LIYANAGE AND OTHERS v. GAMPAHA URBAN COUNCIL AND OTHERS

001-SLLR-SLLR-1991-V-1-LIYANAGE-AND-OTHERS-v.-GAMPAHA-URBAN-COUNCIL-AND-OTHERS.pdf


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Liyanage v. Gampaha Urban Council and Others (S.N. Silva, J.)
1
LIYANAGE AND OTHERSV
GAMPAHA URBAN COUNCIL AND OTHERS
COURT OF APPEAL,
WIJETUNGA, J. ANDS.N. SILVA, J.
C.A. APPLICATION NO. 85/90MARCH 26, 27 AND 30, 1990.
Interpretation of statutes • Urban Councils Ordinance ,Ss 36, 129, 130, 249 – Certiorari- Prohibition – Right to establish fair and market on a thoroughfare ■ Ultra vires – Constructionof statutes conferring power.
The petitioners are traders in groceries, textiles, sundry goods, pharmaceuticals andhardware on Market Street, Gampaha. Market Street is a thoroughfare 30 feet broad.The Urban Council, Gampaha decided to run a weekly fair on this street and to this enddrew up squares on a 16 foot breadth along the full length of this street for allocationto vendors. Later the width was reduced to 7 1/2 feet. The petitioners who were adverselyaffected sought writs of certiorari and prohibition against the Urban Council claiming thatneither the Urban Councils Ordinance nor any other statute empowered the Urban Councilto organize a fair or market on a thoroughfare.
Held:
In construing instruments that confer power what is not permitted should be takends forbidden. This strict doctrine of ultra vires ought to be reasonably and not unreasonablyunderstood and applied. Whatever may fairly be regarded as incidental to or consequentialupon those things which the Legislature has authorised ought not (unless expresslyprohibited) to be held by judicial construction, to be ultra vires. Acts of statutory authoritiesthat go beyond the strict letter of this enabling provision can reasonably be consideredas being incidental to or consequential upon that which is permitted, been done with aview to promoting the general legislative purpose in the conferment of power to suchauthorities. This is in keeping with the purposive approach to statutory interpretation.Anything that is contrary to or inconsistant with such general legislative purpose shouldnot be held as valid by courts in an exercise of statutory interpretation.
An authority (Corporation) established by statute such as an Urban Council has,in law, a status, objects, powers, functions and duties, only as provided in the constituentstatute or in any other statute. Such a statutory authority has no common law powersat all. Public roads are vested in the Urban Council so that it will exercise, perform anddischarge such powers, functions and duties, as are specified in the Urban CouncilsOrdinance or in any other statute in relation to such roads and no more. Anything purportedto be done, by the Council, in excess of what is permitted by the statutory provisionswill be ultra vires with the saving that what is incidental to or consequent upon the expressstatutory provisions will not be ultra vires.
The Council by establishing a weekly fair on Market Street, was causing an obstructionor encroachment on a thoroughfare. The duty to establish markets, is distinct and differentfrom the duty to maintain the thoroughfares free and unimpeded. A council cannot dischargeone duty in such a way as to cut across another duty.
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Certiorari issues to quash a decision which is ultra vires or vitiated by error, on theface of the record. Prohibition issues to forbid some act or decision which would be ultravires. Certiorari looks to the past, prohibition to the future. These are remedies in publiclaw and comparable respectively to declaration and injunction which are remedies in privatelaw. The availability of private law remedies can never preclude recourse to the publiclaw remedies. Certiorari and prohibition are available against a local authority in respectof administrative action.
The vendors concerned who were given tickets to trade on the squares marked onMarket Street, are not necessary parties. They are an unidentifiable group and have beenillegally put there.
Cases referred to:
Ashbury Flailway Carriage and Iron Co. Ltd. VHectorRiche (1875) of the Law Reports
653.v
Attorney-General V the Great Eastern Railway Co. (1880) 5 Appeal Cases 473.
