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Notice was issued in terms of section 354(1) of the Administration ofJustice Law No. 44 of 1973 at the instance of Pathirana, J., Udalagama, J.and myself on the Attorney-General and on the parties to these cases to showcause why the orders granting injunctions against the defendant, H. S. R. B.Kobbekaduwa, Minister of Agriculture and Lands, restraining him fromproceeding with the acquisition of certain lands should not be set aside.When these cases came up for hearing before the same three Judges, theAttorney-at-law for the landowners took several objections and intimated tothat Court that an application was being made under section 14(3) (c) of theAdministration of Justice Law to have these cases referred to a Bench of fiveJudges and moved for an adjournment. By Order dated 14th June 1974 theadjournment was granted. Thereafter Alles, J., who was acting for the ChiefJustice, referred these cases to a Bench of nine Judges. Tt is unnecessary togo into the details of each of these cases. They are all from the High Courtsor the District Courts. They all relate to acquisition of land under the Land
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Acquisition Act, in various stages of acquisition. In all the cases from theDistrict Courts, action is pending against the defendant to have all the stepstaken declared null and void as the defendant was motivated, inter alia, bypolitical revenge or mala fides.
The two questions that arise for decision, and argued at great length, maybe broadly stated as:—
whether this Court has jurisdiction to revise the Orders in question;
whether, in view of the provisions of the Interpretation (Amendment)
Act No. 18 of 1972, any injunction should have been grantedagainst the defendant, a Minister of State, in these cases.
The Administration of Justice Law sets out inter alia the jurisdiction ofthe Supreme Court and the powers and functions of the Judges. Section 14(1)of this law provides that the jurisdiction of the Supreme Court may beexercised in different matters at the same time by the several Judges of theCourt sitting separately. The two provisos to the subsection say thatjurisdiction in respect of judgments and orders of the Magistrates shall beexercised by at least two Judges and similarly jurisdiction in respect ofjudgments and orders of the District Judges and the Judges of the High‘'Courtshall be exercised by at least three Judges. The ordinary meaning of the word“several,” Oxford Dictionary — Vol. IX, 568, when preceded by the definitearticles is “each and all.” Hence section 14(1) of the Administration ofJustice Law permits the jurisdiction of the Supreme Court to.be exercised byany Judge subject to the two provisos. Such a view is consistent with theother provisions permitting a single Judge to exercise powers under the law,e.g. in sections 326 & 327 a single Judge is given the power to grant leave toappeal.
In section 354(1) of the Law are embodied several powers given to theCourt:— it empowers the Supreme Court to call for a record, to examine itand then to exercise its jurisdiction. When a record is called for there is noexercise of the jurisdiction in respect of a judgment or order of a subordinateCourt as contemplated in the provisos to section 14(1) of the Law. Then theauthority of the number of Judges stated in the proviso is not necessary tocall for a record. Hence any one or more of the Judges of this Court isempowered to call for any record from a subordinate Court. This is only onesection. There are two other sections, viz; section 13 and section 40 whichempower, upon similar examination, anyone or more of the Judges of thisCourt to call for a record from a subordinate Court.
It was submitted that steps can be taken to act in revision under section354(1) only if an aggrieved person moves under subsection 2 of section 354.Subsection 2 provided another method but not the only method by which the
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Court can be moved to exercise its powers under section 354. Where aperson moves under subsection 2 the leave of the Supreme Court has to befirst obtained as “prescribed in this Chapter.” The only method prescribed inthis Chapter is leave to be granted by a single Judge under section 326. TheCourt itself, however, is empowered to take steps, as it has done in thesecases, be it a civil or a criminal matter, whether or not any party hascomplained. Whether it is proper to do so or not is a matter only for theCourt. Its object is the due administration of justice and the correction of allerrors of the subordinate Courts.
When notices were issued on the landowners and the defendant in thesecases, there was no requirement that the cases should have been consideredin open Court. Section 7 of the law requires that the sittings in every Courtshall be held in public and all persons shall be entitled to freely attend suchsittings. When the records have been called for, section 354 (1) further enacts“The Supreme Court may having adopted such procedure as it may considerfit, upon revision of the case so brought before it, pass any judgment or makeany order which it might have made had the case been brought before it indue course of appeal.” At the stage the notice is issued, after the examinationof the records called for by the Court itself, there is no hearing of anyarguments or submissions by any party. Notice issued is only a step taken forthe purpose of holding a sitting to inquire into the legality of the judgmentsor the orders made. It is such a sitting where arguments are advanced, partiesare represented that has to be held in public. This distinction is illustrated insection 327. It permits the Judge to deal with an application for leave toappeal in Chambers but if he wants to hear arguments to sit in open Court.The Sinhala words of section 7 “mg 3©dco gS^Qsafcgz?G. . .”
only confirm this view.
