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ea62d469-99ae-4925-a6f2-9306b89f9c24
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. Punchihewa, Attorney -at-Law, Chairman, Land Reform Commission, P.O. Box 1526, No. C 82, Hector Kobbekaduwa Mawatha, Colombo 7. 3. Land Reform Commission, P.O. Box 1526, No. C 82, P a g e 2 | 8 Hector Kobbekaduwa Mawatha, Colombo 7. 4. Rev. Meepanawe Sugathadhamma Thero, Chief Incumbent, Sri Maha Viharaya, Bambarakele, Nuwara Eliya. Respondents AND NOW BETWEEN A.D. Hemachandra Perera, No
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sc_appeal_72_2014.txt
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238248c4-89d8-4a06-99c5-c0cfa11468b7
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. 233, “Ajantha”, Bambarakele, Nuwara Eliya. Petitioner -Appellant Vs. 1. Lal Sumanasena, Director, District Land Reform Commission, Badulla Road, Nuwara Eliya. ADDED 1A. Nimal Hathurusinghe, Director, District Land Reform Commission, I.R.D.B. Building, Udapussellawa Road, Nuwara Eliya. 2. Nimal G. Punchihewa, Attorney -at-Law, P a g e 3 | 8 Chairman, Land Reform Commission, P.O. Box 1526, No
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4088e423-cd81-44b5-9e10-31cab5c4ea74
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. C 82, Hector Kobbekaduwa Mawatha, Colombo 7. ADDED 2A. T.A. Sumanathissa Thambugala , Chairman , Land Reform Commission, P.O. Box 1526 , No. C 82 , Hector Kobbekaduwa Mawatha , Colombo 7 . ADDED 2B. Sampath Subasinghe Arachchi , Chairman, Land Reform Commission, No. 457, Kaduwela Road, Battaramulla . ADDED 2C. Sirimewan Dias, Chairman, Land Reform Commission, No. 457, Kaduwela Road, Battaramulla
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263529a1-60fa-4b01-9e76-56965f327a78
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. ADDED 2D. Pandukabaya Harsha Keerthinanda, Chairman, Land Reform Commission, No. 457, Kaduwela Road, Battaramulla. 3. Land Reform Commission, P.O. Box 1526, No. C 82, P a g e 4 | 8 Hector Kobbekaduwa Mawatha, Colombo 7. 4. Rev. Meepanawe Sugathadhamma Thero, Chief Incumbent, Sri Maha Viharaya, Bambarakele, Nuwara Eliya. Respondent s-Respondent s Before: Justice P. Padman Surasena Justice A.L
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sc_appeal_72_2014.txt
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e57ee127-9c76-4b45-859c-ba49e9e804fb
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. Shiran Gooneratne Justice Achala Wengappuli Counsel: W. Dayaratne , PC with Ranjika Jayawardene instructed by C. Dayaratne for the Petitioner -Appellant . Dr. Sunil Coorey with Sudarshani Coorey instructed by Udayasiri Rajapakse for the 3rd Respondent -Respondent . Aravinda R.I. Athurupane with Indika I. Weragoda instructed by Roshani Rodrigo Weragoda for the 4th Respondent -Respondent
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sc_appeal_72_2014.txt
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f76ab360-936b-4a38-8982-1950bc71c6ec
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. Argued on: 16/10/2024 Decided on: 11/11/2024 P a g e 5 | 8 A.L. Shiran Gooneratne J. [1] The Petitioner -Appellant filed this Writ Application against the 1st to 4th Respondents -Respondents praying inter -alia, to the grant of a writ of certiorari to quash the notice to quit (marked ‘X36’) issued by the 2nd Respondent , directing the Petitioner to vacate the land depicted in Plan No
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sc_appeal_72_2014.txt
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8058a7cb-84e8-47bf-acc1-51a1851ca6ae
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. 4356 N marked ‘X1’, and to the grant of a writ of mandamus directing the 2nd Respondent to transfer the land bearing assessment No. 325, Bambara kele, Nuwara Eliya , morefully depicted in the said Plan No. 4356 N , to the Petitioner
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sc_appeal_72_2014.txt
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9091adf6-418c-4734-8f9f-12034d254a0a
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. [2] This application was filed on the basis that the land in dispute was possessed and cultivated by the parents of the Petitioner since 1970 , which was once part of Oliphant Estate , Nuwara Eliya. It is submitted that the Petitioner continued to possess and cultivate the said land for well over 40 years
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sc_appeal_72_2014.txt
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f300354c-8a3c-4b9a-90fe-75ae9b7b5267
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. [3] The Petitioner submits that the 2nd Respondent acting in terms of Section 3 of the State Lands ( Recovery of Possession) Act No. 7 of 1979 , has acted arbitrarily and unreasonably in the issuance of the notice to quit, which tantamount to an abuse of statutory p rocess
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5555834d-6afd-4a66-9d5f-8cb4511dbdb4
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. [4] The Petitioner s upports the above position inter alia , with the following marked documents , attached to his Application to the Court of Appea l dated 2 7/01/2012 . I
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sc_appeal_72_2014.txt
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7acea7c2-c8d0-4309-93b2-b5b714fe1ee8
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. The 3rd Respondent’s letter dated 26/08/1996 , addressed to the Secretary Ministry of Plant ation Industries and copied to the Petitioner , informing that steps would be taken by the Land Reform Commission to release the said land to the Petitioner , marked ‘X20’. P a g e 6 | 8 II
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c7d931d7-99b0-4060-8663-6e63030a342e
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. The 3rd Respondent’s letter dated 12/05/1997 , requesting the Petitioner to prepare a private survey plan depicting the land in question , following the rules set out in the aforementioned letter , marked ‘X22’. III. The 1st Respondent ’s letter dated 02/08/2010 , requesting the Petitioner to pay Rs. 1,138,561
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sc_appeal_72_2014.txt
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626e294f-4cb4-4d9f-a164-ae0882ce0b35
