SENEVIRATNE AND OTHERS
v.URBAN COUNCIL KEGALLA AND OTHERS
COURT OF APPEALJ. A. N. DE SILVA (P/CA)
C. A. 298/2001JUNE 29™. 2001
Land Acquisition Act.- S. 2. S 4(3), S. 38A, S. 38(a) – Public purpose notdisclosed – Is the Applicant prejudiced? Acquisition ejfected throughwrong section – Is it valid? – Mala Jldes
The Petitioner contended –
that Notice issued under S. 2 is defective in that the Public Purpose isnot specified;
the Gazette notification should have been under S. 38(A) and not interms of S. 38(a):
that there is no public purpose in the acquisition.
Acquisition is tainted with malice
"If the Appellant has not been prejudiced by the matters on which he relieson the Court may refuse relief even though he has succeeded in establishingsome defect. The literal or technical breach of an apparently mandatoryprovision in a statute may be so insignificant as not in effect to matter. Inthose circumstances the Court may in its discretion refuse relief."
In this instance, it appears that no prejudice had been caused to thePetitioner.
The invocation of the wrong section does not render an order invalidprovided that the Authority concerned was actually vested with thepower.
The Petitioners have not been singled out and subjected to harassmentas suggested. It appears that authorities have done a thoroughexamination in selecting the lands earmarked for acquisition – whichis for the development of the Kegalle Town. The need for publicpurpose is evident.
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The question of malice and the absence of a public pur pose are linked.In the instant case the presence of a public purpose negatives theallegations of malice.
It is also significant to note that allegations of malice was raised inthe counter affidavit. No opportunity was given to the Respondents toanswer these allegations. If actually there was malice, it should havebeen mentioned in the Petition itself. There must be specific evidenceto establish and sustain the allegations of mala fide.
APPLICATION for a Writ of Certiorari.
Cases referred to :
Manel Fernando u. Jayaratne – 2000 1 SLR 112.
Pieris v. Commissioner of Inland Revenue – 65 NLR 457 at 458.
Edirisuriya v. Navaratnam – 1985 1 SLR 100 at 114.
Fernando v. A. G. – 1983 1 SLR 347 at 383.
Samalanka v. Weerakoon – 1994 – 1 SLR 405 at 409.
Mahinda Nanayakkara for Petitioner.
Manohara R de Silva for the Respondents.
M. R. Ameen S. C. for Attorney General.
Cur. adv. vult.
June 29, 2001.
J.A. N. DE SILVA. J. (P/CA)
The petitioners seek a writ of certiorari quashing thedecision contained in the Extraordinary Gazette notificationmarked “L" in terms of proviso (a) section 38 of the LandAcquisition Act.
When this application was taken up for hearing learnedCounsel for the petitioners submitted that the petitioners areentitled to the reliefs prayed for on the following grounds.
(a) The notice issued in terms of Section 2 of the LandAcquisition Act marked “H” is defective in that the publicpurpose for which the land is to be acquired is not specified.
CA Senevlratne and others o. Urban Council and others, Kegalla 107
(J. A. N. de Sllve J. P/CA)
The Gazette notification should have been made under
Section 38(A) of the Land Acquisition Act and not in terms
of the proviso (a) to Section 38 of the Act.
That there is no public purpose in the acquisition.
That the acquisition is tainted with malice.
On the first point the learned Counsel for the petitionerssubmitted that Section 2 notice is not in conformity with theprovisions of the Act and therefore it is bad in law and due tothat reason the subsequent notice under Section 38 Proviso (a)too is defective. He drew the attention of Court to the Judgementof the Supreme Court in Manel Fernando v. Jayaratna111.Justice Fernando has stated "public purpose cannot be anundisclosed one. The purpose must be disclosed. From apractical point of view, if an officer acting under Section 2 (3)(f)does not know the public purpose he cannot fulfil his duty ofascertaining whether any particular land is suitable for thatpurpose. Likewise the object of Section 4(3) is to enable theowner to submit his objections which would legitimately includean objection that his land is not suitable for the public purposewhich the State has in mind or that there are other and suitablelands. That object would be defeated and would be nomeaningful inquiry into objections, unless the purpose isdisclosed. If the public purpose had to be disclosed at that stagethere is no valid reason why it should not be revealed at theSection 2 stage.”
State Counsel who appeared for the respondents submittedthat the petitioners were aware of the public purpose for whichthe land was to be acquired long prior to the publication ofSection 2 notice. Attention of Court was drawn to paragraph12 -15 of the petition and the document marked "G” dated05. 12. 1999. The letter marked “G” has reference to KegalleUrban Development Plan and to the acquisition of paddy fieldson Kalugalla Mawatha to construct the proposed weekly fair.By this letter the 3rd petitioner has been requested to participate
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at a meeting that was to be held in that regard. This letter hasbeen written five months well in advance to the publication ofSection 2 notice dated 04. 05. 2000.
In these circumstances the learned State Counsel submittedthat no prejudice had been caused to the petitioners. Even inthe petition and in the counter affidavit petitioners do not averthat due to the defect in Section 2 notice prejudice is caused tothem. The learned State Counsel submitted that as no prejudiceis caused to the petitioners. Court ought in its discretion refuseto issue the writ of certiorari. He relied on the following passageon ‘Judicial Review of Administrative Action" (by De Smith 5lhEdition 1995),
“If the applicant has not been prejudiced by the matters onwhich he relies then the Court may refuse relief even though hehas succeeded in establishing some defect. The literal ortechnical breach of an apparently mandatory provision in aStatute may be so insignificant as not in effect to matter. Inthese circumstances the Court may in its discretion refuse relief."
