DAYANANDA v. THALWATTE

008-SLLR-SLLR-2001-V-2-DAYANANDA-v.-THALWATTE.pdf


DAYANANDA
v.THALWATTE
COURT OF APPEAL.JAYASINGHE, J.JAYAWICKREMA, J.
MC NUWARAELIYA: 9616/97CA 912/97
2nd DECEMBER, 1999.
1st FEBRUARY, 2000.
24™ MAY, 2000.
Primary Court Procedure Act – S. 66 – Petitioner declared entitled topossession – Steps under State Lands Recovery of Possession Act, 7 of1979 – Prerogative writs – Failure to specify – Declaration that Magistratehad no jurisdiction – Can an application for Writ be combined with anapplication for Revision – Constitution Articles 133 and 140.
The Petitioner instituted proceedings under S. 66 Primary CourtsProcedure Act alleging that, the Superintendent of the Estate attemptedto interfere with the possession of the petitioner. ThePrimary Court made order that he was entitled to possession of thesaid land. Thereafter the Superintendent of the Estate institutedproceedings in the Magistrates Court in terms of Act 7 of 1979.
The Petitioner sought a declaration that the Magistrate's Court hadno jurisdiction to hear and determine the matter and sought by way ofcertiorari and quo warranto to quash the decision of the 1st Respondentto evict the Petitioner and also to declare null and void the steps takenby the 1st Respondent. The application made to the High Court bythe Petitioner was withdrawn, and an Application was made to the Courtof Appeal to quash the decision by the 1st Respondent to instituteproceedings in terms of Act 7 of 1979 and to declare that the quit Noticeis of no avail or force, and for an order declaring that the MagistratesCourt of Nuwara Eliya has no jurisdiction to hear the case.
Held :
(i) Application for Revision in terms of Article 138 and an applicationfor writ of Quo Warranto, Certiorari and Prohibition under Article 140cannot be combined as they are two distinct remedies.
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(ii) Even though the Petitioner has set out in the caption that ‘In the
matter of an Applicationfor Writs of Quo warranto and Prohibition’
there is no supporting averment specifying the writ and there isno prayer as regards the writ that is being prayed for. The failure tospecify the writ renders the Application bad in law.
(ill) The institution of proceedings in the Magistrates Court in terms ofquit notice is not a determination affecting legal rights "warranting theissuance of a Writ of Certiorari.
It was open for the Petitioner to seek to quash the quit noticeby way of certiorari when the determination was made by the 1stRespondent, or to move in Revision at the conclusion of the Magistratesfindings.
APPLICATION for Revision and Writs of Quo Warranto, Certiorari andProhibition under Article 140 of the Constitution.
Cases referred to:
K.M. Kanmamthne vs Ratnayake – 1986 1 CALR 478
Fernando vs University of Ceylon – 58 NLR 285
Wijesinghe vs Tharmaratnam – Vol. IV – Sri Kantha Law Reports47
I. S. de Silva with Siddhi Daluwatte for Petitioner.
Faiz Musthapha PC., with Dr. Jayampathy Wickremaratne for 1st Re-spondent.
Ms Murdu Fernando SSC for 2nd Respondent.
Cur. adv. vvlt.
September 29, 2000.
JAYASEfGHE, J.
The Petitioner instituted proceedings in the Primary Courtof Nuwara-EIiya under Section 66 of the Primary CourtsProcedure Act; and alleged that the Superintendent of theCourt Lodge Estate attempted to interfere with the possessionof the Petitioner of the land morefully described in the scheduleto this application, handed over to him for cultivation on a
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Dayanarida v. Thahvatte
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profit sharing basis in June 1994. The learned Primary CourtJudge made order that the Petitioner was entitled to posses-sion of the said land and restrained the UdapussellawaPlantations Limited, the lessee its agents from interfering withthe possession of the Petitioner. The Petitioner alleged that the1st respondent wrongfully and unlawfully with a view ofnegating the order made by the learned Primary Court Judgeinstituted proceedings in the Magistrate’s Court of Nuwara-Eliya seeking to eject the Petitioner in terms of the State LandsRecovery of Possession Act No. 7 of 1979 as amended. Thepetitioner thereafter instituted proceedings in the High Courtof Kandy seeking a declaration that the Magistrate’s Court hadno jurisdiction to hear and determine the said action andsought by way of Writ of Certiorari and Quo Warranto an orderto quash the decision of the Is Respondent to evict thePetitioner and also to declare null and void the steps hither totaken by the Is Respondent. The Is Respondent filed objec-tions to the said application: and contended that the HighCourt of Kandy did not have jurisdiction to hear and determinethe said application: that the subject matter of the saidapplication was outside the Provincial Council list in terms ofArticle 154(P) (4) (b) of the Constitution. Thereafter the Peti-tioner moved to with-draw the said application before the HighCourt of Kandy which was allowed. The present application isto quash the decision of the 1 Respondent to instituteproceedings in terms of the State Lands Recovery of Posses-sion Act No. 7 of 1979 as amended to eject the Petitioner and,to declare that the quit notice of 08.04.1997 is of no avail orforce in law; for an order declaring that the Magistrate Courtof Nuwara-Eliya has no jurisdiction to hear and determine thisaction; for an order staying proceedings pending before theMagistrate’s Court of Nuwara-Eliya until the final determina-tion of this application.
