepared in terms of the Ordinance. I do not think, thereforeJhe second objection is sound.
His third objection was that section 9 (1) requires the GovernmentAgent to prepare the list and that during the stage when his agents arecollecting the material he is not preparing the list and that he does so.only when he applies his mind to the information so gathered. CrownCounsel did not say so but what his objection really amounts to is thatthe Government Agent must perform the manual task of compiling thelist, for quite clearly he cannot have the means of checking the info-mationsupplied to him until interested members of the public have made claimsor objections. Besides, at what time would he apply his mind ? Wouldthat depend on whether he was well or ill, busy or at leisure, inclined totake up the matter or not ? How would the public know the crucial timeat which rights were being established or taken away? It is not only thematter of payment of taxes, but a person who was not of age on a partic-ular day may be of age on another day ; and a person who had not beenresident long enough may have his term of residence lengthened, andequally a person who had been resident long enough within the 18 monthspreceding might find himself disqualified, all these serious' consequencesdepending on when the Government Agent decided to apply his mindto the list. As a matter of fact Crown Counsel’s statement amounts to anadmission that the respondent did apply his mind to it and because hefound that an unfortunate situation would result he adopted othermeasures.
Crown Counsel next pointed out that- the Ordinance fixes certaindates either expressly o~ by necessary implication, and argued that with
530 DE KRETSER J.—Wijesekara v. Assistant Government Agent, Matara.
regard to other dates the Government; Agent had a discretion.Undoubtedly he had a discretion as to the date he would fix for thecommencement of the preparation of the list, but once he had exercisedthat discretion certain legal rights flowed from the Ordinance and itwas not within his discretion to interfere with the rights or disqualifica-tions so created. Crown Counsel’s submission amounts to saying thathe could keep on 'fixing different dates in the exercise of his discretionuntil a stage was reached when he could not do so because his list had tobe posted for claims and objections not later than three months beforethe elections. I do not think the Ordinance contemplated that the dateof the commencement of the preparation of the list could be varied inthis manner.
In my opinion quite clearly that date was April 12 with regard to theparticular Urban Council now being dealt with, and the respondent hadno right to alter that date. No objection was taken on the ground ofdelay or of the consequences that might result from the issuing of a Man-damus, but I put both positions before Counsel. It seems to me thatneither the delay nor the consequences that may ensue ought to influencethe Court in the circumstances of this case. To refuse a Mandamuswill mean that any election held on a list illegally prepared might wellhave its legality questioned and involve both the Government andcandidates and voters in needless inconvenience and expense. Thelatest day for holding an election is apparently December 15, and it maybe that legislation will be required postponing the date of the elections,if no other remedy exists ; but that course is preferable to the holdingof an election on a list illegally prepared.
I accordingly direct that a Mandate do issue on the respondent requiringhim to exhibit the list the preparation of which was commenced ohApril 12, and to proceed thereon in the manner provided in the Ordinance.I Shall make order as, to costs after hearing Counsel.
October 20, 1943._
This matter was set down for to-day in order that I may hear Counselon the question of costs, regarding which I thought that it was possiblethat they may arrive at some agreement. Crown Counsel has nothingto say on the matter of costs and there seems to be no reason why costsshould not follow the event. The petitioner will, therefore, be entitledto his costs.
■ Crown Counsel, however, invites me to reserve my finding on the groundthat I have made an error in holding that a writ of Mandamus may issueon this occasion. I have grave doubts as to my power to revise myjudgment except it be to correct some clerical or typing error without.affecting the substance of the judgment or, perhaps, as Mr. Perera con-cedes, in a case in which a judgment has preceeded per incuriam, forinstance, on some enactment which, it was subsequently discovered,had been repealed. It is, no doubt, convenient and advisable to correctan error rather than let it mislead any person, especially a subordinateCourt, but, on the other hand, if such a power were exercised exceptin the most exceptional circumstances, I think the most embarrasingconsequences would, result. There would be no limit of time duringwhich the Court may not be invited to reverse its findings. On the
DE KRETSER J.—Wijesekara v. Assistant Government Agent, Matara. 537
analogy of “staircase wit”, we should have Counsel indulging instaircase arguments. I have heard Crown Counsel on the point he wishesto urge and, far from being convinced that there is an obvious errorin my judgment, I am inclined to think that there is none, for at least itappears that there are conflicting obiter dicta of this Court which, inthemselves, prove that the error is not so obvious. In fact, if I wereinclinded to accede to his request, I should have to set this matter down forargument before a Fuller Bench, which will lead to delay in a matterin which already too much time has elapsed.
His argument is based on section 42 of the Courts Ordinance and oncertain dicta in judgments of this Court. The first one referred to byhim, was the case of “ An application for a Writ of Prohibition to bedirected to the Members of a Field General Court Material ” (18 N. L. R.p. 334) where the then Full Bench dealing with section 46 (whichcorresponds with section 42 of our present enactment) came to theconclusion that the Writ of Prohibition could not issue to a CourtMartial in view of the proviso to section 4 (which corresponds to thepresent section 3). De Sampayo A.J., in the course of that judgment,drew attention to the fact that section 42 confers “ not separate powers,but one power to do several things, which are all mentioned unoflatu;namely, to inspect records, issue mandates, and transfer cases ”. In thesame case, Wood Renton C. J. stated “ in the next place, {he use of theword ‘ person ’ in that section may find its explanation in the circum-stance that a writ of Mandamus, for which also the section provides,is issuable to individuals as well as to tribunals ”. The case is reallytherefore, against Crown Counsel’s contention.
