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THE ATTORNEY GENERAL v. SABARATNAM
NLR57V481
1955 Present : Gratiaen, J.,
and Swan, J.
THE ATTORNEY-GENERAL, Appellant, and
S. SABARATNAM, Respondent
S. C. 108-D. C. Colombo, 24,847/M
Quia timet action-Remedy of declaratory decree-Jurisdiction of Court to grant
it- Liability of Grown.
A party who has a concrete dispute with another may obtain in anticipation a
declaration by Court that his opponent does not have a good cause of action
against him. The jurisdiction of Court to grant a declaratory decree is, of
course, discretionary, and would not be exercised for the purpose of making
premature pronouncements as to future contingent rights of litigants.
The Crown enjoys no special immunity from declaratory decrees in cases where
they would be appropriate in actions between private litigants.
The plaintiff, when he was a Public Works Department overseer, had been called
upon by the Director of Public Works to refund a certain sum of money which was
alleged to have been over-paid to him. Plaintiff denied that there-had been any
over-payment, but the Director persisted in his claim for a refund. Even after
he retired from the Public Service, the Government refused to withdraw its claim
for a refund and, the plaintiff alleged, was withholding payment of arrears of
salary and pension due to him. He instituted the present action asking for a
formal declaration in his favour that, inter alia, he was not liable to refund
any sum of money.
Held, that the action was maintainable.
APPEAL
from a judgment of the District Court, Colombo.
V. Tennekoon, Crown Counsel, with E. R. de Fonseka, Crown Counsel, for the
defendant appellant.
S. J. V. Chelvanayakam, Q.C., with R. Manikkavasagar, for the plaintiff
respondent.
Cur. adv. vult.
November 28, 1955. GRATIAEN, J.-
This is an appeal by the Attorney-General on behalf of the Crown against a
declaratory decree to the effect that " the allegation made by the Government
that a sum of Rs. 10,003/57 had been over-paid to the plaintiff on his bill No.
37 for work done in January 1948 was wrongly made, and that the plaintiff is not
liable to refund any monies received on account of the said bill No. 37. "
The form of the decree under appeal is certainly unusual, but it was entered in
circumstances which rarely occur in the proceedings between the Crown and a
subject or even in private litigation. The facts as
found by the learned trial Judge upon the issues which were framed at the trial
are no longer in dispute. Shortly stated they are as follows : The plaintiff had
been a Public Works Department overseer stationed at all material times in Point
Pedro. The Department was then engaged in the construction of " the Mahadeva
causeway ", but found some difficulty in inducing private contractors to enter
into sub-contracts undertaking part of the work. Accordingly, the plaintiff and
two other P. W. D. overseers were persuaded, in addition to their normal duties,
to carry out certain items of works on sub-contract. In due course, the
plaintiff submitted for payment through the usual channels his Bill No. 37
setting out particulars of his claim that Rs. 15,892/17 was due to him for work
done and materials supplied up to January 1948. This bill was duly settled, but
on 25th May 1949 the (then) Director of Public Works wrote to him alleging that
there had been an overpayment of Rs. 10,067/77 and calling upon him to refund
this sum within three weeks. The letter also alleged that there had been a
further over-payment the precise extent of which was still under official
investigation, and that a claim for a refund under that head would also be sent
to him.
Correspondence then passed in the course of which the plaintiff denied that
there had been any over-payment, but the Director persisted in his claim for a
refund which was later restricted, however, to Rs. 10,003/37.
In 1950 the plaintiff fell ill, and retired from the Public Service on 30th
September on m
