BILLIMORIA v.

MINISTER OF LANDS AND LAND

AND OTHERS

SUPREME COURT

SAMARAKOON, C.J.,
SAMERAWICKREMA, J. AND
WANASUNDERA, J.

S.C. APPEAL NO. 1/79

MARCH 28, 29, 1979.

Stay of proceedings - Application for Writs of Certiorari and Prohibition in respect of acquisition
proceedings - Order for stay made by Court of Appeal - Stay order set aside by another Bench of the same
Court on the ground that it was made per incuriam - Appeal to Supreme Court -Interpretation Ordinance
(Cap. 2) as amended by Law No. 29 of 1974, section 21.

Constitution of Sri Lanka, Article 125 - Requirement that "any question relating to the interpretation of the
Constitution" should be referred to Supreme Court - When Article 125 applicable.

The petitioner was the tenant of premises which the respondents sought to acquire under the
Land Acquisition Act. Two days prior to the date of taking possession of the land the petitioner
made application to the Court of Appeal for orders in the nature of writs of certiorari and
prohibition. A bench of two judges made order ex-party staying all acquisition proceedings
pending the hearing and disposal of the petitioner's application and issuing notice on the
respondents. Another bench of two judges took up the matter of the stay order as a "matter of
urgency" and set aside the stay order on the ground that it had been made per incuriam in
derogation of the provisions of section 24 of the Interpretation Ordinance. The petitioner obtained
special leave to appeal to the Supreme Court, from this order.

Held :
The stay order was made after consideration and was therefore 'not made per incuriam. Whether
section 24 of the Interpretation Ordinance applied to stay orders or not was a moot point, which,
even if decided wrongly would not make the order an order per incur am.

A stay order is an interim order and not one which finally decides the case. This must be borne in
mind when applying the principles of the per incur am rule. It would not be correct to judge such
orders in the same strict manner as a final order. The interests of justice required that a stay
order be made as an interim measure.

Held further :

Although Article 125 of the Constitution requires any dispute as to the interpretation of the
Constitution to be referred to the Supreme Court it must be construed as dealing only with cases
where the interpretation of the Constitution is drawn into the actual dispute. The mere reliance on
a Constitutional provision by a party need not necessarily involve the question of the
interpretation of the Constitution.

Observed that while it was competent for one Bench to set aside an order made per incuriam by
another Bench of the same Court, it has been the practice for parties or

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their Counsel to bring the error to the notice of the Judge or Judges who made the order so that
he or they can correct the error.

Cases referred to

(1) Weerasooriya v. Sedambaram Chetty, 8 C.W.R. 238.

(2) Alasupillai v. Yavetpillai and another, (1949), 39 C.L.W. 107.

(3) Huddersfield Police Authority v. Watson, (1947) 2 All E. R. 193.

(4) Morrelle v. Wakeling, (1955) 2 W.L.R. 673; (1955) 1 All E. R. 708; (1955) 2 HB. 379.

(5) Young v. Bristol Aeroplane Co. Ltd, (1944) 2 All ER. 293, (1944) KB. 718, 171 L. T. 113.

(6) Broome v. Cassell & Co. Ltd., (1971) 2 All E.R. 187, (1971) 2 W.L.R. 853.
APPEAL from an order of the Court of Appeal.

H. L. de Silva with Miss M. Seneviratne, for the petitioner.

Shiva Pasupathi, Attorney-General, with G. P. S. de Silva. Deputy Solicitor Genera/ and D. C.

Mark Fernando with R. L. Perera, for the 2nd respondent.

Cur. adv. vult.

April 20, 1979.

SAMARAKOON, C. J.

The petitioner is the tenant of premises bearing assessment No. 27, Pedris Road, Colombo 3.
These premises are subject to the provisions of the Rent Act. No. 7 of 1972. The landlord of the
premises is one R. Coomaraswamy. On the 17th October, 1977, the landlord instituted action No.
2579/RE in the District Court of Colombo praying inter alia for the ejectment of the petitioner as
he required the premises for his own use and occupation. This action is pending in the District
Court. On 9th November, 1978, the 2nd respondent requested the 1st respondent to acquire the
said premises "for the purpose of housing a part of the organisation coming within the purview" of
his Ministry (1 R1). By a notice dated 24.11.1978 in accordance with the provisions of Section 4
of the Land Acquisition Act (Cap. 460) (P3), the District Land Officer informed the petitioner that
as the said land was required for a public purpose the Government intended to acquire the said
land. The petitioner states that by a notice dated 12.12.78. the District Land Officer informed the
petitioner that in pursuance of an order made by the 1st respondent in terms of section 38(a) of
the Land Acquisition Act possession of the land would be taken on behalf of the 3rd respondent
at 10.30 a.m. on 15th December, 1978. On the 13th December, 1978, the petitioner filed a
petition in the Court of Appeal praying for a writ of certiorari quashing the order of possession and
for a writ of prohibition against the 3rd respondent preventing him from taking possession. This
application appears to

