Administrative law

Introduction

In these current governmental practices the government can’t act as an effective mechanism when its
performing as a single body, therefore the government has established several agencies on different levels
to do their administrative functions. These agencies are also known as boards, commissions, departments,
and divisions and they have their own powers, rules and regulation, which has been provided by the
particular acts, belonged to those agencies. However is there is power usually there will be an abuse of
power and the peoples are the affected parties. Administrative law is the one performing the duty to limit
and control the powers and scope government authorities to protect the public interest.

This document going to analyze in case if any rights of people discriminated or refused by any
governmental or administrative body what are the legal remedies for the affected parties to sue against the
administrative body.

“Right can arise not only from a statute but also from a legitimate expectation” 1

Question:-

The (fictitious) Bingo (Licensing) Act provides that those running bingo clubs must obtain a licence,
renewable annually, from the local authority. The Act provides that where a licence is refused, an appeal
against that decision may be made to the Bingo (Licensing) Panel. The local authority is also allowed to
make an annual charge for a licence to cover its administrative costs.

Southern Provincial Council has recently announced that it intended to raise the annual fee to reflect the
profits bingo clubs were making.

Serena, who had been granted a licence on five previous occasions, applied for renewal of her licence.
Southern Provincial Council refused to grant her a licence on this occasion, despite the fact that there had
1
Ranaraja J
been no material change in her circumstances. She appealed, and a date was fixed for a hearing before the
Bingo (Licensing) Panel.

At the hearing, one member of the panel missed part of the proceedings while he answered a telephone
call. At one point, Serena was asked to 'wait outside while we discuss one or two matters with the
representative of the licensing authority'. When Serena was called back in she was not told anything about
the discussions that had taken place in her absence. The Panel upheld the refusal to grant a licence to
Serena. Serena subsequently discovered that the solicitor chairing the panel belonged to a firm that acted
as legal advisers to a rival bingo club.

Advise Serena as to any grounds on which she can challenge the decisions made by Southern
Provincial Council and the Bingo (Licensing) Panel.

Issues:-

a) Whether the southern provincial council has the statutory power to increase the annual fees for
the bingo clubs depending on the profits of the bingo clubs?
b) Whether the southern provincial council has the statutory power to refuse the renewal for the
license of Serena who running a bingo club and got license on five previous occasions?
c) Whether at the hearing for refusal by bingo licensing panel to renew the license the member of
the panel performed their duties according to law?
d) In case if there is any right of Serena is breached then what kind of actions can be taken by
Serena to challenge decision made by the southern provincial council and the bingo licensing
panel?

According to the given facts there is an act named as the (fictitious) bingo (licensing) act provided about
those licensing procedure, renewal of license for the bingo clubs and also stated in case the license is
refused the person can appeal to the bingo licensing panel. Under the act the local authority can make
annual charge for license. It is coming under the duty of local authority which is one of the administrative
bodies in Srilanka. The act should have provided all powers and duties of the members in local authority
who is responsible for the licensing sector. So the question arise is whether the southern provincial
council has the power to increase the annual charge in reasoning the profits of running bingo clubs.
We should consider the intention of the parliament in passing the particular act.

“The only rule for the construction of Acts of Parliament is that they should be construed according to
the intent of the Parliament which passed the Act. The words themselves can’t do alone, in such case;
best declare the intention of the lawgiver”2

Therefore the act specifically provided that the local authority can make annual charges from bingo clubs
to cover its administrative functions but doesn’t mentioned about increasing of those charges so we can
see this as an abuse of power by the southern provincial council. The southern provincial council has

2
One of the leading statements of the plain meaning rule was made by Chief Justice Nicholas Conyngham Tindal in the Sussex
Peerage (1844)
acted ultra vires by act beyond the limits. The local authority not authorized to do such act. To maintain
the rule of law the action or decision making by an administrative authority should be balanced with
intention of the parliament. If the performance of administrative body in line with the intention of the
parliament its can be held as intra vires. A decision maker should have a clear understanding of law on
which it is controlled to follow the rules and principles of the law. This decision is mainly said to be
called ultra vires which basically means beyond powers. 3

So we can conclude that the southern local authority acted as ultra vires by go beyond the power
prescribed by the statutes. Increasing than annual fees instead of following the law provided about
making the charge is express violation of the statute and the rule of law.

