CITY MOTOR TRANSIT CO., LTD., Petitioner, and C. WIJESINGHE (Minister of Nationa

028-NLR-NLR-V-63-CITY-MOTOR-TRANSIT-CO.-LTD.-Petitioner-and-C.-WIJESINGHE-Minister-of-Nationa.pdf


156
City Motor Transit Go. Ltd. v. Wijesinghe
Present: Tambiah J.
CITY MOTOR TRANSIT CO., LTD., Petitioner, and C. WIJESINGHE(Minister of Nationalised Services) and others, Respondents
S. C. 9—Application for a Writ in the nature of Mandamus under section
42 of the Courts Ordinance (Cap. 6)
Mandamus—Writ claimed against Minister of Crown—Liability of Minister to performa duly prescribed by statute—Letter to public officer requesting performance ofduty—Direct reply withheld— Inference of refusal to perform duty—MotorTransport Act, No. 48 of 1957, ss. 2, 6, 28 (2), 29 (2), 53, 55, 65—Award ofCompensation Tribunal—Duty of Minister to determine mode of payment.
The rule that a mandamus cannot lie against a servant or agent of the Crownis not applicable to a case where a duty has been directly imposed by statutefor the benefit of the subject upon a Crown servant or persona designata, andthe duty is to be wholly discharged by him in his own official capacity, asdistinct from his capacity as a mere agent for the Crown. In such a case a writof mandamus would lie at the instance of a person who has a direct andsubstantial interest in securing the performance of the duty.
By section 53 of the Motor Transport Act, No. 48 of 1957 r—
“ The mode of payment of compensation under this Act shall be determinedby the Minister in consultation with the Minister of Finance.”
Held, that section 53 imposes a duty on the Minister (of Nationalised Services),not as an agent of the Crown but as a person designated by office, to performa public duty for the benefit of persons to whom compensation has been awarded,and therefore a writ of mandamus would lie if the Minister refused to performthe duty.
“ It must be noted that there is no liability on the part of the Crown to paythe compensation. The liability is cast on an incorporated body, namely,the Ceylon Transport Board. Therefore, it cannot be said that in actingunder s. 53 the Minister acts purely as an agent of the Crown. He has astatutory duty to perform for the benefit of those to whom compensation hasalready been granted.”
Held further, that a public officer may legitimately be regarded as havingrefused to do his duty if he withholds a direct answer to a letter requestinghim to perform the duty.
Application for a writ of mandamus to compel the Minister ofNationalised Services to determine the mode of payment of compensationto the petitioner some of whose omnibuses were compulsorily acquiredand requisitioned by the Ceylon Transport Board under the MotorTransport Act, No. 48 of 1957.
H. V. Perera, Q.C., with E. R. S. R. Caomaraswamy, E. B. Yannitambyand H. Ismail, for the Petitioner.
TenneJcocm, Senior Crown Counsel, with H. L. de Silva, CrownCounsel, for the 1st and 6th Respondents.
S. Sharvananda, with M. T. M. Sivardeen, for the 3rd Respondent.
*'Cur. adv. vvXt.
TAMBIAH, J.—City Motor Transit Co., Ltd. v. Wijesinghe
167
March 10, 1961. Tambiah:, J.—
This is an application for a Writ of Mandamus to compel the Ministerof Nationalised Services to determine the mode of payment of compensa-tion under the Motor Transport Act, No. 48 of 1967, in consultation withthe Minister of Finance, in terms of section 53 of the Act.
Some buses owned by the Petitioner in 1957 were compulsorily acquiredand requisitioned by the Ceylon Transport Board under the above Act,which also set up a Compensation Tribunal.
By an award of the Compensation Tribunal, dated 2.4.59, the Petitionerwas awarded the sum of Rs. 47,736*17 as compensation payable by theCeylon Transport Board in respect of the acquisition of three buses.
