Admin Law – cases

“According to Law” – It meaning? Sources of Admin law? Orders in the nature of

writs?

Article 140, 154 P 4(B), 126 (3), 3 and 4 (b)

Art 140 – Subject to the provision of the constitution, the CA shall have full power
and authority to inspect and examine the records of any court of first instance or
tribunal or other institutions, and grant and issue, according to law, orders in the
nature of writs of certiorari, prohibiton, procedendo, mandamus, and qua warranto
against the judge of any court of first instances or tribunal or other institution or nay
other person.

154 P (4) (b) – Every High of the province shall have jurisdiction to issue, according
to law- order in the nature of writs of certiorari, prohibiton, procedendo, mandamus,
and qua warranto against any person exercising, within the province, any power
under

(i) Any law; 0r

(ii) Any statutues made by the provincial council established for that province,

In respect of any matter set out in the provincial council list.

126(3) Where in the course of hearing in the CA into an application for orders in
orders in the nature of writs of certiorari, prohibiton, procedendo, mandamus, and
qua warranto , it appears to such court that there is prima facie evidence of
infringement or imminent infringement of such provisions of Chapter III or chapter
IV by a party to such application, such court shall fore with refer such matter for the
determination by the SC

ART 3 – IN the RSL sovereignty is in the people and is inalienable. Sovereignty

includes the powers of government, fundamental rights and franchise.

Art 4 (d) – the FRs which are by constitution declared and recognized shall be
respected, secured and advanced by all the organs of government, and shall not be
abridged, restricted or denied, save in the manner and to the extent hereinafter
provided;

Thasim v. Rodrigo 48 NLR 121

In his petition the petitioner complains that the Controller of Textiles has
acted without jurisdiction in making an order revoking all the licenses in his
hand. This order was made under Regulation 62 of the Defense (Control of
Textiles) Regulations, 1945, which is worded as follows :— "Where the
Controller has reasonable grounds to believe that any dealer is unfit to be
allowed to continue as a dealer, the Controller may cancel the textile license
or textile licenses issued to him."

Quo Warranto can only in the rarest case of usurpation of a judicial office by
some one be issued to a court, while mandamus very rarely issues to a court.
It is impossible to find such a common factor, in the writs mentioned in
section 42of Courts ordinance, as is necessary to apply the ejusdem
generis(of the same kind or nature) rule to all the writs taken together.
Therefore it would be more reasonable to take each writ separately and
consider what "other person or tribunal" would be amenable to each
particular writ, applying English law principles.

The writs specified in the section are unknown to Roman-Dutch and Ceylon
law and without calling in aid English law the mandate could not issue and
the Legislature must be deemed to have enacted a meaningless provision.

Nakkuda Ali v. Jayaratne 51 NLR 457 @461

Moreover there can be no alternative to the view that when s. 42 gives power
to issue these mandates "according to law" it is the relevant rules of English
common law that must be resorted to in order to ascertain in what
circumstances and under what conditions the Court, may be moved for the
issue of a prerogative writ.

It is not difficult to think of circumstances in which the Controller might, in

any ordinary sense of the words, have reasonable grounds of belief without
having ever confronted the license holder with the information which is the
source of his belief.

Lord Justice Atkin (as he then was) in R. v. Electricity Commissioners 1924 1

KB 171 @204. " . . . the operation of the writs has extended to control the
proceedings of bodies who do not claim to be, and would not be recognized
as, Courts of Justice. Wherever any body of persons having legal authority to
determine questions affecting the rights of subjects, and having the duty to
act judicially, act in excess of their legal authority they are subject to the
controlling jurisdiction of the King's Bench Division exercised in these writs".

It is that characteristic that the Controller lacks in acting under Regulation 62.
In truth when he cancels a license he is not determining a question:
he is taking executive action to withdraw a privilege because he
believes and has reasonable grounds to believe that the holder is unfit to
retain it. But, that apart, no procedure is laid down by the Regulation for
securing that the licence holder is to have notice of the Controller's intention
to revoke the licence, or that there must be any inquiry, public or private,
before the Controller acts. The licence holder has no right to appeal to the
Controller or from the Controller. In brief, the power conferred upon the
Controller by Regulation 62 stands by itself upon the bare words of the
Regulation and, if the mere requirement that the Controller must have
reasonable grounds of belief is insufficient to oblige him to act
judicially, there is nothing else in the context or conditions of his jurisdiction
that suggests that he must regulate his action by analogy to judicial rules.

THE STATE GRAPHITE CORPORATION (STATE MINING AND MINERAL

DEVELOPMENT CORPORATION) v. K. S. D. P. FERNANDO AND ANOTHER 1981
2 SLR 401

Although the Court of Appeal is vested with power to admit fresh evidence
when hearing an appeal no similar power has been conferred on it when it
exercises its writ jurisdiction (Articles 139(2) and 140 of the Constitution).
The grant and issue of writs is governed by English law. English law does not
permit the reception of fresh evidence to show error on the face of the record
for the writ of certiorari. It is only to establish a jurisdictional defect that fresh
evidence may be permitted. The writ of certiorari being a discretionary
remedy will not be granted where the party applying lacks uberrima fides
(Most abundant good faith) and fails to disclose material facts. Nor will the
writ be granted where Rule 46 of the Supreme Court Rules 1978 in regard to
annexing of documents material to the case is not complied with, nor also
where there is delay for which there is no valid excuse.

