W. S. ALPHONSO APPUHAMY, Petitioner, and L. HETTI-ARACHCHI (Special Commissioner

022-NLR-NLR-V-77-W.-S.-ALPHONSO-APPUHAMY-Petitioner-and-L.-HETTI-ARACHCHI-Special-Commissioner.pdf


Alphonso Appuhamy v. H ettiarachchi
131
1973Present: Pathirana, J., and Rajaratnam, J.
W. S. ALPHONSO APPUHAMY, Petitioner, and L. HETTI-ARACHCHI (Special Commissioner, Chilaw) and another,
Respondents
S. C. 179/72—Application for a Mandate in the nature of a ,Writ of Mandamus
Local Authorities (Standard By-laws) Act (Cap. 261), s. 3—StandardBy-laws framed thereunder—By-law 5 of Part 15—Lease of theright to collect rents and fees from a public market belonging to alocal authority—Notice calling for tenders—Issue of the lease to atenderer other than the highest tenderer—Validity-—UrbanCouncilsOrdinance, s. 136—Constitution of Sri Lanka,
Articles 16 (2)(e), 18 (1)(a)—Mandamus or Injunction—Ex
parte application—Duty of petition to disclose all material facts.
Acting in pursuance of by-law 5 of Part 15 of the Standard by-laws framed by the Minister of Local Government under section 3of the Local Authorities (Standard By-laws) Act, the 1strespondent, who was the Special Commissioner of the Town ofChilaw, called for tenders for a lease to collect the rents and feesfrom a public Fish Market established under section 136 of the UrbanCouncils Ordinance. The petitioner was the highest tenderer bystipulating the sum of Rs. 150,199 as the price which he was willingto pay for the said lease. The 3rd highest tenderer was the 2ndrespondent, a co-operative society, whose tender was for the sum ofRs. 105,000.
The petitioner made the present application for a writ ofMandamus directing the 1st respondent to issue the aforesaid leaseto him. He averred that the 1st respondent, acting in excess or abuseof his powers and motivated by political and other extraneousreasons, was taking steps to substitute the 2nd respondent in placeof the petitioner as the lessee, for the sum of Rs. 150,199 which wasthe amount tendered by the petitioner. He further averred that the1st respondent was under a public and statutory duty to issue thelease to him.
The 1st respondent stated in his affidavit that in the TenderNotice calling for tenders it was expressly stated that he reservedto himself the right to accept or reject any one or all the tenders.
Held, that 1st respondent had acted correctly and legally withinthe terms of the by-law 5. There was no statutory or public dutyimposed on him to accept the petitioner’s highest tender. The by-lawstates that the lease could be given to. any approved person by a. private treaty. In the circumstances, the provisions of Article18 (1) (a) of the Constitution of Sri Lanka relating to equality ofall persons before the law and their rights to equal protection ofthe law could not be invoked by the petitioner.
Held further, that when an application for a prerogative writor an injunction is made, it is the duty of the petitioner to placebefore the Court, before it issues notice in the first instance, a fulland truthful disclosure of all the material facts ; the petitionermust act with uberrima fides.
132
PATHIRAXA, J.—Alphonso Appoha$ny <*. Hciiiarachchi
APPLICATION for a Writ of Mandamus.
M.Tiruchelvam, with Mark. Fernando, S. K. Sangakkara andRanil Wickremasinghe, for the petitioner.
H. W. Jayewardene, with A. K. Premadasa and J. C. Ratwatte,for the 1st respondent.
S. S. Wijeratne, for the 2nd respondent.
E. D. Wikramanayake, Senior State Counsel, with N. Sinne-tamby, State Counsel, as Amicus Curiae.
Cur. adv. vult.
January 26, 1973. Pathirana, J.—
The 1st respondent is the Special Commissioner appointedby virtue of an order made by the Hon’ble Minister of PublicAdministration, Local Government and Home Affairs dated
1.1972 to administer the affairs of the Town of Chilaw and toexercise the powers and perform the duties of the Chilaw UrbanCouncil.
