SUMANGALA MAHA NAYAKE THERO et al. v. THE REGISTRAR – GENERAL

061-NLR-NLR-V-42-SUMANGALA-MAHA-NAYAKE-THERO-et-al.-v.-THE-REGISTRAR—GENERAL.pdf


Sumangala Maha Nayake Thero v. The Registrar-General.251
1941Present: Keuneman J.
SUMANGALA MAHA NAYAKE THERO et al. v. THEREGISTRAR-GENERAL.In the Matter of an Application for a Writ of Mandamus.
Mandamus—Application to remove the name of an expelled bhikku fromregister—Right of applicants to compel the respondent to perform thestatutory duty.—Special and sufficeint interest—Supreme Court notsatisfied with motives of applicants—Refusal of writ.
The members of the Karaka Maha Sangha Sabha of the Malwattebranch of the Siamese Sect of the Buddhist priesthood including theMaha Nayaka of the Malwatte Vihara have, a special and sufficientinterest in the subject-matter which entitles them to apply for a mandamuson the Registrar-General to compel him to remove from the registerkept under s. 41 (5) of the Buddhist Temporalities Ordinance the name ofa Bhikkhu whom they have dxpelled from the Sangha.
The Supreme Court will refuse a writ of mandamus where it is not-satisfied as to the propriety of the motives of the applicants or wherethere has been considerable delay in making the application.
T
HIS was an application for a writ of mandamus on the Registrar-General. The facts appear from the argument.
H. V. Perera, K.C. (with him N. E. Weerasooria, K.C., J. R. Jaya-wardene and V. F. Gunaratne), for the petitioners.—The intervenient isa party interested in this application, and there is no objection to theintervention being allowed.
The Karaka Maha Sangha Sabha is the highest ecclesiastical body ofthe Siamese sect, consisting of about 6,000 bhikkhus. We say that inthe course of its duties, it expelled the intervenient in 1935. The MahaNayaka who is the chairman of it, removed the name of the intervenientfrom the register under section 41 (5) of Cap. 222, and requested theRegistrar-General to alter his register similarly. He refused to do it onthe ground that the Ordinance did not contemplate cases of expulsion,and the Maha Nayaka applied for a mandamus. The Supreme Courtheld that the Ordinance did contemplate expulsions, and it was theRegistrar-General’s clear duty to comply with such requests. See MahaNayaka Thero v. Registrar-General1.
In the exercise of its discretionary power, however, the Supreme Courtrefused the application on the sole ground of improper motive. I submitthat Soertsz J. erred, in thinking that it was the Maha Nayaka personallywho expelled the intervenient. The expulsion was in fact by the SanghaSabha. My contention is, therefore, that the ground of refusal was notpersonal to the Maha Nayaka.
Thereafter, the first petitioner again wrote to the Registrar-General tostrike oif the intervenient’s name, and upon his refusal the Karaka Sabhamet again, and specially authorised its Secretary, the tenth petitioner, towrite to the Registrar-General. The Registrar-General has refused againto do so, and hence the present application.
[Keuneman J.—Why have only seventeen members of the KarakaSabha applied ?]
1 39 N. L. R. JS6.
252
Sumangala Maha Nayake Thero v. The Registrar-General.
Of the other three, one is dead, and we can get the other two also tojoin in our application if necessary.
It may, or may not, be that the Maha Nayaka personally was actuated bymala fides but it is monstrous to suggest that the whole of such an augustassembly as the Maha Karaka Sangha Sabha is actuated by mala fides.
Since the judgment in Maha Nayaka v. Registrar-General (.supra), theintervenient has been admitting pupils into the priesthood. That is anew fact which undermines the authority of the Sabha.
The Registrar-General is arrogating to himself discretionary powerswhich belong to the Supreme Court alone. It is a pity that he shouldhave consulted the Home Minister. His legal adviser (the Attorney-General) has given him wrong advice. In fact Nihill J. in Jayasuriya v.Ratanajoti1, pointed out that in an appropriate case under the sectionan application for mandamus may not be refused.
In fact, no request need be made by the Maha Karaka Sabha. TheOrdinance lays down in imperative terms that the Registrar-Generalmust make the modification whenever the Maha Nayaka conveys, theinformation to him. See section 41 (5).