The next issue we going to analyze is whether the southern provincial council has the statutory
power to refuse the renewal for the license of Serena who running a bingo club and got license on
five previous occasions? In considering the facts the southern provincial council refused to give license
to Serena who got license regularly for five times for her bingo club in reasoning that there was no
material changes in her circumstances for apply to renew the license. The question is whether it shall be
lawful for the southern provincial council to do so. The power to give license for the bingo clubs vested
with the local authority therefore there should be some requirements to satisfy to get the license in
absence of those requirement the local authority can refused give the license or if the local authority think
that the bingo club is not eligible or unfit to hold the license in such circumstances also they can cancel
the licence. But it all depends on the particular bingo act.

Salemi v Minister for Immigration and Ethnic Affairs 4 in this case the applicant in this case was served
with a deportation order by the Minister. The Migration Act gave the Minister power to deport prohibited
immigrants. The plaintiff sought a declaration that he was included in a class of persons exempted from
the category of prohibited immigrants by an instrument issued by the Minister. A statutory majority of the
High Court held the Act was not qualified by a requirement that natural justice be accorded before a
deportation order is made. Gibbs J stated that since this was the case, it was not relevant that the
instrument may have created an expectation in the applicant that he would not be deported.

Serena previously five times got the license and now only rejected by the authority to renew the license so
we can assume that she must have the chance to satisfy the entire requirement for the license which
provide by the act. The local authority reasoned that there are no material changes in her bongo club if the
local authority can do so under the act then such act is legal and they authorized to cancel the license. The
word that the people who couldn’t get the license can appeal to bingo licensing panel shows that the local
authority can reject any license. Therefore there is no illegality in cancelling the license of Serena.

The another important issue is whether at the hearing for refusal by bingo licensing panel to renew
the license the member of the panel performed their duties according to law? Before analyze this
case first we should go for the brief idea of natural justice. “The Principles of Natural Justice are easy to
proclaim, but their precise extent is far less easy to define” 5. It has been stated that there is no single

3
Attorney General v. Fulham Corporation, 1921.
4
(1977) 14 ALR 1 (http://www.mrlegal.com.au/)
5
In a famous English decision in Abbott vs. Sullivan reported in (1952) 1 K.B.189
definition of Natural Justice and it is only possible to enumerate with some certainty the main principles. 6
LORD Hodson7 explained the three features of the natural justice those are

i. The right to be heard by an unbiased tribunal.

ii. The right to have notice of charges of misconduct.
iii. The right to be heard in answer to those charges.

Natural Justice also means that a party is entitled to a reasoned consideration of his case; and whether or
not the parties are also entitled to be told the reasons for the decision, if they are withheld, once judicial
review commences, the decision may be condemned as arbitrary and unreasonable. 8

In this above given fact Serena appealed to bingo licensing panel in case her license was denied by the
southern provincial council. At the hearing for Serena there were four incidents happened

 One member of the panel answered a telephone call at the hearing and he didn’t follow the
complete proceedings.
 Serena was asked by the panel to wait outside while they discussing the licensing matters with the
representative of licensing authority
 After that also Serena was not told about the matters discussed by the panel in her absence.
 Late Serena became to know that the solicitor sharing the panel belonged to a firm that acted as a
legal adviser to rival bingo club (competing bingo club with Serena)

However the panel upheld the refusal to grant license to Serena. Clearly we can say that the principle of
natural justice was not followed by the panel. There was a bias that one solicitor of the panel has related
to another competing bingo club. At same time Serena was not informed by the panel about the
discussion they have about her charges the right to be heard was refused there was no fairness in deciding
that Serena is not eligible to hold the license. In Samalanka v Weerakoon the court held “In the absence
of a statutory requirement there is no general principle of administrative law that natural justice
requires the authority making the decision to adduce reasons, provided that the decision is made after
holding a fair inquiry.”9

But in KARUNADASA v. UNIQUE GEM STONES LTD., AND OTHERS it was held that “Natural
Justice may provide the best rubric for it, since the giving of reasons is required by the ordinary man's
sense of justice. It is also a healthy discipline for all who exercise power over others” 10 further in the
same case Fernando J held “Natural Justice entitles a party to a hearing does not mean merely that his
evidence and submissions most be heard and recorded; it necessarily means that he is entitled to a
reasoned consideration of the case which he presents”

In multinational property development ltd vs. urban development authority 11 the petitioner stated
that the respondent took the decision without any justifiable hearing and also that was a mala fide action.
It was held the individuals who have legitimate expectations based on promises made by public
6
Lecture delivered by Justice T.S.Sivagnanam at Tamil Nadu State Judicial Academy on 01.06.2009
7
Ridge v Balwin (1964) A.C 4O
8
KARUNADASA v. UNIQUE GEM STONES LTD., AND OTHERS
9
KULATUNGA, J. in Samalanka v Weerakoon (1994) 1 Sri L. R. 407
10
FERNANDO, J (NOVEMBER 27, 1996)
11
1996 SLR 2V 51
bodies that they will be granted certain benefits, have a right to be heard before those benefits are
taken away from them on the ground that there had been a change of policy.

