Caselaw on The State Lands (Recovery of Possession) Act

THE SUPERINTENDENT, STAFFORD ESTATE (2013 1 SLR 25)
AND TWO OTHERS V. SOLAIMUTHU RASU

SUPREME COURT
MOHAN PIERIS, P.C. CJ,
SRIPAVAN, J AND
WANASUNDARA, P. C. J.
S.C. APPEAL NO. 21/13
S.C. SPL LA 203/ 12
CA/PHC/ APPEAL NO. 37/2001
HC/CP/CERTI 42/97
JULY llTH 2013 AND
JULY 17TH 2013

State Lands (Recovery of Possession) Act No.7 of 1979 - Application of the Act to all State lands - Unauthorized possession or occupation by any person of any state land deemed to be subject to the provisions of the Act - Writ Jurisdiction in respect of the State Lands (Recovery of Possession) Act- Powers conferred on the Provincial councils in exercising land powers and its limitations - Omne maus continent in seminus.

The 2nd Petitioner, the Competent Authority, initiated proceedings in the Magistrate Court to recover a State Land in respect of an illegal occupation, in terms of the provisions of the State Lands (Recovery of
Possession) Act No. 7 of 1979. The Petitioner - Appellant - Respondent (Respondent) filed an application in the High Court praying for a Writ of Certiorari to quash the quit notice. the 2nd Petitioner filed statement of
objection and raised the following preliminary objections: inter alia,

(a) The said land is a State Land

(b) The 2nd Petitioner, as the duly designated Competent Authority in terms of the provisions of the State Lands (Recovery of Possession) Act No. 7 of 1979 issued quit notice dated 07.10.1997 to the Respondent by virtue of Section 3 of the said Act;

(c) Thus the Respondent has no legal basis to invoke the Writ Jurisdiction of the Provincial High Court.

(d) The High Court has no jurisdiction to hear and determine the matter as the subject of the action pertains to State Lands, which do not fall within the Provincial Council list.

The Provincial High Court held that it had no jurisdiction to hear and determine the application and upheld the preliminary objection. The Respondent thereafter preferred an appeal to the Court
of Appeal. The Court of Appeal concluded that State Land becomes the subject of the Provincial Council.

The Petitioner preferred this appeal to the Supreme Court from the aforesaid judgment of the Court of Appeal and all counsel agreed to make their submissions only on the following question of law:

"Did the Court of Appeal err by deciding that the Provincial High Court has jurisdiction to hear cases where dispossession or encroachment or alienation of State Lands is/are in issue?"

Held:
(1) State Land continues to be a subject located in the Center.

Per Mohan Peiris P.C., CJ -

" , . . . Having regard to the fact that in a unitary State of Government no cession of dominium takes place, the Centre has not ceded its dominium over State Lands to the Provincial Councils except in some limited circumstances ...."

(2) When the State makes available to every Provincial Council, State Lands within the Province required by such council for a Provincial Council subject, the Provincial Council shall administer. control and utilize such State Land, in accordance with the laws and statutes governing the matter.

per Mohan Pieris,PC,CJ. ....

"Provincial Councils in exercising" rights in and over land, land settlement, land tenure, transfer and alienation of land, land use, land settlement and improvement "to the extent set out in Appendix II (conferred by List 1) are limited to administering, controlling and utilizing such State Lands as are given to them. "In terms of article 1.2 State Land is made available to the Provincial Council by the Government. In the background of this Constitutional arrangement it defies logic and reason to conclude that State Lands is a Provincial Council subject in the absence of a total subjection of State Lands to the domain of Provincial Councils."

(3) The power of the President to alienate or dispose of State Land in terms of Article 33(d) of the Constitution and other written laws remains unfettered.

(4) Article 154(G)(7) of the Constitution provides that a Provincial Council has no power to make statutes on any matter set out in List II (Reserved List). One of the matters referred to in that List is "State Lands and Foreshore" except to the extent specified in item 18 of List 1. Thus, it is within the legislative competence of Parliament to enact laws in respect of "State lands" bypassing the powers assigned with Provincial Councils. The Provincial Councils are also expressly debarred from enacting statutes on matters coming within the purview of the Reserved List.

(5) Provincial Council subject matter in relation to State Lands would only mean that the Provincial Councils would have legislative competence to make statutes only to administer, control and utilize State Land, if such State Land is made available to the Provincial Councils by the Government for a Provincial Council subject.

(6) The act of the Competent Authority in issuing a quit notice for ejectment does not fall within the extents of matters specified in the Provincial Council List and therefore the Provincial High Court would have no jurisdiction to exercise Writ jurisdiction in respect of quit notices issued under the State Lands (Recovery of Possession) Act.






