033-NLR-NLR-V-69-H.-S.-H.-P.-GUNAWARDENE-Petitioner-and-D.-R.-O.-WELIGAMKORALE-Respondent.pdf
ALLES, J.—Guruiu-ardene v. D.R.O., Wtligam Korult
186
1966Present: Alias, J.
H. S. H. P. GUNAWARDENE, Petitioner, and D. R. 0., WELIGAMK OR ALE, Respondent
S. G. 461/66—Application in Revision in M. C. Matara, 31977
Land Acquisition Act—Section 42 (2)-—Order thereunder for delivery of possession of aland—Procedure.
Before an order for delivery of possession of a land is made by a Magistrate interms of section 42 (2) of the Land Acquisition Act, evidence should be ledbefore the Magistrate either orally or on affidavit in support of the avermentsin the application for the ejectment order. This evidence may be led ex parteand if the Magistrate is satisfied with the material placed before him, anejectment order may be issued.
Application to revise an order of the Magistrate’s Court, Matara.
J.D. Aseerwalham, with H. W. Senanayake, for the petitioner.
S. Wijesinghe, Crown Counsel, for the respondent.
November 12, 1966. Alles, J.—
In this application, the petitioner prays inter alia that the DeputyFiscal of Matara be ordered to stay execution of an order for delivery ofpossession of a land called Kapittawatta to the Crown. The DistrictRevenue Officer, Weligam Korale, acting under the authority of theacquiring officer filed in application for an ejectment order in terms of
ALIiES, J.—Qunawardene v. DJt.O.. Weltgam Korale
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section 42 (2) of the Land Acquisition Act requesting the Magistrate toissue directions to the Fiscal to break open any doors if necessary withPolice assistance. On this application, the Magistrate made an ex parteorder and issued a Writ of Possession to the Fiscal directing him todeliver possession of the land to the District Revenue Officer. Notice ofthis order was given to all the occupants of the land in question, includingthe present petitioner. The notice also directed the occupants to removeall their movable property within three days of the issue of the notice,failing which the occupants were informed that force would be used totake possession of the land.
.Section 42 (2) of the Land Acquisition Act states that—
“ Where any officer directed by an order under section 38 to takepossession of any land is unable or apprehends that he will be unable totake possession of that land because of any obstruction or resistancewhich has been or is likely to be offered, such officer shall, on hismaking an application in that behalf to the Magistrate’s Court. . . . ,be entitled to an order of that court directing the Fiscal to deliverpossession of that land to him”
The wording of section 42 (2) seems to contemplate that before anofficer could obtain an order under that section he must satisfy the Courtthat he is unable or apprehends that he will be unable to take possessionof the land because of any obstruction or resistance which has been or islikely to bo offered. I find from the cyclostyled application that has beenfiled in Court by the District Revenue Officer that he proceeded to theland on 24. 9. 66 in order to take possession of the land from the ownerthereof who wrongfully and unlawfully refused to allow the applicant totake possession. The District Revenue Officer also states in the sameapplication that he apprehends he will be unable to take possession of thesaid land by reason of obstruction or resistance that is likely to be offeredby the owner. While I agree with the observations of my brotherSirimane, J. in Mohamed Lebbe v. Madana1, that when an order undersection 42 (2) directing the Fiscal to deliver possession of the land is made,any person in occupation of the land is not entitled to be heard in opposi-tion to the application, I think it desirable, even though these proceedingsare in the nature of execution proceedings, that there should beevidence either orally or on affidavit led before the Magistrate in supportof the averments in the application before an ejectment order is made,particularly when a request is made for the use of force, if necessary, totake possession of the land. This evidence may be led ex parte and ifthe Magistrate is satisfied with the material placed before him, anejectment order under section 42 (2) may be issued.
Since this has not been done in the instant case, I direct that the casebe remitted to the Magistrate’s Court of Matara and that evidence on thelines suggested by me be placed before the learned Magistrate so that hemay satisfy himself that the conditions mentioned in section 42 (2) havebeen complied with in order to entitle the officer to take steps under thatsection.
1 (1964) 66 N. L. R. 239.
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ALLES, J.—Ounawardene r. D. R. O., Wtligam Kora.lt
The present order made by the Magistrate is set aside pro forma andthe Magistrate will make a fresh order after hearing evidence for thelimited purpose of satisfying himself that the provisions of section 42 (2)have been complied with. This matter should be disposed of asexpeditiously as possible. There will be no costs of this application.
Order set aside pro forma.