051-SLLR-SLLR-1978-79-V2-Ramanathan-Chettiar-v.-Wickramarachchi-and-Others.pdf
CA Ramanathan Chettiar v. Wickramarachchi and Others (Soza, J.)395
Ramanathan Chettiarv.Wickramarachchi and Others
COURT OF APPEAL*'
SOZA, J., AND TAKlBIAH, J.
CA (SC) APPLICATION NO. 238/78OCTOBER. 15, 1978
Certiorari and Mandamus — Land Acquisition Act No. 9 of 1950 as amended- Valuation – Failure to notify claim in terms of section 7(2) (c) – Does sucha claimant have a right to appeal to Board of Review under section 22,against award of compensation – Does expression "right, title and interest"include compensation.
Dictrine of stare decisis — Per incuriam rule.
396
Sri Lanka Law Reports
(1978-79) 2 Sri L. R.
It was decided to acquire a land belonging to the temporalities of theKathiresan Kovil (of which the petitioner was trustee) under the provisions ofthe Land Acquisition Act and, notice of the proposed acquisition waspublished in the Gazette requiring all persons interested in the land to appearbefore the Acquiring Officer (1st respondent) on 14.2.1972 and to notify inwriting on or before 5.2.1972 the nature of their interests in the land, theparticulars of their claims for compensation and the details of the compensa-tion thereof. An application dated 31.1.72 for extension of two months' timeto notify claims on the ground of illness by the petitioner's attorney wasrefused by the 1st respondent. On 14.2.72 the petitioner though absent wasrepresented by Mr. Nadarajah a Valuer and on his application the 1st respon-dent under s. 9 of the Land Acquisition Act postponed the inquiry for13.3.1972 on which date the petitioner's attorney, his Proctor and Nadarajahappeared and produced the petitioner's title deed and valuation report andadduced oral evidence. In the evidence Rs. 1,501,240 was'claimed for thepetitioner but the 1st respondent on 20.5.1972 made his awaid under s. 17fixing compensation at Rs. 855,000/=. The petitioner appealed to the Boardof Review but on the hearing of the appeal a preliminary objection was raisedagainst him on the ground that he had failed to notify his claim in writing tothe 1st respondent in terms of s. 7 (2)(c) and has therefore no right of appeal.The Board of Review upheld the preliminary objection by its order of30.1.1978 and the present application is for certiorari quashing that orderand mandamus directing the Board to hear the appeal.
Held
The provisions of s. 7(2)(c) and its proviso and s. 15 becomeapplicable once a claim to a right, title or interest is entertained undei s. 16but with the time limit deleted. Strictly s. 15 cannot be utilised because itdeals with the paiticular occasion when no interested person appeais inresponse to the notice under s. 7.
ft
Section 16 has been designed to avoid the hardship caused toclaimants by the earlier rigid insistence on time limits and written claims, bythe Act. The right to property is a right recognised by our law subject toprescribed limitations. When such rights areaaken away by acquisition, theyare substituted by the right to compensation. The right to dispute thequantum of compensation is part of this right to compensation. Section 16has been enacted to preserve this right in respect of belated claims.
No doubt section 16 refers only to claims to the right, title andinterest to in or over the land or servitude proposed to be acquired andsection 22 refers only to claims for compensation. But the words "right, titleor interest" have a broad spectrum of meaning and are per se wide enough tocover a claim for compensation for, land and that is how the Legislature
CA Ranianathan Chettiar v. Wickramarachchi and Others (Soza, J.j 397
intended to use the expression on the occasion when it amended section20 (1) of the original Land Acquisition Act to its present form as section 22.
The decisions of the former Supreme Court in Messrs. KurunegalaEstate Limited v.The District Land Officer Matale District and Pathiwillev. The acquiring Officer, Colombo District have been decided per incuriam
and are not absolutely binding on the Court of Appeal.
Although the doctrine of stare decisis achieves much neededcertainty such certainty must not be achieved by perpetuating error or byinsulating the law against the currents of social change.
Despite a statutory stipulation that a decision or order shall not becalled in question in any court, certiorari will yet issue when the order or
decision has been made ex facie without jurisdiction or in excess of it or thereis non-compliance with mandatory provisions of the law which are a condi-tion precedent to the making of the order or decision or there is non-compliance with the principles of natural justice. Mandamus will lie whenthere is failure to comply with a public duty imposed by law to compelcompliance.
Cases referred to
1. Messrs Kurunegala Estate Limited v. The District Land Officer, MataleDistrict-Appeal No. B.R./3528/ML 47—S.C. 4 of 1976 decided on1.4.1977.
2 Pathiwille v The Acquiring Officer, Colombo District —
No. BR 3325/CL/834 – S.C. 1/75 decided on 11.5.1977.
