British Council v Commissioner of Labour
(Shiranee Tilakawardane, J. (P/CA)) •
ACQUIRING OFFICER – KOLONNAWACOURT OF APPEALUDALAGAMA, J.
C.A. 364/2003AUGUST 8, 2003SEPTEMBER 9,15, 2003
Writ of certiorari – Land Acquisition Act – S. 7, S. 9, S. 17 (1), S. 18, S. 38(1)- Delay in granting compensation – Inadequate – Opinions sought from peo-ple in the vicinity – Right of Petitioner to question such people – Natural jus-tice – Legitimate expectation – Rules of fairness – Alternate procedure.
The petitioner’s land was acquired in 1980. On a direction of the Cabinet ofMinisters Rs. 132 Million was offered, the petitioner sought to challenge theaward on the basis that it was arbitrary, inadequate and unreasonable, and fur-ther sought an order directing the 1st respondent to continue the Inquiry inaccordance with the provisions of section 17 (1).
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The valuation report prepared by a former Chief Valuer and certified byanother former Chief Valuer amounted to a sum very much more thanthe amount recommended.
The 1st respondent appears to have obviously on his own withoutnotice to the petitioner/or his Attorney -at -Law questioned people in thevicinity of the acquired area and had come to conclusions apparentlywithout affording the elementary right to the petitioner/Attorney -at-lawto question such people whose opinion the 1st respondent had consid-ered for the purpose of computing the impugned award – this opiniondid not stand the test of cross examination. Discretion in deciding com-pensation must be properly exercised.
When proprietary rights of a subject are impugned by compulsoryacquisition compensation must be adequate, realistic and reasonable.Perusing the documentation and the valuation report it appears that the1st respondent’s conduct runs contrary to even the “Wendsburys rulesof fairness”.
As regards the contention that the petitioner has an alternative remedy-Per Udalagama, J.
“I am unable to subscribe to the view as this court is not precluded fromexercising the power of judicial review as the present application pre-sents peculiar facts and circumstances which warrant interference bythis court to rectify an apparent injustice – acquisition proceedings hav-ing commenced as far back as 1980 and the owner is denied due com-pensation for the last 24 years and it is now a tenet of administrativelaw that no discretionary power is unreviewable.
Natural justice is concerned also with the observance of fair procedurein the context of public decision making. It also entails the componentof the right to receive reasons for a decision. It also means that a partyis entitled to a reasoned consideration of his case and whether or notthe parties are also entitled to be told the reasons for the decision. Ifthey are withheld once judicial review commences the decision may becondemned as arbitrary and unreasonable.
APPLICATION for a writ of certiorari.
Cases referred to:
Findley v Secretary of State for Housing Department -1984 3 All ER801.
Gunasekera v Weerakoon – 73 NLR 352
Premachandra v Major Jayawickrema and others 1994 – 2 SRI LR 90
Peiris v Acquiring Officer, Kolonnawa
Ridge v Boldwin – 1964 AC 40
Karunadasa v Unique Gem Stones Ltd. and others – 1997 1 SRI LR258
L.C. Seneviratne, P.C. with A.R. Surendran and A. Selvaratne, for petitioner.Sathiya Hettige, D.S.Q., for respondents.
October 15, 2003UDALAGAMA, J.
The petitioner by her petition dated 24.02.2003, inter alia, 01prayed for a writ in the nature of certiorari to quash the award con-tained in document P13 made by the 1st respondent and fora writin the nature of mandamus directing the 1st respondent either toresume in a lawful manner the inquiry to compute the compensa-tion payable to the petitioner under section 9 of the LandAcquisition Act in respect of the acquisition of the land morefullydescribed in para 2 of the petition.
Admittedly the aforesaid land was acquired by the UrbanDevelopment Authority and compensation paid for a part of the land 10amounting to 7 acres as per the Urban Development Authority Law.
It is the position of the petitioner that the aforesaid landalthough acquired by way of vesting order in about 1980 under theprovisions of section 38 (a) of the Land acquisition Act no notice asrequired by section 7 of the said Act was published in respect of thebalance and the petitioner sought relief by an application for pre-rogative writ in the nature of mandamus in Court of Appeal caseNo. 1031/91 consequent to which notice having been published aninquiry held by the Divisional Secretary and the petitioner beingdissatisfied with the intention of the former to award compensation 20on a purportedly unfair basis filed Fundamental Rights applicationon 08.08.94 bearing No. S.C. (FR) 207/94 complaining of the vio-lation of the petitioner’s rights under Article 12(1) of theConstitution. This Fundamental Rights application was dismissedas misconceived due to the fact that no award was made by theAcquisition Officer as at that time.
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The petitioner also sought relief by another application to thiscourt for delay in the award of compensation as per the order inC.A. 1031/97 referred to above and in the course of which applica-tion the Attorney-General appears to have undertaken to expeditepayment of compensation and a sum of approximately rupees 22million paid as an initial payment.
However, the total estimated cost Jo be paid to the petitioneron a direction of the Cabinet of Ministers being approximatelyrupees 132 Million is computed at Rs. 79184 per perch ahd thepetitioner being dissatisfied and aggrieved with the inadequatequantum.of compensation sought relief in this court by institutingthe present action seeking as stated above relief by way of a pre-rogative' writ in the nature of mandamus directing the 1st respon-dent to continue the inquiry in accordance with the provision of sec-tion 17 (1) of the Land Acquisition Act and not on the basis of theUrban Development Authority Law.
It must be noted here that the original petitioner who claimedcompensation in respect of the acquisition died and the presentpetitioner, the widow of the former, sought to proceed with theclaim.
It is also significant that the value of the acquired land as perthe valuation report prepared by a former Chief Valuer, ProfessorShirley Fernando, and certified by another former Chief Valueramounted to a sum very much more than the amount recommend-ed by the Cabinet of Ministers.
