026-SLLR-SLLR-2009-V-1-HIRAN-GUNASEKERA-vs-AQUIRING-OFFICER-AND-ANOTHER.pdf
CA
Hiran Gunasekera Vs. Acquiring Officer and Another
203
HIRAN GUNASEKERAVS.
ACQUIRING OFFICER AND ANOTHER
COURT OF APPEALMARASINGHE.JSARATH DE ABREW.JCA 01/2006JULY 22, 2008NOVEMBER 22, 2008JANUARY 22, 2009
Land Acquisition Act-Board of Review-Section 28 (2) – Compensa-tion awarded – Appeal-Computation of time period-Rubber stamp ofthe registry-not initialed or endorsed- Importance? – Civil ProcedureCode – Section 754, Section 755(2)- Petition of Appeal dated 20.2.2006transmitted to Court of Appeal – Presumption? Evidence OrdinanceSection 114.
The appellant filed a petition of appeal dated 20.2.2006 seekingenhancement of compensation awarded, by the Board of Review.
The respondent contended that although the petition of appeal isdated 20.2.2006 it had been tendered on 21.2.2006-as the date stampbears the later date and therefore the appeal was not presented within21 days.
The appellant contended that, even though the petition of appeal hadbeen rubber stamped as 21.2.2006, the rubber stamp has not beensigned, endorsed or authenticated by an authorized officer, whichrendered the rubber stamp devoid of any legal sanction. The petition ofappeal the motion and the proxy all bear the date 20.2.2006-thereforethe appeal is in time.
Held:
The material date is the date of presenting and not the date thepetition is bound to the record and transmitted. Even thoughthere is an unauthenticated date stamp on the petition and theconnected documents, in the absence of a proper authenticationor endorsement by the Secretary to the Board or any other
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authorized officer, there is no conclusive proof that the date stampwas stamped at the point of presentation to the Board or at thepoint of annexing the petition to the case proceedings.
Per Sarath De Abrew, J.
“Where a doubt arises, this should be resolved in favour of theappellant where substantial statutory right of appeal wouldbe prejudiced otherwise. The situation would have been quitedifferent if at the very point of presentation of the petition ofappeal, the Secretary to the Board or other authorized officer hadentered the date and time of presentation and duly initialed andauthenticated same.”
Even though there is no statutory obligation to do so, there isa duty cast on the Secretary or his authorized officer to certifythe date of presentation and filing of the petition of appeal asSection 28(3) Land Acquisition Act provided statutory pre con-ditions before the appeal is transmitted to the Court of Appeal.The Secretary to the Board should be satisfied that the petition ofappeal is presented in conformity with the requirements in Section28(2) and further he must be satisfied that it had been presentedwithin time.
In the instant case the Secretary had transmitted the appeal to theCourt of Appeal without any endorsement to the contrary that theabove two requirements have not been fulfilled. This itself givesrise to a strong presumption that the petition of appeal had beenpresented within time.
APPEAL from an order of the Land Acquisition Board of Review – on a
preliminary objection taken.
Cases referred to:-
Chandrasiri vs. A.G. – 1989 1 Sri LR 115
Jayaweera vs. Assistant Commissioner of Labour 1996-2 Sri LR 70
Nachchiduwa vs. Mansoor- 199 2 Sri LR 273
Selenchina vs. Mohamed Marikkar and others – 2000-3 Sri LR 100
Boyagoda vs. Mendis – 30 NLR 321
Velupilla vs. the Chairman, Urban District Council 39 NLR 464
Reed vs. Samsudeen – 1 NLR 292
PaUtha Kumarasinghe PC with I. Idroos for appellant-appellant
Vikum de Abrew SSC for Is* and 2nd respondents-respondents.
CA
Hiran Ounasekera Vs. Acquiring Officer And Another
(Sarath de Abrew, J.)
205
September 08, 2009SARATH DB ABREW, J.
