155-NLR-NLR-V-48-MOHAMED-MIYA-Petitioner-and-THE-CONTROLLER-OF-TEXTILES-Respondent.pdf
492
Mohamet! Miya v. The Controller of Textiles.
1947Present : Dias J.
5. c. 76—In the Matter of an Application for a Mandate in thenature of a Writ of Certiorari under Section 42 of theCourts Ordinance.
MOHAMED MIYA, Petitioner, and THE CONTROLLER OFTEXTILES, Respondent.
Certiorari—Cancellation of licence by Textile Controller—Reasonable groundsto believe that dealer is unfit to be allowed to continue—Judicial act—Powers of Supreme Court—Regulation 62 of Defence (.Control ofTextiles) Regulations.
Where the Textile Controller in the exercise of powers under Regulation62 of the Defence (Control of Textiles) Regulations cancels a dealer’slicence on the ground that he has reasonable grounds to believe that thedealer is. unfit to be allowed to continue as a dealer, he acts judicially.In such a case the Supreme Court has power, on an application for awrit of certiorari, to examine whether the Controller had reasonablegrounds for such belief.
^REPLICATION for a writ of certiorari on the Textile Controller.
H. V. Perera, K.C. (with him S. Nadesan), for the petitioner.
H. W. R. Weerasooriya, C.C., for the respondent.
Cur. adv. vult.
* (1911) A. C. 182.
1 (1915) A. C. 120.
••fofcjifon <£* Co., Ltd. v. Minister of Health (1947) 2 A. E. R. 395, p. 405.
DIAS J.—Mohamed Miya v. The Controller of Textiles.493
October 2, 1947. Dias J.—
The petitioner, who trades under the name of Cassim Stores in tneFettah, is the holder of a textile licence. By his order dated February 21,1947, the Controller of Textiles (the respondent) purported to cancelthe petitioner’s licence under Regulation 62 of the Defence (Control ofTextiles) Regulations, 1945. In the case of Abdul Thassim v. EdmundRodrigo1 a Full Bench held that the Controller of Textiles when heexercises functions under Regulation 62 acts judicially, and is, therefore,amenable to a writ of certiorari.
The petitioner moves for a mandate in the nature of a writ of certiorariagainst the respondent to quash the order of February 21, 1947, on theground that it was made without jurisdiction.
In order to appreciate the submissions made, it is necessary to set outthe relevant facts.
It appears that textile dealers in the course of their trade accumulatetextile coupons handed in by customers when they buy controlledtextiles. These coupons once they have been exchanged for cloth areexhausted, and cease to be lawfully usable. In order to prevent fraud,every textile dealer has to keep books showing the quantity of cloth hesells and the number of coupons he accumulates in the process. Theseexhausted coupons the dealer has to send to the Controller’s departmentwhere they are collected and “ cancelled ”.
A rather elaborate office system has been evolved in order to preventfraud. The dealer is supplied by the respondent with a paying-in book infoil and counterfoil—see exhibits E and F—in which the dealer has tonote in letters and numerals the number of coupons which are sent to theTextile Controller’s Department for cancellation. The dealer or hisservant takes the paying-in book together with the coupons and handsthem in to the Textile Controller’s Department. A receiving clerk isthen supposed to count the coupons and check the number of couponswith the figures given in the paying-in book of the dealer. He thenenters the number of coupons received in what is designated the “ scrollbook ” and obtains the signature of the dealer or his servant in the scrollbook. He then sends the paying-in book (foil and counterfoil) to theAssistant Shroff. This officer recounts the coupons and again checkstheir number with the foil and counterfoil in the dealer’s paying-inbook, initials the foil and counterfoil, retains the coupons and sends thepaying-in book to the shroff. The assistant shroff is expected to sendthe coupons “ elsewhere ” for “cancellation”.—
The shroff when he receives the paying-in book enters in his registerthe number of “ points ”, i.e., the coupons appearing in the foil andcounterfoil of the dealer’s paying-in slip. He appends his own signatureto the foil and counterfoil, enters in the credit control book the numberof points appearing in the paying-in slips, detaches and retains the foilof the paying-in slip, returns the counterfoil and the paying-in book tothe dealer or his servant, and sends the foil of the paying-in slip to theledger clerk. This officer posts up in the dealer’s, folio of the ledger acredit entry of the number of points appearing in the foil. It is the
1 (7.947) 48 N. L R. 121.
494
DIAS J.—Mohanted. Miya v. The Controller of Textiles.
practice for the Textile Control Department from time to time to senda copy of this ledger folio to the dealer, so that the latter may check uphis own books in regard to the number of coupons surrendered by himto the Textile Controller’s Department.