An objection was taken before the first Bench when these cases came upfor review, viz. that in as much as the Registrar and not the acting ChiefJustice nominated the three Judges that Bench was not legally constituted. Itwas argued that as the first Bench was not legally constituted this Bench ofnine Judges has no power to review these cases. This is factually wrong asdemonstrated by the relevant paragraph of the Order dated 14th June, 1974of that Bench:—
‘The Registrar of this Court is present before us and he states that thenormal practice is that the Benches for the day are suggested by himand sent up for approval to the Chief Justice. The practice is also thatwhere Judges have ordered notices in a case that they constitute theBench for hearing the case. He further brings it to our notice that lastmorning the acting Chief Justice sent for him and he was asked as tohow this present Bench came to be constituted. The Registrar thentold the acting Chief Justice that he followed the normal practice ofproposing the Judges who had ordered notices to constitute the
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Bench. The Registrar then met the acting Chief Justice, whoapproved that this Bench should sit and dispose of these cases. TheRegistrar also brings it to the notice of this Court that he took theresponsibility of proposing the composition of this Bench as that isthe practice.”
Then there is no doubt that the acting Chief Justice inquired about thesecases, was made aware of. the cases and approved of that Bench as is thepractice. But such approval or nomination is not a legal requirement. A copyof the Order dated 14th June 1974 was also given to the respondents.
Section 5 of the Constitution enacts that the National State Assemblyexercises the judicial powers of the people through the Courts and otherinstitutions created by law. The National State Assembly created, by theAdministration of Justice Law, inter alia, a new Supreme Court and providedfor the appointment of the Judges of that Court and defined their jurisdiction.Judges have been appointed by the President under the Administration ofJustice Law and no further mandate is necessary for them to perform theirfunctions. The Administration of Justice Law nowhere provides that thenomination of the Judges by the Chief Justice is necessary for them to hear acase. The only bar is under section 48 of the Law which has no applicationhere. With great respect to the Chief Justice, if three Judges decide to hear acase from a High Court or a District Court — lam not saying for a momentthat it happened here — there is nothing in any law to prevent them fromhearing it except a reference of that case under section 14(3) of the Law. Thewords used in this subsection are “. .. direct that any case pending before theSupreme Court be heard by a Bench of five Judges or more.” It does not saythe Chief Justice shall be a member. It does not say that he shall name theJudges. On the other hand under section 51(1) of the Courts Ordinance theChief Justice was empowered to refer to three or more Judges “named in theorder.” The Court of Criminal Appeal Ordinance gave specific powers to theChief Justice in respect of the Benches of that Court. Perhaps, the powergiven under section 14(3) carries with it the power to nominate in thatinstance. It has been the practice, a longstanding practice, for theconvenience of the Judges and depending on the lists, the Registrar proposesthe names of the Judges to hear the different cases in the day’s list and ChiefJustice approves or alters them. When a Judge had called for a record andissued notice on the parties it has invariably been the practice that that Judgeshould be a member of the Bench to hear that case. The Registrar proposesthe names with the tacit approval of all the Judges. The Chief Justice is onlyacting for and on behalf of all the Judges of this Court with each of whomthe power of nomination lies. In The Queen v. Liyanage (supra), one of thequestions considered was whether the power of nominating Judges under anamending Act to the Criminal Procedure Code given to and exercised by theMinister was valid. The Court held that it was not because that power had
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hitherto been vested in the Supreme Court or in the Chief Justice, ibid,p. 360. This case has no application here as no outside agency nominated theJudges. This objection is based on wrong facts, unsupported in law andwithout any merit. Let me not be misunderstood. Let the present practice ofnomination, which is not contrary to law, continue.
