028-SLLR-SLLR-1982-2-SENANAYAKE-v.-DAMUNUPOLA.pdf
sc
Handaranaike i’. De Alwis ,uul Others tSunutrukoon. C.J.)
621
SENANAYAKE
v.
DAMUNUPOLA
SUPREME COURT
SHARVANANDA. J„ RATWATTE. J., AND VICTOR PERERA, J.
S.C. 10/82.
C.A. 2160/79.
AUGUST 8. 1982.
Writ of Certiorari – State Lands <Recovery of Possession) Act 7 of 1979, sections3(1), 9 – Land Surrey Ordinance, section 6 – Crown' Lands EncroachmentOrdinance, section 2, 7(c),
623,.;->=•• i.-jvii-Sri Lanka, ^Law Reports(J982) 2 S.L.R.
The petitioned wVsr the owner of premises No.23/8 Pansalawatta MulgampolaRoad, Kandy,,having inherited the property from one Reeves who owned andpossessed the, prppqrty by virtue,p{,^i.D,epd,of Transfer No.369 of 19.5.1908.
■ A- small portion of Jand in extent 4 perches and bearing Lot No. 8104 in PlanNo.,PP 2544 by the" Surveyor-General appears to have belonged to the State.
Two neighbours complained to the Government Agent who was the competentauthority under the State Lands (Recovery of Possession) Act No. 7 of 1979that the petitioner had encroached on the land by. building on:it.
The respondent issued notice on the petitioner requiring him to quit; Thepetitioner applied for a Writ of Certiorari to the Court of Appeal, which theyrefused. On appeal to the Supreme Court –
Held –
That'the State Lands (Recovery of Possession) Act was not meant to obtainpossession- -of'land: which the State had lost possession >. Of by encroachment orouster for. a considerable period of time.,by-ejecting a-person in such possession.Section } should not be used by a competent authority to eject a person whohas b^en; found by him to be in possession of a land where there is doubt
whether the State had title or where the possessor refiesfeH a long period of possession.
‘'-t v.t |• *'
Case'referred to:
.'H-
(1) Kiri Mudiyanse v. Attorney General (1947) 48 N.L.R. 438APPEAL from judgment of the Court of Appeal.—
Faiz Mustapha for the appellant.
Douglas Premaratne, D.S.G.,Jot the respondent.
Cur.adv.vult.
September 21, 1982.
VICTOR PERERA, J.
The appellant in this case had filed an application on the 31stDecember 1979 in the Court of Appeal for a Mandate in the natureof a Wri^ef’Certiorari to quash a Notice dhfet) 29th ftovemtjer 1979issued by the Government Agent, Kandy, the respondent, purportingto act as the Competent Authority under section 3(1). of the StateLands (Recovery of Possession) Act No.7 of 1979 requiring theappellant to quit>‘art"extent of land in exteiit 4"|ierches'described inthe SclieSiile'to'the’ Notice oh or before the 31st December 1979.The Court of Appeal by its order dated 12. 2. 1982 refused to issuethe Writ and ordered the appellant to pay costs to the respondent.
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Scnanayake v. DamitnupoUt (I'ttlnr I’rn-ra, 1.)
623
The appellant having obtained leave from the Court of Appealhas preferred this appeal to this Court against the said order.