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have been supported before a Bench of two Judges on the same day and that Bench made order
staying all proceedings pending the hearing and disposal of the petitioner's application in the
Court of Appeal. Notice was ordered on the respondents returnable on 20th December.
Paragraph 8 of the petition filed in this Court sets out the facts as they occurred on that date
culminating in the stay order. It is as follows:-
"8: At the hearing before the Court of Appeal on 13th December, which was heard before the
Hon. Justice Ratwatte and Honourable Justice Atukorale the Court drew attention of Counsel to
section 24 of the Interpretation (Amendment) Law, No. 29 of 1974 and Counsel (Miss M.
Seneviratne) who appeared for the petitioner at the stage stated that this provision of law did not
apply to the application before Court. The Court then having considered the matter issued notice
of the petitioner's application on the respondent returnable on 20.12.1978 and also made order
staying further proceedings pending the -petitioner's application for Orders in the nature of Writs
of Certiorari and Prohibition."

The 1st respondent filed affidavit on the 20th December, 1978, pleading inter alia:-

(a) that the stay order made on 13.12.78 was "made per incuriam in derogation of the
provisions of section 24 of the Interpretation Ordinance as amended by Act No. 18 of 1973 and
Law No. 29 of 1974",

(b) that the Republic of Sri Lanka was the owner of the premises and therefore the
application could not be maintained, and

(c) that "no certiorari or prohibition lie (sic) in respect of the impugned proceedings".

The matter was taken up for hearing by two Judges of the Court of Appeal who were not the
Judges that made the stay order. These two Judges decided to hear the parties "only on the
question whether (this) Court acted per incuriam in issuing the stay order, as a matter of
urgency". Both Judges have come to the conclusion that the "stay order was made per incuriam
and therefore made order that it be quashed. Cader, J: expressed the opinion that a

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stay order "is an incidental measure pending the disposal of the main matter before Court. In this
case it was incidental to the granting of the two Writs of Certiorari and Prohibition". He then came
to a conclusion as follows:-

"If, for instance, these two writs would be granted, substantial loss would have been caused to
the petitioner if he was thrown out of the premises for a period of time until the writs were allowed.
Therefore, I am of the view that it should be taken into consideration along with the main dispute,
namely, whether writs should issue or not."
Thereafter he quoted the provisions of section 24 of the Interpretation Ordinance (as amended)
and therefore held that no stay order could issue against the respondents. He quashed the stay
order as he came to the conclusion that it had been issued per incuriam. This last order appears
to be somewhat in conflict with his earlier conclusion. However the long and short of this
reasoning is that the stay order is one made per incuriam because it contravenes the express
provisions of section 24 of the Interpretation Ordinance. From this order the petitioner sought
special leave to appeal to this Court and we granted him leave.

The only question we need decide in this appeal is whether the stay order was made per incuriam
since the order of the Court of Appeal has reserved all other "matters involved" for further
hearing. In considering this question we must bear in mind that a stay order is an incidental order
made in the exercise of inherent or implied powers of Court. Without such power the court's final
orders in most cases would if the petitioner is successful be rendered nugatory and the aggrieved
party will be left holding an empty decree worthless of all purposes. Vide Bertram C.J. in
Weerasooriya v. Sedambaram Chetty (1).

Cader, J. himself considered the stay order in this case in the same light.

The Attorney-General contended that the stay order was one made per incuriam. He cited the
case of Alasupillai v. Yavetipillai and another (2) in which Basnayake, J. following the case of
Huddersfield Police Authority v. Watson (3) stated: "A decision per incuriam is one given when a
case or a statute has not been brought to the attention for the Court and it has given the decision

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in ignorance or forgetfulness of the existence of that case or statute." This statement is by no

"As a general rule the only cases in which decisions should be held to have been given per
incuriam are those of decisions given in ignorance or forgetfulness of. some inconsistent
statutory provision or of some authority binding on the court concerned: so that in such cases
some part of the decision or some step in the reasoning on which it is based is found, on that
account, to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not
strictly within it which can properly be held to have been decided per incuriam must, in our
judgment, consistently with the stare decisis rule which is an essential feature of our law, be in
the language of Lord Greene M.R., of the rarest occurrence."

