006-NLR-NLR-V-73-V.-EMINONA-Appellant-and-THE-GOVERNAMENT-AGENT-POLONNARUWA-Respondent.pdf
Id
SIRIMAXE, J.—Brohicr a. Mttnidasa
1969Present: Samerawickrame, J.
EMINONA, Appellant, and THE GOVERNMENT AGENT,POLONNARUWA, Respondent
S. G. 1002(67—31. G. Polonnaruwa, 15S72
Land Development Ordinance—Sections 106, 107, 109, 117, 119, 120, 125—-Oranof a holding—Subsequent cancellation of the grant—Whether Us validity canbe attacked collaterally by a third party on ground of defective notice to thepermit-holder—Alteration of a permit—Requirement of authentic evidence.When the grant of a holding has been cancelled in terms of section 109 of theLand Development Ordinance, it is not open to a third party, in proceedingsto eject him from his unlawful possession or occupation of the holding, tochallenge the validity of the cancellation of the grant collaterally on the groundthat the notice issued to the permit-holder prior to the cancellation did notcomply with the requirement of section 107 in that the date specified in thenotice was not thirty clear days from the date of its issue.
When the permit issued to a permit-holder contains an interpolation scoring offhis name and substituting another person’s name, the alterations in the permitare not valid unless they are authenticated by the signature or even the initialsof the officer who made them.
ApPEAL from a judgment of the Magistrate’s Court, Polonnaruwa.
C. Ranqanaihan, Q.C., with 31. T. 31. Sivardeen, for the 1st respondent-appellant.
V. O. Gunatilak-a, Crown Counsel, for the complainant-respondent.
Cur. adv. vult.
SAMERAWICKRAME, J.—Eminona r. G. A., Potonnaruua
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August 25, 1069. Samerawickbjjie, J.—
This is an appeal against an order made by the learned Magistrate undersection 125 of the Land Development Ordinance directing the appellant tobe ejected from a holding.
It would appear that a permit in respect of this holding had originallybeen issued to one H.R. Charlie. On the 0th of November, 1963, a notice(1D4) in terms of s. 106 of the Land Development Ordinance had issued tothe said Charlie intimating to him that his permit would bo cancelledunless sufficient cause to the contrary was shown on the 9th of December,1963. Charlie failed to attend the inquiry and order was made in termsof s.100 cancelling his permit. As the appellant was found to bo inoccupation of the holding an order was issued on her in terms of s.119forthwith to vacate the said holding. Upon her failure to do so areport had been made to the learned Magistrate in terms of s. 120 andan inquiry has been held. The learned Magistrate made order statingthat he was not satisfied that the appellant was entitled to possessionor occupation of the holding and ordered her ejectment.
Learned Counsel for the appellant has submitted that the notico (1D4)served on Charlie was not in terms of s. 107 of the Land DcvelopmentOrdinance in that the date specified in the notice was not thirty clear daysfrom the date of it3 issue. He submitted, therefore, that the order ofcancellation of the permit issued to Charlie was bad and the noticeissued to the ajjpellant in terms of s.119 of the said Ordinance was alsoaccordingly bad and void. Ho further submitted that Charlie hadsurrendered his permit and that on his doing so a permit had been issuedto the appellant. It was his position that upon the facts spoken to by theappellant no cancellation of the permit was possible and accordingly thoprovisions in sections 119 and 120 of the Land Development Ordinancehad not come into operation.
The permit relied on by the appellant was the permit originally issuedto Charlie in which his name has been scored off and the name of thoap2>ellant had been interpolated. The alterations in the permit have notbeen authenticated by the signature or even by tho initials of the personwho had made them. There were similar alterations in the KnchehcriLedger (1D7) whore too Charlie’s name had been struck off and theappellant’s name entered. These alterations too had not been signed oreven initialled by any officer. The learned Magistrate held that thodocument produced by the appellant is not a permit validly issued to her.
sec no reason to interfere with that finding.
In regard to the question of law raised by Air. Ranganathan on behalfof the appellant, it appears to jnc that thirty clear da3's had not beenallowed in the notice (1D4). It may have been open to Charlie to have. taken proceedings by way of writ or otherwise to impugn the notice amithe order made thereafter but Charlie has not in fact taken any steps toimpugn the notice or the subsequent order made in default of appearance.
I do not find it possible to hold that by reason of the defect in the notice tho
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– Endoris v. Kiripetta
proceedings were a nullity and liable to an attack in collateral proceedingsbetween third parties—vide Posner v. Collector jor intcr-State destitutepersons 1 and Durayappah v. Fernando Learned Crown Counsel hasalso drawn my attention to s. 117 of the Land Development Ordinancewhich reads :—
*■* No appeal shall lie against an order of cancellation made by theGovernment Agent under section 109 but such order shall be final andconclusive for all purposes. ”
This clause may not have stood in the way of Charlie had he applied for awrit to quash the notice served on him and the order that was madeconsequent to it but, as I have said earlier, he has made no suchapplication. It is no doubt open to the appellant to show that no validorder of cancellation was made but, in my view, the notice, though itmay have been defective, did not render the proceedings a nullity andtherefore it cannot be said that there was in point of fact no order ofcancellation.
Section 125 provides—" If, after due inquiry the Magistrate is notsatisfied that the person showing cause is entitled to the possession oroccupation of the holding, he shall make order directing such personforthwith to be ejected from the holding. ”
The learned Magistrate has held that he is not satisfied that the appellantis entitled to possession or occupation of tho holding and I thinkthat his finding must be upheld. In the circumstances, the appeal is-dismissed.
Appvdidsimissed.