Legal Services and Laws of Sri Lanka
SLR - 1997 Vol.1, Page No - 208
ATAPATTU AND OTHERS
PEOPLE'S BANK AND OTHERS
DHEERARATNE, J. AND
S.C. APPEAL NOS. 20/96 AND 76/96
C.A. APPLICATIONS NOS. 539 AND 814/94
SEPTEMBER 23, 1996.
Redemption of Land - Finance Act No. 11 of 1963 as amended by Act No. 33 of 1968 and Law No. 16 of1973-Substitutionof
successor for a deceased applicant - Section 71 of the Finance Act.
Upon the death of an applicant for the acquisition of a land under section 71 of the Finance Act No. 11 of 1963asamended,
there can be substitution of a "Specified heir" viz. a person mentioned in Section 71(2)(a) -intheprescribedorderof
priority - as well as of a testate heir. Whether the application was duly constituted, or whether the Bank ought toexercise
its discretion to vest the premises in favour of the substitute, should not be considered at the stageofsubstitutionbut
only after a substitute has stepped into the shoes of the deceased and has acquiredthenecessarystatustopresenthis
Quaere, whether a testate heir who is entitled to apply for substitution has a preferent right over the "specified heirs".
Cases referred to:
1. Emaliyana Perera v. People's Bank (1985) 1 Sri L.R. 43 (C.A.), (1987) 1 Sri L.R. 181 (S.C.)
2. Kanagasabapathy v People's Bank S.C. Appeal No. 124/75 S.C. Minutes 27 August 1976.
3.Wickramasinghe v Sri Lanka State Trading Corporation (1994) 3 Sri L.R. 41.
4. Ceylon Estates Staffs Union v. Land Reform Commission (1987) 2 Sri L.R. 203,207-8.
5. Amarajeewa v. University of Colombo (1993) 2 Sri L. R. 327.
6. Muhandiram v. Salam (1947) 49 N.L.R. 80.
7.Hevavitharane v De Silva (1961) 63 N.L.R. 68, 72.
8. Narasingh Das v. Mangal Dubey (1983) 5 Allahabad 163, 172.
9. Setha v. Weerakoon (1948) 49 N.L.R. 225.
10. Saravanamuttu v Solamuttu (1924) 26 N.L.R. 385,390.
11. Wickremabandu v. Herat (1990) 2 Sri L.R. 348, 361.
12. Shanmugam v. Commissioner for Registration of Indian and Pakistani Residents (1962) 64 N.L.R. 29, 33.
13. Jailabdeen v. Danina Umma (1962) 64 N.L.R. 419, 422.
14. Wijewardene v. People's Bank, S.C. Appeal No. 3/80 S.C. Minutes 20 May, 1981.
APPEAL from the judgment of the Court of Appeal.'
In S.C. Appeal No. 20/96
Walter Perera with Nimal Ranmukhaarachchi for appellants.
Anil Obeysekera, P.C. with Sanjeewa Jayawardena for 1st and 2nd Respondents
W D. Weeraratne for 3rd respondent.
In S.C. Appeal No. 76/96.
P. A. D. Samarasekara, P.C. with Jayantha de Almeida Gunaratne and Kirthi Sri Gunawardene for Appellant.
S. Fernando, S.C. for 1st respondent.
Bimal Rajapakse for 2nd respondent.
December 19, 1996.
An important question of law arises in these appeals: whether there is a right to substitution, in the placeofadeceased
applicants in proceedings for the redemption of land under section 71 of the Finance Act, No. 11 of 1963, as amendedbyAct
No. 33 of 1968 and Law No. 16 of 1973.
Section 71 authorises the People's Bank to acquire the whole oranypartofanyagricultural,residentialorbusiness
premises if the conditions specified in subsection (1) are satisfied. Section 71 provides further:
"(2) No premises shall be acquired under subsection (1) -
(a) Unless an application in that behalf has been made to the Bank by the original owner ofsuchpremisesor,wheresuch
original owner is dead or is of unsound mind or otherwise incapable of acting, bythespouseoranydescendantofsuch
person, or if there is no surviving spouse or descendant of such person, by a parent, brother or sister ofsuchperson or
(c) Unless the Bank is satisfied that the average statutory income of the person making theapplicationandoftheother
members of the family of which he is the head, computed under the provisions of the written law relatingtotheimposition
of income tax, for the three years, of assessment immediately preceding the date on which such application was madebyhim,
does not exceed a sum of ten thousand rupeesor ...
