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Court of Appeal of Sri Lanka |
] [Hide Context] 1
1974 Present: Pathirana, J., Udalagama, J.,
Wijesundera, J., Perera, J., Ismail,
J., Weeraratne, J., Vythialingam, J. Sharvananda, J., and
Gunesekera, J.,
SIRISENA AND OTHERS
v.
HONOURABLE H. S. R. B. KOBBEKADUWA, MINISTER OF AGRICULTURE AND LANDS,
Respondent
S.C. APN/GEN/6/74
H.C. Badulla
V/l/74
S.C. APN/GEN/7/74
D.C. Bandarawela -
1/6
S.C. APN/GEN/8/74
H.C. Kandy
11/74
S.C. APN/GEN/9/74
D.C. Kandy
L/10568
S.C. APN/GEN/10/74
D.C. Kandy
L/10569
S.C. APN/GEN/11/74
D.C. Kandy
L/10570
S.C. APN/GEN/12/74
H.C. Kandy
15/74
S.C. APN/GEN/13/74
H.C. Ratnapura
6/74
S.C. APN/GEN/14/74
H.C. Kandy
1/28/74
S.C. APN/GEN/15/74
H.C. Kandy
1/25/74
S.C. APN/GEN/16/74
H.C. Kandy
L/10586
S.C. APN/GEN/18/74
H.C. Kandy
1/37/74
S.C. APN/GEN/19/74
H.C. Kandy
1/38/74
S.C. APN/GEN/20/74
H.C. Kandy
1/39/74
S.C. APN/GEN/24/74
D.C. Gampola
X/1152
Administration of Justice Law No. 44 of 1973 section 14 (3) and section 354 (1)
- Land Acquisition Ordinance (Chapter 460)- Interpretation
Ordinance (Chapter
2) section 24 introduced by Interpretation (Amendment) Act No. 18 of 1972 -
Applicability.
Interim injunctions were issued, some by High Courts to be in operation for
specific periods pending institution of actions in the
District Courts, and some
by District Courts pending final determination of actions, in each case against
the Minister of Agriculture
and Lands, restraining him from taking any further
steps towards the acquisition of lands belonging to the petitioners. In terms
of
section 354 (1) of the Administration of Justice Law. No. 44 of 1973, three
judges of the Supreme Court having perused the records
in order to satisfy
themselves as to the legality and propriety of the orders made, were of the
opinion that the said interim injunctions
on the face of the records appeared to
be illegal in view of the provisions of section 24 of the Interpretation
Ordinance introduced
by Interpretation (Amendment) Act. No. 18 of 1972.
The
petitioners/plaintiffs in the cases were noticed to appear and show cause why
the said interim injunctions should not be set
aside in the exercise of the
revisionary powers of the Supreme Court. In terms of sections 14 (3) of the
Administration of Justice
Law No. 44 of 1973 a bench of 9 judges was constituted
by the Chief Justice to hear the matter in dispute as it was of general and
public importance. Since there was a common legal question, by consent of
parties all cases were consolidated.
Held: by the majority, Perera J., Vythialingam J., Ismail J., Weeraratne
J., and Sharvananda J., (Pathirana J., Udalagama J., Gunesekera
J., and
Wijesundera J., dissenting) that the prohibition contained in section 24 of the
Interpretation Ordinance introduced by
the Interpretation (Amendment) Act No. 18
of 1972 does not apply to a case where an interim injunction was sought against
a Minister
in respect of any act done by him without jurisdiction, ultra vires
or in bad faith.
2
Counsel:
H. W. Jayewardene with Mark Fernando, J. C. Ratwatte and Hiran
Jayawardene for the Petitioners in S.C. APN/GEN/6/74 TO 11/74; 13/74,
14/74 & 24/74.
M. Tiruchelvam with Dr. N. Tiruchelvam, A. J. 1. Tillakawardene and R. R.
Thiyagarajah for the 1st Petitioner in
S.C. APN/GEN/12/74 &
16/74.AZ ZZA
V. S. A. Pullenayagam with A. P. Niles, Miss P. C. Rajanayagam and T. Rajendran
for the 2nd Petitioner in S.C.
APN/GEN/12/74 &
16/74.
L. W. Athulathmudali with Daya Pelpola and A. J. I. Tillakawardene for the
Petitioner in S.C.
APN/GEN/18/74.
Nimal Senanayake with Rohan Perera for the Petitioner in S.C.
APN/GEN/15/74.
H. W. Jayewardene with L. W. Athulathmudali and A. J. I. Tillakawardene for the
Petitioners in S.C.
APN/GEN/19/74 & 20/74.
Siva Pasupati, Acting Solicitor-General with K. M. M. B. Kulatunga, Senior State
Counsel, G. P. S. de Silva, Senior State Counsel,
and D. C. Jayasuriya, State
Counsel, for the Attorney-General.
Argued on:
8th, 9th, 10th, 11th, 12th, 16th, 17th, 18th, and 19th
July, 1974.
Decided on :
3rd September, 1974.
3rd September 1974. PATHIRANA, J-
My brother Wijesundera, J., and I directed the Registrar, Supreme Court, to call
for the records of the cases which are the subject-matter
of these applications.
Thereafter, my brothers Udalagama, J., and Wijesundera, J., and I, in terms of
section 354 (1) of the Administration
of Justice Law, No. 44 of 1973, having
perused the records of these cases in order to satisfy ourselves as to the
legality and
propriety of the orders made therein, we were of the opinion that
the said orders on the face of the records appeared to be illegal
in view of the
provisions of section 24 of the Interpretation Ordinance as amended by the
Interpretation (Amendment) Act No. 18
of 1972. These were orders granting in
each case interim injunctions against the Minister of Agriculture and Lands
restraining
him and/or his agents from taking any further steps towards the
acquisition of the lands belonging to the respondents to these applications.
3
Injunctions in some of these cases were obtained in the High Court to be in
operation for a specified period (which has since expired)
pending the
institution of actions in the District Court, while in the other cases interim
injunctions were issued by the District
Courts pending the final determination
of the actions.
We issued notices on the petitioners/plaintiffs-respondents to appear and show
cause as to why the said orders should not be set
aside in the exercise of the
revisionary powers of this Court. We also noticed the Attorney-General. We took
this step of noticing
the parties ex mero moto as it was our view that section
24 of the Interpretation (Amendment) Act No. 18 of 1972 was open to the
construction that the Courts have no power to grant an injunction against the
Minister in respect of his orders made in connection
with the acquisition of the
lands in question.
I might mention at this stage that these orders were made by us in Chambers.
At the sittings held on 14th June, 1974, before my brothers Udalagama, J.,
Wijesundera, J., and myself, Counsel appearing for the
plaintiffs-respondents in
some of these cases brought to our notice that applications had been made that
morning before the Acting
Chief Justice under section 14(3) of the
Administration of Justice Law No. 44 of 1973 to have these matters listed before
a Bench
of five Judges on the ground that questions involved in these cases were
matters of general or public importance. Pending the decision
of the Acting
Chief Justice under section 14(3) (c) of the Administration of Justice Law, we
adjourned sittings. On the 18th of
June, 1974, Alles, A.C.J., after hearing
counsel who supported the application and the Acting Solicitor-General, directed
under
section 14(3) of the Administration of Justice Law that these applications
which were pending before us be listed for hearing on
the 8th of July, 1974,
before a Bench of nine Judges as the matters in dispute in the said cases were
of general or public importance.
The present Bench of nine Judges was
accordingly constituted by the Chief Justice on the 5th of July, 1974, to hear
these applications.
As there were common legal questions involved in all these applications, by
consent of Counsel appearing for the respondents and
the Acting
Solicitor-General, who appeared for the Minister of Agriculture and Lands, all
these applications were consolidated
as it was understood that a decision on the
common legal questions would dispose of all applications.
4
At the argument before us the points for decision may be briefly summarised as
follows :-
(1) Whether section 24 of the Interpretation (Amendment) Act would apply to a
case where an interim injunction was sought against
the Minister in respect of
any act done by him without jurisdiction, ultra vires or in bad faith, and
whether such act is outside
the scope of section 24 of the said Act.
(2) Whether the order of the Supreme Court under section 354(1) of the
Administration of Justice Law calling for the records of
these cases with a view
to examining them and satisfying itself as to the legality or propriety of the
orders made therein were
done in the exercise of any jurisdiction lawfully
vested in the Supreme Court and, therefore, whether the present Court hearing
these applications was properly constituted.
The three main grounds on which the respondents by their Counsel sought to
attack the orders of the Minister made under the Land
Acquisition Act were one
or other of the following :-
(a) The orders were made mala fide and therefore were ultra vires and a nullity.
That the proposed acquisition had been initiated
and proceeded with by the
Minister who had been influenced by malicious and false representations, which
were politically motivated
by personal and political animosity of individuals
towards the persons whose lands were acquired.
(b) That orders which were made by the Minister to acquire certain lands were of
an indefinite corpus, and that the descriptions
adopted therein fail to give
effect to the requirements of the Act, and, therefore, they are not in
conformity with the law.
(c) That the Minister in the notice issued, had failed to specify the public
purpose for which the lands were acquired.
These grounds, according to Counsel for respondents, come within the scope of
the principles, according to which the Courts are
prepared to apply the ultra
vires doctrine and review the exercise of administrative, judicial, or
legislative acts of the executive.
5
These principles are broadly summarised by Lord Reid in Anisminic Ltd., v.
Foreign Compensation Commission [1 (1969) 2 N.L.R. 163
at 170 and 208 (1969) 1 ALL E. R. 208 at 243-244.].
"It has sometimes been said that it is only where a tribunal acts without
jurisdiction that its decision is a nullity. But
in such cases the word
"Jurisdiction" has been used in a very wide sense, and I have come to the
conclusion that it is
better not to use the term except in the narrow and
original sense of the tribunal being entitled to enter on the inquiry in
question.
But there are many cases where, although the tribunal had jurisdiction
to enter on the inquiry, it has done or failed to do something
in the course of
the inquiry which is of such a nature that its decision is a nullity. It may
have given its decision in bad faith.
It may have made a decision which it had
no power to make. It may have failed in the course of the inquiry to comply with
the requirements
of natural justice. It may in perfect good faith have
misconstrued the provisions giving it power to act so that it failed to deal
with the question remitted to it and decided some question which was not
remitted to it. It may have refused to take into account
something which it was
required to take into account. Or it may have based its decision on some matter
which, under the provisions
setting it up, it had no right to take into account.
I do not intend this list to be exhaustive. But if it decides a question
remitted
to it for decision without committing any of these errors it is as much
entitled to decide that question wrongly as it is to decide
it rightly."
Counsel for the respondents forcefully submitted that section 24(1) of the
Interpretation (Amendment) Act No. 18 of 1972 excluded
any act done or intended
or about to be done by a Minister in the pretended exercise of his powers or any
act done mala fide or
without jurisdiction. Such acts were a nullity and were
therefore outside the scope of section 24(1). In regard to such acts the
power
of the Court was therefore always available to grant an injunction against the
Minister.
Much emphasis was made on the use in section 24(1) of the words:
" in the exercise of any power or authority vested in law by such person or
authority ",
and an argument was built upon it that these words only refer to real or genuine or lawful or bona fide exercise of power, and not pretended, purported or mala fide exercise of power.
6
Reliance was placed on the cases of Karunanayake v. C. P. de Silva, Minister of
Lands, [(1968) 70 N.L.R. 398.] and Ratwatte v. Minister
of Lands [(1970) 72
N.L.R. 60.]- where temporary injunctions were
granted by the Supreme Court against the Minister of Lands restraining
him from
taking further steps in the acquisition of certain lands under the Land
Acquisition Act. It was, therefore, contended
that section 24(1), the reason of
the particular phraseology employed by the Legislature was designed deliberately
to preserve
the right to obtain injunctions against the state and State Officers
for any act done in the pretended or mala fide or illegal exercise
of any power
or authority. To buttress their argument Counsel referred to the use of the
words: In the exercise or apparent exercise”
in section 22 of the Act, and the
deliberate omission of the words " apparent" or "purported" in section 24
(1),
although in the original Bill the words used were:
"Any act done or purported to be done or intended or about to be done by any
such person or authority in the exercise or purported
exercise of any power or
authority vested by the law in any person or authority".
To give effect to the interpretation that was sought to be placed on the
so-called limitation clause in section 24(1) by learned
Counsel for the
respondents, it would become necessary to read into that section words like, "in
good faith" or "in
the lawful exercise".
In approaching the task of interpreting section 24(1) what one must look for is
not what the intention of Parliament ought to b,
but what it is.
Learned Counsel for the respondents also made the submission that even if the
Legislature intended to deprive the Courts of the
power to grant an injunction
against a Minister and any other person or authority referred to in section
24(1), the language of
the Statute falls short of what the Legislature may have
intended to achieve. For this purpose a comparison was made of the language
used
in section 21 of the Crown Proceeding Act 1947 and the words in section 24 of
our Act, and it was submitted that a qualification
or limitation was introduced
into section 24(1) by the deliberate use of the following words which were not
used in the Crown Proceedings
Act:-
"In respect of any act done or intended or about to be done by any such person
or authority in the exercise of any power or
authority vested by law in any such
person or authority"
7
In order to appreciate the argument of Counsel on both sides it would be useful
to reproduce the provisions of section 21 of the
Crown Proceedings Act and
section 24 of die Interpretation (Amendment) Act around which much argument was
addressed to us to stress
the point that there was a fundamental and obvious
difference in the two statutory provisions. Learned Solicitor-General maintained
that our section 24 was in line with section 21 of the Crown Proceedings Act
1947 although different language has been employed
in two statutes.
Section 21(1) of the Crown Proceedings Act 1947 reads as follows:-
"21(1)- In any civil proceedings against the Crown the Court shall, subject to
the provisions of this Act, have power to make
all such orders as it has power
to make in proceedings between subjects, and otherwise to give such appropriate
relief as the case
may require:
Provided that:-
(a) where in any proceedings against the Crown any such relief is sought as
might in proceedings between subjects be granted by
way of injunction or
specific performance, the Court shall not grant an injunction or make an order
for specific performance, but
may in lieu thereof make an order declaratory of
the rights of the parties; and
(b) in any proceedings against the Crown for the recovery of land or other
property the Court shall not make an order for the recovery
of the land or the
delivery of the property, but may in lieu thereof make an order declaring that
the plaintiff is entitled as
against the Crown to the land or property or to the
possession thereof. The Court shall not in any civil proceedings grant any
injunction or make any order against an officer of the Crown if the effect of
granting the injunction or making the order would
be to give any relief against
the Crown which could not have been obtained in proceedings against the Crown".
An officer of the Crown is defined as including a Minister.
Section 24 of the Interpretation (Amendment) Act reads as follows:-
24(1)- Nothing in any enactment, whether passed or made before or after the
commencement of this Ordinance, shall be construed to
confer on any Court, in
any action or other civil proceedings, the power to grant an injunction 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 such Commission, in respect of any act done or intended
or about to be done by any such person or authority
in the exercise of any power
or authority vested by law in any such person or authority;
8
Provided, however, that the preceding provisions of this subsection shall not be
deemed to affect the power of such Court to make,
in lieu thereof, an order
declaratory of rights of parties.
(2) - No Court shall in any civil proceedings grant any injunction or make an
order against an officer of the Crown if the granting
of the injunction or the
making of the order would be to give relief against the Crown which could not
have been obtained in proceedings
against the Crown.
The learned Solicitor-General submitted that it would be necessary to examine
the past history and the circumstances surrounding
the enactment of the
Interpretation (Amendment) Act No. 18 of 1972 as this will facilitate the task
of interpretation. It was necessary
to find the raison d'etre for this enactment
by Parliament in order to find out the intention of Parliament and to arrive at
the
real meaning of the statute. To arrive at the real meaning, it was always
necessary to get at the exact conception, aim, scope and
object of the whole of
the Act. For this purpose, he suggested that we should accept the test laid down
in the Heydon 's case ['Heydon's
Case (1584) 3 Co. Rep. 7a; Maxwell on Interpretation of
Statues 12th
Edition 40, 96.], namely,
(a )What was the law before the Act was passed;
(b) What was the mischief or defect for which the law has provided;
(c) What remedy Parliament has provided;
(d) The reason for the remedy.
The learned Solicitor-General submitted that this was an appropriate case where
in order to find out the intention of Parliament
it would be desirable that we
should read the speech of the Minister who introduced the legislation in
Parliament. No doubt, at
one time the Courts frowned upon, and did not approve
of reference to parliamentary history in order to interpret legislation. The
main reason given by the English Courts for such disapproval was that the
language can be regarded only as the language of the
three Estates of the Realm,
namely, the Sovereign, the Lords and the Commons, and the meaning attached to it
by its framers or
by individual members of one of those Estates cannot control
the construction of it. This criticism may not apply to the Act we
are
considering as at the time the Act was passed the legislature was unicameral.
However, in more recent times, even in England, there has been a progressive
recognition of the rule that Parliamentary history
is not inadmissible in
certain circumstances in the interpretation of statutes.
9
In the case of Beswick v. Beswick,
[5 (1967) 3W.L.R. 932 at 937 (
1968) Ac 58.] Lord Reid made these observations:
" In construing any Act of Parliament we are seeking the intention of Parliament
and it is quite true that we must deduce that
intention from the words of the
Act. If the words of the Act are only capable of one meaning, we must give them
that meaning no
matter how they got there. But if they are capable of having
more than one meaning we are, in my view, well entitled to see how
they got
there. For purely practical reasons we do not permit debates in either House to
be cited; it would add greatly to the
time and expense involved in preparing
cases involving the construction of a statute if counsel were expected to read
all the debates
in Hansard, and it would often be impracticable for counsel to
get access to at least the older reports of debates in Select Committees
of the
House of Commons; moreover, in a very large proportion of cases such a search,
even if practicable, would throw no light
on the question before the Court".
The reason given for discouraging the use of debates in order to find out the
intention of Parliament was the delay, the expense
and the impracticability
involved in preparing cases involving the construction of statutes if Counsel
were expected to read all
the debates in the Hansard.
In Regina v. Warner [6 (1968) 2 W.L.R. 1306.], the question arose whether in regard to possession of
drugs without being duly authorised
contrary to section 11(1) of the Drugs
(Prevention or Misuse) Act, 1964, the section imposed an absolute prohibition to
possess
or whether it was dependent on proof of mens rea. The Act did not make
any specific reference to mens rea as an ingredient of the
offence. Lord Reid at
page 1316 said:-
"The rule is firmly established that we may not look at the Hansard and in
general I agree with it for the reasons I gave last
year in Beswick v. Beswick
(1968) A.C. 58".
He, however, went on to say :-
"This is not a suitable case in which to reopen the matter but I am bound to say
that this case seems to show that there is
room for an exception where examining
the proceedings in Parliament would almost certainly settle the matter
immediately one way
or the other. Members of both
10
Houses are particularly interested in the liberty of the subject and if it were
intended by those promoting a Bill to extend the
old but limited class of cases
in which absence of mens rea is no defence, I would certainly expect Parliament
to be so informed.
Then, if Parliament acquiesced, those who dislike this kind
of legislation would know whom to blame. But if the words of the Act
are not
crystal clear and Parliament has not been told of this intention, I would hold
without hesitation that it would be wrong
to impute to Parliament an intention
to depart from its known desire to prevent innocent persons from being
convicted".
The rule against the use of Parliamentary history of a statute is almost
impossible to reconcile with the mischief rule in Heydon's
case for it excludes
the main source of the reference for the evil the legislature intended to
remedy. The learned Solicitor-General
submitted that if the contention of the
learned Counsel for the respondent is accepted, then section 24 of the
Interpretation (Amendment)
Act merely laid down the existing law and was a
re-statement thereof. He submitted that when Parliament legislates, it does so
with a purpose, and some meaning must be given to the purpose for which the
legislation was directed.
As much emphasis was laid down by learned Counsel for the respondent that there
was a certain fundamental difference in our section
24(1) and section 21 of the
Crown Proceedings Act, 1947 and also that the word "purported" which was in the
original
Bill was deleted from section 24(1) and also in view of the contention
of the learned Solicitor-General that this legislation sought
to provide a
remedy to cure a mischief, I would think that this is an appropriate case where
we should read the speech of the Minister
at the time he introduced the Bill in
the House of Representatives on the Second Reading. I would confine myself only
to the reading
of the speech of the Minister, and not to speeches of the other
members of the House. I took the precaution while doing so, to seek
assistance
from the Minister's speech only in regard to such matters as are relevant to
finding out what was the law before the
amendment was introduced; what was the
mischief sought to be remedied, and what was the remedy advanced? In
interpreting the Act,
however, I propose to only consider the language of the
Act and the words therein.
It would be relevant, in order to appreciate the argument of the
Solicitor-General, to refer to cases where injunctions have been
issued by our
Courts in respect of acts done by Public Officers and Ministers.
11
The Solicitor-General submitted that in this country injunctions were never
available against the Crown. He relied on the passage
in Buddhadasa v. Nadaraja
[7 (1955) 56 N.L.R. 537 at 544.]
where Sansoni, J., had made the observation :-
"Counsel treated as axiomatic the proposition that no injunction lies against
the Crown."
A Public Servant, however, could be restrained in his individual capacity for
any wrongful act done or intended to be done by him.
The position was the same
in England. In Raleigh v. Goschen [
8 (1898) I Ch 73.], the plaintiffs commenced an action against
the
Lords Commissioners of the Admiralty for an alleged trespass said to have
been committed on their lands for which they claimed damages
and they asked for
an injunction to restrain further trespass on the land which they say was
threatened. It was held that although
the plaintiffs can sue any of the
defendants individually for the trespass committed or threatened by them, they
could not sue
them as an official body and that as the action was a claim
against the defendants in their official capacity, it was misconceived
and would
not lie.
In the case of Buddhadasa v. Nadaraja (supra), an application was made for an
injunction to restrain the respondent in the supposed
performance of his
functions as Deputy Fiscal from wrongful seizing and selling the immovable
property of the petitioner in alleged
pursuance of the provisions of section
79(2)(a) of the Income Tax Ordinance. It was held that the servant of the Crown
purporting
to act in his official capacity on behalf of the Crown can be
restrained from so acting by an injunction issued against him as an
individual.
In this case the defendant was sued as N. Nadaraja of Colombo holding office as
Deputy Fiscal, Western Province.
In Ladamuttu Pillai v. The Attorney-General [9 (1957) 59 N.L.R. 313.] Basnayake, C.J., held that neither
our Civil Procedure
Code nor any other enactment imposed a prohibition such as
is contained in section 21(2) of the Crown Proceedings Act. Our Courts
are free
to entertain any action against the Crown or its officers and there are no
fetters imposed by statute on suing the Crown
or its officers in actions to
which the Crown or a Public Officer is a party and our Courts are free to make
any order they may
make between subject and subject. Similarly, in the grant of
injunctions, our Courts are free to act under section 86 of the Courts
Ordinance, whether the defendant be the Crown or a servant of the Crown or a
subject, and there is no fetter on our freedom of
12
action as in England. This case went up to the Privy Council- Land Commissioner
v. Ladamuttu Pillai [10 (Privy Council) (1960) 62
N.L.R. 169.] Their Lordships reserved their opinion upon the question
as to whether in the circumstances, such as those in the present
case, any
injunction against the Attorney-General could or ought to be granted.
In Karunanayake v. de Silva (Minister of Lands)- (supra) in proceedings under
the Land Acquisition Act, the notice under section
4, the declaration under
section 5 and the order under section 38 of the Minister, did not set out
definite boundaries on the south
and west of the land sought to be acquired. It
was held, therefore, that there could not be an acquisition of an indeterminate
corpus. The notice, order and the declaration of the Minister were therefore
defective in regard to the description of the land
so as to render them of no
force or effect in law as they failed to refer to a particular land, and,
therefore, were not in conformity
with the law. An interim injunction was
accordingly issued by the Supreme Court on the Minister.
In Ratwatte v. Minister of Lands- (supra) it was held that
the petitioners were entitled to the issue of a temporary injunction restraining
the Minister in respect of the acquisition of the land in question.
Samarawickrema J., said that upon the matters placed before
Court, the question
arose whether, in giving directions for the acquisition, the Minister wittingly
or unwittingly gave effect
to a design or plan by a political opponent of the
petitioners which was calculated to protect the interests of himself and his
relatives and cause loss and detriment to the petitioners and, if the Minister
did so but acted unwittingly, whether the petitioners
were entitled to relief.
He further observed that it was necessary that Courts, while discouraging
frivolous and groundless objections
to acquisitions, should be vigilant, if it
is open to them to do so, to scrutinise acquisition proceedings where it is
alleged
that they are done mala fide and with an ulterior motive. A temporary
injunction was granted to restrain the Minister in respect
of the acquisition of
the lands. In fact, Samarawickrema, J., went on to hold that, in order that an
injunction may issue, it was
not necessary that the Courts would find a case
which would entitle the plaintiff to relief at all events; it is quite
sufficient
if the Court finds a case which shows that there is a substantial
question to be investigated and that matters ought to be preserved
in status quo
until that question can finally be disposed of.
These decisions virtually, according to the Solicitor-General, opened the flood
gates for a spate of applications for injunctions
on the Minister in order to
restrain him from taking further steps in acquiring the lands which the
13
Minister sought to acquire. In fact, while introducing the Bill in Parliament,
the Minister remarked. "On this ground of mala
fide there are today pending some
sixty land acquisition cases against the Minister of Lands."
It is against this background that the Solicitor-General submitted that this
Court must consider why the Legislature thought of
enacting section 24 in the
form in which it occurs, the mischief it seeks to cure and the remedy it
proposes to advance.
It would be relevant at the outset to understand the circumstances under which
the Interpretation (Amendment) Act No. 18 of 1972
was enacted, and its scope.
The Legislature would have been more than aware that resort to ready-made
formulae of "Judge-made"
law through the machinery of the Courts had been used
either to delay or halt the administrative process of the State in a country
like ours which, in the words of the Minister, “is in crying need of
development”.
The Amendment seeks to strike a fair balance between the demands and pressures
of a planned economy in a developing country like
ours, and individual rights
and liberties on the other hand. This is a perennial question that has always
agitated legislators
viz. how far individual liberties can be accommodated
amidst the ever-expanding activities of the State in ensuring to the people
the
larger freedoms like freedom from want, freedom from hunger and freedom of the
opportunities of life. This is a problem which
affects all countries of all
political complexions. In fact this problem was posed by the late Earl Warren,
the former Chief Justice
of the United States of America, when he protested that
" Our Judges are not monks or scientists, but participants in the living
stream
of our national life, steering the law between the dangers of rigidity on the
one hand and of the formlessness on the other
. . , Our system faces no
theoretical dilemma but a single continuous problem of how to apply to
ever-changing conditions, the
never changing principles of freedom."
The Minister of Justice, the Hon'ble Felix Dias Bandaranaike, in introducing the
Bill spoke on the same lines- vide official report
(Hansard dated 20th April,
1972, Col: 634):-
"As a Minister of the Government, what I am proposing is to deal with situations
existing today to try to find out a formula
which, on the one
14
side, keeps the
law consonant with the needs of society to protect its interests and to
safeguard development in a country which
is in crying need of development and,
on the other hand, ensures that individual rights and liberties of citizens of
this
country are not sacrificed in that process."
At this stage, it will not be out of place to deal with the submission made by
Mr. Athulathmudali. He submitted that in the interpretation
of legislation under
the Republican Constitution, the Courts must pay heed to the objectives of a
socialist democracy one of which
is in Article 16(2) of the Constitution, i.e.
raising the moral and cultural standards of the people. These are principles
which
should guide the making of laws and the governance of Sri Lanka. It was
submitted that when a Court does interpret a statute, it
may interpret it on the
basis that the Legislature does not, on the excuse of executive expedition,
condone mala fide acts and
does not legislate to cover up or protect mala fide
executive conduct. I fail to see the relevance of this argument to the problem
in hand. But, there is in our Constitution another basic cardinal principle
which may necessitate re-thinking by the Courts in
future interpreting statutes
which affect individual rights and freedoms. Hitherto, the principle was
accepted that statutes which
interfere with the liberty of the subject and
property rights should be interpreted strictly and always in favour of the
subject.
Under the Republican Constitution, Article 18(1) sets out the
fundamental rights and freedoms. In this exhaustive list, one does
not find a
recognition of the fundamental rights to property. Article 18(2), however,
states as follows:-
"(2) The exercise and operation of the fundamental rights and freedoms provided
in this Chapter shall be subject to such
restrictions as the law prescribes in
the interests of the national unity and integrity, national security, national
economy, public
safety, public order, the protection of public health or morals
or the protection of the rights and freedoms of others or giving
effect to the
principles of the State Policy set out in section 16.
(3) All existing laws shall operate notwithstanding any inconsistency with the
provisions of subsection (1) of this section."
The problem that is ever recurring in both the legislative and administrative
segments of any Government is as to how and in what
circumstances it is possible
to accommodate individual rights and freedoms
15
against the impact of legislation
to promote the larger freedoms which the community is entitled to. This is, to
some extent, resolved
in our Republican Constitution in Article 18(2) which
states categorically that the exercise and operation of the fundamental rights
and freedoms shall be subject to such restrictions as are set out in the
subsection.
Under our Constitution, the ultimate control of legislative powers is in a
political body, the elected Legislature. The Judiciary
performs an auxiliary
function of interpreting statutes and reviewing administrative action. In this
context, it is best always
to leave policy to the elected organs of State and
interpret such policy as far as the Judiciary is concerned intelligently,
especially
having in the background Article 18(2) of the Constitution.
Time and again, Parliament had legislated to make orders, determinations,
directions or findings of some person or authority, "final
and conclusive". But,
the Courts have held that these words do not have the effect of excluding
judicial review. 'Final' meant,
according to judicial decisions in relation to a
particular administrative decision, merely that the particular remedy cannot be
taken any further; which did not deprive that disappointed litigant such other
remedies as he may have or excluding him from recourse
to the Courts. In recent
times, most sweeping exclusion clauses like "shall not be questioned in any
proceedings or in any
Court," were introduced into legislative language in
regard to administrative decisions. In Anisminic Ltd., v. The Foreign
Compensation Commission- (supra) where although the relevant statute stated
that the determinations "cannot be questioned
in any proceedings whatsoever,"
the House of Lords imposed an implied statutory restriction in the language of
its enactment
by stating that the determination means a real determination and
does not include any apparent or purported determination which,
in the eyes of
the law, has no existence because it is a nullity.
Although some of these powers were intended to be "Judge-proof and were within
the domain of pure policy which no legal control
could touch, the Courts have,
in the words of Professor Wade, "contrived to make a number of successive
sorties into this
territory, using as their passport some statutory restriction
which they have been able to discover."
The tendency of the Courts by the process of judicial interpretation to defeat
the intention of the legislature has been the subject
of criticism. Professor
Friedmann in his book "The State and the Rule of Law in a Mixed Economy" quotes
the following
passage at page 80:-
"It is quite clear that the Courts have created a situation in which it is
possible to extend the scope of judicial review
indefinitely and in a
16
manner
which, of its nature, defies definition. In many, if not most, of the cases
where exercises of discretionary powers have
been reviewed, the Court has, by a
process of statutory "interpretation", converted apparently absolute discretions
into
discretions which are hedged about by limitations which would have startled
the parliamentary draftsman. The nature of the process
by which this result is
achieved is most often obscured by the terminology employed, the references to
good faith, proper purposes,
extraneous considerations, reasonableness and so on
-but in each case the Court has in fact given a restricted interpretation to
a
power which is, on the face of the statute, more or less unlimited."
He attributes this tendency to the influence of the Common Law Courts and also
of Judges who are generally without administrative
training and experience. He
also states that they are also predominantly steeped in the individualistic
tradition of the Common
Law, "wanting in that they appear to disregard the
social element in a problem". The countries with a full-fledged system
of
administrative justice are headed by a tribunal of status equal with that of the
highest Civil Court, and staffed by highly
trained lawyers with a lifelong
experience in administration.
At this stage it would be useful to refer to two English decisions which were in
the forefront of the argument of Counsel appearing
on both sides.
In Smith v. East Elloe Rural District Council [(1956) 2 W.L.R. 888. (1956) 1 All E. R. 855.] the preclusion clause was in
respect
of an order made under the Acquisition of Lands (Authorisation
Procedure) Act 1946. The Order may have been questioned in the High
Court within
a period of six weeks from the notification of the Minister's confirmation on
the ground of substantial prejudice
by procedural error, or ultra vires, but
apart from this remedy after the expiration of that period such order "shall not
either before or after it has been confirmed, made or given be questioned in any
legal proceedings whatsoever."
The House of Lords in a majority judgment held that the Order could not be
questioned in a Court of law on any ground whatsoever.
Viscount Simonds took the
view that the judgment of the Statute covered every possible ground of
challenge, including good faith.
17
In fact, in this case the Court directly dealt with the question of mala fides.
Much reliance was placed by the Solicitor-General
on this case.
In the other case- Anisminic Ltd v. Foreign Compensation Commission- (supra)
the preclusion clause stated: "the determination
by the Commission of any
application made to them under this Act shall not be called and questioned in
any Court of Law."
The House of Lords by a majority took the view that these
words will not preclude a determination which has been arrived at on a
consideration of facts which the Commission had no right to take into
consideration. This was not a case, as the judges admitted,
dealing with mala
fides in the sense understood in the East Elloe case.
In the Anisminic case references were made to the East Elloe case and no doubt
opinions were expressed that the latter case was
not a satisfactory decision and
that it would need consideration in an appropriate case.
Counsel appearing for the respondents cited a number of cases from Australia,
South Africa, England, India, and also from our Courts
based on the principles
set out in the Anisminic case, to the effect that an exclusion clause in respect
of an executive act or
decision did not preclude the Courts from going into the
question whether the act or decision was made in good faith, or within
jurisdiction,
I might at this stage mention that both the East Elloe and Anisminic decisions
are more relevant in regard to section 22 of the
Interpretation (Amendment) Act.
This section deals specifically with any enactment containing the expression
"shall not be
called in question in any Court" or any other expression of
similar import whether or not accompanied by the words "whether
by way of writ
or otherwise in relation to any order, decision, determination, direction, or
finding made or issued in the exercise
or the apparent exercise of the power
conferred on such person, authority, or tribunal." This section goes on to say
that
no Court shall in any proceedings and upon any ground whatsoever, have
jurisdiction to pronounce upon the validity or legality of
such order, etc. In
the proviso to this section there are three exceptions in regard to the writs of
this Court.
The Minister in his speech in Parliament gave an example as to why he thought
this amending legislation was necessary. Official
Report of the Hansard of 20th
April, 1972, 650:
18
"On the ground of mala fides there are today pending some sixty land acquisition
cases against the Minister of Lands, every
one of which is an allegation that
somebody made a speech, and so on. I think in Balangoda there were two rival
applications: the
U.N.P. wanted to build a road through Ratwatte land, and the
S.L.F.P. wanted to drive a road through some of Aboosally's boutiques;
Mr. Dudley Senanayake: Both are mala fide.
The Hon. Felix R. D. Bandaranaike: The net result was that both applications had
been dealt with and held up: hoping for a change
of Government these cases are
kept going for three, four or five years at a time. It does not matter to me,
but please understand
this, that if this argument is upheld, then Balangoda will
never have a road. This country will remain for ever a country of footpaths
and
hovels. No development will be possible. The Government will not be able to
acquire land. Local Government will come to a grinding
halt. Local bodies have
been depositing moneys day after day asking for the acquisition of land. It will
not be possible for us
to have roads, housing schemes, burial-grounds and so on,
and the city will continue to be a city of slums.
Our Hon. Minister of Housing and Construction has just returned from Singapore,
and I think he will agree that if in Singapore they
interpreted mala fide in the
way in which people seem to have interpreted mala fide in Ceylon, Singapore will
not be what it is
today."
The Minister also referred in his speech to the East Elloe and the Anisminic
case.
I shall now proceed to examine the crucial question raised in these applications
whether any act done mala fide, or outside jurisdiction
is excluded from the
scope of section 24(1), and therefore whether in order to permit this
interpretation words like "in good
faith" or words of like effect should be read
into section 24(1).
I will assume for purposes of argument, but certainly without deciding it, that
the following three grounds relied on by Counsel
for the respondents, if
established, render the order of the Minister a nullity.
(a) Mala fide in the sense that the order was maliciously or politically
motivated at the instance of those who were totally antagonistic
to the
respondents in these applications;
19
(b) That an order seeking to acquire an indeterminate corpus was a
nullity;
(c) That an order that did not specify the public purpose for which the
acquisition was intended was a nullity.
Section 24(1) does not relate to or deal with the interpretation of words, like,
"shall not be called and questioned in any
Court" or "final" or "final and
conclusive" or "conclusive evidence" or "conclusive proof.
In my view section 23 and 24 have a common purpose; while section 23, according
to the marginal note, deals with construction of
enactments giving power to
Courts to declare rights or status. Section 24, according to the marginal note,
deals with construction
of enactments giving power to Courts to grant
injunctions, or make orders for specific performances. Section 23 says that
subject
to the provisions of section 24 an original Court shall not be construed
to have the power to entertain or enter decree or make
any order in any action
for a declaration of the right or status upon any ground whatsoever in respect
of an order, determination,
etc., which any person, authority, or tribunal is
empowered to make or issue under any written law. It, however, preserves the
remedy by way of damages.
Section 24(1) states that no enactment shall be construed to confer in any Court
in any action or other civil proceedings the power
to grant an injunction or to
make an order for specific performance against the Crown, a Minister, or any
other person or authority
mentioned therein in respect of certain acts. The
proviso, however, does not affect the power of such Court to make, in lieu
thereof,
an order declaratory of the rights of parties, and is therefore an
exception to section 23.
The only question I have to decide is whether the concluding lines of section
24, which I have quoted earlier, contain a qualification
or limitation, namely,
whether the remedy by way of injunction or specific performance is available
against acts illegal, mala
fide, or outside jurisdiction.
Learned Counsel for the respondents conceded that if section 24 stopped at the
word "Commission" then it would cover any
act whether made in good faith or
otherwise.
In the task of interpreting this so-called "limitation clause" in section 24(1)
I find guidance in the observation made
by Lord Simonds in the
20
East Elloe case
(supra)- at page 893 Viscount Simonds:
"My Lord, I think that anyone bred in the tradition of the law is likely to
regard with little sympathy legislative provisions
for ousting the jurisdiction
of the Court, whether in order that the subject may be deprived altogether of
remedy or in order that
his grievance may be remitted to some other tribunal.
But it is our plain duty to give the words of an Act their proper meaning
and,
for my part, I find it quite impossible to qualify the words of the paragraph in
the manner suggested. It may be that the
legislature had not in mind the
possibility of an order being made by a local authority in bad faith or even the
possibility of
an order made in good faith being mistakenly, capriciously or
wantonly challenged. This is a matter of speculation. What is abundantly
clear
is that words are used which are wide enough to cover any kind of challenge
which any aggrieved person may think fit to make.
I cannot think of any wider
words. Any addition would be mere tautology. But, it is said, let those general
words be given their
full scope and effect, yet they are not applicable to an
order made in good faith. But, My Lords, no one can suppose that an order
bears
upon its face the evidence of bad faith.
Lord Simonds further said:
"The only way of giving effect to Counsel's third proposition would be to insert
after the word "whatsoever" in para
16 some such words "unless that it is
alleged that the order or certificate was made in bad faith." But I can find no
justification in inserting these words. To do so would be legislation and not
interpretation."
At page 900 Lord Morton of Henryton observed thus:
"Effect can only be given to Counsel's third proposition if some words are read
into paragraph 16. Counsel suggested that the
words "made in good faith" should
be read in after "order" and also after "certificate". I cannot
accept this
suggestion. It would be impossible to predicate of any order or certificate that
it was made in good faith until the
Court had inquired into the matter, and that
is just what paragraph 16 prohibits."
Lord Radcliffe at page 911 states as follows:
"At one time the argument was shaped into the form of saying that an order made
in bad faith was in law a nullity and that,
consequently, all
21
references to
compulsory purchase orders in paragraphs 15 and 16 must be treated as references
to such orders only as had been made
in good faith. But this argument is in
reality a play on the meanings of the word 'nullity'. An order, even if not made
in good
faith, is still an act capable of legal consequences. It bears no brand
of invalidity upon its forehead. Unless the necessary proceedings
are taken at
law to establish the cause of invalidity and to get it quashed or otherwise
upset, it will remain as effective for
its ostensible purpose as the most
impeccable of orders. And that brings us back to the question that determines
this case. Has
Parliament allowed the necessary proceedings to be taken?"
Counsel for the respondents on the other hand submitted certain decisions under
section 88 of the Police Ordinance and under
section 461 of the Civil Procedure
Code, and submitted that the language used in these Statutes was in pari materia
with the language
used in section 24 and that it must be assumed that the
Legislature when it enacted section 24(1) must be presumed to have intended
the
same interpretation as the Courts have placed in respect of these two sections.
Section 88 of the Police Ordinance states that all actions and prosecutions
against any person which may be lawfully brought for
anything done or
intended to be done under the provisions of this Ordinance or under the
general police powers hereby given, shall be commenced within three months after
the
act complained of shall have been committed, and not otherwise, and also
that one month's notice in writing should be given to the
defendant before the
commencement of the action.
In Perera v. Hansard [ 8 SCC 1. ] it was held that the defendant did not act bona fide in
obtaining the warrant and that he was
fully aware of the illegal act by which it
had been issued. It was, therefore, not anything done or intended to be done
under the
provisions of this Ordinance, or under the general police powers and
therefore the defendant was not entitled to notice. Similar
views were expressed
in Punchi Banda v. Ibrahim et al. [13 (1927) 29 N.L.R. 139.] which laid down that section 88 only
protected
acts which a police officer did in the reasonable and bona fide belief
that he is acting within the scope of his authority. Other
cases were also cited
in support of this principle.
Section 461 of the Civil Procedure Code deals with the requirement of one
month's notice before an action is instituted against
the Attorney-General as
22
the representative of the Crown, or against a public officer "in respect of an
act purporting to be done by him in his official
capacity."
On this matter there are conflicting decisions. In Appusingho Appu v. Don Aaron
[14 (1906) 9 N.L.R. 138.] " it was held that
a public officer who does an illegal act mala fide in the
pretended "exercise" of statutory powers cannot be said to be
"purporting" to
act under the statute which confers those rights, and therefore was not entitled
to the notice of action
provided for by that section.
In De Silva v. Ilangakoon [15 (1956) 57 N.L.R.457.] it was held that the allegation of malice in the
plaint did not exempt the plaintiff
from his duty to act in conformity with
section 461 of the Civil Procedure Code.
Reliance was also placed on the Canadian case of Roncarelli v. Duplessis.
[16 (1959) Canadian Law Reports 121.] The
question arose
whether the defendant was entitled to notice under Article 88 of
the Code of Civil Procedure which was almost on similar terms with
our section
461 of the Civil Procedure Code. The question was whether the act was done "in
the exercise of his functions"
within the meaning of Article 88. The majority of
the Judges in this case held that these words did not contemplate an unlimited
arbitrary power exercisable for any purpose, whatsoever, capricious or
irrelevant regardless of the nature of the purpose of the
statute.
There were two dissenting judgments in this case. Taschereau J., at page 124
however, held that it was a fallacious principle to
hold that an error,
committed by a public officer, in doing an act connected with the object of his
functions, strips that act
of its official character and that its authority must
then be considered as having acted outside the scope of his duties. Fauteux
J.,
at page 125 held that a public officer was not considered as having ceased to
act within the exercise of his functions by the
sole fact that the act committed
by him might constitute an abuse of power or excess of jurisdiction, or even a
violation of the
law. The jurisprudence of the provisions which has been settled
for many years, is to the effect that the incidence of good or bad
faith has no
bearing on the right to the notice . . . He did not commit it on the occasion of
his functions, but committed it because
of his functions."
23
These decisions which have been cited show that even in respect of language
which Counsel claimed is in pari materia with the language
in section 24 there
have been both restrictive and non-restrictive interpretations placed on the
material words. In the context
of section 24 and the circumstances under which
it was enacted, especially having regard to the mischief which it sought to
remedy,
in my view, the restrictive interpretation sought by Counsel for the
respondents cannot be given to section 24. The very problem
that Parliament was
called upon to deal with arose out of a restrictive interpretation being placed
by Courts in respect of such
words. In this connection I would approve the
principle cited by Craies on Statute Law, 7th Edition, page 125:-
"The dominant purpose in construing a statute is to ascertain the intent of the
legislature, to be collected from the cause
and necessity of the Act being made,
from a comparison of its several parts and from foreign (meaning extraneous)
circumstances
so far as they can justly be considered to throw light upon the
subject."
Moreover the words "any act" in section 24 are words of very wide amplitude
intended to cover acts done both within and
outside jurisdiction, bona fide or
mala fide. The legislature would have failed to achieve its objects of
suppressing the mischief
and advancing the remedy if a restrictive
interpretation is given to the words "in the exercise of any power or
authority."
I find support also for this view in the words of Viscount Simond L.C., in the
case of Nokes v. Doncaster Amalgamated Collieries
Ltd. [17 (1940) A.C. 1014 at 1022. (1940) 3 All. E.R. 549.]
"Judges are not called upon to apply their opinions of sound policy so as to modify the plain meaning of statutory words, but where, in construing general words the meaning of which is not entirely plain there are adequate reasons for doubting whether the Legislature could have been intending so wide an interpretation as would disregard fundamental principles, than we may be justified in adopting a narrower construction. At the same time, if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result."
24
The following passage from Maxwell, Interpretation of Statutes (9th Edition,
1946) pages 288-9 also lays down an important principle
in this connection:
"The effect of the rule of strict construction might be summed up in the remark
that, where an equivocal word or ambiguous
sentence leaves reasonable doubt of
its meaning which the canons of interpretation fail to solve, the benefit of the
doubt should
be given to the subject and against the Legislature which has
failed to explain itself. But it yields to the paramount rule that
every statute
is to be expounded according to its expressed or manifest intention and that all
cases within the mischief aimed
at are, if the language permits, to be held to
fall within its remedial influence".
The citations therefore also meet the point raised and put forward by Counsel
for the respondents that even if Parliament intended
to achieve a certain object
the language of the enactment failed to achieve this object.
The learned Solicitor-General in support of his contention submitted that there
is another way of finding out the intention of Parliament
in order to determine
the ambit of section 24(1). His position was that the purpose of section 24(2)
was to prohibit an injunction
against a State Officer for any act done in the
course of his official duty where the grant of the injunction would in effect be
a grant of an injunction against the State. This was the same position in
England. Section 24, in fact, is intended to meet this
situation. In fact
section 24(2) is similar to section 21(1) of the Crown Proceedings Act, 1947,
and is intended to meet the same
purpose that section 21(1) was intended for. De
Smith in Judicial Review of Administrative Action makes the following comment:
"The 1947 Act left unaffected the law on proceedings against an officer of the Crown in his private capacity; it reaffirmed the rule that no injunction will lie against the Crown, and it provided that no injunction shall be granted against an officer of the Crown if the effect of granting it will be to grant relief against the Crown which could not have been obtained against the Crown directly. The effect of the latter provision appears to be to preclude the award of an injunction against any Government department or other body that is a Crown servant, or against a Minister or any other officer of the Crown for any act done in his official capacity".
25
The mischief sought to be remedied by section 24(2) by prohibiting the Court to
grant an injunction against a State official for
an act done in his official
capacity, the object of which is to prohibit an injunction against the State,
will continue if the
interpretation contended for by Counsel for the respondents
is accepted in regard to section 24(1), namely, that an injunction could
be
granted against the State in respect of an act done mala fide or outside
jurisdiction.
I agree with the Solicitor-General that section 24(2) must not be interpreted in
a way so as to come into conflict with section
24(1). Looked at from this point
of view, section 24(1) is wide enough therefore to bring within the ambit any
act whether intra
vires or ultra vires or in good faith or in bad faith.
I am not, therefore, prepared to accept the submission of Mr. Jayewardene that
the restriction placed in Subsection (2) of section
24 is subject to the
limitations contained in the so-called "limitation clause" in subsection (1).
Counsel for the respondents particularly, Mr. Tiruchelvam, pressed hard the
contention that the prohibition of the grant of an injunction
contemplated in
section 24(1) was not an interim or interlocutory injunction but a permanent
injunction. He summed up his argument
in this way: He invited us to look at the
proviso to section 24(1) which reserved the powers of Court to make in lieu of
granting
an injunction an order declaring the rights of parties. A declaratory
order must in its nature be a final order after the hearing
when the Court is in
a position to determine and declare the rights of parties; so that, when the
proviso to section 24(1) states
that this subsection shall not be deemed to
effect the power of such Court to make in lieu thereof an order declaratory of
rights
of parties, the contention is put forward that as an order declaring the
rights of parties must be made as a final order at the
conclusion of the
hearing, the words, "in lieu thereof would, in the context, refer to a permanent
injunction and not an interim
injunction because it is a permanent injunction
which is ordered at this stage. I am not prepared to agree with Counsel in
giving
this narrow interpretation to the word "injunction". In the circumstances
under which this legislation was enacted and
the mischief it was sought to
remedy the word "injunction" in section 24(1) refers to both interim and
permanent injunctions.
