CA declines to grant preliminary relief on PS member’s petition

Sarath Malalasekera

The Court of Appeal has declined to grant preliminary relief prayed for in the petition filed by Kandy Kadawath Sathara and Gangawata Korale Pradeshiya Sabha member M B Yatawara.

The Court of Appeal Judge Justice Rohini Marasinghe, in her lengthy judgement had stated “where the court has constructed a statute or a rule having a force of a statute, its decision stands on the same footing as any other decision on a question of law. But where the court is satisfied that an earlier decision had been given in ignorance of the terms of a statute or rule having the force of a statute, the position is very different. It cannot, in our opinion, be right to say that in such a case, the court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when the provision was not in its mind. Cases of this description are some of the examples of such decisions given Per In Curiam.”

Justice Rohini Marasinghe has overruled the earlier decision on the same point by the Court of Appeal.

Petitioner Pradeshiya Sabha member M B Yatawara had cited Chief Minister and Minister in charge of Local Government Sarath Ekanayake and six others, including the Governor of the Central Province Tikiri Kobbekaduwa as respondents.

The petitioner had been an elected member of the Kandy Pradeshiya Sabha and was appointed as its Chairman, consequent to the local government elections of April 2006. The petitioner had been removed from his office by the Minister on September 22, 2009. The said order had been published in the gazette dated September 11, 2009.

The petitioner had sought inter alia a Writ in the nature of a Writ of Certiorari to quash the said orders. The petitioner had also sought an interim order restraining the operation of the said orders. This order was with regard to the interim reliefs sought by the petitioner.

The contention of the petitioner was that the said orders were ultra vires to the provisions contained in the Pradeshiya Sabhas Act 15 of 1987. The petitioner has further submitted that the said orders violated the rules of natural justice. Additionally, the petitioner had submitted that the respondents were bound by the decision made in the case bearing No CA 919/2008.

Justice Rohini Marasinghe’s judgment had stated that according to the provisions of the statute the Minister of Local Government had been conferred with wide powers to constitute the Pradeshiya Sabha and to dissolve the Pradshiya Sabha. Where a statutory power was conferred on a Minister or any other person, it was implicit that he may do anything necessary for the performance of that function. And,if the power was conferred in very broad terms, the powers available for its performance would also be implied in very broad terms.

There was a presumption that the legislature had not intended to achieve a result that was manifestly unfair, unreasonable or arbitrary. Consequently, though the Minister was conferred with powers to create and dissolve a Pradeshiya Sabha, he was not entitled to use those powers unfairly, unreasonably and arbitrarily. For this purpose, the Statute under section 185 (2), had required the Minister to appoint an inquirer to inquire and report within three months on the matters alleged in Section 185 (1), the order stated.

The order has also stated “the main object of the section was to sustain the power of the Minister and not to stultify him. Besides, that it must be noted that the direction to conclude the inquiry within three months was couched in positive language and negative language and there was no sanction added to it. The principle was if a provision was couched in negative form it was to be regarded as mandatory rather than directory.

Justice Rohini Marasinghe in the order has stated that the petitioner was aware of the dates of the inquiry. He appeared to have purposely abstained from participating in the inquiry after May 31, 2009. Therefore, when a party loses the opportunity of having his case heard because of his own fault, he was now unable to complain of denial of natural justice. There was a rule of construction that where a party had not spoken when he was required to speak, he was thereafter stopped from speaking on that matter.

Additional Solicitor General A Gnanadasan appeared for the 6th and 7th respondents.

Senior Attorney Uditha Egalahewa, appeared for the first respondent, the Chief Minister.

Senior Attorney Sanjeewa Jayawardena with Senany Dayaratne appeared for the petitioner.