There are two transactions involved in this case—one on September 24,1946—exhibit E, and the other on October 3, 1946—exhibit F. In thescroll book and the shroff’s register under the two dates are entered 1,000and 2,000 textile coupons as having been handed in by the petitioner’sservant, Peter Fernando, whose signature appears in exhibits E and F aswell as in the scroll book. In the ledger kept by the Textile Controller,however, these figures have become 31,000 and 52,000 respectively—anexcess of 80,000 textile coupons. If the foils and counterfoils of thepaying-in books E and F are scrutinised, it is obvious that the words“ Thirty-one thousand ” and “ Fifty-two thousand ” are false entries.They originally read “ One thousand ” and “ Two thousand ” respectively,but in another handwriting the words “ Thirty ” and “ Fifty ” have beenadded in front of “ one thousand ’’ and “ two thousand ”, and thenumerals also could have been similarly falsified.
It is obvious, therefore, that a fraud of considerable magnitude has beenin progress, whereby dishonest persons by such falsifications as in thisparticular case could have obtained possession of 80,000 used coupons,which if sold in the “ black market ” at Re. 1 per coupon would haveenabled somebody to pocket Rs. 80,000. Peter Fernando, the servant ofthe petitioner, having taken E -and F to the Textile Control Departmentand having signed the scroll book, could not have failed to observe thatthe counterfoils E and F, which were for 1,000 and 2,000 couponsrespectively when he handed them in and received back the counterfoils ofE and F, had been altered to 31,000 and 52,000. These counterfoils of Eand l1' were taken by the Textile Controller from the petitioner’s possession.We are not told whether the petitioner’s books were checked, and if so,what entries they contained in regard to these two items. It is alsoto be noted that, although this fraud was detected early this year, up todate no action in the criminal courts has yet been taken against anybody,although the facts show that certain officers in the Textile ControllersDepartment and Peter Fernando must be involved in it. In fact, PeterFernando is alleged to have disappeared.
So far as I can see on the materials before me, there is no proof that thepetitioner was actually privy to this fraud, or that he in any way instigatedor abetted his servant Peter Fernando, or personally profited by thefraud. It is, of course, a suspicious circumstance that a Pettah textiledealer should send paying-in slips for 1,000 and 2,000 coupons and receiveback a falsified counterfoil for 31,000 and 52,000 coupons and fail todetect the fraud ; but suspicion alone does not amount to proof—R v.Abeywickreme
Under Regulation 62 “ where the Controller has reasonable grounds tobelieve that any dealer is unfit to be allowed to continue as a dealer, theController may cancel the textile licence or textile licences issued to thatdealer ”. What evidence had the respondent to cause him to have“ reasonable grounds to believe ” that this petitioner was unfit to
1 {1943) 44 -V. L. H. at p. 259.
DIAS J-—Mohamed Miya v. The Controller of Textiles.
495
continue to act as a dealer ? In his letter B dated February 18, 1947,the Controller says:(a) that according to the scroll book of the
receiving clerk and the registers kept by the shroff and the AssistantCountroller the number of coupons surrendered by the petitioner on thetwo dates were 1,000 and 2,000 respectively, whereas in the Controller’sledger the figures are 31,000 and 52,000 respectively ; (b) the respondentfurther says that on inspecting the corresponding paying-in slips (E andF) submitted by the petitioner along with the coupons, it was found thatinterpolations had been made in the foil and counterfoil.
While everyone will be in agreement with what the respondent says,there is nothing in what is stated in (o) and (b) to implicate the petitionerwith those falsifications or the consequent fraud. The respondent thenproceeds: “ I have reason to believe that you got these interpolations■made, and contrived to obtain in the ledger account, credit for a biggeramount than you were entitled to on the basis of the coupons surrendered.If that is so, I have to regard you as a person unfit to continue to hold alicence to deal in textiles, and I propose accordingly to revoke yourlicence ”. The petitioner was asked to show cause by February 20, 1947.
The petitioner’s complaint is that the grounds (a) and (b) given by therespondent could not have given him “ reason to believe ” that thepetitioner either caused the interpolations to be made in the paying-inslips, or that he contrived to obtain the falsification of the Controller’sledger. I agree with this submission. On the facts which I have 'detailed at some length, granting that Peter Fernando was a party tothis fraud, there is no evidence to show that the petitioner was eitherprivy to it or aided or abetted it- It is to be noted that the documentB must have been carefully drafted. The respondent does not say
Therefore I have reason to believe, &c.”. He could not have said that,because any intelligent person would realise that that paragraph doesnot flow from or follow as a necessary consequence from the grounds (a)and (b). There is, therefore, force in the submission made by counsel forthe petitioner that the respondent must have had some other undisclosedreason to believe that the petitioner caused the interpolations to be madeand the ledger falsified. He submits that the failure to disclose thosegrounds and thereby failing to afford the petitioner an opportunity ofmeeting them, the respondent acted “ unjudicially ” and withoutjurisdiction and is therefore amenable to a writ of certiorari.
