039-SLLR-SLLR-2004-V-2-MUTHUVELU-v.-DIAS-AND-ANOTHER.pdf
CA
Muthuvelu v Dias and another
(Wijeyaratne, J,)
335
MUTHUVELUv
DIAS AND ANOTHERCOURT OF APPEALWIJEYARATNE, J.
C.A.WRIT APP. 573/ 2002JULY 11,2003AUGUST 12, 2003OCTOBER.8, 2003
State Lands (Recovery of Possession) Act 7 of 1979, Section 9,13 and18 – State Land leased to Public Company – Validity of Quit Notice? -Government Quarters (Recovery of Possession) Act – Comparison? -Lease – Is it a protanto transfer? – Estate Quarters Act 2 of 1971.
The 1st respondent Competent Authority issued a quit Notice in terms of the StateLands (Recovery of Possession) Act requiring the petitioner to vacate andhandover vacant possession of the land he is admittedly in occupation owned bythe Sri Lanka Plantation Corporation.
The Petitioner sought to quash the said Notice on the basis that the 1 st respondentcannot in law invoke the provisions of the State Lands Recovery of PossessionAct, as part of the estate had been leased to the 2nd respondent – a PublicCompany and that he is an employee of the said company and that a Lease is aprotanto transfer and the land is no longer the property of the State, to be governedby the Act.
Held:
Per Wijeratne, J.
"A Lease though considered a Pro tanto transfer, is a contract between theLessor and the Lessee, governed by the terms of the indenture of Lease.Lessee during the tenure of the lessee may exercise all the rights of theowner with regard to the possession and enjoyment of the property leased asagainst third parties. A lessor by reason of the lease does not lose his right ofownership and may exercise his rights of ownership specially towards more
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fully assuring the control and possession of the devised property to thelessee."
i) Provisions of the State Lands (Recovery of Possession) Act reveal that it isa Special enactment providing for the speedy recovery of State Lands fromunlawful occupiers. The State continued to be the owner of the estatesleased.
Per Wijeratne, J.
“The striking difference of the application of the two Acts being – Section 9of the State Lands (Recovery of Possession) Act provides for a party givenquit notice to establish that he is in possession or occupation upon a validpermit or other authority and under section 13 may even vindicate his title tothe land, but under the Government Quarters (Recovery of Possession) Actno such mechanism of establishing title or authority is provided because it isconceded that the party noticed is in occupation of the quarters under aservice contract and his authority to remain in occupation is terminated."
4. State Lands (Recovery of Possession) Act being a special enactment wouldoperate notwithstanding the provisions of the Estate Quarters Act.
APPLICATION for a Writ of Certiorari.
Cases referred to:
N. Chandrabose v Sunil C.K.de Alwis – CA 920/2000 – CAM 12.5.2003
Muthiah v De Alwis- CA 1560/2000 – CAM 30.5.2002-S.C.Spl.LA 148/2002S.C. 12.06.2003
Nirmal Paper Converters (Pvt) Ltd., v Sri Lanka Ports Authority- 1993 1 SriLR 219
Senanayake v Damunupola – 1982 2 Sri LR 621
J.C.Weliamuna with Janaka Sumanasuriya for petitioner.
Gomin Dayasiri with Ms Salini Jayasinghe for 1st and 2nd respondents.
Cur. adv.vult
May, 31,2004WIJAYARATNE, J.
The petitioner through this application invoked the jurisdiction ofthis court seeking the grant of a mandate on the nature of writ ofcertiorari quashing the quit notice (P2) requiring the petitioner tovacate and hand over, vacant possession of the parcel of land he isadmittedly in occupation as land owned by the Sri Lanka StatePlantations Corporation (SLSPC). He also sought a writ of Prohibitionrestraining the first respondent from taking steps under State Lands(Recovery of Possession) Act, No. 7 of 1979 as amended, to evict thepetitioner from his quarters.
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Muthuvelu v Dias and another
(Wiievaratne. J.)
337
The petitioner in his affidavit affirmed that he was employed asa labourer at Loinorn Estate managed by the second respondent.He stated that in or about October 2000 he was givenaccommodation in a quarter situated in Bogawana Division of thesaid estate and such quarter the petitioner is occupying is situatedwithin the land described in the schedule to the quit notice (P2)issued by the first respondent. The petitioner however does notadduce any proof of his being given such quarter for his occupationnor does he explain how the petitioner who is a labourer is givenstaff quarters as residence. The petitioner impugns the quit notice(P2) issued by the first respondent for the reasons given more fullyin paragraph 15 of the petition. The main thrust of the application ison the ground that the first respondent has no authority to invokethe provisions of the State Lands (Recovery of Possession) Act, asthe land in suit is part of a land in the control of the 2nd respondent,which is a public company.
The respondents responding to the application of thepetitioner asserted that the first respondent is duly appointedCompetent Authority (R6a & R6b), that the land referred to in thequit notice P2, the subject land in this application, remains stateland though subject to a lease in favor of the second respondentcompany (R1, R2a and R2b ) and the petitioner is in unlawful andunauthorized occupation of the land described in the quit noticewhich includes staff quarters standing thereon (R3.R4 and R5).
During the hearing the petitioner did not contest the fact thatthe first respondent is the duly appointed competent authority of theSLSPC for the purposes of the State Lands (Recovery ofPossession) Act. However the graveman of the argument for thepetitioner was that the first respondent cannot in law invoke theprovisions of the State Lands (Recovery of Possession) Act inrespect of the land in suit as described in the quit notice in so far asthe same was part of the estate leased to the second respondent.The petitioner urged that according to the decisions of the SupremeCourt, a lease is a pro tanto transfer and the land in suit is no longerthe property of the SLSPC to be governed by the provisions of theState Lands (Recovery of Possession) Act, as the SLSPC has lostcontrol over the lands by reason of such lease.
