016-SLLR-SLLR-2001-V-3-SUNIL-CHANDRA-KUMARA-v.-VELOO.pdf
SUNIL CHANDRA KUMARA
v.VELOO
COURT OF APPEALJAYASINGHE, J. •,
JAYAWICKREMA, J.
AMERATUNGA, J.
CA(PHC) 2/99HC 44/96
MARCH 1st. 2000.
JULY 28th, 2000.
OCTOBER 16™. 2000.
NOVEMBER 2nd, 2000.
Constitution – 13,h Amendment Art. 138. 145, 154, 154p(9)b, 154p4(b),154 p(6), High Court of the Provinces (Special Provisions Act) 19 of1990 – S. 3. 11(1), Agrarian Services Act S. 5.9 – Civil Procedure Code- S. 753 – Jurisdiction of Court of Appeal, to entertain an application inRevision from an order made by the High Court under Art. 154 p(4)b.
The Petitioner – Respondent filed application in the Provincial High Courtof the Central Province for an order quashing two quit notices served onthe Petitioner under the provisions of the Government Quarters Recoveryof Possession Act. It was the position of the Petitioner – Respondent, thatthe Respondent – Petitioner (Competent Authority) has no authority to issuethe quit notice as the estate had vested in a Public Company.
The Respondent – Petitioner took up the position that the estate is ownedby the J.E.D.B. and also that the Provincial High Court (PHC) of the CentralProvince (C.R) had no jurisdiction to issue a Writ of Certiorari in respectof the subject matter in terms of Art. 154p4(b). The High Court Judge,rejected the Preliminary Objection and allowed the Petitioner – Respondent’sapplication. Thereafter the Respondent-Petitioner (Competent Authority)moved in Revision.
It was contended by the Petitioner-Respondent that, the Court of Appealdid not have jurisdiction to entertain the application for Revision from anorder of the High Court under Art. 154(p)(4) and that from such ordersonly an appeal lay in terms of Art. 154p(6).
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Held :
1 – Appellate and Revisionary jurisdiction of the Court of Appeal is setout in Art. 138, the Appellate and Revisionary jurisdiction of the HighCourt of the Provinces is found in Art. 154 p(3) (b).
The power to issue Writs are provided in Art. 154p(4). S. 11(1) of theHigh Court of the Provinces (Special Provisions) Act 19 of 1990.expressly recognizes the Appellate and Revisionary jurisdiction ofthe Court of Appeal over the orders of the High Court.'
Conceptually the expression Appellate jurisdiction included powersin appeal and Revision, yet such power is subject to the provisions ofthe Constitution or of any law.
Per Jayasinghe. J.
“Revision is a discretionary remedy, it is not available as of right.This power that flows from Art. 138 is exercised by the Court of Appeal,on application made by a party aggrieved or ex mero motu. this poweris available even where there is no right of appeal.
The Petitioner in a Revision application only seeks the indulgence ofCourt to remedy a miscarriage of justice. He does not assert it as aright. Revision is available unless it is restricted by the constitutionor any other law."
S. 753 of the Civil Procedure Code and S. 364 of the Code of CriminalProcedure confer power on the Court of Appeal to call for the records,these sections cannot be construed as provisions which confer rightson parties to make Revision Applications. The Supreme Court rulesset out the procedure for making Revision applications.
APPLICATION in Revision from the Order of the Provincial High Court
of the Central Province.
Cases referred to :
Martin v. Wijewardena – 1989 2 Sri LR 40.
Malegoda u. Joachim – 1997 – 1 Sri LR 88.
Thameena v. Koch – 72 NLR 192.
Sri Lanka Broadcasting Corporation u. De Silva – 1981 2 SLR 228.
Guanaratne v. Thambinayagam – 1993 2 Sri LR 359.
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Sunil Chandra Kumara u. Veloo
(Jayaslnqhe, J.)
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Mariam Bee Bee v. Seyed Mohamed – 68 NLR 36.
Abeygunawardena v. Setunga – 1997 – 1 Sri LR 67.
Weragama v. Eksath Lanka Wathu Kamkaru Samithiya – 1984 1 SLR293.
Somawathie v. Madawela – 1983 – 2 SLR 15.
Attorney General v. Podi Singho – 51 NLR 388.
Potman V. 1. R Dodangoda – 74 NLR 115.
R. K. W. Gunasekera with Ms. Shiranthi Jayatilake for Petitioner.
Anil Silva for Respondents.
Cur. ado. vult.
May 31, 2001.
