BANDULA v. ALMEIDA AND OTHERS

030-SLLR-SLLR-1995-V-1-BANDULA-v.-ALMEIDA-AND-OTHERS.pdf


BANDULA
v.
ALMEIDA AND OTHERS
SUPREME COURTBANDARANAYAKE, J.
WADUGODAPITIYA, J. ANDWIJETUNGA, J.
S.C. (SPECIAL) NO. 4/29
FEBRUARY 9, 25 AND MARCH 29, AUGUST 16, SEPTEMBER 7 AND 15, 1993DECEMBER 2, 1994 AND MARCH 6, 1995.
Writs – Certiorari – Land Acquisition Act, Sections 2 and 38 – Urban DevelopmentProjects (Special Provisions) Act, No. 2 of 1980, Sections. 3, 4(1), 6 and 7 -Natural justice – Audi alteram rule – Fairpiay – Necessity for Urban DevelopmentProject – Recommendation – Requisite of an opinion.
The Petitioner on 01 December 1991 purchased two blocks of land bearingassessment Nos. 1 and 21 on Sri Vipulasena, Mawatha, Colombo 10. On22.12.91 he submitted a building application to the Colombo Municipal Council.On 13.3.92 the Municipal Council approved the plan. Even before the approvalthe Petitioner demolished the old buildings standing on the land and startedconstruction. On 19.2.92 the Municipal Engineer wrote to the Petitioner’s brotherwho was an attorney-at-Law and acting for the petitioner to stop construction onthe site as he was doing so without approval. On receiving approval the Petitionercommenced construction immediately. On 27.3.92 the 2nd respondent(Additional Director General (P & O) Urban Development Authority) wrote to thepetitioner’s brother after an earlier visit by officials of the Urban DevelopmentAuthority, to stop construction immediately. On 01 April 1992 the President of theRepublic made an order under Section 2 of the Urban Development Projects(Special Provisions) Act, No. 2 of 1980 and published in Gazette ExtraordinaryNo. 708/15 of the same day declaring that several blocks of land including thesaid lands belonging to the Petitioner are urgently required for the purpose ofcarrying out an urban development project. On 07 April 1992 a notice underSection 2 of the Land Acquisition Act was published in respect of the Petitioner’sproperty and communicated on 14 April 1992 by registered post to thePetitioner’s attorney-at-law brother. The Petitioner became aware of thePresident’s order only on 28 April 1992 and he filed this application on 30 April1992.
HELD:
The allegation of motive on the part of the 1st Respondent as he had himselfunsuccessfully tried to purchase the property sought to be acquired has not beenproved and with that the allegation of mala tides disappears.
The jurisdiction of the Supreme Court vested by virtue of section 4(1) read withsection 6 of the Urban Development Projects (Special Provisions) Act, No. 2 of1980 and unaffected by Section 3 thereof, to hear and determine this matter wasconsidered. The two main ingredients required to be satisfied in order to renderthe President's order valid in law are:-
that there had to be “a recommendation made by the Minister in charge ofthe subject of Urban Development” (here the President) and
that the President had to form an “opinion” upon such recommendation-
that there was in existence “an urban development project”;
that such project was of such nature as “would meet the justrequirements of the general welfare of the People”;
that certain lands were “required for the purpose of carrying out” suchproject, and
that such requirement was “urgent”.
As the President himself is the Minister, he is not required to make anyrecommendation in writing to himself.
On the question of forming an opinion-
The omission in the order of the words “'to meet the just requirements of thegeneral welfare of the People" does not render the Order invalid.
As there was no malice the next question that arises is, was the President’sOrder baseless, unreasonable and arbitrary?
The main question which arises for consideration in this case is whether infact there existed an Urban Development Project but the material produceddoes not measure up to what is required to show that any UrbanDevelopment Project as contemplated by Act, No. 2 of 1980 was inexistence at the time the President made his Order.
Although where the President and the relevant Minister are one and the sameperson, no recommendation is expected, yet he must have the necessarymaterial before him. It is clearly the duty of the officers of the U.D.A. to fully briefand apprise the President of not only the “full facts”, but also the “true facts”before requesting the President to form his opinion, to make his Order underSection 2 of Act, No. 2 of 1980.
Section 2 requires the President, prior to making his Order to arrive at andentertain the subjective opinion that there in fact exists “an urban developmentproject” for the carrying out of which, certain lands are urgently required.Section 2 goes on to suggest that the Order itself should declare that the landsare required for such purpose". If there is no project the Act itself becomesinoperable and nothing flows.
As there was no project, the President had no material to form an opinion andan Order made In vacuo so to speak cannot stand.
Although the opinion contemplated by section 2 is a subjective one, it isjusticiable. The Court can look into the matter to discover, what material, if any,moved the President to form his opinion.
