Legal Services and Laws of Sri Lanka


SLR-2001 Vol.3-P91

SLR - 2001 Vol.3, Page No - 91

SUNIL CHANDRA KUMARA

v.

VELOO
COURT OF APPEAL

JAYASINGHE, J.

JAYAWICKREMA, J.

AMERATUNGA, J.

CA(PHC) 2/99

HC 44/96

MARCH 1ST, 2000.

JULY 28TH, 2000.

OCTOBER 16TH, 2000.

NOVEMBER 2TH, 2000.
Constitution - 13th Amendment Art. 138, 145, 154, 154 p(9)b, 154 p4(b), 154p(6),HighCourtoftheProvinces(Special
Provisions Act) 19 of 1990 - S. 3, 11(1), Agrarian Services Act S. 5,9 - Civil Procedure Code -S.753-Jurisdictionof
Court of Appeal, to entertain an application in Revision from an order made by the High Court under Art. 154 p(4)b.
The Petitioner - Respondent filed application in the Provincial High Court of the Central Province for an order quashingtwo
quit notices served on the Petitioner under the provisions of the Government Quarters Recovery of Possession Act. It wasthe
position of the Petitioner - Respondent, that the Respondent - Petitioner (Competent Authority) hasnoauthoritytoissue
the quit notice as the estate had vested in a Public Company.

The Respondent - Petitioner took up the position that the estate is owned by the J.E.D.B. and also that theProvincialHigh
Court (PHC) of the Central Province (C.P.) had no jurisdiction to issue a WritofCertiorariinrespectofthesubject
matter in terms of Art. 154p4(b). The High Court Judge, rejected the PreliminaryObjectionandallowedthePetitioner-
Respondents application. Thereafter the Respondent-Petitioner (Competent Authority) moved in Revision.

It was contended by the Petitioner-Respondent that,theCourtofAppealdidnothavejurisdictiontoentertainthe
application for Revision from an order of the High Court under Art. 154(p)(4) and that from such orders onlyanappeallay
in terms of Art. 154p(6).
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Held :
1. Appellate and Revisionary jurisdiction of the Court of Appeal is set outinArt.138,theAppellateandRevisionary
jurisdiction of the High Court of the Provinces is found in Art. 154 p(3) (b).

2. The power to issue Writs are provided in Art. 154p(4). S. 11(1) of the High Court of theProvinces(SpecialProvisions)
Act 19 of 1990, expressly recognizes the Appellate and Revisionary jurisdiction of the Court of Appealovertheordersof
the High Court.

3. Conceptually the expression Appellate jurisdiction included powers in appeal and Revision, yet such powerissubjectto
the provisions of the Constitution or of any law.

Per Jayasinghe, J.
"Revision is a discretionary remedy, it is not available as of right. This power that flows from Art.138isexercisedby
the Court of Appeal, on application made by a party aggrieved or ex mero motu, this power is available evenwherethereis
no right of appeal.

The Petitioner in a Revision application only seeks the indulgence of Court to remedy a miscarriage of justice. Hedoesnot
assert it as a right. Revision is available unless it is restricted by the constitution or any other law."

4. S. 753 of the Civil Procedure Code and S. 364 of the Code of Criminal Procedure confer power on theCourtofAppealto
call for the records, these sections cannot be construed as provisions whichconferrightsonpartiestomakeRevision
Applications. The Supreme Court rules set out the procedure for making Revision applications.

APPLICATION in Revision from the Order of the Provincial High Court of the Central Province.