JAYASINGHE. J.The Petitioner-Respondent hereinafter referred to as thepetitioner filed application in the Provincial High Court of theCentral Province among other things for an order quashing thequit notice served on the Petitioner by the Respondent-Petitionerhereinafter referred to as the Respondent under the provisionsof tlie Government Quarters Recovery of Possession Act No. 7 of1969 as amended requiring him to deliver vacant possessionof the Estate Quarters occupied by the Petitioner at UpperDivision Ragalla Estate, Halgranoya. In his application to theHigh Court the Petitioner took up the objection that theRespondent had no authority to issue the quit notice under theGovernment Quarters Recovery of Possession Act, since theManagement of the Ragalla Estate had vested in the MaturataPlantations Ltd., a Public Company under an order publishedin the Government Gazette No. 720/2 of 22.06.1992; thePetitioner also prayed for an interim order staying action underthe quit notice. The Respondent in his objections took up theposition that Ragalla Estate is owned by the Janatha EstatesDevelopment Board and that it was only the management ofthe Estate that was vested with the Maturata Plantations interms of the Gazette Notification 720/2 and accordingly theRespondent as the Competent Authority of the Plantation
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Reform Project of the Ministry of Plantations Industries had theauthority to issue the quit notice. The Respondent also took upthe position that the Provincial High Court of the CentralProvince had no jurisdiction to issue a writ of certiorari in respectof the subject matter in terms of Article 154 P(4) (b) of theConstitution; that the High Court had no jurisdiction to grantinterim relief staying proceedings under the said quit notice.The Respondent in its written submissions also took up theposition that Article 154 P(4) (b) of the Constitution enablesCourt to issue writs only in respect of any matter set out in theProvincial Council List: that while land as a subject is includedin the Provincial Council List under item 18 of the List, it issubject to the restrictions in appendix 11. that appendix 11provides that State land shall continue to vest in the Republic;that in terms of item 1 of Appendix II sub item 1.3 it is clearlystated that alienation or disposition of State land within aProvince shall be by the President; that the ownership of theRagalla Estate was never transferred to Maturata Plantations.Hence the ownership is with the State.
The learned High Court Judge by his order dated05.11.1997 rejected the preliminary objection of the Respondentand allowed the Petitioner s application and set aside the quitnotice issued by the Respondent.
Being aggrieved by the order of the learned High Court Judgeof the Central Province the Respondent moved in Revision.
When this matter was taken up before this Court, apreliminary objection was taken that the Court of Appeal didnot have jurisdiction to entertain an application for Revisionfrom an order of the High Court made under Article 154 P (4):that from such orders only an appeal lay in terms of Article 154P(6). Accordingly two matters came up for determination beforethis Court –
(i) Does the Petitioner have a right to move the Court of Appeal
by way of Revision against an order made by a Provincial
High Court made under Article 154 P (4) (b).
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(ii) Are the quarters provided to the Respondent State land andwhether the Respondent was entitled to seek ejectment ofthe Petitioner in terms of a quit notice under GovernmentQuarters Recovery of Possession Act No. 7 of 1969 asamended.
Before dealing with the question whether – the ejectmentsought from the premises occupied by the Respondent is Stateland it is convenient to dispose of the preliminary objectionraised by the Respondent whether the Respondent-Petitioneris entitled to invoke the revisionary jurisdiction of this Court interms of Article 138 read with 154 P (6) of the Constitution.
While appellate and revisionary jurisdiction of the Court ofAppeal is set out in Article 138 the appellate and revisionaryjurisdiction of the High Court of the Provinces is found in Article154 P (3) (b).
Article 138 (1) provides that;
“The Court of Appeal shall have and exercise subject to theprovisions of the Constitution or of any law. an appellatejurisdiction for the correction of all errors in fact or in lawwhich shall be committed by the High Court, in the exerciseof its appellate or original jurisdiction or by any court ofFirst Instance, tribunal or other institution and sole andexclusive cognizance byway of appeal, revision and restitutioin integrum of all causes, suits, actions, prosecutions,matters and things of which such High Court, Court of FirstInstance tribunal or other institution may have takencognizance.
Article 154 P (3) (b) provides that;
"Every High Court shall – notwithstanding anything in Article138 and subject to any law exercise appellate andrevisionary jurisdiction in respect of convictions, sentencesand orders entered or imposed by Magistrate's Courts andPrimary Courts within the Province."
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The power to issue writs are provided in Article 154 P (4).