He also referred me to the case of an application for a mandate in thenature of a Writ of certiorari, in the case of the Dankotuwa Estates Co., Ltd.v. Tea Controller'. That case dealt with an application for a writ ofceritorari which could issue only to a judicial officer. The applicationconcerned a' person who was not a judicial officer, and Soertsz J., afterquoting copiously from the English law, referred to section 42, and cer-tainly did use expressions which were general enough to cover all thewrits mentioned therein, but he was only concerned with the particulartype of writ applied for and his interpretation of section 42 with referenceto that particular type of writ is, if I may say so with all respect, quite inaccordance with my own view. I do not think he ought to be taken tohave intended more. He did hold that the rule ejusdem generis applied.With all due respect, I venture to disagree with him. To begin with,that rule must give way to a more urgent rule which insists on the objectof the Legislature being first given effect to. It is a rule that may havebeen applied tq the section if it were dealing with only one type of writ,but section 42 deals with a variety of writs. I do not think the judgmentin the matter of an application for a writ of certiorari In re Goonesinghe1compels me to come to another conclusion. The Chief Justice wasthere rather dealing with the expression “ other tribunal ” and he cameto the conclusion that “other tribunal” meant an inferior Court and notthe Supreme Court.
* ii X. L. R. 197.* 43 X. L. R, 337.
538 DE KRETSER J.—Wijesekara v. Assistant Government Agent. Matara.
In de Silva v. de Silva1 which was an application for a writ of quowarranto, Wijeyewardene J. doubted the correctness of the interpretationput on the word “ other person ” by Soertsz J. A writ of quo warranto doesnot issue to a person acting judicially but is used to question the validityof an election, for instance. In such a case, it is the private person who isaffected and against him the writ goes. In the case of a writ of prohibi-tion, the writ may go against a judge or a party to a suit. If one appliedthe rule ejusdem generis, one would be driven to the conclusion that theLegislature had made useless provision for cases which would neverarise. It seems to me that section 42 is drafted compendiously, and wasintended to give the fullest powers to this Court and not to limit itspowers. The writs mentioned were writs known to the English law,and we have hitherto gone to that law for direction and guidance. Thesection seems, in the first part, to give this Court (1) authority to inspectand examine the records of any Court and (2) to grant and issue, accordingto law, mandates in the nature of writs of mandamus, quo warranto,certiorari, procedendo and prohibition. What' did the Ordinance meanby the phrase “ according to law ”? It must only mean, in the circum-stances, the English law ; that means that the writs would issue in thecircumstances and under the conditions known to the English law.These would include the persons against whom the writs would issue.The section might well have stopped at the word “prohibition”, andtlxe mere fact that it does enumerate certain persons need not force one tothe conclusion either that there has been an alteration in the law orthat the provision is nugatory. This Court is empowered to grantand issue a Mandamus according to law; against whom if would issuewould be governed by the English law and I think the expression“ other person or tribunal ” was advisedly used to catch up all the differentpersons to whom the various writs might apply according to the circum-stances in each case prescribed by law. Crown Counsel’s argument isbased on the statement in my judgment that the Assistant GovernmentAgent at a certain stage was acting administratively. The statementwas made with reference to the particular argument raised ; namely,that he was acting in a judicial capacity and had already pronouncedhis judgment after hearing certain parties and that, therefore this Courtshould not allow the writ which would, in effect reverse his judgmentdeclared by section 9 (2) to be final and conclusive. When a judicialofficer makes an error in his judgment, after considering the mattersurged before him, then, clearly, a writ of Mandamus will not lie. But thejudicial officer is not always giving judgments. He is quite frequentlyacting administratively and may sometimes said to be acting evenmechanically. The distinction was well brought out by Channel J. inthe caSe of Hanley Election (3 Q. B. D., 518) which I had occasion torefer to only yesterday with regard to another application. In thatparticular case, the revising Barrister, having acted judicially, had failedto perform what Channel J. called “ the mechanical part of his duty ”namely, to see that the final list conformed with his judgment. In thepresent case, it is not clear that the Assistant Government- Agent was not
■ 21 C: L. W. p. 41.
KEUNEMAN J.—Bandulhamy and Tikirihajjiy.
539
acting in a judicial capacity even at the stage which he ordered the pre-paration of the list. The Government Agent comes into the picture onlyfor the purpose of preparing and settling the electoral list and, perhaps,for certain other limited purposes. To settle that list, he has to actjudicially and to act judicially he must have the list before him, much inthe same way as any judge has before him the cause list. Each namein the list before him may potentially be objected to and he may thenhave to exercise his judgment. It is possible that there may be noobjections whatever, in which case he may act almost mechanically incertifying the list; but merely because he acts administratively ormechanically it does not follow that the Ordinance does not bring himin purely to exercise judicial function.
For the reasons which I have given, I cannot reopen the argumentany further in this matter. I have already indicated that costs willfollow the event.
Rule made absolute.