The learned Counsel also submitted that the facts of thiscase are distinguishable from Manel Fernando's case citedabove. In the instant case there is a genuine public purpose forwhich the land is required and this public purpose was inexistence prior to the publication of Section 2 notice. In ManelFernando's case the acquisition of the land was malicious andthere was no genuine public purpose at the time Section 2 noticewas published. I am in agreement with the submission oflearned State Counsel that no prejudice is caused to thepetitioners.
The second ground relied on by the learned Counselfor the petitioners was that the acquisition has been effectedthrough the wrong Section of the Act. It was his submissionthat the notification should have been Gazetted in terms ofSection 38(A) of the Land Acquisition Act and not in terms ofProviso (a) to Section 38 of the Land Acquisition Act.
CA Senevlratne and others u. Urban Council and others, Kegalla 109
(J. A. N. de Silve J. PICA)
It is to be noted Section 38(A) applies only when a land isbeing acquired on behalf of a Local Authority. However in thisinstant the lands are being acquired on behalf of the UrbanDevelopment Authority which is not a Local Authority. ThusSection 38(A) has no application. There are several decidedcases where the view has been expressed that invocation of thewrong Section does not render an order invalid provided thatthe authority concerned was actually vested with the power. Thefollowing decisions are relevant on this point. Peirls v.Commissioner oj Inland Revenue121 at 458, Edirisuriya v.Navaratnam131 at 114, Fernando v. A. G.141 at 383, Samalankav. Weerakoon151 at 409.
The third and fourth grounds raised by the petitionerswere that there is no real "public purpose” and the acquisitionis tainted with malice. In this respect the documents marked5Rl(a), 5Rl(b), 5R2, 5R3, 5R4 and 5R5 (a) – (c) are relevant.All these documents pre-date the Section 2 notice and containa detailed discussion of the public purpose for which the landsin question were required. Document 5R1 (a) and 5Rl(b) clearlyshow that during the years 1997-1999 a comprehensive planwas designed under the Director of Research and Developmentof Urban Development to develop the town centre of Kegalle.The Urban Development Authority has approved this Plan whichis named as the Kegalle Urban Design Plan. Paragraph 1.3 ofthe said Plan discusses the need for development of the city ofKegalle with reference to following matters amongst otherthings.
That there is a considerable traffic congestion in KegalleCity principally along the Colombo – Kandy Road and otherBy-Pass Roads.
Inadequate parking facilities in the Town Centre.
The wholesale and retail markets are located at theCity Centre facing Colombo – Kandy Road which hascontributed to the traffic congestion.
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That there are large areas of marshy and paddy landswithin the Town Centre that could be used to develop theCity and thereby the City could be expanded.
To remove the public bus terminal which is on the MainRoad.
It is also to be noted that the Kegalle Town Developmentproject would be partly funded by the General Treasury andalready a sum of Rs. 20 million has been allocated for thispurpose for the year 2001. The lands aggregating to a totalextent of 6 acres 2 roods 27.9 perches are needed for the citydevelopment project and these lands belong to several owners.The petitioners have not been singled out and subjected toharassment as suggested by the petitioners. It appears thatauthorities have done a thorough examination in selecting thelands earmarked for acquisition. The suitability of other paddylands located in the vicinity had also been examined.Consequently steps have been taken to publish notices in termof Section 2 of the Land Acquisition Act. Therefore the need forpublic purpose is evident. Time and again this Court has warnedthe acquiring authorities to follow the law as explained by JusticeFernando in Manel Fernando's case. However since noprejudice is caused to the petitioners in the instant case I refrainfrom making an adverse order.
The petitioners have also submitted that there is malice inrespect of this acquisition. It is to be noted that question ofmalice and the absence of a public purpose are linked. In theinstant case the presence of a public purpose negatives theallegations of malice. It is also significant to note that allegationof malice was raised in the counter affidavit. No opportunitywas given to the respondents to answer these allegations. Ifactually there was malice it should have been mentioned in thepetition itself. There must be specific evidence to establish andsustain the allegation of mala fides.
On the question of “malice" it would be relevant to refer tothe following observations with regard to the standard of proofrequired for the allegation of mala fides to succeed.
Seneolratne and others v. Urban Council and others, Kegalla
(J. A. N. de Stive J. PICA)
“The plea of mala fides is raised often but it is only rarely itcan be substantiated to the satisfaction of Court. Merely raisinga doubt is not enough. There should be something, specific,direct and precise to sustain the plea of mala fides. The burdenof proving mala fides is on the individual making the allegationas the order is regular on its face and there is a presumptionin favour of the administration that it exercises its powerin good faith and for the public benefit.” Principles ofAdministrative Law (Jain & Jain, 4th Edition 1988 Page 564)
For the above mentioned reasons I refuse this applicationand dismiss the same with costs fixed at Rs. 3500/=.
AMARATUNGA, J. I agree.
SENEVIRATNE AND OTHERS v. URBAN COUNCIL KEGALLA AND OTHERS