-D1/92 Yargıtay/Asli Yetki No: 2/92
(M/sa Ağır Ceza Dava/İstida No: 576/91)

Yüksek Mahkeme Huzurunda
Mahkeme Heyeti: N. Ergin Salâhi, Taner Erginel, Metin A. Hakkı.

Müstedi: Taner Hastan,- Merkezi Cezaevi - Lefkoşa
ile
M/aleyh: Kuzey Kıbrıs Türk Cumhuriyeti Başsavcısı,
Hukuk Dairesi, Lefkoşa.
A r a s ı n d a.

Müstedi namına: Güneş Menteş
Müstedaa-leyh namına: Yaşar Boran

K A R A R

N. Ergin Salâhi: Sayın Metin A. Hakkı'nın hazırlamış olduğu kararını okuma fırsatını buldum. Bu kararda serdettiği görüşler ve vardığı netice ile hemfikirim. Ancak bazı hususlara da değinip açıklık getirmeyi luzumlu g-örmekteyim.

Progative Orders başlığı altında görülen ve kökeninde Common Law çaresi olan Certiorari ve Prohibition emirleri Sayın Yargıç Metin A. Hakkı'nın kararında derlediği gibi Yüksek Mahkemenin kararlarına karşı kullanılacak çareler olmayıp yargı ve-ya yarı quasi judicial yargı yetkisi kullanan Mahkeme vey komisyonların kararlarına karşı Yüksek Mahkemece kullanılabilen denetim yetkisidir.

Ancak bu gibi emirleri Yüksek Mahkemenin Yargıtay olarak kullandığı yetkilere diğer bir ifade ile istinafen kul-lanılan yetkiye paralel olarak kullanabildiği bazı içtihat kararlarında görülmektedir. Z. M. Necatigil Administrative Law isimli eserin 306. sayfasında Channel Coaling Co. v. Ross (1907) 1 K.B. 145, ve R. v. Comptroller General of Patents (1953) 1 All E.R.- 862, at p. 865'deki içtihat kararlarına atıfta bulunarak şu görüşe yer vermektedir:
"In deciding whether or not to grant an order of prohibition or certiorari, the court will not be fettered by the fact that an alternative remedy exists to correct the ab-sence or excess of jurisdiction, or that an appeal lies against the absence or excess."

Ancak bazı hallerde Certiorari ve Porhibition emirleri, istinaf yetkisi kullanan Yargıtay'ın yetkilerine paralel olarak Yüksek Mahkemece kullanılması söz konusu olmas-ına rağmen R. v. Peddington Valuation Officer and Another, ex parte Peachey Porperty Corporation Ltd (1965) 2 All E.R. 836, at p.840'daki içihat kararında Lord Justice Denning'in değindiği gibi Yasada mevcut olan bir çarenin kullanılmasının uygun olmaması -veya bu alternatif olarak görülen kanuni çarenin kullanılamaz veya faydalı, tesirli bir şekilde kullanılması söz konusu olmadığı hallerde Certiorari ve Prohibition emirlerine başvurulmasının uygun olabileceği görüşünü belirtmiştir. Keza aynı kararda Mahkem-e, Certiorari ve Porhibition emirlerini verirken bu gibi emirlerin verilmesinin doğurabileceği neticeleri de Mahkemenin düşünerek, iyi değerlendirilmesinin gerektiği vurgulanmıştır. Lord Justice Denning, sözü edilen kararda, 5 başlık altında özetlediği pre-nsipleri faydalı olacağı düşüncesi ile bu karara aktarmayı uygun buldum.

"I. What is the proper?
The first question is whether the remedy by certiorari or mandamus is open at all, seening that there is a remedy given by statute. The statutory remedy- is contained in s.40 to s. 49 of the Local Government Act, 1948, as amended by s.1 and s.3 of the Lands Tribunal Act, 1949. Summarised, the remedy is this: the applicants, if they are aggrieved, are entitled to make proposals for the alteration of the val-uation list. They can propose alterations, either downwards or upwards. On the one hand, they can ask that the values on their own Park West flats, be reduced. On the other hand, they can ask that the values on other people's flats in converted houses be i-ncreased. If the valuation officer does not agree to the proposals, the applicants can appeal to the local valuation court. If that court decides against them, they can appeal to the Lands Tribunal. The decision of the Lands Tribunal is final, save that on-e point of law there is an appeal to the Court of Appeal: and thence, in turn, with leave, to the House of Lords.