"It is no excuse to say that even after a hearing the decision will not be changed in view of the change
of Policy, and that there is no purpose served by giving a hearing. This attitude by public bodies funded
by the Public to serve the Public should best be avoided”12

In Srilanka we are following natural justice by the court procedures and the constitutional provisions also
impliedly hold that there for it’s the duty of all administrative tribunals to follow the natural justice in
absence of that the affected party can seek the remedies. In this case also Serena was not conducted by a
fairness and justice hearing which standing with natural justice so we can conclude Serena can seek
remedy against the panel who failed to do their duties according to law.

“In the public law field, individuals may not have strictly enforceable rights but they may have
legitimate expectations. Such expectations may stem either from a promise or representation made by a
public body.”13

now we going to analyze the important part in this case the question is what is the next step Serena can do
as an affected party by the unjustifiable decisions of the bingo licensing panel. Here there is no alternative
remedies are possible so she can go for a writ application against the administrative body. This referred as
doctrine of legitimate expectation it means when a decision of an administrative body is not resulted by
fair procedures and it’s denied the people’s rights or liberty the people shall expect that they should be
treated fairly in a justifiable way.

The protection of legitimate expectation is at the root of the constitutional principle of the rule of law,
which requires regularity, predictability and certainty in government’s dealing with the public. 14

What is writ And Why writs?

Writ is a formal order it’s come as a privilege. It’s a remedy under the public law will issue by courts
when there is a violation of any public rights by any action of the administrative authorities. Courts shall
command the administrative body to quash the decision took by the public body (certiorari) or require to
prove the legitimacy of its action (qua warranto) or compel to do the act in a justifiable way (mandamus)
or order the authority stop doing further harm (prohibition). Writs actually give different remedies and
sometime it will connect with other writs and give remedy.

According to article 140 of Srilankan 1978 constitution the court of appeal has the power to grant writs
of certiorari, prohibition, procedendo, mandamus and qua warranto against the judge of any courts of first
instance or tribunal or other institution or any person, according to law 15. under the article 154p(4) of 13th
12
Ranaraja, J. in multinational property development ltd vs. urban development authority
13
Judicial Remedies in Public Law - Lewis P 97. “A promise to confer. A substantive benefit, may give rise to an
expectation that the individual will be given a hearing before a decision is taken not to confer the benefit Decisions
affecting such legitimate expectations are subject to judicial review. "
14
De smith, Woolf and Jowell, Judicial Review of Administrative action
15
“Subject to the provisions of the Constitution, the Court of Appeal shall have full power and authority to inspect
and examine the records of any Court of First Instance or tribunal or other institution, and grant and issue,
according to law, orders in the nature of writs of certiorari, prohibition, procedendo, mandamus and quo
warranto against the judge of any Court of First Instance or tribunal or other institution or any other person” THE
amendment to the Srilankan constitution16 the high court has the power to issue the writ of habeas
corpus, certiorari, prohibition, procedendo, mandamus and qua warranto against any person within the
particular province. The jurisdiction is limited in provincial level.

Serena can ask the court for writ of certiorari which can direct the administrative authority to quash or
invalidate its decision this nature of writs will accompany with prohibition which prevent the authority
from making the further harm by that decisions like stay orders. Certiorari and prohibition have summed
up by lord Atkin L.J as follows “whenever anybody of person having legal authority to determine
question affecting the rights of subjects, and having the duty to act judicially, act in excess of their
legal authority, they are subject to a controlling jurisdiction of the kings bench division exercised in
these writs”17

There should be some requirements to go for this writs there should be a body of persons (public
authorities but it doesn’t mean it excludes the single person). The writ of certiorari and prohibition will lie
against anybody or single person who is discharging the public functions under law.

LORD RADCLIFFE stated that “In truth the only relevant criterion by English law is not the general
status of the person or body of persons by whom the impugned decision is made but the nature of the
process by which he or they, are empowered to arrive at their decision. When it is a judicial process or
a process analogous to the judicial, certiorari can be granted”18

In case of this the bingo licensing panel will be consider as a body of person which performing a public
duty and they are empowered to take decisions but they are required to act judicially. “ Wherever anybody
of persons having legal authority to determine questions affecting the rights of subjects, and having the
duty to act judicially” but the bingo licensing panel failed to do so.

