008-SLLR-SLLR-2004-V-2-CEYLON-PETROLIAM-CORPORATION-v.-MASHOOD.pdf
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Ceylon Petroleum Corporation v Mashood
fDissanavake. J.)_
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CEYLON PETROLEUM CORPORATIONv
MASHOODCOURT OF APPEALDISSANAYAKE, J. ANDSOMAWANSA, J.
A. 84/89 (F)
C. HAMBANTOTA 755/LMAY 30, 2003AUGUST 7, 2003
Right of way of necessity – Servient property vested free from all encum-brances in Corporation – Ceylon Petroleum Corporation Act, No. 28 of 1961sections 5B,-35 and 35(3) – Specific statutory purpose sought to be achieved- Interests of a public body – Acquisition of a right of way after vesting.
The plaintiff-respondent instituted action seeking a cartway as a right of way ofnecessity to have access to his land in Schedule C, over the land in schedule Bwhich had been vested on the defendant-appellant. The defendant-appellantwhilst denying the averments, prayed for the dismissal of the action. The plaintiff-respondent was running a petrol shed on the land in Schedule B as a dealer ofthe appellant Corporation and the dealership had been cancelled this land wasvested free from all encumbrances in the Corporation under section 35. It wascontended that the plaintiff cannot maintain his action in view of section 35.
Held:
While a land is vested under section 35 of the Ceylon PetroleumCorporation Act no past or future encumbrances can affect the land thatis vested absolutely in the Petroleum Corporation.
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A servitude will not be created by judicial decree for the mere asking; theperson seeking such a decree must discharge the onus that rests on him.
If one were to accept the argument that a right of way of necessity canaccrue after such a vesting order, it is essential for the plaintiff to estab-lish the necessity of the cartway he is seeking, and it becomes neces-sary to examine the facts and whether those facts would give rise to arequisition of a right of way of necessity; this the plaintiff had failed toestablish.
APPEAL from the judgment of the District Court of Hambantota.
Cases referred to:
Wijesena v Fernando – 78 NLR 193
Fernando v Fernando – 31 NLR 107
Gunasekera v Rodrigo et el — 30 NLR 468
Mass v Mendis — 40 NLR 525 at 528.
Sanjeeva Jayawardena for defendant-appellant
S.F.A. Cooray with L. Liyanage and M.T.R.H. Silva for plaintiff-respondent.
Cur.adv.vult
October 31,2003DISSANAYAKE, J.
The plaintiff-respondent instituted this action seeking inter alia acartway as a right of way of necessity to have access to his land more-fully described in schedule ‘C’ of the plaint, over the land morefullydescribed in schedule B of the plaint which had been vested on thedefendant-appellant.
The defendant-appellant by his answer whilst denying the aver-ments in the plaint prayed for dismissal of the action.
The case proceeded to trail on 15 issues. At the conclusion of thetrial the learned District Judge entered judgment in favour of the plain-tiff-respondent and granted a right of cartway.
The defendant-appellant appealed from the aforesaid judgment.
At the arguments of the appeal before this Court, learned counselappearing for the defendant-appellant and the plaintiff-respondentrestricted their arguments to the following issue of law, namely:whether the plaintiff-respondent could have validly maintained thisaction in the District Court of Hambantota in view of the provisions ofsection 35 of the Ceylon Petroleum Corporation Act, No. 28 of 1961as amended.
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Ceylon Petroleum Corporation vMashood
IDissanavake. J.)
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Counsel for both parties agreed to do away with oral argumentsand tender their respective written submissions to resolve this issue.
The facts relevant to deal with this legal issue are as follows:-
The plaintiff-respondent was running a petrol shed on landdescribed in schedule ‘B’ to the plaint, as a dealer of the defendant-appellant Corporation. The then Minister of Industries and ScientificAffairs acting in terms of section 35 of the Ceylon PetroleumCorporation Act, No. 28 of 1961 as amended vested the said land inthe defendant-appellant’s corporation.