Cases referred to :
1. Martin v. Wijewardena - 1989 2 Sri LR 40.
2. Malegoda v. Joachim - 1997 - 1 Sri LR 88.
3. Thameena v. Koch - 72 NLR 192.
4. Sri Lanka Broadcasting Corporation v. De Silva - 1981 2 SLR 228.
5. Guanaratne v. Thambinayagam - 1993 2 Sri LR 359.
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6. Mariam Bee Bee v. Seyed Mohamed - 68 NLR 36.
7. Abeygunawardena v Setunga - 1997 - 1 Sri LR 67.
8. Weragama v Eksath Lanka Wathu Kamkaru Samithiya - 1984 1 SLR 293.
9. Somawathie v Madawela - 1983 - 2 SLR 15.
10. Attorney General v Podi Singho - 51 NLR 388.
11. Potman v I. P Dodangoda - 74 NLR 115.
R. K. W Gunasekera with Ms. Shiranthi Jayatilake for Petitioner.
Anil Silva for Respondents.
Cur. adv. vult.
May 31, 2001.
JAYASINGHE, J.

The Petitioner-Respondent hereinafter referred to as the petitioner filed application in the ProvincialHighCourtofthe
Central Province among other things for an order quashing the quitnoticeservedonthePetitionerbytheRespondent-
Petitioner hereinafter referred to as the Respondent under the provisions of the Government Quarters RecoveryofPossession
Act No. 7 of 1969 as amended requiring him to deliver vacant possession of the Estate Quarters occupied by the Petitionerat
Upper Division Ragalla Estate, Halgranoya. In his application to the High Court the Petitioner tookuptheobjectionthat
the Respondent had no authority to issue the quit notice under the Government Quarters Recovery_ofPossessionAct,since
the Management of the Ragalla Estate had vested in the Maturata Plantations Ltd., a Public Company under anorderpublished
in the Government Gazette No. 720/2 of 22.06.1992the Petitioner also prayed for an interim order staying actionunderthe
quit notice. The Respondent in his objections took up the position that RagallaEstateisownedbytheJanathaEstates
Development Board and that it was only the management of the Estate that was vested with the MaturataPlantationsinterms
of the Gazette Notification 720/2 and accordingly the Respondent as the Competent Authority of the Plantation
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Reform Project of the Ministry of Plantations Industries had the authority to issue thequitnotice.TheRespondentalso
took up the position that the Provincial High Court oftheCentralProvincehadnojurisdictiontoissueawritof
certiorari in respect of the subject matter in terms of Article 154 P(4) (b) of the Constitutionthat the High Court hadno
jurisdiction to grant interim relief stayingproceedingsunderthesaidquitnotice.TheRespondentinitswritten
submissions also took up the position that Article 154 P(4) (b) of the Constitution enables Courttoissuewritsonlyin
respect of any matter set out in the Provincial Council Listthat while land as a subjectisincludedintheProvincial
Council List under item 18 of the List, it is subject to the restrictions in appendix 11,thatappendix11providesthat
State land shall continue to vest in the Republicthat in terms of item 1 of Appendix II sub item 1.3 it isclearlystated
that alienation or disposition of State land within a Province shall be by the Presidentthat the ownership oftheRagalla
Estate was never transferred to Maturata Plantations. Hence the ownership is with the State.

The learned High Court Judge by his order dated 05.11.1997 rejected the preliminary objection of the Respondentandallowed
the Petitioner's application and set aside the quit notice issued by the Respondent.

Being aggrieved by the order of the learned High Court Judge of the Central Province the Respondent moved in Revision.

When this matter was taken up before this Court, a preliminary objection was taken that the CourtofAppealdidnothave
jurisdiction to entertain an application for Revision from an order of the High Court made under Article 154P(4) that
from such orders only an appeal lay in terms of Article 154 P(6). Accordingly two matters came upfordeterminationbefore
this Court -

(i) Does the Petitioner have a right to move the Court of Appeal by way of Revision against an ordermadebyaProvincial
High Court made under Article 154 P (4) (b).
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(ii) Are the quarters provided to the Respondent State land and whether the Respondent was entitled to seek ejectment ofthe
Petitioner in terms of a quit notice under Government Quarters Recovery of Possession Act No. 7 of 1969 as amended.

