Abeyratne v. Jayaratne, Minister of Lands
v.JAYARATNE, MINISTER OF LANDS
COURT OF APPEALJAYASINGHE, J. ANDAMARATUNGA, J.
CA NO. 665/99AUGUST 01, 2001
Urban Development Projects (Special Provisions) Act, No. 2 of 1980 – S. 2 andS. 3 (a) – Order made by H.E. The President – Constitution – Article 140 -Land Acquisition (Amendment) Act No. 8 of 1979 – S. 38 (a) and S. 39 (a)- Jurisdiction of the Court of Appeal.
(1) The jurisdiction conferred on the Court of Appeal by Article 140 is exercisedby the Supreme Court and not by the Court of Appeal, in relation to anyparticular land or any land in any area in respect of which an order underor purporting to be under s. 2 of the U.D.A. Special Provisions Act hasbeen made by H.E The President.
APPLICATION for a Writ of Certiorari.
Case referred to :
1. Gunaratne v. Abeysinghe – 1988 1 SLR 255.
K. S. Tilakaratne with Upali Ponnamperuma tor petitioner.
Tilak Marapona, PC with Ms. B. Jayasinghe for 6th respondent.
Ms. Farzana Jamel, SSC for 4th respondent.
Cur. adv. vult.
Sri Lanka Law Reports
 2 Sri LR.
September 06, 2001JAYASINGHE, J.
The petitioner filed an application No. 939/92 for Writ of Certiorari/ iProhibition to quash the order No. 03/J/91 UDA/326 dated 21. 08.1992 on '11. 12 1992. it appears from the petition that following thenotice under section 2 of the Land Acquisition Act an order to takeimmediate possession of the petitioner's land in terms of the provisoto section 38 (a) has been made and published in the GovernmentGazette No. 730/22 of 04. 09. 1992. While the said acquisitionproceedings were pending an order under section 2 of the UrbanDevelopment Projects (Special Provisions) Act No. 2 of 1980 wasmade by Her Excellency the President declaring that the said land 10was urgently required for the purpose of carrying out an urgentdevelopment project. The said order was published in GovernmentGazette Extraordinary No. 698/8 of 22. 01. 1992. The writ applicationreferred to above was filed in the Court of Appeal after the orderunder section 2 of the Urban Development Projects (Special Provisions)Act had been made.
On 03. 03 1993 the petitioner moved to withdraw the applicationNo. 939/92 with liberty to file a fresh application or to seek any otherremedy in view of the fact that the order has been made by HerExcellency the President under section 2 of the Urban Development 80Projects (Special Provisons) Act No. 2 of 1980 and the applicationhas been allowed. The present application has been filed by thepetitioner on 09. 07. 1999 seeking the same reliefs he claimed inhis previous application after a lapse of several years. Mr. Marapana,
PC takes up a preliminary objection that this Court has no jurisdictionin view of section 4 (1) of the Urban Development Projects (SpecialProvisions) Act No. 2 of 1980.
Mr. Tilakaratne has taken up the position that it is common groundthat the petitioner is seeking a writ or certiorari to quash the acquisition
Abeyratne v. Jayaratne, Minister of Lands (Jayasinghe, J.)
published in the Government Gazette No. 730/22 of 04. 09.1992 under 30section 38 (a) and a writ of mandamus seeking a divesting order interms of section 39 (a) of the Land Acquisition (Amendment) ActNo. 8 of 1979. He argues that jurisdiction is therefore in vested withthe Court of Appeal in terms of Article 140 of the Constitution. Insupport of this contention he relied on a judgment of the SupremeCourt No. 2/99 between the same parties where Mark Fernando, J.has held that :. . claim to the return of the land on appropriate
application should have been made under the amendment to theLand Acquisition Act . . However, we do not know the contentof the petitioner’s application to the Supreme Court which has been 40dismissed as being out of time. Presumably, the said application hasbeen made under Urban Development Projects (Special Provisions)
Act and the Court has refused the petitioner's application as beingout of time in terms of section 4 (2). Since the petition it appearshas sought to set aside a vesting order made under section 38 ofthe Land Acquisition Act the Supreme Court has made the observationthat the petitioner's remedy was in terms of the amendment to theLand Acquisition Act. It seems to me that the petitioner has failedto disclose to the Supreme Court that the vesting order in terms ofsection 38 has been consequent to an order made under section 2 50of the Special Provisions Act.
However, it is the submissions of both the learned President'sCounsel and the learned Senior State Counsel that the jurisdictionconferred on the Court of Appeal by Article 140 of the Constitutionis to be exercised by the Supreme Court and not by the Court ofAppeal "in relation to any particular land or any land in any area inrespect of which an order under or purporting to be under section2 of the Special Provisions Act has been made . .
In Gunaratne v. Abeysinghe(1> the petitioner fell into arrears of rentand the respondent the Urban Development Authority served notice 60on the petitioner to vacate on or before 25. 10. 1983. UrbanDevelopment Authority thus instituted proceedings in the Magistrate'sCourt seeking eviction of the petitioner which application was allowed.
Sri Lanka Law Reports
 2 Sri LR.
Her Excellency the President had on 18. 09. 1983 made order undersection 2 of the Urban Development Projects (Special Provisions) ActNo. 2 of 1980 in relation to the premises in dispute and the saidorder was published in the Gazette. The petitioner after the Magistratemade the eviction order applied for a writ of certiorari to the SupremeCourt to quash the Magistrate's order, which application was refusedby the Supreme Court as being out of time. The petitioner then movedthe Court of Appeal for Revision of the order of the Magistrate. This 70application was dismissed. The petitioner then appealed to the SupremeCourt against the order of the Court of Appeal. Having regard to theprovisions of Act No. 2 of 1980 Thambiah, J. observed that the onlyreliefs available to the petitioner were :
a claim for compensation and damages under section 3 (a).
an application for the issue of writs by the Supreme Courtunder section 4 (1).
The petitioner did apply for the issue of a writ of certiorari andurged the same ground and asked for the same reliefs as in Revisionapplication but ruled out as being out of time. Court held that the eoRevisionary and writ jurisdiction of the Court of Appeal to grant reliefsin respect of the complaint of the petitioner have been removed bythe provisions of 3 (a) and 4 (1) of the Act No. 2 of 1980.
In the present application an order under section 2 of the ActNo. 2 of 1980 has been made by Her Excellency the President. ThisCourt is therefore without jurisdiction.
Preliminary objection is sustained.
Application for writ is dismissed with costs.
AMARATUNGA, J. – I agree.
ABEYRATNE v. JAYARATNE,MINISTER OF LANDS