Courtauld v. Legh [1869] L.R. 4 Ex. 126, 130
Re National Savings Bank Association [1866] L.R. 1 Ch. App. 547, 549,500.
Maddox v. Storer [1963] 1QB 451, 455.
The King v. Hall [1822] 1 B & C 123, 136.
The Edinburgh Street Tramways Company v. Torbain [1877] 3 App-eases 58, 68.
Young v. Bristol Aeroplane Co. [ 1944] 2 AH E. R. 293.
Morelle Ltd. v. Wakeling [1955] 1 All E.R. 708, 718.
Alasupillai, v. Yavetpil/ai [1949] 39 CLW 107, 108.
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(1978-79) 2 Sri L. R.
Huddersfield Police Authority v. Watson [1947] 1 AH ER 193, 196.
Edwards v. Jones [1947] 1 Alt E.R. 830, 833.
Rodgers v. Richards [ 1892] 1 QB 555.
Penny v. Nicholas [1950] 2 All ER 89, 91.
Broome, v. Cassell & Co. Ltd., [1971] 2 All ER 187, 199.
Dr. H. Billimoria v. Gamini Dissanayake and two others S.C. AppealNo. 1/79 decided on 20th April 1979.
Rookes v. Barnard [1964] 1 All ER 367.
Bandahamy v. Senanayake [1960] 62 NLR 313,334.
Kodeeswaran v. The Attorney-General [1969] 72 NLR 337, 346.
High Commissioner for India v. Lall Air [1948] PC 121.
Boys v. Chaplin [ 1968] 1 All ER 283, 289.
Practice Note on Judicial Decision as Authority [1966] 3 All ER 77.
Chaplin v. Boys [1969] 2 All ER 1085.
Gal/ie v. Lee [1969] 1 All ER 1062, 1072 (affd. by House of Lords[1970] 2 WLR 1078).
APPLICATION for writs of certiorari and mandamus
Ranganathan, Q.C. with P. Somatillakam for petitioner.
C. Jayasuriya S.C. for the 2nd respondent.
November 23, 1979
Cur.adv. vult.
SOZA, J.
This is an application for a mandate in the nature of a writ of certiorariand/or mandamus quashing the order made by the Land Acquisition Board ofReview on 30th January 1978 dismissing an appeal made to it from an awardof the acquiring officer (1st respondent) and directing the Board to entertainthe petitioner's appeal. In this case a decision to acquire the land called OldKathiresan Kovil Watta situated at Bambalapitiya and depicted as lot 1 in
CA Ramanathan Chettiar v. Wickramarachchi and Others (Soza, J.j 399
preliminary plan No, 1481 had been made and the 1st respondent publishednotice R1 under Section 7 of the Land Acquisition Act (hereafter whereconvenient referred to as the Act) in the Government Gazette No. 14,900 of24.12.1971 requiring all persons interested in the land to appear before himpersonally or by their authorised agents duly authorized in writing on 14thFebruary 1972 at 10.00 a.m. at the Colombo Kachcheri and to notify him inwriting on or. before 5th February 1972 the nature of their interests in theland, the particulars of their claims for compensation, the amount of compen-sation and the details of the computation thereof. The notice of acquisitionwas exhibited on the land on 10.1.1972. Mr. S. Somanathan Proctor actingon behalf of the petitioner's attorney S. M. Lexamanan wrote letter R3 on. 31.1.1972 to the 1st respondent requesting, on the ground of illness, anextension of two months' time to notify his claims but the 1st respondentrefused the request by his letter R4 of 5.2.1972.
The petitioner is the trustee of the temporalities of the Old KathiresanTemple. The land proposed to be acquired forms part of the temporalities ofthe Kathiresan Kovil and is in extent 2 Acres 0 roods and 00.56 perches. On14.2.1972 the petitioner was not present before the 1st respondent but hewas represented by Mr. M. Nadarajah a valuer by profession. On a requestmade by Mr. Nadarajah the 1st respondent postponed the inquiry underSection 9 of the Land Acquisition Act to 13th March 1972. On this date thepetitioner's attorney Lexamanan, Mr. Somanathan Proctor and Mr. M.Nadarajah valuer appeared before the 1st respondent and produced thepetitioner's title deed and a valuation report P1 regarding the market value ofthe land. Mr. Somanathan and Mr. Nadarajah gave evidence for the petitioner.Evidence was led at the inquiry of the valuation as computed by the peti-tioner which was a sum of Rs. 1,501,240/-; On 20th May 1972 the 1strespondent made his award under section 17 of the Act fixing the compensa-tion at a sum of Rs. 855,000/-. The petitioner then lodged an appeal to theBoard of Review in terms of Section 22 of the Act. The matter was taken upfor argument before the Board of Review on 2nd March 1976 on which datea preliminary objection was raised against the petitioner on the ground thathe had failed to notify his claim for compensation in writing to the 1strespondent in terms of section 7(2) (c) of the said Act and therefore he hadno right of appeal. By its order dated 30th January 1978 made under section25 of the Act the Board of Review upheld the preliminary objection anddismissed the petitioner's appeal with costs fixed at Rs. 200/-. It is in respectof this order that the present application has been filed. Apart from the 1strespondent who figured in the various steps that were taken in the matterof the acquisition, five other respondents have been named. The 2ndrespondent is the present acquiring officer of the Colombo Kachcheri. Theother four respondents are the members of the Land Acquisition Board ofReview. Of these- the 6th respondent did not sit on the Board of Reviewwhich made the order of 30th January 1978 but as he is the Chairman of theBoard of Review he is made a party so that he may be bound by theseproceedings. Only the 2nd respondent has filed an appearance in this case.
