Durayappah v Fernando
| Jurisdiction | UK Non-devolved |
| Court | Privy Council |
| Judgment Date | 1967 |
| Year | 1967 |
| Date | 1967 |
Ceylon - Crown practice - Municipal council - Dissolution by minister - Exercise of power - Requirements of natural justice - Whether minister's order a nullity or voidable - Whether voidable only at instance of party aflected -
By section 277 (l) of the Municipal Councils Ordinance (c. 252) as amended by Act No. 12 of 1959:
“If … it appears to the Minister that a municipal council is not competent to perform, or persistently makes default in the performance of, any duty or duties imposed upon it, or persistently refuses or neglects; to comply with any provision of law, the Minister may, by Order … direct that the council shall be dissolved …..”
In December, 1963, at the general local election 18 councillors were elected to Jaffna Municipal Council for a term of three years. Four mayors were successively elected within the council's troubled two and a half years of office, the last mayor being the appellant. Complaints as to the conduct of the council and the councillors were made to the Minister of Local Government who sent a commissioner to inquire into the matter and make a report. The commissioner visited Jaffna on May 27 and 28, 1966, and had full access to all the minutes of the council but did not ask any questions or give any member of the council any opportunity of expressing his views on any matter. On May 29 the Minister received his written report and on the same day made an order stating that it appeared to him that the council was not competent to perform the duties imposed upon it and that accordingly the council be dissolved and superseded; and on May 30 the Governor-General appointed three special commissioners to exercise, perform and discharge the rights, privileges, powers, duties and functions under the Ordinance.
The appellant, in his individual capacity as mayor and independently of the council, petitioned for mandates in the nature of writs of certiorari and quo warranto to quash the Minister's order, to annul the appointments of the three special commissioners and to declare the appellant the duly elected mayor of the council entitled to act as such until the election of a new mayor according to law.
The Supreme Court (Sansoni C.J. and Siva Supramaniam J.) dismissed the petition, following its earlier decision in Sugathadasa v. Jayasinghe (
On appeal:—
Held, (1) that in considering whether the principle audi alteram partem was applicable, the matters to be considered were (a) the nature of the property, the office held, the status enjoyed or the services to be performed by the complainant of injustice; (b) in what circumstances or upon what occasions was the person claiming to be entitled to exercise the measure of control entitled to intervene, and (c) upon proving the tight to intervene what sanctions in fact was the latter entitled to impose on the complainant (post, p. 349D–E).
(2) That as to (a) the legislature had set up by statute municipal authorities with a considerable measure of independence from the central government within defined local areas and fields of government, and no Minister had the right to dissolve such an authority without allowing it the right to be heard upon that matter unless the statute was so clear that the council plainly had no right of self-defence (post, pp. 349F–350B).
(3) That as to (b) the Minister could dissolve the council either if it was not competent to perform its duties (inability to undertake its duties, which might arise from circumstances outside anyone's control, was not the test as to incompetence), or if it persistently made default in the performance of its duties, or if it persistently refused or neglected to comply with any provision of law (post, p. 350C); that section 277 conferred on the Minister a single power to act in the event of one or more closely allied failures and he could do so only after observing the principle audi alteram partem (post, p. 351C).
(4) That as to (c), the sanction which the Minister could impose involved the dissolution of the council and therefore the confiscation of all its properties; that a statutory corporation such as a municipal corporation, like every trading corporation, owned its property and therefore the principle applied that no man was to be deprived of his property without having an opportunity of being heard, and the Minister had been in error (post, pp. 351E–352C).
(5) That the Minister's order was not a nullity but was voidable only at the election of the council, and although the council should have been given the opportunity of being heard in its defence it chose not to complain and took no step to protest against its dissolution; that accordingly the appellant, as mayor, did not have the right to interfere independently of the council, unless he was representing the council, or suing on its behalf, or the council could not be the plaintiff by reason of circumstances which rendered it impracticable for its members to meet to pass the necessary resolution, which was not the present case, and accordingly he could not maintain this action (post, pp. 352G, 355C–F).
Per curiam: The words “void and voidable” have well-understood meanings when dealing with questions of propriety or contractual rights. It is better, in the field where the subject-matter is whether some order which has been made or whether some step in some litigation or quasi-litigation is effective or not, to employ the verbal distinctions between whether it is truly a “nullity,” that is to all intents and purposes, of which any person having a litigation interest in the matter can take advantage, or whether it is “voidable” only at the instance of the party affected (post, p. 353D–F).
Judgment of the Supreme Court of Ceylon affirmed on different grounds.
APPEAL (No. 29 of 1966) from a judgment and order (September 22, 1966) of the Supreme Court of Ceylon (Sansoni CJ. and Siva Supramaniam J.) dismissing a petition by the appellant, Alfred Thangarajah Durayappah, for mandates in the nature of writs of certiorari and quo warranto (A) to quash the order (May 29, 1966) of the fourth respondent — Murugeysan Tiruchelvam, the Minister of Local Government — and to annul the appointments as special commissioners of the first respondent, W. J. Fernando, the second respondent, N. Nadesan, and the third respondent, S. C. Manica Vasagar; (B) to grant an injunction to restrain the first, second and third respondents from exercising the functions of special commissioners: and (C) to declare the appellant the duly elected mayor of the council entitled to act as such until the election of a new mayor according to law.
1966. December l3, 14, 15. T. O. Kellock Q.C., Montague Solomon and M. I. Hannavi Haniffa for the appellant. While it was an issue in the lower courts, it was no longer disputed that the Minister acted in good faith, and, that, in fact he would have given the council the opportunity of being heard but for the urgency of the case, as he or his advisers regarded it. The principal proposition was that the principles of natural justice were applicable to a decision by the Minister acting under section 277 of the Municipal Councils Ordinance, 1947.
First, the council was constituted under the Municipal Ordinance as the municipal authority for Jaffna, a very large and important town and district. The ordinance conferred upon the council full powers and duties of a local authority. Secondly, the representations made to the Minister against the council made grave allegations of misconduct against the appellant and the council, expressly charging them with maladministration, violation of the law, bribery, corruption, intimidation and thuggery. The Minister in his affidavit did not anywhere suggest that the appellant or the council had been informed of the nature of the allegations made against them, or, given an opportunity of meeting them. He explained his failure to do so on the ground of “the urgency of the situation to the extent indicated in the report of the first respondent (the commissioner of local government).” This made him decide to take immediate action. The commissioner's report admitted “the fullest co-operation of the mayor (the appellant) …and other municipal staff.” The report was based entirely on the minutes of the council meetings which were readily made available to the commissioner by the appellant and the council staff. The report referred to “many instances where the council's decisions savoured of irresponsibility, incompetence, misconduct and abuse of authority.” It was nowhere suggested in the report that any opportunity was ever given to the appellant or to the council to defend or explain the decisions for which they were condemned. Nor was their attention ever directed to the matters of complaint.
Thirdly, the Minister's evidence...
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