This is an appeal from a decision of the LandAcquisition Board of Review dated 30.01.2006 awardingcompensation to the Appellant in respect of a land situatedat Heiyantuduwa, Biyagama acquired under the LandAcquisition Act No. 9 of 1950 as amended.'The appellant’sentitlement-of the land acquired was equivalent to A2-AS-PS? or 1.207 Hectares consisting of granite rocks commer-cially exploitable. Apparently, the land had been acquired toprevent any possible damages that could be caused tothe nearby reservoir by the blasting of the granite rocks.Following an appeal to the Board of Review compensa-tion awarded to the appellant had been enhanced toRs. 7,450,000/=. Being aggrieved of this order, the Appellant-Appellant (hereinafter referred to as the Appellant) has filed apetition of Appeal dated 20.02.2006 and thereby appealed tothis Court seeking the total compensation to be increased toRs. 20,766,771 /=
When the matter was taken up for hearing, the learnedSenior State Counsel for the Respondent-Respondent (here-inafter referred to as the Respondent) raised a PreliminaryObjection that the Petition of Appeal had been filed on
and therefore the Appeal was not within the21 days stipulated under Section 28(2) of the Act and wastherefore out of time and should be dismissed in limine. Aftertendering oral submissions on this preliminary objection,both parties have submitted comprehensive writtensubmissions supported by case law authorities. Henceforth,this order is confined to the preliminary objection raised bvthe learned Counsel for the Respondent.
We have carefully considered the entirety of the writtensubmissions and case law authorities tendered by both
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parties, the impugned petition of appeal and the entirety ofthe proceedings before the Board of Review. The learnedSenior State Counsel has submitted that the Petition ofAppeal, though dated 20.02.2006, had in fact been tenderednot on 20.02.2006 but on 21.02.2006 as the date stampbears the latter date. He has further submitted that underSection 28(2) of the Land Acquisition Act, the Petition ofAppeal should have been presented in duplicate to theBoard of Review by the Appellant within 21 days after thedate of the decision of the Board which is 30.01.2006, andhence the Appeal should have been filed not later than 20thFebruary 2006. The Senior State Counsel furthersubmitted that even if the date of prouncement of thejudgment is excluded in line with similar provisionsthat have been interpreted by our Courts, Saturday, Sundaysand Public Holidays cannot be excluded as the Act has notmade provisions to exclude same.
The learned Senior State Counsel relied heavily onthe date stamp, though not initialed or authenticated,stamped on the Petition of Appeal which bore the date of 21*'February 2006. In support he cited Chandrasiri vs A.GJ‘lwhere he submitted the Supreme Court had accepted the datein the date stamp as the date of filing. He further submittedthat the Appellant did not adduce evidence to rebut the factthat the date on the date stamp was not the date of filing. Hefurther submitted that the presumption under Section 114(d)of the Evidence Ordinance that Judicial and official actshave been regularly performed favoured the Respondent. Insupport the learned Senior State Counsel cited Jayaweera VsAssistant Commissioner of Labour*21 where H.N.D.Jayasuriya,Jhad held that it is not open to the Petitioner to file a convenientand self serving affidavit for the first time before the Court ofAppeal and thereby seek to contradict either a quasi judicialact or judicial record.
CA
Hirart Ounasekera V!s. Acquiring Officer And Another
(Sarath de Abrew, J.)
207
Therefore the learned Senior State Counsel based hissubmission that the petition of Appeal in question is out oftime on the following grounds
As the judgment of the Board of Review was delivered on30.01.2006, excluding that date, the 21days appealableperiod under Section 28(2) of the Land Acquisition Actexpired on 20.02.2006.
Saturdays, Sundays and Public Holidays are not to beexcluded in computing the appealable time period asthere is no specific provision to that effect in the LandAcquisition Act unlike in Section 754(4) of the Code ofCivil Procedure.
Even though the date ofthe Petition of appeal is20.02.2006,as the date stamp bears the date of 21.02.2006, thelatter date must be assumed to be the date of filingof the Petition of Appeal. As the Appellant had notadduced evidence to the contrary to rebut thepresumption arising under Section 114(d) of the EvidenceOrdinance.
