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Friday, 23 July 2010

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Terms of Agreement in Supreme Court Application No. 527/08 with Inspector General of Police before J.A.N. DE Silva Chief Justice, Balapatabandi Judge, Ratnayake Judge Terms of Settlement

The Inspector General of Police shall forthwith frame and issue formal rules under and in terms of Section 55 of the Police Ordinance as amended, duly approved by the Minister, for the purpose of inter alia, recognizing and protecting the right of an Attorney-at-Law to represent or protect the interest of his/her client at any Police Station, Police Head Quarters and or any other permanent unit, base, post or such like, that has been established by the Sri Lanka Police any where in the country, whether such client is a suspect or otherwise.

The inspector - General of Police shall forthwith cause the same to be also duly incorporated in the Departmental orders of the Sri Lanka Police.

A copy of the said approved rules, is annexed hereto marked 'A'.

The Inspector General of Police shall at all times implement and enforce the said rules issued under Section 55 of the Police Ordinance and copies of such rules shall be issued to the Officer in Charge of every Police Station, Head Quarters and /or any other permanent unit, base, post or such like that has been established by the Sri Lanka Police situated islandwide and it shall be the responsibility of such Officer in Charge to issue copies to every officer under his purview and command and to generally disseminate information with regard to the content and due and strict observance of such rules any where in the country.

There shall be established as provided for in the said rules, a special committee comprising of a senior officer of the Attorney General's Department not below the rank of Additional Solicitor General, who shall also be the ex-Officio Chairman of the said committee, the other members shall comprise of the President of the BAR Association of Sri Lanka, the Director Legal Sri Lanka Police and a serving member of the National Police Commission.

The said committee shall be charged with the function of monitoring and facilitating the due and proper observance of the above mentioned Police Rules and reporting any breaches thereof to the Inspector General of Police and generally, to do all such acts that shall serve to promote and foster better relations between the members of the legal profession of Sri Lanka and members of the Sri Lanka Police.

Such committee shall also be entitled to make recommendations and report to the Inspector General of Police, the Attorney General and the National Police Commission, as the case may be, with regard to any breach of such rules and in respect of the proceedings that should be launched thereon, against the officer in question. The meetings of the said committee shall be convened with reasonable regularity by the Chairman of the said committee and in addition thereto, in the event of a request being made by any one or more members of the said committee, as the case may be.

The first Respondent shall tender an apology in open court to the petitioner.

The first Respondent undertakes to make a voluntary contribution of Rs 5,000 to the Charity called and named, Api Wenuwen Api Ranawiru fund within a period of seven days from the date hereof, in view of the foregoing, the Petitioner would withdraw the civil action against the 1st Respondent in the District Court of Mount Lavinia, bearing No. 6297/09/M.

In view of all the foregoing conditions, the parties respectfully invite your Loardship's Court to make formal order terminating the proceedings.


Questions and Answers

District Electoral Register

Question: This is in response to the article appearing in the Daily News of 12.03.2010 requesting readers to ask questions regarding all matters rendered by the Divisional Secretariats. According to my ID I am a resident of the Galle District. My name appears in Galle District Electoral Register.

For my convenience I reside at my wife's place in the Kalutara District to travel to Colombo to attend to my duty. During that time I used my Kalutara address. After my retirement I drew my pension from Kalutara District Secretariat to the same address. I drew my pension monthly through my bank account at Kalutara. But I am not registered in the Electoral Register at the Kalutara District.

From December 2008 Kalutara District Secretary started to send a form to be filled and submitted through the Grama Niladari of the area. For this year also the Kalutara DS sent the form. When I submitted it to the GS of the area he is reluctant to submit it to the DS Kalutara, though I am registered under the Galle Electoral District I am residing here from 1985. I still have no problem in collecting my pension from Kalutara DS.

Can the DS ask for a form like this? If it is a legal entity what will happen to me if the GS refused to submit the form.

Can I register with the Kalutara District also? If so can the GS of the area in the Kalutara District do the registration. I have seen most of the voters' names appearing in more than one Electoral District of the respective Electoral Registers of 2008 and after that.

Answer: You can register only in one place. Either Galle or Kalutara but you must give your address in Galle as your earlier registered address and you should not submit the form from Galle. Explain to the GS that in future you will only register in Kalutara. If you need to amend the identity card you can do it under the Registration of Persons Act. Please meet your Grama Niladari to proceed with the action to change the identity card.


Criminal cases

Question: Can your Legal Aid Commission appear for accused in Criminal cases?