R.V. Greater London Council, ex parte Blackburn (1976) 3 All ER 184.
R. V. Liverpool Corporation ex parte Liverpool Taxi Fleet Operation Association 1972QBD 299.
APPLICATION for writs of certiorari and prohibition
P.A.D. Samarasekera P.C. with Jayantha de Almeida Gunaratne for petitioners.J.W. Subasinghe ,P.C. with Miss. T. Keenawinna for respondent.
Cur. adv. vult.
11th May 1990.
S.N. Silva, J:
The twenty Petitioners aretraders carrying on business in shops, boutiques,and other establishments situated along Market Street, Gampaha. Theysell a variety ot items that include groceries, textiles, sundry goods,pharmaceutical products and hardware items. It is not disputed thatMarket Street is one of the busiest roads in Gampaha town. The 1stRespondent is an Urban Council constituted in terms of the UrbanCouncils Ordinance (Cap. 577) covering the area of the Gampaha town.The 2nd Respondent is the elected Chairman of the Council and the3rd and 4th Respondents are two of its officers
The Petitioners have filed this application for a Writ of Certiorari to quasha decision ot the Gampaha Urban Council to establish a weekly fair onMarket Street and for a Writ of Prohibition restraining the Respondentsfrom carrying out that decision.
It is the case of the Petitioners that on 24-11-1989 being a Friday, theRespondents closed Market Street for vehicular traffic, drew squareson the tarred area of the road and let the space within the squares to
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Liyanage v. Gampaha Urban Council and Others (S.N. Silva, J.)
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vendors to sell their wares from 6 a.m. to 8 p.m. A deposit ofRs. 100/-and a rental was charged by the Respondents from the vendors.The vendors sold their wares on the road upon the authority grantedby the Respondents and when it got sunny they even erected temporarysheds on the road. The vendors obstructed the Petitioners and theirscustomers. The Respondents continued to hold this fair on Market Streeton every Friday after 24-11-1989. The obstruction of Market Street onFridays caused inconvenience to the Petitioners and their customersand also loss and damage to the Petitioners. The Petitioners produceddocumentary evidence to establish that their income on Fridays dwindledto almost nothing due to this obstruction of Market Street.
The Respondents concede that the Urban Council decided to set upa weekly fair on Market Street on Fridays from 6 a.m. to 6 p.m. andfor this purpose they initially closed Market Street for vehicular traffic.They have in their objections set out the circumstances that led to thisdecision and the manner in which it was carried out. At a meeting heldof the 1st Respondent Council on 9-12-1988 a revenue proposal wasmade that a weekly fair be started at the centre of the town which wouldbring in a revenue of Rs. 4 lakhs for the year 1989 (R2). At a meetingheld on 11-9-1989 a report submitted by the Acting Revenue Inspectorof the Council regarding the proposal to establish a fair was consideredand a committee was appointed to study the project (R3). The reportof the committee was considered on 6-11-1989 (R4) and finally on 17-11 -1989 (R5). According to the minutes of that meeting the 4th Respondentbeing the Acting Revenue Inspector explained to the members of theCouncil that already there is a decision to start the fair on 24-11-1989and a revenue of Rs. 20,000/- per day could be obtained by letting 420spaces to vendors. He also explained that the Council is entitled toestablish markets under Section 129(d) of the Ordinance and to levyfees in terms of section 130(1)(d). The Vice Chairman of the Councilexpressed serious reservations regarding the proposal but it appearsthat the Council approved the report of the committee which recommendedinter alia, that an extent 16 feet in width running the entire length ofMarket Street, in the middle of the Street, be used for allotting spaceto vendors. (The entire width of Market Street excluding the pavementson either side, is 30 feet). The 2nd Respondent has stated in his affidavitthat subsequently these arrangements were altered "in order to mitigatethe inconvenience caused by the closure of Market Street to all vehiculartraff ic". By that alteration the width of the area of road allocated to vendorswas reduced to 7 1/2 feet and vehicular traffic was permitted on the
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side of the road. However the Respondents have not produced anydecision of the Council whereby the decision made on 17-11-1989 (R5)was altered.
