WIJESINGHE v. TEA EXPORT CONTROLLER

120-NLR-NLR-V-39-WIJESINGHE-v.-TEA-EXPORT-CONTROLLER.pdf


In the Matter of Application for Writ of Certiorari
437
1937
Present: Abrahams C.J. and Fernando A.J.
WIJESINGHE v. TEA EXPORT CONTROLLER.
In the Matter of an Application for a Writ of Certiorari.
Tea Controller—Power vested in the Tea Controller—Deduction of assessmenton discovery of error—Duty or discretion—Exercise of discretion—Ap-peal to the Board of Review—Tea Control Ordinance, No. 11 of 1933 s. 20.The Tea Controller has a discretion, whether or not to exercise the powerconferred on him by section 20 of Ordinance No. 11 of 1933, with regardto the addition or deduction to be made or the discovery of an error inthe assessment of the standard crop of an estate.
Where he does not exercise the discretion at all or exercises it unfairlyhis decision is open to review by the Board of Appeal.
T
HIS was an application by the Tea Controller for issue of a writ of
certiorari to have the legality of an order made by the Board ofReview, appointed under the Tea Control Ordinance, inquired into andto have the said order quashed. Rule nisi issued on ex parte application.
By his order dated February 25, 1937, the Tea Controller declared thatthe extent of an estate, viz., Walauwewatte, should be reduced to 24acres from 32 acres. He also decided to recover the over-assessments,that had been made, in terms of section 20 of Ordinance No. 11 of 1933,and ordered that an amount equivalent to the over-assessments shouldbe deducted from the assessment of the standard crop of the estate forthe periods 1937-1938 and 1938-1939.
The fourth respondent, who is the present proprietor of the estate,appealed against the order to the Board of Review, who set aside theorder of the Tea Controller.
Cyril E. S. Perera (with him G. E. Chitty), for the fourth respondent,showing cause against the making absolute of the rule nisi of certiorari.—The only ground upon which the rule nisi can be made absolute is thatthe order of the Tea Appeal Board was without jurisdiction. Thequestion really is “ have they decided the right matter ? ”, not, “ havethey decided it wrongly ? ” The right of appeal is conferred in very wideterms by section 17 of the Tea Control Ordinance, No. 11 of 1933, and itis available to every person dissatisfied with a decision of the Controllerwhich surely means dissatisfied for any reason whatever. The ultimatepower in review is vested in the Board and no appeal lies from its order.
438
In the Matter of Application for Writ of Certiorari.
Application like the present for the issue of these high prerogative writscan only be made by a person who has a real grievance which gives him alocus standi to ask' for the writ. (Q. v. Nicholson1; Rex. v. Sharman )-
The Controller has no status to make this application, for he is no moreaggrieved or prejudiced than a Judge of an inferior Court would be whose.decision is reversed in appeal. The Controller’s order under section 20was clearly subject to review by the Board. It was discretionary inhim to make it and the Board could inquire upon appeal as to whetherhe had exercised a sound discretion in making it. The word “ may ” insection 17 means nothing more than “ may in a proper case ”. It cannotmean “ must ” or “ shall ”.(Regina v. Bradley ’.) There was therefore an
order made in the exercise of the Controller’s discretion under section 20 ;it was properly brought up in appeal before the Board and every conditionprecedent to the conferring of jurisdiction upon the Board to hear anddetermine the appeal was fulfilled. It does not therefore matter, sincethe order of the Board is defined as “ final and conclusive ”, that theyarrived at a wrong conclusion upon the matters which were properlybefore them. (Lord Mayor of Leeds v. Ryder et al. *) It is, however,submitted that their conclusion was in fact correct upon the merits.
Counsel cited the following cases, viz., Colonial Bank, of Austral-asia v. Willan"; Q.v. Board of Works, Southwark"; Rex v. Tabrum et al.'
H. V. Perera, K.C. (with him E. F. N. Gratiaen), for the applicant insupport of the rule.—The order of the Tea Appeal Board was clearlymade without jurisdiction, for the reason that there was no discretionin the Controller which could be the subject of review. (He Baker,Nichols v. Baker".) The word “ may ” in the section not merely confers apower but also imposes the duty to exe'rcise it in every case brought tohis notice. When once the under or over-assessment is proved he has noalternative but to increase or reduce the assessment, in respect of thatparticular estate, accordingly. It matters nothing that the estatehas changed hands in the interval between the making of the originalassessment and its correction by the Controller. The Ordinance makesthe estate the unit of assessment in each case irrespective of ownershipand the estate having lost or profited through an error in its assessmentmust also enjoy the benefit or suffer the loss consequent upon anyamendment which it is the duty of the Controller to make under thesection. It is a duty which he cannot avoid to suit the particularcircumstances of any case and consists of a pure mathematical adjust-ment dependent upon the amount of the over or under-assessmentproved and on nothing else.
