IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA.

Transcription

1 , \ t f ( l N THE COURT OF APPEAL OF THE DEMOCRATC SOCALST REPUBLC OF SR LANKA. n the matter of an Appel from the order dated made by the Provncal Hgh Court of Uva Provnce holden n Badulla n the exercse of ts ursdcton under Artcles 54P 38() of the Consttuton of the Democratc Socalst Republc of Sr Lanka. Samarakoon Mudyanselage Bandara Menke, of Nuwara Kade, Meegahakwula Respondent-Pettoner-Appellant e.a.(phc)appeal No. 6/204 P.H.e. Badulla Case No. 02/204(Rev) M.e. Badulla CaseNo Vs. Dvsonal Secretary, Offce of the Dvsonal Secretary, Meegahakwula Pettoner -Respondent Respondent

2 BEFORE ANAK DE SLVA,. & ACHALA WENGAPPUL,. COUNSEL WRTTEN SUBMSSONS TENDERED ON DECCED ON Dr. Sunl Cooray for the Respondent Pettoner-Appellant V.P. Senasnghe S.c. for the Pettoner Respondent-Respondent ( by the Appellant) (by the Respondent) 07 th November, 208 ************* ACHALA WENGAPPUL,. Ths s an appeal fled by the Respondent-Pettoner-Appellant (herenafter referred to as the" Appellant") seekng to set asde an order of dsmssal of her revson applcaton No. HC/02/204/Revson, made by the Provncal Hgh Court of Uva Provnce holden n Badulla, upon holdng the vew that t had no ursdcton to entertan the sad revson applcaton as per the udgment of the Supreme Court n The Superntendent, Stafford Estate, Ragala and Others v SolamuthuRasu (203) Sr L.R. 25. n hs applcaton No , fled under secton 5 of the State Lands (Recovery of Possesson) Act No.7 of 979 as amended, the Applcant Respondent-Respondent (herenafter referred to as the "Respondent") 2

3 , t \, l -,. sought an order of eectment of the Appellant from the State land descrbed n ts schedule. After an nqury, the Magstrate's Court of Badula, by ts order dated , had ssued an order of eectment aganst the-appellant. The Appellant had thereafter nvoked revsonary ursdcton of the Provncal Hgh Court to have the sad order of eectment set asde. The Provncal Hgh Court dsmssed her applcaton on n lmne for want of ursdcton. Beng aggreved by the sad order of dsmssal, the Appellant seeks to challenge ts valdty on the bass that the Provncal Hgh Court had erroneously held that t had no ursdcton to entertan her revson applcaton. The Provncal Hgh Court, n ts mpugned order, has held that n Vew of the reasonng of the Supreme Court udgment 0' The Superntendent, Stafford Estate, Ragala and Others v Solamuthu Rasu, t has no ursdcton to entertan the revson applcaton fled by the Appellant as ts subect matter concerns a State land. Ths determnaton by the Provncal Hgh Court s challenged by the Appellant and she submts to ths Court that / what the Supreme Court has decded n that case was that the Provncal Hgh Courts have no ursdcton to ssue a wrt n respect of State lands because State land s not a devolved subect. The Supreme Court has not decded, and could not have decded, and had no bass to decde, that the Provncal Hgh Courts have 'no ursdcton to exercse revsonary ursdcton where the land n queston s a State land." 3 f

4 n hs reply, the Respondent submts that the sad Supreme Court udgment "... should not be nterpreted beyond the apponted boundares. Because Artcle 54P(3)(6) grants parallel ursdcton to revse any "order", and t does not matter whether such order "relates or nvolves" State land or crme. Legslatve and Consttutonal power relatng to crmnal law were not devolved as much as power over State land; but once the Magstrates Courts exercse such ursdcton, then Provncal Hgh Courts are rendered competent to exercse revsonary ursdcton only as a matter of revson of that Court" (emphass s orgnal). n vew of the submssons of the Appellant ths Court must consder the queston whether the Provncal Hgh Court could exercse revsonary ursdcton over an order of eectment ssued by the Magstrate's Court, upon an applcaton under secton 5 of the State Lands (Recovery of Possesson) Act No.7 of 979. Artcle 54P(3)(b) confers ursdcton to a Provncal Hgh Court to; "notwthstandng anythng n Artcle 38 and subect to any law, exercse, appellate and revsonary ursdcton n respect of convctons, sentences and orders entered or mposed by Magstrate's Courts and Prmary Courts wthn the Provnce"; n addton, Artcle 54P(3)(c) also provde ursdcton to; "exercse such other ursdcton and powers as Parlament may, by law, provde." Secton 5 of the Hgh Court of the Provnces (Specal Provsons) Act No. 9 of 990 made the provsons of the wrtten law applcable mutats 4

