066-NLR-NLR-V-71-THE-ATTORNEY-GENERAL-Petitioner-and-D.-S.-JAYASINGHE-Respondent.pdf
Attorney-General v. Jayasinghe
28b
1938Present: do Kretselr, J.
THE ATTORNEY-GENERAL, Petitioner, and D. S. JAYASINGHE,
Respondent
8 C. 56/68—Application in Revision in M- C. Narahenpita, 84362
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Heavy Oil Motor Vehicles Taxation Ordinance (Cap. 249), as amended by Act No. 37of 1964—Section 4 (iy—Issue of certificate thereunder for recovery of unpaidtax—Magistrate's order thereafter—Power of Supreme Court to examine itslegality in revision—Criminal Procedure Code, es. 312 (2), 347, 366, 357—Courts Ordinance, e. 37.
Although the Magistrate's Court is merely a collecting agency when theMagistrate makes an order in terms of seotion 4 (1) of the Heavy Oil MotorVehicles Taxation Ordinance for the recovery of unpaid tax, the Supreme. Courthas revisionary power in such a case, by virtue of sections 347,- 356 and 357 ofthe Criminal Procedure Code read with seotion 37 of the Courts Ordinance, tosatisfy itself as to the legality or propriety of the order made by the Magistrate.
28B ,DE KRETSER, J.—Attomey-Ocnerai v. Jaycuinghe
APPLICATION to revise an order of the Magistrate’s Court,Narahenpita.
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v
Noel Tittawella, Crown Counsel, for the Attorney-General.
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H. ]V. Jayeivardene, Q.C., with S. 8. Basnayake, for the Respondent.
Cur. adv. vuli.
September 24, 1968. ue Kretser, J.—‘
The facts relevant to this order are as follows :—
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The Government Agent of Colombo District for the purpose of recover-ing tax due on Vehicle No. 22 Sri 5155 issued to the Magistrate of theTraffic Court, Narahenpita, a certificate under Sect ion 4 (1) of the HeavyOil Motor Vehicles Taxation Ordinance. The: Magistrate (Mr. Wickrema-sekera) issued notice, and on 19.11.67 heard the submissions made byAdvocate S. Basnayake on behalf of Don Simon Jayasinghe the partynoticed, and the submissions made by Mr. Tittawella, Crown Counselwho appeared as Amicus Curiae. On 10.12.67 the Magistrate made hisorder discharging the party noticed, holding that the certificate issuedby the Government Agent was not in conformity with the provisions ofSection 4 (1) of the Ordinance. The Attorney-General has moved thisCourt to act in revision and set aside the order made by the Magistrateand to' order the Magistrate to recover the sum stated in the certificateas though it was a fine imposed by the Magistrate.
Mr. H. W. Jayewardene, Q.C«, has submitted that :
(а)Inasmuch as the Crown concedes that the Magistrate acting interms of Section 4 of the Heavy Oil Motor Vehicles TaxationOrdinance acts in an executive capacity when he makes his order,the remedy by way of an appeal or an application in revision to theSupreme Court is not available to the party aggrieved by suchorder.
(б)That the order made by the Magistrate is in any event one he wasentitled to make and is a correct order.
It appears to me that in this submission there is some confusion betweenthe nature of the function the Magistrate performs when he makes anorder in terms of the special jurisdiction conferred on him by Section 4of Cap. 249 as amended by Act 37 of 64, and the capacity in which hemakes it.