Another requirement is the panel must be a legal authority and the powers should be statutorily given to
the panel. The writ can’t be issued against the public authorities. In chandradasa v wijeratne 19it was
held that exercise of power by a public authority arising out of contract of employment is not subject to
writ of certiorari. The bingo licensing panel also have the statutorily given power to determine whether a
person can hold the license or not and it’s a public authority.

Determination or reports will not come under the writ of certiorari as they do not have the capacity to
affect the rights of public it was held in Fernando v Jeyaratne20. Any determination which was merely a
finding of fact or expression of opinion was not sufficient enough to issue the writ. “Although the
jurisprudential meaning of the phrase ‘right’ has a narrow meaning and doesn’t include privilege. The
recent development has broadened the meaning of the term right to include privileges and interest” 21

CONSTITUTION OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

16
Thirteenth Amendment to the Constitution [Certified on 14th November, 1987]
17
R VS ELECTRICITY COMMISSIONERS EX P, LONDON ELECTRICITY JOINT COMMITTEE CO (1920) LTD (1924) 1KB171
18
NAKKUDA ALI v M. F. DE S. JAYARATNE NLR51V457.
19
[1982] 1 SRI LR 412
20
2000 SLR 1 V 112 November 8, 1999 FERNANDO, J.
21
Vythialingm j in mendis vs. goonewardene GPA Silva
Another development in Jayewardene vs. Silva it was held “we are appreciative of the principle that the
rights affected need not necessarily be rights from the jurisprudential point of view” 22 however now the
word right is broadly interpreted later. “There is no magic in the word ‘report’. The question is whether
some question is being determined to some person’s prejudice”. The right of Serena can be included in
legal meaning of rights.

Lord Diplock stated “Wherever any person or body of persons has authority conferred by legislation to
make decisions of the kind I have described, it is amenable to the remedy of an order to quash its
decision either for error of law in reaching it or for failure to act fairly towards the person who will be
adversely affected by the decision”23.

We can conclude that Serena can go for writ of certiorari to quash and invalidate the panel’s decision and
ask writ of prohibition accompanied with that to preventing the further harm. Certiorari is a suitable
remedy for unlawful administrative determinations of all kinds in breach of natural justice 24.

Another writ application Serena can ask for is qua warranto which stands for require the public authority
to prove the legitimacy of its action. Quo warranto originated in English common law as a process
initiated by the crown to find out whether a person was legitimately exercising a privilege or office
granted by the crown, or whether the person was instead intruding into a royal prerogative. The court can
order the panel to prove in what legal basis they reject the license of Serena. The remedy of quo warranto
is vested in the People, and not in any private individual or group, because the question of who has the
right to hold a public office is a matter of public concern, not a private dispute. The requirement of
obtaining approval also serves the important purpose of protecting public officers from frivolous
challenges.25The burden of proof is on the respondent.

"In either case the judgment in quo warranto does not try the question of forfeiture. It merely
recognizes judicially fait accompli and ousts the wrongdoer from enjoying the privileges of a franchise
which he has ceased to possess."26

For file this application the requirements are same as certiorari and prohibition but quo warranto can’t be
applied without an Attorney General. Panel must be a public authority has power statutorily. The duties
attached the position must concern the public directly, and must be imposed by public authority -
not by contract (citing authority). The duties must be public in a sense. It must be created by the
Constitution or by the legislature, it must possess a delegation of a portion of the sovereign power of
government, the powers conferred and the duties to be discharged must be defined 27

The plaintiff in quo warranto is not required to allege any facts in the complaint showing that the
challenged acts are unlawful. It is enough to allege the exercise of the right without lawful authority. Qua
warranto also a best way to keep a public authority within its boundaries. We can see whether the bingo
licensing panel act legally or it’s an ultra vires.

22
Bandula vs. almeida [1995] 1 SRI L.R 309
23
O'Reilly v Mack man [1983] APP.L.R. 11/25
24
mendis vs. goonewardene GPA Silva
25
LEGAL OPINIONS OF THE ATTORNEY GENERAL - QUO WARRANTO - RIGHT TO PUBLIC OFFICE
26
State v. Murphy, 148 S.W.2d 527 (MO. 1941)
27
State ex rel. Paugh v. Bradley, 753 P.2d 857 (Mont. 1988)
According to the above analysis Serena can go for certiorari or prohibition and qua warrento as which one
is suitable. But there is few discretionary bars for apply those writs. Writs application only available
when there is no alternative remedies. Podi Nona vs. urban council horana 28 it was held in as much as
the relationship between the parties was contractual the petitioner was not entitled to the remedy by way
of certiorari.

