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to remove the concrete post No. 3 in the sense he had volunteeredto do so. It would be closer to the truth and reality to say that hehad been “made to agree" to remove the said concrete post uponthe “matters being explained”. Perhaps, no Judge can ever be faultedfor persuading parties to come to a just settlement of the dispute whichcan be arrived at as between the parties only upon a true insightbeing gained by the Court into the real or the true factual position.But, I am afraid the visual inspection of the site that had beenundertaken by the learned Primary Court Judge had not enabled himto fully investigate the matter, if one were to take his own order dated2. 2. 1994 as a guide – for although the learned Primary Court Judgehad in the said order, stated that the 6th respondent-appellant had“erected new concrete posts and constructed a parapet wall takingin a part of the roadway into his land" – none can fathom from theJudge's order how the learned Primary Court Judge reached thatfinding for he had not chosen to give any reasons with respect tothat question, viz as to why or how he formed the view or reachedthe decision that a part of the roadway had been encroached upon.Justice must not only be done but must be seen to be done on arational basis and this can happen only when reasons are given fora finding and not otherwise. Then only will justice be rooted inconfidence.
Of course, the learned Primary Court Judge had in his order saidthus: "new concrete posts had been erected and a parapet wall hadbeen built". But, erection of a new parapet wall per se cannot constituteproof of the fact that a part of the roadway had been incorporatedinto the land of the 6th respondent-appellant for one can constructa new wall along the old boundary, as well, which is precisely thecase of the 6th respondent-appellant.
However, in his order the learned Primary Court Judge is silentas to whether it was the existence of new concrete posts whichprompted him to take the view that a part of roadway had beenencroached.
It is clear from the order of the learned Primary Court Judge madeon 02. 02. 1994 that he had "explained matters" to the 6th respondent-
Tudor v. Anulawathie and Others (Gunawardana, J.)
appellant presumably, if not, obviously, with a view to persuading himto remove the concrete post No. 3 obviously because of his (Judge's)impression that a part of the roadway had been taken into the 6threspondent-appellant's land in consequence of the erection of the wallor the post. But, I am not in a position to say whether that impressionof the Primary Court Judge is erroneous or not for the Primary CourtJudge had omitted to give reasons therefor. Even an order made afteran inspection must be demonstrably fair, in fact, even fairer than anorder made in the course of or after a trial or inquiry for at an inspectionthe Judge has, perhaps, a greater scope or freedom to take a viewuntramelled by the technicalities although even such an order muststill be based on reason and justice. The considered order of a Courtmade after a visual inspection is not such an order as will rise orfall on fine and subtle distinctions based on an overly legalisticapproach but one that will be based on straight talk and stark truth.
Although, according to what is stated in the order of the PrimaryCourt dated 2. 2. 1994, the 6th respondent-appellant had “agreed toremove" the concrete post No. 03, yet he had failed to do so andon 15. 6. 1994 the Primary Court had made an order to enforce, thesaid order, dated 2. 2. 94 which was the date on which the aforesaidinspection was held. The order made on 15. 6. 94 to enforce theorder of 2. 2. 94 is, in the circumstances, substantially, if not wholly,and for all practical purposes, an order of demolition with respect tothe said concrete post No. 3.
It will be readily noticed that there is a direct causal connectionbetween "explaining matters" by the Primary Court Judge which inthis context meant, to put it euphemistically, persuading the 6threspondent-appellant to remove the concrete post No. 03 so as towiden the roadway and the finding or the impression of the PrimaryCourt Judge formed (after a visual inspection) that erection of theparapet wall had constituted an encroachment on a part of the roadwaywhich finding may or may not be erroneous. Realistically, viewing thematter, there is no gainsaying that it was the impression or the findingby the learned Primary Court Judge that a part of roadway had beenencroached upon that prompted him to “explain matters" primarily witha view to prevail upon the 6th respondent-appellant to remove the
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concrete post No. 3. The correctness of that finding or the impression,as pointed out above, cannot be tested for want of reasons, whichfinding lacks the aura of moral persuasiveness – a quality which areasoned order alone can have.
When a Court exercising an appellate jurisdiction finds that it cannotsay for certain that the order of the subordinate Court is neither rightnor wrong, inasmuch as the subordinate Court had omitted to givereasons for the order, there is little else that the superior can do thanto direct a fresh inquiry and I do so accordingly. This, I think, is theonly choice open to me because, so far as I know, there is no practiceof requesting reasons for a decision at this stage; nor is there aprovision which enables me to do so. But, the parties are well-advisedto pause and consider calmly and dispassionately whether it wouldnot be an exercise in futility to proceed with this inquiry afresh asthe rights of parties in respect of the same dispute are being currentlyinvestigated in the District Court which would hopefully produce alasting solution.