The answer of the respondent to this contention is that the conditionsrequired by Abdul Thassim v. Edmund Rodrigo (supra) have been fulfilled,that the petitioner was given an opportunity of showing cause, that hedid show cause, that the respondent then made a regular order, and thatthis Court cannot now canvass the grounds upon which the respondentcalled upon the dealer to show cause. In my opinion this submission isunsound.
The remedy afforded by the writ of certiorari is of a special character.It is available whenever an inferior judicial tribunal, or a statutoryauthority vested with judicial or quasi-judicial powers has acted withoutjurisdiction, or in excess of its jurisdiction. The Textile Controller is anadministrative and not a judicial officer. It was held in Abdul Thassimv. Edmund Rodrigo (supra) that the Textile Controller when exercising
48/38
496DIAS J.—Mohamed Miya v. The Controller of Textiles.
powers under Regulation 62 acts judicially. What then is his“ jurisdiction ” ? Take the case of a Judge. The jurisdiction of ajudicial officer has many facets. There is his territorial jurisdiction.There is his monetary jurisdiction. There is his capacity to try, hiscapacity to punish, &c. If a judicial officer acts in excess of any ofthese jurisdictions, or without jurisdiction, certiorari will lie to correcta misuse of his powers. If a Commissioner of Requests entertains anaction for divorce, he clearly acts without jurisdiction, for no Court ofRequests can entertain or determine a matrimonial action. In such acase the writ of certiorari will be available to quash that misuse ofpower. But assuming that a Commissioner of Requests entertains aplaint which he has the power to try, but proceeds to give judgmentfor the plaintiff or the defendant without hearing any evidence, in such acase the Commissioner of Requests is acting with jurisdiction, althoughhe is exercising his jurisdiction illegally or irregularly. In such a casecertiorari will not lie. The remedy of the aggrieved party is to appeal,or take, some other step prescribed by law.
In the case of the Controller of Textiles his “ jurisdiction ” means thepower or authority conferred on him by Regulation 62. When he decidesto act under Regulation 62 he is bound to act judicially, and his “ juris-diction ”, power, or authority depends on the existence of the fact orfacts which caused him to have “ reasonable grounds to believe that anydealer is unfit to be allowed to continue as a dealer ”. Until then hehas no jurisdiction. Subjectively the respondent may have in his mindvarious reasons why he considers the petitioner to be unfit to continue asa dealer; but once he decides to invoke against the petitioner his juris-diction under Regulation 62, it should be made to appear objectivelythe foundation upon which that jurisdiction rests, namely, that therespondent has reasonable grounds for his belief. If that condition isnot made manifest objectively, I do not think it lies in the mouth of therespondent to say that this Court has no power to examine whether hehad reasonable grounds for his belief, that is to say, to examine whetherthe respondent acted with or without “ jurisdiction ”. The foundationof the respondent’s jurisdiction depends on whether “ he had reasonablegrounds to believe ” that this petitioner is unfit to continue as a dealerin textiles. It is on that and that alone the respondent’s power andauthority to act under Regulation 62 depends. If no reasonable groundsin that sense are apparent, then, in my opinion, the respondent actedwithout jurisdiction, and is amenable to a writ of certiorari. Applyingthese principles to the facts of this case, I am of opinion _that therespondent acted without jurisdiction, and that certiorari is available.
It is admitted by counsel on both sides that the questions both offact and law which arise in this case are covered by the judgment ofHoward C.J. in The Application for a Writ of Certiorari on the Controller ofTextiles (S. C. M. of September 19, 1947) l. Except for certain minordetails like the number of coupons involved, &c., it is common groundthat there is nothing either on the facts or on the law to distinguish thatcase from the present case. Crown Counsel candidly admitted that whathe is endeavouring to do is to persuade me that the judgment of thelearned Chief Justice is erroneous. He concedes that if that judgment
1 Vide (1947) 48 N. L. S. 461—Ed.
DIAS J.—The King v. Jayawardene.
497
is right, the reasoning in that judgment would govern the present case.I have, therefore, attempted without reference to the earlier case to reachan independent conclusion in this case. Having done so, I may bepermitted to say that I respectfully agree with the judgment of thelearned Chief Justice.
I direct that the rule nisi should be made absolute with costs, and thatthe writ of certiorari applied for should issue.
Order made absolute.