HERATH VS. MORGAN ENGINEERING (PVT) LTD (2013 1 SLR 222)

SUPREME COURT
MOHAN PIERIS, PC, CJ.,
SRI PAVAN, J AND
RATNAYAKE, P.C., J.
S.C. APPEAL NO. 214/12
S. C. SPL.L.A. NO. 19/12
CA/PHC/APN/158/06
HC(REV.) 512/04
MC (FORT) CASE NO. 58439
MAY 13TH, 2013

State Lands (Recovery of Possession) Act No. 7 of 1979 - Section 9 - Scope of inquiry under the Act - Section 18 - Interpretation - State land -Land to which the State is lawfully entitled or which may be disposed by the State -Interpretation of Statutes.

State Lands (Recovery of Possession) Act was enacted in order to make provision for the recovery of possession of "State Lands" from persons in unauthorized possession or occupation of the State Lands.

Held:

(1) If the language of the enactment is clear and unambiguous, it would not be legitimate for the Courts to add words by implication into the language. It is a settled law of interpretation that the words are to be interpreted as they appear in the provision, simple and grammatical meaning is to be given to them, and nothing can be added or subtracted. The Courts must construe the words as they find it and cannot go outside the ambit of the Section and speculate as to what the legislature intended.

(2) In alienating "State Lands" the President of the Republic is mandatorily required to alienate or transfer state ownership in terms of the law.
per Sri pavan, J.-

"Assistance can be taken for purposes of interpretation of the phrase "written law" as found in the Constitution which is the Supreme Law of the land. Whether it is the Constitution or the Act, the Courts must adopt a construction that will ensure the smooth and harmonious working of the Constitution or the Act as the case may be, considering the cause which induced the legislature in enacting it."

(3) The purpose of the State Lands (Recovery of Possession) Act is to provide an expeditious method of recovery of "State Lands" without the State being forced to go through a cumbersome process of protracted civil action and consequent appeals.


(1) [1980] 2 SLR 243 (C.A)
FAROOK v GUNEWARDENE, GOVERNMENT AGENT, AMPARAI

Court of Appeal
Abdul Cader, J
L H De Alwis, J

State Lands (Recovery of Possession) Act, No.7 of 1979, Sections 3,4,5,7,8,9,10,12,13, 15 and 17 – Natural Justice.

The petitioner complained that the land in question was not State land but private land of which he was in possession on deeds ranging from years 1934 – 1967 and that he was not given an opportunity of placing those facts before the Government Agent prior to the notice to quit being served on him, which he alleged amounted to a violation of natural justice and the principle of audi alteram partem.

Held:

When the legislature made express provision for any person who is aggrieved that he has been wrongfully ejected from any land to obtain relief by a process specified in the Act itself, it is not open for the court to grant relief on the ground that the petitioner had not been heard.


       2.  [1982] 2 SLR 621
    SENANAYAKE v. DAMUNUPOLA
    Supreme Court
    Sharvananda,J., Ratwatte,J., and Victor Perera,J

Writ of Certiorari - State Land (Recovery of Possession) Act, No.7 of 1979, sections 3(1), 9 – Land Survey Ordinance, Section 6 – Crown Lands Encroachment Ordinance, section 2, 7( c ),

The petitioner was the owner of premises No.23/8 Pansalwatta Mulgampola Road, Kandy, having inherited the property from one Reeves who owned and possessed the property by virtue of a Deed of Transfer No. 369 of 19.5.1908

A small portion of land in extent 4 perches and bearing Lot No.8104 in Plan No. PP 2544 by the Surveyor-General appears to have belonged to the State.

Two neighbours complained to the Government Agent who was the competent authority under the State lands (Recovery of Possession) Act No.7 of 1979 that the petitioner had encroached on the land by building on it.

The respondent issued notice on the petitioner requiring him to quit. The petitioner applied for a Writ of Certiorari to the Court of appeal, which they refused. On appeal to the Supreme Court –

Held –

That the State Lands (Recovery of Possession) Act was not meant to obtain possession of land which the State had lost possession of by encroachment or ouster for, a considerable period of time by ejecting a person in such possession. Section 3 should not be used by a competent authority to eject a person who has been found by him to be in possession of a land where there is doubt whether the State had title or where the possessor relies on a long period of possession.

3.        [1986] 3 C.A.L.R 141
                   KANDIAH v. ABEYKOON
                   Court of Appeal,
           Siva Selliah,J.,
   Goonewardene,J.

State Lands (Recovery of Possession) Act, No.7 of 1979 as amended – Whether strict compliance necessary in respect of forms of notice, application and affidavit.

The Respondent, the Additional Government Agent made an application to the Magistrate’s Court, seeking the ejectment of the petitioner who was in occupation of the land in question. The Magistrate directed the ejectment of the Petitioner.

The Petitioner appealed to this court claiming that the requisite affidavit was in accordance with the amended law but that the body of the application was as prior to the amendment. He further claimed that certain defects in the affidavit deprived it of the effect contended for it.

