041-SLLR-SLLR-2003-V-2-DINGIRI-MAHATMAYA-AND-OTHERS-v.-SAMARAWEERA-AND-OTHERS.pdf
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Sri Lanka Law Reports
12003) 2 Sri L.R
DINGIRI MAHATMAYA AND OTHERS
V
SAMARAWEERA AND OTHERS
COURT OF APPEALUDALAGAMA, J.
C.A. 2228/2002SEPTEMBER 4 AND 15, 2003
National Gem and Jewellery Authority Act, No. 10 of 1993 – Issue of licence -Lease bond for 2/3 share -Partition Law, sections, 66, 66 (1) and 66(2) -Lease bonds executed pending partition – Validity – Registration ofDocuments Ordinance, section 12(1).
A licence for mining of gems was issued to the 1 st respondent on the basis thathe had 2/3 share of the corpus on two lease bonds and had the consent ofthe other co-owners. It was contended that the two bonds were executedpending a partition action instituted in respect of the corpus and are thereforenot valid.
Held .
The trial court after holding that the plaintiff is disentitled to proceed withthe action due to the faulty registration of the lis pendens directed theplaintiff to file an amended plaint with a fresh lis pendens, if necessary.
The two lease bonds were executed after the said order and before theamended papers were filed and a fresh lis pendens registered.
In the circumstances the said bonds are valid for the purpose of considerationof the issue of a licence to mine for gems.
APPLICATION for a writ of certiorariCase referred to:
1. Kanagasabai v Velupillai 52 NLR 241
Nihal Jayamanne, P.C., with A.Nanayakkara andD.de Silva for petitioner.L.C.Seneviratne, P.C., with C.Abeysekera for 1st respondent.
Anusha Samaranayake, State Counsel, for 2nd respondent.
CA
Dingiri Mahatmaya and others v Samaraweera and others
(Udatagama, J.)
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October 3, 2003UDALAGAMA, J
The facts of this case show that vide P8, a license for mining 01of gems, had been issued by the 2nd respondent to the 1 st respon-dent in respect of the land called ‘Dabaraliyadda’ in terms of theprovisions of the National Gem and Jewellery Authority Act, No. 10of 1993.
It is also observed that the aforesaid land is co-owned andthat a partition action bearing No.1777/P had been filed in'D.C.Ratnapura. This fact is not disputed.
It is also admitted by the 1 st respondent that the latter wasentitled to a 1/96 share of the aforesaid land.10
The license for the mining of gems would issue underRegulation 8 of the State Gem Corporation Act only on the consentof other co-owners who together are entitled to claim ownership toan undivided 2/3 share. This provision is unambiguous.
The basis of the claim of the 1 st respondent to a license wasprimarily the leases obtained from other admitted co-owners includ-ing some petitioners as evident from the documents marked P6and P7 which, two leases significantly are dated 17.11.99 and
respectively. Purportedly the lease bonds referred toabove entitled the 1 st respondent to claim an undivided 2/3rd share 20of the aforesaid land and also claim rights as per the license issuedmarked P8. It is also obvious to this court that the aforesaid docu-ment P8 had been issued subject to conditions no doubt, to allayany prejudice to the lessors (including some petitioners) •
The pivotal point on which the petitioners claimed that theaforesaid P6 and P7 ought to be set aside and declared void is onthe basis that the provisions of section 66 of the Partition Law ren-ders the said two documents to be null and void ab initio as theprovisions of section 66(2) declares such voluntary alienation to bevoid as same conflicts with the provisions of section 66(1) of the 30Partition Law.
It is also the position of the petitioners that D.C.Ratnapuracase No.1777/P referred to above was instituted in September
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1976 and that the lis pendens was duly registered. The petitionersalso stated that accordingly the 1st respondent was disentitled toclaim ownership to 2/3 share of the land as he had done to obtainthe impugned license as P6 and P7 was void in law, with no rightsflowing therefrom.
However, document P3 filed of record which relates to theproceedings of 27.09.99 containing the order of the learned District 40Judge in the aforesaid case No.1777/P pertaining to a preliminaryobjection taken up as to the maintainability of the said action, hadin that order upheld the objection and had in view of the fact thatthe lis pendens in respect of the 4 lands sought to be partitionedincluding ‘Dabaraliyadde’ had not been duly registered, made orderthat the plaintiff file a fresh lis pendens.
Vide the provisions of section 66(1) of the Partition Law theplaintiff in a partition action is required to file with the plaint the lispendens addressed to the Registrar of Lands of the district in whichthe land sought to be partitioned is situated. The failure to do so in 50terms of the provisions of section 12(1) of the Registration ofDocuments Ordinance renders the decree entered in the actionvoid by reason of the lack of jurisdiction in the court which enteredit. (Kanagasabai v Velupillai,^'1)
The learned District Judge in the instant case by P3 referredto above clearly held and as stated earlier, that the plaintiff was dis-entitled to proceed with the action due to the faulty registration ofthe lis pendens and in fact directed the plaintiff to file amendedplaint with a fresh lis pendens if necessary. Accordingly amendedplaint appears to hav.e been filed on 24.11.95 and a fresh lis pen- 60dens registered on 15.12.99.
Importantly, the leases referred to above, P6 and P7 wereexecuted prior to the registration of the fresh lis pendens renderingthe compliance of section 66 referred to above, in respect of thealienation in P6 and P7, inapplicable.
I am inclined to the view that P6 and P7 are in fact valid forthe purpose of the consideration of the issue of a licence to minefor gems.
CA
Dingiri Mahatmaya and others v Samaraweera and others
(Udatagama. J.)
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In any event the petitioners now seek to quash P8 almost atthe expiry of the one year period to which same was issued on 70
which in fact renders this application for writ almost futile.
Furthermore the issue of a fresh license or an extension ofthe impugned license is another matter which would not warrantinterference of this court as such instance has not occurred as yetand would amount to mere speculation. Besides the petitioners arenot precluded from objecting to the issue of another license underthe provisions of the Act.
I would also disagree with the submissions of the learnedPresident's Counsel for the petitioners that the respondent hadobtained P8 without having the required 2/3rd share of the relevant 80land for the reasons stated above and also hold that in view of thefindings of the learned District Judge vide P3, lease bonds P6 andP7 were valid for the purpose of the issue of the impugned license.
This application is dismissed with costs.
Application dismissed.