TUDOR PEERIS
V.
LAND REFORM COMMISSION AND OTHERS

COURT OF APPEAL
RANJITH SILVA, J.
SALAM,J.
CA 621/06
JULY 3,2008
OCTOBER 19, 24, 2008

Land Development Ordinance (LDO) - Section 109 - Permit holder- Land Reform Law 1 of 1972 - Section 3 (1) b - Section 19 Statutory Determination -

LDO Permit cancelled - in view of statutory declaration - Exercise of power - Nullity - Delay - fatal? - Constitution act 140- Finality Clause implications? - Determination vs. purported determination.

The petitioner, by virtue of permits issued by the Government Agent, in terms of the L D.O., became entitled to the possession of two parcels of land in extent A22 R2 P10 and 25A. 0R., 0P. The petitioner after the Land Reform Law came into force made a statutory declaration in respect of the two lands. The LRC thereafter made a statutory determination in terms of Section19 in favour of the petitioner. The two permits issued to the petitioner were cancelled as the petitioner did not present himself for an inquiry. The petitioner contended that the permits were not liable to be cancelled in view of the statutory declaration made in his favour and that according to the scheme of the Land Reform Law, land held on a permit is deemed to be a land owned by the permit holder by a legal fiction as provided for under Section 3 (4) of the Land Reform Law.

Held:

(1) As the lands in the statutory determination contained an extent, less than 50 acres the lands were not liable to be vested in the LRC despite the fact that the petitioner made the declaration. The petitioner did not become the statutory lessee of the two lands.

(2) Whether or not the decision to cancel the permit was correct - does not render the decision a nullity. Such exercise of power cannot be considered as nullity. Finality clause in Section 19 (b) has no application to the purported statutory determination made in favour of the petitioner.

(3) Writ of certiorari lay at the discretion of Court and will not be denied if the proceedings were nullity even if there was a delay, especially where denial of the writ was likely to cause prejudice, it could be issued.

(4) The purported statutory determination did not vest any title in the petitioner independent of any right that the petitioner may have had In respect of the same. The Divisional Secretary patently had the authority and power to inquire into and if necessary cancel the permits granted to the petitioner under the Land Development Ordinance.

(5) Finality clause in Section 19 (b) has no application to the purported statutory determination made in favour of the petitioner. A determination must be a real determination and a purported determination is no determination. An absolute nullity can be challenged even collaterally unlike a relative nullity or a contingent nullity. Statutory declaration made for a Land which was below the ceiling was a determination made without juridiction.

Per Ranjit Sliva, J.

"Although delay per se is not a ground to deny relief to an applicant under Article 140 in the exercise of the discretion vested in this Court, this Court will deny such relief if the delay has not been sufficiently explained or would have the effed of prejudicing third party rights.

APPLICATION for Writs in the nature of Certiorari and Mandamus.

Cases referred to:

1. Land Reform Commission vs. Rev. Ganegama Sangarakkitha Thero-1987 2 Sri LR 411
2. Jinawathie vs Emalin Perera - 1986 25 NLR 121
3. Biso Menika vs. Cyril de Alwis and others 1982 1 Sri LR at 368
4. Fernando vs. Minister of Land Development and Minor Export Agriculture and others 2004 Appellate Law Recorder(2) 20 at 24
5. Herath Dissanayakalage Ariyasiri vs. K. E. Seneviratne CA PHC 109/2006 at 15
6. Virakeseri vs. Fernando - 66 NLR 145 at 151
7. Hopman vs. Minister of Lands and Land Development 1994 2 Sri LR 240 at 246
8. Gunasekera vs. Weerakoon 73 NLR 262

Hemasiri Withanachchi for petitioner