1 st Issue 2015 News Letter

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EDITOR | Jagath Kahandagamage , ASSISTANT EDITOR | Anushka Senevirathnaweb: www.jsasl.org | e-mail: [email protected]

Mr. Jagath Kahandagamage (Editor), District Judge, Distric Court, Horana, Sri Lanka.

1 st Issue 2015

From The Editor

Chief Justice of Sri Lanka

Secretary’s Desk

Summery Procedure in Debt recovery; way for speedy justice

COMMIT TEE MEMBERS

01. Mr.T.D.Gunasekara D.J-.Kalutara

02. Mr.N.M.M.Abdulla Mag.-Batticaloa | [email protected]

03. Mr.H.S.Somaratne D.J.-Pugoda | hssomaratne @gmail.com

04. Mr.M.Ganesharajah D.J.-Mulativu | [email protected]

05. Mr.R.Weliwatta Mag.-Panadura | [email protected]

06. Mr.D.G.N.R.Premaratne Mag.Kurunegala | [email protected]

07. Mr.J.Trotsky Mag.-Bandarawela | trotskymarx1 @yahoo.com

08. Mr.K.A.T.K.jayatilake Mag.Gampaha | [email protected]

09. Mr.I.P.D.Liyanage D.J.-Hatton | [email protected]

10. Mr.R.A.D.U.N.Ranatunga D.J.Walasmulla | [email protected]

11. Mr.A.G.Alexrajah D.J.-Akkaraipattu | [email protected]

12. Mr.H.K.N.P.Alwis Mag.-Kegalle | [email protected]

13. Mrs.G.A.R.Atygalla Addi.Mag.-Colombo | [email protected]

14. Mr.A.M.I.S.Attanayake D.J.-Anuradhapura | [email protected]

15. Mr.A.D.C.S.Hewawasam Mag.Nuwaraeliya |[email protected]

16. Miss.H.M.B.R.Wijeratne A.D.J.-Puttalam | [email protected]

17. Miss.K.D.N.V. Lankapura Mag.-Galle | [email protected]

18. Miss.K.G.D.Amarasinghe Juvenile-Mag. Battaramulla | [email protected]

19. Mr.A.S.Bodaragama Mag.-Elpitiya | [email protected]

20. Mr.H.S.U.Ramyakumara D.J.-Dambulla | [email protected]

21. Mr.S.G.C.Wickramanayaka Addi.Mag.-Kurunegala | chamarawickramanayaka @gmail.com

22. Mr.G.M.T.U.Suwandurugoda D.J.-Warakapola | [email protected]

23. Mr.I.N.N.Kumarage D.J.-Hambanthota | [email protected]

24. Mrs.K.A.G.Punchihewa A.D.J.-Matara | kusalanieagp @gmail.com

25. Mr.D.M.S.Karunarathna Addi.Mag.-Matara | dmskarunarathna @gmail.com

26. Mr.R.S.M.Mahendrarajah Addi.Mag.-Rathnapura | mewanlaw @gmail.com

27. Mr.D.C.K.Perera A.D.J.-Ampara | kayminda @hotmail.com

PRESIDENTMr.U.G.W.K.W. Jinadasa | District Judge - Kaduwela | [email protected]

VICE PRESIDENT(1)Mr.A.G.Aluthge | District Judge - Panadura | [email protected]

VICE PRESIDENT(2)Mr.P.P.R.E.H. Singappulige | Ad.District Judge - Colombo | [email protected]

SECRETARYMr.R.S.A.Dissanayake |District Judge - Puttalam | [email protected]

ASSISTANT SECRETARYMr.R.L.Godawela | Ad.District Judge - Panadura | [email protected]

TREASURERMr.H.S.Ponnamperuma | Ad.District Judge - Kurunegala | [email protected]

EDITORMr.J.A.Kahandagamage | District Judge - Horana | [email protected]

ASSISTANT EDITORMr.D.M.A.Seneviratne | Ad.Magistrate - Nugegoda | [email protected]

WEB MASTERMr.N.D.B.Gunarathne | Magistrate - Kuliyapitiya | [email protected] News Letter

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From The Editor


Secretary’s Desk


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From the Editor’s Desk....Dear Colleagues,It is with great pleasure that I welcome you to the first issue of the Jsa News Letter for the year 2015.I take this opportunity to express myself that it is an honour bestowed upon me to work with you this year as the Editor of the Jsa News Letter.Like many past years, we will use the Jsa News Letter as an important platform to sharpen our members’ analytical and creative writing skills as well enhancing their knowledge. Further we hope to introduce a forum to develop artistic skills of the members this year.as you all aware this year The Jsa News Letter comes as a hard copy, obliging the decision taken at the last aGM.Being judges, we are engaged in a very important and difficult task in the implementation of justice and as there are various obstacles and challenges, it is my view that we must unitedly stands together to overcome those. Hence we do not believe the situation is hopeless. We have a wealth of members waiting in their wings to meet any challenge. Therefore I earnestly request all of you to contribute to improve the future issues.I take this opportunity to thank to all who contributed to publish this issue.special words of thanks must go to Mr. anushka seneviratne (Co-Editor), Mr.Wasantha Jinadasa (Hon, President) and Mr. Ranga Dissanayake (Hon, secretary) for their assistance and encouragements.This year too, the Jsa shall rise and shine. It must, it will.I wish you good luck in 2015.Jagath Kahandagamage(Editor)District Judge - Horana

On their promotions ............Hon. H. P. G. N. Ranaweera, Hon. Sujatha Alahapperuma, Hon N.B.D.N.B. Balalla, Hon. K. P. Fernando, and Hon H. S. Hapuarachchi were elevated to High Courts on 16th of February 2015. After taking oath before the Hon. Chief Justice , they posed for this photograph. We the JSA congratulate our former Hon. Members for their grate achievement and wish every success in their new duties.

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Hon. Justice Kanagasabapathy Sripavan

Hon. Justice K. sripavan was appointed as the Chief Justice of sri Lanka on 30th January 2015. His

Lordship was a Judge of the supreme Court and had been appointed as the acting Chief Justice on several

occasions prior to the new appointment.

Hon. Justice K. sripavan was born on 29th February 1952 and was educated at Jaffna Hindu College

between 1962 and 1972. Thereafter His Lordship joined Ceylon Law College in 1974 and passed out as

an attorney- at-Law in 1976.

His lordship was called to the Bar on 23rd august 1977 and practiced at the unofficial Bar till 1978. Then

His Lordship joined the attorney General’s Department as an acting state Counsel on 14th February

1978 and become a permanent state Counsel on 3rd March 1979. His Lordship was promoted as a senior

state Counsel in 1989 and was further promoted as a Deputy solicitor General on 22nd February 1996.

His lordship was the head of Court of appeal Unit in the attorney General’s Department and worked on

the Court of appeal and the supreme Court Cases, including Bills and Fundamental Rights applications.

His Lordship was awarded a Diploma in Industrial Law from the University of Colombo in 1992 and

Masters of Law Degree from the University of London in 1994.

Hon. Justice K. sripavan was first appointed as a Judge of the Court of appeal on 29th May 2002 and

become the President of the Court of appeal in 2007. His Lordship was appointed to the supreme Court

of sri Lanka in 2008 and was the senior most Judge of the supreme Court.

We the Judicial service association of sri Lanka congratulate on His Lordship’s appointment as the

Chief Justice and wish every success in his Lordship’s new office.

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I am pleased to pen this message to the first News Letter of the Jsa for the year 2015 as

the President of the association. at the outset, I have non- negotiable obligation to thank

the membership for me to have been appointed as the President.

as you are very well aware, that our association is guided by traditions of excellence and

I hope to continue it as exemplified by our predecessors. Over the few months, we have

engaged in unprecedented efforts to address each and every issue that are important to the

members of the Jsa.

We must admit the fact that, due to the change of control of the Government and resulted

change of persons concerned, we were unable to fulfill our initial obligation on time.

Be that as it may, the executive committee of the Jsa was able to identify the issues that

are important to the membership, and the trends that they see affecting the future of the

judicial profession.

Using the information gathered, the executive committee has worked to develop a series of

draft goals and objectives for the year 2015.

as a result, we were able to meet His Lordship the Chief Justice and Honorable

Commissioners of the JsC to take the blessings and started to negotiate with various

stakeholders so required.

I am certain that we are on the process of fulfilling our obligation to the membership.

Please feel free to reach out to me or any member of the committee with thoughts, suggestions,

and concerns and we can certainly address them or put you in touch with someone who can.Thank you!Wasantha JinadasaPresident Jsa

2015

President’s Message

JSA E- Links

JSA Twitter Account JSA Web Site

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The president and the ex-co of the Jsa after assuming duties, launched an extensive programme for the benefit and wellbeing of its members. Initially more than welfare issues, we had to face with the arduous challenge of overcoming the problems and difficulties that the judicial officers were burdened with to which imminent solutions were required.

accordingly, our primary concern was to create a favourable atmosphere within which judges can function independently and free from influences. During the past four months ex-co strived its level best to achieve the said prospect and as a result we humbly admit that we failed to address memberswelfare issues as expected.

We believe that all our membership should be aware of the difficulties that the association faced with during the past four month. subsequent to the appointment of the new office bearers in December 2014, there was a change in the government on the 08th of January 2015. The new government took some time to formalise their practices and procedures and as a result discussions intended to be done with the governmental bodies were delayed. In the meantime a new Chief Justice was also appointed on the 30.01.2015 and thus Jsa got its first opportunity to have discussions with the JsC members only on the 20.02.2015. The president Mr. Wasantha Jinadasa and I as the secretary met the JsC members on the 20.02.2015 and placed in writing all the problems and grievances of the minor judiciary.

(a copy of the said written document has already been sent to the members).

The Chief Justice and the other members seriously drew their attention on our issues and by now steps have already been taken to remedy most of the problems. according JsC circular No 378 which was immensely burdensome to the judges was cancelled with immediate effect.

also JsC showed positive response to the proposal of preparing a sensible and uniform transfer policy for judges and we have information to the effect that the JsC is now in the process of preparing a new scheme of transfer for the judges.

It is not necessary to mention that now a sound environment within which judges can discharge duties independently have been created. However we expect that the JsC would provide solutions to the rest of the problems of the judges which are still remain unsettled.

In view of discussing problems regarding facilities for the judges the Deputy President Mr. Rashmi singgappulige and myself met the Hon Minister Mr. Wijedasa Rajapaksha on the 16.03.2015 and brought his attention to the following facts:

01) The ministry secretary’s decision of including the DJs and Magistrates into the category 3 of the circular no 3/2014 relating to the settlement of telephone bills

02) Official bungalows and housing rental issues

03) Providing of official vehicles

04) appointment of a judicial officer for a post of additional secretary to the ministry of Justice.

We extensively explained the above issues but however it is regret to inform that the Minister and the secretary did not successfully respond to them. The attitude of the Ministry towards judges is not favourable and it is evident that the ministry is not willing to safeguard the honour and dignity of the office of the judges.

Secretary’s Report

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Therefore we realized that further discussions with the ministry would be purposeless and thus the EXco decided at the meeting held on the 21/03/2015 to place all problems of the judges to the JsC and the Hon President and the Prime minister of the country. It was also decided to initiate legal action against the ministry when necessary.

amidst all such difficulties we were successful in obtaining following achievements,

1) In consequence to discussions had with the Education secretary we were able to get all children who failed to obtain schools, admitted to schools for the year 2015

2) Many of our members informed us their objection to the proposed increasing of the retirement age of the High Court judges and we took steps to express such dissatisfaction to the JsC and also to the Hon President and the Prime Minister of the country.

3) It was also revealed that not even preliminary steps were taken to proceed the proposed housing project at Mt. Lavinia for the judges although the former Jsa then announced that it was commenced. We made a thorough inquiry to this matter and now discussions are in progress with the authorities to acquire the land and grant plots to the judges only on housing value excluding the land value.

4) The project of granting of LRC lands which was initiated by the 2011 Jsa was also failed due to many reasons and transfer deeds have not yet given although the land grant document was handed to the Jsa on the 16.12.2011 by the LRC. We are now discussing with the authorities to give away the said deeds of transfer to our members who requested such lands.

5) salaries and allowances of the judges have not been increased for quite a long period and none of the budgetary allowances announced during the past two years have been added to the judges salaries. Therefore we intend to bring this to the attention of the Hon President and the Prime Minister in the near future.

6) We also made arrangements for the judges to obtain loans from the Bank of Ceylon at a lower interest rate for housing and other purposes without personal or proprietary securities.

(This has already been communicated to the members).

as a whole during the past four months we took all possible steps without hesitation to resolve problems and difficulties encountered by the members in the field more than the welfare issues. We assure you that we will be addressing soon all your necessary welfare matters in the near future.Ranga DissanayakesecretaryJsa

Quote

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Summery Procedure in Debt recovery; way for speedy justice By| D. M. J. Dissanayaka LLB., LLM., |District Judge/Magistrate, Kanthale.

•Instrument,agreementordocumentproducedto court appears to be properly stamped(where such instrument, agreement or- document is required by law to be stamped)

•Nottobeopentosuspicionbyreasonof anyalteration or erasure or other matter on the face of it,

•notprescribed,

•courtbeingsatisfiedof thecontentscontainedin the affidavit filed along with the plaint

Considering above, the court can grant Decree nisi which should be in the form set out in the First schedule to the act and reliefs that can be granted by the courts are specified in that section.

