DISPUTES OVER RIGHT OF WAY UNDER PART VII OF THE PRIMARY COURT PROCEDURE ACT NO 44 OF 1979

 

An Analysis of the Judgment in SC/Appeal 181/2010

date of judgement : 23.07.2024

 

Introduction.

The Supreme Court in the case of SC/Appeal 181/2010 delevered it’s judgment on 23.07.2024. The dispute in the case revolved around a right of way over (lot 30). The core issue was whether the Respondent (L.G.R.N. Perera) was entitled to use the roadway that was obstructed by the Appellant (R. Malkanthi Silva).

 

Background

The origin of the dispute dates back to the subdivision and sale of land by the Lanka Mahabodhi Society in the 1970s.The 1st Party (Perera) claimed the right to use lot 30 as a roadway to access his land. This right was acknowledged and utilized over a period of time without obstruction until the 2nd Party (Silva) purchased an adjacent lot (lot 28) in 2003 and obstructed the roadway by installing a gate and padlocking it.

 

Primary Court Proceedings

The Officer-in-Charge of the Thalangama Police Station filed a report in the Primary Court of Kaduwela under Section 66 of the Primary Court Procedure Act, concerning a dispute likely to cause a breach of the peace. The Primary Court ruled in favour of the 1st Party, confirming his right to use the roadway that resulted in a direction issued on the 2nd Party to remove the obstructions.

 

Appeal and Legal Arguments

The Appellant (Silva) challenged this decision in the Provincial High Court  Court of Appeal and before the Supreme Court.

 

Key Legal Arguments:

 

1.   Jurisdiction:

The Appellant argued that the Primary Court lacked jurisdiction to issue a declaratory order on rights to the land under Section 32(2) of the Judicature Act, which excludes certain matters from the purview of the Primary Court.

2.   Prescriptive Rights:

The Appellant contended that the right to use the roadway could not be established by long use, implying that this would amount to prescriptive rights, which the Primary Court is not competent to determine.

3.   Alternative Access: The Appellant argued that the Respondent had alternative access routes to his land, and was not in need of the road in question.

 

Respondent's Counter-Arguments:

1.   Long-Established Use:

The Respondent highlighted the long history of unimpeded use of the roadway by himself and his predecessor, which established a prescriptive right of servitude.

 

2.   Servitude Rights:

Only an owner of soil rights could prevent or obstruct another party from using a servitude right of way. The Appellant, having only a servitude right, lacked the standing to obstruct the Respondent.

 

3.   Judicial Precedents:

The Respondent also relied on previous court orders recognizing the use of lot 30 as a roadway.

 

Analysis of the judgment 

In its judgment, the Supreme Court analyzed several crucial points of contention: 

1. Preventive Jurisdiction: The Court emphasized that the jurisdiction of the Primary Court under Section 66 of the Primary Courts’ Procedure Act is preventive and provisional in nature and aimed at maintaining peace and the status quo until a competent court can make a final determination.

2. Entitlement vs. Ownership: The Court clarified that the term 'entitlement' in Section 69(1) cannot be equated to ownership. It merely establishes a party's right to use the land for the time being to prevent a breach of the peace.

3. Use of the right of way during a substantial length of time: The Supreme Court upheld the findings of the lower courts that the 1st Party had sed the roadway for a long period of time without obstruction, and this long-established use warranted maintaining the status quo.

 

Key Judicial Precedents: 

1. Ramalingam v. Thangarajah: This case highlighted the distinction between issues of possession and entitlement under the Primary Courts Procedure Act.

Sriyawathie Jayasinghe v. Karunaratne:  Highlighted that a party claiming a right of way must establish entitlement rather than mere usage.

 

Decision 

The Supreme Court upheld the decisions of the lower courts, affirming that the 1st Party was entitled to use lot 30 as a roadway. The Court directed the Appellant to remove the obstructions and refrain from preventing the Respondent from using the roadway. Additionally, the Appellant was ordered to pay Rs. 900,000 in costs to the Respondent.

Some Crucial Points

 

1.   Jurisdictional Clarity: The judgment provides clarity on the jurisdiction of the Primary Courts in Sri Lanka, especially concerning their preventive role in disputes likely to cause breaches of peace.

 

2.   Temporary Orders: The ruling reinforces that orders made by the Primary Courts under Sections 68 and 69 of the Primary Court  Procedure Act are provisional and intended to maintain peace until a competent civil court makes a final determination.

 Conclusion

This judgment stresses the importance of maintaining peace and order through provisional measures while awaiting final adjudication from competent civil courts. It delineates the boundaries of jurisdiction and reinforces the principle that long-established use can justify temporary entitlements, ensuring that disputes do not escalate into breaches of peace. The decision also exemplifies judicial prudence in balancing immediate preventive measures with the ultimate resolution of property rights through the appropriate legal channels.

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