Dr.Weerasooriya Vs. Wijeweera, Director General of Customs & Others (22.06.2020)
Dr. P. B. Weerasooriya Vs. J.P.Wijeweera, Director General of Customs & Others [Case No. C.A. (Writ) 2S9/2014, Decided On: 22.06.2020] Download
Judgement by Janak De Silva J, N. Bandula Karunarathna J agreeing.
Article 10 of CO; Subsequent approval by the Cabinet, whether the Minister’s order is valid; meaning of nullity in administrative law; presumption of validity; an impugned decision should be specifically challenged;
The Petitioner, a public servant, utilized a special concessionary rate facility to import a vehicle, and imported a brand-new Toyota Prado KDJ150 Diesel 7-seater car through Toyota Lanka (Pvt) Ltd of which the CIF value was US$ 35,000 according to the Petitioner. The Petitioner is challenging the actions of the customs in valuing the vehicle according to Gazette bearing no. 1857/3 dated 07.04.2014, for which the Minister had not obtained approval of the Cabinet before the same was published.
Quotes:
The words in the interest of national economy or for any other reason [in Section 10] in my view indicate that what is contemplated in this article is a matter of policy. It is in this context that the legislature has required the approval of the Cabinet of Ministers.
[Referred to] Ratnasiri and Others v. Ellawala and Others [(2004) 2 Sri.L.R. 180] [which] held that the Public Service Commission as well as a Committee of the Commission or a public officer exercising delegated authority may in appropriate circumstances ratify an order made or action taken by a public officer without authority and that there is nothing in the Constitution or any law to prevent the Respondent Secretary, from making a decision in regard to a matter where some person or body of persons has previously made some decision without any authority to do so. Court did refer to established administrative practice of taking urgent action whenever exigencies of the service so demanded and obtaining necessary covering approval thereafter, a practice which is often resorted to and is sanctioned by administrative procedures and judicial decisions [Rajapakse v. Tissa Devendra, Chairman, Public Service Commission and Others (1999) 2 Sri.L.R. 331].
I see no reason why this rationale should not apply in the application of Article 10 of Schedule E of the Customs Ordinance. The interest of national economy may need urgent action to be taken there under by the Minister subject to ratification by the Cabinet of Ministers. Therefore, I hold that the subsequent approval of the Cabinet of Ministers on 04.09.2014 (X26) of the Gazette bearing no. 1857/3 dated 07.04.2014 (X17) gives it validity.
[I]t is trite law that rights of the parties must be determined as at the date of institution of proceedings or action. [Jayaratna v. Jayaratne and another (2002) 3 Sri. L. R. 331, Sithy Makeena and others v. Kuraisha and others (2006) 2 Sri. L. R. 341J and other cases Referred to].
[Quoted with] approval Lord Denning in Mcfoy v. United Africa Co. Ltd. [(1961) 3 All E.R. 1169 at 1172J where he said “You cannot put something on nothing and expect it to stay there, it will collapse”.
Clive Lewis, Judicial Remedies in Public Law, 5th ed ., South Asia Edition (2017) in discussing the meaning of null and void in Administrative Law states (page 185):
“The primary concern here is the meaning of nullity or voidness solely in the context of the remedies granted by courts. The concept of nullity has been used to solve other problem arising in administrative law. For remedial purposes, the orthodox view is that an ultra vires act is regarded as void and a nullity. An act by a public authority which lacks legal authority is regarded as incapable of producing legal effects. Once its illegality is established, and if the courts are prepared to grant a remedy, the act will be regarded as void from its inception and retrospectively nullified in the sense that it will be regarded as ever incapable of ever producing legal effects.”
Thus, even where an act of a public authority is ultra vires and a nullity, for remedial purposes the illegality must be established before a court.
As stated by Wade and Forsyth, Administrative Law, 9th Ed., Indian Edition, 281:
“”the court will treat an administrative act or order invalid only if the right remedy is sought by the right person in the right proceedings”
Prior to Mcfoy v. United Africa Co. Ltd, this approach was reflected in the statement of Lord Radcliffe in Smith v. East Elloe Rural District Council [(1956) A.C. 736, 769-770] where he held:
“An order, even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead . Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.”
In fact, Wade and Forsyth, Administrative Law (supra page 305), states that the statement of Lord Denning in Mcfoy v. United Africa Co. Ltd.(supra) relied on by the Petitioner is not the correct position in law.
Wade and Forsyth, Administrative Law (supra) page 304, after restating the above statement of Lord Radcliffe sets out the correct position as follows :
“This must be equally true even where the ‘brand of invalidity’ is plainly visible for there also the order can effectively be resisted in law only by obtaining the decision of the court. The necessity of recourse to the court has been pointed out repeatedly in the House of Lords and Privy Council, without distinction between patent and latent defects. Lord Diplock spoke still more clearly [Hoffmann-La Roche & Co. v. Secretary of State for Trade & Industry (1975) A.C. 295 at 366], saying that It leads to confusion to use such terms as ‘voidable’, ‘voidable ab initio’, ‘void’ or ‘a nullity’ as descriptive of the status of subordinate legislation alleged to be ultra vires for patent or for latent defects, before its validity has been pronounced on by a court of competent jurisdiction .”
This approach is consistent with the ‘presumption of validity’ according to which administrative action is presumed to be valid unless or until it is set aside by a court [Hoffmann-La Roche and Co. v. Secretary of State for Trade & Industry (1975) A.C. 295]. However, this ‘presumption of validity’ exists pending a final decision by the court [Lord Hoffmann in R v. Wicks (1998) A.C. 92 at 115, Lords Irvine LC and Steyn in Boddington v. British Transport Police (1999) 2 A.C. 143 at 156 and 161, and 173-4].
This presumption applies to subordinate legislation as well. It is in this context that Lord Irvine LC in Boddington v. British Transport Police [(1999) 2 A.C. 143 at 158] held :
“The Anisminic decision established, contrary to previous thinking that there might be error of law within jurisdiction, that there was a single category of errors of law, all of which rendered decision ultra vires. No distinction is to be drawn between a patent (or substantive) error of law or a latent (procedural) error of law. An ultra vires act or subordinate legislation is unlawful Simpliciter and, if the presumption in favour of its legality is overcome by a litigant before a court of competent jurisdiction, is of no legal effect whatsoever.”
Accordingly, I reject the proposition of the learned Counsel for the Petitioner that as X17 is a nullity, there is no need for it to be set aside. Even if X17 is a nullity as alleged by the Petitioner, the ‘presumption of validity’ applies and it is to be considered as valid until and unless its legality is successfully challenged in appropriate proceedings.
[T]he Petitioner has failed to pray for a writ of certiorari to quash the decision by which a higher duty was charged from him in allowing him to clear the imported vehicle. In Weerasooriya v. The Chairman, National Housing Development Authority and Others [C.A. Application No. 866/98, C.A.M. 08.03.2004] Sripavan J. (as he was then) held that the court will not set aside a document unless it is specifically pleaded and identified in express language in the prayer to the petition.
*Note: Editor’s interpolations in quotes are within square brackets. The paragraphs quoted may not be in the same sequence as in the judgement.
Editor’s comment: While the Court holds that the order of the Minister is valid because subsequent approval of the Cabinet of Ministers was obtained, the judgements shows no any exigencies that should have existed for the minister to act without prior approval of the Cabinet of ministers, which is expressly provided as necessary by Section 10 of the CO. This seems to be a consideration the Court has not given attention to, and if there was no such exigencies existing, the act of the Minister was ultra vires and then the subject order should have been declared null and void and quashed, which the Petitioner had duly prayed for.
