016-NLR-NLR-V-79-2-AMPALAVANAR-RAMACHANDRAN-and-OTHERS-Defendants-Petitioners-and-SINNAPPAR.pdf
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Jiamachcmdrati v. Subramaniam
1978 Present: Rajaratnam, J., Ismail, J. and Ratwattc, J.
• AMPALAYANAR RAMACHANDRAN and OTHERS,Defendants-Petitioners
andSINNAPPAR SUBRAMANIAM, Plaintiff-RespondentS.C. 12/77 (Inty)-D.C. Jaffna 5120/L
Thesawalamai Pre-emption Ordinance (Cap. 64)—Action to enforceright of pre-emption by co-owner—Objection taken under Conci-liation Boards Act—Whether Certificate under such Act necessarybefore institution of action—Conciliation Boards Act, No. 10 of■ 1958—Meaning of word “dispute" in section 6.
An action was instituted on 4th April, 1973, by a co-owner to' pre-empt an individual share of a land sold to a 3rd party- Thesale was on 17lh June, 1972. At the trial the defendant raised anobjection that inasmuch as a Conciliation Board had been cons-
kajabatna:!,
■Zlarr'achfiLrjlran v. Sworamaniam
109
tituted for the area as from 3rd December, 1972, the plaintiff whohad not gone before the Conciliation Board to obtain a certificatewas not entitled to have and maintain the action.
Held : (1) That the plaintiff who was a co-owner had a statutoryright in terms of section 3(2) of the Thesawalamai Pre-emptionOrdinance which right he couic enforce. The action to enforcesuch a right was sirrhiiar tc ? partition action and was not basedon a “ cause of action
(2) That the dispute if any, arose when the land was sold on 17thJune, 1972, whereas the Conciliation Board was established only on3rd December, 1972. It cannot be said that the plaintiff thereforecould have taken the "dispute” before the Board when it arose.
Meaning of the word “ dispute ” in the Conciliation Boards Actdiscussed.
Cases referred to :
Arnolis v. Hendrick, 75 N.L.R. 532.
De Silva v. Ambaxvatte, 71 N.L.R. 348.
Wijetunga v. Violet Pererc, 74 N.L.R. 107.
A PPEAL from a judgment of the District Court, Jaffna.
K. Kanag-Isivaran, for the defendants-petitioners.
C. Ranganaihan. Q. C., with S. Mahenthiran, for the-plaintiff-respondent.
Cur. adv. vv.lt.
June 1, 1978. Rajaratnam, J.
The main question before this Court is whether actions canbe maintained under the Thesawalamai Pre-emption Ordinancewithout a production of a certificate from the Conciliation Boardof the area.
In this case the plaintiff sought an order of Court to set asideDeed No. 8006 by which the 2nd defendant conveyed an undivi-ded 7 1ms v.c. of the larger land described in the schedule tothe plaint to the 3rd defendant as null and void on the groundthat the conveyance was contrary to the provisions of theThesawalamai Pre-emption Ordinance, Cap. 64 C.L.E., whichrecognised the preferential rights of the co-owners to buy theland. The 3rd defendant was neither a co-owner nor a personwho in the event of intestacy of the intending vendor will behis heir, and notice to sell was not published in terms of section5 of the said Ordinance. The following dates are relevant: —
Date of the impugned conveyance—17.6.72,
Date of the appointment of the Conciliation Board of
the area—3.12.72, and
Date of the institution cf the action—4.4.73.
'The learned trial Judge equated actions arising from the'Thesawalamai Pre-emption Ordinance to partition actions where
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KAJAKATNAM, J.—liamachandran r. Subramantam
more often than not there are more than one co-owner. Heconsidered the judgment in the case of Arnolis v. Hendrickreported in 75 N.L.R. 532. It was observed in that case by Fer-nando, C.J. at page 533, that a partition action is not based upona * cause of action * as defined in the Civil Procedure Code butupon the right independently recognised by section 2 of thePartition Act of any o > -owner to seek a partition or sale of a co-owned land. He continued: —
“ It is thus clear from section 2 that the jurisdiction of aCourt under the Partition Act is not principally to resolveand determine disputes but to ascertain the rights or inter-ests of persons in land which is owned in commonIf
then a co-owner has a right to institute an action for partitionof a land, although no one disputes the rights or interestsclaimed or admitted in the plaint, the fact that some disputedoes exist as to such rights or interests cannot derogratefrom or qualify the right to institute the action.Q
For practical purposes, a decision that section 14 of theConciliation Boards Act applies to partition actions will leadto absurdities which Parliament could not have intendedor tolerated”.