Held –

The objections are validly taken and go beyond mere technicality. The operation of the Act and its provisions could well have a serious impact upon proprietory rights. Upon a true construction of the Statute as a whole the forms of notice, application and affidavit had to be in strict compliance with those which the legislature has thought important enough to set out in the schedules before the jurisdiction of the Magistrate to eject a person in possession or occupation could be exercised.

4. [1988] 1 SLR 416
IHALAPATHIRANA v. BULANKULAME, DIRECTOR –GENERAL, U.D.A
Court of Appeal
S.N.Silva, J

Writ of certiorari – Quit notice under State Lands (Recovery of Possession) Act No. 7 of 1979.

The Rest House Chilaw was vested in the Urban Development Authority (U.D.A). The Petitioner was appointed by the U.D.A as manager of the Chilaw Rest House Under section 5 of the Rest House Act. The Petitioner had to make payments monthly as agreed to the U.D.A. He however fell into arrears for 41/2 months and the U.D.A issued notice to pay the arrears before 29.02.1984 in default of which steps would be taken to terminate the agreement. The Petitioner undertook to settle the arrears but failed to do so. By letter dated 27.06.1985 the agreement was terminated and the Petitioner was requested handover possession of the Rest House on a date to be mutually agreed on. The Petitioner did not reply this letter and so the U.D.A sent letter dated 30.08.1985 stating possession of the Rest House would be taken 01.10.1985. On 01.10.1985 the petitioner made an application to the Primary Court under section 66 of the Primary Courts procedure Act complaining there was a dispute with rega5rd to property which was likely to result in a breach of peace. On the same day the Primary Court judge made an interim order stating the petitioner was entitled to remain in possession until conclusion of the inquiry. The Attorney-at-Law informed the Primary Court that action would be taken to evict the petitioner in the appropriate Court. On 10.12.1985 the U.D.A sent the petitioner notice to quit and instituted proceedings in the Magistrate’s Court for the eviction of the petitioner. Thereupon the petitioner applied for a writ of certiorari to quash the quit notice and to stay proceedings in the Magistrate’s Court. The stay order was made valid until the determination of the writ application. The only question was whether the machinery of the State Lands (Recovery of Possession) Act could be invoked against the manager of a Rest House who was there on the basis of a contract and could be evicted only on a civil action.


Held –

Land vested in the U.D.A is State land. A Rest House is State property. Possession of it without a permit or other written authority is unauthorised possession. The State Lands (Recovery of Possession) Act can be used to secure eviction without recourse to a civil action.

That the “recovery of possession” procedure laid down in the Act may be invoked when any person is in unauthorised possession of state land. The definition of the State land in the Act includes land vested in, owned by or under the control of, the Urban Development Authority. Any possession without “a valid permit or other written authority of the State granted in accordance with any written law” is unauthorised possession. Therefore the Petitioner’s possession, as it is not covered by their agreement, is unauthorised possession of State land, and the State Lands (Recovery of Possession) Act is applicable. The authority may either invoke the jurisdiction of a Civil Court or the machinery provide in the State Lands (Recovery of Possession) Act.

“The clear object of the States Land (Recovery of Possession) Act is to secure possession of such land by expeditious machinery without recourse to an ordinary civil action”.

5. [1988] 1 SLR 255
GUNARATNE (ALEXIS AUCTION ROOMS) v. ABEYSINGHE (URBAN DEVELOPMENT AUTHORITY)
Supreme Court
Atukorale, J. Tambiah,J. and L.H.De Alwis,J

Landlord and tenant- Urban Development Project (Special Provisions) Act No. 2 of 1980, S.2- State Lands (Recovery of possession) Act No.7 of 1979, S.3.

Revision- Urban Development Project (Special Provisions) Act No. 2 of 1980, Sections 3(a) and 4(1)- Removal of revisionary and writ jurisdiction of the Court of Appeal by these provisions.
Alexis Auction Rooms were in occupation of the premises in suit as tenants for about 35 years under one Ameen and after acquisition on 29.05.1981. under the U.D.A. The Company (Alexis Auction Rooms) fell into arrears of rent and the U.D.A  served notice dated 10.10.83 under section 3 of the State Lands (Recovery of possession) Act No.7 of 1979 on Gunaratne a Director of the Company to vacate the premises and hand them over on or before 25.10.1983 (i.e. in 15 days time). This was followed by the U.D.A. instituting proceedings on 24.01.84 (i.e. 106 days later) in the Magistrate’s Court, against Gunaratne seeking his eviction. On 04.04.84 the Magistrate mad order directing eviction on 18.04.84 two weeks’ time having been allowed at the tenant’s request. Gunaratne then applied to the Supreme Court and ask for a writ for a writ of Certiorari to quash the order of the Magistrate’s Court but this was refused as being out of time.

On 19.04.84 Gunaratne moved the Court of appeal for revision of the order of the Magistrate’s Court. This application was dismissed on 20.05.85. On the same day U.D.A took possession. Gunaratne appealed to the Supreme court from the order of the Court of appeal.