Counsel for the first respondent contended strongly before us that, as Palriament had provided this specific remedy, the applicants ought t-o go by it. There was a code of procedure, he said, specially designed by Parliament, to deal with grievances such as these. That was their proper course. Indeed their only coursde. Such specific remedy being given, they could not resort to the remedy of c-ertiorari or mandamus. He supported this contention by reference to Pasmore v. Oswald- twistle Urban District Council (1), R.v. City of London Assesment Committe (2) and Stepney Borough Coucil v. John Walker and Sons, Ltd. (3). Now these cases certainly wa-rrant the proposition that, if the applicants ere attacking the assessment of any one aprticular hereditament, or any small group of hereditaments, such as all the houses in a particular terrace, their only remedy would be that statutory remedy. By which I- mean that, if and in so far as the are attacking particular assessments within a valid valuation list, they must go by the remedy with Palriament has provided, namely, to make proposals to alter those assessments. But if and in so far as they are attackin-g the valuation list itself and contend are attacking the valuation list itself and contend that the whole list is invalid (as they do), then I do not think that they are confined to the statutory remedy, for the simple reason that the statutory remedy is -in that case nowhere near so convenient, benefical and effectual as certiorari and amndamus. I suppose that in theory the applicants might make proposals for the alteration of every one of the 31,656 hereditaments in the list, but that would in practice be- impossible. Counsel for the first respondent conceded this, he suggested, however, that a few test cases might be taken, and proposals could be made for altering those few assessments, and a decision given by the Lands Tribunal. But one side or the other -might not agree on what should be taken as test cases. And in any case the procedure would be most deficient because there could be no discovery against the occupiers. I am, therefore, of opinion that the existence of the statutory remedy is no bar to this- application. The case falls within the general principle that the jurisdiction of the High Court is not to be taken away without express words, and this applies both to the remedies by certiorari and mandamus (see Re Gilmore's Application (4), and also to- the remedy by declaration (see Pyx Granite Co., Ltd. v. Minister of Housing and Local Government (5).

II. Is the applicant a "party aggrieved"?
The second question is whether the applicants are persons aggrieved so as to be entitled toa sk for certi-orari or mandamus. Counsel for the first respondent contended that they are not persons agrrieved because, even if they suceeded in inereasing all the gross values of other people in the Paddington ara, it would not make a pennyworth of difference to them.- Strange as it may seem, owing to the way expenses are borne in the County of London, the rate poındage of Paddington would rema-in the same even if thea ssessment of the falts in cıverted houses were greatly increased. If the flats in converted houses were gretly increased. If the assessments were increased by £1,000,000, the rate poundage would be reduced by a penny. I do not thin-k that grievances are to be measured in ponds, shillings and pence. If a ratepayer or other person finds his name included in valuation list which is invalid, he is entitled to come to the court and apply to have it quashed. He is not to be put off by the -plea to have it sufferd no dmage,a ny more taht the voters were in Ashby v. White (6). The court would not listen, of course, to a mere busbody who was interfering in things which did not concern him. Unit will listen to anyone whose interest are affected -by that has been done, just as it d,id in R.v. Thames Magistrates' Court, Ex p. Greenbaum (7), and in A.-G. Of Gambia v. N'Jie (8). So here it will listen to any ratepayer who conplains that the list is invalid.

III. Are certiorari and mandamus available?-
The third question is whether certiorari and mandamus are available in respect of a valuation list. The Divisional Court (9) thought that they were, and counsel for the respondent did not contend otherwise. The first respondent is a public officer e-ntrusted with a public duty. He has legal authority or power to determine questions affecting the rights of subjects, namely, to assess the values of hereditaments. This power carries with it the duty to act "judicialy", which means, I think, fairly and ju-stly in accordance with the statute. If the declines or fails to carry out this duty, he is amenable to mandamus, and the list itself is liabel to quashed on certiorari: see R. v. Electricity Comrs., Ex p. London Electricity Joint Committee Co. (10), R. v.- Manchester Legal Aid Committe , Ex p. R.A. Brand and Co., Ltd. (11), Ridge v. Baldwin (12).

IV. The resulting chaos.
The fourth question is what is to happen if the valuation list is quashed. It was said that it would be a nullity from the beginning. T-he rating authority would have to go back to the 1956 list which was based on 1939 values, see s. 34 (2) of the Local Government Act, 1948. It would be necessary, it eas said, to unravel all the assestments and payments since Apr. 1, 1963. The result woul-d be chaos. I do not accept this at all. It is necessary to distinguish between two kinds of invalidity. The one kind is where the invalidity is so grave that the list is a nullity altogether. In which case there is no need for an order to quash it. It is -automatically null and vaid without more ado. The other kind is when the invalidity does not make the list void altogether, but only voidable. In that case it stands unless and until it is set aside. In the p