The present petitioners are the members of the Karaka Sabha whichexpelled the intervenient, and therefore they have a direct legal right toget the expulsion enforced. They have a sufficient interest to apply forthis writ. (R. v. The Manchester Corporation2.)
H. H. Basnayake, C.C., for the Registrar-General.—The presentpetitioners have no right to require the Registrar-General to remove theintervenient’s name. Only those who have a special right to insistupon performance are entitled to the writ. R. v. Lewisham Union". InR. v. Manchester Corporation (supra) the petitioners had a very specialinterest. That case has not been followed since.
In view of the Supreme Court holding in Maha Nayaka v. Ratnajoti(supra) that there is a substantial dispute between the intervenient, and•the Maha Nayaka and Morentuduwa Dhammananda for adjudication in aregular action, and that the modification of the register will place theintervenient in a position of great disadvantage and danger, the Registrar-General was advised not to remove the intervenient’s name.
[Ketxneman J.—Do you contest the validity of the expulsion of theintervenient by the Karaka Sabha?]
The Registrar-General has no machinery to ascertain whether theexpulsion was valid or not. If the Registrar-General had deleted thename of – the intervenient he would have done the very thing the SupremeCourt did not want to do.
The Registrar-General is following the interpretation placed upon theOrdinance by the Supreme Court, and recognises expulsion as comingwithin the Ordinance, but owing to the finding of the Supreme Court inthis matter, he did not delete the intervenient’s name.
A. Rajapakse (with him D. W. Fernando and E. L. W. de Zoysa), forthe intervenient.—Mandamus is a prerogative writ, not a writ of right,and the Supreme Court has a discretion to refuse it on various grounds{Short, p. 227 et seq). The present application is in the nature of a second
application.
1 41 N. L. R. 78.
(1911) 1 K. B. 560.
(1897) 1 Q. B. 498.
Sumangala Maha Nayake Thero v. The Registrar-General. 253
On a principle analogous to res judicata, a second application will notbe entertained except in cases of formal defects. The basis of thisapplication is the same as that of the previous one (viz., the allegedexpulsion of the intervenient in 1935). Soertsz J. was not in error at all,and was aware that it was the Karaka Sabha that purported to expelthe intervenient and not the Maha Nayaka personally. In fact this isthe previous application in disguise. See Q. v. Pickles and Anderson *;Ex parte Thomson*; Q. v. Mayor and Justices of the Bodnin*; Q. v.Manchester and Leeds Railway Company *.
The petitioners, other than the first, have no status to make thisapplication. It is the Maha Nayaka alone who is referred to in theOrdinance. The other petitioners are not directly or immediatelyaggrieved. The prosecutor must have a legal right and not consequentlyaggrieved. R. v. Lewisham Union (supra). Vide also R. v. Middlesex
In R. v. The Manchester Corporation (supra), the prosecutors had takena special interest in shaping the Act of Parliament to get themselvesprotected, and were financially affected by the conduct of the respondent.Its principle should be limited to the special facts of that case.
The petitioners are actuated by mala fides. The real reason for thealleged expulsion—the validity of which we deny, and the application formandamus is the fact that the intervenient who claims to have been dulyelected Adikari of Sripadasthana, has been functioning as such. Thecause of Morentuduwa Dhammananda, a rival claimant, has been espousedby the Maha Nayaka and .his seventeen followers in the Sangha Sabha.The Sangha Sabha has no voice in the election for the Adikariship ofSripadasthana. See Vanderstraaten’s Reports (1871) 215.
The petitioners are using political intrigue to oust the intervenient.They sought to get him convicted, apd failed. Vide J ay aswriy a v.Ratnajoti (supra).
Either Morentuduwa or the Karaka Sabha should bring a regular actionas indicated in Mah.a Nayaka v. Registrar-General (supra) at page 192.Impropriety of motives was not the only ground for refusal of the lastapplication. The Supreme Court held that the intervenient should notbe placed in jeopardy.
The petitioners are manoeuvring for position, and any cause of actionof the intervenient may be defeated by prescription.
