041-NLR-NLR-V-77-W.-UDUGAMPOLA-and-3-others-Appellants-and-ASSISTANT-GOVERNMENT-AGENT-GALLE-R.pdf
WIJAYATILAKE, J.—Vdugampola v. A. Q. A., Galle
203
1973 Present: Wijayatilake, J., and Walgampaya, J.W. UDUGAMPOLA and 3 others, Appellants, and'ASSISTANTGOVERNMENT AGENT, GALLE, Respondent
S. C. 2-5172—Land Acquisition Board of ReviewNos. GL 277—280
Land Acquisition Act, as amended by Act No. 28 of 1964—Sections 7, 17,22, 23—Interpretation and effect of S. 23—Computation of theappealable period of 21 days—Interpretation Ordinance (Cap. 2),S. 8 (I)—Delay in filing the appeal—Whether it can be waivedby delay and acquiescence on the part of the Board.
Section 23 of the Land Acquisition Act reads as follows : —
“No appeal against an award made under section 17 shall beentertained by the board unless it has been preferred withintwenty-one days after the date on which notice of that awardwas received by the appellant. ”
Notice of award was received on 16th October 1971 and appealsdated 6th November against the award were lodged at 9 a.m. on8th November which was a Monday. There was nothing to show thatany attempt was made to lodge the appeals on Saturday,6th November, within the working hours 8 a.m. to 12 a.m.
Held, that the appeals were out of time as the appealable periodof 21 days expired on Saturday 6.11.71. The Saturday could not beexcluded in computing the appealable period and the provisions ofsection 8 (1) of the Interpretation Ordinance were of no avail.
Held further, that the delay in filing the appeal was an irregularityin procedure which could be said to have beeen waived by theBoard of Review in the present case by its own delay andacquiescence during a period of several months.
A.PPEALS under the Land Acquisition Act.
H. W. Jayewardene with B. A. R. Candappa and Basil deSilva, for the appellants.
G. P. S. de Silva, State Counsel, for the Attorney-General.
Cur. adv. vult.
October 17, 1973. Wijayatilake, J.—
The respondent in his capacity as Acquiring Officer gave noticeof his intention to acquire a land called and known as Radawattealias Pansalawatta under the provisions of the Land AcquisitionAct. The appellants as the co-owners of the said land preferredtheir claims to the Acquiring Officer and claimed a sum ofRs. 93,560 as compensation. By a notice dated 15.10.71 andreceived by the appellants on 16.10.71 the respondent awarded asum of Rs. 12,255 as compensation. The appellants being dis-satisfied with the amount of compensation awarded appealed tothe Land Acquisition Board of Review under section 22 of the
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WIJAYATILAKE, J.—Udugampola v. A. O. A., Oalle
Land Acquistion Act inter alia on tk e ground that the Awarddoes not represent the free market value as at the date on whichthe notice under section 7 of Chapter 460 was published in theGazette 24.9.64. They pleaded the instance of the Commissionerof Stamps under the Stamps Ordinance valuing three propertiesbelonging to the 1st, 3rd and 4th appellants situated about 200yards from the land in question at Rs. 71,500 as at 5.4.1963—thesethree properties being 127.45 perches in extent whereas the landin question has been valued at Rs. 12,225 when its extent isabout 440 perches.
When these appeals came up for hearing on 3.6.72 a preliminaryobjection was taken by the Legal Officer of the Valuation Depart-ment on the ground that the appeals, having been lodged on8.11.71, they have not been preferred within 21 days, after thedate (16.10.71) on which notice of the award was received by theappellants as required by section 23 of the Land Acquisition Actas amended by the Land Acquisition (Amendment) Act, No. 28of 1964. The Board held that 24 days had elapsed when the appealswere filed and the preliminary objection was upheld and theappeals were accordingly rejected and dismissed.
Mr. Jayewardene, learned counsel for the appellants submitsthat the Board was in error in making this order as the appellantshad preferred their appeals within time and furthermore theirappeals had been entertained by the Board and it had takensteps to fix the appeals for hearing. It will be convenient at thisstage to note certain relevant dates showing the action taken bythe appellants and the Board in this connection.
16.10.71
at 9 a.m.