The learned Counsel for the Appellant contended that thePetition of Appeal had been filed within time on 20.02.2006and should be accepted on the following grounds.
The Petition of Appeal itself, the motion and the proxyfiled of record bears the date of 20.02.2006.
Even though the Petition of Appeal, motion and the proxyhad been rubber stamped as 21.02.2006, the rubberstamps have not been signed, endorsed or authenticatedby an authorized officer of the Board of Review, whichrenders the rubber stamp devoid of any legal sanction.Since whether the petition was presented within theappealable time is decided upon the date the Petition of
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Appeal is received by the accepting authority, it has beenthe accepted practice to place an endorsement giving thedate and time of receipt.
There is no journal entry or any other official documentduly maintained by the Board of Review to support thefact that the Petition was received on 21.02.2006, thedate of the rubber stamp.
As the case record does not contradict otherwise, in allprobability the Petition of Appeal may have been deliveredand presented to the Board of Review on 20.02.2006and was placed with a rubber stamp the following day
by some employee of the Board. There is noproof whatever that the rubber stamp was placed on thePetition of Appeal by the Secretary of the Board or anyother responsible officer authorized by the Secretary. Inthis regard the learned counsel for the Appellant citedin support Nachchiduwa Vs Mansoor131 where the Courtof Appeal had held that filing the Petition of Appeal inthe case record and forwarding same to the Court ofAppeal are official acts of the District court and any delayin filing a petition in the record cannot be attributed tothe Appellant.
Under Section 28(3) of the Act, the Secretary to the Boardshall transmit to the Court of Appeal one of the duplicatesof the petition of appeal together with the record of theproceedings when the petition of Appeal is presented tothe Board in the manner and within the time specified inSection 28(2) of the Act. Therefore the act of the Secretaryforwarding the Petition of Appeal to the Court of Appealcreates a clear and strong presumption that the Petitionof Appeal had in fact been presented within the stipulatedtime. There is no journal entry or other endorsement bythe Secretary to the effect that the Petition of Appeal had
CA
Hiran Gunasekera Vs. Acquiring Officer And Another
(Sarath de Abrew, J.)
209
been received out of time. In this regard the presumption
under section 114(d) of the Evidence Ordinance should
operate in favour of the appellant.
Even assuming that the Petition of Appeal had beenpresented on 21.06.2006, the learned counsel for theAppellant contended that it was still not out of time as thelegislature intended giving 21 clear davs which also is theestablished practice in our Courts. In support the learnedCounsel for the Appellant cited the interpretation given toSection 754(4) of the Code of Civil Procedure in Selenchina VsMohamed Marikkar and others*4* and Boyagoda V Mendisf5*.The learned Counsel for the Appellant further contendedthat in view of the above circumstances , a purely technicalobjection should not be allowed to stand in the way of theAppellant exercising his statutory right of Appeal. In supporthe cited Velupillai Vs The Chairman, Urban District CounciV6*and Reed Vs. Samsudeen*71.
Having carefully perused the submissions set forth aboveby both parties, we are inclined to take a liberal view for thereason that a litigant who is aggrieved of the quantum of com-pensation awarded to him with regard to the State acquiringvaluable land and property affecting his substantial rightsshould not be denied his statutory right of appeal on a matterof construction and interpretation which would amount to atechnicality. The legislature in all its wisdom would not haveintended to time -bar and shut out an appeal to the Board ofReview hinged on a bare dated stamp which is not initialed orauthenticated, in the light of other factors which denote thatthe Petition of Appeal may have been presented within timethe previous day. If a liberal interpretation is given to section28(2) of the Act that the legislature intended to give 21 cleardays to appeal, then the appellant is still within time even ifthe petition of appeal was presented on 21.02.2006.
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In resolving this dispute, the key factors are theprovisions of Section 28 of the Land Acquisition Act them-selves. Section 28(21 of the Act provides “A petition of appealunder subsection (1) shall state the question of law to beargued, shall bear a certificate by an attomey-at-law that suchquestion is fit for adjudication by the Court of Appeal, andshall be presented in duplicate to the board by the appellantwithin twentv-one davs after the date of the board’s decisionagainst which the appeal is preferred.”