Answer: Yes, the Legal Aid Commission is now providing free legal aid for criminal cases. If you want to have free legal aid for your criminal cases you can visit one of our legal aid centres in islandwide.


W & OP matter

Question: My brother was working in a Government Department and was contributing to the W & OP Fund. He has a 14 year old disabled child. While my brother was in employment, he passed away. Thereafter his wife got his W & OP Fund but she never maintained her child. She is having another relationship with a man but they are not married. One of the aunties of the child looks after the child.

Please let me know if there is any provision to get the W& OP to the child? Citizen

Answer: Under the pension Minutes and Circulars, the Pension Director has the discretionary power to handle situations of this nature. Normally W& OP Funds goes to the spouse after his / her death. It is only after the death of both parents, the W &OP Funds go to the children after fulfilling the required conditions.

Regarding your matter, you can request the W &OP Fund to the child from the Pension Director together with a letter explaining the real situation of the child. The Pension Director can thereafter use his discretion to transfer the W& OP Fund to the child. He can directly transfer the money to the child.

If you need further assistance or clarification in this regard, you may call over at our Head Office at No.129, Hulftsdorp Street, High Court Complex, Colombo 12.


Amending marriage certificate

Question: In my Marriage Certificate my age has been mentioned as 20 years. We got married in 1992. But at that time my real age was 17 years. How do I amend my Marriage Certificate? In my Birth Certificate and National Identity Card my date of birth has been correctly stated. Please advice me.

Answer: If you want to amend your Marriage Certificate you have to file a case in the District Court citing the Registrar and the Registrar-General as Respondents. If you need further advice you can contact one of our legal aid centres islandwide.


Is it necessary to file case to amend Birth Certificate?

Question: My friend uses the name Mucho Calor Pathiraja in his Marriage Certificate, in his children's Birth Certificates and in his letters of employment during the last 10 years. However, in his Birth Certificate his name appears as Inteligentes Pathiraja.

He wants to change his name in his Birth Certificate to match his marriage certificate. Is it necessary to file a case or is there anyway to resolve this matter without going to courts?

Answer: Yes, your friend can amend his Birth Certificate. He has to obtain the B9 Application Form from the Divisional Secretary's Office. The duly filled application form along with an affidavit and the documents (at least three documents) to prove that he is using the name Mucho Calor Pathiraja together with his Birth Certificate and hand over these documents to the Registrar of Birth and Deaths, Divisional Secretary's Office where he was born. The Registrar will thereafter amend 'Cage 13' appearing in his Birth Certificate.


Changing name of former owner in all Municipal Council documents

Question: I have bought a property in Negambo. But the name of the ownership is still unchanged in the bills issued by the Electricity Board, Water Supply Board and Negombo Municipal Council.

Please advise me on how to change the name of former owner in all documents of the Municipal Council?

Answer: You have to go to the Negombo Municipal Council and obtain an ATD Form from the Valuation Section. Thereafter you have to meet the lawyer to fill the said form and hand it over to the Valuation Section at the Negombo Municipal Council with a copy of the Deed and the plan. Once the completed form is given, the Negambo Municipal Council will be in a position to change the name of the former owner.


Procedure to adopt child

Question: My friend has decided to adopt a child who is an orphan. My friend and her husband have been married for 10 years and have been unable to have children. Therefore, they have decided to adopt the child who is an orphan. Please let me know the legal procedure that I have to follow to adopt this child.

Answer: Every application for adoption must be in conformity with the provisions of the Adoption of Children's Ordinance (Chapter 61), as amended. Probation and Child Care Services Department may, as needed, amend the adoption procedures.

Eligibility requirements for adoptive parents: Under Sri Lankan law, adoption by single persons is not permitted. An application for adoption must be made jointly by a husband and wife.

Each of the applicants must be over the age of 25 years and not less than 21 years older than the child for whom the application is made. Both husband and wife must be present during the Court proceedings unless the Court waives personal appearances on the grounds of ill-health.

No person shall on or after the appointed date, take or receive into his/her care, custody or control any child of whom he is not the natural parent, unless he has been registered by an authorized officer as the custodian of that child.

An authorized officer shall not register any person under this section as the custodian of any child -

(a) Unless application is made to him in the prescribed form by the applicant for such registration.

(b) Unless he considers it expedient, after such inquiry as he may deem necessary, in the interests of the child that the child should be placed in the care, custody and control of the applicant.

(c) Unless the parents of the child consent, or in the case of an illegitimate child, the mother consents, in the presence of the officer, to deliver the child into the care, custody and control of the applicant; and

(d) Where the child is over ten years of age, unless such child consents to such registration.

