EMPOWERMENT OF THE HIGH COURT WITH WRIT JURISDICTION
WRIT JURISDICTION OF THE HIGH COURT
IN THE COURT OF
APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
C A.(PHC) 122/2010
PHC Garnpaha 1/2008 Writ
Gajasinghe Janak
Prasad De Silva and ,Preethika De Silva, No.2D, Horakelewatte, Horagasmulla,
Divulapitiya.
PETITIONER -APPELLANTS
Vs.
L. P. Harischandra,
No.72, Divulapitiya, Horagasmulla,
PLAINTIFF -RESPONDENT
M.H. Abeysinghe
Bandara, Assistant Commissioner of gricultural Development,
Sri Bodhi Road,
Gampaha
and two others.
RESPONDENTS- RESPONDENTS
BEFORE: A.W.A.SALAM,J
& SUNIL RAJAPAKSE, J
COUNSEL: Dr. Sunil Cooray for the Petitioner and
Anusha Samaranayake SSC for the 2nd, 3rd and 4th respondents.
DECIDED ON:
26.08.2014
A.W.A. SALAM, J.
(P/CA)
This appeal has been preferred against the judgment of
the learned High Court Judge dated 6 October 2010.
By the said judgment the learned High Court Judge dismissed
an application made by the petitioners-appellants (referred to in the rest of
this judgment as the "appellants") seeking a writ of certiorari to
quash the order made by the 2nd respondent-respondent (referred to
in the rest of this judgment as the "2nd respondent") and the order made in the
proceedings of inquiry held into the complaint of the 1st respondent-respondent
(referred to in the rest of this judgment as the "1st respondent")
by the 2nd and 3rd respondents-respondents (referred to
in the rest of this judgment as the 2nd respondent and/or 3rd
respondent as the case may be).
The learned High Court Judge dismissed the application
for a writ of certiorari upholding the preliminary objection that she has no
jurisdiction to entertain an application for a prerogative writ by reason of
the decision of the Supreme Court in M. P Wijesooriya vs Nimalawathie
Wanigasingha and others (SC appeal No 33/2007-SC (SPL) L.A No 41/07.
The decision in M. P Wijesooriya vs Nimalawathie Wanigasingha
and others needs to be discussed at the outset with a view to ascertain the
applicability of it to the present appeal. In that case, the landlord of a paddy
field complained against the tenant cultivator of the failure to provide the
due share of the paddy yield as per agreement between the two. An inquiry was
held into the complaint by the Assistant Commissioner of the Agrarian Services
of the relevant area and order made against the tenant cultivator directing him
to provide the due share of the paddy yield to the owner of the paddy field. As
the tenant cultivator failed to provide the due share of the paddy yield, the
Assistant Commissioner issued a quit notice on the tenant cultivator. Aggrieved
by the said decision of the Assistant Commissioner, the tenant cultivator
preferred an appeal to the Commissioner General of Agrarian Development who
ordered the setting aside of the findings and order of the Assistant
Commissioner.
Aggrieved by the order of the Commissioner General of Agrarian
Development the owner of the paddy field invoked the writ jurisdiction of the
Provincial High Court of the area seeking to have the decision of the said
Commissioner General reviewed. The High Court in the exercise of its writ
jurisdiction granted relief to the landlord (owner of the paddy field).
The litigation did not end at that point. The tenant cultivator
thereupon chose to invoke the revisionary jurisdiction of the Court of Appeal
under Article 138 of the Constitution to have the decision of the High Court revised
and set aside on the ground that the High Court lacked jurisdiction to review
an order/decision made by the Commissioner General. At the conclusion of the
revision application thus filed, the Court of Appeal held that the High Court
in fact lacked jurisdiction to review the order/decision of the Commissioner
General. The tenant cultivator remained dissatisfied with the decision of the
Court of Appeal, sought special leave to appeal to the Supreme Court on the
question as to whether the, Court of Appeal had erred in law by holding that
the Commissioner General of Agrarian Development is not an officer exercising
powers within the Province.
The above question was raised by the tenant cultivator
in the Supreme Court, mainly because Article 154 (4) (b) of the Constitution
empowers the High Court inter alia to issue writs of certiorari, prohibition
and mandamus against any person exercising powers within the Province.
