011-SLLR-SLLR-1985-V2-MUDIYANSE-v.-CHISTIE-SILVA-GOVERNMENT-AGENT-HAMBANTOTA.pdf
52
Sri Lanka Law Reports
{1985] 2 Sri L. R.
MUDIYANSE
v.
CHRISTIE SILVA, GOVERNMENT AGENT, HAMBANTOTA
.SUPREME COURT.
RANASINGHE, J.. ATUKORALE, J. AND L. H. DE ALWIS. J.
S.C. APPEAL No. 37/84.
C.A. APPLICATION No. 275/81.
MAY 16, 1985.
Writ of Certiorari – Suspension of liquor licence – Section 28A (1) of the ExciseOrdinance as amended by Excise {Amendment) Law No. 24 of 1977 – Proper party tobe sued.
The appellant had been the holder of an excise licence for the sale of foreign liquor at hiscinema, renewed annually from 1976. .When he sought renewal of the licence for 1981the appellant was informed that there was a directive from the Ministry (of Finance) tosuspend the licence and therefore his licence fee could not be accepted. The appellantthen made representations to the Minister of Finance but the Excise CommissionerInstructed the Government-Agent (respondent) to cancel the licence with immediateeffect as the Minister of Finance had so directed and to report the same to the Ministryof Finance. The appellant alleging arbitrariness, capriciousness and mala fides on thepart of the. respondent in that he had been influenced by extraneous and irrelevantconsiderations, and violation of natural justice sought to quash the respondent's' decision by certiorari. The Court of Appeal however held that the application could notbe maintained without joining the Minister of Finance.
Held-
Section 28A (1) of the Excise Ordinance as amended by Excise (Amendment) Law No.24 of 1977 clearly empowers the Minister of Finance to direct the authority granting alicence to, inter alia, cancel a licence and such authority is obliged.to give effect to sucha direction. The respondent's refusal to renew the licence for the year 1981 was notone made by him on his own volition in the exercise or purported exercise of the powersvested in him but one made in pursuance of the direction given by the Minister ofFinance. Hence this application for a writ of certiorari should have been made againstthe Minister and not against the respondent.
APPEAL from order of Court of Appeal.
H. L. de Silva. P.C. with D. S. Wijesinghe for the appellant.
Douglas Premaratne. D.S.6. with L M. Wijesundera. S.C. and Mrs. S. SamararatneState Attorney for respondent.
Cur. edv. vult
sc
Mudiyanse v. Christie Silva
53
April 2, 1985.
ATUKORALE, J.
The appellant filed this application in .the Court of ^Appeal. seeking anorder in the nature .of a writ of certiorari to quash the decision of therespondent, the Government Agent of Hambantota,refusing to granthim a renewal of the excise licence fqrthe sale of foreign liquor at thepremises called Saliya Cinema, Ambaiantota. He.also asked for a writof mandamus directing the respondent.to grant a renewal of.the saidlicence. .The renewal sought for by the appellant was for the year1981.
The facts established that the appellant was the proprietor of theCinema ; that from .1976 he,had been the holder of the said licence,P’i being the licence for the year ending 31.12.1980; that on
when the appellant went.to the office of the respondentto ascertain the licence fee for the year 1981, he was informed by theofficer in charge of the licence branch that there was a directive fromthe 'Ministry' to suspend the licence and that a: decision would bereached after a discussion with the respondent – vide P4 ; that oh thefollowing day (30.12.1.980) the appellant again went to the office of.the respondent and ririade a written request that'the licence fee beaccepted, to which the respondent replied by P5 of the same datestating that on the advice of the District Minister of Hambantota theissue of the licence to the respondent had been suspended and 'thatthe fee could not be accepted. The appellant then by P6 of
made representations to the Minister of Finance andrequested him to give instructions for the' issue of the licence. On thesame date the Excise Commissioner by P7 wrote to the respondent(with a copy to the appellant) directing the respondent to cancel thelicence with immediate effect and to report the same to the Secretaryof the Ministry of Finance. P7 refers to the direction made by theMinister of Finance, to cancel the appellant's licence with'immediateeffect and contained in letter R3 of 01.01.1981 by which theSecretary, Ministry of Finance, communicated the Minister’s directionto the Excise Commissioner. The appellant in his application averredthat the decision of the respondent not to accept the licence fee forthe year 1981 and not to renew the licence was null and void for thereasons, inter alia, that.the respondent acted mala fide in that he wasinfluenced by extraneous^and irrelevant considerations; that th§respondent acted arbitrarily and capriciously in 'suspending' and later
54
Sri Lanka Law Reports
[1985] 2 Sri L. R.
