012-SLLR-SLLR-2008-V-1-AMARASINGHE-v.-ACQUIRING-OFFICERKEGALLE.pdf
120Sri Lanka Law Reports[2008] 1 Sri L.R
AMARASINGHEv
ACQUIRING OFFICER, KEGALLECOURT OF APPEALIMAM, J.
SARATH DE ABREW, J.
CA/LAQ/BR 1/2005CAB OF R KG/200NOVEMBER 22, 2007JANUARY 24, 2008.
Land Acquisition Act-S 10 (5), section 12 (4), section 17, section 27, section 28- Compensation awarded – Appeal to Board of Review – Appeal to the Courtof Appeal Should the appellant state the questions of law to be argued in thepetition of appeal? Is the appeal on a question of law only? Industrial DisputesAct section 31D – compared – Finality clause – Constitution Article 128 (1).
The Land Acquisition Board awarded compensation in respect of a landacquired under the Land Acquisition Act. The Board of Review enhanced thecompensation. Thereafter an appeal was lodged in the Court of Appealseeking a further enhancement.
The respondent raised a preliminary objection that the appellant has failed tostate the question of law to be argued in the appeal as required by section 28
of the Land Acquisition Act – Therefore the appeal should be dismissed inlimine.
The petitioner contended that, the points of law enumerated in the body of thepetition of appeal constituted questions of law as they came under one or morecategories of questions of law defined in Collettes case. It was also contendedthat there is no legal requirement to specifically formulate the questions of lawin the petition of appeal as long as on a plain reading of the petition the pointsor questions of law to be argued are apparent and easily discernible.
Held:
(1) In terms of section 28 – where a party is dissatisfied with the Boardsdecision on the appeal, he may by written petition appeal against thatdecision on a question of law. Section 28 (2) states that the petition ofappeal should state the question of law to be argued, it shall bear acertificate by an Attorney-at-Law that such question is fit for adjudicationby the Court of Appeal.
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Per Sarath de Abrew, J.
“Since an appeal on question of law is intended to be a beneficialremedy, the provisions of section 28 of the Land Acquisition Act, have tobe interpreted broadly and liberally. A litigant who is aggrieved of thequantum of compensation awarded to him with regard to the stateacquiring valuable land and property- affecting the substantial rightsshould not be denied the statutory right of appeal on a meretechnicality”.
Section 31D – Industrial Disputes Act (IDA) could be distinguished fromsection 28 of the Land Acquisition Act, as the IDA requires – stating thequestion of law to be argued in the petition of appeal and a certificate byan Attorney-at-Law that such question is fit for adjudication by the Courtof Appeal.
Section 28 of the Land Acquisition Act when interpreted broadly andliberally, does not confine an appellant to one single questions of law butan appellant could lodge his appeal on several questions of law. Thisprovision does not stipulate that the question or questions of law shouldbe specifically and categorically enumerated and listed in so many wordsin the petition. It would suffice for the question or questions of law to bestated in the averments in the petition which would be easily discernibleand apparent on the face of the petitioner.
Applying the observations in Collettes case, it is clear that the points oflaw – paragraphs 8-11 of the petition of appeal could be construed asquestions of law. The appellant has fulfilled the other requirements of acertificate by an Attorney-at-Law to the effect that the questions of lawembodied in the averments to the petition of appeal are fit foradjudication by the appellate court.
APPEAL from an order of the Board of Review under the Land Acquisition Act.
Cases referred to:-
De Silva v Nuwara Eliya Tea Estates Co. Ltd – 75 NLR 265
Collettes Ltd. v Bank of Ceylon – 1982 – 2 Sri LR 514
General Manager, Ceylon Electricity Board and another v Gunapala -1991 – 1 Sri LR 304
Lanka Wall Tiles Ltd. v K. A. Cyril – 1998 – 2 CALA 344
The Public Trustee v D. Rajaratnam – 75 NLR 391
Upul Fernando for appellant-appellant.
Priyantha Nawana SSC for respondent-respondent.
Cur.adv. vult.
122Sri Lanka Law Reports[2008} 1 Sri L.R
March 5, 2008
SARATH DE ABREW, J.This is an appeal from a decision of the Land Acquisition Boardof Review dated 06.08.2004 awarding compensation to theappellant in respect of a land acquired situated in Anguruwella inKegalle District. The corpus acquired consisted of 105.12 perchesof land in which a building was situated. The appellant who owneda half share of this land and the entirety of the building wasawarded total compensation of Rs. 51,700/- by the AcquiringOfficer under section 17 of the Land Acquisition Act. Following anappeal to the Board of Review the compensation was enhanced toRs. 127,225/- by order of 06.08.2004. Being aggrieved of this order,the appellant-appellant (hereinafter referred to as the appellant)has appealed to this Court seeking the total compensation to beincreased to Rs. 226,875/-.
