BANDA v. PRESIDENT, M. P. C. S. LTD., MEDIRIGIRIYA AND ANOTHER

023-SLLR-SLLR-2003-1-BANDA-v.-PRESIDENT-M.-P.-C.-S.-LTD.-MEDIRIGIRIYA-AND-ANOTHER.pdf


CA
Banda v President, M.P.C.S. Ltd., Medirigiriya and another
(Amaratunga, J.)
193
BANDA
v.
PRESIDENT, M.P.C.S.LTD;.,MEDIRIGIRIYA AND ANOTHER
COURT OF APPEALFERNANDO, J. ANDAMERATUNGA, JHC ANURADHAPURA 209/99MC.HINGURAKGODA 18402CA(PHC) 188/2000MAY 10,2002
State Lands (Recovery of Possession) Act, No. 7 of 1979 as amended by Act,No. 50 of 1987, section 18(1ffgg) – Land belonging to State given to the Co-operative Society – Transfer of Powers (Divisional Secretaries) Act, No. 52 of1982, section 4 – Co-operative Society authorized by Divisional Secretary toexercise all powers under Act, No. 7 of 1979 – Delegation – Validity – Who isa public officer? – Constitution, Article 170.
The land is a Slate land given to the Medirigiriya Co-operative Society for itsuse. The appellant is an unauthorized occupant of the land. On an applicationby the President of the Society who was authorized by the DivisionalSecretary, the Magistrate’s Court issued an order of eviction of the appellantfrom the relevant land. The High Court dismissed the application to revise thesaid order.
Held :
The land is owned by the State and given to the MPCS for its use.
The competent authority who is empowered to issue quit notice andto make an application to the Magistrate’s Court is the GovernmentAgent or any other public officer authorized by the GovernmentAgent.
In terms of the Transfer of Powers Act, the term Government Agentwould be read as Divisional Secretary.
The Divisional Secretary can only delegate his powers under the Actto any other “Public Officer”.
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A Chairman of a MPCS is not a person who holds a paid office underthe* Republic; he is not a public officer, accordingly the DivisionalSecretary has no power to delegate his powers under the Act to sucha person.
The President of the M.P.C.S. had no authority or power to make anapplication under the State Lands (Recovery of Possession) Act to theMagistrate’s Court to obtain an order to evict the appellant.
APPEAL from the Provincial High Court of AnuradhapuraHemantha Situge with D.D.R Dassanayake for appellantG. Liyanage for respondents.
Cur.adv.vult.
June 18,2001AMARATUNGA, J.
This is an appeal against the order made by the learned HighCourt Judge of Anuradhapura in a revision application filed againstan order made under the State Lands (Recovery of Possession)Act, No. 7 of 1979 as amended.
The land which is the subject matter in this appeal is a stateland given to the Medirigiriya Multi Purpose Cooperative Society(MPCS) for its use. The appellant is an unauthorised occupant ofthat land. On an application made by the President of the MPCSthe learned Magistrate of Hingurakgoda has issued an order ofeviction of the appellant from the relevant land. His application tothe High Court of Anuradhapura to have the order of the Magistraterevised has been dismissed by the High Court.
The principal argument raised in this appeal was that the rel-evant land, being a land of the Cooperative Society is not a landfalling within the definition of state land within the meaning of theState Lands (Recovery of Possession) Act. However it is quite clearthat this is not a land belonging to the MPCS. It is a land owned bythe state and given to the MPCS for its use. Therefore the first sub-mission fails.
Banda v President, M.P.C.S. Ltd., Medirigiriya and another
CA(Amaratunqa, J.);195
The competent authority who is empowered to issue quitnotice and to make ah application to the Magistrate’s Court is theGovernment Agent, an Additional Government Agent, or anAssistant Government Agent of the district in which the.land is sit-uated. (Section 18 of the Act). Section 18(1 )(gg) inserted byamending Act, No. 50 of 1987 makes ‘any other public officer,authorized by the Government Agent in respect of any matter orprovision of the Act’ a competent authority under the Act.
Under section 4 of Transfer of Powers (DivisionalSecretaries) Act, No. 52 of 1982 where in any enactment the termAssistant Government Agent occurs; such term shall be read as theDivisional Secretary. In this case the Divisional Secretary ofMedirigiriya by writing dated 28.7.1998 has authorised A.M.Dissanayake, President of the Medirigiriya MPCS to exercise allpowers and to perform all acts under the State Lands (Recovery ofPossession) Act with regard to the state land, a part of which is thesubject matter of this appeal. On the authority of this delegation, thePresident of the MPCS, Medirigiriya has made the application tothe Magistrate’s Court.
Under Section 18(1)(gg) of the State Lands (Recovery ofPossession) Act, a Divisional Secretary can delegate his powersunder the Act to “any other public officer.” .The term public officer,has been defined in Article 170 of the Constitution as a personholding a paid office under the Republic. A Chairman of a MPCS isnot a person who holds a paid office under the Republic. He is aperson who is elected for a term by the members of the coopera-tive society. Therefore the President of a MPCS is not a public offi-cer and accordingly the Divisional Secretary has no power to dele-gate his powers under the Act to such a person. The delegationbeing invalid, all acts done under such purported delegation arealso invalid.
Accordingly I hold that the President of the MPCSMedirigiriya had no lawful power or authority to make an applicationunder the State Lands (Recovery of Possession) Act to theMagistrate's Court to obtain an order to evict the appellant.Therefore all action taken or all orders made under such invalidapplication are null and void and has no force or avail in law.Accordingly I allow the appeal and set aside the order of the High
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Court dated 24.05.2000 and the order of the Magistrate,Hingurakgoda'dated 3.6.1999 and dismiss the application made bythe President, MPCS Medirigiriya dated 30.10.1998 as theMagistrate’s Court had no jurisdiction to entertain and act upon thesaid application. The appellant is entitled to a sum of Rs. 5000/-payable by the MPCS, Medjrigiriya.
FERNANDO, J. – I agree.
Application allowed.