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The compalint of the petitioner is that he has been denied his right ofappeal by the Board of Review wrongly interpreting the provisions of theLand Acquisition Act relating to his right of appeal and the right to canvassthe quantum of compensation.
It was submitted on behalf of the 2nd respondent that the petitioner is aperson who has not notified his claim for compensation to the acquiringofficer within the time allowed therefor by the Act and therefore he is notentitled to the right of appeal to the Board of Review under Section 22 of theAct. Learned Counsel for the 2nd respondent referred to the unreported caseof Messrs Kurunegala Estate Limited v. The District Land Officer, MataleDistrict.^ In this case the Supreme Court which functioned under the Consti-tution of 1972 held that a person who has failed to notify his claim forcompensation under Section 7(2)(c) at least seven days before the datespecified in the notice has no right of appeal. This decision is based on thefinding of that Court that the words "right, title and interest to, in or overthe land" which appear in sections 10, 16 and 17 do not include a claim inrespect of the quantum of compensation. This decision was followed by aSupreme Court in another unreported case . On behalf of the petitioner itwas submitted that these two decisions of the Supreme Court weie given perincuriam and therefore this Court is not bound by them. I will deal with thisquestion presently,
It is admitted in this case that the petitioner had failed to notify hisclaim for compensation in writing, under his own hand or his duly authorisedagents, to the 1st respondent at least seven days before the date specified inthe notice which, in this case, was 5.2.1972. Yet the petitioner claims he cancome in under Section 16 of the Act as he had made his claim for compensa-tion before the conclusion of the inquiry held under Section 9.
To determine whether the judgments in the two cases in question werenot only wrongly decided but also given per incuriam and to decide whetherthere is merit in the petitioner's application it is necessary to examine therelevant statutory provisions.
When a decision is made to acquire a land or a servitude over a land, theacquiring officer is obliged to publish a notice of the proposed acquisition inthe manner set out in subsection (1) of section 7. In this notice he had todescribe the land or servitude intended to be acquired and to state that claimsfor compensation may be made to him (section 7(2)(a) & (b)). Subsection (c)of section 7(2) provides that the acquiring officer shall —
"direct every person interested in the land which is to be acquired orover which the servitude is to be acquired to appear, personally or byagent duly authorised in writing, before such acquiring officer on a dateand at a time and place specified in the notice (such date not beingearlier than the twenty-first day after the date on which the notice is to
CA Ramanathan Chettiar v. Wickramarachchi and Others (Soza, J.)401
be exhibited for the first time on or near the land), and, at least sevendays before the date specified in the notice, to notify in writing underthe hand of that person or any agent duly authorised as aforesaid to suchacquiring officer the nature of his interests in the land, the particulars ofhis claim for compensation, the amount of compensation and the detailsof the computation of the amount".
•
The proviso to this subsection states that for good cause shown withintwo weeks after the notice is exhibited, the period for notifying the claim forcompensation and appearing before the acquiring officer could be extendedup to a period of 28 days from the date specified in such notice.
Under Section 9 the acquiring officer had to proceed to hold an inquiry
into —
the market value of the land or of the servitude proposed to beacquired;
such claims for compensation as may have been notified to himwithin the time allowed therefor or in accordance with the provisoto section 7(2)(c);
the respective interests of the persons claiming compensation;
any other matter which needs investigation.
Under subsection (2) it is open to the acquiring officer to adjourn or post-pone the inquiry.
By virtue of section 10(1) the acquiring officer was under a duty at theconclusion of the inquiry —
to make a decision on every claim made by any person to any right,title or interest to, in or over the land or servitude as well as on everydispute as may have arisen between the claimants as to their right,title or interest and give notice of his decision to the claimant or toeach of the parties to the dispute; or
Q
to refer the claim or dispute for determination to the Court.