(3) The question whether any premises which the Bank is authorised to acquire under this part of this Actshouldorshould
not be acquired shall be determined by the Bank and every such determination of the Bank shall be finalandconclusiveand
shall not be called in question in any court."
Section 91 provides:
"Any premises vested in the Bank in consequence of an application made to the Bank for the acquisition ofsuchpremisesby
any person entitled to make such application under the preceding provisions of this part of this Act may be let bytheBank
to such person or where such person is dead, to the surviving spouse, if any, or any descendantofsuchpersonuponsuch
terms as will enable the person to whom such premises arelet to become the owner thereof after making a certainnumberof
half-yearly payments as rent."
SC APPEAL No.20/96
The material facts are these. In 1972 three persons conditionally transferred theirinterestsinthelandwhichisthe
subject-matter of the proceedings. On 30.6.83 thetransfereeconveyedherrightstothe3rdrespondent.Oneofthe
transferors had died in the meantime, and her husband (the 1st appellant) and the other two transferorsappliedon30.6.83
to the People's Bank, the 1st respondent, for the redemption of that landundersection71.Whilethatapplicationwas
pending those two transferors also died, and the Attorney-at-law who had been appearing for the applicants asked that"their
heirs" - it does not appear from the record whether those heirs were named or identified inanyway-besubstitutedin
their place. He did not claim to be acting on behalf of thoseheirs.The3rdrespondentobjected.On24.6.92the2nd
respondent, who was the Bank's inquiryofficer,refusedsubstitution.Shereasonedthat,althoughunderthelawof
succession upon the death of a person all his heirs succeeded to his rights, yet under section 71(2) (a) all theheirsneed
not apply for redemption: under that section it was enough if one of the heirs specified therein madetheapplication and
accordingly, that provision disclosed no intention that the law of succession should apply. Further, in theeventofdeath
after an application was filed, the section itself did not provide for substitution, of any or all the heirsofadeceased
applicantand since the law of succession was inapplicable, there was no basis on which substitution couldbeallowed.In
that way the 2nd respondent refused substitution, but without giving the heirs or the legal representatives ofthedeceased
applicants an opportunity of being heard.Uponsubstitutionbeingdisallowed,whatwasleftwasonlythesurviving
applicant's claim to an undivided one-third share. The policy of the Bank was not to vest undividedshares thathadbeen
upheld in Emaliyana Perera v. People's Bank (1), and so she therefore recommended to the Board of Directors of the Bankthat
the application be dismissed.
The 1st appellant, together with the 2nd and 3rd appellants (alleging that they were heirs ofthetwodeceasedapplicants
and that the applicants Attorney-at-law had moved for their substitution) applied to the Court of AppealforCertiorarito
quash the 2nd respondent's order and Mandamus to allow substitution. Learned President's Counsel who thenappearedforthe
Bank tendered written submissions, stressing that the right to apply for redemption ispersonaltoanapplicant,because
section 71(2)(b) refers tohisstatutoryincome andalsothattherewas'noprovision,expressorimplied,for
substitution. However, in what he termed an "Afterthought" to those submissions, he suggested that section 71 gavetheBank
power to acquire property, subject to certain pre-conditionsone was that "an application must be madetotheBankbya
person named in section 71(2)""an application is merely a starter of acquisitionproceedings" oncetheapplicationis
made, the presence of the applicant is no longer necessary, because he is not equated to a plaintiff or petitionerandupon
the conclusion of the proceedings, even if the applicant is dead, section 91 enables the Bank to let the vestedpremisesto
the surviving spouse or a descendant. His conclusion was that the Act sought to introduce a "welfare measure",toremedya
particular mischief, and its purpose would be achieved if an interpretation was adopted which would permit an applicationto
proceed notwithstanding the death of the applicant.
