019-SLLR-SLLR-1982-1-Mohamed-Mohideen-Hassen-et-al-Vs.-N.-S.-Peiris-et-al.pdf
sc
Perera v. Forest Department .{Sharvunanda, .1.)
195
COURT OF APPEAL
Mohamed Mohideen Hassen et alVs.
N.S. Peiris et al
C.A. 124181 – Rent Board of Review No. 3.103 – Bandarawela RentBoard. No. 17-1980
Writ of Certiorari. Allegation of bias on the part of adjudicating body – Personalinterest
Petitioners were trustees of the Bandarawela Jumma Mosque. The 1stRespondent was the tenant of 6/2 Welimadit1 RtVadi-' Bandarawela. thesecond Respondent was the Chairman of the Rent Board. Bandarawelaand the other Respondents were members of the Rent Board.
The First Respondent applied by letter dated l'.‘/:A(Ho''the ’Rent Boardamong other things to have the authorized-rent''determined/'ThisRentBoard by its order dated 26.09.80 determined; Jhc rauthorized-,root, at Rs.12.50 per month while granting relief in respect of all. the other itemsapplied for.
Petitioner filed application for a Writ of Certiorari to have–'the-orderof the Rent Board quashed for the following reasons. 1 2 3 4
1.That the 2nd Respondent who was the’ Chairman of the‘Rent ’Boardwas personally interested in the. outcome of the application' as he wasin occupation of the adjoining premises viz.,6/1 Welimada -Road, alsobelonging to the Petitioners.
2.That the 2nd Respondent gave, preference to the hearing of theapplication of the 1st Respondent dated 1.9.80
3.That 2nd respondents and Others refused -to-issue notice' to theCommissioner of Wakfs as . a necessary! party' or. witness and madeno record of this application nor of its rejection.
4.Respondents did not give the Petitioner a fair and impartial hearing.
/96
Sri Lanka Law Reports
{1982J I S.L.R
Held: thill the evidence pertaining to the allegations considered as a wholewill lead to the probable conclusion that there was a real likelihood ofbias on the pari, of ihc Rent Board and therefore the order of the RentBoard should be quashed.
Application for a Writ of Certiorari
Before:
Counsel:
Argued on:Decided on:
H. dc Alwis. J. & Seneviratne, J.
Faiz Mustapha for Petitioners.Respondents absent and unrepresented.
25.11.1981
11.03.82
SENEVIRATNE. J.
Cur. adv. vult.
The petitioners in this Application are the trustees of the BandarawelaJumma Mosque appointed by the Wakfs Board under Section 14 ofthe Muslim Mosques and Charitable Trusts or Wakfs Act No. 51 of1956. The first respondent to this application is a tenant of premisesNo. 6/2. Welimada Road, Bandarawela. belonging to the JummaMosque. The second respondent was the Chairman of the Rent Boardof Bandarawela. The third to sixth respondents were the othermembers of the Board.
•
This is an application for a Mandate in the nature of a writ ofCertiorari to quash the decision and order of the Rent Board,Bandarawela dated 26th September, 1980, in application No. 17/1980,(P9).
There are several averments and grounds on which the petitionersbase this application for a Writ of Certiorari. I will refer only to theaverments that are relevant to the submissions made by the learnedCouncel for the petitioners, and for this decision. The petitionersserved a notice to quit the premises No. 6/2 on the first respondent.The date of the notice to quit is not given in the petition but thepetition referred to the reply (P4) of the first respondent dated 7thJuly, 1979, for the notice to quit; According to document P4 thedate of the notice to quit appears to be 12th June, 1979. The firstrespondent made an application dated 1.9.1980; (P6) to the RentBoard, Bandarawela, seeking the following relief – (a) A certificateof tenancy, (b) Determination of authorised rent (c) Reconnectionof the electricity and (d) Permission for the rent to be deposited inthe Urban Council. This application was heard by the Rent Board,
CA
Hassett v. Peiris (Senex’iratne. J.)
197
Bandarawela, on 25.09.1980 the proceedings of which >re markedP7 and it delivered its order on 26.09.80, a copy of which is markedP8. The Rent Board by this order marked P8 granted all the reliefprayed for by the first respondent in his application, namely (a) acertificate of tenancy, (b) a determination of authorised rent at Rs.’12/30 per month, (c) an order that the electricity connection berestored and (d) permission to deposit the rent in the Urban Council.