A claimant too can, if his claim is wholly or partly disallowed or if a dispute.arises, move for reference of the matter to Court.
Section 15 stipulates that where no person interested in a land in respectof which a notice under Section 7 has been published appears personally orby agent duly authorised by him in writing on the day and at the time andplace appointed therefor by the notice or under the proviso to section 7(2)(c)
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then, the acquiring officer should postpone the inquiry under Section 9 for aday not earlier than the fourteenth day after the date fixed for appearanceunder Section 7(2) (c) or its proviso and also exhibit a notice in a conspicuousplace on or near the land, not later than the seventh day before the date towhich the inquiry is postponed. The notice must specify the date on whichand time and place at which the postponed inquiry will be held. It must alsorequire the persons interested in the land to state the natur^of their interestsand the amount and particulars of their claim for compensation. It must alsomention that, whether any persons interested attended the inquiry or not,the amount of compensation would be determined.
Here notice must be taken of the fact that the original Land AcquisitionAct No. 9 of 1950 underwent several amendments before it reached itspresent form. An amendment which effected substantial changes to the oldAct was Act No. 39 of 1954. This amendment brought in a new Section 16.Subsection (1) of this section reads as follows:
"An acquiring officer shall entertain and inquire into any claim to anyright, title or interest to, in or over the land which is to be acquired orover which a servitude is to be acquired, made in writing at any timebefore the conclusion of an inquiry held by him under this Act, notwith-standing that such claim is made after the expiry of the time allowedtherefor by any other provision of this Act; and accordingly such otherprovisions of this Act as are applicable to claims, other than thoserelating to the time within which claims may be made, shall apply inrelation to such claims".
Under subsection (2) the acquiring officer was required to entertain andinquire into any claim to any right, title or interest to, in or over the land orservitude which is to be acquired if it is made before the conclusion of hisinquiry though it is made orally. The acquiring officer is required to reducethe claim to writing by subsection 3. The effect of section 16 is to give anopportunity for a person who is interested to make a belated claim. But sucha claim must be before the conclusion of the inquiry under Section 9.
Under Section 17 the acquiring officer had to make his determination onthe following matters:
t!
the persons who are entitled to compensation in respect of the landor servitude which is to be acquired;
the nature of the interests of those persons in the land which is to beacquired or over which the servitude is to be acquired;
the total amount of the claims for compensation for the acquisitionof the land or servitude;
CA Ramanathan Chettiar v. Wickramarachchi and Others (Soza, J.j 403
the amount of the compensation which in his opinion should beallowed for such acquisition in accordance with the provisions ofpart VI of the Act;
the apportionment of compensation among those persons.
A person dissatisfied with the acquiring officer's determination underSection 17 can lodge an appeal to the Board of Review under Section 22(1)which reads as follows:
"A person to whom compensation is allowed by an award under section17 and who has notified his claim for compensation to het acquiringofficer within the time allowed therefor by this Act, may appeal to theBoard against that award on the ground that the amount of the compen-sation allowed to him is insufficient".
This is how this provision stands today. But we must remember that thissection takes its present form after significant amendment by Act No. 39 of1954. Section 16(1), (2) & (3), as I said before, are completely new provi-sions brought in by this amendment. A consequential amendment waseffected to the old section 20(1) which dealt with the right of appeal. In itsamended form section 20 has been re numbered as the present section 22.The former section 16 which dealt with the decision-making powers of theacquiring officer was remumbered as section 17. Before amendment thecomparable portion of section 20(1) of the original Act No. 9 of 1950 readas follows:
"A person to whom compensation is allowed by an award under Section16 (re numbered as s. 17) and who has notified his claim for compensa-tion in writing to the acquiring officer within the time allowed thereforby the notice under section 7 or section 15 or in accordance with theproviso to section 7(2)(c), may appeal to the Board against that award onthe ground that the amount of the compensation allowed to him isinsufficient".
By this provision two qualifications were required for a person to have aright of appeal to the Board of Review:
He should be a person to whom compensation is allowed by theaward of the acquiring officer.
He should have notified his claim for compensation in writing to theacquiring officer within the time allowed therefor by the noticeunder section 7 or section 15 or in accordance with the proviso tosection 7(2) (c).
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After the amendment of 1954 the first requirement was retained but twosignificant changes were made in regard to the second requirement.
It will be seen that firstly the words "in writing" are dropped in the newsection 22(1) and secondly in place of the words "by the notice under section7 or section 15 or in accordance with the proviso to section 7(2)(c)" there arethe words "by this Act".
What is the significance of these two changes? I will take the first ofthese. The only occasion when a claim need not be in writing is when a claimunder the new section 16(2) is made. The words "in writing" have, it isobvious been dropped to make way for a person who has made a claim undersection 16(2) and who is aggrieved by an award of the acquiring officer toappeal to the Board of Review.