When the Government Agent in terms of Section 4 (1) of Cap. 249forwards a certificate and statement to the Magistrate, the law as set out inSection 4 (1) says “ the Magistrate shall, upo^n receipt of such certificateand statement, forthwith direct the amount to be recovered as though it
DE KJRETSER, J.—Attorney-General v. Jayasinghe
28T
were a fine ” i.e., the Magistrate has to order, as provided for by Section312 (2) of the Criminal Procedure Code, “ that a warrant should issue forthe amount (stated as due in the certificate) By distress and sale of anymovable property ” belonging to the defaulter, for the issue of a distresswarrant is the means provided for recovery of fines imposed by aMagistrate. Now what is the nature of the function the Magistrate isperforming, when he makes the order that distress warrant should issue?It is clear that as required by law he is collecting the money due on thecertificate by using the machinery of the law normally used for therecovery of fines imposed by him, and as such I agree with Sir. JusticeTambiah who- said that the Magistrate’s Court is merely a collectingagency when the Magistrate makes an order in terms of tliis section,vide AbdulaUy v. A. 0. A., JaffnaK But the fact remains thatthe order that results in that happening is the order of a Magistrate evenif ii; does not involve the use of any judicial discretion; and it appears ton.o that;the terms of Sections 347, 356, 357 of the Criminal ProcedureCode read with Section 37 of the Courts Ordinance apply to such an order,and it is subject to revision by the Supreme Court which has the right tosatisfy itself as to the legality or propriety of any order made by a Magis-trate arid the proceedings in his court. Quite apart from the instantrase, 4ie reported cases show that there is the need for the Supreme Courtto satisfy itself as to the. legality of orders made by the Magistratepurporting to act in terms of this section, vide the case of Nilandeenv.
A., Malar a 2 where the Magistrate actinjg in terms of section 4 (1)thought he had the right to impose a term of imprisonment in defaultof the payment of the certified amount.
Mr. Jayewardoue submits, and I entirely agree, that the Magistrate
itic.ro tnolu has the right and should examine the certificate: sent Kim by* ho G. A., to satisfy himself that it is a certificate that complies with therequirements of such a certificate before he makes his order on it. In thehiRv."ut ease if the Magistrate' had done that and had come to the con-clusion that he eventually sets out in the order he has made in this case,namely that, the certificate was not in conformity with the provisions of•Section 4 (1) in that it did not state that Don Simon Jayasinghe was ther egistered owner of Vehicle 22 Sri 5165, he could have returned the certi-ficate to the G. A. for necessary amendment and then would probably havefound that the error was his in that he had lost sight of the fact that Cap.249 had been amended and as amended by Act 37 of 64 provided for theissue of a certificate in respect of a defaulter who could be quite distinctfrom the registered owner of the vehicle at the time.the order was sought.But the Magistrate in the instant ease came to that conclusion afterissuing a notice (or if the certified journal is correct a summons) on theparty named in the certificate as a defaulter and 'after hearing thesubmissions made on his behalf by Mr. Basnayake and of an AmicusCuriae in Mr. Crown Counsel TittaweDa and reserving his order. In theorder he did not deal with any of the submissions made but came to theconclusion that the certificate was bad in law which was not thesubmission of either Mr. Basnayake or Mr. Tittawella.
1 (1964) 68 If. L. B. 168.* (1966) 68 N. L. R. 18S.
288
DE KRETSER. J.—Attorney-General v. Jayannghe
He discharged the party noticed.
There is no provision ufider the section to summon or notice the partynamed in the certificate any more than there should be a charge sheetwhich was the contention in Abdulally v. A. G. A., Jaffna1.Section 4 (1) of Cap. 249 clearly and imperatively sets out all that aMagistrate lias to do when he receives the G. A’s certificate, and asTambic.li J. pointed out, it is a well known canon of construction thatthe court ; 1 < ulcl only interpret the law and not introduce words into astatute where the words are clear. Nowhere in this ordinance is it saidthat a Magistrate should issue a notice or a summons on a defaulter beforehe issues the distress warrant. The rules of natural justice are notviolated for the notice required by Section 4 (2) of Cap. 249 gives theperson against whom the order of the Magistrate is sought ample oppor-tunity of satisfying the G. A. that no tax is due from him, if that is indeedthe true position, before the G. A. issues his certificate, and of course thereis really nothing? to prevent a person whose goods are seized on a distresswarrant issued by the Magistrate showing even at that point of timecause to the Magistrate why they should not be sold, if in fact there issome cause- which for some reason he has failed to bring to the notice ofthe G. A.'
1! it aside the order mode by the Magistrate and direct him to issue adistress warrant in terms of Section 312 (2) of the Criminal ProcedureCode for the recovery of the sum of Rs. 8,040 from Don Simon
Jayasinghe.
1 106J-) 68 N. L. E. 168.
Order set aside.