It is to be observed that the above mentioned document “P1" is alist of persons selected for the allotment of lands and the respondentwas one of the persons selected as a recipient. *P2’ is the surveysketch showing the lot to be allotted to the selected recipients and'P3' is a letter addressed to the Chairman and the Divisional Secretaryof Kolonnawa for the purpose of publishing the list of persons selectedas recipients of allotments, giving the opportunity for any personinterested to make objections.
The learned High Court judge in his judgment held in favour of therespondent, having come to the conclusion that the document marked‘P1 ’ was a valid permit issued to the respondent under section 9 of theState Lands (Recovery of Possession) Act. In his judgment at page 5,the learned High Court judge had made the following observations;
Urban Development Authority vs
Wejayaluxmi (Wimalachandra, J.)
authority of the State granted in accordance with any written law. Thedocument “P1" is a list of persons selected for allotment of land. It isclear from the aforesaid documents P1, P2 and P3 the personsselected for allotment of land had not been finalized. Accordingly, it ismy considered view that the document *P1 ’ is not a valid permit withinthe meaning of section 9(1) of the State Lands (Recovery of Possession)Act. The respondent did not therefore possess the requirement ofsection 9 of the State Lands (Recovery of Possession) Act. In thecircumstances the learned High Court judge has erred in law in holdingthat the document “P1” is a valid permit within the meaning of theprovisions of section 9 of the said Act.
The next matter to be considered is the objection raised by therespondent that the Urban Development Authority has no locus standito step into the shoes of the Competent Authority lawfully appointedunder the State Lands (Recovery of Possession) Act to institute thisapplication in revision. The Urban Development Authority Act (asamended) states that the Urban Development Authority is a bodycorporate which can institute proceedings and also be sued in legalproceedings. Thus the Urban Development Authority is a legal personwhich can institute proceedings in its own name. It is to be noted thatthe Act also provides for the "Competent authority" to instituteproceedings on behalf of the Urban Development Authority. The definitionof the term “competent authority” under the State Lands (Recovery ofPossession) Act, reads as follows :
“Competent Authority includes ‘an officer generallyor specially authorized by a corporate body, wheresuch land is vested in or owned by or under the controlof, such corporate body.’ Section 18 State Lands(Recovery of Possession) Act as amended by section5(h) of Act No.58 of 1981.”
The petitioner produced the document marked “A7” which is theminutes of the Board Meetings of the Urban Development Authorityheld on 26.11.1993. According to the Board Paper No.422/93 in item14.06.01, the Board of Management of the Urban Development Authorityhad authorized Mr. A. Wedamulla, Additional Director General (Landsand Property) of the Urban Development Authority to act as the
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competent authority in terms of section 18(i)(h) as described in theBoard Paper for carrying out duties under the State Lands (Recoveryof Possession) Act, No.07 of 1979 (as amended). The documentmarked “A8" produced by the petitioner is a document signed by theMinister in charge of the Urban Development Authority, granting approvalfor the taking of action to eject the respondent, Wejayalaxmi from thesaid land.
The proceedings under the State Lands (Recovery of Possession)Act are required to be initiated by a “competent authority" A CompetentAuthority appointed by the Urban Development Authority has everyright to initiate proceedings for ejectment in the Magistrate Court. (VideS. C. decision in Wedamulla vs. Abeysinghe(1)) However, as regardsthis application, the Urban Development Authority being a corporatebody in whom the land in question was vested has every right to makethis application before this Court.
It was held in the case of Farook vs. Gunawardena, GovermentAgent Ampara(2) that at an inquiry before the Magistrate, the only pleaby way of defence that a party can put forward is that he is inpossession or occupation of the land upon a valid permit or other writtenauthority of the State granted in accordance with any written law andthat such permit or authority is in force and not revoked or otherwiserendered invalid.
In the instant case, the document relied on by the respondent isthe document ‘P1’ which is not a valid permit or any written'authorityof the State granted under any written law. The document 'P1' is onlya list of persons selected for allotment of land.
