v.NATIONAL HOUSING DEVELOPMENT AUTHORITY
COURT OF APPEALJ.A.N. DE. SILVA. J. (P/CA)
SEPTEMBER 18. 2000OCTOBER 30. 2000JANUARY 11. 2001
Writ of Mandamus – To declare land as reservation ■ Locus standi -Public Right – Public Duty – Necessary parties not before Court ■ Writ isa discretionary remedy • Conduct of Party is relevant.
The petitioner, a resident at the Raddolugama Housing Scheme sought aWrit of Mandamus compelling the Respondents to declare the land asreservation for the residents of zone 6 of the scheme.
The Is* Respondent denied the position taken up by the Petitioner andstated that the said scheme was not demarcated into zones, and the publicutilities are provided for the entire scheme to use in common, and the lotin question was never given as a reservation for zone 6.
The 1st Respondent further contended that –
(i) the petitioner does not have a legal right to obtain a writ of mandamus;
Necessary parties are not before Court;
suppression of facts;
(i) Foundation of Mandamus is the existence of a right. Mandamus is notintended to create a right but to restore a party who has been deniedhis right to the enjoyment of said rights.
The right to enforce must be a “Public Right" and the duty that mustbe enforced must be of a public nature.
In the Instant case, there is no public duty cast upon the 1** Respondentto declare the land as a road Reservation. The Petitioner has no clearright to compel the Is1 Respondent to do so.
Perera v. National Housing Deuelopmemt Authority(J. A. N. De S llua, J. PICA)
(ii) The affidavit of the 1 * Respondent show that, the land was transferredto the UDA and then to a third party. When these matters were brought'to the notice of the Petitioner, he should have moved court to addthem as parties.
(ill) The Petitioner has tendered a 'privilege' document which he is notentitled to have in his possession. He has not explained thecircumstances under which he came to possess the document. Writbeing a discretionary remedy the conduct of the applicant is alsorelevant.
APPLICATION for a Writ of Mandamus.
Cases referred to :
Napier Ex Parte – 1852 18 9B 692.
fin. Metropolitican Police Commissioner – 1953 2 All ER 717 at 719.
Commissioner oj Police v. Gordhandas – 1952 SCR 135.
Wijesiri v. Slrlwardena – 1982 1 SLR 17.
R v. Garland – 1870 5 QB 269.
Hiran de Alwis for Petitioner.
Ms. M. Fernando, S. S. C. for Respondents.
Cur. adu. uult.
April 3, 2001.
J. A. N. DE SILVA, J. (P/CA)
The petitioner in this application states that he is a residentat the Raddolugama Housing Scheme and claims to be amember of the Welfare Society of the residents of zone 6 of thesaid scheme. By this petition the petitioner has prayed for thefollowing reliefs.
To issue a writ in the nature of writ of mandamus compellingthe respondents to secure and/or declare the said landmarked "lot 1288” as reservation for the residents of zone6 of the Raddolugama Housing Scheme.
To prevent the respondents from transferring and/or selling,alienating that said land pending the hearing and finaldetermination of this application.
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120011 3 Sri L.R.
Fbr costs and such other and further relief.
The petitioner in the petition sets out that the land, viz lot1288, the subject matter of this application as owned by theNational Housing Development Authority, The said authorityconstructed the Raddolugama Housing Scheme comprising 12housing zones. Each housing zone is granted a reservation forrecreational and welfare activities. The petitioner pleads thatlot no 1288 was the reservation for zone 6 and the residentsused the said reservation as belonging to zone 6. He also statesthat National Housing Development Authority at all times actedin the manner giving the impression that the residents areentitled to the said reservation and undertook not to transferthe said reservation to any outside authority or body.
The first respondent in his affidavit denied the positiontaken up by the petitioner and stated that the RaddoluwaHousing Scheme was not demarcated into zones and thatalthough for easy administrative purposes it is referred to aszones, the public utilities namely playgrounds, communitycenters, libraries, bus stands, health centers etc. are providedfor the entire scheme to use in common. The National HousingDevelopment Authority never gave the impression or promisedto the residents of zone 6 that the land in question would begiven to them and no undertaking was given to them that thisland would not be given to any outside body.
The Chairman of the National Housing DevelopmentAuthority in his affidavit further states that RaddolugamaHousing scheme comprised of 2022 houses and 144 shops inextent of 43, 122 hectares was established in a land acquiredby State for the said purpose. At the rear end of the scheme lot1288 which is the land in question is situated outside thepremises of the scheme viz, on the other side of the road andtherefore was not utilized for the purpose of the scheme andwas lying idle.
