Breach of the peace when jurisdiction is invoked under 66(1) by a private party
DOUGLAS ARIYASINGHE VS T.M.
EKANAYAKE AND OTHERS
In Wimalasekara and another vs. Ubayasena [C.A. (PHC) 161/98; C.A.M. 21.06.2010] held that the failure on the part of the learned Magistrate to specifically state that he is satisfied that a breach of the peace was likely does not deprive him of the jurisdiction under section 66(1)(b) of the Act. The mere fact that he decided to issue notice results in the application of the presumption in section 114(d) of the Evidence Ordinance which is to the effect that the court may presume that judicial acts have been regularly performed.
The mere fact that the question of the breach of peace was addressed when notice was issued. The fact that he made a final order directing the Appellants not to disturb the possession of the Respondents indicates that he sees no reason to change his earlier opinion and here again the presumption in section 114(d) of the Evidence Ordinance is engaged.
HON. JANAK DE SILVA, J.
Case
No: CA(PHC) 101/2013
Petitioners-Respondents-Respondents
2
Argued
on : 12.06.2018
Decided
on : 04.04.2019
Janak
De Silva J.
This
is an appeal against the order of the learned High Court Judge of the North
Central Province holden in Polonnaruwa dated 09.05.2013.
The
Petitioners-Respondents-Respondents (Respondents) instituted proceedings in
terms of section 66(1)(b) of the Primary Courts Procedure Act (Act) against the
1st Respondent-Petitioner Appellant (1st Appellant). The learned Magistrate
held that the Respondents were entitled to the possession of the land in
dispute and directed the pt Appellant to refrain from disturbing the possession
of the Respondent.
The Respondents moved by way of revision to the Provincial High Court which dismissed the application and hence this appeal.
The
learned counsel for the Appellants submitted that the appeal should be allowed
on the following: grounds:
(1)
The learned Magistrate erred in exercising the duty vested on the Primary Court
to cautiously consider whether there is a breach of peace as alleged under and
in terms of section 66(1)(b) of the Act when the action was instituted by
private plaint
(2)
The learned Magistrate and the High Court Judge erred in deciding that there is dispossession where the Respondents has not made out any dispossession but
only had stated about a disturbance to his possession
(3)
The Magistrate has erred in deciding that the Magistrate Court has jurisdiction
to hear the matter where the same matter had been referred to Agrarian Services
Department and the matter is still pending before the Agrarian Services
Department
Breach of Peace
The
learned counsel for the Appellants submitted that since the instant proceedings
were instituted under section 66(1)(b) of the Act, the learned Magistrate
should have cautiously considered whether there is a breach of peace and
submitted that the facts do not establish a breach of peace.
An
objection on this basis must be taken at the earliest opportunity. An objection
to jurisdiction such as that in the present case must by virtue of section 19
of the Judicature Act No. 2 of 1978, be taken as early as possible and the
failure to take such objection when the matter was being inquired into must be
treated as a waiver on the part of the petitioner. Where a matter is within the plenary jurisdiction of the Court, if no objection is taken, the Court will
then have jurisdiction to proceed and make a valid order. [Navaratnasingham vs.
Arumugam and another [(1980) 2 Sri. L.R. 1].
The
learned counsel for the Respondents submitted that this is not an objection raised
before the learned Magistrate and as such it cannot be raised now. The record
indicates that this was a matter raised before both the Magistrate's Court
and High Court and as such I hold that it is open to the Appellants to urge
this issue before this Court. I am also of the view that if the Respondents are
successful on this issue it is a ground on which the learned High Court Judge
could have exercised revisionary jurisdiction as it goes to the legality of the
impugned order of the learned Magistrate.
The
learned counsel for the Appellant relied on Velupillai and others vs.
Sivanathan [(1993) 1 Sri.LR. 123] where Ismail J. explained the difference
between proceedings instituted under section 66(1)(a) and (b) of the Act as follows:
"Under
section 66 (1)(a) of the Primary Courts Procedure Act, the formation of the
opinion as to whether a breach of the peace is threatened or likely is left to
the police officer inquiring into the dispute. The police officer is empowered
to file the information if there is a dispute affecting land and a breach of
the peace is threatened or likely. The Magistrate is not put on inquiry as to
whether a breach of the peace is threatened or likely. In terms of section 66
(2) the Court is vested with jurisdiction to inquire into and make a
determination on the dispute regarding which information is filed either under
section 66 (1)(a) or 66 (1)(b).
However
when an information is filed under section 66 (1)(b) the only material that the
Magistrate would have before him is the affidavit information of an interested
person and in such a situation without the benefit of further assistance
from a police report, the Magistrate should proceed cautiously and ascertain
for himself whether there is a dispute affecting land and whether a breach of the
peace is threatened or likely." (emphasis added)
The
importance of the learned Magistrate satisfying himself of whether a breach of
the peace is threatened or likely was reiterated by Ismail J. in Punchi Nona vs.