Before dealing with the question whether - the ejectment sought from the premises occupied by the RespondentisStateland
it is convenient to dispose of the preliminary objection raisedbytheRespondentwhethertheRespondent-Petitioneris
entitled to invoke the revisionary jurisdiction of thisCourtintermsofArticle138readwith154P(6)ofthe
Constitution.
While appellate and revisionary jurisdiction of the Court of Appeal is set out in Article 138 the appellateandrevisionary
jurisdiction of the High Court of the Provinces is found in Article 154 P (3) (b).
Article 138 (1) provides that
"The Court of Appeal shall have and exercise subject to the provisions of theConstitutionorofanylaw,anappellate
jurisdiction for the correction of all errors in fact or in law which shall be committed by the High Court, intheexercise
of its appellate or original jurisdiction or by any court of First Instance, tribunalorotherinstitutionandsoleand
exclusive cognizance byway of appeal, revision and restitutio inintegrumofallcauses,suits,actions,prosecutions,
matters and things of which such HighCourt,CourtofFirstInstancetribunalorotherinstitutionmayhavetaken
cognizance.

Article 154 P (3) (b) provides that
"Every High Court shall - notwithstanding anything in Article 138 and subject to any law exercise appellateandrevisionary
jurisdiction in respect of convictions, sentences and orders entered or imposed by Magistrate'sCourtsandPrimaryCourts
within the Province."
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The power to issue writs are provided in Article 154 P (4).
Article 154 P (4) (b) provides that

"Every such High Courts shall have jurisdiction to issue according to law -

(a) orders in the nature of habeas corpus, in respect of persons illegally detained within the Provinceand

(b) orders in the nature of writs of certiorari, prohibition, procedendo mandamus and quo warranto against any person
exercising, within the Province any power under -
(i) any lawor
(ii) any statutes made by the Provincial Council established for that Province in respectofanymattersetoutinthe
Provincial Council List."

The main contention of Mr. Anil Silva was that the right of appeal or revision must be specially provided for. InMartinv.
Wijeywardena(1) Jameel, J. having set out the provisions of Article 138 observed that

`Article 138 is an enabling provision which create and grant jurisdiction to the Court of Appeal to hear appeals fromCourts
of first instance, tribunals and other institutions. It defines and delineates the jurisdiction of the CourtofAppeal.It
does not, not indeed does it seek to create or grantrightstoindividualviz-a-vizappeals.Itonlydealswiththe
jurisdiction of the Court of Appeal and its limitations and nothing more. It does not expressly nor by implication createor
grant any rights in respect of individuals...... Article 138 is only an enabling Article and it confers thejurisdictionto
hear and determine appeals to the Court of Appeal. The right to availofortotakeadvantageofthejurisdictionis
governed by several statutory provisions in various legislative enactments."
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G. P. S. de Silva, C. J. in Malegoda v. Joachim(2) referring to the reasoning of Jameel, J. observed that

"this reasoning would apply with equal force to conferment of jurisdiction of the High Court established by Article 154 P."
In Malegoda v. Joachim (Supra) it was held further that Article 154 P (3)(b)oftheConstitutiononlyconferredforum
jurisdiction to hear appeals but does not create a corresponding right in any person to invoketheappellatejurisdiction.
Right of appeal is a statutory right and must be expressly created and granted by Statute.

Mr. Silva argued that similarly the right to invoke the revisionaryjurisdictionoftheCourtofAppealmustalsobe
specifically provided. He submitted that in Thameena v. Koch(3) the appellant filedanappealagainsttheorderofthe
Labour Tribunal to the Supreme Court. At the hearing an objection was raised that the appeal was out of time. Atthatstage
Counsel for the appellant invited Court to exercise the revisionary powers of the Supreme Court. Tennakoon,J.(ashewas
then) held that the revisionary powers of the Supreme Court did not extend to orders made by labour Tribunals and theappeal
was accordingly rejected. In Sri Lanka Broadcasting Corporation v. De Silva(4) Victor Perera, J. observed that

