032-SLLR-SLLR-2007-V-1-JAYATILAKE-v.-RATNAYAKE.pdf
CA
Jayatilake v Ratnayake
299
JAYATILAKE
v
RATNAYAKE
COURT OF APPEALRANJIT SILVA, J.SISIRADE ABREW, J.CAPHC 82/97HC KANDY 61/96 (REV.)MC HATTON 67572
State Land Recovery of Possession Act 7 of 1979 – amended by Act 58 of 1981,29 of 1983 and 45 of 1992 – section 3 – Order of Magistrate's Court canvassedby way of Revision. Should exceptional circumstances be urged?
Held:
There is no right of appeal against the order of the Magistrate's Courtwhen an order is made under the provisions of the State LandsRecovery of Possession Act.
The party aggrieved could only move the High Court in Revision.
In a Revision application when there is no alternative remedy available,the appellants need not show exceptional circumstances – but has toshow illegality or some procedural impropriety in the impugned order.
Breach of a procedural or formal rule should be treated as a mereirregularity if the departure from the terms of the Act is of trivial nature.
AN APPLICATION from an order of the Provincial High Court of Kandy.
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Case Referred to:
Gunaratne v Abeysinghe 1988 – 1 Sri LR 261
Vidura Gunaratne for respondent-petitioner-appellant.
Vikum de Abrew SSC for AG.
Cur.adv.vult.
October 24, 2007RANJIT SILVA, J.
Mr. Vidura Gunaratne moves for a date stating to Court that hemanaged to obtain the brief only two days ago and therefore he is notready in this case. We find that this matter was laid by at a particulartime due to the fact that the appellant had died and it was laterdiscovered that it was not the appellant who died but the registeredAttomey-at-Law for the appellant late Mr. Rajanayake. An applicationwas made to re-list the matter and that had been allowed by this Courton 24.09.2007 fixing the matter for argument for 24.10.2007. Theappellant had nearly one month to get ready for this case and itappears that the appellant had not been diligent in moving in thismatter in order to get ready to face the argument fixed for today. Novalid reason was given as to why he is not ready. For that reason, wehave refused to grant a date.
The petitioner-appellant who shall be referred to as 'theappellant' has appealed to this Court against the order made by thelearned High Court Judge of Kandy dated 26.05.2007. The learnedHigh Court Judge having gone into the matter held that the impugnedorder of the learned Magistrate of Hatton dated 17.05.1996 to be inorder thus affirming the order of eviction made by the learnedMagistrate of Hatton.
After hearing the learned Senior State Counsel for therespondents and having perused the necessary documents we findthat the impugned order made by the learned Magistrate of Hattondated 17.05.1996 to be in order. There isn't any illegality or improprietyin the said impugned order.
The petitioner-appellant had argued in the Magistrates' Court ofHatton that the application made to Court under section 5(1) of theState Land Recovery of Possession Act No. 7 of 1979 as amended
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Jayatilake v Ratnayake(Ranjit Silva, J.)
301
by Act No. 58 of 1981,29 of 1983 and 45 of 1992 was defective in thatit did not contain the correct information such as the name andaddress of the appellant and the particulars with regard to thepremises sought to be recovered under the said Act and also that theNotice issued under section 3(i) of the said Act was defective in that itmentioned a wrong plan and a wrong District.
The learned Magistrate has stated in his order that theapplication to the Magistrates' Court was made according to schedule"B“ of the Act with an affidavit and a copy of the Notice under section3 (i) (A) attached. The learned Magistrate for very good reasonsconcluded that the defects mentioned above did not cause anyprejudice to the appellant and held against the appellant. TheMagistrate concluded that although by an over sight the name andaddress were not mentioned in the application made to theMagistrates' Court there was an endorsement in the said applicationto the effect, that 'the Notice to vacate was handed over to TitusJayathilake' who is the appellant. (Vide application for eviction dated
in paragraph (<?)(iii)). The said application mentioned thecorrect plan bearing No.eto 489. We have perused the Notice ofEviction and we find that the schedule contains the correct District andthe correct plan number (to wit: ©» 489.) We hold that the impugnedorder of the learned Magistrate to be a well reasoned out and wellanalyzed order. Dealing with the impugned order of the learned HighCourt Judge of Kandy dated 26.05.2007, we observed that thelearned High Court Judge has made one error by making a wrongstatement of law namely that the appellant has not shown exceptionalcircumstances. As this was a revision application to the High Courtagainst the order of the learned Magistrate in a State Land Recoveryof Possession matter under the State Land Recovery of PossessionAct., it was not necessary for the appellant to show the existence ofexceptional circumstances (Viz: as there is no remedy by way ofappeal).
We find that since there is no right of appeal the appellant had tomove the High Court in revision. In a revision application in theordinary sense where there is no alternative remedy available, theappellant need not show exceptional circumstances, but has to showillegality or some procedural impropriety in the impugned order. We donot see any impropriety or any procedural defect or any illegality in the
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impugned order dated 17.05.1996 and therefore we conclude that thewrong statement of law made by the learned High Court Judge doesnot vitiate his order dated 26.05.2007.
The appellant has urged three procedural defects, in the HighCourt. They are:
That the appellant alleged that the application to theMagistrates' Court was defective as it contains the wrongdistrict namely 'Kandy' instead of 'Nuwara-Eliya'.
That the name and address of the appellant were notmentioned.
That the application refers to a wrong plan.
With regard to the grounds urged before the learned High CourtJudge that the application made under section 5 of the State LandRecovery of Possession Act No. 7 of 1979 was defective, the learnedHigh Court Judge has concluded that it has not caused any prejudiceto the appellant. It appears that the appellant in the High Court has notassigned any reasons to show that any prejudice was caused to him.Therefore the learned High Court Judge has quite correctly decidedthat it has not caused any prejudice to the appellant and dismissedthe revision application.
Gunaratne v Abevsinahe 1988 0)
"It was held that breach of a procedural or formal rule should betreated as a mere irregularity if the departure from the terms ofthe Act is of trivial nature or if no substantial prejudice has beensuffered by those for whose benefit the requirements wereintroduced."
For the same reasons we have assigned in respect of the ordermade by the learned Magistrate dated 17.05.1996, we find no validreason to interfere with the order made by the learned High CourtJudge of Kandy dated 26.05.2007.
Accordingly we dismiss the appeal without costs.
SISIRA DE ABREW, J. – I agree.
Application dismissed.