The long and short of all this is that the aforesaid order dated2. 2. 1994 (which order is, in fact, it may be observed, describedor referred to as an "order" in the Primary Court Judge's order of15. 6. 1994 itself directing enforcement of the previous order of2. 2. 1994) may or may not be correct and I cannot sitting in appeal,as I do, tell either way. It is possible that the order dated 2. 2. 94is correct although it is equally possible that it is wrong for, as pointedout above, no reasons had been given for the finding on which theorder dated 2. 2. 1994 is rested. An application in revision had beenmade in respect of that order of the Primary Court dated 2. 2. 1994which application, as stated above, had been refused by the HighCourt on 15. 11. 1994. Perhaps, to put it at its lowest, one may eveninfer doubtfully or even say, of course, tentatively, that it is moreprobable than not that the order dated 2. 2. 1994 is wrong, inasmuchas in the complaint made on 7. 9. 1993 to the Police upon whichcomplaint these proceedings had been initiated in the Primary Court- no mention whatsoever had been made of any encroachment onthe roadway in question. It is worth reproducing the relevant excerpt
Tudor v. Anulawathie and Others (Gunawardana, J.)
of that statement which is as follows: ©xxs) S0o0 om mo® qSqjcfl So0eS0@0om ox5 Qu&xj)©a)£ dj?o© 9g0t) ®<3®0 cam qcxxS 90® qjQoma5 qra.
®0 00O 0xsm ck)®0 ox5 S§a». og© ox5 q©Sc3 oO m®S mjg0). (50a) og ®og0Oco3®oO ®§©m 0oxB O0®a5 o0Sm0). dad ®Sq£ 0® qa q£ £m ox5 qfim£m0 Shorn oO0m oa5£o0 ornxd®® ©c®©ea £®»mm omEh. m§® q©oe55 oma§m qmOo®od o®3§0 ox) q0SO SO®0 qOScad m«s.
1st respondent must be taken to have said in her complaint whatshe meant and also meant what she said. Nowhere in the abovestatement had she said that a wall had been built by Tudor (the 6threspondent-appellant) encroaching on the roadway. In fact, what the1st respondent had explicitly stated in the above statement was thatwall (omxfig® Mm) was being put up along the "edge of the road"which means the edging or the border or the line of demarcationbetween the 6th respondent's land and the roadway. If, as stated inthe complaint, the construction was on the border or the boundaryit could be said by way of argument, that the roadway could not havebeen encroached upon by reason of that construction although I ambackward in reaching a finding to that effect on such a tenous andrarefied ground. Last, but not the least, the fact that there is noreference to or mention of any encroachment as such even in thereport filed by the Police in the Primary Court calls for remark in thisregard.
The point on which this appeal is allowed to the extent of directinga fresh inquiry, viz that no reasons are given for the finding that apart of the roadway had been encroached upon, was not urged beforethe High Court Judge who had been wholly oblivious to that aspect;nor was that point urged before us.
This should suffice to dispose of this matter. But, since what is,in fact, a point of great nicety has been raised in regard to the law,viz that the Primary Court had no jurisdiction either under section 68or under section 69 of the Primary Courts' Procedure Act to makean order of demolition or removal of a structure, I wish to deal withthat point as well although it is only of academic interest as the orderof the High Court dated 11. 11. 1994 has, in any event, to be vacated
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because, the High Court had by such order upheld the order of thePrimary Court Judge dated 2. 2. 1994, which latter order (of thePrimary Court) as explained above, is not substantiated with reasons.It is to be observed that upon the failure of the 6th respondent-appellant to remove the concrete post No. 3 the learned Primary CourtJudge had on 15. 6. 1994 directed that the order dated 2. 2. 94 madeby the Primary Court be carried out.
In this matter, irrespective of whether the dispute in this case fallsunder section 68 or section 69 of the said Act, the Primary Court,in making any order with respect to a dispute affecting land is clothedwith the jurisdiction, (if necessary, for the due execution of its duty,viz to restore to the person entitled thereto the possession of the landor the enjoyment of the right, as the case may be, and "prohibit allinterference" therewith, ie respectively with possession or enjoymentof the right) to make an order directing the removal or demolition ofany structure – be it a house, concrete post or anything else thathas been constructed or built – if that structure, whatever it maybe, constitutes a hindrance to the execution of the aforesaid duty ofthe Primary Court.
