Legal Services and Laws of Sri Lanka


SLR-1996 Vol.1-P364

SLR - 1996 Vol.1, Page No - 364

MAHINDASOMA

v.

HON. MAITHRIPALA SENANAYAKE AND OTHERS

COURT OF APPEAL.

DR. GUNAWARDENA, J.

ASOKA DE SILVA, J.

C.A. APPLICATION NO. 17/96.

11, 12, and 16 JANUARY 1996.

Provincial Council - Dissolution of the Provincial Council by the GovernorWrit of Certiorari and Prohibition- When wouldthe
Court would grant interim relief? - Principles governing issue of stay order.

The Petitioner made an application for interim relief by way ofrestrainingthesecondRespondent,theCommissionerof
Elections, from holding the elections to the Provincial Council, in particular, from receivingnominationstillthefinal
determination of this application.

Held :
(1) that the Court will be guided inter alia, by the following principles, in granting interim relief:
(a) Will the final order be rendered nugatory if the petitioner is successful?
(b) Where does the balance of convenience lie?
(2) That on a consideration of the facts and circumstances of this case, if a stay orderisnotgrantedthefinalorder
would be rendered nugatory.
(3) That on a balance of convenience and in the public interest, it is appropriate to grant a stay order.
APPLICATION for interim relief by way of a stay order.
K. N. Choksy P.C. with L. C Seneviratne P.C., E.P Paul Perera, M. D. K Kulatunge,DayaPelpola,D.H.NJayamaha,S.G.
Mohideen, Raja Dep, Ronald Perera, R. L. Perera, Nigel Hatch and Anil Rajakaruna for Petitioner.
E.D. Wickramanayake with Dr. Jayampathy Wickremaratne.M.A.G.M.Gazzali,PalithaMathew,GastonJayakodyandP.
Obeysekera for 1stRespondent.
Shibly Aziz P.C. with K. C. Kamalasabayson, D. S. G., Parakrama Karunaratne SSC and K. Arulanathan S.C. for 2nd Respondent.
January 16, 1996.
DR. GUNAWARDANA, J.
We have heard the submissions of the learned Counsel for thePetitioner.ThelearnedCounselforboththeRespondents
consented to accept notice. We issued notice as a prima facie case was made out and in view of the consent expressedbythe
learned Counsel for the Respondents to accept notice.

The learned Counsel for the Petitioner made an application for interim relief, by way of restrainingthesecondRespondent
from holding the elections to the Provincial Council till the final determination of this application.
The learned counsel for the Petitioner submitted that in terms of Article 154B (8)(c) of the ConstitutiontheGovernorhas
the power to dissolve the Provincial Council. However, Article 154(8)(d) states that the Governor canexercisethispower,
only in accordance with the advice of the Chief Minister, so long as the Chief Minister commands the support of themajority
of the Provincial Council.
He submitted that, therefore the Governor has no discretion inthematterandshouldfollowtheadviceoftheChief
Minister. He pointed out that paragraph 8 of Article 154(b) of the Constitution deals with the Governor's powers inrelation
to the Provincial Council. He submitted further that when dissolving the Provincial Council theGovernorisboundbythe
procedure laid down in Article 154(8)(d) and should act according to the advice of the Chief Minister, as he is thepeople's
representative.
The learned Counsel for the 1st Respondent submitted that under Article4(b)oftheConstitution,theexerciseofthe
executive power is vested with the President. Therefore, the President has the power to give directions to theGovernor.He
pointed out that the Governor is bound by the directions givenbythePresidentastheGovernorisappointedbythe
President. The Governor has no discretion, and has to carry out the directions given by the President.

The learned Counsel for the 2nd Respondent, the Hon. Attorney General submitted that, Article 154 F (2) providesthat"If
any question arises whether any matter is or is notamatterasrespectswhichtheGovernmentisbyorunderthis
Constitutionrequiredtoactinhisdiscretion,thedecisionofthe Governor in his discretion shall be
final,...................... " He argued that in view of the said provision, the decision oftheGovernorthathehasa
discretion in the matter is final and cannot be questioned in any Court. However, he conceded that the reasonableness ofthe
use of the discretion can be questioned in Court. He further submitted that when the Governor acts under Article 154B(8)(c)
the Governor has a discretion to decide whether to follow the advice of the Chief Minister or not. The learned Counseladded
that there is no express provision in the Constitution for the President to dissolve a Provincial Council.
Thus a substantial question of law has arisen as to whether theGovernorhasadiscretionwhenheactsunderArticle
154B(8)(c) of the Constitution, which can only be decided, after hearing full argument, having given the opportunitytothe
Respondents to file their objections. Therefore, the question of granting interim relief has to be considered.
This Court has set out on a number of occasions the matters which should be taken into considerationwhengrantinginterim
relief.

The learned Counsel for the Petitioner cited a case of this court C.A. No 112/ 85, Court of Appealminutesdated30.01.85,
where it has been stated that when the Court is considering the issue of a stay order the Court will be guided inter aliaby
the following principles :-
(a) Will the final order be rendered nugatory if the Petitioner is successful?
(b) Where does the balance of convenience lie?
On a consideration of the facts and circumstances of this case, we are of the view that if a stay order isnotgrantedthe
final order will be rendered nugatory. We are also of the opinion thatonabalanceofconvenienceandinthepublic
interest it is appropriate to grant a stay order.

Accordingly we hereby issue a stay order, restraining the 2nd Respondent from proceeding to act in the terms ofthenotice,
published in Gazette No: 904/13 dated 04.01.96, marked 'P-5'pendingthehearingandthefinaldeterminationofthis
application, and in particular from receiving nominations.
The Registrar, Court of Appeal is directed toinformthe2ndRespondentofthisinterimordermadebythisCourt,
restraining the 2nd Respondent from proceeding to act in terms of notice published inGazetteNo:904/13dated04.01.96,
marked 'P-5' pending the hearing andthefinaldeterminationofthisapplication,andinparticularfromreceiving
nominations.
The Registrar is further directed to inform the 2nd Respondent of this order, by telegram orfax,attheexpenseofthe
Petitioner.

J. A. N. DE SILVA, J. - I agree.
Stay order dismissed.


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