311 undoubtedly doing, there could not be a review of

his ministerial act. H e r a t , J .. added:

"It is trite lav that remedy by way of Certiorari only lies to question and quash a judicial act. It does not lie to question or quash a ministerial or executive act, even if done illegally. Such an act, even if illegal or ultra vires, must be canvassed by a different procedure „ 11 ^ 2

The Board appealed against that decision to the Privy 313

Council. Allowing the appeal, the Privy Council expressly held that a decision to take over a school

Linder section 11 (b)^*^ of the i960 Act, an d a

decision to vest the school's property in the Crown 315

under section 4 of the 1961 Act, were both functions requiring the due observance of Natural Justice.

Lord Pearce w r o t e :

"With all respect to the learned Judge, it is not correct to regard the Minister's act as purely ministerial. It was not contested below nor before their Lordships that the Minister was acting in a judicial or quasi judicial capacity in satisfying himself whether there had been a contraven­

tion. And until he was so satisfied he had no jurisdiction to make the order. He mtist,

therefore, in satisfying himself on that point observe the rules of natural justice. He must give the appellants notice of what was charged against them and allow them to make representations in answer."^^6

Relying on the report issued by the Minister of

01 rr qi Q

Information on the Minister's view of his rights under the two Acts, the Privy CoLincil

concluded that it was clear that the Minister had misconceived his rights and therefore directed the

Supreme Court of Ceylon to issue the writ of Certiorari prayed f o r .

V I I I . C onclusions

319

The Maradana Mosque decision by itself raised no cause for comment. Lord Pearce's judgment was in line with what the Privy Council had said once before

320

in Nakkuda All v. Jayartne. Where the dispute in question is characterised as one involving a judicial or a quasi— judicial activity, then the requirement to observe the maxim audi a]teram partem becomes imperative. But where, as it was said in Nakkuda A l i 1s case, that the act was neither judicial nor quasi— judicial, then the dispute is not amenable to review by the courts.

Lord Radcliffe made that distinction abundantly clear in the following passage:

*'It is a long step in the argument to say that because a man is enjoined that he must not take action unless he has reason­ able ground for believing something he can only arrive at that belief by a course of conduct analagous to the judicial process. And yet, unless that proposition is valid, there is really no ground for holding that the Controller is acting judicially or quasi-judicially when he acts under this Regulation. If he is not under a duty so

to act then it would not be according to law that his decision should be amenable to review and, if necessary, to avoidance by the procedure of Certiorari• ?1

-L

The distinction made by the Privy Council in Nakkuda A l i 1s case became a useful method for successive

administrations on the Island to protect governmental acts from judicial review by casting them outside the area of judicial and quasi-judicial acts. The Maradana Mosque decision was based on the supposition that there it was a judicial or a quasi-judicial act. The failure to comply with the requirements of natural justice, therefore, resulted in the issuance of the writ of Certiorari against the Minister of Education.

Several months after the Privy Council had

delivered their opinion in The Maradana Mosque c a s e , 322

the Board had Puravanpah v. Fernando . yet another Appeal from Ceylon, before them. The Municipal Council of Jaffna had been dissolved by the Minister of Local

Government. This was done under s. 277 of the Municipal Council Ordinance. Under that section, the Minister was empowered to dissolve a local government body if it

appeared to him, "that a Municipal Council is not

competent to perform, or persistently makes default in the performance of, any duty or duties imposed upon it

The Minister, before having the Municipal Council dissolved, did not provide the Council an opportunity to make representations in support of the view taken by the Council that it should not be dissolved.

Durayappah, who was the Mayor at the time commenced these proceedings seeking Certiorari to quash the

Minister's order and for an interim injunction restraining the new appointees from replacing the functions of the Municipality. The Privy Council held that the failure to provide an opportunity to make representations constituted a violation of natural justice - the maxim audi alteram partem had not been observed and therefore the ministerial order was 'viodable*. But the Board found that the

failure of the Council to take steps to have that order rescinded while the Council was still a legal person, deprived the appellant from a right to seek Certiorari on its own behalf or on behalf of the non-existing Council.

The decision raises two issues of some significance. First, it suggests that in disputes where there has been a violation of natural justice, the act done or the Order issued by the authority in question becomes 'voidable* and not 'void'. This distinction had arisen out of the

speeches of their Lordships in the House of Lords in

923 324

Ridge v, B aldwin. ^ There, while Lords Ever s hed, Morris and Devlin had declared a power exercised in violation of natural justice to be 'voidable1, Lords Reid and Hodson had considered such a power to be 'void'* As V an den Heever. J *, had once said with

reference to the distinction between 'void' and 'voidable* that an attempt to sort that distinction would be like an attempt by "blind men. looking in a dark room for a

329

black cat which wasn't there". The difficulties perceived by this kind of distinction has been noted by

330

some commentators. Professor Vade who is one of them

had concluded that: .