At the hearing before us, it was submitted on behalf of the appellantthat the extent of land covered by the notice to quit included partof his residential house and land called Pansalwatte bearing assessmentNo. 23/8, Mulgampola Road. Kandy. It was his case that the saidportion was part and parcel of a land called Pansalwatte at one timeowned and possessed by one M.H. Reeves by right of purchase onDeed No. 369 dated 19th May 1908, that he had succeeded'Ito, theinterests of the said M.H. Reeves by inheritance and that'he hadbeen living in'the house on that land from the date of his'birth(10th March 1924). He produced with his application the original ofa Plan dated 14th March 1912 made by R. Spencer, Licensed Surveyor(PI) in which the house that existed on that date is depicted. Healso produced the original of a Plan No. 1288 dated 1st September1940 made by jiC.S. Misso, Licensed Surveyor, (P2) for the sameland called Pansalwatte in which is depicted the said house with theextensions made thereafter. He also produced the original of a PlanNo. 1951 dated 31st May 1967 (P3) which shows the same land andbuilding. In his application he has pleaded that he had obtained therequisite approval under the provisions of the Housing and TownImprovement Ordinance and effected1 the necessary additions andrenovations to the building. He alleged that though he and hispredecessors in title had possessed "the same for over 65 years thisNotice had been issued on him at the instance of the adjoiningowners who had brought pressure on the Government Agent andnot in furtherance.of any specific requirement of the State. •
The respondent has filed an affidavit dated 12th June 1980 inopposition to this application. He admitted that in or about 197Jcomplaints had been received by the' then Government Agent fromL.B. Kalugamana and E.S. Reeves that the petitioner had encroachedupon State land and had erected buildings thereon. This was evidencedby a letter sent by them to the then Government Agent dated 2ndNovember 1971- (R2). The contents of that letter support the claimof the appellant that he had constructed the house with the permissionobtained from the Municipal Council, Kandy. It is therefore evidentthat the inquiry was initiated on the receipt of this letter and thatthe Government Agent , took steps to ascertain whether . State landhad been encroached Upon. The Government Agent referred thisletter to a Kachcheri Surveyor and the latter had submitted a reportdated 6.01.72 (R3) and a Sketch (R4). According to his Report he
624
Sri Lanka Law Reports
(1982) 2 S.L.R.
has stated that Lot 8104 in P.P. 2S44 was a Crown land in thepossession of M.B. Senanayake the appellant and that it appearedthat the house had encroached upon the land and that a retainingwall too^iad been built on this land. The sketch shows the locationof the bouse, the parapet wall and a stream. He had also superimposedon Plan No. 2147 filed in the District Court case No. 737, Kandy,the reference to that Plan being suggestive of some litigation in theDistrict Court of Kandy. The Divisional Revenue Officer too hadmade a report dated 8.02.72 (R5). This Report purports to statethat Lot 8104 in P.P. 2544 was a reservation for a public road, that
M.B. Senanayake the present appellant had put up a large houseconsisting of three rooms 10 feet by 8 feet and a retaining wall 5feet high,'l foot wide and 20 feet long with the approval of theMunicipal Council, Kandy. It would appear from the document (R6)that the Government Agent had informed the appellant that he hadencroached upon this land and called upon him to vacate the samewithin a month as far back as January 1972.
Thereafter this matter had been in abeyance for nearly 5 years.In 1977 a surveyor from the Survey General’s Department had madea Plan No. 1614 dated 26.01.77 (R7) showing the location of thebuilding occupied by the appellant according to the informationsupplied to him by the Grama Sevaka of the area. He had notsurveyed the entire land claimed by the appellant but had shown aportion of Lot 8104 in his Plan in dotted lines. In a tenement listattached to this Plan (R8j he described the land as Pansalwatta beingpremises No. 23/8, Mulgampola Road, containing part of a permanentbuilding, with a note in the remarks column ‘to be vested in theMunicipal Council.’ This was followed up by a letter dated 26.07.78(R6) from the respondent which reads as follows:-
“Lot 8104 in Plan bearing No.P.P. 2544 .is a Crown Land. TheMulgampola Road, runs over this land. According to inquiriesit has been revealed that you have constructed a retaining wallwith a view to construct a house across this land therebyobstructing this road.
In this regard I have notified you by my letter L/7/1/1925 dated12.01.72 to hand over peaceful possession of the land within acalendar month of my letter but you have failed to do so.
In these circumstances, you are hereby informed again to removeall the improvements you have effected on the land to peacefullyhand over the land within one month. Should you fail to handover this land to the State, legal action will be taken against you. ”
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Senanayake r. Damunupnlu (hior t’crcra. J.)
625
It is quite clear from all the documents produced that the MulgampolaRoad does not run over the land, that no road had been in factobstructed and that there is no road reservation. The GovernmentAgent took no action in regard to this complaint of encroachmenton a land claimed to be State land.
The respondent also relied on and produced a copy of PreliminaryPlan No. 2544 dated 10th November 1880 made by the SurveyorGeneral (Rl). It shows 15 allotments of land bearing serial Nos.8091 – 8106. There is no statement in this Plan that these lots formedparts of any road reservation or that it was land that belonged tothe Crown at that date. No Tenement Sheet or Gazette showingthat these lands were road reservations or State land have been produced.