When this matter came up for argument on 02.12.1999Mr. Musthapha, PC. raised a number of preliminaryobjections regarding the maintainability of this application.He contended that –
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. an application for revision cannot be combined with an
application for writ as they are two distinct remediesavailable to a party aggrieved.
. that the Petitioner has failed to identify the writ he has
sought from this Court.
(ill), that the prayer sought
, to quash the decision of the 1st Respondent to institute
proceedings in terms of State Lands Recovery of Posses-sion Act and
. to declare that the quit notice dated 08.04.1997 … is of
no force or avail
are misconceived and unknown to the law and thereforeneither relief could be granted.
Mr. I. S. de Silva for the Petitioner submitted that thecontention of the Is Respondent that to quash the decision toinstitute proceedings, one has to wait till the proceedings areinstituted and that as in this instance only a decision toinstitute proceedings has been made and therefore writ doesnot lie is an argument that is not maintainable for the reasonthat an action has already been instituted in the Magistrate’sCourt of Nuwara-Eliya to eject the Petitioner and that the saidaction is pending. He submitted that it was during the pendencyof this action that these proceedings were instituted to quashthe decision of the 1 Respondent and to declare the said quitnotice of no avail or force in law. He submitted that a party neednot wait until legal proceedings are instituted to preserve hislawful rights. In K. M. Karunaratne Vs. Ratnayake the Courtof Appeal having held that there was a contract of tenancy,proceeded by way of writ of certiorari and quashed the quitnotice on the ground that the said quit notice was not valid inlaw. In this case the Assistant General Manager of NationalSavings Bank a Competent Authority for the purpose ofGovernment Quarters Recoveiy of Possession Act No. 7 of1969as amended gave notice to the Petitioner to vacate certain
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Dayananda v. Thahvatte
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premises occupied by him. The Petitioner in the said casechallenged the quit notice on the ground that there was atenancy agreement between the parties which was not coveredby the said Act No. 7 of 1969. He submitted that in the presentcase the Respondent not only issued quit notice but alsoinstituted action and the Petitioner has sought both to quashthe proceedings that has already been instituted In theMagistrate’s Court of Nuwara-Eliya and that can only be doneby way of a writ of certiorari; that the Petitioner has also soughta declaration that the Magistrate’s Court of Nuwara-Eliya hasno jurisdiction. Mr. de Silva then submitted that even thoughit was contended that in the prayer of the Petition the wordcertiorari had not been specified and thus there is no basis forapplication of writ, an examination of the Petition would showboth from the caption and the body of the Petition that thePetitioner has sought by way of writs of certiorari and quowarranto to quash the decision of the Is Respondent to ejectthe Petitioner and to avoid all consequential steps taken by theIs Respondent. Mr. de Silva while conceding that the wordswrit of certiorari does not appear in the petition submitted thatthere is clear proof of the fact that the Petitioner has sought toinvoke the writ jurisdiction particularly byway of certiorari. Healso submitted that Courts of England have from time to timeheld that an applicant might seek any of the five remedies ofmandamus, certiorari, prohibition, declaration or injunctionand that in Fernando Vs. University of Ceylon Supreme Courthas held that where a remedy by way of certiorari may not beavailable, Courts may intervene by way of a declaration orinjunction notwithstanding the absence of a right of appeal.
Mr. Musthapha, PC. submitted in support of hisargument that Revision and Writ Jurisdiction cannot becombined in that Writ Jurisdiction is original jurisdictionwhile Revisionaiy Jurisdiction is review jurisdiction. InWijesinghe Vs. Tharmaratnam the caption was as follows:-
“In the matter of an application for leave to appeal underSection 156(2) of the Civil Procedure Code and/or for the
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exercise of the revisionaiy powers under Section 753 ofthe said Code.” Paragraph 18 of the petition of the abovecase stated that “in the circumstances aforementioned it isrespectfully urged that Your Honours Court be pleased togrant relief to the Defendant-Petitioner by exercising therevisionaiy powers vested in Your Honours Court in the eventthat Your Honours Court is pleased to maintain that theDefendant-Petitioner is not able to maintain an application forleave to appeal in this matter.” A preliminary objection wasraised in appeal that an application for leave to appeal cannotbe joined together with an application for revision. It was alsourged that stamps furnished have been only for the leave toappeal application and none for the application for revision.The Court did not proceed to make a determination on theobjections taken namely, as to misjoinder and the consequentunderstamping. Jameel, J. expressed the view that “these twoobjections are not devoid of merit but they could await a fullerargument in an appropriate case. Mr. Musthapha, P. C. relyingon the above case submitted that the two applications cannotbe joined for the reason that, different criteria applies forstamping. Mr. Musthapha then submitted that since Mr. DeSilva conceded that writ jurisdiction cannot be combinedwith revisionaiy jurisdiction the present application could bedismissed on this ground alone.