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.00 as consideration for 15 perches of the disputed land and to make the said payment before 15/08/2010 , marked ‘X33’. IV
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2e7b7f06-1e39-4b8a-8f0b-d3d24fa2c580
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. Letter dated 25/01/1996 by the Secretary, Ministry of Plantation Industries to the Land Reform Commission stating that the land in dispute does not fall within the property owned by Oliphant Estate and therefore, to inquire into this issue and to find out whether the said land is owned by the Land Reform Commission and if so , to take necessary steps to consider the request made by the
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sc_appeal_72_2014.txt
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bdf6b9c2-c644-421d-8f6b-fb13796120f5
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Petitioner , marked ‘X14’
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sc_appeal_72_2014.txt
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bd9bf26e-1b39-4b7a-97f1-731fff454a80
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. V. Letter dated 04/04/1996 by the Secretary, Ministry of Plantation Industr ies to the Land Reform Commission requesting to transfer the land in dispute to the Petitioner , with a copy to the Petitioner , marked ‘X19’
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sc_appeal_72_2014.txt
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9ec0a27b-91bf-42ce-81a8-0d513efd88dd
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. [5] The Court of Appeal by its Judgment dated 08/02/2012 , having acknowledged communications between the Petitioner and the Respondents , and the document marked ‘X22’, held that , “No steps were taken to alienate the said land to the Petitioner
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sc_appeal_72_2014.txt
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5736b2c2-dd04-49f0-a504-ed8f8d7d1af0
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.” [6] Accordingly , on the basis that “the Petitioner has not established any ground to quash the said quit notice ” the Court dismissed the Application without the issuance of notice on the Respondents
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sc_appeal_72_2014.txt
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fb4b8b6f-cda5-400f-a5ae-8d504ec49bee
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. [7] The Petitioner by Application dated 03/09/2012, is before this Court , primarily to have the said Judgment of the Court of Appeal set aside and for a direction given to P a g e 7 | 8 the Court of Appeal to determine this matter with notice of this Application to the 1st to 4th Respondents named above
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sc_appeal_72_2014.txt
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950b880e-fda7-4c91-97c3-aa49c5570db5
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. [8] When this matter was taken up for hearing before this Court, the learned President ’s Counsel for the Petitioner , submitted that when the Land Reform Commission had decided to alienate the land in dispute to the Petitioner, the 2nd Respondent’s arbitrary decision to send the notice to quit (X36) , was in violation of the principles of natural justice and is in breach of the Petitioners
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sc_appeal_72_2014.txt
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c21d751f-e77c-4bb8-ae0b-815cb4b4ebff
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legitimate expectations of the land being alienated to him
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a0992e21-b83c-449e-9c08-aa35f09e9330
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. [9] We have perused the documents attached to this Application , and specially the abovementioned documents relied upon by the Petitioner in support his legitimate expectation s arising in the facts and circumstances of this case. [10] However, the Court of Appeal has based its decision to refuse issuance of notice on the Respondents solely on the document marked ‘X22’ only
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sc_appeal_72_2014.txt
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0f0c02eb-f535-41f6-b985-1c29310dfcab
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. This is clearly reflected in its order dated 08/02/2012. The said order also clearly reveals that the Court of Appeal has failed to take into consideration any other document other than X22. In our view Court of Appeal should have considered the other documents as well
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sc_appeal_72_2014.txt
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b756714e-83bf-47e5-ba1e-5d87949cee33
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. [11] We are of the view that the Court of Appeal should have investigated whether the communications between the Petitioner , the Secretary, Ministry of Plantation Industries, and the Land Reform Commission , in more detail, after issuing notices on the Respondents
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sc_appeal_72_2014.txt
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d40a3a00-d6c8-4bc3-8f9d-7dd134785151
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. [12] Accordingly , we set aside the Judgment dated 08/02/2012 since there is a prima facie case to be looked into, we direct the Court of Appeal to issue notice on the 1st to 4th Respondents and have an early date for hearing , in order to dispose of this application . P a g e 8 | 8 [13] Appeal allowed; we make no order for costs. Judge of the Supreme Court P. Padman Surasena , J
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sc_appeal_72_2014.txt
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06a60a2b-82d9-4527-8dbd-3195d6edb1e0
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. I agree Judge of the Supreme Court Achala Wengappuli , J. I agree Judge of the Supreme Court
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sc_appeal_72_2014.txt
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b8d684db-5a8a-45f6-ae3d-4f241b0b8a29
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Page 1 of 11 IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SARI LANKA In the matter of an Application for Orders in the nature of writs of Certiorari, Mandamus an Prohibition under Article 140 of the Constitution of the Democratic Socialist republic of Sri Lanka. WRIT -108/2023 T/ Captain Borala Liyanage Tharindu Gayan No.A33/2, “Indunil”, Pothukoladeniya, Kegalle. Petitioner v. 1
