010-SLLR-SLLR-2006-V-3-URBAN-DEVELOPMENT-AUTHORITY-vs.-WEJAYALUXMI.pdf
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URBAN DEVELOPMENT AUTHORITYVSWEJAYALUXMICOURT OF APPEAL.
SOMAWANSA. J(P/CA).
WIMALACHANDRA. J.
CA 1581/2002.
HC COLOMBO 70/2000/7.
MC COLOMBO 78849/5.
State Lands (Recovery of Possession) Act, No.07 of 1979 as amended byAct, No.58 of 1981 and Act No. 29 of 1983 – Sections 9, 9(1) – Ejectment -Recovery of Possession – Resistance- Valid permit or written authority -name in a list – Urban Development Authority – Locus standi- CompetentAuthority – Revision – Exceptional circumstances? – Gross miscarriage ofjustice – Laches?
The Additional Director General of the Urban Development Authority (UDA)as the competent authority of the petitioner UDA under the State Lands(Recovery of Possession) Act filed a certificate for the ejectment of therespondent and for the recovery of possession of the land.
The learned Magistrate ordered the eviction of the respondent. In therevision application filed in the High Court the learned High Court judge
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revised the order of the Magistrate’s Court on the basis that therespondent's name appears in a list of persons (P1) who were recipientsof lands on a particular scheme. The Urban Development Authority soughtto revise the said order.
HELD:
The document P1 is a list of persons scheduled for allotment ofland; it is clear from the document that the persons scheduled forallotment of land had not been finalized.
P1 is not a valid permit within the meaning of section 9(1) of theState Lands (Recovery of Possession) Act. The burden is on therespondent to establish that she is in possession upon a validpermit or the written authority of the State.
The Urban Development Authority is a legal person which caninstitute proceedings in its own name. The UDA Act provides for thecompetent authority to institute proceedings in its own name. TheUDA Act provides for the competent authority to institute proceedingson behalf of the UDA. The Board of Management of the UDA had ata meeting authorized its Additional Director General to act as thecompetent authority in terms of section 8(1) (h) to carry out dutiesunder the State Lands (Recovery of Possession) Act.
Per Wimalachandra, J.
“A competent authority appointed by the UDA has every right to initateproceedings for ejectment, however as regards this application theUDA being a corporate body in whom the land was vested has everyright to make this application to Court".
(3) There exists a clear miscarriage of justice as the High Court hadheld that P1 is a valid permit when it was only a list of personsselected for allotment of lands and one of the persons selectedwas the respondent – this can only be corrected by invoking theRevisionary jurisdiction.
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(4) When there is a satisfactory explanation with regard to the delayand the period of delay is not excessive and if it appears that theimpugned order is manifestly erroneous application should not bedismissed simply on the grounds of delay.
APPLICATION in revision, from an order of the High Court of Colombo.
Cases referred to :
Wedamulla vs Abeysinghe 1999 – 3 SLR 26
Farook ys. Gunawardane, Government Agent, Amparai 1980-2 Sri LR 243
Rustom vs. Hapangama and Co. 1978 —79 – 2Sri LR 225
Rasheed Ali vs. Mohamed Ali – 1981 – 1SRI LR 262
Soysa vs. Silva 2000 2 Sri LR 235 –
Bisomenike vs. Cyril de Alwis 1982 1 Sri LR 368 at 379 –
A. P. Niles with Arosha Silva for petitioner.
P. Sivaloganathan for respondent petitioner respondent.
Cur.adv.vult.
January 10, 2006.
WIMALACHANDRA, J.
This is an application in revision from the judgment of the learnedHigh Court Judge of Colombo dated 29.05.2002. Briefly, the factsrelevant to this application are as follows :
The Additional Director General of the Urban Development Authorityfiled a certificate as the competent authority of the petitioner (UrbanDevelopment Authority) under the State Lands (Recovery of Possession)Act No.07 of 1979 as amended by Act No.58 of 1981 and Act No.29 of1983, for the ejectment of the respondent-petitioner – respondent .(respondent) and for the recovery of the possession of the land describedin the certificate and affidavit filed by the petitioner. After hearing thesubmissions made by the petitioner and the respondent, the learnedMagistrate made order on 14.07.1999 in favour of the petitioner, orderingthe eviction of the respondent from the said land. Thereafter therespondent made an application to the Magistrate’s Court moving the
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Court to reconsider the aforesaid order dated 14.07.1999. The learnedMagistrate who made the said order went on tranfer and the secondapplication was taken up before the new Magistrate. The learnedMagistrate by his order dated 15.03.2000 refused to set aside theorder of his predecessor. Thereafter the respondent filed an applicationin revision from the aforesaid orders dated 14.07.1999 and 15.03.2000in the High Court of the Western Province sitting in Colombo. Whenthe matter came up for hearing the learned High Court judge reversedthe aforesaid orders of the Magistrate’s Court and dismissed theapplication of the petitioner by his judgment dated 29.05.2002.