On 25.11.59 the Petitioner by letter requested the Minister of Nationa-lised Services, the first Respondent, to make order determining the modeof payment, as required by section 53 of the Act. On 24.12.59 thePetitioner sent another letter to the Minister pointing out the long delayin the matter and warning him that unless a suitable reply was receivedhe would be compelled to move this Court by way of a Writ of Mandamuscompelling the Minister to perform the statutory duty cast by section53. The Acting Permanent Secretary to the Minister of NationalisedServices, at the first Respondent’s direction, replied to the Petitioner’sproctors by letter dated 30.12.59, in the following terms :—
Dear Sirs,
f< My No. A.52/34,Ministry of NationalisedServices and Shipping,Colombo,
December 30, 1959.Compensation
In reply to your letter of December 24, 1959, addressed to the Hon.Minister of Nationalised Services and Shipping I am directed to statethat a decision regarding the mode of payment of compensation mustawait the formation of the new Government after the General Election.
Yours faithfully,
SgdSelva,
Acting Permanent Secretary.
Messrs. Moonesinghe and Jayamaha,
Proctors and Notaries,
167, Mihindu Mawatha,
Colombo 2.”
The Petitioner filed this application on 13.1.60.
The main contention of learned Crown Counsel is that the duty caston the Minister by section 53 is not enforceable by a Writ of Mandamussince the act contemplated by that section is in the nature of a legislative
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TAMBIAH, J.—-City Motor Transit Co., Ltd. v. Wijesinghe
Act delegated by Parliament, in the performance of which the Ministeracts as an agent of the Crown. Mr. H. V. Perera submitted on behalf ofthe Petitioner that section 53 imposes a duty on the first Respondent forthe benefit of the Petitioner, and therefore the first Respondent couldbe compelled by a Writ of Mandamus to perform the statutory dutycast on him by section 53.
The question, how far servants of the Crown can be compelled to performa duty by Mandamus, is lucidly discussed in Queen v. The Secretary ofState for War 1. In this case Charles J. said at pp. 334-335 :
“ Now there are no doubt cases where servants of the Crown havebeen constituted by statute agents to do particular acts, and in thosecases a mandamus would lie against them as individuals designatedto do those acts. But it is also beyond question that a mandamuscannot be directed to the Crown or to any servant of the Crown simplyacting in his capacity of servant. * With reference to that jurisdiction ’says Cockbum, C.J., in Reg. v. Lords of the Treasury (Law Rep. 7 Q.B.387, at p. 394), * we must start with this unquestionable principle—thatwhen a duty has to be performed (if I may use that expression) by theCrown, this Court cannot claim even in appearance to have any powerto command the Crown. The thing is out of the question. In likemanner where the parties are acting as servants of the Crown and areamenable to the Crown, whose servants they are, they are not amenableto us in the exercise of our prerogative jurisdiction. ’
“ In the present case the Secretary of State is a servant of the Crown,and the duty we are asked to compel him to perform is not imposedby statute.”
Mandamus against the Secretary of State for War for compellinghim to carry out the terms of a royal warrant regulating the pay andretiring allowances of the officers and soldiers of the army was refused,since it was not a duty imposed on the Secretary of State either by statuteor common law.
Lord Esher, M.R., dismissing the appeal in the above case said at p. 338:
“ Assuming that the Crown were under any obligation to make thisallowance to the claimant, a mandamus would not lie againstthe Secretary of State, because his position is merely that of agentfor the Crown, and he is only liable to answer to the Crown whetherhe has obeyed the terms of his agency or not : he has no legal dutyas such agent towards any individual. ”
In The King v. The Lords Commissioners of His Majesty's Treasury *,a Writ in the nature of a mandamus issued against the Lords Commis-sioners of His Majesty’s Treasury compelling them to determine the modeof calculating the pension of police officers. As the case bears someanalogy to the instant case, the relevant terms of the English Act thatenforced the duty must be examined.
1 (1891) 2 Q. B. 326.
• (1909) 2 K. B. D. 183.
TAMBIAH, J.—City Motor Transit Co., Ltd. v. Wije&inghe
15$
By section 14 of the Police Act, 1890, “ where a person has servedin two or all of the following capacities:—(i) as a civil servant within themeaning of the Superannuation Act, 1887 ; (ii) in a police force with asalary paid out of money provided by Parliament ; he shall be entitled toreckon his entire period of service in both or all capacities for the purpose
of pensionProvided as follows …(2) The pension
shall be payable from money provided by Parliament and from the policepension fund in such proportions as the. Treasury may determine, regardbeing had to the period of service and the salary received in each capacity.”By section 33 : “ In this Act, unless the context otherwise requires …
the expression * police force ’ means a force maintained by one ofthe police authorities mentioned in the ” 3rd Schedule to the Act.