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writ_108_23_judgment_pdf.txt
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89c62278-121a-4f93-af1b-6f2980dcbdf2
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. Lieutenant General Vikum Liyanage RWP RSP ndu Commander of the Sri Lanka Army Army Headquarters Sri Jayawardhenapura Colombo. 2. Maj Gen CD Weerasuriya RPW RSP ndu Chief of Staff and Colonel of the Regiment -Sri Lanka Regimental Center Sri Lanka Light Infantry Army Cantonment Panagoda Homagama. Page 2 of 11 3
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writ_108_23_judgment_pdf.txt
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975ecc44-332e-4bd2-8ac2-44ed25afca2b
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. Maj Gen W S S Wanasinghe RSP VSV USP ndu Commandant of the Sri Lanka Army Volunteer Force, Headquarters Sri lanka Army Volunteer Force, Salawa Kosgama. 4. Col MPSK Kulasekara WWV RWP RSP Centre Commandant of the Regimental Center - Sri lanka Light Infantry Regimental Center Sri Lanka Light Infantry Army Cantonment Panagoda, Homagama. 5
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writ_108_23_judgment_pdf.txt
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84be2324-67b0-4935-98d2-44a32a626714
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. Major HMJ Pramathilaka RSP SLLI Commanding Officer 17th Battalion Sri Lanka Light Infantry, Army Camp, Alankulam, Thunukkai. 6. General G.D.H. Kamal Gunaratne (Read) WWV RWP RSP USP ndc psc MPhil Secretary, Ministry of Defence, Ministry of Defence, Defence Headquarters Complex, Sri Jayewardenepura, Kotte. Respondents Page 3 of 11 Before : N. Bandula Karunarathna P/CA, J B
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writ_108_23_judgment_pdf.txt
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a5c3a40d-a5f1-417e-a41e-cb64f88b843a
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. Sasi Mahendran, J Counsel : Shantha Jayawardena with Thilini Vidanagamage for the Petitioner Dilan Ratnayake, PC, SDSG for the 1st to 6th Respondents Written Submissions: 01.03.2024 (by the Petitioner) on: Supported on: 02.02.2024 Judgment On : 10.05.2024 B. Sasi Mahendran, J The Petitioner by P etition dated 16.02
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writ_108_23_judgment_pdf.txt
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5395e72f-0dce-4863-af86-a4ebc2fafc60
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.2023 has invoked this Court’s Writ Jurisdiction by praying for the following reliefs, a) Issue notice on the Respondents in the firs instance; b) Call for and examine the record pertaining to the subject matter of this application, including the said decision contained in the letter bearing reference No
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writ_108_23_judgment_pdf.txt
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fa7d5e48-dcab-4cf0-af8e-84058660aa05
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. VF/O/ROG/SNR OFFRS/178/8524/2023(23) dated 15th February 2023; c) Grant and issue an order in the nature of Writ of Certiorari quashing the adverse decision(s) contained in the letter 07th July 2020 – PI7; d) (d) Grant and issue an order in the nature of Writ of Certiorari quashing the adverse decision(s) contained in the letter 30th July 2021 - P23; e) Grant and issue an order in the nature of
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writ_108_23_judgment_pdf.txt
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1b536b42-65c3-4bd1-a540-8274be050682
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Writ of Certiorari quashing the adverse decision(s) contained in the letter bearing reference No
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writ_108_23_judgment_pdf.txt
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74ac82fa-2b50-4d31-9c30-fe88196d29ef
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. VF/O/ROG/SNR OFFRS/178/8524/2023(23) dated 15th February 2023 - P33; f) Grant and issue an order in the nature of Writ of Certiorari quashing any adverse decision(s) on account of and in consequent to the contained in the letter bearing Page 4 of 11 reference No
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writ_108_23_judgment_pdf.txt
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55dc7172-de7b-41e4-b5eb-2a482675361e
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. VF/O/ROG/SNR OFFRS/178/8524/2023(23) dated 15th February 2023 - P33; g) Grant and issue an order in the nature of a Writ of Prohibition preventing any one or more Respondents and their successors/ servants or agents thereof, and or any Added or Substituted Respondents thereof from further denying the career progression of the Petitioner based on the Award of Punishment in the Charge Sheet - P6;
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writ_108_23_judgment_pdf.txt
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19a1426b-1042-4ce0-8049-32bdc1626295
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h) Grant and issue an order in the nature of a Writ of Prohibition preventing any one or more Respondents and their successors/ servants or agents thereof, and or any Added or Substituted Respondents thereof from acting on decision contained in the letter da ted 07th July 2020 or P17; i) Grant and issue an order in the nature of a Writ of Prohibition preventing any one or more Respondents and
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writ_108_23_judgment_pdf.txt
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9cc43f06-ea5c-4f7e-9bee-f3b5cd4f1226
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their successors/ servants or agents thereof, and or any Added or Substituted Respondents thereof from acting on the decision contained in the letter bearing reference No
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writ_108_23_judgment_pdf.txt
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d497f1fd-f7b1-450a-a184-a0189e579873