"The Industrial Disputes Law have provided only for an appeal on a question of law but not for application forrevision.On
the other hand the Civil Procedure Code in Section 753 provides for application by way of revision in addition totheright
of appeal in all civil cases in the District Court. Sections 364 and 366 of the Code of CriminalProcedureActNo.15of
1979 has given this Court power to act by way of revision in criminal cases. A consideration of the nextfollowingarticles
of the Constitution indicate that the correct construction and application of the powers referred to in Article 138.Article
139 deals with exercise of
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powers of this Court in appeal from anorder,judgment,sentenceofaCourtoffirstinstance,tribunalsorother
institutions. Article 140 has granted the Court of Appeal full power and authority to call for andinspecttherecordsof
any court of first instance or tribunal or other institution in the exercise of its power to issue writs. Butinregardto
the exercise of its revisionary powers, the Court of Appeal had been given the power to call for and inspectanyrecordof
any court first instance only and not the records of tribunal andotherinstitutions.Thiswouldthereforeexcludethe
examination of the record in a Labour Tribunal by way of Revision."

Mr. Anil Silva also invited the attention of Court to Article 145 of the Constitution which provides fortheinspectionof
records of any court of first instance in the exercise of revisionary powers in theinterestofjusticemayrequire.He
submitted that even though Article 138 was amended by the 13th Amendment to the Constitution and nocorrespondingamendment
was made to Article 145. Therefore he argued that relying on Sri Lanka BroadcastingCorporationu.DeSilva(Supra)the
Court of Appeal cannot call for and inspect a record of a Provincial High Court.AccordinglytheCourtofAppealcannot
revise an order made by a Provincial High Court. There are limitations placed on the revisionary jurisdictionoftheCourt
of Appeal.

Article 154 P (6) provides that
"Subject to the provisions of the Constitution and any law, any person aggrieved by a final order, judgmentorsentenceof
any such Court in the exercise of its jurisdiction under Paragraph 3(b) or 3(c) or 4, may appeal therefrom totheCourtof
Appeal in accordance with Article 138."
An examination of Article 154 P (6) would show that it only provides for an appeal to the Court of Appeal.
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In Gunaratne v. Thambinayagam(5) Kulatunga, J. stated that
"The learned Counsel for the Petitioner submitted that particularly in thebackgroundoflegislativeprovisionsexisting
prior to the 13th amendment (viz the Courts Ordinance, the Administration of Justice Law, Article138oftheConstitution
and the relevant Statutes on Civil and Criminal Procedure), the expression "appellate jurisdiction' (as opposed to"original
jurisdiction") would ordinarily include the power to review decisions by way of appeal, revision or restitutioinintegrum
that Article 154 P (3) (b) enacted by 13th amendment vested "appellate jurisdiction" in the High Court limited to appealand
revision of the decisions of the Magistrate's Courts and Primary Courtsthat Section 3 of Act No. 19 of1990extendedthe
exercise of such jurisdiction to orders made by Labour Tribunals and orders made underSection5and9oftheAgrarian
Services Act No. 58 of 1979and that in the context the expression the "appellate jurisdiction" inSection9oftheAct
should not be limited to an appeal made "eo nomine" but should be interpreted to includethepowerofreviewbywayof
revision."

It was also argued in Gunaratne u. Thambinayagam (Supra) by the Counsel for the Respondent that
whilst "appellate jurisdiction" would conceptually include appeal and revision, yet the power of revisionisdistinctfrom
"appellate jurisdiction."

Counsel relied on a dicta of Sansoni, C. J. where His Lordship observed in Mariam Beebee v. Seyed Mohammed(6) that -
"The power of revision is an extra ordinary power which is quite independent of and distinct from the appellatejurisdiction
of the Court. Its object is the due administration of the justice and the correction of errors, some times
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committed by this Court itself, in order to avoid miscarriage of justice."