The petitioners have, in their application averred that the entireproceedings of the Rent Board are vitiated and nullified for the'following reasons:- (a) The second respondent who was the Chairmanof the Rent Board was personally interested in the outcome of theapplication as he too was in occupation of the premises adjoiningthe premises 6/2, to wit: 6/1, Welimada Road, Bandarawela, belongingto the Bandarawela Jumma Mosque. In proof of this averment the 1petitioners have marked in evidence a copy of a letter dated 14.11.1980written by the second respondent, an Attorney-at-Law to a client.This letter (P10) is written on a letter head of the second respondentwhich described him as an Attorney-at-Law and Notary Public andthe address given on the letter head is 6/1, Welimada Road.Bandarawela. (b) The petitioners further allege that the secondrespondent gave preference to the hearing of the application of thefirst respondent which is dated 1.9.80. The Board, by a notice dated5.9.80, fixed the inquiry for 25.9.80. on which day the proceedingswere recorded, and made its order on 26.09.80 – P7 & P8. (c) Thesecond to sixth respondents refused to issue a notice to theCommissioner of Wakfs as a necessary party or a witness althoughthe application was made to do so on 25.09.80. The second to sixthrespondents have not made a record of this application and alsomade no record of the rejection of this application, (d) The petitionersaver that as the Board did not give the petitioners a fair and impartialhearing and the quick disposal of the application clearly shows thatthe decision of the Board was hasty, biassed and pre-determined.On the above grounds the petitioners moved that the decision ofthe Rent Board dated 26.09.80 be quashed.
The reasons adduced by the Petitioners to obtain this Writ ofCertiorari show that an allegation of bias has been made against theRent Board of which the second respondent was the Chairman.According to English authorities “Bias” is a ground on which theproceedings of a judicial or quasi judicial body can be quashed. The
198
Sri Lanka Law Reports
f19821 1 S.L.R'
nature of the bias which the petitioner in an instance like this shouldprove on grounds of probability., is a,t“Reaj likelihood of bias orreasonable suspicion of bias.” A “reqlrlikelihood of bias” means atleast a substantial possibility of bias.” The Court, it has been said,will, judge of the matter “as a reasonable man would judge of anymatter in the conduct of his own business." The test of real likelihood
of bias is based on the reasonable apprehensions of a
reasonable man fully apprised of the facts However, the
pendulum has now swung towards a test of reasonable suspicion,founded on the apprehensions of a reasonable man who had takenreasonable steps to inform himself of the material facts. “Reasonablesuspicion” tests look mainly to outward appearances; “Real likelihood”tests focus on the court’s own evaluation of the probabilities; but inpractice the tests have much in common with, one another, and inthe vast majority of cases they will lead to the same result.” 0)
The case of Metropolitan Properties Co. (F.G.C.) Ltd. Vs. Lannon&, others <2) is a case in which the facts are very similar to theapplication before this Court, and. in which case the principles relevantto this application have been laid down. Metropolitan Properties Co.(F.G.C.) Ltd. was the. owner of., a. number of flats in OakVoodCourt, London. This company wanted the amount of rent for eachof the flats determined in terms, of the Rent Act of 1965. In termsof this Rent Act, the Rent Offjcer of the area determined the fairrent for these flats. As the renf determined by the Rent Officer ofthe area was considered to be ript..fair, this landlord company madean appeal to the Rent Assessment. Commjttee of the area constitutedunder this Rent Act .The.. Rent Assessment .Committee appointedhad, as its Chairman, the respondent to this case, Lannon, a Solicitor.The Rent Assessment Committee inquired into the determination ofthe fair .rent and fixed. the fair rent,. at a figure less than thatdetermined by the Kent Officer and also. less than that sug-gested as equitable by the tenants, . This landlord companyappealed on this decision under, section 9 of the Tribunals andInquiries Act of 1958. At the hearing of this appeal this landlordcompany also moved for a Writ of Certiorari to quash the assessmentmade by the Rent Assessment Committee of which Lannon was theChairman. The ground urged-for the writ was that the Chairman ofthe Rent Assessment Committee, Lanpon , who, wa$ a /solicitor wasliving with his father in a flat which .Vas in a group of iflat^ knownas Regency Lodge Flats in another registration area~otf London. The
CA
Hassen v. Peiris (Senevirame, J.)