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. VF/O/ROG/SNR OFFS/178/8524/2023(23) dated 15th February 2023 or P33; j) Grant and issue an order in the nature of Writ of Mandamus directing the 1st Respondent to confirm the Petitioner in the Rank of Captain; k) Grant and issue an order in the nature of Writ of Mandamus directing the 1st Respondent to confirm the Petitioner in the Rank of Captain with effect from 20th December 2014; l) Grant
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writ_108_23_judgment_pdf.txt
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31be13a5-5f8a-4029-98dc-08b9cf6ea1e2
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and issue an order in the nature of Writ of Mandamus directing the 1st Respondent to promote the Petitioner to the Rank of Temporary Major; m) Grant and issue an order in the nature of Writ of Mandamus directing the 18 Respondent to promote the Petitioner to the Rank of Temporary Major with effect from 20th December 2018; n) Grant and issue an order in lie nature of Writ of Mandamus directing the
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writ_108_23_judgment_pdf.txt
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c0ec9d49-cc2d-4ab4-bd11-8de2e4cac9e0
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18 Respondent to promote the Petitioner to the Rank of Major, o) In the alternative to the prayer (j)
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writ_108_23_judgment_pdf.txt
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a6d1c87e-0df6-42e0-a210-e7b0dd050d8b
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. grant and issue an order in the nature of Writ of Mandamus directing the 1st and/or 2nd Respondents) to recommend the Petitioner for confirmation in the Rank of Captain; p) In the alternative to the prayer (k), grant and issue an order in the nature of Writ of Mandamus directing the 1st and/or 2nd Respondents) to recommend the Petitioner for confirmation in the Rank of Captain with effect from
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writ_108_23_judgment_pdf.txt
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db8f62ec-901a-49cb-94a1-e52abc4f34da
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20th December 2014; Page 5 of 11 q) In the alternative to the prayer (1), grant and issue an order in the nature of Writ of Mandamus directing the 1st and/or 2nd Respondents) to recommend the Petitioner for promotion to the Rank of Temporary Major; r) In the alternative to the prayer (m), grant and issue an order in the nature of Writ of Mandamus directing the 1st and/or 2nd Respondent(s) to
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writ_108_23_judgment_pdf.txt
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05f2ea87-3146-4c41-821d-704fa8ff7a21
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recommend the Petitioner for promotion to the Rank of Temporary Major with effect from 20th December 2018; s) In the alternative to the prayer (n), grant and issue an order in the nature of Writ of Mandamus directing the 1st and/or 2nd Respondents) to recommend the Petitioner for promotion to the Rank of Major; t) Grant costs; and/or u) Grant such further and other reliefs) as Your Lordships'
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writ_108_23_judgment_pdf.txt
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d9e6093f-c5b2-49c0-94a5-eb12e09c8261
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Court shall deem meet
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writ_108_23_judgment_pdf.txt
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65550b05-4a05-4372-a56a-79ee3cc95830
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. Facts re levant to this case According to the Petitioner following facts are revealed in the Petition . Petitioner is attached to the Sri Lankan Volunteer Force of the Sri Lanka n Army, who was attached as a Volunteer Cadet on 06.07.2007 and promoted to 2nd Lieutenant on 10.04.2012
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f73d90ca-82e7-44c1-92c8-5403971e903d
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. After completing 3 years in the rank of Lieutenant and after completing the exam in 2012 he was promoted to the rank of T emporary Captain with effect from 20.12.2014. On 31.10.2015 the villages has complained to the p olice that, he has come out from the camp under the influence of liquor and had a quarrel with the civilians . Court of Inquiry was held on 01.11
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writ_108_23_judgment_pdf.txt
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b51a134a-9d35-41a0-9671-64e459e3c55b
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.2015 and a charge sheet was served on him containing 3 charges. After he pleaded guilty on 20.09.2016 , he was awarded severe reprimand as the punishment for all the charges. By the document marked P7, the 1st Respondent has taken a decision that it is not necessary to take further action against the Petitioner in respect of the same incident
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d39c2c5f-49f2-4566-bea5-e4c1a8facc0d
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. According to the Petitioner, he has completed the Captain to Major Exam in 2016. Due to the punishment he was not promoted in 2017. According to the Petitioner he has to wait for 1 year to get the promotion. From the y ear 2017 to 2019 though he has received confirmation for the promotion he was not promoted. In the year of 2020 he was recommended for promotion but his promotion was denied
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writ_108_23_judgment_pdf.txt
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8dce3d5c-2f97-4299-b266-2a806250ddc1
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. In 01.08. 2020 the Petitioner Page 6 of 11 was informed by the letter P17 that the 1st Respondent declined the Petitioners request on the basis that, the Petitioner has committed an offence that amounts to more on moral turpitude. According to him, this was the first time he was informed by the Authority concerned
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writ_108_23_judgment_pdf.txt
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be4172c5-63a1-4ce2-b8bd-99bac238e58e
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. Against that Order , he has made several appeals to the 1st Respondent by way of redress of grievance. In the m eantime, in 2021 and 2022 his Commanding Officer recommended for his promotion. Thereafter, he has requested the right of the audience with the 4th Respondent and no action has been taken