If it was the intention of the legislature to restrict
its meaning, it could have done so in simple words.
In rejecting the contention of Counsel on this point, I find some assistance in
section 21 of the Crown Proceedings Act and the
two decisions of the English
Courts on that section. Section 21(1) (a) prohibits the grant of an injunction
against the Crown,
but in lieu thereof the Court may make an order declaratory
of the rights of parties. This is on the same lines as the proviso to
our
section 24(1).
26
In the International General Electric Company of New York, Ltd. and Another v.
The Commissioner of Customs and Excise [18 (1962)
I Ch. 784. (1962) 2 All. E.R. 398 at 399.], the plaintiffs started an action
inter alia for the declaration that the defendants
were not entitled to detain
their goods and moved ex-parte for an interim declaration, Upjohn, L.C.,
observed :
"It will be observed that the form of the motion is unusual. It does not ask for
an interlocutory injunction, and if that is
good and sound reason, that as the
Commissioners of Customs and Excise are a Department of the Crown no injunction
could be obtained
against them. That is because of Section 21 of the Crown
Proceedings Act of 1947".
It was held that in proceedings against the Crown it was not possible to obtain
an order which corresponded to an interim injunction
or an interim declaration
which did not determine the rights of parties but was only intended to preserve
the status quo.
Upjohn, L.J., after following the decision in Underhill v. Ministry of Food [19 (1950) 1 TLR Vol. 66,730 at 733. (1950) 1 ALL E.R.
593.],
"Speaking for my part I simply do not understand how there can be such an
animal, as I ventured to call it in argument, as
an interim declaratory order
which does not finally declare the rights of the parties. It seems to me quite
clear that, in proceedings
against the Crown, it is impossible to get anything
which corresponds to an interim injunction. When you come on the question of
a
final injunction, no doubt a declaratory order may be made in lieu thereof, for
that finally, determines the rights of parties".
In Underhill v. The Minister of Food- (supra) Justice Romer observed:
"Mr. Buckley, on behalf of the Minister of Food, says that this Court has no jurisdiction to make a kind of interim declaration in substitution for the interlocutory injunction which, quite clearly, it has no power to grant . . . Accordingly, he says that, just as I cannot grant an interlocutory injunction against the defendants in this case even if in all respects a prima facie case has been made out, I cannot as an alternative make an interim declaration either. In my judgment, that submission is right. I do not think that this Court has, or has intended to have, jurisdiction under section 21 of the Act to make something in the nature of an interim
27
declaration of rights which would have no legal effect and which, as I say,
might be the very opposite of the final declaration of
the right which would be
made at the trial after hearing of evidence and after going at length into all
matters in issue".
It is, therefore, very clear that in the Crown Proceedings Act of 1947 the word
"injunction" also means an interim injunction
and these decisions have
definitely laid down that under section 21 of the Crown Proceedings Act an
interim injunction cannot be
granted.
Our proviso to section 24(1) is on the same terms as its counterpart in section
21 of the Crown Proceedings Act which reads:
".... but may in lieu thereof make an order declaratory of the rights of the
parties".
I, therefore, hold that section 24(1) prohibits the Court from granting an interim injunction as well against the person or Authority specified in the section.
The statutory exclusion of judicial review is looked down upon by jurisdictions
which follow the principles of the common law like
in England and this country
for the reason that there is a cardinal rule that access to the Courts in
circumstances where such
access will otherwise lie for the determination of his
rights should not be denied to the citizen save by clear words of the statute.
It is for this reason that Courts have exercised their supervisory jurisdiction
to question the validity of executive acts and
decisions in cases involving
ouster clauses. But the question is whether the supervisory jurisdiction of the
Courts is completely
excluded by the legislation prohibiting one of the many
remedies or reliefs which the Court can grant to an aggrieved party to question
the validity of executive actions. In the case before us the remedy prohibited
is by way of injunction.
To answer this question it is necessary to know the content and scope of the
remedy by way of injunction. An injunction is an order
of Court and it is
discretionary relief addressed to a party in proceedings before it, and
requiring that party to refrain from
doing or to do a particular thing. In
administrative law it is frequently sought and granted on the ground that what
the agency
proposes to do will be or would be ultra vires.
An interim injunction is a provisional remedy granted before the hearing on the merits and its sole object is to preserve the subject in controversy in
28
its then existing condition, that is, in status quo, and without determining any question of right. An interim injunction decides no fact, fixes no right, and, is not at all necessary to the final determination of the case.
Samarawickreme, J., in Ratwatte v. Minister of Lands
(supra) observed that in order that an interim injunction may issue it is not
necessary that the Court should find a case which would entitle the plaintiff to
relief at all events. It is quite sufficient if
the Court finds a case which
shows that there is a substantial question to be investigated, and that matters
ought to be preserved
in status quo until that question can be finally disposed
of.
The resulting position is that although at the time an interim injunction issues
from a Court there is no adjudication of the rights
of parties. It may as well
be that at the end of the hearing the Court will come to a finding against the
party in whose favour
the interim injunction had been granted. Section 24(1) by
depriving the Court of the power to grant an interim injunction therefore
does
not deprive the Court of the power to adjudicate on the rights of an aggrieved
party against an administrative order.
A perpetual injunction is one granted by a judgment which finally disposes of
the injunction suit which forms part of the judgment
upon hearing of the merits
and it can be properly ordered only upon the final judgment. The aggrieved party
before he obtains a
permanent injunction has the satisfaction of having an
adjudication of his rights, and in the case of a challenge of executive action,
a declaration that such action is ultra vires or outside jurisdiction.
Section 24(1) therefore, while giving the aggrieved party the right to obtain an order declaring his rights merely tells him that he is not entitled to the other remedy of a permanent injunction.
Despite the fact that the remedy by way of an injunction is not available to an aggrieved party under section 24(1), access to the Courts is not denied to him as under the Interpretation (Amendment) Act the Court can give an order declaring the rights of the parties against the person or authority mentioned in section 24(1) which includes the Minister and the aggrieved party can ask for an order for damages.
For those reasons I am of the view that section 24(1) does not contain a preclusive clause in the sense in which it is understood in the Anisminic case, and in the cases cited based on the principles laid down in that case. Section 24(1) merely deprives a party of the remedy which he would be otherwise entitled to ask. It merely deals with the construction of an enactment depriving the power of the Court to grant an injunction.
29
Mr. Jayewardene's comment that it is not a significant answer, nor comfort or
solace to the subject to be told that he can still
obtain a declaration for what
it is worth and should be content with it while his property is demolished or he
is ejected from
his home and his hearth, is equally applicable in regard to
those persons affected by the Crown Proceedings Act 1947 in England
as they are
in the same plight. The remedy for this is not through the Courts but elsewhere.
The English Courts which have interpreted sweeping ouster clauses as in the
Anisminic case as not standing in their way to question
the legality of a
determination by a person or authority, have refused to enter the arena to
question the legislative privilege
which a Minister in England enjoys of not
being subject to the issue of an injunction against him in view of section 21(1)
of the
Crown Proceedings Act. In fact, the English decisions which I have cited
have reiterated the position that injunctions are not available
even if a prima
facie case is established.
One can now understand the reason why in England after the Crown Proceedings
Act, 1947 when certain remedies which were hitherto
not available to the subject
against the Crown in Courts were made available for the first time against the
Crown, injunctions
were treated as an exception.
I shall now deal with the submission of Counsel on which much reliance was
placed, namely, that while in the Bill, section 24 dealt
with "any act done or
purported to be done" and "in the exercise or purported exercise of any power or
authority,"
the word "purported" was omitted in the Act. The contention was that
this was deliberately done to keep acts done mala
fide, outside jurisdiction or
in the pretended exercise of power, outside the scope of section 24. In support
of his argument certain
decision under section 88 of the Police Ordinance and
section 461 of the Civil Procedure Code were cited. The language used, it
is
submitted, is in pari materia with the language in section 24. It will be more
appropriate to deal with the cases in section
461 of the Civil Procedure Code as
the words in this section are :
"In respect of an act purporting to be done by him in his official capacity".
In some of the cases cited by Counsel it has been held that where the act had
been done by a public officer mala fide or from an
ulterior motive, then a
notice under section 461 need not be given to the defendant. If these decisions
are correct, then it would
appear that acts done mala fide or in the pretended
exercise of power did not come within the scope of "an act purporting to
be
done". In de Silva v. Ilangakoon- (supra), Basnayake, C.J.,
30
however, took the contrary view and held that even when there is an allegation
of malice in the plaint, a notice must be given in
conformity with section 461.
The Chief Justice goes on to say that the word "purported" means ordinarily
"profess"
or "claim" or "mean" or "imply". He has also cited a passage from the
judgment of Lord Simonds in
Gill and Another v. King [20 (1948) 1 A.I.R. Privy Council 128.] - in interpreting the
words "an offence alleged to have been
committed by him while acting or
purporting to act in the discharge of his official duty" in section 197(1) of
the Indian
Criminal Procedure Code.
"Their Lordships while admitting the cogency of the argument that in the
circumstances prevailing in India a large measure
of protection from harassing
proceedings may be necessary for public officials cannot accede to the view that
the relevant words
have the scope that has in some cases been given to them. A
public servant can only be said to act or to purport to act in the discharge
of
the official duty, if his act is such as to lie within the scope of his official
duty. Thus a Judge neither acts nor purports
to act as a Judge in receiving a
bribe, though the judgment which he delivers may be such an act; nor does a
Government medical
officer act or purport to act as a public servant in picking
the pocket of a patient whom he is examining, though the examination
itself may
be such an act. The test may well be whether the public servant, if challenged,
can reasonably claim that, what he does,
he does in virtue of his office".
It will thus appear that the words "purport" would have been in the context in
which section 24 was enacted a surplus
age, especially in view of the use of the
words "any act" in section 24. Both an act and an act purporting to be done
are
done by a public officer by virtue of his office or within the scope of his
official duty. The two examples given by Lord Simmonds
refer to acts which are
neither acts nor acts purporting to be done within the scope of a person's
official duty.
When a public officer does an official act, he claims, professes, means and
implies that he does it by virtue of his office. This
also accounts for the
deletion of the words "purporting" in section 22 and the insertion instead of
the word "apparent".
Mr. Tiruchelvam submitted that section 24(1) contemplated only cases where the
power to grant injunctions is contained in an enactment,
and therefore this
section could not affect injunctions which the Courts had inherent power to
grant. The enactments usually invoked
by the Courts which give them the power to
grant injunctions may be set down as follows:
31
Under the repealed Courts Ordinance, the Supreme Court had this power under
section 20, and the District Courts and the Courts of
Requests under sections 86
and 87. Section 217(f) of the Civil Procedure Code is also referred to as the
source of this power.
Under the Administration of Justice Law, the High Court is given the
jurisdiction formerly vested in the Supreme Court by section
21. The District
Court and the Magistrate's Court are given the power to grant injunctions under
section 42.
As far back as 1895 it was held in the case of Mohamadu v. Ibrahim [21(1895)2N.L.R.36.] that this
Court had no inherent power to
issue injunctions and its jurisdiction is
restricted to cases referred to in section 20 of the Courts Ordinance.
When the jurisdiction of Courts in regard to its powers on any matter is
referable to a statute, there is no inherent jurisdiction
in the Courts to
exercise its powers in regard to those same matters.
I therefore, reject this argument and hold that section 24(1) cannot be
construed as excluding the inherent powers of the Court
to grant injunctions
when such powers do not exist.
I shall now deal with the question of jurisdiction raised by Counsel challenging
the constitution of the present Bench of nine Judges
of this Court to hear and
determine these applications.
Mr. Jayewardene who spearheaded this challenge maintained that the three Judges
of this Court had no jurisdiction to call for and
examine the records in these
cases, to issue notices in the manner they were done. All consequential
proceedings up to the constitution
of the present Bench were therefore irregular
and illegal. He prefaced his argument by saying that the applications did not
come
up before this Court either by way of appeal or in revision at the instance
of any of the aggrieved parties who have not on their
part moved this Court.
Implicit in this contention is the suggestion that the Minister in question was
not interested in the outcome
of this hearing. It is needless to say that the
Solicitor-General of the State appeared before us on behalf of the Minister and
put the case of the State as effectively as it should be to the effect that the
orders of the subordinate Courts in granting injunctions
against the Minister
were illegal orders.
I might skip over some of the preliminary points raised by Mr. Jayewardene as
being of pure academic interest, for example, about
the indivisibility of the
Supreme Court under the Administration of Justice Law.
32
Even the main matter which I propose to deal is only of academic interest as we
could have dismissed his contentions in limine on
two grounds.
Firstly, the Chief Justice acting in terms of section 14(3) of the
Administration of Justice Law had directed the constitution and
nominated the
composition of this Bench. The application for the constitution of this Bench
was made by Mr. Jayewardene and Mr.
Tiruchelvam before the Chief Justice under
section 14(3) on the ground that the matters involved in these applications are
of general
or public interest. This Court therefore derives its jurisdiction to
hear and determine the applications on the direction of the
Chief Justice and
this direction is beyond challenge and review.
Secondly, it was within the competence of this Bench once it sat, to decide that
this was a fit case where the revisionary powers
of this Court should be
exercised once the matters in controversy were brought to its notice.
After a few initial skirmishes, Mr. Jayewardene conceded that when the two
Judges called for the records from the Courts below they
were acting in a purely
ministerial capacity and as such he was not questioning its legality. In fact
section 40 states that the
jurisdiction of this Court by law shall include all
ministerial powers and duties incidental to such jurisdiction, and section
354(1) which gives this Court powers of revision states that it may adopt such
procedure as it may consider fit.
Section 14 states that the jurisdiction of the Supreme Court may be exercised in
different matters at the same time by several judges
of the Court sitting
separately, provided that its jurisdiction in respect to the judgment and orders
of the Magistrate's Court
shall be exercised by at least two Judges and its
jurisdiction in respect of judgments and orders of District Courts and High
Courts
shall be exercised at least by three Judges. No complaint can be made on
this ground too as the orders and notices to show cause
in terms of section
354(1) were issued by three Judges of this Court.
What was considered improper and done without jurisdiction is that the order
under section 354(1) noticing the parties to show cause
was done in the exercise
of the judicial power of the State and therefore should have been done at
sittings in public of the Court
and not in chambers although they were done ex
mero motu under section 13. Our attention was drawn to section 7 which states
that
the sittings of every Court shall be held in public and all persons are
entitled to attend such sittings subject to certain exceptions.
In my view, the sittings of the Court in public means the sittings to exercise
the judicial power of the State to decide controversies
between subjects or
between the State and subjects when it assembles after giving an
33
opportunity
to the party proposed to be affected by any order that the Court may make.
Orders made in this case do not come within
this category.
I do not see the necessity for Judges of this Court acting ex mero motu when
issuing notices in any matter of a revisionary nature
that it is mandatory that
they should do so at public sittings of the Court. Firstly, no prejudice is
caused to any of the parties
as an order prejudicial to one or other of the
parties will be made only after the parties have been noticed and an opportunity
given to show cause. Secondly, it is not always necessary that the parties
should be heard before the Judges decide ex mero motu
to issue notice. Thirdly,
when issuing notice the Judges do not come to a determination regarding the
rights of parties.
The contention raised on the ground of jurisdiction is without merit and
therefore fails.
Mr. Jayewardene submitted that in the event of this Court holding that the
subordinate Courts did not have the power to issue injunctions
against the
Minister by reason of section 24(1), this Court should not reverse or vary such
orders unless such orders have prejudiced
the substantial rights of either party
or occasioned a failure of justice. I cannot agree with this submission. Interim
injunctions
have been ordered on the Minister despite the fact that the Courts
had no power to do so. By no stretch of reasoning can it be said
that the
substantial rights of the State have not been prejudiced in the cases we are
dealing with. As a result of illegal orders
being made by the Courts in the face
of the statute, the machinery of the Government and its administrative processes
under the
Land Acquisition Act have come to a dead halt. Besides, these cases
are apt to be cited as precedents against other orders of the
Minister unless
the orders are varied or set aside.
I should think that a duty lies on this Court when such orders come up before
this Court, if on a review it is found that such orders
are illegal, to set them
aside. In doing so it makes no difference that some of the orders are not 'live
orders' in the sense that
the injunctions have expired and that therefore there
is nothing for the Court to set aside. I cannot subscribe to this proposition
either. There is on the face of the record an illegal order. It matters not that
the effect and the force of the order have expired.
It is the duty of this Court
to tell the subordinate Court and all parties affected by it that it is an
illegal order and the only
way effective it can achieve it is to pro forma set
it aside.
This is the conclusion that I have unhesitatingly come to on the construction of
section 24(1) of the Interpretation (Amendment)
Act No. 18 of 1972 as to the
intention of Parliament in enacting the section and the
34
meaning thereof. In
order, however, to dispel any doubt in the matter, I have looked into the
translation of the Bill in the official
language, that is, the Sinhala version.
Words of the widest amplitude have been used in the Act in English. Section
24(1) refers
to any action or other Civil Proceedings ... in respect of any act
done ... by any such person or authority ... in the exercise
of any power . . .
vested in any such person or authority. As I have remarked earlier, there is no
necessity or room anywhere in
this section for any form of restrictive
interpretation.
I am not unmindful of the fact that in looking into the Sinhala version of the
Bill which was before Parliament that this particular
amending legislation was
enacted before the Republican Constitution was inaugurated on the 22nd of May,
1972. The date of assent
of the Interpretation (Amendment) Act is the 11th of
May, 1972. Article 9 of the Constitution of Sri Lanka states that all laws
shall
be enacted or made in Sinhala and there shall be a Tamil translation of every
law so enacted or made. Under the present Constitution,
therefore, all Bills are
presented to the Legislature in Sinhala and enacted in Sinhala. But prior to the
enactment of the present
Constitution a Sinhala translation of the Bill was made
available to the Members of the House of Representatives. This is quite
understandable as the composition of the legislature has in recent years been
predominantly Sinhala speaking. The official language
of the country is Sinhala.
Business of the House is conducted in Sinhala, but any member may address the
House in English or Tamil.
Of the 157 members in the House, only 31 are
non-Sinhala speaking, but I presume even they understand Sinhala. The more
articulate
of the Sinhala speaking members who constitute the decisive voting
majority and who represent rural opinion and aspirations follow
the proceedings
in the legislature in Sinhala, participate in debates in Sinhala, and when they
vote for a Bill, I presume, they
have before them the Sinhala version of the
Bill.
I shall now quote the relevant portion of section 24(1) of the Interpretation
(Amendment) Bill in Sinhala, insofar as the so-called
'limitation clause' is
referred to therein.
As I have pointed out earlier although in the Bill section 24(1) dealt with "any
act done or purported to be done" and
"in the exercise or purported
35
exercise of
any power or authority," it is my view, that the word "purported" was a surplus
age and its omission
in the Act did not make any significant difference. In my
view, the Sinhala version of the relevant controversial lines of the Bill
which
was before Parliament is not open to any restrictive interpretation as suggested
by Counsel for the respondents. It follows
that one cannot even read into it
words like "in good faith". The language in the Sinhala version of the Bill, in
my
view, is clear, precise and unequivocal as to the intention of Parliament to
deprive the Courts of the power to grant an injunction
against the Minister
under any circumstances whatsoever,
I, therefore, hold that all orders of the District Courts and the High Courts
issuing interim injunctions against the Minister of
Agriculture and Lands in
respect of the applications under review are illegal and have been made without
jurisdiction. Therefore,
exercising the revisionary powers of this Court, I
quash all such orders irrespective of the fact that they are in force or have
expired.
In the circumstances of the case and as the matters in issue were raised ex mero
motu by this Court, I make no order as to costs.
We are deeply obliged and much thankful to Counsel appearing on both sides for
the very valuable, and painstaking assistance they
have given us both by
exhaustive oral and written submissions.
Before I conclude I wish to make these observations: In the contemporary society
in which we live there are social changes and upheavals
which are taking place
every moment to solve the problems of the people. It is necessary that in order
to effect, consolidate and
guarantee these changes that those who wield the
executive power of the State must be armed with adequate and far-reaching I
powers,
unobstructed as far as possible and unless it is absolutely necessary,
by extraneous interference. These powers are given to public
functionaries in
trust by the Legislature representing the power of the people. Implicit in repositing these extensive powers by
the legislature is the duty expected from
those who exercise powers that they will do so with circumspection and above all
with
a sense of justice. There may be moments when they will derive infinite
delectation in exercising these powers but at the same time
they must also
remember in doing so that "it is excellent to have a giant's strength; but it is
tyrannous to use it like a
giant".
36
MALCOLM PERERA, J.
At the outset I shall deal with the question as to whether this Bench of nine
Judges has the jurisdiction to hear and determine
the matters that are before
it. The question of jurisdiction has been raised by Mr. Jayewardene and he
contended that there have
been certain irregularities in the manner in which
these cases have come up before this Court by way of revision. He submitted,
therefore, that all subsequent steps that have been taken leading up to the
constitution of the present Bench were illegal.
An examination of the record shows that on the 14th of June, 1974, an
application has been made by Mr. Jayewardene and Mr. Thiruchelvam
before Alles,
A.C.J., Vythialingam, J. and Gunasekera, J. for the exercise of the powers of
the Chief Justice under section 14(3)
(c) of the Administration of Justice Law
No. 44 of 1973 in regard to S.C. Applications GEN/1 to 16 for the constitution
of a Bench
of five or more Judges since the matters referred to therein are of
public and general importance.
On the 18th of June, after hearing Mr. Jayewardene, Mr. Thiruchelvam and Mr.
Siva Pasupathi, Acting Solicitor-General, Alles, A.C.J.
directed that these
cases be listed for hearing on the 8th July, 1974, before a Bench of nine Judges
as the matters in dispute
are of general and public importance.
Since the direction of the learned Acting Chief Justice is proper and valid, I
hold that the jurisdiction of this Bench to hear
and determine the matters
before it cannot be challenged.
In this situation, I think it is a fruitless exercise to examine the question of
the alleged irregularities referred to by the learned
Attorney. However in the
course of his submissions, Mr. Jayewardene, amongst other matters, did advert to
section 7 of the Administration
of Justice Law which reads as follows:
"The sittings of every Court shall be held in public, and all persons shall be
entitled freely to attend such sittings. A Judge
may, however, in his
discretion, whenever he considers it desirable -
(a) in any proceedings relating to family relations,
(b) in any proceedings relating to sexual offences, or
(c) in the interests of order and security within the Court premises exclude
therefrom such persons as are not directly interested
in the proceedings
therein."
It is the duty of Court that its sittings shall ordinarily be held in public and
all persons shall freely have access to attend
such sittings, except in cases
37
where the Court, for good reasons, exclude from it those persons who are not
directly interested in the proceedings.
The calling for records and examining them are matters ancillary to the exercise
of judicial power. They do not themselves constitute
judicial acts which ought
to be performed at public sittings of Court.
The next question that I have to determine is whether, by virtue of the
provisions of section 24 of the Interpretation Ordinance
Amendment Act, No. 18
of 1972, an injunction would not be available under all circumstances against a
Minister of State or an officer
of State. It has been contended most strenuously
by learned Attorneys for the Plaintiffs/Petitioner in these Applications that
the preclusive provision does not apply to any act which has been done in bad
faith. Mr. Jayewardene, who spearheaded the arguments
submitted that the
preclusion contained in section 24 is limited in its application to only such
acts as are described in the words,
"... in respect of any act done or intended
or about to be done by any such person or authority in the exercise of any power
or authority vested by law in any such person or authority", in section 24. He
submitted that this "limitation clause"
requires close examination.
On the other hand, the learned Acting Solicitor-General who appeared for the
Honourable Minister submitted that the language in
section 24 precludes the
Court from granting an injunction, either permanent or interim, against the
Minister whatever in law be
the nature of his act.
Section 24 reads as follows:
"24. (1) Nothing in any enactment, whether passed or made before or after the
commencement of this Ordinance, shall be construed
to confer on any Court, in
any action or other civil proceedings, the power to grant an injunction 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 such Commission, in respect of any act done or intended
or about to be done by any such person or authority
in the exercise of any power
or authority vested by law in any such person or authority.
Provided, however, that the preceding provisions of this subsection shall not be
deemed to affect the power of such Court to make,
in lieu thereof, an order
declaratory of rights of parties.
(2) No Court shall in any civil proceeding grant any injunction or make an order
against an officer of the Crown if the granting
of the injunction or the making
of the order would be to give relief against the Crown which could not have been
obtained in proceedings
against the Crown."
38
In interpreting an enactment, I think "the safer and the more correct course of
dealing with a question of construction is to
take the words themselves and
arrive, if possible, at their meaning without, in the first place, reference to
cases" - vide
Barrell v. Fordree, 22 per Warrington, L.J.
The rule of construction is "to intend the Legislature to have meant what they
have actually expressed". (Maxwell Interpretation
of Statutes, 11th edition,
page 4) Said Jervis, C.J. in Mattison v. Hart 23 "We ought... give an Act of
Parliament the plain,
fair, literal meaning of its words. Where we do not see
from its scope that such meaning would be inconsistent or would lead to
manifest
injustice." (vide Maxwell page 6).
An accepted rule of interpretation with regard to preclusive clauses and
exclusionary provisions of which I am ever mindful is that
they must be very
strictly construed. In the case of Hirdaramani v. Ratnavale 24 Silva, S.P.J. (as
he then was) stated: "It
is a well established rule of construction that
statutes as well as subsidiary legislation, which have the effect of infringing
on the liberty of the subject must be very strictly construed. It behoves the
Court, therefore, in interpreting the above provisions,
to examine very
carefully whether, in the final form in which they appear, precluded inquiry by
the Court. It is beyond argument
that the Courts can inquire into a complaint by
an aggrieved party, in the first instance, that any particular rule, regulation
or by-law is ultra vires, or that an enactment or rule has been misapplied in
his case. It is also undoubtedly the duty of the
Court, after such inquiry,
either to pronounce on the validity of the rule or regulation, or, where the
validity is not in doubt,
to decide, inter alia, whether any power conferred on
the executive by such rule or regulation has been exercised in terms of such
provision strictly construed. In this case, Counsel for the appellant does not
even contend that the Permanent Secretary, in terms
or regulation 18(1) has no
power to make an order of detention, nor does he contend that the Court's powers
to question an order
are not taken away by regulation 18(10) and regulation 35.
His only contention is that such an order should be validly made, and
when made,
only then will the provisions contained in regulation 18(10) and regulation 55
preclude a Court from calling such order
in question. For such an order to be
validly made, the Permanent Secretary must, in my view, form an opinion on good
faith, as
he appears to have done in this case; and in forming such an opinion
he may even take an incorrect decision by reason of wrong judgment
on his part;
but such an incorrect decision is not justiciable by reason of the provisions of
section 8 of the Public Security
Ordinance and regulation 18(10), and in the
instant case,
Foot notes
22 (1932) A.C. 676 at 682.
23 (1854) 23 L.J.C.P. 108.
24(1971)75 N.L.R. 67 at 104.
39
also by reason of regulation 55. If, of course, he acts in bad faith in making
an order under regulation 18(1), the provisions taking
away the right of the .
Court to call the order in question would not apply. On a very simple analysis
of the language involved
in this regulation, it seems to me that in such an
event the Court's jurisdiction to interfere remains untouched because, when the
Permanent Secretary acts in bad faith, he has obviously not made the order for
detention because he is of the opinion that the
person in respect of whom the
order is made is likely to act in a manner prejudicial to the public safety and
that he should be
prevented from so acting because the Permanent Secretary has
some other obvious reason. Many such reasons can be imagined, the simplest
of
which is that the officer is actuated by a personal motive." These words, I
think, are apposite to the present case.
Further, in construing enactments which contain preclusive provisions like the
one found in section 24, there are certain implied
exceptions which must be
considered with great care by the Court. In the case of Anisminic Ltd. v.
Foreign Compensation Commission
and Another, (supra) Lord Wilberforce said; "In
every case whatever the character of a tribunal, however wide the range of
questions remitted to it, however great the permissible margin of mistake, the
essential point remains that the tribunal has a
derived authority, derived, that
is from statute, at some point, and to be found from a consideration of the
legislation the field
within which it operates is marked out and limited. There
is always an area narrow or wide which is the tribunal's area, a residual
area
wide or narrow in which the legislature has previously expressed its will and
into which the tribunal may not enter. Equally,
though this is not something
that arises in the present case, there are certain fundamental assumptions
which, without explicit restatement in every case, necessarily underlie the
remission of power to decide such as (I do not attempt more than a
general
reference, since the strength and the shade of these matters will depend on the
nature of the tribunal and the kind of
question it has to decide) the
requirement that a decision must be made in accordance with the principles of
natural justice and good faith.
In the case of Hirdaramani v. Ratnavale (supra at 106) Silva, S.P.J. stated: "It
will thus be that mala fides be an implied exception to any exclusionary
provisions of this nature which, on the face of it, precludes a court from
questioning
the validity of an order made thereunder.
When the subject complains to Court of an order restraining his liberty
therefore a court is obliged not merely to take a look at
the face of the order,
but to go behind it and satisfy itself whether it has been validly made. It will
be most uncharitable to
the legislature of a country in any part of the world
40
for a court to hold that, in enacting provision similar to those under
consideration, its intention was to preclude a court from
examining an order
made under circumstances such as those I have endeavoured to illustrate. So to
do would expose the courts to
the criticism of interpreting the provision not in
accordance with a reasonable intention of the legislature, but in the teeth of
it."
Thus, the Court will imply limitations into an ostensible unfettered grant of
power. Corruption, fraud or absence of good faith,
though they may not be
specifically stated in the enactment, are always deemed to be implied
exceptions. It is stated in Maxwell:
"Enactments which confer powers are so
construed as to meet all attempts to abuse them, either by exercising them in
cases not intended by the statute or by refusing to exercise them when the
occasion for their exercise
has arisen. Though the act done was ostensibly in
the execution of statutory power and within its letter, it would nevertheless
be
held not to come within the power if done otherwise than honestly and in the
spirit of the enactment. (Pages 116-117).
It was submitted by the learned Solicitor-General that no statute can be
interpreted in the abstract without considering the surrounding
circumstances.
He submitted that the intention of Parliament must be ascertained, for which
purpose he invited Court to examine
the speech made by the Honourable Felix R.
Dias Bandaranaike, much of which he read out in Court, and the speech of the
Honourable
Dr. Colvin R. de Silva.
I must confess that I am unwilling to embark on a hazardous voyage of discovery
on the tempestuous sea of Parliamentary speeches
seeking to ascertain the
intention of the legislature. "Intention of the legislature is a common but very
slippery phrase
which, popularly understood, may signify anything from intention
embodied in positive enactment to speculative opinion as to what
the legislature
probably could have meant, although there has been an omission to enact it. In a
Court of Law or equity what the
legislature intended to be done or not to be
done can only be legitimately ascertained from what it has chosen to enact,
either
in express words or by reasonable and necessary implication." Saloman v.
A. Saloman & Co. Ltd. [25 (1897) A.C. 22 at 38.]
Says Caries: 'The meaning which words ought to be understood to bear is not to
be ascertained by any process akin to speculation;
the primary duty of a court
of law is to find a natural meaning of words used in the context in which they
occur, that context
including any other phrase in the Act which may throw light
on the sense in which the makers of the Act used the words in dispute."
(Statute
Law, 7th Edition, page 66).
41
I think the duty of the Court is to interpret strictly the words that Parliament
has used. Even if the words are ambiguous, Court's
power to travel outside those
words on a voyage of discovery is strictly restricted. I do not think it is
desirable for a court
to attempt to ascertain what Parliament intended by
examining the Parliamentary speech of a Minister, for what a Minister intended
may not always be what the Parliament intended. What the Parliament intended
should be gathered from the plain words of the Act.
In the case of Magor and St.
Mellons Rural District Council v. New Port Corporation,26 Lord Simonds said:
"... nor should
I have thought it necessary to add any observation of my own
were it not that the dissenting opinion of Denning, L.J. appears to
invite some
comment.
My Lords, the criticism which I venture to make of the judgment of the learned
Lord Justice is not directed at the conclusion that
he reached. It is after all
a trite saying that on question of construction different minds may come to
different conclusions,
and I am content to say that I agree with my noble and
learned friend. But, it is on the approach of the Lord Justice to what is
a
question of construction and nothing else that I think it desirable to make some
comment, for, at a time when so large a proportion
of the cases that are brought
before the Courts depend on the construction of modern statutes, it would not be
right for this house
to pass unnoticed the propositions which the learned Lord
Justice lays down for the guidance of himself and, presumably, of others.
He
said:
"We sit here to find out the intention of Parliament and of Ministers and carry
it out, and we do this better by filling in
the gaps and making sense of the
enactment than by opening it up to destructive analysis."26
The first part of this passage appears to be an echo of what was said in
Heydon's case three hundred years ago, and, so regarded,
is not objectionable.
But, the way in which the learned Lord Justice summarises the broad rules laid
down by Sir Edward Coke in
that case may well induce grave misconception of the
function of the Court. The part which is played in the judicial interpretation
of a statute by reference to the circumstances of its passing is too well known
to need restatement. It is sufficient to say that
the general proposition that
it is the duty of the Court to find out the intention of Parliament - and not
only of Parliament but
of Ministers also- cannot by any means be supported. The
duty of the Court is to interpret the words that the legislature has used."
Foot notes
26 (1951) 2 All E.R. 839 at 841.
26a (1950) 2 All E.R. 839 at 1236.
42
Mr. Jayewardene, on the other hand, requested Court to scrutinize the
corresponding provisions contained in the Interpretation (Amendment)
Bill. I am
not inclined to follow this course either. I am not unmindful that in the case
of de Costa v. Bank of Ceylon 27 Court departed from the rule that resort to a
Statement of "Objects and Reasons should not ordinarily be made when
interpreting
a statute. In that case Fernando, C.J. stated; "The legislature in
enacting the Ordinance of 1927 stated in the long title
its purpose 'to declare
the law relating to bills of exchange, cheques, banker's drafts and promissory
notes'. A statement of the
same purpose was contained in the Statement of
Objects and Reasons which was appended to the draft Ordinance in the Gazette No.
7539 of July 30, 1926 (Part II). This Statement included as a reason for
introducing the draft Ordinance the fact that Judges of
our Courts did not
readily have available copies of the English Bills of Exchange Act, which, at
that stage, was the law which
those Judges had to apply. So unusual a reason for
the introduction of a draft Ordinance which professed to declare the law would
justify a departure from the rule that resort to a Statement of Objects and
Reasons should not ordinarily be made when constructing
a statute; but I reply
on the Statement in this instance only for the lesser purpose of underlining the
legislature's intention
to declare the law". But, in the present case, I think
the language of the section is simple, plain and crystal clear. Hence,
I prefer
to be guided by the words of Lord Halsbury: "I very heartily concur in the
language of Fitz Gibbon, L.J. that we
cannot interpret the Act by any reference
to the Bill, nor can we determine its construction by any reference to its
original form"
- (Herron v. Rathmines Commissioners28) and Rathgar Improvement.
On an analysis of section 24, it appears to me that the key words in the
limitation clause are "in the exercise of any power or authority". For the
preclusive clause to take effect the exercise of a power by the Minister must be
real
or genuine as opposed to a purported exercise of power. Mr. Pullenayagam,
in his forceful though concise submissions, stated that
the exercise of power by
the Minister must be genuine and not mere ostensible use of power. It was his
submission that an ostensible
exercise of power has overtones of mala fide. He
contended that the Court must be vigilant to ascertain whether the Minister's
exercise of power was real. He drew attention to section 22 where the words, "in
the exercise of apparent exercise of the power
...", occur. It was his
contention that if the legislature intended to cover purported exercise of power
in section 24, the
legislature would have explicitly stated so as it has done in
section 22. Neither the brevity of his submissions nor the frugal
consumption of
the time of Court by him lessened the force or the persuasiveness of Mr.
Pullenayagam's arguments. I am inclined
to assent to his submission.
Foot notes
27 (1969) 72 N.L.R. 457 at 470.
28 (1892) A.C. 498 at 501.
43
"In the case of Anisminic Ltd. v. The Foreign Compensation Commission and
Another (supra), the following words of section 4
(iv) of the Foreign
Compensation Act 1950 came up for consideration. "The determination by the
Commission of any application
made to them under this Act shall not be called in
question in any Court of Law". The Commission maintained that the above
words
are plain and capable of having only one meaning. "Here is determination which
is apparently valid; there is nothing
on the face of the document to cast any
doubts on its validity. If it is a nullity that could only be established by
raising some
kind of proceedings in Court. But that would be calling the
determination in question, and that is, expressly prohibited by the
statute". On
the other hand, it was the contention of the Appellants that 'determination'
meant a real determination and did
not include an apparent or, purported
determination which, in the eyes of the law, has no existence because it is a
nullity. "Or,
putting it in another way, if one seeks to show that the
determination is a nullity, one is not questioning the purported determination
-
one is maintaining that it does not exist as a determination". On an analysis of
section 4(iv) of the Foreign Compensation
Act, Lord Pearce had this to say...
"It has been argued that Your Lordships should construe 'determination' as
meaning anything
which is on its face a determination of the Commission
including even a purported determination which has no jurisdiction. It would
seem that on such an argument, the Court must accept and could not even inquire
whether a purported determination was . a forged
or inaccurate order which did
not represent that which the . Commission had really decided. Moreover, it would
mean that however
far the Commission ranged outside their jurisdiction, or that
which they were required to do, or however far they departed from
natural
justice, their determination could not be questioned. A more reasonable and
logical construction is that by 'determination', Parliament meant a real
determination, not a purported determination.
On the assumption, however, that
either meaning is a possible construction and that therefore the word
'determination' is ambiguous,
the latter meaning would accord with a long
established line of cases which adopted that construction. One must assume that
Parliament
in 1950 had cognizance of these in adopting the words used in section
4 (iv)".
The learned Solicitor-General submitted that section 22 removed the jurisdiction
of the Court, whereas in section 24, there was
only the removal of one remedy.
That being so, he submitted that when the legislature used the words "in the
exercise of any
power or authority" in section 24, it also covered purported
exercise of power. It was his submission that the word 'purported'
is implied in
section 24. I am of
44
the view that a literal reading of section 24 does produce
an intelligible result and there can be no ground for reading any words
or
altering words or changing words according to what may be the supposed intention
of Parliament. "It is but a corollary
to the general rule of literal
construction that nothing is to be added to or to be taken from a statute,
unless there are similar
adequate grounds to justify the inference that the
legislature intended something which it omitted to express". (Maxwell, page
12)
"It is a wrong thing to read into an Act of Parliament words which are not
there, and in the absence of clear necessity
it is wrong thing to do". (Thompson
v. Goold 29) "We are not entitled to read words into an Act of Parliament unless
clear reason for it is to be found
within the four corners of the Act itself.
(Vickers u Evans M) I do not see any good reason within the four corners of the
Act,
No. 18 of 1972 to read words into it. "Words plainly should not be added by
implication into statute unless it is necessary
to do so to give the language
sense and meaning in its context.
To read in any word to the crystal clear language of section 24, "it appears to
me a naked usurpation of the legislative function
under the thin guise of
interpretation".
To assent to the submission of the learned Solicitor-General would involve me in
the unhallowed task of usurping the function of
the legislature. I must confess
that I shrink from interposing my hand to fill in gaps that are supposed to
exist in section 24.
If, in fact, such a gap is discovered, the remedy is solely
in the hands of the legislature by way of an amending Act.
The learned Solicitor-General most strongly relied on the majority decision in
the case of Smith v. East Elloe Rural District Council
and Others, (supra). In
that case, "The appellant was the owner of land and a dwelling-house in respect
of which a compulsory
purchase order was made and confirmed in 1948. In 1954 the
appellant commenced an action against the Rural District Council who
made the
order against P, the clerk to the Rural District Council, and against the
Ministry of Health who confirmed the order,
and, the Ministry's successors, the
Ministry of Housing and Local Government, claiming against the Council and the
Ministry declarations
that the compulsory purchase order was made or confirmed
wrongfully and in bad faith, and against P, a declaration that he wrongfully
and
in bad faith procured compulsory purchase order and its confirmation and
damages. The defendants applied to have the writ and
all subsequent proceedings
set aside for lack of jurisdiction on the ground that under the Acquisition of
Land (Authorisation Procedure)
Act, 1946, Sch. I, Part 4, para 16
Foot notes
29 (1910)A.C.409 at 420.
30 (1910) A.C. 444.
45
which reads: "Subject to the provisions of the last foregoing paragraph, a
compulsory purchase order or a certificate under
Part 3 of this Schedule shall
not, either before or after it has been confirmed, made or given be questioned
in any legal proceedings
whatsoever, and shall become operative on the date on
which notice is first published as mentioned in the last foregoing paragraph".
Viscount Simonds said: "In this House a more serious argument was developed. It
was that as the compulsory purchase order was
challenged on the ground that it
had been made and conferred wrongfully and in bad faith, paragraph 16 had no
application. It was
said that that paragraph, however general its language, must
be construed so as not to oust the jurisdiction of the Court where
the good
faith of the Local Authority or the Ministry was impugned and put in issue.
Learned Counsel for the appellant made his
submission very clear. It was that
where the words "compulsory purchase order" occur in these paragraphs they are
to
be read as if the words made in good faith" were added to them.
My Lords, I think that anyone bred in the tradition of the law is likely to
regard with little sympathy legislative provisions for
ousting jurisdictions of
the courts whether in order that the subject may be deprived altogether of
remedy, or in order that his
grievance may be remitted to some other tribunal.
But, it is our plain duty, to give the words of an Act their proper meaning,
and, for my part, I find it quite impossible to qualify the words of the
paragraph in the manner suggested. It may be that the legislature
had not in
mind the possibility of an order made by a Local Authority in bad faith, or even
the possibility of an order made in
good faith being mistakenly, capriciously or
wantonly challenged. This is a matter of speculation. What is abundantly clear
is
that the words which are used are wide enough to cover any kind of challenge
which any aggrieved person may think fit to make. I
cannot think of any wider
words. Any addition would be mere tautology. But, it is said, let those general
words be given their
full scope and effect, yet they are not applicable to an
order made in bad faith. But, My Lords, no one can suppose that an order
bears
on its face the evidence of bad faith. It cannot be predicated of any order that
it has been made in bad faith until it has
been tested in legal proceedings, and
it is just that test which para 16 bars. How, then, can it be said that any
qualification
can be introduced to limit the meaning of the words? What else can
"compulsory purchase order" mean but an act apparently
valid in the law,
formally authorised, made and confirmed?
It was urged by learned Counsel for the appellant that there is a deep-rooted
principle that the legislature cannot be assumed to
oust the jurisdiction of the
Court, particularly where fraud is alleged, except by clear words, and a number
of cases were cited
in which the Court has
46
asserted its jurisdiction to examine
into an alleged abuse of statutory, power, and if necessary, correct it.
Reference was made
too to Maxwell on Interpretation of Statutes (10th Edition)
to support the view, broadly stated, that a statute is, if possible,
so to be
construed as to avoid injustice. My Lord, I do not refer in detail to these
authorities only because it appears to me
that they do not override the first of
all principles of construction that plain words must be given their plain
meaning. There
is nothing ambiguous about para 16: there is no alternative
construction that can be given to it; there is, in fact, no justification
for
the introduction of limiting words such as "if made in good faith", and there is
the less reason for doing so when
these words would have the effect of depriving
the express words "in any legal proceedings whatsoever" of their full meaning
and content.
Lord Reid, in his dissentient judgment, quoted with approval the dictum of Lord
Greene in the case of Associated Provincial Picture
Houses Ltd. v. Wednesbury
Corporation: [31 (1947)2 All E .R .680.] "The exercise of such discretion must be a real exercise of
discretion".
Lord Reid went on to say: "In my judgment para 16 is clearly intended to
exclude, and does exclude, entirely all cases of misuse
of power in bona fide.
But, does it also exclude the small minority of cases where deliberate
dishonesty, corruption or malice is involved? In every class of case that I
can think of the Courts have always held that the general words are not to be
read as enabling a deliberate wrongdoer to take advantage of his own dishonesty.
Are the principles of statutory construction so rigid that these general words
must be so read here? Of course, if there were any
other indications in the
statute of such an intention beyond the mere generality of the words that would
be conclusive; but I can
find none.
In his dissentient judgment, Lord Somervell of Harrow said: Ultra vires and mala
fides are, prima facie, matters for the courts.
If the jurisdiction of the
courts is to be ousted, it must be done by plain words.
'Mala fides' is a phrase often used in relation to the exercise of statutory
powers. It has never been precisely defined as its
effects have happily remained
mainly in the region of hypothetical cases. It covers fraud or corruption. As
the respondents have
moved before the bad faith has been particularised, one
must assume the worst. It has been said that bad faith is an example of
ultra
vires and observations to this effect are relied on by the respondents in
support of their submission
47
that the words "not empowered to be granted" in para 15 of Schedule 1 to the Act
cover cases where fraud or corruption
is relied on, although, on the face of it,
there is no irregularity. The following passages from Warrington, L.J. in Short
v. Poole
Corporation 32 is perhaps the most favourable to this argument:
"My view then is that the only case in which the Court can interfere with an act
of a public body which is, on the face of
it, regular and within its powers, is
when it is proved to be in fact ultra vires, and that the references in the
judgments in
the several cases cited in argument to bad faith, corruption, alien
and irrelevant motives, collateral and indirect objects and
so forth are merely
intended when properly understood as examples of matters which, if proved to
exist, might establish the ultra
vires character of the act in question".
This way of describing the effect of bad faith should not be used to blur the
distinction between an ultra vires act done bona fide
and an act on the face of
it regular but which will be held to be null and void if mala fides is
discovered and brought before
the court. The division in law is clear and deep.
In the Anisminic case (supra) Lord Reid stated that the East Elloe case (supra)
gave most difficulty. He, however, expressed the
view that he "cannot regard it
as a satisfactory case". Lord Reid went on to say: "I would have expected to
find
something more specific than the bald statement that a determination shall
not be called in question in any court of law. Undoubtedly,
such a provision
protects every determination which is not a nullity. But I do not think that it
is necessary or even reasonable
to construe the word 'determination' as
including everything which purports to be a determination but which is in fact
no determination
at all and there are no degrees of nullity. There are a number
of reasons why the law will hold a purported decision to be a nullity
... I have
come without hesitation to the conclusion that in this case we are not prevented
from inquiring whether the order of
the Commission was a nullity.
Sometimes anterior to the House of Lords decision of the Anisminic case, the
Supreme Court of India in the case of Somawanti v.
The State of Punjab 33
declined to be persuaded by the decision of the East Elloe case. The Indian case
was one in regard to acquisition
proceedings under their Land Acquisition Act.
The question arose whether the declaration of the Government under section 6(1)
of
the Act that the land was required
Foot notes
32 (1926) 6 Ch. 66 at 91.
33 (1963) A.I.R. S.C. 151.
48
for a public purpose was final. It was pointed out that it was for the
Government to be satisfied in a particular case that the purpose
for which the
land was needed was a public purpose and the declaration of the Government under
section 6(1) of the Act will be
final, subject, however, to one exception,
namely - In the case of colourable exercise of the power, the declaration is
open to challenge at the instance of the aggrieved party. The Power
conferred on the Government by the Act is a limited power in the sense that it
can be exercised only where it is for a
public purpose ... If it appears that
what the Government is satisfied about is not a public purpose but a private
purpose or no purpose at all, the
action of the Government would be colourable
as being outside the power conferred upon it by the Act and its declaration
under
section 6 of the Act will be a nullity. "The question whether a
particular action was the result of fraud or not is always justiciable. The
condition for the exercise
of the power by the State Government is the exercise
of a public purpose, and if the Government makes a declaration under section
6(1) in fraud of the powers conferred upon it by that section, the satisfaction
on which the declaration is made is not about a
matter with respect to which it
is required to be satisfied by the provision and therefore its declaration is
open to challenge
as being without any legal effect". (Vide also Raja Anand v.
The State of Uttar Pradesh [34 (1967) A.I.R. Vol. 54.] ).
I have quoted extensively from the East Elloe case and the Anisminic case as
Counsel on both sides have made repeated reference
to those cases in the course
of their arguments. I find myself unable to regard the East Elloe case as a
reliable solvent of the
question that arises in the present case, nor is that
case a very satisfactory one as stated by Lord Reid.
S. A. de Smith says: "If a discretionary power has been exercised for an
unauthorised purpose, it is generally immaterial whether
its repository was
acting in good faith or in bad faith. But, where the Courts have disclaimed
jurisdiction to determine whether
the prescribed purposes have in fact been
pursued, because the relationship between the subject-matter of the power to be
exercised
and those purposes is placed within the sole discretion of the
competent authority (as where a power is exercisable if it appears
to that
authority, or expedient for the furtherance of those purposes), they have still
asserted jurisdiction to determine whether
the authority has in good faith
endeavoured to act in accordance with the prescribed purposes". (Judicial
Review of Administrative Action, 2nd Edition, page 315).