Counsel forthe Petitioners submitted that Market Street is a thoroughfareas defined in the Urban Councils Ordinance and that the 1st Respondentis empowered to act in relation to a thoroughfare only as authorisedby the provisions of the Ordinance or any other statute. There is npprovision in the Ordinance or any other statute that empowers the 1stRespondent to organise a fair or a market on a thoroughfare. On thebasis that what is not permitted should be considered as prohibited, itwas submitted that the decision of the 1st Respondent to organise thefair on Market Street is ultra vires and should be quashed by a Writof Certiorari. Since the Respondents continue to implement this illegaldecision, that they should be restrained by a Writ of Prohibition.
Counsel for the Respondents submitted that Market Street is a publicroad vested in the 1st Respondent in terms of section 34(b) of theOrdinance. That it is a thoroughfare as defined in section 249(1) of theOrdinance and that the 1st Respondent is the general administrativeauthority in relation to it. That, it is the duty of the 1st Respondent toprovide public utility services including markets. That the weekly fairorganised by the Respondents is nothing but a market operative for alimited period. There is no provision in the Ordinance or any other lawwhich prohibits the 1 st Respondent from establishing a fair or a marketon a thoroughfare. That the fair was organised for the greater benefitof the public and that the inconvenience to the Petitioners and theircustomers have been minimised by opening out a portion of Market Streetfor vehicular traffic. Counsel also urged three groups upon any of which,the application should fail, in limine. They are;
that the vendors to whom space is allotted on Market Street arenecessary parties to the application;
that the Petitioners have an alternative remedy in the District Court;
that the Petitioners have failed to disclose in the papers filed thatan area of about 15 feet was left for vehicular traffic.
These grounds will be considered at a later stage in the judgement.
Liyanage v. Gampaha Urban Council and Others (S.N. Silva, J.)
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The principal submissions of learned President’s Counsel appearing onboth sides focus on a single issue of vires. Did the 1 st Respondent exceedits power in establishing a weekly fair on Market Street? If so, shouldWrits of Certiorari and Prohibition issue as pleaded by the Petitioners?
The submissions of Counsel as to the issue of vires necessarily leadus to an examination of the provisions of the Urban Councils Ordinanceas to thoroughfares and the powers and functions of Urban Councilsin this regard.
It is common ground that Market Street is a public road vested in the1 st Respondent in terms of section 36(b) of the Urban Councils Ordinance.It is a thoroughfare as defined in section 249(1) of the Ordinance. Insection 4 which sets out the core of the functions of an Urban Council,it is stated that a Council is charged with the regulation, control andadministration inter alia, of public thoroughfares within the administrativelimits of the town. It is the scheme of the Ordinance that the functionsset out in section 4 are elaborated in the Parts of the Ordinance thatfollow. Thus, Part 111 of the Ordinance that spans from section 44 tosection 102, specifies the rights powers and duties of a Council as tothoroughfares. It contains elaborate provisions with regard to: Themaintenance and repair of thoroughfares by an Urban Council and itsofficers (sections 63 to 71 );The regulation of the construction of buildings,boundary walls, gateways or fences along thoroughfares (section 72);The erection of temporary enclosures and fences on thoroughfares andtheir removal (section 73); The imposition of building limits within whichno building could be constructed (section 74); The removal and abatementof obstructions and encroachments on thoroughfares by a personauthorised by the Urban Council (Section 55(2), 84); Offences committedby persons who cause injuries to thoroughfares and the punishmentattaching to such offences and offences of nuisance committed onthoroughfares and the punishment attaching to such offences (section90); The power and duty to supervise and control the course anddevelopment of all public roads and paths within the town (section 49);The power to construct new roads, to widen, turn, divert or discontinueany thoroughfare (section 50) and to acquire land necessary forimprovement of any thoroughfare (section 51). There are also provisionsin other Parts of the Ordinance that cast general and specific dutieson Councils to maintain, sweep, cleanse and light up thoroughfares(sections 35(a), 118(a) and 129(b).
