ALWIS v. WEDAMULLA ADDITITONAL DIRECTOR-GENERAL U. D. A.

043-SLLR-SLLR-1997-V3-ALWIS-v.-WEDAMULLA-ADDITITONAL-DIRECTOR-GENERAL-U.-D.-A..pdf


CA
Jayasinghe v. Gnanawathie Menike (Jayasuriya, J.)
417
ALWIS
V.
WEDAMULLA ADDITIONAL DIRECTOR-GENERAL U.D.A.
COURT OF APPEAL.
JAYASURIYA, J„
C.A. 582/97
M.C. COLOMBO 73487/2NOVEMBER 20,1997.
Urban Development Authority – Body Corporate – Competent Authority – Is theAdditional Director-General the ‘Competent Authority' to institute proceedings onbehalf of the Authority – locus standi -Is the approval by the Minister for Housinga condition precedent to the institution of proceedings for ejectment – StateLands Becovery of Possession Act.
Held:
Having regard to the definition of the term “Competent Authority" in theU.D.A. Act. it is manifest that the Additional Director-General of U.D.A. is nota Competent Authority.
There is no averment in the affidavit/documents that the powers of theDirector-General have been delegated.
Proceedings in ejectment could be instituted by the UDA against a personwho is an occupation of land vested in the U.D.A. provided such applicationto eject are authorised and have had die written approval of the Minister ofHousing. The proof of grant of such approval is a condition precedent to theinstitution of proceedings in ejectment.
418
Sri Lanka Law Reports
(1997J 3 Sri L.R.
APPLICATION in Revision from the Judgment of the Magistrate's Court ofColombo.
L C. §eneviratne P.C.. with A. Situge for respondent-petitioner.
F. Jameel SC with Kamani Wijesuriya SC for applicant-respondent.
Cur. adv. vult.
November 20, 1997.
JAYASURIYA, J.
The applicant-respondent has filed his objections. In his statementof objections the applicant-respondent is seeking to rectify thedeficiencies and omissions in the application which the applicant-respondent has filed before the Magistrate's Court. In the applicationwhich was filed before the Magistrate of Colombo, the initial issue iswhether the petitioner A. Wedamulla is an imposter or not?, whetherA. Wedamulla did have a locus standi or a status to institute theseproceedings before the Magistrate’s Court? Is he the "CompetentAuthority" as defined in the Act?
The Urban Development Authority Act (as amended) states thatthe Urabn Development Authority is a body corporate which caninstitute proceedings and also be sued in legal proceedings. Thus itis a legal persona which could have instituted proceedings even in itsown name. In addition the statute provides for the “competentauthority" to institute proceedings on behalf of the UrbanDevelopment Authority. Having regard to the definition of the term“Competent Authority" in the Urban Development Authority Act, it ismanifest that the Additional Director General is not a CompetentAuthority. If there had been a delegation of powers, rights andfunctions of the Director-General of the Urban Development Authorityto the Additional Director-General, then the petition and affidavit filedin the Magistrate’s Court ought to have set out and pleaded suchdelegation or appointment. There is no averment in the affidavit andin the documents filed that the Powers of the Director-General havebeen delegated on A. Wedamulla. the Additional Director-General didnot have a locus standi and a right and status to institute theseproceedings.
Alwis v, Wedamulla
CAAdditional Director-General U.D.A. (Jayasuriya, J.)419
Secondly, the proceedings in ejectment could be instituted by theUrban Development Authority against a person who is in occupationof land vested in the Urban Development Authority provided suchapplications to eject are authorised and have had :he wfittenapproval of the Minister of Housing. Thus, the statutory provisions ofthe Urban Development Authority Act and the State Lands (Recoveryof possession) Act set out a condition precedent for Ihe filing ofapplications for ejectment before the Magistrate's Court and even ifan application is wrongly accepted without such authority, thelearned Magistrate would not have jurisdiction, v/ithout thesatisfaction of the condition precedent, to further exercise jurisdictionupon such application. Persons affected by an intention to instituteproceedings in ejectment on the part of officials, frequently makerepresentations and submissions to the Minister and afterconsideration of such representations, the Minister may or may notgrant written approval. The proof of grant of such approval is acondition precedent to the Institution of proceedings in ejectmentand, compare the provisions of sections 104 and 147 of the CriminalProcedure Code and sections 97(1) and 135 of the Code of CriminalProcedure Act. The obvious intention of these statutory provisions inthe State Lands (Recovery of Possession) Act is to protect the privateperson from frivolous and vexatious proceedings in ejeclment. Thereis no averment either in the affidavit or in the documents filed beforethe learned Magistrate that the Minister of Housing has authorisedand approved the proceeding in question to eject the respondent-petitioner from this land. Though the amended statutory provisions ofthe State Lands (Recovery of Possession) Act has precluded arespondent from challenging and impugning the notice served onhim, still such respondent is entitled to urge successfully before theMagistrate that a condition precedent for the filing of the applicationhas not been fulfilled by the petitioner. The giving of notice undersection 3 of the said Act is only a mere step in the commencementof proceedings to secure such ejectment.
Hence the learned Magistrate had no jurisdiction to entertain thisapplication and he also had no jurisdiction even if he had wronglyentertained it, to exercise further jurisdiction in conducting theproceedings upon this application.
420
Sri Lanka Law Reports
[1997] 3 Sri L-R.
Therefore it is manifest that the application is defective in theserespects and it is one that ought not to have been entertained by theMagistrate on account of the failure to comply with the conditionprecedent for the exercise of jurisdiction. These points have beenstrenuously urged by the learned President's Counsel before thiscourt, belatedly under the guise of filing a statement of objections,the applicant-respondent is seeking to rectify defects omissions anddeficiencies in the application filed before the Magistrate. I hold thatthis Court is not the forum for the correction of defects anddeficiencies which have been perpetrated in filing proceedingsbefore the Magistrate.
In the circumstances, I allow the application in revision and setaside the orders pronounced by the learned Magistrate of Colomboin case numbers 73484/2, 73485/2, 73486/2, 73487/2, 73488/2dated 12.6.97 with costs in a sum of Rs. 2150/- payable by theapplicant-respondent to the respondent-petitioner. I make orderdismissing the applications for ejectment filed by the applicant-respondent in the Magistrate’s Court of Colombo in the aforesaidapplications.
However. I reserve the right of the properly constituted authority,who is the legal competent authority, as defined in the Act to file aproperly constituted application in the appropriate Magistrate’s courtif he is so advised.
All the aforesaid revision applications and applications have beenamalgamated and consolidated with' the consent of the counsel.
Application allowed.