OFFICER-IN-CHARGE, POLICE STATION KOTAHENA V. DEWASINGHE AND ANOTHER

015-SLLR-SLLR-1983-2-OFFICER-IN-CHARGE-POLICE-STATION-KOTAHENA-V.-DEWASINGHE-AND-ANOTHER.pdf


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Officer-in-Charge. Police Station. Kotahena v. Dewasinghe and Another
(Seneviratne, J.)149
OFFICER-IN-CHARGE, POLICE STATION KOTAHENA
V.
DEWASINGHE AND ANOTHER
COURT OF APPEAL
SENEVIRATNE. J.. ABEYWARDENA. J. AND G. P. S. DE SILVA. J.
C.A. REVISION APPLICATION NO. 428/81PRIMARY COURT OF COLOMBOCASE NO. 99310/329 MARCH 1983.
Primary Courts Procedure Act No. 44 of 1979. Ss. 66, 67 and 68—Are timelimits prescribed in Ss. 66 and 67 mandatory or directory ?
Held —
Non compliance with the provisions of section 67(1) of the Primary CourtsProcedure Act in regard to time limits will not vitiate the proceedings as thesetime limits are directory.
Cases referred to:
1. Kanapathipillai Ramalingam v. Sinnathamby Thangarajah — S.C. 6/82 —C.A./L.A. (SC) 5/82/CA Appln. No. 2463/80 — Primary CourtAkkaraipattu Case No. 398.
APPLICATION for revision of order of the Judge of the Primary CourtAkkaraipattu
H. W. Jayewardene, Q.C. with S. L. Gunasekera for 2nd respondentV. S. A. Pullenayagam with T. B. Dilimuni and Miss MangalamKanapathipillai for 1 st respondent-petitioner.
Cur. adv. vult
14 JULY 1983SENEVIRATNE, J.
On 12/14.1.1980 the Officer-In-Charge Crimes Branch KotahenaPolice Station filed an information in terms of section 66(1) (a)(i) ofthe Primary Courts Procedure Act No. 44 of 1979 in theMagistrate's Court of Colombo, informing the court that there was adispute affecting land in respect of premises No. 478/07Bloemendhal Road. Kotahena which was likely to lead to a breach of
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peace among the respondents named in the information to wit-Nuwarapaksage Sisilin Dewasinghe 1st respondent-Petitionerand St. Elmo Gunasekera, Director. George Steuart & CompanyLtd., 2nd respondent-respondent.
After the respondents filed their affidavits and submissions thelearned Primary Court Judge commenced the inquiry on
The recording of the evidence was concluded on
Written submissions were tendered on 5.3.1981.and the order of the learned Primary Court Judge was deliveredon 23.3.1981. There is no need to go into the facts of this casein detail. The evidence revealed that these premises had beenwhat is known as "Keera Land", and according to the evidence apart was cultivated with keera and the rest was grassland. Boththe 1st Respondent-Petitioner and the 2nd Respondent ElmoGunasekera on behalf of George Steuart & Company limitedclaimed possession of the land. The learned Primary Court Judgeadopted the correct test for the purpose of this inquiry undersection 68(1) of the Act by stating that the matter for hisdetermination was as to who was in possession of the land onthe date of the filing of the information under section 66 ".Having considered the voluminous'evidence led the learnedPrimary Court Judge held that as " on the date of the filing of theinformation " the 2nd Respondent Elmo Gunasekera on behalf ofGeorge Steuart & Company Limited, was in possession of theland, and made order on 23.3.1981 under Section 68(1) and68(2) of the said Act Sisilin Dewasinghe 1st respondent-petitionhas filed this application in revision in this court to revise the saidorder made by the learned Primary Court Judge on 23.3.1981.The grounds on which this application is made are
That the judgment is contrary to the express provisions ofsection 67(2) of the Primary Courts Procedure Act and
There was a wrong finding on facts.
At the hearing of the application only the point off law in ground(a) that the judgment was contrary to the express provisions ofsection 67(2) of the Primary Courts Procedure Act was urged.