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Thus it is seen that although the Ordinance vests the thoroughfares andtheir administration and control in the Council with extensive powersand duties in relation to them, the Council is not vested with any poweror duty to establish a market or a fair on any thoroughfare or any partof a thoroughfare. It is on this basis that Counsel for the Petitionerssubmitted that what is not permitted should be considered as forbiddenand that the decision of the 1 st Respondent to establish a fair on MarketStreet be held ultra vires. This submission is based on a doctrine ofAdministrative Law and of statutory interpretation evolved by courts inEngland from the latter part of the last century.
In the case of Ashbury Railway Carriage and Iron Co. Ltd. vs HectorRicho (1), the House of Lords considered the validity of a contract enteredinto by the directors of a company, which did not come within the objectsof that company as stated in the Memorandum of Association. It washeld that the "contract, being of a nature not included in the Memorandumof Association was ultra vires not only of the directors but of the wholecompany, so that even the subsequent assent of the whole body ofshareholders would have no power to ratify it". The decision could beconsidered as the source of the doctrine that in construing instrumentsthat confer power what is not permitted should be taken as forbidden.Professor H.W.R. Wade has described this proposition as the "strictdoctrine of ultra vires" (Administrative Law 5th Edition page 216 and217). The application of the doctrine came up again for considerationby the House of Lords in 1880, in an application for a perpetual injunctionwith regard to a contract entered (in this instance) by a companyincorporated by statute. That is the case of Attorney General vs TheGreat Eastern Railway Co. (2). Here, the House of Lords approved thedoctrine with some refinement that lend it a greater flexibility. The LordChancellor (Lord Selborne) restated the doctrine as follows, (at page478):
"I assume that your Lordships will not now recede from anythingthat was determined in The Ashbury Railway Company vs. Riche
; It appears to me to be important that the doctrine of ultra vires,as it was explained in that case, should be maintained. But I agreewith Lord Justice James that this doctrine ought to be reasonably,and not unreasonably, understood and applied, and that whatevermay fairly be regarded as incidental to, or consequential upon, thosethings which the Legislature has authorized, ought not (unlessexpressly prohibited) to be held, by judicial construction, to beultra vires."
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Liyanage v. Gampaha Urban Council and Others (S.N. Silva, J.)
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Professor Wade has in his book (at p.217) cited several instances, wherethe Courts have refused to declare invalid acts of statutory authoritiesthat go beyond the strict letter of the enabling provision, on the basisthat the acts in excess can reasonably be considered as being incidentalto or consequential upon that which is permitted. It has to be soconsidered, with a view to promoting the general legislative purpose inthe conferment of power to the authority in question, in keeping withthe purposive approach to statutory interpretation. For, anything that iscontrary to or inconsistent with such general legislative purpose shouldnot be held as valid by Courts in an exercise of statutory interpretation.
Based on the foregoing analysis the legal position with regard to theapplication of the doctrine of ultra vires, in this respect, can be statedas follows. An authority (Corporation) established by statute such asan Urban Council has, .in law, a status, objects, powers, functions andduties, only as provided in the constituent statute or in any other statute.Beyond these it is legally incapable of doing anything. For instancesection 36(b) vests public roads in the Urban Council. As contendedby counsel for the Respondents, vesting ordinarily connects a transferof ownership and the Council should be considered the owner of theroad. Notionally, this may be correct. But vesting, here, does not meanthat the Council gets the rights attaching to ownership at common lawin respect of the road. "A statutory authority endowed with statutorypowers, has… no common law powers at all" (Wade, P.216). Therefore,public roads are vested in the Urban Council so that it will exercise,perform and discharge such powers, functions, and duties as are specifiedin the Ordinance or in any other statute, in relation to such roads, andno more. Anything purported to be done, by the Council, in excess ofwhat is permitted by the statutory provisions will be considered as whollyinvalid in law, on the application of the doctrine of ultra yires. However,in construing the relevant statutory provisions the Court will bear in mindthe need to promote the general legislative purpose underlying theseprovisions and consider whether the impugned act is incidental to orconsequential upon the express provisions. If it is so considerednecessary, the impugned act will not be declared ultra vires.
