Sri Lanka Law Reports
[1994} 2 Sri L.R.
v.HON. GAMINI DISSANAYAKE. AND OTHERS
COURT OF APPEALANANDA GRERO, J.
C.A. APPLICATION NO. 231/88DECEMBER 14,1992.
Certiorari – Acquisition of land – Compliance with sections 2, 4, 5 and 38(a) of theLand Acquisition Act – Mala tides – Proof.
Where the acquisition of a land for an urgent public purpose has proceeded interms of sections 2, 3. 5 and 38(a). the publication of the declaration undersection 5(2) of the Land Acquisition Act, renders the declaration conclusive thatthe land is required for a public purpose. The question whether the land should orshould not be acquired is one of policy to be determined by the Ministerconcerned and even if that question may have been wrongly decided, subsection(2) of section 5 renders the position one which cannot be questioned in theCourts.
Where mala tides is alleged on the ground that the petitioner was a supporter ofthe Sri Lanka Freedom Party (SLFP) and found employment at the Department ofCensus and Statistics by the SLFP. the bare averment would not make theacquisition mala fide. When mala fides is alleged against the repository of apower, it must be expressly pleaded and properly particularised. Here this hasnot been done. The petitioner has failed to enumerate in detail the part played bythe 3rd respondent (Member of Parliament) to influence the Minister to acquirethis land owing to political reasons or rivalry.
Cases referred to:
Gunasekera v. Minister of Lands and Agriculture and Others 65 NLR 119, 120.
Femandopulle v. Minister of Lands and Agriculture 79(2) NLR, 116,117.
Muthumale v. Dissanayake, C.A. Application No. 1373/85 and C.A. 113/86 andC.A. 33/86 C.A. Minutes of 02.09.1986.
A. M. Surasena v. Gamini Dissanayake and two others C.A. Application No.593/83 – C, A. Minutes 02,12.1986.
CA Gunasinghe v. Hon. Gamini Dissanayake, end Others (Ananda Grero, J.)133
APPLICATION for a writ of Certiorari.
H. M. P. Herath for petitioner.
K. Sripavan, S.S.C. for respondents.
Cur. adv. vult
March 05. 1993.
ANANDA GRERO. <1.
This is an application made by the petitioner to this Court, seekingas relief the issue of a Writ of Certiorari to quash the order of the 4threspondent (as stated in the prayer (b) to the petition) dated 4.5.89.The 1st and the 4th respondents filed their affidavits and for theaverments contained in them stated, that the petitioner is not entitledto the relief claimed by him. In addition to the said affidavits therespondents filed affidavits from the Chief Education Officer,Kuliyapitiya, and the Principal of Goda Kurugama Muslim Vidyalaya,KuMyapitiya.
The land which is the subject-matter of this application is ownedby the petitioner by virtue of deed No. 6539 of 1.7.82, attested byA. Siri Prematilake, Notary Public marked and produced as "B".
The petition of the petitioner reveals, that the 1st respondent hadtaken steps under Section 2 of the Land Acquisition Act andthereafter steps were also taken under Section 4 of the said Act. Thepetitioner objected to the proposed acquisition and the ChiefEducation Officer who held an inquiry into such objectionsrecommended that an extent of one acre from the petitioner’s landshould be acquired. Thereafter, according to the petitioner by noticeunder Section 38(a) of the said Act, the 4th respondent informed himthat the possession of this land would be taken over on 17.3.88 at10.30 a.m. This notice is filed along with the petition marked T.Thereafter, the petitioner filed this application and sought that thesaid notice marked T (although he states it as an order in hispetition) be quashed by the issue of a Writ of Certiorari.
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It appears from the affidavit of the 1st respondent (Paragraph 7)that he was satisfied that the land in question is suitable to beacquired for a public purpose, i.e. for the development andexpansion of Godakurugama Arafa Muslim School. As this land wasurgently needed lor the development of the said School he had madeorder under Section 38 proviso (a) of the Land Acquisition Act anddirected the 4th respondent to take possession of the land on behalfof the State. The 1st respondent states that his decision to acquirethis land was not influenced by the 3rd respondent (M.P. of the area)or by political or any other consideration.
It was the contention of the learned Counsel for the petitioner thatthe order for acquisition of the petitioner's land is bad in law andmala fide. It appears from the material facts placed before this Courtby both parties, that necessary steps have been taken by the 1strespondent to acquire the land in question, according to theprovisions of Sections 2, 4 and 38(a) of the Land Acquisition Act.Even the 1st respondent had taken steps under Section 5(1) of theAct. Section 5(2) of the Act states that a declaration made undersubsection (1) in respect of any land … shall be conclusive evidencethat such land is needed for a public purpose.
The said Section 5(2) of the Act became the subject of discussionand interpretation by our Supreme Court and Court of Appeal fromtime to time.
