024-SLLR-SLLR-1993-1-NIRMAL-PAPER-CONVERTERS-PVT-LTD.-v.-SRI-LANKA-PORTS-AUTHORITY-AND-ANOTHER.pdf
Nirmal Paper Converters (Pvt) Ltd v. Sri Lanka Ports Authority
and Another
219
CA
NIRMAL PAPER CONVERTERS (PVT) LTD.
v.SRI LANKA PORTS AUTHORITY AND ANOTHER
COURT OF APPEALWIJEYARATNE, J.
CA APPLICATION NO. 767/92.
MARCH 24. 1993.
Certiorari – Landlord and tenant – Recovery of Possession of State Land – StateLands (Recovery of Possession) Act No. 9 of 1979 – Stay Order – Court ofAppeal (Appellate Procedure) Rules 1990.
A stay order issued ex parte must be limited for a period not exceeding twoweeks to enable notice of the application to be given and the opposite partyheard in opposition thereto on a date to be then fixed (Rule 2 (1) of the Courtof Appeal (Appellate Procedure) Rules 1990).
Where the petitioner is not a lawful tenant but only a licensee making paymentsfor use and occupation, the owning authority is entitled to avail itself of theprovisions of the State Lands (Recovery of Possession) Act. The only ground
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on which the petitioner is entitled to remain on the land is upon a valid permit-or other written authority of the State as laid down in section 9 (1) of the StateLands (Recovery of Possession) Act and the petitioner did not have the semblanceof such a permit or authority.
A stay order should not be given unless a very strong case is made out; otherwiseinjustice will be caused to the other side. When a stay order is given, everyeffort is taken unreasonably to prolong proceedings.
APPLICATION for Writ of Certiorari and extension of stay order.
Faiz Mustapha, P.C. with Mahanama de Silva and H. Withanachchi for thepetitioner.
K. C. Kamalasabayson, D.S.G., for the respondents.
Cur. adv. vult.
March 24, 1993.
WIJEYARATNE, J.
The petitioner has filed this application on 19.10.92 for a Writ ofCertiorari to quash the notice dated 26.8.92 (marked x) issued bythe 2nd respondent asking the petitioner to quit the premisespresently occupied by the petitioner's business. This notice has beenissued under the State Lands (Recovery of Possession) Act, No. 9of 1979.
The petitioner has averred that M. B. Wenceslaus was a tenantof these premises under the 1st respondent and its predecessor andthat he had instituted action No. 3624/ZL for a permanent and interiminjunction restraining the 1st respondent from ejecting him unlawfullyand illegally.
On 20.7.87 the learned District Judge of Colombo, after trial,dismissed the action and thereafter he has filed an appeal to thiscourt in case No. 560/84 (F) and the said appeal is pending.
Thereafter the petitioner-company was established at the instanceof the said Wenceslaus and business that was carried out by himin his private capacity was transferred and carried on by thepetitioner-company and the petitioner-company paid rents amountingto Rs. 3,745 per month to the 1st respondent. The said Wenceslauswas the Managing Director of the petitioner-company and he had triedto negotiate a long lease but was unsuccessful.
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Nirmal Paper Converters (Pvt) Ltd v. Sri Lanka Ports Authority
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The petitioner averred that the 1st respondent demanded anexhorbitant rent and the petitioner had appealed, but the RentReview Committee of the 1st respondent rejected the petitioner'sappeal against the increased rental.
The 2nd respondent who is the Premises Officer of the 1strespondent has issued this notice under section 3 of the State Lands(Recovery of Possession) Act and the petitioner avers that this noticeis illegal and null and void as the petitioner claims to be a lawfultenant and maintains he can only be ejected by an order of the civilCourt. The petitioner alleges that it is not in unauthorisedpossession or occupation of these premises and therefore the noticeis ultra vires.
The petitioner has also asked for an order restraining the 1st and2nd respondents from taking steps to eject the petitioner in pursuanceof the said notice (x) until the final determination of the application.
This matter came up on 22.10.92 before two Judges of this Courtand order was made to issue notice for 17.11.92. A stay order wasissued in terms of paragraph (b) of the prayer of the petition till18.11.92.
The Court of Appeal (Appellate Procedure) Rules 1990, whichwere published in the Government Gazette (Extraordinary) No.645/4 of 15.1.1991, in Rule 2 (1) states that every application fora stay order shall be made with notice to the adverse party providedthat interim relief may be granted although such notice has not beengiven if the Court is satisfied that there has been no unreasonabledelay on the part of the applicant and that the matter is of suchurgency that the applicant could not reasonably have given suchnotice and in such event the order for interim relief shall be for alimited period not exceeding two weeks sufficient to enable therespondent to be given notice of the application and to be heardin opposition thereto on a date to be then fixed.