Held –

(1) The requirement of giving notice under S.3(1) of the State Lands (Recovery of Possession) Act to vacate and hand over possession is mandatory and must be complied with.

(2) The stipulation of 30 days notice in S.3(1) is for the benefit of the occupier and the authority may specify a date not less than 30 days or a longer period. The quit notice given in this case  being only 15 days was defective in form but the tenant in fact had 106 days because ejectment proceedings were filed only after 106 days and a further 2 weeks had been given at the tenant’s request by the Magistrate. The requirement of 30 days notice in S.3(1) must be treated as directory since there has been substantial compliance with it.

(3) Section 7(1) of Act No.2 of 1980 enable recourse to the provisions of Act No. 7 of 1979 in order to take possession of the land.

(4) The Court of Appeal could not have entertained the Revision application of the petitioner. The revisionary and writ jurisdiction of the Court of Appeal to grant reliefs in respect of the complaint of the petitioner have been removed by S.3(a) and S.4(1) of Act No.2 of 1980.

6. [1992] 1 SLR 110
MUHANDIRAM v. CHAIRMAN, NO.111, JANATHA ESTATE DEVELOPMENT BOARD.
Court of Appeal
Grero,J.

State Lands (Recovery of Possession) Act No.7 of 1979, section 5(1), 9(1) and Burden proof.

In an inquiry under the State Lands (Recovery of Possession) Act, the onus is on the person summoned to establish his possession or occupation that it is possessed or occupied upon a valid permit or other written authority of the State granted according to any written law. If this burden is not discharged, the only option open to the Magistrate is to order ejectment.

7. [1993] 1 SLR 219
NIRMAL PAPER CONVERTERS (PVT) LTD. v. SRI LANKA PORTSAUTHORITY AND ANOTHER.
        Court of Appeal
  Wijeratne,J.

Certiorari – Landlord and tenant – Recovery of possession of State Land – State Lands (Recovery of Possession) Act No. 9 of 1979 – Stay Order – Court of Appeal (Appellate Procedure) Rules 1990.

A stay order issued ex parte must be limited for a period not exceeding two weeks to enable notice of the application to be given and the opposite party heard in opposition thereto on a date to be then fixed (Rule 2 (1) of the Court of Appeal (Appellate Procedure) Rules 1990).

Where the petitioner is not a lawful tenant but only a licensee making payments for use and occupation, the owning authority is entitled to avail itself of then provisions of the State Lands (Recovery of Possession) Act. The only ground on which the petitioner is entitled to remain on the land is upon a valid permit or other written authority of the State as laid down in section 9(1) of the State Lands (Recovery of Possession) Act and the petitioner did not have the semblance of such a permit or authority.

A stay order should not be given unless a very strong case is made out; otherwise injustice will be caused to the other side. When a stay order is given, every effort is taken unreasonably to prolong proceedings.

8. [1996] 2 SLR 124
MOHAMED v. LAND REFORM COMMISSION AND ANOTHER
Court of Appeal
Jayasuriya,J.

Land Reform Commission – Possession handed over – Ejectment – Roman Dutch Law-Monthly Leases- location conduction-Tacit Relocation (Tacit Renewal) – State Lands (Recovery of Possession) Act No.7 of 1979, S.5-Ultras Vires – Wednesbury’s Rule.
The Petitioner is in possession of the land in question, after having entered in to a lawful transaction with on N.R.R the previous owner and then father of R.R. At the request of the LRC, the Petitioner formally handed over possession of the land to the LRC, and LRC on that day itself handed back possession to the Petitioner on the basis of a lease. That lease t4ransaction has been acquiesced in and adopted by the LRC, as it has accepted and received rent from the Petitioner. On 23.9.87 the Legal Director LRC(P22) has written to the Petitioner stating that the Petitioner had agreed to accept the return of a sum of Rs.100,000/- which had earlier been paid by the Petitioner to the said N.R.R who is the father of R.R. and that on payment of the said sum he had agreed to handover possession of the said land to the LRC. As the Petitioner did not vacate the said land, steps were taken under the provisions of the State lands (Recovery of Possession) Act to recover possession of the land.

Held :

(1) The document (P22) is not operative and 4effective in law to terminate the monthly contract of lease existing between the Petitioner and the LRC.

(2) In Roman Dutch law, there is nothing called a “Temporary lease”.
There could be monthly lease or leases for a greater period of time over agricultural lands. The lease, which is a contract would generally create Rights in personam and would only have the effect of creating rights in Rem and an interest in land if the lease is executed for a period over one month even an oral contract of location – conduction, if proved would be sufficient to constitute a monthly lease in respect of agricultural land. Thereafter on the application of the doctrine of Tacit Relocation (Tacit – Renewal), the contract of monthly lease over agricultural land would be extended from month to month until it is terminated by a legal and proper notice.

