028-SLLR-SLLR-2005-V-1-DIAS-vs.-WANIGARATNE.pdf
CA.
Dias Vs
Wanigaratne (Amaratunga, J.)
225
DIASVSWANIGARATNECOURT OF APPEALAMARATUNGA, J/ANDBALAPATABENDI, J.
C. A. (PHC) No. 68/2002H. C. BADULLA REV. 98/01
M.C. NUWARAELIYA 9616/97.OCTOBER 29, 2002
Constitution – Thirteenth Amendment – Articles 138, 154P(i) and 154P(3)(b) -State Lands (Recovery of Possession) Act – Application to Magistrate's Court ofNuwara Eliya – Order of eviction challanged in High Court of the Uva Province- Does it have jurisdiction ? – Judicature Act.^No. 2 of 1978, section 3 – Can theMinister of Justice by Gazette Notification create or change the territoriallimitation set out in the Constitution?
The petitioner filed an application in the Magistrate's Court of Nuwara Eliyaunder the State Lands (Recovery of Possession) Act to evict the respondentfrom a State land. The Magistrate’s Court issued a writ to eject the respondent.The respondent challenged the said order in the High Court of the Uva Province.
The High Court relying on an order made by the Minister of Justice undersection 3 of the Judicature Act held that the High Court of the Uva Province hasjurisdiction.
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(2005) 1 Sri L. R.
HELD- (i) The appellate and revisionary jurisdiction conferred on theProvincial High Court by Article 154P(3) (b) has a territoriallimitation. Appellate and revisionaryjurisdiction can be exercised .only in respect of convictions, sentences, and orders enteredor Imposed by Magistrate's Courts and Primary Courts withinthe Province. The Magistrate's Court of Nuwara Eliya is situatedwithin the Central Province – not within the Uva Province.
While the Minister retained his powers to demarcate theterritorial limits of judicial zones, judicial districts and judicialdivisions under section 3, the Provincial High Court exercisesits new jurisdiction on the provincial basis. The provincial basison which the Provincial High Court exercised its new jurisdictioncannot be changed by an order made by the Minister undersection 3.
The territorial limitation spelt out by the words 'within theProvinces' cannot be changed by an Order made under section3 of the Judicature Act.
APPLICATION in revision from an Order of the Provincial High Court of the Uva
Province.
Dr. Jayampathi Wickremaratne PC., with Pubudini Wickramaratne forPetitioner.
Mohan Pieris P. C., for respondent.
Cur. adv. vult.
December 13, 2004
GAMINIAMARATUNGA, J.This is a revision application to set aside the order of the learned HighCourt Judge of the Uva Provincial High Court holden at Badulla overrulingthe petitioner’s preliminary objection with regard to the .High Court sjurisdiction to hear and decide the revision application filed in that Court bythe respondent.
The facts relevant to this application are as follows. The petitioner filedan application in the Magistrate’s Court of Nuwara Eliya under the StateLands (Recovery of Possession) Act to evict the respondent from a Stateland which he was occupying without lawful authority. After inquiry thelearned Magistrate issued the writ sought by the petitioner to eject therespondent from the land in question.
CADias Vs,.227
Wanigaratne (Amaratunga, J.)
The respondent then filed a revision application in the High Court of theUva Province to get the order of the learned Magistrate revised. Thepetitioner, appearing before the High Court, took up a preliminary objection 1that in view of the provisions of Article 154 P(3)(b)of the Constitution, theProvincial High Court of the Uva Province had no jurisdiction to deal withan application to revise an order made by the Magistrate’s Court of NuwaraEliya which is a Court situated within the Central Province. The learnedHigh Court Judge, relying on an order made by the Minister of Justice, byvirtue of the power vested in him by section 3 of the Judicature Act No. 2of 1978, and published in Gazette Extraordinary No. 1182/2 dated30.04.2001, overruled the petitioner’s objections and held that the HighCourt of the Uva Province has jurisdiction to deal with the respondent’srevision application. This revision application is against that order madeon 09.05.2002.
Provincial High Courts were established by Article 154P of theConstitution, brought in by the Thirteenth Amendment to the Constitution.Article 154 P (1) reads as follows.
“There shall be a High Court for each Province with effect from the'date on which this Chapter comes into force. Each such High Courtshall be designated as the High Court of the relevant Province.”
The Thirteenth Amendment gave appellate and revisionaryjurisdictionto the Provincial High Court. Article 154 P (3)(b), which is the provisionrelevant to this application reads as follows.