In any case, the petitioners are guilty of laches. The alleged expulsionwas in 1935, the first application to the Supreme Court in 1937, and thepresent one in 1940. The delay is fatal. (Perera v. Rajapakse Mada-nayake v. Schrader*; Jayasuriya v. Silva'.)
The Registrar-General was right in refusing to strike off the interve-nient’s name when the subsequent application was made. Thisparticular matter between these particular parties is res adjudicata; andif the Registrar-General complied with their request it would have beento nullify the effect of the Supreme Court decision and to do the very thingwhich the Supreme Court refused to order him to do.
1 1832) 3 Band Ad 938.
* 26 N. L. R. 422.
7 28 xV. L. R. 389.
‘ 17 C. L. W. 111.
42/21
1 (1842) 3 Q. B. R. 599.
(1845) 6 Q. B. R. 721.
L. R. (1892) 2 Q. B. D. 21.*8 Ad and F.l 413.
254 KEUNEMAN J.—Sumangala Maha Nayake Thero v. The Registrar-cfeneral.
H. V. Perera, K.C., in reply.—The Registrar-General then in assuminga discretion he does not possess. The Government of the country wouldbe in a chaos if public officers flagrantly disobey the rules of law, whichgovern them. The petitioners have a right to make this applicationbecause they are the only body which has the right to ordain and expel.They are interested in maintaining proper discipline in the Sangha. SeeR. v. Manchester Corporation (supra). It shows that sufficient interestand not necessarily a specific legal right would suffice. Counsel citedJayasuriya v. Ratnajoti
Cur. adv. vult.
January 22, 1941. Keuneman J.—
This is an application for a writ of mandamus on the Registrar-General.The petitioners are. seventeen persons described as members of theKaraka Maha Sangha Sabha. They claimed that the Sabha has amongits duties the preservation of good order and discipline among the Buddhistpriesthood of the Malwatte branch of the Siamese sect, amounting to over6,000 priests, and has the sole right of ordination, control, appointmentand expulsion, and is the Highest Ecclesiastical Court of the Buddhistreligion. The whole Sabha consists of twenty members.
They further averred that the Sabha expelled from the priesthood thepresent intervenient, and that the first petitioner as Maha Nayaka Theraof the Malwatte Vihare, in accordance with section 41 of Chapter 222(The Buddhist Temporalities Ordinance, No. 19 of 1931), removed thename of the intervenient from the register and requested the Registrar-General to bring his register into conformity with that of the MahaNayaka Thera.
The mandamus is sought in consequence of the refusal of .the Registrar-General to make this alteration.
The intervenient, who has a clear interest in this matter, was allowed tointervene in the proceedings.
An earlier application by the first petitioner, the Maha Nayaka Thera,for a mandamus was refused by Soertsz J. in -the year 1937. Since thatdate, the tenth petitioner, as Chief Secretary of the Sabha, has requestedthe Registrar-General to make the required alteration, but the Registrar-General had refused to do so. In this connection, the tenth petitionerhad been authorised to take action by the Sabha on November 19, 1938,and February 4, 1940, and at these meetings the seventeen petitionerswere the only members present.
In this earlier application (vide Maha Nayaka Thero, Malwatte Viharev. Registrar-General*), Soertsz J., after careful examination of the law,held that the removal of the name of a priest from the register in conse-quence of expulsion from the priesthood fell within the term “ corrections,alterations and additions ” in section 41 (5). He further held that on thefact of this alteration being conveyed by the Maha Nayaka Thera to theRegistrar-General, the latter was bound to make the necessary alterationin his register. “ It is a duty that the statute casts on him in imperativeterms. It gives him no discretion, and he is usurping functions he doesnot possess when he acts in the manner in which he acted in this case ”.I am in entire agreement with this finding, and Counsel for all the parties1 41 N. h. it. 78.‘ 39 N. L. R. 186.
KEUNEMAN J.—Sumangala Maha Nayake Thero v. The Registrar-General. 255
in this proceeding conceded that this finding is correct, and to that extentthe consideration of this matter is simplified. But there were manyother matters urged before me, which I shall have to consider.