In 1989 members belonging to a Catholic Association ofRaddolugama requested they be permitted to purchase the said
Perera v. National Housing Developmemt Authority
(J. A N. De Silva, J. P/CA)-
land which is close to the church and the approval was grantedby the Board of Directors of National Housing DevelopmentAuthority for this purpose. As this association was not anincorporated body there had been certain legal impedimentsto transfer the prpperty to that association and therefore adecision was taken to hand over the land to Arch Diocese ofColombo.
Explaining the above situation the Minister of Housing andUrban Development presented a memorandum to the Cabineton 07. 01. 1999. On 03. 03. 1999 the cabinet decided totransfer the said land to Urban Development Authority (UDA)and the UDA to allocate same to the church of Our Lady ofLourdes Raddoluwa. In terms of the cabinet decision the landwas handed over to UDA on 21. 05. 1999 by National HousingDevelopment Authority and thereafter to the said church thesame day.
The petitioner states that he is a resident in the abovescheme and is personally affected by this decision and alsostates that he is acting on behalf of the others as the land inquestion was used by them for over 15 years and in thecircumstances the petitioner is entitled to have and maintainthis action.
At the hearing of this application the following objectionswere raised on behalf of the respondents.
That the petitioner does not have a legal right to obtain a
writ of Mandamus.
Necessary parties are not before Court.
Suppression of facts.
On the question of legal right it is to be noted that thefoundation of mandamus is the existence of the right. (NapierEx parte111). Mandamus is not intended to create a right, but
Sri Lanka Law Reports
120011 3 Sri L.R.
to restore a party who has been denied his right to the enjoymentof such right. A “Mandamus” will lie to any person or authoritywho is under a duty (Imposed by Statute or under CommonLaw) to do a particular act, if that person or authority refrainsfrom doing the act or refrains for wrong motives from exercisinga power which is his duty to exercise the Court will issue amandamus directing him to do what he should do.( R u. Metropolitan Police Commissioner121 at 719.) (See alsoCommissioner oj Police v. Gordhandas131).
The right to enforce must be a "Public Right" and the dutythat must be enforced must be of a public nature.
In the instant case the petitioner has failed to establishthat there is public duty cast upon the Is' respondent to declarethat the land in issue as a reservation for zone 6 and that thepetitioner has a clear right to compel the lsl respondent to doso.
The petitioner relied on the decision of Wijesiri u.Siriwardena141 to establish the fact that to apply for a writ ofmandamus it is not necessary to have a personal interest butit is sufficient if the applicant can show a genuine interest in thematter complained of and that he comes before Court as apublic spirited person concerned to see that the law is objectedin the interest of all.
It is to be noted that the petitioner in Wijesiri’s case was aopposition member of Parliament who took up the cause of 53candidates who were selected for appointment. The petitionercannot be compared with a member of Parliament. There isnothing to show that the Welfare Society and the other membersare even interested in this application. Even if one concedesjurisdiction of the Court and holds that the petitioner has“locus”, he has not established that the Is' respondent has apublic duty not to alienate the land in question.
It is observed that in certain instances, depending on theexigencies and on request. National Housing DevelopmentAuthority has granted approval on temporary basis for certain
Perera v. National Housing Developmemt Authority
(J. A. N. De Silva, J. PICA)
Welfare Societies to use unutilized land for a given object (e. g.to commence a montessori vide petitioners documents markedCl, C2 and C3) on the strict condition that the land should behanded back to the National Housing Development Authorityon demand. This does not mean that there is a public dutycast upon the 1st respondent to secure and/or declare the landin question as a reservation for the residents of zone 6.
Another objection raised by the respondents was thatnecessary parties have not been brought before Court. TheChairman of the National Housing Development Authority inhis affidavit had disclosed that what ever the action that wasdone was on a direction given by the cabinet. The land wasIs' transferred to UDA and then to the Church Authorities byUDA. I am of the view that when these matters were disclosedthe petitioner should have moved this Court to add the Cabinetof Ministers. UDA and the Church Authorities as parties to thisapplication. This was not done. These are necessary parties tothe effectual adjudication of the question in issue. I uphold thisobjection that necessary parties have not been maderespondents.
It is also relevant to note that the petitioner has submittedto this Court a privilege document which he is not entitled tohave in his possession. He has not explained the circumstancesunder which he came to possess this document. Writ being adiscretionary remedy the conduct of the applicant is also veryrelevant. The conduct of the applicant may disentitle him tothe remedy. (R v. Garland151)
For the above reasons I dismiss this application with costs.Application dismissed
Editors Note: The Supreme Court – in SC SPLA 107/2001 on
refused special leave to the Supreme Court.
PERERA v. NATIONAL HOUSING DEVELOPMENT AUTHORITY