49
In the case of Carltona Ltd. v. Commissioners of Works and Others 35, Regulation
51(1) of the Defence (General) Regulations came
up for consideration. The said
Regulation reads as follows: "A Competent Authority, if it appears to that
Authority to be
necessary or expedient so to do in the interests of public
safety, the defence of the realm, or the efficient prosecution of the
war, or
for maintaining supplies and services essential to the life of the community,
may take possession of any land and may give
such directions as appear to the
Competent Authority to be necessary or expedient in connection with the taking
of possession of
land". The court of Appeal held that Parliament has committed
to the executive discretion of deciding when an order for the
requisition of
premises should be made under the regulation, and with the discretion, if bona
fide exercised, no Court could interfere.
Lord Greene M. R. stated: "It has been
decided as clearly as anything can be decided that where a regulation of this
kind
commits to an executive authority the decision of what is necessary or
expedient and that authority makes that decision, it is incompetent
to the
Courts to investigate the grounds or the reasonableness of the decision in
the absence of an allegation of bad faith. If it were not so it would mean
that the Courts would be made responsible for carrying the executive government
of this country
on these important matters, Parliament, which authorises these
regulations, commits to the executive the discretion to decide, and
with that
discretion, if bona fide exercised, no Court can interfere. All that the Court
does is to see that the power which it
is claimed to exercise is one which falls
within the four comers of the powers given by the legislature and to see that
those powers
are exercised in good faith".
In the case of David v. Abdul Cader 36, the Privy Council held that an applicant
for a statutory licence is entitled to damages
if there has been a malicious
misuse of the statutory power to grant the licence. Viscount Radcliffe stated:
"In Their Lordships'
opinion, it would not be correct today to treat it as
establishing any wide general principle in this field; certainly it would
not be
correct to treat it as sufficient to found the proposition, as asserted here,
that an applicant for a statutory licence
can in no circumstances have a right
to damages if there has been a malicious misuse of the statutory power to grant
the licence,
much must turn in such cases on what may prove to be the facts of
the alleged misuse and in what the malice is found to consist.
The presence of
spite or ill-will may be insufficient in itself to render actionable a decision
which has been based on unexceptionable
grounds of consideration and has not
been vitiated by the badness of the motive. But a 'malicious'
Foot notes
35 (1943) 2 All E.R. 560.
36 (1965) 65 N.L.R. 253 at 257.
50
misuse of authority, such as is pleaded by the appellant in his plaint, may
cover a set of circumstances which go beyond the presence
of ill-will, and in
Their Lordships' view it is only after the facts of malice relied upon by a
plaintiff have been properly ascertained
that it is possible to say in a case of
this sort whether or not there has been any actionable breach of duty.
In Canadian case of Roncarelli v. Duplessis, (supra) Rand J. said: "The field of
licensed occupations and business of this
nature is steadily becoming of greater
concern to citizens generally. It is a matter of vital importance that a public
administration
that can refuse to allow a person to enter or continue a calling
which, in the absence of regulation, would be free and legitimate,
should be
conducted with complete impartiality and integrity; and that the grounds for
refusing or cancelling a permit should unquestionably
be such and such only as
are incompatible with the purposes envisaged by the statute; the duty of a
Commission is to serve those
purposes and those only. A decision to deny or
cancel such a privilege lies within the 'discretion' of the Commission; but,
that
means that decision is to be based upon a weighing of considerations
pertinent to the object of the administration.
In public regulation of this sort there is no such thing as absolute and
untrammelled 'discretion', that is, that action can be
taken on any ground or
for any reason that can be suggested to the mind of the administrator; no
Legislative Act can, without express
language, be taken to contemplate an
unlimited arbitrary power exercisable for any purpose, however capricious or
irrelevant, regardless
of the nature or purpose of the statute. Fraud and
corruption in the Commission may not be mentioned in such statutes, but they
are
always implied as exceptions. 'Discretion' necessarily implies good faith in
public duty; there is always a perspective within
which a statute is intended to
operate; and any clear departure from its lines or objects is just as
objectionable as fraud or
corruption".
In the case of Hirdaramani v. Ratnavale (supra), Samarawickrema, J. considered
regulation 5 of the Emergency Regulations which reads
thus:
"Section 45 of the Courts Ordinance shall not apply in regard to any person
detained or held in custody under any Emergency
Regulation".
He said "Clause 55 refers to a 'person detained in custody'; it does not state
'purported to be detained' or 'detained in custody
under colour of any Emergency
Regulation. This takes away the right to habeas corpus. This is a valuable
right for safeguarding
individual liberty. A provision which restricts rights of
this kind must be given no greater effect than the plain
51
meaning of the words
require. In A.G. for Canada v. Hallet & Carey Ltd, 37 the Privy Council
construed a provision and
held that it did empower the taking away of a right,
but at page 450 Lord Radcliff stated the general principles thus; "It
is fair to
say that there is a well-known general principle that statutes which encroach
upon the rights of the subject, whether
as regards person or property, are
subject to a strict construction. Most statutes can be shown to achieve such an
encroachment
in some form or another, and the general principle means no more
than that; where the import of some enactment is inconclusive or
ambiguous, the
Court may properly lean in favour of an interpretation that leaves private
rights undisturbed ...".
"I am, therefore, of the view that Regulation 55 will not apply to the case of a
person unlawfully detained under an invalid
detention order made in abuse of the
powers conferred by Regulation 18(1)".
In the case of Gunasekera v. Ratnavale 38, Wijayatilake, J. stated . . . For
instance, if the Permanent Secretary has been misled
by some subordinate officer
and in the result he makes an order which is clearly not in the public interest
but to satisfy some
private grudge, could it be said that the Court has no
jurisdiction to even look into an allegation of mala fide ? I do not think
the East Elloe case stands in the way of arriving at the conclusion that this
Court is not precluded from entertaining
an application of this nature". ". . .
In my opinion, the rules of interpretation in that case should not be extended
to a case such as this where the right to question the order is challenged and
there is no question of prescription. On the other
hand, the Anisminic case
appears to be more in point although they were dealing with the determination of
a tribunal".
In the Indian case of Pratap Singh v. State of Punjab 39, the Supreme Court
remarked: "The two grounds of ultra vires and mala
fides are thus most
inextricably mixed. To regard it as a question of ultra vires, the question is.
what is the nature of the power
which has been granted to achieve a definite
object? in which case it would be conditioned by the purpose for which it is
vested. . . The nature of the power thus discloses the purpose. In this
context, the use of that power for achieving an alien purpose- wreaking
the
Minister's vengeance on the officer would be mala fide and a colourable exercise
of that power and would therefore be struck
down by the Courts".
Foot notes
37 (1952) A.C 427.
38 (1972) 76 N.L.R. 316 at 345.
39 (1964) 51 A.I.R. 72.
52
In the South African case of the Minister of Justice and Law and Order and
Attorney-General v. Masarurwa and Others 40 Quenet, J.P.
said: "In a word in
exercising the first power the 1st respondent was not influenced simply by a
desire to give effect to
the purposes of section 50, subsection 1(b). The desire
was to achieve a result not contemplated by that section.
The only limitation upon the power which section 51 confers upon the Minister is
that he will exercise it honestly and bona fide
and without regard to any
ulterior motive ... In the present case it is conceded that the 1st appellant
acted in good faith. Nor
is it alleged that there was a want of serious and
honest consideration of the matter, but it is said, and I think rightly, that
there was an ulterior motive which substantially affects his position- a
desire to bring about a result not contemplated by section 50 of the Act". In
the case of the African Reality Trust Ltd.
v. Johannesburg Municipality", the
following words quoted by Wessels, J. in his judgment are very helpful: "If a
public
body or an individual exceeds its powers, the court will exercise a
restraining influence. And if, while ostensibly confining itself
within the
scope of its powers, it nevertheless acts mala fide or dishonestly, or for
ulterior reasons which ought not to influence
its judgment, or with an
unreasonableness so gross as to be inexplicable, except on the assumption of
mala fides or ulterior motive,
then again the court will interfere. But, once a
decision has been honestly and fairly arrived at upon a point which lies within
the discretions of the body or person who has decided it, then the court has no
functions whatever. It has more power than a private
individual would have to
interfere with the decision merely because it is not one at which would have
itself arrived.
Mr. Jayewardene submitted that the language used in section 88 of the Police
Ordinance is almost identical with the limitation clause
in section 24(1).
Section 88 of Cap. 53 reads as follows:
"88. All actions and prosecutions against any person which may be lawfully
brought for anything done or intended to be done
under the provisions of this
Ordinance, or under the general police powers hereby given, shall be commenced
within three months
after the act complained of shall have been committed, and
not otherwise; and notice in writing of such action and of the cause
thereof
shall be given to the defendant, or to the principal officer of the district in
which the act was committed, one month
at least before the commencement of the
action; and no plaintiff shall recover in any such action if tender of
sufficient amends
shall have been made before such action brought or if a
sufficient sum of money shall have been paid into court after such action
brought, by or on behalf of the defendant".
Foot notes
40 (1964) 4 S. A. L. R. 209 at 224.
41 (1906) T.L.R. 908 at 913.
53
In the case of Perera v. Hansard, (supra), page 1, it was held that as the
defendant did not act bona fide in obtaining a warrant,
therefore his act was
not anything done or intended to be done under the provisions of the Ordinance,
and in the result the defendant
was not entitled to notice. A similar view was
taken in the cases reported in 4 C.W.R. 258, 23 N.L.R. 192, and 29 N.L.R. 139.
Mr.
Jayewardene further submitted that section 461 of the Civil Procedure Code
gives protection to the State as well as public officers
in respect of acts done
by them in their official capacity, as the Civil Procedure Code insists that
notice of action must be given.
Section 461 reads as follows:
"461. No action shall be instituted against the Attorney-General as representing
the Crown, or against a Minister, Parliamentary
Secretary, or public officer in
respect of an act purporting to be done by him in his official capacity, until
the expiration of
one month next after notice in writing has been delivered to
such Attorney-General, Minister, Parliamentary Secretary, or officer
(as the
case may be), or left at his office, stating the cause of action and the name
and place of abode of the person intending
to institute the action and the
relief which he claims; and the plaint in such action must contain a statement
that such notice
has been delivered or left".
It was the submission of Mr. Jayewardene that the Supreme Court has interpreted
the qualifying words, "in respect of an act
purported to be done by him in his
official capacity", in the same manner as section 88 of the Police Ordinance
which excluded
malicious acts. The cases of Appu Singho v. D. Aaron (supra);
Abraham Appu v. Banda 42; Saranankara v. Kapurala Aratchi 43, were
cited in
support of his contention. However, I find that in de Silva v. Ilangakoon,
(supra) Basnayake, C.J. held that the section,
in using the word 'purport' was
made applicable to malicious acts as well. This view was followed by Basnayake,
C.J. in Ediriweera
v. Wijesuriya 44. In the case of Ratnaweera v. The
Superintendent of Police 45 , Wijewardena, C.J. stated {Obiter): "I wish
to place
on record my opinion that Appu Singho v. Don Aaron (supra), 138, and Abraham
Appu v Banda, (supra) have taken too restricted
a view of the scope of 461 when
they laid down that the section did not apply to a public officer acting mala
fide".
The learned Solicitor-General submitted that in construing a word in an Act,
caution is necessary in adopting the meaning ascribed
to the word in other Acts.
He relied on a passage from Craies on Statute Law, 7th Edition, page 164, which
reads as follows: "It
would be a new terror in the construction of Acts of
Parliament if we were required to limit a word to an unnatural sense because
in
some Act, which is not incorporated or referred to, such an interpretation is
given to it for the purposes of the Act alone".
Foot notes
42 60 N.L.R 49, 44 (1958) 59 N.L.R. 447.
43 3 C.W.R. 121. 45 (1949) 51 N.L.R. 217.
54
A review of all the above-mentioned authorities clearly support the proposition
that the powers conferred on the executive by statute
must be exercised bona
fide and for the public purpose for which the power was conferred. The learned
Solicitor-General did not
seek to contend against it. It was his position that
the legislature, far from rejecting this proposition, recognized when it
provided
the aggrieved party the right to have a declaration in lieu of an
injunction. It was his contention that any exercise of powers
by the executive,
be it bona fide or be it mala fide, was covered by section 24 of the
Interpretation (Amendment) Act. He strenuously
argued that this was the
intention of Parliament as there was no explicit limitation of the exercise of
power. He went on to submit
that during the past years a large number of
acquisition proceedings were brought to a halt by the issue of interim
injunctions
obtained from our Courts on the ground that such proceedings have
been initiated by the mala fide exercise of power in the hope
of delaying them.
He stated that it was the intention of Parliament to put a stop to unfounded and
frivolous applications for injunctions.
He lamented that there were at the
moment some sixty applications for injunction awaiting disposal by the
respective Courts. Our
Courts generally do not grant injunctions merely because
a party has made an application. As far back as 1929 our Supreme Court
held: "A
party must have very strong grounds and put all necessary facts before the Court
to obtain an interim injunction
on an ex pane application, and, even if granted,
it should as a general rule only be to a certain date to allow notice to the
other
side." (Jinadasa v. Weerasinghe,46 per Dalton, J.)
In Ceylon, an injunction has been a cherished remedy available to a citizen. It
is a remedy sought when a perpetration of wrong
resulting in irreparable damage
or mischief is imminent. This remedy is obviously efficacious because the
threatened wrong is prevented
from taking place. The Civil Courts of our land,
in the exercise of their ordinary jurisdiction, have the power to grant the
remedy
of an injunction (interim or permanent) in cases where there is
sufficient material before them to arrest a wrong that is threatened.
In the
case of Buddadasa v. Nadarajah (supra) it was held that an injunction was
available to a petitioner "to restrain a
public officer from threatening to do a
wrongful act which purports to be within his statutory powers, but is in fact
outside them".
(Vide also Government Agent, Northern Province v. Kanagasunderam
47."
Thus, an injunction is a valuable remedy available to
a citizen to prevent the
abuse of power by the executive. In the case of Ratwatte v. Minister of Lands,
(supra) Samarawickreme,
J. said: "Upon the matters placed before this Court by
the petitioners, the question arises whether in giving directions for
these
acquisitions, the 1st respondent,
Foot notes
46 (1929) 31 N.L.R. 33 at 34.
47 (1928) 31 N.L.R. 115.
55
wittingly or unwittingly, gave effect to a design or plan by a political
opponent of the petitioners which was calculated to protect
the interests of
himself and his relatives and cause loss and detriment to the petitioners; and
if the 1st respondent did so, but
acted unwittingly, whether the petitioners are
entitled to relief. In order that an interim injunction may issue it is not
necessary
that the Court should find a case which would entitle the plaintiff to
relief at all events: it is quite sufficient if the Court
finds a case which
shows that there is a substantial question to be investigated, and that matters
should be preserved in status
quo until that question can be finally disposed
of."
There is a strong leaning that exists against construing statutes so as to oust
or restrict jurisdiction of Courts. Very clear words
will be required to oust
altogether or restrict the jurisdiction of Courts in matters concerning the
rights of citizens. A distinct,
unequivocal and positive Legislative Enactment
is necessary for the purpose of taking away the jurisdiction of Courts. One of
the
vital functions of our Courts is to safeguard the citizens from any abuse of
power by the executive under the colour of official
acts. "Vide Clinch v. Inland
Revenue Commissioner**". Enactments are not presumed to interfere with the
Court's jurisdiction
unless the Act expressly declares so. Acts of Parliament
ought to be interpreted so as in no manner to interfere with or prejudice
the
clear right of the citizen unless such right is taken away by explicit language.
In my view such language is not found in section 24 of the Interpretation
(Amendment) Act.
I like to remind myself of the words of Dias, A.C.J. in re Agnes Nona,49
"It is a characteristic feature of modern democratic government in the
Commonwealth that unless a statute provides to the contrary, officials or
others are not exempted from the jurisdiction of the ordinary tribunals
. . .
Behind Parliamentary responsibility lies legal liability and the acts of
ministers no less than the acts of subordinate officials
are made subject to the
Rule of Law ... and the ordinary Courts have themselves jurisdiction to
determine what is the extent of
his legal power and whether the order under
which he acted were legal and valid".
In view of my findings I hold that section 24 of the Interpretation (Amendment)
Act does not clothe the executive with a garment
of immunity from being
restrained in appropriate cases by injunction
Foot notes
48 (1973) 1 All. E.R.977.
49 (1952) 53 N.L.R. 106 at 111.
56
from interfering with the rights of the individuals. I think that the
acquisition orders made by the Hon. Minister if they have not
been done by him
in due and proper exercise of power and in good faith in terms of the Land
Acquisition Act are not orders made
in the real or genuine exercise of authority
vested in him by law. In such circumstances section 24 does not apply and the
Courts
are not precluded in any way from protecting the individual's rights from
being invaded by the executive. In such a situation the
citizen is entitled to
the remedy by way of an injunction.
Mr. Jayewardene submitted that the restrictions placed in subsection 2 of
section 24 is subject to the limitations contained in
subjection 1.1 agree with
this submission. A public officer can be restrained by an injunction when he
acts outside the scope of
the limitations contemplated in subsection 1 of
section 24.
Mr. Tiruchelvam submitted that on an examination of section 24 it would be seen
that only a permanent injunction is contemplated
as the proviso in section 24
deals with the granting of a declaratory order in lieu of the award of an
injunction. In view of the
above conclusions that I have arrived at I do not
think it necessary to consider the submissions of Mr. Tiruchelvam.
I hold that the orders made by the subordinate Courts are valid. The notices
issued on the plaintiff-petitioners must be discharged
and the Records should be
sent back to the respective Courts for inquiry or trial as the case may be.
VYTHIALINGAM, J.
These applications raise important questions in regard to the construction of
section 24 of the Interpretation Ordinance as amended
by the Interpretation
(Amendment) Act, No. 18 of 1972 and the practice and procedure relating to the
exercise by this Court of
its power to call for and examine the records of any
subordinate Court and in the exercise of its revisionary powers to make any
order thereon as the interests of justice may require.
On 13 May, 1974, Pathirana, J. and Wijesundera, J. directed the Registrar of
this Court to call for the records in the following
cases:-VI/74 High Court of
Badulla 11; 12; 13; 15; 1/28; 1/25 High Court
57
Kandy 6/74 High Court of Ratnapura and 4/6 D.C. Bandarawela, L/10568, L/10569
and L 10570 D.C. Kandy.
Thereafter the same two Judges and Udalagama, J. made the following order:-
"The Registrar,
Supreme Court,
Colombo.
In terms of section 354 (1) of the Administration of Justice Law No. 44 of 1973,
having perused the records in the following cases
in order to satisfy ourselves
as to the legality and propriety of the orders made by the learned High Court
and District Court
Judges and the regularity of the proceedings in respect of
such orders, we are of the opinion that the said orders on the face of
the
record appear to be illegal in view of the provisions of section 24 of the
Interpretation Ordinance as amended by the Interpretation
(Amendment) Act No. 18
of 1972.
Notice Petitioners/Plaintiffs to appear and show cause as to why the said orders
should not be set aside in the exercise of our
powers of revision.
Notice Respondents/Defendants and the Attorney-General. Petitioners/Plaintiffs
will be noticed to appear to show cause on 14.6.1974.
1. H.C.P. Ratnapura 6/74 APN/GEN/13/74 -Order made on
13.5. 1974.
2. D.C. Kandy L. 10568 APN/GEN/10/74 -Order made on
22.4.1974.
3. D.C. Kandy L. 10569 APN/GEN/11/74 -Order made on
22.4.1974.
4. D.C. Kandy L. 10570 APN/GEN/12/74 -Order dated
22.4.1974.
5. H.C. Badulla V/I/74 APN/GEN/6/74 -Order dated
14.3.1974, and 9.4.1974.
6. H.C. Kandy 1/25/74 APN/GEN/74 -Order dated
17.5.74."
Subsequently a similar order was made by the same three Judges in respect of the
following cases:-
7. H.C. Kandy 1/28/74 APN/GEN/14/74- Order dated
29.4.1974
8. H.C. Kandy 11/74.APN/GEN/8/74- Order dated 22.2.1974
9. H.C. Kandy 15/74/APN/GEN.12.74- Order dated 5.3.1974
58
It will be noticed that although twelve cases were originally called for, order
to issue notice were made in respect of only nine
of these cases. In two of the
cases originally called for i.e. H.C. Kandy 12 and 13 of 1974 the
Attorney-General had moved this
Court in revision in S.C. Applications No.
290/74 and 291/74 but withdrew the applications as the interim injunctions
issued in
these cases had expired by effluxion of time and there was no longer a
live issue in these cases. Probably for this reason the parties
in these two
cases were not noticed. The third case is D. C. Bandarawela L.6. which is on the
list of applications before us now.
I may mention but without comment that the order referred to dated 13.5.1974 in
H.C. Ratnapura 6/74 APN/GEN/13/74 in respect of
which notice to show cause has
been issued is an order dissolving the interim injunction issued by the Court,
on the ground that
the petitioner in that case had not been able to establish to
the satisfaction of the Court that irremediable mischief would ensue
to him if
the interim injunction was not issued. On the main issue before us the learned
High Court Judge held that section 24
of the Interpretation Ordinance did not
preclude his issuing the interim injunction. But since it had been dissolved by
his order
of 13.5.1974 there was nothing more to be done.
The parties noticed in applications APN/GEN/6 & 7/74 filed petition and
affidavit before the Hon. The Acting Chief Justice and
prayed that these and
certain other cases referred to in their petition be directed to be heard by
five or more Judges as the matters
in dispute in the said cases are both of
general and public importance. This was supported before the Acting Chief
Justice who
directed that the matter be argued on 18.6.1974 and the three Judges
before whom the matters came up in pursuance of the notices
issued directed that
the cases be re-listed in a week's time.
After hearing parties on 18.6.1974 the Acting Justice directed "under section
14(3) (c) of the Administration of Justice Law
No. 44 of 1973 that the
applications numbers APN/GEN/6/74, 7/74, 9/74, 10/74, 11/74, 12/74, 13/74, 15/74
and 16/74 now pending
before the Supreme Court be listed for hearing on 8th
July, 1974, before a Bench of nine Judges as the matters in dispute in the
said
cases are of general and public importance." This Bench of nine Judges was
accordingly constituted by the Chief Justice
and altogether eighteen
applications have been listed before us for disposal.
In three of these cases APN/GEN/21/74, 22/74 and 23/74 the defendants are the
Land Reform Commission and interim injunctions
59
have been issued restraining
them. In the course of the argument the learned Solicitor-General conceded that
section 24 of the Interpretation
Ordinance did not apply to the Land Reform
Commission and accordingly the notices in those cases were discharged and the
records
were directed to be returned to the respective Courts.
As I have already pointed out in the Ratnapura High Court case APN/GEN.13/74 the
interim injunction has been dissolved by the High
Court Judge himself while in
every one of the other eight High Court cases APN/GEN/6/74, 8/74, 12/74, 14/74,
15/74, 18/74, 19/74,
20/74, the interim injunctions have spent themselves by
effluxion of time and there is no longer any live issue before us. Notices
in
all these High Court cases will also have to be discharged and I would
accordingly direct that the notices should be discharged
in these cases, since
theoretical issues or hypothetical questions are not determined by Courts.
We are therefore left with the six District Court cases in D.C. Bandarawela APN/GEN/7/74,
D.C. Kandy APN/GEN/9/74, 10/74, 11/74,
16/74 and D.C. Gampola APN/GEN/24/74. All
these cases relate to proceedings for the acquisition of land under the
provisions of
the Land Acquisition Act Cap. 460 and the defendant in each of
these cases is the Hon. H. S. R. Kobbekaduwa, Minister of Agriculture
and Lands.
In all these cases interim injunctions were issued restraining the defendant
from proceeding with the acquisition and
from evicting the plaintiffs.
In the three Kandy cases APN/GEN/9/74, 10/74 & 11/74 which have been referred to
as the Bowlana Estate cases the defendant filed
answer and objections to the
issue of the interim injunction on 31.5.74 and apparently on account of the
urgency of the matter
trial and inquiry had been fixed for 12.6.74. But for the
unfortunate circumstance of this Court having called for the records ex
mero
motu these cases would in all probability have now been finally concluded one
way or other, subject of course to any appeal.
In the other three cases dates
had been given for the answer and objections of the defendant but before the due
dates the records
have been called for by this Court and they were accordingly
forwarded to this Court. I have no doubt that the same procedure in
regard to
fixing an early date for trial and inquiry would have been followed in these
cases as well.
In all these cases the plaintiffs allege that the decisions and orders of the
defendant are bad in law and of no force or avail
as they were instigated and
influenced by others particularly by Members of Parliament for the respective
areas to secure political
and personal revenge and that they were made in bad
faith for an ulterior motive and for an extraneous purpose and therefore, ultra
vires. All the Counsel
60
who appeared for the various plaintiffs in these cases
submitted that such orders and decisions were null and void and were not
protected against the issue of interim injunctions by the prohibition contained
in section 24 of the Interpretation Ordinance. The
learned Solicitor-General
however argued that bad faith and excess of jurisdiction were irrelevant
consideration as a power can
be exercised in good faith or in bad faith. The
prohibition in section 24 was absolute and the Courts are precluded from issuing
injunctions, however corrupt, capricious, arbitrary, irrelevant or regardless of
the nature and purposes of the statute the act
of the repository might be.
His submission was that in these circumstances the subject was only entitled to
a declaration of his rights if he succeeded in proving
his case. He argued that
on establishing a prima facie case he could not obtain an interim injunction to
preserve the property
in status quo in order that in the event of his ultimately
succeeding, the declaration he could obtain could he meaningful.
In considering whether the amending Act was ever intended to and does have this
startling effect one may be permitted a few preliminary
observations. In England
"For three centuries however, the Courts have been refusing to enforce statutes
which attempt to
give public authorities uncontrollable power. If a Minister or
Tribunal can be made a law unto itself it is a made potential dictator;
and for
this there can be no place in a constitution founded on the rule of law ... In
effect they have established a kind of entrenched
provision. . . that no
executive body or tribunal should be allowed to be the final judge of the extent
of its own powers."50
The basis for this is that the exercise of governmental authority directly
affecting individual interests must rest on legitimate
foundations. For example
powers exercised by the State, its Ministers, and central government departments
must be derived directly
or indirectly from Statute or the Common Law, and the
ambit of those powers is determined by the Courts, save in so far as their
jurisdiction has been excluded by unambiguous statutory languages.
As W. Friedman observes" "The State could through its legislature and executive
arms extend its functions, its powers
and authority until it engulfs all aspects
of the community. This of course is the case in totalitarian states where the
judiciary
functions essentially as a specialised branch of the executive. The
Courts are expected to protect and enforce the policies of government.
Such a
philosophy and structure of powers are
Foot notes
50 H. W. R. Wade- Constitutional and Administrative aspects of the Anisminic
Case. 1969 85 LQR 198 at 200.
51 W. Friedman- The State and Rule of Law in a Mixed Economy. Tagore Lectures
1971 Calcutta University.
61
incompatible with the idea of a mixed economy where the economic functions of
the state as provider, controller, and entrepreneur
are assigned an important,
perhaps even a prominent place, but the private sector is meant to retain a
definite function and place
of its own."
Such is our case and our Republican Constitution provides in Article 131 (1) for
the independence of Judges and other State Officers
administering justice
without being subject to any direction or other interference, although it is the
National State Assembly
which, as the Supreme Instrument of State Power
exercises the judicial power of the people through Courts and other institutions
created by law. [Sections 5 (c)].
In this context the Courts have an important and proper function to perform. As
Basnayake, C.J. pointed out in Ladamuttu Pillai
v. The Attorney-General (supra)
"The interpretation of statutes is the proper function of the Courts and once
legislation
has been enacted the legislature looks to the Courts to declare its
true meaning and upon that meaning to determine whether the
powers entrusted to
the creatures of statute have been exceeded or not. The principles governing the
exercise of their functions
by statutory functionaries have been declared by the
Courts of England and other Commonwealth countries and are now well established
and in my view afford valuable guidance in the consideration of the questions
arising on this appeal."
The decisions of the Supreme Court in some respects in this case were set aside
by the Privy Council but not in regard to this part
of the judgment. As long ago
as 1910 Farwell L.J.52 declared "Subjection in this respect to the High Court is
a necessary
and inseparable incident to all tribunals of limited jurisdiction;
for the existence of the limit necessitates an authority to determine
and
enforce it; it is a contradiction in terms to create a tribunal with limited
jurisdiction and unlimited power to determine
such limit at its own will and
pleasure - such tribunal would be autocratic not limited..."
The principles referred to by Basnayake, C.J. may be conveniently summarised
thus: "That authority must genuinely address itself
to the matter before it;
must not act under the dictation of another body disable itself from exercising
a discretion it must not
or do what it has been forbidden to do, nor must it do
what it has not been unauthorised to do. It must act in good faith, must
have
regard to all relevant considerations and must disregard all irrelevant
considerations, must not seek to promote purposes
alien to the letter or spirit
of the legislation that gives it power to act and must not act arbitrarily or
capriciously.53
Foot notes
52 R. V. Shoreditch Assessment Committee (1910) 2 KB 859 at 880.
53 Judicial Review of Administrative Action- 2nd edition 271 S.A. de Smith.
62
He groups them for convenience into two broad classes, which however are not
mutually exclusive; failure to exercise discretion and
excess or abuse of
discretionary power. W. Friedman refers to these two broad classes as (a) excess
of statutory powers and (b)
objectionable motives.54 Bernard Schwartz and H. W.
R. Wade in their comparative study of Judicial Control of Administrative Action
in England and America 55 have classified them as follows:- "Fundamentally the
court's jurisdiction rests on two distinct
principles, excess of jurisdiction or
ultra vires and error on the face of the record. If an act is within the powers
granted it
is valid. If it is outside then it is void. No statute is needed to
establish this. It is inherent in the constitutional position
of the Courts. A
void act is commonly said to be ultra vires or without jurisdiction. In this
context jurisdiction merely means
legal authority or power".
"The Courts read the statute as containing an implied limitation that the
administrative decisions shall be reasonable or that
it shall conform to certain
implied purposes or that particular facts exist. It is assumed that Parliament
could not have intended
otherwise. If therefore the implied restriction is
violated, the act is just as unauthorised and void as the crudest excess of
power.
In the Bracegirdle case 56 it was argued by the law officers of the Crown that
the Order in Council gave absolute power to the Governor
to make the order of
deportation of a British subject from Ceylon as the section was wide in its
terms and unambiguous, and that
it could not be questioned in a Court of Law.
All three Judges of this Court had no difficulty in holding that, on a proper
construction
of the Order-in-Council as a whole, the power could only be
exercised in a state of emergency, that the Supreme Court was entitled
to
inquire whether the conditions necessary for the exercise of the power had been
fulfilled, and there being no such state of
emergency as contemplated in the
Order-in-Council the order of deportation was invalid.
Abrahams C.J. remarked in the case "now this power claimed by the Learned
Attorney-General is a very wide power, and if the
legitimacy of the claim is
admitted it means that from 5th August 1914 right down to the present day (19th
May, 1937) then in the
words of Mr. Perera there has been in contemplation of
law no personal liberty in Ceylon"- (at 209).
It is undoubtedly true that, Parliament being sovereign and supreme, can vest
absolute power in any executive authority, and so
word the terms
54(1947) 10 Mod L.R. 384.
55Legal Control of Government- Bernard Schwartz and H. W. R. Wade 210.
56 In re Mark Antony Lyster Bracegirdle (1937) 39 N.L.R. 193.
63
of the grant of such power as to exclude review by the courts on any ground
whatsoever. However, as Lord Wilberforce remarked in
the Anisminic case (supra)
"although, in theory perhaps, it may be possible for Parliament to set up a
tribunal which has
full and autonomous powers to fix its own area of operation,
that has, so far, not been done in this country."
But if Parliament does so it must do it in clear and unambiguous language. "The
well-known rule that a statute should not be
construed as taking away the
jurisdiction of the Court in the absence of clear and unambiguous language to
that effect now rests
on a reluctance to disturb the established state of the
law or to deny to the subject access to the seat of justice. "It is,"
he,
(Viscount Simonds) said in another case "a principle not by any means to be
whittled down that the subject's recourse
to Her Majesty's Courts for the
determination of his rights is not to be excluded except by clear words. That is
... a fundamental
rule from which I would not for my part sanction any
departure." [57 Maxwell-Interpretation of Statutes- 12th edition
58.]
The question is whether in respect of the matters in issue in these cases this
has been done by Parliament. It is said that the
new section 24 of the
Interpretation Ordinance takes away from the courts power to issue an injunction
to restrain Ministers and
the bodies and persons specified in the section, in
respect of acts done or intended to be done by them. That section in its
entirety
is as follows:-
"24 (1) Nothing in any enactment, whether passed or made before or after the
commencement of this Ordinance, shall be
construed to confer any court, in any action or other civil proceedings, the
power to grant an injunction 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 such
Commission in respect of any act done or intended or about to be done by any
such
person or authority in the exercise of any power or authority vested by law
in any such person or authority:
Provided, however, that the preceding provisions of this subsection shall not be
deemed to affect the power of such Court to make,
in lieu thereof, an order
declaratory of rights of parties.
(2) No Court shall in civil proceeding grant any injunction or make an order
against an officer of the Crown if the granting of
the injunction or the making
of the order would be to give relief against the Crown which could not have been
obtained in proceedings
against the Crown."
64
It is at once apparent that what the section does is to prohibit a court,
notwithstanding anything in any other enactment, from issuing
an injunction or
from making an order for specific performance in respect of any act done or
intended to be done, by any Minister,
or body or persons enumerated therein, in
the exercise of any power or authority vested by law, in any such person or
authority.
(The emphasis is mine). It enables a court, however, to issue a
declaration in lieu thereof. It does not vest any authority or power
in any such
person to do any act. What the exact nature and scope of such authority or
power, as to whether it is absolute or limited
and if so in what respect, are
all matters which have to be determined by an examination of the provisions of
the statute or law
which confers that power.
In these cases the act done or intended to be done is the acquisition of land,
and the power or authority to acquire land is vested
by the Land Acquisition Act
(Cap. 460). It is therefore necessary to examine its provisions. Under this Act
the Minister must first
decide that land in any area is required for a public
purpose. Having done so he is empowered to direct the Acquiring Officer to
make
investigations for selecting land for the public purpose (section 2). Provision
is made for the payment of compensation if
damage is caused in the course of
such investigations (Section 3). Thereafter if the Minister considers that a
particular land
is suitable for a public purpose he should direct the Acquiring
Officer to cause a notice to be given to the owners of the particular
land
(section 4).
If the owners object, the objections have to be considered and decided and then
the Minister has to decide whether the land should
or should not be acquired
under the Act (sec. 4 (10), and when the Minister so decides he has to make a
written declaration that
such land is needed for a public purpose and that it
will be acquired and direct the Acquiring Officer to cause such declaration
to
be published - section 5 (1). "A declaration made under subsection (1) in
respect of any land or servitude shall be conclusive
evidence that such land or
servitude is needed for a public purpose" (section 5 (2)). There follow detailed
provisions in
regard to assessment, determination and payment of compensation.
Section 38 makes provision for the order called a vesting order, directing the
Acquiring Officer to take possession of the land.
The proviso to section 438
enables the Minister to take steps on occasions calling for urgent acquisition
provided a notice under
section 2 or section 4 has been exhibited. A vesting
Order may subsequently be revoked if possession has not actually been taken,
in
pursuance of that order. It will be seen therefore that the power to acquire
land is given only if the Minister considers that
the land is needed for a
public purpose. There are well-known principles of law which govern the exercise
of this discretion, subjective
though it is.
65
In particular the Courts are stringent in requiring that discretion should be
exercised in conformity with the general tenor and
policy of the statute and for
proper purposes and that it should not be exercised unreasonably. In other
words, every discretion
is capable of unlawful abuse and to prevent this is the
fundamental function of the courts. Unfettered discretion is a contradiction
in
terms. "Bernard Schwartz and H. W. R. Wade (at page 255).
If the repository of a power exceeds its authority or if a power is exercised
without authority, such purported exercise of power
may be pronounced invalid.
The lawful exercise of a statutory power presupposes not only compliance with
the substantive, formal
and procedural conditions laid down for its performance
but also with the implied requirements governing the exercise of that
discretion.
All statutory powers must be exercised (i) in good faith (ii) for
the purposes for which they are given and not for an extraneous
purpose (iii)
with due regard to relevant considerations and without being influenced by
irrelevant considerations and (iv) fairly
and in some contexts reasonably.58
The term bad faith as used here as opposed to good faith, requires explanation.
As Lord Somerville observed in the East Elloe case
(supra) "Mala fides is a
phrase often used in relation to the exercise of statutory powers. It has never
been precisely defined
as its effects have happily remained in the region of the
hypothetical cases. It covers fraud and corruption," So much so "that
the
reservation for the case of bad faith is hardly more than formality." Per Lord
Radcliff in Nakkuda Ali v. Jayaratne. 59
"It is an abuse of power to exercise it for a purpose different from that for
which it is entrusted to the holder, not the
less because he may be acting
ostensibly for the authorised purpose. Probably most of the recognised grounds
of invalidity could
be brought under this head; introduction of illegitimate
considerations, the rejection of the legitimate ones, manifest unreasonableness,
arbitrary or capricious conduct, the motive of personal advantage, or the
gratification of personal ill will. However that may
be, an exercise of power in
bad faith does not seem to me to have any special pre-eminence of its own among
the causes that make
for invalidity. It is one of several instances of abuse of
power and it may or may not be involved in several of the recognised
grounds
that have been mentioned." Lord Radcliff in East Elloe- at page 870. (supra)
But of course it is a recognised ground of invalidity. "Bad faith, dishonesty-
those of course stand by themselves"- Lord
Greene, M.R.60 Its consequences are
serious as Denning, L.J. pointed out in the Court of
Foot notes
58 Halsbury 4th edition Vol. I paras 60, 62, 66
59(1950) 51NLR457PC
60 Supra (1948) 1KB 228.
66
Appeal; " No Judgment of a Court or order of a Minister can be allowed to stand
if it has been obtained by fraud. Fraud unravels
everything. The Court is
careful not to find fraud unless it is specially pleaded and proved. But once it
is proved it vitiates
judgments, contracts, and all transactions whatsoever."61
And finally "The concept of bad faith eludes precise definition, but in relation
to the exercise of statutory powers it may
be said to compromise dishonesty (or
fraud) or malice. A power is exercised fraudulently if its repository intends to
achieve an
object other than that for which he believes the power to have been
conferred. His intention may be to promote another public purpose
or private
interests. A power is exercised maliciously if its repository is motivated by
personal animosity towards those who are
directly affected by its exercise." (S.
A. de Smith- page 315).
However a distinction has been made between an act without jurisdiction and an
error within jurisdiction. Discretion implies that
there is a choice and where
the choice is made without any of the taints which go to jurisdiction then the
courts cannot interfere
with the choice of the Minister and say that he should
have made the other choice and thereby substitute its own decision for that
of
the Minister, even if he is wrong. An official exercising the discretion
committed to him must be at liberty to go wrong. It
is inherent in discretionary
power that it includes the power to make mistakes.
In the Carltona Case (supra) Green, M. R. said "Parliament which authorises this
regulation commits to the executive the discretion
to decide, and with that
discretion if bona fide exercised, no Court can interfere. All that the Court
can do is to see that the
power which it is claimed to exercise is, one which
falls within the four corners of the powers given by the legislature and to
see
that these powers are exercised in good faith . . . apart from that the Courts
have no powers at all to inquire into the reasonableness,
the policy, the sense
or any other aspect of the transaction."
It is in this sense that the observations of T. S. Fernando, J. in P. Kannusamy
v. The Minister of Defence and External Affairs 62
must be understood. He said,
"where the Act permits the Minister to disallow an application where the
Minister is satisfied
that it is not in the public interest to grant it, I
cannot conceive that Parliament intended that this Court should review a
disallowance
of an application by examining
Foot notes
61 Lazarus Estates Ltd. v. Bearely (1956) 1 All E.R. 341 at 345 (1956) 1 Q. B. 702.
62 (1961) 63 N.L.R. 380.
67
whether it is actually not in the public interest to grant it. Parliament clearly intended that the Minister should be the sole judge of the requirements of public interest. The decision of the Minister is a thing for which she must be answerable in Parliament, but her action cannot be controlled by the Court."
The Courts in Ceylon have given full effect to this principle where the act is within jurisdiction. In the case of Government Agent v. Perera 63 this Court held that it was for the Governor to decide whether a particular land was needed for a public purpose or not and that the District Court had no power to entertain any objection to it on the ground that it was not so needed. This decision was approved by the Privy Council in Wijesekera v. Festing.64 This matter came up again in D. H. Gunesekera v. Minister of Agriculture and Lands.65
In a very short judgment of just twelve lines H. N. G. Fernando, J. (as he then was) said: "The consequence of the publication of the declaration (under section 5(1)) is that subsection 2 of section 5 operates to render the declaration conclusive evidence that the land was needed for a public purpose. The question whether the land should or should not be acquired is one of policy to be determined by the Minister concerned and even if that question may have been wrongly decided, subsection 2 of section 5 renders the position one which cannot be questioned in the Courts." Apparently in all these cases no question of excess or abuse of power was involved.
In the case of Gamage v. Minister of Agriculture and Lands 66 the question of the order of the Minister being null and void because the proposal for the said acquisition was motivated by personal and political animosity, as in these cases, and that it was therefore ultra vires, was raised. After the notice under section 2(1) of the Act had been given the Minister made an order under the proviso (a) to section 38. No conclusiveness attaches to the publication of the notice under section 2(1) unlike in the case of a declaration under section 5(1). Pathirana, J. with Rajaratnam, J. agreeing, held following the cases referred to by me above that the validity of the Minister's decisions could not be questioned in a Court of Law.
Pathirana, J., distinguished the two cases cited by counsel for the appellants in that case on the ground that certain public bodies were given powers to acquire land for certain specific purposes but the acquisition turned out in fact to be for other purposes not intended by the statute and motivated by some ulterior object. He said "It is different from a case
Foot notes
63 (1907)7 N.L.R. 313.
65 (1963) 65 N.L.R. 119.
64 (1919) A.C. 646.
66 (1973) 76 N.L.R. 25.
68
where a public functionary is given the powers to decide something and pursuant
to those powers the public functionary makes a decision
in which case the Court
cannot impose its own idea of what ought to have been decided as the statute
intended the powers of decisions
to lie elsewhere." -(at pages 30,31.)
This is perfectly true if the decision whether right or wrong, was within
jurisdiction. But in that case the challenge was for ultra
vires on the ground
of bad faith and improper purpose and it goes directly to jurisdiction and this
aspect does not appear to have
received any consideration. Cases are cited as
illustrating the principles involved and not because they are on the identical
facts.
Acquisition of land to pay off a grudge, whether it be political or
personal, or for a private purpose or no purpose at all when
one can acquire
only for a public purpose is equally in fraud of the statute as acquiring land
for one purpose when power is given
to acquire it for another purpose. The
fundamental principle of administrative law and the general theory on which
judicial control
over administrative acts is based is the doctrine of ultra
vires. If the grant of subjective powers takes away the consideration
of the
question of ultra vires, then the whole basis of judicial review of
administrative actions is taken away.
The "conclusive evidence" clause also does not help at all. In the Anisminic
case Lord Wilberforce said "In every
case, whatever the character of a tribunal,
however wide the range of questions remitted to it, however great the
permissible margin
of mistake, the essential point remains that the tribunal has
a derived authority, derived, that is from statute, at some point,
and to be
found from a consideration of the legislature, the field within which it
operates is marked out and limited. .. Equally,
though this is not something
that arises in the present case, there are certain fundamental assumptions which
without explicit
treatment in every case necessarily underlie the remission of
power to decide such as (I do not attempt more than a general reference,
since
the strength and shade of these matters, will depend on the nature of the
tribunal and the kind of questions it has to decide)
the requirement that a
decision must be made in accordance with the principles of natural justice and
good faith .... The question
what is the tribunal area, is one which it has
always been permissible to ask and to answer and it must follow that an
examination
of its extent is not precluded by a clause conferring
conclusiveness, finality or unquestionability on its decisions." (Anisminic
case, page 243 and 244.)
In the case of the Land Redemption Ordinance No. 61 of 1942 section 3 (4) sets
out that "the question whether any land which
the Land Commissioner is
authorised to acquire under subsection 1 should or
69
should not be acquired shall,
subject to any regulation made in that behalf be determined by the Land
Commissioner in the exercise
of his individual judgment" and "every such
determination of the Land Commissioner shall be final". It was held by
this
Court in Herath v. Attorney-General [67 (1958) 60 N.L.R. 193.] and in Ladamuttu Pillai v.
Attorney-General (supra) that this
subsection did not make final any decision
made by the Land Commissioner in excess of the powers conferred by subsection 1.
In both these cases the Privy Council expressed agreement with this view. In the
case of Government Agent of Northern Province v.
Kanagasunderam (supra) the
Government Agent acquired a portion of a building, although he was requested by
the defendant to acquire
the whole of the building. It was held that, as section
44 of the Ordinance provided that a part of a house shall not be compulsorily
acquired, if the owner desires that the whole should be taken, the taking of
possession of a part only of the building was unlawful
and that the defendant
was entitled to an injunction restraining the Government Agent or his agent from
taking possession pending
the determination of the action.
This question of the effect of a "conclusive evidence" clause was considered by the Supreme Court in India in the case of Smt: Somawanti et al v. The State of Punjab (supra) which was also a case under the Land Acquisition Act of India. Section 6(3) of the said Act states that a declaration made by the Government that a particular land is needed for a public purpose or for a company shall be conclusive evidence that the land was so needed. Mudholkar, J. who delivered the main judgment in the case said, "the conclusiveness is not merely regarding the fact that the Government is satisfied but also with regard to the question that the land is needed for a public purpose or for a company. Then again the conclusiveness must attach not merely to the need but also to the question whether the purpose is a public purpose or what is said to be a company is a company. There can be no need in the abstract. It must be a need for a public purpose or a company." (at page 160).
He then went on to say that the finality however was subject to one exception. "That exception is that if there is a colourable exercise of power, then the declaration will be open to challenge at the instance of the aggrieved party ... If it appears that what the Government is satisfied about is not a public purpose but a private purpose or no purpose at all, the actions of the government would be colourable as not being relateable to the power conferred upon it by the Act and its declaration would be a nullity," (page 164) and that the declaration being vitiated by fraud it could not be protected by subsection 3 of section 6.
70
The Courts therefore can inquire into the question as to whether the Minister's decision is ultra vires the power or authority vested by law in him. If it is, then it is null and void and will remain as if it had never been done at all. Every case, in which the vires of an administrative action is challenged, involves the problem of statutory interpretation. There are really three main rules of interpretation, though with a number of sub rules, explanatory riders and technical rules. The first is the "Literal rule" which directs that plain words must be given their plain meanings. This is summed up in the words of Jervis, C.J. "If the precise words used are plain and unambiguous, in our judgment, we are bound to construe them in their ordinary sense even though it does lead in our view of the case, to an absurdity or manifest injustice." 68
Clearly a strict application of this rule would be manifestly unjust where it causes injustice and leads to absurdity and so 'The Golden Rule" was developed. This means that the literal meaning of the words can be modified to avoid injustice or absurdity. This was done by Lord Reid in the case of Luke v. Inland Revenue Commissions 69 where he said "To apply the words literally is to defeat the obvious intention of the legislature and to produce a wholly unreasonable result. To achieve the obvious intention and to produce a reasonable result we must do some violence to the words . . . The general principle is well settled. It is only when the words are absolutely incapable of a construction which will accord with the apparent intention of the provision and will avoid a wholly unreasonable result, that the words of the enactment must prevail."
The third rule which is the oldest and also most suited to modern conditions is what is known as the "Mischief Rule". It is as follows: " that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:
(1st) what was the common law before the making of the Act;
(2nd) what was the mischief and defect for which the common law did not provide;
(3rd) what remedy the Parliament hath resolved and appointed to cure the disease
of the common law; and
(4th) the true reason of the remedy;
and then the office of all the judges is always to make such construction as
will suppress the mischief and advance the remedy and
to suppress subtle
inventions and evasions for continuance of the mischief and pro private
Foot notes
68 (1851) 11CB 378 at 391.
69 (1963) I All E.R. 655 at 664.
71
commodo and to add force and life to the cure and remedy according to the true
intent of the makers of the Act pro bono publico."
(Heydon's case- supra.)
Formulated by the Barons of the Exchequer nearly four centuries ago it has been
accepted, approved and followed ever since. Three
centuries later Lindley, M. R.
said, "In order properly to interpret any statute it is as necessary now as it
was when Lord
Coke reported Heydon's case to consider how the law stood when the
statute to be construed was passed, what the mischief was for
which the old law
did not provide, and the remedy provided by the statute to cure that mischief. It was applied in 1960 in the case
of Smith v. Hughes.11 In that case it was
held that prostitutes who attracted the attention of passers-by from balconies
or windows
were soliciting in a street."
