Trustees of the Sir Mohamed Macan Markar Trust v Fernando 353
and another (Abeyratne, J.)
TRUSTEES OP THE SIR MOHAMED MACAN MARKAR TRUSTv
FERNANDO AND ANOTHERCOURT OF APPEALNANAYAKKARA, J .
C.A.(PHC) 2/97CA(APN) 10/97M.C. FORT 26206NOVEMBER 25, 2003MARCH 30, 2004
Urban Development Authority Act ,17 of 1979 – Section 8, section 28A(1)- Notice – Imperative and should be in unambiguous terms – Delegationof power – Regularity of performance of official acts.
The High Court set aside the Order of the Magistrates Court on the basis thatthe Notice under section 28 (A) 1 was ambiguous and the authority had notbeen properly delegated to institute action. The demolition order issued by theMagistrate’s Court was reversed by the High Court.
I) The Notice under section 28(A) 1 stating that at a place bearingassessment No. 25 an unauthorised structure has been put up is notambiguous.
ii) There is a presumption in law as to the regularity of the performance ofofficial acts.
APPLICATION by way of Revision/an appeal from the Order of the High Courtof Colombo.
Lakshman de Alwis with Ms Nilanthi Perera for Intervenient respondent-petitioner.
Channa Nilanduwa for applicant-respondentsRamani Livera for 1st respondentM. Silva for 2nd respondent
Cur. adv. vult.
Sri Lanka Law Reports
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July 29, 2004
GAMINI ABEYRATNE, J.The subject matter of both cases bearing numbers CARevision Application 02.97 and CA/PHC/10/97 being identical hasbeen amalgamated by order of this Court by virtue of which fact theorder in CA/PHC/10/97 is applicable and binding on all partiesconnected with CA Revision Application bearing No. 02/97.
An examination of the case record reveals that the institutionof this case is traceable to the year 1997 and unless the Courtdivest itself to technicalities and proceeds to forthwith determinethis matter. It will well nigh proceed Ad infinition.
These applications stem from an order pronounced by thelearned High Court Judge of Colombo in November 1996.
For purpose of brevity a skeletal outline of the relevant factualbackground is set out below. Originating from an action instituted inthe Magistrate’s Court of Fort instituted by the applicant who is the2nd respondent in this action against the 1st respondent fordemolition of an unauthorised structure erected by the 1strespondent in the Arcade of a large building which unauthorisedstructure had been occupied for a long period of time. The 2ndrespondent purported to act under section 28A (1) of the UrbanDevelopment Authority Act No. 17 of 1979 and was in fact theprosecuting officer for the Colombo Municipal Council delegatedthe power of appearing as authorised officer of the UrbanDevelopment Authority. At the end of the trial, the LearnedMagistrate was of the opinion that the prosecution should succeedin its endeavours and accordingly issued a demolition order of theunauthorised structure.
An appeal was lodged in the Provincial High Court of Colomboand the learned trial Judge on the 18th day of November 1996reversed the order of the learned Magistrate on the objectionstaken by the 1st respondent that the notice issued under section28A(1) was ambiguous and therefore did not describe accuratelythe unauthorised structure. The second objection was that therewas no reflection of delegation of Authority by the UrbanDevelopment Authority to the 2nd respondent to institute this action
CA Trustees of the Sir Mohamed Macan Markar Trust v Fernando 355
and another (Abeyratne, J.)
for demolition of the unauthorised structure on behalf of the UrbanDevelopment Authority as in fact he was the prosecuting Officer ofthe Municipal Council.
It is against this order of the Learned High Court Judge thatthis appeal and revision application has been preferred to thisCourt. It is also a matter of observation that there is an Intervenient-petitioner, the owner of the building in question who had beenpermitted to Intervene in this matter when the case was pendingbefore the Magistrate’s Court of Fort.
It was agreed upon between the parties that as the facts ofboth applications are inextricably interwoven and comprised of thesame factual background one order by this Court would suffice forpurposes of both applications.
At this juncture, suffice it to state that this Court will bewinnowing the wheat from the chaff and confining the Judicialreview strictly to matters germane to the issues involved.
It is an undisputed fact that the notice that is issued undersection 28A(1) of the Urban Development Authority is an imperativerequirement, it should also be in clear unambiguous terms so as toreflect the identity of the unauthorised structure that has to bedemolished. Examining the notice one finds it difficult to believethat the learned High Court Judge could not possess clarity ofthought with regard to the structure described quite apart from thesketch attached to the notice ‘Y’ clearly displaying the unauthorisedstructure on the authorised premises the notice has stated thus:
The notice accordingly states that at a place bearingassessment No. 25 “an unauthorised structure has been put up”. Itdoes not require a fertile imagination to construe that in placebearing No. 25 an unauthorised structure has been set up – is
qualifies the place on which the
clearly descriptive of another structure put up on
Sri Lanka Law Reports
 2 Sri L.R
unauthorised structure is put up attached to the notice is a sketchP1 which clearly describes the location of the unauthorisedstructure and states that No. 25 is the existing building and 25A asthe new building in the arcade of the premises bearing No. 25.Furthermore, to enable more clarity of though on the matter. The1st respondent has clearly accepted the fact that:
This Court does not see any further necessity to consider thisobjection any longer as it would be tantamount to procrastinatingfurther on the matter.
Accordingly, this Court is inclined to overrule the finding of thelearned High Court Judge on this point and hold that the notice isclear and unambiguous and descriptive of the unauthorisedbuilding to be demolished even to the most mentally negligible.
Subjecting the 2nd objection to judicial consideration, that thepower of authority is not properly delegated to the 2nd respondent.It is worthwhile to address one’s attention to document ‘Y markedin the Magistrate’s Court proceedings along with the applicationmade by the 2nd respondent clearly stating that he is the
There is a presumption in Law as to the regularity of theperformance of official Acts. Furthermore, it is puerile to split hairson mere technicalities, prevaricate to defeat the ends of Justice andtake refuge in infantile assertions and persist in litigation Adnauseam. When the intention of the legislature is crystal clear andmanifestly apparent that due compliance with the imperativeprovisions of the law has been acquiesced with.
In conclusion it must be observed that it is regrettable that
CA Trustees of the Sir Mohamed Macan Marker Trust v Fernando 357
and another (Abeyratne, J.)
when even the legal representatives of litigants attempt to takeadvantage of typing errors in a document to conjure imaginaryobjections with a view to prolonging the duration of a case, thisCourt cannot take cognizance of trivialities and cooperate in theattainment of this objective.
Accordingly, the second objection upheld by the learned HighCourt Judge of Colombo is also overruled and this Court thereforevacates and sets aside the Order of the learned High Court Judgedelivered on the 18th of November 1996 and furthermore permitand order hereby the demolishing of the unauthorised structure25/A, Mudalige Mawatha erected on the premises bearing No. 25,Mudalige Mawatha.
NANAYAKKARA, J. – I agree.
Order of the Magistrate restored.