In delivering his judgment Lord Alverstone, C.J. said (1909, 2 K. B. D.at p. 189),“ The question which has arisen is whether the Treasury
can be called upon to determine what proportion of the total pension isto be paid from money provided by Parliament and from the policepension fund respectively, and the answer to that question depends upons. 14 of the Act. ”
The Police Act, 1890, sections 1 and 3 gave every constable in a policeforce a right to a pension upon his retirement after having completed aspecified number of years’ approved service. This had to be determinedin a particular way, asset out in section 4 (4) of the Act.The proviso (2)
to s. 14 has been set out above.
It was contended that the Writ did not lie against the Lords of theTreasury, in view of the rule that a mandamus cannot lie against theCrown or its servants. This contention was, however, rejected. Jelf. J.,said at p. 192, “ With regard to the question of mandamus I am entirelyof the same opinion as my Lord, that a mandamus will lie to directthis public authority to perform a statutory duty without which thestatute is meaningless and unworkable. ”
Crown Counsel cited Merricks v. Heathcoat-Amory and another1as authority for the proposition that when a Minister acts as an agent ofthe Crown, no mandamus lies against him. The Petitioner’s Counseldid not contest this broad proposition. In the above case, pursuant tothe powers conferred by the Agricultural Marketing Act, 1931, s.l., adraft scheme for the marketing of potatoes was approved by the Ministerof Agriculture and Fisheries in July, 1954. The Minister in accordancewith the provisions of section 1 (S) laid the draft scheme before eachHouse of the British Parliament for its approval. In an action againstthe Minister to restrain him from seeking approval of a scheme by eitherHouse of Parliament on the ground that it was in parts ultra vires, itwas held that in carrying out his function under the AgriculturalMarketing Act, s. 1, the Minister was acting as an officer representing theCrown, and by virtue of the provisions of the Crown Proceedings Act,
'(2955) 2 A. E. R. 453.
160
TAMBIAH, J.— City Motor Transit Co., Lid. v. Wijesinghe
1947, b. 21, the Court could not gran6^m Injunction against the Crown.
Upjohn, J. said in the course of his judgment, at pp. 456-467 :
** I have heard full arguments from counsel for the plaintiff and fromthe Attorney-General, and I think in those circumstances I can properlyexpress my own views as to the capacity in which the Minister acts incarrying out or proposing to carry out the relevant functions unders. 1 of the Agricultural Marketing Act, 1931. It seems to me clearthat in carrying out his functions under that section he is acting asrepresentative or as an officer of the Crown. He is the Minister ofAgriculture who is responsible for the conduct of agricultural mattersin this country. ftAs part of his general responsibility, he is the personwho would naturally be designated in the Agricultural Marketing Actas the person to carry out the functions, purposes and policy of thatAct. It was no doubt for that reason that it was the Minister who wasto approve any scheme under section 1 (1). It was his duty, not, asI venture to think, merely as a delegated person, but acting in hiscapacity as Minister of Agriculture, that he had to consider the scheme*that he had to hear objections and representations, and hold inquiries,and he had the power and duty of making such modifications as hethought fit. It was his duty in his capacity as Minister of Agricultureand not merely as a delegated person that, if he was satisfied—withthe satisfaction he felt in his capacity as Minister of Agriculture andan official of the Crown—that the scheme would conduce to the moreefficient production and marketing of the regulated product, to laybefore the Houses of Parliament a draft scheme, and so ultimatelyin the same capacity to make an order bringing the scheme into effect.It seems to me that from start to finish he was acting in his capacityas an officer representing the Crown. That being so, it