Lord Parker, C.J. said in that case "For my part I approach the matter of
considering what is the mischief aimed at by this
Act. Everybody knows that this
was an Act intended to clean up the streets to enable people to walk along the
streets without being
molested or solicited by common prostitutes." The learned
Solicitor-General submitted that the words here were plain and unambiguous,
and
that we should give them their plain meaning. If however, there was any
ambiguity in the sense that the words should be read
subject to any or all of
the presumptions of law in regard to excess of jurisdiction and ulterior
purpose, then we should apply
the Mischief Rule and interpret the enactment so
as to suppress the mischief and advance the remedy.
He submitted that for this purpose we should look at the Hansard particularly at
the Minister's speech and ascertain the intention
of Parliament and to find out
what the mischief was that was sought to be remedied and the history of the
legislation. For my part
I am of the view that we ought not to do so unless
there is such great ambiguity in the words that looking at Hansard alone would
be decisive. In the case of Beswick v. Beswick (supra) Lord Upjohn said "For
purely practical reasons we do not permit debates
in either House to be cited .
. . Moreover in a very large number of cases such a search even if practicable
would throw no light
on the question before the Court. But I can see no
objection to investigating in the present case the antecedents of S.C. 56."
and
he proceeded to refer to the proceedings of the Joint Committee of both Houses
on the Consolidated Bills, merely to see that
there was nothing in the
proceedings which weakened the normal presumption against alteration of the
previous law by the Consolidating
Act. This was considered quite exceptional.
Foot notes
70 In re Mayfair Property Co. (1898) 2 Ch. 28 at 35.
71 (1960) 1 W.L.R. 830.
72
The general rule today is quite clear. Parliamentary history of legislation is
not a permissible aid in construing a statute. Quite
obviously an Act is often
the product of compromise, and the interplay of many factors, the result of this
being expressed in a
set form of words. The question may well arise in such a
case as to whose intention it is that is thought to be relevant. Lord Denning's
suggestion that the intention of Parliament and that of the Ministers should be
considered was unanimously condemned by the Judges
of the Court of Appeal in
Magor and St. Mellons, R.D.C. v. Newport Corporation (supra).
In that case Lord Simmonds said, " It is sufficient to say that the general
proposition that it is the duty of the Court to
find out the intention of
Parliament not only of Parliament but of Ministers also, cannot by any means be
supported. The duty of
the Court is to interpret the words that the legislature
has used. These words may be ambiguous, but even if they are, the power
and duty
of Court to travel outside them on a voyage of discovery are strictly limited",
(page 841).
In the case of Assam Railways and Trading Co. Ltd. v.I.R.C.72 Lord Wright in the
Privy Council with the other Lords concurring said
"that the language of a
Minister of the Crown in proposing in Parliament a measure which eventually
becomes law is inadmissible
..." Reports of Committees and Commissions may
however be admitted for the limited purpose of finding out what was the mischief
intended to be remedied, but not to show what the intention of Parliament was.
In the case of Kodakan Pilla v. P. B. Mudannayake 73 Lord Oaksey said " It is
common ground between the parties and in their
Lordships' opinion the correct
view that judicial notice ought to be taken of such matters as the reports of
Parliamentary Commissions
and such other facts as must be assumed to have been
within the contemplation of the legislature when the Acts in question were
passed." The Report of the Soulbury Commission 1945 was looked into in that
case, where the question involved was whether
certain legislation was ultra
vires or not. So also in another case when the question as to whether mens rea
was an essential element
of a particular statute Lord Reid who dissented in the
case thought that it was necessary to go behind the words and look at other
factors .74
As far as the mischief which was sought to be suppressed is concerned I accept
the learned Solicitor-General's statement as to what
it was; but I reject the
invitation to go on a voyage of discovery to ascertain the intention of
Parliament. It must be determined
primarily from the words used in the
enactment.
Foot notes
72 (1935) AC 445 at 448.
73 (1953) 54 N.L.R. 433.
74 Warner v. Metropolitan Police Commissioners (1968) 2 W.L.R. 1303,
73
In this connection Mr. Jayewardene mentioned the changes that had taken place in the Committee Stage of the Bill. I am equally clear that we cannot construe the Act by reference to these changes or to the original Bill. 'The alterations made in it during its passage through Committee are as the Court said in R. v. Hertford College wisely, inadmissible to explain it". In Herron v. Rothmines ei Commissioners, Lord Halsbury, L.C. said with reference to the construction of a local Act "I very heartily concur in the language of Fitz Gibbon, L.J. that we cannot interpret the Act by reference to any Bill nor can we determine its construction by reference to its original form.73"
Undoubtedly for a proper application of the "Mischief Rule" of interpretation it is necessary for us to look at what the previous law was, what the mischief intended to be suppressed was and what remedy has been provided by Parliament. In regard to the first we do not need to look at what this Member or that Minister said in Parliament to find out what the law was. The Judges are the best persons who should know what the law was or at least they ought to. As for the second, if the mischief had reached such proportions as to require Parliamentary intervention then it would be a matter of common knowledge and Judges would be well aware of it. Lord Parker said in Hughes v. Smith, (supra) "Everybody knows ..." As I have said I am however, prepared to accept the statement from the bar by the learned Solicitor-General as to what the mischief intended to be remedied in these cases was. What the remedy provided by Parliament was is a matter which has to be gathered by what it has said in the enactment itself.
In my view here the words are clear, precise and unambiguous. We add or subtract nothing from them. We are only construing them subject to "the fundamental assumptions which without explicit restatement in every case necessarily underlie every remission of a power and which are as much part of a statute as its express words, namely that they shall be exercised bona fide and for the purposes for which they were entrusted by Parliament to such repository. This is so not because the words are not clear but because the law requires it. As stated earlier the fundamental principle of administrative law is the doctrine of ultra vires and the source of this principle is the common law as laid down in decided cases by the Judges.
If Parliament intended that these fundamental principles should not apply in
this case it should have said so in clear and unmistakable
language, or it must
arise by necessary implication from the words used in the enactment. " To alter
any clearly established
principle of law a distinct and positive enactment is
necessary."76 And again " If it is clear that it was the intention
of the
legislature in passing a new statute to abrogate the
Foot notes
75 Craies on Statute Law 7th edition 129.
76 Ibid 121.
74
previous common law on the subject, the common law must prevail, but there is no presumption that a statute is intended to override the common law. In fact the presumption, if any, is the other way for the general rule in exposition is this, that in all doubtful matters and where the expression is in general terms, the words are to receive such a construction as may be agreeable to the rules of the common law in cases of that nature for statutes are not presumed to make any alteration further or otherwise than the Act does expressly declare". [77 Ibid 339.]
There are here no express words taking away the ultra vires rule. Nor can I find anything in the words from which this can be necessarily implied. In fact all the evidence in the words of section 24 points in a contrary direction. The omission of the words "purported" or the use of some such words as "ostensible" or "apparently" in relation to the words "act done, intended or about to be done" and the inclusion of the words "in the exercise of any power or authority vested by law" can only mean that the rule in regard to ultra vires was intended to apply.
The learned Solicitor-General submitted that the mischief which was sought to be remedied was the delay caused in the implementation of Government policy particularly in regard to village expansion and land reform, by the filing of these actions and the issue of interim injunctions restraining the Minister or other state servant from proceeding with the acquisitions. He said that actions were filed on the flimsiest grounds of mala fides which is easy to allege but almost impossible to prove, interim injunctions obtained for the mere asking, and then various devices were adopted to keep the case going in the hope that a change of Government at the next General Elections would result in the acquisitions being abandoned. He said that there were eighty odd such cases pending in the Courts in the island today.
Even if there is some ambiguity in the words of the enactment, and I say that in this respect there is none, then although the rule in regard to the Court adopting a construction which will suppress the mischief and advance the remedy is a valid one, yet in this case there is another equally valid rule of construction which prevents us from doing so, namely that a construction should be adopted which will prevent the abuse of power. To give such a construction would be to enable the repository of the power when acquiring land for a public purpose to do so for an ulterior purpose or no purpose at all and even to act corruptly, capriciously or arbitrarily.
75
I do not say that Parliament cannot confer such arbitrary powers. It can. But if it does so it must do it in clear and unambiguous language or at least use such words as leave no room for doubt that it has done so by necessary implication. As I have pointed out there are no such words here. "Enactments which confer powers are so construed as to meet all attempts to abuse them, and so the courts will always be ready to inquire into the bona fides of a purported exercise of a statutory power. The modern tendency seems to be against construing statutes so as to leave the person or body upon whom a power is conferred absolutely untrammelled in the exercise of it."78
In the case of Padfield and others v. Minister of Agriculture, Fisheries and Food et al. 79 the House of Lords decisively rejected the Minister's claim to unfettered discretion. In this case which has been hailed as a landmark in British Administration Law (see The Myth of Unfettered discretion80) the statute provided for complaints by milk producers against the Milk Marketing Board to be referred to a committee of investigation "if the Minister in any case so directs". The Minister refused to refer a complaint. The House ordered him to do so. In the course of the speeches Lord Pearce said, "He (the Minister) cannot simply say albeit honestly 'I think that in general the investigation of complaints has a disruptive effect on the scheme and leads to more trouble than (on balance) it is worth, I shall therefore never refer anything to the committee of investigations'. To allow him to do so would be to give him power to set aside for his period as Minister the obvious intention of Parliament namely that an independent committee set up for the purpose should investigate grievances and that their report should be available to Parliament." (at page 714) So here we cannot adopt an interpretation under the guise of suppressing the mischief and advancing the remedy which will in effect give the repository of the power absolute and arbitrary power which Parliament never did give and can never be intended to have given unless the words used clearly say so. I do not wish to be understood as saying that the Minister has done or will act in this unreasonable way. All I am saying is that to adopt any other interpretation would only make it possible for anyone, so minded, to do so. We cannot do this without the express or necessarily implied permission of Parliament. When Parliament has chosen not to say that no injunction shall issue whether the act is done bona fide or mala fide it is beyond our power to say so.
Foot notes
78Maxwell - Interpretation of Statutes 146.
79(1968) 1 All E.R. 694.
80 (1968) L.Q.R. 166.
76
It may be that there have been cases which have dragged on for some years. But there are built-in safeguards against delay. The Land Acquisition Act provides in section 51A for the giving of priority to cases under the Act and State Counsel can always insist on this right. As I have pointed out at least in two of these cases trial had been fixed within two weeks of the filing of answer and objections. In England in one case a trial was concluded within three days81 and in another within three weeks82 from the date of the issue arising. The streamlining of procedures under the legal reform carried out by the Minister of justice and the new sense of urgency which now pervades our courts in regard to the avoidance of delays will all lead to elimination of further delays in the disposal of cases.
Interim injunctions are only issued ex parte where there are strong grounds and where all necessary facts are disclosed, and the plaintiff shows that there is a serious matter to be tried83 and where irreparable harm or damage would be done to him if the interim injunction is not issued.
In considering this question of harm or damage it is a well-recognised principle of injunction law that the balance of convenience to the parties and the nature of the injury which the defendant on the one hand, would suffer if the injunction was granted and he should ultimately turn out to be right and that which the plaintiff on the other hand might sustain if the injunction is refused and he should ultimately turn out to be right, should be taken into consideration.84 Quite obviously different considerations would apply where the state is a party than when it is a mere matter between private individuals. It may be that when an act is done in the interests of the state and the welfare of the people as a whole some harm or damage would inevitably be the result to purely private interests and in such case the rights of the individual have to be sacrificed in the larger interests of the community as a whole. So also in times of emergency or great national cataclysms such as floods, famine, and pestilence urgent and immediate action would be necessary. In such cases too, applying the principle of "balance of convenience" the courts would not cause delay by issuing interim injunctions even if some individual or individuals have to suffer irreparable harm or damage. Where the material relevant to the
Foot notes
81 Marsh (Wholesale) Ltd. v. Customs and Excise Commissioners (1970) 2 Q. B 206.
82 Lee v. Department of Education and Science (1967) 66 L.G. R. 211.
83 D. S.
Dissanayake v. Agricultural and Industrial Corporation (1962) 64 N.L.R .283.
84 Yakkaduwe Sri Pragnarama Thero v. Minister of Education (1962) 64 N.L.R. 283.
77
substantial dispute is wholly or mainly relevant to the application for interim relief the court can proceed to trial and inquiry into the application for interim relief at one and the same time 85 where the defendant is prejudiced by the grant of an interim injunction he can come by way of appeal to this Court 86 or in urgent cases by way of an application in revision as was done in two of these cases. 87 I therefore see little merit in the submission that some delay in the implementation of government policy in the circumstances of these cases is such a vital factor that we should give to the section an interpretation in order to avoid delays even if such an interpretation should mean that the executive would have absolute and autocratic powers to act as it pleased.
Indeed as Mr. Athulathmudali submitted we are prevented by the Republican Constitution from giving an interpretation which would give the impression of promoting or sanctioning acts done corruptly and mala fide and thereby helping to promote the moral and cultural depravity of the people. Section 16(1) sets out the principles of state policy which should guide the making of laws and the governance of Sri Lanka which includes the administration of justice. Section 16(2) (f) sets out one of these principles as follows "raising the moral and cultural standards of the people". One cannot do these by setting the seal of judicial or for that matter legislative approval on corrupt or mala fide acts or by seeming to do so and thus opening the door wide for the commission of such acts.
The learned Solicitor-General submitted that there was not one single case which had succeeded on the ground of mala fides. Mr. Jayawardene said that when objections were pressed the government had abandoned the acquisitions and these matters did not therefore come up for decision. The Solicitor-General said that when the law officers of the state found that the acquisition were not justified they had advised against acquisition. This may be one reason why there are no such cases.
Another was suggested by Lord Radcliff in the East Elloe case when he said "Indeed I think it plain that the Courts have often been content to allow such circumstances (i.e. the grounds for invalidity) if established to speak for themselves rather than to press the issue to a finding that the group of persons responsible for the exercise of the power have actually proceeded in bad faith" - (at page 870).
Foot notes
85 Richard Perera & Others v. Albert Perera (1963) 67 N.L.R. 445 al 449. Murugesu
v. N. D. A. P. Co-operative Union Lid.
(1952) 54 N.L.R .517.
86 The Ceylon Hotel Corporation v. V. C. Jayatunge (1969) 74 N.L.R. 442.
87 SC
290/74 and 291/74.
78
If the Solicitor-General's submission is restricted to mala fides in the sense of corruptly and fraudulently it may be that it would be difficult to find a case where such an allegation had succeeded. But if it is used in the wider sense of covering most of the grounds of invalidity in the sense of fraud on the statute or the Roman Dutch Law concept of fraudem legem then there are many cases to be found in the books. We have in the course of the argument been referred to a very large number of cases from many jurisdictions and in some of which ouster clauses properly so called were involved. It is not necessary to refer to all of them but a few call for comment.
It is best to begin with the recent triology of Ceylon cases dealing with the emergency regulations. Regulation 18(1) of the Emergency (Miscellaneous, Provisions and Powers) Regulations No. 6 of 1971 enabled the Permanent Secretary to the Minister of Defence and External Affairs to make an order for the detention of a person if he is of opinion that such order is necessary with a view to preventing that person from acting in any manner prejudicial to the public safety and to the maintenance of public order.
Regulation 19(1) of these regulations confers power on any police officer, any
member of the Ceylon Army, Royal Ceylon Navy or Royal
Ceylon Air Force, or the
Commissioner of Prisons and certain other persons to search, detain for purposes
of such search or arrest
without warrant any person
(a) who is committing an offence under any Emergency Regulation
or
(b) who has committed an offence under any Emergency regulation
or
(c) whom he has reasonable ground for suspecting to be concerned in
or to be committing or to have committed an offence under any Emergency
Regulation.
Regulation 18(10) sets out that an order for detention made by the Permanent Secretary under Regulation 18(1) shall not be called in question in any court on any ground whatsoever. Regulation 55 excludes the application of section 45 of the Courts Ordinance. Then section 8 of the Public Security Ordinance (Cap. 40) states "No emergency regulation and no order, rule or direction made or given thereunder shall be called in question in any Court". Regulation 18(10) therefore is merely repetitive or tautologous.
79
In the first of these cases (supra) one Hirdaramani was detained by order, made
by the Permanent Secretary under Regulation 18(1),
His detention was challenged
by a Writ of Habeas Corpus on the ground that the detention was not for a
purpose authorised in the
regulation but for an extraneous of ulterior purpose
namely the facilitating of the investigation into certain contraventions of
the
Exchange Control Act and other laws and therefore mala fide. A Divisional Bench
of three Judges of this Court held unanimously
on a consideration of affidavit
evidence, that mala fides on the part of the Permanent Secretary had not been
established as a
question of fact. It was also held by de Silva, S. P. J. and
Samarawickreme, J. (Fernando, C. J. dissenting) that Regulation 55
was not
applicable to persons unlawfully detained.
Silva, S. P. J. cited by way of example a person who was sentenced to
imprisonment for attempted murder of the Permanent Secretary
and who in prison
made known his intention to do what he had earlier failed to achieve when he got
out of jail. Then if on his
release the Permanent Secretary made an order for
his detention under Section 18(1) for his own personal safety it would not be
open to this Court to say that it will not question this order because of the
prohibition contained in Regulation 55. Samarawickreme,
J. cited a more
felicitous example. He said "For example, the order would not be in terms of the
Regulation and would be a
sham if the Permanent Secretary were to make it for a
purely private purpose such as the detention of the rival to the woman he
loved"
- (at page 112).
H. N. G. Fernando, C.J. thought that since the power was vested in a person
specially selected by the Prime Minister and one in
whom she would have had
absolute confidence and since there was appeal to her there were sufficient
safeguards against abuse and
so Regulation 55 was intended to be absolute. He
also thought that here we had done something which in the words of Lord
Wilberforce
had so far not been done in England. This of course was dependent on
the presumption that the Permanent Secretary would always act
in good faith. But
if he did not, what then? Could it be said that the intention of the
Governor-General was that even such an
act was beyond the reach of the Courts?
Whatever be the degree of confidence one may have "Every discretion is capable
of
unlawful abuse, and it is the Court which must decide where this point is
reached. Only within its lawful boundaries is discretion
free". [
88 Wade- Administrative Law 3rd Edition 78.]
80
The second of these cases was Gunasekera v. de Fonseka
[89 (1972) 75N.L.R. 246.]. Here another
Divisional Bench of this Court
had no difficulty in holding that the arrest of a
detainee by a Police Officer on the orders of his superior was unlawful because
he himself had no reasonable ground for suspecting the detainee to be concerned
in or to be committing or have committed an offence.
On the very day of his
release on the orders of the Supreme Court the detainee was again arrested on an
order made by the Permanent
Secretary acting under section 18(1) while the
detainee was in the Colombo Law Library having consultations with his lawyers.
This gave rise to the third of these cases- Gunasekera v. Ratnavale (supra).
Another Divisional Court held unanimously that the
petitioner had not
established mala fides on the part of the Permanent Secretary. They then went on
to consider the exclusion clauses.
Alles, J. agreed with the dissenting view of
H. N. G. Fernando C. J. while Wijayatilake, J. agreed with the majority view in
Hirdaramani.
Although the head-note says that Thamotheram, J. was of the same
view as Alles, J. yet I am far from clear in my own mind about
this. It is true
that he said at page 366 " I have quoted these passages from the three Lords in
the East Elloe case who held
in the face of a section like 8 of the Public
Security Ordinance it was not open to Court to inquire into an allegation of
mala
fide when the determination or order in question was prima facie valid.
With all respect I agree with their reasoning".
But earlier he said "Where the connection between the subject-matter of the
power to be exercised and the purposes prescribed
by a statute is expressed to
be determinable by the Competent Authority all that the Court can do is to see
that the power which
it claims to exercise is one which falls within the four
corners of the powers given by the legislature and to see that those powers
are
exercised in good faith" - at page 363. Then he goes on to say that challenging
an order under section 18(1) is almost
an impossibility and that therefore
judicial review has been reduced to a formality.
But he concludes this part of his judgment by saying "But it is clear that the
jurisdiction of the Court is only taken away
provided that the order on which
the government is relying is an order 'made under the Ordinance'. It must be
made by the detaining
authority in the proper exercise of its power. It would
not be an 'an order' made under the Ordinance if it was made merely in the
colourable exercise of its power or if the detaining authority exceeded the
powers given to it under the Ordinance ... The order
must not be made for an
ulterior purpose, a purpose which has no connection with the security of the
State or the efficient prosecution
of the war".
81
These three cases dealt with Emergency Regulations, like the "peculiar"90 case
of Liversidge v. Anderson91 during the war
when the House of Lords, by some
process of mental gymnastics, held that the words "if a man has" are equivalent
to saying
"if a man thinks he had" thus turning an objective test into a purely
subjective one. These were cases which related to
an unprecedented state of
emergency in Ceylon, when Courts are prone to give an interpretation which will
not unduly hinder the
government in taking measures for the security and safety
of the state. Nevertheless it is clear that these three cases preserved
the
right of the Court to intervene in the case of ultra vires action even though
wide language was used in the privative clauses.
In two cases the Supreme Court in India held that mala fides had been
established against Chief Ministers of State Governments,
one being an act of
political revenge and the other out of personal animosity. In the case of C. S.
Rowjee v. The State of Andhra
Pradesh 92 the question involved was the nationalisation of bus services in particular areas in the State. A Committee
had laid
down criteria for determining the- area to be taken up for
nationalising the bus services and had laid down the order in which this
should
be done. This order was accepted by the corporation after detailed consideration
in February 1961 and was embodied in its
annual report dated 24.3.1962 and was
published in April, 1962.
Under the Act it was the Corporation which had to form the "opinion" that for
the purpose of providing an efficient, adequate,
economical and properly coordinated transport service it should be run and operated by the State
Transport undertaking and to be
"satisfied" that such services should in the
public interest be provided for any area or route. The fact that the Corporation
had accepted the report of the Committee and had published it showed that they
had formed the "opinion" and were "satisfied"
that nationalisation should be
proceeded with in the areas in the order set out.
The General Elections were held in the State in February, 1962. The Chief
Minister and his party' candidates were contested by the
bus operators in
Kurnool. The Chief Minister assumed office on 12th March, 1962, and on 19th
April, 1962 he had a conference with
the corporation officials and he suggested
that the order in which the areas should be taken up for nationalisation should
be changed
and that the area in which the plaintiffs Operated their buses should
be taken up first.
Foot notes
90 Ridge v. Baldwin (1964) A.C. 40 at 73.
91(1942) A.C. 206.
92 (1964) 51 A.I.R. S.C. 962.
82
On 4.5.1962 the Corporation adopted a resolution changing the order. The
plaintiffs then brought this action challenging the action
on the ground of mala
fides in that the action was taken on account of political rivalry and in order
to ruin financially the Chief
Minister's political opponents and not for the
purpose of the Ordinance.
Ayyangar, J. in the course of his judgment said at page 972 "The first matter
that stands out prominently in this connection
is the element of time and the
sequence of events". He went on to say "What the Court is concerned with and
what is relevant
to the inquiry in the appeals is not whether theoretically or
on a consideration of the arguments for and against now advanced the
choice of
Kurnool as the next district selected for nationalisation of transport was wise
or improper but a totally different question
whether this choice of Kurnool was
made by the Corporation as required by section 68(c) or whether this choice was
in fact and
in substance made by the Chief Minister and implemented by him by
utilising the machinery of the Corporation as alleged by the appellants.
On the
evidence placed in the case we are satisfied that it was as a result of the
conference of 19.4.1962 and in order to give
effect to the wishes of the Chief
Minister expressed there that the schemes now impugned were formulated by the
Corporation"
- (at 978).
It is possible to regard this case as one where an authority entrusted with a
discretion had in the purported exercise of its discretion
acted under the
dictation of another body or person, in which case such an act would also be
invalid. Yet in this case the Chief
Minister had claimed in Parliament the right
to lay down general principles of policy for the guidance of the Corporation and
in
changing the order he was acting for purposes of political revenge and to
ruin his political opponents financially, and not for
the purposes of the Act.
The other case is Pratap Singh v. The State of Punjab (supra) where the Supreme
Court held that the act in question was not for
the purpose of the enabling
statute but in order to wreak personal vengeance. The Petitioner in that case
was a Civil Surgeon in
the employ of the State Government and in 1960 he fell
from favour of the Chief Minister over his treatment of the Chief Minister's
son
and because he was not prepared to accommodate the Chief Minister's wife in her
demands for drugs. He therefore decided to
retire and in December he was granted
leave preparatory to retirement on reaching 55 years which was on 15.6.1961 and
this grant
of leave was gazetted on 21.1.1961.
On 15.1.1961 a weekly, The Blitz carried an article against the Chief Minister
and which contained all the allegations of fact relied
on by the petitioner in
the case. On 18.3.1961 his wife wrote to The Blitz confirming the allegations
and in the same month she
circulated among the members of Parliament all these
allegations. On 3rd June 1961 the
83
Chief Minister who was also the Minister of
Health revoked the order granting leave, made order calling the petitioner back
to service
and suspending him pending inquiry into certain allegations in regard
to his conduct while he was in service.
The Supreme Court held by a majority of three to two that the impugned orders
were made to wreak vengeance and that the impugned
orders were vitiated by male
fides. In the course of the judgment it was said "the attack on the orders may
be viewed from
two related aspects - of ultra vires pure and simple and secondly
as an infraction of the rule that every power vested in a public
authority has
to be used honestly, bona fide and reasonably . . . where a power is exercised
for a purpose or with an intention
beyond the scope of or not justified by the
instrument creating the power in legal parlance it would be a case of fraud on a
power
though no corrupt motive or bargain is imputed (page 82).
In the Canadian case of Roncarelli v. Duplessis (supra) the appellant was the
owner of a restaurant in a busy section of Montreal
and for a continuous period
of 34 years had a liquor licence which was necessary for the financial success
of his restaurant business.
He became involved with a religious sect known as
the Witnesses of Jehovah. There was violent reaction to this sect and meetings
were broken up, property damaged and individuals ordered out of communities by
the Roman Catholics. The provincial administration
decided to act and
large-scale arrests were made of persons selling the publications of the sect
for peddling wares without a licence.
Out of about 1000 persons so arrested about 380 were bailed out by the appellant
and promptly went back to selling the publications
again. Mounting resistance
stopped surety bail and imposed cash bail and other means of crushing the
movement were sought. One
of the matters looked into was the appellant's
position and his use of money which he obtained from profits of the liquor
licence,
a privilege given by the State, to further the movement.
Under the Act the cancellation of a permit was in the discretion of the liquor
Commission and the appellant's licence was cancelled
and application for renewal
refused. It was held that the cancellation was malicious and not for the purpose
of the Act by a majority
of six to three. In the course of his judgment Real J.,
said "from the evidence of Mr. Duplessis and Mr. Archaubault (of the
Liquor
Commission) it appears that the action taken by the latter as general manager
and sole member of the Commission was dictated
by Mr. Duplessis as the
Attorney-General and the Prime Minister of the province and that step was taken
as a means of bringing
to a halt the activity of the Witnesses, to punish the
appellant for the part he had played, not only by revoking the existing licence
but in declaring him barred from one for ever, and to warn others that they
similarly would be stripped of provincial privileges
if they persisted in the
activity ..." (pages 133,134).
84
He continued "A decision to deny or cancel such a privilege lies within the
discretion of the Commission, but that means that
decision is to be based upon
weighing of considerations pertinent to the object of the administration. No
legislative Act can without
express language be taken to contemplate an
unlimited, arbitrary power exercise able for any purpose, however capricious or
irrelevant
regardless of the nature or purpose of the statute. Fraud and
corruption in the Commission may not be mentioned in such statutes,
but they are
always implied as exceptions. Discretion necessarily implies good faith in
public duty; there is always a perspective
within which a State is intended to
operate and any clear departure from its lines or objects is just as
objectionable as fraud
or corruption." (Page 140).
"What could be more malicious than to punish this licensee for having done what
he had an absolute right to do in a matter
utterly irrelevant to the Liquor Act?
Malice in the proper sense is simply acting for a reason and purpose knowingly
foreign to
the administration, to which was added here the element of
intentional punishment by what was virtually vocation outlawing . .."
(page
141), and again "a punishment which inflicted on him as it was intended to do,
the destruction of his economic life
as a restaurant keeper within the
province."
It was also held that since it was a malicious act no malice under section 88 of
the Canadian Civil Procedure Code was necessary
and the defendants were ordered
to pay $ 33,123.53 cts. as damages. It was an action in tort like the Ceylon
case of A. K. David
v. M. A. M. M. Abdul Cader (supra) which held that an
applicant for a statutory licence to run a cinema was entitled to damages
if
there has been a malicious misuse of the statutory power to grant that licence.
But the essential thing in both cases was that
a malicious misuse of
discretionary power was held to be ultra vires and null and void, where the
public authority was acting unlawfully
but without committing an actionable
wrong or tort then the aggrieved party would only be entitled to a declaration.
But if the
public authority acted unlawfully and also committed an actionable
breach of duty, such authority would also be liable in damages.
Australian Courts too have taken the same view. In the case of the Municipal Council of Sydney v. Compwell et al [93 (1925) A.C. 338.] the Municipal Council had statutory power to acquire land for extending streets and also for carrying out improvements in or remodeling any portion of the city. In June the Council acquired land for the extension of a street and an injunction was issued on the ground that the acquisition was not for that purpose but for the purpose of getting a benefit from the increment in the value of the land in consequence of the acquisition.
85
In November another resolution was adopted to acquire the identical land for the improvement and remodelling of the area in the vicinity as well as for the extension of the street. At that time the Council had no plan for improvement or remodelling the area and no such plan was ever considered or proposed to the Council. It was established in evidence that [he wording of the November resolution was suggested by the Council's solicitors. The Privy Council held that the new proposal was also for the identical purpose, that the area affected was identical and that the acquisition was invalid because "a body such as the Municipal Council of Sydney, authorised to take land compulsorily for specified purposes will not be permitted to exercise its powers for different purposes and if it attempts to do so Courts will interfere"- (at page 343).
In King v. Hickman ex parte Fox & Clinton 94 the Court had to consider the effect of an ouster clause. This was in the widest possible terms and set out that a decision of the Board "shall not be challenged, appealed against, quashed or called into question or be subject to prohibition, mandamus or injunction in any Court on any account whatever." The question was whether a particular matter was within the ambit of the "coal mining industry." The Court held that any decision which upon its face appears to be within power and is in fact a bona fide attempt to act in the course of its authority shall not be regarded as invalid. But prohibition would lie in respect of a decision of a Board on an erroneous finding that the matter was within the ambit of that industry.
The position is identical in South Africa where as in Ceylon the Roman Dutch Law prevails. In the case of Van Eck N.O. and Van Rensburg N.O. v. Etna Stores 95 certain quantity of bags of rice were seized under a war time measure which gave power to effect such seizures as may afford evidence of a contravention of any prohibition or failure to comply with any requirements imposed by virtue of these regulations. The seizure however though ostensibly for this purpose was in reality to obtain delivery of the rice for the furtherance of the food distribution scheme. The Court held that it was illegal although officers had acted out of good motive.
Davies A.J. A., said, "To pretend to use a power for the purpose for which alone
it was given, yet in fact to use it for another
is an abuse of that power and
amounts to mala fides. For to profess to make use of a power which has been
given by a statute for
one purpose only, while in fact using it for a different
purpose is to act in "fraudem legis" as distinct from merely
using it for
another purpose which is "contra legem".
Foot notes
94 70 C.L.R. 598.
95 (1947) 2 S.A.L.R. 984.
86
The law in regard to where Courts will interfere with the exercise of its revisionary powers was set out in the case of "The African Reality Trust Ltd., v. Johannesburg Municipality (supra) Wessels J., said at page 913, "We also agree with him ( Bistowe J.,) where he says, "If a public body or individual exceeds its powers the Courts will exercise a restraining influence and if while ostensibly confirming itself within the scope of its powers, it nevertheless acts mala fide or dishonestly or for ulterior reasons which ought not to influence its judgment or with an unreasonableness so gross as to be inexplicable except on the assumption of mala fides or ulterior motive, then again the Courts will interfere. But once this decision has been honestly and fairly arrived at upon a point which lies within the discretion of the body or person who has decided it, then the Court has no functions whatever."
In the case of The Minister of
Justice et al. v. Musarurwa and Nkomo et al.
(supra) the Minister by using the provisions of two
Acts and doing acts
permitted by each achieved the purpose of detaining a person which he could only
have done under a third Act.
It was held that this was unlawful as it was for an
ulterior motive and/ or in excess of his powers although it was done bona fide.
Two decisions of the House of Lords in England loomed large in the argument
before us. The first was Smith v. East Elloe (supra),
where the validity of the
orders for compulsory purchase of land was challenged as being wrongful and in
bad faith. Under the 1946
Act an aggrieved party could question the order within
a period of six weeks under para 15 of the schedule on the ground that the
authorisation of the compulsory purchase, "is not empowered to be1 granted"
under the relevant Act or that the requirements
of the 1946 Act have not been
complied with. Para 16 provided "subject to the provisions of the last foregoing
paragraph a
compulsory purchase order. . . shall. . .not be questioned in any
legal proceedings whatever."
The plaintiff did not question the order within the six weeks period. Applying
the literal test Viscount Simmonds, Lord Mortor of
Heirylon and Lord Radcliff
were all of the opinion that the meaning of the words used in para 16 was too
plain to be qualified
by any presumption in regard to bad faith prayed by the
plaintiff. The minority, Lord Reid and Lord Sommerville of Harrow held that
they
were not plain enough to deprive a person defrauded of his remedy.
Thus the House of Lords held in this case that all that the Court could do was to follow the plain meaning of the plain words of the ouster clause though there were numerous conflicting opinions on what the plain meaning was, and though a minority of their Lordships were prepared to hold that there was an implied exception for fraud, none of the relevant case law relating to the Courts' disregard of "no certiorari clauses" and issuing certiorari to quash for excess of jurisdiction and other decisions in regard to the fundamental principles of enforcing jurisdictional limits were cited or
87
considered. "It cannot often be
that the House of Lords decides an appeal without any mention of the main
principle of law
which ought to be in issue. Had reference only been made to the
decisions holding that a no certiorari clause will not bar certiorari
in case of
fraud, the whole case would have been put in a different light." (H. W. R.
Wade).
In regard to the unsatisfactory results of the case Wade says that according to
this decision, "many kinds of unlawful action
are not challengeable even within
the six weeks. This extraordinary conclusion would allow uncontrollable abuse of
the statutory
power and is clearly contrary to principle."96 This case has now
been repudiated by the House of Lords in Anisminic and has
not been followed by
the Indian Supreme Court.
However, it remains in the books and has recently been followed in the case of Routh v. Reading Corporation, where the Court of Appeal without making any reference to Anisminic, held in 1971 that a compulsory purchase order could not be challenged even on the grounds of bad faith outside the prescribed time limit. In 1973 in the case of Jeary v. Chailey, Orr L.J., said in reference to an ouster clause in the 1962 Town and Country Planning Act that it was common ground that it "does not apply where the planning authority in serving the ejectment notice acted outside the statutory powers conferred upon them." These reports are not available here, but the facts are taken from 1974 March Modern Law Review, page 222.
However, it now seems clear that the ouster clause will be treated as a statute of limitation, though the time allowed was described by Lord Radcliff as being "pitifully inadequate." Wade states "The House of Lords appear to assume that the verbal similarity between the Anisminic and East Elloe types of ouster clauses means that they must be construed similarly. But where access to the Courts is restricted only in terms of time, the Court might reasonably treat the provision merely as a statute of limitation. On this basis the conflicting decisions of the House of Lords could to some extent be reconciled, (supra 50).
In fact earlier in Uttoxeter UDC v. Clarke et al 97 although
on the facts it was held that the acquisition was not for an ulterior
purpose,
para 16 was given a literal meaning but treated as a statute of limitation. The
Court said at page 1321, "In its
wisdom Parliament appears to have decided that
the provision of a limited period within which the action of the authority and
Minister
can be questioned before the Court is a suitable procedure in cases
such as the present and if H.M's lieges do not adopt the procedure
laid down by
Parliament, they cannot seriously suggest that they are suffering if having
Foot notes
96 Wade-at 346, 347.
97 (1962) 1 AH E. R. 1318.
88
laid by and let the time run out, they then seek to develop an argument against the propriety of the order."
This was also the basis on which Wijayatilake J., distinguished the East Elloe Case from the ouster clause he was dealing with in the second Gunasekera case. He said "there the party affected had a right which was not exercised within a set period. In my opinion the rules of interpretation in that case should not be extended to a case such as this where the very right to question the order is challenged and there is no question of prescription."
It was stated in the East Elloe Case that no real hardship was caused to the plaintiff because if she could establish bad faith on the part of any official, she could proceed personally against such official. However, it was from the outset doubtful if on the facts the plaintiff in that case could have succeeded. Her property was requisitioned for housing evacuees in 1940, and a compulsory purchase order was made in 1948 but it was not derequisitioned till 1951. She brought an action for damages in 1952 and succeeded in getting £850/ as damages for trespass. She challenged the compulsory purchase order only in 1954, six years later when her house had been demolished and Council houses had already been put up.
It is also interesting to note that in subsequent proceedings against Pywell the
clerk concerned of the Council and a representative
of the Ministry for damages
for conspiring to injure, her action was dismissed, Diplock J., holding that
there was no conspiracy,
that damages for trespass had already been recovered
and he was not satisfied that the clerk had in fact acted in bad faith. These
cases are not reported but the facts have been taken from S. A. de Smith 98 and
Hood Phillips.99
The effect of this case is, as has been pointed out in Halsbury that, "if
however, public works had been constructed or third
party rights had accrued on
a site subject to a compulsory purchase order, on the assumption that the order
was impregnable, it
is unlikely, despite the decision in Anisminic, that a Court
would countenance a challenge to the order outside the statutory period.100
In the Anisminic case the principle enunciated was that a statute, by providing
that ;a determination or an order of an authority
or body cannot be challenged
in legal proceedings, does not prevent the Courts from holding a determination
or order to be a nullity
for being outside, the jurisdiction of the
Foot notes
98 (1956) 18 Mod.L.R.541
99 Leading Cases in Constitutional & Administrative Law - notes 396,397.
100 Halsbury 4th Edition Vol. 1 pg. 25 para 22.
89
authority or body. In regard to this, the House was unanimous but as to whether the error was within jurisdiction or not the House was divided three to two. In this case, the House of Lords has made it perfectly clear that nullity is the consequence of all kinds of jurisdictional error, e.g. breach of natural justice, bad faith, failure to deal with the right question, and taking wrong matters into account. So much so that Lord Diplock said "Current trends may soon enable us to say of the English system, there is no question that cannot be turned into a jurisdictionable question."
This decision has been criticised for stretching the doctrine of ultra vires to
an extreme point, and that it leaves the Commission
with virtually no margin of
legal error, It comes perilously close to saying that there is jurisdiction if
the decision is right.
But none if it is wrong. D. M. Gordon Q.C., of the
Victoria Bar points out that "one may well conclude that this case supplies
another instance of the familiar phenomenon - a hard case making of bad law".101
Since the amount involved in this case was
£ 4 million it has also been called a
"value judgment."
But the Courts are no more willing to see injustice done by misapplication of
the law than by technical excess of power. The Courts
are entitled to apply the
rule of interpretation against interpreting a law against causing injustice, if
it can be done. Wade
points out, "Whether there is excess of jurisdiction or
merely error within jurisdiction, can be determined only by construing
the
empowering statute which will often give little guidance, it is really a
question of how much latitude the court is prepared
to allow, and when as in the
Anisminic case, a claim worth £ 4 million appears to have been wrongly rejected,
the Court will naturally
be disposed to intervene."102 This will equally be true
where state programmes are involved and will be allowed to prevail
over private
interests if the welfare of the people as a whole demands it.
It may indeed be that the flexibility of the rules of interpretation has enabled judges to import into their decisions their own preconceived notions of what is reasonable and what is fair and just in the social and economic fields, and this may have resulted in a few bad decisions. Friedman points out that "Even without the abundant illustration of contradictory judicial approaches to the interpretation of statutes it is patent that these three rules cancel each other out. By emphasizing either the one or the other the judges can adopt a broad or narrow approach, a reformist or conservative attitude.” 103
Foot notes
101 (1971) 34 Mod. L.R. 11.
102 Canadian Bar Review (1947) 1277.
103 Administrative Justice (1971).
90
In his Tagore lectures in Calcutta University in 1970 104 quoting from Berjafield and Whitmore's principles of Australian Administrative Law he points out the dangers of extending the scope of judicial review indefinitely and in a manner which defies definition. He was there concerned with making a plea for a developed and ascertainable body of administrative law which until recently had been rejected as being alien to the principle of the unity of the common law. Dicey rejected its existence; Lord Hewart Chief Justice, of England dismissed it in 1936 as "continental jargon" and as recently as 1963 Lord Reid found it possible to say in Ridge v. Baldwin "We do not have a developed system of administrative law - perhaps because until fairly recently we did not need it. So it is not surprising that in dealing with new types of cases the Courts have had to grope for solutions."
Indeed in the post-war years the spirit of abnegation and sacrifice of the war
years lingered on and the reconciliation of the country
to a great deal of
Government by executive decree continued and the Courts seemed to have forgotten
the art of applying to "the
ever changing conditions of the world, the never
changing principles of law." So much so that Patrick Devlin, as he then was,
was
prepared to give the common law its "death certificate." This was a period in
which the leading cases made a catalogue
of abdication and error. During the
last few years, however, all this has changed and there has been a reactivation.
In these lectures he makes a plea for a special administrative tribunal and
points out that "The countries with a fully fledged
system of administrative
justice are headed by a tribunal of a status equal with that of the highest
civil court, and staffed by
highly trained lawyers with a lifelong experience in
administration. "(page 80). He notes too that English Law is moving in
the same
direction and quotes the Padfield case as being comparable with the decision of
the council d'Etal in the Affaire Barrell
(1954) where the Minister of Interior
was compelled to disclose the evidence for the exclusion of certain candidates
suspected
to be communists from admission to the National School of
Administration and annulled the decision of the Minister. In fact in two
other
cases Coleen 105 and Ashbridge 106 the English Courts have moved nearer the
American rule of invalidating acts on the ground of insufficiency or of no
evidence.
But Friedman at no time denied the right or the necessity of judicial review of administrative acts but insisted that it should be confined to the two main grounds (a) excess of statutory powers, and (b) objectionable
Foot notes
104 (1956) 9 Current Legal Problems 15.
105 Coleen Properties Ltd. v. Minister of Housing and Local Government (1971) 1
All E. R. 1049
106 Ashbridge Investments Ltd. v. Minister of Housing and Local Government
(1965) 1 W.L.R. 1320
91
motives. He said elsewhere 107 "Despite the extreme difficulty of extracting clear principles from the welter of decisions, it is submitted that the two main causes of invalidity for ultra vires are excess power (exces de pouvoir) and abuse of power (detouruement de pouvoir). The first means checking legal acts by the terms of the enabling statute, the second means a check on administrative discretion where motives alien to the administrative purpose have prevailed. The position is much confused however through the nebulous test of reasonableness, which the Courts apply to administrative actions."
Clearly the second of these grounds catches up bad faith or mala fides for dealing with Lord Mac Naghten's three separate requirements for invalidity, namely "it must keep within limits of the authority committed to it. It must act in good faith and it must act reasonably." He states, "The last proposition is involved in the second, if not in the first. This seemed to mean that Courts were limited to an examination of excess of power and improper motive"-(at page 383).
It is undoubtedly true that in spite of the very lucid exposition of what is meant by "reasonably" in the Wednesbury Corporation Case by Green M. R. in which he quoted the example given by Lord Warrington of a red-haired teacher being dismissed because she had red hair; some unreasonable decisions have been given on this ground. The most notorious case is what is known as the Poplar Case10* in which the House of Lords held that the decision of a local body, which had authority to decide the salaries and wages of their employees, "as they may think fit," to pay $ 4 per week to men as well as women employees, was unreasonable and therefore excessive. Lord Atkinson delivered himself of the opinion that, 'The Council allowed themselves to be guided in preference of some eccentric principles of socialist philanthrophy or by feminist ambition to secure equality of the sexes in the matter of wages in the world of Labour."
Another such decision was the case of Prescott v. Birmingham Corporation.109 In
that case the Council had the authority to charge
"such fares and charges as
they may think fit" in the bus and train services they operated. They decided to
permit all
men over 70 and all women over 60 to travel free within certain
prescribed hours. The Court of Appeal held that this was ultra vires
on the
ground that the Council was not at liberty to use the ratepayers' money to
inaugurate a new form of social subsidy.
Foot notes
107 The New Public Corporation (1946) 10 Mod L.R. 380, 381.
108 Roberts v.
Hopwood (1925) AC.
109 (1955) Ch. 210.
92
Judges are human and essentially men of their time, place and circumstance. But, "the best of them have always been conscious of this human aspect of judicial responsibility that the agony of judicial decision is to be aware of the policy choices without determining them by personal predilection and that the one guiding thought was self-limitation of the Court lest it should become a non-elected lawmaker superseding the legislature." Friedman on Property Freedom and Security.110 An awareness of this danger is in itself a sobering thought and a strong check on any such tendencies.
The Solicitor-General also submitted that our section 241 does nothing more and nothing less than section 21 of the English Crown Proceedings Act, 1947. In considering this submission, it is important to bear in mind the fact that whereas the English Crown Proceedings Act conferred on the subjects a right which they never had before, that of suing the Crown, except in certain circumstances, our section 24 takes away a privilege which the subject always enjoyed. The Solicitor-General pointed out that the subject in England could always proceed against the Crown by way of Petition of Right and the granting of a fiat by the Attorney-General was a mere formality and submitted that this was a mere matter of form than of substance.
In this connection he quoted a passage from an article by Sir Thomas Barnes,1" at that time Procurator-General and Solicitor-General of England, as follows: "Everybody knows" said Lord Justice Bowen in In re Nathan, "that the fiat is granted as a matter I will not say of right, but as a matter of invariable grace by the Crown, wherever there is a shadow of claim may move it as the constitutional duty of the Attorney-General not to advise a refusal of the fiat unless the claim is frivolous."
But the classes of claims which could be made the subject of a
Petition of Right was itself restricted. "The only cases in which
a Petition of
Right is open to the subject are where lands or goods or money of a subject have
found their way into the possession
of the Crown and the purpose of the Petition
is to obtain restitution or if restitution cannot be given, compensation in
money
or where a claim arises out of a contract as for goods supplied to the
Crown or to the public service. It is in such cases only
that instances of
Petition of Right having been entertained are to be found in our books,"
(Feather v. Queen) (ibid).
However, the Crown could not be sued in tort although such an action could be
brought personally against an officer of the Crown
responsible for
Foot notes
110 (1956) Mod L R. 464,465.
111 Canadian Bar Review (1948) 387.
93
the act Releigh v. Goschen 112 The subject had no effective remedy against the Crown in the Country Court and owing to the peculiar procedure the subject was at a disadvantage in some aspects. In 1921, Lord Borkenhead appointed a committee which reported and submitted a draft Bill in 1927, but nothing was done till 1947 when as a result of the pressure of strong public opinion the Crown Proceedings Act was passed.
In Ceylon the subject can sue the Crown in contract as for instance for salary
earned by a Public Servant C. Kodeswarah v. The Attorney-General,
"3 and cases
referred to therein - but not tort until recently. So also can an injunction be
issued restraining a servant
of the Crown. Although it was conceded as axiomatic
that no injunction lies against the Crown in W. H. Buddhadasa v. N. Nadarajah:
(supra) it was held that it could be issued against the official in his personal
capacity. In the case of Mallika Ratwatta v. The
Minister of Lands, (supra) this
Court issued a temporary injunction restraining the Minister from proceeding
with the acquisition
of certain lands where it was challenged on almost
identical grounds as in the instant case.
So also in the case of Government Agent Northern Province v. Kanagasunderam,
(supra) it was held that an injunction could be issued
against the Government
Agent restraining him from acquiring a house where his act was shown to be an
excess of his powers. In Land
Commissioner v. Ladamuttu Pillai, (supra), the
Privy Council set aside the injunction issued, on the ground that the Land
Commissioner
could not be sued nominee officii as he was not a Corporation sole,
and also because the injunction would have precluded a new determination
under
Section 3 i.e. which had been brought in by an amendment to the Ordinance after
the impugned determination had been made
and the Act itself had since been
amended. Although the Privy Council upheld the judgment of the Supreme Court
that the Land Commissioner
was not entitled to make the determination he had
made, this question of whether an injunction could be issued or not, was left
open.
A consideration of the two sections immediately reveals a vital difference in the wording. Section 21(1) in so far as it is relevant to the purpose of this case is as follows:- "In any civil proceedings by or against the Crown the Court shall subject to the provisions of this Act have power to make all such orders as it has power to make in proceedings between subjects and otherwise to give such appropriate relief as the case may require; Provided, that (a) where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or
Foot notes
112 Supra 8.
113 (1970)72 N.L.R. 337.