In the case from the High Court of Bandarawela, the petition was filed onthe 11th of March, 1974 and an injunction granted for a period of six weekson the 14th of March, 1974. The application for the dissolution of theinjunction supported by an affidavit of the Minister, filed on the 28th March,1974, was refused on the 9th of April, 1974, and the Minister ordered to paycosts. So that on the day records were called for, the injunction had beendissolved by effluxion of time. It is, therefore, submitted that this Court hasno jurisdiction to review that case. Even if this be correct there is still theorder for costs. The Court has the power to call for the record of a case thathas been tried, and this case has been tried. This Court can, upon revision,pass any Judgment or make any order which it might have made, had thecase been brought before it in due course in appeal. Had an appeal beenbrought within the time limit from that order refusing the cancellation of theinjunction, an appropriate order could have been made by this Court.
Nagalingam, J. in Perera v. Agidahamy, (supra), in the course of reviewingsection 753 of the Civil Procedure Code which is in the same terms assection 354 of the Law, has said that the words “pass any judgment or makeany order” lead one to the conclusion that they do not prescribe the scope orput a limitation on the powers of this Court to deal with an application inrevision. The only limitation is that the order made must be one which theCourt could have made if the case was brought up in appeal. It is then opento this Court, if it so concludes, to say that the order made by the Judge ofthe High Court is wrong and consequently the order to pay costs is wrong. Inall these cases this Court has jurisdiction in the exercise of its powers inrevision to determine whether or not the injunctions should have been issuedon the Minister.
This brings me to the second question in the reference: whether aninjunction lies against a Minister of State under section 24 of theInterpretation (Amendment) Act No. 18 of 1972. The amendment came intooperation on 11th May, 1972. Section 24(1) of the Amending Act reads:—
“Nothing in any enactment, whether passed or made before or after thecommencement of this Ordinance, shall be construed to confer on anyCourt, in any action or other civil proceedings, the power to grant aninjunction or make an order for specific performance against the Crown,a Minister, a Parliamentary Secretary, the Judicial Service Commission,the Public Service Commission, or any member or officer of suchCommission in respect of any act done or intended or about to be done
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by any such person or authority in the exercise of any power or authorityvested by law in any such person or authority:
Provided, however, that the preceding provisions of this subsectionshall not be deemed to affect the power of such Court to make, in lieuthereof, an order declaratory of rights of parties.”
The contention on behalf of the landowners is that this section has noapplication, according to the plain meaning of the words, in respect of actsdone or power exercised mala fide or with an ulterior purpose. To considerthe meaning of this section it is necessary to go back to the history of thislegislation. What was the mischief the legislature intended to remedy? I donot think it was disputed that, whatever Government is in power, acquisitionof land had always been challenged in the Courts with the result that onvarious grounds injunctions have been issued at various stages to stay theacquisitions thereby delaying them. Cases in these Courts show that.Injunctions were granted where land was required in very urgent matters.There were also numerous instances where injunctions have been issued inseveral courts in this country against the members of the Public ServiceCommission in respect of disciplinary action taken against Public Servants.With the result the work of the State was hampered. An answer to this maybe to expedite the acquisition proceedings as it was done by Act No. 20 of1969. Apparently that Act was found ineffective. It was in this situation thatthis amending legislation was enacted. It is a matter for the legislature tochoose the remedy and in the remedy chosen the question is whether itsterms are adequate to meet the situation.
A number of speeches of Ministers and Members of Parliament have beenreferred to in the course of the arguments. “It is clear that the language of aMinister of the Crown in proposing in Parliament a measure whicheventually becomes law. .. is inadmissible … as evidence of intention … ofthe legislature.” Assam Railway Trading Co v. I.R.C., (supra). Said LordReid, “The rule is firmly established that we may not look at Hansard and ingeneral I agree with it for reasons which I gave last year in Beswick v.Beswick (supra). This is not a suitable case to reopen the matter but I ambound to say that this.case seems to show that there is room for an exceptionwhen examining the Hansard would almost certainly settle the matter oneway or other” Warner v. Metropolitan Police Commissioner (supra). Anexamination of the debate would necessarily lead us to the examination ofother debates on a like question on other occasions. This will in my viewinvolve the Court in sitting in judgment over a political debate when thefunction of this Court is to say what the enacted words of the statute mean asthey finally stand.
Many arguments were advanced based on what happened during thepassage of the Bill in Parliament. The Bill itself, as it was originally
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presented, differs from the Act. Words may be altered, added or omitted forvarious reasons with which a Court should not be concerned. It has been saidthat the Parliamentary history of a statute is “wisely inadmissible to explainit.” Rex v. Hertford College.'46 The same view has been expressed in Rex v.West Riding of Yorkshire Country Council.'4'' It is then only the final productin print that a Court should be concerned with.
