Vernon Rajapakse V. The Tribunal Of Appeal Et Al.

1947 Present : Wijeyewardene . J.

VERNON RAJAPAKSE, Petitioner, and THE TRIBUNAL
OF APPEAL et al., Respondents

IN THE MATTER OF APPLICATION FOR A MANDATE IN THE NATURE OF A WRIT OF PROHIBITION ON THE TRIBUNAL OF APPEAL CONSTITUTED UNDER THE PROVISIONS OF REGULATION 8(2) OF THE DEFENCE (COMPENSATION) REGULATIONS, 1942. APPLICATION NO . 505/1946.

Defence (compensation) Regulations, 194- Validity of - Requisition of land-Right of owner to claim compensation in ordinary civil Courts - Emergency Powers (Colonial Defence) orders in Council , 1939 and 1940 - Right of a Court of Law to canvass the power of the Governor to make Regulations thereunder- Governor's Order made under Emergency Laws (Transitional Powers) (Colonies, &c.) Order in Council, 1946, and published in Gazette of February 22, 1946 - Effect of that order - writ of prohibition.

The competent authority appointed under the Defence (Miscellaneous) Regulations took possession of an estate of the petitioner under Regulation 34 of those Regulations. The competent authority could not reach an agreement with the petitioner regarding the latter's claim for compensation in respect of the requisition of the estate and acting under regulation 7 of th Defence (Compensation ) Regulations, 1941 , referred the dispute to a Tribunal appointed under Regulations 8 (2) of those Regulations. In an application made by the petitioner for a mandate in the nature of Writ of Prohibition against the Tribunal-

Held , that the Defence (Compensation ) Regulations, 1941 , were intra vires of the powers conferred on the Governor by the Emergency powers (colonial Defence ) order in Council, 1939, and the Emergency Powers (colonial Defence) (Amendment) order in Council, 1940 , and deprived the petitioner of his right to make his claim for compensation in the ordinary civil courts. A court of law is not competent to canvass in the ordinary Civil Courts. A court of Law is not competent to canvass the power of the Governor to make his claim for compensation in the ordinary Civil Courts. A court of law is not competent to canvass the power of Governor to make a particular Regulation under the Orders in Council, 1939 and 1940 , once it appears to His Excellency that such Regulation is necessary for any of the specified purposes.

Held, further, that the Tribunal had jurisdiction to assess the compensation due in respect of the possession of the estate not only prior to February 24,1946, but also subsequent to that date.

APPLICATION for the issue of a writ of Prohibition on the tribunal of appeal constituted under the provisions of Regulation 8(2) of the Defence (Compensation ) Regulations, 1941.

H. V. Perera, K.C. (with him D. W. Fernando), for the petitioner.- There are two points on which the petitioner relies in support of his application for a writ of prohibition against the tribunal , viz.,(1) The Defence (Compensation) Regulations, 1941, are ultra vires of the powers conferred on the Governor by section 1 of the Emergency Powers (Defence) Act of 1939 and 1940 as adapted, modified and extended to Ceylon by the Emergency powers (Colonial Defence) Orders in Council of 1939 and 1940 . (2) Even if the Compensation Regulations are intra vires of such powers they ceased to be operative on February 24, 1946.

Goluwapokuna Estate was taken possession of under Regulation 34(1) of the Defence (Miscellaneous) Regulations made by Governor under

powers conferred on him by the Emergency Powers (Defence) Acts of 1939 and 1940 as adapted, modified and extended to Ceylon by Emergency Powers (Colonial Defence) Orders in Council of 1939 and 1940. Under the same powers the Defence (Compensation) Regulations, 1941, were made. The compensation Regulations are, it is submitted, ultra vires. In England an Act of Parliament, i.e., Requisitioned Land and works Act, Was considered necessary where the rights of subjec

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