ADIKARI MUDIYANSELAGE DAYANANDA

ADIKARI MUDIYANSELAGE DAYANANDA

VS.

SASHEENDRA RAJAPAKSA, BASNAYAKE N1LAME AND ANOTHER

SUPREME COURT
K.SRIPAVAN, CHIEF JUSTICE
BUWANEKA ALUWIHARE PC. J.
SISIRA J DE ABREW J.
SC FR APPLICATION No. 189/14
09.05.2016

Vacating of interim order- Article 17 and 126 of the Constitution- Interim order - Article 10 and 14 (1) (c) of the Constitution- Hereditary claim- Hearing to parties- Acting in collusion- Kapurala- Executive and Administrative action.

This is an application to vacate the interim order issued by the Supreme Court. Interim order issued without the 2nd Respondent being heard, but permitted to file objections to interim order. Effect of the interim order is to

restrain 1st Respondent appointing the 2nd Respondent as Kapurala of Devalaya.

HELD:

1) It is trite law that orders made by a judge in the exercise of his judicial discretion do not come within the purview of the special jurisdiction of the Supreme Court under Article 126 of the Constitution even though the said order may be the result of a wrong exercise of the judge's discretion.

Justice Colin-Thome, in the case of Leo Fernando Vs. Attorney General observed, " Within the framework of our Constitution, there is a fundamental reason for excluding judicial action from review under the procedure provided for in Article 126. Article 138 and 139 invest the Court of Appeal with an appellate jurisdiction for correction of all errors in fact or in law which shall be committed by any Court of first instance, tribunal or other institution. Under Article 128 an appeal shall lie to the Supreme Court from any final order, judgment, decree or sentence of the Court of Appeal in any matter or proceeding, whether civil or criminal which involves a substantial question of law. In the circumstances there is no basis for a collateral jurisdiction in respect of such action under Article 126."

2) In the case of A. K. Velmurugu V, A. G. and others Justice Sharvananda as he then was, stated that 'It is to be noted that the claim for redress under Article 126 for what has been done by an executive officer of the state is a claim against the state for what has been done in the exercise of the executive power of the state. This is not vicarious liability; it is the liability of the state; it is not liability in tort at all; it is liability in the public law of the state. Further, Justice Sharvananda in the case of Rienzie Perera and another V. UGC stated 'the expression executive and administrative action embraces executive action of the state or its agencies or instrumentalities, exercising governmental functions.'

In my view Kataragama Devalaya does not fall within any of the organs referred to by his lordship, nor can one say action of Basnayaka Nilame, appointing a Kapurala is exercising a governmental function.

All matters considered, for the reasons set out above, the application to have the interim order dissolved, is allowed and accordingly I make order vacating the interim order granted as per prayer (f) of the Petition by this court on 21st July 2014.

APPLICATION to vacate interim order.

Cases referred to:

1. Charles Appu Kapurala and others v. Manis Appu 71 NLR 250
2. W.A. Ratwatte v. Adikaram Bandara and others 70 NLR 231
3. Leo Fernando Vs. Attorney General (1985) 2 SLR 341
4. Murajikar V State of Maharashtra AER (1967) S.C.
5. A.K. Velmurugu V. AG and others 1981 1 SLR 406
6. Rienzie Perera and another V. UGC 79-80 1 SLR 128

Kuvera De Soyza PC for the Petitioner
Manohara De Silva PC for the 1st Respondent
Upul Jayasuriya for the 2nd Respondent
Nalin Ladduwahetti PC with Mrs. Lalini Silva for the Respondent
Parinda Ranasinghe Jnr. Deputy Solicitor General for the A.G.

cur. adv. vult.

October 28,2016

ALUWIHARE PC.J.

This Court heard learned Counsel representing both the Petitioner and some of the Respondents regarding the dissolution of the interim order issued by this Co

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