The Registrar-Cfeneral in his affidavit based his refusal to alter hisregister upon certain observations made by Soertsz J. in refusing theapplication for mandamus in the previous proceeding, in particular thatthe amendment of the register would place the intervenient “ in a positionof great disadvantage and even of great danger ”. The Registrar-Generalstated that he acted on advice given by the Attorney-General. I amsatisfied that in this respect the Registrar-General has fallen into thesame error which Soertsz J. warned him against, and has purported toexercise a discretion which in fact he did not possess.
At the argument, Counsel for the Registrar-General did not contestthe questions that the Sabhg^had the right to expel the intervenient, orthat the expulsion was properly and correctly made. He contended thatthe present petitioners have .no right to the performance of the duty whichthey seek to impose on the Registrar-General. He relied on R. v. Lewis-ham Union', in which it was held that the applicant for a writ of mandamus“ must have a specific legal right or duty to enforce the performance ofthe duty left unperformed ”. This point was also emphasized by Avory J.in R. d. The Manchester Corporation ’. But in this case Avory J. was thedissentient Judge, and the majority of the Court (Lord Alverstone C.J.and Pickford J.) held that the petitioners, who had appeared.in oppositionto a Bill before Parliament, and, with the object of protecting their owninterests, had procured the insertion in the Bill of a clause imposing aparticular duty on the promoters and others, had a sufficient interest inthe performance of the duty to support an application for a mandamus toenforce it, although they were not named in the clause. In the words ofLord Alverstone, the petitioners, “ having procured the insertion in theBill of a special clause for the protection of the general public, and throughthem of their own trade interests also, are in a superior position to thatof a common informer ”. Now, I wish to refrain, as Lord Alverstone did,from deciding what amount of interest will entitle a person to apply for amandamus. That may well be decided in a proper case. But in thepresent case the petitioners are members of a body, which has claimedthe right to expel the intervenient, and has actually ordered his expulsion.
I think they are persons who have a special and sufficient interest inseeking to implement that expulsion, by securing the entry of that factin the statutory registers, and that they stand on a footing different tothat of common informers.
Two further points in this connection may be mentioned. The MahaNayaka Thera is specially named in section 41 (5) as the person who isrequired to convey the fact of the alteration to the Registrar-General, and,in consequence, he may well be regarded as having a special and sufficientinterest to apply for a mandamus. I do not think this fact in any wayderogates from the right of the members of the Sabha to seek a similarremedy. Further, the fact that only seventeen out of the twenty membershave joined in the petition does not in my opinion affect the question.The practical difficulty of unanimity in matters of this kind may well1 {1897) 1 Q. B. D. 498 ; 76 L. T. 324.* {1911) 1 K. B. D. 560 ; 104 L. T. 54.
256 KEUNEMAN J.—Sumangala Maha Nayake Thero v. The Registrar-General.be realized, and, in any event, the seventeen members who have joined in-the petition base their right upon the fact of membership of the Sabha,and they are the full body of members who decided to request theRegistrar-General to make the necessary amendment in his register.
The considerations I have so far examined do not dispose of this matter.Very serious questions arise as to whether I should exercise the discretionwhich is vested in me.
In the first place, it is argued for the intervenient that this is a secondapplication for mandamus, and should therefore be refused. It has nodoubt been laid down that a second application made on fresh materialswithout new facts, after a first application has failed, should be disallowed.But in the present case, besides the first petitioner, the Maha NayakaThera, there are a number of new parties, who were not petitionersbefore. The Maha Nayaka Thera himself may possibly be liable to bedefeated under the rule. But what about the other petitioners? Theirclaim to the writ of mandamus is based upon a right materially differentto that of the Maha Nayaka Thera. I hardly think that these otherpetitioners can be regarded as making a second application. Thisargument of the intervenient’s Counsel accordingly fails.