Prior to the 11th May, 1972, no injunction was granted against the Crown(The State) or against a Public (State) Officer. But a method has been foundto get over this by saying a Public Officer could be restrained in hisindividual capacity. Buddhadasa v. Nadarajah (supra). The judgment ofBasnayake, C.J. cited in support of the proposition that an injunction wasavailable against a Public Officer, Ladamuttu Pillai v. A.G. (supra) has beenset aside in 62 N.L.R. 169 (supra) by the Privy Council. Although the PrivyCouncil was silent on this question that case is not a satisfactory authority forthat proposition. The position in England appears to be the same (De Smith:Judicial Review of Administrative Actions, 2nd Edition, p. 339.) InRatwatte v. Minister of Lands (supra) an interim injunction was issued on theMinister of Lands. It was in this background that the Interpretation(Amendment) Act No. 18 of 1972 was passed.
What the Amending Act in this section has done is to (a) reiterate the lawas regards the non-availability of injunctions against the State and Stateofficials, (b) prohibit the grant of injunctions against four categories ofpersons, and (c) instead give relief by way of a declaratory action as section23 barred the declaratory action in certain cases. The right to damages ispreserved. An injunction is pre-eminently a discretionary remedy. (DeSmith, p. 331.) The discretion must, of course, be judicially exercised. Thereis no right as such to an injunction. A restriction is placed, undoubtedly animportant one, on the relief available. Hence this is insufficient reason for astrict interpretation.
Section 24(1) enacts “Nothing in any enactment, whether passed or madebefore or after the commencement of this …” The word “enactment” isdefined in section 2(g) as “shall include an Ordinance as well as an Act ofCeylon.” The Act became law on the 11th May, 1972, a few days before theNew Constitution was promulgated. I cannot conceive of an amendment soclose to that date without the Legislature intending that the Act should applyto all laws passed in the future. Says Craies on Statute Law, 7th Edition,p. 213, “when the word defined is declared to include so and so, thedefinition is extensive.” Hence the word “enactment” is wide enough toinclude the laws passed by the National State Assembly.
Comparison of this section with sections in two other enactments, seclion461 of the Civil Procedure Code and section 88 of the Police Ordinance does
(1878) 3 Q.B.D. 693 al 707.
’‘’(1906) 2 KB 676 at 716.
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not help in the interpretation. Section 461 of the Civil Procedure Code reads,“No action shall be instituted in respect of an act purporting to be done. . . ”It was the view taken in Appu Singho v. Don Aron (supra) and Abaran Appu v.Banda(supra), that notice was necessary in the case of bona fide acts.Wijeyewardena, C.J. in Ratnaweera v. Superintendent of Police. CJ.D.(supra) said at 222, “The view that section 461 does not apply to mala fideacts of public officers is too restricted a view” and said again at 224, “Themotive with which an act was done does not enter into the question at all.”Pulle, J. agreed with him. This was also the view taken in De Silva v.Illangakoon (supra) by Basnasyake, A.C.J. and Pulle, J. A noticecontemplated to be given is only a step in the procedure to claim relief. Inthat process I do not think that mala fides or bona fides of the act has anybearing on that requirement. This was the view of two of the Judges inRoncarelli v. Duplessis (supra) in interpreting a section very similar to section461. That section is at p. 157:—“ . . . any act done in the exercise offunctions. . . ”. The view of Wijeyewardene, C.J., with respect, then appearsto me to be the better view.
Section 88 of the Police Ordinance says that “all actions and prosecutions….. for anything done or intended to be done. …. shall be commencedwithin three months after the act complained of shall have been committed,
and not otherwise” This has been interpreted not to apply to mala fide
acts. This is really a section in a Statute of Limitations. After three monthsthere shall be no action and one month before action there shall be a notice.If sufficient amends be made there shall be no action. It bars any action.Then in that situation it was said, to cite one of the cases, in IsmalanneLokka v. Haramanis (supra), “A Police Officer found to have actedmaliciously and not bona fide is not entitled to rely on the limitations ofactions provided for . . . ” Hence caution is necessary in adopting themeaning ascribed to the words in section 88 of the Police Ordinance to thewords in section 24 of the Amending Act, as said in Craies on Statute Law,7th Edition, p. 164.
