-RAJAKARUNA v. R. J. DE MEL, MINISTER OF FINANCE AND OTHERS

030-SLLR-SLLR-1985-V1-RAJAKARUNA-v.-R.-J.-DE-MEL-MINISTER-OF-FINANCE-AND-OTHERS.pdf


rajakariJna
V.
R. J. t)E MEL, MINISTER OF FINANCE AND OTHERS
COURT OF APPEAL.
G. P. S. DE SILVA, J. AND JAYALATH, J.
C. A. APPLICATION No. 2045/80.
FEBRUARY 11,1985.
Writ of Certiorari – Determination ro acquire and vesting order under's. 72 of FinanceAct No. 11 of 1963 as amended by Law No. 16 of 1973 – S 71 of FinanceAct – Statutory income – Delay.
Under s. 71 (2) (c) of the Finance Act No. 11 of 1963 as amended by Law No. 16 of1973 the People's Bank can make a determination to acquire land only if the Bank issatisfied that the statutory income under the written law relating to income tax of the
applicant and of the other members of the famify of which he is the head does notexceed Rs. 10,000 for the three years immediately preceding the date of theapplication. The second respondent-bank acted on the document issued by an assessorof the Department of Inland Revenue wherein the assessable income and taxableincome of the 3rd respondent for the years of assessment 1975/76, 1974/75 and1973/74 were less than Rs. 10.000
Held –
'Statutory income' is a concept which is different from assessable income' andtaxable income1. The 2nd respondent-bank failed to consider the relevant matter,namely, the statutory income which the statute directed it to take into account.Therefore the determination is a nullity. The error goes to the jurisdiction of the tribunal(Bank).
The date‘Of communication of the determination is not available but the vestingorder was published in the Gazette of 11.7.79. The application to Court was made on29.9.1980. Delay will not result in the automatic refusal of certiorari. The orders herewere manifestly erroneous and without jurisdiction. The plea of delay was not taken inthe objections filed and no material showing prejudice has been placed before Court.There is nothing to show that it would be inequitable to issue a writ of certiorari. Hencethe objection of delay is not entitled to succeed.
Cases referred to:
President of Malalgodapitiya Co-operative Society v. Arbitrator of Co-operativeSocieties. Galle(l949) 51 NLR 167.
Dissartayake v. Fernando {1968) 71 NLR 356.
Gunasekerav. Weerakoon (1970) 73 NLR 262.
Ramasamy v. The Ceylon State Mortgage Bank (1976) 78 NLR 510.
(5| Lindsay Petroleum Company v. Hurd (1974) L.R.P.C. 221. 229
(6) Biso Menike v. de Alwis and Others S.C. 59/81 – C. A. Apptn. 1123/8 – S.C.Minutes of 12 th May 1982.
APPLICATION for a Wlit of CertiorariBen EKyathamby for petitioner.
*Dougtas Premafatne, Deputy Solicitor-General for tst respondent.
Dr. J. A. L. Cooray with M. B. Peramuna for 2nd respondent.
A. A. de Silva with Latin de Silva, for 3rd respondent.
Cur. adv. vult.
