057-NLR-NLR-V-66-M.-MOHAMED-LEBBE-and-others-Appellants-and-A.-MADANA-D.-R.-O.-Yatinuwara-.pdf
SEEtlMANE, J.—Mohamed Lebbe v. Madana
239
1964Present: Sirimane, J.
M. MOHAMED LEBBE and others, Appellants, andA. MADANA (D. B>. O., Yatinuwara), Respondent
S. C. 545{63—Application for Revision in M. C. Kandy, 33,916
Land Acquisition Act (Gap. 460)—Sections 38, 40, 42 (2)—Order for taking possessionof a land—Mode of taking possession—Application to Magistrate's Court—Ex parte nature thereof.
Where on officer who is directed by an Order under section 38 of the LandAcquisition Act to take possession of a land makes an application to theMagistrate’s Court, under section 42 (2), for an order directing the Fiscal todeliver possession of that land, any person in occupation of the land is notentitled to be heard in opposition to the application.
AlPPLICATION to revise an order of the Magistrate’s Court, Kandy.
George Candappa, for the Respondents-Appellants.
8. Sivarasa, Crown Counsel, for the Applicant-Respondent.
Cur. adv. vult.
June 5, 1964. Seruviane, J.—
One Ananda Madana, the D. R. O. of Uda Nuwara and Yatinuwara,applied to the Magistrate’s Court of Kandy under Section 42 (2) of theLand Acquisition Ordinance (Chapter 460) for an order directing the
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SIRIMA3STE, J.—Mohamed Lebbe v. Madana
Fiscal to deliver possession of a land sought to be acquired by the CrownA notice had been issued on the appellants (to which, in nay opinion, theywere not entitled) and they claimed a right to show cause against thisapplication. Their claim was disallowed by the learned Magistrate,and they have moved this Court to revise the Magistrate’s order.
Section 42 (2) reads as follows :—
“ Where any officer directed by an Order under Section 38 to takepossession of any land is unable or apprehends that he will be unableto take possession of that land because of any obstruction or resistancewhich has been or is likely to be offered, such officer shall, on his makingan application in that behalf to the Magistrate’s Court having juris-diction over the place where that land is situated, be entitled to anorder of that court directing the Fiscal to deliver possession of thatland to him for and on behalf of Her Majesty. ”
Section 38 provides (inter alia) that the Minister may by an Orderpublished in the Gazette direct the acquiring officer or any other officerauthorised by such acquiring officer to take possession of the land acquired.Where it becomes necessary to take immediate possession of such land onthe ground of any urgency the Minister is empowered by this Section topublish an Order directing an officer to take possession even beforequestions of compensation, etc., are settled.
Section 40 provides that where an Order is made under Section 38authorising an officer to take possession, the land in question vestsabsolutely in Her Majesty free from all encumbrances.
An examination of the relevant Sections in the Ordinance shows thatthe scheme of the Ordinance is to enable the Crown to take immediatepossession of a land which is urgently needed for a public purpose. Thewords of Section 42 (2) quoted above clearly show that “ any officerdirected by an Order under Section 38 to take possession shall ….be entitled to an Order of Court directing the Fiscal to deliver possession.”
The case of Loku Banda v. The Assistant Commissioner of AgrarianServices, Kandy 1, relied on by the appellants can easily be distinguished.There, the Assistant Commissioner of Agrarian Services sought theenforcement of an “ Eviction Order ” made under Section 3 (6) of thePaddy Lands Act, No. 1 of 1958. Section 21 of that Act provides theprocedure to be adopted when such an enforcement is sought. A writtenreport has to be presented to court and Section 21 (2) providesthat the court should issue summons to the person named in such reportto appear and show cause on dates specified in the summons.
I am of the view that the learned Magistrate was correct when hereached the conclusion “ that what is contemplated is an ex-parte appli-cation for something in the nature of a writ …. ”. The appellants
are not entitled to be heard in opposition to the application made tocourt by the D. R. O., and this application to revise the order of thelearned Magistrate is refused with costs.
Application refused.
* (1963) 65 N. L. B. 401.