Once the decree nisi is granted by the court it should be served on the defendant . section 6 of the act provides that the Defendant shall not appear or show cause against the decree nisi unless he obtains leave from the court to appear and show cause . It seems that summery procedure on liquid claims in chapter LIII of the Civil Procedure code is similar to the procedure in this act in obtaining leave of the court to enter the case. Hence obtaining leave of the court to enter and defend the matter is a prerequisite.

after giving the defendant an opportunity of being heard court can grant leave to appear and show cause against the decree nisi, either;

(a) upon the defendant paying into court the sum mentioned in the decree nisi; or

(b) upon the defendant furnishing such security as to the court may appear reasonably and sufficient for satisfying the sum mentioned in the decree nisi in the event of it being made absolute; or

(c) upon the court being satisfied on the contents of the affidavit filed, that they disclose a defence which is prima facie sustainable and on such

Well worn matters under summery procedure [Debt Recovery (special Provisions) act No. 2 of 1990 as amended by the Debt Recovery (special provisions) (amendment) act, No. 9 of 1994] are sometimes seen in certain courts. Dates of institution of those cases were more than 6-10 years back. Plaintiffs of such cases were banks or other lending institutions. since “justice delayed is justice denied” and “delay defeats equity”, it is required to find out the reason for such unexpected delay and solutions for that.

It is worth to note that this piece of legislation has introduced both civil and criminal jurisdiction. It is clear that a “lending institution” can only file a civil action under Debt Recovery (special Provisions) act No. 2 of 1990 . a “lending institution” is interpreted in section 30 of the act where no other legal or natural person (other than specifically mentioned under sec.30) can file a civil case. The provisions regarding criminal jurisdiction under section 25 of the act however expanded the locus standi where even individuals are allowed to file cases .

No action shall be instituted where the sum alleged to be in default is less than one hundred and fifty thousand rupees. This monetary limitation is one way of challenging the jurisdiction of the court. Documents that are needed to be produced when an action is instituted under the Debt recovery act is seen in section 3 and 4 of the act. accordingly Plaint, affidavit , The instrument, agreement or document sued upon or relied on, draft decree nisi, the requisite stamps for the decree nisi and service thereof, such number of copies of the plaint, affidavit, instrument, agreement or document sued upon, or relied on by the institution, as is equal to the number of defendants in the action should be filed.

section 4(2) of the act provides the consideration that should be made in issuing a decree nisi at the first instance. Those requirements can be summarized as follows.

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terms as to security, framing and recording of issues, or otherwise as the court thinks fit

Where the defendant either fails to appear and show cause or having appeared, his application to show cause is refused, the court shall make the decree nisi absolute.

Enough attention is not been paid to the correct procedure that should be adopted in debt recovery cases once leave is granted to the Defendant to enter the case . This was one of the main reasons for the delay caused in cases I have referred at the beginning. after the permission is granted to enter the case, as per the Debt Recovery (special Provisions) act No. 2 of 1990 as amended by the Debt Recovery (special provisions) (amendment) act, No. 9 of 1994, what should be the correct procedure to be followed? Is it become a regular action thereafter? Or should we continue it in a summery manner? Let’s peruse the legal provisions and judicial decisions to ascertain what is correct.

In the case of seylan Bank Plc. Vs Lebbe Mohomed Razik , Hon. Thilakawardana J. citing the preamble of the Debt recovery act clearly stated that the intention of the legislature was to expedite the recovery procedure. Hence it is clear that, if regular procedure is adopted after the Defendant is allowed to enter the case, naturally the case will be delayed. If it is so, the summery procedure becomes meaningless. Parties can easily file cases under regular procedure without wasting time to make application to enter the case as provided in summery procedure.

Once the leave is granted the procedure that should be adopted is clearly mentioned in section 7 of the act .

7. If the defendant appears and leave to appear and show cause is given the provisions of sections 384, 385, 386, 387, 390 and 391 of the Civil Procedure Code (Chapter 101) shall, mutatis mutandis, apply to the trial of the action. (Emphasis by author)

according to the above provision, it is crystal clear that the sections of the Civil Procedure Code which are specifically mentioned in section 7 should be applied to the trial of the case. It is not the procedure for obtaining leave to enter the case even though plain reading of the sections of the Civil Procedure

Code would deem so. accordingly; court can’t allow the Defendant to file an answer. If answer is allowed to be filed that would be a violation of the statutory provisions stipulated in the act and goes against the intention of the legislature.

In the case of W.K.M.D.Perera Vs Peoples Bank, it was clearly decided that the order given by the trial judge “to appear and file answer” was incorrect and it was substituted by the words “to appear and show cause against the decree nisi”. This case clearly illustrates that regular procedure can’t be adopted once the Defendant is allowed to enter the case. Next step should not be filing an answer.

Hence, it is required to apply the prescribed provisions in the Civil Procedure Code to the trial of the action. It is evident that Part ii / Chapter xxiv of the Civil Procedure Code includes provisions regarding summery procedure. If sec.7 of the Debt Recovery (special Provisions) act No. 2 of 1990 as amended by the Debt Recovery (special provisions) (amendment) act, No. 9 of 1994 specifically states to apply those unique provisions of Civil Procedure Code, The court of law is bound to follow the same.

If the Defendant is allowed to file an answer and to contest the matter as in regular procedure (once the application to enter the case is allowed) it would be waste of time. Because; the time consumed for consideration of the application to enter the case (Consider decree nisi, Issue decree nisi to the defendant, application by defendant to enter the case, Written submissions if any, order of the court) is an excessive procedure. Then the procedure will not be a summery procedure as expected since all the initial steps are futile efforts.

In Ramanayaka Vs. sampath Bank Ltd. and Others , it was states that the summery procedure in the liquidated damages (chapter 53 of the C.P.C.) is same as the Debt recovery procedure. However when we carefully peruse the whole case record, it is clear that similarity is restricted only to the procedure of obtaining leave of the court to enter and defend. The similarity is not for the entire procedure of the case. Hon. Wijayarathne J. has clearly mentioned that as per section 7 of the Debt Recovery act, sections 384-391 of the C.P.C. applies to the trial of the case. Hence it is clear that, this case refers the similarity of procedures

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“The best way to find yourself is to lose yourself in the service of others.”

only to the leave that should be obtained prior to enter and defend the case.

When provisions of the Civil Procedure Code is applied, if both parties appear in courts once the leave is granted to the Defendant to enter the case, the proceedings on the matter of the petition shall commence by the respondent in person, or by his registered attorney, stating his objections, if any, to the petitioner’s application. The respondent shall then be entitled to read such affidavits or other documentary evidence as may be admissible, or by leave of the court to adduce oral evidence in support of his objections, or to rebut and refute the evidence of the petitioner.

It is noteworthy that no affidavit or other documentary evidence shall be so read without express leave of court, unless a copy of the document shall have been served on the petitioner or his registered attorney at least forty eight hours before the day when the matter of the petition comes on to be heard and determined.

as per the above provision, it is clear that Defendant should start the case once permission is granted to enter the case. In Bank of Ceylon Vs. Kaleel, Wimalachandra J. observed that Plaintiff must start the case unless the Defendant admits the statements in Plaint. This judgment was given considering only the provisions of the Civil Procedure Code. Hence, In the case of Bank of Ceylon Vs. Warnakulasuriya it was decided that correct procedure should be summery procedure stipulated in section 7 of the Debt Recovery act. In this case Wimalachandra J. specifically stated as follows.

“Dicta in the burden of proof in my judgment in Bank of Ceylon Vs. Kaleel has no application to the circumstances under consideration of the present application. The objections with regard to the question “Who should begin the case” is obiter dicta and my observation in judgment in the Bank of Ceylon Vs. Kaleel ought to stand rectified.”

accordingly, the Defendant should start the case once permission is granted for defendant to enter the case. In the event of the respondent stating objections to the application, and not otherwise, and after the respondent’s evidence, if any, shall have been read or given, the petitioner shall be entitled by way of reply to or comment upon the respondent’s case .

When the respondent’s evidence has been taken, it shall be competent to the court, on the request of the petitioner, to adjourn the matter to enable the petitioner to adduce additional evidence; or, if it thinks necessary, it may frame issues of fact between the petitioner and respondent, and adjourn the matter for the trial of these issues by oral testimony .

The court, after the evidence has been duly taken and the petitioner and respondent have been heard either in person or by their respective attorneys-at-law or recognized agents, shall pronounce its final order in the matter of the petition in open court, either at once or on some future day, of which notice shall be given in open court at the termination of the trial . as per these provisions it is clear that the Decree nisi which was entered initially is only stayed by continuation of the proceedings of the case and still hanging over the Defendant until he shifts the burden back to the Plaintiff by proving a valid Defence.

as per the above analysis of the legal provisions and the case law it is clear the fact that provisions regarding the summery procedure stipulated in the Debt recovery act must be strictly followed and accurate procedure should be adopted in such cases. summery procedure should be continued until the conclusion of the case. If the provisions of the act are given strict interpretation as discussed in this article, it will reduce the laws delays and lead for speedy justice.

- Mahatma Gandhi -

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In the Court of appeal of the Democratic

socialist Republic of sri Lanka

C a (PHC) aPN 117/2013

HC Galle HCRa 32/13

ananda sarath Paranagama

PaRTY OF THE 2ND PaRT- PETITIONER-PETITIONER

vs.

Dhammadhinna sarath Paranagama

and

Kamitha aswin Paranagama

PaRTIEs OF THE 1sT PaRT-REsPONDENT REsPONDENT

OIC, Habaraduwa Police station,

INFORMaNT-REsPONDENT-REsPONDENT

Before: a.W.a.salam, J (P/Ca) and sunil Rajapaksha, J Counsel: Dr sunil Cooray with R. M Perera for the 2nd party-petitioner-petitioner and Janaka Balasuriya for the parties of the 1st respondent-respondents.

argument on: 10 February 2014

Decided on: 07 august 2014

a.W. a. saLaM, J (P/Ca)

This application is aimed at revising an order of the Provincial High Court entered in the exercise of the revisionary jurisdiction vested in it under article 154 P(3)(b) of the Constitution. a narrative description of the main events preceded the instant revision

application, briefly are as follows; Proceedings began under Chapter VII of the Primary Court Procedure act (hereinafter referred to as the “act”), before the learned Magistrate (who is deemed to be a Judge of the Primary Court ) upon a dispute referred for adjudication under section 66(1) (a) regarding the obstruction of a pathway. The parties to the dispute were three siblings. The learned Magistrate declared the parties of the 1st part-respondents-respondents (referred to in this judgment as the “respondents”) as being entitled to use the pathway of 17 feet in width.

Based on this decision, the learned Magistrate directed the removal of the obstruction that was constructed across the pathway so as to facilitate the use of it.

Discontented with the determination, the party of the 2nd Part- Petitioner-Petitioner (referred to in the rest of this judgment as the “petitioner”) sought to invoke the revisionary jurisdiction of the Provincial High Court. Upon hearing the parties as to the maintainability of the revision application, the High Court refused to entertain the same, on the ground that the petitioner has failed to adduce exceptional/special grounds. The instant revision application has been filed thereafter, with a view to have the impugned order refusing to entertain the revision application set aside and revised inter alia on the following grounds.

1. The impugned refusal to entertain the revision application is contrary to law and the facts of the case.

2. The learned High Court Judge has failed to consider, evaluate, and give reasons for not considering or accepting as exceptional circumstances, the several

Primary Court Procedure Act.

Judgements

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matters set out in paragraphs 10 and 11 of the said petition.

3. No other remedies are available to the petitioner to prevent the wall being demolished although the High Court had set out as the second ground that there are other remedies available;

4. No reasons whatsoever are given in the said judgment for dismissing the revision application on the two grounds stated therein.

When an alternative remedy is available the type of restrain imposed on the exercise of the revisionary powers, had been discussed in several cases both in our Courts and other jurisdictions. suffice it to discuss the principle embodied in the judgment of the well-known case of Rustom Vs Hapangama [1978-79-80 sLR Volume 1V Page 352] where it is laid down that the revisionary powers of a Court will not be invoked, if an alternative remedy is available, unless the existence of special circumstances are urged and established necessitating the indulgence of Court to exercise its powers in revision.

The term ‘revision’ means the examination of a decision with a view to correction. The material points that may arise for consideration in a revision application inter alia are whether a subordinate Court has exercised jurisdiction which is not vested in it in law or whether it has failed to exercise such jurisdiction which is so vested or has acted in the exercise of the jurisdiction illegally or in excess of jurisdiction or with material irregularity. In other words, strictly speaking a revision application calls for the correction of errors concerning illegalities and patent irregularities which are of such magnitude that call for the discretionary powers of Court to correct them.

Hence, it is the duty of a High Court and the Court of appeal vested with the revisionary jurisdiction under the Constitution, to ensure that the revisionary powers of such Courts are not invoked as a matter of course, at the expense of a successful party in the

original Court having to needlessly wait for the fruits of his victory to be reaped.

Inasmuch as the facts of this case are concerned, the trend of authority not being in favour of the exercise of the discretionary remedy unless upon the applicant showing the existence of special circumstances warranting the clemency of Court to exercise the revisionary jurisdiction, the petitioner was obliged to adduce special or exceptional circumstances. This is a condition precedent to entertain the revision application by the High Court.

similarly, as there is a right of appeal to this Court against the refusal of the learned High Court Judge to entertain the revision application, the petitioner has to establish exceptional circumstances to have the impugned order revised by this Court as well.

It was contended on behalf of the petitioner that the High Court Judge without giving any reasons by a judgment of two lines refused to issue notices and dismissed the application stating that there were no exceptional circumstances on which its revisionary jurisdiction could be exercised. He complains that this has culminated in a miscarriage of justice.