It has further been contended for the intervenient that the petitionersare actuated by improper motives in making this application. I havevery carefully considered the affidavits in this connection, as Soertsz J.did in the previous proceeding. I refrain from deciding on the merits ofthe matter, but certain facts emerge, of which I must take notice. Avery considerable dispute arose in relation to the appointment to thevacant office of the Viharadhipathi of Sripadasthana. This resulted in twoseparate elections being held, in one of which the intervenient claimedthat he was appointed to that office, and in the other Morontuduwe SriDhammananda Thero claimed that he-was appointed. It appears clearthat not only the Maha Nayaka Thera but also the Sabha adopted thecause of Dhammananda Thero. It was in relation to certain acts doneby the intervenient in prosecution of his claim to the office in questionthat the intervenient was expelled by the Sabha. I do not propose todiscuss whether this expulsion was justified or not. There are twoversions in the affidavit. It is a matter for some surprise that thisquestion has not yet been submitted to a legal tribunal for determination.Instead, the intervenient was prosecuted under section 42 of Chapter 222for holding himself out as a priest though his name was not on the register.The intervenient was acquitted on the ground that his name was on theRegistrar-General’s register, and that was the register contemplated bysection 42. The acquittal .was on June 26, 1939, and a subsequentapplication in revision was refused on October 25, 1939. The tenthpetitioner was one of the principal witnesses against the intervenient inthat cause. I am not satisfied that the real motive of the Maha NayakaThera and of the other members of the Sabha iii pressing for a writ ofmandamus is not to obtain a bloodless victory in the matter of theappointment to the office of Viharadhipathi of Sripadasthana. For, asSoertsz J. pointed out in the previous case, once the intervenient’s nameis taken off the register, he is liable to prosecution. His position becomesone of great embarrassment and even danger.
KEUNEMAN J.—Sumangala Maha Nayake Then v. The Registrar-General. 257
After an examination of all the facts, I am not satisfied as to thepropriety of the motives of the petitioners, and this is a good ground forrefusing the application.
There is another ground strongly urged, by Counsel for the intervenientwhy I should not exercise my discretion in favour of the petitioners,namely, the considerable delay in making the present application. Thealleged expulsion of the intervenient by the Sabha took place on May 26,1935. On May 29 of that year the Maha Nay aka Thera informed theRegistrar-General of the alteration in the register. The Registrar-General refused to make the alteration. The original application of theMaha Nay aka Thera for mandamus was made on January 26, 1937, andwas refused by Soertsz J. on May 27, 1937. Subsequent requests by theMaha Nayaka Thero to the Registrar-General to alter his register wererefused on September 4, 1937, May 19, 1938, and June 11, 1938. Thefirst request to the Registrar-General by the tenth petitioner as ChiefSecretary to the Sabha was made on December 7, 1938, and was refusedon January 11, 1939, on the footing that the Sabha had no right to makethe request. In spite of that there was other correspondence, and similaranswers were again given by the Registrar-General. The presentapplication for mandamus was made about June 20, 1940.
It is dear that the members of the Sabha have remained quiescent for avery long time, not only since the date of the alleged expulsion of theintervenient, but even since the date of the refusal of the Maha NayakaThera’s application for a writ of mandamus. In fact, the Sabha onlybecame active in December, 1938, and even after their first request wasrefused in January, 1939, they made no application to this Court forabout seventeen months. The petitioners have offered no explanationof the very considerable delay in making their application. It has beenargued with some force by Counsel for the intervenient that, if thismandamus were granted, the intervenient may be forced himself to bringan action in Court, and that, if he did so now after this lapse of time, hewas liable to be defeated on the ground of prescription. I mdy say thatI should not have been deterred from taking any action in this mattermerely because one or other of the parties was forced to bring an action.In fact, I think that is a result much to be desired, and the most appro-priate method of obtaining a decisive finding. But at the same time. Iam not disposed to lay upon the-intervenient an undue disadvantage,which can be attributed to the failure of the petitioners to take actionwithin a reasonable time. Further, I must refuse to assist any manoeuvrefor position by any of the parties to this proceeding. I think this also is agood ground for exercising my discretion against the petitioners—videMadanayake v. Schrader
It is to be regretted that the difference between the register of theMaha Nayaka Thera and that of the Registrar-General should continue.But I am not satisfied that the petitioners have no proceeding, availableto them to establish the expulsion.
The present application must be refused, and the rule discharged. TheRegistrar-General, in view of my findings, is not entitled to any costs, butthe petitioners will pay the costs of the intervenient.
'Rule discharged.
-„T W U
1 29 N. I' R ***