94
specific performance, but may in lieu thereof make an order declaring of the rights of parties ..." Subsection 2 is identical with our section 24(2).
This section does not contain the words of limitations which have been put into our section 24 namely, "in respect of any act done or intended or about to be done by any such person or authority in the exercise of any power or authority vested by law in any such person or authority." In other words, while in England section 21(1) enables a Court in civil proceedings against the Crown to grant any such relief as it could have granted in proceedings between subjects, except to issue injunctions or to order specific performance our section protects the persons concerned against the issue of an injunction only in respect of acts done or intended or about to done in the exercise of any power or authority vested by law. In other words, the protection is afforded only if the act done is within the four corners of the power or authority vested by law; otherwise it would not be in the exercise of that power or authority.
If this was not the intention, then there is no reason why these words should have been dragged in and thrown into the section. If I understand the Solicitor-General correctly, he stated these words were put in because the act should be in the exercise of any power or authority vested by law and not any act at all. But once one concedes that it must be an act in the exercise of any power or authority vested by law, it follows that the exercise of any power must be within the terms of the power and not ultra vires the power. It is of significance to note that the decision of this Court in the Hirdaramani case was delivered on 30th December, 1971, and the first of the Gunesekera cases on 21st January 1972 while the Act No. 18 of 1972 received the assent on 1 11th May, 1972. It has to be presumed that Parliament was aware of these decisions and the conclusion of these words is a clear indication that no changes in the law as stated in these cases was intended.
In view of this significant difference, the English cases on which it was held that an interlocutory injunction will not lie, are not relevant. The first of these cases is Underhill v. Ministry of Food (supra). There the challenge against order was on the ground of excess of power as well as bad faith. The plaintiff asked for an interim injunction pending trial but at the argument their counsel conceded that in view of the Crown Proceedings Act 1947, he would be asking for an alternative remedy of an interlocutory declaration. Romer J., held that the declaration referred to in the section was a final declaration and that the Court could not issue an interlocutory declaration.
In the case of International General Electric Co., of New York Ltd., et al. v. The Commissioner of Customs & Excise, (supra) the Court of Appeal approved the decisions in Underhill, Upjohn L.J., saying that he could not understand how there could be "such an animal" and observed, "It seems to
95
me quite clear that,
in proceedings against the Crown it is impossible to get anything which
corresponds to an interim injunction.
But he said that in certain cases, it was
proper on a motion or on a summons under R.S.C. 25 & 2 to make some declaration
of
right on some interlocutory proceedings.
In the case of Harper v. Home Secretary 114 the question was left open, while in Merricks v. Heathcoat Amory and the Minister of Agriculture
115 an attempt was
made to obtain an injunction in his personal capacity or in some other capacity;
it was held that from start to finish
he was acting in his capacity as an
officer representing the Crown and in such a case it was conceded that no
injunction could
be obtained against him. Such concessions would come easily to
lawyers in bred in the tradition that no injunction would lie against
the Crown.
The lack of provision in the Crown Proceedings Act 1947 to the power to issue
interim injunctions have been criticised. Wade calls
it, "an unjustifiable
lacuna, for interim relief may be just as necessary against the Crown as against
any other defendant,"116 S. A. de Smith states that the Act merely reaffirmed
"the rule that no injunction would lie against the Crown;" and that,
"the most
unfortunate aspect of the present law is that no interlocutary relief can be
obtained to restrain an unlawful act
done by the Crown or its servants . . .
"117 Street points out that this "may cramp the development of our
administrative law."118
Mr. Thiruchelvam who appeared for some of the parties noticed, submitted that
the term "injunction" as used in section
24(1) referred only to a permanent
injunction and not to an interim or interlocutory injunction. He pointed out
that the proviso
to that section by making provisions for the issue of a
declaration of the rights of parties in lieu of an injunction clearly showed
that what was referred to was a permanent injunction, because one cannot issue
an interim declaration of the rights of parties.
Such a declaration declaring
the rights of parties must of necessity be a final declaration. As Romer J.,
pointed out in Underhill's
case, "It is an unheard of suggestion that an
interlocutory declaration should be made which might be in precisely the
opposite
sense of the final declaration made at the trial...."
Foot notes
114 Harper v. Secretary of State for the Home Department (1955) 1 Ch. 238.
115 (1955)1 Ch. 567.
116 Wade - Administrative Law 3rd Edition 114.
117 S. A. de Smith 464.
118 (1948) 11 Mod. L.R. 139.
96
Commenting on the Underhill case J. A. C. Griffith 119 states, "since the Act clearly intended declarations to take the place of injunctions, and since interlocutory injunctions cannot be replaced, with the same effect by interim declarations, then the Act must refer only to final injunctions. Therefore interlocutory injunctions are not affected by the Act and may be granted against the Crown." I am much attracted by this submission but in view of my decision that where an act is ultra vires the power granted by a statute to a repository of the power, it is not an act done in the exercise of the power and that therefore section 24 does not apply to confer on him an immunity from the issue of an injunction whether final or interlocutory, it is not necessary for me to decide this question or also the submission that in the exercise of the inherent powers of the Court an order to stay proceedings for acquisition could be made pending final determination of the action.
This also disposed of the submission made by the Solicitor-General that this section merely took away one remedy and substituted another remedy for it because there is no substitution of another remedy for an interlocutory injunction. He also submitted that the section did not oust the jurisdiction of the Court and that the cases cited in regard to the ouster clauses were not applicable. He said that the Court could continue to hear and determine the cases and if at the end of the trial the Court was satisfied that plaintiff had succeeded it could issue a declaration of his rights. One has only to take a concrete example to expose the underlying fallacy of this submission.
Let us suppose that a man has flourishing business in a building in which he and his family also reside and that it is his sole means of livelihood. If a Minister vested with power to acquire premises for a public purpose decides to acquire these premises purely out of personal animosity or for political revenge then, if he is not restrained by an interim injunction, he can destroy the building and throw the man and his family and goods out on the streets. In such a case if the man eventually succeeds in his action of what good is the Court's declaration of his rights to him?
The much vaunted dictum of Gratiaen J., that "Courts of Justice have always assumed so far without disillusionment, that their declaratory decrees against the Crown will be respected"120 will be of no avail to him because he cannot get his building or business back. He can only get compensation which even without the aid of the declaration of his rights by Court, he is in any event always entitled to, under the Land Acquisition Act. So that the section bars the Courts from giving him any effective relief and to that extent it ousts the jurisdiction of Courts. Nor is the remedy provided, in the real sense any remedy at all.
Foot notes
119 Mod. L.R. (1950) Vol. 13 502.
120 Attorney-General v. Sabaratnam (1956).
97
It was also argued that where a land is acquired for a public purpose, it may happen that it belongs to a political opponent or a personal enemy. In such a case, the Courts would not interfere if the "dominant," the "real" the "true", or the "principal" purpose was public interest and not political or personal revenge. The mere fact that a scheme serves some other purpose in addition to its authorised purpose is not a legal objection, provided that the authorised purpose is the genuine motive. [121 Westminster Corporation v. London North Western Railways (1905) A.C. 424.] In the Etna Stores case Davies A.J.A said that it is the real purpose which has to be ascertained. In Rowjee's case it was stated that whatever be the inclinations, desires or motives of the Chief Minister, if the Corporation by an independent consideration of the situation decided on the formulation of the impugned schemes their validity could not be successfully impugned merely because the schemes satisfied the alleged grudge which the Chief Minister bore to the affected operators.
In Pratap Singh's case the Court said that when confronted with a case where the purposes sought to be achieved are mixed, some relevant and others alien to the purpose then the Courts have on occasion resolved the difficulty by finding out the dominant purpose which impelled the action. If in such a situation the dominant purpose is unlawful then the act is unlawful and it is not cured by saying that they have another purpose which was lawful.
The Solicitor-General also argued that if the interpretation which commends itself to me is given, then the sections has achieved precisely nothing because an order which is within jurisdiction needs no protection and cannot be questioned by the Courts on the ground that it was made in error. On the basis of the rule of construction "ut res magis valeat quam pereat" the Courts, he submitted must give it an interpretation which will give it life and force and not one which will reduce it to futility. This is perfectly true. But a possible explanation is that which was suggested by Samarawickrema, J., in the Hirdaramani case, although it did not commend itself to H. N. G. Fernando, C.J.
Samarawickrema, J., said at page 120, 'The question has been posed as to what has been gained by the inclusion of clause 55. It is no doubt true that in law the writ of Habeas Corpus will not issue to review a valid decision of a statutory authority. But it is true that Courts sometimes tend to review such valid decisions . . . section 45 of the Courts Ordinance empowers a writ to issue to bring up "the body of any person illegally or improperly detained." The use of the word improperly might be regarded as authorising a Court to inquire into the impropriety of a legal and otherwise lawful detention. Whether this is in law a possible view or not, the draftsman may have included the clause to preclude any possibility of a review by Court of
98
detention made by a valid detention order in view of past experience which according to Rubinstein showed that the Courts were sometimes ready to review valid decisions."
So here too, where there is an obvious and palpable error of law whether on the face of the order or otherwise, or on the facts, in the case of an order made within jurisdiction, the Courts may be tempted to interfere if grave and irreparable damage is done by such an order. It is possible, therefore, that this provision was included to ensure that in such a case no injunctions whether interim or permanent, are issued.
Mr. Jayewardene referred to certain cases under the Police Ordinance where language almost identical with that of the words of limitation in section 24 was held not to protect mala fide or malicious acts. Section 88 of the Police Ordinance (Chapter 53) sets out that all actions against any person for "anything" done or intended to be done under the provisions of this Ordinance or under the general police powers hereby given shall be commenced within three months" (formerly section 79). In the case of Ismalanne Lokka v. Harmanis [122 (1923) 23 N.L.R. 192.] it was held that this limitation does not apply where a police officer is found to have acted maliciously and not in the bona fide exercise of his official duties. It is unnecessary to refer to the other cases, but it is sufficient to say that these cases do lend support to the view that an act which is mala fide and in excess of one's statutory powers is not protected.
He also relied on certain cases decided in respect of section 461 of the Civil Procedure Code which requires notice to be given where a public officer is sued, in respect of any official act done by him. But these are not helpful for two reasons. Firstly, there is a difference in the wording of the two sections. Section 461 refers to any act "purporting to be done" whereas section 24(1) refers to "any act done, intended or about to be done." The word "purporting" does not appear in section 24(1), and this makes a vital difference. The words of section 24(1) are more restrictive and does not extend to acts purported to be done or in the ostensible or pretended exercise of a statutory power.
Secondly, the decisions are conflicting while the earlier cases (supra 14 and 42) did hold that notice was not necessary in the case of acts done maliciously or in the colourable exercise of the statutory power, yet the correctness of these decisions was doubted in the case of Ratnaweera v. S.I. Police C.I.D. et al (supra) as being too restrictive. Basnayake, C.J., in two later cases held notice was necessary even where the officer concerned was acting mala fide (supra 15 and 44).
Mr. Jayewardene also made some submission in regard to the jurisdiction of the Court in view of the fact that order to call for the records of these
99
cases was made by two Judges and thereafter the examination of the records and
the orders to issue notices were made by three Judges
all in chambers. His
submission was that these should all have been done by a properly constituted
Bench sitting in public. He
pointed to the fact that whereas under the previous
law this power could be exercised by the Supreme Court or any judge thereof,
now
the power is vested under section 13 and 354 of the Administration of Justice
Law No. 44 of 1973 in the Supreme Court as such
and this meant the Benches as
provided for in section 14 and sitting in public as required by section 7.
The obvious answer to this submission is that all these cases were pending in
the Supreme Court and an order was made by the Hon.
Acting Chief Justice, under
section 14(3)(c) to refer these matters to this Bench of nine Judges. This is a
valid order and even
if this objection could have been appropriately taken up
before the three Judges before whom it came up in the first instance it
cannot
be taken up now. However, I am of the view that all the orders were validly made
in terms of the Act.
There must be a properly constituted Bench sitting in public only when the records have been called for and examined and it is found that an exercise of the Courts revisionary powers is probably necessary after parties have been heard. The mere calling for a record, the examination of it and the direction to issue notice are all ministerial acts involving no act of a judicial nature. Any Judge of the Supreme Court has the power to do so, in chambers. Section 7 requires only that sittings of every Court shall be in public where the judicial power is exercised. It does not require that ministerial or administrative acts should be done in public. The case cited by Mr. Jayewardene are all cases where actual trial was involved.
In these cases after two Judges had called for and examined the records three Judges directed that notice be issued. The Registrar stated in open Court on 14.6.1974, that the general practice hitherto had been for him to suggest the different Benches for the day for the approval of the Chief Justice and that the Judges who ordered the notices would normally constitute the Bench to hear the case. He also stated that the Acting Chief Justice had approved the Bench as suggested by him.
This was in accordance with the practice stated in Queen v. Liyanage [123 (1962)64 N.L.R.313 at 352.] where it was observed that "there are various provisions in the Courts Ordinance for the hearing of appeals, applications and other cases in the exercise of the original criminal jurisdiction of the Supreme Court by one, two, three or more Judges. The power to nominate the Judges in cases where no express provisions has been made therefore appears to us to reside in the
100
Court, although it is correct to say that by convention it is the Chief Justice who for the purpose of convenience exercises such power."
In one case S.C. APN/GEN/63/64- Revision in M.C. Colombo South No. 23159/A 124 Sri Skanda Rajah, J., had called for the record and the matter was listed before him. Dr. Colvin R. de Silva who appeared for the respondent submitted that since the Judge had examined the record and issued notice there was the possibility that the accused and even the public might think that he would be biased. Sri Skandha Rajah, J., rejected the submission and referred to the fact that in matters of contempt of inferior Courts the papers are circulated to all the Judges to ascertain their opinion as to whether a Rule should issue or not. In such a case could it be said that all Judges had disqualified themselves.
Whether the Judge or Judges who in the first instance call for and examine the records should sit on the Bench which ultimately determines the case is a matter essentially for them to decide.
I hold therefore that where the act of a repository of a statutory powers is in
excess or in abuse of that power in the sense that
it is mala fide or for a
purpose alien to the enabling statute it is ultra vires such power, and a
nullity. In the case of Regina
v. Paddington Valuation Officer 125 Denning, M.
R. said, "It is necessary to distinguish between two kinds of invalidity. The
one kind is where the invalidity is so grave that the list is a nullity
altogether. In which case there is no need for an order
to quash it. It is
automatically null and void without more ado." It is as if it had never been
made. In such a case section
24(1) of the Interpretation Ordinance as amended by
Act No. 18 of 1972 has no application and Courts are precluded from issuing
interim injunctions if the facts are such and a consideration of the law
relating to injunctions warrants the issue of such injunction.
I have not considered the facts in these cases at all nor the truth or otherwise
of the case for the plaintiffs in these cases.
My decision is purely on the
legal question argued before us.
It remains for me to thank all the Counsel engaged in these cases for the very valuable assistance rendered to us in the determination of the difficult issues involved.
I would direct that all the notices be discharged and that the records be returned to the respective Courts to be proceeded with according to law. As these cases came up on the orders of Court ex mero motu there will be no costs.
Foot notes
124 S.C. APN/GEN/63/64 minutes of 17/12/64.
125 (1966) 1Q.B.D. 360 at 402.
101
UDALAGAMA, J.
In terms of Section 354( 1) of the Administration of Justice Law No. 44 of 1973, Pathirana, J., Wijesundara, J., and I, having perused the records in the above cases, in order to satisfy ourselves as to the legality or propriety of the orders made by the learned Judges of the High Court and the District Court and having formed the opinion that the said orders on the face of the records appear to be illegal, issued notices on the petitioners-plaintiffs to show cause, as to why the said orders should not be set aside in the exercise of our powers of revision. On 14.6.74 when the matters came up before the three of us, Counsel appearing for the petitioners-plaintiffs informed us that as the matters arising from these cases were of general and public importance, an application had been made to the Honourable The Acting Chief Justice, that these cases be heard by a Bench of five Judges. In view of this statement by Counsel, the hearing of these cases were adjourned. The Acting Chief Justice thereafter, nominated a Bench of nine judges and that is how these cases now come up before us.
Broadly, the matter in issue in these cases is whether section 24 of the
Interpretation (Amendment) Act, No. 18 of 1972 took away
the power of Court to
issue injunctions "both interim and permanent," against the persons or bodies
mentioned therein
"in respect of any act done or intended or about to be done by
any such person or authority in the exercise of any power or
authority vested by
law in any such person or authority."
Section 24 of the Interpretation (Amendment) Act No. 18 of 1972 reads as
follows:
"Nothing in any enactment, whether passed or made before or after the commencement of this Ordinance, shall be construed to confer on any court, in any action or other civil proceedings, power to grant an injunction 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 such Commission, in respect of any act done by any such person or authority in the exercise of any power or authority vested by law in any such person or authority."
Mr. H. W. Jayewardene, Counsel appearing for petitioners-plaintiffs in case Nos. S.C. APN/GEN 6/74 to 11/74, 13/74, 14/74, 19/74 and 20/74 in a very long and exhaustive argument, submitted to us that where any act done or intended or about to be done, is tainted with mala fides an exclusion clause, would not be a bar and a Court would have jurisdiction to entertain such an application and to have the act of the person or body, examined: and for this purpose, until the matter is finally disposed of, have the right to stay proceedings on the act of the person or body concerned, by way of interim injunction. Mr. Jayewardene cited to us cases decided in various countries
102
of the commonwealth for the proposition that, power conferred by a statute should be exercised bona fide and that where an allegation of mala fide or fraud is made, the Courts have acted despite exclusion clauses. The leading English cases on the subject are Smith v. the East Elloe Rural District Council (supra) and Anisminic Ltd., V. Foreign Compensation Commission (supra). In the East Elloe case, the House of Lords by a majority judgment held that the order (made under the Acquisition of Land (Authorisation Procedure) Act of 1946) could not be questioned in a Court of law on any ground whatsoever. Viscount Simmonds taking the view that the language in the statute covered every possible ground of challenge including bad faith. Lord Reid who took the minority view held that if mala fides were protected, then the subject who was given a legal remedy to be availed of within 6 weeks would be deprived of any relief if fraud was discovered after expiry of such period. The preclusion clause in the Acquisition of Land (Authorisation Procedure) Act 1946 read that where an order is made under the Act it "shall not either before or after it has been confirmed, made or given, be questioned in any legal proceedings whatsoever." In the Anisminic case (supra) the preclusion clause stated "the determination by the Commission, of any application made to them under this Act shall not be called in question in any court of law." The House of Lords by a majority decision took the view that these words did not preclude the examination of a determination which had been arrived at on a consideration of a factor which the Commission had no right to take into consideration. It is pertinent to note that both these cases deal with the ouster of jurisdiction of Courts in the exercise of powers over tribunals and courts of inferior jurisdiction. The question, therefore, arises whether the principle laid down in these cases would equally apply to administrative and/or executive acts and orders. Clearly the acts contemplated in section 24 of the Interpretation (Amendment) Act No. 18 of 1972 are administrative acts or executive orders. When a tribunal or court of inferior jurisdiction decides a matter submitted to it, it is expected to follow certain procedures and rules of evidence. On the other hand when administrative acts and executive orders are made they may not be based on strict procedures and rules of evidence such as are followed by tribunals and inferior judicial bodies. But still, they may :be necessary and for the good of the State. If every administrative act and executive order has to be based on strictly legal procedures and rules of evidence as known to the law the machinery of Government could never function smoothly. It is my view that in interpreting section 24 of the Interpretation (Amendment) Act, the East Elloe case (supra) and the Anisminic case (supra) are of little or no help. One has to interpret section 24 of the Interpretation (Amendment) Act as it appears in the enactment, following the normal rules of interpretation as found in textbooks and decided cases. The best approach to my mind is to be found in the words of
103
Turner L.J. in Jawkings v. Gather Cole 6 de G. M. & G 20., cited in Craies on
Statute Law & 7th Edition (supra) page 125
where he stated, "the dominant
purpose in construing a statue is to ascertain the intent of the legislature, to
be collected
from the cause and necessity of the Act being made, from a
comparison of its several parts and from foreign circumstances so far
as they
can justly be considered to throw light upon the subject." We must therefore,
try to find out what was the purpose
of the legislature when section 24 of the
Interpretation (Amendment) Act No. 18 of 1972 was enacted, and whether it
achieved that
purpose.
Their could be no doubt that section 24 was brought in with special reference to
land acquisition matters, although the section
itself does not say so, it was
contended by the petitioners and it was common ground that in land acquisition
matters when the
Minister in charge of the subject moved to acquire a land for a
public purpose and the owner was against it, it took a number of
years to have
the dispute settled and finality reached. In the resulting position, the
inconvenience to the State and a fortiori
to the public was so very great that
it completely outweighed the rights of the individual. Furthermore it was also
common ground
that in a large majority of these cases the owners had dismally
failed to establish mala fides for the acquisition. In the result
the people of
a particular locality or town who were urgently in need of a hospital, an
agrarian centre, a dispensary or a road,
had to be deprived of it for a number
of years causing social and economic distress. It has sometimes even happened
that the money
voted by the legislature for the purpose, had lapsed by the time
the case was over. So one cannot escape the conclusion that a formula
had to be
evolved to get over this inordinate delay. In 1969 by Act No. 20 of 1969 an
attempt was made to get over this by requiring
courts to give priority to the
disposal of land acquisition cases. It is common knowledge what a failure this
provision turned
out to be. It was submitted to us that the problem of delay
could be overcome by State Counsel insisting on strict compliance with
section 2
of Ordinance 20 of 1969. However much State Counsel may insist on a strict
compliance of section 2 and however much the
intention of a particular Judge may
be, there are certain procedural steps and matters beyond the control of a Court
which could
stall and prevent the final determination, as expeditiously, as one
would like it to be. Hence something more effective had to be
found by the
legislature. The solution the legislature evolved was the enactment of section
24 of the Interpretation (Amendment)
Act No. 18 of 1972. What has section 24
attempted to achieve? A paraphrase of the section would read as follows: "Where
in
any enactment a power is conferred on a Court prior to or after the enactment
of section 24, to grant an injunction 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 such
Commission, that power is taken away, by the section and a right to ask for
a
declaration given in lieu thereof. In simpler language, section 24 has stripped
the courts of the power it possessed under the
Courts Ordinance and the Civil
Procedure Code to grant injunctions or make orders for specific performance in
respect of any act
done or intended or about to be done by the Crown, a
Minister, a Parliamentary Secretary, the Judicial Service Commission, the
104
Public Service Commission or any member or officer of such Commission, in the exercise of any power or authority vested in such person or body. The words "any act" are very wide and should be read as "every act." It will be seen that the section deals with purely administrative acts and executive orders of the persons and bodies referred to therein. It is my view therefore, that the question of mala fides and bona fides really do not enter into the discussion at all. As Viscount Simmonds said in Smith v. East Elloe Rural District Council (supra) "there was no justification for the introduction of limiting words such as 'if made in good faith' in the relevant provision." The argument that a declaratory act is useless if the status quo is not maintained, is not tenable, because, one must presume and presume confidently that if a declaration is made against the Crown, a Minister, a Parliamentary Secretary, the Judicial Service Commission, the Public Service Commission or any member or officer of such Commission, for any acts of such persons or bodies, ample amends will be made by the State, if action had already been taken on such acts and it is not possible to restore the status quo. One must also not forget that these persons and bodies are highly responsible ones and it would only be in a rare case that one could expect acts of such persons and bodies to be tainted with fraud or malice. Under the present constitution the judicial power of the people is exercised by the National State Assembly through the courts and if the State proceeds to ignore a solemn declaration by a Court of competent jurisdiction, it will only stultify itself and bring itself to ridicule. Moreover, as contended by the Acting Solicitor-General, immediately notice of a declaratory action is given to the Attorney-General, as it must, the law officers of the State would advise the Minister or body concerned, the course of action that should be taken in regard to the act of the Minister or body. From experience, one cannot dismiss the statement of the Acting Solicitor-General as an empty one or a poor consolation for a person who is to be deprived of his home and hearth. To interpret section 24 in any other way, to my mind, would result in the Court passing into the role of a legislator. The Great Francis Bacon, Lord Verulam, in his Verba Legis wrote "non est interpretation divinatio, quae recedit a litora. Cum receditur a litera, iudex transit in legislatorem" - it is not interpretation but speculation when it departs from the text. When there is a departure from the text, the judge passes into the role of a legislator.
105
Again in his essay on Judicature he wrote "Judges ought to remember that their
office is iun dicere and not ius dere" -
to interpret law, and not to make law
or give law. These views of Bacon is part of the GOLDEN RULE of interpretation
enunciated
in the judgments of the Courts of England. It is not the duty of a
Judge to modify the plain meaning of words. His duty is to expound
the law. On
the interpretation I have sought to give, section 24 has, to my mind, achieved
the purpose the legislature had intended.
I would therefore, hold that section 24 of the Interpretation (Amendment) Act
No. 18 of 1972 took away from the courts the power
to grant injunctions (both
interim and permanent) or make orders for specific performance against the
persons or bodies referred
to therein, irrespective of whether such acts or
orders were motivated by mala fides or bona fides, or other ground whatsoever.
Mr. Thiruchelvam for the petitioners in case Nos. S.C. APN/GEN/12/74 and 16/74 while concurring with the submissions of Mr. H, W. Jayewardene raised two matters which called for our consideration. Firstly it was contended that what section 24 of the Interpretation (Amendment) Act took away was the power of the courts to issue injunction under "an enactment" and the inherent power of the court to issue an injunction to prevent any mischief or irreparable damage, remained. The answer to this submission is found in the case of Mohammadu v. Ibrahim (supra) where it was held that there is no inherent power in the Supreme Court to issue injunctions. Section 839 of the Civil Procedure Code or section 40 of the Administration of Justice Law has not altered the ratio decidendi laid down in this case. The Supreme Court has no inherent power to issue injunctions. If so, could it be said that the High Courts and the District Courts have got this power? The obvious answer is "no."
The other point taken up by Mr. Thiruchelvam is that section 24 applies only to permanent injunctions and not to interim injunctions and therefore the remedy by way of interim injunctions was available to the subject despite section 24 of the Interpretation (Amendment) Act. If this construction is to be put on section 24, the whole intention of the legislature would be brought to nought and section 24 would have no meaning. In Nokes v. Doncaster Collieries (supra) Viscount Simonds observed "if the choice is between two interpretations the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility, and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result."
106
In Rambukpota v. Jayakody126 and Thambypillai v. Thambypillai 127 our courts have held that the term injunction in sections 86 and 87 of the Courts Ordinance and sections 662 and 663 of the Civil Procedure Code referred to interim injunctions, so when section 24 speaks of "any enactment" it must of necessity refer to sections 86 and 87 of the Courts Ordinance and sections 662 and 663 of the Civil Procedure Code. In my view section 24 applies both in interim injunctions as well as permanent injunctions.
In regard to the objections taken by Mr. H. W. Jayewardene as to the legality of the proceedings that were adopted to bring this matter before this bench, I regret I am unable to see any merit in the arguments placed before us. Under section 14(1) of the Administration of Justice Law No. 44 of 1973 the jurisdiction of the Supreme Court can be exercised by several Judges sitting separately. It is therefore, patent, that any single Judge of the Supreme Court could exercise the jurisdiction of the Supreme Court subject to the proviso to section 14 (1). In the present case when my brothers Pathirana, J. and Wijesundera, J. called for the record now under review, they were acting within section 14(1) of the Administration of Justice Law and when order was made under section 354(1) of the same law noticing the petitioners-plaintiffs to appear and show cause as to why the said orders should not be set aside in the exercise of our powers of revision, we were doing so still under section 14(1). In regard to the submission that orders under section 14(1) and section 354(1) should have been made at sittings of the Court held in public, we are unable to agree. Section 7 of the Administration of Justice Law applies to actual hearings of parties and arguments and not to acts ancillary to the exercise of judicial power. The calling for and examining a record for the purpose of making of an order to issue notice on a party giving him an opportunity of being heard on his behalf, do not involve the exercise of judicial power. In regard to the comment that the present cases have come up before this bench not as a result of any application by the aggrieved parties, all I wish to state is that the Supreme Court is not governed in the exercise of revisionary powers by the wishes of parties. The object at which the court aims is the due administration of justice-vide in the matter of the insolvency of Haymen Thornhill 128 at 106.
I hold that the interim injunctions issued in the above cases are illegal and are of no force or avail. In the circumstances of these cases I make no order as to costs.
Foot notes
126 (1929) 29 N.L.R. 383. 127 (1974) 77 N.L.R. 97.
128(1895)2N.L.R. 105.
107
ISMAIL, J.
At the hearing of these several appeals the Solicitor-General appearing for the
Attorney-General and Attorneys for several respondents
agreed to consolidate the
arguments in all these appeals as common legal questions arose for consideration
in all these matters
listed for argument. It was agreed that decisions on these
questions that were common in these appeals would dispose of all these
applications. The matters that arise for consideration in these appeals can
broadly be categorized under two subheads :-
(1) Was the order of the Supreme Court calling for the records in the above cases with a view to examining these records on the question of legality or propriety of the orders made therein done in the exercise of any jurisdiction lawfully vested in the Supreme Court and whether this Court had been properly constituted for the hearing of these applications?
(2) In interpreting section 24 of the Interpretation (Amendment ) Act whether an
Injunction would lie against the Minister in respect
of any act done by him
either mala fide, ultra vires or without jurisdiction and whether such falls
outside the scope of section
24 of this Act?
I will now proceed with the first question, namely, whether the powers of
revision, vested in the Supreme Court under section 354
of the Administration of
Justice Law, had been properly exercised in this case. Proceedings in this case
were originally initiated
by my brothers Pathirana, J. and Wijesundera, J.,
directing the Registrar of the Supreme Court to call for the records of eleven
(11) of the cases which were the subject-matter of these applications. The
records had thereafter been submitted to my brothers
and thereafter they along
with my brother Udalagama, J. had examined the records to satisfy themselves
with regard to the legality
and propriety of the orders made in those respective
cases. They had apparently formed the view ex facie from the records that orders
appeared to be illegal in view of provision under section 24 of the
Interpretation Ordinance (Amendment) Act No. 18 of 1972. In
all these cases
apparently interim injunctions had been granted against the Minister of
Agriculture and Lands restraining him and
his officers from taking any further
steps in the acquisition of these lands belonging to the respondents in those
applications.
In some of the cases interim injunctions had been issued by the
District Court pending a final determination of the judgment. In
the other cases
injunctions had been issued by the High Courts to be in operation for a specific
period to enable the respondents
to file action in the appropriate District
Courts.
Notices had thereupon been issued on the respondents in these cases to appear
and show cause why the orders granting Interim Injunctions
in
108
those cases should
not be set aside in the exercise of the revisionary powers of this Court. The
Attorney-General had also been
noticed. In making these orders my brothers had
apparently formed the view that section 24 of the Act, No. 18 of 1972 precluded
the Courts from granting an injunction against the Minister in these cases. It
is also to be noted that these orders had been made
in chambers.
Subsequently on the return to notices the matter came up for hearing at the
sitting held on 14 June 1974 before my three brothers
and the parties had been
represented by counsel in that sitting. While matters were pending it had been
brought to the notice of
Court that applications had been made under section 14
subsection 3 of the Administration of Justice Law and on that very morning
before the Acting Chief Justice to have these matters listed for argument before
a bench of five Judges as questions involved in
these cases were matters of
general or public importance. Sittings of the Court had thereupon been adjourned
pending the decision
by the Acting Chief Justice on these applications to have
these matters listed before a fuller bench. Subsequently after hearing
arguments
adduced by counsel appearing for both parties the Acting Chief Justice had made
order that these applications which were
pending before three Judges on
14.6.1974 be listed before a bench of nine Judges in view of the importance of
legal questions that
arose in these cases which were of general or public
importance. The present bench was duly constituted on the 5th of July 1974
to
hear these applications. It was at this hearing that by consent of counsel
appearing for respondents and for the Attorney-General
that arguments in these
appeals have been consolidated in view of the fact that there were common legal
questions which arose for
determination in all these applications.
Counsel appearing for respondents took up the position that the original order
calling the records in these cases made by two Judges
in chambers was not a step
warranted by the provisions of the Administration of Justice Law. Counsel also
proceeded to argue that
the order made by three of my brothers in chambers
issuing notices to show cause why the interim injunctions granted in these
applications
should not be set aside and for appearances of parties on a
specified date was not one warranted by the provisions of the Administration
of
the Justice Law. Counsel for respondents contended that both these orders should
be made at a sitting of the Supreme Court.
He drew our attention to section 7 of
the Administration of Justice Law. This section states that the sittings of
every Court shall
be held in public and all persons shall be entitled freely to
attend such sittings. In certain instances the section gives the right
to a
Judge in his discretion to exclude persons where proceedings relate to family
relations, sexual offences and in the interest
of order and security within the
Court premises. Counsel also to supplement this argument referred to section 14;
the proviso to
this section states that the appellate jurisdiction in respect of
judgments and orders of the Magistrate's Courts
109
shall be exercised by at least
two judges and its jurisdiction in respect of judgments and orders of the
District Courts and High
Courts shall be exercised by at least three Judges.
Counsel proceeded to argue that in these instances three Judges should have,
at
a sitting of the Court as contemplated in section 7, made the order calling for
records in these respective applications and
also made order under section 354
of this Act.
In view of the arguments adduced by counsel for respondents it is necessary to
consider what is meant by a 'sitting of a Court.'
A sitting of a Court
necessarily means where a Court assembles to hear the case; that is where the
Court adjudicates on the rights
of parties. Clearly the acts done before a Court
sittings commence such as issue of notices and calling for records would be
ministerial
acts. When a Court issues such notices or orders the Court is at
that stage not adjudicating the rights of parties.
Reference to section 11 of the Act indicates that "The Supreme Court shall be the only Superior Court and shall have, subject to the provisions of this Law, jurisdiction for the correction of all errors in fact or in law committed by any subordinate Court and sole and exclusive cognizance by way of appeal, revision and restitution in integrum of all actions, proceedings and matters of which such subordinate Court may have taken cognizance, and such other jurisdiction as may be vested in the Supreme Court by law."
It will be seen that the Supreme Court by section 11 of this
Law in addition to having sole and exclusive jurisdiction in appeals,
revisions
and the restitution in integrum is also vested with the jurisdiction for the
correction of all errors in fact or in law
committed by any subordinate Court.
Now section 14 to which I have made reference prescribes the composition of
Courts for hearing
of appeals in respect of orders and judgments from the
Magistrate's Courts, District Courts and the High Courts. But section 14
does
not indicate the number of Judges who have to function where the Supreme Court
has to make any correction in respect of errors
of fact or law committed by any
subordinate Court.
The second proviso to section 14 indicates that jurisdiction under section 12
shall be exercised by not less than three Judges.
It will therefore be seen that
the number of judges who will have jurisdiction for the correction of all errors
of fact or in law
committed by subordinate Courts is not prescribed by this law.
In this connection one has to refer to section 40 which indicates
that the
jurisdiction vested in any Court by this Law shall include all ministerial
powers and duties incidental to such jurisdiction
and nothing in this law shall
be deemed to limit or affect the powers of any Court to make such orders as may
be necessary to do
justice or to prevent the abuse of the process of the Court.
It appears to me therefore that the calling of these records in the first instance by two Judges in chambers and subsequently issue of notices to show
110
cause by three Judges in chambers are ministerial acts and are acts involving
ministerial powers and contemplates duties incidental
to such jurisdiction and
did not come within the ambit if section 14 of the Law. Such ministerial acts in
my view are not the acts
that had to be done at a sitting of Court as
contemplated under section 7 of the Law. Incidentally it will be noted that in
certain
applications the law provides for one Judge to make orders in chambers.
It also appears to me that these questions are really academic though I venture
to say the steps taken are not in conflict of any
of the provisions of the Law.
Since the present bench to hear and determine these cases has been constituted
in accordance with
the provisions of section 14(3) (c) of the Administration of
Justice Law and the present bench has been constituted to hear and
determine all
these applications by the Acting Chief Justice by the powers conferred on him. I
am also of the opinion that the
original order calling for records and the
subsequent order issuing notices to show cause are purely ministerial acts and
are not
therefore in any way in conflict with any express provision of the law.
I therefore hold that the objections on the question of
jurisdiction must
necessarily fail. I therefore hold that since this bench is properly constituted
under section 14(3) (c) that
this Court has the jurisdiction to hear and
determine all these applications.
The next question that arises for consideration is solely concerned with the interpretation of section 24 of the Interpretation (Amendment) Act of 1972. Section 24(1) of the Act reads:-
24. (1) Nothing in any enactment, whether passed or made
before or after the commencement of this Ordinance, shall be construed to
confer
on any Court, in any action or other civil proceedings, the power to grant an
injunction 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 such Commission, in respect of
any act done or intended or about to be done by any such person or authority
in
the exercise of any power or authority vested by law in any such person or
authority:
Provided, however, that the preceding provisions of this subsection shall not be
deemed to affect the power of such Court to make,
in lieu thereof, an order
declaratory of rights of parties.
(2) No Court shall in any civil proceeding grant any injunction or make an order against an officer of the Crown if the granting of the injunction or the making of the order would be to give relief against the Crown which could not have been obtained in proceedings against the Crown.
111
In the light of the wording of this section, counsel for respondents contended
that this section excluded any act done or intended
to be done or about to be
done by a Minister either, mala fide or without jurisdiction or in excess of his
powers. Counsel for
respondents contended that such acts were a nullity and fell
outside the scope of section 24(1) and where such acts were done mala
fide or
without jurisdiction or in the pretended exercise of the Minister's powers the
Court could grant an injunction against
the Minister. Counsel for respondents
contended the words "in the exercise of any power or authority vested in law by
such
person or authority" necessarily contemplated that these words referred to
the bona fide genuine, lawful or due exercise of
the powers and not to mala fide
exercise of powers or purported or pretended exercise of powers or exercise of
powers without jurisdiction.
In this connection reference was made to section 22 of the Interpretation
(Amendment) Act. It is clear that section 22 of this Act
completely does away
with the jurisdiction of Court. Section 24 on the other hand clearly restricts
only a remedy that is open
to a subject. Section 22 reads:-
22: Where there appears in any enactment, whether passed or made before or after
the commencement of this ordinance the expression
"shall not be called in
question in any Court," or any other expression of similar import whether or not
accompanied
by the words "whether by way of writ or otherwise" in relation to
any order, decision, determination, direction or finding
which any person,
authority or tribunal is empowered to make or issue under such enactment no
Court shall, in any proceedings and
upon any ground whatsoever, have
jurisdiction to pronounce upon the validity or legality of such order, decision,
determination,
direction or finding, made or issued in the exercise or the
apparent exercise of the power conferred on such person, authority or
tribunal:
Provided............ "
It will therefore be seen that the exclusion of the jurisdiction of the Courts
in section 22 is so specific as to leave no ambiguity.
The exclusion of the
jurisdiction of the Court in section 22 is absolute. The words are "no Court
shall in any proceedings and upon any ground whatsoever, have jurisdiction
pronounce upon the validity or legality of such order, decision, determination,
direction or finding, made or issued in the exercise
or the apparent exercise of
the power conferred on such person, authority or tribunal."
The words that arise for determination in these proceedings in section 24 are
the words "in respect of any act done or intended
or about to be done by any
such person or authority in the exercise of any power of authority vested
112
in law
in any such person or authority." It will therefore be seen that the language in
section 24 subsection (1) with regard
to the limitation of the Court's powers is
different to the exclusion of the Court's jurisdiction contemplated in section
22 of
the Interpretation Act.
In this connection it will be pertinent to refer to the Draft Bill presented to
the Parliament. This bill was referred to in the
arguments adduced by counsel
for the respondents as well as by the learned Solicitor-General. The phraseology
of the Draft Bill
in relation to section 24 occurs in this form:-
". . . . in respect of any act done or purported to be done by any such person
or authority in the exercise or purported exercise
of powers vested by law in
such person or authority."
The Parliament had considered the Draft Bill at the Committee stage and
ultimately in the Bill to which assent was given the words
"purported to be done
and purported exercise of powers'* had been deleted. One must take it that the
legislative body had
considered the Draft Bill and the impact of the words
"purported to be done and purported exercise of powers" and had
decided to
delete these words from the Bill that had ultimately been passed. The
legislature must have given careful consideration
to the draft that had been
presented and it is very significant that these words had been deleted in the
Bill that was ultimately
passed by the legislature. The question arises whether
in deleting these words it was intended to exclude mala fide acts, acts in
excess of jurisdiction and acts without jurisdiction from the scope of Section
24.
Reference was also made by Counsel on both sides to the Crown Proceedings Act of
1947 passed by the Parliament. Section 21 of that
Act reads as follows:-
"21 (1) In any civil proceedings against the Crown the Court shall subject to
the provisions of this Act, have powers to make
all such orders as it has power
to make in proceedings between subjects, and otherwise to give such appropriate
relief as the case
may require:
provided that:-
(a) Where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the Court shall not grant an injunction or make an order for specific performance but may in lieu thereof make an order declaratory of the rights of the parties; and
(b) In any proceedings against the Crown for the recovery of land or other property the Court shall not make an order for
113
the recovery of the land or the
delivery of the property, but may in lieu thereof make an order declaring that
the plaintiff is
entitled as against the Crown to the land or property or to the
possession thereof.
(2) The Court shall not in any civil proceedings grant any injunction or make
any order against an officer of the Crown if the effect
of granting the
injunction or making the order would be to give any relief against the Crown
which could not have been obtained
in proceedings against the Crown."
The Solicitor-General argued that the provisions of section 24 of the Interpretation (Amendment) Act was practically similar in the wording of section 21 (1) of the Crown Proceedings Act. In examining this contention one has to keep in mind that the relief by way of injunction against the Crown has always been available to a subject in our country, whereas in England relief by way of injunction against the Crown was never available to a subject. It is in the light of the background of the law existing in England that the Crown Proceedings Act was enacted. In Ceylon, however, the subject always had the right of going into Court and ask for an injunction. The Civil Courts in our country always had the right to grant either an interim injunction or permanent injunction in appropriate cases so that a status quo between parties can be maintained until a suit is finally determined. In the case reported in Buddhadasa v. Naddarajah, (supra) there was an application for an injunction to restrain the respondent in his supposed performance of his functions as deputy fiscal from wrongly seizing and selling the movable property of the petitioner in alleged pursuance of the provisions of section 79 subsection (2) of the Income Tax Ordinance. It was held that the servant of the Crown purporting to act in his official capacity on behalf of the Crown can be restrained from so acting by an injunction issued against him as an individual. The facts in this case indicated that the deputy fiscal was sued in his own name and was described by the office he held at the time. In that case the Court considered whether a servant of the Crown purporting to act in his official capacity on behalf of the Crown can be restrained in so acting by an injunction issued against him as an individual. After reviewing several authorities which were cited in the course of the arguments in that case the Court held that in such an event an injunction could be issued as an individual.
Remedy by way of injunction both interim and perpetual have been always recognised by law as being available to the subject to restrain the threatened wrong before it takes place. An injunction also is issued to prevent or arrest a threatened wrong and is granted in appropriate cases to maintain a status quo until a final determination of the matter in issue.
114
It is well settled law that all powers vested by statute must be exercised in good faith and for the purposes for which it is granted. The person in whom the powers reposes must act within the powers and cannot act outside such powers, if such person abuses his authority or the power granted to him the purported exercise would be a nullity.
In the case reported in Tobin v. Rex
129 a naval officer purported to act in
pursuance of a statutory authority wrongly seized a ship of the suppliant. It
was held on demurrer
to a petition of right that the statement of the suppliant
showed a wrong for which an action might lie against the officer, but
did not
show a complaint in respect of which a petition of right could be maintained
against the queen, on the ground, amongst
others, that the officer in seizing
the vessel was not acting in obedience to a command of Her Majesty, but in the
supposed performance
of a duty imposed upon him by Act of Parliament, and in
such a case the maxim 'respondent superior' did not apply. Again in Musgrave
v. Pulido,130
it was held that the Governor of a colony cannot defend himself in an
action for trespass for wrongly seizing the plaintiff's goods
merely by averring
that the acts complained of were done by him as Governor or as acts of the
State. Similarly in the case reported
in 1901 A.C. page 561,131an aboriginal
inhabitant of New Zealand sued the Commissioner of Crown Lands for an injunction
to restrain the Commissioner from
advertising the sale or disposal of lands as
being the property of the Crown. The respondent's authority to sell on behalf of
the
Crown is derived solely from the statute and is confined within the four
corners of the statute. If the lands were not within the
powers of those
sections as alleged by the appellant, the respondent had no power to sell the
land, and his threat to do so was
an unauthorised invasion of the appellant's
alleged rights. It will therefore be seen that the remedy by way of injunction
is often
invoked to prevent powers being exceeded and is often invoked in cases
where ultra vires doctrine is applicable. Therefore statutory
powers must be
exercised in good faith and for the purposes for which such powers had been
granted and must act reasonably.
In the case reported in 59 NLR - page 313, (supra) the Supreme Court was of the
view that neither in our Civil Procedure Code nor
in any other enactment was
there any provision as contemplated in section 21 subsection 2 of the Crown
Proceedings Act. Basnayake,
C.J., proceeded to hold that an injunction under
section 86 of the Courts Ordinance can be issued against the Land Commissioner
restraining him from taking steps to acquire a land unlawfully. This matter went
up in appeal to the Privy Council in 62 N.L.R.
page 169 (supra). Their Lordships
in that case reserved their opinion upon the question as to whether in the
circumstances such
as those in the present case an injunction against the
Attorney-General could or ought to be granted. In the case reported in 70
N.L.R
- page 398 (supra) it was held that there was
Foot notes
129 16 C.D.N.S. 310.
130 (1879) 5 A.C. 102.
131 N. Tanaki v. Baker.
115
uncertainty as to the precise location of the land. The plaintiff was therefore
entitled to an interim injunction restraining the
acquisition. The facts of that
reported case indicated that the notice under section 4 the declaration of the
action filed under
section 5 and the order under section 38 of the Land
Acquisition Act did not set out the particular land to be acquired, The judgment
that was delivered by T. S. Fernando, J., indicated that acquisition cannot be
made of an undetermined corpus and therefore an
interim injunction as applied
for by the plaintiff was granted. In the case reported in 72 NLR-page 60,
(supra) on the facts of
that reported case it was held that the petitioner was
entitled to issue temporary injunction restraining the respondents in respect
of
the acquisition of the lands. In order that an interim injunction may issue it
is not necessary that the Court should find a
case which would entitle the
plaintiff to relief at all events. It is quite sufficient if the Court finds a
case where there was
a substantial question to be investigated, and the matter
ought to be preserved in status quo, until that question can be finally
disposed
of. In the light of applications that have been made in several of the cases
under review it will be necessary to point
out certain observations made by
Samerawickrame, J. at page 63 of the reported case. He states,
"I cannot resist the observation that it is remarkable how often over the years
it has turned out by some extraordinary coincidence
that the public interest
appeared to require the acquisition of lands belonging to persons politically
opposed to the party in
power at the time. It is, therefore, necessary that
Courts, while discouraging frivolous and groundless objections to acquisition,
should be vigilant, if it is open to them to do so, to scrutinise acquisition
proceedings where it is alleged that they are done
mala fide and from an
ulterior motive. In fairness to the persons against whom the petitioners have
made allegations, I should
state that the Court is not called upon, at this
state, to consider the truth of the petitioner's case and it has not done so..."
In the light of these decisions there has no doubt been a large increase in
applications for injunctions on the Minister to restrain
him from acquiring
lands the Minister has sought to acquire. The Solicitor-General submitted that
not in a single instance has
mala fides been established against the Minister.
He also submitted that in cases where acquisition was shown to be ultra vires
or
without jurisdiction, administratively acquisition proceedings were withdrawn on
orders made by the Minister. He further contended
that section 24 had been
introduced in order to obviate unnecessary prolonged delays in acquisition
proceedings consequent on needless
applications being made for interim
injunctions and perpetual injunctions alleging mala fides etc.
In the course of the argument we were also referred to extracts from the Hansard
where the Minister for Justice had drawn the attention
of the Parliament to
delays consequent on applications made by way of injunctions, both temporary and
perpetual, in acquisition
proceedings. He also admitted
116
that over 60 land acquisition matters today are pending because of applications being made on the ground of mala fide in those pending cases. It is in this background that section 24 of the Interpretation (Amendment) Act has been passed. As I indicated earlier there appears to be a substantial difference between the Draft Bill that was prepared and the Bill that was finally drafted and passed at the Committee stage. The attention of the Legislature had been drawn specifically on two reported cases - Smith v. East Elloe Rural District Council & Others (supra) and Anisminic v. The Foreign Compensation Commission & Another, (supra) I will advert to these reported cases later in my judgment. Extracts from these judgments had apparently been cited in the course of the debate at the House and the Members of the then Parliament were specifically made aware of legal implications consequent on these reported cases. It was not as if the Members of the then Parliament were not aware of the existence of these cases which restricted the exercise of the powers of the Minister. It is with this background that the Legislature had modified the Draft Bill that had been presented and brought out legislation in the form in which section 24 subsection (1) had been framed. One therefore has to consider whether section 24(1) in the background of facts as I have indicated above, has ousted the jurisdiction of Courts with regard to a remedy available to a subject completely, or whether section 24 would only apply in cases of acts done within the four corners of the statute, that is, the Land Acquisition Act. The question really is whether the words used in section 24 subsection (1) closed the doors for injunctions against the Minister in the case of mala fides etc. or whether it is still open to a subject to come into Court and ask for injunctions interim or perpetual on applications of mala fides etc. against the Minister. For this purpose it will be necessary to pay due regard to the wording of this section and to the judicial authorities which were cited in the course of the arguments interpreting the phraseology used in section 24 or analogous to it.
