051-NLR-NLR-V-63-THE-COLOMBO-BUDDHIST-THEOSOPHICAL-SOCIETY-LTD.-Petitioner-and-S.-F.-DE-SILVA-.pdf
The Colombo Buddhist Theosophical Society Ltd. v. Silva
237
1961Present: T. S. Fernando, J.THE COLOMBO BUDDHIST THEOSOPHICAL SOCIETY LTD.,Petitioner, and S. F. DE SILVA (Director of Education), DespondentS. C. 568 of 1960—Application for a mandate in the nature of a Writ of
Mandamus
Mandamus—Not granted by way of a prohibitory injunction—Availability of writ torestore a person to office—Unaided school—Proprietorship or managership of it—Not a public office—Assisted Schools and Training Colleges {Special Provisions)Act, No. 5 of 1960, as. 3, 4, 5, 6 (c) (/)—Education Ordinance No. 31 of 1939{as amended by Ordinance No. 26 of 1947).
The remedy of mandamus is not granted by way of a probihitory injunctionrequiring a person to refrain from doing something unlawful.
The petitioner (Colombo Buddhist Theosopbical Society Ltd.) was theproprietor of two assisted schools (Ananda College and Dharmaraja College)prior to 1st December, 1960. It complained that, although it had elected interms of section 5 of the Assisted Schools and Training Colleges (SpecialProvisions) Act, No. 5 of 1960, to administer these schools as unaided schools,the respondent, who was the Director of Education, took over the managementof the two schools in the purported exercise of powers vested in him by ActNo. 5 of 1960.
Held, that, inasmuch as the only substantive grievance alleged against therespondent was his act of assuming managership of the two schools, the peti-tioner was not entitled to a writ of mandamus ordering the respondent torefrain from acting as manager.
Held further, that mandamus lies to restore a person to office of which he-hasbeen dispossessed, but the office must be a public office. Neither the proprietor-ship nor the managership of an unaided school amounts to the holding of publicoffice.
238
T. S. FERNANDO, J>—The Colombo Buddhist Thecaophical
Society Ltd. v. de Silva
Application for a writ of mandamus on the Director of Education
H. V. Perera, Q.C., with E. B. Wikramanayake, Q.C., G. T. Samara-wickreme and W. T. P. Goonetitteke, for the petitioner.
V. Tennekoon, Crown Counsel, with B. C. F. Jayaratne and H. L. deSilva, Crown Counsel, for the respondent.
Cur. adv. vuli.
August 21, 1961. T. S. Fernando, J.—
The petitioner is the proprietor of Ananda College and DharmarajaCollege, two assisted schools established and conducted by it at Colomboand Kandy respectively prior to 1st December 1960. The AssistedSchools and Training Colleges (Special Provisions) Act, No. 5 of 1960,which came into force on 17th November 1960, made provision for theappointment of the Director of Education as the manager of every assistedschool other than a school which the proprietor has elected before 1stDecember 1960 to administer as an unaided school,—vide sections3, 4 and 5 of the Act. The petitioner contends that it has made therequisite election in terms of section 5 of Act No. 5 of 1960 to administerthese two schools as unaided schools—(an unaided school being definedby the Education Ordinance, No. 31 of 1939, as amended by OrdinanceNo. 26 of 1947, as a school which is not a government school or an assistedschooll-1—and that therefore as from 1st December 1960 these two schoolsrequire to be administered as unaided schools.
The petitioner complains that on 1st December 1960 the respondentwho is the Director of Education acting in the purported exercise ofpowers vested in him by Act No. 5 of 1960 has taken over the manage-ment of the said two schools. By his action in seeking to exercise thepowers and duties of manager of the said schools, it is further complained,that the respondent has unlawfully failed and refused to give effect to andcomply with the law applicable to unaided schools which require to beadministered by the proprietors of those schools. The petitioner there-fore seeks the intervention of this Court by way of a mandate issuing fromit in the nature of a Writ of Mandamus ordering the respondent to actin compliance with the law applicable to unaided schools end to refrainfrom acting as manager of the two schools referred to above and fromexercising, performing and discharging powers, functions and duties asmanager of these two schools.