When this matter was taken up for argument, the parties were contentto rely on their written submissions and invited the Court to makeorder on the written submissions filed.
It is not in dispute that in the year 1993, applications were called forfrom persons who were below a certain income level for the allocationof lands in extent of two perches each by the National HousingDevelopment Authority. The respondent submitted an application andwas selected as one of the recipients of the allotment of lands inKuruniyawatte.
She was alloted lot No.125 of the survey sketch produced at theMagistrate inquiry marked “P2.” A copy of the list of 84 persons selectedas successful recipients of lands was produced marked “PI” at theinquiry held before the learned Magistrate.
The respondent states that she took possession of the aforesaid lotallotted to her and spent large sums of money in developing the land.
A copy of the letter dated 13.01.1994 addressed to the Chairmanand the Divisional Secretary of Kolonnawa for the publication of thelist of persons who were recipients on this particular scheme wasproduced marked ‘P3’ at the inquiry held before the Magistrate. Therespondent states that it is at this stage the Urban DevelopmentAuthority gave “Quit Notice’ without jurisdiction and without any reasonby its letter dated 07.01.1997 under section 3 of the State Lands(Recovery of Possession) Act and followed it by filing action in theMagistrate Court for the ejectment of the respondent.
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The learned High Court judge had failed however to consider whether'P1 ’ fell within the meaning of section 9 of the State Lands (Recoveryof Possession) Act. Section 9(1) reads thus :
“At such inquiry the person to whom summons undersection 6 has been served shall not be entitled tocontest any of the matters stated in the applicationunder section 5 except that such person may establishthat he is in possession or occupation of the land upona valid permit or other written Authority of the Stategranted in accordance with any written law and suchpermit or authority is in force or not revoked orotherwise rendered invalid”.
Therefore the burden is on the respondent to establish that she is inpossession of the land in question upon a valid permit or other written
It is to be observed that the above mentioned document “P1" is alist of persons selected for the allotment of lands and the respondentwas one of the persons selected as a recipient. *P2’ is the surveysketch showing the lot to be allotted to the selected recipients and'P3' is a letter addressed to the Chairman and the Divisional Secretaryof Kolonnawa for the purpose of publishing the list of persons selectedas recipients of allotments, giving the opportunity for any personinterested to make objections.
The learned High Court judge in his judgment held in favour of therespondent, having come to the conclusion that the document marked‘P1 ’ was a valid permit issued to the respondent under section 9 of theState Lands (Recovery of Possession) Act. In his judgment at page 5,the learned High Court judge had made the following observations;
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authority of the State granted in accordance with any written law. Thedocument “P1" is a list of persons selected for allotment of land. It isclear from the aforesaid documents P1, P2 and P3 the personsselected for allotment of land had not been finalized. Accordingly, it ismy considered view that the document *P1 ’ is not a valid permit withinthe meaning of section 9(1) of the State Lands (Recovery of Possession)Act. The respondent did not therefore possess the requirement ofsection 9 of the State Lands (Recovery of Possession) Act. In thecircumstances the learned High Court judge has erred in law in holdingthat the document “P1” is a valid permit within the meaning of theprovisions of section 9 of the said Act.
The next matter to be considered is the objection raised by therespondent that the Urban Development Authority has no locus standito step into the shoes of the Competent Authority lawfully appointedunder the State Lands (Recovery of Possession) Act to institute thisapplication in revision. The Urban Development Authority Act (asamended) states that the Urban Development Authority is a bodycorporate which can institute proceedings and also be sued in legalproceedings. Thus the Urban Development Authority is a legal personwhich can institute proceedings in its own name. It is to be noted thatthe Act also provides for the "Competent authority" to instituteproceedings on behalf of the Urban Development Authority. The definitionof the term “competent authority” under the State Lands (Recovery ofPossession) Act, reads as follows :
“Competent Authority includes ‘an officer generallyor specially authorized by a corporate body, wheresuch land is vested in or owned by or under the controlof, such corporate body.’ Section 18 State Lands(Recovery of Possession) Act as amended by section5(h) of Act No.58 of 1981.”
The petitioner produced the document marked “A7” which is theminutes of the Board Meetings of the Urban Development Authorityheld on 26.11.1993. According to the Board Paper No.422/93 in item14.06.01, the Board of Management of the Urban Development Authorityhad authorized Mr. A. Wedamulla, Additional Director General (Landsand Property) of the Urban Development Authority to act as the
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competent authority in terms of section 18(i)(h) as described in theBoard Paper for carrying out duties under the State Lands (Recoveryof Possession) Act, No.07 of 1979 (as amended). The documentmarked “A8" produced by the petitioner is a document signed by theMinister in charge of the Urban Development Authority, granting approvalfor the taking of action to eject the respondent, Wejayalaxmi from thesaid land.