The Court of appeal held, however, the Bank could only entertain an application madebytheoriginalowneroraperson
specified in the sectionthat in Kanagasabapathy v. People's Bank (2), it had been held that anapplicationcouldnotbe
made by a transferee or assigneethat in the absence of any provision enabling substitution, the refusal tosubstitutewas
justified. The Court also upheld the rejection of the 1st appellant's application (citing Emaliyana Perera v. People'sBank)
(supra) on the ground that the policy decision not to acquire undivided interests was within jurisdiction, and couldnotbe
challenged because of the ouster clause in section 71(3), read with section 22 of the Interpretation Ordinance.
SC Appeal 76/96
The position in this appeal is somewhat different. The original transfer in 1958 was by two persons, mother andson,ofan
undivided three-fourths share in five landsthereafter the mother diedand in 1969 the son applied fortheredemptionof
all five lands. That application was made to the State Mortgage Bank (in termsoftheActasitstoodthen),andwas
transferred to the People's Bank in terms of Law No. 16 of 1973. Theproceedingsinrespectoffourlandsresultedin
vesting orders, but there was a delay in respect of the fifth. The original transfereesinstitutedapartitionactionin
respect of that landthe son died in 1991, leaving a Last Will under which thesolebeneficiarywastheappellant,his
sister's sonthe partition decree allotted a one-fourth share to the appellant,andtheremainingthree-fourthstothe
original transferees or their heirs, expressly subject to the pending applicationmadetotheBankforredemption.The
appellant then asked the Bank to re-open that application, but was told that the matter had been laid by becauseofcertain
cases pending in the Court of Appeal. Later the Bank informed the appellant that since the partition decree madethethree-
fourths share subject to the pending application for redemption, that application could be proceeded with. But on 9.8.94the
Bank told the appellant that, following the decision of the Court of Appeal in a similar matter (CA ApplicationNo.927/85,
CAM 10.6.94) that substitution cannot be effected, the Bank had dismissed the application for redemption.
The appellant applied to the Court of Appeal for Certiorari toquashthedecisionof9.8.1994andMandamustodirect
substitution. The Court of Appeal dismissed that application holding that upon the deathofanapplicant,thespouseor
descendant could not automatically be substituted, but must make a further applicationand that the appellant beingneither
the spouse nor a descendant, but only the heir under a Last Will, had no right to make an applicationforredemptionunder
Since both appeals involved the interpretation of the same provisions, they were heard together.
Mr. Walter Perera and Mr P. A. D. Samarasekera, PC, on behalf of the respective appellant submitted that the right tomake
an application for redemption was not purely personal, that section 71 (2)(a) recognised thatifthetransferorhaddied
before making the application, certain other persons - namely, the surviving spouse, andfailingasurvivingspouse,any
descendant, and failing a surviving spouse or descendants, a parent,brotherorsister(whomIwillrefertoasthe
"specified heirs") - could make that applicationand that if the transferor died after he made the application, oneofthe
"specified heirs" could be substituted. Iftheyhadthegreaterrightofmakingtheapplicationitself,theymust
necessarily have - so it was argued - the lesser right of being substituted. Mr. Samarasekera went one step further,thata
testate heir was also entitled to substitution.
Mr. Sanjeewa Jayawardena, on behalf of the 1st and 2nd respondents in SC Appeal 20196 submitted that althoughthespecified
heirs were entitled to make an application for redemption, where the original transferor was alreadydead,theLegislature
had intentionally refrained from making similar provision in the event of death pendentelite.Hecontendedthatsection
71(2)(c) made the financial circumstances of the applicant and the membersofhisfamilyaconditionprecedenttothe
exercise of the jurisdiction to vest the premises, and that that provision could not be applied to the personsubstituted-
because it could result in difficulties and anomaliesthus even where thatconditionwassatisfiedinrelationtothe
original (deceased) applicant, it might happen that the substitutewasawealthypersonwithanincomeexceedingthe
specified amount. The Legislature never intended that premisesshouldbevestedforthebenefitofsuchpersons.He
contended also that the Court of Appeal had no jurisdiction to review orders made in redemption proceedings, becauseofthe
He also submitted that the original transferees had sold the property to a bona fide purchaser, that thereforetheoriginal
application was not properly constituted, and that accordingly there could be no substitution. We indicated to him,however,
that the questions for determination in appeal related to substitution and the jurisdiction of the Court of Appeal andnot
the merits of the application for redemption, which would have tobedeterminedbytheBankonlyifsubstitutionwas
allowed, and only after hearing the person substituted.
