044-SLLR-SLLR-2006-V-3-CHANDRA-BOSE-vs.DE-ALWIS-AND-OTHERS.pdf
348
Sri Lanka Law Reports
(ZOOS) 3 Sri LR.
CHANDRA BOSEVS.DE ALWIS AND OTHERSCOURT OF APPEAL,
TILAKAWARDENE, J P/CA.
ABEYRATNE. J.
CA 920/2000FEBRUARY 24, 2003.
State Lands (Recovery of Possession) Act, No. 7 of 1979 amended byActs Nos. 58 of 1981, 29 of 1983, 45 of 1992-Quit notice – Validity? – Landnot state land? – Land vested in a private entity and not the state? -Government Quarters (Recovery of Possession) Act-Compared.
sc
Chandra Bose vs. De Alwis and Others
(Shlranee Thilakawardene (P/CA), J.)
349
The petitioner sought to quash the quit notice sent by the 1strespondent competent authority. The petitioner is a workman employed atT Estate. The quit notice was challenged on the basis that (i) the corpus isnot state land and (ii) the 1st respondent has no authority in law to issuethe quit notice as the land is leased to the Horana Plantation Ltd 3rdrespondent which is a private entity and the competent authority had nolegal right to issue such notice.
HELD:
The claim of the petitioner is not based on any legaldocument, neither has he claimed that he has a valid leaseof that or that it had been in any way alienated to him by way ofa legal transfer, but he was simply in occupation as atrespasser.
Though this was a lease agreement between JEDB and the3rd respondent, and that the lessee – 3rd respondent hadagreed to take on lease T Estate, there is no legal basis uponwhich the petitioner can claim any right to occupy the saidland, except that he was a trespasser upon the land.
The criteria that determines the Recovery of Possession interms of this Act would be whether the land is a state land ornot. The parties had agreed that the land is state land.
Provisions of the Government Quarters (Recovery ofPossession) Act cannot be availed of in respect of the quartersoccupied by the petitioner which is upon state land. Thedefinition of Government Quarters contained in the Act is quitedifferent to the definition of State Lands as contained in theState Lands (Recovery of Possession) Act.
350
Sri Lanka Law Reports
(2006) 3 Sri LR.
Application for a Writ of Certiorari.
Case referred to :
(1) CA 1560/2000 – CAM 30.5 2002.
R. K. S. Sureshchandra for petitioner,Harsha Soza for 2nd and 3rd respondents.
Cur.adv.vult.
May 12,2003
SHIRANEE THILAKAWARDENE. J. (P/CA)
The Petitioner has preferred this application seeking a mandate in thenature of a Writ of Certiorari to quash the Quit Notice dated 19.06.2002sent by the competent authority requiring the Petitioner to vacatethe land occupied by the Petitioner and to hand over the possessionof such land as he was in unauthorized possession of State land(marked P3). The Petitioner has admitted that he is a laboureremployed at Tillicoultry Estate since 1984, and his father was also anemployee of the same Estate who had subsequently retired fromservice. The Petitioner claims that he was in possession of an allotmentof land on the Estate, a fact that is not disputed, and even though heclaims that he obtained it from the former Chief Clerk of the Estate tocultivate vegetables this has been denied by the Respondents whoclaimed that the Chief Clerk in any event had no right to dispenseState land to any party. The Petitioner challenges the aforesaid quitnotice on two grounds. First he has claimed in his pleading containedin the Petition dated 28th of August 2000 that the corpus which is thesubject matter in this case that is in issue to which the quit noticepertains, was not a State land and hence did not come within theprovisions of the said Act. Secondly, the Petitioner claims that the 1 stRespondent had no authority in law to issue P3 as a land that isvested with the 3rd Respondent and which is a private entity andtherefore a quit notice in terms of the State Lands (Recovery ofPossession) Act No.07 of 1979 as amended by Acts No. 58 of 1981,29 of 1983 and 45 of 1992 was not a legal quit notice as the competentauthority had no legal right to issue such notice.
sc
Chandra Bose vs. De Alwis and Others
(Shiranee Thilakawardene (P/CA), J.)
351
During the hearing of this application parties conceded that thecorpus regarding which the quit notice had been sent was indeed a'State land and therefore the first basis on which the Petitioner hassought the jurisdiction of this Court is no longer tenable.
On a consideration of the second matter, that the quit noticecould not in any event be sent as the estate was leased to the 3rdRespondent which is a private entity there are several matters whichneed to be considered.
It is not in dispute that the Estate of Tillicoultry was leased to the3rd Respondent and gazetted on the 22nd of June 1992 (3R2). A copyof the Indenture of Lease bearing No. 172 is dated 5th of November1993 (3R1). This Indenture of Lease was attested on the 5th ofNovember 1993 and gazetted on the 22nd of June 1992 as adverted toabove.
