DIVISIONAL SECRETARY, MANIKHINNA

DIVISIONAL SECRETARY, MANIKHINNA

Vs.

BUHARDEEN

COURT OF APPEAL
WICKREMASINGHE,J.
SAMAYAWARDHENA, J.
CA/PHC/140/2013
PHC KANDY 23/2010/REV
MC TELDENIYA 92159

State Lands (Recovery of Possession) Act, No. 7 of 1979, sections 5, 6, 7, 8, 9, 10, 18--Encroachment upon state land-Unauthorised possession-Written authority-Scope of the inquiry-Competent authority

The petitioner divisional secretary filed an application in the Magistrate's Court under section 5 of the State Lands (Recovery of Possession) Act, No. 7 of 1979, to eject the respondent from the land in suit. The respondent resisted the application on the basis that the land is a private land and not a state land. As the respondent did not produce a valid permit or other written authority of the State, the Magistrate's Court made the order of ejectment under section 10 of the Act. In revision, the High Court set aside the order relying on Senanayake v. Damunupola [1982] 2 Sri LR 621. The petitioner moved the Court of Appeal to revise the order of the High Court.

Held:

1. There is a difference between challenging a decision of the competent authority under section 3 of the Act by way of a writ

of certiorari and challenging an order of ejectment made by a Magistrate under section 10 of the Act.

2. After the Judgment in Senanayake v. Damunupola, the legislature amended the principal Act by Act No. 29 of 1983 to encapsulate encroachment upon State land also within the meaning of unauthorised possession or occupation. The High Court erred in relying on Senanayake v. Damunupola to set aside the order of the Magistrate's Court.

3. In terms of section 21 of the Survey Act, No. 17 of 2012 and section 83 of the Evidence Ordinance, the Surveyor General's plan relied upon by the petitioner is prima facie evidence, and identification of the land is established by the petitioner.

4. According to section 9 of the State Lands (Recovery of Possession) Act, the only defence the respondent can rely on is that he has "a valid permit or other written authority of the State granted in accordance with any written law''. A decree entered by a Court where the State was not a party is not a written authority within the meaning of section 9.

5. When sections 6-10 are read contextually, it is clear that the use of the word "inquiry" in section 8 does not suggest a full-blown formal inquiry but affording a fair opportunity to the respondent to satisfy the court that the respondent has a valid permit or other written authority of the State granted in accordance with any written law.

6. In terms of the Transfer of Powers (Divisional Secretaries) Act, No. 58 of 1992, the divisional secretary is a competent authority to file the application in the Magistrate's Court.

Cases referred to:

1. Senanayake v. Damunupola [1982] 2 Sri LR 621
2. Gunaratne Menike v. Jayatilaka Banda [1995] 1 Sri LR 152 at 157
3. Mary Beatrice v. Seneviratne [1997] 1 Sri LR 197 at 203
4. Quinn v. Leathern [1901] AC 495 at 506.
5. Urban Development Authority v. Wijayaluxmi [2006] 3 Sri LR 62
6. Aravindakumar v. Alwis [2007] 1 Sri LR 316 at 319
7. Muthuvelu v. Dias [2004] 2 Sri LR 335 at 339
8. Nirmal Paper Converters (Pvt) Ltd v. Sri Lanka Ports Authority [1993] 1 Sri LR 219 at 223

9. Gunaratne v. Abeysinghe [1988] 1 Sri LR 255 at 262.
10. Banda v. President, M.P.C.S. Ltd, Medirigiriya [2003) 1 Sri LR 193

APPEAL from the Judgment of the High Court of Kandy.

Anusha Fernando, D.S.G., for the Applicant-Respondent-Petitioner.

Anura Meddegoda, P.C., with Jayani Jayasundara for the Substituted Petitioner-Respondent.

cur. adv. vult.

October 10, 2019

SAMAYAWARDHENA, J.

The Petitioner Divisional Secretary of Kundasale filed this application in the Magistrate's Court of Teldeniya under section 5 of the State Lands (Recovery of Possession) Act, No. 7 of 1979, as amended, to eject the Respondent from Lots 15 and 16 of the Preliminary Plan No. 2381 prepared by the Surveyor General.

Click Here to Read the rest of this document