Under the Thesawalamai Pre-emption Ordinance in terms ofsection 8 (2) an action to enforce the right of pre-emption undersub-section (1) may be instituted on any of the followinggrounds : —
that the notice required by section 5 was not given or
that the notice given was irregular or defective;
that the price set out in the notice was fictitious or not
fixed in good faith ;
that at the time of, and for three weeks after, the publi-
cation of the notice, the person seeking to enforce theright was absent from the district and that within areasonable time after the lapse of the said period ofthree weeks and before the completion of the pro– posed sale, he tendered to the intending vendor thepurchase amount stated in the notice and that suchtender was not accepted.
The law also prescribed such an action after one year of thedate of the registration of the deed of transfer.
It cannot be disputed that the plaintiff had a statutory right tocome to Court and enforce that right within one year of the dateof the registration of the purchaser's deed of transfer. We have-
RAJ AR.ATKAM, J.—tiamachandrun v. Subram (imam
111
also to bear in mind that one co-owner going before the Boardand a settlement effected there can be only with the purchaser ofthe property and any settlement will have to be effected withthe vendor, the purchaser and all the co-owners from a practicalpoint of view. I agree with learned trial Judge that this actionis similar to a partition action arising from a statutory right andalso it is impracticable to arrive at an effective settlement incertain cases where there are more than one co-owner.
We have also to be mindful of the purpose of the ConciliationBoards Act. The purpose of the Act is’to secure that disputes aresettled as far as possible by the method of conciliation and theCourts will be slow to send a case for conciliation where a finaland effective settlement is not practicable where the plaintiff onlycomes into Court to enforce his statutory right. In the event ofa party coming to know that there has been a conveyance ofa land which he co-owns a day before the prescribed period ofone year is over, should that party be expected to go before theConciliation Board to settle “ a dispute ” before he comes toCourt to enforce his statutory right ? On the other hand there. can be no dispute with regard to his statutory right. A statutoryright cannot be made something less than a statutory right byconciliation.
It is unfortunate that the Conciliation Boards Act hassometimes been interpreted and used in an unrealistic mannerfor no purpose except to defeat the objectives of the Act and theinterests of justice. The objection raised by the defendant peti-tioner was rightly rejected and the Court decided to proceed' with the action.
Another matter that was argued was that the conveyance by-the defendant of the land in suit not in conformity to the provi-sions of the Thesawalamai Pre-emption Ordinance was aunilateral act by the defendant and it cannot be considered tahave given rise to a dispute. In the case of de Silva v. Ambawatte,71 N.L.R. 348, Samerawickrema, J. held with Wijayatilake, J.agreeing that even if a unilateral act is a wrongful one, itcannot be said to be a dispute. A dispute involves a contro-versy between 2 parties at least and imports conflicting actaand statements by them. In thp present case I hold that theconveyance of the land in suit gave rise to a statutory right whichcould be enforced in Court and not a dispute for purposes ofconciliation.
At this stage, it may be said that even if there was a disputefor purposes of argument, the dispute arose when the land wassold on 17.6.72 whereas the date of appointment of the Concilia-tion Board of the area was 3.12.72. It cannot be said that the
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Satilhosan Nadar r. .Attorney-General
plaintiff therefore could have taken the “ dispute ” to the Boardwhen it arose. It was held in the case of Wijetunge v. VioletPerera, 74 N.L.R. 107, that in such circumstances, a party has aright to institute an action without the required certificate from.the Board even if sometime after the dispute arose and beforethe institution of the action, a Board of Conciliation is appointed.This additional submission of the defendant-petitioner must alsofail.
In the course of the argument in this matter we had occasionto consider the term * dispute ’ in relation to the ConciliationBoards Act and examine it. I am not too sure whether the Courtshave been too liberal in interpreting the term dispute. The dis-putes enumerated in section 6 of the Act are (a) disputes inrespect of any movable property that is kept or any immovableproperty that is wholly or partly situated in the ConciliationBoard area, (b) any dispute in respect of any matter that maybe a cause of action arising in that area for the purposes of theinstitution of an action, (c) any dispute in respect of a contractmade in that Conciliation Board area. It is a matter for conside-ration in an appropriate case, as in this case it is not necessary,whether the term dispute must be given a strict interpretationtogether with a consideration whether the Act applies to dis-putes which by their very nature are not such that can lend.themselves tc conciliation.
The appeal of the petitioners therefore is dismissed with thedirection that the record be sent forthwith for the trial to proceed.The plaintiff-respondent will be entitled to costs.
Ismail, J.—I agree.
Ratwatte, J.—I agree.
Appeal dismissed.