Legal Services and Laws of Sri Lanka


SLR-2001 Vol.2-P73

SLR - 2001 Vol.2, Page No - 73

DAYANANDA

v.

THALWATTE
COURT OF APPEAL.

JAYASINGHE, J.

JAYAWICKREMA, J.

MC NUWARAELIYA : 9616/97

CA 912/97

2nd DECEMBER, 1999.

1st FEBRUARY, 2000.

24TH MAY, 2000.
Primary Court Procedure Act - S. 66 - Petitioner declared entitled to possession-StepsunderStateLandsRecoveryof
Possession Act, 7 of 1979 - Prerogative writs - Failure to sped - Declaration that Magistrate had no jurisdiction-Canan
application for Writ be combined with an application for Revision - Constitution Articles 133 and 140.

The Petitioner instituted proceedings under S. 66 Primary Courts Procedure Actallegingthat,theSuperintendentofthe
Estate attempted to interfere with the possession of the petitioner. The Primary Court made order thathewasentitledto
possession of the said land. Thereafter the Superintendent of the Estate instituted proceedings in the MagistratesCourtin
terms of Act 7 of 1979.

The Petitioner sought a declaration that the Magistrate's Court had no jurisdiction to hearanddeterminethematterand
sought by way of certiorari and quo warranto to quash the decision of the 1st Respondent to evict the Petitioner and alsoto
declare null and void the steps taken by the 1st Respondent. The application made to the High CourtbythePetitionerwas
withdrawn, and an Application was made to the Court of Appeal to quash thedecisionbythe1stRespondenttoinstitute
proceedings in terms of Act 7 of 1979 and to declare that the quit Noticeisofnoavailorforce,andforanorder
declaring that the Magistrates Court of Nuwara Eliya has no jurisdiction to hear the case.

Held :
(i) Application for Revision in terms of Article 138 and an application for writ of Quo Warranto, Certiorari andProhibition
under Article 140 cannot be combined as they are two distinct remedies.
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(ii) Even though the Petitioner has set out in the caption that 'In the matter of anApplication.......forWritsofQuo
warranto and Prohibition' there is no supporting averment specifying the writ and there is noprayerasregardsthewrit
that is being prayed for. The failure to specify the writ renders the Application bad in law.

(iii) The institution of proceedings in the Magistrates Court in terms of quit notice is not a determination affectinglegal
rights "warranting the issuance of a Writ of Certiorari.

It was open for the Petitioner to seek to quash the quit notice by way of certiorari when the determination was madebythe
1st Respondent, or to move in Revision at the conclusion of the Magistrates findings.

APPLICATION for Revision and Writs of Quo Warranto, Certiorari and Prohibition under Article 140 of the Constitution.

Cases referred to :
1. K. M. Karunarathne vs Ratnayake - 1986 1 CALR 478

2. Fernando vs University of Ceylon - 58 NLR 285

3. Wijesinghe vs Tharmaratnam - Vol. IV - Sri Kantha Law Reports 47

I. S. de Silva with Siddhi Daluwatte for Petitioner.

Faiz Musthapha PC, with Dr. Jayampathy Wickremaratne for 1st Respondent.

Ms Murdu Fernando SSC for 2nd Respondent.
Cur. adv. vult.
September 29, 2000.
JAYASINGHE, J.
The Petitioner instituted proceedings in the Primary Court of Nuwara-Eliya under Section 66 of the PrimaryCourtsProcedure
Actand alleged that the Superintendent of the Court LodgeEstateattemptedtointerferewiththepossessionofthe
Petitioner of the land morefully described in the schedule to this application, handed over to him for cultivation on a
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profit sharing basis in June 1994. The learned Primary Court Judge made order that the Petitioner was entitled topossession
of the said land and restrained the Udapussellawa Plantations Limited, thelesseeitsagentsfrominterferingwiththe
possession of the Petitioner. The Petitioner alleged that the 1strespondentwrongfullyandunlawfullywithaviewof
negating the order made by the learned Primary Court Judge instituted proceedings in the Magistrate's Court ofNuwaraEliya
seeking to eject the Petitioner in terms of the State Lands Recovery ofPossessionActNo.7of1979asamended.The
petitioner thereafter instituted proceedings in the High Court of Kandy seeking a declarationthattheMagistrate'sCourt
had no jurisdiction to hear and determine the said action and sought by way of Writ of Certiorari and Quo Warrantoanorder
to quash the decision of the 1st Respondent to evict the Petitioner and also to declare null and voidthestepshitherto
taken by the 1st Respondent. The 1st Respondent filed objections to the said application: and contended that theHighCourt
of Kandy did not have jurisdiction to hear anddeterminethesaidapplication:thatthesubjectmatterofthesaid
application was outside the Provincial Council list in terms of Article 154(P) (4) (b) of theConstitution.Thereafterthe
Petitioner moved to with-draw the said application before the High Court of Kandy which was allowed. The presentapplication
is to quash the decision of the 1st Respondent to institute proceedings in terms of the State LandsRecoveryofPossession
Act No. 7 of 1979 as amended to eject the Petitioner and, to declare that the quit notice of 08.04.1997 isofnoavailor
force in lawfor an order declaring that the Magistrate Court of Nuwara-Eliya has nojurisdictiontohearanddetermine
this actionfor an order staying proceedingspendingbeforetheMagistrate'sCourtofNuwara-Eliyauntilthefinal
determination of this application.