However, consequent to further directions from this court therelevant section 9 inquiry did recommence before the 1st respon-dent who on 05. 02 2003 made an award to which the petitionerobjects for the following among other reasons and seeks relief asprayed for in the instant application.
It is the submission of the learned President’s Counsel for thepetitioner that the said inquiry was not lawfully held and violated thebasic principles of natural justice and was devoid of reasoning.
The learned Deputy Solicitor General appearing for therespondents raised a preliminary objection to this application on thebasis that the petitioner had an alternative remedy in that the latter
Peiris v Acquiring Officer, Kolonnawa
was entitled to canvass the award under the provision of section 18of the Land Acquisition Act and as such due to the existence of analternative remedy that the petitioner was precluded from seekingrelief by way of prerogative writ.
I am, however, unable to subscribe to this view as this court isnot precluded from exercising the power of judicial review as thepresent application presents peculiar facts and circumstanceswhich warrant interference by this court to rectify an apparent injus- ?otice. Besides the acquisition proceedings having commenced as farback as 1980 and the owner is denied due compensation for thelast 24 years, and it is now a tenet of administrative law that no dis-cretionary power is unreviewable.”
De Smith Woolf Jowel in Judicial Review of AdministrativeActions at page 311 of 15th edition states that “meanwhile our briefexcursus into judicial control of discretionary power indicates thatno statutory power is any longer unreviewable”.
In any event there is no absolute or unfettered discretions in .public law; discretions are conferred in public functionaries in trust 80for the public to be used for the public good and the propriety of theexercise of such discretion is to be judged by reference to the pur-pose of which they were so entrusted.-
Besides the petitioner also has a legitimate expectation to afair hearing.
As held by Lord Scarman in Findley v Secretary of State forHousing Department,(1) legitimate expectation can provide suffi-cient interest to enable one who cannot point to the existence of asubstantive right, to obtain leave of court to apply for judicial review.
So that the petitioner's right to a fair hearing on the basis of legiti- 90mate expectation is also a matter for consideration of this court.
As submitted by the learned Counsel for the respondent thefacts in Gunasekera v Weerakood2> could be distinguished con-sidering the following facts and circumstances which appear to ren-der the impugned award defective. Apart from the fact that the peti-tioner was represented by an Attomey-at-Law on certain days ofthe inquiry and as such the petitioner is precluded from saying thathe was wholly denied of natural justice however the award signifi-
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cantly does not refer to evidence to support the award. Also impor-tantly no reasons had been given to conclusions reached by the 1st 100respondent especially the reason for the rejection of the exhaus-tive and detailed evaluation done by Professor Shirley Fernandoreferred to above'. The compensation awarded for the land admit-tedly acquired had been done in 3 separate computations bywhich the extent of the entire land was subdivided into 3 lots bear-ing Nos. 1,2 and 3 without any reasoning as to the basis of suchdivision or the varied values given to the individual lots. The 1strespondent also appears to have obviously on his own withoutnotice to the petitioner or his Attorney-at-Law questioned peoplein the vicinity of the acquired area and had come to conclusions noapparently without affording the elementary right to the petitioneror her Attorney-at-Law to question such people whose opinion the1st respondent had considered for the purpose of computing theimpugned award.
The 1st respondent’s observation which apparently revealedthat the major portion of the land so acquired was at that time ofacquisition low-lying and marshy and inundated by floods was obvi-ously based on the opinion gathered from people of the surround-ing area the latter of which as stated above were not tested bycross examination. It also appears reasonable to assume that the 1201st respondent valued the land as he did giving weight to the opin-ion gathered from such unknown people of the area which did notstand the test of examination.
I am inclined to the view that when propriety rights of a subjectare infringed by compulsory acquisition compensation must beadequate, realistic and reasonable.
Perusing the documentation available in particular the ordersof the Supreme Court and the valuation reports as tendered by thepetitioner, I am also inclined to the view that the 1st respondent’sconduct runs contrary to even the Wendsbury rules of fairness. 130
Discretion in deciding compensation must be properly exer-cised. Premachandra v Major Jayawickrema and others W
Rules of natural justice demands that there has to be a fairhearing before an administrative authority acts or makes decisionsaffecting the rights of subjects. As stated by Wade “in its broadest
Peiris v Acquiring Officer, Kolonnawa
sense natural justice means simply “the natural sense of what isright and wrong and even in its technical sense equated with fair-ness.” Ridge v. Baldwin,W reinstated the right to a fair hearing asa rule of universal application affecting rights and natural justice.
Natural justice is concerned also with the observance of fair hoprocedure in the context of public decision making. Natural justicealso entails the component of the right to receive reasons for adecision.
Natural justice also means that a party is entitled to a rea-soned consideration of his case and whether or not the parties arealso entitled to be told the reason for the decision. If they are with-held, once judicial review commences the decision may be con-demned as arbitrary and unreasonable. Karunadasa v Unique GemStones Ltd. & othersS5>
For the aforesaid reasons I would hold that this court would be 150justified in exercising its discretionary powers to grant a writ in thenature of certiorari on the basis that the decision making process ofthe inquiring officer was flawed.
Accordingly this court could issue a writ of certiorari quashingthe award as contained in P13 and also issue a writ of mandamusdirecting the 1st respondent to either resume the inquiry in a lawfuland proper manner under the provisions of section 9 of the LandAcquisition Act or conduct and conclude a fresh inquiry on thesame basis within 2 months of this order considering the unduedelay of approximately 24 years taken for the payment of compen- 160sation in respect of the acquired land morefully described in para 2of the petition.
PEIRIS v. ACQUIRING OFFICER-KOLONNAWA