is concededthat no injunction can be obtained against him, and therefore themotion fails in limine. ”
“ I am not at all satisfied that it is possible to have the threecapacities which were suggested. Of course there can be an official re-presenting the Crown and that is plainly this case. But if he were not,it was said that he was a person designated in an official capacity butnot representing the Crown. The third alternative was that hiscapacity was purely that of an individual. I understand the concep-tion of the first and third categories, but I confess I find it difficultto see how the second category can fit into any ordinary scheme.It is possible that there may be special Acts where named personshave special duties to perform which would not be duties normallyfulfilled by them in their official capacity ; but in the ordinary casewhere the relevant or appropriate Minister is directed to carry out thefunction or policy or some Act, it seems to me that he is either actingin his capacity as Minister of the Crown representing the Crown, or heis acting in his personal capacity, usually the former. ”
TAMBIAH, J.—-City Motor Transit Co., Ltd. v. Wijosinghe
<■ 161
Crown Counsel also relied on the ruling of this Court in Munaairihav. Devarajan 1. In this case it was held that the Writ of Mandamusdid not lie against the Assistant Government Agent to pay a particularperson a sum of money awarded as compensation for land acquired underthe Land Acquisition Act. Sansoni, J. in the course of his judgmentsaid at p. 287:
“ It seems to me that this application must fail for the reason thatthe Writ of Mandamus does not lie against the Crown nor against theservant of the Crown where the duty sought to be enforced is not onewhich is imposed on the servant himself but is imposed on him onlyin the capacity of agent for the Crown. The principle on which therule is based is stated in 9 Hailsham p. 761 :—* No court can compelthe Sovereign to perform any duty, no Writ will lie to the Crown.Where it is sought to establish a right against the Crown the appro-priate procedure is by a petition of right. Nor will a Writ lie againsta Secretary of State in his capacity as agent of the Crown ; for in thatcapacity he is responsible to the Crown alone, and is under no legalduty towards the subject. * The same rule applies as regards otherpersons acting as servants of the crown. ”
Since the duty of paying this money is in the Crown the AssistantGovernment Agent was merely acting as an agent of the Crown and there-fore it was rightly held that the writ did not lie.
Dr. De Smith in his book, “ Judicial Review of Administrative Action ”(Steven and Sons) states as follows at p. 445 :—
“ In other cases also applications for mandamus against Crownservants to compel the payment of moneys by the Crown or of moneysthat were in the hands of the Crown have been refused. Where,however, a duty has been directly imposed by statute for the benefitof the subject upon a Crown servant or persona designata, and theduty is to be wholly discharged by him in his own official capacity, asdistinct from his capacity as an adviser to or instrument of the Crownthe Courts have shown readiness to grant applications for mandamusby persons who have a direct and substantial interest in securing theperformance of the duty. 55
The relevant provisions of the Motor Transport Act may now beexamined. The Ceylon Transport Board is incorporated by section 2of the Act. It is given the power to acquire and hold both movable andimmovable property for the purposes set out in section 6 of the Act.The Act gives the Board the right to borrow money, with the consent ofthe Minister of Nationalised Services given with the concurrence ofthe Minister of Finance, for the purposes set out. in s. 2S (2). Underthis provision the Board has the right to borrow money in order to makepayment of any compensation payable under the Act. The Ministerof Finance has to guarantee the repayment of the principal and the pay-ment of interest on any Ceylon transport stock created and issued under
1 {1955) 57 N. L. R. 286.