199
group of Regency Lodge Flats was owned by a subsidiary of theMetropolitan Properties Co. (F.G.C) Ltd. (the appellant). Adetermination of the fair rent for the flats in the Oakwood Court,London, would have a bearing on the fair rent for the flats in theRegency Lodge registration area. It was also proved that this subsidiarycompany of the appellant who owned the Regency Flats as landlords,had a dispute with the tenants regarding the fair rent. .Lannon. theChairman of the Assessment Committee, who was living with hisfather, who was.a tenant of'a flat in Regency Flats, had been advisinghis father regarding the . fair rent for these flats and he had alsoadvised certain other tenants of the group of flats regarding the fairrent. The appellant-company alleged that Lannon, the Chairman ofthe Assessment Committee, was disqualified from hearing the caseas there were reasonable grounds for the landlord-company to believethat he could not give them an unbiassed hearing. No suggestion ofactual bias was made against the Chairman Lannon. Lord Denning,
M.R. who delivered the judgment., held .that “there was no actualbias on the part of Lannon and want of good faith but there wasalbeit unconscious, a real likelihood of bias." Lord Denning has thenproceeded to lay down the principles of law on which a Court shoulddetermine whether there was a likelihood of bias on the part of aCourt of Justice or an adjudicator. Lord Denning stated as follows:-“In considering whether there was a real likelihood of bias, theCourt does not look at the mind of the Justice himself or at themind of the chairman or the tribunal, or whoever it may be, whosits in a judicial capacity. It does not look to sec if there was alikelihood that he would, or did, in fact favour one side at theexpense of the other. The Court looks at the impression which wouldbe given to other people. Even if he was as impartial as could* be,nevertheless, if right-minded persons .would think, that, in thecircumstances, there was a real likelihood of bias on his part, thenhe should not sit. And if he does sit, his decision cannot stand
Nevertheless there must appear to be a real likelihood of
bias. Surmise or conjecture is not enough. There must be circumstancesfrom which a reasonable men would think it likely or probable thatthe justice, or chairman, as the case may be, would or did favourone side unfairly at the expense of the other. The Court will notinquire whether he did, in fact, favour one side unfairly. Suffice, isthat reasonable people might think he did. The reason is plainenough. Justice must be rooted in confidence: and confidence isdestroyed when right-minded people go away thinking: “The Judge
200
Sri Lanka Law Reports
[1982] 1 S.L.R
was biased.” Lord Denning held that the decision of the AssessmentCommittee was voidable and should be avoided. The appeal wasallowed and-the case was remitted to another Rent AssessmentCommittee.
The principle decided in the Metropolitan Property Company casehas been followed by the Supreme Court. In Re Ratnagopal (3) aone -man .Commission of Inquiry had been appointed under theCommission of Inquiry Act to inquire into any abuses which .hadoccurred in relation to tenders for government contracts. Ratnagopalwas summoned as a witness by the Commissioner. Witness Ratnagopalrefused to be sworn or affirmed and as such, was reported to theSupreme Court for contempt of the Commission in terms of theCommissioner of Inquiry Act. One of the defences taken by Ratnagopalwas an allegation of “bias” against the Commissioner. This was heardbefore a Bench of three Judges and the judgment of T.S. Fernando,J. dealt with the submissions regarding bias. T.S. Fernando, J. statedas follows: “The probable test to be applied is, in my opinion, anobjective one, and I would formulate it somewhat on the followinglines: would a reasonable-man in all the circumstances of the case,believe that there was a real likelihood of the Commissioner beingbiased against him?” T.S. Fernando, J., applying this test, held that“in this instance, the respondent Ratnagopal has failed to satisfy theCourt that there was a likelihood of bias on the part of theCommissioner.”
W.D.- Simon and three others (Appellants) and the Commissionerof. National Housing and three others „(Respondents) <4) was anApplication for a Mandate in the nature of a Writ of Certiorari toquash the proceedings and the order made by the second respondent,the Asst. Commissioner of National Housing, who held an inquiryunder section 5(2) of the Protection of Tenants (Special Provisions)Act No.; 28 of 1970. The petitioners filed an affidavit making allegationsof bias:and partiality against the second respondent and moved thatthe order be quashed on grounds that it was made contrary to theprinciples of natural justice. Wimalaratne, J. who delivered thejudgment applied the tests of “real likelihood of bias” and “reasonablesuspicion of bias" relying on the principles laid down in the MetropolitanCo. (F.G.C.) Ltd. case and the case of In Re Ratnagopal. Havingconsidered the facts of that case he held that “The proceedingsconsidered as a whole leave no room whatsoever for the view thatthere was a real likelihood of biasagainst the petitioners.”
Hassert v. Peiris (Seneviratrte, J.)
201
C.A
I will now consider the application before me on the basis of theprinciples of law applicable which 1 have set out above. The secondrespondent, was an Attorney-at-Law practising in the Bandarawelacourts. The premises which were the subject matter of the applicationbefore the Rent Board was premises No. 6/2. The petitioners haveadduced proof that the second respondent was a tenant of thisMosque in respect of the adjoining premises No. 6/1. There is nodoubt whatsoever that the determination of the rent for premisesNo. 6/2 by the Rent Board of which the second respondent was theChairman, would have a material bearing on any determination ofthe rent in respect of premises No. 6/1. The petitioners have furthermade the allegation that the Board refused an application to cite awitness without making any record of the same, and that the applicationof the 1st respondent was hastily disposed of. The second respondentparticularly and any other members of the Board have not filed anycounter affidavits denying these allegations. 1 am of the view thatthe evidence pertaining to the allegation, considered as a whole, willlead to the probable conclusion that there was real likelihood of biason the part of the Chairman of this Rent Board, i.e. the secondrespondent. As I have come to this conclusion I hold that the orderof the Rent Board which is the subject matter of this applicationshould be declared void and that the proceedings be quashed asapplied for. The application of the petitioners is allowed withoutcosts as there was no appearance for the respondents.
H.de Alwis, J.- I agree.
Application allowedReferences:
de Smith's Judicial Review of Administrative Action – 4th Ed. pages 262
and 263.
(1968) 3 Weekly Reports, 694.
(1968)70N.L.R. 409
(1972)75N.L.R. 471