18.11.71
26.11.71
6.12.71
25.3.72
9.5.72
Notice of the Award received by the appellants.Petitions of appeal dated 6.11.71 lodged at theoffice of the Land Acquisition Board of Reviewin Colombo
Secretary of the Board requested for two morecopies of the petitionsCopies as requested despatchedSecretary of the Board sends letter acknow-ledging appeals and calling for lists of witnessesand documents
Appellants forward lists of witnesses to theBoard
The 2nd appellant moves for early disposal ofappeal
Secretary gave notice that Appeals would beheard on 3.6.72 at 9.15 a m.
WIJAYATTLAKE, J.—Vdugampola v. A. G. A., Galle
205
Legal officer of the Valuation Department writesto the Secretary of the Board that the appeals areout of time as they have not been preferredwithin 21 days
Hearing before the Board
Board made its order upholding preliminaryobjection
It has also transpired that although notices of the appeals weresent to the Acquiring officer he was not present at the hearingof the Appeal ; nor was any objection taken on his behalf.
Mr. Jayewardene has stressed that the validity of thepreliminary objection has to be adjudged in the light of the stepstaken by the Board as set out above. He submits that the lodgingof the appeals on Monday 8.11.71 was within time in accord withthe practice adopted by the Board. The principal question whichhas arisen in this case relates to the interpretation and effect ofsection 23 of the Land Acquisitoin Act as amended by Act No. 28of 1964. Admittedly, the Notice of the award was received on16.10.71 and the appeals dated 6.11.71 were lodged at 9 a.m. onMonday 8.11.71. Section 23 provides that “ no appeal against anaward made under section 17 shall be entertained by the boardunless it has been preferred within twenty-one days after thedate on which notice of that award was received by the appel-lant ”. In the computation of the 21 days we have no difficultywhatever in excluding the date (16.10.71) on which the noticeof the award was received as the section spfeaks of a period aftersuch date. However, Mr. G. P. S. de Silva, learned State Counsel,submits that even if this date is excluded the 21 day periodexpired on Saturday 6.11.71 and therefore the appeal lodgedon Monday 8.11.71 would clearly be out of time.
Mr. Jayewardene submits that section 8 of the InterpretationOrdinance applies to the Land Acquisition Ordinance and there-fore we have to compute the time accordingly. Section 8 (1)provides that where a limited time is allowed by any written lawfor the doing of any act or the taking of any proceeding in aCourt or office and the last day of the limited time is a day onwhich the Court or office is closed, then the act or proceedingshall be considered as done or taken in due time if it is done ortaken on the next day thereafter on which the Court or office isopen. He further submits that section 23 contemplates 21 daysof 24 hours each—so that the 21 day period would in the instantcase expire only at mid-night on Saturday 6th November ; andaccordingly as there is nothing to show that any provision hadbeen made by this Board at its office to accept petitions of appeal.after 12 noon on Saturday 6th November the appellants were
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WIJAYATILAKE, J.—TJdttgampola t). A. Q. A., Oalle
well within time in lodging their appeals on the day after Sunday7th November—namely Monday 8th November in terms ofsection 8 of the Interpretation Ordinance. Mr. de Silva, on theother hand has made a very cogent submission that it is notnecessary for this Government office to be open for reception ofappeals such as this for 24 hours in the day as it is well knownto the public that offices function during a particular period ofthe day ; so that the appellants if they were preferring theirappeals they should have taken steps to tender them to theoffice within the working hours 8 a.m. to 12 a.m. In the circum-stances, he submits, that section 8 of the Interpretation Ordinanceis of no avail as the office was not closed on the 6th. He hasdrawn our attention to the judgment of Megarry J. in PritamKaur v. Russell & Sons Ltd..1 where he observed as follows :“ It is true, as Russell L. J. pointed out in Hodgsonv. Armstrong (1967) 1 A. E. R. at 320 (1967) 2 Q.B at 323 that asthe offices of the Court close each afternoon, a litigant does notget his full peroid and may fail to issue writ in time if he arrivesan hour or two after the offices have closed on what for him isthe last day ; but I think that the legislature may be safelyassumed to have contemplated that the offices will not remainopen until midnight each day, and that a litigant will get thefull period intended if the offices are open during the prescribedhours on the last day ”. See also (1973) 2 W. L. R. 14. On a carefulscrutiny of section 8 of the Interpretation Ordinance I aminclined to the view that the section contemplates a closure ofthe offices as on Sundays and Public holidays when the offices arenot open for business. Mr. Jayewardene has relied very stronglyon the case of Zimmerman v. Cowan‘ where it was heldthat under a statute authorising the filing of an electionpetition in the clerk’s office of the proper Court withina specified number of days, the petition need not be filed withinthe hours appointed by law for keeping the office open, but maybe filed after the expiration of these hours, at any time up tomidnight of the last day ”. It would appear that the office hourswere fixed by Statute unlike here. Thus Mr. Jayewardene submitsthat it should be more so here—as our office hours have beenfixed and changed from time to time administratively. In thiscontext the question does arise whether a petition of appealdelivered at the office by Post either ordinary, registered or ex-press after 12 noon on Saturday 6th November would be withintime. .In my view such an appeal having been clearly preferredwell before closing time on the last day the mere fact of itsdelivery at the office before the expiry of the period of 24 hourson the last day should not stand in the way of an appellant topursue his appeal. I do not think this principle could be stretched
(1973) 1 A. E. R. 617.
