v.CHAIRMAN, NO. 111, JANATHA ESTATE DEVELOPMENT BOARD
COURT OF APPEALGRERO. J.
C.A. NO. 1127/85,
M.C. BADULLA 75468,
22 NOVEMBER 1991
State Lands (Recovery of Possession) Act, No. 7 of i979, section 5 (1), 9(1) and9(1) – Burden of proof.
In an inquiry under the State Lands (Recovery of Possession) Act, the onus is onthe person summoned to establish his possession or occupation that it ispossessed or occupied upon a valid permit or other written authority of the Stategranted according to any written law. If this burden is not discharged, the onlyoption open to the Magistrate is to order ejectment.
APPLICATION for revision or restitutio in integrum.
M. P. Rajaratne for respondent-petitioner.Applicant-respondent absent and unrepresented.
Cur adv vult.
This is an application,for revision or restitutio in integrum filed bythe-.respondent-petitionerpraying that he be granted the relief that hehad asked in the petition. Re has filed this application to this Courtafter the learned Magistrate of Badulla had made his order on24.9.85 in M.C. Badulla Case No. 75468.
The said case arose as a result of an application made by theChairman of the Janatha Estate Development Board who was also aCompetent Authority under the State Lands (Recovery of Possession)Act No. 7 of 1979. He had made this application acting under Section5(1). of the said Act. When this application was made to theMagistrate's Court of Badulla, the learned Magistrate had actedunder Section 6(1) of the said Act and issued summons on therespondent-petitioner in this case to show cause why he and hisdependants should not be ejected from the land mentioned in theschedule to the application. The record reveals that an inquiry hadbeen held by the learned Magistrate with regard to this application.At the inquiry, several witnesses have given evidence on behalf of therespondent-petitioner, and certain documents also were tenderedand marked at the inquiry. After inquiry was over, the learnedMagistrate by his order dated 24.9.85, had allowed the application ofthe Competent Authority, and had ordered that the respondent andhis dependants should be ejected from the land in question. Beingaggrieved with this order, the respondent-petitioner has filed thisapplication to this Court.
In the application to this Court, the Chairman of the JEDB(Competent Authority) had mentioned the land which is possessed oroccupied by the respondent-petitioner in this case. According to theschedule, the land is described as follows:
All that defined and divided allotments of land situated in field No.14,. Seventh Division of Spring Valley Group, Spring Valley in PelpolaKoraie Yatikanda Division, Badulla District of the Province of Uvabounded on the north by Estate land allotted for village expansion,East by fiejd No. 14, South by field .No. 14 and on the West by roadfrom Kandana to Spring Valley and containing in extent within..thesaid boundaries about 1/2 an acre together with the building,plantations and everything else standing thereon and appertaining.,thereto.
Under Section §(1) of the State Lands (Recovery of Possession)Act No. 7 of 1979, the person on whom summons hasheen: 'sSrved(in this instance,-the respondent-petitioner) shall.not be’entitled tocontest any of the matters stated in the applicationundSi^ection 5except that such person may establish that he is in poSsessionor in occupation of the land upon a valid permit or other writtenauthority of the State granted in accordance with any written lawand that such permit or written authority is in force and not revoked orotherwise rendered invalid.
The said section clearly reveals that at an inquiry of this nature, theperson on whom the summons has been served has to establish thathis possession or occupation is upon a valid permit or other writtenauthority of the State granted according to the written law. Theburden of proof of that fact lies on that particular person on whom thesummons has been served and appears before the relevant Court. Inthis case the burden was on the respondent-petitioner to establishthe fact that he had a valid permit or other written authority of theState to occupy the land which is stated in the schedule to theapplication of the Competent Authority.
This Court perused the evidence given by the witnesses who werecalled on behalf of the respondent-petitioner. MuhandiramlageMuthubanda, the brother of the respondent, had given evidence atthe inquiry and according to his evidence, he had given the fourboundaries of the land in dispute. According to him, the boundariesare as follows:-
South: Kandana Spring Valley High Road.
North: Land of the allottees of houses.
East: State waste land.
West: Houses constructed by Housing Authority.
The extent of the land according to him is about 55.7 perches.
The Technical Officer Weerasekera Mudiyanselage Jayasekerahad given evidence and according to him, the boundaries of this landare as follows:
South: Road from Kandana to:Spring Valley High Road.y
-North: Houses under construction.
Tzast: The State waste land. ..
and extent of the land is about 40 perches:
When compared with the boundaries given to the land stated inthe schedule to the application with the boundaries given by the saidtwo witnesses. it would appear that the boundaries given to the landin,the schedule are. not the same boundaries as stated by the saidtwo witnesses. According to the application made by the CompetentAuthority, the land is described in,the schedule to the application,and the learned Magistrate has to consider whether the respondent-. petitioner is in possession or in occupation of the said land upon avalid permit or other written authority of the State granted inaccordance with any written law.
