Janak De Silva J. section 66
S.GUNASIRI DE SILVA VS. THENUWARA BADALGE
2nd
Respondent-Petitioner-Appellant
Vs
Respondents
- Respondents - Respondents
Before: K.K. Wickremasinghe J.
Janak
De Silva J.
Written
Submissions tendered on: 2nd Respondent-Petitioner-Appellant
on 2nd April 2018
Argued
on: 2nd February 2018
Decided
on: 14th May 2018
Janak
De Silva J.
This
is an appeal preferred by the 2nd Respondent-Petitioner-Appellant (Appellant)
against the order of the learned High Court Judge of Galle dated 16th
October 2012 by which he refused to issue notice in a revision application
filed to set aside the judgment of the learned Additional Magistrate of Galle
dated 21st September 2012 wherein it was held that the 1st Respondent Respondent-Respondent
(Respondent) had a right of way over the land owned by the Appellant. The
learned Additional Magistrate of Galle further ordered the removal of the fence
that had been put up obstructing this right of way.
The
learned High Court Judge of Galle refused to issue notice on the basis that no
exceptional circumstances have been established for the exercise of revisionary
jurisdiction.
The
learned Counsel for the Appellant submitted that the learned High Court Judge
of Galle has arbitrarily and without assigning reasons refused notice. It is
trite law that exceptional circumstances must exist for revisionary
jurisdiction to be exercised. It is observed that the proceedings of 16.10.2012
[Appeal Brief page 44] only indicates that notice is refused. No reasons are
given therein. However, the journal entry of 16.10.2012 contains a hand-written
statement signed by the learned High Court Judge stating that notice is
refused as there are no exceptional circumstances. Hence, there is no merit in
the submission of the learned counsel for the Appellant that the learned High
Court Judge has failed to assign reasons for refusing notice.
However,
it must be emphasized that reasons for refusing notice must be contained in the
order refusing notice rather than in a journal entry. But even if the learned
High Court Judge of Galle was in error in setting out the reasons for refusing
notice in a journal entry, the proviso to Article 138(1) of the Constitution
states that no judgment, decree or order of any court shall be reversed or
varied on account of any error, defect or irregularity, which has not
prejudiced the substantial rights of the parties or occasioned a failure of
justice. Therefore, if it is evident on a close examination of the totality of
the evidence that the learned High Court Judge was correct in refusing notice,
there is no prejudice to the substantial rights of the parties or occasioned a
failure of justice and the order of the learned High Court Judge
should not be disturbed. I will now consider whether the totality of evidence
supports the order made by the learned High Court Judge.
This
matter arises out of an information filed by the Officer-in-Charge of the
Ratgama Police under section 66(1)(a) of the Primary Courts Procedure Act (Act).
Information was filed on 16.03.2012. The parties were permitted to file
affidavits, counter affidavits and documents. The Respondent claimed that she
had a right of way over the land of the Appellant to go to her house and that
it had been blocked by the Appellant. The Appellant did admit the existence of
a roadway over his land which was used by the Respondent as well as a few other
families. He contended that as the said roadway was narrow and at the request
of the Ratgama Pradeshiya Sabha and villagers he allowed part of his land to be
used to construct a 12-foot roadway close to the existing road so that the said
12-foot roadway could be used instead of the existing narrow road. He
further claimed that the Respondent has the ability to use the new road to go to
her house and that the existing roadway was closed by the villagers and not
him.
The
learned Counsel for the Appellant submitted that the learned Additional Magistrate
of Galle has failed to act in terms of section 66(7) of the Act which is a
fatal irregularity. He relied on the decision in Ali v. Abdeen 2 where
U.de Z. Gunawardena J. held that the Primary Court Judge was under a peremptory
duty to encourage or make every effort to facilitate a settlement of the
dispute before assuming jurisdiction to hold an inquiry into the matter of possession
and impose on the parties a settlement by means of Court order. The short
answer to this objection is that the journal entry of 15.06.2012 shows that
learned Additional Magistrate of Galle had fixed the case for 29.06.2012 to
consider a settlement on which day it was informed that there was no
settlement.