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[2004] 2 Sri L.R
Section 18 of the State Lands (Recovery of Possession) Act,No.7 of 1979 as amended defined state land as;
"State land means land to which the state is lawfully entitled orwhich May be disposed of by the state, together with anybuilding standing thereon11
The petitioner conceded that the SLSPC as the lessorcontinued to be the owner of the estates leased, but left with onlybare dominium of the property. It was argued that the baredominium the SLSPC has, is not sufficient to invoke the provisionsof the State Lands (Recovery of Possession) Act in respect of theland leased out to the second respondent, which is a publiccompany. A lease though considered a Pro tanto transfer, is acontract between the lessor and the lessee, governed by the termsof the indenture of lease. The lessee during the tenure of lease mayexercise all the rights of the owner with regard to the possessionand enjoyment of the property leased, as against third parties. Hisright vis a vis that of the a lessor will be subject to the terms of theIndenture of lease. A lessor by reason of the lease does not lose hisrights of ownership; and may exercises his right of ownershipspecially towards more fully assuring the control and possessionof the demised property to the lessee. In this context it will berelevant to note the decision given by the Court of Appeal in thecase of N.Chandrabose v Sunil C.K. die Alwis and others CA Writapplication No. 920/2000 (CA minutes dated 12.05.2003).
The learned counsel for the petitioner drew attention of thiscourt to the decision in the case of Muttiahv de A/w/s(1) affirmed bythe Supreme Court in. It must be noted that the above decisionrelates to a Quit Notice issued under the provisions of GovernmentQuarters (Recovery of Possession) Act, and has no bearing on thematters in issue in this application. A notice under the provisions ofGovernment Quarters (Recovery of Possession) Act, according tothe scheme of the act, necessarily implies that the person inoccupation of the quarter occupied the same for the purpose ofresidence provided by or on behalf of the government and hisoccupation thereof was as a result of a contract (of service). Interms of the provisions of section 3 of the said act, the noticerequiring the occupier to vacate such quarter shall state thereasons for the issue of such notice. This means that the
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Muthuvelu v Dias and another
(Wiievaratne, J,)
339
occupation of the quarter by the party noticed was by reason ofservice contract, which occupation the competent authority hasterminated for the reasons given in the notice. It is this aspect thatthe decision of the case of Muttiah v deAlwis (Supra) dealt with asdealing with the possession or occupation of an estate quartergiven under a service contract, necessarily falls within the ambit ofthe management of the estate. The decision of Chandrabose vAlwis (Supra) however has dealt with the distinction of theapplication of the provisions of the two acts, should be relevanthere too.
The striking differences of the application of the two acts canbest be appreciated with the examination of relevant provisions andthe scheme of the statutes. State Lands (Recovery of Possession)Act as amended, section 9 provides for a party given quit notice toestablish that he is in possession or occupation of the land inquestion, upon a valid permit or other authority, and under section13 may even vindicate his title to the land. Under the GovernmentQuarters (Recovery of Possession) Act, no such mechanism ofestablishing title or authority is provided, because it is concededthat the party notice is in occupation of the quarter under a servicecontract and his authority to remain in occupation is terminated.
Accordingly any decision affecting the rights of a lessor inrelation to a quarter provided for the business of running the estate,cannot apply fully and fairly to the right of the lessor in ejecting aperson in unlawful and unauthorized occupation or possession ofpart of the demised premises. Moreover, the examination of theprovisions of the State Lands (Recovery of Possession) Act revealsthat it is a special enactment providing for the speedy recovery ofstate land from unlawful occupiers, this view was endorsed in thecases of Nirmal Paper Converters (Pvt) Ltd. v Sri Lanka PortsAuthority and Senanayake v Damunupola.W
It was further argued that in view of the provisions of EstateQuarters Act No.2 of 1971, the petitioner could not be evicted onthe strength of the quit notice issued. The above act applies to theoccupation of quarters or line rooms provided to the labourers ofan estate and not to land unlawfully occupied by employees of anestate. Moreover the provisions of State Lands (Recovery ofPossession) Act shall operate notwithstanding the provisions of
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[2004] 2 Sri L.R
Estate Quarters Act.
Section 17 of the State Lands (Recovery of Possession) Actprovides;
“provisions of this act shall have effect notwithstanding
anything contained in any other written law…"
This provision clarifies the intention of the legislature that theprovisions of the State Lands (Recovery of Possession) Act asamended, shall prevail over or supersede provisions of any otherlaw. The validity of a quit notice issued in terms of the provisions ofthe State Lands (Recovery of Possession) Act cannot be affectedby the provisions of any other written law including the EstateQuarters Act.
Accordingly I hold that the Competent Authority appointed bythe SLSPC is entitled to invoke the provisions of the State Lands(Recovery of Possession) Act in respect of lands to which SLSPCas a state agency is lawfully entitled to and the Quit Notice P2 isvalidly issued by the first respondent.
Consequently the application of the petitioner is dismissedwith costs fixed at Rs.5000/=
With the appointment of Shiranee Tilakawardena, J. thenPresident, Court of Appeal, and with the consent and agreement ofboth parties to this application, this judgement is written by me asa single judge.
This judgement is to bind the parties in cases Nos: CA574/2002 and CA 187/2002 as agreed by the parties in thosecases.
Application dismissed.