(2) The LRC has issued receipts and accepted payment of lease rent in respect of this land. In these circumstances the affidavit filed by the Chairman, LRC is false and fraudulent.
Per Jayasuriya, J.

“A Court of law is the only bastion and forum to which a humble and innocent litigant could resort to obtain redress against tyrannical officialdom of this nature which is actuated by improper motives generated by persons having at their disposal political influence”.

(3) The Petitioner was in lawful and authorised occupation and possession of the said land as a monthly lessee of the said land under the LRC and in the circumstances the notice(X) issued by the 2nd Respondent is Ultra Vires, the powers of the said 2nd Respondent vested in him by the provisions of Act No.7 of 1979, further this notice (X) has also been issued without jurisdiction, mala-fide – for an indirect and collateral purpose.

The said Notice issued by the 2nd Respondent in terms of S.3 of Act No.7 of 1979 as amended, is grossly unreasonable and therefore liable to be set aside.

9. [1997] 3 SLR 417
ALWIS v. WEDAMULLA, ADDITIONAL DIRECTOR GENERAL U.D.A
Court of Appeal
Jayasuriya, J .

Urban Development Authority – Body Corporate – Competent Authority – Is the Additional Director-General the ‘Competent Authority’ to institute proceedings on behalf of the Authority – locus standi – Is the approval by the Minister for Housing a condition precedent to the institution of proceedings for ejectment – State Lands (Recovery of Possession) Act.

Held:

(1)  Having regard to the definition of the term “Competent Authority” in the UDA Act, it is manifest that the Additional Director-General of UDA is not a Competent Authority.

There is no averment in the affidavit/documents that the powers of the Director-General have been delegated.

(2) Proceedings in ejectment could be instituted by the UDA against a person who is in occupation of land vested in the UDA provided such application to eject are authorised and have had the written approval of the Minister of Housing. The proof of grant of such approval is a condition precedent to the institution pf proceedings in ejectment.


10. [1999] 3 SLR 26
WEDAMULLA v. ABEYSINGHE
Supreme Court
Amerasinghe,J. Gunawardana,J. and Gunasekera,J

State Lands (Recovery of Possession) Act. No.7 of 1979 – Amendment No. 29 of 1983 – Quit Notice – SS.3, 4, 5, 5(2) (a) Amendment No. 58 of 1981 s.5(4) – Urban Development Authority – Competent Authority – Right or status to file proceedings – Approval of Minister condition precedent – Omnia preasumuntur rite et solemniter esse acta.

Held:

1. Competent Authority includes an officer generally or specially authorised by a Corporate body.

2. The appellant was by name and designation appointed the ‘Competent Authority’ by the Board of then UDA in whom the land was vested.

3. He had every right to make an application for the possession of the land and for ejectment of the respondent. The proceedings under the State Land (Recovery of Possession) Act are required to be initiated by a Competent Authority.

4.  It must be assumed that the necessary steps were taken including    the obtaining of the Minister’s approval – in fact, it had been obtained prior to proceedings for ejectment.



11. [2000] 3 SLR 207
GUNASINGHE BANDA v. NAVINNA AND OTHERS.
Court of Appeal
Jayawickrama, J.

Provincial Councils Elections Act No.2 of 1988 S.82, S.92, S.98, S.101, S.105, S.107 – Parliamentary Elections Act 10 of 1978 – S.98 – Presidential Elections Act 15 of 1981 – S.96 – Election Petition – Corrupt practice – Affidavit – Hearsay – Bad in Law cannot be acted upon – What is an affidavit – Oaths and Affirmation Ordinance No.9 of 1895 – amended by S.22 of 1915, 13 of 1954, 23 of 1953 – Civil Procedure Code S.181,182, 437 & 440- State Lands Recovery of Possession Act of 1979 – S.5(2)

The Petitioner had alleged two grounds of corrupt practice based on two different interviews, said to have been given to the “Lakbima” newspaper by the 1st and 2nd Respondents. No affidavit from either of the journalist had been tendered.

The Respondent raised a preliminary objection that, in respect of the grounds of corrupt practice pleaded as charges 1 and 2 the Petitioner failed to support same by any acceptable prima facie material and as such it is not competent for the Petitioner to maintain/prosecute the Petitioner. It was contended that the affidavit annexed in support of the allegation of corrupt practice which is the foundation of the Petition contains hearsay and as such is not an affidavit as contemplated by Law.

The Petitioner contended that the Petition is not required to contain the evidence, conversely that it could contain hearsay evidence, the affidavit in support of the allegations in the Petition will not necessarily be required to contain evidence and could contain hearsay evidence as well, and that in setting out an allegation of corrupt practice the Petitioner is not bound by rules of evidence and could include in and as part of the allegation of corrupt practice, statements which are hearsay in the Petition.