"The Courts interfere with administrative action on two grounds only: that it is ultra vires (void); and that it shows

error on the face of the record (voidable). Action which is quashed on grounds not appearing on the face of the record (such as mistake as a 11 jurd sdictional' subject- matter or procedural error or abuse of discretion) must therefore be ultra vires and void.

This type of distinction helps the Courts in its choice of remedies. The view that the Act or the Order of the Minister is 'voidable' provides the Court with a basis inter alia for protecting the rights acquired during the interim period and to order the applicant to seek

332

alternative relief. This aspect of the judgment in Ridge v. Baldwin has been incorporated into the Law of Sri Lanka through the Durayappah decision

The second aspect of the Durayappah case concerns the dichotomy between judicial and q u a s i —judicial acts and Ministerial acts which determine whether or not Certiorari would lie. This was an inheritance from Nakkuda A l i *s case. Some time before Durayappah was

decided by the Privy Council, the House of* Lords had decided in Ridge v. Baldwin that the courts have an inherent power to strike down any act or order which had been done or issued in violation of 'natural

justice*. This the House of Lords thought was avail­ able within the writ of Certiorari whether or not the act or order was ministerial or judicial or quasi- judicial. Lord Reid commenting on Nakkuda Ali's case w r o t e :

"This House is not bound by decisions of the Privy Council, and for my own part nothing short of a decision of this House directly in point would induce me to accept

the position that, although .an enactment expressly requires an official to have

reasonable grounds for his decision, our Law is so defective that a subject cannot bring up such a decision for a review however seriously he may be affected and however obvious it may be that the official acted in breach of his statutory obligation.

During the course of his advice, in Purayap pah v. F e r n a n d o , Lord U p j o h n , in the Privy Council, alluded to this wider basis upon which judicial review was made available by Lord Reid in Ridge v. B aldwin. First, having rejected the idea that judicial review was limited to any particular category of acts or

orders, Lord Upjohn said:

"These various formulae are introductory of the matter to be considered and are given little guidance upon the question of audi alteram p a r t e m . The statute can make itself clear upon this point and if it does cadit quaestio. If it does not then the principle stated by Byles J .. in Cooper v. Wandsworth Board of Wor k s 334 must be applied. He said: 'a long course of decisions, beginning with Dr. Bentley*s c a s e .335 and ending with some very recent cases, establish, that, although there are no positive words in the statute requiring that the party shall bo heard, yet the justice of the common law will supply the omission of the legislature•'"336

The thrust of the Privy Council decision, therefore, 337

was to broaden the rule in Nakkuda A l i . To that extent the Durayappah decision brings the law of

Sri Lanka into line with Ridge v. Baldwin.. The effect on such decisions as The Maradana Mosque C a s e , now,

o o O

is to make it unnecessary for the courts as H e r a t . J » did, to characterise the power as one which would in its exercise involve a judicial or a quasi-judicial act. It would now suffice if the courts would keep in mind three matters when considering whether there should be an observance of the maxim audi alteram partem so as to satisfy the requirements of ‘natural justice'• These

three matters are as follows:

"First, what is the nature of the property, the office held, status enjoyed or services

to be performed by the complainant of injustice. Secondly, in what circumstances or upon what occasions is the person claiming to be entitled to exercise the measure of control entitled to intervene* Thirdly, when a right to intervene is proved, what sanctions in fact is the latter entitled to impose upon the other. It is only upon a consideration of all these matters that the question of application of the principle can properly be determined.’'

The Durayappah decision should to a large extent subject the activities of the state to the scrutiny of the Courts. In Sri Lanka, where Governments have, to a significant extent asserted powers which are by statute declared to be beyond scrutiny, by the Courts, it is somewhat

reassuring that in areas where by a statute the State had failed to protect itself from the C o u r t s ’ scrutiny, Courts can now enquire into both the Ministerial acts and judicial or quasi-judicial acts done or orders

issued by the State. This power of review is determined principally under the three guidelines stated above

leaving the types or categories of acts and orders which may become subject to this kind of scrutiny somewhat open-ended and undefined.

The thrust of the Durayappah case was to limit the S t a t e ’s power to legitimise policy through the vehicle of* the law. To the extent to which the State may use the law to blend policy with expediency, the Durayappah decision adds a much needed proviso; namely that this process of* blending policy with expediency requires to be carried out in consultation with the people who

comprises the society and who may have been the catalyst for that policy. In this curious way law in fact

3^1