JUDGEMENT

K.M.G.H. KULATUNGA, J.

Facts.

1. The petitioner is a son of the original grantee, Rajapakshe Mohottige Emis Appuhamy, of the grant bearing No. ප ො/ප්‍ර/4386, dated 28.01.1983, issued under Section 19 (4) of the Land Development Ordinance No. 19 of 1935 (hereinafter referred to as “LDO”). The said grant was registered on 24.06.1986. A copy of the said grant is annexed to this application marked P-1. This is in respect of 3 acres of high land.

2. The said Appuhamy died on 21.07.1986. Thereafter, the petitioner made an application to the Divisional Secretary to nominate him as the successor, as he was the eldest son. Upon considering this request, the 2nd respondent Divisional Secretary nominated the petitioner as the successor by his letter dated 23.01.2002 (vide P-3). Correspondingly, the petitioner was also named and registered as the owner of the said land (vide P-4). However, subsequently, the petitioner has found out that the registration of his succession had been cancelled and the 5th respondent, his brother, had been named as the permit holder of this land (vide para 2 of P-4). On inquiry, the 2nd respondent has, by letter dated 04.10.2004, confirmed the cancellation (vide P-6).

3. The reasons adduced for this decision, as stated in P-6, are that the registration of the grant issued to Appuhamy has been effected after the death of the said Appuhamy, and as such, the succession of the petitioner is void; that the original permit is now valid and operative, and all action in respect of the said land will be based on the said original permit; and that the grant bearing No. ප ො/ප්‍ර/4386 is not valid. Upon receiving this intimation, the petitioner has made several representations and requests to the respondents, but with no success. Further, the petitioner also has ascertained that upon the cancellation of his registration, the 5th respondent, Rajapakshe Mohottige Don Piyasena, has been named as the successor to the original permit and made a nomination in his favour.

4. The petitioner has also made a complaint to the Human Rights Commission. The position taken up by the 1st respondent is that since the original grantee, Appuhamy, was not alive when the letter by which the issuing of the grant was conveyed to him, the said grant was invalidated.

5. The petitioner has then instituted this application on 15.11.2019. Upon the granting of Notice, this Court has endeavoured to facilitate some form of settlement, and the respondents have inquired and a report has been submitted, marked R-8, along with the objections of the respondents. The petitioner has participated; however, the 5th respondent has not. The sum total of this report is that the grant is dated 28.01.1983 but registered on 24.06.1986. It is found that the said grant is valid, as the original grantee died thereafter on 21.07.1986; to that extent, the reason stated in P-6 has now been resiled and retracted to that extent.

6. However, it is reported that as the 5th respondent was the nominee in the original permit, the said nomination continued to be valid and effective even upon the issue of the grant, and as such, the petitioner’s nomination and succession effected on 06.03.2005 had been cancelled and a nomination made in favour of the 5th respondent and registered the same. Then, the 1st - 4th respondents concede in P-8 that if a nominee fails to succeed within 6 months or does not enter into possession, it is a failure of succession in terms of Section 68 of the LDO. It is further reported that a request for succession had been made by the 5th respondent on 04.08.2003. The 5th respondent had also asserted that he had been in possession since his birth. However, the said Report observes that the decision to register the 5th respondent as the successor had been made purely on the said letter, without independently ascertaining its correctness or veracity. In these circumstances, the Commissioner General of Land has expressed the view that the 5th respondent has fai