CA Periannan vs. Bandarawela Multi-purpose Co-operative Society and (,9
another (Balapatabendi, J.)
BANDARAWELA MULTI-PURPOSECO-OPERATIVE SOCIETY AND ANOTHERCOURT OF APPEALBALAPATABENDI, J. ANDIMAM.J.
CA. 697/2003 (CONTEMPT)
C.A. 621/99 (WRIT)
JUNE 23, ANDOCTOBER 6 AND 11,2004
Contempt of the Court of Appeal — Article 105 of the Constitution – Summons/charge sheet – Necessity to disclose any violation of the judgment of the court
The petitioner in his writ application – CA 621/99 – obtained a judgment inhis favour for all the relief claimed. Inspite of the demand made upon the saidjudgment the 1st – 9th respondents accused have failed to hand over posses-sion of the premises. The petitioner asserts that there is contempt of court.
The summons or the charge sheet served on the respondents-accused donot disclose any violation of the judgment of the Court of Appeal and further thesummons or the charge sheet do not specify the offences committed by therespondents accused.
“A person should not be punished for contempt of court unless a chargeis formulated either specifically or in the form of a rule nisi.".
APPLICATION under Article 105 of the Constitution.
Case referred to :
1. K. Velayuthan vs Hon. A. C. A. Alles – 75 NLR 268
S. P. Sriskantha with A. Paramalingam for complainant petitioners
M. Ameen, State Counsel, for 10th – 12th respondents
Wijayadasa Rajapakse, P. C. with Rasika Dissanayake for 2nd – 9th accusedrespondents.
Sri Lanka Law Reports
:2CC6) : Sr. L P
December 14,2004JAGATH BALAPATABENDI, J.
The Petitioner-complainant in Case No. CA (Writ) 621/99 had obtaineda Judgment in favour of him by this Court, for all the reliefs claimed in theprayer to the Petition filed by him.
In the instant case for contempt of Court the Petitioner-complainantalleged that, inspite of the demand made upon the said Judgment the 1 stto 9th Respondents-accused have failed and/or neglected and/or refusedto comply with the Orders of this Court, of handing over the vacant pos-session of the premises bearing Assessment No. 25, Main Street,Bandarawela. Hence the Petitioner-complainant has asserted, the refusalof the Respondents-accused to comply with the said orders of this Courtis malicious and/or malafide and/or illegal and/or unlawful and/or in con-tempt of this Court, therefore the Respondent-accused are liable to bepunished by this Court for defiance/disrespect/dishonour of the orders ofthis Court and to be dealt with, in accordance with the law.
In the prayer to the Petition of the instant case for contempt of Courtthe Petitioner-complainant had prayed for the following reliefs:
issue summons on the Accused-respondents abovenamed ;
issue notices on the Respondents-respondents abovenamed ;
charge the accused with contempt of this Honourable Court;
inquire into the charge of contempt of this Honourable Court;
punish the accused found guilty of contempt of this HonourableCourt in accordance with the law ;
order the accused to hand over peaceful and vacant possessionof the premises in suit to the Complainant, or in the alternative,direct the Fiscal of the District Court of Bandarawela to handover possession of the said premises to the Complainant;
for costs ; and
for such other and further reliefs as to Your Lordships’ Courtshall seem fit and proper.
CA Periannan vs. Bandarawela Multi-purpose Co-operative Society and 171
another (Balapatabendi, J.)
At the inquiry into the instant contempt of Court application, the coun-sel for the Accused-respondents raised two preliminary objections as fol-lows
Since the summons served on the 2nd to 9th Respondents-accuseddo not disclose any violation of the Judgment of this Court by the2nd to 9th Respondents-accused, this inquiry into the purported con-tempt of Court cannot be proceeded with; and
The Petitioner has failed to serve valid summons and/or charge sheeton the 2nd to 9th Respondents-accused. •
Both counsel agreed to resolve the abovementioned Preliminary issueson written submissions.