The Primary Court is vested in express terms with the power undersections 68 (3) and 68 (4) of the Primary Courts' Procedure Act tomake a tentative order restoring to possession of the land or partthereof, the person who is entitled to possess in terms of the de-termination made by the Primary Court under sections 68 (1) and 68(3) respectively and also prohibiting disturbance of possession in thetwo instances contemplated by sections 68 (1) and 68 (3). To furtherexplain the two instances or the situations referred to above: Section68 (1) of the Primary Courts' Procedure Act requires or authorizesthe Primary Court to determine who was in possession of the landor part thereof on the date of the filing of the information in Courtregarding the dispute. After such determination the said Court isempowered under section 68 (4) of the relevant Act to restore possessionto that person who was found by the Court to be entitled thereto whichsection 68 (4) reads thus: "An order under subsection (1). . . maycontain a direction that any party specified in the order shall berestored to possession of the land or any part thereof".
Tudor v. Anulawathie and Others (Gunawardana, J.)
The Primary Court is expressly empowered under section 68
of the said Act to restore to possession of the land or partthereof the party who was in actual possession on the dateof filing of information regarding the dispute by the Police undersection 66 of the Act and the Primary Court is also vested withthe jurisdiction under section 68 (2) to make order protectingand prohibiting disturbance of possession of such person, iethe person who was found to be in possession on the relevantdate, ie the date of filing of information, .until such person isevicted therefrom under an order or decree of a competentCourt;
the Primary Court makes an identical or the same order under68 (3) of the said Act, ie prohibiting disturbance of possessionwhen it (the Court) makes order under section 68 (3) of thesaid Act, restoring to possession a person who had been inpossession previously but had been forcibly dispossessed withina period of two months immediately before the date on whichthe information was filed by the Police in Court pursuant tosection 66 of the Primary Courts' Procedure Act. To reproducethe relevant section 68 (3) of the said Act: "Where at an inquiryinto a dispute relating to the possession of any land or anypart of a land the Judge of the Primary Court is satisfied thatany person who had been in possession of the land or parthas been forcibly dispossessed within a period of two monthsimmediately before the date on which the information was filedunder section 66 he may make a determination to that effectand make an order directing that the party dispossessed berestored to possession and prohibiting all disturbance of suchpossession otherwise than under the authority of an order ordecree of a competent Court".
Thus, it is to be observed that in the two situations described abovethe Primary Courts' Procedure Act, expressly and in so many wordshad conferred on the Primary Court the power to restore to possessionof a piece of land the person who is entitled to possess pursuantto a determination by the Court arrived at after inquiry in that regard.
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The Primary Court is also empowered under section 69 (2) of therelevant Act, to make an order, ie prohibiting disturbance or interfer-ence with the exercise of the right of any person who is entitled toexercise that right when the dispute relates to any right other thanthe right to possession of land. For example, when the Primary Courtmakes a determination that a person is entitled to the exercise ofthe right of a servitude of a roadway – the Primary Court will makean order prohibiting interference with the exercise of that right whichorder will cease to have any binding effect only if a decree of acompetent Court is entered in respect of the right as against thatperson, ie the person in whose favour the Primary Court had earliermade the determination.
But, when the Primary Court makes an order or determination undersection 69 of the Act, as to any right to land other than the rightto possession of land – the Act, nowhere had stated in express termsas in the case of two situations described above, ie where right topossession of land was in dispute, that the person who, after inquiry,is held by the Court to be entitled to exercise that right (other thanthe right to possession of land) shall be restored to the possessionor exercise of that right. According to the definition of “dispute affectingland", as explained in section 75 of the Primary Courts' ProcedureAct, the "dispute as to any right other than the right to possessionof land" refers to or means or embraces all such "disputes as to theright to cultivate any land or part thereof or as to right to the cropsor produce thereof or any right in the nature of a servitude affectingland." Then the question arises: when the dispute affecting land relatesto any right (enumerated above) other than the right to possessionof land – is the Primary Court endowed with the power to make anorder restoring that right to the person entitled to the exercise thereof,ie of that right, thereby facilitating the exercise of that right by thatperson unless and until that person is deprived of that right by anorder or decree of a competent Court? The answer must necessarilybe in the affirmative. Sometimes, the legislature either through for-getfulness or through erratic or bad drafting or because it is so obvious,(because one need not labour the obvious) fails to expressly incor-porate into the section, terms or provisions which, had the legislature
Tudor v. Anulawathie and Others (Gunawardana, J.)