April 3. 1985-•
G. P. S. DE SILVA, J.
•This is an Application for a Writ of Certiorari to quash a vesting Ordermade by the 1st respondent (Minister of Finance) under the provisionsof section 72 of the Finance Act No. 11 of 1963 as amended. Thefather of the 3rd respondent, one Arnolis Appuhamy. transferred to
the petitioner the paddy field described in the Schedule to the petitionsubject to the condition that the petitioner would re-transfer the fieldto Arnohs Appuhamy on payment of a specified amount within aperiod of 10 years. Arnolis Appuhamy was unableito purchase thefield within the period of 10 years and died in or about 1972 leavingthe 3rd respondent as his sole heir. Thereafter the 3rd respondentmade an application to the 2nd respondent (The People's Bank) interms of section 71 of the said Finance Act as amended by LawNo. 16 of 1973 for the acquisition of the field. Admittedly, an inquirywas held by the 2nd respondent in respect of the application made bythe 3rd respondent,
At that inquiry, both the petitioner and the 3rd respondent werepresent. The petitioner was represented by counsel. The notes ofinquiry have been produced marked "A". One of the objections to theacquisition taken on behalf of the petitioner at the inquiry was that the3rd respondent's 'statutory income’ exceeded Rs. 10,000. Thisobjection was disposed of by the officer of the 2nd respondent-bankwho conducted the inquiry by stating that, "according to a certificatefiled by the Inland Revenue Department submitted by the applicant heraverage statutory income does not exceed Rs. 10,000". Theobjections having been overruled, the 2nd respondent-bank made a'determination' on a 25.3.77 to 'acquire' the field and notified the 1strespondent of its 'determination'. Thereupon the 1st respondentmade the 'vesting order' which was published in the gazette on11.7.79.
Counsel for the petitioner attacked the 'determination' made by the
2nd respondent-bank on the ground that a condition precedent to the
making of the 'determination', namely the requirement stipulated in
section 71 (2) (c) of the Finance Act No. 11 of 1963 as amended by
Law No. 16 of 1973, has not been satisfied. This section reads thus :
T »
"No premises shall be acquired under sub-section (1) unless theBank is satisfied that the average statutory income of the personmaking the application and of the other members of the family ®fwhich he is the head, computed under the provisions of the written-law relating to the imposition of income tax, for the three years ofassessment immediately preceding the date on which suchapplication was made by him, does not exceed a sum of.tenthousand rupees".
At the hearing before us, the document upon which the 2ndrespondent-bank was 'satisfied' that the applicant s statutory incomedid not exceed a sum of ten thousand was produced. This was adocument dated 21.12.77 issued by the Assessor of the Departmentof Inland Revenue, Regional Office, Kurunegala. This document setsout the 'assessable income' and the 'taxable income' of the 3rdrespondent for the years of assessment 1975/76. 74/75 and 73/74.There is not one word in that document to indicate what the 'statutoryincome' of the 3rd respondent was for the relevant years ofassessment. 'Statutory income' is a concept which is different from'assessable income' and 'taxable income' in terms of the scheme ofthe Inland Revenue Ait No. 4 of 1963 as amended. Chapter III of thatAct deals with the ascertainment of statutory income while Chapter IVis concerned with the ascertainment of assessable income' and'taxable income’. Having regard to this document, both Dr. Cooray,counsel for the 2nd respondent-bank and Mr Premaratne, DeputySolicitor-General, counsel for the 1st respondent, very properlyconceded that the- 2nd respondent-bank had, while taking intoaccount an irrelevant matter', namely the assessable income' or the‘taxable income' had failed altogether to consider the relevant matter,namely ’the statutory income’ of the 3rd respondent. In other words,the 2nd respondent-bank had failed to consider a matter which thestatute itself directed it to take into account and the result is that thepurported determination of the 2nd respondent-bank is a nullity. Thereis little doubt that the error is one which goes to the jurisdiction of thetribunal (Bank).