This had prompted the plaintiff-respondent to institute this actionseeking a right of way of necessity, which was resisted by the defen-dant-appellant on the ground that section 35 of the PetroleumCorporation Act, No. 28 of 1961, has the effect of vesting the land onthe defendant-appellant free of all encumbrances.
At the District Court issue No. 11 which was based on this legalissue arising out of section 35 of Act, No. 28 of 1961 was raised by thedefendant-appellants which reads as follows:-
Issue No. (11):-
Can the plaintiff have and maintain his action in view of the provi-sions of section 35 of the Ceylon Petroleum Corporation Act?
Thus it is necessary to examine the section 35 of the PetroleumCorporation Act, No. 28 of 1961 as amended.
Section 35:
1) The Minister may, by order (hereinafter in this and referred to asa “Vesting Order”) published in the Gazette, vest in the Corporationwith effect from such date as shall be specified in the order, any suchnotified property as has not been disclaimed by a notice of a disclaimeror way, right, interest or benefit in such notified property derived underthe terms of any arrangement, agreement (formal or informal) lease, ornotarially executed instrument subsisting on the date of a publicationof the notice of claim.”
Section 35(3) provides thus:-
A vesting order shall have the effect of giving the corporationabsolute title to any property specified in the order with effect from the
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date specified therein and free from all encumbrances provided how-ever where any right, interest or benefit in any notified property is vest-ed in the corporation, a vesting order shall have the effect of giving thecorporation such right, interest or benefit with effect from the datespecified in the order.
Thus it is clear that, what can be vested is either the property as awhole or a right or interest in that property. It is to be seen that what-ever it may be that has been vested, upon vesting all rights that hith- soerto existed are extinguished and the land vests absolutely and with-out encumbrance, in the Ceylon Petroleum Corporation.
The learned counsel who appeared for the plaintiff-respondent byway of his written submissions conceded that the land described inschedule ‘B’ to the plaint has been vested on the defendant-appellanton 21.08.1974, without any encumbrances.
However he had taken up the position that a right of way of neces-sity has been created after the said vesting of the said land. Learnedcounsel has drawn a parallel on the provision of section 48(1) of thePartition Law.70
He had contended that a servitude which is not reserved in the finaldecree of partition is wiped out by such final decree of partition and theproperty vested by it on the parties free of ail encumbrances. Howeverit is possible to acquire a servitude thereafter by prescriptive user or byjudicial decree on the ground of necessity.
He cited Wijesena v Fernando 0) where it was held – that althoughthe partition decree extinguished in law that portion of the cartway A-B, yet once a praedial servitude has been acquired it is not lost orextinguished by the impact of a partition decree over a portion of it; theservitude over the balance portion is not destroyed or lost but lies dor- somant and is revived by the recreation of the servitude over the lost por-tion. Once a way of necessity is granted over A-B (in the circumstancesof this case the plaintiff should be granted a cartway of necessity overA-B the servitude over B, C, D, E, F, G, H is revived and operative.
At page 198, Sharvananda, J. (as his Lordship then was) stated:
“It is to be noted that in Fernando v Fernando <2) 31 NLR 107 case,Dalton, J. re-cognized the possibility of recreation of the entire servi-tude after the after the extinction as a result of the Partition decree….”
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Ceylon Petroleum Corporation v Mashood
(Dissanavake. J.)
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He also cited Gunasekera v Rodrigo <3) where it has been held thatwhere the plaintiff-appellant had inspite of the final decree for partition, 90without reserving the right of way, continued to use the same right ofway for over ten years from (1909) the date of the partition decree washeld entitled to the right of way.
To examine the aforesaid contention of learned counsel whoappeared for the plaintiff-respondent it has become necessary toexamine the provisions of the Ceylon Petroleum Act, No. 28 of 1961,carefully…
It is interesting to note that by examination of section 5B of theCeylon Petroleum Corporation Act, that the Ceylon PetroleumCorporation has been statutorilly vested with the exclusive right to iooimport, export, sell, supply or distribute petroleum products.