The second change is just as significant. The only provisions in theoriginal Land Acquisition Act No. 9 of 1950 where time-limits wre prescribedfor making claims were section 7(2)(c) and its proviso, and section 15. Withthe amendments brought in by the amending Act No. 39 of 1954, the newsection 16(1) and section 16(2) also stipulated a time-limit for making claims,namely, before the conclusion of the inquiry.
Hence, the reference particularly to section 7, to the proviso to section7(2)(c) and to section 15, was dropped and a compendious expression "bythis Act" was substituted therefor. It is to be observed that after the amend-ments of 1954 there were no other new provisions prescribing time-limits formaking claims except section 16(1) & (2). It is an accepted canon of interpre-tation that when the phraseology of the law is changed by an amending Actthere is a presumption, that some change in the law is intended — see Bindra:Interpretation of Statutes 6th Ed. (1975) p. 199.
Further the words "right, title or interest to, in or over the land whichis to be acquired or over which a servitude is to be acquired" must beconstrued in relation to the last portion of subsection (1) and subsection (2)of scetion 16. The last portion of subsection (1) says that "such otherprovisions of this Act as are applicable to claims, other than those relating tothe time within which claims may be made shall apply in relation to suchclaims". The expression "such claims" mearfs claims to the right, title orinterest to, in or over the land which is to be acquired or over which a servi-tude is to be acquired. This is the effect of the use of the definition "such" —see Fowler's Modern English Usage (1965) 2nd Ed. p. 602. Apart fromsection 16 the only other provisions applicable to claims and which prescribetime-limits for making claims are sections 7(2)(c) and its proviso andsection15 immediately become applicable once a claim to a right, title orinterest is entertained under Section 16 but with the time-limit deleted.Strictly secion 15 cannot be utilised becaTise it deals with the particularoccasion when no interested person appears in response to the notice under
CA Ramanathan Chettiar v. Wickramarachchi and Others (Soza, J.)405
section 7. Sections 9 to 14 and 17 also refer to claims and how they may beinquired into and disposed of and these provisions too become applicable.Similarly the last part of subsection (2) reads "such other provisions of thisAct as are applicable to claims other than those relating to the time withinwhich claims may ba made and requiring claims to be made in writing, shallapply in relation to such claims".
Under this subsection the provisions applicable to claims but with thetime-limits and the requirement that claims should be made in writingdeleted, become applicable. Here again sections 7(2>(c) and its proviso andsection 15 and section 16(1) are the only other provisions applicable toclaims which prescribe time-limits for the making of claims and also requirethe claims to be made in writing. These provisions become applicable but thetime-limits and the requirement that the claim should be in writing becomeinoperative. Here too the provisions of sections 15 and 16(1) cannot beutilised — the former because it refers to a situation when no interestedperson appears in response to the notice under section 7 and the latterbecause its provisions are repeated in section 16(2). Once again sections 9 to14 and 17 also become applicable. Hence when a claim to any right, title orinterest to , in or over the land which is to be acquired or over which a servi-tude is to be acquired, is made under section 16, section 7(2)(c) and itsproviso become applicable in the manner stated above and the claimant mustset out the nature of his interests in the land, the particulars of his claim forcompensation, the amount of compensation and the details of the computa-tion of such amount in writing or orally. This is another reason why section22 is applicable to claims under section 16.
Section 16 has been designed to avoid the hardship caused to claimantsby the earlier rigid insistence on time-limits and written claims by the Act.The right to property is a right recognised by our law subject to prescribedlimitations. When such rights are taken away by acquisition, they aresubstituted by the right to compensation. The right to dispute the quantumof compensation is part of this right to compensation. Section 16 has beenenacted to preserve this right to belated claimants.
It is however argued against the petitioner that section 16 is not contem-plated in section 22 as the latter section refers only to claims for compensa-tion whereas section 16 refers qnly to claims to the right, title and interest to,in or over the land or servitude proposed to be acquired. Under Section 16(1)and (2) an acquiring officer can only entertain "any claim to any right, titleor interest to, in or over the land which is to be acquired or over which aservitude is to be acquired", and these words do not cover a claim forcompensation as contemplated in section 7(2)(c) or section 15 or section22(1). It is pointed out that these words "right, title and interest to, in orover the land etc." occur also in Section 10 which lays it down that theacquiring officer must make a decision on every claim made by any person toany right, title or interest to, in or over the land which is to be acquired or
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over which a servitude is to be acquired and on every such dispute as mayhave arisen between any claimants as to any such right, title or interest; orrefer the claim or dispute for determination by a Court. Where the acquiringofficer so refers the claim or dispute the Court is not empowered to decideon the amount of compensation. The jurisdication which the Court had todetermine the amount of compensation under s. 11(d) of the old LandAcquisition Ordinance (Cap. 203 L.E.C. 1938 Revision) was taken awaywhen the Land Acquisition Act No. 9 of 1950 was passed and today thejurisdiction of the Court is limited to deciding questions respecting to title tothe land or any rights thereto or interests thereon of the parties named in thelibel of reference made by the acquiring officer. It is true that even in the oldLand Acquisition Ordinance the Legislature dealt with claims to the amountof compensation and claims to title to the land or any rights thereto orinterests therein, under distinct heads. This distinction was carried intosection 10(1) and section 17(1) and (2) of the Land Acquisition Act No. 9 of1950.