However, both Dr. Cooray ancl Mr. Premaratne strongly urged thattffe Writ of Certiorari being a discretionary remedy, should not issue inthe circumstances of this case, since the petitioner was guilty, ofundue delay in making his application to this court. The determinationof the 2nd respondent-bank was made in March 1977 while theapplication to this court was filed in September 1980 It wassubmitted that there was a delay of 3 1/2 years which the petitiqnerhas not explained in the papers filed before us. Dr. Cooray cited thecases of President of Matalgodapitiya Co-operative Society v.Arbitrator of Co-operative Societies, Galle (1), Dissanayake v. .Fernando. (2) and Gunasekera v. Weerakoon. (3) in support of hisargument on the question of undue delay. It is correct that the periodof delay in the above cases was less than in the present case
However, it is very relevant to note that none of the respondents haspleaded delay in the papers filed before us as a ground for the refusalof the writ. Moreover, in none of the cases relied on by Dr. Cooray hasthe court given its mind to the question whether delay per se is a validground for the refusal of the writ where the purported decision is anullity, nor has the court considered the true basis of the principle oflaches. The relevant aspects 'were discussed at length byWanasundera, J. in Ramasamy v. The Ceylon State Mortgage Bank,
. The learned Judge observed "the principles of laches have notbeen applied' automatically or arbitrarily or in a technical manner byCourts of Equity themselves (at page 514). The argument
that there should be certainty about official acts is a statement that acourt readily understands, but such a principle cannot be appliedindiscriminately, but should be done carefully and only in appropriatecases. The acts involved here do not have that public charactergenerally associated with official acts. The present transaction relatesto the redemption of a land for the benefit of an individual, namely theoriginal mortgagor. Finally, it is my view that where we'are dealing witha matter concerning the extent of the powers and jurisdiction, which isreposed in us to be exercised for the public good, we' should hesitateto fetter ourselves with arbitrary rules, unless such a course of actionis absolutely necessary. The principles of laches must, in my view, beapplied carefully and discriminatingly and not automatically and as amere mechanical device (page 517)". One relevant circumstancewould be "the nature of the acts done during the interval which mightaffect either party and cause a balance of justice or injustice in takingthe one course or the other so far as«relates to the remedy"- videLindsay Petroleum Company v. Hurd, (5) cited by Wanasundera, J. Inthe instant case no material was placed before us. nor was anysubmission made to indicate that the land which is the subject matterof these proceedings has undergone a change since March 1977which might make it inequitable to make an order in favour of thepetitioner.
Sharvananda, J. had occasion to consider the principle of laches inBiso Menike v. de Alwis arid Others. (6). In the course of his judgmentthe learned Judge stated .
“When the court has examined the record and is satisfied that theorder complained of is manifestly erroneous or without jurisdiction thecourt would be loathe to allow the mischief of the Order to continueand reject the application simply on the ground of delay, unless there
are very extraordinary reasons to justify such rejectionUnlike
in English law, in our law there is no statutory time limit within which apetition for the issue of a writ must be filed. But a rule of practice hasgrown which insists upon such petition being made without unduedelay. When no time limit is specified for seeking such remedy, thecourt has ample power to condone delays, where denial of writ to thepetitioner is likely to cause great injustice".
In support of this view, Sharvananda, J. cites the following passagefrom de. Smith. Judicial Review, 4th Edition, page 426, “Recentpractice clearly indicates that where the proceedings were a nullity anaward of Certiorari Mil not readily be denied".
In the present case there is no material to show when thedetermination ' of the 2nd respondent-bank was communicated to■ the petitioner. The ’Vesting Order" however was published in thegazette on 11.7.79. The application to this court was made on 29thSeptember 1980. As stated earlier, none of the respondents hastaken up the plea of undue delay in their objections. No material hasbeen placed before us to show that the respondents have beenprejudiced by the delay of the petitioner in coming into court. There isnothing to indicate that the respondents have taken any stepsconsequent upon "the determination" made by the 2ndrespondent-bank and the "Vesting Order" made by the 1 st respondent.In short; there is no material to show that the issue of the Writ ofCertiorari would be inequitable in view of the delay now complained of.
I accordingly hold.that the objection based on "delay" is not entitled tosucceed in the facts and circumstances of this case.
The "Vesting Order" made by the 1 st respondent is based on thedetermination" of the 2nd respondent-bank. Since the purporteddetermination" made on 25.3.77 is a nullity it follows that theVesting Order' too is destitute of any legal effect. In the result, I directthe issue of a writ of Certiorari quashing the aforesaid 'determination'of the 2nd respondent-bank and the Vesting Order' published in‘gazette No. 44/11 dated 11.7 79. In all the circumstances, I make noorder as to costs
jAYALATH, J – I agree.
Writ of Certiorari issued quashing determination and vesting order.