017-SLLR-SLLR-1985-V1-CHANDARASENA-v.-D-AHANAYAKE-AND-OTHERS.pdf
CHANDRASENA
v.DAHANAYAKE AND OTHERS
COURT OF APPEAL.
H. A. G. OE SILVA, J, AND SIVA SELLIAH, J.
C.A. APPLICATION No. 973/81.
NOVEMBER 15, 1984.
Writs of Certiorari and Mandamus -Is a trespasser in possession of State land anaggrieved person although he was unsuccessfully sued for eviction in the District Courtby a permit holder under the Land Development Ordinance ?- Will Certiorari issue atthe instance of such a person ? Mandamus – When will it lie ?
The petitioner had been unsuccessfully twice sued in the District Court m respect ot aland called Nidangala Ponedereya. This land had been onginaBy allotted in 1937 on apemut to one K. Omgi Appu utdet the Land Development Ordinance. In 1940 the saidDrngi Appu nominated the 1st respondent as his successor. After the death of DingiAppu. the land was given to 1st respondent on a permit but m June 1959 it wascancelled as he was not residing on the land. The petitioner entered into the land andpossessed it tor 16 or 17 years. The Government Agent issued instructions for takingover the land. Thereafter by tetter dated 6th August 1981 |X1) the Commissioner ofLoads (2nd respondent) informed the petitioner of a proposed division of the aRotmentby aiotiog ow acre to the 1st respondent, one rood and thirty-two perches to the 5threspondent and the balance after excluding a road reservation to the petitioner. Thepetitioner sought to have this decision gushed by certorari and a writ of mandamusdireetng the Comrmsanner of Lands to hold an appropriate inquiry under the LandDevelopment Ordnance
nffo *
(1.) Certoran will not be at the instance of the petitioner who is an avowed trespasserand therefore not an aggrieved person with a locus standi to make such an application
(2) Mandamus wfi be only to compel a functionary to perform some statutory duty. Itwil not he to compel the performance of a moral duty or anything contrary to law norwil it le to undo that which has been already done in contravention of a statute toenforce a duty to abstain from acting unlawfully
APPLICATION tor Writs of Cerhorari and MandamusN R M. Dakjtvam for the petitioner.
H. M P Herarh for the 1st respondent
PLO Premaratne, O. S G. for 2nd. 3rd and 4th respondents.
Cur. ad*, wit
I
February 22. 1986.
H. A. G. DE SILVA, J.
tj
In this application the petitioner who seeks a Writ of Certiorari and/or.Mandamus has averred that he has been in possession of a land called!Puwakwattehena Demya depicted as Lot 221 in F.V.P 43, for a{period of over 16 years , the 1st respondent instituted action in D.C.,Matara Case No. 3C16/L against the petitioner seeking a declarationthat he was entitled to the possession of a land referred to asNidangala Pottedeniya on the basis that he was the lawful permitholder and sought the ejectment of the petitioner from it, the saidaction was withdrawn by the 1 st respondent with liberty to file a freshaction, (vide Decree P1), thereafter the 1st respondent filed action inDistrict Court Matara Case No. L/3491 praying for a declaration thathe was entitled to the said land Nidangala Pottedeniya and to have the.
petitioner evicted therefrom and for damages; after trial the 1strespondent's action was dismissed with costs (vide judgment P2 andDecree P3)
The petitioner further avers that thereafter he had been summonedfor an inquiry to the Kachcheri on a number of occasions, which hehad duly attended but since the 1st respondent was absent, theinquiry was repeatedly adjourned and never held ; the land which thepetitioner is possessing is partly high land and partly paddy field and onthe highland is the petitioner's residing house: the said land is part ofa scheme for the landless and when the petitioner entered intopossession of it 16 or 17 years ago it was not being possessed byanyone , it was held in case No. 3491/L that the permit under theLand Development Ordinance, the basis on which the 1st respondentclaimed the land was of no force or avail in law, and that the 1strespondent was not a person entitled to get land in a scheme for thelandless ; the petitioner is a landless person ; the 4th respondent who^is an official concerned in the implementation of the LandDevelopment Ordinance is a close relative of the 1st respondent, andthat on 28th April 1981 threatened the petitioner by stating that thepetitioner would be evicted and the land given to the 1st respondent.
The petitioner goes on to aver that, by letter dated 6th August1981 (XIj the 2nd respondent has informed the petitioner that in viewof Attorney-General's letter of 16th January 1981 (X2)LotNo. 221 isto be divided by allotting one acre to the 1 st respondent, one rood 32perches to the 5th respondent and from Lot 91G excluding the roadreservation the rest to the petitioner. The petitioner prays1 for (1) anOrder in the nature of a Writ of Certiorari quashing the decision to givethe said land to the 1 st respondent and (2) an Order in the nature of aWrit of Mandamus on the 2nd respondent ordering him to hold aninquiry if necessary, in accordance with the provisions of the LandDevelopment Ordinance.