It has now to be considered whether the impugned act in this case couldbe taken as incidental to or consequential upon the express provisionsof the Ordinance on the basis stated above. Two grounds urged byCounsel for the Respondents are relevant to this aspect of the matter.They are:
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That the Council has a duty, in terms of section 136(a) of theOrdinance to establish and maintain public markets within the townand that the act of the 1st Respondent in establishing a weekly fairon Market Street should therefore be considered as legal;
that although according to the decision in A5, initially an area of16 feet in width along the centre of Market Street was set apart forvendors and the entire street was closed for vehicular traffic by asubsequent arrangement only an area of 7 1/2 feet on the middleof the street was set apart for the vendors leaving an area of 15feet on one side open for vehicular traffic.
It was Counsel's submission that in view of the subsequent arrangementthere was sufficient space on the street for its normal use and as suchthe decision should not be held as ultra vires.
It is necessary to examine broadly the provisions of the Ordinance withregard to thoroughfares and the powers, functions and duties of UrbanCouncils in this regard in order to ascertain the underlying generallegislative purpose. These provisions are referred to in a precedingparagraph of the judgment. As noted in that survey an Urban Councilis established as the authority for the administration and control ofthoroughfares within the limits of the town and is vested with extensivepowers functions and duties in relation to these thoroughfares. Thelegislative purpose underlying these provisions is very clear. It is, toensure that a Council, being the administrative authority at local level,will have the public thoroughfares within its area, free of obstructions,well maintained and improved with the passage of time. So that, thepeople for whose benefit these thoroughfares are meant can use themfreely and without impediment, in the words of the old conveyancer, topass and repass with vehicles laden and unladen. With the growth ofpopulation and the increase in commercial and other activity a certaindegree of crowding and congestion on some thoroughfares is inevitable.But, an Urban Council cannot add to such crowding and congestion bydrawing squares on the middle of one of the busiest streets and givingthe space so marked ot vendors to carry on their trade, howeverremunerative such a course of action may be to a Council. By suchconduct, the Council is causing an obstruction or an encroachmenton a thoroughfare being the very thing, the Ordinance requires itto remove and abate. Therefore the decision of the Council to
CA Uyanage v. Gampaha Urban Council and Others (S.N. Silva, J.)9
establish a weekly fair on Market Street is far removed frompromoting the general legislative purpose underlying the provisions ofthe Ordinance. On the contrary, it can be seen as detracting from suchlegislative purpose.
The submission of Counsel for the Respondents that the decision shouldbe held as valid because an Urban Council has a duty to establish marketsas a public utility, is untenable. The duty to establish markets, is distinctand different from the duty to maintain the thoroughfares free andunimpeded. A Council cannot discharge one duty in such a way as tocut across another duty. In any event drawing squares on a public roadcannot be considered as an act of establishing a market.
The other submission of Counsel is that only an area of 7 1/2 feet inwidth is given out to vendors at present although twice as much wasgiven at first. The exact area given out is irrelevant if the decision itselfis ultra vires. However, street vendors to whom space is given out cannotreasonably be expected to restrict their movements, like predeterminedrobots, to the squares that are drawn. They may keep their goods withinthese squares. But, they have to entice their customers, negotiate withthe customers and the customers themselves must move from onevendor to the other. In these circumstances it would not be meaningfulto allow an area of 15 feet for vehicular traffic. On the other hand suchan arrangement may be fraught with danger. Therefore I do not seeany merit in this submission of Counsel for the Respondents. Similarlythe submission that the Petitioners should fail because they have failedto disclose in their petition that squares are drawn only on an area of71/2 feet in width, cannot succeed. The exact width of the area providedto the vendors is irrelevant considering that the Petitioners challengethe entire validity of the decision to establish a weekly fair on MarketStreet. In any event the Petitioners have pleaded what really takes placeand that is supported by photographs that are not disputed.