It is to be noted that the words "purported to be done" and "purportedly exercised" which appeared in the Draft Bill were omitted from section 24 of the Act when the Parliament passed the Bill in the present form. It is clear therefore that the omission of these two phrases from the Bill which originally stood in the draft form had been after due consideration had been given and after discussion at the Committee stage; the omission of these words is therefore significant and has materially changed the effect of this section.
It is also to be noted that the proviso to section 24 subsection (1) was not in the Draft Bill but has been incorporated into the Bill that was passed at the Committee stage. This proviso had been incorporated into this Bill verbatim from the English statute.
This proviso indicates that in lieu of the right of the subject to have an injunction the Courts could give a declaratory decree.
117
In Sri Lanka the subject under the common law always had the right to ask for a declaratory decree. Vide 69 N.L.R.-page 73 132 57 N.L.R. page 401, (supra) and 72 N.L.R. page 337 (supra).
It is also necessary to refer to the 2nd subsection of section 24. This
subsection too is identical to the subsection in the English
statute. It will be
pertinent to point out that in England the subject did not have the right to an
injunction either against the
Crown directly or against an officer of the Crown
and therefore against the Crown indirectly whereas in Ceylon the subject had a
right to ask for an injunction against the public officer suing him in his
personal capacity and designating him by office-vide-59
N.L.R.-page 313 (supra).
In the course of the arguments analysing the provision of section 24 -subsection
(1) reference was also made to section 88 of the
Police Ordinance and section
461 of the Civil Procedure Code.
In several cases that came up for determination in our Courts in respect of these two provisions of the law it was held that a police officer who acts maliciously and not in the bona fide exercise of his official duties is not entitled to rely on the limitation of actions provided in section 79 (now corresponding to section 88 of Chapter 53) vide 23 N.L.R.-192 (supra). Section 79 of the Police Ordinance extends protection to any act which a police officer does in the reasonable and bona fide belief that he is acting within the scope of his authority and which is not actuated by any malice or ultra vires motive vide - 29 N.L.R.-139 (supra).
The Courts have also considered the impact of the words "An act purporting to be
done by him in his official capacity"
with reference to section 461 of the Civil
Procedure Code-in the case quoted in 16 N.L.R.-page 49 (supra) it was held that
a public
officer who does an act maliciously in the pretended exercise of his
authority cannot be said to be "purporting to act"
as a public officer and was
therefore not entitled to notice of action. Similarly in the case reported in 9
N.L.R.-page 138 (supra)
Woodrenton, J. held that the public officer who does a
legal act mala fide in the pretended exercise of statutory powers cannot
be said
to be purporting to act under the statute which confers those rights within the
meaning of section 461 of the Civil Procedure
Code and was therefore not
entitled to the notice of action provided by that section.
Basnayake, C.J., in 57 N.L.R. - page 457 (supra) was of the view that the use of
the words "purported" in section 461
covers both malicious acts as well as the
bona fide acts and acts within the statute. He proceeded to define what is meant
by "purported"
and referred to the case 9 N.L.R. - page 138 (supra).
118
But it is clear that in the authority cited by him the word "purported" has not
been given the meaning attributed in his
judgment.
In the case reported in Hirdaramani v. Ratnavel (supra)-our Courts have
considered Regulation 55 of the Emergency Regulations by
which rights in the
nature of habeas corpus have been denied to persons detained under the Emergency
Regulations. It was held in
that case that in such an instance an order for
detention can be challenged if it had been made in the abuse of its powers.
In the course of the judgment in that case it was stated that the petitioner had
failed to establish a prima facie case against
the good faith of the Permanent
Secretary and therefore the onus did not shift to the Permanent Secretary to
satisfy the Court
of his good faith. The majority decision in that case however
proceeded on the basis that in Regulation 55 although it provides
"that section
45 of the Courts Ordinance shall not apply in regard to any person detained or
held in custody under Emergency
Regulations" is not applicable in the case of a
person unlawfully detained under an invalid order made in abuse of the powers
conferred by Regulation 18 subsection (1).
In this case the dictum in 75 NLR-page 477 (supra) was accepted and approved. Considering the facts of that case, it was held that the Assistant Superintendent of Police had proceeded to arrest a person under Regulation 19 of Emergency Regulations No. 6 of 1971, merely on the orders of his superior officer and he was not personally aware of the actual offence of which the person was suspected by his superior. It was held that such arrest was liable to be declared to have been unlawful in habeas corpus proceedings.
In Sri Lanka unlike in England a subject could always sue an officer of the Crown-vide 72 N.L.R. 337 (supra) this right did not exist in England. The subject there did not have the right to sue the Crown but had to make an application by way of petition of right to sue the Crown. The Crown Proceedings Act of 1947 simplified the process for the ordinary citizen under section 21 of that Act. The Court is empowered to give some relief against the Crown as against the subject. The only limitation is that in case of an injunction or for specific performance or for an order for recovery of rent or delivery of other property, the subject will only be entitled to a declaratory judgment.
In Ceylon the right of the subject to ask for and obtain an injunction against the Crown has been indirectly exercised in that the subject always had the right to proceed against the officers of the Crown though no authority was cited for or against the proposition that the subject in Ceylon had the right to obtain an injunction against the Crown itself. Therefore it will be seen that the provisions contained in section 24 of the Interpretation Ordinance takes away
119
the right a subject enjoyed in Ceylon right throughout. It will therefore be
seen that where a statute seeks to take away from the
subject a right already
existing in that subject, very strict interpretation must be placed on the words
which seek to take away
such right from the subject. The approach to this
question in our country must necessarily be different to the approach in England
because in England the subject did not have the right to sue the Crown directly
or indirectly.
It is therefore necessary to consider the several authorities which have been
cited in the course of the arguments to find out whether
the language used in
section 24 of the Interpretation Act or language similar to the language
occurring in section 24 have been
judicially interpreted. It is for this very
purpose that reference was made to judicial decisions to interpret the language
used
in section 88 of the Police Ordinance, section 461 of the Civil Procedure
Code and Regulation 55 of the Emergency regulations. In
the light of the
preclusion clause in section 24 it will be necessary to consider whether such
clause operates where a person exercising
the power, uses it for a mala fide
purpose or ulterior object.
In Smith v. East Elloe (supra) the preclusion clause was to the effect that an order made under the Acquisition of Land (Authorisation Procedure) Act of 1946 may be questioned in the High Court within 6 weeks from the notification of the Minister's confirmation on the ground of procedural error or ultra vires, but after the expiration of that period such order "shall not either before or after which has been confirmed or given be questioned in any legal proceedings whatsoever." The House of Lords by majority of 3 to 2 held that this order could not be questioned in any Court of Law on any ground whatsoever and included malice and bad faith. This authority stood unchallenged in England right up to 1969 when the case Anisminic v. The Foreign Compensation Commission (supra) was decided in the House of Lords.
Long before that in 1963-the interpretation of the preclusion clause came to be considered in India in the case reported in 1963 AIR Supreme Court -page 151 in the case of Somawanti and Others v. The State of Punjab (supra). The ratio decidendi in that case was in direct conflict to the ratio in the East Elloe case. In the course of the majority judgment in that case, it was held that whether in a particular case the purpose for which the land is needed is a public purpose or not is for the State Government to be satisfied about. If the purpose for which the land is being acquired by the State is within the Legislative competence then the declaration of the Government will be final, subject, however, to one exception. That exception is that if there is a colourable exercise of power the declaration will be open to challenge at the instance of the aggrieved party. If it appears that what the Government is satisfied about is not a public purpose but a private purpose or not purpose at
120
all the action of the Government would be colourable and not relatable to the power conferred upon it by the Act and its declaration will be a nullity. To such a declaration the protection of section 6 subsection (3) will not extend. For the question whether a particular action was the result of fraud or not is always justiciable provisions such as section 6 subsection (3) notwithstanding.
In the Land Acquisition Act of 1894 the declaration under section 6 was that the
particular land was needed for a public purpose
or for a company and was not to
be made by the Government arbitrarily, but on the basis of material placed
before it by the Collector.
Subsection (3) of section 6 proceeds to state that
such declaration shall be conclusive evidence that the land is needed for a
public purpose or for the company. At page 166 of the judgment the Supreme Court
considered the East Elloe case (supra). Considering
the principles enunciated in
the East Elloe case-Mudholkar, J. with whom the majority Judges agreed stated,
'The House of Lords
held by majority that the action could not proceed except
against the clerk for damages because the plain prohibition in paragraph
16
precluded the Court challenging the validity of the order. They also held that
paragraph 15 gave no opportunity to a person
aggrieved to question the validity
of a compulsory purchase order on the ground that it was made or conferred in
bad faith. As
we have already said the condition for the exercise of the power
by the State Government is the existence of a public purpose or
a purpose of a
company and if the Government makes that declaration under section 6 -
subsection (1) in fraud of the powers conferred
upon it by that section the
satisfaction on which the declaration is made is not about a matter with respect
to which it is required
to be satisfied by the provision and, therefore its
declaration is open to challenge as being without any legal effect. We are not
prepared to go as far as the House of Lords in the above case."
In the Anisminic case (supra) by a majority decision it was held that on a true
construction of section 4 subsection 4 of the Foreign
Compensation Act 1950,
determination meant a real determination and not a purported determination, and
accordingly this subsection
did not operate to exclude inquiry by a Court of Law
in the present case. In the course of the judgment the dictum in the East Elloe
case (supra) was doubted.
Lord Reid at page 215 states, "the case which gives most difficulty is Smith V, East Elloe Rural District Council and Others (supra) where the form of the ouster clause was similar to that in the present case. But I cannot regard it as a very satisfactory case. . . There was no citation of the authorities on the question whether a clause ousting the jurisdiction of the Court applies when nullity was in question and there was little about this matter in the speeches. I do not therefore regard this case as a binding authority on this question... I have come without hesitation to the conclusion that in this case we are not
121
prevented from inquiring whether the order of the commission was a nullity. It
has sometimes been said that it is only when a tribunal
acts without
jurisdiction that its decision is a nullity. But in such cases jurisdiction has
been used in a very wide sense, and
I have come to the conclusion that it is
better not to use the term except in the narrow and original sense of the
tribunal being
entitled to enter on the inquiry in question. But, there are many
cases where, although the tribunal had jurisdiction to enter on
the inquiry, it
had done or failed to do something in the course of the inquiry, which is of
such a nature that its decision is
a nullity. It may have given its decision in
bad faith. It may have made a decision which it had no power to make. It may
have
failed in the course of the inquiry, to comply with the requirements of
natural justice. It may in perfect good faith have misconstrued
the provision
giving it power to act so that it failed to deal with the question remitted to
it and decided some question which
was not remitted to it. It may have refused
to take into account something which it was required to take into account or it
may
have based its decision on some matter which, under the provisions setting
it up, it had no right to take into account. I do not
intend this list to be
exhaustive. But, if it decides the question remitted to it for decision without
committing any of these
errors it is as much entitled to decide that question
wrongly as it is to decide it rightly."
At page 246 Lord Wilberforce agreeing with Lord Reid and Lord Pearce states, "I
cannot regard Smith v. East Elloe (supra) as
a reliable solvent of this appeal,
or on any case where similar question arises. The preclusive clause was indeed
very similar
to the present, but, however inevitable the particular decision may
have been, it was given on too narrow basis to assist us here."
As I indicated earlier in the arguments before Parliament when the Draft Bill
was presented the attention of the House was pinpointed
and specifically drawn
to the East Elloe case and the Anisminic case. The deletion of certain words
from the original Draft Bill
and the incorporation of subsection (1) which did
not exist in the Draft Bill and had been made by the House apparently after
considering
the effect of these cases. The House must necessarily have given
considerable thought to the wording of the Bill in the present
form. The
intention of Parliament therefore must be inferred from the words used in the
particular enactment, the language used
in the enactment and from an analysis of
the language used. It is also indicative of the intention of the Parliament that
it had
amended the original Draft bill substantially in order to give effect to
its intention.
Lord Simonds in 1951-2 All E.R.-page 839 (supra) states, 'The duty of the Court is to interpret the words that the Legislature had used. Those words may be ambiguous, but even if they are, the power and the duty of the court to travel outside of them on a voyage of discovery are strictly limited.' He
122
proceeds to
state that it is not the duty of the court once the intention of Parliament has
been ascertained to fill in the gaps
or for the Court to write what the
Legislature has not written. That would be a naked usurpation of the Legislative
function under
the disguise of interpretation and he proceeds to state, "and it
is the least justifiable when it is guess work with what material
the
Legislature would if it had discovered the gap, had filled it in. If a gap is
disclosed the remedy lies in an Amending Act."
I would also refer to a case in 1968-2 AER (supra) page 356. It was contended in
that case that there was sufficient grounds for
inferring that Parliament
intended to exclude the general rule that mens rea is an essential element in
every offence. In the course
of the judgment-Lord Reid stated, "the rule is
firmly established that we may look at the Hansard and in general I agree with
it for reasons which I gave last year in Beswick v. Beswick." He proceeded to
refer to the undesirability of looking into
Parliament proceedings in order to
arrive at the intention of Parliament. He indicated that this would lead into
realms of conjecture
and lead to unnecessary speculation and surmises.
Learned Solicitor-General referred us to Craies on Statute Law-7th Edition (supra)-page 125 and referred us to passage cited from Jawkins v. Gather . . . reproduced therein which reads, "The dominant purpose in construing a statute is to ascertain the intention of the Legislature to be ... .from the course and the necessity of the act being made, from a comparison of its several parts and from foreign circumstances so far as they could justly be considered to throw light upon the subject." This dictum would undoubtedly be good if the intention of the Legislature was reflected in the wording of section 24 had not been judicially interpreted in parallel instances both in our Courts and in Courts beyond our shores. In the same authority cited by me at page 91 Willes, J. states, "No doubt the general rule is that the language of an Act is to be read according to its ordinary grammatical construction unless so reading it would entail some absurdity, repugnancy or injustice... but I utterly repudiate the notion that it is competent to a Judge to modify the language of an Act in order to bring it in accordance with his views of what is right or reasonable."
In the context of this passage and in view of the avowed intentions of the then Parliament die question arises for consideration whether the wording of this section was meant to cover an illegal act, a mala fide act, or an ultra vires act, or whether this section contemplated that the relief would not be available only in cases where an act is done within the four corners of this statute or in the bona fide belief that the act is within the statute. Can it therefore be said that under the guise of this statute the Legislature sought to condone even mala fide acts on the ground of expediency ?
123
Undoubtedly by section 22 there was an ouster of jurisdiction of Court in no ambiguous terms. It would be seen that when one compares the words in section 22 with the words in section 24, the ouster clause in section 24 is not as emphatic nor as wide nor so absolute as in section 22. Words similar to or having the same effect as, "No Court shall in any proceedings and upon any ground whatsoever, have jurisdiction to pronounce upon the validity or legality or such order, decision, determination, direction or finding, made or issued in the exercise or the apparent exercise of the power conferred on such person" is not reflected in the wordings of section 24. The wordings in section 24 completely oust jurisdiction of Courts. If it was sought to oust one of the remedies that was open to the subject by section 24 one could conceivably have used words to like effect as in section 22. But the wording in section 24 would bear close analysis, particularly in view of judicial review of cases where exclusion clauses of similar import have been made. The words in Section 24 .... "in respect of any Act done or intended or about to be done by any such person or authority in the exercise of any power or authority vested by law in any such person or authority" appears to my mind to qualify the earlier part of section 24 - subsection (1) - when a person does any act in the exercise of any power or authority vested by law in any such person or authority one clearly envisages a person acting within the four corners of that Law or of the authority. If a person acts bona fide in the belief that he is so entitled to Act under that Law or by that authority then clearly that person cannot be said to be acting mala fide or in the purported exercise of such power or without jurisdiction or excess of such power but if a person makes use of the power or authority for co-lateral purposes and is actuated by malice or mala fides then it appears to me that he would not be acting in the exercise of any such power or any such authority. The deletion of the words "purported" in the Draft Bill to my mind is clearly indicative that the words "in the exercise of any power or authority" must necessarily mean in the due or proper exercise of such power or authority.
If it was the intention of the Legislature that the section 24
was meant to cover up all acts including mala fides, those without
jurisdiction
and those in excess of jurisdiction, then it appears to me that the use of the
words "in the exercise of any
power or authority" clearly negatives such
intention on the part of the Legislature.
It also appears to me that if subsection (1) stopped at the words "of such
commission," without the remaining parts of
the section being incorporated in
this section then an argument could be adduced with force and logic behind it,
that remedy by
way of injunction would not be available to the subject in
proceedings contemplated in section 24. The inclusion of the words from
"in
respect of any Act" up to such person or authority" is in fact a limitation of
the absolute withdrawal of the
remedy in the earlier part of the section.
124
On a careful consideration of all the authorities and references made by
Attorneys for State and the respondents it is my opinion
that the subject is
left without the remedy by way of injunction, perpetual and interim, by virtue
of the provision of section
24 of the Interpretation Amendment Act only in cases
where there has been a due or proper exercise of any power or authority vested
by Law in any person or authority who exercises that power, and the subject will
still have the right to resort to injunctions
where mala fides and excess of
jurisdiction or absence of jurisdiction or bad faith etc. exists or is alleged
to exist.
I am therefore of the opinion that the notices issued in these several cases
should be discharged and the cases be remitted to the
respective Courts for the
cases to be proceeded with in the normal course.
I would make no order with regard to costs in this Court as these matters came
up for hearing at the instance of this Court.
GUNASEKERA, J.
On the application of Mr. H. W. Jayewardene, Counsel appearing for the petitioners, in application Nos. APN/GEN/6 & 7/74; and Mr. M. Tiruchelvam, Counsel appearing for the petitioners in application No. APN/GEN/7/74, and the Acting Solicitor-General consenting, the Acting Chief Justice, A.C.A. Alles, in terms of section 14(3) of the Administration of Justice Law No. 44 of 1973, made order referring these eleven applications for decision by a Bench of nine Judges.
In all these applications either a High Court or a District Court has issued an 'interim injunction' restraining the Minister of Agriculture and Lands from taking steps for the acquisition of some land or premises for a public purpose, in terms of the Land Acquisition Ordinance, until, in the case of the High Courts, a declaratory action was filed in the appropriate District Court after due notice in terms of section 461 of the Civil Procedure Code had been given to the Minister, and in the case of District Courts, until, a final determination of the declaratory actions pending in those Courts.
In all these cases, this Court had on the order of Mr. Justice Pathirana, Mr. Justice Udalagama and Mr. Justice Wijesundera, acting in terms of section 354 of the Administration of Justice Law issued Notice on the petitioners, in these cases, to show cause why the orders of injunction issued against the Minister should not be set aside and the question that now arises for determination by this Court of nine Judges, is whether, in law, such injunctions could have issued or can remain in force against the Minister, in these several cases, in view of the provisions of section 24 of the Interpretation Ordinance, introduced by Interpretation (Amendment) Act No. 18 of 1972.
125
Section 23 & 24 of that Act are in these terms:
"23. Subject to the provisions of section 24, where a Court of original civil jurisdiction is empowered by any enactment, whether passed or made before or after the commencement of this Ordinance, to declare a right or status, such enactment shall not be construed to empower such Court to entertain or to enter decree or make any order in any action for a declaration of a right or status upon any ground whatsoever, arising out of or in respect of or in derogation of any order, decision, determination, direction or finding which any person, authority or tribunal is empowered to make or issue under any written law.
Provided, however, that the provisions of this section shall not be deemed to affect the power of such court to make an order or decree relating to the payment of damages."
"24. (1) Nothing in any enactment, whether passed or made before or after the commencement of this Ordinance, shall be construed to confer on any action or other civil proceedings, the power to grant an injunction 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 such Commission, in respect of any act done or intended or about to be done by any such person or authority in the exercise of any power or authority vested by law in any such person or authority.
Provided, however, that the preceding provisions of this subsection shall not be deemed to affect the power of such court to make, in lieu thereof, an order declaratory of rights of parties.
(2) No Court shall in any civil proceeding grant any injunction or make an order against an officer of the Crown if the granting of the injunction or the making of the order would be to give relief against the Crown which could not have been obtained against the Crown."
The proper approach to interpreting any statute has been stated thus:
"The literal construction then, has, in general but prima facie preference. To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope, and object of the whole Act, to consider, according to Lord Coke (Heydon's case (supra)),
(i) what was the law before the Act was passed;
(ii) what was the 'mischief or defect for which the Law had not provided;
(iii) what remedy the Parliament has appointed; and
(iv) the reason for the remedy.
126
(Maxwell's Interpretation of Statutes. 9th Edition: Page 22).
The "Old Law" and the "Mischief in this instance are best illustrated by reference to the facts of one of the above cases, No. APN/GEN/8. The Minister's affidavit, filed in this case reveals that for the purpose of village expansion, as far back as 21st March, 1971, notices were published to acquire Bowalana estate in Hewaheta electorate, in extent 1253 acres, 1 rood, and 34 perches, and that the necessary steps were being taken for this purpose without any objection by the owners of the Estate, till on 22.9.74, one Muthiah Pillai of Kumara Stores, Bowalana Group, filed this application No. APN/GEN/8/74, in the High Court of Kandy for an 'interim injunction' restraining the Minister from proceeding further with the acquisition until he filed an action in the District Court for declaration that the acquisition was a nullity on the ground of mala fides on the part of the Minister of Agriculture and Lands. Muthiah Pillai states that he is the owner of an extent of one acre together with the building thereon called 'Kumara Stores' situated in Royal Division, Bowalana Group, and that he had been residing there running a business for 27 years. He had himself applied for an allotment of land in the proposed scheme of village expansion but had not received one, and thereafter alleging that the Minister "is motivated by malice" as he is hostile to the Tamil population of the area who supported the United National Party at the general election in 1970, he avers that the whole scheme of village expansion is a fraud and nullity.
The Minister filed affidavit stating, inter alia:
(d) this respondent denies the allegation that the said acquisition has been
motivated by malice or illwill and states that the acquisition
has been effected
solely for a public purpose, namely, village expansion in furtherance of the
land policy of the government.
(e) in view of the provisions of section 24 of the Interpretation Ordinance as
amended by Act No. 18 of 1972 this Court has no jurisdiction
to grant any
injunction against the respondent restraining him from proceeding with the said
acquisition.
The High Court granted an injunction on 22.2.74 to be effective till 5.4.74 and thereafter in District Court, Kandy case No. L/10570(APN/GEN/ll/74), on these same averments on 22.4.74 the District Court of Kandy, issued a further "interim injunction" against the Minister to be effective "until the final determination of the action."
The entire scheme of village expansion in that locality has thus been effectively stalled, and whatever the urgency of the scheme or, however pressing the need of the people, and whatever the chances of proving
127
mala fides of the
Minister on these averments, further proceedings will be stayed until the end of
a long drawn out District Court
trial which has not yet begun, and a decision on
appeal by this Court. The learned acting Solicitor-General mentioned in the
argument
that there were over 35 cases of land acquisition for public purposes
held up by pending actions filed on the ground of mala fides.
The 'mischief is also not of recent times. During the regime of the previous
Government of the United National Party the government
sought to widen a "one
way" diversion road to case traffic on the very narrow part of the trunk road
from Colombo to
Badulla going through Balangoda town and on the allegation of
political revenge and malice on the part of the then Minister this
Court issued
an 'interim injunction' restraining the Minister from acquiring a few perches of
land necessary to effect the much
needed widening of the diversion. (See
Ratwatte v. Minister of Lands (supra)). Whether the proposed declaratory action
was filed
or not or whether the proposed acquisition was abandoned we do not
know, but this road remains the same even today and if the present
Government of
the United Front decided to abandon the diversion and widen the trunk road, the
owners of the land on either side
of the trunk road, who belong to the opposite
political party, will allege political revenge and malice in the same way and
obtain
(unless the amending law prevents it) a similar injunction and the
congestion on the trunk road will remain for ever.
It was submitted at the argument by Mr. Jayewardene himself that the previous Government had many of its land acquisitions stayed in this same manner and that a Draft Bill was presented to Parliament to amend the Land Acquisition Ordinance so that disputes of this nature would have been referred to the Supreme Court for a quick and early decision within a period of three months, but that owing to opposition in Parliament the proposed legislation was abandoned and ultimately only amending Act No. 20 of 1969 was passed to introduce the Land Acquisition Ordinance.
"Section 51A(1): Where any decision, declaration or Order to which this section applies, and any act or thing done under or in consequence of such decision, declaration or Order is called in question in any court whether by way of action, appeal, application in revision or any mandate in the nature of a writ referred to in Section 42 of the Courts Ordinance, such court shall give the highest priority to the hearing and disposal of such action, appeal application or mandate, and for that purpose shall ordinarily hear and dispose of such action, appeal, application or mandate before all other business or cases pending or being heard or disposed of by such Court.
(2) This section shall apply to any decision made under section 4, any
declaration made under section 5, and any Order made under
section 38."
128
This shows that the 'mischief was common ground at the argument and this makes
it unnecessary for this Court to refer to the speech
of the Minister of Justice,
in the Hansard, introducing the Bill of the amending Act, in the National State
Assembly, as the learned
acting Solicitor-General invited us to do. He also
submitted that not one of the many declaratory actions filed in this manner
throughout the years had succeeded in proving mala fides on the part of the
Minister. Counsel for the petitioner claimed that there
had, in fact, been one
case where the District Judge held that there was mala fides but even in that
case the Acting Solicitor-General
says the finding was not one of actual malice
but "statutory malice."
It is in this context and, mainly, with the intention of remedying this
"mischief of holding up acquisitions of lands for essential
public purposes on
the mere allegation of malice on the part of the Minister, that the Legislature
enacted the above sections 23
& 24.
"A statute is the 'will' of the Legislature, and the fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of them that made it. If the words of the statute are in themselves precise and unambiguous no more is necessary than to expound these words in their natural and ordinary sense, the words themselves in such a case best declaring the intention of the Legislature." (Maxwell, ibid, Page 1)
Our section 24, it was common ground, was modelled on section 21 of the Crown
Proceedings Act of 1974 of England and it was also
conceded that if our section
had been identical with section 21 of the England Statute (see its reproduction
in 59 N.L.R. at 332),
the High Courts and the District Courts could not have
issued these "interim injunctions," for in the law of England today,
as
deliberately enacted in that Act, no injunction can issue against a Minister,
even if, as in these instant cases, it is alleged
that the Minister acted mala
fide and "infraus legis" Considering the "mischief it is also apparent that the
intention
of the National State Assembly was to equate our law to that
prevailing in England since 1947 and it is our function to decide whether
the
Legislature has achieved this in section 24, or whether owing to the difference
in language in our section the "old law"
and the "mischief remained just the
same as before the enactment of section 24.
The Acting Solicitor-General has explained that the difference in language
became necessary because in England a Minister is included
in the definition
"Officer of the Crown" and so it was sufficient to absolutely bar the issue of
injunctions against
the Crown in Section 21(1), and in Section 21(2) to bar the
issue of injunctions against an officer of the Crown, only if the effect
of
issuing an injunction against him would be to give the relief of injunction
against the Crown. As in our country a Minister
(and at the time of this
enactment, members of the Public Service Commission and the Judicial
129
Service Commission) were not "Officers of the Crown," they had to be specially mentioned
in section 24(1). But in the order
to bar the issue of interim injunction
against them, not absolutely, but only in respect of their "official acts" the
legislature added these words:
"in respect of any act done or intended or about to be done by any such person
or authority in the exercise of any power or
authority vested by law in any such
person or authority" (hereafter referred to as "those words").
He contended that the Minister of Agriculture and Lands had in all the instant cases acted in the exercise of his power or authority given to him by the Land Acquisition Ordinance and that therefore on a plain reading of the section 24(1) no injunction could have issued against him,
Mr. Jayewardene, however, contended that the introduction of these words in section 24(1) has the result of leaving the law as it was prior to its enactment. Firstly, he argued that whenever the law referred in a statute to "any act done in the exercise of a power," the Legislature necessarily intends and refers only to "a bona fide" or "lawful" "exercise of power," and that we must read the words "bona fide or lawful" into these words and that the result would then be that this prohibition does not apply in the instant case," because mala fides are alleged, and the injunctions could have issued and can remain in these cases. He supports this argument by reference to section 88 of the Police Ordinance which limits the time within which an action may be brought against a police officer "for anything done or intended to be done under the provisions" of that Ordinance and the cases where it has been held that a police officer who is found to have acted maliciously and not in the bona fide exercise of his official duties was not entitled to rely on this limitation of actions Perera v. Hansard (supra) page 1, Van Haught v. Keegal, [133 (1917) 4 C.W.R.258.] Ismalanne Lokka v. Haramanis (supra) and Punchi Banda v. Ibrahim (supra). He relies also on the cases, Appu Singho v. Don Awn (supra), Abaran v. Banda (supra) and Saranankara v. Kapurala (supra) which have decided that the requirement of notice of action in sections 461, Civil Procedure Code "in respect of an act purported to be done by a public officer in his official capacity" applied only to bona fide acts and that if it was proved that the official had acted mala fide he could not rely on this statutory requirement.
Mr. Jayewardene next argued on the basis that the main part of section 21(1) contains a "preclusion provision" and he relied on several decisions of the Courts of England, Australia, Canada, South Africa, and India and our two cases of, Hirdaramani v. Ratnavale (supra) and Gunasekera v. Ratnavale (supra), all of which affirmed the fundamental rule of interpretation accepted by these Courts, that where a statute contained, in respect of a decision of a tribunal or other authority, an ouster clause, with words in the nature of "shall
130
not be called in question in any Court," an allegation that the tribunal or authority had acted mala fide would give the Courts jurisdiction to examine such decision despite such clause. He relied also on the dicta in these cases which said that mala fides reduces an act or decision of a person or authority to a nullity.
I think these submissions are unacceptable because they are based, on an examination of the main part only of section 24(1), separately, and torn out of its context, and apart from and ignoring, the proviso. For a proper adjudication of the question involved in these cases section 23 and section 24(1) in its entirety, must be considered as a whole and proper meaning and due emphasis must be given to the proviso (see Jayasekera v. Ceylon Insurance Company Limited [134 (1966) 69 N.L.R 505.] ) and specially to the words 'in lieu thereof therein.
Such an examination of these sections shows quite clearly as far as a Minister of State is concerned,
(1) Section 23 (except as allowed in section 24) has now abolished or taken away
from the courts its jurisdiction to entertain and
from the citizen the right he
had (Ladamuttu Pillai v. Attorney-General (1957) 59 N.L.R. at 333) to bring a
declaratory action
to question on any ground whatsoever any order, decision or
direction made by a Minister acting under any written law.
(2) Far from containing an ouster or preclusion clause, the proviso to section
24(1) expressly and as an exception, restores that
jurisdiction, and right,
taken away by section 23, and permits the filing of such a declaratory action,
but,
(a) only in cases where an interim injunction (or specific performance) would be
the normal remedy, and so in actions such as the
instant cases, and,
(b) only "in lieu of such injunction; as section 24(1) bars the Courts from
issuing an injunction in respect of any "act"
done by the Minister in the
exercise of any power or authority vested by law in him. , From these statutory
provisions it follows
that, as far as the instant cases are concerned,
(1) as section 23 has abolished the declaratory actions against a Minister
acting under a written law, on any ground whatsoever,
these instant cases
brought against the Minister of Agriculture and Lands acting in
131
terms of the Land Acquisition Ordinance, could only have been filed in terms of the proviso in section 24(1) and that therefore these cases are completely governed and limited by the provisions of section 24(1).
(2) the words "in lieu thereof in the proviso necessarily mean that the declaratory action in the proviso and the barred injunction, in lieu of which it is given, relate to one and the same.
"Act done or intended or about to be done by any such person or authority in the exercise of any power or authority vested by law in any such person or authority."
These words are not repeated in the proviso as that would be inelegant drafting, but for a proper understanding of the section, the words "in lieu thereof compels us to read the proviso,
"provided, however, that the preceding provisions of this subsection shall not be deemed to affect the power of such court to make, 'in lieu thereof an order declaratory of rights of parties in respect of such act done or intended or about to be done by any such person or authority in the exercise of any power or authority vested by law in any such person or authority."
It follows logically from this that we cannot introduce the words "bona fide"
into these words in the main part of the
section because, owing to the words 'in
lieu thereof automatically we have to add them to these same words, present by
implication,
in the proviso, and we cannot do so specially in these cases where
mala fides is alleged without making nonsense of the section.
The rules of
interpretation will not permit us to add anything to these words in this
context, as they only make sense without
the addition of any unauthorised words.
However in these cases, if any words are to be added at all to the main part,
the allegation
in the section under the proviso being that the acts are mala
fide, only the word "mala fide" may be added where Mr. Jayewardene
has suggested
"bona fide."
I therefore hold that no injunction can ever issue in any declaratory action
brought under the proviso because the section in plain
and unambiguous words
gives the action and bars the injunction in respect of the same "cause of
action," if I may use
those words analogously. I also hold that these words only
refer in the context to a state of fact, and not a state of mind and
that in
this context the existence of this state of fact has to be found by a court by
an objective test looking only at the act
complained of and the empowering law,
and not looking into, if that is possible at all, the mind of the Minister. The
question
whether an interim injunction should issue arises for decision at the
beginning of the declaratory action, and mala fides can only
be established at
the end of such case.
132
I need, further, only say that the fear expressed at the argument that if we do not hold with the petitioners in this case, tomorrow the Minister of Cultural Affairs or the Inspector-General of Police can start land acquisition proceedings and the courts shall be powerless to stop these proceedings is absolutely groundless and based on a misreading, or rather non-reading, of the plain words of the section. Section 23 bars declaratory actions only in respect of a Minister's decision authorised by written law and section 24 bars injunctions in respect of a Minister's acts done under a power or authority vested by law in him and today no law authorises either the Cultural Affairs Minister or the Police Chief to acquire lands and the courts will be quite free, on account of the very words of these two sections, to entertain declaratory actions and issue injunctions against these persons so acting.
Mr. Tiruchelvam argued, that section 24 only took away, if at all, the courts' power of granting injunctions, where such powers had been granted by "enactment" and that inherent right of Courts to issue injunctions still remains unaffected by section 24. However, our Courts were created by the Courts Ordinance and their power to grant injunctions was conferred only by the Courts Ordinance and Civil Procedure Code, and they have no further inherent powers with regard to injunctions, and this was so stated as far back as 1895 in the case of Mohamadu v. Ibrahim (supra). He next argued that the words "in lieu thereof meant that only 'permanent injunctions' were barred and Courts can still issue 'interim injunctions.' The Courts Ordinance and the Civil Procedure Code speak only of "injunctions" and section 24 bars "injunctions" and an injunction whether it is limited in point of time or not, always remains an injunction. Besides, the purposes of an 'interim injunction' is only to maintain the status quo until at the end of the action, a permanent injunction can be issued, but if the permanent injunction itself cannot issue in law, there is no purpose in issuing an interim injunction until the end of that action.
Mr. Jayewardene also submitted that there was no purpose in giving the citizen a declaratory action if the courts could not make the litigation worthwhile to him by maintaining the status quo, pendente lite, and securing to him the fruits of his victory by a permanent injunction. But in a similar situation where the Court had no power to give effect to its declaration against the Crown, Gratiaen J., observed, "But courts of Justice have always assumed, so far without disillusionment, that the declaratory decree against the Crown will be respected" {Attorney-General v. Sabaratnam (supra)). Besides, we have by this amendment only brought our law in this respect in line with the law prevailing in England since 1947.
The fear, also expressed, that by the time a declaration is obtained the state will have changed the nature of the property irretrievably can also be allayed by a similar assumption, that the State will respect pending actions in its Courts and will seek the advice of its State Attorneys before proceeding in such a challenged acquisition. If no injunction is available, proper use of the
133
amended section 51 (1) of the Land Acquisition Ordinance will be made in the
future and the declaratory actions may well be decided
before the various steps
of acquisition are gone through.
The "old law" permitted declaratory actions to be freely filed against the
Minister to question any acquisition inter
alia, on the ground of his mala
fides, and though all such cases filed in the past have failed, the Courts were
always compelled
to issue interim injunctions, on a mere averment of mala fides
in the affidavit filed with the plaint; and owing to the laws delays
thereafter,
the acquisitions were just held up for many years. The amendment still preserves
an unlimited right of action as in
the past but, to remedy the "mischief," has
only stopped the almost automatic issue of an injunction and this will certainly
now discourage in the future the filing of any frivolous actions, aimed more at
delaying proceedings. The genuine action will still
be filed and the state will
undoubtedly take heed of such, and where necessary stay further proceedings.
I will not deal with Mr. Jayewardene's argument that we have no jurisdiction to hear and determine these cases because of the facts fully set out in the other judgments of this Court. These cases have been referred to us by the Acting Chief Justice on Mr. Jayewardene's own invitation and that reference is impeccable, and we have the necessary jurisdiction.
I therefore hold that the injunctions issued by the various High Courts and the various District Courts in these several cases before us, were issued contrary to law, and I make order that all these injunctions in these cases be vacated.
I have referred in my judgment only to the arguments of Mr. Jayewardene and Mr. Tiruchelvam because these were the main arguments in the case which all the other Counsel supported. But I am thankful to all the Counsel who addressed us because they all developed individually various aspects of the problem before us and gave us all the assistance necessary.
WEERARATNE, J.
This Bench was constituted by the Chief Justice on the ground that questions of general and public importance were involved in several cases in which interim injunctions were issued by the relevant High Courts and District Courts on the Honourable H. S. R. B. Kobbekaduwa, Minister of Agriculture and Lands, restraining him from taking any further steps towards the acquisition of the relevant petitioners' properties and from evicting the petitioners' servants and agents from the lands or buildings standing thereon. The injunctions were to be valid and operative for a stipulated period of time, during which the petitioners were to seek their appropriate relief from the relevant Courts.
134
At a stage when the petitioners were taking necessary steps to obtain relief
from the said Courts, as undertaken by them, this Court
issued notices signed by
a Bench of Three Judges of the Supreme Court, to the petitioners, to appear and
show cause as to why the
orders of the said High Courts and District Courts
should not be set aside in the exercise of the powers of revision. The
Respondents-Defendants
and the Attorney-General were also noticed to appear.
When the present matter was taken up for hearing Counsel for the Petitioners as
well as the Attorney-General agreed that the matters
which arise for decision by
this Bench are similar in all the cases in which the said parties were noticed,
except certain cases
which concerned the Land Reform Commission. Consequently,
the remaining appeals were consolidated for hearing before this Bench
of Judges.
A resume of the course this matter took leading up to the questions discussed
before us would indeed be helpful. It was the case
for the petitioner that the
respondent as Minister of Agriculture and Lands sought to acquire 70 perches of
land called 'Nithamaluwa'
which is altogether 82 acres in extent as described in
the schedule 'A' and schedule 'B' in the petition. In this case it would
be
relevant to state that after the notices under section 2 and section 4 of the
Land Acquisition Ordinance were issued stating
that the land was required for a
"public purpose," the declaration under section 5 was published. Thereafter an
order
under proviso (a) of section 38 of the Act was made, and if all the
relevant prerequisites in terms of the Act were legally and
validly attended to,
not only would the declaration of the Minister under section 5 of the said Act
have been conclusive but also
would the order made under the proviso to section
38 of the Act have been conclusive evidence of the title of the State to the
land so acquired. In short, the whole of the acquisition proceedings, by 11th
December, 1973 were attended to except that the order
to take possession of the
said land was communicated to the petitioners by letters PI dated 12th February,
1974.
In this connection it would be relevant to mention that the Minister had the
power to revoke the relevant vesting orders until such
time actual possession of
the said land was given to the State as set out in section 39 of the said
Acquisition Act. Consequent
to an application filed in the District Court of
Bandarawela an interim injunction was granted on the 24th April, 1974
restraining
the defendant Minister from taking any further steps in the said
acquisition.
On the 11th March, 1974 the petitioners moved the High Court for an injunction and on the 14th March, 1974 the Judge granted the injunction valid until the 25th April, 1974 restraining the respondent Minister from taking any further steps towards the said acquisition within which time the petitioners as stated by him would seek their relief from the District Court. Then on the 28th
135
March,
1974 the respondent Minister had made an application in the High Court stating
the steps taken to acquire the said property.
The allegation made by the
petitioners that the respondent Minister was influenced by false and malicious
representation made to
him by S. D. Delungahawatte, Member of the National State
Assembly for Uva-Paranagama, was denied, but, it was further averred that
the
said acquisition was made in furtherance of the land policy of the Government,
solely for the public purpose of village expansion.
An affidavit of the Minister
was also filed. The learned High Court Judge in his order dated 9.4.74 gave his
reasons for rejecting
the submissions made by the Deputy Solicitor-General who
appeared on behalf of the respondent Minister and said, inter alia, that
the
petitioners were entitled to question the validity of the said acquisition
proceedings and to show that they were void ab initio
and, therefore, a nullity.
He further stated that the basis of the petitioners' complaint is that the said
acquisition was done
mala fide and for an ulterior purpose, and if so proved the
proceedings would be a nullity. It was indeed significant that mere
was no
appeal or an application in revision made thereafter from the order of the High
Court, and in the meantime the six weeks'
period given in respect of the
injunction had elapsed.
Thereafter the notices referred to earlier were issued on the petitioners signed
by three Judges of this Court to show cause why
the said orders of the High
Court should not be set aside, since the orders "on the face of the record
appeared to be illegal
in view of the provisions of section 24 of the
Interpretation Ordinance as amended by Act No. 18 of 1972."
Mr. H. W. Jayewardene appearing on behalf of the petitioners before this Bench submitted that there was no live issue for this Court to consider in regard to the injunction since it has expired; secondly, that neither party nor the Attorney-General moved in this matter invoking the jurisdiction of this Court; and, thirdly, that the respondent Minister had acted in bad faith in making orders under section 5 and section 38 of the Land Acquisition Ordinance in that he was influenced by the said Member of the National State Assembly. Counsel for both sides very strenuously argued the question relating to the applicability of section 24 of the Interpretation Ordinance as amended by Act No. 18 of 1972. Counsel for the petitioners contended that section 24 of this Act has no application in the granting of an interim injunction in this case, if it can be shown that the act of die authority invested with the power to acquire the said land was done for an ulterior purpose and consequently mala fide. Several Senior Counsel who made their submissions thereafter associated themselves with the arguments advanced by Mr. Jayewardene and raised their points in support of the petitioners' claim for a temporary injunction. I shall, however, deal with any other points made by them later in the course of this judgment.
The learned Solicitor-General, on the other hand, argued that the Legislature in framing section 24 of the Interpretation Act has thought that it
136
would not be in the public interest that injunctions should be granted, and, he posed the question as to why the words set out in section 24 should only apply to bona fide acts also.
Before I deal with section 24 of the Interpretation Ordinance it would be
helpful to consider shortly some of the legal implications
of an injunction. An
injunction is a judicial process, which is an order, to refrain from doing an
act. A temporary injunction,
also known as an interim or an interlocutory
injunction as referred to in section 21 and section 42 of the Administration of
Justice
Act No. 44 of 1973 and Chapter 48 of the Civil Procedure Code, has a
history of equitable relief. The Courts would not permit any
person within its
reach to do what is contrary to its notion of equity. In the case of Ratwatte v.
The Minister of Lands (supra)
Samarawickrame, J. referring to a passage from
Halsbury's Laws of England (Simonds Ed.) Vol. 21, page 365 stated that in order
that an interim injunction may issue it is not necessary that a Court should
find a case which would entitle the plaintiff to relief
at all events; it is
quite sufficient if the Court finds a case which shows that there is a
substantial question to be investigated,
and that matters ought to be preserved
in status quo until that question can be finally disposed of.
In regard to the scope of the injunction inquiry one of the special
circumstances which the Court must consider in granting an injunction
is that
irremediable damage would ensue from the acts sought to be restrained. It was
argued that in a case such as this an injunction
should be granted because,
otherwise, the defendant would proceed with its unlawful act and the petitioners
would be deprived of
their property.
In short, it was submitted that when there is an allegation of mala fide one
cannot wait for the case to be over for the reason that
irremediable damage
could be done by one who bears malice.
The Legislature in section 24 of the Interpretation (Amendment) Act No. 18 of
1972 has indeed taken away from the Courts the power
to grant an injunction
against a Minister of State ". . . in respect of any act done or intended to be
done or about to be
done by any such person in the exercise of any power or
authority vested by law in any such person ..." The important question,
however,
which arises in the present matter is whether the taint of mala fides, if
established, would reduce to a nullity the act
involving the exercise of power
by the authority invested with the right to acquire any land under the Land
Acquisition Act; or
if one poses the question differently, does section 24 take
within its sweep even mala fide exercise of power by the relevant authority,
and
consequently no injunction lies?
Seeking as we are to interpret a section of the Statute it would be helpful to
bear in mind, in this connection, the words of Viscount
Simon:-
"The golden rule is that the words of a statute must prima facie be given their
ordinary meaning. We must not shirk from an
interpretation which will reverse
the previous law, for the purpose of a large part of our
137
Statute law is to make
lawful that which would not be lawful without the Statute, or conversely
prohibit the results which would
otherwise follow," in the case of Abrahams v.
Mac Fisheries Ltd. 135 Frazer, J. stated:- "In order to ascertain the true
meaning (of the Legislature) it is necessary to ascertain the circumstances with
reference to which the words were used and what
was the object appearing from
those circumstances which the Legislature had in view."
The language of the Act, it was submitted by Counsel, is clear and unambiguous.
The Draftsman has not used any words which would
be colourable in the slightest
degree, such as for instance "ostensible" or "purported" or "apparent,"
which
might involve spurious exercise of power. In short, section 24 of the
Interpretation (Amendment) Act refers to an act done
or intended or about to be
done in the exercise of any power or authority vested in law ...," and not any
act done in the
"purported" exercise of power, or "ostensible" exercise of power
or "apparent" exercise of power.
This phrasing indicates that the Legislature
implied, as Mr. Pullenayagam submitted, "ex-hypothesis" that an act could
not be
done mala fide, in which event the act is not covered in section 24. On a plain
reading of the provision it is indeed clear
that no other rule of interpretation
can be applied so as to modify the plain meaning. As was stated by Lord Simonds,
"to
do so would be to amend the enactment, and thereby participate in a naked
usurpation of the legislative function under the thin
guise of interpretation."
In this connection a matter discussed at some length by Counsel on both sides
was the question whether speeches made by Honourable
Ministers and Members of
the House are permissible as an aid to interpreting the Interpretation
(Amendment) Act in question. Craies
in his work on Statute Law refers to the
words of Lord Wright in the Privy Council:
"It is clear that the language of a Minister of the Crown in proposing in
Parliament a measure which eventually becomes law
is inadmissible ... because it
does not follow that those recommendations were accepted." 136 Craies goes on to
state:-
"The same rule is adopted in Canada . . ." It would appear, however, that the
same considerations that apply to speeches
in the Assembly would not apply to
matters such as the history of the Legislature or the objects and reasons or
other matters in
a Bill presented before the Legislature."
Foot notes
135 2 KB 18 at 34.
136 (1935) A.C. 448 at 458.
138
Lord Halsbury stated:-
"The subject matter with which the Legislature was dealing and the facts
existing at the time with respect to which the Legislature
was legislating would
be relevant matters in interpreting the Act." (Vide Herron v. Rathmines and
Rathgar Improvement Commissioners,
(supra).
Our Courts have considered as admissible the history of legislation and even the
statement of objects and reasons set out in a "Bill"
in order to determine
whether an Act was declaratory of the pre-existing law (vide Weeramantry, J.) in
Costa v. Bank of Ceylon,
(supra).
In the case of Liyanage v. Queen, 137 the Privy Council even examined a White Paper
issued prior to legislation in order to decide the question of ultra vires in
regard
to certain legislation. The Courts in England have indeed been
conservative in regard to reports of Commissions and White Paper.
In fact, Lord
Denning stated:-
"We do not refer to legislative history as they do in America. We do not look at explanatory memoranda which preface a Bill before Parliament and we do not have recourse to objects in Hansard." 138
On the question of memorandum prefaced to Bills, however, Craies states that they are of considerable importance but has not so far been adopted in construing an Act. (vide Craies on Statute Law, 7th Edition at page 131). Craies certainly does regard the draft Bill as an important aid to Courts in construing a Statute, although the English Courts have been as I have stated conservative about it, and many other such aids which have been found acceptable in Sri Lanka and other countries.