The Controller is a person sufficiently interested to be entitled to applyfor the writ. He need not be personally interested. He is interested onbehalf of the tea industry and-is almost in the position of a trustee.
Counsel cited King v. Woodhouse *; King v. Minister of Health
i {1899) 15 Times Law. Rep. 509.‘{1857) 8 E. ds B. 529.
» 78 L. T. 320.7{1907) 97 L. T. 551.
11894) 70 L. T. 379.*{1890) 44 Gh. D. 262.
{1907) A. C. 420.•{1906) 2 K. B. C. A. 501.
« Z. R. 5 P. O. 417.10{1925) 2 K. B. 363.
439
In the Matter of Application for Writ of Certiorari.
E. A. L. Wijeyewardene, K.C., S.-G. (with him T. S. Pemando, C.C.), asamicus curiae.—Even if a writ of certiorari lies in this case, the questionarises whether the Supreme Court could issue a writ to the Board ofAppeal in respect of a -decision given by it under section 20 of OrdinanceNo. 11 of 1933. The jurisdiction of the Supreme Court to issue a writ ofcertiorari is conferred by section 46 of the Courts Ordinance, No. 1 of *1899.This section should be read in the light of section 4 of the same Ordinance.The Supreme Court has held that it had no power to issue a. writ of1prohibition to a Court Martial—see Application for a Writ of Prohibition.The same reasoning would operate against the issue of a writ of certiorariin the present case.^
There is no good reason why the word “ may ” in section 20 of OrdinanceNo. 11 of 1933, should be construed as conferring a power coupled with a|duty. The word “ may ” has its ordinary permissive meaning, IS fee'In re Baker, Nichols v. Baker *; Julius v. The Bishop of Oxford *.
[Abrahams C.J.—Do you admit that the Tea Controller has a sufficientinterest in the matter to apply for a writ of certiorari ?]
I am unable to say he has not, in view of the decision in Rex v. Butt andanother, ex parte Brooke *.
[Abrahams C.J.—Does an error in the assessment of one tea estatereact upon other tea estates ?]
Yes. If the word “may” is construed as imposing a duty, then theTea Controller will be bound to make an order adding to the assessmentof the standard crop of an estate even where a registered proprietor at thebeginning of the period of control deliberately submits a return showingthe acreage of his estate as lower than it actually is, and after some years,when the price of coupons has risen, points out the correct acreage to theTea Controller. The legislature has given a discretion to the Tea Con-troller to add to or deduct from the .assessment of the standard cropaccording to the circumstances of each case.
If “ may ” is given its ordinary meaning, an appeal would lie to theBoard of Appeal against an order made by the Tea Controller undersection 20. In such a case a writ of certiorari will not lie against theBoard of Appeal even if the Supreme Court has the right to issue such, awrit. See The King v. Justices of Carnarvon5; The King v. Justices ofLincolnshire *; Queen v. The Board of Works for the District of St. Olave’s ’.
In the last mentioned case, the Court pointed out a distinction betweenCourts of first instance and Courts of Appeal regarding writs of certiorariissued to them.
If the Tea Controller had a discretion under section 20 of the Ordinance,then the Board of Appeal in reviewing the order of the Tea Controller hasthe same discretion. If therefore the Board of Appeal exercised a discre-tion in this case, then it has not usurped a jurisdiction which it did notpossess.
Cur. adv. vult.
*{1922) 38 Times L. B. 537.
{1919) 1 K. B. 280.
{1926) 2 K. Bi“l92.
* (1867) 8 El. 2H. 629.
> {1916) 18 N. L. B. 334.
(1890) 44 Oh. D. 262. ■
(1879) £. B. 6 A. C. 214.