adverted to the situation, it would certainly have inserted to give suchclarity or rather efficacy to the section, so to speak, that the legislaturemust have intended, at all events, that it, ie the provision of law, shouldhave. It cannot for a moment be said that implying such a powerdefeats the intention of the relevant legislative provision; rather byimplying such a power the Court carries into effect or effectuates theclear intention of the sections 69 (1) and 69 (2) which two subsections,respectively reads thus:
69 (1): “Where the dispute relates to any right to any land or anypart of a land other than the right to possession of such land or partthereof, the Judge of the Primary Court shall determine as to whois entitled to the right which is the subject of the dispute and makean order under subsection (2)" which subsection is as follows: “Anorder under this subsection may declare that any person specifiedtherein shall be entitled to any such right in or respecting the landor in any part of the land as may be specified in the order until suchperson is deprived of such right by virtue of an order or decree ofa competent Court and prohibit all disturbance or interference withthe exercise of such right . . . other than under the authority of anorder or decree as aforesaid."
The intention of the above legislative provision, ie sections 69 (1)and (2) of the Primary Courts' Procedure Act, is all too clear : it isto ensure that the relevant right in question is exercised by the personwho, the Primary Court determines, is entitled to the right and bynobody else.
The above subsections, 69 (1) and (2), require the Primary Courtafter inquiry to –
determine as to who is entitled to the right.
make an order that the person specified therein shall be entitledto such right until such person is deprived of that right by virtueof an order or decree of a competent Court.
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prohibit all interference with or disturbance of that right otherthan under the authority of an order or decree of a competentCourt.
One cannot reasonably assume that section 69 of the PrimaryCourts' Procedure Act, required the Court to take all such steps asare enunciated or itemised above but stop short of restoring the rightto the person who is, according to the determination (of the PrimaryCourt), entitled to that right so that he may exercise that right withoutany hindrance. It is worth observing that the section 69 of the Act,requires the Primary Court not only to specify in the order the personwho is entitled to such right which means as explained above, anyright enumerated or contemplated in section 75 of the Act (other thanthe right to possession of land) but also make further order prohibitinginterference with and disturbance of that right. The power conferredon the Primary Court under section 69 (2) of the Act to prohibitdisturbance of the exercise of the rights, I take it, necessarily carrieswith it the power, if not expressly, at least, by necessary implication,to restore the right to that person who is found or determined by thePrimary Court to be entitled to that right if, in fact, that person whois held to be entitled to that right had been deprived of it. The Courtcannot and in fact, need not prohibit disturbance of possession orexercise of a right by a person as required by section 69 (2) of thePrimary Courts' Procedure Act, if that person is not, in fact, inpossession or restored to possession or rather the enjoyment of thesame, ie of that right – so that he can exercise it. Prohibiting dis-turbance of the exercise of the right as required by section 69 (2)is called for or rendered necessary (as required by the said sub-section) because of the restoration of the exercise of the right to theperson held to be entitled thereto.
Thus, it is clear that sections 69 (1) and (2) of the Act, authorizesby implication (as explained above) the restoration of the right (otherthan the right to possession of land) to the person who is held tobe entitled to such right just as much as restoration of the right topossession of land is expressly authorized, as explained above, bysections 68 (2) and 68 (4) respectively.
Tudor v. Anulawathie and Others (Gunawardana, J.)
The counsel for the 6th respondent-appellant had referred us toJamis v. Kannangarat'* which had held that no order of removal ofa structure could be made under the said section 69 (2) and submittedon the authority thereof that the learned Primary Court Judge hadno authority or power to order the demolition of the concrete postNo. 3 as the Primary Court Judge had in fact seems to have done15. 06. 1994. The said order itself is not all that clear and the wholeof which order reads thus and amounts to this: Sfiksj ©ocdxwI gg§©0(s£o6en aOca) ©S 6goS®. 6 gg© qSfflCajocJ 0etog ®<9aS 94. 02. 02 o©S
Q.O03 800)0x3 @o)a5®a> 80®O Sooto cs0@.
The so-called order dated 2. 2. 1994 (that being the denominationinto which the said order appropriately would fall) is reproducedverbatim at page 01 hereof and nowhere is it contemplated there inthe demolition of a wall or a parapet wall which the fiscal in pursuanceof the order of 15. 6. 1994 had effected or caused, as stated in his(fiscal's) report, submitted to Court after carrying out the order(of 15. 6. 1994), the relevant excerpt of which report reads as follows:
The above excerpt reproduced from the fiscal's report states thatnot only the concrete post No. 3 but also a wall or structure orembankment (s^SS) 2 feet high which was "connected to the concretepost No. 3 was also removed by the fiscal.