According to the evidence led by the respondent-petitioner at theinquiry, this Court is of the view that the respondent-petitioner hasfailed to establish the fact that he is in occupation of the landdescribed in the schedule to the application by the CompetentAuthority upon a valid permit or any other written authority of theState granted to him as stated in paragraph 9(1) of the State Lands(Recovery of Possession) Act. He has produced a number ofdocuments marked R1 to R8. It must be stated that these documentsdo not show the particular land with the boundaries as stated in theschedule to the application. Even the learned Magistrate hadmentioned this matter in his order. He had specially focused hisattention to R3 where the District Manager of the National HousingDevelopment Authority of Badulla had sent a letter to the respondentstating that the District Minister of Monaragala had decided toallocate a block of land from the Watagoda Housing Scheme. Even inthat document, there is no reference to the land, given in theschedule to the application. This Court perused the oral evidence aswell as the documentary evidence placed before the learned
Magistrate by the respondent to find out whether this respondent-petitioner is in possession of the land described in the schedule tothe application of the Competent Authority. It should be stated thatthis Court was unable to come to the finding that the respondent is inoccupation of the land in question, (as stated in the schedule tq-.AHeapplication) with a valid permit or other written authority of the State."
Unless the respondent-petitioner had established-before thelearned Magistrate .that he was in occupation of – the land' stated inthe schedule to the>application ori.a; valid pejjfait.or othdri writtenauthority of. the State, he cannot continue to occupyjhe saidjand andin terms of the-.State tlapds (Recovery; of Possession). Act, No. 7 of1979, the Magistrate had to make an order directing the respondentand his dependants to be ejected f/©'m the land,. Evert the learnedMagistrate in his order had stafdd so. No doubt in his order, thelearned Magistrate has stated that: urtdet Section 91 of the EvidenceOrdinance that oral evidence should not be allowed when a matterhas to be proved by documentary evidence. There is sense in whathe has stated. If the respondent had been granted a permit or anyother written authority by the State, it becomes a grant or otherdispossession of the property by the relevant authority. Then, at an. inquiry of this nature, he has to produce such document to show thatsuch a permit or any other written authority of the State was grantedto him.
This Court not only considered the documentary evidence placedbefore the learned Magistrate, but also considered the oral evidencegiven by the witnesses at the inquiry. But this Court is of the view thatsuch evidence does not satisfy the requirement of Section 9 of thesaid Act that he is in occupation or possession of the land in questionon the basis of a valid permit or other written authority granted by theState.
The learned Magistrate also stated in his order that if the burdenthat is cast on the respondent is not discharged properly, than he hasto allow the application of the competent authority. The learnedMagistrate had acted according to the provisions of the State Lands(Recovery of Possession) Act and, had given ample opportunity tothe respondent-petitioner to establish the fact that he is in occupationor in possession of the land in question (as described in-the scheduleto the application) as stated jn Section 9 of.the said Act. But thisGojiirt is of the view that he’.has failed to establish that he is inoccupation or possession of the land in question (i.e. the land statedIn the schedule.'to the application) in accordance with section 9 (1) ofthe said Act.-Therefore, there is no alternative'for the learnedMagistrate other thpn to allow the application of the CompetentAuthority."This- Court Is of the view that there is*fio reason to disturbthe findings of the.leamed Magistrate.
This Court is of the view that this Court cannot grant any relief thathas been prayed, for by. the respondent-petitioner in his petition.Therefore, this Court dismisses his-application, but without costs.
Learned Counsel for the respondent-petitioner submitted to courtthat he had erected a house and he is in occupation of the saidhouse. As this Court has dismissed this application of therespondent-petitioner and affirmed the order of the learnedMagistrate, the next step.that will have to be taken by the learnedMagistrate is to eject the petitioner from the land in question. ThisCourt, after consideration of the fact that this respondent-petitionerhas put up a substantial house and is in occupation of the house,directs the learned Magistrate not to issue a writ of ejectment till 31stof March, 1992. This period is given by this Court as some sort ofrelief to the respondent-petitioner, so that he could take steps to findout alternative accommodation before he is finally ejected or if he isso desirous, he may explore the possibility of getting a permit fromthe relevant authority to continue to occupy this land. But under nocircumstances, this period should be extended beyond 31st March,1992.
For the above stated reasons, the application of the respondent-petitioner is dismissed,.. •
MUHANDIRAM v. CHAIRMAN NO. 111 JANATHA ESTATE DEVELOPMENT BOARD