It was argued that in section 22 of the Amending Act there was adistinction made between the genuine and the spurious exercise in the use ofthe words “in the exercise or the apparent exercise.” Consequently the wordsin section 24 being “in the exercise of any power” what was meant is onlythe genuine exercise of power. But to my mind it was so enacted in section22 because of the proviso to that section providing a remedy for the exerciseof power, inter alia, without jurisdiction. Then that is no reason for limitingthe meaning of the word “exercise” to mean only a ‘“genuine exercise.” Forany genuine exercise there is no necessity of prohibiting the grant of aninjunction. It is for the spurious that safeguards have to be provided. What iscontemplated is “any act done.” It is not “an act done.” The word anyimparts the widest possible meaning .to the word act. It must be given thenormal wide meaning and there is no reason for introducing any additional
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limiting word. Similarly to the phrase “exercise of any power” the normalwide meaning has to be given. The words that have to be construed are “anyact done, intended or about to be done in the exercise of any power.” Theyare very wide words and must be given their full meaning and content.
Section 24(1) must be read with the proviso. The two have to be readtogether. The principal part provides that no injunction shall be available.The proviso preserves the jurisdiction of the subordinate Courts overtribunals while it takes away one of the remedies, viz. injunctions. Thedeclaratory action is given in lieu of injunctions which in plain languagemeans “instead of.” It was said once a declaratory action was made availablethe injunction should be available till the determination of the action. Such aconstruction will be to treat the proviso as an enacting clause independent ofthe principal part which is contrary to the accepted principles. Craies onStatute Law, 7th Edition, p. 218, 219. It was repeatedly urged that theavailability of the declaratory action without the injunction will render thedeclaratory action of no force or avail. No doubt there can be hard cases, butthat is no reason for saying, when there is an express prohibition, theinjunction should be available. That will be to legislate and not to interpretand to give effect to the language of the law.
Section 24(2) prevents any Court from granting an injunction against aState Officer if the granting of it is to give relief against the State whichcould not otherwise be obtained. This prohibition applies to all acts done asState Officer. Then it is unthinkable, as the learned acting Solicitor-General •submitted, that the Legislature intended that an injunction should beavailable to restrain the acts of a Minister done under statutory powers.Section 24(1) prohibits any injunction being granted “in any action or othercivil proceedings,” whereas in section 24(2) it says no Court shall “in anycivil proceedings” grant an injunction. There is no difference between thetwo phrases “any action or civil proceedings” and “civil proceedings.” Bothmean the same thing. Perhaps the words “any action” were included insection 24(1) in view of the proviso which speaks of a declaratory action.
Section 22 prohibits Courts fron examining the validity of decisions oftribunals and authorities where there are “ouster clauses.” The Legislature inthis section has excluded the power of review in all cases other than theseinstances spelt out in the proviso. So then if the Legislature intended toconfine section 24(1) to a certain class of acts, as contended on behalf of thelandowners, the Legislature would have in some definite terms done so. Toconclude then, according to the plain meaning of the words of the section,the limitations advanced on behalf of the landowners cannot be placed on thesection.
No enactment in this country refers to a permanent injunction or to aninterim injunction. The reference is always to an injunction. The context in
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which the word is used throws light as to whether the interim injunction ismeant. In section 21 of the Administration of Justice Law the injunction isgranted in contemplation of an action in the District Court or in theMagistrate’s Court. So it is for a limited period. But in section 24(1) of theAmending Act the words are “the power to grant an injunction or to makeorder for specific performance. . . ” and according to their plain meaningdeals with the grant of permanent and interim injunctions. The proviso doesnot alter the position because of the words “in lieu thereof.” This is a sectionin an Interpretation Act and, unless otherwise stated, must apply to all lawsproviding for temporary and permanent relief. The English Court of Appealdecided that it is impossible to grant anything which corresponds to' interiminjunctions in proceedings against the Crown. International Electrical Co. ofNew York v. Commissioner of Customs and Excise (supra). In so deciding theCourt followed Underhill and Waywell v. Ministry of Food (supra), where inconsidering section 21 of the Crown Proceedings Act of England, Romer, J.said “Accordingly, he (Counsel) says that, just as I cannot grant aninterlocutory injunction against the defendants in this case . . . ., I cannot asan alternative make an interim declaration. In my judgment that submissionis right.” Hence the prohibition in section 24(1) is not only to the grant ofperpetual injunctions, as submitted on behalf of the landowners, but also tothe grant of interim injunctions.