162
TAMBIATT, J.—City Motor Transit Co., Ltd. v. Wijesinghs
s. 29 (1) (6), and also may with the concurrence of the Minister of Nationa-lised Services guarantee the payment of interest on any Ceylon transportstock created and issued under section 29 (1) (a). Where property hasbeen acquired by the Board, compensation becomes payable to theowners of such property. For the purpose of assessing the compensation,a tribunal designated as the Compensation Tribunal is set out unders. 55 of the Act. The Tribunal is given the power to consider allreferences for award as to compensation. It is also empowered to hearevidence and to award such compensation as it may think fit (s.65). Inthe instant case, as stated earlier, the Tribunal has already awarded thesum of Its. 47,736*17, to be paid to the Petitioner. S. 53 states asfollows :—
“ The mode of payment of compensation under this Act shall bedetermined by the Minister in consultation with the Minister of Finance.”The Minister referred to is, of course, that of Nationalised Services. Ifthe question is posed as to whether the section imposes a duty on a publicofficer for the benefit of an individual, the answer is irresistible. ThePetitioner is given the right to get compensation. It does impose aduty on the Minister of Nationalised Services to do an act in consultationwith the Minister of Finance for the benefit of those to whom compensa-tion has been granted. The persons to whom compensation has beengranted obtain satisfaction only after compensation is actually paid,and this cannot be done unless and until the mode of payment of thecompensation is determined by the Minister. It must be noted thatthere is no liability on the part of the Crown to pay the compensation.The liability is cast on an incorporated body, namely, the Ceylon Trans-port Board. Therefore, it cannot be said that in acting under s. 53the Minister acts purely as an agent of the Crown. He has a statutoryduty to perform for the benefit of those to whom compensation hasalready been granted. It seems to me to be a monstrous propositionto state that the Legislature, after having stated that compensation ispayable to persons whose property has been taken over by the Boardand having set up a tribunal to award the compensation, did not bys. 53 impose a duty on the Minister to do an act for the benefit of thosepersons to whom compensation has been granted.
It was argued by Crown Counsel that s. 53, read along with some ofthe earlier sections that have been referred to, confers a legislativepower on the Minister, and that the Minister while acting under theseprovisions was doing so purely as an agent of the Crown. I am unableto accept this argument. If it is upheld, the working of the Actwould be rendered nugatory, and the statutory provisions wherebycompensation became ultimately payable to persons whose propertyhas been acquired would be utterly futile.
In the affidavit filed by the Minister of Nationalised Services, hestates that large sums of money become payable by the State, and thatas Parliament had not met, the Minister of Finance was unable to obtain
TAMBIAU, J.—City Motor Transit Co., Ltd. v. Wijeainghe
163
funds. It seems to me that by a Writ of mandamus the Crown itselfcannot be ordered to pay any money. As stated earlier the liabilityto pay the money is cast on the Board and not on the Crown as such.
In my view s. 53 imposes a duty on the Minister, not as an agentof the Crown but as a person designated by office, to perform a publicduty for the benefit of persons to whom compensation has been awarded,and therefore a Writ of mandamus lies if the Minister refuses to performthe duty.
At the end of the argument Crown Counsel stated that there had beenno refusal on the part of the Minister to perform the duty under s. 53.Although the Minister in his affidavit formally denies that he refusedto perform the duty, the correspondence between the Petitioner and theMinister, taken with the latter’s subsequent conduct, leaves no doubtin my mind that there was a request by the Petitioner to the Ministerto perform the duty and there had been what amounts to a refusalby the Minister. Lord Denman C. J. said :—It is not indeed necessarythat the word ' refuse * or any equivalent to it, should be used; but thereshould be enough to show that the party withholds compliance, and dis-tinctly determines not to do what is required. ” The King v. Brennockand Abergavenny Canal Navigationx. In interpreting this passage,Gratiaen, J., said as follow in Wijeyesekera & Co. v. The PrincipalCollector of Customs, Colombo 2:—
“ Lord Denman there pointed out that if, in effect, a party said to apublic officer, ‘ I desire a direct answer, and your not giving it will beconsidered a refusal ’, the public officer may legitimately be regardedas having refused to do his duty if he withholds a direct answer to thequestion. ”
For these reasons I direct the Minister of Nationalised Services toact under s. 53 of the Motor Transport Act and to determine the modeof payment of compensation in consultation with the Minister of Finance.
It may be that the Minister of Nationalised Services has difficulties inacting under s. 53, but so long as he performs his part of the obligationhe cannot be said to be in default.
The Ceylon Transport Board and the Minister of Finance have beenmade parties to this application, but no relief has been prayed for againstthem. Counsel appearing on behalf of the Board asked for costs. Asthe Board has had to incur the expenses of retaining counsel, I orderthe Petitioner to pay a sum of Rs. 105 as costs to the Board. ThePetitioner is entitled to a sum of Us. 105 as costs from the firstRespondent.
Application allowed.
* 3 Ad. and El. 217 (111 E.R. 295).
{1951) 53 N. L. R 329 at 333; 45 C. L. W. SI at p. 84.