CA Farook v. Gunewardene, Government Agent, Amparai (Abdul Cader, J) 243
FAROOK v. GUNEWARDENE, GOVERNMENT AGENT, AMPARAICOURT OF APPEAL
C.A. APPLICATION 65/80
ABDUL CADER, J. & L. H. DE ALWIS, J.
AUGUST 4, 1980.
State Land (Recovery of Possession) Act, No. 7 of 1979, sections 3, 4, 5, 6, 7, 8,9, 10, 12, 13, 15 and 17 – Natural Justice.
The petitioner complained that the land in question was not state land but privateland of which he was in possession on deeds ranging from years 1934-1967 andthat he was not given an opportunity of placing those facts before theGovernment Agent prior to the notice to quit being served on him, which healleged amounted to a violation of natural justice and the principle of audialteram partem.
When the legislature made express provision for any person who is aggrievedthat he has been wrongfully ejected from any land to obtain relief by a processspecified in the Act itself, it is not open for the court to grant relief on the groundthat the petitioner had not been heard.
Case referred to:
(1) University of Ceylon v. £ F.W. Fernando (Privy Council) 61 NLR 505.APPLICATION for Writs of Certiorari and Mandamus.
M.S. M. Nazim with M. Farook Thahir for the petitioner.
Ameer Ismail, S.S.C. with A. Wijewardene, S.C. for respondent.
Cur adv vult.
13th November, 1980.
ABDUL CADER, J.
By notice marked P1 Government Agent, Amparai, the respondentto this petition, who was the competent authority for the purpose ofthe State Land (Recovery of Possession) Act, No. 7 of 1979, issued aquit notice on the petitioner to quit the land described in theschedule to P1 which was according to the respondent state landand on the failure of the petitioner to quit the land, institutedproceedings in the Magistrate's Court of Kalmunai for the recovery ofthe said land.
The petitioner did not deny that the said notice P1 was served onhim.
The petitioner complains that the land in question is not a stateland and that he has been in possession of that land on deeds
Sri Lanka Law Reports
(1980) 2 Sri L.R.
ranging from 1834 to 1967. It has been the subject matter ofproceedings for transfer of title and possession in the Magistrate’sCourt of Kalmunai, and is, a private and not a state land; that he wasnot given an opportunity of placing these facts before theGovernment Agent before a quit notice was served on him whichwas a violation of natural justice and that the respondent took actionin a unilateral, arbitrary and pre-determined manner. State Counselcontested the requirement of any inquiry by the Government Agentand submitted that the only inquiry that was contemplated by this Actwas one before the Magistrate under section 9 of the Act and,therefore, this application should be dismissed.
Counsel for the petitioner cited various authorities in support of hisproposition, particularly the Privy Council Case of the University ofCeylon v. E. F. W. Fernando.m Since the question of natural justiceand the principle of audi alteram partem were very much in issue, wepostponed the order in this case until after the Supreme Courtdecision in the G. P. A. Silva Commission case was known. Now thatthe judgment has been delivered, we find that the judgment is of noassistance to decide the principles involved in this case. Meanwhile,another bench of this Court on 8th September, 1980, on 1755/79adopted a statement from the Law of Writs and Fundamental Rightsby Chaudhuri, 2nd Edition, Volume II, p. 701 which reads as follows:-
“It is not correct to state that the party adversely affected shouldbe heard at each and every stage of the administrative process.There is no such general requirement in the principle of audialteram partem. The principle is satisfied if the party adverselyaffected is given sufficient opportunity to know the case he hasto meet and to answer that case at some stage and not at allstages of the administrative proceedings.”
and went on to hold that the contention of the learned Counsel for thepetitioner that the petitioner ought to have been heard by theGovernment Agent before notice was issued in terms of section (3) ofthe Act, was untenable.
The facts in that case are different from the facts in this case. Inthat case, the petitioner went into occupation of Crown land on apermit issued by the Government Agent under the Crown LandsOrdinance and that permit contained conditions, inter alia, that itwas valid for one year unless renewed and it was liable to beterminated by the Government Agent. The facts in this case aretotally different from the facts in that case. In this case, the origin ofthe plaintiff’s possession is by virtue of title deeds which are set out in
CA Farook v. Gunewardene, Government Agent, Amparai (Abdul Cader, J.)245
paragraph 2 of the petition and, therefore, it cannot be said that therehad been any admissions on the part of petitioner that the land insuit is a state land. In fact the complaint of the plaintiff in this case isthat he has not been given an opportunity to establish before theGovernment Agent that the land in suit is not a state land, but aprivate land. Therefore, I do not think that that case can be ofassistance to the State in this case.