The point is that whilst a sound reasoning is advanced by English Courts for
regarding parliamentary speeches as inadmissible no
such reasons are adequately
given in respect of Draft Bills which our Courts have certainly accepted as a
satisfactory aid.
In the case of Rathmines and Rathgar Improvement Commissioners, (supra) which
was referred to by the learned Solicitor-General,
Lord Halsbury at the appeal
did not appear to agree with the Justice's observation at the trial that the
plans and sections were
prepared for the construction of a reservoir "with
substantially different objects and represent designs from which substantial
departures were intended to be sanctioned by amendments
Foot notes
137 68 N.L.R. 265.
138 Letang v. Cooper (1965) 1 Q.B 232.
139
made in the Bill, during its passage through Parliament ... or that a complicated set of work were enacted to be executed for one purpose . . . according to a set of plans designed for another purpose. (I confess I am wholly unable to discover)." Lord Halsbury took the view that there was no disharmony in respect of the Act sought to be interpreted and held that the plain meaning of the Act arising obviously from the grammatical construction of the words and sentences that it contains should be given. In this view of the matter the question of this learned Judge interpreting the Act by references to the Bill does not arise.
I have been at pains to deal at some length on the question of admissibility of
Draft Bills proposed in the State Legislature in
this matter for the reason that
on an examination of the "Bill" which was referred to by Counsel on both sides
we find
in the draft section 24 the following words:-
". . . in respect of an act done or purported to be done by any such person or
authority in the exercise or purported exercise
of power . . . vested by law in
any such person or authority."
Whereas, in the Act passed by the legislature the word "purported" was removed altogether. This might be regarded as a significant departure from the Draft Bill and shows the intention of the legislature which was indeed circumspect in this matter. The question then arises as to what indeed are the legal implications of the allegations of mala fides made by the petitioners in relation to the words "any act done ... in the exercise of any power or authority vested by law in any such person." In short, would mala fides if alleged and established reduce the act of any authority under the Statute to a nullity in those circumstances?
I have shown that the legislature never intended under the cover of section 24
to protect any authority that does any palpably illegal
acts amounting to mala
fides by making such an act not justiciable in a Court of Law. The principle is
also well established that
no public body or authority can be regarded as
having statutory authority to act in bad faith or from corrupt motives, and
any actions purporting to be that of the body but proved to be in bad faith
would certainly be held
to be inoperative (Warrington, L.J. in 134 Law Times at
page 115). [139 Short v. Borough of Poole.].
Halsbury states in the 4th Edition, para 60 at page 67:-
"The exercise of Statutory power is invalid unless the repository of the power
has acted honestly and in good faith."
"However, when fraud is alleged the Court will decline to quash unless satisfied
that the fraud was clear, manifest and was
instrumental in
140
procuring the order impugned" (vide De Smith- Judicial Review of Administrative Action- 2nd Edition, page 421).
"When prima facie case of misuse of power has been made out it is open to the Court to draw the inference that unauthorised purposes have been pursued if the competent authority fails to adduce grounds supporting the validity of its conduct" (vide Halsbury, 4th Edition, page 67).
In the case of Lazarus Estates v. Bearely, (supra) Denning, L. J stated:-
"No judgment of Court, no order of a Minister can be allowed to stand if it had
been obtained from fraud. Fraud unravels everything."
Counsel for the Petitioners discussed the cases under section 88 of the
Police Ordinance and section 461 of the Civil Procedure Code
and stated that the
words "done or intended to be done" in section 24 appear in section 88 of the
Police Ordinance. These
words have been interpreted over the years as referring
to acts done bone fide and not mala fide. It was submitted that when the
Legislature subsequently used almost the identical phraseology in section 24 of
the Interpretation (Amendment) Act it implies legislative
adoption of the
interpretation given by Courts to such language.
In the case of Perera v. Jayawardene [140 (1947) 49 N.L.R. 1 at 9.] a Divisional Bench of the Supreme Court
held that:-
"It is a well-established principle that when a word has received judicial interpretation and the same word is re-enacted, it must be deemed to have been re-enacted in the meaning given to it...."
Counsel for the Petitioners submitted that the authorities on section 88 of the Police Ordinance and section 461 of the Civil Procedure Code show that a Public Officer acting maliciously cannot be said to be purporting to exercise power. In the Hirdaramani case (supra) the Court held that a public authority vested with the power to do an act must act bona fide- it could not exercise such power with an ulterior object, in which event the intention of the Public Servant is to defeat the Statute. Counsel for the Petitioners submitted that section 24 of the Interpretation Act is not worded to create a complete ouster in the manner it was suggested that section 45 of the Courts Ordinance was affected by Regulation 55 of the Emergency Regulations in the case reported in 76 N.L.R. page 316 (supra).
In the case of David v. Abdul Cader (supra) the Privy Council stated, inter alia:-
141
"... but, a malicious misuse of authority as pleaded may cover a set of circumstances which go beyond the mere presence of ill will and it is only after the fact of malice relied on by the plaintiff has been properly ascertained that it is possible to say in a case of this sort whether there has been any actionable breach of duty."
In the Canadian case of Roncarelli v. Duplessis, (supra) Rand, J. stated:-
"The act of the defendant through the instrumentality of the commission brought
about the breach of an implied statutory duty
towards the plaintiff. There can
be no question of good faith when an act is done with improper interest and for
a purpose alien
to the very Statute."
In the South African case reported in 1947, Volume II, South African Law
Reports, page 984, (supra) the Court held that when a public
body or an
individual exceeds its powers, the Court will exercise restraining influence,
and if while ostensibly confining itself
within the scope of its powers, it
nevertheless acts mala fide or dishonestly for ulterior reasons which ought not
to influence
the judgments, or with unreasonableness so gross as to be
inexplicable except on grounds of mala fides or ulterior motive, Court
will
interfere.
It will be seen that the view of the Courts in England and the Roman Dutch Law
Jurisprudence coincides with the opinion of our Courts
of Law. The Indian
Supreme Court too takes a similar view in regard to the impact of mala fide in
relation to the exercise of power
under a Statute. In the case of Somawanti v.
State of Punjab (supra) the Supreme Court of India held that :-
"If the purpose for which a land is being acquired by the State is within the
legislative competence of the State a declaration
of the Government will be
final, subject to the exception that if there is colourable exercise of power
the declaration will be open to challenge at the instance
of the aggrieved
party. If what the Government is satisfied about is not a public purpose
but, for instance, a private purpose or no purpose at all, the
action of the
Government would be colourable and the declaration would be a
nullity .... for the question whether a particular act is a fraud or not is
always justiciable. An acquisition could be set aside not only because it is
motivated by mala fides but even when a fact is taken into consideration
which
was irrelevant." (Raja Anand v. Uttar Pradesh (supra)).
From what I have stated earlier it would appear that the legislature with much
circumspection used the language in section 24 of
the Interpretation (Amendment)
Act which indicates that fraud or mala fides is not removed from the purview of
the Courts. Fraud
or mala fides need not be mentioned
142
in the Statutes
because they are regarded as exceptions. The situation however would be
different if, as in Roncarelli's case referred
to earlier, the authority is
declared by a Statute entitled to protection although he has exceeded his powers
or jurisdiction and
acted clearly contrary to law.
Mr. Tiruchelvam, in support of the petitioners, contended that the primary
intention of the legislature when it enacted section
24 was to confer on the
subject the benefit of a declaratory decree. Such a decree would become futile
unless an interim or a Stay
Order is made. He submitted that temporary
injunctions were not affected by section 24 of the Interpretation Ordinance. He
also
argued that the Supreme Court has the inherent power to issue a Stay Order
in an appropriate case.
In regard to section 24 providing for a declaratory decree it was argued that a
meaning consonant with the object of the legislature,
and if not futile, should
be given unless there is express unambiguous provision. Therefore, says Counsel,
a necessary counterpart
to the proviso inferentially would be a permanent
injunction accompanying a declaration. Counsel stated that the demolishing of
a
house, for instance, would make a declaration of the District Court factually
and/or legally inoperative and futile. One of the
principles in regard to
declarations is that they will not be granted if the declaration would be of no
practical use, as for instance,
the demolishing of the subject-matter of the
acquisition as illustrated earlier. It is for that reason that interim
injunctions
were not removed from the purview of the Courts in section 24 of the
Interpretation Ordinance.
It was further argued by Counsel that if the Court is not empowered to issue an
interim injunction having regard to section 24,
then, nevertheless, the Court
has the inherent power to grant interlocutory relief in declaratory proceedings.
Now, the proviso to section 24 (1) of the Interpretation (Amendment) Act sets out that the provisions of section 24 shall not be deemed to affect the power of the Court to make order declaratory of the rights of parties "in lieu thereof. The words "in lieu thereof could only refer to ". . . the power to grant an injunction or make order for a specific performance against the Crown." The latter words "in lieu thereof seem clearly referable to only permanent injunctions, if one considers the plain meaning which must be given to the provision. When subsection (1) sets out the two alternatives of "the power to grant an injunction," or "make order for a specific performance" it would appear that what was intended by this juxtaposition of words constituting that phrase is only referable to a permanent injunction. In the light of this argument the provisions of section 24(1) do not cover temporary or interim injunctions and the Courts would not be fettered in their power to grant interim injunctions in appropriate cases under the existing provisions for granting such equitable relief. If this be so it would be
143
unnecessary to deal with the question of inherent powers of the Court advanced by Counsel-
The Solicitor-General in his reply submitted that section 24 deals with cases where the legislature intended that orders of Tribunals and other such authorities are taken out of the purview of the Courts in respect of remedies which persons were hitherto entitled to obtain. He further submitted that the words "any act" cover both bona fide as well as mala fide "acts," and that if the State withdraws the remedy no one could complain since nobody has a vested right in such a remedy.
In this connection Mr. H. W. Jayewardene submitted that the legislature could take away the jurisdiction of Courts to review any matters completely, just as Courts were abolished and new Courts set up. The question, however, is whether the legislature did really intend to remove the protection afforded by injunctions even in those instances where there is mala fides. As was posed by Lord Reid in the Anisminic Case (supra):-
"It may have given its decision in bad faith. It may have given a decision which it had no power to make. It may have failed... to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act, so that it failed to deal with the questions remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account."
All these were illustrated as instances which could well result in proceedings being a nullity.
It seems to me that having regard to the cases in which allegations of the sort
envisaged above are made the Legislature was indeed
circumspect in section 24
not to use language which might even give a hint that the Courts are ousted when
it comes to dealing
with such allegations. The fact that the State Assembly with
deliberate care felt advised to omit the word "purported"
from the words "a
purported exercise of power" in the Draft Bill is indeed a clear indication as
to what the Legislature
had in mind when amending the draft legislation in that
manner. It is indeed manifest that the State Assembly never intended to
remove
from the purview of the Courts mala fide acts and leave public officials free to
act both mala fide or bona fide in the
manner suggested by the
Solicitor-General.
In this connection it is perhaps relevant to state that it is most unlikely that
the Legislature which is the repository of all
judicial power ever intended to
invest the power in a statutory authority to act mala fide or bona fide in
Statutes such as this.
The authorities show that "no public body can be regarded
as having statutory authority to act in bad faith or from corrupt
144
motives .... and any actions purporting to be from that body would certainly be
held to be inoperative." If the Legislature
did intend that such bodies could
act even mala fide it certainly must be stated in no uncertain terms. It is
indeed a well-known
rule of interpretation of statutes that where a Court is
seeking to interpret legislation by which it is sought to create rights
such
legislation must be strictly resolved in favour of the subject. On the contrary
we find here section 24 not stating anything
to that effect. On the other hand
we find that the Legislature has reassured the "people" from whom it derived its
own
judicial power that it would not jeopardise the trust imposed by the
"people," by even including a word like "purported"
which might be a prop to an
argument that mala fide acts of public officials would be outside the
jurisdiction of courts of law.
The Solicitor-General in arguing that the power which is exercised by the
relevant authority could be exercised either mala fide
or bona fide sought to
reinforce his argument by submitting that it was the duty of the Court to
ascertain the purpose for which
the legislation was passed, and that the disease
which it intended to cure could be drawn from the speech of the Minister in the
House which showed that the intention of the legislature was to bar the grant of
injunctions because a number of acquisition proceedings
were stayed when mala
fides were alleged, resulting in considerable delay. The consideration of any
delay could not be adequate
reason in this instance, since, the State could act
under section 46 of the Administration of Justice Act and nominate a special
Court for the hearing of land acquisition cases expeditiously. This method has
indeed been found to be exceptionally satisfactory
in respect of bribery cases.
Further, as submitted by opposing Counsel a prosecution for swearing a false affidavit is not the only means of meeting a false and inaccurate statement in a petition supporting an affidavit. The State could move Court to dissolve the interim injunction obtained on such an affidavit, having regard to section 666 of the Civil Procedure Code, and even obtain compensation from the petitioner under section 667 of the Civil Procedure Code. It was argued that in any event the fact that the legislature did not accept the Bill in its original form in regard to section 24 was some indication that there was rethinking on this question by the legislature.
I have already adverted to the legal implications of the impact of mala fides in respect of the said provision earlier in this judgment. Hence, I do not think it necessary to say anything more on that point. The Solicitor-General further raised the question whether it could ever be contended that the Parliament, having provided in section 24 for a declaration of the right of parties, withdrew the remedy by way of injunction only in respect of bona fide and valid acts, when in the same breath the Parliament provided in section 22, where there was an ouster of the jurisdiction of the Court, whereby no order, decision, determination, discretion or finding could be
145
questioned save on the two grounds
set out therein. It seems to me that if the Solicitor-General's contention is
that mala fides
were sought to be excluded in section 22 in the manner that the
provision was drafted, the Legislature if it so intended would quite
obviously
have provided for an ouster in section 24 too in the same manner. The fact that
the Legislature did not choose to do
so is indeed an indication that an ouster
in respect of section 24 was not what was intended.
The Solicitor-General further submitted that section 24 which might have
amounted to an ouster clause later became, by reason of
the amendment, a
provision which merely substituted one remedy for another.
It seems to me that the proviso to section 24(1) merely emphasises that a declaratory action which was hitherto available is indeed still available thus removing any doubt on that point. There is indeed no substitution of a remedy here as suggested, but, a mere reassertion of an existing remedy.
The Solicitor-General then argued that regard must be had to the principle of State policy found in Art. 16(2) of the Constitution, which provides for the rapid development of the whole country. If this aspect of the matter was foremost in the mind of the Legislature it seems to me that the Legislature would have unhesitatingly included the ouster clause in section 24 of the said Act.
I have discussed earlier in the judgment the point urged by the Solicitor-General that nowhere in the Act was it necessary that the "public purpose" should be set out. Reasons can be given why it is indeed necessary and important for the Minister to set out the "public purpose." The fact that the "public purpose" is required to be set out by Statute in other countries implies that it is indeed a necessary requirement to set out the purpose and it is most likely that such countries have inserted that provision out of an abundance of caution.
Affidavits were filed by the petitioners in the respective Courts on this matter supporting applications for interim injunctions as required by the relevant provisions of the Civil Procedure Code. As I have stated earlier the only question for consideration in regard to the grant of an interim injunction is whether there is a triable issue for decision by the Courts.
When a petitioner files an affidavit in support of an application for an interim injunction it would be necessary for the respondent to controvert that affidavit and lead counter-affidavits and any evidence necessary for that purpose. In the absence of such material being placed, the Court would have to judge the allegations merely on tests of probability with nothing more substantial in reply.
146
As was mentioned by Ayanger, J. in the case of Rowjee v. Andhra Pradesh, (supra)-
"It is no doubt true that allegations of mala fides and of improper motives on the part of those in power are frequently made and that frequency has increased in recent times. . . consequently it has become the duty of the Court to scrutinize these allegations with care so as to avoid being in any manner influenced by them in cases where they have no foundation, in fact. In this task which is thus cast on the Court it would conduce to a more satisfactory disposal and consideration of them if those against whom allegations are made came forward to place before the Court their version of the matter so that the Court may be in a position to judge..."
It would be helpful to examine the material that could be placed before the Court by the authority vested with the power under a Statute to act under the Land Acquisition Ordinance, in regard to such acquisition, in order to meet an allegation of bad faith:-
(a) The respondent it is alleged by the petitioners has not stated the public
purpose for which the land is required. The petitioners
would thus be in an
unfavourable position in regard to raising any objections. In Somawanti's case
cited earlier the Supreme Court
of India held that such a declaration should not
be arbitrarily made by the Government. The respondent's affidavit does not
contain
the material upon which such a decision was taken which, considering the
manner in which public affairs are conducted, would be
on record. The public
purpose was not even specified in either of the section 2, section 4 or section
5 notices of the respondent
made under the Acquisition Act. This aspect of the
matter is, perhaps, important since the Act sets out that a declaration under
section 5 "shall be conclusive evidence" that the land is needed for a "public
purpose."
If there has been a colourable exercise of power in regard to the question of
the "public purpose" such an exercise would
be open to challenge at the instance
of the aggrieved party, and if so held the declaration would be a nullity.
(b) It is alleged by the petitioners that the proposed acquisition plan has been initiated by the respondent who had been influenced by malicious and false representations made to him by the Member for Uva-Paranagama who is personally and politically antagonistic towards the petitioner as alleged in para 6 (c) of the petition in the High Court. In this connection the respondent should perhaps have
147
been able to produce material to satisfy the Court that he has sought the
advice and assistance of reliable and knowledgeable persons
and that even though
he may have heard the views of the Member for the area he could satisfy the
Court, having regard to the nature
of the advice given, that he acted
responsibly and with good reason in respect of the said acquisition. The
material on which the
respondent acted in a public and official matter like this
should and would normally have been entered in departmental files. The
respondent, therefore, should have had no difficulty in placing such material
before Court in order to assist it, and thus stave
off the interim injunction in
that way by meeting the allegation of mala fides at the very inception of Court
proceedings. In this
way even unnecessary delay which may be of importance to
the State could be avoided. There are other matters generally which may
be
relevant in regard to acquisitions, as for instance if the respondent could show
that plans were drawn and lands surveyed which,
if done, would indeed be helpful
material to satisfy a Court on the issue of bad faith alleged against the
respondent. One finds
that no such material is set out in the affidavits of the
respondent Minister and of the public officials beyond a bare negation
of the
facts alleged in the petition.
When, therefore, the Court had to decide on the grant of the interim injunction,
which as I have stated earlier only raises the
question whether there is a
triable issue for a decision by the Courts or not, it is not surprising that, in
the absence of helpful
material which the respondent may well have been
possessed of, the Court has granted the said interim injunctions. It is indeed
significant that the Attorney-General did not make an appeal from the said order
of the Court nor had he applied by way of revision
even though his Deputy
Solicitor-General had appeared and presented arguments on this matter. The
Solicitor-General's main contention
as shown earlier rested on the argument that
the words "any act" in section 24 applies to both bona fide as well as mala
fide
acts and consequently the Courts would not have jurisdiction to restrict such an
act.
I have already in some detail dealt with this aspect of the Solicitor-General's
argument earlier in this judgment and for the reasons
already given and
authorities cited hold that "mala fide unravels everything" and that the Courts
do have jurisdiction
in this matter having regard to the proper construction
that should be placed in respect of section 24 of the Interpretation (Amendment)
Act.
It was further argued for the petitioners that the interim injunctions issued in
certain of the cases which came up before us had
expired and consequently there
was no live issue to be decided upon.
148
Once the time has passed for making orders in regard to the question of the interim injunction can we now proceed to lay down what correct law is on mis matter? In short, the case is dead and consequently there would be no further judicial act to be done. Section 354 of the Administration of Justice Law No. 44 of 1973 provides for the Supreme Court to call for and examine the record of any case for the purpose of satisfying itself as to the legality or propriety of any judgment or order passed therein, or as to the regularity of the proceedings of such Court. The Supreme Court, adopting such procedure as it thinks fit, could then exercise its revisionary powers and pass any judgment or make any order "which it might have made had the case been brought before it in due course of appeal. Section 11 of the said Act, which deals with the powers of the Supreme Court in respect of appeals from any subordinate Court, provides that the Supreme Court, inter alia, "may in accordance with law affirm, reverse or vary any judgment or order or give directions to such subordinate Court or... order a further hearing."
In the case under review nothing further possibly could be done by the Supreme Court since the injunction, which is the issue involved before us, applies no more.
The word "Court" as defined in the Civil Procedure Code "means a Judge empowered
by law to act judicially." Once
the period of the interim injunction has elapsed
there is no judicial act to be performed by the Court. The word "action"
is
defined as proceedings for the prevention or redress of a wrong. There is no
such "proceeding" once the injunction
has expired.
If under section 353 referred to earlier the Supreme Court can exercise in
revision only such powers as it could exercise in an
appeal there is clearly no
power which the Supreme Court could exercise by way of revision to do anything
further in respect of
the issue of an interim injunction which has expired. Any
pronouncement, therefore, which we make in respect of any of the cases
hi which
the interim injunctions have expired would be purely an academic adventure which
the Supreme Court has no power to indulge
in. There is no provision for the
Supreme Court to make declarations as to what is the correct law in a situation
like this. If
the Supreme Court presumes to do so it would not be acting
judicially. The provisions of the Civil Procedure Code and the Administration
of
Justice Act, which I have adverted to earlier, show that the Supreme Court can
only determine live issues for otherwise it would
be exercising its revisionary
powers to correct matters where the issue is dead. If the Supreme Court does so
it would be acting
without jurisdiction and any pronouncements made by it would
be consequently without jurisdiction.
149
In the case of Ex Parte Morris 141- Roper, J. cited with approval a passage from the judgment of Greenberg, J. in the case of Ex parte Ginsberg 142 who stated:-
"The common law in South Africa as to declaratory orders were discussed in
Geldenhuis and Meethling v. Beuthim (1918 A.D. 426)
by Innes, C.J. who said in
the course of his judgment that Courts of Law exist for the settlement of
concrete controversies of
rights, not to pronounce upon abstract questions or to
advise upon differing contentions, however important."
Greenberg, J. goes on to state:-
"This limitation of the functions of a Court of Law has been fundamental in our conception of the function of the Court . . . The legislature must have been aware of the fact that there is no dearth of Advocates and Attorneys competent to advise upon legal problems and there is no reason to think that it intended to set up the Courts as consultative or advisory bodies in competition with the members of these respected professions."
In the Annotated Constitution of the United States of America, published in 1952 it is stated (at page 549):-
"Perhaps no portion of constitutional law pertaining to the judiciary has evoked such unanimity as a rule that the Federal Courts will not render advisory opinions."
It seems clear that in a civil matter such as this it is not open to the Court to decide upon any matter which is not a live issue. If the Court proceeds to do so it seems clear that it would be acting without jurisdiction.
There remains a submission made by Mr. Jayewardene that it is not open to a single Judge, sitting in chambers or even in open Court, acting by way of revision, to call upon a party to show cause, which, according to him, is an exercise of judicial power. A single Judge, he submitted, finds no place in the Court structure provided by the Administration of Justice Act; he, therefore, cannot sit alone or in chambers when he acts judicially.
The question raised by Mr. Jayewardene could be largely resolved by considering
whether calling upon a party to show cause involves
an exercise of "judicial
power" or not. In the case of Queen v. Liyanage (supra) the question arose as to
whether the
Minister had the power to direct a Trial-at-Bar and nominate Judges.
The Court in its order stated:-
Foot notes
141 Exparte Morris (1954) 3 S.A.L.R. 154.
142 Ex Parte Ginsberg (1936) T.P.D.
155.
150
"For the purpose of this case we are content to accept the broad classification of judicial power attempted by the Learned Attorney-General himself."
He stated that the judicial power is used is three senses:-
(1) In the sense of the essence of judicial power; the strict judicial power.
(2) In the sense of the power of judicial review.
(3) In a loose sense, has the meaning, the powers of a Judge, e.g.. . .the
powers ancillary to the judicial power.
A concise statement of Griffiths, C.J. was accepted by the Privy Council in the
case of Labour Relations Board of Saskatchewen v.
John East Iron Works Ltd [143 (1949), A.C. 149.]
".. . the power which every sovereign authority must of necessity have to decide
controversies between its subjects, or between
itself and its subjects whether
the right relates to life, liberty or propriety. The exercise of this power does
not begin until
some Tribunal which has the power to give a binding
authoritative decision (whether subject to appeal or not) is called upon to
take
action."
It would appear that the calling for a record or noticing a party to appear, as was done in this case, certainly does not involve a strict exercise of "judicial power." Such acts do not involve a decision relating to any controversy between a sovereign authority and the subject. Acts such as those referred to above are merely at the best powers ancillary to "judicial power" given to those persons performing judicial functions. A Judge noticing a party to appear merely invites the party to come before him in order to satisfy himself in regard to some matter. An inquiry in respect of such a matter commences when he appears and is heard. The Judge "is called upon to take action," if I were to re-echo Griffiths, C.J.'s words, "only at the stage such party appears and is heard." The calling for the record and the notices directed to be served on the parties are therefore merely incidents in the exercise of "judicial power." One cannot say, as was said by the Court in the Liyanage case, that such incidents of "judicial power" are "so much incidental to the exercise of that power or incident in the exercise of that power as to form a part of that power itself.
This is indeed a function which is inconsistent with the judicial action involving exercise of "judicial power." There is in short no "ascertainment of the existing rights by the judicial determining of the issue of fact or law"
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involved here. The test provided by Holmes, J. in the case of Prentis v. Atlantic Coast Line Co.144 that "the nature of the final act determines the nature of the previous inquiry," would not perhaps apply here because there was no "previous inquiry" here; the real and substantive inquiry in the present matter appears to me to have commenced only once the parties appeared and the inquiry commenced after notice was served.
If the acts of calling for a record or issuing a notice on a party, as was done
here, do not involve an exercise of "judicial
power," on the tests referred to
by me above, then such acts could be performed by a single Judge sitting in
chambers. It
seems to me that if an application for leave to appeal and the
granting or rejecting of such leave to appeal could be performed
by a Judge
sitting in chambers as provided in section 326 of the Administration of Justice
Act, then it would indeed be strange
that the act of calling for a record or
merely noticing a party to appear, which I have contrived to show, do not
involve the real
exercise of "judicial power," could not have been contemplated
by the Legislature to have been done by a single Judge
in chambers, provided the
substantial question involved is attended to in open Court once the parties have
appeared.
Mr. Jayewardene submitted that this is not a case in which the powers of
revision should be exercised since die respondent has not
exercised his right of
appeal or applied by way of revision to the Supreme Court.
It would appear that the provisions of section 354 give the widest powers to die
Supreme Court to "call for the record of any
case, whether tried or a pending
trial, in any Court for the purpose of satisfying itself as to the legality or
propriety of any
judgment or order passed therein, or as to the regularity of
the proceedings of such Court, and may having adopted such procedure
as it may
consider fit upon revision. . . . pass any judgment or make any order which it
might have made had the case been brought
before it in due course of appeal."
The Learned Solicitor-General has referred us to the case of Hyman v. Thornhill
(supra) reported at page 106 in which Bonser, C.J.
stated:-
"But the Supreme Court is not to be governed in these cases by the wishes of
parties. The object at which this Court aims,
in exercising its power of
revision is the due administration of justice... "
In the case of Perera v. Agidahamy145 Nagalingam, A.J. stated that the words,
"pass any judgment or make any order which it
might have made had the case been
brought before it in due course of appeal instead of revision (which is the
identical wording
in the present section 354 of the
Foot notes
144 (1908) 211 U.S. 210.
145 (1946) 48 N.L.R. 87 at 88.
152
Administration of Justice Act) can only lead to the conclusion that they do not prescribe the scope or put a limitation on the powers of this Court to deal with an application in revision."
Accordingly I take the view that there is no irregularity in the manner in which these proceedings were initiated and brought up before this Court.
For the reasons given I hold:-
(a) that the provisions of section 24 of the Interpretation (Amendment) Act No.
18 of 1972 have no application if it can be established
that the act of the
respondent Minister was mala fide, in the manner alleged by the Petitioners.
(b) that once the period of the interim injunction has elapsed there is no live
issue for the Court to adjudicate upon the question
raised in this case, and if
the Court proceeds to do so it would be acting without jurisdiction and
consequently could not exercise
its revisionary powers.
(c) that assuming there is a live issue for this Court to adjudicate upon, there
is no irregularity in the manner in which these
proceedings were initiated and
brought up before this Court.
The Notice issued on the Petitioners must, accordingly, be discharged and the
records returned to the relevant Courts.
WIJESUNDERA, J.
Notice was issued in terms of section 354(1) of the Administration of Justice 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 show cause why the orders granting injunctions against the defendant, H. S. R. B. Kobbekaduwa, Minister of Agriculture and Lands, restraining him from proceeding with the acquisition of certain lands should not be set aside. When these cases came up for hearing before the same three Judges, the Attorney-at-law for the landowners took several objections and intimated to that Court that an application was being made under section 14(3) (c) of the Administration of Justice Law to have these cases referred to a Bench of five Judges and moved for an adjournment. By Order dated 14th June 1974 the adjournment was granted. Thereafter Alles, J., who was acting for the Chief Justice, referred these cases to a Bench of nine Judges. It is unnecessary to go into the details of each of these cases. They are all from the High Courts or the District Courts. They all relate to acquisition of land under the
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Land Acquisition Act, in various stages of acquisition. In all the cases from the District Courts, action is pending against the defendant to have all the steps taken declared null and void as the defendant was motivated, inter alia, by political revenge or mala fides.
The two questions that arise for decision, and argued at great length, may be broadly stated as:-
(a) whether this Court has jurisdiction to revise the Orders in question;
(b) whether, in view of the provisions of the Interpretation (Amendment) Act No.
18 of 1972, any injunction should have been granted
against the defendant, a
Minister of State, in these cases.
The Administration of Justice Law sets out inter alia the jurisdiction of the
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 be exercised in
different matters at the same
time by the several Judges of the Court sitting
separately. The two provisos to the subsection say that jurisdiction in respect
of judgments and orders of the Magistrates shall be exercised by at least two
Judges and similarly jurisdiction in respect of judgments
and orders of the
District Judges and the Judges of the High Court shall be exercised by at least
three Judges. The ordinary meaning
of the word "several," Oxford Dictionary-
Vol. IX, 568, when preceded by the definite articles is "each and all."
Hence
section 14(1) of the Administration of Justice Law permits the jurisdiction of
the Supreme Court to be exercised by any Judge
subject to the two provisos. Such
a view is consistent with the other 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 to appeal.
In section 354(1) of the Law are embodied several powers given to the Court:- it
empowers the Supreme Court to call for a record,
to examine it and then to
exercise its jurisdiction. When a record is called for there is no exercise of
the jurisdiction in respect
of a judgment or order of a subordinate Court as
contemplated in the provisos to section 14(1) of the Law. Then the authority of
the number of Judges stated in the proviso is not necessary to call for a
record. Hence any one or more of the Judges of this Court
is empowered to call
for any record from a subordinate Court. This is only one section. There are two
other sections, viz; section
13 and section 40 which empower, upon similar
examination, anyone or more of the Judges of this Court to call for a record
from
a subordinate Court.
It was submitted that steps can be taken to act in revision under section 354(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
154
Court can be moved to exercise its powers under section 354. Where a person moves under subsection 2 the leave of the Supreme Court has to be first obtained as "prescribed in this Chapter." The only method prescribed in this Chapter is leave to be granted by a single Judge under section 326. The Court itself, however, is empowered to take steps, as it has done in these cases, be it a civil or a criminal matter, whether or not any party has complained. Whether it is proper to do so or not is a matter only for the Court. Its object is the due administration of justice and the correction of all errors of the subordinate Courts.
When notices were issued on the landowners and the defendant in these cases, there was no requirement that the cases should have been considered in open Court. Section 7 of the law requires that the sittings in every Court shall be held in public and all persons shall be entitled to freely attend such sittings. When the records have been called for, section 354 (1) further enacts "The Supreme Court may having adopted such procedure as it may consider fit, upon revision of the case so brought before it, pass any judgment or make any order which it might have made had the case been brought before it in due course of appeal." At the stage the notice is issued, after the examination of the records called for by the Court itself, there is no hearing of any arguments or submissions by any party. Notice issued is only a step taken for the purpose of holding a sitting to inquire into the legality of the judgments or the orders made. It is such a sitting where arguments are advanced, parties are represented that has to be held in public. This distinction is illustrated in section 327. It permits the Judge to deal with an application for leave to appeal in Chambers but if he wants to hear arguments to sit in open Court. The Sinhala words of section 7 only confirm this view.
An objection was taken before the first Bench when these cases came up for review, viz. that in as much as the Registrar and not the acting Chief Justice nominated the three Judges that Bench was not legally constituted. It was argued that as the first Bench was not legally constituted this Bench of nine Judges has no power to review these cases. This is factually wrong as demonstrated by the relevant paragraph of the Order dated 14th June, 1974 of that Bench:-
"The Registrar of this Court is present before us and he states that the normal practice is that the Benches for the day are suggested by him and sent up for approval to the Chief Justice. The practice is also that where Judges have ordered notices in a case that they constitute the Bench for hearing the case. He further brings it to our notice that last morning the acting Chief Justice sent for him and he was asked as to how this present Bench came to be constituted. The Registrar then told the acting Chief Justice that he followed the normal practice of proposing the Judges who had ordered notices to constitute the
155
Bench. The Registrar then met the acting Chief Justice, who approved that this Bench should sit and dispose of these cases. The Registrar also brings it to the notice of this Court that he took the responsibility of proposing the composition of this Bench as that is the practice."
Then there is no doubt that the acting Chief Justice inquired about these cases, was made aware of the cases and approved of that Bench as is the practice. But such approval or nomination is not a legal requirement. A copy of the Order dated 14th June 1974 was also given to the respondents.
Section 5 of the Constitution enacts that the National State Assembly exercises the judicial powers of the people through the Courts and other institutions created by law. The National State Assembly created, by the Administration of Justice Law, inter alia, a new Supreme Court and provided for the appointment of the Judges of that Court and defined their jurisdiction. Judges have been appointed by the President under the Administration of Justice Law and no further mandate is necessary for them to perform their functions. The Administration of Justice Law nowhere provides that the nomination of the Judges by the Chief Justice is necessary for them to hear a case. The only bar is under section 48 of the Law which has no application here. With great respect to the Chief Justice, if three Judges decide to hear a case from a High Court or a District Court- I am not saying for a moment that it happened here- there is nothing in any law to prevent them from hearing it except a reference of that case under section 14(3) of the Law. The words used in this subsection are "... direct that any case pending before the Supreme Court be heard by a Bench of five Judges or more." It does not say the Chief Justice shall be a member. It does not say that he shall name the Judges. On the other hand under section 51(1) of the Courts Ordinance the Chief Justice was empowered to refer to three or more Judges "named in the order." The Court of Criminal Appeal Ordinance gave specific powers to the Chief Justice in respect of the Benches of that Court. Perhaps, the power given under section 14(3) carries with it the power to nominate in that instance. It has been the practice, a longstanding practice, for the convenience of the Judges and depending on the lists, the Registrar proposes the names of the Judges to hear the different cases in the day's list and Chief Justice approves or alters them. When a Judge had called for a record and issued notice on the parties it has invariably been the practice that that Judge should be a member of the Bench to hear that case. The Registrar proposes the names with the tacit approval of all the Judges. The Chief Justice is only acting for and on behalf of all the Judges of this Court with each of whom the power of nomination lies. In The Queen v. Liyanage (supra), one of the questions considered was whether the power of nominating Judges under an amending Act to the Criminal Procedure Code given to and exercised by the Minister was valid. The Court held that it was not because that power had
156
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 the Judges. This objection is
based on wrong facts, unsupported in law and without any merit. Let me not be
misunderstood.
Let the present practice of nomination, which is not contrary to
law, continue.
In the case from the High Court of Bandarawela, the petition was filed on the
11th of March, 1974 and an injunction granted for
a period of six weeks on the
14th of March, 1974. The application for the dissolution of the injunction
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 pay costs. So
that on the day records were called for, the injunction had been dissolved by
effluxion of time. It is, therefore, submitted that
this Court has no
jurisdiction to review that case. Even if this be correct there is still the
order for costs. The Court has the
power to call for the record of a case that
has 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 the case been
brought before it in due course in appeal. Had an appeal
been brought within the
time limit from that order refusing the cancellation of the injunction, an
appropriate order could have
been made by this Court.
Nagalingam, J. in Perera v. Agidahamy, (supra), in the course of reviewing section 753 of the Civil Procedure Code which is in the same terms as section 354 of the Law, has said that the words "pass any judgment or make any order" lead one to the conclusion that they do not prescribe the scope or put a limitation on the powers of this Court to deal with an application in revision. The only limitation is that the order made must be one which the Court could have made if the case was brought up in appeal. It is then open to this Court, if it so concludes, to say that the order made by the Judge of the High Court is wrong and consequently the order to pay costs is wrong. In all these cases this Court has jurisdiction in the exercise of its powers in revision to determine whether or not the injunctions should have been issued on the Minister.
This brings me to the second question in the reference: whether an injunction lies against a Minister of State under section 24 of the Interpretation (Amendment) Act No. 18 of 1972. The amendment came into operation on 11th May, 1972. Section 24(1) of the Amending Act reads:-
"Nothing in any enactment, whether passed or made before or after the commencement of this Ordinance, shall be construed to confer on any Court, in any action or other civil proceedings, the power to grant an injunction 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 such Commission in respect of any act done or intended or about to be done
157
by any such person or authority in the exercise of any power or authority vested by law in any such person or authority:
Provided, however, that the preceding provisions of this subsection shall not be deemed to affect the power of such Court to make, in lieu thereof, an order declaratory of rights of parties."
The contention on behalf of the landowners is that this section has no application, according to the plain meaning of the words, in respect of acts done or power exercised mala fide or with an ulterior purpose. To consider the meaning of this section it is necessary to go back to the history of this legislation. What was the mischief the legislature intended to remedy? I do not think it was disputed that, whatever Government is in power, acquisition of land had always been challenged in the Courts with the result that on various grounds injunctions have been issued at various stages to stay the acquisitions 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 in several courts in this country against the members of the Public Service Commission in respect of disciplinary action taken against Public Servants. With the result the work of the State was hampered. An answer to this may be to expedite the acquisition proceedings as it was done by Act No. 20 of 1969. Apparently that Act was found ineffective. It was in this situation that this amending legislation was enacted. It is a matter for the legislature to choose the remedy and in the remedy chosen the question is whether its terms are adequate to meet the situation.
A number of speeches of Ministers and Members of Parliament have been referred to in the course of the arguments. "It is clear that the language of a Minister of the Crown in proposing in Parliament a measure which eventually becomes law... is inadmissible ... as evidence of intention ... of the legislature." Assam Railway Trading Co v. I.R.C., (supra). Said Lord Reid, "The rule is firmly established that we may not look at Hansard and in general 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 am bound to say that this case seems to show that there is room for an exception when examining the Hansard would almost certainly settle the matter one way or other" Warner v. Metropolitan Police Commissioner (supra). An examination of the debate would necessarily lead us to the examination of other debates on a like question on other occasions. This will in my view involve the Court in sitting in judgment over a political debate when the function of this Court is to say what the enacted words of the statute mean as they finally stand.
Many arguments were advanced based on what happened during the passage of the Bill in Parliament. The Bill itself, as it was originally
158
presented, differs from the Act. Words may be altered, added or omitted for various reasons with which a Court should not be concerned. It has been said that the Parliamentary history of a statute is "wisely inadmissible to explain it." Rex v. Hertford College.146 The same view has been expressed in Rex v. West Riding of Yorkshire Country Council.147 It is then only the final product in 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 found to get over this by saying a Public Officer could be restrained in his individual capacity. Buddhadasa v. Nadarajah (supra). The judgment of Basnayake, C.J. cited in support of the proposition that an injunction was available against a Public Officer, Ladamuttu Pillai v. A. G. (supra) has been set aside in 62 N. L.R. 169 (supra) by the Privy Council. Although the Privy Council was silent on this question that case is not a satisfactory authority for that proposition. The position in England appears to be the same (De Smith: Judicial Review of Administrative Actions, 2nd Edition, p. 339.) In Ratwatte v. Minister of Lands (supra) an interim injunction was issued on the Minister 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 law as regards the non-availability of injunctions against the State and State officials, (b) prohibit the grant of injunctions against four categories of persons, and (c) instead give relief by way of a declaratory action as section 23 barred the declaratory action in certain cases. The right to damages is preserved. An injunction is pre-eminently a discretionary remedy. (De Smith, p. 331.) The discretion must, of course, be judicially exercised. There is no right as such to an injunction. A restriction is placed, undoubtedly an important one, on the relief available. Hence this is insufficient reason for a strict interpretation.
Section 24(1) enacts "Nothing in any enactment, whether passed or made before or after the commencement of this ..." The word "enactment" is defined in section 2(g) as "shall include an Ordinance as well as an Act of Ceylon." The Act became law on the 11th May, 1972, a few days before the New Constitution was promulgated. I cannot conceive of an amendment so close to that date without the Legislature intending that the Act should apply to 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, the definition is extensive." Hence the word "enactment" is wide enough to include the laws passed by the National State Assembly.
Comparison of this section with sections in two other enactments, section 461 of
the Civil Procedure Code and section 88 of the Police
Ordinance does
Foot notes
146 (1878) 3 Q.B.D. 693 at 707.
147 (1906) 2 KB 676 at 716.
159
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. C.I.D. (supra) said at 222, "The view that section 461 does not apply to mala fide acts of public officers is too restricted a view" and said again at 224, "The motive 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 Basnayake, A.C.J. and Pulle, J. A notice contemplated to be given is only a step in the procedure to claim relief. In that process I do not think that mala fides or bona fides of the act has any bearing on that requirement. This was the view of two of the Judges in Roncarelli v. Duplessis (supra) in interpreting a section very similar to section 461. That section is at p. 157:-" . . . any act done in the exercise of functions. . . ". The view of Wijeyewardene, C.J., with respect, then appears to 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 commenced within 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 months there 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 Ismalanne Lokka v. Haramanis (supra), "A Police Officer found to have acted maliciously and not bona fide is not entitled to rely on the limitations of actions provided for ..." Hence caution is necessary in adopting the meaning ascribed to the words in section 88 of the Police Ordinance to the words 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 a distinction made between the genuine and the spurious exercise in the use of the words "in the exercise or the apparent exercise." Consequently the words in section 24 being "in the exercise of any power" what was meant is only the genuine exercise of power. But to my mind it was so enacted in section 22 because of the proviso to that section providing a remedy for the exercise of power, inter alia, without jurisdiction. Then that is no reason for limiting the meaning of the word "exercise" to mean only a '"genuine exercise." For any genuine exercise there is no necessity of prohibiting the grant of an injunction. It is for the spurious that safeguards have to be provided. What is contemplated is "any act done." It is not "an act done." The word any imparts the widest possible meaning to the word act. It must be given the normal wide meaning and there is no reason for introducing any additional
160
limiting word. Similarly to the phrase "exercise of any power" the normal wide meaning has to be given. The words that have to be construed are "any act done, intended or about to be done in the exercise of any power." They are 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 read together. The principal part provides that no injunction shall be available. The proviso preserves the jurisdiction of the subordinate Courts over tribunals while it takes away one of the remedies, viz. injunctions. The declaratory action is given in lieu of injunctions which in plain language means "instead of." It was said once a declaratory action was made available the injunction should be available till the determination of the action. Such a construction will be to treat the proviso as an enacting clause independent of the principal part which is contrary to the accepted principles. Craies on Statute Law, 7th Edition, p. 218, 219. It was repeatedly urged that the availability of the declaratory action without the injunction will render the declaratory action of no force or avail. No doubt there can be hard cases, but that is no reason for saying, when there is an express prohibition, the injunction should be available. That will be to legislate and not to interpret and to give effect to the language of the law.
Section 24(2) prevents any Court from granting an injunction against a State Officer if the granting of it is to give relief against the State which could not otherwise be obtained. This prohibition applies to all acts done as State Officer. Then it is unthinkable, as the learned acting Solicitor-General submitted, that the Legislature intended that an injunction should be available to restrain the acts of a Minister done under statutory powers. Section 24(1) prohibits any injunction being granted "in any action or other civil proceedings," whereas in section 24(2) it says no Court shall "in any civil proceedings" grant an injunction. There is no difference between the two phrases "any action or civil proceedings" and "civil proceedings." Both mean the same thing. Perhaps the words "any action" were included in section 24(1) in view of the proviso which speaks of a declaratory action.
Section 22 prohibits Courts from examining the validity of decisions of
tribunals and authorities where there are "ouster clauses."
The Legislature in
this section has excluded the power of review in all cases other than these
instances spelt out in the proviso.
So then if the Legislature intended to
confine section 24(1) to a certain class of acts, as contended on behalf of the
landowners,
the Legislature would have in some definite terms done so. To
conclude then, according to the plain meaning of the words of the
section, the
limitations advanced on behalf of the landowners cannot be placed on the
section.
No enactment in this country refers to a permanent injunction or to an interim
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 is meant. In section 21 of the Administration of Justice Law the injunction is granted in contemplation of an action in the District Court or in the Magistrate's Court. So it is for a limited period. But in section 24(1) of the Amending Act the words are "the power to grant an injunction or to make order for specific performance. . . " and according to their plain meaning deals with the grant of permanent and interim injunctions. The proviso does not alter the position because of the words "in lieu thereof." This is a section in an Interpretation Act and, unless otherwise stated, must apply to all laws providing for temporary and permanent relief. The English Court of Appeal decided that it is impossible to grant anything which corresponds to interim injunctions in proceedings against the Crown. International Electrical Co. of New York v. Commissioner of Customs and Excise (supra). In so deciding the Court followed Underhill and Waywell v. Ministry of Food (supra), where in considering section 21 of the Crown Proceedings Act of England, Romer, J. said "Accordingly, he (Counsel) says that, just as I cannot grant an interlocutory injunction against the defendants in this case . . . ., I cannot as an alternative make an interim declaration. In my judgment that submission is right." Hence the prohibition in section 24(1) is not only to the grant of perpetual injunctions, as submitted on behalf of the landowners, but also to the grant of interim injunctions.
Argued Mr. Tiruchelvam that this Amending Act does not touch the inherent powers of the Courts to grant an injunction. The power to grant interim relief by way of injunction, and me procedure, are set out in section, 21 and 42 of the Administration of Justice Law and the Civil Procedure Code respectively. Once provided for the only power is that which is given under the statutes which have to be interpreted with due regard to the Interpretation Ordinance. Support for this view is had from the decision of Bonser, C.J. in Mohamadu v. Ibrahim (supra) where it was said that the power of granting an injunction was a limited one to be exercised on special grounds and restricted to cases referred to in the Courts Ordinance and that there was no inherent power 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 was Victor de Silva v. Jinadasa de Silva, [148 (1964) 68 N.L.R.45.] Manickavasagar, J. said "I have no doubt at all that the Court has the power to make order ... where it believes justice . . . demands the order, though there be no provision in the statute ..." The learned Judge made the remarks on the basis that there was no provision in the Civil Procedure Code regarding the stay of execution where application in revision was made. This dictum supports the view that the inherent power is invoked in a sphere or situation which legislation has not provided for. I then do not see the necessity of looking into the other authorities submitted. Section 40 of the Administration of Justice law, inter alia, provides for making orders as may be necessary to do justice but not for
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encroaching upon a subject or a sphere that has been provided for by the Legislature. Section 839 of the Civil Procedure Code provides for the exercise of the inherent power but it cannot be for a case provided for by statute.
It was the submission on behalf of all the landowners that where the act of the
Minister was motivated by mala fides the act is a
nullity or where the Minister
is motivated by mala fides in exercising a power, the exercise of that power and
all the steps taken
subsequently are a nullity and so in either event, 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 section 23
of the Amending Act. The declaratory actions in the cases under review fall
within the category prohibited
in section 23. Hence these actions could not have
been filed but for the proviso to section 24(1) and have been entertained
because
the proviso to section 24(1) permitted it. If then the landowners take
advantage of the proviso to file the actions complaining
of bad faith of the
defendant, they cannot be heard to say that the main part of section 24(1) does
not apply to acts done in bad
faith by the defendant. The proviso depends on the
principal part. This can be stated in another way. If the main part of the
section
prohibits the grant of the injunction only in the case of bona fide
acts, a curious result follows. The proviso gives the declaratory
action "in
lieu thereof," that is, instead of the injunction that is prohibited. Hence the
declaratory action is available
only in the case of bona fide acts. In the
present actions the basis is the allegation of mala fides and consequently they
are
outside the scope of the proviso. Can then these actions be maintained
otherwise? Section 23 of the Amending Act prohibits such
actions "... upon any
ground whatsoever arising out of or in respect of ... a decision . . . which any
person ... is empowered
to make under any written law." These are the widest
possible words indeed. Even where the complaint is that the decision is
motivated by bad faith, it is still a ground arising in respect of "a decision
empowered to be made under a law." Hence
every one of these actions under review
fall within the prohibitions in section 23 and these actions cannot be
maintained in spite
of the proviso to section 24(1). Such is the result of the
application to section 24(1) and its proviso of this submission. Such
a result
was never intended and never envisaged by the Legislature. Hence this submission
must fail. Consequently section 24(1)
read with its proviso cannot in any way be
limited in its application as submitted on behalf of the landowners.