The Urban Council had under Section 136 of the UrbanCouncils Ordinance established a public market known as the“ Chilaw Fish Market ”.
Parts 1 to 19 of the Standard by-laws framed by the Ministerof Local Government were in force in that area from 28.3.1971.Acting in pursuance of by-law 5 of part 15 of the Standardby-laws (vide Local Authorities (Standard by-laws) Act(Chapter 261), the 1st respondent decided to lease the right ofcollecting rents and fees from the said Chilaw Fish Marketfor the year 1973 by calling for tenders by Notice dated20.10.1972, marked “ S The Petitioner on 25.11.1972 dulytendered in response to the said Tender Notice. He stipulatedthe sum of Rs. 150,199 as the price which he was willing to payfor the said lease. When the tenders were opened by the Tender-Board of which the 1st respondent was a member, the Petitionerwas the highest tenderer. The 3rd highest tenderer was the 2ndrespondent, the Chilaw Fishermen Co-operative SocietyLimited, whose tender was for the sum of Rs. 105,000.
The Petitioner stated that having decided to lease the afore-said right of collecting rents and fees from the Chilaw FishMarket, the 1st respondent was taking steps to substitute the2nd respondent in place of the Petitioner as the lessee of thesaid Fish Market for the sum of Rs. 150.199 which was the
PATHIRAXA, J.—Alphonso App'ilm.i >; v. Jlctliarachchi133
amount tendered by the Petitioner. The Petitioner, therefore,made this application for a Writ of Mandamus ordering anddirecting the 1st respondent to issue a lease to the Petitionerfor the right of collecting rents and fees from the Chilaw FishMarket for the year 1973. His grounds were, firstly, that the 1strespondent was acting in excess or abuse of his powers and wasmotivated by political and other extraneous reasons in deprivingthe Petitioner of his legal right to the said lease, and therebyacting in violation of the Petitioner’s rights. Secondly, that the1st respondent was under a public and statutory duty to issuethe lease of the right of collecting the rents and fees from thesaid Fish Market for the year 1973, and that the 1st respondentwas attempting to act in violation, of the said duty.
The 1st respondent’s affidavit stated that in terms of thetender Notice calling for tenders it was expressely stated thathe reserved to himself the right to accept or reject any one orall the tenders, and he had therefore a right to exercise hisdiscretion in the best interest of the rate-payers and in doingso he was not bound to accept the Petitioner’s tender. He wassatisfied that the 2nd respondent, the Co-operative Society, wasthe most suitable of all tenders, and accordingly having inquiredfrom it if it was prepared to accept at the highest tenderedfigure, namely, Rs. 150,199, with the approval of the Commis-sioner of Local Government, after the Petitioner made thisapplication to this Court, he decided to accept the 2nd respon-dent as the lessee for the year 1973. He, therefore, rejected thePetitioner’s tender. The 1st respondent further stated in hisaffidavit that no steps were taken to substitute the 2nd respon-dent in place of the Petitioner as the lessee for the year 1973 asthe Petitioner was never the lessee and could not be consideredas such until the tender was accepted and he entered into alease.
After hearing Mr. Tiruchelvam, for the Petitioner, we dis-missed the application with taxed costs payable to the 1st and2nd respondents. I shall now give the reasons.
The Petitioner was fully aware when he tendered, that he didso in terms of the Tender Notice ‘ B ’ which expressly statedthat the 1st respondent reserved to himself the right to acceptor reject any one or all the tenders. He is, therefore, not entitlednow to complain that the 1st respondent was not entitled toreject his tender.
Although the Petitioner states that the 1st respondent is undera public and statutory duty to issue the lease to the Petitioner,nowhere in his petition and affidavit does he state the natureor content of this public and statutory duty. I have examined the
134
PATHIRAJN’A, J.—Alplionso Appuhaviy v. Hettiarachchi
relevant by-law. Under by-law 5 of part 15 of the Standardby-laws which relates to public markets a Council may lease theright to collect such rents and fees to any approved person—
by private treaty ;
by calling for tenders ; or
by putting up the right to public auction.