5 mutands to applcatons made to the Court of Appeal for revson of any. convcton, sentence or order by a Magstrate's Court. t s clear upon plan readng of the Artcle 54P(3)(b) and (c) that t does not mpose any restrcton to the scope of the revsonary ursdcton t had conferred upon the Provncal Hgh Court over the Magstrates and Prmary Courts whch are located wthn the provnce. Secton 5 of the Hgh Court of the Provnces (Specal Provsons) Act also does not contan any such restrcton n ts scope. Thus, t seems that the Provncal Hgh Court could exercse revsonary ursdcton over any order ssued by the Magstrate's Court unless such exercse s specfcally prevented by law. We now proceed to consder the reasonng of the Supreme Court, n the lght of above consderatons. The queston of law that had been presented before ther Lordshps was; "Dd the Court of Appeal err by decdng that the Provncal Hgh Court has ursdcton to hear cases where dspossesson or encroachment or alenaton of State lands s/ are n ssue?" Havng consdered the relevant Artcles of the Consttutons and udcal precedents, the apex Court has decded that; / the Court of Appeal erred n law n holdng that the Provncal Hgh Court of Kandy had ursdcton to ssue a wrt of certorar n respect of a qut notce ssued under State Lands (Recovery of Possesson) Act as amended." Artcle 54P(4)(b) confers the Provncal Hgh Courts wth ursdcton to ssue:- 5

6 "orders n the nature of wrts of certorar, prohbton, procedendo, mandamus and quo warranto aganst any person exercsng, wthn the Provnce, any power under () () any law; or any statutes made by the Provncal Councl establshed for that Provnce, n respect of any matter set out n the Provncal Councl Lst./ Ther Lordshps thereafter proceeded to answer the queston of law presented before them as follows; "The queston of law consdered by ths Court s thus answered n the affrmatve./ t s clear that the rato of the sad udgment of the Supreme Court s that the Provncal Hgh Court has no ursdcton to entertan an applcaton under Artcle 54P(4)(b) of the Consttuton n relaton to State lands. There s no reference to Artcle 54P(3)(b) of the Consttuton n the sad udgment, whch had conferred revsonary ursdcton to Provncal Hgh Courts establshed under Artcle 54P of the Consttuton. Although the queston of law presented before the apex Court had been formulated n wder terms, ther Lordshps have answered t only n relaton to provsons contaned n Artcle 54P(4) (b). We are therefore nclned to accept the submssons of the Appellant on ths pont. Therefore, the reference contaned n the sad udgment to the effect that / t s unfortunate that the Court of Appeal fell nto cardnal error of holdng 6

7 that the Provncal Hgh Court has ursdcton to hear and determne applcatons for dscretonary remedes n respect of qut notces under the provsons of the State Lands (Recovery of Possesson) Act No.7 of 979 as amended" should be understood n the context of Artcle 54P(4)(b) only. n vew of the foregong reasons, we are of the consdered vew that the Provncal Hgh Court had fallen n to error n holdng that t had no ursdcton to entertan an applcaton for revson under Artcle 54P(3)(b) of the Consttuton, upon msapplcaton of the prncple of law enuncated n the udgment of The Superntendent, Stafford Estate, Ragala and Others v Solamuthu Rasu. Ths Court has already held the dentcal vew on ths pont n CA(PHC) No.49/204 - decded on Accordngly, we allow the appeal of the Appellant and further drect the relevant Provncal Hgh Court to proceed wth the nqury nto the revson applcaton and to make an order on ts merts. Consderng the crcumstances under whch ths appeal s made, we make no order for costs. ANAK DE SLVA,. agree. UDGE OF THE COURT OF APPEAL UDGE OF THE COURT OF APPEAL 7