The
dispute in the instant case is a right of way. Where the dispute relates to any
right to any land such as a right of way or right to cultivate the Primary
Court judge should make his order under section 69 of the Act. 3 The
learned Additional Magistrate of Galle after a careful evaluation of the
evidence correctly concludes that the dispute must be resolved by applying the
provisions in section 69 of the Act. The learned Additional Magistrate of Galle
has concluded that there exists a 10-foot roadway over the land owned by the
Appellant which the Respondent used for a long period to go to her house.
I see no reason to disturb this finding of the learned Additional Magistrate of
Galle.
The
learned counsel for the Appellant submitted that the learned Additional
Magistrate had failed to consider that the road had deviated and that the new
road is more convenient.
The question
of whether a right of way can be replaced by another roadway created by the
owner of the servient tenement without the consent of the owner of the dominant
tenement did at one time have a difference of judicial opinion.
_______________________
In
Marasinghe v. Samarasinghe 4 it was held by Alles and De Krester J.
(Fernando C.J., dissenting), that when a servitude of a right of way has been acquired
by prescription, the owner of the servient tenement is entitled to offer a
deviation of the route or track along which the right was acquired, provided
that the proposed alternative route is equally convenient and serviceable
to the owner of the dominant tenement. Madanayake v. Thimotheus 5,
Fernando v. Fernando6, and Hendrick v. Samelis 7 was overruled.
However,
as the learned Additional Magistrate correctly points out this is not a
question that the Primary Court need to determine in terms of section 69 of the
Act. Section 69(2) of the Act enables the Primary Court judge to make order
declaring that any person specified therein shall be entitled to any such right
in or respecting the land or in any part of the land as may be specified
in the order until such person is deprived of such right by virtue of an order
or decree of a competent court and prohibit all disturbance or interference
with the exercise of such right by such party other than under the authority of
an order or decree as aforesaid. In Ramalingam v. Thangarajah 8
Sharvananda J. (as he was then) stated as follows:
"On
the other hand, if the dispute is in regard to any right to any land other than
right of possession of such land, the question for decision, according to
section 69(1), is who is entitled to the right which is subject of dispute. The
word "entitle" here connotes the ownership of the right. The Court
has to determine which of the parties has acquired that right or is entitled
for the time being to exercise that right. In contradistinction to section 68,
section 69 requires the Court to determine the question which party is entitled
to the disputed right preliminary to making an order under section
69(2)."9 (emphasis added)
_______________
The
purpose of this jurisdiction is to prevent a breach of peace by restoring the
person entitled to the right to the enjoyment thereof until the dispute is
determined by a competent court. In the instant case, the dispute arose when
the right of way used by the Respondent was blocked. That has been addressed by
the order made by the Primary Court. The contention of the Appellant that the
right of the Respondent can be replaced by a deviated route is a matter for
a competent court.
The
learned Additional Magistrate also made order for the removal of the fence that
had been put up obstructing this right of way. In Jamis v. Kannangara 10
Palakidnar J. held that the order that can be made under section 69(2) of the
Act in regard to a right to any land other than the right to possession is a
declaration of entitlement of such right after determination by the court
subject to a final determination by a competent court and prohibition of all
disturbance or interference with the exercise of such right by such a party. It
was further held that the order is of a prohibitory nature preventing an
interference with the exercise of such a right and that this cannot include a
positive order of removal of a structure. However, in Tudor v. Anulawathie and
others Gunawardena J. held that the ultimate object of s. 68 and s. 69 being to
restore the person entitled to the right to the possession of land to the possession
thereof or to restore the person entitled to the right (other than the right to
possession of land) to the enjoyment thereof and that the said provision of the
law must be rationally construed to authorize by necessary implication if in
fact they had not in terms done so, the removal of all obstructions if the need
arise, in the process of restoring the right to the person held to be entitled
to such right. The reasoning in Tudor v. Anulawathie and others 12 is
compelling which I shall adopt.
In view
of the above circumstances, the learned High Court Judge of Galle correctly
held that there are no exceptional circumstances which warrant the exercise of
revisionary jurisdiction in respect of the judgement of the learned Additional
Magistrate of Galle dated 21st September 2012.
For
the foregoing reasons, I dismiss this appeal. No costs.
Judge
of the Court of Appeal
K.K.
Wickremasinghe J.
I
agree. Judge of the Court of Appeal
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