But when by the amendment No. 39 of 1954 a new section 16(1), (2)and (3) to the Land Acquisition Act was included this distinction was notpreserved. The words "right, title or interest" have a broad spectrum ofmeaning and are per se wide enough to cover a claim for compensation forland and that is how the Legislature intended to use the expression when itamended section 20(1) of the original Land Acquisition Act to its presentform (s. 22). The limited meaning ascribed to the phrase 'right, title andinterest' in section 10 is due to the context in which it is used.
Some comment on the interpretation of identical words or phrases in an
O
enactment is appropriate at this stage. Cleasby B. in Courtuald v. Legh said:
"It is a sound rule of construction to give the same meaning to the samewords occurring in different parts of ari Act of Parliament or otherdocument".
Tenner, L. J. in Re National Savings Bank Association4 expressed his viewsthus:
"I do not consider that it would be at all consistent with the law, or withthe course of this Court, to put a different construction upon the sameword in different parts of an Act of Parliament, without finding somevery clear reason for doing so".
But the presumption that the same words are always used in the samemeaning is very slight and it is proper to construe a word in one part of anAct. In fact a word may even be used in two different senses in the samesection of an-Act — see Craises on Statute Law (1971) 7th Ed. p. 169.
As Lord Parker C. J. said in Madded v. Storer®:
CA Ramanathan Chettiar v. Wickramarachchi and Others (Soza, J.)407
"Even when the same word does occur in the same section or the sameschedule the context must govern the true meaning".
I
Abbott C. J. in The King w Hall® explained that principle thus:
"Now the meaning of particular words in Acts of Parliament, as well asother instruments, is to be found not so much in a strict etymologicalpropriety of language, nor even in popular use, as in the subject or occa-sion, on which they are used, and the object that is intended to beattained".
Lord Blackburn expressed a similar view in The Edinburgh Street Transways
Company v. Torbain7:
"I quite agree that in construing an Act of Parliament we are to see whatis the intention which the Legislature has expressed by the words; butthen the words again are to be understood by looking at the subject-matter they are speaking of and the object of the Legislature, and thewords used with reference to that may convey an intention quitedifferent from what the self-same set of words used in reference toanother set of circumstances and another object would or might haveproduced".
Therefore the context, the subject-matter, the occasion, the object intendedto be attained and the circumstances will govern the question whether thesame word or phrase used in different parts of the same statute bears thesame meaning or different meanings. In the instant case these are the factorsand the circumstances that govern the meaning that shouid be attributed tothe phrase "right, title or interest" as used in section 16(1) & (2). Thesewords are wide enough to cover a claim for compensation and accordingly aclaimant under section 16(1) or section 16(2) has the right of appealconferred by section 22(1). I cannot therefore accept the arguments advancedby the 2nd respondent as correct.
In my view the case of Messrs. Kurunegala Estate Limited v. The DistrictLand Officer, Matale District (supra) has been, if I may say so with thegreatest respect, wrongly decided. Is this Court bound by this decision (givenby the Supreme Court constituted under the Constitution of 1972) or is itone given per incuriam?
Prof. Rupert Cross in his book "Precedent in English Law" 2nd Ed.(1968) explains the principle governing decisions given per incuriam asfo I lows at page 137:
"The principle appears to be that a decision can only be said to havebeen given per incuriam if it is possible to point to a step in the reasoningand show that it was faulty because of a failure to mention a statute, a
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rule having statutory effect or an authoritative case which might havemade the decision different from what it was".
Lord Greene M. R. in the leading case of Young v. Bristol Aeroplane Co.®held that the Court of Appeal in England is bound to follow previousdecisions of its own as well as of those of Courts of co ordinate and higherjurisdiction. But Lord Greene himself stated four exceptions to this rule oneof which is that the court is not bound to follow an earlier decision.of its ownif it is satisfied that the decision was given per incuriam. This is one of theexceptions to the doctrine of stare decisis.' His Lordship explained thecommonfest aspect of this exception thus at p. 300.:
"But where the Court is satisfied that an earlier decision was given inignorance of the terms of a statute or a rule having the force of a statutethe position is very different. It cannot, in our opinion, be right to saythat in such a case the court is entitled to disregard the statutoryprovision and is bound to follow a decision of its own given when thatprovision was not present to its mind. Cases of this description areexamples of decisions given per incuriam. We do not think that it wouldbe right to say that there may not be other cases of decisions given perincuriam in which this court might properly consider itself entitled notto follow an earlier decision of its own. Such of the cases would be of therarest occurrence and must be dealt with in accordance with their specialfacts".