The respondent does not admit the validity of the ejection alleged tohave been made by the petitioner in terms of section 5 of Act No. 5 of1960. Counsel for the parties have not been heard by me on the question
T. S. FERNANDO, J.—The Colombo Buddhist Theosophical
Society Ltd. v. de Silva
230
of the validity of the election as the respondent by his counsel raised,at the commencement of the argument, a preliminary objection to theapplication that the remedy of mandamus i3 not granted by way of aprohibitory injunction which is the substantive relief claimed by thepetitioner. In support of this objection it has been urged that an orderof mandamus is essentially one which requires the person on whom itis issued to do some particular thing therein specified which appertainsto his office and is in the nature of a public duty.—see Halsbury’s Lawsof England, (Simonds ed.), Vol II, page 84, section 159 et seq. Whathas been stressed on behalf of the respondent is tha t the order is not issuedby way of a prohibition addressed to a person designated to refrainfrom doing something, and that such an order by its very nature wouldbe something the execution of which the Court would not be capable ofsupervising. No decided case was cited to me by counsel for eitherside in which a court has expressly stated that a mandamus either liesor does not lie to prohibit a person from doing something nor have Imyself discovered such a case. Mr. Tennekoon, however, has broughtto my notice the following statement at page 434 of Professor S. A. deSmith’s treatise on Judicial Review of Administrative Action wherethe author refers to the English common law :—
“ It would seem, moreover, that mandamus is not the proper meansof enforcing a duty to abstain from acting unlawfully. Thus, if apublic authority or officer threatens to act ultra vires, the appropriateremedy will be an injunction or a declaration, and not an applicationfor mandamus not to exceed the powers conferred by law.”
Mr. Perera, for the petitioner, was not understood by me as arguing thatmandamus lies to prohibit a person from acting unlawfully, but ratherthat, assuming there was a valid election under section 5 of Act No. 5of 1960, the respondent’s action in assuming managership of the twoschools amounted to a refusal to recognise the status of the petitioner asthe proprietor of unaided schools having the authority to appoint itsown manager or managers. It was argued that there was an impliedduty on the respondent to recognise the status of the two schools asunaided schools and of the petitioner as the proprietor thereof, and that thefailure to perform the duty ” cf recognising that status was sufficientto support an application for an order of mandamus. Mr. Tennekoon,however, contended that, if the grievance of the petitioner bethat the status of the schools cr of the proprietor is not being recog-nised by the respondent, there is the remedy of an action for a declarationof status, and, alternatively, a remedy by way of an injunction. Mr.Perera attempted to counter this contention by submitting that if thepetitioner is required to seek remedies in the District Court the processwill be so tardy as to defeat its object. It is, however, unnecessary for.me to discuss whether any other remedy or remedies which may be opento the petitioner will be less convenient or effectual, as I am of opinion
240
T. S. FERNANDO, J.—The Colombo Buddhist TheoaophicaX
Society Ltd. v. de Silva
that the preliminary objection raised is sound and that effect has to begiven to it. Mr. Perera has invited reference to section 6 of Act No. 5 of1960 as indicating that the Director of Education has certain functionsto perform in relation to unaided schools. Non-recognition of the statusof the schools, so it is said, involves a refusal by the Director to performcertain functions he is required by the statute to perform in respect ofsuch schools—see paragraphs (c) and (/) of section 6. It appears to meto be a sufficient answer to this contention to say that no refusal to per-form any specific function of the Director is being relied on in the petitionthat has been presented to the Court by the petitioner, the onlysubstantive grievance alleged being the Director’s act in assumingmanagership of the two schools in question.
I have been referred to the decision of this Court in Wijesinghe v. TheMayor of Colombo1 as showing that mandamus lies to restore a personto office. It is undoubtedly good law that mandamus lies to admit aperson to office of which he had never bad possession or of which hehas been dispossessed, but the office must be a public office. It cannotbe said that the petitioner has been hitherto deprived of the proprietor-ship of the school, but, even if it had been so deprived, it does not appearto me that proprietorship of the schools in question amounts to the holdingof public office ; nor indeed does managership of an unaided schoolamount to the holding of such office.
The substantive relief claimed by the petitioner is an order on thethe respondent to refrain from acting as manager of the two schools inquestion, and its real grievance is the non-recognition of the allegedstatus of the schools as unaided schools. Such non-recognition seemsto me to be essentially a matter to be questioned by an action fordeclaration of that status. The remedy sought by the application nowbefore me is, in my opinion, misconceived, and I would therefore upholdthe preliminary objection taken by the respondent and dismiss thisapplication with costs.
I fix the costs payable by the petitioner at Rs. 315/-.
Application dismissed.
1 (1948) 50 N. L. B. 87.