On a consideration of the practice ordinarily adopted by Courts in disposing revision applications at the threshold stage, it is manifest that the contention raised by learned Counsel is wholly untenable and devoid of merits. In other words, in an order refusing to entertain an application, the High Court Judge can most of the time able to state that there are no exceptional circumstances that warrant the entertainment of the application and no more. He is not obliged to give details regarding the existence or nonexistence of special or exceptional circumstances. In passing it might be of some relevance to mention that this is the procedure adopted even in the supreme Court when application for special leave is refused.

The main ground alleged in the revision application made to the High Court was that the

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learned Magistrate had not given his mind as to the proof required of the right in question in a section 66 matter, as the action is commonly known. It was submitted on behalf of the petitioner that the respondents were obliged to establish in the Magistrate’s Court the entitlement to use the pathway by proof of user for an uninterrupted period of 10 years adverse to the petitioner’s rights. This ground alleged as a special circumstance warranting the intervention of the High Court by way of its revisionary powers should fail inlimine as there is no requirement under Chapter VII – section 69 to establish the entitlement in the same manner as is usually proved in a civil case.

The ingredients necessary to be proved to obtain a declaration of ‘entitlement’ as contemplated in section 69 of the act will be discussed at a different stage.

On a consideration of the material available, it appears to me that the petitioner has failed to impress upon this Court that there are exceptional circumstances to warrant the intervention of this Court by way of revision. Therefore, the endeavour made by the petitioner to involve this Court in the correction of the purported error committed by the High Court should fail.

The learned Counsel for the petitioner has submitted that a glaring error of law has been committed by the learned Magistrate when failing to address his mind as to whether one brother has used the right of way over the other brother’s land adversely to the latter, and for a period of not less than 10 years. The glaring error said to have been committed in coming to the conclusion as to the existence of the pathway followed by the order of demolition to remove the impediment, according to the petitioner, has ended up in serious miscarriage of justice.

It is elementary principle of law that under Chapter VII of the act, when the dispute relates to the possession of an immovable property, the Judge of the Primary Court is duty-bound under section 68 to

restrict to the issue of actual possession as at the date of filing the information, except where a person who was in possession of the subject matter is dispossessed within a period of two months immediately preceding the date on which information under section 66 was filed.

Unlike in the case of a dispute relating to possession of immovable property, no timeframe has been laid down as to the length of time during which the right should have been enjoyed in relation to the purported entitlement. In resolving such a dispute the Judge of the Primary Court is expected to determine as to who is entitled to the right which is the subject of the dispute and make an order under section 69(2).

The marginal note to section 69 of the act reads as “Determination and order of Judge of the Primary Court when dispute is in regard to any other right”. For purpose of ready reference, section 69 of the act is reproduced below…

(1) Where the dispute relates to any right to any land or any part of a land, other than the right to possession of such land or part thereof, the Judge of the Primary Court shall determine as to who is entitled to the right which is the subject of the dispute and make an order under sub-section (2).

(2) an order under this sub-section may declare that any person specified therein shall be entitled to any such right in or respecting the land or in any part of the land as may be specified in the order until such person is deprived of such right by virtue of an order or decree of a competent Court, and prohibit all disturbance or interference with the exercise of such right by such party other than under the authority of an order or decree as aforesaid.

The question that arises for determination at this stage is whether a party claiming a right to any land other than the right to possession should establish his right precisely as he is expected to do in a civil case or whether he could succeed in obtaining the declaration

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as contemplated in section 69, merely by proving that he enjoyed the right as at the time when the dispute arose. It is to be understood that the proof of the acquisition of the right is totally different from proving the enjoyment/existence of the right at the time the dispute arose.

In dealing with the nature of the right, a Judge of the Primary Court is expected to adjudicate under section 69 of the act, sharvananda, J (later Chief Justice) in the case of Ramalingam Vs Thangarajaha 1982 sri Lanka Law Reports - Volume 2 , Page – 693 stated that in a dispute in regard to any right to any land other than right of possession of such land, the question for decision, according to section 69(1), is who is entitled to the right which is subject of dispute. The word “entitle” here connotes the ownership of the right. The Court has to determine which of the parties has acquired that right or Is ENTITLED FOR THE TIME BEING TO EXERCIsE THaT RIGHT. In contradistinction to section 68 of the act, section 69 requires the Court to determine the question as to which party is entitled to the disputed right preliminary to the making of an order under section 69(2). (Capitalization is mine)

according to the decision in Ramalingam (supra) the Judge of the Primary Court has two options, in deciding as to which of the parties should be declared entitled to the right. since the word “entitle” as used in section 69 implies ownership of the right, the Judge of the Primary Court could determine as to who in fact has acquired the disputed right. In the larger sense it means any kind of proof of the acquisition of the disputed right as envisaged by any law dealing with the ingredients to be proved. For instance, if the disputed right is the existence of a right of way, the party who desires the Court to pronounce his entitlement may establish the uninterrupted and undisturbed use of the pathway, by a title adverse to or independent of the owner that is to say, a use of the pathway unaccompanied by any payment from which an acknowledgment of a right

existing in another person would fairly and naturally be inferred for ten years previous to the filing of the information under section 66 of the act.

This may not be possible in every case relating to a dispute over a right concerning an immovable property, as the proceedings under Chapter VII of the act is required to be held in a summary manner, concluded within three months of the commencement of the inquiry and the order under section 68 or 69 as the case may be, having to be delivered within one week of the conclusion of the inquiry. Further, under section 72 of the act before the pronouncement of the order, the material on which the Judge of the Primary Court may act are limited to certain types of material unlike in a civil case where parties have the option to lead evidence of any volume as long as it is admissible and relevant to the facts in issue and facts relevant to the facts in issue.

It is now trite law that in an inquiry under Chapter VII of the act, adducing evidence by way of affidavits and documents is the rule and oral testimony is an exception to be permitted only at the discretion of the Judge. The discretion is hardly exercised to permit oral testimony and generally not granted as a matter of course. In such an instance it is not only impracticable but beyond the ability of a party to establish a right as is usually accomplished in a civil Court under the regular procedure.

although in certain limited number of disputes, a party may be able to establish the right he claims strictly in accordance with the substantial law, in a large number of cases they may not be able to do so, by reason of the limited time frame within which the inquiry has to be concluded, the restricted mode of proof and the sui generis nature of the procedure.

There are two ways in which an entitlement can be proved in the Primary Court. They are …

1. By adducing proof of the entitlement as is done in a civil Court.

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2. By offering proof that he is entitled to the right FOR THE TIME BEING.

The phrase “for the time being” as used in the decision in Ramalingam’s case connotes the exercise of right by one party, temporarily or for the moment until such time such person is deprived of his right by virtue of a judgment of a Court of competent jurisdiction. If you describe a party as being entitled to enjoy a right but for the time being, it means that it will be like that for a period of time, but may change in the future. This is exactly in keeping with legislative wisdom embodied under part VII of the act.

The rationale behind this principle is that the conferment of the special jurisdiction on a Judge of the Primary Court under Chapter VII of the act is quasi-criminal in nature and is intended to facilitate the temporary settlement of the dispute between the parties so as to maintain the status quo until the rights of the parties are decided by a competent civil Court. subject to this, every other concerns however much prominent they may appear to be, will have to be placed next to the imperative necessity of preserving the peace.

as has been emphasised in the case of Ramalingam (supra) at an inquiry under Chapter VII, the action taken by the Judge of the Primary Court is of a purely preventive and provisional nature, pending the final adjudication of the rights of the parties in a civil Court and the proceedings under this section are of a summary nature. Moreover, it is essential that they should be disposed of as expeditiously as possible. In the circumstances, although it is open to a party to prove the right he claims to be entitled to as is required under the substantial law dealing with a particular right, it is not impossible for him to be content with adducing proof to the effect that he has the right to enjoy the entitlement in dispute for the time being.

Even in a civil action when the plaintiff had failed to prove a clear case of servitude there had been instances where the Courts have issued restraining

orders against the right of way being obstructed. One such case is Perera Vs. Gunatilleke where Bonsor C. J, observed as follows:

“It seems to me that, where a person establishes that he has used a way as of right openly and continuously for a long period and is forcibly prevented from using it, he is entitled to an injunction to restore him to the quasi possession of the way, irrespective of whether he can establish the existence of a servitude. We will treat this action as a possessory action and grant an injunction which will restore the status quo ante” [4 NLR 181]

Historically, unlike in India which introduced laws to combat the breach of the peace arising from disputes relating to immovable properties very early, the Magistrates here did not have the jurisdiction to adjudicate over such disputes until recently. as it was unaffordable to permit violence in the name of civil disputes which generally culminates in the devastation of the progress of a nation, the bench and the bar had continued to clamour for Laws to be introduced to meet the challenges.

In 1953 the Criminal Courts Commission headed by E F N Gratian (Chairman) and M s F Pulle (Commissioner) accompanied by its secretary M C sansony forwarded its report to His Excellency the Governor suggesting that changes be brought into the law to put an end to this menace.

The suggestions made by the commission with regard to disputes affecting lands, resulting in the breach of the peace are found at page 8 and 9 of the report. The suggestion made by the Criminal Courts Commission was to strengthen the hands of the Magistrates to adjudicate summarily on disputes affecting land where the breach of the peace is threatened or likely and to permit the enjoyment of the rights relating to lands to those who are entitled to enjoy them FOR THE TIME BEING.

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It took almost two decades to pass Laws in terms of the suggestion made by the Criminal Courts Commission, when the National state assembly in 1973 made Provisions by enacting law No 44 of 1973 with the inclusion of section 62 which was later replaced by act No 44 of 1979 (Vide Chapter VII).

as the original Provision of section 62 in the administration of Justice Law was based on the report of the Criminal Courts Commission, it is pertinent at this stage to reproduce the relevant passages from the said report concerning the suggestions made with regard to disputes affecting immovable properties. For purpose of ready reference the suggestions made by the commission are reproduced below…

“Dispute as to immovable property

10. Many disputes and resulting offences spring from rival claims to land. There is at present no method by which a Magistrate can deal speedily and summarily such disputes. It is essential that the Magistrate should be vested with statutory powers to make orders with regard to the possession of lands where disputes affecting such lands may result in a breach of the peace. The procedure suggested by us in section 98 a is based in part on the provisions of section 145 of the Indian Code of Criminal Procedure. as far as possible, notice will be given to the parties alleged to be concerned in the dispute, but whether such notice reaches the parties or not the Magistrate will hold summary inquiry and may, even before the inquiry is concluded, make an interim order on the question of possession in order to maintain the peace. The purpose of the inquiry is to enable the Magistrate to determine in a summary manner who should FOR THE TIME BEING permitted to enjoy the right in dispute, but he will make an order which may not be founded strictly on the legal merits of the claim of the rival parties but rather with the view to the necessities of the immediate emergency. It will be directed rather to resorting to the status quo and to ensure that interference, except by due process of law, which possession does not give rise

to a breach of the peace. The ultimate decision as to the legal right of the parties will necessarily have to be made, in subsequent proceedings, by a competent civil Court. No particular procedure has been prescribed in regard to the manner of holding the inquiry, for that would only have introduced technicalities. The order eventually made by the Magistrate will be purely a temporary one and a refusal to comply with it in breach of it is made punishable. [Capitalisation added]

11. We have sought to give effect to the principle that parties should not take the law into their own hands. Therefore, any party who dispossesses another forcibly should not gain any advantage thereby, when the Magistrate makes his final order. The scope of the section has been deliberately made as wide as possible in order to embrace all possible disputes concerning any rights affecting land, and the intention is that in making an equitable interim order, a Magistrate is empowered to order a party placed in possession FOR THE TIME BEING to furnish security for the purpose of complying with the final decision of the dispute”. [Capitalisation added]

From the above report, it would be seen that the commission has given the highest priority to orders being made FOR THE TIME BEING, permitting those who enjoy the rights to continue with it, until such time the Court of competent jurisdiction resolves the dispute on a permanent basis.

Insistence on the proof of a right as in the case of a civil dispute, in this type of proceedings, would lead to two original Courts having to resolve the identical dispute on the same evidence, identical standard of proof and quantum of proof twice over. This would indeed an unnecessary duplicity and is not the scheme suggested by the Criminal Courts Commission and could neither be the intention of the Legislature.

One has to be mindful of the fact that there are still judicial officers in this country who function simultaneously as Judges of the Primary Court,

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Magistrates, and Judges of the Juvenile Court, Judges of the family Court and District Judges. If disputes affecting lands under the Primary Court Procedure act are to be heard by the Primary Court Judges and later the civil case as District Judges on the same evidence, same standard of proof and identical quantum of proof, it would not only result in the utter wastage of the precious time of the suitors and the Courts but will be a meaningless exercise as well.

Turning to the determination, the learned Magistrate has addressed his mind to the averments in the affidavits of both parties and considered the documents annexed and given cogent reasons for his findings. In short, the findings of the learned Magistrate are quite logical, stand to reasons and consistent with the material available. He has referred to the petitioner as having stated at the inspection that the respondents used the pathway in question as permissive users. as a result, the parties in the Magistrate’s Court were at variance only as to the nature of the pathway and not whether the respondents used the pathway. There is thus an implied admission of the road having been used by the respondents. Therefore the issue is whether the pathway used by the respondents is a right of servitude or a merely permissive user in nature. The wall has been put up overnight to obstruct the pathway.

In the Primary Court Procedure act under section 75 a dispute is defined as follows…

“dispute affecting land includes any dispute as to the right to the possession of any land or part of a land and the buildings thereon or the boundaries thereof or as to the right to cultivate any land or part of a land, or as to the right to the crops or produce of any land, or part of a land, or as to any right in the nature of a servitude affecting the land and any reference to “ land” in this Part includes a reference to any building standing thereon. (Emphasis added)

In the case of Kandiah sellappah Vs sinnakkuddy Masilamany (Ca application 425/80-

C a. minute dated 18 March 1981, abdul Cader, J with the concurrence of Victor Perera, J held inter alia that the claimant of a footpath who started using it in 1966 august and was obstructed a few months before the prescriptive period of 10 years, in June 1976 was not entitled to a declaration under section 69. Having analysed the evidence led in the lower court his Lordship formed the opinion that there had been no satisfactory evidence on which it can be held that the claimant exercised a right which has been in continuous existence for a period of time prior to his use.