In the case of Gunasekera v. Minister of Lands & Agriculture andOthers (,)H. N. G. Fernando, J. (as he then was) held at page 120 asfollows:-
“The consequence of the publication of that declaration is thatsubsection (2) of Section 5 operates to render the declarationconclusive evidence that the land was needed for a public purpose.The question whether the land should or should not be acquired isone of policy to be determined by the Minister concerned, and evenif that question may have been wrongly decided, subsection 2 ofSection 5 readers the position one which cannot be questioned in theCourts'.
CA Gunasinghe v. Hon. Gamini Dissanayake. and Others (Ananda Gram. J.)13S
Samarakoon C.J. in the case of Fernandopulle v. Minister of Landsand Agriculture (i), following the decision of H. N. G. Fernando, J.held, as follows:
"It is conclusive evidence that the land is required for a publicpurpose (Vide Section 51(2) of the Act) and therefore cannot becanvassed in a Court of law”. Such a provision expressly removes theright of a Court of Law to review the decision of the Minister.
The said view has been subsequently followed by the Court ofAppeal in Muthumale v. Dissanayake (31 and A. M. Surasena v.Gamini Dissanayake and Two others w.
In view of the decisions of the aforesaid cases, and also of thefact, that the 1st respondent had acted well within the ambit ofSections 2, 4, 5 and 38(a) of the Land Acquisition Act this Courtcannot agree with the contention of the learned Counsel for thepetitioner that this acquisition is bad in law.
With regard to the question of mala fide, the petitioner in hispetition states that this acquisition was done as he is a supporter ofthe Sri Lanka Freedom Party and also he found employment in theDepartment of Census and Statistics under the government of thesaid party. The 1st respondent in his affidavit has specifically statedthat his decision to acquire this land was not motivated by political orany other consideration. He had stated that the 3rd respondent didnot influence him to acquire this land. According to him acquisitionwas for an urgent public purpose. Simply stating that the petitioner isa supporter of a political party which the 3rd respondent is opposed,and that the petitioner was given employment in a governmentdepartment by the SLFP Government would not make the acquisitionmala fide. De Smith’s Judicial Review of Administrative Action atpage 336 it is stated that, “a Court will not in general entertainallegations of bad faith made against the repository of a power,unless bad faith has been expressly pleaded and properlyparticularised (i.e. enumerated in detail)". This Court is of the viewthat the petitioner has failed to enumerate in detail the part played bytiie 3rd respondent to influence the 1st respondent to acquire this
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11994] 2 Sri L.R.
land due to political reasons or rivalry. Further the petitioner has tailedto satisfy this Court that it was due to political reasons that the 1strespondent took steps to acquire this land.
In the case cited by the learned Counsel for the petitioner (1985AIR, at page 1625) the Supreme Court of India held that where poweris exercised for extraneous or irrelevant considerations or reasons, itis unquestionably a colourable exercise of power or fraud and theexercise of power is vitiated. If the power to acquire land is to beexercised, it must be exercised bona fide for the statutorypurpose and for none other. If K is exercised for an extraneous,irrelevant … consideration, the acquiring authority can becharged with legal mala tides.
One who alleges mala fide should establish it to the satisfaction ofCourt. No doubt the petitioner simply alleges that the acquisition ofhis land was motivated by political reasons. But as stated earlier hehas failed to satisfy this Court that the 1st respondent was influencedby the 3rd respondent and the result was that the former decided toacquire the land in question and thereafter necessary steps weretaken to acquire it. There is no convincing evidence before this Courtto come to the finding that the 1st respondent exercised his powersin bad faith. If there is sufficient evidence that he exercised his powerdue to political reasons as alleged by the petitioner or for any otherconsideration, then it could be held that the acquiring authority hadacted in bad faith or mala fide. But such evidence is not forthcomingin this case.
It appears from the affidavits of the 4th respondent, the Principal ofthe Muslim School and the Chief Education Officer of Kuliyapitiya thatthe alternative lands suggested by the petitioner are not suitable forthe purposes of constructing a school building and a playground.
At the time the School Development Society suggested to the 3rdrespondent this land in question was owned by one MohamaduFathima who by Deed No. 6539 dated 1.7.82 transferred it to thepetitioner. He by Deed No. 6541 of 15.7.92 mortgaged the same tothe original owner Fathuma. Thus it is clear that when the School
CA Gunasinghe v. Hon. Gamini Dlssanayake, and Others (Ananda Grero, J.)137
Development Society suggested that this land be taken over toconstruct a school building and a play ground it was not owned bythe petitioner. Soon after the said suggestion is made by the schoolDevelopment Society, Fathuma has sold this land to the petitioner.Suspicion arises in the mind of this Court whether this transaction is agenuine one. Be that as it may, as the petitioner has failed to satisfycourt that there are sufficient grounds for this Court to exercise itsextraordinary power of Writs, this Court is of the view that thepetitioner is not entitled to the relief claimed by him in his petition,and therefore his application should be dismissed. In thecircumstances, his application is dismissed, but I order no costs.
GUNASINGHE V. HON. GAMINI DISSANAYAKE, AND OTHERS