The 2nd to 4th respondents in their statement of objections and the *affidavit of the 3rd respondent aver that, Lots Nos. 91C and 91F in
V.P. 43(X) were first allotted to one K. Dingi Appu under the LandDevelopment Ordinance on permit No. 4172 of 1 st July 1937 and in1940, the said K. Dingi Appu nominated the 1st respondent as hissuccessor to this land ; after the death of the said K. Dingi Appu, theland was given over to the 1st respondent and in June 1959, thepermit issued to the 1 st respondent was cancelled as he was not
residing on the tend ; on 27th August 1962 the 2nd respondent hadinstructed the Govt. Agent, Matara to take over possession of theentirety of Lot 91C & 91F as there was a dispute between the 1strespondent and the 5th respondent and to take action to give the landearlier possessed by the 1 st respondent to him on a ten year lease ;further instructions were given on 3rd March 1964 that out of oneacre one rood and thirty two perches of Lot 221, an extent of oneacre be given to the 1 st respondent and the balance of one rood andthirty two perches and the entirety of Lot 91C be given to the 5threspondent and possession of the said land was given over asinstructed.
The said respondents go on to state that in 1969 the petitionerwithout any right whatsoever had illegally and unlawfully encroachedon the paddy land area in Lot 221 which had been given to the 1 strespondent and disputed the latter's right to possess the said land ;on representations made by the 1 st respondent to the 2ndrespondent a report was called for from the Government Agent,Matara (vide report R1); the 2nd respondent after consideration of allrelevant material had instructed the Government Agent, Matara by R 2to issue a permit to the 1st respondent in respect of the landpossessed by him under the middle class allocation scheme in termsof the Land Development Ordinance ; a permit dated 29th August1964 was therefore issued to the 1st respondent in respect of oneacre which is now depicted as Lot 221 A.
' The said respondents further aver that, subsequent to the decisionin D. C. Matara Case No. 3941/L, The Government Agent, Matarasought instructions from the 2nd respondent and also later from theAttorney-General in respect of the disputed land, (vide R 3 and R 4);in response to R 4 the Attorney-General sent his advice on 16thJanuaury 1981 (X2).
No counter-affidavits have been filed by the petitioner.
«
'Learned Counsel for the petitioner confined his submissions to (1)the question as to whether the petitioner has a legal right to ask for theWrits prayed for and (2) bias.
■ The learned Deputy Solicitor-General for the 2nd to 4th respondentson the first submission of the petitioner’s Counsel has submitted thatthe petitioner is, according to his own admission, a trespasser onCrown land and is in unlawful and illegal occupation of it and as such
he has no right to ask for an Order to quash the decision to give theland to the 1st respondent He submits that an application for a Writ ofCertiorari can be made by a person who is aggrieved by a decision, Hecites passages from De Smith, Judicial Review of AdministrativeAction (4th edition) page 419 which states :
'As has been indicated, a court is in practice unlikely to allow anapplication for Certiorari unless it has been made by someone who itregards as a person aggrieved for this purpose ; persons aggrievedhave been defined as those who have a particular grievance of their'own beyond some grievance suffered by them in connection withthe rest of the public."
and again at page 420 it is stated :
"A narrow view of locus standi may, however, be taken by theCourts when the grounds upon which the decision is challenged asthat some person other than the applicant was denied a fairopportunity to be heard".
He submits that the petitioner has absolutely np right to be heard inthe allocation of State land. Further the petitioner is an avowedtrespasser and as such he should quit the land and thereafter make anapplication for the allocation of State land. Up to date he has made nosuch application and as such he has no right to be heard nor is he aperson aggrieved.
It is abundantly clear from the facts averred by the 2nd to 4threspondents that in addition to the petitioner being a trespasser, hisstatement that he is a landless person and is residing on the portion ofhigh land forming part of the land in dispute has been denied. The saidrespondents have stated that the petitioner is the owner of 3 1/2acres of paddy land in the Gombadella Grama Sevaka area. They havefurther averred that the allocation of this land is not under a scheme-for land for the landless but under a middle class scheme. From, thesefacts it is clear that flTe petitioner has taken possession of the land in1965 or so, after the land had been allocated and handed over to the.1 st respondent in 1964. Thus he was a trespasser. A consideration ofthe facts averred by both the petitioner and by the respondents do notin my view place the petitioner in the position of an aggrieved personnor has he sufficiently discharged the burden cast on him to prove biason the part of any of the respondents in making the decision containedin X1. I therefore hold that in these circumstances a Writ of Certiorariwould not lie.
As far as the application for a Writ of Mandamus is concerned,though learned Counsel for the petitioner did not make submissions onthat remedy, it would suffice for it to be said that petitioner could askfor a Writ of Mandamus only to compel a functionary to perform somestatutory duty. What the petitioner is seeking to achieve is to compel aEstate officer to allocate land to an avowed trespasser. Further, thepetitioner has not even made an application for allocation of land.What he is attempting to do is to legalise his otherwise illegaloccupation of State land by obtaining a permit therefor from the State.In these circumstances there is no necessity even to hold an inquiry.De Smith (supra) at page 542 states .
'Mandamus will not of course lie to compel the performance of amere moral duty, or to order anything to be done that is contrary tolaw nor, in general will it lie for the purpose of undoing that whichhas already been done in contravention of statute. It would seemmoreover, that Mandamus is not the proper means of enforcing aduty to abstain from acting unlawfully. Thus, if a public authority orofficer threatens to act ultra vires the appropriate remedy will be aninjunction or a declaration and not an application for Mandamus notto exceed the powers conferred by law'.
It appears therefore that the petitioner s application for a Writ ofMandamus must necessarily fail. I accordingly dismiss this applicationwith costs fixed at Rs. 105 payable to the 1 st respondent and Rs. 315payable to 2nd to 4th respondents.
SIVA SELUAH, J. – I agree.
Application dismissed.