The powers of the Council in this case have admittedly beenvested in the 1st defendant. The 1st respondent in terms ofby-law 5 had called for tenders. But there is nothing in thisby-law which states that he is bound to give the lease to thehighest tenderer. This is quite sensible because it is not alwaysthe highest tenderer who is usually the most suitable person toundertake the venture. The only duty cast upon the Com-missioner under this by-law is that he can only lease the light,to collect the rents and fees: —
by private treaty ;
by calling for tenders; or
by putting up the right to public auction.
The by-law further states that the lease may be given to‘ any approved person ’ by calling for tenders. The Petitioner wasnot the person who was approved although he tendered, as histender was rejected by the 1st respondent.
In my view therefore, under by-law 5, there is no statutory orpublic duty imposed on the 1st respondent to accept thePetitioner’s highest tender. I must also add that in making thisdecision to give the lease to the 2nd respondent after negotiatingwith the 2nd respondent whether it was prepared to accept thetender at the rate tendered by the Petitioner, who was thehighest tenderer, the 1st respondent was still acting within theterms of by-law 5 which states that the lease may be given toany approved person by a private treaty. Whichever way onemay look at the matter, the 1st respondent had acted correctlyand legally within the terms of the by-law 5.
Mr. Tiruchelvam, possibly quite conscious of the weakness ofhis argument that there was a duty on the part of the 1strespondent to give the lease to the Petitioner by virtue of thefact that he was the highest tenderer next invoked the provi-sions of the Article 18 (1) (a) of the Constitution of Sri Lanka—Chapter VI—which deals with the fundamental rights andfreedoms—by virtually dragging it by its forelock. He submittedthat under this article all persons are equal before the law andentitled to equal protection of the law, and therefore, the 1strespondent, in accepting the tender of the 2nd respondent in.
I'ATHIR.AXA, J. —Alphonso Appuhamy v. Heltiarachchi
135
preference to that of the Petitioner was acting in violation of theConstitution. In my view, Article 18 (1) (a) of the Constitutionof Sri Lanka does not have the remotest relevance or bearing onthe decision of the 1st respondent to accept or reject the tenderof the right of collecting rents and fees of the Chilaw FishMarket provision for which is made under by-law 5 of theStandard by-laws which are in force in the town area of Chilawby a decision made under Section 3 of the Local Authorities(Standard by-laws) Act (Chapter 261), and adopted by resolutionduly published in the Government Gazette.
I must at this stage observe that had the Petitioner made afull disclosure of all material facts in the Petition and affidavitand apprised the Court thereof, this Court may not have issuednotice in the first instance.
Firstly, although in the Petition and affidavit, the Petitionerhad referred to the Notice marked “ B ” calling for tenders, acopy of which was pleaded as part and parcel of the Petition,he had not brought to the notice of Court both in the Petitionand affidavit in express language. that according to the terms ofthe tender Notice the 1st respondent reserved to himself the rightto accept or reject any one or all the tenders. Secondly, thePetitioner stated that the 1st respondent was attempting tosubstitute the 2nd respondent, in place of the Petitioner as thelessee of the said Chilaw Fish Market, and issue a lease to the2nd respondent. As was stated in the affidavit of the 1st respon-dent, the Petitioner was never the lessee for the year 1973 andcould not be considered as such until his tender was accepted,and he entered into a lease. Thirdly, according to by-law 5 the1st respondent can lease the right of collecting rents and fees toany “ approved person ” by calling for tenders. This importantqualification that only any person whose tender was approvedby the 1st respondent was entitled to a lease was not statedin the Petition and affidavit. Fourthly, the Petition and affidavitdo not state the nature of the public or statutory duty whichthe 1st respondent was obliged to discharge. I do not go to theextent of saying that the Petitioner had deliberately misled ordeceived this Court, but I must certainly say that it would havebeen very helpful if a full and fair disclosure of all the materialfacts were placed before the Court when the application wasfirst made and notice was asked for in the first instance.