The Counsel relying on Thameena v. Koch (Supra) submitted that "prior to the enactment of Section 3 of ActNo.19of1990
the remedy by way of Revision was not available against the order of the Labour Tribunal, and that the right of appealisa
statutory right and must be expressly createdandgrantedbystatute.ItwascontendedbyCounselinGunaratnev.
Thambinayagam (Supra) that Section 9 does not give the Appellant a right of appeal to the Supreme Court from an order ofthe
High Court in the exercise of the revisionary jurisdiction and in contrast Section 31 (b) of the Industrial DisputesActas
amended by Act No. 32 of 1990 provided that"that any workmen, trade union or employer who is aggrieved by anyfinalorder
of a High Court established under Article 154 P of the Constitution, in the exercise of the appellate jurisdiction vestedin
it by law or in the exercise of its revisionary jurisdiction by law in relation to an order of a Labour Tribunalmayappeal
therefrom to the Supreme Court with the leave of the High Court or the Supreme Court first had and obtained."

Kulatunga, J. observed that"he has no difficulty in accepting the submission, that Section 9imposessuchalimitation.
Section 9 of the Act and the Authorities would not permit the conferment of the right of appealinrespectofrevisionary
orders of the High Court."

In Abeygoonasekara v. Setunga(7) Kulatunga, J. observed that
"Conceptually the expression appellate jurisdiction includes powers in appeal and revision."
Kulatunge, J. observed further that
"........ Article 154 P (6) itself has not limited the right of appeal given by it to orders made by the HighCourtbyway
of appeal.
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However that article refers back to Article 138 which spells out the jurisdiction of the Court of Appeal and the manner of
its exercise."
It can therefore be stated that this reasoning applies to the revisionary jurisdiction of this Courtaswell.Eventhough
conceptually the expression appellate jurisdiction includes powers of appeal and revision yet such power issubjecttothe
provisions of the Constitution or of anylaw.Therecanbelimitations.InWeragamav.EksathLankaWathuKamkaru
Samithiya(8) Mark Fernando, J. took the view that "the jurisdiction of the Court of Appeal is not an entrenchedjurisdiction
because Article 138 provides that it is subject to provisions of any law. Hence it wasalwaysconstitutionallypermissible
for that jurisdiction to be reduced or transferred by ordinary law..."

The matter presently before Court for determination is whether the Court of Appeal in the exercise ofitsappellatepowers
could sit in revision in respect of an order made by the Provincial High Court. Mr. Gunasekera submitted thatSection11(1)
of the High Court of the Provinces(SpecialProvisions)ActNo.19of1990expresslyrecognizestheappellateand
revisionary jurisdiction of the Court of Appeal over orders of the High Court.

Section 11(1) of Act No. 19 of 1990 provides that

"The Court of Appeal shall have and exercise subjecttotheprovisionsofthisActoranyotherlaw.Anappellate
jurisdiction for the correction of all errors in fact or in law which shall be committed by anyHighCourtestablishedby
Article 154 P of the Constitution in the exercise of its jurisdiction under Paragraphs (3) (a) or (4) ofArticle154Pof
the Constitution and sole and exclusive, Cognizance by way of appeal, revision and restitutioinintegrumofallcauses,
suits, actions, prosecutions, matters and things of which such High Court may have taken Congnizance.
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Article 154 P (6) provides that

"any person aggrieved by a final order, judgment or sentence of any such Court in theexerciseofitsjurisdictionunder
para 3 (b), 3 (c) or 4 may appeal therefrom to the Court of Appeal."