When this matter came up for argument on 02.12.1999 Mr. Musthapha, PC. raised a number ofpreliminaryobjectionsregarding
the maintainability of this application. He contended that -
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an application for revision cannot be combined with an application for writ as they are two distinct remedies available toa
party aggrieved.

(ii). that the Petitioner has failed to identify the writ he has sought from this Court.

(iii). that the prayer sought

a). to quash the decision of the 1st Respondent to institute proceedings in terms of State Lands Recovery of Possession Act
and

b). to declare that the quit notice dated 08.04.1997 . . . is of no force or avail

are misconceived and unknown to the law and therefore neither relief could be granted.
Mr. I. S. de Silva for the Petitioner submitted that the contention of the 1st Respondentthattoquashthedecisionto
institute proceedings, one has to wait till the proceedings are instituted and that as in this instance onlyadecisionto
institute proceedings has been made and therefore writ does not lie is an argument that is not maintainableforthereason
that an action has already been instituted in the Magistrate's Court of Nuwara-Eliya to eject thePetitionerandthatthe
said action is pending. He submitted that it was during the pendency of this action that theseproceedingswereinstituted
to quash the decision of the 1st Respondent and to declare the said quit notice of no avail or forceinlaw.Hesubmitted
that a party need not wait until legal proceedings are instituted to preserve his lawful rights. InK.M.KarunaratneVs.
Ratnayake(1) the Court of Appeal having held that there was a contract of tenancy, proceeded by wayofwritofcertiorari
and quashed the quit notice on the ground that the said quit notice was not valid in law. In this case the AssistantGeneral
Manager of National Savings Bank a Competent Authority for the purpose of Government Quarters Recovery of Possession ActNo.
7 of 1969 as amended gave notice to the Petitioner to vacate certain
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premises occupied by him. The Petitioner in the said case challenged the quit notice on the ground that there wasatenancy
agreement between the parties which was not covered by the said Act No. 7 of 1969. He submitted that in the present casethe
Respondent not only issued quit notice butalsoinstitutedactionandthePetitionerhassoughtbothtoquashthe
proceedings that has already been instituted in the Magistrate's Court of Nuwara-Eliya and that can only be done bywayofa
writ of certiorarithat the Petitioner has also sought a declaration that the Magistrate'sCourtofNuwara-Eliyahasno
jurisdiction. Mr. de Silva then submitted that even though it was contended that in theprayerofthePetitiontheword
certiorari had not been specified and thus there is no basis for application of writ, an examination ofthePetitionwould
show both from the caption and the body of the Petition that the Petitioner has sought by way of writs of certiorari andquo
warranto to quash the decision of the 1st Respondent to eject the Petitioner and to avoid all consequentialstepstakenby
the 1st Respondent. Mr. de Silva while conceding that the words writ of certiorari does not appear in the petitionsubmitted
that there is clear proof of the fact that the Petitioner has sought to invoke the writ jurisdictionparticularlybywayof
certiorari. He also submitted that Courts of England have from time to time held that an applicantmightseekanyofthe
five remedies of mandamus, certiorari, prohibition, declarationorinjunctionandthatinFernandoVs.Universityof
Ceylon(2) Supreme Court has held that where a remedy by way of certiorari may not be available, Courts may intervenebyway
of a declaration or injunction notwithstanding the absence of a right of appeal.

Mr. Musthapha, PC. submitted in support of his argument that Revision and Writ Jurisdiction cannot be combined inthatWrit
JurisdictionisoriginaljurisdictionwhileRevisionaryJurisdictionisreviewjurisdiction. In Wijesinghe Vs.
Tharmaratnam(3) the caption was as follows:

"In the matter of an application for leave to appeal under Section 156(2) of the Civil Procedure Code and/or for the
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exercise of the revisionary powers under Section 753 of the said Code." Paragraph 18ofthepetitionoftheabovecase
stated that "in the circumstances aforementioned it is respectfully urged that Your Honours Court be pleased to grantrelief
to the Defendant-Petitioner by exercising the revisionary powers vested in Your Honours Court in the event that YourHonours
Court is pleased to maintain that the Defendant-Petitioner is not able to maintain an applicationforleavetoappealin
this matter." A preliminary objection was raised in appeal that an application for leave to appeal cannot be joinedtogether
with an application for revision. It was also urged that stamps furnished have been only for the leave to appealapplication
and none for the application for revision. The Court did not proceed to make a determination on the objections takennamely,
as to misjoinder and the consequent under stamping. Jameel, J. expressed the view that "these two objections arenotdevoid
of merit but they could await a fuller argument in an appropriate case. Mr. Musthapha,P.C.relyingontheabovecase
submitted that the two applications cannot be joined for the reasonthat.differentcriteriaappliesforstamping.Mr.
Musthapha then submitted that since Mr. De Silvaconcededthatwritjurisdictioncannotbecombinedwithrevisionary
jurisdiction the present application could be dismissed on this ground alone.