Argued Mr. Tiruchelvam that this Amending Act does not touch theinherent powers of the Courts to grant an injunction. The power to grantinterim relief by way of injunction, and the procedure, are set out in section,21 and 42 of the Administration of Justice Law and the Civil Procedure Coderespectively. Once provided for the only power is that which is given underthe statutes which have to be interpreted with due regard to the InterpretationOrdinance. Support for this view is had from the decision of Bonser, C.J. inMohamadu v. Ibrahim (supra) where it was said that the power of granting aninjunction was a limited one to be exercised on special grounds and restrictedto cases referred to in the Courts Ordinance and that there was no inherentpower in the Supreme Court to grant injunctions. See also Walter Pereira,Laws of Ceylon, p. 95. A case relied on by the learned Attorney-at-law wasVictor de Silva v. Jinadasa de Silva,148 Manickavasagar, J. said “I have nodoubt at all that the Court has the power to make order . . . where it believesjustice . . . demands the order, though there be no provision in the statute…” The learned Judge made the remarks on the basis that there was noprovision in the Civil Procedure Code regarding the stay of execution whereapplication in revision was made. This dictum supports the view that theinherent power is invoked in a sphere or situation which legislation has notprovided for. I then do not see the necessity of looking into the otherauthorities submitted. Section 40 of the Administration of Justice law, interalia, provides for making orders as may be necessary to do justice but not for 148
148 (1964) 68 N.L.R. 45.
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encroaching upon a subject or a sphere that has been provided for by theLegislature. Section 839 of the Civil Procedure Code provides for theexercise of the inherent power but it cannot be for a case provided for bystatute.
It was the submission on behalf of all the landowners that where the act ofthe Minister was motivated by mala fides the act is a nullity or where theMinister is motivated by mala fides in exercising a power, the exercise ofthat power and all the steps taken subsequently are a nullity and so in eitherevent, the main part of section 24(1) of the Amending Act does not apply.The Courts today are precluded from, subject to the provisions of section 24,entertaining a declaratory action in respect of matters mentioned in section23 of the Amending Act. The declaratory actions in the cases under reviewfall within the category prohibited in section 23. Hence these actions couldnot have been filed but for the proviso to section 24(1) and have beenentertained because the proviso to section 24(1) permitted it. If then thelandowners take advantage of the proviso to file the actions complaining ofbad faith of the defendant, they cannot be heard to say that the main part ofsection 24(1) does not apply to acts done in bad faith by the defendant. Theproviso depends on the principal part. This can be stated in another way. Ifthe main part of the section prohibits the grant of the injunction only in thecase of bona fide acts, a curious result follows. The proviso gives thedeclaratory action “in lieu thereof,” that is, instead of the injunction that isprohibited. Hence the declaratory action is available only in the case of bonafide acts. In the present actions the basis is the allegation of mala fides andconsequently they are outside the scope of the proviso. Can then theseactions be maintained otherwise? Section 23 of the Amending Act prohibitssuch actions “.. . upon any ground whatsoever arising out of or in respect of… a decision . . . which any person … is empowered to make under anywritten law.” These are the widest possible words indeed. Even where thecomplaint is that the decision is motivated by bad faith, it is still a groundarising in respect of “a decision empowered to be made under a law.” Henceevery one of these actions under review fall within the prohibitions in section23 and these actions cannot be maintained in spite of the proviso to section24(1). Such is the result of the application to section 24(1) and its proviso ofthis submission. Such a result was never intended and never envisaged by theLegislature. Hence this submission must fail. Consequently section 24(1)read with its proviso cannot in any way be limited in its application assubmitted on behalf of the landowners.
It has been said that there are no degrees of nullity. But there are degreesof malice. Malice alleged is political revenge. Such allegations can be madeeasily in the field of politics. May even be unfounded, exaggerated and eveninstigated. Motive is double edged. Till there is a finding that the act ismotivated by mala fides it is bona fides and valid. There can be a finding of
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mala fides only on evidence elicited after both parties have been given atleast an opportunity of being heard and never only on the affidavit of anapplicant. If then, according to the submissions, section 24(1) prohibits thegrant of an injunction only regarding bona fide acts is correct, no injunctioncan be granted till there is a finding that the act is mala fide. Then in all thesecases injunctions have been granted before there was such a finding. It mayappear that section 662 et seq. of the Civil Procedure Code or section 42 ofthe Administration of Justice Law will be the answer as these sectionsprovide for issue of injunctions on affidavits. It is not so. Every law must beread, construed and applied with due regard to the Interpretation Act andsection 24(1) is a section in that Act. For instance take section 42 of theAdministration of Justice Law. It says >. on its appearing by the affidavit ofthe plaintiff that sufficient grounds exist therefor, grant an injunction …”This must be read subject to section 24(1) of the Amending Act. Sufficientgrounds to grant can exist or can appear to exist only on proof of mala fides,in view of the submission advanced. But there has been no such proof.Hence the injunctions have been issued in contravention of the section uponthe submission advanced.