In Young v. Bristol Aeroplane Co. Ltd. (5) at 300, Greene, M. R. pointed particularly to two
classes of decisions per incuriam:-
(i)a decision in ignorance of a previous decision of its own Court or of a Court of co-ordinate
jurisdiction covering the case, and

(ii)a decision in ignorance of a decision of a higher Court covering the case which binds the lower
Court.

Lord Denning, M. R. was inclined to add another category of decisions - one where a long
standing rule of the common law has been disregarded because the Court did not have the
benefit of a full argument before it rejected the common law. Broome v. Cassell & Co. Ltd. (6) at
199. In applying these principles one must bear in mind that in this case we are dealing with an
interim order and not an order which finally decided the case. It is clear from the petitioner's
statement (not contradicted by the respondents) that the Court itself referred Counsel for the
petitioner to the provisions - of section 24 of the Interpretation Ordinance. It could not therefore be
said that the stay order was made in ignorance of its existence. Counsel's position appears to
have been that this provision was not applicable to the dispute before the Court. There was
nothing in the section which expressly referred interim orders. It is clear therefore that the Court
had to decide whether writs could issue or not and this could not be decided without notice
being first

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issued on the respondents and affording them an opportunity of being heard. All this would have
taken considerable time. The interests of justice therefore required that a stay order be made as
an interim measure. It would not be correct to judge such orders in the same strict manner as a
final order. Interim orders by their very nature must depend a great deal on a Judge's opinion as
to the necessity for interim action. The Attorney-General stated that had the Court the benefit of a
full argument it would not have made the stay order. This kind of argument gives little credit to the
Judges and undue credit to the pleader. Besides, very little argument and persuasion is
necessary for a stay order. The Attorney-General contended that section 24 applied to stay
orders as well. This is a moot point. The Judges who made the stay order appeared to have
thought otherwise. They may be right or they may be wrong. Assuming they are wrong - how
does that make it an order per incuriam? If the order appealed against is allowed to stand it will
open the flood gates for one Bench of the Court that disagrees with another's interpretation,
made after due consideration, to assume a jurisdiction that it does not have. Lam of opinion that
the stay order in question was made after consideration and was not one made per incuriam.

The Attorney-General contended that it was competent for one Court to set aside an order made
per incuriam by another Bench of the same Court. Generally this would be so. But it has been the
practice of our Courts for parties or their Counsel to bring the error to the notice of the Judge or
Judges who made the order so that he or they can correct the order. Indeed this has always been
a matter of courtesy between Bench and Bar and I regret to note that it has not been done in this
instance nor has the second Court thought it fit to direct Counsel to make the application to the
Court that made the stay order.

Counsel have invited us to make order on constitutional disputes. It appears from the order of the
Court of Appeal that some dispute as to the interpretation of the Constitution did arise in the
course of the argument. Article 125 of the Constitution requires any dispute on the interpretation
of the Constitution to be referred to this Court. What is contemplated in Article 125 is "any
question relating to the interpretation of the Constitution" arising in the course of legal
proceedings. This presupposes that in the determination of a real issue or controversy between
the parties, in any adversary proceedings between them, there must arise the

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need for an interpretation of the provisions of the Constitution. The mere reliance on a
constitutional provision by a party need not necessarily involve the question of the interpretation
of the Constitution. There must be a dispute on interpretation between contending parties. It
would appear that Article 125 is so circumscribed that it must be construed as dealing only with
cases where the interpretation of the Constitution is drawn into the actual dispute and such
question is raised directly as an issue between the parties or impinges on an issue and forms part
of the case of one party, opposed by the other, and which the Court must of necessity decide in
resolving that issue.

No such reference has-been make to this Court. As the case has now to go back to the Court of
Appeal we make no order on the submissions made by Counsel on the provisions of Articles 140,
143 and 168. The order of the Court of Appeal delivered on 8.1.79 is set aside and the case will
now go back for further hearing. The Appellant will be entitled to costs.

SAMERAWICKREMA, J.- I agree.

WANASUNDERA, J. - I agree.

Appeal allowed.