' The Plan (R) purports to have been signed by the Surveyor Generalbut on the plan apart from the numbers given to each lot, there isno entry made in regard to any other fact. The provisions of section6 of the Land Survey Ordinance (Chap. 316) are as follows:-
“(6) If any Plan or survey offered in evidence in any suit shallpurport to be signed by the Survey-General or officer actingon his behalf, such Plan or survey shall be received inevidence and may be taken to be prima facie proof of thefacts exhibited therein, and it shall not be necessary toprove' that it was in fact signed by the Survey General orOfficer acting on his behalf, nor that it was made by. hisauthority, nor that the same is accurate, until evidence tothe contrary shall have first been given.”
The Plan would be prima facie proof of the facts established therein. and nothing more. This is as clearly set out in the judgment of theSupreme Court in Kiri Mudiyanse vs. The Attorney-General (1). Atthe argument before us the Deputy Solicitor General frankly concededthat this document did not prove or establish that the lots includinglot 8014 now in dispute were road reservations or lands belongingto the State.
However, on a closer examination of this Plan (Rl) there areendorsements made against all the lots except Lot 8014 that theyhad been sold from time to time between 1888 and 1895. This Planwas produced from the respondent’s custody and these entries mustbe presumed to have been officially made. It has to be noted alsothat in particular lots 8105 and 8106 which adjoin lot 8104 on theSouth-East, and lot 8103 which adjoins Lot 8104 on the North-Easthad been sold. The fact that all the lots except Lot 8014
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Sri Lanka Lap Reports-
(1982) 2 S L R.
sold at the time those entries were made indicated that all the lotsshown in Plan (Rl) were not road reservations. There is no indicationin any of the Plans produced that the .Mulgampola Road passesthrough this land or that any road had been obstructed.
In,.the light of,the aboye.facts it is quite clear that this action bythe respondent initiated as a sequel to the letter sent by E.S. Reevesand others on.2nd November 1971 (R2) was not for any Statepurpose. The observations of the Kachcheri Surveyor and the DivisionalRevenue. Officer, and the contents of the letters of the GovernmentAgent dated 27.06.78 (R3 -R8) do not conclusively establish that theland belonged to the State. There is a serious doubt whether thesaid land belonged to the State or whether it had vested in theMunicipal Council of Kandy by virtue pf section 35 of the MunicipalCouncils Ordinance (Chap. 252). To be regarded as a road reservationthe requirements in section 55 of the Crown Lands Ordinance (Chap.454) have to be established, and in the absence of the proof of suchthe respondent’s assertion that this was a road reservation does notmerit consideration.
However, the inquiries by the respondent in regard to the complaintmade by his predecessor in office or by him had been concluded in1978. The inquiries disclosed that the appellant had encroached uponthe land that was thought to be State land. A decision had beentaken to take legal action against the appellant in respect of thealleged encroachment. There was nothing to indicate that the appellanthad at any time been permitted or authorised to occupy this land.If anything the inquiries revealed'an alleged encroachment of State land.
The Crown Lands Encroachments Ordinance (Chap. 465) as amendedby Act No. 7 of 1954 has clearly provided for situations of thisnature. Section 2 provided that where there is-an alleged encroachmentof land where persons who having entered upon or taken possessionof land which belong to the Crown or which prior to entry or takingpossession, was in the possession, of the Crown, information of suchencroachment could be laid before the District Court. The DistrictCourt if satisfied that the persons against whom the information hadbeen laid had entered upon or taken possession of the land withoutthe permission of the Government could make an order for deliveryof possession. This Ordinance has provided a very summary pr speedyprocedure to eject such persons. However, section 7(c) of thisOrdinance permitted the rebuttal of the presumption that the landbelongs to the State on proof inter alia of uninterrupted possession
S(
627
Scnuntiyakc t Dcnutnupoic. i'n;or !nnt. J »
.. ./!*:. j’•.»,
for not less than 30 years. The State had not chosen to proceedunder this Ordinance to obtain a summary order from the..DistrictCourt for delivery of possession of the Jand on the basis, that theland belonged to the State and. had been encroached upon. Therespondent had decided to proceed under the newly enacted StateLands (Recovery of Possession), Ac,t No.,7 of .1974 without consideringits applicability or otherwise,,.to the facts established .at t^ie end ofhis inquiries.,,.v,
The State Lands (Recovery of Possession) Act No. 7 of 1979 cameinto force on 25th January 1979. It was amended by Act No. *58 of1981. This Act has not repeajed the Crown Lands EncroachmentOrdinance (Chap.465). It was enacted to make provision for therecovery of possesion of “State lands” as defined in the Act frompersons in unauthorised possession dr occupation thereof and mattersconnected therewith or incidental thereto. It is clear that this Actwas intended to obtain an order of ejectment from the Magistrate’sCourt where the occupation or possession was unauthorised.- Wherea person is authorised to occupy or possess State Land which1 includesbuildings, and where the authorisation has come to an end-or hasceased to be of -any force or effect, his occupation'or possessionbecomes unauthorised. This position is made clear by section- 9 whichprovides for the scope of the inquiry before the Magistrate and theonly plea a person, summoned could urge in defence:,
“9(1) At such inquiry the person on whom summons undersection 6 has been served shall not be entitled to contestany of the matters stated in the application under section5 except, that, such person may establish that Jte is inpossession or occupation of the land upon a valid, permitor other written authority of the State granted in accordancewith any written law and that such, permit or.authorityis in force and not revoked or otherwise rendered invalid.