His Lordship went to say that two classes of decisions fell outside the scopeof the per incuriam rule:
those where the court has acted in ignorance of a previous decisionof its own or of a court of co-ordinate jurisdiction which covers thecase before it resulting in a conflict of authority. In such a situationa subsequent court must decide which of the two decisions it oughtto follow;
those where it has acted in ignorance of a decision of the House of
Lords which covers the point. In such a case a subsequent court isbound by the decision of the House of Lords.,
o
The per incuriam rule as enunciated in Young's case (supra) was followedby Lord Evershed M. R. in Morelle, Ltd. v. Wakeling®:
"As a general rule the only cases in which decisions should be held tohave been given per incuriam are those of decisions given in ignorance orforgetfulness of some authority binding on the court concerned: so thatin such cases some part of the decision or some step in the reasoning onwhich it is based is found, on that account, to be demonstrably wrong.This definition is not necessarily exhaustive, but cases not strictly within
CA Ramanathan Chettiar v. Wickramarachchi and Others (Soza, J.)409
it which can properly be held to have been decided per incuriam must, inour judgment, consistently with the stare decisis rule which is an essentialfeature of our law, be, in the language of Lord Greene, M. R., of therarest occurrence".
Basnayake J. (as he then was) in the case of Alasupillai v. Yavetpillai10 gavethe following definition:
"A decision per incuriam is one given when a case or statute has not beenbrought to the attention of the Court and it has given the decision inignorance or forgetfulness of the existence of that case or that statute".
Basnayake, J. was here adopting the dictum of Lord Goddard C. J. in
11
Huddersfield Police Authority v. Watson.
Lord Goddard who was one of the six Judges who sat on the Bench thatdecided Young's case (supra), enlarged the scope of the per incuriam rule intwo other cases. In Edwards v. Jones^ His Lordship said:
"I should have no hesitation, if necessary, in differing from the decisionin that case, not merely because we are sitting now as a court of three,and that was a court of two, but also because the case was not argued forthe defendants, who did not appear, and when a case has been arguedonly on one side, it has not the authority of a case which has been fullyargued".
1 ^
The case His Lordship was referring to was that of Rodger v. Richards.
Again in the case of Penny v. Nicholas^4 His Lordship said:
"We can, however, always differ from a case on the ground that it hasbeen argued on both sides".
Lord Denning added a variant to the class of cases Lord Goddard washere speaking of by adding cases where a long standing rule of common lawhas been disregarded because the Court not having had the benefit of a fullargument before it, rejected the common law — see Broome v. Cassell & Co.Ltd. ^ ® and the judgment of Sayiarakoon C. J. in the unreported case ofDr. H. Billimoria v. Gamini Oissanayake and two others/® In Broome's case(supra) Lord Denning presiding over the Court of Appeal took the view that adecision of the House of Lords (Rookes v. Bernard^) enunciating a newdoctrine about exemplary damages was given per incuriam and refused tofollow it. His Lordship held that it is not open to the House of Lords to over-throw the common law of England which was well settled before the decisionin 1964 of Rookes v. Bernard (supra).
410
Sri Lanka Law Reports
(1978-79) 2 Sri L R.
The views of Lord Goddard were referred to with approval by BasnayakeC. J. in Bandahamy v. Senanayake1®. In the Privy Council case of Kodees-waran v. The Attorney General^ Lord Diplock delivering the judgment ofthe Board declared that its own decision in the Indian case of HiqhCommissioner for India v. Lalrv was "given per incuriam since the relevantand prestigious authorities to the contrary" were not cited to the Board.
Perhaps it is not inapposite to add that the rule in Young's case (supra) isnow under fire and there are signs it might be changed. Thus in Boys v.Chaplin^ * Lord Denning said:
"I foresee the time may come when we have to reconsider the self-imposed limitation stated in Young's case, especially in view of therecent change in practice in the House of Lords."
HisLordshiphere wasreferringto the famousstatement on Judicial
Precedent made by theHouse ofLords (see noteon Judicial Decision as
authority ) whereby the House declared it would hold itself free to departfrom its previous decisions. The Court of Appeal decision in Boys v. Chaplin(supra) was affirmed by the House of Lords — see Chaplin v. Boys^.