Held:

(i)   Wording in S.98(d) of the Provincial Councils Election Act 2 of 1988 regarding the filing of an affidavit in supportive of the allegation of such corrupt or illegal practice is different from S.80(B)d of the Ceylon Parliamentary Elections Order in Council. In S.80(B)(d) an affidavit in the prescribed form has to be filed in S.98(d) of the Parliamentary Elections Act 10 of 1978 and Provincial Councils, Elections Act 2 of 1988 the  words ‘in the prescribed form’ are not included. In the subsequent amendment to these Acts, those words have been deleted. Although S.80B (d) refers to a prescribed form, no form has been prescribed by law.

Whatever the form may be, an affidavit must conform to the provisions of the Oaths and Affirmation Ordinance No.9 of 1895 as amended by Act 22 of 1915, and Act 13 of 1954 and Act 23 of 1953 and Sections 181, 182,437 of the Civil Procedure Code.

It is very clear that an affidavit could contain only such facts as a declarant is able of his own knowledge and observation to testify to. Therefore hearsay could not be included as contents of an affidavit.

A Petition stating facts of observation and belief is not converted into an affidavit by the addition of a verifying clause, an affirmation or oath to the effect that the statements in the Petition are true.
Per Jayawickrema, J.

“If one is to base legal action on news items appearing in newspapers no one will be safe in this country. Present day media are hell bent only as exposure rather than keeping the nation informed of the news. The truth or otherwise of news items depends on the integrity, impartiality, consistency and credibility of a journalist. The present day print and electronic media make very serious allegations or statements boarding on defamation against persons in every strata of society including religious leaders and judges just to demean such persons standing in the society”

It would be a very dangerous precedent to allow a person to file an affidavit entirely depending on publications in the media, without being able of his own knowledge and observation to testify to the truth or otherwise of the facts stated therein.
Petition cannot be supported by an affidavit which is based on hearsay even if the names of persons to whom the alleged statements have been made are named as witnesses. Even if the journalists vouch for the fact that the Respondents did make such statements the Petitioners cannot base affidavits on that basis, for the simple fact that the facts are not of their own knowledge and observations.

12. [2001] 2 SLR 73
DAYANANDA v. THALWATTE
COURT OF APPEAL.
JAYASINGHE, J.
JAYAWICKREMA, J.

Primary Court Procedure Act - S. 66 - Petitioner declared entitled to possession - Steps under State Lands Recovery of Possession Act, 7 of 1979 - Prerogative writs - Failure to sped - Declaration that Magistrate had no jurisdiction - Can an 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 Act alleging that, the Superintendent of the Estate attempted to interfere with the possession of the petitioner. The Primary Court made order that he was entitled to possession of the said land. Thereafter the Superintendent of the Estate instituted proceedings in the Magistrates Court in terms of Act 7 of 1979.
The Petitioner sought a declaration that the Magistrate's Court had no jurisdiction to hear and determine the matter and sought by way of certiorari and quo warranto to quash the decision of the 1st Respondent to evict the Petitioner and also to declare null and void the steps taken by the 1st Respondent. The application made to the High Court by the Petitioner was withdrawn, and an Application was made to the Court of Appeal to quash the decision by the 1st Respondent to institute proceedings in terms of Act 7 of 1979 and to declare that the quit Notice is of no avail or force, and for an order 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 and Prohibition under Article 140 cannot be combined as they are two distinct remedies.
(ii) Even though the Petitioner has set out in the caption that 'In the matter of an Application....... for Writs of Quo warranto and Prohibition' there is no supporting averment specifying the writ and there is no prayer as regards the writ 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 affecting legal 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 made by the 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.
13. [2001] 3 SLR 34
EDWIN v. TILLAKARATNE
Court of Appeal
Gunawardena, J.

Land Acquisition Act – 9 of 1950 S7, S.42 person interested – Acquisition of land – State Lands (Recovery of Possession) Act No. 7 of 1979, S.5 quit Notice – Validity of same – due process of law.

Held :

(i) When the statutory scheme embodied in the Land Acquisition Act itself provides a procedure for ejectment or remedy it must in the generality of cases, be taken to exclude any other procedure or remedy.

(ii) Application that had been made to the Magistrate Court in pursuance of S.5 of the State Lands Recovery of Possession Act cannot be proceeded with.

14. [2003] 1 SLR 34
BANDA v. PRESIDENT, M.P.C.S.LTD., MEDIRIGIRIYA AND ANOTHER
Court of Appeal
Fernando,J. and Ameratunga, J.

State Lands (Recovery of Possession) Act, No. 7 of 1979 as amended by Act, No.50 of 1987, section 18(1) (gg) – Land belonging to State given to the Co-operative Society – Transfer of Powers (Divisional Secretaries) Act, No.52 of 1982, Section 4 – Co-operative Society authorized by Divisional Secretary to exercise all powers under Act, No.7 of 1979 – Delegation – Validity – Who is a public officer? – Constitution, Article 170.

