DAVID RAJA

VS.

MINISTER OF FISHERIES & AQUATIC RESOURCES DEVELOPMENT AND OTHERS

COURT OF APPEAL
SAMAYAWARDHENA, J.
OBEYESEKERE, J.
CA/WRIT/5/2017
JUNE 30, 2020

Writs of certiorari and mandamus-Decisions taken in violation of the rules of natural justice-Mandamus to enforce recommendations of the Human Rights Commission

The Director General of Fisheries and Aquatic Resources had refused since 2013 to issue annual permits to the petitioner to carry out fishing activities in Madel Padu No. 6, Thathanthanai, Mullaitivu. The petitioner had complained about this matter to various authorities including the subject Minister, the Human Rights Commission and the President. All the said authorities instructed the Director General to issue the permit to the petitioner. However the Director General refused to do so on the ground that the petitioner had leased out the Padu in violation of Regulation 13(1) of the Madel (Beach Seine) Fishing Regulations 1984. The petitioner filed this writ application seeking to quash the said decision by certiorari and to compel the Director General to uphold the recommendation of the Human Rights Commission to issue the permit.

Held :

1. The Director General of Fisheries and Aquatic Resources reached the decision not to issue the annual permit to the petitioner without holding a proper inquiry with the participation of the petitioner, nor was the decision communicated to the petitioner for him to appeal against it, both in violation of the rules of natural justice.

2. At the inquiry before the Human Rights Commission, it was proved that the allegation that the petitioner leased the Padu to third parties is baseless.

3. In Sri Lanka Telecom Ltd v. Human Rights Commission of Sri Lanka [2020] 1 Sri LR 212, the Supreme Court held that

recommendations of the Human Rights Commission attract writ jurisdiction: "If a recommendation of a Public Body affects the right of an individual, Superior Courts, in the exercise of their writ jurisdiction, have the power to quash such a recommendation by issuing a writ of certiorari."

4. A fortiori, if a recommendation of a public body protects the rights of an individual, the superior courts in the exercise of writ jurisdiction, have the power to compel the enforcement of such recommendation by issuing a writ of mandamus if the court is satisfied that the recommendation is made on compelling grounds.

5. The refusal to issue the permit in respect of the disputed Padu to the petitioner without having held a proper inquiry is illegal, and the refusal to carry out the recommendation of the Human Rights Commission without a valid reason is unjustifiable.

Cases referred to :

1. Sri Lanka Telecom Ltd v. Human Rights Commission of Sri Lanka (SC/APN/215/2012, SC Minutes of 01.03.2017) reported in [2020] 1 Sri LR 212

APPLICATION for Writs of Certiorari and Mandamus.

Udaya Bandara for the Petitioner.

Dr. Charuka Ekanayake, S.C., for the Respondents.

cur. adv. vult.

July 24, 2020

SAMAYAWARDHENA, J.

The Petitioner had been issued annual permits from 2006 to 2012 to carry out fishing activities in Madel Padu No. 6, Thathanthanai, Mullaitivu. He has not been issued annual permits since 2013. As seen from inter alia P6, P10, P11 and P12, the Petitioner has been complaining of this matter to various bodies including the subject Minister, the Human Rights Commission and the President. All these authorities have instructed the Director General of Fisheries and Aquatic Resources to issue the permit to the Petitioner. But the Director General, as seen from R4, has refused on the ground that the Petitioner leased out the said Padu in violation of Regulation 13(1) of the Madel (Beach Seine) Fishing Regulations

1984, published in the Gazette marked R2. The Petitioner has filed this writ application seeking to quash the said decision also contained in P7 by certiorari and to compel the Director General to upho