It has been said that there are no degrees of nullity. But there are degrees of malice. Malice alleged is political revenge. Such allegations can be made easily in the field of politics. May even be unfounded, exaggerated and even instigated. Motive is double edged. Till there is a finding that the act is motivated by mala fides it is bona fides and valid. There can be a finding of
163
mala fides only on evidence elicited after both parties have been given at least an opportunity of being heard and never only on the affidavit of an applicant. If then, according to the submissions, section 24(1) prohibits the grant of an injunction only regarding bona fide acts is correct, no injunction can be granted till there is a finding that the act is mala fide. Then in all these cases injunctions have been granted before there was such a finding. It may appear that section 662 et seq. of the Civil Procedure Code or section 42 of the Administration of Justice Law will be the answer as these sections provide for issue of injunctions on affidavits. It is not so. Every law must be read, construed and applied with due regard to the Interpretation Act and section 24(1) is a section in that Act. For instance take section 42 of the Administration of Justice Law. It says "... on its appearing by the affidavit of the plaintiff that sufficient grounds exist therefor, grant an injunction ..." This must be read subject to section 24(1) of the Amending Act. Sufficient grounds 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 upon the 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 from publishing a certain notification until the final disposal of the action, Romer J. at page 732 said ". . . evidence by affidavit is insufficient. The want of good faith on the part of the defendants quite clearly cannot be gone into on affidavit evidence and will have to be pursued, if pursued at all, at the trial when it can be gone into in the light of such oral evidence as may be awarded." That appears to me to be the correct position here as well.
Before examining the numerous cases we must remember what this section is. Section 24(1) of the Amending Act is not what is called an ouster or a no certiorari or a preclusive clause. By that clause, the power of review of 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 be strictly applicable here. We are considering actions arising out of an administrative decision of a Minister under statutory powers and not the jurisdiction or the decision of a tribunal required to make a decision judicially. Cases dealing with this later category are still less applicable. Great reliance was placed on the case of Anisminic v. Foreign Compensation Commissioners (supra).
What Lord Reid in the passage, now daily quoted at 170: "But there are many cases where although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature it is a nullity. It may have given its decision in bad faith . . . ; 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 finding of a Judicial Tribunal in a claim involving a sum of £4 1/2 million. It did not deal with any question of mala fides at any stage of the proceedings of the tribunal or of any member of it; it did not deal with any questions on restrictions placed on relief granted by a Court. The essence of that decision was that an ouster clause does not prevent the determination of a tribunal acting 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 in giving
a decision renders that decision a nullity. He did
not say that all the steps
taken thereafter are a nullity or anything that flows therefrom is a nullity. In
all these cases after
the decision to acquire, definite steps have been taken
towards the acquisition, lands surveyed, orders to take possession published,
state officers taken over the possession of the lands on behalf of the State.
All these steps are pregnant with legal consequences.
Even if the decision be
declared to be motivated there is no meaning in calling the subsequent steps a
nullity. Supposing in the
Anisminic case (supra), or in such a case, the claim
of the company in a sum of £4 1/2 million was entertained but before the
decision
was declared or found to be a "nullity," the company was paid money
which was distributed among the shareholders. Suppose
a Police Officer who has
statutory powers of search in certain circumstances searches a house mala fide.
There is no meaning in
calling these acts a nullity. They have been done. It may
be an illegal payment or search. The act being illegal, there may be a
cause of
action, and damages. Instances can be multiplied. In Nakudda Ali v. Jayaratne
(supra) Lord Radcliff said referring to
an order of the Controller of Textiles,
"No doubt he must not exercise the power in bad faith ..." But with great
respect
he did not say it was a nullity if 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 was only 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 a compulsory
purchase order of land and bad faith was proved. The House of Lords considered
an ouster clause and held
that the jurisdiction of the Courts was ousted. At
page 871 Lord Radcliff said, "At one time the argument was shaped into the
form
of saying that an order made in bad faith was in law a nullity and that all
references to compulsory purchase of land in paras
15 and 16 must be treated as
references to such orders only as had been made in good 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 of legal consequences.
It bears no
brand of invalidity on its forehead. Unless the necessary proceedings are taken
to establish the question of invalidity
and to get it quashed or otherwise
upset, it will remain as effective for its ostensible purpose as the most
impeccable of orders."
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We were repeatedly reminded of Roncarelli v. Duplessis (supra). It was a case where a bar-keeper sued the Prime Minister and Attorney-General of Ontario for damages for maliciously instructing the licensing authority to cancel, without legal authority, a licence. There was proof of fraud and corruption. That case only illustrates that "an action for damages lies for deliberate abuse of public authority". Halsbury 4th Ed. Vol. 1, p. 187. There was neither an ouster clause nor anything equivalent to our section 24 which was considered in that case. The Privy Council in David v. Abdul Coder (supra), said per Viscount Radcliffe, "A malicious misuse of authority may cover a set of circumstances which go beyond the presence of mere ill will and it is only after the facts of malice have been properly ascertained is it possible to say that there has been an actionable breach of duty." That does not help in the interpretation of the section in question or the proposition advanced on behalf of the landowners. Similarly several other cases from various countries cited dealt with the abuse of power or public authority and for 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, et alU9 an ouster clause in the Coal Mining Industry Regulation to the effect that "a decision of a Local Reference Board shall not be appealed against.... be subject to Prohibition, Mandamus or Injunction ..." Section 75 of the Australian Constitution enacted (relevant portion) "In all matters in which a Writ of Mandamus or Prohibition or an Injunction is sought, the High Court shall have jurisdiction." In view of the provision a Writ of Prohibition was issued in respect of a decision of the Board on an erroneous finding that the matter was within the ambit of the Industry. Dixon, J. enunciated the additional requirement of bona fides for its validity though that was never in issue. This case was cited in The Queen v. Members of the Sugar Cane Prices Board et al.150 The Court considered an ouster clause in the Regulations of Sugar cane Prices Act and refused a Writ of Prohibition. The whole Court said that although section 12 did not permit the making of a new award (by the Central Board) its validity was not open to challenge in view of the preclusive clause. It was said there, (p. 252) that the decision of the Central Board 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 say so, I am reminded of what Lord Radcliff said in Nakudda Ali v. Jayaratne referred to earlier. However, two of the Judges said at p. 261 that the award cannot be questioned on any account whatsoever and its validity is put beyond challenge. Certainly some of the dicta do not appear to support the argument on behalf of the landowners. If section 22 of the Amending Act or the ouster clauses in the Acquisition Act were being considered, these cases may be of relevance. The submission on behalf of the landowners must therefore, fail.
Foot notes
149 (1945)70C.L.R.598.
150 (1959) 101 C.L.R. 246.
166
In conclusion there is one paragraph in the Smith case (supra) which I must quote in the present context. Lord Radcliff said at p. 871, '.. . and that brings us back to the question that determines this case: Has Parliament allowed the necessary proceedings to be taken. I am afraid that I have searched in vain for a principle of construction as applied to the Acts of Parliament which would enable the appellant to succeed. On the other hand it is 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 mind settles the question in these cases. The English translation of the Latin quotation reads, "What there is a departure from the text, it is not an interpretation but a prophecy." I will ask the same question Lord Radcliffe asked, "Q. Has Parliament allowed the necessary proceedings to be taken? A. Only a declaratory action but not an injunction." Any other answer in my judgment is a departure from the text and can only be on the assumption of the 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 the injunction against the defendant. All the orders granting injunctions are set aside and all the injunctions as are still in force will stand dissolved. The Order of the Judge of the High Court, Badulla, requiring the defendant to pay costs is set aside.
SHARVANANDA, J.
Since a division of the Supreme Court was "of the opinion that the orders made by the learned High Court and District Court Judges on the face of the records appeared to be illegal in view of the provisions of section 24 of the Interpretation Ordinance as amended by the Interpretation (Amendment) Act No. 18 of 1972" the Petitioners/Plaintiffs in the several cases were noticed to appear and show cause as to why the said orders should not be set aside in the exercise of the powers of revision of the Supreme Court in terms of section 354(1) of the Administration of Justice Law No. 44 of 1973.
The impugned orders consist of orders granting an injunction to the Petitioners, by the High Court in the exercise of its jurisdiction under section 21 of the Administration of Justice Law, and orders granting interim injunction to the Plaintiff by the District Court in the exercise of its powers under sections 662 and 664 of the Civil Procedure Code read with section 42 of the Administration of Justice Law, against the Hon. H. S. R. B. Kobbekaduwa, Minister of Agriculture and Lands, restraining him, his agent or officer, from taking further steps or proceedings towards acquisition of the properties (referred to in the schedule to their petition or plaint) and from ejecting the Petitioner/Plaintiff from the said properties. On the application
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of some of the parties noticed, that the questions that arise for consideration in these cases are fit and proper questions for authoritative decision by the Supreme Court, as they are of fundamental importance in regard to the right of the citizen to obtain interim injunction against a Minister of State or State Officer in the circumstances set out in the several plaints in the said cases, the Hon'ble the Acting Chief Justice made order under section 4(3)(c) of the Administration of Justice Law that the matters in dispute be heard and decided by a Bench of nine judges of the Supreme Court as they are of general and public importance.
The main question in issue that was canvassed in this Court was whether an injunction under section 21 of the Administration of Justice Law or interim injunction under sections 662 and 664 of the Civil Procedure Code read with section 42 of the Administration of Justice Law or a permanent injunction could be issued or granted against a Minister or an officer of the Crown, in view of the prohibitive provisions of section 24 of the Interpretation (Amendment) Act No. 18 of 1972.
The general allegation of the plaintiffs/petitioners finding each his cause of action for a declaration that the purported acquisition is a nullity is that the Minister had misused the powers vested in him by the Land Acquisition Act for the purpose of political revenge and/or personal vendetta. This allegation was supported by affidavits which were considered sufficient by the various Courts to justify the issue of the interim relief viz. interim injunction prayed for. Objections filed by the Respondent Minister to have the injunction dissolved have either been rejected or are awaiting further inquiry.
It is only as an issue of pure law that the question arises whether the Court is barred by the provisions of section 24 of the Interpretation (Amendment) Act from issuing an injunction whether interim or perpetual, under whatever circumstances, against the Minister or officer of the Crown and in particular even when there is colourable exercise or abuse of his power by the Minister or officer. This section reads as follows:
"24(1) Nothing in any enactment whether passed or made before or after the commencement of the ordinance shall be construed to confer on any Court, in any action or other civil procedure, the power to grant an injunction or make an order for specific performance against the Crown, a Minister, a Parliamentary Secretary, the Judicial Service Commission, the Public Service Commission, or of any member or officer of such Commission, in respect of any act done or included or about to be done by any such person or authority in the exercise of any power or authority vested by law in any such person or authority.
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Provided, however, that the preceding provisions of this subsection shall not be deemed to affect the power of such Court to make, in lieu thereof, an order declaratory of rights of parties.
(2) No Court shall in any civil proceeding grant an injunction or make an order against an officer of the Crown if the granting of the injunction or the making of the order would be to give relief against the Crown which could not have been obtained in proceedings against the Crown."
Does this provision provide a blanket exclusion of injunction against the Crown, Minister, etc. and officers of the Crown and afford to them a charter of immunity from any restraint by way of injunction whether the powers exercised by them are validly or bona fide exercised or not? The learned Solicitor-General appearing for the Minister went to the length of stating that section 24 precludes the Court from granting any injunction interim or permanent against a Minister whatever the legal quality of his action be and that the Minister's fiat is a complete answer to the Plaintiffs/Petitioners application for interim injunction. On the other hand counsel appearing for the plaintiffs argued that the immunity conferred by section 24 attaches only to acts of the Minister done in legal and bona fide exercise of the powers vested in him. These two approaches reflect two conflicting philosophies or attitudes and point to opposite directions of future development in legal thinking.
I approach the consideration of the issue in these cases with the anxious care which Judges of the Court have always given, and, I am confident will always give, to questions where it is alleged that the liberty and rights of the subjects have been unjustifiably interfered with. It is well to remember that the jurisdiction of the Courts has always been the only refuge of the subject against the unlawful acts of the Executive and its erring officers. Courts exist for the administration of justice and have an inherent power to review the exercise by the executive of its statutory powers which impinge on the citizens' rights and interests. An independent judiciary to which our constitution has entrusted the judicial power of the people is at once a guarantee and a bulwark of the freedom and rights of the subjects. The concept of Rule of Law assumes that the judicial power of the State extends to the review of judicial, quasi-judicial and executive acts and that any restriction on this power of review is a threat to the Rule of Law. Hence there is a presumption against ousting the jurisdiction of Courts to determine the extent of statutory powers. The exclusion of the jurisdiction of the Court is not to be readily inferred but such exclusion must be either explicitly stated or clearly implied. A Court of Law, naturally, approaches in a critical spirit any legislation which is calculated to impede a Court in the discharge of its duty to administer justice. Hence a Court will be disposed to construe any section, if possible, so as to avoid that result.
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"It is a principle not by any means to be whittled down that the subject's recourse to Her Majesty's Courts for the determination of his rights is not to be excluded except by clear words. That is a 'fundamental rule' from which I would not for my part sanction any departure"- per Viscount Simonds in Pyx Granite Co. Ltd. v. Ministry of Housing.151
Sachs, J. in Commissioner of Customs and Excise v. Cure and Deeley Ltd. 152 referred this well-known rule that a statute should not be construed as taking away the jurisdiction of the Courts in the absence of clear and unambiguous language to that effect. This leaning rests in a reluctance to deny to the subject access to the seat of justice. This denial can find expression in a complete deprivation of remedy or even in the substitution of a restricted remedy. The learned Solicitor-General conceded that this presumption operates when a complete ouster or removal of jurisdiction is aimed at, but not when only a remedy is suppressed. He compared sections 22 and 24 of the Interpretation (Amendment) Act and stated that as section 24 preserves the subject's right to a declaration of his rights, while seeking to extinguish the remedy of injunction, this presumption does not lie. I regret that I cannot appreciate this distinction. The presumption operates whenever there is a complete or a restricted ouster of the traditional jurisdiction of the Court. Any erosion of the Court's jurisdiction to determine a cause or to grant any particular remedy which an aggrieved person is ordinarily entitled to is not to be lightly presumed. In Ceylon declaratory relief challenging administrative action is generally sought with an injunction (both interim and permanent). An injunction will be granted to restrain a public officer from doing or threatening to do a wrongful act in the colourable exercise of his statutory powers- Buddhadasa v. Nadarajah, (supra). Coercion is generally necessary to ensure that law is obeyed. Prevention is better than cure. An injunction restrains a threatened wrong before it takes place. An interim injunction effectively stops the executive from using its powers, pendente lite for unauthorised purposes causing irreparable danger or mischief. The efficacy of the injunction is indisputable. A civil Court, in the exercise of its ordinary civil jurisdiction has the jurisdiction to grant the remedy of interim and permanent injunctions in all appropriate cases to prevent or arrest the threatened wrong. If such a valuable remedy is to be denied to a complainant of injustice committed by the executive there must be express or clear statutory language of exclusion. The presumption is against such legislative intent to take away the preventive jurisdiction of the Court.
Rule of law is the very foundation of our Constitution and the right of access to the Courts has always been jealously guarded. Rule of law depends on the provision of adequate safeguards against abuse of power by the executive. Our Constitution promises to usher in a welfare state for our
Foot notes
151 (1960) A.C. 260 at 286 .
152 (1962) 1 QB 340.
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country. In such a state, the Legislature has necessarily to create innumerable administrative bodies and entrust them with multifarious functions. They will have power to interfere with every aspect of human activity. If their existence is necessary for the progress and development of the country the abuse of power by them, if unchecked, may defeat the legislative scheme and bring about an authoritarian or totalitarian state. The existence of the power of judicial review and the exercise of same effectively is a necessary safeguard against such abuse of power.
"It is characteristic feature of modern democratic government in the Commonwealth that unless a statute provides to the contrary, officials or others are not exempted from the jurisdiction of the ordinary tribunals ... Behind Parliamentary responsibility lies legal liability and the acts of Ministers no less than the acts of subordinate officials are made subject to the Rule of Law . . . and the ordinary Courts have themselves jurisdiction to determine what is the extent of his legal power and whether the orders under which he acted were legal and valid"- per Dias S.P.J. in re Agnes Nona (supra).
Review by the Courts of an act or decision of an administrative agency has always been based on an allegation that the agency has exceeded or abused its powers and has acted ultra vires. When a power is exceeded or abused any acts done in such excess or abuse of the power is done without authority. The ultra vires doctrine effectively controls those who exceed or abuse the administrative discretion, which a statute has given.
Administrative power derives from a statute and is circumscribed by it. The Courts will intervene not only to prevent powers being exceeded, but also to prevent their being abused by the application of the ultra vires doctrine. If the repository of a power exceeds or abuses its authority, the purported exercise is a nullity. For the proper or lawful exercise of a statutory power, there should not only be a compliance with the substantive formal and procedural conditions laid down for its performance but also with implied requirements governing the exercise of discretion. A power is generally associated with the exercise of a discretion. All statutory powers must be exercised in good faith and for the purpose for which they were granted. The repository of power must act fairly and have regard to relevant considerations and not allow itself to be influenced by irrelevant considerations.
"It is well settled that a public body invested with statutory powers must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith and must act reasonably"- per Lord Macnaughten in Westminster Corporation v. London & N.W. Railway Co. (supra)
171
"It is in this field of the extent of the powers of government that the Courts have a traditional and important part to play in the control of administrative agencies" Garner 'Administrative Law' (3rd edition) at page 104.
"Their (Courts') task is to contain administrative activity within the bounds of delegated power; to apply to administrative action the test of locality ..."- vide article of Professor L.L. Jaffe and Edith G. Henderson "Judicial Review and the Rule of Law (1956) 72 L.Q.R. 345.
It is to be borne in mind that the ultra vires doctrine is not confined to cases
of plain excess of power; it also governs abuse
of power as when a power is
granted for one purpose is exercised for a different purpose or for a collateral
object or in bad faith.
In law the consequences are exactly the same; an
improper motive or a false step in procedure, will make an administrative act
just as illegal or invalid as does a flagrant excess of authority- see Wade,
Administrative Law (2nd edition) 47.
"An act is no less valid because it is an abuse of power than because it is an
excess of power in the narrow sense of the term"-
de Smith, Judicial Review of
Administrative Action, 2nd edition at 302.
Thus abuse of power or discretion constitutes a ground of invalidity independent of excess of power. An Act or thing done in abuse of power is ultra vires that authority and thus becomes in law a nullity. The power is in effect regarded as not having been exercised.
"The exercise of a power for an improper purpose is not an exercise of power
conferred for purposes defined in the statute which
confers it"- Wade and
Phillips, Constitutional Law (7th edition) 647.
Mr. Jayewardene contended with force that when a statute refers to the exercise
of power it contemplates that the power shall be
exercised in good faith and
that it is inconceivable that the Legislature should have intended to sanction
the exercise of powers
otherwise than in good faith. The burden of his argument
was that there is always a presumption that when the Legislature creates
statutory powers and invests persons or bodies with authority to exercise such
power, the Legislature intended such acts to be
performed bona fide for the
purpose for which the authority or power is created. If therefore the
Legislature seeks to give protection
to such acts by making persons who exercise
such powers immune from action, then such immunity must necessarily apply only
to the
acts done bona fide in the exercise of such powers. Authorities from
advanced systems of jurisprudence generally support this proposition
urged by
him. In my view, this proposition is well founded in law as the following
citations demonstrate.
172
A provision that the decision of a Board of Tribunal "shall not be challenged,
appealed against, quashed or called in question
or be subject to prohibition,
mandamus or injunction, in any Court on any ground whatsoever" has been held by
the High Court
of Australia as making jurisdictional defects invulnerable
provided that the Board's decision was a bona fide attempt to exercise its
power, that it related to the subject-matter of the legislation and that it
was reasonably capable of reference to the power given to it.
R v. Hickman, ex
parte Fox and Clinton (supra). This statement of the law has been quoted with
approval and generally followed
in the Australian Courts.153,154
It is of the utmost importance to uphold the right and indeed the duty of the
Courts to ensure that powers shall not be exercised
unlawfully which have been
conferred on a local authority or the executive, or indeed anyone else, when the
exercise of such powers
affect the basic rights of an individual. The Courts
should be alert to see that such powers conferred by statute are not exceeded
or abused- per Salmon L.J. in Rex v. Barnet and Camden Rent Tribunal.155
"In considering whether there has been a valid reference it is necessary to consider whether on the facts of the case there has been a valid and bona fide exercise of the power conferred by Parliament on them It will be within the power and duty of this Court so as to interfere in cases where there is not a bona fide exercise of the powers given by Parliament"- per Lord Goddard, S. J. in R v. Paddington Rent Tribunal.156
In Demetriades v. Glasgow Corporation 157 the House of Lords in applying regulation
51(2) of the Defence (General) Regulations 1939 which provided that: "While any
land
is in the possession of a competent authority ... the land may be used by
or under the authority of the competent authority for
such purpose and in such
manner as that authority thinks expedient" held that under the regulation the
competent authority
had an unrestricted discretion with regard to the use of
requisitioned property provided that it bona fide considered that the use
to
which the property was being put or the manner in which it was being used was
necessary and expedient to effect the purpose
of the requisition and that in the
absence of averments of bad faith, ulterior motive, or possibly perverseness, on
the part of the authority, the jurisdiction of the Court was excluded as the
competent authority was the judge of the use which
it should make of the land.
Foot notes
153 King v. Muray et al. (1948) 77 CLR 387.
154 Coal Miners Industrial Union of Workers of W. Australia v. Amalgamated
Collieries of
W. Australia (1960) 104
CLR 437.
155 (1972) 1 All E.R. 1185 at 1188.
156 (1949) 1 All E.R. 720 at 725.
157(1951)1
All E.R. 457.
173
"To pretend to use a power for the purpose for which alone it was given, yet in fact to use it for another, is an abuse of that power and amounts to mala fides. For to profess to make use of a power which has been given by statute for one purpose only, while in fact using it for a different purpose, is to act in fraudem legis .... such an use is a mere simulatory pretext"- per Davis, S.J. in Van Eck v. Etna Stores (supra).
The Supreme Court of India stated in Somawanti v. State of Punjab (supra) (an appeal involving acquisition proceedings under their corresponding Land Acquisition Act) that the declaration of the Government that the land is needed for a public purpose will be final, subject however, to one exception. That exception is, that if there is a colourable exercise of power, the declaration will be open to challenge at the instance of the aggrieved party. If it appears that what the Government is satisfied about is not a public purpose but a private purpose or no purpose at all, the action of the Government is colourable as not being relatable to the power conferred upon it by the Land Acquisition Act and its declaration will be a nullity. To such a declaration the conclusiveness of section 6(3) of the Act will not extend. For, the question whether a particular action was the result of fraud or not is always justiciable . . . The condition for the exercise of the power by the State Government is the existence of a public purpose and if the Government makes a declaration under section 6(1) in fraud of the powers conferred upon it by that section, the satisfaction on which the declaration is made is not about a matter with respect to which it is required to be satisfied by the provision and therefore its declaration is open to challenge as being without any legal effect. (This judgment of the Indian Supreme Court is apposite to the instant cases before this Court. The provisions of section 6 of the Indian Land Acquisition Act correspond to the provisions of section 5 of our Land Acquisition Act and the law set out therein applies equally well to our section 5). This view was approved in the later cases of Rajah Anand. State of U.P., (supra).
In Union Government v. Fakir [158 (1923) S.A.L.R. AD 466.] the Appellant Division of South Africa was confronted with a provision of their Immigration Regulation Act No. 22 of 1913 which read as follows:
"No Court of law in the Union shall . . . have jurisdiction to review, quash,
reverse, interdict or otherwise interfere with
any proceeding, act, order or
warrant of the Minister, immigration officer or master under this Act and
relating to the restriction
or detention ... of a person who is being dealt with
as a prohibited immigrant."
Counsel for the Minister argued in limine that even if there had been mala fides
on the part of the immigration officer, the Court
would have no jurisdiction to
interfere or make a restraining order. The Court held that:
174
"wide though the language may be, it does not exclude the jurisdiction of the Courts under every circumstance. Cases may be conceived in which interference would be justified. If there was a manifest absence of jurisdiction or if an order were made or obtained fraudulently a competent Court would be entitled to interfere . . . The contention advanced on behalf of the immigration authorities on this point is far too wide. The fact that an order purports to be done under the act will not exclude the interference of the courts where there was no jurisdiction to deal with the matter at all or where it has been dealt with not bona fide but fraudulently."
In Roncarelli v. Duplessis (supra) Rand, J. of the Supreme Court of Canada stated:
"There is no such thing as absolute and untrammelled discretion, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator, no legislative act can, without express language, be taken to contemplate an unlimited or arbitrary power, exercisable for any purpose, however capricious or irrelevant regardless of the nature or purpose of the statute. Fraud and corruption in the commissioner may not be mentioned in such statutes. but they are always implied as exceptions. Discretion necessarily implies good faith in discharging public duty: there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption."
Giving the judgment of the Privy Council in Francis v. Chief of Police Lord Pearson stated at page 257: [159 (1973) 2 All E.R. 251 at 257.]
"The object (of the act in question) is to facilitate preservation of public order. That being the object of the Act, he (the Chief of Police) must exercise his powers bona fide for the achievement of that object Roncarelli v. Duplessis (supra)- per Rand J.
"Parliament commits to the executive the discretion to decide and with that discretion, if bona fide exercised, no Court can interfere. All that the Court can do is to see that the power which it is claimed to exercise is one which falls within the four corners of the powers given by the Legislature and to see that those powers are exercised in good faith"- per Lord Greene, M.R. in Carltona Ltd. v. Commissioner of Works (supra).
"For such an order to be validly made the Permanent Secretary must in my view form an opinion in good faith ... If of course he acts in bad
175
faith in making an order under Regulation 18(1), the provisions taking away the right of the Court to call the order in question would not apply. In such an event the Court's jurisdiction to interfere remains untouched because, when the Permanent Secretary acts in bad faith, he has obviously not made the order for detention because he is of opinion that the person in respect of whom the order is made is likely to act in a manner prejudicial to the public safety and that he should be prevented from so acting but because the Permanent Secretary has some other obvious (oblique) reason"- per G. P. A. de Silva, S.P.J. in Hirdaramani v. Ratnavale (supra).
In the very same case, Samarawickrema, J., at page 119 quoted with approval a passage from S. A. de Smith - Judicial Review of Administrative Action (2nd edition) page 315 which states:
"If a discretionary power has been exercised for an unauthorised purpose it is
generally immaterial whether its repository was
acting in good faith or in bad
faith. But where the Courts have disclaimed jurisdiction to determine whether
the prescribed purpose
have in fact been pursued, because the relationship
between the subject-matter of the power to be exercised and these purposes are
placed within the sole discretion of the competent authority (as where a power
is exercisable if it appears to be the authority
or expedient for the
furtherance of those purposes) they have still asserted jurisdiction to
determine whether the authority has
in good faith endeavoured to act in
accordance with the prescribed purposes" and concluded as follows- "I am
therefore of the view
that regulation 55 will not apply to the case of a person
unlawfully detained under an invalid detention order made in abuse of
the powers
conferred by Regulation 18(1)"- page 120.
"I do not see how the order of an executive officer . . . which is mala fide can
be distinguished. Here too he would be acting
outside his jurisdiction as the
Regulation clearly contemplates an order based on an opinion formed bona fide.
It may well be that
in the result an inquiry into the question of mala fide may
end in a blind alley . .. but that does not mean that this Court should
shut its
door to a person who on the face of his petition has a prima facie case of bad
faith showing that the respondent had acted
dishonestly and/or with an ulterior
and/or collateral purpose and therefore in fact he had not exercised his opinion
as contemplated
under the Regulations"- per Wijayatilake, J. in Gunasekera v.
Ratnavale (supra).
In David v. Abdul Coder (supra) the Privy Council held that an applicant for a statutory licence can have a right to damages if there had been a malicious misuse of the statutory power to grant the licence. The Court held that the plaintiff was entitled to have his claim for licence subjected to a bona fide determination by a public authority.
176
In Partap Singh v. State of Punjab, (supra) the Supreme Court of India observed:
"The two grounds of ultra vires and mala fide are thus most inextricably mixed. Treating it as a question of ultra vires, the question is what is the nature of the power which has been granted to achieve a definite object in which case, it would be conditioned by the purpose for which it is vested. Taking the present case of the power vested in Government to pass the impugned orders, it could not be doubted that it is vested in Government for accomplishing a defined public purpose viz. to ensure probity and purity in the public service. The nature of the power thus discloses the purpose. In this context the use of that power for achieving an alien purpose- wreaking the Minister's vengeance on the officer would be mala fide and a colourable exercise of that power and would therefore be struck down by the Courts."
Further, according to certain judgments of our Supreme Court good faith has been held to condition the right to the notice under section 461 of the Civil Procedure Code and also to entitle a Police Officer to claim the benefit of section 83 of the Police Ordinance- vide 9 N.L.R. 138, 16 N.L.R. 49, 3 C.W.R. 121,23 N.L.R. 192 and 29 N.L.R. 139 (supra).
Thus in carrying out their task of enforcing the law, the Court presumes that bad faith cannot be said to have been authorised by a statute and insists on powers being exercised truly for the purpose indicated by Parliament and not for any ulterior purpose. The Court is solicitous that when the agency exercises the power, it shall not act mala fide or frivolously or vexatiously but shall act in good faith and for the achievement of the objects the enactment had in view. The Court intervenes to prevent not the use of powers but the misuse of power. When the exercise of the discretion is not a lawful exercise of the discretion because the powers are exceeded or abused, then it is considered that there has been no exercise of the statutory powers or discretion in terms of the law.
The learned Solicitor-General did not challenge the general proposition that statutory powers must be exercised bona fide; but contended that for the purpose of section 24 of the Interpretation (Amendment) Act any exercise of powers whether bona fide or mala fide falls within the ambit of section 24 as there is no express limitation of the kind of exercise. He states that the intention of the legislature was to prevent the Court granting injunction and staying acquisition proceedings because it was found by experience that though large numbers of acquisition proceedings were stayed by issue of interim injunction on grounds of mala fides, not one case had over the years succeeded on that ground. He admitted that he had not, however, taken into account the number of acquisitions which were abandoned or withdrawn
177
after institution of action, challenging such acquisitions. He further referred us to the speech made by the Minister of Justice, when he introduced the Interpretation Amendment Bill, to show the intention behind section 24 and argued that the Minister's speech furnished a guide to the construction of the section.
The primary rule of construction is to intend the Legislature to have meant what they have actually expressed. The object of all interpretation, is to discover the intention of the Legislature.
"but the intention of Parliament must be deduced from the language used" - per Lord Parker, C.J. in Capper v. Baldwin. [160(1965) 1 All E.R. 787 at 791.]
The duty of the Court is to interpret the words the Legislature has used and not to travel outside on a voyage of discovery.
" A mere conjecture that Parliament entertained a purpose which, however natural, has not been embodied in the words it has used, if they are literally interpreted, is no sufficient reason for departing from the literal construction" - per Lord Haldane in Lumsden v. Commissioner of Inland Revenue. [161 (1914) A.C. 877 at 892.]
If the words properly construed admit of only one meaning, the Court is not entitled to deny to the words that meaning, merely because the Court feels that the result is not in accordance with the intention of the Legal Draftsman or the Minister. Proper construction necessarily involves certain built-in assumptions which ordinarily apply unless excluded. The Legislature intends statutory powers to be exercised in good faith and for the purpose for which they were conferred. It is entirely repugnant to the intention of the Legislature that the statutory power which it grants should be abused.
"Enactments which confer powers are so construed as to meet all attempts to
abuse them ... Though the act done was in execution
of the statutory power and
within its letter it would nevertheless be held not to come within the power, if
done otherwise than
honestly and in the spirit of the enactment"- Maxwell on
Interpretation of Statutes 1lth edition at 116,117.
"The rule of improper purpose is essentially an implied maxim of statutory
interpretation that even though a discretion is
expressed in unqualified terms
the statute must be taken to read that the discretion must be exercised for the
purpose contemplated
by the statute" - Principles of Administrative Law by
Griffith and Street (4th edition 225 - 226)
178
"There are certain fundamental assumptions, which without explicit restatement in every case, necessarily underlie the remission of the power to decide, such as the requirement that a decision must be made in accordance with principles of natural justice and good faith"- per Lord Wilberforce (1969) 1 All. E.R. 208 at 244 (supra).
Thus it is a fundamental rule of construction that all statutory powers must be exercised in good faith and to promote the objects of the enabling Act. It is the basis of the grant of power to any administrative agency. The Court will read implied limitations into an ostensibly unfettered grant of power. "Fraud and corruption may not be mentioned in statutes but they are always implied as exceptions." These limitations are implicit in the nature and character of the power itself.
"Mala fides will be an implied exception to any exclusionary provision of this
nature which on the face of it precludes a Court
from questioning the validity
of an order made thereunder"- per G. P. A. de Silva. S.P.J. in Hirdaramani v.
Ratnavale (supra).
In the case of Padfield v. Minister of Agriculture (supra) where the discretion
that was conferred on the Minister was "to
act as he thought fit," the House of
Lords held that the discretion was not wholly unfettered in that it had to be
used to
promote the policy and the objects of the Act in question. Thus, those
rules of construction set out above militate against the
construction of section
24 of the Interpretation (Amendment) Act as contended for by the
Solicitor-General. It is well that such
a construction cannot be accepted, or
otherwise, the door will be open for unfettered abuse of power by administrative
bodies.
As was said by Achner, J. in Clinch v. I.R.C. (supra).
"One of the vital functions of the Courts is to protect the individual from any abuse of power by the executive, a function which nowadays grows more and more important as governmental interference increases."
Every legal power must have legal limits. Where discretion is absolute, man has suffered. Absence of arbitrary power is the first essential of the Rule of Law. In view of these revered principles of statutory interpretation clear or express words are required to convince me that the Legislature intended to immunise mala fides or ultra vires acts of the executive from the corrective of injunctions. An intention to deprive a subject of an effective, equitable remedy like an injunction cannot be gathered from inconclusive or ambiguous language. Explicit words are necessary to achieve that purpose. But then, the counsel for the Minister states that acquisition proceedings and other urgent schemes are held up by stay orders issued by Courts and the delay is frustrating. He vehemently protested that the interests of the State
179
should be preferred to the interests of a few individual landowners, to whom it might cause hardship. His argument assumes that judges are in the habit of granting injunction for the mere asking. I regret that experience of the original Courts does not warrant this facile assumption. Interim injunctions are issued only when the Court is satisfied on the material placed before it that there is a strong prima facie case in support of the right which the plaintiff is asserting and that there is a substantial question to be investigated and that matters ought to be preserved in status quo until the question can be finally disposed of. Acceptance of the Solicitor-General's argument will result in a person aggrieved being unable to invoke the jurisdiction of the Court to restrain the Minister and his officers from inflicting irreparable damage on private rights by abuse of powers entrusted to them. A blanket exclusion of injunctive relief is hard to justify as Courts can be trusted to see that their jurisdiction to grant injunction is not abused. A scheme of democratic government like ours no doubt at times feels the lack of power to act with complete all-embracing swiftly moving authority. No doubt a government with distributed authority subject to be challenged in a Court of law, at least long enough to consider and adjudicate the challenge, labours under restrictions from which other types of government are free. It has not been our tradition to envy such governments. The Rule of Law involves such restrictions. The price is not too high in view of the safeguards which these healthy restrictions afford. In any event, in the matters of delay complained of by the Solicitor-General the Government is not helpless. The delay can however, be reduced or eliminated by the highest priority being given to the hearing and disposal of the Land Acquisition cases, as contemplated by section 2 of the Land Acquisition (Amendment) Act No. 20 of 1969. Counsel's argument that the overriding public interest should prevent the issue of injunction despite alleged illegality of the acquisition also overlooks the fundamental rights of equality before the law and equal protection of the law which are enshrined in section 18 of our Constitution and fundamental principles of our Common Law. If section 24 intended favoured treatment to government agencies language more precise has to be employed to manifest such intention.
The sheet-anchor of the Solicitor-General's submission that the Legislature has by the provision of section 24 sought to give finality and security from challenge, as far as any issue of injunction is concerned, to acts done or intended to be done by any authority in the exercise (whether bona fide or mala fide) of any powers vested in him in the majority decision of the House of Lords in the case of Smith v. East Elloe Rural D.C. (supra). The facts in that case are as follows- The validity of a compulsory purchase order confirmed by a Minister could be challenged by the owner within six weeks of the date of the order on the ground that its authorisation was not 'empowered' to be granted under the enabling Act. After six weeks had
180
elapsed according to clause 16 of the statute, it could not be questioned "in any legal proceedings whatsoever." The property owner brought an action a long time after the prescribed period, claiming a declaration that the order was void because it had been fraudulently procured. The House of Lords held by a majority that the plain words of the Act precluded judicial review after the expiry of the six weeks period, and some of their Lordships were of the view that even within the six weeks' period, the order could not be challenged on the ground of bad faith. The majority of the Law Lords held that there was nothing ambiguous about clause 16. Viscount Simonds said there was no justification for the introduction of limiting words such as "if made in good faith" and there is the less reason for doing so when these words would have the effect of depriving the express words "in any legal proceeding whatsoever" of their full meaning and content." Lord Radcliff affirmed that "Courts of Law have always exercised a certain authority to restrain the abuse of statutory powers ... It is an abuse of power to exercise it for a purpose different from that for which it is entrusted to the holder, not the less because he may be acting ostensibly for the authorised purpose. Probably most of the recognised grounds of invalidity could be brought under this head; the introductions of illegitimate considerations, the rejection of legitimate ones, manifest unreasonableness, arbitrary or capricious conduct, the motive of personal advantage, or the gratification of personal ill-will" but stated:
"But if so, I do not see how it is possible to treat the provisions of paragraph
15 and 16 of Part IV of the Schedule 1 of the
Act as enacting anything less than
a complete statutory code for regulating the extent to and the conditions under
which Courts
of Law might be resorted to for the purpose of questioning the
validity of a compulsory purchase order within the protection of
the Act... I
should think paragraph 16 concluded the matter, and that it did not leave to the
Courts any surviving jurisdiction."
This case really turned on the interpretation of a statutory expression. It held
that an allegation of bad faith was not sufficient
to overcome a statutory
provision expressly excluding any possibility of judicial review. This decision
was a majority one (3-2)
and Lord Reid who dissented was of the view that the
general words in a statute should be read so as not to deprive the Court of
jurisdiction where bad faith is involved, (at page 868). This decision can be
supported only on the basis that the statutory language
in the context there
excluded jurisdiction to review the vires of an order since a limited period has
been prescribed by statute
for challenging its validity and substantial
prejudice to other interest would be sustained if the order were to be
invalidated
after the period had expired. This decision is today of doubtful
value in view of the observations of the House of Lords in Anisminic
v. Foreign
Compensation Commission (supra). In the later case, their Lordships
181
expressed serious reservations about the majority decision in Smith v. East Elloe R.D.C. (supra) in so far as the case stands as authority for the principle that after the expiry of the statutory period for challenge an order protected by such a formula cannot be impugned even on the ground that it was procured by fraud. The principle enunciated in the Anisminic case was that a statute, by providing that a determination or an order of an authority cannot be challenged in legal proceedings, does not prevent the Courts from holding a determination or an order to be a nullity for being outside the jurisdiction of the authority. (Bad faith is a special facet of ultra vires doctrine, a body vested with discretionary powers acts ultra vires if it acts in bad faith or for a wrong purpose. S. A. de Smith- Constitutional and Administrative Law (1971) at page 549). Professor Wade in his article on Aspects of Anisminic Case 85 L. Q. R. 198 at 207 commenting on the East Elloe case (supra) remarked:
"It cannot be often that the House of Lords decides as appeal without any mention of the main principle of law which ought to be in issue. Had reference only been made to the decisions holding that a no certiorari clause will not bar certiorari in case of fraud, the whole case would have been put in a different light."
It is to be noted that the Supreme Court of India, had prior to the House of
Lords decision in Anisminic case, expressed its reservation
about the
correctness of the East Elloe case- (supra) vide A.I.R. 1963 S.C. 151 at 169 - Somawanti's case.
The judgments of their Lordships Reid, Pearce, and Wilberforce in the Anisminic
case (supra) contain a lucid exposition of the general
principles governing
determination of tribunals and judicial review thereof. They afford guidance in
resolving the contentions
raised in the instant case. Those principles are of
universal validity and apply equally well to orders of a Minister or executive
officer. As was stated by Lord Reid:
"There are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend the list to be exhaustive"- (pages 213-214).
182
Commenting on the legal significance of a preclusive clause, Lord Wilberforce observed:
"The question what is the tribunal's area, is one which it has always been permissible to ask and answer, and it must follow that examination of its extent is not precluded by a clause conferring conclusiveness, finality or unquestionability on its decisions. Those clauses in their nature can only relate to decisions within the field of operation entrusted to the tribunal. They may, according to the width and emphasis of their formulation, help to ascertain the extent of that field, to narrow it or enlarge it, but unless one is to deny the statutory origin of the tribunal, and of its powers, they cannot preclude examination of that extent. It is sometimes said that the preclusive clause does not operate to decisions outside the permitted field because they are a nullity . . . The Courts, when they decide that a decision is a nullity, are not disregarding the preclusive clause, just as it is their duty to attribute autonomy of decision of action to the tribunal within the designated area, so as the counterpart of this autonomy, they must ensure that the limits of that area which have been laid down are observed, (page 244).
As stated earlier, the only instance in which the Court can interfere with an act of an executive body which is, on the face of it regular and within its powers, is when it it proved to be in face ultra vires. Issues of bad faith, misuse of power, oblique motives, unreasonableness and collateral and indirect objects and so forth furnish examples of matters which if proved to exist establish the ultra vires character of the act in question. The power of the Court to interfere in such cases is not that of an appellate authority to override a decision or act of the executive authority, but is that of a judicial authority which is concerned and concerned only to see whether the executive has contravened the law by acting in excess of the powers which the Legislature has confided in it. The Court does not pass judgments on issues of policy nor review an exercise of discretion but pass judgment on the legality or validity of acts of government. The jurisdictional principle serves as the main plank of judicial review. If an act or decision is outside jurisdiction, it is null and void for all purposes. There are no degrees of nullity. If an act is a nullity, it is automatically null and void and there is no need for an order of the Court to set it aside though it is sometimes convenient or prudent to have the Court declare it to be so.
"No legally recognised rights found on the assumption of its validity should accrue to any person even before the act is declared to be invalid or set aside in a Court of Law"- Hailsham (4th edition) vol. 1 para 27.
"You cannot put something or nothing and expect it to stay there, It will collapse"- per Lord Denning.[162 Macfoy United Africa Co., Ltd. (1961) 3 All E.R. 1169 at 1172. ]
183
An act done in ostensible exercise of statutory powers but dishonestly or in bad faith is not in truth an exercise of the powers and is a nullity. The statement of Lord Radcliffe in the East Elloe case (supra) at page 871 that:
"an order, even if not made in good faith, is still an act capable of legal
consequences. It bears no brand of invalidity upon
its forehead. Unless the
necessary proceedings are taken at law to establish the cause of invalidity and
to get it quashed or otherwise
upset it will remain effective for its ostensible
purpose as the most impeccable of orders"
does not fully describe the complete
effect of a null and void act. The fact that legal proceedings will have to be
resorted to,
for a declaration of nullity does not alter the fact of "no act,"
in the legal sense. Such declaration operates retrospectively
and restores
parties to the status quo and confirms that in the eyes of the law the void acts
or orders are not acts or orders
of the authority done in the exercise of a
statutory power. When an act that is done without jurisdiction is quashed for
that reason,
the position is the same as if no act had been done at all. In the
eyes of the law there is no exercise of the power unless the
repository of the
power had acted in good faith and within the framework of the law. The exercise
must be a true or real exercise
and not a purported or apparent exercise. An
apparent or purported exercise has, in the eyes of the law, no existence as it
is
a nullity and the act done in pursuance of it is also a nullity. Section 24
of the Interpretation (Amendment) Act thus can apply
and relate only to acts
done in the exercise of a power conferred by law. If the impugned acts are acts
not done in the genuine
or true exercise of the statutory power then they are
not done in the "exercise of a power conferred by law" and are a
nullity and
section 24 does not protect them. The ascertainment of the question whether the
act is in the exercise of the statutory
power or not is a task for the Court and
not for that authority. The Court determines the jurisdictional limits of
executive power.
If the executive determination on this question is final, it
will sap the judicial power as it exists under our Constitution and
establish a
government of bureaucratic character.
"The essence of the decision in the Anisminic case is that the ouster clause
would not prevent the determination of the Foreign
Compensation Commission being
set aside by the Courts if it was outside the Commissioner's jurisdiction but
that it could not be
questioned on the ground of mere error within the
jurisdiction"- per Dr. Wade 85 L.Q.R. at 209.
The House of Lords in the Anisminic case correctly held that nullity is the
consequence of all kinds of jurisdictional errors e.g.
breach of natural
justice, bad faith, failure to deal with the right question and taking wrong
matters into account. These principles
militate against my accepting the
argument of counsel for the Minister that section 24 catches up within its ambit
all acts
184
whether intra vires or ultra vires or done in good faith or bad faith. Applying the principles enunciated in the Anisminic case I am of the view that the orders of acquisition made by the Respondent-Minister, if not made by him in the bona fide or proper exercise of the power vested in him under the Land Acquisition Act are not orders made in the exercise of authority vested in him by law and that in the circumstances section 24 has no application and does not inhibit the Court granting the relief of interim injunction. The restriction placed in subsection (2) of section 24 is subject to the limitation contained in clause 2 in subsection (1) because subsection (2) does not give the public officer greater protection than is given to the Crown, Minister, etc. A public officer can also be restrained by injunction if he acts mala fide. In my view the orders made by the respective subordinate Courts on the material placed before them are legal and can be sustained. Neither principle nor authority compels me to the conclusion that section 24 affords a charter of immunity to the executive from being restrained in appropriate cases, by injunction from invasion of a subject's rights.
Before concluding I wish to state with all respect to the Judges who decided the case of Hewawasam Gamage v. Minister of Agriculture and Lands (supra) that the case was not correctly decided for the reasons set out above. The Court was not justified in excluding from its consideration the allegation of mala fides on the part of the Minister. If the acquisition had been motivated by political reasons and/or reasons extraneous to the Land Acquisition Act, the validity of the acquisition can be questioned in a Court of Law. Further, in my view, the case of Karunanayake v. de Silva (supra) was correctly decided and should be followed in appropriate cases.
In view of the above conclusions I do not think it is necessary to go into the question whether in any event section 24 bars the issue of interim injunction. I see the force of Mr. Thiruchelvam's argument that on an analysis of section 24 it would appear that only permanent injunction is contemplated; for, the proviso to the section speaks of granting an order declaratory of rights of parties, in lieu of granting an injunction and the making of a declaration is the final act of the Court. In lieu of an interim injunction an order declaratory of the rights Of parties cannot be made. As against this submission the learned Solicitor-General contends that the intention of the Legislature was to prohibit the issue of both interim and permanent injunction and to bring the law in line with the provisions of the English Crown Proceedings Act 1947. He drew our attention to the words of the English Act:
"Where in any proceedings against the Crown ...
the Court shall not grant an
injunction."
185
These words were held to exclude the grant of interlocutory injunction or an interim declaration. Underhill v. Ministry of Food (supra). International Electric Co. & Customs and Excise Commissioner (supra) I reserve the consideration of this aspect of the matter for another appropriate occasion.
Mr. Jayewardene alleges that certain irregularities have taken place in the way
the instant matters have been brought by way of revision
before the Supreme
Court. Since there has been a proper reference by the learned Acting Chief
Justice under section 14(3) (c) of
the Administration of Justice Law and this
Court, as is presently constituted is validly seized of the matter, I do not
think it
is necessary to go into the question of the alleged irregularities. In
passing I wish to say that counsel's analysis of the various
sections of the Act
impressed on me the importance of the open Court rule embodied in section 7 of
the Law. There is a duty laid
upon every Court or Tribunal to sit in public and
administer justice, unless otherwise provided by law. But calling for the record
for the purpose of examining it is not a judicial act which should be performed
while sitting with open doors.
In my view, the notices issued on the Plaintiffs/Petitioners should be
discharged and the records should be sent back for trial
or inquiry to proceed
in due course.
In the special circumstances, each party will bear his own costs in this matter.
Section 24 of Interpretation Ordinance is not applicable where the act of the Minister is without jurisdiction, ultra vires or is in bad faith.
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