 FERNANDO, J stated “That the rule that the remedy by way of certiorari is not available where an
alternative remedy is open to the petitioner is subject to the limitation that the alternative remedy must
be an adequate remedy. The alternative remedy rule is not a rigid one” 29. Serena can apply for writ only
when there are no other possible remedies.

The writ application should make without any undue delay. In Gunasekare vs. Weerakoon30 an
objection made by the state that there is a long delay in seeking a writ. In Sarath Hulangamuwa vs.
Siriwardene Principal Visaka Vidyalaya31 it was held filling the action after 8 months from the incident
is an inordinate delay in filling the action so court refused to grant writ of certiorari and mandamus. So
Serena should make the writ application without any delay.

The petitioner for writs should go with the clean hands. On the part of the petitioner there should be no
wrongs otherwise the affected party can’t go for an action. Petitioner has to side the necessary parties in
Abeygedara v. vice chancellor of university of Colombo the court held failure to include the University
of Colombo and the 115 students as respondent is a ground to dismiss the writ application. In muttusamy
vs. chairmen of trade also the court dismissed the writ application because the petitioner failure to name
the authority as a party.

The action should not be a pointless one. In Samsudeen vs. minstery of defense & external affairs the
writ of mandamus was refused on the ground that the residence criteria clearly had not been satisfied and
the granting of a writ would thus be futile.

According to the given case Serena can seek remedy by way of writ application to court of appeal and
high court. It’s not a fundamental rights violation so she can make the application to Supreme Court.
Under article 126(3) of Srilankan 1978 constitution if there is an infringement of rights prescribed in
Chapter III or Chapter IV only the person can go for fundamental writ violation writ supreme court has
such jurisdiction.32
28
(1981) 2 SRI L.R 141
29
LINUS SILVA, Petitioner, and UNIVERSITY COUNCIL OF THE VIDYODAYA UNIVERSITY NLR 64 V 104 
30
73 NLR 262
31
275, Vol 1 of 1986
32
“Where in the course of hearing in the Court of Appeal into an application for orders in the nature of a writ of
habeas corpus, certiorari, prohibition, procedendo, mandamus or quo warranto, it appears to such Court that there
is prima facie evidence of an infringement or imminent infringement of the provisions of Chapter III or Chapter IV by
a party to such application, such Court shall forthwith refer such matter for determination by the Supreme Court”.(
THE CONSTITUTION OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA)
Conclusion

“Although this court would still be exercising the writ jurisdiction its powers of review and relief would
not be confined to the old prerogative writs the constitution have shrunk the area of administrative
discretion & immunity”33

In Srilanka there are so many remedies available to protect the public interest in this case Serena can get a
justifiable writ application against the public authority who took a decision un an injustice method.
Government has created so many agencies to reduce the burden of central authority but however there are
so many abuse of power took place but one thing is the affected parties are people so the writ application
is a best way to keep the authorities within their legal boundaries and perform for the public benefits.

Article 12 of the constitution provides “right to equality”, it is a constitutional protection. If such

rights are violated, it gives an opportunity to review the administrative action in Srilanka. If any
legitimate expectations arise from the Art 12 of the constitution, it is the duty to the court to
enhance the expectation and protect the legitimate expectation through constitutional shadows 34.
And according to my view if this case filed under the heads of Art 12 and Art 140 it may very useful to
the petitioner

However, administrative authorities may not be able to achieve their objective effectively and efficiently,
unless they have the flexibility of responding to the changing needs of the society, even though this may
adverse implication on the people who have planned their affairs on the basis of existing police. 35

33
Mundy vs. central provincial authority
34
Constitutionalisation of the writ jurisdiction in Srilanka, KUMARAVADIVEL GURUPARAN, page 07- the
effectiveness of applying such constitutional values will depend on other provisions of the constitutional provision
for writ jurisdiction co- exists. Article 140 in specific says that it is subject to other provisions in the constitution.  
35
P.P. Craig Administrative Law, [5th Edition] London: Sweet & Maxwell, 2003 at page 640. – This would mean that
administrative authorities must be capable of altering the existing policies to suit the demands of the future.