“Every such High Court shall, notwithstanding anything in Article138 and subject to any law exercise, appellate and revisionary jurisdiction.in respect of convictions, sentences and orders entered or imposed byMagistrate’s Courts and Primary Court's within the Province."
■ The appellate and revisionaryjurisdiction conferred on the ProvincialHigh Court by Article 154P(3)(b) quoted above has a territorial limitation.The Provincial High Court’s appellate and revisionaryjurisdiction can beexercised only in respect of convictions, sentences and orders entered orimposed by Magistrates Courts and Primary Courts within the Province.The words ‘within the Province’ used in Article 154P(3)(b) highlight theextent and at the same time the territorial limit of this new jurisdiction.
The Magistrate’s Court of Nuwara Eliya is situated within the CentralProvince. The question to be decided is whether the Minister of Justice,by an order published under section 3 of the Judicature Act, No. 2 of 1978,can create a change of that territorial limitation set out in the Constitution.Can the Minister, by an Order made under section 3 of the Judicature Act,
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(2005) 1 Sri L. R.
confer appellate and revisionary jurisdiction on the High Court of the UvaProvince in respect of convictions, sentences and orders entered or imposedby the Magistrate's Court of Nuwara Eliya which is situated within theCentral Province?
Section 3 of the Judicature Act reads as follows.
“For the purpose of adminstration of justice Sri Lanka shall be dividedinto judicial zones, judicial districts and judicial divisions within suchterritorial limits as may in consultation with the Chief Justice and thePresident of the Court of Appeal from time to time be determined by theMinister by Order published in the Gazette.” (proviso omitted as it isnot relevant to the present purpose.)
For the purpose of administration of justice, dividing Sri Lanka on aprovincial basis, was never thought of in 1978 when the Judicature Actwas enacted. The Thirteenth Amendment to the Constitution passed in1987, provided for devolution of power, legislative, executive and judicialwithin the framework of the unitary Stale. This devolution was made on aprovincial basis. Appellate and revisionary jurisdiction, exercised upto thattime by the Superior Courts, was conferred (in a limited way) on'theProvincial High Courts established by the Thirteenth Amendment. Thus,in addition to the divisions for the purpose of administration of justice,referred to in section 3 of the Judicature Act. another division made on aprovincial basis, came into existence with the Thirteenth Amendment tothe Constitution. While the Minister retained his powers to demarcate theterritorial limits of judicial zones, judicial districts and judicial divisionsunder section 3 of the Judicature Act, the Provincial High Court, commencedto exercise its new jurisdiction on the provincial basis, set out in Article154P of the Constitution. The provincial basis on which the Provincial High■ Court exercised its new jurisdiction cannot be changed by an order madeby the Minister under section 3 of the Judicature Act. Any order made bythe Minister under section 3 of the Judicature Act must be made inconformity with the concept of the ‘Province’ upon which the ProvincialHigh Court got its new jurisdiction.
The Eighth Schedule to the Constitution sets out the nine Provinces ofthe country. The exercise of appellate and revisionary jurisdiction of theProvincial High Court must strictly be on a provincial basis as decreed inthe Constitution.
An order made by the Minister under section 3 of the Judicature Actcannot confer on the Provincial High Court of the Uva Province, jurisdictionwhich it does not have under Article l54P(3)(b) of the Constitution. Theterritorial limitation spelt out by the words 'within the Province’ cannot be
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Chrysantha Fernando (Balapatabendi, J.)
changed by ah Order made under section 3 of the Judicature Act. TheOrder published in Gazette No. 1182/2 of 30.04.2001 cannot be interpretedto mean that it confers on the Provincial High Court of the Uva Provinceappellate and revisionary jurisdiction in respect of an order made by aMagistrate’s Court situated within the Central Provinge. I therefore holdthat the learned High Court Judge was in error when he held that in view ofthe said order made by the Minister, the Provincial High Court of the UvaProvince had revisionary jurisdiction to deal with the revision applicationfiled by the respondent.
Accordingly I allow this application and in the exercise of the revisionarypowers of this Court, set aside the order of the learned High Court Judgedated 09.05.2002, uphold the objection raised by the petitioner in the HighCourt and dismiss the respondent’s revision application filed in the HighCourt of the Uva Province. I make no order for costs.
BALAPATABENDI, J. -1 agree.Application allowed.
Revision application filed in the High Court of the Uva Province dismissed.