ASST. COMMISSIONER OF AGRARIAN SERVICESRATNAPURA AND ANOTHER.
COURT OF APPEALF. N. D. JAYASURIYA J.,
February 22, 1996.
Agrarian Services Act 58 of 1979 – Eviction under S. 5(3) and Notice underS. 5(7) (b) (11) Eviction Inquiry – Not summoned – Delay – Filing of selfserving affidavit to contradict the Record.- Not filing all exhibits -consequences.
The Petitioner complained that he was not summoned by the AssistantCommissioner for an Inquiry under S.5(3) and sought to quash the Noticeof Eviction issued under S. 5(7) (b) (11) of Act 58 of 1979.
There is a presumption that official and legal Acts are regularly andcorrectly performed.
It is not open to the Petitioner to file a convenient and self-servingaffidavit for the first time before the Court of Appeal and thereby seek tocontradict either a quasi judicial act or judicial act.
If a litigant wishes to contradict the record he must file necessarypapers before the Court of first instance, initiate an inquiry before the Courtand thereafter raise the matter before the Appellate Court so that theAppellate Court would be in a position on the material to make anadjudication on the issues with the benefit of the Order of that Court.
Per Jayasuriya, J.
” A Petitioner who is seeking relief in an application for the issue of a Writof Certiorari is not entitled to relief as a matter of course, as a matter ofright or as a matter of routine. Even if he is entitled to relief, still the Courthas a discretion to deny him relief having regard to his conduct, delay,laches, waiver, submission to jurisdiction – are all valid impediments whichstand against the grant of relief."
There is a delay of over two and half years since making the orderchallenged.
AN APPLICATION for Writ of Certiorari.
Cases referred to:
K v Jayawardane, 48 NLR 503.
Dissanayake v IOKG Fernando – 71 NLR 356.
Biso Menika v Cyril de Alwis – 1982 – 2SLR 368
Sarath Hulangamuwa v Siriwardene, 1986 1 SLR 276 at 278.
D. R. P. Goonatilaka with S. Suraweera for Petitioner.
W. Dayaratne with Ms. Ranjika Jayawardena for Respondent.
Cur. adv. vult.
February 22, 1996.
There are two hurdles which the Petitioner has to surmount beforethis court could investigate into the merits of this application. ThePetitioner seeks a quashing of an alleged notice of eviction issued bythe Assistant Commissioner of Agrarian Services which has beenproduced marked P2 which is dated 11.11.87. On a perusal of P2, it ismanifest that this is an order made by the Assistant Commissionerunder section 5 (7)(b)(ii) of the Agrarian Services Act No: 58 of 1979.This order stems from an earlier order made by the Commissioner uponan application referred to him under Section 5(3) of the said Act whichorder is the operative and substantive order. The Petitioner has notclaimed any relief in respect of that order; he is only seeking relief inregard to the subsequent order which emanates and stems from theearlier effective order.
The Petitioner states that he has not been summoned by theAssistant Commissioner for the inquiry which was held on the complaintbearing no. 21/16/A.T./C/124. There is only his ipse dixit and bareassertion in support of that statement. If actually no notice was actuallyserved, it was open to the Petitioner, to file a certified copy of theentire proceedings with the journal entries with a view to substantiatehis assertion so that this court would be in a position to exercise itssupervisory jurisdiction. It appears that the Petitioner has with deliberatedesign and ingeniously resorted to the practise of not filing theseexhibits which are necessary for the exercise of supervisory jurisdictionby this court. There is a presumption that official and legal acts areregularly and correctly performed. It is not open to the Petitioner to filea convenient and self serving affidavit for the first time before the Courtof Appeal and thereby seek to contradict either a quasi judicial act orjudicial record. Justice Dias having considered a cursus curiae, whichhe has collated for the benefit of the legal profession, has set down theprinciple that if a litigant wishes to contradict the record, he must filethe necessary papers before theCourt of first instance initiate an inquirybefore the Court of first instance and thereafter raise the matter beforethe appellate court so that the appellate court would be in a position onthe material to make an adjudication on the issues with the benefit ofthe order of the Court of first instance. The Petitioner has filed a conve-nient and self serving affidavit and is now seeking to contradict therecord that notice or summons issued on him. The law does not permithim to do so. Vide the long line of cases collated by Justice Dias inKing v. Jayawardena(1). In the circumstances I hold that the Petitionerhas culpably failed to comply with his imperative and mandatory dutyto file with his application certified copies of the entire proceedingsbefore the Assistant Commissioner to enable this court to exercise itssupervisory jurisdiction. In the result, the application is required to bedismissed in limine. Secondly, the Petitioner is seeking by an applica-tion filed in the Court of Appeal Registry on the 5th September, 1990 toclaim from this court discretionary relief in respect of an alleged ordermade on the 1 st of November, 1987. The operative and substantiveorder has necessarily to be made at even an anterior point of time.Proceeding on the basis of the date in P2, which is 11.11.87, therewas a delay of over two and half years since the making of the order forthese papers to be filed, in the Court of Appeal Registry, JusticeWeeramantri has observed that a delay of eighteen months is fatal tothe prosecution of an application for a writ of certiorari where thePetitioner claims discretionary relief and where the court wouldscrupulously look into his conduct before it decrees relief in his favour- Dissanayake v. I.O.K.G. Fernando(2). In the instant case the delayexceeds that period. There is no ground urged for such delay. Theprinciples laid down in the English Courts in this context have all beencollated in the judgment of Justice Sharvananda in Biso Menika v. Cyrilde Alwis, (3) and in the judgment of Justice Siva Selliah in SarathHulangamuwa v. Siriwardena tAK
I hold that the Petitioner who is seeking relief in an application forthe issue of a writ of certiorari is not entitled to relief as a matter ofcourse, as a matter of right or as a matter of routine. Even if he isentitled to relief, still the court has a discretion to deny him relief havingregard to his conduct; delay, laches, waiver, submission to jurisdictionare all valid impediments which stand against the grant of relief. Applyingthese principles, I hold that this court is not disposed to grant thePetitioner discretionary relief upon this application in view of inordinatedelay and laches in filing the application in Court.
For the aforesaid reasons, I proceed to dismiss the applicationwith costs in a sum of Rs.1050/- payable by the Petitioner to the secondRespondent.
JAYAWEERA v. ASST. COMMISSIONER OF AGRARIAN SERVICES RATNAPURA A