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writ_108_23_judgment_pdf.txt
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773aa446-3e7b-4bd5-b4df-22358edeeb04
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. By the document marked P33 he was informed by the 1st Respondent that the 1st and 2nd Respondent s have considered the gravity of the offence committed by the Petitioner on 31.10.2015 and ha ve declined his promotio n. According to the P etitioner , he has satisfied all the criteria for t he confirmation in the rank of c aptain with effect from 20.12.2014
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writ_108_23_judgment_pdf.txt
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b0c796f8-d81c-46c9-95a6-5d784bd1b0cf
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. But the Respondent has taken the position that the petitioner is not eligible under circular No. AO/11/ 2019 which was tendered by the 1st Respondent in their objection. The Respondent in their Objection has taken the position that, according to the army order No. AO/11/2019 dated 27.06
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writ_108_23_judgment_pdf.txt
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8bf20795-6179-43cb-a0c2-60e94356eee3
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.2019 it sets out the promotion and career pr ogression criteria of the Sri Lankan Army Lieutenant Colonel and below which was marked as R1. According to the paragraph 53 of the said order, it stipulates that “ The Officers who have punished for civil -military offences, which amount to Moral Turpitude are not to be considered’’
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writ_108_23_judgment_pdf.txt
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125aff4c-ae2f-40f7-92af-e1ff95607a52
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. The question before us is whether the Respondent’s decision not to promote the Petitioner considering the circular AO/11/2019 ? According to the Petition , is to be promoted to the rank of temporary major and to promote to the rank of major , as he has completed the major exam in 2016 in terms of regulation 15/01 of the regulation which was marked as P9
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writ_108_23_judgment_pdf.txt
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8dfc15e5-3593-4c30-ae9b-2e39200c30ee
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. Also, the officers who have sat for the exam with the Petitioner they have been placed in temporary major effect from 30.12.2018. In the objections the Respondent has taken the position that due to the Army Order which was marked by the R espondent as R1, where the Officer who has been punished for civil offences which amounted to moral turpitude to be considered for the promotion
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writ_108_23_judgment_pdf.txt
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ed003410-6575-4cf6-a746-5df3816b149b
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. But when we peruse the charge sheet which was marked as P6 where the offence was committed on 31.10 .2015, the offence was never indicated in the said charge sheet. When the Respondent s framed the charges against him, the particular offence was not there at the Page 7 of 11 time the incident took place
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writ_108_23_judgment_pdf.txt
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145bd359-c207-4e35-83b2-eb5700b56840
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. They have described 3 charges in the particular charge sheet and described the offences as follows; 1. Neglect to obey garrison or other orders 2. Prejudicial to military discipline 3
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writ_108_23_judgment_pdf.txt
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3da9b540-5762-4472-b945-ff762a446a96
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. Conduct prejudicial to military discipline Those three charges are based on, whilst the Petitioner was performing duties as an officer commanding of A coy of 5th volunteer battalion of Sri Lanka Light infantry , consumed liquor in the living room and left the camp through the security fence without obtaining the permission from the superior and entered into a civil house
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writ_108_23_judgment_pdf.txt
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73c23aca-946e-4b62-849a-e9319c95dff2
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. By doing that, he committed an offence punishable under section s 102(1) and 129 (1) of the Army Act No 17 of 1949 which was in force at that time . But the Respondent has deprived his promotion by stating that the petitioner who has been punish for civil / military offences which amount to moral turpitude, which disqualifies his promotion
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writ_108_23_judgment_pdf.txt
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f0e15185-f14b-4758-9b87-771c41599cb9
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. The Petitioner right to be promoted as a Major , was deprived by imposing a condition that was circulated by AO/11/2019 that was no t an offence at that time. Whether the particular offence will have the retrospective effect when the incident occurred
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writ_108_23_judgment_pdf.txt
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8f8b65ce-daff-4ff1-a5dd-938aa9c3ecd2
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. We hold that P17 and P33 where Respondents consider the incident comes under Moral turpitude which was not an offence at that time of the offence committed is irrational. There is no evidence to show that, the Respondent has the power to make regulations under and in terms of the Army Act with retrospective effect where decision contained in P33 is based on the said circular
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93a8556b-5f5d-439b-b799-a850685dc3a4
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. This concept was discussed in Dr. K.M.L.Rathnakumara and 13 Others v. The Postgraduate Institute of Medicine and Others , SC Appeal NO: 16/20 14, decided on 30.03.2016, (2016 BLR Vol.XXII page 92 at page 98 ; Priyantha Jayawardhena, PC.,J