When the matter was taken up for hearing, the learned SeniorState counsel for the respondent-respondent (hereinafter referredto as the respondent) raised a Preliminary objection that theappellant had failed to state the question of law to be argued in thepetition of appeal as required by section 28(2) of the LandAcquisition Act as amended, and therefore this appeal ismisconceived in law and should be dismissed. After tendering oralsubmissions on this preliminary objection, both parties have filedwritten submissions. Henceforth, this order is confined to thepreliminary objection raised by the learned counsel for therespondent.
The learned Senior State Counsel submitted that an awardmade in appeal by the Land Acquisition Board of Review isprotected by a “finality clause” as contained in section 27 of theLand Acquisition Act. It was further submitted that section 28 of thesaid Act has provided for an appeal on a very restrictive mannerand such an appeal has been declared valid only on “a question oflaw” under section 28(1) when submitted in conformity with theelaborate procedure laid down in section 28(2) of the said Act. Thelearned Senior State Counsel for the respondent further arguedthat even though section 28(2) requires the appellant to “State thequestion of law to be argued’ in the petition of appeal, the petition
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of appeal of the appellant In his case does not disclose anyquestion of law whatsoever thought it contains a purportedcertificate by an Attorney-at-Law, which only reads “the questionsof law set out in this appeal are fit questions for adjudication by theCourt of Appeal.”
It was further submitted that this Court could assume jurisdictionand proceed with the appeal only upon determining the question oflaw to be argued at the appeal. Therefore the preliminary objectionwas raised that in the absence of formulation of question orquestions of law, the appellant is disentitled from seeking relief byway of an appeal against the quantum of compensation payable. Insupport of his argument the learned Senior State Counsel cited thecase of De Silva v Nuwara Etiya Tea Estate Co. Z_fd1> whereTennekoon CJ reiterated the legal position that the Supreme Courtwould not interfere with a decision of the Land Acquisition Board ofReview awarding compensation except upon a question of law.
In support of the preliminary objection raised, the learnedCounsel for the respondent took up the following position.
Section 28 of the Land Acquisition Act invariably requires aspecific formulation of a question or questions of lawembodied in the petition of appeal to be argued at the appeal.
A careful perusal of the petition of appeal clearly reveals thatthe appeal is based purely on questions of fact.
Even at the hearing before this Court the learned counsel forthe appellant failed to enlighten Court as to the existence ofsuch a question of law.
In view of the above, the learned Senior State Counsel for therespondent urged that the appeal in this case is misconceived inlaw and should be dismissed.
The learned counsel for the appellant in reply, took up theposition that commencing from paragraph 08 of the petition severalquestions of law are embodied in the petition of appeal asenumerated in the written submissions filed on behalf of theappellant. He also cited in support the decision of a divisionalbench of four Justices of the Supreme Court in Collettes Ltd. vBank of Ceylort2) where Sharvananda, J. specifically spelt out what
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can be considered u a question of law” and “a substantial questionof law.” Accordingly, the learned counsel for the appellant arguedthat the points of law enumerated in the body of the petition ofappeal commencing from paragraph 08 clearly constitutedquestions of law as they came under one or more categories ofquestions of law defined in the above decision of the SupremeCourt in Collettes case.
The learned counsel for the appellant further took up theposition that there is no legal requirement to specifically formulatethe question or questions of law in the petition of appeal as long ason a plain reading of the petition the points or questions of law tobe argued are apparent and easily discernible. In support of theabove contention the following cases were cited.
General Manager, Ceylon Electricity Board and another vGunapalaW – D.P.S. Gunasekera, J.
Lanka Wall Tiles Ltd. v K. A. Cyril (4) Jayalath, J.
In view of the above, the learned counsel for the appellantargued that the petition of appeal filed in this case was inconformity with the requirements laid down in section 28 of theLand Acquisition Act, and therefore the preliminary objection raisedon behalf of the respondent should be overruled.
Having perused the proceedings before the Board of Review,the impugned order of 06.08.2004 of the Board of Review, thepetition of appeal filed in this case and the totality of the writtensubmissions and case law authorities submitted by both parties Iam inclined to overrule the preliminary objection raised by therespondent for the following reasons.
Section 28 of the Land Acquisition Act states as follows: 28(1)Where a party to an appeal to the board is dissatisfied with theboard’s decision on that appeal, he may, by written petition in whichthe other party is mentioned as the respondent, appeal to the Courtof Appeal against that decision on a question of law.
Provided that no such appeal may be preferred on any questiondetermined by any decision which is declared by section 10 (5) orsection 12 (4) to be final.
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(Sarath de Abrew, J.)
28(2). A petition of appeal under subsection (1) shall state thequestion of law to be argued, shall bear a certificate by an Attorney-at-Law that such question is fit for adjudication by the Court ofAppeal, and shall be presented in duplicate to the board by theappellant within twenty-one days after the date of the board’sdecision against which the appeal in preferred.