Be that as it may, the basic argument of the learned counsel forthe 6th respondent-appellant was that Primary Court was destitute ofany power to order the removal of any structure to facilitate the handingover of possession to the person held by Court to be entitled thereto.
A perusal of the order dated 2. 2. 1994 (which was carried outin terms of the order dated 15. 6. 1994) would show that althoughthere is mention of the removal of a concrete post No. 3 – there

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is no mention whatever about the removal of any kind of wall. In fact,the order of 2. 2. 1994 (which as explained above was implementedby the order made by the Primary Court on 15. 6. 1994) contemplatesor makes mention not of a demolition of any wall but the erectionof one, ie a wall. This confusion is attributable, perhaps, to the lackof care and neatness, on the part of the Primary Court Judge, inrecording or committing his order into words or writing.
We are not bound by the decision referred to above, ie Jamis v.Kannangara and we choose not to follow it as the Court had notconsidered therein the doctrine of implied powers embodied in themaxim: "Quando Lex Aliquid Councedit Concediture Et Id Sine QuoRes Ipsa Esse Non Potest". Its full and true import was set out inthe judgment Fenton v. Hampton (referred to in Bindra). To quote:"Whenever anything is authorized and especially if, as a matter ofduty, required to be done by law, and it is found impossible to dothat thing unless something not authorized in express terms be alsodone, then that something else will be supplied by necessary intendment. . ." What the doctrine of implied power means is this : that wherean Act, confers jurisdiction, it impliedly also grants the power of doingall such acts or employ such means as are essentially necessary toits execution. CAN ONE RATIONALLY ASSUME THAT ALTHOUGHTHE LEGISLATURE CLEARLY IMPOSED ON THE PRIMARY COURT,AS POINTED OUT ABOVE, THE DUTY UNDER SECTION 69 OF
Tudor v. Anulawathie and Others (Gunawardana, J.)
terms of the declaration in terms of section 69 (1). When a statutegrants a power or privilege it carries with it everything necessary forits exercise. I think, it is one of the first principles. For instance, bythe grant of mines, the power to dig is impliedly conferred. A. ft v.Bristol Dock Co.<2>; Wright v. Scotf3>; Gas Co. v. City of PerthCorporation!4*. Similarly, authority to build a bridge on a stranger’sland carries with it the right of erecting on the land the temporaryscaffolding which was essential to the execution of its work 1845 4Q. B. 46(5). 1881-8 QBD-86(6>. Implied powers are as much an integralpart of any Act, as if those powers had been specifically expressedin the Act, itself.
If a statute is passed for the purpose of enabling something tobe done, but omits to mention in terms some detail which is of greatimportance and essential to the proper and effectual performance ofthe duty or the work which the statute has in contemplation the Courtsare at liberty to infer that the statute by implication empowers thatdetail to be carried out. In Cookson v. Lee m the facts were: a privateAct, vested certain lands in trustees for the purpose of enabling themto sell the lands for building purposes. But, the Act, contained noexpress provision or power to expend any portion of the purchasemoneys in setting out the lands or in making the roads. In thesecircumstances, the Court held that, having regard to the object of theAct, – viz the sale of the property as building land – such power,to make roads and give facilities for putting the property in a statein which it is capable of being sold and immediately used for buildingpurposes, ought to be implied. Lord Cranworth who decided that casesaid: "We must take it (the Act) as we find it and one very naturalquestion – whether if it does not in terms do so – it does not doit by implication/ whether we must not infer from the powers given,the legislature considered that they had given the power which iscontended for, or whether by directing something to be done, theymust not be considered by necessary implication to have empoweredthat to be done which was necessary to accomplish the ultimateobject".