In this connection it is interesting to note that in the Underhill case (supra)where the plaintiff applied for an order to restrain the defendants frompublishing a certain notification until the final disposal of the action, RomerJ. at page 732 said “. . . evidence by affidavit is insufficient. The want ofgood faith on the part of the defendants quite clearly cannot be gone into onaffidavit evidence and will have to be pursued, if pursued at all, at the trialwhen it can be gone into in the light of such oral evidence as may beawarded.” That appears to me to be the correct position here as well.
Before examining the numerous cases we must remember what thissection is. Section 24(1) of the Amending Act is not what is called an ousteror a no certiorari or a preclusive clause. By that clause, the power of reviewof the Court is not taken away. Only a relief is curtailed in one respect.Hence the principles applied in the construction of ouster clauses may not bestrictly applicable here. We are considering actions arising out of anadministrative decision of a Minister under statutory powers and not thejurisdiction or the decision of a tribunal required to make a decisionjudicially. Cases dealing with this later category are still less applicable.Great reliance was placed on the case of Anisminic v. Foreign CompensationCommissioners (supra).
What Lord Reid in the passage, now daily quoted at 170: “But there aremany cases where although the tribunal had jurisdiction to enter on theinquiry, it has done or failed to do something in the course of the inquirywhich is of such a nature it is a nullity. It may have given its decision in badfaith . . . ; I do not intend this list to be exhaustive. In such events the
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finding of a tribunal is a nullity.” This was a decision relating to the findingof a Judicial Tribunal in a claim involving a sum of £4 1/2 million. It did notdeal with any question of mala fides at any stage of the proceedings of thetribunal or of any member of it; it did not deal with any questions onrestrictions placed on relief granted by a Court. The essence of that decisionwas that an ouster clause does not prevent the determination. of a tribunalacting judicially being set aside if it was outside the tribunal’s jurisdiction.There is no ouster clause under consideration in these cases.
In the Anisminic case (supra) what Lord Reid said was that mala fides ingiving a decision renders that decision a nullity. He did not say that all thesteps taken thereafter are a nullity or anything that flows therefrom is anullity. In all these cases after the decision to acquire, definite steps havebeen taken towards the acquisition, lands surveyed, orders to take possessionpublished, state officers taken over the possession of the lands on behalf ofthe State. All these steps are pregnant with legal consequences. Even if thedecision be declared to be motivated there is no meaning in calling thesubsequent steps a nullity. Supposing in the Anisminic case (supra), or in sucha case, the claim of the company in a sum of £4 1/2 million was entertainedbut before the decision was declared or found to be a “nullity,” the companywas paid money which was distributed among the shareholders. Suppose aPolice Officer who has statutory powers of search in certain circumstancessearches a house mala fide. There is no meaning in calling these acts anullity. They have been done. It may be an illegal payment or search. The actbeing illegal, there may be a cause of action, and damages. Instances can bemultiplied. In Nakudda Ali v. Jayaratne (supra) Lord Radcliff said referringto an order of the Controller of Textiles, “No doubt he must not exercise thepower in bad faith …” But with great respect he did not say it was a nullityif bad faith was established. In fact in 1956, in the Smith case (supra)referred to later he said that the argument that the decision was a nullity wasonly a play on the meaning of the word “nullity.”
This brings me immediately to the examination of the case of Smith v.East Elloe Rural District Council (supra). It dealt with the validity of acompulsory purchase order of land and bad faith was proved. The House ofLords considered an ouster clause and held that the jurisdiction of the Courtswas ousted. At page 871 Lord Radcliff said, “At one time the argument wasshaped into the form of saying that an order made in bad faith was in law anullity and that all references to compulsory purchase of land in paras 15 and16 must be treated as references to such orders only as had been made ingood faith. But this argument in reality is a play on the meaning of the word“nullity.” An order, even if not made in good faith, is still an act capable oflegal consequences. It bears no brand of invalidity on its forehead. Unless thenecessary proceedings are taken to establish the question of invalidity and toget it quashed or otherwise upset, it will remain as effective for its ostensiblepurpose as the most impeccable of orders.”