Since an appeal on a question of law is intended to be abeneficial remedy, the provisions of section 28 of the LandAcquisition Act have to be interpreted broadly and liberally.Authority for this proposition is the view taken by four Justices ofthe Supreme Court in the divisional bench landmark decision inCollettes Ltd v Bank of Ceylon, {supra) where the Supreme Court,in interpreting provisions of Article 128(1) of the Constitution as tothe right of appeal to the Supreme Court on a substantial questionof law, took a similar liberal view. A litigant who is aggrieved of thequantum of compensation awarded to him with regard to the Stateacquiring valuable land and property affecting his substantial rightsshould not be denied his statutory right of appeal on a meretechnicality.
The two cases cited in support by the counsel for the appellantare based on section 31D of the Industrial Disputes Act, wherethere is no statutory requirement to state the question of law to beargued in the petition of appeal. However, section 28 of the LandAcquisition Act could be distinguished from section 31D of theIndustrial Disputes Act, in that the latter requires:-
Stating the question of law to be argued in the petition ofappeal.
A certificate by an Attorney-at-Law that such question is fit foradjudication by the Court of Appeal.
Section 28 of the Land Acquisition Act, when interpreted broadlyand liberally, does not confine an appellant to one single questionof law but an appellant could base his appeal on several questionsof law. Similarly, this provision does not stipulate that the questionor questions of law should be specifically and categoricallyenumerated and listed in so many words in the petition of appeal.In my view, it would suffice for the question or questions of law tobe stated in the averments in the petition which would be easily
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discernable and apparent on the face of the petition. I am satisfiedthat the appellant has subscribed to the above requirement for thefollowing reasons.
On a perusal of the petition of appeal, paragraphs 08-11disclose the following questions of law.
The Board had erred in law as it has failed to make properevaluation of the evidence of the valuer …
….the Board has failed to give any reason whatsoever for notaccepting the evidence of Mr. Ubert (the valuer) …
….sufficient evidence was led on behalf of the appellant toprove that correct date of the actual taking over of possessionand that the building was in a good condition at the time ofvesting and taking over, which fact the Board erred in law innot taking into consideration.
The Board has also erred in law in not considering thecomparable sales on the ground that they are long after therelevant date.
The Board had erred in law in considering only the previousacquisition of land for the children’s park which was four foldin extent.
The Board had failed to make a proper analysis and judicialevaluation of the comparable sale prices of lands in theimmediate neighbourhood.
The Board has … erred in law in not awarding costs of appealto the appellant.
In the Collettes case referred to above the following have beendetermined as question of law.
The proper legal effect of a proved fact is necessarily aquestion of law. A question of law is to be distinguished from aquestion of “fact.” Questions of law and questions of facts aresometimes difficult to disentangle.
Inferences from the primary facts found are matters of law.
The question whether the tribunal has misdirected itself on thelaw or the facts or misunderstood them or has taken into
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account irrelevant considerations or has failed to take intoaccount relevant considerations or has reached a conclusionwhich no reasonable tribunal directing itself properly on lawcould have reached or that it has gone fundamentally wrong incertain other respects is a question of law. Given the primaryfacts, the question whether the tribunal rightly exercised itsdiscretion is a question of law.
Where the evidence is in the legal sense sufficient to supporta determination of fact is a question of law.
If in order to arrive at a conclusion on facts it is necessary toconstrue a document of title of correspondence then theconstruction of the document or correspondence becomes aquestion of law.
Every question of legal interpretation which arises after theprimary facts have been established is a question of law.
Whether there is or is not evidence to support a finding, is aquestion of law.
Whether the provisions of a statute apply to the facts; what isthe proper interpretation of a statutory provision; what is thescope and effect or such provision are all questions of law.
Where the evidence had been properly admitted or excludedor there is misdirection as to the burden of proof are allquestions of law.
On a construction of the above, it is clear as crystal that thepoints of law averred by the appellant in paragraphs 08-11 of thepetition of appeal could be construed as questions of law. On aperusal of the proceedings and the impugned order of the Board ofReview, it is apparent that the Board has not analysed nor givenreasons for the rejection of the expert evidence of the valuer W. D.A. Ubert. In The Public Trustee v D. Rajaratnam (5) the SupremeCourt reversed the decision of the Board of Review and enhancedcompensation awarded to the appellant due to the Board assessingthe value of the corpus arbitrarily, which amounted to a question oflaw.
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The appellant has fulfilled the other requirement of a certificateby an Attorney-at-Law to the effect that the questions of lawembodied in the averments to the petition of appeal are fit foradjudication by the Court. The proviso to section 28(1) of the LandAcquisition Act which qualifies the right of appeal has no relevanceto this matter as section 10(5) and 12(4) deal with references to theDistrict Court.
On a corollary of the above findings, I hold that the petition ofappeal is in conformity with the provisions of section 28 of the LandAcquisition Act and therefore overrule the preliminary objectionraised bv the learned counsel for the respondent and direct that thematter be fixed for further hearing.
IMAM, J. – I agree.
Preliminary objection overruled.
Matter set down for argument.