The ultimate object of the aforesaid sections 68 and 69 respectively,being to restore the person entitled to the right to the possession of
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land to the possession thereof or to restore the person entitled tothe right (other than the right to possession of land) to the enjoymentthereof – the said provisions of the law must be rationally construedto authorize by necessary implication, if, in fact, they had not in termsdone so, the removal of all obstructions, if the need arose, in theprocess of restoring the right to the person held (by the Primary Court)to be entitled to such right. (The right other than the right to possessionof land, would include such rights as the right to cultivate any land,or as to the rights to crops of any land or right in the nature of aservitude) So, that it is plain that the case of Jamis v. Kannangara(supra) which held that no order of removal of a sructure could bemade under section 69 (2) of the Primary Courts' Procedure Act, hadbeen decided, with respect, overlooking the doctrine of implied powersas explained above, as sections 68 (1) and 68 (3) expressly andsection 69 (2) by necessary implication, if not expressly, enable, ifnot require, the Primary Court to restore the benefit of the right topossession to the person entitled to it by placing him in possessionor in enjoyment of the right respectively – the legislature must betaken to have given the power to the Court by necessary implicationto do everything which is indispensable for the purpose of carryingout the purpose in view – purpose being to restore to possessionthe person who according, to the determination made by the PrimaryCourt in terms of section 68 (1) or 68 (3) is entitled to possess theland or enjoy or exercise the right (other than right to possess land)in terms of a determination made under section 69 (1) of the PrimaryCourts' Procedure Act.
That the implying of such a power, ie the power to sweep awayall such obstructions and impediments in the way of restoration ofthe person to possession or enjoyment of the right, ie every kind ofright coming within the definition of dispute affecting land as statedin the aforesaid section 75 is necessary, would be made clearer bydemonstrating the absurdities and inconvenience of adopting a con-trary view, viz that the power to remove obstructions had not beengranted by implication. Suppose, the Primary Court holds under section69 (1) that a particular party or several parties to the application beforeit had been exercising the right to a servitude of a foot-path – three
Tudor v. Anulawathie and Others (Gunawardana, J.)
feet in width, from time immemorial – that being the one and onlyway to gain access. The owner of the servient tenement over whichthe foot-path runs blocks it, in a matter of an hour or two, byconstructing a wall across it. In such a case as the above, is thePrimary Court bound to stop short of making an order to clear thepath by directing the demolition or removal of the obstructing wall?One can visualise other similar situations, say, the only opening toa piece of land which is surrounded on all sides by a wall sevenfeet in height is an entrance which is six feet in width. A person (A)forcibly oust the man (B) who had been in possession thereof anderects a barbed-wire fence or bars the opening with a wall thuseffectively preventing the person who had lawfully been in possessionfrom entering even after the Primary Court had held (after inquiry)that "B" was entitled to possess and should be restored to possession.If the power to remove a structure which hinders the recovery ofpossession by the person who is declared entitled to the right is notimplied – order of the Court declaring a man's right to possess orgranting a declaration that he is entitled to any other right, eg a rightof servitude will for certain be frustrated even if the obstruction is putup after the order or declaration by the Primary Court for if a structureor construction cannot be removed that had been put up before theCourt makes an order – then the same rule will apply in the caseof obstructions in the form of structures that have been erected evensubsequent to the Court making of the order or declaration that acertain person is entitled to the right to possess a land or to theenjoyment or exercise of a right (other than right to possession ofland).
The learned High Court Judge in his order dated 11. 11. 1994had distinguished Jamis v. Kannangara {supra), viz Bannerjie v.Rahamart6 being the Indian judgment which was followed in thedecision of Jamis' case, on the footing that the structures in questionin James' case and Bannerjie's case was a shed for human habitationand a stable respectively and what was ordered to be demolishedor removed in this case by the Primary Court Judge was a concretepost. The learned High Court Judge's reasoning was that no construc-tion could be removed or demolished if it was a house or a stablebut that a concrete post could be ordered to be removed. But, the
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learned High Court Judge had signally failed to explain on whatprinciple or rather on what principle of law he had drawn a distinctionbetween a shed put up for human habitation and a stable on theone hand and a concrete post on the other because all those structuresare things that are constructed and fall under the same genus ofstructures.
It is true that there is no specific provision in the Primary Courts'Procedure Act, expressly enabling the Court to order removal ofobstructions in the way of restoration of the right to the person entitledthereto in terms of the determination made by the Court; nor is therea prohibition either, against the Court exercising such a power ormaking such an order as had been held in Narasingh v. Manga!Dubey<9). The Courts are not to act, on the principle that everyprocedure is to be taken as prohibited unless it is expressly providedfor by the Code but on the converse principle that every procedureis to be understood as permissible till it is shown to be prohibitedby the Code.
The order made by the High Court on 11. 11. 1994 is hereby setaside as also the orders made on 2. 2. 1994 and 15. 6. 1994 bythe Primary Court. I direct that a fresh inquiry be held by the PrimaryCourt.
HECTOR YAP A, J. – I agree.
Appeal allowed.