Mr. Musthapha then submitted that the Petitioner hasfailed to specify the writ he was seeking even though inthe caption he has referred to quo warranto, certiorari andprohibition, there is no reference made to any of these writseither in the body of the application or in the prayer. Hesubmitted that in England due to the confusion resulting fromthe need to identify a specific writ an important reform wasmade in 1997 with the introduction of a new form of procedureknown as The Application for Judicial Review. In theAdministrative Justice Report of the Committee of the Justice- all Souls Review of Administrative Law in the UK laid downthe procedural innovation vide order 53 of the Rules of theSupreme Court –
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“An important reform was made in 1977 with theintroduction of the new form of procedure known as ‘theapplication for judicial review’. The change had been proposedin 1976 by the Law Commission of England and Walesin Remedies in Administrative Law (Law Com. No. 73Cmnd. 6407). Earlier Commonwealth precedents wereOntario’s Judicial Review Procedure Act, 1971 (nowRevised Statutes of Ontario 1980 c. 224), and New Zealand’sJudicature Amendment Act, 1972 as subsequently amended.The Australian Parliament in 1977 enacted the AdministrativeDecisions (Judicial Review) Act, though not proclaimed until1 October 1980.”
The learned President’s Counsel referred to A. A. De Smithin Judicial Review of Administrative Action 4 Edition atPage 568 “On an application for judicial review made underorder 53 of the Supreme Court Rules it is now possible for aCourt to award in a single proceeding any one or more of theprerogative orders of certiorari, prohibition or mandamus,declaration or an injunction. This was a reform enacted inEngland by an amendment to the rules by which a specificremedy known as an Application for Judicial Review statedabove was introduced to avoid having to specify a writ.However in the absence of such a procedure in Sri Lanka theomission to specify the writ is a fatal irregularity andMr. Musthapha submits that a bald prayer to quash thedecision of the 1 Respondent to institute proceedingsin terms of State Lands Recovery of Possession Act ismisconceived and cannot be granted. Similarly the prayer todeclare the quit notice dated 08.04.1997 as of no force or availis also misconceived as a fatal error for the same reason.
Mr. Musthapha also submitted that in order to obtaincertiorari there must be a determination affecting legal rights.The institution of proceedings in the Magistrate’s Court interms of a quit notice is not a determination affecting legalrights.
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I have very carefully considered the submissions of thelearned President’s Counsel and Mr. I. S. de Silva. I hold thatthe application for revision in terms of Article 138 andon application for Writs of Quo Warranto, Certiorari andProhibition under Article 140 of the Constitutions cannot becombined as they are two distinct remedies available to anaggrieved party and for that reason the Petition is fatallyflawed. The Petitioner has failed to aver the basis for hisentitlement why he is invoking the writ jurisdiction ofthis Court. Nor has the Petitioner averred in his Petition thathe is seeking to invoke the Revisionaiy Jurisdiction of thisCourt. The Petitioner in paragraph 13 of his Petition has onlystated that the “.. . aforesaid matters constitute exceptionalcircumstances and grounds warranting the invocation of thejurisdiction of Your Lordships Court.” This averment is vagueindistinct, ambigious and without a legal basis and thereforecannot be maintained. Mr. I. S. de Silva did concedethat revisionaiy jurisdiction cannot be combined with writjurisdiction.
An aggrieved person who is seeking to set aside anunfavourable decision made against him by a public authoritycould apply for a prerogative writ of certiorari and if theapplication is to compel an authority to perform a duty hewould ask for a writ of mandamus and similarly if an authorityis to be prevented from exceeding its jurisdiction the remedyof prohibition was available. Therefore it is necessary forthe Petitioner to specify the writ he is seeking supported byspecific averments why such relief is sought. Even though thePetitioner has set out in the caption that “In the matter of anapplication… for writ of quo warranto and prohibition” thereis no supporting averment specifying the writ and there is noprayer as regards the writ that is being prayed for. The failureto specify the writ therefore renders the application bad in law.
The learned President’s Counsel’s objection that theinstitution of proceedings in the Magistrate’s Court in terms ofthe quit notice is not “a determination affecting legal rights”
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warranting the issuance of a writ or certiorari is well founded.It was open for the Petitioner to seek to quash the quit noticeby way of ceriorari when the determination was made by the1st Respondent or to move in Revision at the conclusion of theMagistrate’s finding.
The preliminary objections of the learned President’sCounsel is sustained. I am unable to grant the relief prayed forby the Petition.
Application is dismissed with costs fixed at Rs. 5000/-.JAYAWICKRAMA, J.I agree.
Application dismissed