Mr. S. Fernando, SC, and Mr. Bimal Rajapakse, for the respondents in SC Appeal 76196 also contended that intheabsenceof
any enabling provision in the statute, the presumption is that substitution is not permissible. They also urged thatinany
event there could be no substitution of the appellant, who did not fall into the class of "specified heirs".
Section 71 creates a (contingent) right of redemption in favour of a transferorof land. Such arightseriouslyderogates
contractual and proprietary right of the transferee. However, such statutory interference with common lawrightsisbyno
means unique. Sometimes the law allows one person to enjoy a right in derogation of thelegalrightsofanother.Thusa
beneficiary under an express or constructive trust has rights in respect of property vested in anotherbecausethestatute
considers it equitable. Our Rent laws confer on a tenant the right to continue in occupation of the rented premises,despite
the termination of the contract of tenancy, and sometimes even contrary to its terms andtothatrightcertainofthe
tenant's heirs may succeed on his death (see section 36 of the RentAct).UndertheIndustrialDisputesAct,aLabour
Tribunal is empowered to re-instate an employee in his employment, even though his services had been lawfullyterminatedby
the employer in strict compliance with the contract of employment and thecommonlaw.(Imustmentioninpassingthat
although there is no express provision in the Industrial Disputes Act, permitting substitution upon thedeathofaparty,
the precedents favour substitution: see Wickremesinghe v Sri Lanka StateTradingCorporation(3),CeylonEstatesStaffs
Union v Land Reform Commission (4), Amarajeewa v University of Colombo (5). Section 71 is thusjustonemoreinstancein
which the Legislature has empowered a statutory Tribunal create rights in derogation of the express terms of acontractand
the common law. The decision of that Tribunal recognises, or perhaps creates, a statutory, as distinctfromacontractual,
right to a re-transfer (compare the "equity of redemption" which a mortgagor has inEnglishlawdespiteexpresscontrary
provision in the mortgage: see Halsbury, Laws of England's, 4th ed, vol. 32, para 407).
There is no doubt that the right to make an application for redemption is not "personal" to the originaltransferorinthe
sense that he alone can apply, and that it terminates uponhisdeath:section71(2)empowersasuccessortomakean
application if he fell within the category of the "specified heirs", andthusdemonstratesatleasttothatextentit
survives. Section 71 therefore manifests undeniable legislative intention not to make the right ofredemption personalto
the transferor. That right is of the same nature as a right to claim a re-transfer, which has been held not tobepersonal:
Muhandirarn v. Salam (6), Further, the fact that section 91 empowers the Bank to let(onrent-purchaseterms)thevested
premises to the surviving spouse, if any, or a descendant, where the applicant is dead also tends toexcludealegislative
intent to make the right personal.
If then section 71(2) is to be interpreted as not permitting substitution, the result would be that uponthedeathofthe
applicant application would abate. However, since that was without an adjudication on the merits, a"specifiedheir"would
be entitled to make a fresh applicationand if that applicant were then to die, yet another "specified heir"couldmakea
third applicationand so on. In other words, that interpretation would mean that although a "specified heir"couldnotbe
substituted, yet an indefinite number of further applications could be made by "specified heirs",oneaftertheother.I
doubt whether the Legislature intended that land redemption should involve such technicality. Since therighttoapplyis
not personal, I would hesitate to hold that the right of an applicant, just because he took an extrastepontheroadto
getting back the land which he hadtransferred, suddenly deteriorated in quality, and became exclusivelypersonaltohim,
no sooner he made his application. If at all his right did change in any way, it only becamestrongerorgreater.Inthe
absence of express contrary provision therefore, "specified heirs" continue to enjoy at least the samerightofsuccession
upon death after an application was filed, as they did before it was filed.