The argument presented to Court by Mr. Anil Silva in support of his contention that this Court did not havejurisdictionto
entertain an application for Revision from an order of the High Court made under Article 154 P (4)wasonthebasisthat
Article 154 P (6) only provides for an appeal to the Court of Appeal and in theabsenceofanyreferencetorevisionary
jurisdiction in the said article, revision was excluded by implication. Hisargumentwasbasedonthepropositionthat
appeal or Revision must be specially providedforandintermsofArticle154P(6)onlyappealisprovided.In
Abeygoonasekara v. Setunge (Supra)Kulatunge,J.acceptedthecontentionthatconceptuallytheexpressionappellate
jurisdiction includes powers in appeal and Revision and this principalwasformulatedbySansoni,J.inMariamBeebee
(Supra). In Somawathie v. Madawala(9) Soza, J. cited with approval thedictaofSansoni,C.J.inMariamBeebeethat
Revision was available for the .......due administration of justice and the correction of errors committed......... inorder
to avoid miscarriage of justice."

In Attorney General v. Podisingho(10) Dias, J. stated that this power [(Revision)(whichisadiscretion))isexercised
"where there is a positive miscarriage of justice in regard either to the law or to the judges appreciation of the facts."

"........... this power is not limited to cases where there is no appeal, and that it is wide enough to embrace a casewhere
an appeal lay but which for some reason was not taken." This power is so wide thatRevisionisavailableevenafterthe
appeal has been disposed of Potman v. L P. Dodangoda(11).

Revision is a discretionary remedyit is not available asofright.ThispowerthatflowsfromArticle138ofthe
Constitution
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is exercised by this Court on application made by a party aggrieved or ex mero motu thispowerisavailableevenwhere
there is no right of appeal as for instance Section 74 (2) of the Primary Courts Procedure Act. The Petitioner in aRevision
application only seeks the indulgence of Court to remedy a miscarriage ofjustice.Hedoesnotassertitasaright.
Revision is available unless it is restricted by the constitution or any other law. I am unable to seeanysuchimpediment
as observed by Mark Fernando, J. in Weragama (Supra).

It is also relevant to mention that the reasoning of Thamina v. Koch (Supra) has no application and no analogy canbedrawn
from the observations of Tennakoon, J. for the reason that Labour Tribunal is not a Court.

Mr. Anil Silva submitted that Section 753 of the Civil Procedure Code and Section 364 of the Code of CriminalProcedureAct
No. 15 of 1979 confer upon a party a right to make an application by way of revision. His contention was that the absenceof
a similar provision in respect of orders made by Provincial High Courts under Articles 154 P 3(b),3(c)or(4)isan
indication that revision is not available against such orders.

We are unable to agree with this submission: Section 753 of theCivilProcedureCodeandSection364oftheCriminal
Procedure Code confer power on the Court of Appeal to call for the records of the District CourtsandMagistrate'sCourts.
Those Sections cannot be construed as provisions which confer rights on parties to makerevisionapplication.TheSupreme
Court Rules sets out the procedure for making revision applications. When an applicationismadeinaccordancewiththe
Rule, the Court of Appeal can exercise its revisionary jurisdiction even without calling for the record.

Mr. Gunasekera submitted that an appeal has been filed in terms of the Court ofAppeal(ProcedureforAppealsfromHigh
Courts) Rules and the appeal is pending. He submitted that the ensuing delay in the mattercomingupforargumentbefore
this
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Court is an exceptional circumstances why the petitioner is seeking the indulgence of Court to act in Revision.

Mr. Gunasekera's argument that Section 11 (1) recognizes the appellate and revisionary jurisdiction of theCourtofAppeal
in respect of orders made by the Provincial High Court is valid. In the absence of anyprovisionlimitingtherevisionary
jurisdiction of this Court the preliminary objection of the Petitioner-Respondent must fail.Thepreliminaryobjectionis
accordingly overruled.

Registrar is directed to fix this matter for argument on the merits on a dateconvenienttoCounsel.Sinceanimportant
question of law was involved I make no order for costs.
JAYAWICKRAMA, J. - I agree.
AMARATUNGE, J. - I agree.
Preliminary objection overruled.
Matter fixed for argument

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