The necessity of a full and fair disclosure of all the materialfacts to be placed before the Court when an application for awrit or injunction is made and the process of the Court isinvoked is laid down in the case of The King v. The GeneralCommissioners for the Purpose of the Income Tax Acts for the
136
PATH1RAXA, J.—Alphonso Appuhamy v. HUtiarctchchi
District of Kensington—Ex-parte Princess Edmond de Poignac— (1917)1 Kings Bench Division 486. Although this case deals witha writ of prohibition the principles enunciated are applicable toall cases of writs or injunctions. In this case a Divisional Courtwithout dealing with the merits of the case discharged the rule onthe ground that the applicant had suppressed or misrepresentedthe facts material to her application. The Court of Appeal affirmedthe decision of the Divisional Court that there had been asuppression of material facts by the applicant in her affidavitand therefore it was justified in refusing a writ of prohibitionwithout going into the merits of the case. In other words, sorigorous is the necessity for a full and truthful disclosure ofall material facts that the Court would not go into the meritsof the application, but will dismiss it without further examina-tion. Lord Cozens-Hardy M. R., after stating that the authoritiesin the books are so strong and so numerous quoted the highauthority of Lord Langdale and Rolfe B. in the case of Dalglishv. jarvie—2 Mac. & G. 231, 238, the head note of which states : —“ It is the duty of a party asking for an injunction tobring under the notice of the Court all facts material to thedetermination of his right to that injunction ; and it is noexcuse for him to say that he was not aware of theimportance of any facts which he has omitted to bringforward.”
He then quoted the observations made in the course of theargument by Lord Langdale : —
“ It is quite clear that every fact must be stated or, evenif there is evidence enough to sustain the injunction, it willbe dissolved.”
Lord Cozens-Hardy M. R., commenting on this stated —
“ That is to say, he would not decide upon the merits, butsaid that if an applicant does not act with uberrima fidesand put every material fact before the Court it will not granthim an injunction, even though there might be facts uponwhich the injunction might be granted, but that he mustcome again on a fresh application
Rolfe B., added : —
“I have nothing to add to what Lord Langdale has saidupon the general merits of the case ; but upon one point itseems to me proper to add thus much, namely, that the appli-cation for a special injunction is very much governed by thesame principles which govern insurance, matters which aresaid to require the utmost degree of good faith, ‘ uberrimafides.’
1 (1917) 1 K. B. 4 $6.
PATHIRANA, J.—Alphonso Appuhamy v. Ilettiarachchi
137
In cases of insurance a party is required not only to stateall matters within his knowledge, which he believes to bematerial to the question of the insurance, but all which in
point of facts are so
So here, if the party applying for a special injunction,abstains from stating facts which the Court thinks are mostmaterial to enable it to form its judgment, he disentitleshimself to that relief which he asks the Court to grant.”
Lord Cozens-Hardy M. R., adds this comment : —
“ That is merely oiie and perhaps rather a weightyauthority in favour of the general proposition which I thinkhas been established, that on an ex-parte applicationuberrima fides is required and unless that can be established,if there is anything like deception practised on the Court, theCourt ought not to go into the merits of the case, but simplysay, “ We will not listen to your application because of whatyou have done.”
Extending this principle to a writ of prohibition, Lord
Cozens-Hardy M. R., goes on to observe :—-
“ Then it is said that the rule may be true in cases ofinjunction where there is an immediate order granted, whichorder can be discharged, but that it has no reference at allto a case like a rule nisi for a writ of prohibition, which isnothing more than a notice to the other side that they mayattend and explain the matters to the Court. To so hold would,,T think, be to narrow the general rule, which is certainly notlimited to cases where an injunction has been granted. Ithas been applied by this Court, and certainly by the Courtsbelow, to an application for leave to serve a writ out of thejurisdiction. If you make a statement which is false orconceal something which is relevant from the Court,the Court will discharge the order and say “ You cancome again if you like, but we will discharge this order, andwe will apply the general rule of the Court to applicationslike this.” There are many cases in which the same principlewould apply. Then it is said “ That is so unfair ; you aredepriving us of our right to a prohibition on the ground ofconcealment or misstatement in the affidavit.” The answeris that the prerogative writ is not a matter of course. Theapplicant must come in the manner prescribed and must beperfectly frank and open with the Court.”