Article 154 P (4) (b) provides that;
“Every such High Courts shall have jurisdiction to issueaccording to law –
orders in the nature of habeas corpus, in respect of personsillegally detained within the Province: and
orders in the nature of writs of certiorari, prohibition,procedendo mandamus and quo warranto against anyperson exercising, within the Province any power under –
any law; or
any statutes made by the Provincial Council established forthat Province in respect of any matter set out in the ProvincialCouncil List."
The main contention of Mr. Anil Silva was that the right of
appeal or revision must be specially provided for. In Martin v.
Wijeywardena111 Jameel, J. having set out the provisions of
Article 138 observed that;
"Article 138 is an enabling provision which create and grantjurisdiction to the Court of Appeal to hear appeals fromCourts of first instance, tribunals and other institutions. Itdefines and delineates the jurisdiction of the Court ofAppeal. It does not, nor indeed does it seek to create orgrant rights to individual viz-a-viz appeals. It only deals withthe jurisdiction of the Court of Appeal and its limitationsand nothing more. It does not expressly nor by implication
create or grant any rights in respect of individualsArticle
138 is only an enabling Article and it confers the jurisdictionto hear and determine appeals to the Court of Appeal. Theright to avail of or to take advantage of the jurisdiction isgoverned by several statutory provisions in various legislativeenactments.”
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G. P S. de Silva, C. J. in Malegoda v. Joachim121 referring tothe reasoning of Jameel, J. observed that;
“this reasoning would apply with equal force to confermentof jurisdiction of the High Court established by Article154 P."
In Malegoda v. Joachim (Supra) it was held further thatArticle 154 P (3) (b) of the Constitution only conferred forumjurisdiction to hear appeals but does not create a correspondingright in any person to invoke the appellate jurisdiction. Right ofappeal is a statutory right and must be expressly created andgranted by Statute.
Mr. Silva argued that similarly the right to invoke therevisionary jurisdiction of the Court of Appeal must also bespecifically provided. He submitted that in Thameena u. Koch131the appellant filed an appeal against the order of the LabourTribunal to the Supreme Court. At the hearing an objection wasraised that the appeal was out of time. At that stage Counsel forthe appellant invited Court to exercise the revisionary powersof the Supreme Court. Tennakoon, J. (as he was then) heldthat the revisionary powers of the Supreme Court did not extendto orders made by labour Tribunals and the appeal wasaccordingly rejected. In Sri Lanka Broadcasting Corporationv. De Silva141 Victor Perera, J. observed that;
“The Industrial Disputes Law have provided only for anappeal on a question of law but not for application forrevision. On the other hand the Civil Procedure Code inSection 753 provides for application by way of revision inaddition to the right of appeal in all civil cases in the DistrictCourt. Sections 364 and 366 of the Code of CriminalProcedure Act No. 15 of 1979 has given this Court power toact by way of revision in criminal cases. A consideration ofthe next following articles of the Constitution indicate thatthe correct construction and application of the powersreferred to in Article 138. Article 139 deals with exercise of
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powers of this Court in appeal from an order, judgment,sentence of a Court of first instance, tribunals or otherinstitutions. Article 140 has granted the Court of Appealfull power and authority to call for and inspect the recordsof any court of first instance or tribunal or other institutionin the exercise of its power to issue writs. But in regard tothe exercise of its revisionary powers, the Court of Appealhad been given the power to call for and inspect any recordof any court first instance only and not the records oftribunal and other institutions. This would therefore excludethe examination of the record in a Labour Tribunal by wayof Revision.”
Mr. Anil Silva also invited the attention of Court to Article145 of the Constitution which provides for the inspection ofrecords of any court of first instance in the exercise of revisionarypowers in the interest of justice may require. He submitted thateventhough Article 138 was amended by the 13th Amendmentto the Constitution and no corresponding amendment was madeto Article 145. Therefore he argued that relying on Sri LankaBroadcasting Corporation v. De Silva (Supra) the Court ofAppeal cannot call for and inspect a record of a Provincial HighCourt. Accordingly the Court of Appeal cannot revise an ordermade by a Provincial High Court. There are limitations placedon the revisionary jurisdiction of the Court of Appeal.
Article 154 P (6) provides that;
“Subject-to the provisions of the Constitution and any law,any person aggrieved by a final order, judgment or sentenceof any such Court in the exercise of its jurisdiction under• Paragraph 3(b) or 3(c) or 4, may appeal therefrom to theCourt of Appeal in accordance with Article 138.”
An examination of Article 154 P (6) would show that it onlyprovides for an appeal to the Court of Appeal.