I am of the view that the decision in Kandiah sellappah’s case has been entered per incuriam without properly defining or appreciating that all what section 75 mandates is “a dispute in the nature of a servitude” and not a dispute touching upon a servitude per se. Therefore, when the right concerned is in the nature of a servitude relating to a right of a pathway, the period of 10 years plays no important role.

Further, the answer to this issue is found in the Judicature act No 2 of 1978 by which the primary court had been created. In terms of section 32 (2) of the Judicature act the primary court shall have no jurisdiction in respect of the disputes referred to in the 4th schedule, irrespective of the value thereof. according to the 4th schedule the actions excluded from the jurisdiction of the primary court inter alia are as follows..

12. any action for a declaratory decree including a decree for the declaration of title to a land.

24 (i) for obstruction to or interference with the enjoyment of any servitude or the exercise of any right over property.

The two exclusions referred to above provide clear authority for the proposition that the right intended to be declared under section 69 is definitely not with the regard to servitude per se but a right in the nature of a servitude.

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since the dispute in this case therefore is a right connected with land in the nature of servitude there is no doubt that the learned Magistrate had jurisdiction to adjudicate on the issue in terms of the act.

He also had jurisdiction to order the demolition of the construction that obstructed the pathway. In Tudor Vs. anulawathie and Others - 1999 - sri Lanka Law Reports Volume 3, Page No - 235 it was decided that although there is no specific Provision in the Primary Courts’ Procedure act, expressly enabling the Court to order removal of obstructions in the way of restoration of the right to the person entitled thereto in terms of the determination made by the Court, there is no such prohibition, against the Court exercising such a power or making such an order.

as was held in Narasingh v. Mangal Dubey - (1883) 5 allahabad 163, the Courts are not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for by law. What in fact matters here is the converse that every procedure is to be understood as permissible till it is shown to be prohibited. as such, I can see no reason as to how the order of demolition made by the learned magistrate can be faulted as being illegal. It axiomatic wisdom that prohibitions are generally not presumed and therefore a court cannot be faulted for acting on the converse.

The photograph produced marked as 2D9b, by the petitioner has been observed by the Magistrate as an attempt to mislead Court with regard to certain important features of the subject matter.

according to the affidavit of the Postmaster of the relevant area, following the construction of the wall, postal authorities had experienced difficulties in delivering the mails, addressed to the respondents.

Further, the affidavit of the sister of both parties bears testimony that the pathway had existed over a period of 40 years serving as access road to buildings bearing assessment No’s 195/1 and 195/2.

according to the affidavit of the Grama Niladhari the pathway in question had been used for a period of 50 years as access to the aforesaid buildings.

In addition, a lawyer practising in Galle and a science teacher had affirmed severally that the right of way had been used over a period of time.

The employees of the respondents also have affirmed to the existence of the road in question. Further, certain others who had used the pathway also had given affidavits.

Upon a consideration of the material referred to in section 72 of the act, the learned Magistrate has formed the opinion that the respondents are entitled to use the said pathway. This being a finding based on the credibility of the witnesses and parties, I do not think the High Court Judge or this Court should interfere with it, as the law permits the reversal of such a strong finding only if it had ended up in a miscarriage or travesty of justice. No such eventualities appear to have taken place by reason of the magisterial determination.

By placing a permanent obstruction in a haste, with no justification or explanation warranting such a quick action, carried into effect over a weekend, the petitioners appear to have aimed at making the respondents unable to turn to Court for redress, a compelling reason that had influenced the Magistrate to look for a draconic measure to undo the damage.

I feel obliged here to reiterate the concern of Bonser CJ penned over a century and a decade ago (4 NLR 181) which needs to re-echo in the minds of every officer exercising judicial, quasi-judicial and administrative powers in resolving or investigating into a complaint touching upon the breach or apprehension of a breach of the peace emanating from a dispute affecting land. It reads as follows…

“In a Country like this, any attempt of parties to use force in the maintenance of their rights should be promptly discouraged. slight brawls readily blossom into riots with grievous hurt and murder as the fruits. It is, therefore, all the more necessary that Courts should strict in discountenancing all attempts to use force in the assertion of such civil rights”.

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BONsER CJ- Perera Vs. Gunathilake (1900 - 4 N.L.R 181 at 183)

In conclusion, I wish to place it on record that land disputes can cause social disruption and sometimes loss of life. They can have a negative impact on the development of lands and eventually on the economy of the Country. an efficient and effective system for settling land disputes is essential in any Country although the resolution of land disputes may appear to be complex. However trivial the dispute may be, it is the duty of the law enforcing authorities to pay serious attention to the issue, particularly with a view to take a preventive measure against possible violence. The determination of the learned Magistrate points to a right decision taken at the right time in the best interest of the parties, in consistent with the Law and the Legislative aim. any decision to overturn such a decision by the High Court would have ended up in a miscarriage of justice.

Hence, it would be seen that the petitioner has failed to adduce exceptional circumstances or made out a case deserving the exercise of the revisionary powers of this Court under article 138 of the Constitution.

He has neither unfolded a case deserving the intervention of the Provincial High Court by way of

revision under article 154 (3) (b) of the Constitution. In the circumstances, the fate of the petition could not have been different from how it culminated in the High Court.

Hence, the Magistrate and the Learned High Court Judge are amply justified in their respective conclusions which effectively had prevented the petitioner from taking the law into his own hands. The decision allowing the respondents to continue to enjoy the disputed right in the nature of a servitude for the time being, is the only order that could have been lawfully made by the Magistrate.

Revision application is therefore dismissed subject to costs fixed at Rs 1,03,000/-.

President/Court of appeal

sunil Rajapaksha, J

I agree

Judge of the Court Of appeal

TW/-

Strong Minds Discuss Ideas, Average Minds Discuss Events, Weak Minds Discuss People. - socrates -

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No. 03,

Urupitiya.

accused-Respondent- appellant

Vs.

Hon. attorney General

attorney General’s Department,

Colombo 12.

Complainant-appellant-

Respondent

* * * * *

BEFORE : Eva Wanasundera, PC. J

sarath de abrew, J. &

P. Jayawardena,PC. J.

COUNsEL : Nimal Muthukumarana for accused-Respondent-appellant.

Yasantha Kodagoda, DsG. for attorney-General.

aRGUED ON : 05.11.2014

DECIDED ON : 12.03.2015

* * * * * *

EVa WaNasUNDERa, PC.J.

In this case, special Leave to appeal was granted on the questions of law contained in paragraph 21(a) of the Petition dated 01.10.2012. The said question is as follows:-

“Is the judgment of the Court of appeal contrary to law and bad in law?”

The attorney General who is the Complainant-appellant-Respondent in this case (hereinafter referred to as the ‘Respondent’), forwarded an indictment on 04.08.2006 against the accused-Respondent-appellant(hereinafter referred to as the “appellant”) to the High Court of Kurunegala for having, on a day between 01.08.2003 and 31.3.2004 committed the offence of rape punishable in terms of section 364(2)(e) of the Penal Code with regard to W.C. Janitha Perera, a girl under 16 years of age. On 28.10.2008

In The Supreme Court Of The Democratic Socialist Republic Of Sri Lanka

In the matter, of an appeal with special Leave to appeal granted by supreme Court under article 128(2) of the Constitution of the Democratic socialist Republic of sri Lanka.

s.C. appeal No. 17/2013

s.C.spl. La No. 207/2012

C.a.No. . 297/2008

HC. Kurunegala No. 259/2006



Colombo 12.

Complainant

Vs.

ambagala Mudiyanselage samantha sampath,

No. 03,

Urupitiya.

accused

and Between



Colombo 12.

Complainant-appellant

Vs.


No. 03,

Urupitiya.

accused-Respondent

Page 2

and Now Between


Sentencing

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when the case was taken up for trial in the High Court of Kurunegala, the appellant-pleaded guilty to the charge and the learned High Court Judge committed the appellant on his own plea of guilt. Thereafter, the High Court imposed a term of 2 years rigorous imprisonment suspended for a period of 10 years and a fine of Rs.5000/- with a default sentence of 1 year rigorous imprisonment and also ordered the payment of Rs.200,000/- as compensation to the victim of the crime W.C. Janitha Perera.

Being aggrieved by the punishment imposed on the appellant by the High Court, the Respondent attorney General preferred an appeal to the Court of appeal. On 24.07.2012, the Court of appeal pronounced the judgment setting aside the punishment in the nature of the suspended term of imprisonment imposed by the High Court and substituting therefor the minimum term of imprisonment that may be imposed for the offence, ie. 10 years rigorous imprisonment. However the Court of appeal did not interfere with the fine and the order for compensation imposed by the Learned High Court Judge. The appellant has appealed from the judgment of the Court of appeal and special Leave was granted by this Court as aforementioned on one question of law.

The argument of the appellant at the hearing of this appeal was that the judgment in the case of sC. Reference No. 03/2008 recognizes the imposing of sentences below the minimum mandatory sentence after considering the circumstances of the particular case and that the present case should be reviewed accordingly. The appellant prays that this Court should exercise its discretionary power and affirm the High Court judgment which imposed a sentence below the minimum mandatory sentence to the appellant setting aside the Court of appeal judgment. The argument of the Respondent was that the judgment in sC. Reference 03/2008 with regard to the constitutionality of the penal provision in section 364(2)(e) of the Penal Code amended by act No. 22 of 1995 concerning the minimum mandatory term of imprisonment, is outside the jurisdiction of the supreme Court and should therefore not serve as a valid or binding precedent. The Deputy solicitor General further argued that upon

the conviction of any person for having committed an offence in terms of section 364(2)(e) of the Penal Code, i.e. „statutory rape, the Court is obliged to impose a term of rigorous imprisonment which is not less than 10 years.

The facts in this case can be narrated as follows. The appellant, a labourer in occupation had married the victim’s sister. They had no children in that marriage. The victim’s sister had left the country without the consent of the husband about an year after the marriage. The appellant was then invited by the victims parents ie. his mother in law and father in law, to come and live with them in their house. The victim was a 15 year old girl attending school. Only four of them lived in that house. The girl was found to be pregnant when her mother took her to the hospital when she was unwell. Then the pregnancy was 5 months old. The parents stopped her going to school; told the appellant not to come home again; took her to another village and kept her there, with an older married couple who had no children, having in mind to hand over the baby to them when it is born. The parents did not go to the Police. The victim girl did not make any complaint at that time to the Police.

Most unexpectedly, some outsider had informed the Police of the area that the appellant and the victim were mysteriously missing from that house. It is only then that the Police had launched an investigation and found that the girl was away in another house whereas the appellant was living with his parents in his village close by. The statement made to the Police revealed that the girl was only 15 years old, and then the appellant was taken into custody and was later enlarged on bail.

The victim gave birth to a baby girl on 19.07.2004 in the Kuliyapitiya Base Hospital. It is the appellant who informed the Registrar of Births of the area that the baby girl was born, according to her birth certificate filed of record. It is mentioned therein that the father of the baby is the appellant, a.M. samantha sampath and that the parents were not legally married. It is accepted that at the time of her birth, the baby girl sanduni Wasana had a father, the appellant and a mother, the victim.

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The attorney General forwarded an indictment to the High Court dated 04.08.2006. It was taken up for trial on 28.10.2008 for the first time. The appellant pleaded guilty to the charge of rape of a girl below 16 years and he was subject to punishment by the High Court under section 364(2)(e) of the Penal Code as amended by act No 22 of 1955. The baby sanduni Wasana is being paid maintenance by the appellant and moreover he visits the school as the father of the child when called upon to do so; has arranged the transportation to and from the school and sends money to maintain the child. The High Court imposed a punishment of 2 years RI. suspended for 10 years and imposed a fine and compensation.

The attorney General appealed against this sentence to the Court of appeal. It was argued on 24. 07.2012 and decided also on 24.07.2012, i.e. on the same day and the Court of appeal set aside the suspended sentence and imposed a punishment of 10 years rigorous imprisonment. It is from that judgment that the appellant is before this Court.

In my mind, the sole question to be decided is whether a mandatory minimum sentence imposed by statute i.e. section 364(2)(e) of the Penal Code stifles the hands of the Court imposing the punishment thus taking away the judicial discretion in sentencing or whether Court is bound to impose the mandatory minimum sentence. since the said sentence, according to the judgment of the supreme Court in s.C. Reference 03/2008, is in conflict with articles 4(c), 11 and 12(1) of the Constitution, the High Court held that it is not inhibited from imposing a sentence that it deems appropriate in the exercise of its judicial discretion notwithstanding the minimum mandatory sentence.

I believe that every Judge who sits in a Court and hears the case in the Court of first instance gets the opportunity not only to hear the case but also to see the case with the physical eye, to smell the case, to feel the case and to fathom the case with the present mind. The Judge could hear the words of evidence and observe the body language of those who give evidence.

In this case, leave aside the victim of rape and the appellant, there exists a child born into this world as a

consequence of the sexual intercourse between the two and that child is a girl child who is now over 10 years of age. she is getting the benefit of the presence of the father and the mother as at present. The appellant is willingly working for the support of the child.

