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WIJESINGHE v. TEA EXPORT CONTROLLER
NLR39V437
1937 Present
: Abrahams C.J. and Fernando A.J.
WIJESINGHE v. TEA EXPORT CONTROLLER.
IN THE MATTER OF AN APPLICATION FOR A
WRIT OF Certiorari.
Tea Controller-Power vested in the Tea Controller-Deduction of assessment on
discovery of error-Duty or discretion-Exercise of discretion-Appeal to the
Board of Review-Tea Control Ordinance, No. 11 of 1933 s. 20.
The Tea Controller
has a discretion whether or not to exercise the power conferred on him by
section 20 of Ordinance No. 11 of 1933, with regard to the addition or deduction
to be made or the discovery of an error in the assessment of the standard crop
of an estate.
Where he does not exercise the discretion at all or exercises it unfairly his
decision is open to review by the Board of Appeal.
THIS was an application by the Tea Controller for issue of a writ of
certiorari to have the legality of an order made by the Board of
Review, appointed under the Tea Control Ordinance, inquired into and
to have the said order quashed. Rule nisi issued on ex parte application.
By his order dated February 25, 1937, the Tea Controller declared that the
extent of an estate, viz., Walauwewatte, should be reduced to 24 acres from 32
acres. He also decided to recover the over-assessments, that had been made, in
terms of section 20 of Ordinance No. 11 of 1933, and ordered that an amount
equivalent to the over-assessments should be deducted from the assessment of the
standard crop of the estate for the periods 1937-1938 and 1938-1939.
The fourth respondent, who is the present proprietor of the estate, appealed
against the order to the Board of Review, who set aside the order of the Tea
Controller.
Cyril E. S. Perera (with him G. E. Chitty), for the fourth respondent, showing
cause against the making absolute of the rule nisi of certiorari.- The only
ground upon which the rule nisi can be made absolute is that the order of the
Tea Appeal Board was without jurisdiction. The question really is " have they
decided the right matter ? ", not, " have they decided it wrongly ? " The right
of appeal is conferred in very wide terms by section 17 of the Tea Control
Ordinance, No. 11 of 1933, and it is available to every person dissatisfied with
a decision of the Controller which surely means dissatisfied for any reason
whatever. The ultimate power in review is vested in the Board and no appeal lies
from its order.
Application like the present for the issue of these high prerogative writs can
only be made by a person who has a real grievance which gives him a locus standi
to ask for the writ. (Q. v. Nicholson [1 (1899) 15 Times Law. Sep. 509.]; Rex. v. Sharman
[ 2 78 L. T. 320.].)
The Controller has no status to make this application, for he is no more
aggrieved or prejudiced than a Judge of an inferior Court would be whose
decision is reversed in appeal. The Controller's order under section 20 was
clearly subject to review by the Board. It was discretionary in him to make it
and the Board could inquire upon appeal as to whether he had exercised a sound
discretion in making it. The word " may " in section 17 means nothing more than
" may in a proper case ". It cannot mean " must" or " shall". (Regina v. Bradley
[ 3 (1894) 70 L. T. 379.] ) There was therefore an order made in the exercise of the Controller's
discretion under section 20 ; it was properly brought up in appeal before the
Board and every condition precedent to the conferring of jurisdiction upon the
Board to hear and determine the appeal was fulfilled. It does not therefore
matter, since the order of the Board is defined as "final and conclusive", that
they arrived at a wrong conclusion upon the matters which were properly before
them. (Lord Mayor of Leeds v. Ryder et al [ 4 (1907) A. C. 420.].') It is, however, submitted that
their conclusion was in fact correct upon the merits.
Counsel cited the following cases, viz., Colonial Bank of Australasia v. Wi