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In Gunaratne v. Thamblnayagam'5’ Kulatunga, J. statedthat;
“The learned Counsel for the Petitioner submitted thatparticularly in the background of legislative provisionsexisting prior to the 13th amendment (viz the CourtsOrdinance, the Administration of Justice Law, Article 138of the Constitution and the relevant Statutes on Civil andCriminal Procedure), the expression “appellate jurisdiction”(as opposed to “original jurisdiction”) would ordinarilyinclude the power to review decisions by way of appeal,revision or restitutio in integrum; that Article 154 P (3) (b)enacted by 13th amendment vested “appellate jurisdiction”in the High Court limited to appeal and revision of thedecisions of the Magistrate’s Courts and Primary Courts;that Section 3 of Act No. 19 of 1990 extended the exerciseof such jurisdiction to orders made by Labour Tribunalsand orders made under Section 5 and 9 of the AgrarianServices Act No. 58 of 1979; and that in the context theexpression the “appellate jurisdiction" in Section 9 of theAct should not be limited to an appeal made “eo nomine”but should be interpreted to include the power of review byway of revision.”
It was also argued in Gunaratne u. Thambinayagam(Supra) by the Counsel for the Respondent that;
whilst "appellate jurisdiction" would conceptually includeappeal and revision, yet the power of revision is distinctfrom “appellate j urisdiction. ”
Counsel relied on a dicta of Sansoni, C. J. where HisLordship observed in Mariam Beebee v. Seyed Mohammed161that -,
“The power of revision is an extra ordinary power which isquite independent of and distinct from the appellatejurisdiction of the Court. Its object is the due administrationof the justice and the correction of errors, some times
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committed by this Court itself, in order to avoid miscarriageof justice."
The Counsel relying on Thameena v. Koch (Supra) submittedthat “prior to the enactment of Section 3 of Act No. 19 of1990 the remedy by way of Revision was not available againstthe order of the Labour Tribunal. and that the right of appealis a statutory right and must be expressly created andgranted by statute. It was contended by Counsel inGunaratne u. Thambinayagam (Supra) that Section 9 doesnot give the Appellant a right of appeal to the Supreme Courtfrom an order of the High Court in the exercise of therevisionary jurisdiction and in contrast Section 31 (b) ofthe Industrial Disputes Act as amended by Act No. 32 of1990 provided that: “that any workmen, trade union oremployer who is aggrieved by any final order of a High Courtestablished under Article 154 P of the Constitution, in theexercise of the appellate jurisdiction vested in it by law or inthe exercise of its revisionary jurisdiction by law in relationto an order of a Labour Tribunal may appeal therefrom tothe Supreme Court with the leave of the High Court or theSupreme Court first had and obtained."
Kulatunga, J. observed that: "he has no difficulty in acceptingthe submission, that Section 9 imposes such a limitation.Section 9 of the Act and the Authorities would not permitthe conferment of the right of appeal in respect of revisionaryorders of the High Court."
In Abeygoonasekara u. Setunga171 Kulatunga, J. observedthat;
"Conceptually the expression appellate jurisdiction includespowers in appeal and revision."
Kulatunge, J. observed further that:
“Article 154 P (6) itself has not limited the right of appeal
given by it to orders made by the High Court by way of appeal.
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However that article refers back to Article 138 which spellsout the jurisdiction of the Court of Appeal and the mannerof its exercise.”
It can therefore be stated that this reasoning applies to therevisionary jurisdiction of this Court as well. Even thoughconceptually the expression appellate jurisdiction includespowers of appeal and revision yet such power is subject to theprovisions of the Constitution or of any law. There can belimitations. In Weragama v. Eksath Lanka Wathu KamkaruSamithlya181 Mark Fernando, J. took the view that “thejurisdiction of the Court of Appeal is not an entrenchedjurisdiction because Article 138 provides that it is subject toprovisions of any law. Hence it was always constitutionallypermissible for that jurisdiction to be reduced or transferred byordinary law….”
The matter presently before Court for determination iswhether the Court of Appeal in the exercise of its appellatepowers could sit in revision in respect of an order made by theProvincial High Court. Mr. Gunasekera submitted that Section11(1) of the High Court of the Provinces (Special Provisions)Act No. 19 of 1990 expressly recognizes the appellate andrevisionary jurisdiction of the Court of Appeal over orders of theHigh Court.