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PATHIRANA, J.—Alphonso Appuhamy v. Hettiarachchi
Carrington L. J., in the same case stated his view on thematter thus : —
“ Now the rule nisi or the order which was discharged isan essential preliminary to the issue of the writ of prohibition.If there is a defect in that essential preliminary step such asthat it ought to be treated as if it had not been taken, thenthe writ of prohibition cannot be granted, because the
essential preliminary to its issue does not exist
;It is perfectly well settled that a person
who makes an ex-parte application to the Court—that is tosay, in the absence of the person who will be affected by thatwhich the Court is asked to do—is under an obligation tothe Court to make the fullest possible disclosure of allmaterial facts within his knowledge, and if he does not makethat fullest possible disclosure, then he cannot obtain anyadvantage from the proceedings, and he will be deprived ofany advantage he may have already obtained by means ofthe order which has thus wrongly been obtained by him.That is perfectly plain and requires no authority to justifyit.”
Scrutton L. J., who was also associated on the same Bench•cited the words of Wigram V. C. in the case of Castelli v. Cook—(1849) 7 Hare, 89,94: —
“ A plaintiff applying ex-parte comes (as it has beenexpressed) under a contract with the Court that he will statethe whole case fully and fairly to the Court. If he fails to dothat, and the Court finds, when the other party applies todissolve the injunction, that any material fact had beensuppressed or not properly brought forward, the plaintiffis told that the Court will not decide on the merits, and that,as he has broken faith with the Court, the injunctionmust go. ”
Scrutton L. J., next cited the Judgment of Kay J., in the caseof Republic of Peru v. Dreyfus Brothers & Co., 55 L. T., 802,803 :
“ I have always maintained, and I think it most importantto maintain most strictly, the rule that, in ex-parte applica-tions to this Court, the utmost good faith must be observed.If there is an important misstatement, speaking for myself,,1 have never hesitated, and never shall hesitate until therule is altered, to discharge the order at once, so as to impressupon all persons who are suitors in this Court the importanceof dealing in good faith with the Court when ex-parte appli-cations are made.”
RAJARATNAM, .T.—Alphonso Appuhamy v. He.tlia.rachc.hi
139
He also cited a similar statement made by Farwell L. J. in thecase of The Hagen : —
“ Inasmuch as the application is made ex-parte full andfair disclosure is necessary, as in all ex-parte applications,and a failure to make such full and fair disclosure wouldjustify the Court in discharging the order, even althoughthe party might afterwards be in a position to make anotherapplication.”
Scrutton L. J., was however, inclined to take the view thatwhere the excess of jurisdiction was patent on the face of therecord, this principle will not apply, on the ground that a publicexcess of jurisdiction might grow into a precedent if notchecked. For this reason he distinguished the case of patentexcess from the cases which can only be found by going into theevidence.
In this application, the Petitioner had not only obtained notice,but had succeeded in staying further action in the matter untilthe final disposal of the application. Had not Mr. Jayewardene,who appeared for the 1st respondent, impressed upon this Courtthe extreme urgency of this matter to be taken up and disposedof on the 23rd of December, 1972, the men, women and childrenof the town of Chilaw and its outskirts would have found them-selves without fish, and as the connected application No. 780/72deals with ‘ the Chilaw Vegetable Market, without vegetableswhen the New Year 1973 dawned.
The application before us was one in which the principles setout in the case of Rex v. Kensington Income Tax Commissioners,could have been followed and the application dismissed in limine.
We, however, dealt with this matter on its merits and dismissedthe application with taxed costs payable to the 1st and2nd respondents.
Rajaratnam, J.—
I agree.