Provided however, that an authorized officer may dispense with the consent of any person whose consent is required if the officer is satisfied that the person whose consent is to be dispensed with is dead or cannot be found, or has abandoned, deserted or neglected the child, or has been adjudged by a competent Court to be of unsound mind.

An authorized officer shall, upon the registration by him of any person as the custodian of a child, issue to that person a certificate of registration in the prescribed form and transmit a copy of the certificate to the Government Agent of the district in which that person is resident.

If you wish to have further details, please contact one of our legal aid centres established islandwide.


Recovering money on returned cheques

Question: One of my friends gave me a dated cheque. On the due date I deposited the said cheque in my Bank Account. The cheque was returned due to insufficient funds. On the face of the cheque there is an endorsement to say 'refer to drawer'. What shall I do to recover my money?

Answer: According to your question, you have two causes of action - namely criminal and civil. However, before proceeding to file action, you have to inform the drawer by letter of demand that his cheque has been returned by the Bank due to insufficient funds and request him to settle the amount due to you within 14 days of the receipt of the said letter. If he fails to settle the same, then you can proceed to file a civil action against him in the District Court by summary procedure for the recovery of the money due to you.

Furthermore, you can make a complaint to the Police regarding the matter and file a criminal action in the Magistrate's Court on the ground of cheating.


Causing nuisance to others

Question: My house and coconut garden of 15 perches are situated adjoining a big rubber land and the branches of the rubber trees along the boundary are overlapping the coconut trees preventing growth. About two trees are close to my house. I complained about this to the Pradeshiya Sabha sometime back.

They cut only the branches of the tree close to the house, but these are grown again causing the same obstruction. The Pradeshiya Sabha officer told me that he had no authority to cut the other trees. The coconut trees are about ten years old but, do not bear fruits though I manure the trees. I am reluctant to go to Courts as I have to spend money and time making a new enemy. I will be forced to take this course of action if there is no alternative.

Please instruct me as to what action I should take through your Daily News Legal Aid Page to overcome this nuisance.

Answer: Every person is under a common law duty to use his property in such a way as not to cause a nuisance to anyone else.

In your case you have to first discuss your problem with the owner as to whether he will cut the branches of the trees himself or whether you will do it.

Otherwise, you can make a complaint to the Grama Sevaka. If the matter cannot be settled through the Grama Sevaka, you can make a complaint to the Police. On your complaint, the Police will refer your matter to the Mediation Board. If no settlement is possible through the Mediation Board, you can seek relief from the Courts.

We would however like to advice you to settle this matter amicably as otherwise you may have to incur unnecessary legal expenses.


Telephone bill

Question: Kindly let me know if it's in order for Sri Lanka Telecom to charge an Additional Fee of Rs 128.74 as 'Detailed Bill' each month for customers who wish to see the breakdown of their call summary?

Basically isn't it part of the SLT's obligation to provide all subscribers with complete information as to the outgoing calls they make?

Just as much as other Telco operators like Dialog and Suntel who regularly provide their subscribers with Detailed Bills with their monthly invoices at 'no extra cost', isn't SLT also supposed to follow suit?

Isn't it a mandatory requirement as per Consumer Protection Act that it's a legal right of any consumer to receive a detailed description of their purchases or transactions free of charge?

Answer: The answer to this question is entirely contingent upon the type of service agreement you have signed onto with your mobile services provider. If in the agreement that you have signed there is a clause indicating that there will not be an additional fee for a break down summary and the mobile service provider subsequently dishonours this agreement, then they will be in breach of contract - a cause of action that can be remedied by the Courts.

Further, individuals, rather than proceeding directly to Court, can go to the Telecommunications Regulatory Commission Director General. If there is a sufficient complaint, the Telecommunications Regulatory Commission will take action on your behalf. Their contact details are as follows:

Director General, Consumer Related Division, Telecommunications Regulatory Commission No. 276, Elvitigala Mawatha, Colombo 08, WP

Sri Lanka

dgtr@trc.gov.lk

94 112 689345

http://www.trc.gov.lk

Hot line No 1900

If there is indeed a violation, the TRC has the authority to take your cause up in the Courts.

However, if there is no such agreement regarding additional fees for a break down summary, then you will not have any justifiable issue to bring to the Courts.


Change of surname in Birth Certificate

Question: Please let me know how to alter my elder son's surname and his father's details in the Birth Certificate as per my second marriage husband's details. Is this possible?

