088-NLR-NLR-V-70-P.-KARUNANAYAKE-Appellant-and-C.-P.-DE-SILVA-Minister-of-Lands-and-another-.pdf
398
T. S. FERNANDO, J.—Karunanayake v. de Silva
1968Present: T. S. Fernando, J., and Alles, J.P.KARUNANAYAKE, Appellant, and C. P. DE SILVA(Minister of Lands) and another, Respondents
S. C. 99 (Inty.) of 1967—D. C. Matara, 2460[L
Compulsory acquisition of land—Cannot be of an indeterminate corpus—Description ofthe land must be precise as to location and extent—Land Acquisition Act, asamended by Act No. 28 of 1964, ss. 2, 4, 4A, 5, 38-
In proceedings under the Land Acquisition Act, the notice under section 4,the declaration under section 6 and the Order under section 38 must each setout the particular land to be acquired. The acquisition cannot be of anindeterminate corpus.
The land sought to be acquired from the plaintiff-appellant was describedas follows :—“ A portion in extent about 1A. 1R. 16P. out of the land calledHambu Ela Watta and bounded as follows :—North and East by the remainingportion of the same land and V. C. road ; South and West by Polwatta Gangaand the remaining portion of the same land.”
Held, that there was uncertainty as to the precise location of the land. Theplaintiff was therefore entitled to an interim injunction restraining theacquisition.
^^PPEAL from an order of the District Court, Matara.
E. R. S. R. Coomaraswamy, with L. IF. Athulnthmudali, for the plaintiff-appellant.
Mervyn Fernando, Crown Counsel, with G. P. S. Silva, Crown Counsel,for the defendants-respondents.
Cur. adv. vult.
February 22, 1968. T. S. Fernando, J.—
The plaintiff-appellant instituted action No. 2460/L in the DistrictCourt seeking (1) a declaration inter alia that a proposed acquisition ofland belonging to him is wrongful and unlawful and (2) a permanentinjunction restraining the defendants from taking steps to acquire the saidland. He also sought an interim injunction pending the determinationof the action restraining the defendant from taking steps as aforesaid.An enjoining order wras issued by the District Court on ex-parteapplication and notice thereof was ordered on the defendants.
After the defendant appeared on notice, an inquiry was held in theDistrict Court, and by an order made on the 27th February 1967 thelearned District Judge dismissed the application for the interiminjunction and, therefore, discharged the enjoining order.
T. S. FERNANDO, J.—Karunanayake v. de Silva
399
This appeal canvasses the correctness of the order of the 27thFebruary 1967 above referred to.
The notice required to be given in terms of section 4, the declarationrequired to be made under section 5 and the Order for taking possessionthat may be published under the proviso to section 38 of the LandAcquisition Act (Cap. 460) all require that the land proposed to beacquired should be indicated in the respective documents. It iscontended on behalf of the appellant that all three documents in respectof this proposed acquisition are so defective in regard to the descriptionof the land as to render them of no force or effect in law.
The proviso to section 38 enables the Minister to take steps on occasionscalling for urgent acquisitions provided a notice under section 2 orsection 4 has been exhibited. While a notice under section 2 willordinarily specify only an area and such a notice is sufficient authorityfor the authorized officer to enter any land situated within that area,nevertheless possession of any such land can be taken only after decidingor determining the particular land of which it is necessary to takepossession. There would be no difficulty to demarcate with sufficientprecision the land intended to be taken and, it must be noted, theauthorized officer is empowered by section 2 (3) to enter and surveythe land.
Section 4 relates to a stage after investigations for selecting land havetaken place, and.that section requires the Minister to direct the acquiringofficer to give notice to the owner or owners of the particular land whichthe Minister considers is needed for a public purpose and has to beacquired. To enable the acquiring officer to give notice to the owner orowners it must follow that he (the acquiring officer) should know theparticular land proposed to be acquired. The circumstance that the lawcontemplates objections to the proposed acquisition involves necessarilythat the precise location has to be known not only to the officers of thegovernment charged with the duty of acquiring the land but also to theowner or owners thereof. It is only after the objections have beendisposed of as provided in section 4 that the decision to acquire canbe taken by the Minister. The written declaration that follows suchdecision also must relate to that particular land. I am, therefore, ofopinion that the notice under section 4, the declaration under section 5and the Order under section 38 must each set out the particular land tobe acquired. The contention of the appellant that the acquisitioncannot be of an indeterminate corpus is, in my opinion, sound and has tobe upheld.
That the view I have reached as above set out is correct—at any ratein respect of acquisitions after the amendment to the Land AcquisitionAct by Act No. 28 of 1964 (which came into force on 12th November1964)—wall be apparent on an examination of the provisions of section 4Aof the Act (inserted by section 3 of Act No. 28 of 1964) which has beendesigned to nullify the disposal of and to prevent damage to land in
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T. S. FERNANDO, J.—Karunanayake v. de Silva
respect of which a notice has been issued or exhibited under section 2 orsection 4. Sub-section (2) of this section 4A renders null and void anysale or other disposal of land in contravention of sub-section (1), whilesub-section (3) declares such a contravention to be a punishable offence.If a person is to be punished for selling or otherwise disposing of certainland, surely he must be informed of the precise location and extent ofsuch protected land. Any interpretation which will involve the resultthat a person will be prevented from dealing wdth all his lands in aparticular area because he does not know w’hat is the land in that areahe cannot sell or dispose of without contravening the Act should beavoided.
When we turn to the three relevant documents in this case, viz. XI of5th April 1966 (the notice under section 4), X2 of 14th May 1966 (thedeclaration under section 5), and X3 of 14th May 1966 (the Order undersection 38), each of them is found to describe the land in exactly thesame terms. That description is set out below
“ A portion in extent about 1A. 1R. 16P. out of the land called
Hambu Ela Watta and bounded as follows :■—
North and East by the remaining portion of the same land andV. C. road ;
South and West by Polwatta Ganga and the remaining portion ofthe same land. ”
In whatever way one may attempt to ascertain where precisely withinHambu Ela Watta this portion of about 1A. 1R. 16P. is to be found onewill be met with uncertainty as to its location. Indeed, Crown Counselhad in the end to concede that there is uncertainty in this descriptionand, therefore, that the corpus sought to be acquired as described in thedocuments was an indeterminate one.
We do not apprehend that there would be any difficulty for Govern-ment, with the resources available to it, to have a proper survey planprepared in the case of each acquisition. Indeed, our owm experience isthat such plans are usually made and are the basis of the Minister’s owndecision to acquire land. If so, what difficulty is there to describe thatland by reference to such a survey plan and even to make it available toparties affected ? We do not however intend to say that the situation ofa land cannot ever be described without reference to a survey or otherplan ; but the description adopted in the instant case fails to give effectto the requirements of the Act. As so often happens, action takenhastily in the supposed interests of expedition actually results in a delaygreater than that which would have been occasioned by a resort to theprocedure which the legislature had in contemplation.
As the Order under section 38 and indeed the other two documents aswell are not in conformity with the law, they do not, in our opinion, havethat force and effect which the Land Acquisition Act contemplates. For
ABEYESUNDERE, J.—Been v. Halim
401
this reason we set aside the order of the District Court made on the 27thFebruary 1967 which discharged the enjoining order and dismissed theapplication for an interim injunction. The enjoining order has to berestored and the interim injunction applied for by the plaintiff granted,and we have made order accordingly. The appellant is entitled to thecosts of the inquiry in the District Court and of this appeal.
At.t.es, J.—I agree.
Order set aside.