What happened in SC Appeal 20/96 illustrates the anomalies that the contrary view would perpetuate.Becausetwoapplicants
died, the 2nd respondent held that the third could not proceed, because his application, considered in isolationbecameone
in respect of an undivided interestthereafter, even if"specifiedheirs"ofthetwodeceasedapplicantsmadefresh
applications, they too would fail for the same reason. However, if all three applicants haddied,their"specifiedheirs"
could collectively have made a fresh application. And, arguably, if the survivingapplicantwithdrewhisapplicationand
joined the "specified heirs" of the other two in making a fresh application, that too might have been entertained. Idonot
think section 71 was intended to be a minefield through which applicants could emerge unscathed onlythroughsuchtactical
The absence of statutory provision expressly permitting substitution has been stressed. But to give undue weight tothatis
to ignore fundamental assumptions which underlie legislationconferringjudicialandadministrativeremedies:thatthe
Legislature intended that disputes should be determined, rather than avoided or postponed, that they should be decidedafter
hearing both sides, rather than with one side unrepresented andthereforeunheard,andthatfairproceduresshouldbe
respected. In relation to procedural issues of this kind, in choosing between two interpretations -onewhichwouldallow
the dispute to be heard and determined inter partes, and the other which would either prevent it beingdecided,orresult.
In effect, in a decision being made ex parte - Courts and Tribunals must not:
"... act upon the principle that every procedure is to be taken as prohibited unless it isexpresslyprovidedforbythe
Code, but on the converse principle that every procedure istobeunderstoodaspermissibletillitisshowntobe
prohibited by the law. As a matter of general principle prohibitions cannot be presumed"(Hewavitharanev.deSilva(7)
citing Narasingh Das v. Mangal Dubey (8).
Although those observations were made in reference to the Civil Procedure Code, the principle is one of thefundamentalsof
fair procedure which all Tribunals should respect.
There is another aspect of the matter which is crucial to SC Appeal 76/96. Evenarightwhichispurelypersonaloften
changes its character after litigation for its enforcement has commenced. there may then arise arightinrespectofthe
subject-matter of the litigation itself,whichcan,intheeventofthedeathofaparty,devolveonhislegal
representative. An example from the law of delict is illustrative:
"Although the Aquilian action passes to the executor, it is to be noted that he can recover only for actual loss sufferedby
the estate. In an action for personal injuries, therefore, although he can claim forthedeceased'smedicalandhospital
expenses, he has no claim in respect of the pain and suffering caused to the deceased by his injuries. Andifthedeceased
dies from his injuries, although he can claim for the deceased's funeral expenses as well as forhismedicalandhospital
expenses, he has no claim in-respect of future loss to the estate by reason of the death ...............
It should be observed that the above mentioned- rules are subjecttothequalificationthattherehasnotbeenlitis
contestatio before the death. For the effect of litis contestatio, which in the modern law is deemed totakeplaceatthe
moment the pleadings are closed, is to freeze the plaintiff's rights as at that moment, and thus, in the event ofhisdying
before the action is heard, to confer upon his executor all the rights which he himself would havehadifhehadlived."
(McKerron, Law of Delict, 6th ed, p.132)
As for when litis contestatio takes place in our law, see Setha v. Weerakoon(9). In the law of contract,Weeramantry(Law
of Contracts, vol. 2, p.871) observes:
"In certain limited classes of contracts death brings about a termination of contractual rights by operationoflaw.These
are contracts involving rights and duties of a purely personal character ... in all other cases, all contractualrightsand
duties pass upon death to the representative of the deceased person, and the obligation is thereforenotextinguished,but
survives in favour of or against the representative of the estate of the deceased."
The subject-matter of the litigation, the res litigiosa, is even capable of being ceded or assigned(Lee,Roman-DutchLaw,
5th ed, p.
As I have noted earlier, under the Industrial Disputes Act too substitution is possible.
In that background, it cannot be said that the rights which adeceasedapplicanthadinrespectofpendingredemption
proceedings were not capable of devolving upon his legal representatives.