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Officer-m-Charge. Police Station. Kotahena v. Dewasmghe and Another
(Seneviratne. J.)151
Section 67(2) is as follows:—" The Judge of the Primary Court shalldeliver his order within one week of the conclusion of the inquiryBefore proceeding further, at this stage I will express my opinion onthis submission even though such opinion will not materially affectthis case. The recording of the evidence was concluded on
Section 72(C) permits the Primary Court Judge to callfor written submissions. In this instance written submissions hasbeen filed on 5.3.1981. My view is that in respect of Section 67(2)the period of one week should be computed from 5.3.1981 as thereis a statutory provisions for the Primary Court Judge to permitwritten submissions.
This application in revision came before a Bench of two Judges,and as there was a conflict in the judgments regarding theinterpretation of Section 67(2) and as a disagreement arosebetween the two Judges constituting that Bench, this matter wasreferred to a Bench of three Judges in terms of Article 146(3) of theConstitution.
This matter came up before a Bench of three Judges on
By that time the Supreme Court had delivered itsjudgment in the case of Kanapathipillai Ramalingam v. SinnathambyThangarajah,1 (unreported case). In this Appeal, the Supreme Courtmade a ruling as to whether certain provisions of the Primary CourtsProcedure Act, which I will refer to, were mandatory. InRamalingam's case the information had been filed by the police on10.12.1979, the inquiry commence on 17.9.1980, and wasconcluded by a settlement on 24.9.1980. Objection was taken tothe proceedings of this case by the petitioner on the ground that asthat inquiry was " not concluded " within three months of thecommencement of the inquiry in accordance with the mandatoryprovisions of Section 67(1) the proceedings of that inquiry were anullity. The immediate question of law which the Supreme Court hadto deal with in Ramalingam's case was whether the provision ofsection 67(1) of this Act was directory or mandatory.
At the hearing of this application the learned Attorney-at-law forthe 1st respondent-petitioner Mr. V. S. A. Pullenayagam submittedthat in Ramalingam's case the Supreme Court held that the
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provisions of section 67(1) were directory and that in that case theSupreme Court did not give a ruling on the nature of section 67(2)of the Act which is relevant to this application. The dicta pertainingto section 66 and Section 67(2) were made obiter. Mr. H. W.Jayawardane. Q.C. Attorney-at-law for the 2nd respondentsubmitted that the ruling of the Supreme Court in Ramalingam'scase included a ruling on section 67(2) also, as its ratio decidendi.
I will now consider the above submissions made.
It is clear from the judgment of Sharvananda J. that though thatappeal was specifically related to section 67(1) of the Act. theSupreme Court has considered the broader issue whether theviolation of the mandatory provisions of part 7 of the Primary CourtsProcedure Act makes the proceedings of the Primary Court null andvoid. Part 7 is the Chapter of the Act which deals with " inquiry intodisputes affecting land ". and where a breach of peace is threatenedor likely. The mandatory provisions of this part 7 are section 66(3).66(4), 66(5), 66(6). 66(7), 67(1) and 67(2). In dealing with thequestion as to whether these provisions were directory ormandatory, Sharvananda. J. stated as follows:— " The question wasraised as to what was the consequence of the failure of the Judge toobserve the time limits prescribed for various acts and steps leadingto a determination and order under section 68 … It is to be notedthat the statute does not declare what shall be the consequences ofnon-compliance by court with regard to this requirements as to thetimes prescribed by law". Sharvananda. J, having considered theprovisions referred to above at length finally came to thisconclusion — " I am, therefore, of the view that the provisions as totime limit in section 66 or 67 though the words "shall" suggest thatthey are mandatory should be construed as being directory and thenon-compliance by Court of the provisions of section 66 or 67 ofthe Act does not divest the court of jurisdiction conferred on it bysection 66(2) to make determination and order under Section 68 ".This dictum cited above from the said judgment clearly shows thatthe Supreme Court has considered the nature of the provisions ofboth sections 67(1) and 67(2). As such the judgment inRamalingam's case cannot be restricted to a ruling
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Officer-m-Charge. Police Station, Kotahena v. Dewasinghe and Another
(Seneviratne, J.)755
only on the nature and effect of section 67(1) of the Act. In view ofthe judgment referred to above, I hold that the non-compliance bythe learned Magistrate of the provisions of section 67(1) of thePrimary Courts Procedure Act has not vitiated the proceedings. Thelearned Primary Court Judge in the course of his order has inseveral instances stated as to why this inquiry could not becompleted within the period of three months as specified in Section67(1).
The application is dismissed.
ABEYWARDANE, J. — I agree.
P. S. DE SILVA, J. — I agree.Application dismissed.