W1JESUNDERA, J. – Sirisena and Others v. Kobbekaduwa,
Minister of Agriculture and Lands
We were repeatedly reminded of Roncarelli v. Duplessis (supra). It was acase where a bar-keeper sued the Prime Minister and Attorney-General ofOntario for damages for maliciously instructing the licensing authority tocancel, without legal authority, a licence. There was proof of fraud andcorruption. That case only illustrates that “an action for damages lies fordeliberate abuse of public authority”. Halsbury 4th Ed. Vol. 1, p. 187.There was neither an ouster clause nor anything equivalent to our section 24which was considered in that case. The Privy Council in David v. AbdulCoder (supra), said per Viscount Radcliffe, “A malicious misuse of authoritymay cover a set of circumstances which go beyond the presence of mere iliwill and it is only after, the facts of malice have been properly ascertained isit possible to say that there has been an actionable breach of duty.” That doesnot help in the interpretation of the section in question or the propositionadvanced on behalf of the landowners. Similarly several other cases fromvarious countries cited dealt with the abuse of power or public authority andfor such abuse actions lay. These have no application.
The two Australian cases cited as the forerunners of the Anisminic case(supra) considered ouster clauses. In The King v. Hickman, el a/U9an ousterclause in the Coal Mining Industry Regulation to the effect that “a decisionof a Local Reference Board shall not be appealed against …. be subject toProhibition, Mandamus or Injunction …” Section 75 of the AustralianConstitution enacted (relevant portion) “In all matters in which a Writ ofMandamus or Prohibition or an Injunction is sought, the High Court shallhave jurisdiction.” In view of the provision a Writ of Prohibition was issuedin respect of a decision of the Board on an erroneous finding that the matterwas within the ambit of the Industry. Dixon, J. enunciated the additionalrequirement of bona fides for its validity though that was never in issue. Thiscase was cited in The Queen v. Members of the Sugar Cane Prices Boardet al.'50 The Court considered an ouster clause in the Regulations of Sugarcane Prices Act and refused a Writ of Prohibition. The whole Court said thatalthough section 12 did not permit the making of a new award (by theCentral Board) its validity was not open to challenge in view of thepreclusive clause. It was said there, (p. 252) that the decision of the CentralBoard was not open to challenge as it was within jurisdiction and bona fide,by Dixon, C.J., who presided over that Bench and two others. If I may sayso, I am reminded of what Lord Radcliff said in Nakudda Ali v. Jayaratnereferred to earlier. However, two of the Judges said at p. 261 that the awardcannot be questioned on any account whatsoever and its validity is putbeyond challenge. Certainly some of the dicta do not appear to support theargument on behalf of the landowners. If section 22 of the Amending Act orthe ouster clauses in the Acquisition Act were being considered, these casesmay be of relevance. The submission on behalf of the landowners musttherefore, fail. 150
'”(1945) 70 C.L.R. 598.
150 (1959) 101 C.L.R. 246.
New Law Reports
(1978) Vot. 80N.LR.
In conclusion there is one paragraph in the Smith case (supra) which Imust quote in the present context. Lord Radcliff said at p. 871,. and that
brings us back to the question that determines this case: Has Parliamentallowed the necessary proceedings to be taken. I am afraid that I havesearched in vain for a principle of construction as applied to the Acts ofParliament which would enable the appellant to succeed. On the other hand itis difficult not to recall in the respondent’s favour the dictum of Lord Bacon,“Non est interpretatio, sed divinatio, quae recedit a litera.” That to my mindsettles the question in these cases. The English translation of the Latinquotation reads, “What there is a departure from the text, it is not aninterpretation but a prophecy.” I will ask the same question Lord Radcliffeasked, “Q. Has Parliament allowed the necessary proceedings to be taken? A.Only a declaratory action but not an injunction.” Any other answer in myjudgment is a departure from the text and can only be on the assumption ofthe role of a legislator.
Accordingly in all these cases section 24(1) of the Interpretation(Amendment) Act No. 18 of 1972 precluded the Courts from granting theinjunction against the defendant. All the orders granting injunctions are setaside and all the injunctions as are still in force will stand dissolved. TheOrder of the Judge of the High Court, Badulla, requiring the defendant to paycosts is set aside.