39/33
440 ABRAHAMS C.J.—In the Matter of Application for Writ of Certiorari.
December 17, 1937. Abrahams C.J.—
I agree with the judgment of my brother Fernando, and would add afew observations. It was agreed by both sides that an error in theassessment of one tea estate would react favourably or unfavourably asthe case might be, upon other tea estates, and it was argued on behalf ofthe applicant that where the estate had very probably benefited, it wasright that it should subsequently make compensation, and that that was,therefore, the intention of the Legislature in enacting section 20 of theOrdinance, and that accordingly, the power conferred upon the TeaController by the use of the word “ may ” must perforce be exercisedwhenever the error was discovered. It has, however, been shown in thiscase that such an interpretation necessarily involves a hardship upon theregistered owner, who was not the registered owner at the time the errorwas made, and it is a fundamental rule of the construction of statutesthat an enactment should not be interpreted -so as to create a hardship,and I see no excuse for inflicting a hardship upon the registered owner inthis instance. As one of the members of the Board of Appeal observed,it is fairer that the whole industry should bear the loss rather than theinnocent proprietor, because, distributed in that way, the effect on everyother individual estate would be practically negligible, whereas the lossborne by the innocent owner would be substantial. I think, therefore,that a discretion is conferred upon the Tea Controller by the section, andif that discretion is either not exercised at all, as in this case, because theController thinks that it is not conferred upon him, or, if he exercised itunfairly in the circumstances, his decision is open to review by the Boardof Appeal. The Board of Appeal has done what, in their opinion, theTea Controller ought to have done and did not do, and, in my view, theywere empowered to act as they did.
Fernando A.J.—
By his letter dated February 25, 1937, the Tea Controller decided thatthe extent of Walauwe estate should be reduced from 32 acres as declaredto 24 acres which appeared to be the correct extent according to planNo. 457. He also decided to recover over-assessments that had beenmade from the first restriction year in terms of section 20 of OrdinanceNo. 11 of 1933. His order was to the effect that an amount equivalentto the amounts by which the previous assessments were in error was to bededucted from the assessment of the standard crop of the estate for theperiods of assessment 1937-38- and 1938-39. By the' same letter henotified the fourth respondent, who is the present proprietor, that anappeal lies against the decision.
The fourth respondent appealed against the decision and the Board ofAppeal made order Setting aside the order of the Tea Controller, datedFebruary 25, 1937, so far as it related to the deduction from the standardcrop- of the total over-assessments made to the previous proprietor. TheTea Controller then applied to this Court for the issue of a writ of certiorarithat is to say, that the order made by the Appeal Board and all proceedings .in connexion therewith be called for in order to have the legality of thesaid order inquired into, that the said order be quashed as illegal, and
FERNANDO AJ.—In the Matter of Application for Writ of Certiorari. 441
that the Controller’s order of February 25 be restored. An order nisiwas accordingly issued calling for the order and the proceedings therewithand requiring the first three respondents who constituted the Board ofAppeal, and the fourth respondent, the proprietor, to show cause why awrit of certiorari should not issue. The first three respondents did ,notappear, but the fourth respondent appeared by Counsel and argued thatunder section 8 of Ordinance No. 11 of 1933, the Board of-Appeal had theright to hear and determine all appeals from orders made by the TeaController under section 20, that any order made by them was final andconclusive and that a writ of certiorari could only issue on the applicationof an aggrieved party.
Counsel who appeared for the Tea Controller argued that under section20 of the Ordinance the Controller was empowered on the discovery of anerror in the assessment to make an adjustment, and that in consideringthe question of the manner in which the assessment should be adjustedan estate has to be assessed irrespective of the proprietor for the timebeing. He argued that in this particular case there was an admittederror in the assessment in that the estate had been assessed on the basisthat it was 32 acres in extent, whereas in fact the extent was only 24 acres.Once this error was discovered, Counsel argued that the Tea .Controllerhad no option but to reduce the assessment and to order that the amountby which the estate had been over-assessed should be deducted from theassessment for the period within which the error had been discovered. Itwas admitted that when the assessment was first made the proprietor ofthe estate was one Karuppan Pillai and that during the years 1933-34,1934-35 and 1935-36 there was an over-assessment of 2,240 lb. for eachyear. There was a similar over-assessment for the year 1936-37, thebenefit of which was enjoyed by the present proprietor, who had by thattime become the owner. With regard to the assessments from 1933 to1936, it was argued that the Tea Controller had no discretion and that bysection 20 he was compelled to deduct the amount by which the estatehad been over-assessed from the standard crop for the year 1936-37.The result of this deduction was that the crop of the estate for the year1937-38 was assessed as nil and there was a further amount of 2,24Q lb.to be deducted from the next period of assessment. Mr. Perera alsocontended that the Tea Controller having no discretion in the matter, theBoard of Appeal could only make an order which the Tea Controllerhimself could have made, that their construction of section 20 to the effectthat the Tea Controller had a discretion was tantamount to finding thatthe Board itself had a discretion or could exercise the discretion vestedin the Tea Controller and that by this construction the Board had assumeda jurisdiction which they did not in fact possess. He, therefore, arguedthat the order made by the Board of Appeal involves an assumption of.jurisdiction and that a writ of certiorari was the proper remedy.