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c82dd373-da34-4390-858b-8c6c04f4d51c
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., held; “Section 17 of the Interpretation Ordinance stipulates the General provisions with respect to power given to any authority to make rules, regulations, and by -laws
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128eb462-16c0-41d2-b54a-7a074352d00d
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. Thornton’s Legislative Drafting at page 424 says “ Delegated legislation may have retrospective effect only if the primary legislation containing the delegation either has that effect or authorities the delegated legislation to have that effect
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writ_108_23_judgment_pdf.txt
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c01b1631-1c07-4a61-aeae-a2f77b541172
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.’… no statu te or order is to be construed as having a retrospective operation unless such a construction appears very clearly or by necessary and distinct implication in the Act.” This principle Page 8 of 11 was adapted by Sharvananda J. in the case of the Attorney General of Ceylon and W.M. Fernando, Honorary Secretary, Galle Gymkhana Club 79 (1) NLR 39
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e47d2972-6797-47f7-a8ab-f47ad8a364e0
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. Constitutional and Administrative Law of Sri Lanka by joseph A.L. Cooray at page 329 says “ The doctrine that subordinate legislation is invalid if it is ultra vires is based on the principle that subordinate agency has no power to legislate other than such as may have expressly been conferred by the supreme Legislature
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writ_108_23_judgment_pdf.txt
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49f4f8d4-83be-4992-96d8-8fe05bfcc5df
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. Subo rdinate legislation is fundamentally of a derivative nature and must be exercised within the periphery of the power conferred by the enabling Act. For example, subordinate legislation having retrospective effect is ultra vires unless the enabling Act expre ssly or by necessary implication authorizes the making of retrospective subordinate legislation
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writ_108_23_judgment_pdf.txt
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67d6106f-8785-4101-8f8d-adc89e09a53c
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.” At page 323 of the said book states “ Unless Parliament has in the enabling or parent Act expressly or impliedly authorized the sub -delegation, the maxim delegatus non potest delegare applies to make the sub delegation unlawful.” There is no provision available in the said act to delegate power to the 1st Respondent to make regulations with retrospective effect
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writ_108_23_judgment_pdf.txt
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b29987f4-fd38-4cbf-b72b-fda87cbcea31
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. When there is no power to the 1st Respondent to make regulation with retrospective effect , the decisions containing in P17 and P33 are ultra vires. Be that as it may , the Petitioner was continuously applying for the rank of major from 2016
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writ_108_23_judgment_pdf.txt
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d77414b5-e1ac-4c42-b4ba-6fef62f38b42
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. We are mindful that in 2018, 2020, 2021 and 2022 after satisfying all the necessary and requisite criteria for the rank of captain and also in 2016 after completing the captain to major exam where the Petitioner’s batch was confirmed in the rank of captain on or about 09.02.2017 in the view of the disciplinary circular he was lawfully eligible for the promotion on 20.09.2017
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writ_108_23_judgment_pdf.txt
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d32b21f9-1d9b-427a-b20e-06a0ba2d1977
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. According to the Petitioner, as per the annual confidential report marked as P 11 -C he was duly recommended to be promoted. Some Officers of the Petitioner’s batch confirmed the substantive rank of captain. According to the P 13A, P 13B he was duly recommended by the commanding officer. He has made an appeal for not being promoted
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writ_108_23_judgment_pdf.txt
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e9997723-fd86-4d8b-8895-55d8892618b0
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. Under the terms of the said regulation of the Sri Lanka n Army ( Volunteer Force and Volunteer Reserve ) Regulation 1985 , he was expecting that, he will be eligible to be promoted to the rank of temporary major by 20.12.2018 and by 20.12.2022 he will be able to be promoted to the rank of major by 20.12.202 2
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writ_108_23_judgment_pdf.txt
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a867e10d-c8c5-47e6-91b9-dff3d5f8ae38
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. Whereas the Officers from his intake Page 9 of 11 who have sat for the said exam have now confirmed the rank of captain and placed in the rank of temporary major in 2018. Failure to promote him and failure to consider his appeal violates his rights and due entitlement
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writ_108_23_judgment_pdf.txt
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61eabc82-eed4-43d8-8f9a-d8939bec6506
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. The only defence taken by the Respondent was that according to P17 and P33 that the Petitioner has committed an offence of moral turpitude . Where we have already held that the particular offence was not indicated in the charge sheet. If the 1st Respondent considered his promotion in the due process he would have been appointed as temporary major in 2018
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writ_108_23_judgment_pdf.txt
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3b4886ba-f1ec-450d-9dea-dcf7d3aefdef