The Charter on the Rights on the Child as declared in the Children’s Charter 1992 to which sri Lanka has proclaimed to be a party, article 03(2) reads thus:- “The best interest of the child shall be the primary consideration in any matter, action or proceeding concerning a child, whether undertaken by any social welfare institution, court of law, administrative authority or any legislative body ”. article 7 of the same reads:- “a child shall be registered immediately after birth and shall have the right from birth to a name, right to acquire a nationality and as far as possible the right to know and be cared for by his parents”.

In the case of Dharma sri Tissa Kumara Wijenaike Vs. attorney General (sC. appeal No. 179/2012- minutes of 18.11.2013) Justice Tilakawardane commented that “the decision appears to be based on the reality that the Court is the upper guardian of a child”.

In the present case, there is an existing 3rd person in the picture, ie. the 10 year - old girl who is born and living in this world as a result of the victim and the appellant having had sexual intercourse. It is the appellant who is the father of the child who at all times concerned has truly and sincerely declared to be the father and is parenting and minding the child born to the victim. It is a special case where the Court has to give its mind to a 3rd party who happens to be in existence as a consequence of statutory rape to which the father of the child has pleaded guilty to. supposing the appellant is sent to jail for 10 years to come, the girl child of 10 years at present will not get the love and affection, care and support of the father to whom she looks up to at present and would not ever understand the concept of the state punishing him for „statutory rape committed on her mother, for which the girl is made to suffer for no wrong committed by her at any time in her life, during her prime childhood which is included in the 10 years of rigorous imprisonment i.e. until she is 20 years of age. This fact is a matter of

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grave concern of this Court as “the Court is the upper guardian of any child on earth”.

I would like to analyse the judgment in the case of s.C. Reference 03/2008. It was a matter of a Reference made to the supreme Court in terms of article 125(1) of the Constitution of the Democratic socialist Republic of sri Lanka, made by the High Court Judge of anuradhapura inquiring “whether section 364(2) of the Penal Code as amended by Penal Code (amendment) act No. 22 of 1995 has removed the judicial discretion when sentencing an accused convicted of an offence in terms of that section.” The Learned High Court Judge had submitted her observations to the effect that the medical report negates the use of force and support the position that sexual intercourse had been consensual. The supreme Court stated that even though the woman’s consent was immaterial for the offence of rape when she is under the age of 16 years, a woman’s consent is relevant for a Court, in the exercise of its discretion in deciding the sentence for such an offence. The High Court Judge had also noted that a custodial sentence of 10 yrs. R.I. would not benefit the complainant. The supreme Court had also observed that there was no mandatory minimum sentence before the amendment No. 22 of 1995 to the Penal Code, when it made the determination in sC Ref. 03 / 2008.

The supreme Court considered article 4(c), article 11 and article 12(1) of the Constitution, in s.C. Reference 03/2008. This case discussed many special Determinations such as sC./sD 6/98, 7/98, 4/2003 and 5/2003 where it was decided that the Bills before Parliament in the respective Determinations which tried to impose „mandatory minimum sentences’ were held to be inconsistent with articles 4(c), 11 and 12(1) of the Constitution. The reasons attributed to the said decisions were as follows:-

(a) The imposition of mandatory minimum sentences would result in legislative determination of punishment and a corresponding erosion of a judicial discretion and a general determination in advance of the appropriate punishment without a consideration of relevant factors which proper sentencing policy should not ignore; such as the offender and his age,

and antecedents, the offence and its circumstances (extenuating or otherwise), the need for deterrence and the likelihood of reform and rehabilitation.

(b) The imposition of mandatory minimum sentences would result in imposing identical sentences in case where court thinks it appropriate and where Court thinks it most inappropriate which amounts to treating unequals as if they were equals, in violation of article 12(1).

(c) The effect of imposition of mandatory minimum sentences would amount to an erosion of an essential judicial discretion in regard to sentencing. There would be gross disparities in sentences, which will not only violate the principles of equal treatment but may even amount to cruel punishment.

The supreme Court held in s.C. Reference 03/2008 that “as far as section 364(2)(e) of the Penal Code is concerned, the High Court has been prevented from imposing a sentence that it feels is appropriate in the exercise of its judicial discretion due to the minimum mandatory punishment prescribed in section 364(2)(e). Having regard to the nature of the offence and the severity of the minimum mandatory sentence in section 364(2)(e) is in conflict with articles 4(c), 11 and 12(1) of the Constitution.”

In the present case in hand, the learned Deputy solicitor General argued that s.C. Reference 03/2008 judgment is contrary to the limitation on judicial review as contained in article 80(3) of the Constitution and is therefore unconstitutional and outside the jurisdiction of the supreme Court.

In that case, the supreme Court also held that,

“article 80(3) only applies where the validity of an act is called into question. However, article 80(3) does not prevent a Court from exercising its most traditional function of interpreting laws. Interpretation of laws will often require a Court to determine the applicable law in the event of a conflict between two laws. This is a function that has been exercised by this Court from time immemorial”.

I find that the issue in the present case is a conflict between the provisions in an ordinary law, ie.

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the Penal Code and the provisions in the Constitution. The Constitution is accepted as the supreme Law of the country and the ordinary laws derive their validity from the Constitution. The provisions in the ordinary law should be interpreted in the light of the Constitutional provisions. The Constitution should be used as a flash-light on the provisions of the ordinary law. any mandatory minimum sentence imposed by the provisions of any ordinary law, in my view is in conflict with article 4(c) 11 and 12(1) of the Constitution in that it curtails the judicial discretion of the Judge hearing the case. For example, the state files criminal cases against persons in the society; then these persons face the charges in Court and defend themselves; at the time of conviction, Court hearing the criminal case has no doubt that the accused is guilty or not. If the state proves its case without any doubt, the suspect is found guilty; otherwise he is acquitted. Court has „no discretion’ in that part of the trial which is decided on the evidence before court. It is only in deciding on the punishment that the Court has a discretion. When a minimum mandatory sentence is written in the law, the Court looses its judicial discretion. That part of the law with the minimum mandatory sentence, acts as a bar to judicial powers in sentencing or punishing the wrong doer. The Judge who has seen, felt and smelt the case should be given the discretion in sentencing, considering all the circumstances of the case, the consequences of a sentence, whether it serves as cruelty to the wrong doer, the victim or any other person affected by that sentence etc. sentencing is the most important part of a criminal case and I find that provision in any law with a minimum mandatory sentence goes against the judicial discretion to be exercised by the Judge.

In the present case, we must look at the big picture with the victim of rape the appellant, the father of the child born, and the 10 year- old girl child who was born into this world as a result of the victim having been raped. The victim of rape never complained to the Police until after a pregnancy of 5 months when Police on its own came to the victim in search of her when an outsider informed the Police of her missing from home. There was no chance for the victim to give evidence as the appellant pleaded guilty to the charge of statutory rape of the victim. There is a bar for the

victim and the appellant to enter into a marriage as the appellant is already legally married to the victims sister who is living abroad. The child is being looked after by the appellant father in the eyes of the society, and the child is dependent on the income earned by the appellant.

In these circumstances I hold that the Learned High Court Judge had correctly imposed a suspended sentence of “2 years RI. suspended for 10 years”. I agree with the decision of the supreme Court in s.C. Reference 03/2008 and uphold the conclusion of that case that the minimum mandatory sentence in section 364(2)(e) is in conflict with

articles 4(c), 11 and 12(1) of the Constitution and that the High Court is not inhibited from imposing a sentence that it deems appropriate in the exercise of its judicial discretion notwithstanding the minimum mandatory sentence.

I set aside the judgment of the Court of appeal dated 24.07.2012 and affirm the judgment of the High Court dated 28.10.2008. However, I order no costs.

Judge of the supreme Courtsarath de abrew, J.I agree.Judge of the supreme CourtP. Jayawardena,PC. J.I agree.Judge of the supreme Court

I have always found that mercy bears richer fruits than strict justice - abraham Lincoln -

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In The Supreme Court Of The Democratic Socialist Republic Of Sri Lanka

s.C. appeal No. 155/2011

sC/HCCa/La No. 224/2011

NWP/HCCa/KUR/08/2005(F)

D.C. Kuliyapitiya Case No. 3901/L

Ranasinghe arachchilage samadara Malini Ranasinghe

(Deceased)

PLaINTIFF

1a. senarath arachchilage William singho

1B. senarath arachchilage Thushara senarath

1C. senarath arachchilage samindra senarath

1D. senarath arachchilage Lasantha senarath

all of Weralugama Kuliyapitiya (Post)

sUBsTITUTED-PLaINTIFFs

Vs.

adhikari appuhamilage appuhamy

(Deceased)

DEFENDaNT

1a. Wijesinghe arachchilage Rosalin Nona

(C/o. Balagolla Kade, Kobeygane (Post)

1B. Kalubowila appuhamilage Rosalin Nona

1C. adhikari appuhamilage ariyawansha

1D. adhikari appuhamilage Gunawansha

1E. adhikari appuhamilage Gunasinghe

1F. adhikari appuhamilage Wijesinhge

1G. adhikari appuhamilage Weerawansha

1H. adhikari appuhamilage ariyakusum

1I. adhikari appuhamilage Chandra Kusum

1J. adhikari appuhamilage Dimuna sanjeewanie

all of No. 13, Jayasirigama, Pannala (Post)

1K. Jayalath Balagallage solomon Dias

1L. Jayamanna

Both of Thalammehera, Pannala (Post)

sUBsTITUTED-DEFENDaNTs

aND BETWEEN

1k. Jayalath Balagallage solomon Dias

Thalammehera, Pannala (Post)

1K sUBsTITUTED-DEFENDaNT-aPPELLaNT

Vs.


(Deceased)






s U B s T I T U T E D - P L a I N T I F F s -REsPONDENTs


(Deceased)


Trial de novo

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Balagolla Kade, Kobeygane (Post)











1L. Jayamanna

of Thalammehera, Pannala (Post)

s U B s T I T U T E D - D E F E N D a N T-REsPONDENTs

aND NOW BETWEEN

1k. Jayalath Balagallage solomon Dias

Thalammehera, Pannala (Post)

1K sUBsTITUTED-DEFENDaNT-aPPELLaNT-aPPELLaNT

Vs.


(Deceased)






s U B s T I T U T E D - P L a I N T I F F -REsPONDENT-REsPONDENTs


(Deceased)


Balagolla Kade, Kobeygane (Post)











1L. Jayamanna

of Thalammehera, Pannala (Post)

s U B s T I T U T E D - D E F E N D a N T-REsPONDENT-REsPONDENTs

BEFORE: Chandra Ekanayake J.,

Rohini Marasinghe J. &

anil Gooneratne J.

COUNsEL: W. Dayaratne P.C. with Ms. D.N. Dayaratne

for the 1K substituted-Defendant-appellant-appellant

Dr. Jayatissa de Costa P.C., with Daya Guruge

For the substituted-Plaintiff-Respondent-Respondent

aRGUED ON: 11.02.2015

DECIDED ON: 02.04.2015

GOONERaTNE J.

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This is an appeal from the judgment of the High Court (Civil appeals) of the North Western Province, delivered on or about 19.5.2011. Leave to appeal was granted by this court on 07.10.2011, on questions of law referred to in paragraphs 17(a), (b), (c) and (i) of the petition of 1K substituted-Defendant - appellant-Petitioner. (reference to above paragraphs will be done subsequently) It would be necessary to briefly refer to the facts of the case and to the order made by the Court of appeal on 02.10.1992, for a trial De Nova, prior to considering the judgment of the said High Court, and the appellant’s case.

The original Plaintiff was one Malani Ranasinghe who filed action in the District Court of Kuliyapitiya in case No. 3901/L for a declaration of title to the land described as lot 2 of “Meegahamulawatta’ alias Kongahamulawatta in an extent of about 2 Roods, 37.5/.24 perches and for damages and ejectment of the Defendant-Respondent. Original-Plaintiff ’s position was that the land in dispute was partitioned on or about 1954 (Plaintiff ’s grand-father by virtue of the partition decree became entitled to said lot 2) and that the Defendant was in possession of the land with the permission of the said Plaintiff ’s grand-father. However Defendant made a claim to the land in dispute based solely on prescriptive title. It was the view of the Court of appeal (vide order of 02.10.1992) that there were certain shortcoming in placing evidence before the District Court and both parties have not proved each other’s case and as such the Plaintiff should have taken a commission to identify the land in dispute properly, since the land in question had been described by more than one name. Court of appeal set aside the judgment and decree entered by the learned District Judge, dismissing the action, and ordered a trial De Nova. In doing so the Court of appeal observed that it is open for parties to lead any further oral or documtentary evidence.

In compliance with the Court of appeal order fresh trial was held in the District Court on issues already settled earlier before the District Court. However the learned District Judge dismissed the claim

based on prescriptive title of the Defendant-appellant and entered judgment in favour of the Plaintiff. In the appeal to the High Court by the Defendant-appellant the learned High Court Judge dismissed the appeal.

It must be noted that the 1st abortive trial commenced on 24.11.1977. During the course of the second trial before the District Court both original Plaintiff and Defendant died and 1a to 1D substituted Plaintiffs and 1a to 1L substituted Defendants were substituted. In the second trial before the District Court which is in fact relevant to this appeal, Plaintiff ’s party led the evidence of surveyor, substituted 1a Plaintiff, and led evidence of the depositions and read in evidence the depositions as per section 33 of the Evidence Ordinance of original Plaintiff ’s wife Leanora. Deposition produced and marked as P12 which was her evidence in the first trial. In the same way the deposition of one Dhanapala was produced and marked as P14 & P14a, without any objection.

