T. S. FERNANDO, J.-—P unchi Banda v. Government Agent, Kandy 311
Present: T. S. Fernando, J.R.PUNCHI BANDA, Appellant, and THE GOVERNMENT AGENT-,
S.C. 595 of 1961—M. C. Teldeniya, 4,005
Land Development Ordinance (Cap. 320)—Land held under a permit—Distinctionbetween cancellation and surrender of permit—Order of ejectment—Not availablein case of surrender—Sections 106, 119, 125, 128.
The surrender of a land held on permit under the Land Development Ordinancedoes not mean the same thing as cancellation of the permit. Where a landhas been surrendered to the Crown by the permit holder, the GovernmentAgent is not entitled to invoke the powers of the Magistrate’s Court undersection 125 of the Ordinance for the purpose of obtaining an order of ejectment.In such a case the Crown must seek its ordinary remedy in a civil court.
/VpPEAL from an order of the Magistrate’s Court, Teldeniya.
M.S. M. Nazeem, for the appellant.
W. Abeykoon, Crown Counsel, for the respondent.
Cur. adv. vult.
October 17, 1961. T. S. Fernando, J.
The Government Agent of the Kandy District moved the Magistrate’sCourt on October 29th, 1959, for the purpose of obtaining an order ofejectment against the appellant whom he alleged had failed to vacatea holding under the Land Development Ordinance (Cap. 320) althoughserved with notice in terms of section 119 of that Ordinance to do so.It would appear that a permit in respect of this holding had been issuedto one Palingu Menika, but that the latter had surrendered the land tothe Crown.
Section 119 read with section 128 of the Land Development Ordinancepermits the Government Agent to issue a notice in terms of that sectionon a person in occupation of a holding where a permit in respect of thatholding has been cancelled. There is no evidence that the permit issuedto Palingu Menika has been cancelled ; all the evidence indicates thatthe land was surrendered voluntarily by Palingu Menika and that nocancellation has taken place. It has been suggested that surrendermeans the same thing as cancellation. I am unable to agree with this
312 T. S. FERNANDO, J.—Punchi Banda ». Government Agent, Bandy
suggestion. Although, the learned Magistrate states that there is ampleauthority for the proposition that “ surrender ” is tantamount* to“ cancellation ”, Crown Counsel appearing for the Government Agenthas not been able to refer me to any such authority. I can myselfdiscover nothing in the Ordinance itself indicating that a voluntarysurrender such as that which has been made in this case has the sameeffect in law as a cancellation of a permit. It will be noted that section 106indicates that a failure by a permit holder to observe a condition ofthe permit is a pre-requisite to a cancellation of that permit. I amsatisfied that in the circumstances shown in the case under appeal theGovernment Agent was not entitled to invoke the powers of theMagistrate’s Court under section 125 of the Ordinance. The Crownmust seek in this case its ordinary remedy in a civil court.
I set aside the order purporting to have been made under section 125of the Ordinance ejecting the appellant from the land in question.
Order set aside.
K. PUNCHI BANDA, Appellant, and THE GOVERNMENT AGENT, KANDY, Respondent