Jan 28, 1974 - In this context, it is best always to leave policy to the elected organs of State and interpret such ....
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 S.C. APN/GEN/7/74 S.C. APN/GEN/8/74 S.C. APN/GEN/9/74 S.C. APN/GEN/10/74 S.C. APN/GEN/11/74 S.C. APN/GEN/12/74 S.C. APN/GEN/13/74 S.C. APN/GEN/14/74 S.C. APN/GEN/15/74 S.C. APN/GEN/16/74 S.C. APN/GEN/18/74 S.C. APN/GEN/19/74 S.C. APN/GEN/20/74 S.C. APN/GEN/24/74
H.C. Badulla D.C. Bandarawela H.C. Kandy D.C. Kandy D.C. Kandy D.C. Kandy H.C. Kandy H.C. Ratnapura H.C. Kandy H.C. Kandy H.C. Kandy H.C. Kandy H.C. Kandy H.C. Kandy D.C. Gampola
V/l/74 1/6 11/74 L/10568 L/10569 L/10570 15/74 6/74 1/28/74 1/25/74 L/10586 1/37/74 1/38/74 1/39/74 X/1152
PROSTUDIES 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.
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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.
PROSTUDIES 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.
PROSTUDIES (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 ",
PROSTUDIES 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.
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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
PROSTUDIES (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.
PROSTUDIES 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.
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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.
PROSTUDIES 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
PROSTUDIES 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 AttorneyGeneral 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."
PROSTUDIES 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.
PROSTUDIES 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."
PROSTUDIES 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.
PROSTUDIES 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
PROSTUDIES 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.
PROSTUDIES 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:-
PROSTUDIES "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".
PROSTUDIES 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 exparte 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.],
PROSTUDIES "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
PROSTUDIES 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.
PROSTUDIES 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.
PROSTUDIES 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.
PROSTUDIES 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
PROSTUDIES 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.
PROSTUDIES 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
PROSTUDIES 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,
PROSTUDIES 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
PROSTUDIES 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 116117). 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:
PROSTUDIES "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 27Court 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.
PROSTUDIES 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".
PROSTUDIES 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
PROSTUDIES 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.
PROSTUDIES 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
PROSTUDIES 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".
PROSTUDIES 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.
PROSTUDIES 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".
PROSTUDIES 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, 43 3 C.W.R. 121.
44 (1958) 59 N.L.R. 447. 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,
PROSTUDIES 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.
PROSTUDIES 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 plaintiffpetitioners 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. 2. 3. 4. 5. 6.
H.C.P. Ratnapura 6/74 APN/GEN/13/74 -Order made on 13.5. 1974. D.C. Kandy L. 10568 APN/GEN/10/74 -Order made on 22.4.1974. D.C. Kandy L. 10569 APN/GEN/11/74 -Order made on 22.4.1974. D.C. Kandy L. 10570 APN/GEN/12/74 -Order dated 22.4.1974. H.C. Badulla V/I/74 APN/GEN/6/74 -Order dated 14.3.1974, and 9.4.1974. H.C. Kandy 1/25/74 APN/GEN/74 -Order dated 17.5.74."
PROSTUDIES 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 8. H.C. Kandy 11/74.APN/GEN/8/74- Order dated 9. H.C. Kandy 15/74/APN/GEN.12.74- Order dated
29.4.1974 22.2.1974 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.
PROSTUDIES 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
PROSTUDIES 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".
PROSTUDIES "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-inCouncil 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:-
PROSTUDIES "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
PROSTUDIES 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.
PROSTUDIES 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
PROSTUDIES Foot notes
63 (1907)7 N.L.R. 313. 64 (1919) A.C. 646.
65 (1963) 65 N.L.R. 119. 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.
PROSTUDIES 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
PROSTUDIES (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
PROSTUDIES 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 SolicitorGeneral'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. (1953) 54 N.L.R. 433. 74 Warner v. Metropolitan Police Commissioners (1968) 2 W.L.R. 1303, 73
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.
PROSTUDIES 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.
PROSTUDIES 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
PROSTUDIES 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 SolicitorGeneral 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. Cooperative Union Lid. (1952) 54 N.L.R .517.
PROSTUDIES 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).
PROSTUDIES 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 GovernorGeneral 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 WadeAdministrative 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
PROSTUDIES 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.
PROSTUDIES 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).
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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.
PROSTUDIES 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
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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."
PROSTUDIES 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.
PROSTUDIES 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 Ashbridge106 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
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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.
PROSTUDIES In this connection he quoted a passage from an article by Sir Thomas Barnes,1" at that time ProcuratorGeneral 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 AttorneyGeneral 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
PROSTUDIES 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.
PROSTUDIES 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 re�affirmed "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?
PROSTUDIES 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
PROSTUDIES 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.
PROSTUDIES 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.
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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
PROSTUDIES
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
PROSTUDIES 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."
PROSTUDIES 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.
PROSTUDIES 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 sub�heads :(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 AttorneyGeneral 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.
PROSTUDIES 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.
PROSTUDIES 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.
PROSTUDIES 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 SolicitorGeneral. 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:-
PROSTUDIES "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.
PROSTUDIES 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..."
PROSTUDIES 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.
PROSTUDIES 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).
PROSTUDIES 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
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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."
PROSTUDIES 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 ?
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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.
PROSTUDIES 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 statusupon 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."
PROSTUDIES 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
PROSTUDIES 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)
PROSTUDIES 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
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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."
PROSTUDIES 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.
PROSTUDIES 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.
PROSTUDIES When the present matter was taken up for hearing Counsel for the Petitioners as well as the AttorneyGeneral 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."
PROSTUDIES 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:-
PROSTUDIES "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).
PROSTUDIES 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?
PROSTUDIES 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
PROSTUDIES "... 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.
PROSTUDIES 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 CounselThe 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.
PROSTUDIES 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
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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.
PROSTUDIES 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.
PROSTUDIES (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 UvaParanagama 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
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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 SolicitorGeneral'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."
PROSTUDIES 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.
PROSTUDIES 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 141 142
Exparte Morris (1954) 3 S.A.L.R. 154. 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" 151
PROSTUDIES 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.
PROSTUDIES (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 153 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.
PROSTUDIES 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.
PROSTUDIES 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.
PROSTUDIES 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.
PROSTUDIES 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.
PROSTUDIES 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.
PROSTUDIES 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 162 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.
PROSTUDIES 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).
PROSTUDIES 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." 165 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.
PROSTUDIES 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.
PROSTUDIES 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
167 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. 168 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."
PROSTUDIES 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. 169
"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.
PROSTUDIES 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. 170 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
PROSTUDIES "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
PROSTUDIES 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).
PROSTUDIES 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).
PROSTUDIES 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.
PROSTUDIES 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
PROSTUDIES "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.
PROSTUDIES 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
PROSTUDIES 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.
PROSTUDIES "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
PROSTUDIES 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.
PROSTUDIES 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.
