RANABAHUGE CHITHRASIRI VS. NATIONAL GEM AND JEWELLERY AUTHORITY - HON. MAHINDA SAMAYAWARDHENA, J

• Jurisdiction: Sri Lanka
• Case Number: 2018SCOA38C2016Y
• Citation: 2018SCOA38C2016Y
• Date: 31 May 2018
• Court: Court of Appeal (Sri Lanka)
• Type of Document: Unreported judgment

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Ranabahuge Chithrasiri

Vs.

National Gem and Jewellery Authority - Hon. Mahinda Samayawardhena, J

CASE NO: CA/38/2016/WRIT

1. Ranabahuge Chithrasiri,
Ambagahawatta,
Kalawana.

2. Udakanda Kankanamalage Karunarathna,
Ambagahawatta,
Kalawana.

Petitioners

Vs

1. National Gem and Jewellery Authority,
No.25, Galle Face Terrace,
Colombo 3.
And 7 Others

Respondents

Before: Mahinda Samayawardhena, J.

Counsel: Nuwan Bopage for the Petitioners.

Indula Ratnayake, S.C., for the 1st-5th and 7th Respondents.

Nandapala Wickramasuriya for the 6th Respondent.

Argued on : 18.05.2018

Decided on: 31.05.2018

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Samayawardhena, J.

The Petitioners filed this application seeking to quash the decision of the 1st Respondent National Gem and Jewellery Authority to issue the Gem Mining License to the 6th Respondent in respect of the land known as Dodamgahapelessa. Pending determination of the Petitioners' application, the validity periods of the 1st and 2nd licences lapsed and the 3rd licence (X21) has now been issued.

Before the 1st licence was issued, admittedly, a formal inquiry has been held by the 1st Respondent with the participation of the Applicant 6th Respondent and the opposing Petitioners. It is not the complaint of the Petitioners that the inquiry was conducted in an unreasonable or unlawful manner per se. Their complaint is that the decision taken after the inquiry to issue the Gem Mining Licence to the 6th Respondent is perverse.

There is no dispute that National Gem and Jewellery Authority Act, No. 50 of 1993 repealed the previous Act, namely, State Gem Corporation Act, No. 13 of 1971, but section 54 of the new Act provided inter alia that every rule and by-law made under the repealed Act and was in force on the day immediately preceding the appointed date and which are not inconsistent with the provisions of new Act shall be deemed to be rules and by-laws made under the new Act.

The by-laws under the name of "State Gem Corporation by-laws, No. 1 of 1971" made in terms of section 21 of the repealed Act and published in the Government Gazette No. 14, 989/8 dated 23.12.1971 (X5), and also the circular dated 29.06.2007 issued under the hand of the Chairman of the 1st Respondent Authority

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(X6) spell out the procedure to be adopted by the officials concerned in issuing Gemming Licences.

No. 8(2) of the aforesaid by-laws reads as follows:

No licence shall be granted to any person unless-

a) he himself owns the land; or

b) he has obtained the consent of so many of other owners as to ensure that the applicant and such other consenting owners together own at least two-thirds of the land in respect of which the application has been made.

This is reiterated in the circular X6 as well (vide in particular page 3 thereof under "Special Matters to be mindful at the Inquiry") where it is stressed that unless two-thirds share is established no licence shall be issued.

Admittedly the Applicant 6th Respondent is not the owner of the land. He has taken the land on lease for the sole purpose of gem mining from certain individuals claiming to be the co-owners of more than two-thirds of the land. According to the circular X6, the Applicant need not necessarily be the owner of the land, and a lessee can also apply for a licence provided the other conditions are fulfilled. That is not an issue before this Court.

Both parties do not have paper title to the land (except some very recent Deeds) and they basically claim title on inheritance.

According to the pedigree of the 6th Respondent unfolded at the inquiry, the original owner of the land Dodamgahapelessa was N.V. Appuhamy and the 6th Respondent took leasehold rights to the land from the heirs of N.V. Appuhamy.

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However it is interesting to note that the 6th Respondent does not explain the most important question of how N.V.Appuhamy became the original owner of the land Dodamgahapelessa.

At the inquiry the 6th Respondent seems to have produced the pedigree accepted by the District Court in a former partition case No. 9390/P filed to partition a totally different land named as Mahagederawatta where N.V. Appuhamy was accepted as the original owner. However that does not prove even remotely that the same N.V. Appuhamy who owned Mahagederawatta owned Dodamgahapelessa (which is the land in respect of which Gem Mining Licence was sought) as well.

When that central question was raised at the argument before this Court, the answer of learned counsel for the 6th Respondent was that the said N.V. Appuhamy figures in the pedigree of the Petitioners as well. In order to substantiate that position, the attention of the Court was drawn to paragraph 2 of the plaint of the partition action (X2) filed by the Petitioners subsequent to the inquiry before the 1st Respondent Authority.

The position of the Petitioners at the inquiry as well as in X2 had been that the said N.V. Appuhamy is one of the three original owners of the land and not the sole owner-vide paragraph 8 of the written submissions of the Petitioners tendered at the inquiry marked X10(i) and paragraph 2 of X2. If that position is accepted by the 6th Respondent, he cannot claim rights for two-thirds of the land from the heirs of N.V. Appuhamy.

In short, both parties have tendered two different pedigrees at the inquiry, and I would hasten to add that the Petitioners have tendered different pedigrees at different times.

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In the decision X11 (also marked as 1R8) taken after the inquiry, the Chairman of the 1st Respondent Authority candidly admits that contradictory positions have been taken up by both parties regarding original owners of the land Dodamgahapelessa. Nevertheless, he says that despite those contradictory positions as to original owners, (a) as the Applicant 6th Respondent has established his pedigree through the partition action No. 9390/P and (b) the Petitioners claim rights only for undivided one-thirds of the land, the 1st Respondent Authority decides to issue the licence to the 6th Respondent (subject to the 6th Respondent depositing one-thirds share of the ground share of the value of all gems found on the land).

I have no hesitation to conclude that the 1st Respondent Authority manifestly erred on facts when it came to the crucial conclusion that the 6th Respondent's chain of title was proved by the pedigree established in the former...