The last two grounds of objections of the respondent could beconveniently dealt with together. Counsel for the respondent submittedthat the petitioner has failed to show exceptional circumstances toinvoke the revisionary powers of the Court of Appeal and the petitionerhas made this application nearly 3 1/2 months after the judgment hasbeen delivered by the learned High Court judge. The learned counselfurther submitted that the petitioner has failed to explain the delay.
Urban Development Authority vs
Wejayaluxmi (Wimalachandra, J.)
It is settled law that in an application for revision it is necessary tourge exceptional circumstances warranting the interference of this Courtby way of revision.
It was held in the case of Rustom vs. Hapangama and Co.(3) that“the powers by way of revision conferred on the Appellate Court arevery wide and can be exercised whether an appeal has been takenagainst an order of the original Court or not. However, such powerswould be exercised only in exceptional circumstances where an appeallay and as to what such exceptional circumstances are is dependenton the facts of each case." Similarly in the case of Rasheed Ali vs.MohamedW it was held that “ the powers of revision vested in the Courtof Appeal are very wide and the Court can in a fit case exercise thatpower whether or not an appeal lies. Where the law does not give aright of appeal and makes the order final, the Court of Appeal maynevertheless exercise its powers of revision, but it should do so onlyin exceptional circumstances”.
In the instant case, the learned High Court judge held that thedocument ‘P1’ is a valid permit upon which the respondent was inpossession of the said land when it appears that *P1 ’ is only a list ofpersons selected for allotment of lands and one of the persons selectedwas the respondent. It is clear that “P1 ” does not fulfill the requirmentsof section 9 of the State Lands (Recovery of Possession) Act.Accordingly, I am of the view that a miscarriage of justice has occurred.In the case of Soysa vs. Silva{S) it was held that “the power given to asuperior Court by way of revision is wide enough to give it the right torevise any order made by an original Court, its object is the dueadministration of justice and the correction of errors sometimescommitted by the Court itself in order to avoid miscarriage of justice”.
In the present case there exists a clear miscarriage of justice asstated above. This can only be corrected by invoking therevisionary jurisdiction of this Court. Accordingly this applicationdiscloses exceptional circumstances to invoke the revisionary powers.
In this case the judgment sought to be revised was delivered on
Whereas this application was made on 10.09.2002. Hencethere is a delay of 31/2 months. The question whether delay is fatal to
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an application in revision depends on the facts and circumstances ofthe case. The petitioner has given an explanation for the delay in filingthis application. In paragraph 13 of the petition the petitioner statesthat since the High Court had postponed the delivery of the judgmentseveral times an error was made in taking down the date fixed for thejudgment, and when the petitioner became aware about thepronouncement of the judgment, an application was made by motiondated 03.07.2002 for a certified copy of the judgment. The certifiedcopy of the judgment was issued only on 20.08.2002 as shown by thedate stamp on it. The delay of nearly three months should beconsidered along with the facts and circumstances of the case. If itappears that the impugned order is manifeslty erroneous as in thiscase the application should not be dismissed simply on the ground ofdelay, moreso, when the petitioner has explained the delay. Whenthere is a satisfactory explanation with regard to the delay and theperiod of delay is not excessive, the Court shall not dismiss theapplication on the ground of delay alone. If an authority is required forthis equitable principle, it is found in the judgment of Sharvananda, J.(as he then was) in Bisomenika vs. Cyril de Alwis{6) at 379,
“When the Court has examined the record and issatisfied the order complained of is manifestlyerroneous or without jurisdiction the Court would beloathe to allow the mischief of the order to continueand reject the application simply on the ground ofdelay, unless there are extraordinary reasons to justifysuch rejection.”
For these reasons, I allow the application in revision. The order ofthe learned High Court judge dated 29.05.2002 is set aside and theorders of the learned Magistrate of the Magistrate's Court of Colombodated 14.07.1999 and 15.03.2000 are restored. In all the circumstancesI make no order as to costs.
SOMAWANSA, J. (P/CA) – / agree.
Application allowed.