Ratnayake v. De Silva
COURT OF APPEAL.
A. NO. 15/93 (F)
C. ANURADHAPURA NO. 14087/L.
JUNE 22. 1998.
JULY 21. 1998.
AUGUST 24, 1998.
Lease – Lease of land by North-Central Provincial Council – Validity – Shouldit be notarially attested? – Prevention of Frauds Ordinance S. 2, 17 – ProvincialCouncils (Consequential Provisions) Act S. 2 (1) – State land – Provincial CouncilList.
Plaintiff-appellant instituted action seeking a declaration that the plaintiff is thelessee of the corpus. The defendant-respondent filed answer seeking a dismissalof the action on the basis that, the document (P1) upon which the plaintiff isclaiming title is of no force in law. The plaintiff-appellant's action was dismissed.
1. Document (PI) does not purport to be made by or under the hand ofthe President as required by section 1 (3) of the Appendix II of theConstitution and therefore, is not a valid conveyance.
APPEAL from the judgment of the District Court of Anuradhapura.
Faiz Musthapha, PC with Sanjeewa Jayawardena for the plaintiff-petitioner.
N. R. M. Daluwatte, PC with S. C. B. Walgampaya for defendant-respondent.
Cur. adv. vult.
Sri Lanka Law Reports
H999] 3 Sri LR.
November 04, 1998.
The plaintiff instituted action in the District Court of Anuradhapura fora declaration that the plaintiff is the lessee of the allotment describedin the schedule to the plaint; for the ejectment of the defendant andhis agents from the said allotment; a permanent or an interim injunctionrestraining the defendant from proceeding with the building construc-tion until the disposal of the action before Court and for costs. Thedefendant filed answer seeking the dismissal of the plaintiff's actionon the basis that P1 upon which the plaintiff is claiming title is ofno force in law; for damages in a sum of Rs. 100,000 consequentupon the restraining order and for costs.
After trial the learned District Judge dismissed the plaintiffs actionon 20.01.1993. This appeal is from the judgment of the said learnedDistrict Judge.
It was the contention of the defendant that P1 upon which theplaintiff was granted the lease by the North-Central Provincial Councilwas a nullity or had no force in law in that it had not been notariallyattested as required by section 2 of the Prevention of Frauds Ordi-nance. Mr. Daluwatte submitted that whatever the rights the plaintiffderived to the land was upon P1 and if P1 is held to be of no forcein law then the plaintiff's action must necessarily fail. He stated thatthe plaintiff in order to succeed should establish that the land belongsto the North-Central Provincial Council; that the officer who purportedto execute P1 had the power and authority to do so; that all theformalities prescribed by law for the due execution of the instrumentaffecting land had been followed. It would at this stage suffice toconsider the validity of the document P1 for the determination of theappeal presently before this Court.
Mr. Jayawardena submitted that no such notarial execution isnecessary in respect of P1 in view of section 17 of the Preventionof Frauds Ordinance. He argued that Provincial Councils are caught
Ratnayake v. De Silva (Jayasinghe, J.)
up in the expression "Government" and therefore if P1 granted to theappellant had been issued by or under the authority of the North-Central Provincial Council, then section 2 of the Prevention of FraudsOrdinance has no application in view of the operation of section 17.Mr. Jayawardena submitted that a perusal of the Provincial CouncilList of the Thirteenth Amendment to the Constitution will demonstratethat a very extensive list of subjects have been devolved on theProvincial Councils and that the Government in respect of any provincewill be the collective authority which effects all aspects of governanceand that the Central Government and the Provincial Government isa cumulative and collective entity that respresents government. Thisargument though for the purposes of the present case is academic,to my mind negates the concept of devolution. However, accordingto the 9th schedule, i.e. the Provincial Council List, Provincial Councilshave been vested with the authority to deal with land. According toitem 18 land under the said schedule has been described as:
Land, i.e. to say rights in or over land, land tenure, transfer andalienation of land, land use, land settlement and land improvementto the extent set out in appendix II.
Appendix II is as follows:
State land shall continue to vest in the Republic and may bedisposed of in accordance with Article 33 (d) and written law governingthe matter.
Subject as aforesaid, land shall be a Provincial Council subject,subject to the following special provisions:
1 : 1 State Land required for the purposes of the Government ina province, in respect of a reserved or concurrent subject may beutilised by the Government in accordance with the laws governing thematter. The Government shall consult the relevant Provincial Councilwith regard to the utilisation of such land in respect of such subject.
Sri Lanka Law Reports
 3 Sri LR.
1 : 2 Government shall make available to every Provincial CouncilState land within the province required by such council for a ProvincialCouncil subject. The Provincial Council shall administer, control andutilise such State land, in accordance with the laws and statutesgoverning the matter.
1 : 3 Alienation or disposition of the State land within a provinceto any citizen or to any organisation shall be by the President, onthe advice of the relevant Provincial Council, in accordance with thelaws governing the matter.
Mr. Daluwatte conceded that section 2 of the Prevention of FraudsOrdinance does not apply to sales, grants, etc. of land belonging tothe State; various enactments dealing with land have prescribedprocedure for disposition of State lands. For eg. State Land Ordinance,Land Development Ordinance, etc. State land can be alienated bythe relevant authority in accordance with the procedure laid down ineach statue. Mr. Daluwatte argued that P1 does not on the face ofit state under what statute the alienation or disposition is made.Hence, he attacked the validity of P5.
Mr. Daluwatte also submitted that Rajaneththi who purported to signP1 had no authority to do so. Section 2 (1) of the Provincial Councils(Consequential Provisions) Act provides that:
Where any power or function is conferred on, or assigned to aMinister or to a public officer, as the case may be, by any writtenlaw made prior to November 14, 1987, on any matter set out in List1 of the Ninth Schedule, such power or function may, . . .
if such power or function is conferred on, or assigned toa Minister, be exercised or discharged, in relation to aprovince and unless the context otherwise requires, by theGovernor of that province or the Minister of the Board ofMinisters of that province to whom the subject has beenassigned; and accordingly, references in every such written
Ratnayake v. De Silva (Jayasinghe, J.)
law to a Minister shall be deemed to include references toa Governor of a province or the Minister of the Board ofMinisters of such province to whom the function has beenassigned; and
if such power or function is conferred on, or assigned to,a public officer, be exercised or discharged, in relation toa province and unless the context otherwise requires, bythe officer of the provincial public service holding an officecorresponding to the office held by such public officer; andaccordingly, references in every such written law to a publicofficer shall be deemed to include a reference to the officerof the provincial public service who holds an office corre-sponding to the office held by such public officer.
There was no evidence placed before Court that Rajaneththi wasconferred with the powers he had sought to exercise.
Mr. Daluwatte, submitted that PI does not purport to be made byor under the hand of the President as required by section 1 : 3 ofthe appendix II of the Constitution and therefore is not a valid conveyanceand is of no force or avail in law. This submission cannot be assailed.
The defendant in his answer took up the position that the defendanthad entered into an agreement with the Anuradhapura Urban Councilfor the restoration of a canal and produced marked D1 the saidagreement. The defendant raised an issue as regards damages heis entitled to as a result of the plaintiff obtaining a restraining order.However, no evidence was placed before Court regarding the quantumof damages and he has not preferred an appeal on the failure ofthe trial Judge to go into the question of damages and it is unnecessaryto consider this aspect. For the reasons stated above the appeal isdismissed with costs fixed at Rs. 2,100.
EDUSSURIYA, J. – I agree.