* 47 American Reports 476.
WIJAYATILAKE, J.—Vdugampola v. A. G. A., Galle
207
to the facts in the instant case as admittedly the petitions ofappeal, although they are dated 6.11.71 have been lodged only onMonday 8.11.71 at 9 a.m. There is nothing to show whether anyattempt was made to lodge the appeals on Saturday 6.11.71 at anytime after office hours. In the circumstances I do not think theprinciple set out in the American case could be of any avail tothe appellants in the circumstances. The application of section 8of the Interpretation Ordinance in this context would lead toconfusion as the time for preferring the appeal would have tobe extended, from day to day ad infinitum, as every day the officewould be closed even for a few hours.
The next question for consideration is whether the Board ofReview had the jurisdiction to uphold the preliminary objectionand if so whether, in the circumstances of this case, it shouldhave upheld the objection and rejected the appeals. Mr. Jaye-wardene very strenuously submits that the petitions of appealhaving been entertained by the Board of Review and actionhaving being taken to fix the appeals for hearing, havinginformed the appellants to cite the necessary witnessesand file the necessary documents, it was not open tothe Board to uphold this preliminary objection. Mr. deSilva submits that the receipt and acceptance of theAppeals by the Secretary of the Board would not amountto an “ entertainment ” of these Appeals as contemplated underSection 23 of the Land Acquisition Ordinance, as the entertain-ment should be by the Board itself. On a reading of Section 23et seq. it appears to me that the Secretary has the authority toentertain such appeals on behalf of the Board and take the neces-sary steps to fix the apppeals for hearing. It is quite clear thathe has so acted in these proceedings. The question therefore ariseswhether an appeal once it has been so entertained can be rejectedon a preliminary objection that it is out of time. I am inclinedto agree with learned State Counsel that the Board of Reviewis not precluded from considering such a preliminary objection atthe hearing of the appeal. Mr. Jayewardene submits that theconduct of the Board through its Secretary in entertaining theseapppeals and adopting the procedure of fixing the appeals forhearing should have been considered before the Board upheldthe objection. I have given my anxious and careful considerationto the procedure adopted by this Board and as it appears to meeven though these appeals were out of time by one day theBoard by its conduct during a period of several months hasclearly waived its objection to jurisdiction. There isno question that the Board has inherent jurisdiction to hear theseappeals. In the circumstances, the delay in filing theseappeals being a matter of procedure in my view, if the Board byits conduct has waived its objection by delay and acquiescence
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Wijeweera v. Ncmayakkara
on its own part it would not be open to pursue an objection likethis when an aggrieved party seeks a hearing before the Board.Procedure should be an aid to Justice and not a mere trap forthe uninitiated. The judgment in Robinson Fernando v.Henrietta Fernando 1 lends support to this view. Mr. Jayewardenehas submitted that the Secretary has entertained these appeals asit was the practice of this Board to exclude the last day of the21 day period. On the other hand Mr. de Silva has cited twocases which had come up before this Board which have notadopted any such practice. However, on a scrutiny of theprocedure adopted in this case I am inclined to agree withMr. Jayewardene that the practice of excluding the last datehas been recognised ; else one cannot understand the conduct ofthe Secretary in these proceedings for over seven months. It isalso significant that the Acquiring Officer was not present at thehearing.
I would accordingly allow the appeals with costs fixed atRs. 250 in respect of each appeal. We direct the Board of Reviewto list these cases for hearing on an early date.
Walgampaya, J.—I agree.
5 (1971) 74 N. L R. 57.
Appeal allowed..