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Provincial courts can hear cases on State land: CA

01 Aug 2011 - {{hitsCtrl.values.hits}}

Making an order in a case over a state land dispute which was argued on basis of 13th Amendment to the Constitution, the Court of Appeal held that the Provincial High Court has the jurisdiction to hear cases relating to state land.

The Appeal Court made this direction overruling an order of the Southern Provincial High Court judge who had dismissed a state land dispute on the basis that Provincial High Court has no jurisdiction to hear cases on the state land.

The bench comprising Justices Sisira De Abrew and K. T. Chitrasiri made this order following an application filed by a petitioner E. K. Charlotte of Muttetuwewatte, Porawagama citing Southern Province Land Commissioner and Divisional Secretary Niyagama among others as respondents.

The Appeal Court overruled the order when the senior counsel for the petitioner, Mahinda Ralapanawe argued that under the 13th Amendment to the Constitution, it is the Provincial Council which has power to alienate the state land. He also claimed, on this basis the Provincial High Court has the power to execute any wrong act of a Provincial Council officers and in this case Southern Provincial Land Commissioner and Divisional Secretary.

According to the action, petitioner H. H. Alice Nona has filed an application in the Southern Provincial High Court challenging the decision of the Provincial Land Commissioner giving instruction to the Divisional Secretary to enter the name of non resident A. K. Rohini Damayanthi De Silva, the daughter-in-law of Alice Nona as the successor of the state land enjoyed by the petitioner. Subsequently the Divisional Secretary has directed Porawagama Grama Sevaka to take possession of the said state land. The disputed land was granted by then President to Alice Nona’s husband E. K. Carolis in June 1996.

When the case was taken up before the Provincial High Court, state counsel appearing for the respondent Provincial Council officers had taken a preliminary objection stating that the subject matter of the application was a state land and it being a subject not devolved to the Provincial Council and therefore Provincial High Court lacks jurisdiction to hear and determined the application.

The Provincial High Court which upheld this argument dismissed the application on the basis that it has no jurisdiction to hear the case.

Aggrieved by the said judgment, petitioner’s daughter E. K. Charlotte on behalf of her mother filed a revision application in the Court of Appeal. Having heard the application the Court of Appeal observed that it appeared that the Divisional Secretary had taken the decision to hand over the possession of the said land to another whilst the petitioner, wife of the Carolis, the original owner was in occupation of the land. According to section 48 (1) of the Land Development Ordinance, Alice Nona being the wife of Carolis entitled to succeed to the said land and the decision of the Divisional Secretary to hand over the said land was erroneous. The Appeal Court held that on this basis itself the Provincial High Court judge should have intervened in the matter and quashed the decision of the Divisional Secretary. But Provincial High Court without going into the merits of the case dismissed the petition of the petitioner on the basis that he has no jurisdiction to hear the case as subject matter of the case is a state land.

The Appeal Court bench observed that the Provincial High Court judge should not have dismissed the petition on the said basis as the subject matter of the case was the decision of the Divisional Secretary who directed to hand over the possession of the land to another person. “In our view this is a matter for the Provincial High Court judge to decide after considering the merits of the case,” Appeal Court stated. The Appeal Court held that the decision of the Provincial High Court was erroneous and set aside his judgment to dismiss the original case and directed to hear the case on its merit.

Mahinda Ralapanawe with Ms. Chandima Gamage and Chamila Heratha appeared for the petitioner and State Counsel Yuresha De Silva appeared for the respondents. (Susitha R. Fernando )

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Provincial courts can hear cases on State land: CA

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