RIGHT OF WAY DISPUTE - TIMELY INTERVENTION OF COURT MAY SAVE HUNDERED OF LIVES

CASE OF ANADA SARATH PARANAGAMA

Revision – Section 66 and 69, Primary Courts’ Procedure Act – Pathway dispute – Right in the nature of a servitude – Summary procedure – Revisionary jurisdiction – Exceptional circumstances – Limits of review – Proof of entitlement “for the time being.”

The petitioner sought to revise an order of the Provincial High Court made under Article 154P(3)(b) of the Constitution, refusing to entertain a revision application filed against a determination of the Magistrate (functioning as a Primary Court Judge) under Chapter VII of the Primary Courts’ Procedure Act (PCPA), in respect of a dispute concerning the obstruction of a pathway between siblings.

The learned Magistrate, having considered the affidavits and documents produced, found that the respondents were entitled to use a 17-foot-wide pathway and directed the removal of the wall that obstructed it. The High Court declined to entertain the petitioner’s revision application, holding that no exceptional circumstances had been shown. The petitioner thereafter sought to invoke the revisionary powers of the Court of Appeal.

Held:

Revisionary jurisdiction is discretionary and will not be exercised where an alternative remedy exists, unless special or exceptional circumstances are demonstrated.

Rustom v. Hapangama [1978-79-80 4 SLR 352] followed.

The term “revision” denotes the examination of a decision with a view to correction. It is available where a subordinate court has acted without jurisdiction, in excess of jurisdiction, or with material irregularity.

The learned Magistrate had correctly confined the inquiry to actual possession and enjoyment “for the time being”, as required under Sections 68 and 69 of the PCPA, and not to the acquisition of title or servitude as in a civil case.

The purpose of Chapter VII of the Act is preventive, not adjudicative. It is designed to maintain the status quo and ensure that peace is preserved pending civil determination.

The Gratian Commission (1953) had emphasized the need for magistrates to be vested with summary powers to adjudicate disputes “affecting land where a breach of the peace is threatened or likely,” allowing persons entitled to rights for the time being to continue enjoyment until a competent civil court decides otherwise. Section 66 and Section 69 of the PCPA reflect this legislative philosophy.

The Magistrate’s finding that the respondents were entitled to the use of the pathway, based on long usage and unchallenged evidence, was reasonable, logical, and supported by the material on record.

In Ramalingam v. Thangarajah (1982) 2 SLR 693, Sharvananda J. (as he then was) clarified that in proceedings under Section 69, the Judge must determine who is entitled to the right “for the time being”, not absolute ownership. The present case fell squarely within this principle.

The Magistrate was also within his powers to order the removal of obstructions, as such a power, though not expressly stated, is implied in giving effect to a lawful order restoring or protecting a right – Tudor v. Anulawathie (1999) 3 SLR 235 applied.

The High Court and the Court of Appeal are not bound to give detailed reasons when refusing to issue notice in revision applications at the threshold stage, provided the absence of exceptional circumstances is clear on the face of the record.

Revision dismissed – the petitioner failed to demonstrate exceptional circumstances warranting interference. Costs awarded.

Note on Learning

Preventive, not proprietary: Section 66 and 69 proceedings are not intended to determine title or ownership but to preserve peace and order by maintaining or restoring possession or enjoyment for the time being.

Summary character: The proceedings are summary and time-bound; reliance is placed primarily on affidavits and documents, not extended oral trials.

Entitlement “for the time being”: As articulated in Ramalingam v. Thangarajah (1982), the term signifies temporary entitlement subject to civil adjudication, ensuring continuity of peaceful enjoyment until final rights are decided.

Inherent power to restore status quo: The Court retains implicit authority to order demolition or removal of obstructions necessary to enforce its preventive orders (Tudor v. Anulawathie, supra).

Exceptional circumstances in revision: Consistent with Rustom v. Hapangama (1978-80), revisional relief is confined to cases involving patent illegality, jurisdictional error, or exceptional injustice. Mere dissatisfaction with the findings of the Primary Court does not suffice.

Public policy foundation: Echoing Perera v. Gunathilake (4 NLR 181) and the Gratian Commission Report (1953), the decision underscores the State’s duty to suppress self-help in land disputes, recognizing that even trivial conflicts may escalate into violence if not judicially restrained.

In essence, the case harmonizes the preventive purpose of Section 66 and Section 69 with the disciplined exercise of the revisionary jurisdiction, affirming that the law’s foremost aim is the preservation of peace rather than the perfection of ownership.