Answer: The father's details in your son's Birth Certificate cannot be altered. Only the child's surname inherited from the first father can be substituted. However, your son's name can be changed under the Birth and Death Registration Ordinance under Section 27A. Such change of name will be mentioned in cage 13 of the Birth Certificate. In this regard you may please contact the Divisional Secretariat Office where your child's Birth Certificate is registered.


Giving succession for deed given under Land Development Ordinance

Question: I am a owner of the State land. I want to know whether how succession would take place for a land for which ownership has been by a State Grant?

Answer: Ownership to a land under a deed by a State Grant has to be given only to the spouse or children or blood relations. If you wish the land can be apportioned among the children within restrictions contained in the said Grant. If necessary, ownership can be given to husband or wife. Ownership can be also given to own blood relations. In case succession was not nominated, it is your right to decide who should be nominated as your successor. You can nominate anyone whether your wife, child or blood relations as a successor.

On the occasion of your death, prior to such nomination, the final decision will be taken by the Land Commissioner-General. On such occasion if you have both male and female children, preference would be given to the male children. If you have several male children, succession will be given to the eldest son. If you have only girls, succession will be given to the eldest daughter. The law does not permit to nominate minors as successor.

To cancel the nomination, please obtain three new forms and perfect/fill them as before. Get the new nomination papers attested and registered at the Land Registry as before. The new nomination is now in place and the earlier nomination thus cancelled.

If you need any information please contact:

Land Commissioner General

Land Commissioner General's Department,

No 7, Gregory's Avenue,

Colombo 7.

Telephone No : 011-2677166

Fax : 011-2684051


Copy of Marriage Certificate

Question: I am a Sri Lankan. I met a Sri Lankan lady in France and later got married at the Sri Lankan Embassy in France. In our Marriage Certificate, my name has been mentioned incorrectly. How I get it corrected? Please advise us. I also would like to know whether we could get a certified copy of our Marriage Certificate.

Answer: You have to file a case in the District Court of Colombo in Sri Lanka. You can cite the Registrar of the Central Record Room and the Registrar-General as Respondents. If you want to get a certified copy of your Marriage Certificate you can get it from the Central Record Room, Maligawatte, Colombo 10. Otherwise you can fill an application and send it to the above address together with a self addressed stamped envelope. Then they will post it to you.


Registrar General's Department - Zonal Office

Question: Please let me know the respective Zonal Office of the Registrar-General's Department.

Ramesh, Gangodawila

Answer: 01. Head Office - Registrar General's Department,

No: 234/A3, Denzil Kobbekaduwa Mawatha,

Battaramulla, Sri Lanka.

Tel: 2889488/2889489

Fax: 2889491 /2889492

Email: rgd@sltnet.lk

02. Room Central Record Room, Registrar General's Department, Maligawatta, Colombo 10. 0112329773

03. Central Zonal Office, Registrar General's Department, Kandy. 081-2224470.

04. North Zonal Office Land and District Registry, Registrar General's Department, Jaffna. 021-2222475.

05. Eastern Zonal Office, Registrar General's Department, Batticaloa. 065-2222227.

06. South Zonal Office, Registrar General's Department, Galle 091-2224581.

07. Western Zonal Office, Registrar General's Department, Delkanda 0112815316.

08. Uva Sabaragamu Zonal Office, Registrar General's Department, Ratnapura 045-2222238.

09. North Western Zonal Office, Registrar General's Department, Kurunegala 037-2228830.


[ Maternity leave in case of twins]

Question :My sister is working in a private firm. She is 30 years old and about to have her first confinement. Her doctor after doing a scan informed her that she will give birth to twins. Please let me know;

(a) Will she be able to obtain double the maternity leave since she will be having two children?

(b) How many days of maternity leave is she entitled to for her second confinement?

Answer: In respect of the birth of the first child, a female employee is entitled to 84 working days as maternity leave provided the confinement results in the birth of a 'live' child.

In respect of the birth of the second child, she will be entitled to 84 working days on full pay.

For the third or subsequent confinement she will qualify for only 42 working days on full pay.

If an employee has lost a child and at the time of the third confinement she has only one child, she could qualify for 84 working days of maternity leave for the third confinement.

If an employee who on her first confinement gives birth to twins she is entitled to 84 working days as maternity leave and not double the leave. Though it is not expressly stated in the Law for the second confinement she will be entitled to 42 days as maternity leave on the basis she already has two living children. What is material is the number of children at the time of the confinement and not the number of previous confinements.

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