The learned President’s Counsel for the appellant contended before this court that Plaintiff failed to establish title to the land in dispute or to the title pleaded in the plaint and that the Defendant-appellant has placed sufficient evidence of undisturbed and uninterrupted adverse possession of the corpus for a period of over 40 years. On that basis learned President’s Counsel for appellant argued that his client has prescribed to the land in dispute. He further argued that based on the evidence of the Plaintiff ’s party alone, the appellant was successful in establishing undisturbed, uninterrupted and independent possession to the land in question. at a certain point of time in his submissions, learned President’s Counsel also thought it fit to submit to this court that the inventory filed in the testamentary case which was filed after the demise of the original owner Plaintiff ’s father does not include the land in dispute, although Plaintiff ’s mother Leanora Ranasinghe was the executor and beneficiary to the last will.

I would at this point of the judgment advert to some of the salient points emphasized by the learned President’s Counsel on behalf of the appellant.

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(a) Civil appellate High Court failed to consider whether the District Court properly investigated title of the original plaintiffs.

(b) Civil appellate High Court failed to consider the directions given by the Court of appeal to commence the trial De Novo which is also a direction to adopt the previous evidence of the abortive first trial in the District Court

(c) In a rei vindication suit it is not necessary to consider whether Defendant has title and possession where Plaintiff fails to prove title to the corpus. If it is so action should be dismissed by the learned District Judge. On the other hand learned Counsel for the substituted Plaintiff-

Respondent in his brief submissions supported both the judgment of the learned District Judge which was delivered on 18.01.2005 and the judgment of the Civil appellate High Court. Learned Counsel for the Respondent emphasized that Plaintiff had good paper title based on a partition decree of 1954 which by a process and inheritance devolved on the Plaintiff. He also submitted that the burden of proof in a case of this nature would shift to the Defendant party to prove title, as per section 3 of the Prescription Ordinance.

It is also Trite Law that Plaintiff should set out his title on the basis on which he claims a declaration of title to the land in dispute and the burden rest on the Plaintiff to prove that title as against the opposing Defendant party. Vide Wanigaratne Vs. Juwanis appuhamy 65 NLR 167. The other important principle would be as set out in Karunadasa Vs. abdul Hameed 60 NLR 352 per sansoni J. “In a rei vindication action it is highly dangerous to adjudicate on an issue of prescription without first going into and examining the documentary title of the parties.

The aspect of evidence which is of much significance is the depositions produced and read in evidence marked P12, P14 & P14a. Evidence given under section 33 of the Evidence Ordinance is substantive evidence used to prove the truth of facts and not merely

used to contradict. s.s. Fernando Vs., the Queen 55 NLR 392; King Vs. sudu Banda 47 NLR 183; 47 NLR 203. No doubt the trial Judge approached the case with a clear understanding of all above and the factual and legal position of the Defendant-appellant’s case, and that of the Plaintiff-Respondent.

This was an action that spread over a fairly long period of time. The learned counsel on either side argued this appeal of substituted parties. In fact over the years parties had to go through and taken along the path which resulted in four judgments being pronounced by our courts, prior to this appeal being heard, by the appex Court. Notwithstanding the position taken up by the appellant the starting point for the parties concerned emerge from the judgment pronounced by the Court of appeal which gave a ruling as regards the future course of action which set aside the 1st judgment of the District Judge. In civil disputes parties could come to certain understandings and agree on certain matters. as such in the 2nd trial an admission was recorded and both parties agreed as regards the corpus, and identity of the land in dispute. (lot (1) in plan 764) Parties also agreed to proceed to trial on issues raised in the 1st abortive trial.

I find that the learned trial Judge has adequately investigated title of the predecessors of the substituted-Plaintiff-Respondent and that of the Plaintiff-Respondent, samadara Malini Ranasinghe. Documents relevant to the case had been produced marked P1 – P16. although the apex Court or any other court sitting in appeal is not required to re-write the judgment and evidence led at the trial, it would be prudent to refer to certain items of evidence which fortify substituted-Plaintiff-Respondent’s case. The surveyor’s evidence remains uncontradicted. Documents P1- P4 being documents relevant to the testamentary case pertaining to the original owner of the property in dispute, conditional transfer deed, the transfer deed in favour of original Plaintiff s. Malini Ranasinghe and the important documents inclusive of documents pertaining to partition decree were all produced and marked without any objection. so are the

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other documents produced on behalf of the Plaintiff-Respondent. at the close of the Plaintiff ’s case all Plaintiff ’s documents were read in evidence without any objection. The learned trial Judge has given his mind to each and every document produced by the Plaintiff ’s party. There are also findings of the trial judge as regards the substituted-appellant’s predecessor’s possession to the land in dispute. It was the view of the learned trial Judge that the original Defendant being a relative of the Plaintiff entered the land in dispute and possessed it with the permission of the original Plaintiff ’s, father.

Evidence of Leanora Ranasinghe (P12) also suggest that her husband used to collect and enjoy the produce (coconuts) and after his death she had collected the coconuts from the land in dispute. Partition decree may not bind the state, but such a decree would be good and conclusive against all persons whomsoever. Therefore the substituted-Plaintiff ’s party had good title, to begin with this suit.

It is of much importance to consider the last will P1 and deed marked and produced P2. Trial Judge has given serious consideration to deed P2 which was a conditional transfer in favour of one Karunaratne, and deed P2 refer to deed No. 2356 and its schedule and also includes the land in dispute described by its name and details of lot 2 in plan No. 237 emanating from the partition decree covering the extent of 2 Roods and 37.5/24 perches. P2 also state that Leanora Ranasinghe became entitled to the land in dispute by virtue of testamentary case anuradhapura No. 655/T. Thereafter both Leanora Ranasinghe and the above named Karunaratne transferred the property in dispute to the original Plaintiff by deed P3. Trial Judge emphasis that both P2 and P3 deeds, refer to the land which devolved from partition case 9259/P and described in plan 237 as lot 2 and that it is the same land described in deed P4 (land subject to the final partition decree). Therefore the land described in plan P5 is one and the same land referred to in P1 – P4. It is also shown in Plan P9.

I wish to observe that this court need not be concerned of the abortive first trial and judgment which was set aside by the Court of appeal. It is the second trial that matters since parties agreed to proceed to trial based on certain understandings and admissions reached between them. as such I would reject the submission that, Plaintiff ’s action was dismissed by the learned District Judge in the abortive trial, on the basis that title was not established by original Plaintiff. In fact it would be misleading and unnecessarily confusing to select and apply items of evidence from the abortive trial, merely to match and suit the appellant’s case. The learned trial Judge has analysed title of Plaintiff ’s party in an acceptable and convincing manner according to law. I also emphasis that the original Plaintiff ’s mother Leanora Ranasinghe was the beneficiary and heir to all the properties of her deceased husband Kiribanda Ranasinghe. In the last will the husband had also nominated her as the executor. The last will was duly proved in the testamentary proceedings. If any argument was advanced that the subject property was not included in the inventory cannot have any impact to defeat the title of any property lawfully devolved on the original owner Kiribanda Ranasinghe who bequeath all his properties to his wife Leanora. as such one cannot be permitted to pick on another clause in the last will where the testator required his funeral rights to be performed along with his five children. such a request and desire is separate and distinct to the testators wish to convey all his properties to his wife, to the exclusion of all others.

The only issue relied upon by the Defendant is issue No. (6) based on prescriptive rights. Learned District Judge very correctly observes that the evidence of 1K Defendant-appellant only suggest mere possession, and the two witnesses who gave evidence on behalf of the Defendant was highly unsatisfactory and unsupportive of possession as no specific knowledge or instances of possession had not been demonstrated by them. The items of evidence established by the Plaintiff ’s party that the original Defendant entered the land with the permission of Kiribanda Ranasinghe

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had not been disproved by the Defendants-appellant’s party. There is nothing to show that the nature of possession as above changed or turned to be adverse and independent to that of the original owner. If it was the case that Defendant was in possession for long years (possession of Defendant party not denied by Plaintiff ’s party) something equivalent but nothing short of ‘ouster’ could bring the desired result for the appellant to prescribe to the land in dispute. Let us see what type of acts could be considered as ‘ouster’.

In the case of Rajapakse Vs. Hendrick singho 61 NLR 32.

There was overwhelming evidence that the defendants, since the year 1922 were not only in occupation of the land but also took its produce to the exclusion of the plaintiffs and their predecessors in title and gave them no share of the produce, paid them no share of the profits, nor any rent, and did not act from which an acknowledgement of a right existing in them would fairly and naturally be inferred, It was held in this case that the evidence disclosed an ouster of the plaintiffs by the defendants and that the ouster continued for a period of over ten years.

In this case the acts like the occupation of the land by the defendants since 1922, taking the produce to the exclusion of the plaintiffs, non-payment of the share of profits to the plaintiffs and the act of not giving any share of the produce to the plaintiffs were considered as “ouster”.

Mere possession for a period of time cannot give rise to a plea of ‘ouster’. as recognized in the above case, to prevent possession and enjoyment of the produce derived from the land in question to the exclusion of the owner would be an essential fact. Evidence of the Defendant party suggest only mere possession.

I would fortify my views with reference to the following decided cases.

Navaratne Vs. Jayatunge 44 NLR at pg. 517…..

Where a person enters into occupation of property belonging to another with the latter’s permission he cannot acquire title to such property by prescription unless he gets rid of his character of licensee by doing some overt act showing an intention to possess adversely.

Naguda Marikar v. Mohammedu (7 N.L.R. 96) followed.

sirajudeen and Two Othrs Vs. abbas 1994(2)s.L.R at pg. 365…

Where the evidence of possession lacked consistency, the fact of occupation alone or the payment of Municipal rates by itself is insufficient to establish prescriptive possession.

Where a party invokes the provisions of section 3 of the Prescription Ordinance in order to defeat the ownership of an adverse claimant to immovable property, the burden of proof rests squarely and fairly on him to establish a starting point for his or her acquisition of prescriptive rights.

a facile story of walking into abandoned premises after the Japanese air raid constitutes material far too slender to found a claim based on prescriptive title.

as regards the mode of proof of prescriptive possession, mere general statements of witnesses that the plaintiff possessed the land in dispute for a number of years exceeding the prescriptive period are not evidence of the uninterrupted and adverse possession necessary to support a title by prescription. It is necessary that the witnesses should speak to specific facts and the question of possession has to be decided thereupon by Court.

One of the essential elements of the plea of prescriptive title as provided for in section 3 of the Prescription Ordinance is proof of possession by a title adverse to or independent of that of the claimant or plaintiff. The occupation of the premises must be of such character as is incompatible with the title of the owner.

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The judgment of the Civil appellate High Court delivered on 19.5.2011, ultimately decided to dismiss the appeal. When a Court of law sit in an appellate capacity according to law, there cannot be a necessity to refer to all items of evidence and re-write the evidence. The Civil appellate High Court has no doubt examined two important aspects of this case. i.e Plaintiff-Respondent’s title to the property in dispute and the claim of the 1K Defendant-appellant based on prescriptive rights. On the question of title the High Court takes the view that with or without a last will, under the common law, on inheritance title devolves on a half share basis to the original owner’s wife Leanora and the Plaintiff. This part of the analysis by the High Court Judge would be to demonstrate, in any event the entitlement of Plaintiff, under laws of succession and inheritance. However the Civil appellate High Court has considered the last will P1 of the original owner “Kiribanda”, who bequeath all his properties both movable and immovable to his wife Leanora. The last will P1, was duly proved in the testamentary proceedings, held in the District Court of Kurunegala. Even if a doubt as regards the subject property being not included in the inventory filed in the testamentary case, it cannot defeat the original owner’s right and title to the properties, he owned during his life time. On an examination of the last will P1, it is clear beyond doubt that the original owner’s wish and intention was to bequeath all his properties to his wife, Leanora.

Therefore all deeds executed by Leanora the mother of the original Plaintiff would be valid for all future ‘transfers’ and ‘gifts’ of property. as such this court is not in a position to disturb the findings of the Civil appellate High Court. Further on the question of prescriptive rights, the views of the Civil appellate High Court need not be disturbed, as it is clear that the provisions contained in section 3 of the Prescription Ordinance had not been adequately proved before the Original Court, by the appellants. I have already dealt with the question of ‘ouster’, from which appellants are unable to get any benefit based on same. as such I have no alternative but to dismiss this appeal. The questions of law are answered as follows:

17. (a) Have their Lordships of the Civil appellate High Court completely failed to consider whether the learned additional District Judge has properly and adequately investigated the title of the original Plaintiff ?

This question is answered in the negative. Based on the investigation

of title by the learned District Judge, the Civil appellate High Court dismissed the appeal.

17. (b) Civil appellate High Court failed to consider that in the order of the Court of appeal to hear the case de novo it was clearly stated that at the trial de novo it will be open to the parties to lead any further oral or documentary evidence by calling witnesses which will help in the decision of the case which is a direction to adopt the previous evidence as part and parcel of the proceedings of the trial de novo which was not complied with the learned District Judge, and adopted part of the evidence produced under section 33 of the Evidence Ordinance?

The Court of appeal set aside the judgment of the trial court and directed that trial de novo be held. Court of appeal never gave any direction to adopt the evidence in the abortive 1st trial. Only observation by the Court of appeal was to enable parties to lead both oral and documentary evidence. Learned District Judge cannot be faulted in any manner for compliance of an order of the Court of appeal. I observe that the appellant merely seeks to confuse the issues, but the learned District Judge had correctly adhered to the directions given by Court of appeal.

17. (c ) Have Their Lordships of the Civil appellate High Court completely failed to consider the well-established legal principle that rei vindicatio action, it is not necessary to consider whether the defendant has any title or right to possession where the Plaintiff has failed to establish title to the corpus and the action ought to be dismissed?

Civil appellate High Court based on the learned District Judge’s judgment examined title of

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Plaintiff-Respondent. learned High Court Judge has also considered prescriptive rights in relation to the provisions contained in section 3 of the Prescription Ordinance. as such the question posed does not arise.