Section 11(1) of Act No. 19 of 1990 provides that;
“The Court of Appeal shall have and exercise subject to theprovisions of this Act or any other law. An appellatejurisdiction for the correction of all errors in fact or in lawwhich shall be committed by any High Court establishedby Article 154 P of the Constitution in the exercise of itsjurisdiction under Paragraphs (3) (a) or (4) of Article 154 Pof the Constitution and sole and exclusive, Cognizance byway of appeal, revision and restitutio in integrum of allcauses, suits, actions, prosecutions, matters and things ofwhich such High Court may have taken Congnizance.
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Article 154 P (6) provides that;
“any person aggrieved by a final order, judgment or sentenceof any such Court in the exercise of its jurisdiction underpara 3 (b), 3 (c) or 4 may appeal therefrom to the Court ofAppeal.”
The argument presented to Court by Mr. Anil Silva insupport of his contention that this Court did not havejurisdiction to entertain an application for Revision from an orderof the High Court made under Article 154 P (4) was on thebasis that Article 154 P (6) only provides for an appeal to theCourt of Appeal and in the absence of any reference torevisionary jurisdiction in the said article, revision was excludedby implication. His argument was based on the proposition thatappeal or Revision must be specially provided for and in termsof Article 154 P (6) only appeal is provided. In Abeygoonasekarav. Setunge (Supra) Kulatunge. J. accepted the contention thatconceptually the expression appellate jurisdiction includespowers in appeal and Revision and this principal was formulatedby Sansoni, J. in Mariam Beebee (Supra). In Somawathie v.Madawala191 Soza, J. cited with approval the dicta of Sansoni,C. J. in Mariam Beebee that Revision was available for the
“due administration of justice and the correction of errors
committedin order to avoid miscarriage of justice."
In Attorney General u. Podisingho1'01 Dias, J. stated thatthis power [(Revision) (which is a discretion)] is exercised “wherethere is a positive miscarriage of justice in regard either to thelaw or to the judges appreciation of the facts."
“this power is not limited to cases where there is no
appeal, and that it is wide enough to embrace a case where anappeal lay but which for some reason was not taken." Thispower is so wide that Revision is available even after the appealhas been disposed of Potman u. I. P. Dodangoda1"1.
Revision is a descretionary remedy; it is not available as ofright. This power that flows from Article 138 of the Constitution
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is exercised by this Court on application made by a partyaggrieved or ex mero motu; this power is available even wherethere is no right of appeal as for instance Section 74 (2) of thePrimary Courts Procedure Act. The Petitioner in a Revisionapplication only seeks the indulgence of Court to remedy amiscarriage of justice. He does not assert it as a right. Revisionis available unless it is restricted by the constitution or any otherlaw. I am unable to see any such impediment as observed byMark Fernando, J. in Weragama (Supra).
It is also relevant to mention that the reasoning of Thaminav. Koch (Supra) has no application and no analogy can be drawnfrom the observations of Tennakoon, J. for the reason thatLabour Tribunal is not a Court.
Mr. Anil Silva submitted that Section 753 of the CivilProcedure Code and Section 364 of the Code of CriminalProcedure Act No. 15 of 1979 confer upon a party a right tomake an application by way of revision. His contention was thatthe absence of a similar provision in respect of orders made byProvincial High Courts under Articles 154 P 3 (b), 3 (c) or (4)is an indication that revision is not available against such orders.
We are unable to agree with this submission. Section 753of the Civil Procedure Code and Section 364 of the CriminalProcedure Code confer power on the Court of Appeal to call forthe records of the District Courts and Magistrate’s Courts. ThoseSections cannot be construed as provisions which confer rightson parties to make revision application. The Supreme CourtRules sets out the procedure for making revision applications.When an application is made in accordance with the Rule, theCourt of Appeal can exercise its revisionary jurisdiction evenwithout calling for the record.
Mr. Gunasekera submitted that an appeal has been filed interms of the Court of Appeal (Procedure for Appeals from HighCourts) Rules and the appeal is pending. He submitted that theensuing delay in the matter coming up for argument before this
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Court is an exceptional circumstances why the petitioner isseeking the indulgence of Court to act in Revision.
Mr. Gunasekera's argument that Section 11(1) recognizesthe appellate and revisionary jurisdiction of the Court of Appealin respect of orders made by the Provincial High Court is valid.In the absence of any provision limiting the revisionaryjurisdiction of this Court the preliminary objection of thePetitioner-Respondent must fail. The preliminary objection isaccordingly overruled.
Registrar is directed to fix this matter for argument on themerits on a date convenient to Counsel. Since an importantquestion of law was involved 1 make no order for costs.
JAYAWICKRAMA, J. 1 agree.
AMARATUNGE, J. – I agree.
Preliminary objection overruled.
Matter fixed for argument