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. He had a legitimate expectation that he would be promoted after completing 3 years as a captain. Halsvury’s Laws of England, 5th Edition, Volume 61, Page 694. Legitimate expectations. “A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though there is no other legal basis upon which he could claim such treatment
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writ_108_23_judgment_pdf.txt
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f5765e7e-661c-4826-a3b6-008285d1119a
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. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice. In all instances the expectation arises by reason of the conduct of the decision - makers, and is prot ected by the courts on the basis that principles of fairness, predictability and certainty should not be disregarded
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writ_108_23_judgment_pdf.txt
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2585f664-35ac-4b44-afd3-e19fb99da69f
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. The existence of a legitimate expectation may have a number of different consequences; it may give standing to seek permission to apply for judicial review, it may mean that the authority ought not to act so as to defeat the consequence of the expectation without some overriding reason of public policy to justify its doing so, or it may mean that, if the authority proposes to act contrary to the
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writ_108_23_judgment_pdf.txt
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05ae74da-21eb-476a-a828-d02031ff0de7
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legitimate expectation, it must afford the person either an opportunity to make representations on the matter, o r the benefit of some other requirement of procedural fairness
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writ_108_23_judgment_pdf.txt
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4b499766-87d9-4ab9-8437-14499e2e8b92
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. A legitimate expectation may cease to exist either because its significance has come to a natural end or because of action on the part of the decision -maker. In appropriate circumstances the existence of a legitimate expectation may require a public body to confer a substantive, as opposed to a procedural, benefit
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writ_108_23_judgment_pdf.txt
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107a83d8-9054-4427-97b6-95fd2748524e
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. In such cases the courts will not permit the public body to resile from the representation if to do so would amount to an abuse of power. “ Page 10 of 11 I like t o refer the observation made in Perera v. National Police Commission and 24 Others, SC (FR) Application No. 290/2006 , Decided on 03.07.2007, 2007 BLR 14 at page 17 Shirani A
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writ_108_23_judgment_pdf.txt
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faf4ad74-35ce-4150-a5d5-fb0fa2eb48a6
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. Bandaranayake, J held as she was then: Examining the decisions in Schmidt (supra) and Attorney - General for New South Wales v. Quin [(1990) 170 C.L.R 1], P. P. Craig (Legitimate Expectations, A Conceptual Analysis, L.Q.R. [(1992) 108 pg
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writ_108_23_judgment_pdf.txt
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8c6795d9-6c25-4443-9f49-cffed18607c0
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. 79] had observed the applicability of the concept of legi timate expectation in administrative decisions and had stated that, \"The foundation of the applicant's procedural rights is not simply that he has some legitimate expectation of natural justice or fairness
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writ_108_23_judgment_pdf.txt
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47f6100d-a406-41e5-a0f0-81f637fe7e92
|
. The basis of the applicant's claim to protection is that he has a legitimate expectation of an ultimate benefit whic h is in all the circumstances felt to warrant the protection of that procedure, in his instance his continued presence in the country
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writ_108_23_judgment_pdf.txt
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c9c99565-c1bc-4399-9a67-e1cbf5ad0cdf
|
.\" Thus it is apparent that, as observed by David Foules (supra), a promise or a regular procedure could give rise to a legitimate expectation that could be enforced by court. This position is clearly illustrated by the decisions in Attorney General of Hong K ong vs. Ng Tuen Shiu [(1983) 2 AU.E.R. 346] and Council of Civil Service Unions v. Minister for the Civil Service [(1984) 3 All E.R. 935}
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writ_108_23_judgment_pdf.txt
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98cf1fd1-2467-4e53-9038-d3469305e675
|
. According to the Petitioner, he was eligible for promotion after 20.09.2017. He was duly recommended to be promoted as Captain . But the decision of the 1st Respondent stating that he is not eligible to be promoted for the position of captain as he has committed an offence namely moral turpitude which was ultra vires
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writ_108_23_judgment_pdf.txt
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327563cc-67af-4622-91ac-23b25ca6ab96
|
. Considering the above facts we hold that the decision taken by the 1st Respondent in P17 and P33 are ultra vires. Therefore we quash both the decisions according to the prayer (c) and ( e) of the petition . Although in his prayer he has asked for a writ of mandamus directing the 1st respondent to confirm the Petitioner in the rank of captain with effect from 20.12.2014
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writ_108_23_judgment_pdf.txt
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42cf8c13-cc71-4a0c-a152-33d95280cece
|
. But in his petition , he admits in paragraphs 17 and 18 that due to the punishment, he lost the opportunity of being considered for promotion for one year from effect till 20.09.2017. Therefore there is confusion with regards to his promotion date. Therefore we direct the 1st Respondent to consider his promotion to the rank of Captain with effect from 20.12.2017