17. (i) Have their Lordships of the Civil appellate High Court misdirected themselves in considering the lack of evidence as to the nature of possession of the original Defendant and the capacity in which he entered upon the corpus when their Lordships should have in fact considered those issues in relation to the original Defendant and not in relation to the Petitioner who has been merely substituted in his place?

The Civil appellate High Court as well as the learned trial Judge very correctly considered the judgment of the Court of appeal. Judgment delivered by the 1st trial Judge has been set aside by the Court of appeal. There was no application by the substituted-Defendant-appellant to read in evidence as per section 33 of the Evidence Ordinance the evidence of the

A human being is part of the whole called by us “Universe”.... a part limited in time and space. He experiences his thoughts and feelings as separate from the rest - a kind of optical delusion of his own consciousness. This delusion is a prison for us restricting us to our personal desires and to affection for a few persons nearest to us. Our task must be to free ourselves from this prison by widening our compassion to embrace all living creatures and the whole of nature and its beauty. - Albert Einstein -

original Defendant in the previous proceedings between parties. In these circumstances, there is no obligation vested in the original court to consider the evidence as suggested by the appellant, in the abortive trial, as regards the appellants.

accordingly this appeal is dismissed, and the Judgment of the Civil appellate High Court is affirmed. There shall be no costs in all the circumstances of this case.

JUDGE OF THE sUPREME COURT

Chandra Ekanayake J.

I agree.


Rohini Marasinghe J.

I agree.


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In The Court Of Appeal Of The Democratic Socialist Repuplic Of Sri Lanka.Ca (PHC)120/2012.

HCR/Ratnapura/21/2011

1. M C NIsHaNTHa

2. P N WIJEPaLa

3. W M HEENMENIKE

4. W W INDIKa RUWaN

CLaIMaNT-PETITIONER-aPPELLaNTs IN Ca 120/2012, Ca 108/2012, Ca 107/2012 and Ca 119/2012.

BEFORE: a.W.a saLaM, J (PREsIDENT) & sUNIL RaJaPaKsE, J

COUNsEL: IN Ca 107/2012, Ca 119/2012, 120/2012, – M C M MUNEER aND IN Ca 108/2012 CHaTHURa GaLHENa FOR THE aPPELLaNTs aND THUsITH MUDaLIGE ssC FOR THE sTaTE.

aRGUED ON: 17.2.2014

DECIDED ON 03.09,2014.

a W aBDUL saLM, J (P/Ca).

This appeal involves the confiscation of vehicles used in the transportation of sand, contrary to the Provisions of the Mines and Minerals act No 33 of 19921 [as amended] by act No 66 of 2009. The appellants and respondents in Ca 107/2012, Ca 119/2012 and Ca 120/2012 have agreed to abide by this judgment, since the only question of Law that arises for determination in all these appeals and Ca 108/12 is the same.

1. Hereinafter referred to as the “act”

The background to this appeal needs to be set out in a nutshell. The accused-respondent was charged in the Magistrate’s Court for transporting sand without a permit2, and found guilty on his own plea.

Upon such conviction under the act, the Magistrate is left with a discretion to forfeit any, machinery or equipment, used in, or in connection with, the commission of the offence, to the state under section 63 (b) (1).

In this case the accused stood charged with transporting sand in a lorry without a license. The question that arises for determination in this appeal is whether the expression “machinery and/or equipment” can be considered as a vehicle used for the commission of the offence.

The learned Magistrate took the view that by reason of the fact that transportation of sand being an offence and the conveyance has been done by the use of a lorry, the term equipment and/or machinery as used in section 63 (b) (1) should be construed to include a “vehicle”.

Discontentment in the mind of the owner of the vehicle arising from the ruling of the learned Magistrate resulted in his electing to invoke the revisionary jurisdiction of the High Court seeking a variation of the order. The end result of the revision application was that learned High Court Judge affirmed the confiscation of the vehicle concluding that a vehicle is a necessary equipment for moving a thing from one place to another and therefore is liable to be forfeited under the Mines and Minerals act. This appeal has been preferred against the said judgment of the learned High Court Judge.

The learned High Court Judge was guided by the meaning attributed to the words “machinery”, “equipment” and “vehicle” in the Oxford advanced Learners Dictionary (6th edition-2000) and The

2. Which is an offence under section 28(1) of the Mines and Minerals act

Mines and Minarals Act - Confiscation of Vehicles-

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Concise Oxford Dictionary of Current English (8th edition-1990) to give effect to section 63 (b) (1) of the act.

according to the dictionary meaning relied upon by the learned High Court Judge “machinery” means, machines as a group, especially large ones, agricultural/industrial machinery and the parts of the machine that makes it works. an alternative definition given in the judgment to “machinery” is machines collectively or components of a machine or mechanism. The word “equipment” in the impugned judgment is defined as “the things that are needed for a particular purpose or activity” or “the necessary articles, clothing etcetera for a particular purpose”.

as is referred to in the impugned decision, as per the Oxford advanced Learners Dictionary (6th edition-2000) and The Concise Oxford Dictionary of Current English (8th edition-1990), the word vehicle means “a thing that is used for transporting people or goods from one place to another or any conveyance for transporting people, goods etcetera especially on land”.

Relying heavily on the meaning attributed to the relevant expressions, the learned High Court Judge arrived at the following conclusion.

“It is the considered opinion of this court that the vehicle is a necessary article or thing for the purpose of transporting minerals. In that context vehicle could be considered as equipment for the purposes of the Mines and Minerals act.

This court is of the view that the learned Magistrate had not erred himself in law, when he made the order, while holding that word “equipment” has to be interpreted for the purposes of the Mines and Minerals act to include the “vehicles” as well3”.

The contention of the appellant is that a vehicle cannot be forfeited in terms of section 63 (b) (1) of the Mines and Minerals act, as vehicles are not included and therefore not meant to be forfeited.

3. Vide page 5 of the impugned judgment- para-graphs 2 and 3.

There are several Enactments which envisage the confiscation of a vehicle used in the commission of an offence. These Enactments specifically refer to the word “vehicle” or such other expression to the like effect. For purpose of a fuller discussion on the question, I propose to refer to some of the Enactments in which the word vehicle or expression to the like effect has been referred to by the Legislature.

In terms of section 40 of the Forests Conservation Ordinance upon the conviction of a forest related offence the tools, vehicles, implements, cattle and machines used to commit such offence, should necessarily be confiscated subject to the owner, if he be not the offender, being afforded an opportunity to show cause against an order of a possible confiscation.

It is quite clear that in the Forest Conservation act, the words machines, tools and implements have been used as being articles subject to confiscation in addition to “vehicles” and “cattle”. In the case of a cart usually drawn by cattle both the cart and the animals are meant to be confiscated as the confiscatory clause includes both.

significantly, section 78 of the Forest Conservation Ordinance defines the word “vehicle” as a boat, cart, motor vehicle, tractor, trailer, container, raft, tug or any mode of transport whether motorized or otherwise. Cattle, under section 78 includes elephants, buffaloes, neat cattle, horses, ponies, mules, asses, pigs, sheep, goats, and the young of the same.

The animals act- Chapter 570 of the Legislative Enactments- under section 3a, enacts that any vehicle used in the transportation of cattle without a permit shall, be liable, by order of the convicting Magistrate, to confiscation.

The Excise Ordinance of No 8 of 1912 which basically deals with the law relating to the import, export, transport, manufacture, sale and possession of intoxicating liquor and intoxicating drugs, by section 54 identifies as to what things are liable to be confiscated under that Ordinance when an offence is committed against the Provisions of that Law. In terms of section 54 (1) whenever an offence has been committed under

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the Excise Ordinance, the excisable article, material, still, utensil, implement, or apparatus, and the other contents, if any, of the receptacles or packages in which the same is found, and the animals, carts, vessels, or other conveyance used in carrying the same, shall likewise be liable to confiscation.

Under the Offensive Weapons act, in terms of section 8, dealing with the powers of the police officers with regard to a search carried out in certain premises for offensive weapons, the Legislature specifically granted the power to the police to search vehicles for offensive weapons by defining the word “premises” so as to include any place or spot, whether open or enclosed, and any ship, boat or other vessel, whether afloat or not, and any vehicle.

In terms of Motor Traffic (amendment) act No 8 of 2009, any person who contravenes the Provisions of section 17 (1), (13) or (14) shall be guilty of an offence and liable to the confiscation of such motor vehicle.

The sri Lanka Ports authority act inter alia deals with property to be taken into custody for purpose of confiscation under section 66 a. Where there is reason to believe that an offence has been committed under that act, all equipment, tools, carts, vessels, guns, tackle, apparel, motor vehicles or any other means of conveyance used in committing any such an offence may be taken into custody. However, such equipment, tools, carts, vessels, guns, tackle, apparel, motor vehicles or other means of conveyance used in the commission of any such offence shall not be taken into custody if they are liable to be taken over under the Customs Ordinance.

In terms of section 37 (2) of the Customs Ordinance, if any goods are transhipped, or attempted to be removed from one vessel to another contrary to the Provisions of the Law, such goods, together with the boat and other means used for conveying the same, may be seized and shall be liable to forfeiture.

Coast Conservation act No 57 of 1981 deals inter alia with the survey, preparation and management plan of the coastal zone. It is aimed at regulating and controlling the development activities within the coastal zone. The objectives of the Coast Conservation act are

quite similar in many ways to the Mines and Minerals act.

section 31a(1) of the Coast Conservation act enacts that it is an offence to (a) engage in the mining, collecting, possessing, processing, storing, burning and transporting in any form whatsoever, of coral; (b) own, possess, occupy, rent, lease, hold or operate kilns for the burning and processing of coral; (c) use or possess any equipment, machinery article or substance for the purpose of breaking up coral; and (d) use any vehicle, craft, or boat in, or in connection with, the breaking up or transporting of any coral but the Director, may under the authority of a licence issued in that behalf, permit the removal of coral for the purpose of scientific research.

31 a (2) states that where any vehicle, vessel, boat, craft, machinery or other equipment is used in contravention of the provisions of subsection (1) any Police Officer shall have the power to seize any such vehicle, vessel, craft, boat, equipment or machinery along with any article or substance found thereon.

Further section 31 a (3) prohibits the release of such vehicle, vessel, craft, boat, equipment or machinery seized under the Provisions of subsection (2), unless an order of court permitting such release has been obtained.

The aforementioned Provisions contained in the Coast Conservation act demonstrate in no ambiguous manner the obvious intention of the Legislature towards the implementation of the scheme as embodied in that act. In contrast, no such draconically worded scheme to confiscate vehicles is introduced in the commission of an offence under the Mines and Minerals act. The Legislature in enacting the Provisions of the Mines and Minerals act in its own wisdom has adopted a comparatively lenient and tolerant attitude with regard to the vehicles of whatever nature that are used in the transportation of minerals and contemplated only on the machinery and equipment used in the commission of the offence.

In shantha Vs The attorney-General and another 1991 1 s L R 201 in the Court of appeal, it was pointed out by sarath N silva, J [later the Chief Justice] that under section 54 of the Excise Ordinance, the excisable article or materials or the apparatus used

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in the commission of the offence could have been confiscated and the motorcycle used for the transport is not liable for confiscation. Elaborating further the Court highlighted that the Magistrate has not indicated the Provision under which the motorcycle was confiscated and therefore set aside the order of confiscation.

In Perera Vs Van sanden 46 NLR 383 Cannon J held that where the accused was convicted, under a defence regulation, of buying cement without a permit and the Magistrate ordered the confiscation of the cement, in the absence of the Provision for forfeiture, in the penalties paragraph No. 52 of the Defence (Miscellaneous) regulations, the Magistrate had no power to order confiscation. section 413 of the Criminal Procedure Code did not justify the Magistrate’s order as the words “for the disposal of ” in the section were not sufficiently wide enough to include confiscation.

The decision in Perera Vs Van sanden 46 NLR 383 is justified in the light of the dictum of MacDonnell CJ made in the case of Police sergeant vs Raman Kankani 37 NLR 187 where His Lordship stated that “the Courts must remember that the forfeiture or confiscation is a penal Provision and the power to confiscate should clearly be given by law”.

silva Vs Muthai 45 NLR 142 concerns the violation of Regulation 6 (e) of the Defence (Purchase of Foodstuffs) Regulations, 1942, which provided that transporting country rice from one district to another an offence and in such a case the vehicle or vessel in which certain produce has been transported may, after notice to the owner of the vehicle or vessel, be confiscated. Moseley sPJ held that the bull in the circumstances of the case was unable to be regarded as a vehicle or vessel.

In 20 NLR 115 Govindan Vs Nagoor Pitchche the accused was convicted under section 53 (4) of the Police Ordinance, with obstructing a public road by a sherbet cart containing sherbet, aerated waters for sale, and was fined Rs. 5, and an order was made forfeiting the cart and its contents. Ennis J held that the order as to forfeiture was wrong.

Commenting on the Long standing assumptions of statutory Interpretation Lord Diplock in Fothergill v. Monarch airlines stated that “the Court is a mediator

between the state in the exercise of its Legislative power and the private citizen” [1981] a.C. 251, 279.

In the case of De saram Vs Wijesekara 4 CWR 403, it was held that the Provisions dealing with the disposal of properties under the Code of Criminal Procedure is never intended to authorise a court to order the forfeiture in any case where there is no express penal Provision in law requiring or permitting forfeiture of property on the commission of any offence.