I must now turn to the submission that section 71(2)(c) stipulates a condition precedent, that an applicant'sfamilyincome
should not exceed a prescribed maximumthat this appliestoa"specifiedheir"whomakestheapplication andthat
therefore substitution should not be allowed, because then a person who does notsatisfythatconditionmaynevertheless
obtain the benefits of redemption. There is some justification for this contention, as theLegislatureintendedthatthat
the benefits of redemption should accrue to poor people who had lost their property. Why then should apersonwhowasnot
entitled, in the first instance, to make an application himself, be allowed to come in as a substitute? This iscertainlya
relevant consideration. However, even if substitution is not permitted, a similar anomaly can occur at a later stage:ifan
impoverished applicant dies after the property is vested in the Bank, it may be disposed of, under section91,toanheir
who did not satisfy that condition. Further, that anomaly cannot be taken inisolation:theconversecasemustalsobe
considered. If a desperately poor transferor, the sole breadwinner of a family consisting of an invalidspouseandseveral
minor children, dies after application was filed, was it the legislative intent that his family,nowbenefitofitssole
support, be denied the benefits of redemption? Why should an interpretation be adopted which would deny both theundeserving
and the deserving? Of course, in the latter case it can be urged that an heir could make a fresh application. But thatwould
not be possible if prescriptive period of ten years (section 71(2) (aa)) had elapsed. In these circumstances, I do notthink
that fundamental principles which make substitution just and equitable should give way to the possibility of suchanomalies,
particularly because there is another factor which reconciles all these conflictingconsiderations-whichisconsistent
with the fundamental principles involved, whilst advancing the remedy and suppressing the mischief, and dispensingwiththe
need for successive applications. Section 71 does not compel the Bank to acquire premises simply becausethepre-conditions
in subsection (2) are satisfied, and the fact that the Bank has a discretion hasbeenrecognisedinEmaliyanaPererav.
People's Bank. (supra) One matter which the Bank may legitimately take into account is therelativefinancialpositionof
the parties: thus if during the pendency of the proceedings, a destituteapplicantbecomeswealthy,andaonce-affluent
transferee becomes poor, the Bank may - having regard to the purpose of the statute - declinetovestthepremises,thus
excluding redemption for the benefit of the "Undeserving". That same discretion will apply to asubstitutedapplicant(see
also section 71(2)(e)).
I therefore hold that upon the death of an applicant, there can be substitution of a"specifiedheir"-intheprescribed
order of priority - as well as of a testate heir. Whether the application was duly constituted, or whether the Bank oughtto
exercise its discretion, to vest the premises, in favour of thesubstitute,shouldnotbeconsideredatthestageof
substitution, but only after a substitute has stepped into the shoes of the deceased and has acquiredthenecessarystatus
to present his case. I must add that I do not express any opinion as to whether the 2ndand3rdappellantsinSCAppeal
20/96 and the appellant in SC Appeal 76/96, are the proper persons tobesubstituted,becausethatisamattertobe
determined after notice to all those who may have the right to succeed to the interestsofthedeceased.AllthatIdo
decide is that the Bank and the Court of Appeal erred in law in holding that there could not besubstitutionof"specified
heirs" and testate heirs.
Since section 71(3) enacts that every determination of the Bank shall be final and conclusive andshallnotbecalledin
question in any court, it was contended that the effect of section 22 of the Interpretation Ordinance, as amended by ActNo.
18 of 1972, was that a decision by the Bank refusing substitution could not bereviewedbytheCourtofAppealinthe
exercise of its writ jurisdiction under Article 140.
There is an apparent conflict between the ouster clause (which ispre-Constitutionlegislation),andArticle140.While
generally a Constitutional provision, beingthehighernorm,mustprevailoverstatutoryprovision,therearesome
constitutional provisions which enable pre-Constitution written law to continue to apply. The first is Article16(1),which
is inapplicable here, because that deals only with inconsistency with fundamentalrights.ThesecondisArticle168(1),
"Unless Parliament otherwise provides,alllaws,writtenlawsandunwrittenlaws,inforceimmediatelybeforethe
Constitution, shall, mutatis mutandis, and except as otherwise expressly provided in the Constitution, continue in force."
However, this would make the ouster clause operative only "except asotherwiseexpresslyprovided"inArticle140.The
meaning of that phrase was considered by a bench of five Judges in Wickremabandu vHerath(11),inrelationtoasimilar
question, whether the ouster clause in section. 8 of the Public Security Ordinance derogated from theJurisdictionofthis
Court under Article 17 and 126. H. A. G. de Silva, J, and I held that the conferment of jurisdiction of this Courtbythose
Articles was express contrary provision, with the result that Article 168(1) did not make the ouster clause operativevis-a-
vis the fundamental rights jurisdiction. The Privy Council held in Shanmugam v Commissioner for RegistrationofIndianand
Pakistani Residents (12), that
"to be express provision with regard to something it is not necessary that that thing should be speciallymentioned itis
sufficient that it is directly covered by the language however broad the language may be whichcoversitsolongasthe
applicability arises directly from the language used and not by inference from it."