The proceedings under the State Lands (Recovery of Possession)Act are required to be initiated by a “competent authority" A CompetentAuthority appointed by the Urban Development Authority has everyright to initiate proceedings for ejectment in the Magistrate Court. (VideS. C. decision in Wedamulla vs. Abeysinghe(1)) However, as regardsthis application, the Urban Development Authority being a corporatebody in whom the land in question was vested has every right to makethis application before this Court.
It was held in the case of Farook vs. Gunawardena, GovermentAgent Ampara(2) that at an inquiry before the Magistrate, the only pleaby way of defence that a party can put forward is that he is inpossession or occupation of the land upon a valid permit or other writtenauthority of the State granted in accordance with any written law andthat such permit or authority is in force and not revoked or otherwiserendered invalid.
In the instant case, the document relied on by the respondent isthe document ‘P1’ which is not a valid permit or any written'authorityof the State granted under any written law. The document 'P1' is onlya list of persons selected for allotment of land.
The last two grounds of objections of the respondent could beconveniently dealt with together. Counsel for the respondent submittedthat the petitioner has failed to show exceptional circumstances toinvoke the revisionary powers of the Court of Appeal and the petitionerhas made this application nearly 3 1/2 months after the judgment hasbeen delivered by the learned High Court judge. The learned counselfurther submitted that the petitioner has failed to explain the delay.
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It is settled law that in an application for revision it is necessary tourge exceptional circumstances warranting the interference of this Courtby way of revision.
It was held in the case of Rustom vs. Hapangama and Co.(3) that“the powers by way of revision conferred on the Appellate Court arevery wide and can be exercised whether an appeal has been takenagainst an order of the original Court or not. However, such powerswould be exercised only in exceptional circumstances where an appeallay and as to what such exceptional circumstances are is dependenton the facts of each case." Similarly in the case of Rasheed Ali vs.MohamedW it was held that “ the powers of revision vested in the Courtof Appeal are very wide and the Court can in a fit case exercise thatpower whether or not an appeal lies. Where the law does not give aright of appeal and makes the order final, the Court of Appeal maynevertheless exercise its powers of revision, but it should do so onlyin exceptional circumstances”.
In the instant case, the learned High Court judge held that thedocument ‘P1’ is a valid permit upon which the respondent was inpossession of the said land when it appears that *P1 ’ is only a list ofpersons selected for allotment of lands and one of the persons selectedwas the respondent. It is clear that “P1 ” does not fulfill the requirmentsof section 9 of the State Lands (Recovery of Possession) Act.Accordingly, I am of the view that a miscarriage of justice has occurred.In the case of Soysa vs. Silva{S) it was held that “the power given to asuperior Court by way of revision is wide enough to give it the right torevise any order made by an original Court, its object is the dueadministration of justice and the correction of errors sometimescommitted by the Court itself in order to avoid miscarriage of justice”.
In the present case there exists a clear miscarriage of justice asstated above. This can only be corrected by invoking therevisionary jurisdiction of this Court. Accordingly this applicationdiscloses exceptional circumstances to invoke the revisionary powers.
In this case the judgment sought to be revised was delivered on
Whereas this application was made on 10.09.2002. Hencethere is a delay of 31/2 months. The question whether delay is fatal to
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an application in revision depends on the facts and circumstances ofthe case. The petitioner has given an explanation for the delay in filingthis application. In paragraph 13 of the petition the petitioner statesthat since the High Court had postponed the delivery of the judgmentseveral times an error was made in taking down the date fixed for thejudgment, and when the petitioner became aware about thepronouncement of the judgment, an application was made by motiondated 03.07.2002 for a certified copy of the judgment. The certifiedcopy of the judgment was issued only on 20.08.2002 as shown by thedate stamp on it. The delay of nearly three months should beconsidered along with the facts and circumstances of the case. If itappears that the impugned order is manifeslty erroneous as in thiscase the application should not be dismissed simply on the ground ofdelay, moreso, when the petitioner has explained the delay. Whenthere is a satisfactory explanation with regard to the delay and theperiod of delay is not excessive, the Court shall not dismiss theapplication on the ground of delay alone. If an authority is required forthis equitable principle, it is found in the judgment of Sharvananda, J.(as he then was) in Bisomenika vs. Cyril de Alwis{6) at 379,
“When the Court has examined the record and issatisfied the order complained of is manifestlyerroneous or without jurisdiction the Court would beloathe to allow the mischief of the order to continueand reject the application simply on the ground ofdelay, unless there are extraordinary reasons to justifysuch rejection.”
For these reasons, I allow the application in revision. The order ofthe learned High Court judge dated 29.05.2002 is set aside and theorders of the learned Magistrate of the Magistrate's Court of Colombodated 14.07.1999 and 15.03.2000 are restored. In all the circumstancesI make no order as to costs.
SOMAWANSA, J. (P/CA) – / agree.
Application allowed.