'cancelling' the licence and that the respondent acted in violation ofthe principles of natural justice in not giving the appellant anopportunity of being heard prior to taking a decision. The appellantthus sought to quash the respondent's decision not to'renew thelicence.;
. The respondent in his'affidavit of objections whilst admitting that theExcise Commissioner, by P7 "directed him to forthwith cancel theappellant's licence stated that the decision not to renew was madeconsequent to arid upon a direction issued by the Minister of Financein terms of the provisions of the Excise Ordinance (Chap. 52, L.E.). Insupport of this position he produced as R3 the copy received by him ofthe letter dated 1.1.1981 sent by the Secretary, Ministry of Finance,to the Excise Commissioner embodying the Minister’s direction. Therespondent also produced as R1 a letter dated 29.12.1980 sent byhim to the Assistant Excise Commissioner by which he informed theAssistant Commissioner that the District Minister of Hambantota Hadadvised him that the Minister of Finance had ordered that the issue ofthe licence for 1981 be suspended and that accordingly he hassuspended the same until he receives further orders from theAssistant Cornmissioner.
The Court of Appeal reached the finding that the decision of therespondent not to renew the licence for the year 1981 was referablesolely to the directive in P? given by the Minister of Finance throughthe Excise Commissioner to the respondent to cancel the licence. Onthis-basis the court held that'the appellant could not maintain thisapplication without joining the Minister of Finance as a partyrespondent. This is .the main ground upon which the Court of Appealdismissed the .application. The short point that arises for ourconsideration 'is whether the court was right in rejecting theapplication on this ground.
The Excise (Amendment) Law, No. 14 of 1977, introduced a newsection as s. 28Ato the Excise Ordinance {Chap. 52). Subsection (1)- of this section reads as follows : –
"(1) Notwithstanding anything in this Ordinance, if, uponrepresentation made or otherwise, the Minister considers itnecessary to do so, he may, without assigning any reasontherefor, direct , the authority granting-a licence, to grant alicence, or;to renew or cancel a licence, and such authorityshall give effect to such direction."
SC' Mudiyanse v. Christie Silva (Atukorate, J.)55
This subsection clearly empowers the Minister of Finance to directthe authority granting a. licence (in this case the respondent) to, interalia, cancel a licence and such authority is obliged to give effect tosuch a direction. On a careful perusal of documents P4, P7; R1 andR3 it seems to me that the .respondent's refusal to renew the licencefor the year 1981 was not one made by him on his own volition in theexercise or purported exercise of the powers vested in him by s. 27
or s. 28 (1) of the Excise Ordinance but was in pursuance of thedirection given by the Minister of Finance embodied in R3 andcommunicated to the respondent by P7 of 6.1.1981. The fact thatthe appellant himself was aware that it was so is borne out by his ownstatement to the Police, P4 of 29.12.1980, in which he states that he. was informed by the officer-in-charge of issuing licences that thereWas an order of the 'Ministry' to suspend the renewal-of the licence.The application for a writ of certiorari should therefore, in 'my view,have been made not against the respondent who was merely givingeffect to the Minister's direction to cancel the licence but against theMinister himself who gave the direction under s. 28A (1). For thesereasons the judgment of the Court of Appeal is affirmed and theappeal is dismissed with costs fixed at Rs. 420.
RANASINGHE, J. – I agree. .
L. H. DE ALWIS, J. – I agree.
Appeal dismissed.