It shall not be competent, to the Magistrate’s. Court tocall, for any evidence from the competent-authority insupport of the application under section 5”.
It is therefore necessary to examine the provisions of section 3 todetermine under what circumstances a competelnt authority couldserve a quit notice. It provides that when a competent authority isof opinion that any person is in unauthorised possession br occupationof State land- he may serve a notice. The opinion to’‘bC formed Is ■not whether the property is “State land", but whetHfei'ithb 6Ccupati^or possession of such “State land” as defined in the Act is '
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628
Sri Lanka Law Reports
(1982) 2 S.L.R.
"State land” has been defined in the Act as 'land to which the Stateis lawfully entitled or which may be disposed of by the State togetherwith any buildings. A Competent Authority could form such anopinion of such unauthorised possession or occupation on the basis-that an antecedent valid permit or written authority given had ceasedor had deemed to have ceased to be in force or had been revoked.The Act No.7 of 1979 as amended by Act No.58 of 1981 was intendedto recover or to get back the possession or occupation of such Stateland by initiating action under section 3. A purposive examinationaifd interpretation of this Law shows that it was enacted to get backpossession of State land which had'been given to a person on acontractual footing and where there was an obligation to vacate andgive up possession or occupation on the happening of some eventas a necessary consequence. This procedure could not be availed ofwhere it is not clear that the land in respect of which the right ortitle of the State was doubtful or in dispute. The provisions ofsections 12 and 13 no doubt provide that an action in vindicationor compensation could be filed against the State by a person ejectedclaiming to be the owner thereof.-But this does not mean that theState could act under this law in the circumstances such as havebeen established in this case. The provisions of section 17 of thisAct have protected the rights of the State as follows:-
"Provided that this Act shall not prejudice the State to proceedunder the provisions of any other law to recover possession ofany State land or" to establish title thereto or to claim anyrelief in respect of such land.”
The Court of Appeal was in error in taking the view that underthe Act No 7 of 1979 what a Competent Authority was required todo under section 3(1) was merely to form an opinion that the landis State land, that once it forms that opinion it is his duty to takenecessary steps under the Act to have a person in ‘unauthorisedoccupation’ ejected and to recover possession. Having formed thisview the Court of Appeal came to the erroneous finding that therespondent was justified in the course of action he had adopted.
The scope of the State Land (Recovery Possession) Act was toprovide a speedy or summary mode of getting back possession oroccupation of ‘State land’ as defined in the Act, where there wasnot subsisting at the relevant date, in the opinion of the CompetentAuthority, a valid permit or authority. It was not meant to obtainpossession of land which the State had lost possession of by encroachment
VCSenunavuke r. liunumufHtlu <'iclt>i I’crcra, J.i629
or ouster for a considerable period of time by ejecting a person insuch possession. Section 3 of this Law should not be used by aCompetent Authority to eject a person who has been found by himto be in possession of a land in circumstances such as have transpiredin this case.
I therefore set aside the order of the Court of Appeal and directthat the Writ applied for be issued. The appellant will be entitledto costs in this Court and in the Court of Appeal.
SHARVANANDA, J. — I agree.
RATWATTE, J. — I agree.
Appeal allowed.