It was the submission of Counsel forthe Respondents that the Petitionersare not entitled to the relief sought because they have failed to availof the remedy of injunction and damages which could be put in suit bythem in the District Court. This submission overlooks the distinctionbetween remedies in public law and private law. Constitutional Law,Administrative Law and Criminal Law being the main components ofwhat is described as public law have to be viewed distinctly from otherareas of law that are mainly concerned with private rights, describedas private law. In Administrative Law the principal instruments of judicial
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review of administrative action are the Writs of Certiorari and Prohibition.In private law there are comparable remedies of declaration andinjunction that are ordered to safeguard private rights. The followingpassage taken from Wade (page 546) draws a clear distinction in thesecomparable remedies".
"Certiorari and prohibition are complementary remedies, based uponcommon principles, so that they can be classed together. Certiorariissues to quash a decision which is ultra vires or vitiated by eroron the face of the record. Prohibition issues to forbid some act ordecision which would be ultra vires. Certiorari looks to the past,prohibition to the future. In this way they are respectively comparableto the declaration and injunction in the sphere of private law remedies."
The availability of private law remedies such as declaration, injunctionand damages, that may cover some subject matter can never precluderecourse to the public law remedies of certiorari and prohibition.
In England it has been held that Writs of Prohibition could issue on localauthorities with regard to purely administrative action. In the case of Rvs Greater London Council, ex parts Blackburn (3) it was held that aWrit of Prohibition could issue on the G.L.C. to restrain it from releasingindecent films for exhibition, adopting a standard and procedure contraryto law. Lord Dennihg MR stated as follows:
"The prerogative writ of prohibition has, in the past, usually beenexercised so as to prohibit judicial tribunals from exceeding theirjurisdiction. But, just as the scope of certiorari has been extendedto administrative authorities, so also with prohibition. It is availableto prohibit administrative authorities from exceeding their powersor misusing them."
Similarly, in R vs Liverpool Corporation, ex-parte Liverpool Taxi FleetOperation Association (4) The Court of Appeal issued a Writ of Prohibitionon a local authority to restrain it from issuing new taxi cab licences inexcess of the existing number of 300.
The final submission of Counsel for the Respondents was that the streetvendors to whom space is given out by the Respondents are necessaryparties to this application. Counsel for the Petitioners submitted that thesepersons are issued with tickets on every Friday by the Respondentsand as such they are an unidentifiable group of persons. Further, Counsel
Ramuppillai v.
SC Minister of Public Administration, Provincial Councils & Home Affairs & Others 11
submitted that these vendors have no right in law to sell theirwares on Market Street and that they have been put there illegallyby the Respondents. I agree with the submission of Counsel for thePetitioners. The relief sought in the petition is only against a decisionof the 1st Respondent and the execution of that decision by the otherRespondents. Therefore, the vendors who are merely the beneficiariesof an illegal act of the Respondents are not necessary parties to thisapplication.
For the reasons stated above, I overrule the objections raised by theRespondents. The Petitioners have made out a case for the issue ofWrits of Certiorari and Prohibition against the Respondents. I accordinglydirect the issue of a Writ of Certiorari quashing the decision of the 1st Respondent as contained in documents marked R4 and R5 to establisha weekly fair on Market Street, Gampaha. I also direct the issue of aWrit of Prohibition restraining be Respondents from in any way, executingor carrying out that decision. Considering the circumstances of the caseI make no order as to costs.
WUETUNGE, J: – / agree
Writs of Certiorari and Prohibition issued.