Articles 17 and 126 constitute "express provision",becausetheydirectlyconferjurisdiction althoughtheymakeno
specific mention of the ouster clause in section 8, the language used is broad enough to confer anunfetteredjurisdiction.
The position is the same in regard to Article 140: the language used is broad enough to give the CourtofAppealauthority
to review, even on grounds excluded by the ouster clause.
But there is one difference between those Articles and Article 140. Article 140 (unlikeArticle126)is"subjecttothe
provisions of the Constitution". Is that enough to reverse the position, so as to make article 140subjecttothewritten
laws which Article 168(1) keeps in force? Apart from any other consideration, if it became necessary to decide whichwasto
prevail - an ouster clause in an ordinary law or a ConstitutionalprovisionconferringwritjurisdictiononaSuperior
Court, "subject to the provisions of the Constitution" - I would unhesitatingly hold that the latterprevails,becausethe
presumption must always be in favour of a jurisdiction which enhances the protection of theRuleofLaw,andagainstan
ouster clause which tends to undermine it (see also Jailabdeen v. Danina Umma (13)).Butnosuchpresumptionisneeded,
because it is clear that the phrase "subject to the provisionsoftheConstitution"wasnecessarytoavoid conflicts
between Article 140 and other Constitutional provisions - such as Article 80(3), 120,124,125,and126(3).Thatphrase
refers only to contrary provisions in the Constitution itself, and does not extendtoprovisionsofotherwrittenlaws,
which are kept alive by Article 168(1). Where the Constitution contemplated that its provisionsmayberestrictedbythe
provisions of Article 138 which is subject to "any law".
There is another reason why this particular ouster clause is of no avail intheseappeals.Itpurportstoprotectfrom
review only a determination by the Bank whether any premises should or should not be acquiredit does not purporttoapply
to distinct preliminary or incidental matters, such as the substitution of parties.
Since the policy decision of the Bank, upheld in Emaliyana Perera v People's Bank, has beenreferredtobytheCourtof
Appeal, I must add that no policy decision of that kind can be inflexible. As held inWijewardenev.People'sBank(14),
cited in Emaliyana Perera v. People's Bank (supra), the power conferred on the Bank, by section 71(1),toacquireproperty
includes the power to acquire undivided interests. While it is true that practical difficulties may often justify adecision
not to acquire undivided interests, that policy cannot be applied when there are no such difficulties. Thus the Bankmaybe
justified in refusing to vest an undivided half-share, where the other half-share remains vested in the originaltransferee,
because of the practical difficulty of giving possession. But that same justificationwouldnotexistwherethebalance
share is vested in, say, the applicant for redemption himself, or a member of his familyor whereduringthependencyof
the redemption proceedings a partition decree transforms the undividedshareoftheoriginaltransferee,towhichthe
application relates, into a divided lot, so what the Bank isaskedtovestisnolongeranundividedshare.Inthe
circumstances, the dismissal (in SC Appeal 20/96) of the 1st Appellant's application was wrong in law.
I therefore set aside the judgment of the Court of Appeal in both appeals, and quash theordersdated24.6.92and9.8.94
made by the Bank, and its inquiring officer, refusing substitution and dismissing the application for redemption.HoweverI
do not direct the Bank to effect substitution for the respective applicants,butonlytoconsidertheapplicationsfor
substitution giving notice to the "specified heirs" of the deceased applicants. Further, in SC Appeal76/96,whileholding
that the testate heir was entitled to apply for substitution, I refrain from expressing any opinion as to whetherhehada
preferent right over the "specified heirs", as the latter were neither noticed nor heard.
In each appeal I direct the Bank to pay appellants sum of . 5,000/- as costs in both Courts.
DHEERARATNE, J. - I agree.
WADUGODAPITIYA, J. - I agree.