The land is a State land given to the Medirigiriya Co-operative Society for its use. The appellant is an unauthorised occupant of the land. On the application by the President of the Society who was authorized by the Divisional Secretary, the Magistrate’s Court issued an order of eviction of the appellant from the relevant land. The High Court dismissed the application to revise the said order.

Held :

(i) The land is owned by the State given to the MPCS for its use.
(ii) The Competent Authority whom powered to issue quit notice and to make an application to the Magistrate’s Court is the Government Agent or any other public officer authorized by the Government Agent.

(iii) In terms of Transfer of Powers Act, the term Government Agent would be read as Divisional Secretary.

(iv) The Divisional Secretary can only delegate his powers under the Act to any other “Public Officer”.

(v) A Chairman of a MPCS is not a person who holds a paid office under the Republic; he is not a public officer, accordingly the Divisional Secretary has no power to delegate his powers under the Act to such a person.

(vi) The President of the MPCS had no authority or power to make an Application under the State lands (Recovery of Possession) Act to the Magistrate’s Court to obtain an order to evict the appellant.

15. [2003] 2 SLR 114
JAYATILAKA v. SIGERA AND OTHERS
Court Of Appeal
Dissanayaka, J.
Somawansa, J.

State land - Declaration of rightful heir to land - No permit granted - Action dismissed - Issues not answered - Court deciding best course of action.

The plaintiff-appellant instituted action seeking a declaration that she is the rightful heir to the land (State) and ejectment of the 1st defendant-respondent. Preliminary Issues were raised regarding jurisdiction.

The trial judge did not refer to the preliminary issues nor did he answer any issue, on the basis that the proper course of action to obtain a declaratory decree was by way of a writ from a superior court. The action was dismissed.

Held:

The finding is erroneous; the trial judge court not have rejected the action.

Per Somawansa, J.,
"I am unaware of the existence of any provision in law which would enable the learned District Judge to reject an action in view of a better cause of action one would take in order to obtain the relief one is seeking and it is the duty cast by law on the learned District Judge to decide whether he could grant such relief sought."

Per Somawansa, J.,
There is no provision of law which requires him to decide what is the best course of action the plaintiff-appellant should take and advise him on such matters.

APPEAL from the judgment of the District Court of Anuradhapura.

16. [2006] 3 SLR 62
URBAN DEVELOPMENT AUTHORITY v. WEJAYALUXMI
COURT OF APPEAL
SOMAWANSA. J,
WIMALACHANDRA. J.

State Lands (Recovery of Possession) Act, No.07 of 1979 as amended by ,act, No.58 of 1981 and Act No. 29 of 1983 - Sections 9, 9(1) - Ejectment Recovery of Possession - Resistance- Valid permit or written authority- name in a list – Urban Development Authority - Locus standi- Competent Authority - Revision - Exceptional circumstances? – Gross miscarriage of justice - Laches?

Per Wimalachandra, J.

The Additional Director General of the Urban Development Authority, as the competent authority of the petitioner UDA under the State lands (Recovery of Possession) Act filed a certificate for the ejectment respondent and for the recovery of possession of the land.

The learned Magistrate ordered the eviction of the respondent. In the revision application filed in the High Court the learned High Court judge revised the order of the magistrate’s court on the basis that the respondent’s name appears in the list of persons (p1) who were recipients of land on a particular scheme. The UDA sought to revise the said order

(1) The document P1 is a list of persons scheduled for allotment of land; it is clear from the document that the persons schedule for allotment of land has not been finalized. 
P1 is not a valid permit within the meaning of section 9(1) of the State     Lands (Recovery of Possession) Act. The burden is on the respondent to establish that she is in possession upon a valid permit or the written authority of the State.

(2)The Urban Development Authority is a legal person which can institute proceedings in its own name. The UDA Act provides for the competent authority to institute proceedings in its own name. The UDA Act provides for the competent authority to institute proceedings on behalf of the UDA. The Board of Management of the UDA had at a meeting authorized its Additional Director General to act as the competent authority in terms of section 8(1) (h) to carry out duties under the State Lands (Recovery of Possession) Act.

Per Wimalachandra J

"A competent authority appointed by the UDA has every right to initiate proceedings for ejectment; however as regards this application the UDA being a corporate body in which the land was vested has every right to make this application to Court".
 
(3) There exists a clear miscarriage of justice as the High Court had held that P1 is a valid permit when it was only a list of persons selected for allotment of lands and one of the persons selected was the respondent - this can only be corrected by invoking the Revisionary jurisdiction.

(4)When there is a satisfactory explanation with regard to the delay and the period of delay is not excessive and if it appears that the impugned order is manifestly erroneous application should not be dismissed simply on the grounds of delay.