On the 7th of December 1998 the 2nd Respondent who was theManager of the aforesaid Tilicoultry Estate, Lindula had required thePetitioner to hand over a portion of the land which according to the 2ndand 3rd Respondents had been occupied by him forcibly and when hehad refused to comply with the same, disciplinary proceedings wereinstituted against him. In fact a perusal of the letter P1 sent by the2nd Respondent, though it has been pleaded by the Petitioner,indicatesthat the Petitioner had been in “unauthorized cultivation” of the saidland. In any event, this land had been allocated to the ex Chief Clerkfrom whom the Petitioner claims to have obtained the land,.though noformal document was being produced by him. It appears that this ChiefClerk had been transferred to another estate and had subsequentlyretired from services of the Horana Plantations Limited in April, 1998,and even the Chief Clerk did not have any valid rights which he couldhave transferred to the Petitioner in this case. In other words the claimof the Petitioner is not on any legal document neither has he claimedthat he has a valid lease or that it had been in any way alienated- tohim by way of any legal transfer but he was simply in occupation as atranspasser upon the land. Threfore it is clear that though there was a
2-CM 008438
352
Sri Lanka Law Reports
(2006) 3 Sri L R
lease agreement between the J. E. D. B. and the Horana Plantationsthat is the 1 st and 3rd Respondent and that the Lessee the HoranaPlantations Limited had agreed to take on lease Tillicoultry Estate,there is no legal basis upon which the Petitioner can claim any right tooccupy the said land except that he was a tresspasser upon the land.Even in terms of the Roman Dutch Law principles the Petitioner wasmerely a trespasser on the land and therefore his rights were restrictedto those of a trespasser.
The next matter that has to be considered is the effect of thespecial law namely, State Lands (Recovery of Possession) Act No. 7of 1979. In terms of Section 18 of this Act “State land" means land towhich the state is lawfully entitled or which may be disposed of by theState together with any building standing thereon, and with all rights,interests and privileges attached or appertaining thereto, and includesland vested in or under the control of the River Valleys DevelopmentBoard and the Mahaweli Development Board or any other authoritycharged with the function of developing state land or any local authority.'
The criterion that determines the recovery of possession in termsof this Act could be whether the land is a State land or not. In thiscase it is not necessary for the Respondents to establish this as allparties have considered this and conceded that the property that is indispute which is the subject matter for which a quit notice has beensent is indeed “State land” in these circumstances, whilst the rightsbetween the lessee and the lessor are such that admittedly underRoman Dutch law there is a pro tanto alienation and the same rightsas the owner are available to the lessee in the enjoyment of the propertyleased but the ut dominus is subject to certain conditions which havebeen stipulated in the Lease Agreement. So that the enjoyment of therights of the owner by the lessee is only those rights which has beenset out in the Lease Agreement and are governed entirely by thecontractual relationship between the lessee and the lessor. It is only,as far as the third party interfering with the rights of the lessee thatsuch other rights of an owner as far as enjoyment of the property isconsidered and third party cannot interfere when the lessee is in
sc
Chandra Bose vs. Da Alwis and Others
(Shiranee Thilakawardene (P/CA), J.)
353
enjoyment of the rights. But as far as it is against the owner of theland, the rights of the lessee would fall short of ut dominus. So thatthe dominant principles which govern the rights of the lessee to theland are the same rights of the owner as far as enjoyment of theproperty is concerned which is governed in terms of the lease contractand therefore the relationship between the lessee and the lessor areentirely contractual and dependent upon the contents of the LeaseAgreement aforesaid and therefore the 2nd and the 3rd Respondentshave the same rights of the owner as far as the enjoyment of theproperties are concerned including the Tillicoultry Estate but such rightswould not extend to rights of ut dominus as it would be only rightswithin the contractual relationship, prescribed within the ambit of theLease Agreement that could be enjoyed by the lessee. However in thecontext of the facts set out in this case, and in the circumstances ofthis case, and in terms of the special statute which was enacted asthe State Lands (Recovery of Possession) Act No.07 of 1979, the onlymatter that is relevant and which determines the fact of ownershipwould be whether the property is State Land or not. Parties haveconceded that the property which is the subject matter of this case isState land, it is subject to State Lands (Recovery of Possession) ActNo. 07 of 1979 and the authorized party is entitled to invoke theprovisions of this special law to obtain possession of such property.Therefore since the quit notice has been sent by the Consultant/Plantation Expert, Plantation Reform Project, Plantation ManagementMonitoring Division, Ministry of Plantation Industries who is a CompetentAuthority for the purpose of the State Lands (Recovery of Possession)Act, the quit notice marked P3 is a valid notice and the Petitioner isobliged to comply with the same.
In this context it is important to note that the Petitioner has reliedupon a decision given by the Court of Appeal which is contained injudgment in C. A. Application No. 1560/2000 it is to be noted thatdecision was related to the validity of a quit notice on the basis thatthe quarters occupied by the Petitioners were not government quartersin the meaning of Government Quarters (Recovery of Possession) Actand accordingly the provisions of the that Act could not be availed of in
354
Sri Lanka Law Reports
(2006) 3 Sri LR.
respect of the quarters occupied by the Petitioner which is upon Stateland. It is clear that the definition of the government quarters containedin the Act is quite different to the definition of State lands as containedin the Sta'te Lands (Recovery of Possession) Act No. 07 of 1979 andamended by Act. No. 58 of 1981. In any event, the decision in thatcase related to the contracts that had been vested in the property thathad been leased out to public companies and in these circumstancesis not relevant to the facts in this case. Especially in view of the factthe land that is occupied by the Petitioner is a State land and thePetitioner has no rights whatsover to challenge the quit notice thathas been sent to him marked P2. Accordingly this application isdismissed with costs in a sum of Rs.5000.
ABEYRATNE. J, — I agree.
Application dimissed.