It is axiomatic that in exercising the judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what has been enacted. On the contrary, Courts do not impute to the Legislature an intention to abrogate or deprive the citizens of their possessory rights affecting properties by attempting to read into the Legislation what the Legislature in reality did not intend. In this particular appeal the interpretation given to the relevant section in the lower Courts could not have been intended by any stretch of imagination. Deprivation of property rights should not be contemplated unless such an intention is clearly and explicitly manifested, indicating that the Legislature had directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment of such rights.

a reproduction of a pertinent comment by Maxwell from the fourth edition of Maxwell on statutes would throw light on the concept against deprivation of rights without the expression of clear intention. It states that it is the last degree improbable that the Legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness.

The constitution in article 28 promulgates that the exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations, and accordingly it is the duty of every person in sri Lanka inter alia to uphold and defend the Constitution and the law; to respect the rights and freedoms of others; and to protect nature and conserve riches.

as far as the various confiscatory Provisions in several Enactments are concerned, Court has to

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necessarily presume that the Legislature knew well, the confiscatory Provisions affecting vehicles contained in the Legislative Enactments prior to the passing of the statute titled “The Mines and Minerals act” and exact expressions used to favour confiscation of the vehicles. Hence, I am of the view that it is not without significance that the Legislature vested with exclusive right to deprive the citizens of their property rights, had clearly thought it fit not to use the word “vehicle” or any other words of similar meaning in the Mines and Minerals act.

In this background to construe the intention of the Legislature in any other manner would amount to making the statutory expression senseless of it and give an undue extended meaning to the word “equipment” which could never have been in the contemplation of the Law Maker even in the remotest possibility. Now, it should be crystal clear that the Parliament had never intended to enforce through court a draconic measure such as the one incorrectly construed in the order of the learned Magistrate and that of the learned Judge of the High Court.

To permit the construction of the Provisions regarding forfeiture in the relevant statute unvaried, in my opinion would amount to condoning an attempt to legislate which is not within our domain. The duty of courts is to carry out the intention of the Parliament. It is by making sense of the Enactment the Legislative wisdom is given effect to and not by giving extended meaning to the language especially when such an extended meaning would result in the deprivation of a right. It is appropriate to quote the assertion of Lord Hoffman in R v secretary of state for Home Department; Ex parte simms (2002) 2 aC 115 at 131 where His Lordship stated that “ the principle of legality means that Parliament must squarely confront what it is doing and accept the political costs. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual”.

a physical count of the Motor Traffic act shows that the word “vehicle” has been used there at 302 places. In terms of section 240 of the Motor Traffic act, “vehicle” is a conveyance that is designed to be propelled or drawn by any means, whether or not capable of being so propelled or drawn and includes a bicycle or other peddle powered vehicle and trailer carriage, cart, coach, tram car and mechanically propelled and/or electrically and/or solar energy propelled vehicle or vehicle propelled by liquid petroleum gas or vehicle propelled by alternative fuel and any artificial contrivance used or capable of being used as a means of transportation on land but does not include a railway locomotive. The word “equipment” is never contemplated under the Motor Traffic act or the other Enactments to equate it to a “vehicle” or a mode of transport nor can it be identified as machinery.

If the statute lacks the quality of being unequivocal, it is left to the Parliament, in exercise of the legislative power of the People, to look into it, and contemplate measures, in its own wisdom for taking steps that may deem necessary. Until then, it is our duty to interpret it, as between the state and its subjects, unmoved by the social conditions and/or other considerations outside the purview of the judicial function.

In terms of the same section “motor vehicle” means

(a) any mechanically and/or electrically, and/or solar energy propelled vehicle or vehicle propelled by liquid petroleum gas or vehicle propelled by alternative fuel including a tractor or trailer which is intended or adapted for use on roads but does not include a road-roller;

(b) any mechanically and/or electrically and/or solar energy propelled vehicle, or vehicle propelled by liquid petroleum gas or vehicle propelled for alternative fuel or intended for use on land in connection with an agricultural or constructional purposes such as levelling dredging, earthmoving, forestry or any similar operation but does not include a road-roller;

Under section 50 of the Vehicles Ordinance a “vehicle” includes carriages, carts, coaches, tram cars and mechanically propelled vehicles, and every artificial contrivance used or capable of being used as a means of transportation on land.

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The authorities cited by the learned senior state Counsel, in my opinion are not applicable to the present issue. The issue before court is more in the nature of a set of non-complex facts and how best the law could be applied to them, in the best possible manner as stated in the statute and without stepping out from the Mines and Minerals act. In such an event, the only interpretation that could be and ought to be given to the confiscatory Provisions contained in the Mines and Minerals act is that no vehicles or other means of transport had been in the contemplation of the Legislature, to be made subject to confiscation.

The learned senior state Counsel contended that we must supplement the written words (machinery and equipment) so as to give force and life to the intention of the Legislature. No doubt as contended by the learned senior state Counsel the court must set to work on the constructive task of finding the intention of the legislature. However it is to be noted that the intention of the Legislature plays an important role only when the statute is not clear or cannot be applied in reference to its plain meaning. However in this case no such necessity arises to gather the Legislative intent.

He further invited us to implement this, taking into consideration the social conditions which give rise to it and of the mischief which it intended to prevent. adverting us to certain decisions, the state invited us to give effect to the confiscatory clause in the act, by not altering the material of which the act is woven, but by ironing out the creases. I regret my inability to respond to this invitation in a positive manner, as an interpretation given on the lines suggested by the state would definitely alter the material of which the piece of Legislation in question is woven. as regards the wording of the confiscatory clause in the act, I find no creases or wrinkles in the act and as a matter of Law the Legislation in question is creaseproof.

In the circumstances, I set aside the order of confiscation of the vehicle as it is not forfeitable to the state under the Provisions of the Mines and Minerals act.

This judgment would be applicable with necessary changes to appeals bearing numbers Ca (PHC) 108/2012 (HCR/RaTNaPURa/18/2011), Ca (PHC)

107/2012 (HCR/RaTNaPURa/23/2011) and Ca (PHC) 119/2012 (HCR/RaTNaPURa/90/2010)

The emphases made in this judgment are all mine.

President/Court of appeal

sunil Rajapakse, J

I agree.

Judge of the Court of appeal

Post scriptum

This being the last decision I make, in my judicial career aggregating to a period of well-nigh three and half decades, I avail of the opportunity to acknowledge my indebtedness to the Bar both official and unofficial for making my task easier.

a W a salam

TW/-

((1.) Ca 120/2012 – (2). Ca 108/2012- (3). Ca 107/201 (4).

19/2012 JUDGMENT - 03RD sEPTEMBER 2014 a W a

saLaM, (P/Ca) MINEs aND MINERaLs aCT sECTION

63 (b) (1))

The first requisite of civilization is that of justice

- sigmund Freud -

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The document we tendered to His Lordship the Chief Justice and Honorable Commissioners of the Judicial Service Commission on the issue of Extension of Age of Retirement for The High Court Judges and Appointments of High Court Commissioners

Honorable sir/ Madam,

RE; EXTENsION OF aGE OF RETIREMENT FOR THE HIGH COURT JUDGEs aND aPPOINTMENTs OF HIGH COURT COMMIssIONERs

The Judicial service association comprising of District Judges and Magistrates of sri Lanka notes with grave concern a pending decision by His Excellency the President to increase the age of retirement of High Court Judges from 61 to 63 years. We understand that the High Court Judges’ association has met His Excellency the President in the presence of the Honorable Minister of Justice on 07 May 2015 and extracted an undertaking to increase the retirement age of the High Court Judges from 61 to 63 years.

Moreover, they have proposed for those who are about to retire in the near future should be given High Court Commissioner posts until necessary amendments to the Judicature act is introduced to increase the age of retirement for High Court Judges.

We, the Judges of Courts of First Instance are greatly perturbed at these turn of events due to the following reasons;

1. The increase of retirement age of High Court Judges by 2 years will block the creation of vacancies and delay the due promotions of the deserving senior District Judges who will be more often than not forced to retire as a District Judge without a promotion.

2. The extension of time granted to the High Court Judges to serve an additional period of 2 years will cause a delay in the creation of vacancies and deprive the opportunity for young lawyers to join the Judicial service of the country.

3. since no change has been recommended in the retiring ages of supreme Court and Court of appeal Judges and the decision to equal the retiring age of High Court Judges to that of the Court of appeal Judges will deprive the High Court Judges from getting their due promotions to the Court of appeal in a timely manner and disrupt the balance existing in the present structure.

4. It is of our humble view that appointment of High Court Commissioners is not meant to keep the persons who are required to retire by operation of Law further in the service but to fulfill the retirement of exigency of service. In addition, this course of action may violate the Government policy that no one in the Government service allowed to work after retirement. We were made to understand that the Judicial service Commission had taken a decision to apply this provision only with a view to fill the vacancies in the High Courts situated in Northern and Eastern provinces due to the lack of Tamil speaking Judges in the minor judiciary.

5. Our humble opinion is that most senior Tamil speaking District Judges could be appointed as a High Court Commissioner and he or she could be elevated to the post of High Court Judge once it becomes due, instead of appointing retired High Court Judges.

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6. Hence The decision to appoint High Court Judges as High Court Commissioners without any age limit will not only deprive the senior District Judges from their due promotions but will also create frustration and stagnation amongst the lower ranks of the judiciary.

The negative impact to the independence of the Judiciary caused due to the above reasons need not be

further explained to Your Lordships and Ladyship as we have no doubt Your Lordships’ and Ladyship would be

well aware of the dangers that can be caused to the society and the country as a whole with a dissatisfied minor

judiciary who will have no redress in sight.

Hence, we humbly request with utmost respect to consider our views with your Lordships’ and Ladyship’s

wisdom in respect of the above mentioned issues.

Thank you

Yours faithfully

Wasantha Jinadasa

President

Judicial service association

It always seems impossible until its done.- Nelson Mandela -

1st issue 2015Cover Design |mola senevirathna| layout | amila sanDamali Kannangara

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EDITOR | Jagath Kahandagamage , ASSISTANT EDITOR | Anushka Senevirathnaweb: www.jsasl.org | e-mail: [email protected]

Mr. Jagath Kahandagamage (Editor), District Judge, Distric Court, Horana, Sri Lanka.

1 st Issue 2015

From The Editor


Secretary’s Desk


COMMIT TEE MEMBERS

01. Mr.T.D.Gunasekara D.J-.Kalutara

02. Mr.N.M.M.Abdulla Mag.-Batticaloa | [email protected]

03. Mr.H.S.Somaratne D.J.-Pugoda | hssomaratne @gmail.com

04. Mr.M.Ganesharajah D.J.-Mulativu | [email protected]

05. Mr.R.Weliwatta Mag.-Panadura | [email protected]

06. Mr.D.G.N.R.Premaratne Mag.Kurunegala | [email protected]

07. Mr.J.Trotsky Mag.-Bandarawela | trotskymarx1 @yahoo.com

08. Mr.K.A.T.K.jayatilake Mag.Gampaha | [email protected]

09. Mr.I.P.D.Liyanage D.J.-Hatton | [email protected]

10. Mr.R.A.D.U.N.Ranatunga D.J.Walasmulla | [email protected]

11. Mr.A.G.Alexrajah D.J.-Akkaraipattu | [email protected]

12. Mr.H.K.N.P.Alwis Mag.-Kegalle | [email protected]

13. Mrs.G.A.R.Atygalla Addi.Mag.-Colombo | [email protected]

14. Mr.A.M.I.S.Attanayake D.J.-Anuradhapura | [email protected]

15. Mr.A.D.C.S.Hewawasam Mag.Nuwaraeliya |[email protected]

16. Miss.H.M.B.R.Wijeratne A.D.J.-Puttalam | [email protected]

17. Miss.K.D.N.V. Lankapura Mag.-Galle | [email protected]

18. Miss.K.G.D.Amarasinghe Juvenile-Mag. Battaramulla | [email protected]

19. Mr.A.S.Bodaragama Mag.-Elpitiya | [email protected]

20. Mr.H.S.U.Ramyakumara D.J.-Dambulla | [email protected]

21. Mr.S.G.C.Wickramanayaka Addi.Mag.-Kurunegala | chamarawickramanayaka @gmail.com

22. Mr.G.M.T.U.Suwandurugoda D.J.-Warakapola | [email protected]

23. Mr.I.N.N.Kumarage D.J.-Hambanthota | [email protected]

24. Mrs.K.A.G.Punchihewa A.D.J.-Matara | kusalanieagp @gmail.com

25. Mr.D.M.S.Karunarathna Addi.Mag.-Matara | dmskarunarathna @gmail.com

26. Mr.R.S.M.Mahendrarajah Addi.Mag.-Rathnapura | mewanlaw @gmail.com

27. Mr.D.C.K.Perera A.D.J.-Ampara | kayminda @hotmail.com

PRESIDENTMr.U.G.W.K.W. Jinadasa | District Judge - Kaduwela | [email protected]

VICE PRESIDENT(1)Mr.A.G.Aluthge | District Judge - Panadura | [email protected]

VICE PRESIDENT(2)Mr.P.P.R.E.H. Singappulige | Ad.District Judge - Colombo | [email protected]

SECRETARYMr.R.S.A.Dissanayake |District Judge - Puttalam | [email protected]

ASSISTANT SECRETARYMr.R.L.Godawela | Ad.District Judge - Panadura | [email protected]

TREASURERMr.H.S.Ponnamperuma | Ad.District Judge - Kurunegala | [email protected]

EDITORMr.J.A.Kahandagamage | District Judge - Horana | [email protected]

ASSISTANT EDITORMr.D.M.A.Seneviratne | Ad.Magistrate - Nugegoda | [email protected]

WEB MASTERMr.N.D.B.Gunarathne | Magistrate - Kuliyapitiya | [email protected] News Letter

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From The Editor


Secretary’s Desk


1 st Issue 2015 News Letter

Documents

Transcript of 1 st Issue 2015 News Letter