17. [2006] 3 SLR 348
CHANDRA BOSE V. DE ALWIS AND OTHERS
COURT-OF APPEAL,
  TILAKAWARDENE, J.
  ABEYRATNE. J.
State Lands (Recovery of Possession) Act, No. 7 of 1979 amended, Acts 58  of 1981, 29 of 1983, 45 of 1992- Quit notice – validity? Land not state land? - Land vested in a private entity and not the state Government Quarters (Recovery of Possession) Act-Compared.
The petitioner sought to quash the quit notice sent by the 1St respondent competent authority the petitioner is a workman employed at a Tea estate .the quit notice was challenged on the basis that a) Corpus is not state land and, b) the 1St respondent has no authority on law to issue quit notice as land is leased to the Horana plantation Ltd 3Rd respondent which is a private entity and the competent authority had no legal right to issue notice

Held
(1) The claim of the petitioner is not based on any legal document, neither has he claimed that he has a valid lease of that or that it had been in any way alienated to him by way of a legal transfer, but he was simply in occupation as a trespasser.
(2) Though this was a lease agreement between JEDB and the 3rd respondent, and that the lessee - 3rd respondents had agreed to take on lease T Estate, there is no legal basis upon which the petitioner can claim any right to occupy the said land, except that he was a trespasser upon the land.
(2) The criteria that determine the Recovery of Possession in terms of this Act would be whether the land is a state land or not. The parties had agreed that the land is state land.
(2) Provisions of the Government Quarters (Recovery of Possession) Act cannot be availed of in respect of the quarters occupied by the petitioner which is upon state land. The definition of Government Quarters contained in the Act is quite different to the definition of State Lands as contained in the State Lands (Recovery of Possession) Act.

18.     [2007] 1 SLR 299
JAYATILAKE V. RATNAYAKE
     Court of Appeal.
Ranjit Silva, J.
Sisira De Abrew, J.

State Land Recovery of Possession Act 7 of 1979 – amended by Act 58 of 1981, 29 of 1983 and 45 of 1992 – section 3 – order of Magistrate’s Court canvassed by way of Revision. Should exceptional circumstances be urged?
HELD:
(1) There is no right of appeal against the order of the Magistrates Court when an order is made under the provisions of the State Lands Recovery of Possession Act.
The party aggrieved could only move the High Court in Revision.

(2) In a revision application when there is no alternative remedy available, the appellants need not show exceptional circumstances – but has to show illegality or some procedural impropriety in the impugned order.

(3) Breach of a procedural or formal rule should be treated as a mere irregularity if the departure from the terms of the Act is of trivial nature.

An application from an order of the Provincial High Court of Kandy.

19.     [2007] 1 SLR 316
ARAVINDAKUMAR V. ALWIS AND OTHERS
Court of Appeal
Sripavan, J.
Sisira De Abrew, J.

Writ of certiorari – State Lands (Recovery of Possession) Act 7 of 1979 – Section 3, section 9 – Failure to follow guidelines laid down in Circular – Is there a legal duty to follow the guidelines? – Valid permit or written authority under Section 9?

HELD:

(1) The Circular which is claimed to have been issued by the 1st respondent Competent Authority has not been signed.

(2) The Circular does not prescribe any duty having statutory potential.

(3) The Circular has not been issued in accordance with any of the provisions of the State Lands (Recovery of Possession) Act; as such there is no legal duty on the part of the 1st respondent to follow guidelines laid down in the Circular before issuing the quit notice.

HELD FURTHER:

(4) Any person served with a quit notice under Section 3 can continue to be in possession/occupation of the land only upon a valid permit or other written authority of the State described in section 9.
APPLICATION for a Writ of Certiorari.


20.     [2007] 2 SLR 394
                 GOONATHILAKA AND OTHERS V. THOLLAPPAN
                  SUPREME COURT.
SARATH N. SILVA, CJ.
FERNANDO, J.
AMARATUNGA, J.
State Land (Recovery of Possession) Act No. 7 of 1979 as amended by Act No. 58 of 1981, Section 18, - What is State land in terms of Section 18? - Land is taken to include buildings? - Evidence Ordinance - Section 114.- Conversion of Public Corporations or Government Owned Business Undertakings into Public Companies Act No. 23 of 1987.

Held:

The purpose of the State Lands (Recovery of Possession) Act as amended is to recover possession of the state lands from persons in unauthorized possession or occupation of such land. Section 18 makes it abundantly clear that land is taken to include buildings standing thereon. The specific reference in the definition that land includes any building standing thereon has been ignored in the judgment of the Court of Appeal. The fact that there is a building on the land and that a person is in occupation of that building cannot remove such land from the operation of the Act.

In terms of section 114 of the Evidence Ordinance a Court may presume inter alia "that judicial and official acts have been regularly performed". In this case the respondent has produced the letter by which he is appointed as the Competent Authority in respect of the Sri Lanka State Plantations Corporation. As the petitioner has not disputed that averment, no further proof is required in regard to the authority of the appellant to perform his official functions under the Act.

APPEAL from the Judgment of the Court of Appeal.