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writ_108_23_judgment_pdf.txt
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a21d7775-37c8-430a-81c0-32c9a29c039d
|
. Thereafter if he is eligible for the rank of Temporary M ajor under the said circular recommend him to that post. Page 11 of 11 Application allowed without costs. JUDGE OF THE COURT OF APPEAL N. Bandula Karunarathna (P/CA), J. I AGREE PRESIDENT OF THE COURT OF APPEAL
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writ_108_23_judgment_pdf.txt
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d15d17ea-85b2-4a7a-8dce-24d4aab21aec
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IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Karunawathi Palith Liyanage, No. 283, Pasyala, Meerigama. Petitioner -Petitioner -Appellant SC APPEAL NO: SC/APPEAL/1 90/2011 SC LA NO: SC/LA/ 188/2010 HCCA NO: WP/HCCA/GAMP/REV/14/2008 DC GAMPAHA NO: 28140/L Vs. Ratna Lakshmi Jayakodi ( nee Yatawara), “Rajagaha” Balagalla, Divulapitiya. Plaintiff -Respondent -Respondent 1
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sc_appeal_190_2011_ed.txt
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d644bfc7-3475-4a20-8e06-1bddafb3527a
|
. Handunweerage Babynona, No. 283, Pasyala, Meerigama. (Deceased) 1A. Palith Liyanage Ariyadas a (Deceased) 2. Palith Liyanage Ariyadasa, No. 283, Pasyala, Meerigama. (Deceased) 2A. Yaspali Liyanage , 2 SC/APPEAL/190/2011 2B. Chalinda Palitha Liyanage, Both of No. 45, Sri Sugathawansa Mawatha, 2nd Division, Maradana, Colombo 10. Defendant -Respondent - Respondents Before: Hon. Justice E.A.G.R
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sc_appeal_190_2011_ed.txt
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990c0e33-f8cf-467e-8c4c-16df7a414ca5
|
. Amarasekara Hon. Justice Kumudini Wickremasinghe Hon. Justice Mahinda Samayawardhena Counsel: Manohara De Silva, P.C. with Hirosh a Munasinghe for the Petitioner -Petitioner -Appellant. C.E. De Silva with Thilini Wickremasinghe for the Plaintiff - Respondent -Respondent. Written Submissions: By the Petitioner -Petitioner -Appellant on 04.01.2012 By the Plaintiff -Respondent -Respondent on 05.03
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sc_appeal_190_2011_ed.txt
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5e98f80a-a7ae-4d9b-bb81-0488868f7275
|
.2012 Argued on: 30.06.2023 Decided on: 07.03.2024 Samayawardhena, J. The petitioner -petitioner -appellant (appellant) filed this appeal against the judgment of the High Court of Civil Appeal of Gampaha dated 19.06.2009 , whereby the revision application filed by the appellant against the order of the District Court dated 13.09.2007 was dismissed
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sc_appeal_190_2011_ed.txt
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68fda6c0-dd7c-4769-87b6-1434eb766957
|
. By that order made after an inquiry , the District Court refused to substitute the appellant in place of the deceased 1st defendant. 3 SC/APPEAL/190/2011 The appellant stated in the revision application filed before the High Court that she had duly filed an appeal against the order of the District Court, and that appeal was pending in the same High Court
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sc_appeal_190_2011_ed.txt
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59ac54b0-0bb3-4345-aea7-097e9160654d
|
. The appellant filed the revision application primarily to stay the proceedings of the District Court and no other reason was given . The appellant repeated the said facts even before this Court. Let me reproduce paragraphs 18 -20 of the petition dated 17.06.2010 filed by the appellant seeking leave to appeal from this Court . 18
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sc_appeal_190_2011_ed.txt
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5ce349fa-8399-4c28-98bd-85aa7d566871
|
. At the inquiry, the petitioner ’s evidence was led and subsequently the parties tendered their written submissions as directed by Court. Thereafter the learned District Judge of Gampaha delivered order dated 13.09.2007 refusing the application of the petitioner to substitute in place of the original 1st defendant and also to vacate the ex parte judgment already entered. 19
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sc_appeal_190_2011_ed.txt
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3c6ad678-df00-4386-8082-bb92e18c46d7
|
. Being aggrieved by the order dated 13.09.2007, the petitioner duly filed an appeal against the same and the said appeal is still pending before the Provincial High Court of the Western Province holden in Gampaha. 20
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sc_appeal_190_2011_ed.txt
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d98c649d-dab4-4876-98a2-a4d2c1453ec3
|
. The petitioner states that as she would suffer grave and irreparable damage if writ is executed and she and her family are evicted from the premises in suit, she filed the above -styled application for revision dated 27.08.2008 in the Provincial High Court of the Western Province holden in Gampaha. The revision application was filed nearly one year after the impugned order of the District Court
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sc_appeal_190_2011_ed.txt
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967280cc-1122-4cf1-b7aa-eeb149dbc58b
|
. The reason given in the petition for the delay, namely that the appellant was seriously ill, was not accepted by the High Court. It was noted that despite the alleged serious illness, the appellant 4 SC/APPEAL/190/2011 had managed to file the appeal within time. The appellant was guilty of laches when she filed the revision application in the High Court
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sc_appeal_190_2011_ed.txt
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d91184ca-4e07-4ba4-9641-2c6217d3675d
|
. Even if the appellant filed the revision application without delay, i t is not a good practice to entertain revision applications to stay the proceedings in the D istrict Court while the appeal is admittedly pending in the same court. The law provide s for execution of writ pending appeal
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sc_appeal_190_2011_ed.txt
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