It may be useful at this stage to reproduce the
relevant Article of the Constitution which empowers the High Court to issue
writs. It reads as follows ..
154 P (4).
Every such High Court shall have jurisdiction to
issue, according to law (b) order in the nature of writs of certiorari,
prohibition, procedendo, mandamus and quo warranto against any person
exercising, within the Province, any power under (i) any law; or (ii) any
statutes made by the Provincial Council established for that Province, in
respect of any matter set out in the Provincial Council List.
Act No 19 of 1990 provides for matters regarding the procedure
to be followed and the right of appeal to, and from, the High Court established
under Article 154P of the Constitution; and for matters connected therewith or
incidental thereto. In terms of Section 3 of the said Act titled High Court of
the Provinces (Special Provisions) Act, provides that a High Court established by
Article 154P of the Constitution for a Province shall, subject to any law,
exercise appellate and revisionary jurisdiction in respect of orders made by
Labour Tribunals within that Province and orders made under Section 5 or
Section 9 of the Agrarian Services Act, No. 58 of 1979, in respect of any land
situated within that Province.
In the case of WERAGAMA vs EKSATH LANKA WATHU KAMKARU
SAMITHIYA AND OTHERS 1994 Sri Lanka Law Reports volume 1 at page 293, the
Supreme Court held inter alia that under Article 154P, introduced by the
Amendment to the Constitution, the High Courts of the Provinces had not been
conferred with the jurisdiction to issue writs of whatever nature in respect of
the orders, awards and decisions of the Labour Tribunals.
Referring to the background in which the 13th
Amendment to the Constitution was passed the judgment in the case of WERAGAMA
found that the Thirteenth Amendment of the Constitution revealed no intention
on the part of the Legislature to devolve judicial power. The court observed in
that case that it was merely a re-arrangement of the jurisdictions of the
judiciary.
In the circumstances, the Supreme Court further held
that to endorse the view that a liberal interpretation should be adopted with
regard to the powers of the High Court and to hold that the High Court is
vested with powers to issue writs of whatever nature against the decisions of
Labour tribunal would be a clear trespass into the Legislative domain. Hence,
the Supreme Court in the case expressed in no uncertain language that Article
154P, introduced by the Thirteenth Amendment, conferred no writ jurisdiction in
respect of the decisions of the President of Labour Tribunals.
The same interpretation given in respect of Labour Tribunals
also should be adopted in respect of the decisions of the Agrarian Development
Act No 46 of 2000 subject to the variation as to whether a particular decision has
been given by an officer under the said Act at a provincial level or in the
exercise of island wider powers.
The learned High Court Judge in the impugned order placed
reliance in the judgment of M. P Wijesooriya vs Nimalawathie Wanigasingha
referred to above. The pith and substance of the judgment in that case is that
the exercise of the island wide powers by the Commissioner General of Agrarian
Development within the domain of the jurisdiction of the Court of Appeal and
not the High Court.
The impugned order in this case has been made by the Assistant
Commissioner placed at the Provincial level but not in the exercise of his
island wide powers. In other words, the Assistant Commissioner who made the impugned
order is not empowered to make a similar order outside the area to which he is
appointed. No doubt he has exercised the powers of the Commissioner General under
Section 38 (5) which empower him to exercise all or any of the Powers of the
Commissioner-General within the area to which such Assistant Commissioner is
appointed.
In the circumstances, the impugned order cannot be taken
as one that has been delivered by the Commissioner General. When the Assistant
Commissioner exercises the powers given to the Commissioner General at
Provincial level, in my opinion he exercises powers vested in him on provincial
basis. In the circumstances, the judgment cited by the learned High Court Judge
as being applicable to decide the question of jurisdiction is not relevant to
the instant appeal.
As such, the learned High Court Judge has clearly misdirected
himself with regard to the applicability of the decision in the case of M. P
Wijesooriya vs Nimalawathie Wanigasingha and others (SC appeal No 33/2007-SC
(SPL) L.A No 41/07).
Hence, this appeal is allowed and the impugned
judgment of the learned High Court Judge is set aside. Accordingly, the case is
sent back to the High Court to' consider the application of the
"appellants" on its merits.
Appeal allowed and case sent back to the High Court
for rehearing. (Emphases are mine)
President/Court of Appeal
Sunil Raj apakse, J
I agree
Judge of the Court of Appeal
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