The long title of the Ceylon Petroleum Corporation states inter aliaas follows:-
“An Act to provide for the establishment of the corporation to carryon business as an importer, exporter, seller, supplier or distributor of
petroleum as well as the business ofto
enable the compulsory acquisition or requisition for such corporation ofany immovable or movable property required for the purpose of suchcorporation and to provide”
It is to be seen that the legislature considered it a primary purpose noof the Act, to not only establish a corporation to regulate the petroleummarket but also to vest land in that corporation for the purpose of facil-itating the attainment of the objectives set out as the Act in the largerpublic and rational interest.
It is of significance to observe that if the interpretation advanced bylearned Counsel for the plaintiff-respondent is accepted, it will have theeffect of supervening the intention of and the objectives of the legisla-tion by permitting land which was vested free of all encumbrances tobe nevertheless immediately encumbered consequent to vesting.
This would also lead to an absurd situation where the land vested 120in the Ceylon Petroleum Corporation would always be under threat ofsome private individual claiming a right or interest over that land.
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Thus the arguments of learned counsel appearing for the plaintiff-respondent wherein he purported to draw parallels between a partitiondecree and a vesting order under section 35 of the Ceylon PetroleumCorporation Act, is untenable in a situation where a specific statutorypurpose is sought to be achieved in the interests of a public body likethe Ceylon Petroleum Corporation as opposed to a land of a privateindividual.
In “Crisis on Statute Law” 7th edition at page 338, by S.G.G. Edgar 130it is stated inter alia:-
“Where there is conflict case law (being common law) must ofcourse Yield to Statute Law. Many enactments are aimed at particularjudicial decisions either declaring them to have been erroneous oraltering the law as laid down in them. And it is a matter of everydayoccurrence for the Courts to consider whether the wording of an enact-ment shows an intent to get rid of some rule of case of law.”
Therefore I am of the view that where a land is vested under sec-tion 35 of the Ceylon Petroleum Corporation Act, no past or futureencumbrances can affect the land that is vested absolutely in the 140Petroleum Corporation.
Even if one were to accept the argument that a right of way ofnecessity can accrue after such a vesting order, it is necessary toexamine the. facts of the case that is presently before me, whetherthose facts would give rise to an acquisition of a right of way of neces-sity.
The vesting of the land described in schedule B took effect by thepublication of the notice of acquisition in the Gazette which is dated26.8.1984 (Vide V4).
The confirmation of the scheme of partition and allotting of shares 150in partition action bearing No. P/143 of the District Court ofHambantota in which the land that was vested also formed part of thethe corpus had taken place on 10.11.1985 (VI) which had been aboutmore than 14 months after the vesting of the land.
Therefore the plaintiff-respondent had continued to be a co-ownerof the larger land for more than 14 months after the vesting. And assuch co-owner he had a right to occupy any portion of the larger landand to gain access to any part thereof across any other part which wasadjacent to either the Tangalle-Hambantota main road or the V.C. road.
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Ceylon Petroleum Corporation vMashood
(Dissanavake. J.)
61
There is another aspect to this matter. The plaintiff-respondent wasaware that his dealership with the Petroleum Corporation has beencancelled by letter dated 07.3.1975 (V3). By the nature of acquisitionpublished in Gazette (V4) dated 26.8.1984 he had been made awarethat portion of the land where his petrol shed was situated was vestedin the defendant-appellant corporation.
The plaintiff-respondent in his evidence had admitted that he waspresent in Court at the hearing of the partition action and that he wasrepresented by counsel. However the plaintiff-r.espondent who hadknown that he had been deprived of the access to the Hambantota-Tangalle road as a result of the vesting, had failed to bring these mat-ters to the notice of the District Judge who heard the partition action inorder to see that he is allotted a land with a road frontage toHambantota, Tangalle road; avoiding the land where the petrol shed issituated which had been already vested in the defendant-appellant cor-poration.