The contention of the Counsel for the Petitioner-complainant wasthat, when this matter was taken up on 07.08.2003 the same preliminaryobjections were raised, and later it was abandoned by the Respondent-accused. On 15.10.2003 the Respondents-accused pleaded “Not Guilty”to the charges framed and the inquiry was fixed for 21.11.2003. Thereafter,as the Counsel for the Respondents-accused indicated to Court that hehad personally advised the Respondents-accused to arrive at a settle-ment several dates were given for a settlement by Court. Later on theinquiry date (23.06.2004), as there was no settlement again the above-mentioned preliminary objections were raised. The Counsel contendedthat the Preliminary Objections based on summons/charge sheet cannotbe raised at this stage, as the Respondents-accused had already pleaded“Not Guilty” to the charges, and also the objections raised are untenablein law as the summons clearly indicate the violation of the Judgment bythe Respondents-accused. Therefore he urged that the preliminary objec-tions raised be dismissed and fix the matter for further inquiry on thecharges framed against the Respondents-accused.
Even though the counsel for the Petitioner stated that the same objec-tions were raised on 07.08.2003, it appears in the Journal Entry dated
“ 1 st to 8th Respondents take up a preliminary objection that ex-faciethere are no grounds for contempt of Court and wishes to make submis-sions on the matter."“Arguments on 15.10.2003."
Sri Lanka Law Reports
(2006) 1 Sri L R
Thus, it is manifest that the objections raised by the 1 st to 8th Respon-dents on 07.08.2003 were not the same.
The contention of the counsel for the Respondents-accused was that,in writ application bearing No. CA. 621/99 filed in this Court by thePetitioner-complainant had sought the following reliefs
grant and issue a mandate in the nature of writ of certiorari to quashthe purported Section 2 and Section 5 notices and all the stepstaken in acquiring the premises which belonged to the Petitionerunder the Land Acquisition Act (Chap. 460); and
grant and issue a mandate in the nature of writ of certiorari to quashthe vesting and acquisition order published in the Gazette 1059/11dated 23.12.1998.
grant costs, and other reliefs the Court shall seem meet.
This Court after inquiry had held that the Petitioner-complainant wasentitled to the above mentioned reliefs claimed, and also thePetitioner-complainant was entitled to costs of Rs. 10,000/- payable bythe 3rd respondent, Bandarawela Multi Purpose Co-operative Society. (Asper Judgment dated 30.05.2002).
It had been revealed that the 3rd Respondent-accused – the Multi Pur-pose Co-operative Society is in possession of the said premises since1975 as a tenant and the other Respondents-accused are the Directors ofthe said society. Following the Judgment of this Court dated 30.05.2002the Petitioner-complainant had sent a letter to the Respondents-accuseddemanding to hand over the vacant possession of the said premises tohim had been refused by the Respondents-accused – on the premise thatthey are the statutory-tenants of the premises in question.
CA Periannan vs. Bandaraweia Multi-purpose Co-operative Society and 173
another (Balapatabendi, J.)
Hence, the counsel for the Respondents-accused contended that therights of the tenant which were secured by the statute (the Rent Act)cannot be affected or taken away merely because an order for acquisitionwas quashed by a writ of certiorari. Also, neither the Petitioner-complain-ant had sought a relief for ejectment of the 3rd respondent society fromthe said premises nor had this Court granted a relief to eject the 3rdrespondent from the said premises. Besides, there was no order beenmade against the 3rd respondent to vacate the said premises in the Judg-ment dated 30.05.2002.
For the reasons aforesaid, the counsel for the Respondents-accusedurged that the refusal to vacate the said premises by the Respondents-accused do not constitute an abuse of the process of this Court, and alsodo not amount to contempt of Court.
In the case of K. Velayuthan vs. The Hon. A. C. A. Allesf’> it was heldthat “a person should not be punished for contempt of Court unless acharge is formulated either specifically or in the form of a rule nisi.”.
In the circumstances mentioned above, we are inclined to accept thecontention of the counsel for the Respondents-accused, that the sum-mons or the charge sheet served on the Respondents-accused do notdisclose any violation of the Judgment of this Court and also the sum-mons or the charge sheet served do not specify the offence committed bythe Respondent-accused.
Having considered all the circumstances, we uphold the preliminaryobjections raised by the Respondents-accused. Thus the application filedby the Petitioner-complainant against the Respondents-accused for con-tempt of Court, is dismissed. No costs.
IMAM, J. — I agree.
PERIANNAN vs. BANDARAWELA MULTI-PURPOSE CO-OPERATIVE SOCIETY AND ANOTHER