In the Privy Council case referred to, it was stated “in general therequirement of natural justice are, first, that the person accusedshould know the nature of the accusation made; secondly that heshould be given an opportunity to state his case and thirdly that thetribunal should act in good faith.” Adopting these three requirementsfor the purpose of the petitioner’s complaint, the petitioner has notbeen given an opportunity to state his case to the Government Agentbefore the Government Agent instituted proceedings in theMagistrate’s Court. At the inquiry before the Magistrate, the only pleaby way of defence that the petitioner can put forward is “that he is inpossession or occupation of the land upon a valid permit or otherwritten authority of the State granted in accordance with any writtenlaw and that such permit or authority is in force and not revoked orotherwise rendered invalid.” Section 9(2) is to the effect that theMagistrate cannot call for any evidence from the competent authorityin support of the application under section 5, which means that theMagistrate cannot call upon the competent authority to prove that theland described in the schedule to the application is a State land(Section 5(1 )(a)(ii)). Therefore, the petitioner will not have anopportunity of raising the question whether the land is a State orprivate land before the Magistrate. Adopting the requirements set outin the Privy Council case, the requirement that the petitioner shouldbe given an opportunity to state his case will not be met. Therefore,the petitioner’s submissions need careful consideration.
On an analysis of Act, No. 7 of 1979 and the Privy Council case,there appears to be a substantial distinction between the two. In thatcase, the decision of the Vice Chancellor was final and would haveprevented a student from sitting for the examination for the periodprescribed by the Vice Chancellor without any other reliefwhatsoever. That section requires the Vice Chancellor to “satisfyhimself of the truth or falsity of a given allegation” and the ViceChancellor’s function under that clause was admitted to be quasi-judicial. On the other hand, section 3(1) of Act, No. 7 of 1979 readsas follows:-
“Where a competent authority is of opinion that any person is
in unauthorized possession or occupation of any State land the
Sri Lanka Law Reports
(1980) 2 Sri LR.
competent authority may serve a notice on such person inpossession or occupation thereof, or where the competentauthority considers such service impracticable or inexpedient,exhibit such notice in a conspicuous place in or upon that landrequiring such person to vacate such land with his dependents,if any, and to deliver vacant possession of such land to suchcompetent authority or other authorized person as may bespecified in the notice on or before a specified date. The dateto be specified in such notice shall be a date not less than thirtydays from the date of the issue or the exhibition of such notice.”
Therefore, it would appear that the functions of the competentauthority is not quasi-judicial, but administrative. It is significant thatsection 15 protects the competent authority.
The structure of the Act would also make it appear that where thecompetent authority had formed the opinion that any land is Stateland, even the Magistrate is not competent to question his opinion.Alternate relief is given by section 12 which empowers any personclaiming to be the owner of a land to institute action against the Statefor the vindication of his title within 6 months from the date of theorder of ejectment and section 13 is to the effect that where action isinstituted by a person, if a decision is made in favour of that person,he will be entitled to recover reasonable compensation for thedamage sustained by reason of his having been compelled to deliverpossession of such land.
It is significant that there is no provision in these two sections toplace the person ejected in possession of the land when the actionhas been decided in favour of the person ejected, even though thatperson has vindicated his title to the land. It appears, therefore, thatthe intention of th Legislature was that once the competent authorityhad decided that any land was State land even after the personclaiming to be the owner vindicates his title to the land, he was not tobe restored to possession of the land, but only entitled to recoverreasonable compensation for the damage sustained including thevalue of the land by reason of his having been compelled to deliverup possession of such a land.
Urgency appears to be the hallmark of this Act. Under section 3,30 days notice shall be given. Under section 4, the person inpossession is not entitled to object to notice on any groundwhatsoever except as provided for in section 9 and the person whois in possession is required to vacate the land within the monthspecified by the notice. Under section 6 the Magistrate is required to
CA Farook v. Gunewardene, Government Agent, Amparai (Abdul Cader, J.)247
issue summons forthwith to appear and show cause on a date notlater than two weeks from the date of issue of such summons.Under section 8(2) the Magistrate is required to give priority over allstate business of that court. Under section 9, the party noticed canraise objections only on the basis of a valid permit issued by theState. Under section 10, if the Magistrate is not satisfied, “he shallmake order directing ejectment forthwith and no appeal shall lieagainst the order of ejectment. Under section 17, the provisions ofthis Act have effect notwithstanding anything contained in any writtenlaw.
When the Legislature has made express provision for any personwho is aggrieved that he has been wrongfully ejected from any landto obtain relief by a process described in the Act itself, it is not forthis Court to grant relief on the ground that the petitioner has notbeen heard. Where the structure of the entire Act is to precludeinvestigations and inquiries and where it is expressly provided (a) theonly defence that can be put forward at any stage of the proceedingsunder this Act can be based only upon a valid permit or writtenauthority of the State and (b) special provisions have been made foraggrieved parties to obtain relief, I am of the opinion that the Actexpressly precludes the need for an inquiry by the competentauthority before he forms the opinion that any land is State land.
This application is therefore dismissed with costs.
L. H. DE ALWIS, J. – I agree.
FAROOK v. GUNEWARDENE, GOVERNMENT AGENT, AMPARAI