In the first instance the stay order was given for more than 14days, namely from 22.10.92 to 18.11.92, which is 26 days andexceeds the 14 day limit. Thereafter this stay order was extendedon various dates till 22.3.93.
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[1993] 1 SriLR.
When it came up on 22.3.93 the learned Deputy Solicitor-Generalappeared for the respondents and I had to consider the questionwhether this stay order should be extended.
Mr. Withanachchi, junior counsel for the petitioner, stronglycontended that this stay order had been issued by two Judges andit should not be intefered with. However this stay order was issuedex parte without hearing the other side on 22.10.92 for a period of26 days, which was in excess of the 14 day limit.
After that it had escaped the attention of everyone that therespondent should be given an opportunity to be heard in oppositionas laid down in Rule 2 (1 )(b). Therefore I heard the submissions fromboth sides.
Mr. Withanachchi, junior counsel for the petitioner, made sub-missions on behalf of the petitioner while Mr. Kamalasabaysonmade submissions on behalf of the respondents.
Mr. Withanachchi strongly urged that the petitioner was a tenantunder the 1st respondent and hence the normal procedure inthe civil courts should be followed to eject the petitioner.Mr. Kamalasabayson said that the payments were accepted for useand occupation and not as rent.
It is clear on the averments of the petition itself that the Chairmanof the 1 st respondent had required Wenceslaus to vacate the premiseson or before 31.12.80 on the ground that the premises were requiredfor development purposes. Thereafter Wenceslaus filed caseNo. 3624/ZL in the District Court of Colombo in January 1981, inwhich he was unsuccessful. That case is in appeal now.
On a reading of the averments in the petition it is clear that theseare business premises not governed by the Rent Act and that thepetitioner had refused to pay an enhanced rent as demanded by the1st respondent, which the 1st respondent was entitled to demand.
In these circumstances if the 1st respondent had to go to theDistrict Court and file a civil action for ejectment, such an action willtake at least 5 or 6 years in the District Court. It is notorious thatamendments of pleadings are made and postponements are soughtand obtained on personal and other grounds and it would take 5
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Nirmal Paper Converters (Pvt) Ltd v. Sri Lanka Ports Authority
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or 6 years for a judgment to be given in the District Court. Thereafteran appeal will be filed and it will take another 5 or 6 years to disposeof the appeal. Is the 1st respondent expected to take all these delayswhen the 1st respondent can avail itself of the provisions of the StateLands (Recovery of Possession) Act?
On the material before me it is clear that the petitioner is not alawful tenant. At the most he is a licensee who has been makingpayments for use and occupation, which payments have beenaccepted by the 1st respondent. Even if he is an overholding tenantthe 1st respondent is entitled to avail itself of the provisions of theState Lands (Recovery of Possession) Act for ejectment.
This Act was specifically passed for this purpose, namely to enableState agencies to obtain speedy possession of lands and buildingsbelonging to them without recourse to civil courts. The GovernmentQuarters (Recovery of Possession) Act No. 7 of 1969, was alsoenacted for this purpose. The provisions of either of these Acts canbe utilised.
The Managing Director of the 1 st respondent has filed an affidavit.In paragraph 19 of this affidavit he states that the petitioner'soccupation of these premises has hindered and is preventing the 1strespondent from proceeding its work programme and causing irrepa-rable loss and harm to the national economy.
The only ground on which the petitioner is entitled to remain onthis land is upon a valid permit or other written authority of the Stateas laid down in section 9 (1) of the State Lands (Recovery ofPossession) Act. He cannot contest any of the other matters. Thepetitioner has not been able to produce any valid permit or otherwritten authority. Moreover, irreparable loss and harm is caused tothe national economy. Therefore I am removing the stay orderforthwith.
Before concluding this order I wish to state that on 20.1.93 a datewas given till 18.2.93 to file a counter-affidavit. This was not doneon 18.2.93. Thereafter time was given till 3.3.93 to file this counter-affidavit. Then the stay order was extended till 4.3.93 and time wasgiven for the counter-affidavit till 20.3.93. The counter-affidavit did notappear to have been filed even on 20.3.93. After the stay order was
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obtained there has been an unreasonable delay on the part of thepetitioner in filing the counter-affidavit. This is a very good exampleof what happens when a stay order is given. Every effort is takenunreasonably to prolong the proceedings when a stay order is given.For these reasons a stay order should not be given unless a verystrong case is made out ; otherwise injustice will be caused to theother side. Here in this case the petitioner has no semblance of avalid permit or authority from the State.
I have a discretion in the matter whether to extend the stay orderor not. The stay order in this case is removed forthwith.
Stay order removed.