However it appears that the plaintiff-respondent had suppressedthat fact apparently hoping to get a right of way from the acquired land.This, shows the lack of bona tides in the claim of'the plaintiff-respon-dent.
This conduct of his also leads to the conclusion that he is land-locked not due to the conduct of the defendant-appellant but by theconduct of himself.
The land allotted to Somapala Jayawardena, the plaintiff in partitionaction P/143 is situated towards the west of the land in suit. Accordingto plan bearing No. 39 of Licensed Surveyor G. Warnakulasuriya (P1)all four boundaries of the land allotted to Somapala Jayawardena areundefined. Further the plaintiff-respondent admitted in his evidencethat he could gain entrance to the land in suit through that land. He hadfurther conceded that there were neither buildings nor plantations inthat land. Weerakkody officer of the defendant-appellant Corporation inhis evidence stated that the land did neither have a barbed wire fencenor a plantation. It was overgrown with shrub jungle. There were sev-eral foot paths across the land. Therefore it is apparent that the plain-tiff-respondent is not land locked. He has access to his land throughthe land situated on his Western side.
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In deciding whether or not to grant a roadway of necessity, ourCourts have always considered the need of the plaintiff as against thehardship that would be caused to the defendant. Weerakkody who wasthe Manager, Marketing and Distribution of the defendant-appellantcorporation in setting out the reasons why the defendant-appellant was 200opposed to granting a right of way has stated that for a petrol shed theideal road frontage would be 125 feet and the minimum is consideredto be 100 feet. The petrol shed in suit has only a frontage of 80 feet.
He had stated a further reduction of 10 feet will make it impractical forlarge vehicles such as bowsers to use the premises. Further he testi-fied to the plan of the defendant-appellant corporation to expand thefuel station with further facilities. Further it is revealed in the evidencethat if a right of way of 10 feet is given across the fuel station, the riskof causing a fire by a careless act of a person using the road, like fore.g. throwing away a lighted cigarette butt or match stick onto an area 210that is full of inflammable material like petrol is very likely.
As against the inconvenience and risk to property, life and limbs ofemployees of the defendant-appellant the need of the plaintiff-respon-dent is to have a right of cart way solely for the purpose of commenc-ing a paddy milling business in the future.
In Vass v MendisW, Basnayake, J. (as his Lordship then was)observed, “A servitude will not be created by judicial decree for themere asking. The person seeking such a decree must discharge theonus that rests on him.”
Therefore it is essential for the plaintiff to establish the necessity of 220the cartway he is seeking. The only fact relied on by the plaintiff toshow necessity are that he had laid a foundation to construct a build-ing on the land and that he intended to commence a business of apaddy mill after completion of the building. Even at the date of actionno building has been constructed on the foundation.
It was revealed in the evidence that the land as soon as it wasfenced off soon after it’s acquisition in 1974. The plaintiff-respondentinstituted this action on 13.09.1982, after a period of 8 years after fenc-ing. If he had a real necessity to have access to the land in suit, insti-tution of the present action after a period of over 08 years is not com- 230prehensible.
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Satchithanandasivam v People’s Bank
(Udalaaama. J.)
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Thus it can be reasonably be concluded that the plaintiff-respon-dent had failed to establish that he had a right of way of necessity overthe defendant-appellant’s land.
It is significant to observe that the learned District Judge had failedto embark on a proper evaluation and analysis of the evidence led inthis case. The learned District Judge further had failed to analyse theevidence and consider the law relating to vesting under section 35 ofthe Ceylon Petroleum Corporation Act.
Therefore the judgment of the learned District Judge cannot be 240allowed to stand.
set aside the Judgment of the learned District Judge and directhim to dismiss the action.
The appeal of the defendant-appellant is allowed with costs fixed atRs. 5000/-
SOMAWANSA, J. – I agreeAppeal allowed.