Padumasena and others [(1994) 2 Sri.LR. 117] as follows:
"In
an information by a private party under section 66(1) (b) it is incumbent upon
the Primary Court Judge to initially satisfy himself as to whether there was a
threat or likelihood of a breach of the peace and whether he was justified in
assuming such a special jurisdiction under the circumstances. Failure to so
satisfy himself deprives the judge of jurisdiction."
I
am in respectful agreement with the legal position adumbrated above. There is also
the question whether it is incumbent on the learned Magistrate to specifically
record that he is satisfied that a breach of the peace is threatened or likely.
In
Navaratnasingham vs. Arumugam (supra) an objection was taken that it was
necessary for a Magistrate to make an order in writing stating his grounds for
being satisfied that a breach of the peace was likely.
The
court rejected this contention and held as follows:
"
... all that is necessary is that the Magistrate himself must be satisfied on
the material on record that there is a present fear that there will be a breach
of the peace stemming from the dispute unless proceedings are taken under the
section." (emphasis added)
This
court in Wimalasekara and another vs. Ubayasena [C.A. (PHC) 161/98; C.A.M. 21.06.2010]
held that the failure on the part of the learned Magistrate to specifically
state that he is satisfied that a breach of peace was likely does not deprive
him of the jurisdiction under section 66(1)(b) of the Act. The mere fact that
he decided to issue notice results in the application of the presumption in
section 114(d) of the Evidence Ordinance which is to the effect that court may
presume that judicial acts have been regularly performed.
The
question is whether the above principles have been fulfilled in the instant
case.
The
learned Magistrate has in issuing notice on 13.12.2011 held that he is
satisfied that a breach of the peace is threatened or likely. Hence the
threshold question on jurisdiction has been addressed by the learned Magistrate.
The learned counsel for the Appellants submits that this was an objection that
was raised by them in the affidavits and therefore the learned Magistrate should have dealt with this objection in the final order which he has failed to
do. The learned counsel for the Respondents countered that what is required in
terms of section 66(1)(b) of the Act is to establish breach of peace at the
time of issuing of notices and not thereafter.
I
am unable to accept that as the correct position in law. Notice is issued based
only on the affidavit of the party instituting proceedings. The issuing of
notice after being satisfied that the breach of the peace is threatened or
likely based on the affidavit of a party in proceedings instituted under
section 66(1)(b) of the Act does not preclude the learned Magistrate from
inquiring into the matter of the threat to the breach of the peace. The
learned Magistrate can consider all the relevant material after all parties
file affidavits and counter affidavits before coming to a final conclusion on
this issue [Jayasinghe vs. Paranawithana CA(PHC)184/2005; C.A.M. 16.05.2017].
However,
the mere fact that he has not addressed the objection in his final order does
not mean that the Magistrates Court is devoid of jurisdiction. The question of
the breach of peace was addressed when notice was issued. The fact that he made
a final order directing the Appellants not to disturb the possession of the
Respondents indicates that he sees no reason to change his earlier opinion and
here again the presumption in section 114(d) of the Evidence Ordinance is
engaged.
Accordingly,
I reject the first ground of appeal urged by the Appellant. In any event, the
learned High Court Judge has correctly concluded that there was ample evidence
before the Magistrate to come to the conclusion that there was a breach of the
peace between parties.
Dispossession
The
learned counsel for the Appellant submits that the Respondents did not at any
point of time claim to have been dispossessed and as such the finding of the
learned Magistrate that the Respondents have been dispossessed within a period
of two months prior to the institution of proceedings is erroneous. However,
the learned Magistrate has concluded that the Respondents are entitled to
the possession of the land in dispute. Accordingly, he was entitled to make
order directing the Appellants not to disturb the possession of the
Respondents. Therefore, I reject the second ground of appeal.
Agrarian Services Department
The
learned counsel for the Appellants finally submitted that since there is a
matter pending before the Agrarian Services Department, the learned Magistrate
did not have jurisdiction to deal with the instant matter. He relied on the
decision in Mansoor and another vs. O.I.C. Avissawella Police and another
[(1991) 2 Sri.LR. 75] where it was held that when a statute creates a
right and, in plain language, gives a specific remedy or appoints a
specific tribunal for its enforcement, a party seeking to enforce the right
must resort to that tribunal and not to others.
However,
the issue in Mansoor and another vs. O.I.C. Avissawella Police and another
(supra) was the eviction of a tenant cultivator from a paddy land. The issue in
the instant case is not one dealing with the rights of a tenant cultivator. It
is about the disturbance of possession of a paddy land. Hence the ratio in
Mansoor and another vs. O.I.C. Avissawella Police and another (supra) has no
application. In Atigala and another vs. Piyasena [CA(PHC) 133/2007; C.A.M.
10.06.2016] this Court held that a dispute pertaining to the possession of a
paddy land can proceed under Part VII of the Act. Hence, I reject the third
ground of appeal.
For
the foregoing reasons, I see no reason to interfere with the order of the
learned High Court Judge of the North Central Province holden in Polonnaruwa
dated 09.05.2013.
The
appeal is dismissed with costs.
Judge
of the Court of Appeal
Judge
of the Court of Appeal
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