We have it therefore on the highest authority that this Court exercise the
jurisdiction conferred upon it by Article 140 of Constitution of 1978 to grant
and issue these high prerogative writs in accordance with English Law. The
question of the admission of fresh evidence in certiorari proceedings must
therefore decided in accordance with English Law.

De Kretser J in the case of Wijesekera v. Assistant Government Agent, Matara

(44 NLR 553 )held that the words "according to law" appearing in Section 42
of the Courts Ordinance meant according to English Law.
As Pathirana J held in the case of Alphonso Appuhamy v. Hettiarachchi 77
NLR 131, if a party who moves for a prerogative writ fails to disclose material
evidence and so is wanting in uberrima fides, the Court will not grant him
relief.

B. SIRISENA COORAY v. TISSA DIAS BANDARANAYAKE AND TWO OTHERS

1999-1-Sri LR-001-SC

2. The writ jurisdiction of the Superior Courts is conferred by Article 140 of

the Constitution. It cannot be restricted by the provisions of ordinary
legislation contained in the ouster clauses enacted in sections 9 (2) and 18A
of the SPCI Law or section 22 of the Interpretation Ordinance. In fact the first
proviso to section 18A (2) specifically confers writ jurisdiction on the Supreme
Court. That jurisdiction is unfettered.

3. The recommendation or the decision of the Special Presidential

Commission has the effect of potentially jeopardising the rights of persons. As
such the Commissioner's report is amenable to judicial review.

The phrase "according to law" in Article 140 was also used in section 42 of
the Courts Ordinance and was judicially interpreted to SC B. Sirisena Cooray
v. Tissa Dias Bandaranayake and Two Others (Dheeraratne, J.) 15 mean that
writs should be issued in the circumstances known to English Law. See
Goonasinghe v. de Kretser(7) and K. Nakkuda Ali v. Jayaratne(8). We must
assume that the phrase was used in Article 140 in the same sense and that
proposition admits of no controversy. Before I part with this section of the
judgment let me make a brief reference to the scope of judicial review. The
grounds of judicial review were originally broadly classified as three-fold. The
first ground is "illegality"; the decision-maker must understand correctly the
law that regulates his decision-making power and must give effect to it. The
second is "irrationality" namely Wednesbury unreasonableness (Associated
Provincial Picture Houses Ltd. v. Wednesbury Corporation(9). The third is
"procedural impropriety". (Halsbury 4th bd., vol. 11 para 60). To these
grounds a fourth may be added "proportionality". See Lord Diplock in CCSU v.
Minister for the Civil Service(10) at 951.
Over the years frontiers of Lord Atkin's formula in Electricity Commissioners
case have been advanced by judicial decisions. It is no longer the duty to act
judicially or quasi-judicially which attracts review but the “duty to act fairly”.
See selvarajan v. Race Relations Board(18) R.v. Secretary of State for Home
Department, ex parte SC B. Sirisena Cooray v. Tissa Dias Bandaranayake
and Two Others (Dheeraratne, J.) 17 Hosenall(19) ; and Breen v.
Amalgamated Engineering Union and others(20).

It is sufficient if the recommendation or decision of the authority has the

effect of potentially jeopardising the rights of persons. The fact that the
recommendations are not self-executory or the fact that a discretion of some
other authority interposes between the recommendation and any actual
consequences to the persons affected, does not necessarily preclude judicial
review. It is the nature, functions and powers of the commission that would
determine whether the commissioners have a duty to act fairly.

Orders in the nature of writs

MARIE INDIRA FERNANDOPULLE AND ANOTHER v. E. L.

SENANAYAKE, MINISTER OF LANDS AND AGRICULTURE 79-2-
NLR-115

When Common Law rights are involved the Court always has
a right of review. Reg. v. Barnsley Council, Ex parte Hook,
(1976) 1 W.L.R. 1052. The Common Law right to possession
of one's own property is one of these. Reg. v. Agricultural
Land Tribunal, Ex parte Davis, (1953) 1 W.L.R. 722. This

writ of certiorari is not confined to judicial or quasi-judicial

acts. It extends even to administrative acts that affect the
rights of the subject.

JAYASENA v. PUNCHIAPPUHARNY AND ANOTHER 1980-2-Sri

LR-043-CA
Per TAMBIAH, J. " Recent decisions, in England and in this
country, have advanced the frontiers of natural justice. The
Writ of Certiorari is not confined to judicial or quasi-judicial
acts. It extends even to administrative acts that affect the
rights of subjects (per Samarakoon, C.J., in Pernandopulle v.
The Minister of Lands and Agriculture).