Learned Counsel for the petitioner submits that the1st respondent is under a public and statutory duty to issue thelease to the petitioner.
He has referred us to the relevant by-laws and far fromsatisfying us that a Writ of this nature lies in the totality of theby-laws and regulations, he almost conceded that he cannotmaintain this application without referring us to s. 18 of theConstitution Act. He submitted that he strongly relies ons. 18 (1) (a) of the Constitution Act which states that “ allpersons are equal before the law and are entitled to equal
140R A JAR ATNAJI J. AA.ho.iau Appuhawy v. j • • ttiv..
protection of the law In my view this is not relevant to theissue before us ; if it is, it is only after the petitioner establishesthat he has acquired a right to be protected. This section cannotmean that every person who is the highest tenderer for a leasemust of right by virtue of s. 18 (1) (a) of the Constitution Act begiven the lease. The grant of a lease according to the by-laws isleft to the discretion of the Special Commissioner to any approvedperson by private treaty or by calling for tenders and in thiscase the Commissioner has acted with a commendable sense ofresponsibility in approving as lessee the 2nd respondent, aCo-operative Society, which had the lease of the fish market forthe previous year. The 2nd respondent is a Co-operative Societyand the 1st respondent has acted in the highest interest of theLocal Authority and the citizens by granting the lease to theChilaw Multipurpose Co-operative Society at the highest bid. Thiswas a step he could have taken and it goes to his credit and hehas acted also in the highest interest of the public perhapsunconsciously dr consciously in conformity with the principles ofthe State Policy as laid down in s. 16 (2) (e) of the ConstitutionAct—“ the development of co-operative property in the distribu-tion and exchange as a means of ending exploitation of manby man ”.
I fail to understand how the petitioner if he had no right to thelease under the by-laws and regulations could by reason ofs. 18 (1) (a) claim a right which he never had under the by-laws,and regulations of the Urban Council.
If the petitioner acquired a legal right and the 1st respondenthad a legal duty to grant the lease to the petitioner then a Writ ofMandamus was available in any case before and after the Consti-tution Act of Sri Lanka. Section 18 (1) (a) enshrines in ourConstitution the concept and guarantee of the equality of allpersons before the law and their rights to equal protection ofthe law. This provision in the Constitution cannot be stretchedto persuade us to force the grant of a right of lease to thepetitioner, when he has no such right to a lease under any lawsof the country nor does this provision nullify the right of thespecial Commissioner to grant the lease to a person he approveswhen he had a right to grant the lease even by private treaty.At. the worst the petitioner has suffered the fate of every un-successful tenderer, although he made the highest bid. But thefact of making the highest bid does not in law entitle by thatreason alone a person to a lease nor does it take away the dis-cretion of the Commissioner to grant the lease to whomsoever heapproves.
Ounaaekera v. Somapala
141
In this case, even the terms of the tender notice held out noguarantee that the highest will be the successful tenderer.
The 1st respondent has in my view shown no mala fides inselecting the 2nd respondent as a lessee. The two circumstancesthat the 2nd respondent was a co-operative Society and also theprevious lessee are sufficient to counter any allegation 6f malafides whatsoever.
I find it impossible to be convinced that where the petitionerwho had no right to the lease, on the bare fact that he had madethe highest tender obtained that right under s. 18 (1) (a) of theConstitution Act. This provision does not protect non-existentrights—to put it briefly and bluntly.
Learned Counsel for the petitioner has totally failed to relatethe equal protection of the law as guaranteed by the Constitutionto the right of tbs lease which he demands. I was unable tounderstand during the whole course of his argument how he canavail himself of this constitutional guarantee when he has failedto establish his right to the lease. The Constitutional guaranteehas by no means changed the laws to give a right to everyhighest tenderer to have his tender accepted.
With regard to the other matters in my brother’s judgmentwhile agreeing with the principles he has enunciated, I repeatwhat he has stated i: I do not go to the extent of saying that thepetitioner has deliberately misled or deceived this Court ”.
Application dismissed.