Section 28(31 provides that when a petition of appeal ispresented to the board in the manner and within the timespecified in subsection (2) the Secretary to the board shalltransmit same to the Court of Appeal.
The material date is the date of presenting and not thedate the petition is bound to the record and transmitted. Eventhough there is a unauthenticated date stamp on the petitionand other connected documents, in the absence of a properauthentication or endorsement by the Secretary to the Boardor any other authorized officer, there is no conclusive proofthat the date stamp was stamped at the point of presentationto the Board or at the point of annexing the petition andother connecting documents to the case proceedings. Wherea doubt arises, this should be resolved in favour of theappellant whose substantial statutory right of appeal wouldbe prejudiced otherwise. The situation would have been quitedifferent if at the very point of presentation of the petition ofappeal, the Secretary to the Board or other authorized of-ficer had entered the date and time of the presentation andduly initialed and authenticated same. A parallel situation isenvisaged under section 755(4) of the Code of Civil Procedurewhere there is a statutory obligation on the registrar of theCourt concerned to certify the date of filing of the notice andthe petition of appeal.
CA
Hiran Qunasekera Vs. Acquiring Officer And Another
(Sarath de Abrew, J.)
211
Even though there is no statutory obligation to do so,there is a duty cast on the Secretary or his authorized officerto certify the date of presentation and filing of the petition ofappeal as section 28(3) of the Land Acquisition Act providesstatutory precondition before the Appeal is transmitted to thecourt of Appeal, as follows:-
The Secretary to the Board should be satisfied thatthe Petition of Appeal is presented in conformity to therequirements in section 28(2) of the Act.
Equally, he must be satisfied that it had been presentedwithin time.
In the instant case the Secretary had transmitted theappeal to the Court of Appeal without any endorsement tothe contrary that the above two requirements have not beenfulfilled. This itself gives rise to a strong presumption thatthe petition had been presented within time. Under the abovecircumstances, a bare authenticated date stamp on thepetition and the other connected documents, does notconclusively establish that the petition had been presentedon 21.02.2006 and is therefore out of time, specially inthe light that the petition and other documents are dated
and there is no other endorsement or documentto prove otherwise.
In Chandrasiri Vs. A.G (Supra) Fernando,J held “In anyevent, unless there are circumstances indicating that the dateset out in the date stamp is incorrect, that date must be assumedto be the date on which the petition was filed. The partytendering the petition of appeal has no control over theprocess whereby the petition of appeal reaches the relevantrecord and the making of the appropriate entry therein.”
Even though the learned Senior State Counsel cited theabove authority in support of his contention that the date on
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the date stamp must be accepted as the date of presentation ofthe petition, in the instant case, the following circumstancesrebel against the validity of the above statement.
The date stamp is not initialed or authenticated.
There is no appropriate entry in the petition or the caserecord as to the date of presentation of the petition.
There is a serious doubt as to whether the date stampwas inserted at the time of presentation of the petition oron a later occasion at the time of attaching and filing thepetition on to the case proceedings.
As section 28(3) of the Act stipulated that the Secretary tothe Board of Review should transmit the petition of appealwith the case proceedings on the pre-condition that therequirements under section 28(2) of the Act are compliedwith and the petition of appeal is presented within time.the fact that there is no endorsement by the secretaryto the contrary at the time of transmitting gives rise to apresumption that the required pre-conditions have beencomplied with, and this feature itself militates against thetheory that the appeal had been presented out of time.Under these exceptional circumstances the onus shiftsto the party alleging the breach to conclusively establishsame.
Due to the foregoing reasons we are of the view that inthe interest of justice, the preliminary objection raised onbehalf of the Respondent should be overruled and the matterbe fixed for argument, and we make order accordingly.
Preliminary objection overruled.
MARASINGHE, J. – I agree
Preliminary objection overruledMatter set down for argument