The whole question depends on the construction to be given^tb' section 20of the Ordinance, which is in these terms: “ If it shall appear to theController at any time that by reason of an incorrect return furnished bythe registered proprietor or otherwise an error has been made in theassessment of the standard crop of any estate in respect of the period ofassessment, he may order an amount equivalent to the amount by which
442 FERNANDO AJ.—In the Matter of Application for t^rit of Certiorari.
such assessment was in error to be added or to be deducted from theassessment of the standard crop of that estate for the succeeding periodof periods of assessment”. It is not contested that there was an errorin the assessment of the standard crop for the years 1933 to 1937, and itwould appear that such error led to an over-assessment during those years.The real question is whether the words “ he may order ” mean "that theTea Controller must order the amount of- over-assessment to be deductedor whether he has a discretion with regard to that deduction, and whetherin making' an order he should take into account the fact that during theperiod 1933 to 1936 the present fourth respondent was not the proprietorof the estate.
The Board of Appeal was of opinion that the legislature had given theTea Controller a discretion because the Legislature felt that some casewould arise-in which such an order would not be just and that any pro-prietor succeeding a previous proprietor would be sufficiently protectedby the discretion given to the Controller and by the right of appeal. TheChairman of the Board of Appeal also thought that the Tea Controllerwas wrong in deducting the over-issues made to the previous proprietorand that in a case where the benefit of the over-assessment has gone toa previous proprietor it would be less of a hardship for all proprietorsof estates in Ceylon to bear the burden than for the fourth respondentalone to bear it.
Mr. H. V. Perera argued that the Controller must always exercise thepower given to him by section 20; but in construing this section we mustbe guided by the rules that apply with regard to the interpretation ofStatutes. As Cotton L.J. said in In re Baker, Nichols v. Baker1 “ greatmisconception is caused by saying that in some cases ‘ may ’ means‘must’. It-never can mean ‘must’ so long as the English languageretains its meaning ; but it gives a power and then it may be a question inwhat cases, where a Judge has a power given him by the word ‘ may ’, itbecomes his duty to exercise it. Nothing is said in the present Act as tothe duty of the Judge to exercise the power given him by section 125 (4),but it is said that the whole object of the Act of Parliament was to secureequality amongst the creditors and that …. it is the duty of theJudge to make the order asked for because it is the object of the section tosecure the rateable distribution ”.
In addition to the use of the expression “he may order”, section 20applies to a case where an error has been'made either by reason of anincorrect return “ or otherwise ”. This expression “ or otherwise ” wouldmake the section applicable even where the error in the assessment iscaused not by the incorrect return which is made by the registered proprie-tor, but for a totally different reason. One might conceive of an errordue to a mistake made by; the Controller himself, or by some person in hisoffice. In such a case it may still be right to penalize the estate becausein fact the estate on a previous occasion has received, the benefit of anover-assessment, but could it have been the intention of the Legislatureto penalize A who is the proprietor'because by a mistake made by somebodyelse, B, the previous proprietor, received a benefit ? There can be noreason -for thinking that the Legislature could have intended so to penalize –
1 (1890) 44 Ch. D 262.
Ammal v. Ibrahim.
443
A. The expression. “ or otherwise ” appears dearly to indicate that,although the right to add or deduct is given by section 20, the powers so todeduct or add is to be exercised in cases where the Controller thinks thatsuch deduction or addition is fair to the parties concerned. There can beno doubt that the result of such deduction, or addition, would be to theadvantage or the prejudice of proprietors of other estates, but as theChairman of the Board of Appeal himself observes, the proportion of suchbenefit or loss to each of the other estates would be so small as to behardly appreciated.
Apart from the words of section 20, there is nothing in the Ordinancewhich makes it necessary to read the section so as to require the TeaController to make the addition or deduction in every case.
The Solicitor-General who appeared as amicqs curiae referred to caseswhere a proprietor may, when the price of tea is low, deliberately send inan incorrect return which results in the under-assessment of his estatewith the idea that he could apply for a correction of the error at a laterstage when perhaps the price of tea is higher. Even in such a case,section 20 would not enable the Controller, according to the contentionput forward by Counsel on his behalf, to refuse to make an addition at alater date because he thought that the proprietor had deliberately madean incorrect return for his own future advantage.
It is clear to my mind that section 20 does confer a discretion on theTea Controller and that the. addition or deduction to be made on thediscovery of an error is a’ matter in which he can exercise a discretion.The Board of Appeal here has construed the Ordinance so as to give theController a discretion, and I think their decision was right. In the resultthe Board of Appeal has the power to exercise the same discretion as theController had, and they have not, in this case, usurped a jurisdictionwhir a they did not have. It follows, therefore, that the. applicationmust fail.
The Tea Controller will pay to the fourth respondent his costs of theseproceedings.
Rule discharged.