Mr. Musthapha then submitted that the Petitioner has failed to specify the writ he was seeking even though in the captionhe
has referred to quo warranto, certiorari and prohibition, there is no reference made to any ofthesewritseitherinthe
body of the application or in the prayer. He submitted that in England due totheconfusionresultingfromtheneedto
identify a specific writ an important reform was made in 1997 with the introduction of a new form of procedure knownasThe
Application for Judicial Review. In the Administrative Justice Report of the Committee of the Justice - all SoulsReviewof
Administrative Law in the UK laid down the procedural innovation vide order 53 of the Rules of the Supreme Court -
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"An important reform was made in 1977 with the introduction of the new formofprocedureknownas'theapplicationfor
judicial review'. The change had been proposedin1976bytheLawCommissionofEnglandandWalesinRemediesin
Administrative Law (Law Com. No. 73 Cmnd. 6407). Earlier Commonwealth precedents wereOntario'sJudicialReviewProcedure
Act, 1971 (now Revised Statutes of Ontario 1980 c. 224), and New Zealand's Judicature AmendmentAct,1972assubsequently
amended. The Australian Parliament in 1977 enacted the Administrative Decisions (Judicial Review) Act, though notproclaimed
until 1 October 1980."

The learned President's Counsel referred to A. A. De Smith in Judicial Review of Administrative Action 4thEditionatPage
568 "On an application for judicial review made under order 53 of the Supreme Court Rules it is now possible for aCourtto
award in a single proceeding any one or more of the prerogative orders of certiorari, prohibitionormandamus,declaration
or an injunction. This was a reform enacted in England by an amendment to the rules by which a specific remedyknownasan
Application for Judicial Review stated above was introduced to avoid having to specify a writ.Howeverintheabsenceof
such a procedure in Sri Lanka the omission to specify the writ is a fatal irregularity and Mr. Musthapha submits that abald
prayer to quash the decision of the 1st Respondent to institute proceedings in terms of State LandsRecoveryofPossession
Act is misconceived and cannot be granted. Similarly the prayer to declare the quit notice dated 08.04.1997 asofnoforce
or avail is also misconceived as a fatal error for the same reason.

Mr. Musthapha also submitted that in order to obtain certiorari there must be a determinationaffectinglegalrights.The
institution of proceedings in the Magistrate's Court in terms of aquitnoticeisnotadeterminationaffectinglegal
rights.
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I have very carefully considered the submissions of the learned President's Counsel and Mr. I. S. de Silva. I holdthatthe
application for revision in terms of Article 138 and on application for Writs of QuoWarranto,CertiorariandProhibition
under Article 140 of the Constitutions cannot be combined as they are two distinct remedies available to anaggrievedparty
and for that reason the Petition is fatally flawed. The Petitioner has failed to aver the basis for hisentitlementwhyhe
is invoking the writ jurisdiction of this Court: Nor has the Petitioner averred in his Petition that he is seeking toinvoke
the Revisionary Jurisdiction of this Court. The Petitioner in paragraph 13 of his Petition has only stated that the " ...
aforesaid matters constitute exceptional circumstances and grounds warranting the invocationofthejurisdictionofYour
Lordships Court." This averment is vague indistinct, ambigious and without a legal basis and therefore cannot bemaintained.
Mr. I. S. de Silva did concede that revisionary jurisdiction cannot be combined with writ jurisdiction.

An aggrieved person who is seeking to set aside an unfavourable decision made against him by a public authoritycouldapply
for a prerogative writ of certiorari and if the application is to compel an authority to perform a duty he wouldaskfora
writ of mandamus and similarly if an authority is to be prevented from exceeding its jurisdiction the remedyofprohibition
was available. Therefore it is necessary for the Petitionertospecifythewritheisseekingsupportedbyspecific
averments why such relief is sought. Even though the Petitioner has set outinthecaptionthat"Inthematterofan
application . . . for writ of quo warranto and prohibition" there is no supporting averment specifying the writ and thereis
no prayer as regards the writ that is being prayed for. The failure to specify the writthereforerenderstheapplication
bad in law.
The learned President's Counsel's objection that the institution of proceedings in the Magistrate's Courtintermsofthe
quit notice is not "a determination affecting legal rights"
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warranting the issuance of a writ or certiorari is well founded. It was open for the Petitioner to seektoquashthequit
notice by way of ceriorari when the determination was made by the 1st Respondent or to move in Revision at the conclusionof
the Magistrate's finding.

The preliminary objections of the learned President's Counsel is sustained. I am unable to grant thereliefprayedforby
the Petition.

Application is dismissed with costs fixed at Rs. 5000/-.

JAYAWICKRAMA, J. - I agree.
Application dismissed


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