In Gallie v. Lee^ Lord Denning M. R. said as follows:
"We are,of course,bound bythe decisions ofthe House, but I do not
think weare boundby priordecisions of ourown, or at any rate, not
absolutely bound. We are not fettered as it was once thought. It wasa self imposed limitation; and we who imposed it can also remove it.The House of Lords have done it. So why should not we do likewise? Weshould be just as free, no more and no less, to depart from a priorprecedent of our own, as in like case is the House of Lords or a judge offirst instance. It is very, very rare that we will go against a previousdecision of our own, but if it is clearly shown to be erroneous, we shouldbe able to put it right".
The doctrine of stare decisis is no doubt-an indispensable foundation uponwhich to decide what is the law and its application to individual cases. Itprovides at least some degree of certainty upon which individuals can rely inthe conduct of their affairs as weli as a b^is for orderly development of legalrules. Certainity in the law is no doubt very desirable because there is alwaysthe danger of disturbing retrospectively the basis on which contracts, settle-ments of property and fiscal arrangements have been entered into. Furtherthere is also the especial need for certainty as to the criminal law. While thegreatest weight must be given to these considerations, certainty must not beachieved by perpetuating error or by insulating the law against the currents ofsocial change.
The question where the Court of Appeal is absolutely bound by decisions
CA — Ramanathan Chettiar v. Wickramarachchi and Others (Soza, J.)411
of the Supreme Court that functioned under the Constitution of 1972, as it isby decisions of the present Supreme Court, is still open. However that maybe, a decision given per incuriam by the former Supreme Court is, if I maysay so respectfully, not absolutely binding on the present Court of Appeal.For as Cross says (ibid pp, 127,128):
"No doubt any court would decline to follow a case decided by itself orany other court (even one of superior jurisdiction) if the judgmenterroneously assumed the existence or non-existence of a’statute, and thatassumption formed the basis of the decision. Thsi exception to the ruleof stare decisis is probably best regarded as an aspect of a broaderqualification of the rule, namely, that courts are not bound to followdecisions reached per incuriam".
This is obviously because case-law cannot overrule statutory provisions laiddown by enactments of the Legislature.
From what has bean discussed regarding the relevant provisions of theLand Acquisition Act, it is clear that the attention of the Court that made thedecision in Messrs. Kurunegala Estates Limited v. The District Land Officer,Matale (supra) was not drawn to the fact that section 22(1) is in its presentform after substantial amendments to the original section 20(1). The contentand significance of these amendments have apparently not been argued at allor even placed before the Court. Nor does it seem that the relation of section16 to section 22(1) has been brought to the notice of the Court. There is nodoubt that but for these omissions, the Court would have decided the case inquestion differently. The decision in BR 3325/CL/834 — S.C. 1/75 decidedon 11.5.1977 merely followed the earlier decision in the Messrs. KurunegalaEstates Limited case (supra) without any critical discussion of it. Both thesedecisions have been given per incuriam and accordingly we are not bound bythem.
For the reasons I have given I hold that in this case there is non-compliance with the mandatory provisions of the Land Acquisition Act anderror on the face of the record.
Section 27 of the Act states that a decision of the Board shall be finaland shall not be called in question in any court except as provided in section28 by which a limited right of appeal only on certified questions of law ispermitted. Section 22 of the Interpretation Ordinance las amended by theInterpretation (Amendment) Act No. 18 of 1972) curtails our writ jurisdic-tion. Whenever any statute has the words "shall not be called in questionin any court" it would be open to this Court to issue a writ like a writ ofcertiorari or mandamus only on one or more of three grounds — 1
(1)The order, decision, determination, direction or finding has beenmade ex facie without jurisdiction or in excess of it.
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Sri Lanka Law Reports
(1978-79) 2 Sri L R.
There is non-compliance with mandatory provisions of law which area condition precedent to the making of the order, decision, deter-mination, direction or finding,
There is non-compliance with the principles of natural justice,
But these limitations will not apply in the instant case because a right ofappeal, although limited is provided to the Supreme Court (which by virtueof the provisions of Article 169(2) of the Constitution of 1978 means the Courtof Appeal). Accordingly certiorari will lie to quash the order of 30th January1978 because there is error on the face of the record and non-compliancewith mandatory provisions of law. Mandamus will lie because there is here afailurp on the part of the Board of Review to carry out a public duty imposedon it by law to hear the petitioner's appeal by section 22, 24 and 25 of theAct to compel compliance. As the Board of Review made the order in ques-tion because it felt itself bound by a judgment of the former Supreme Court,
I do not think it would be just to cast the respondents in costs.
Let both writs issue as prayed for but there will be no costs.
TAMBIAH, J.I agree.
Writs of certiorari and mandamus issued