The application is not premature. In terms of section 7 of Act, No. 2 of 1980 itwould be possible for the Government to take possession of the Petitioner’s landby utilizing the State Lands (Recovery of Possession) Act, and to have all personsejected from such land within sixty days of the making of an application underthat Act. A "section 2 notice under the Land Acquisition Act” had already beenpublished in respect of the Petitioner’s land and it was always possible for theState to acquire the land immediately, utilizing the proviso to section 38 of theLand Acquisition Act, thus bypassing the steps in that Act containing the statutoryprovision in regard, Inter alia to the holding of an inquiry and giving a hearing atthe inquiry.
The general rule is that a right to a hearing constitutes a minimum pre-requisite of natural justice. It ought to have been the duty of the officers of theU.D.A. who were responsible for formulating the so called Urban DevelopmentProject and making the recommendation to the President to make the Order inquestion, to have, at least, informed the owners of the house and buildings to beacquired of the proposed project and the consequent need of acquisition, and tohave called for their observations and/or objections. The number of such personswould not have been large and I do not think it could have categorized as animpracticable exercise so as to afford an exercise for non-compliance with theaudi alteram partem rule. In this content, the existence of a litis Inter partes is notan essential pre-requisite to the exercise of the audi alteram partem rule whicharises whenever there is a duty to act fairly. Natural justice is fairness writ largeand juridically. It has been described as 'fairplay in action’. Nor is it a lever to beassociated only with judicial or quasi-judicial occasions.
Cases referred to:
Hirdaramani v. Ratnavale (1971) 75 NLR 67.
Visvalingam v. Liyanage (1984) 2 Sri LR 123.
Wickremabandu v. Herath (1990) 2 Sri LR 348.
Fernandopulle v. £ L. Senanayake 79(2) NLR 115.
R. v. Electricity Commissioner (1924) 1 KB 171.
Schmidt v. Secretary of State for Home Affairs (1969) 1 All E.R. 904.
Ridge v. Baldwin (1963) 2 All ER 66.
R. v. Hendon Rural District Council (1933) 2 KB 696.
Ross-Clunis v. Papadoponllous (1958) 2 All ER 23.
Don Samuel v. De Silva 60 NLR 547.
Ashbridge Investments Ltd. v. Minister of Housing and Local Government(1965) 3 All ER 371.
Coleen Properties Ltd. v. Minister of Housing and Local Government (1971)1 All ER 1049.
Secretary of State for Education and Science v. Fameside MetropolitanBorough Council (1976) 2 All ER 665.
Furnell v. Whangarari High Schools Board (1973) 1 All ER 400.
R. v. H. K. (1967) 1 All ER 226, 231.
APPLICATION for Writ of Certiorari to quash the Order of the President madeunder the Urban Development Projects (Special Provisions) Act, No. 2 of 1980.
C. Seneviratne, PC. with Mahinda Ralapanawe and Laksiri de Silva forpetitioner.
V. Basnayake, PC. with D. J. C. Nilanduwa and Sarath Abeysinghe for 1strespondent.
P. L. D. Premaratne, PC. Additional Solicitor-General for 2nd, 3rd, 4th, 5th, 6th,7th, 8th and 9th respondents.
Cur. adv. vult.
March 6, 1995.
WADUGODAPITIYA, J.
On 1st December 1991, the Petitioner purchased two blocks ofland, in extent 7.25 perches and bearing assessment numbers 19and 21 on Sri Vipulasena Mawatha, Colombo 10, on Deed No. 383attested by his brother, Amaradasa Kodikara, Attorney-at-Law andNotary Public (marked X3) and on 23rd December, 1991, submitted,through his brother the said Amaradasa Kodikara, a buildingapplication for approval to the Colombo Municipal Council. On thesame day he started demolishing the dilapidated building whichstood on the said land.
On 19.2.92, the Municipal Engineer wrote to the brother of thePetitioner, A. Kodikara, asking him to stop construction on the site ashe was doing so without approval from the Municipality (X3a).
However, on 13th March 1992, the Petitioner’s building applicationwas approved by the Colombo Municipal Council and he wasgranted building permit no. ME/PBK/250/91 (marked X6) for the“erection of a three-storeyed commercial building for shops;" theconstruction of which commenced immediately. Thereafter accordingto the Petitioner, on 27th March 1992, some persons purporting to beofficials of the Urban Development Authority came onto the premisesin several vehicles and threatened the Petitioner’s workmen thatunless construction work was stopped immediately, the buildingunder construction would be flattened in an hour with a bulldozer.They had stated further that the Petitioner’s property had beenacquired by the Urban Development Authority. The workmenPiyadasa and Somadasa have stated in their affidavits X4 and X5respectively, that they identified the 1st, 2nd, 3rd and 4thRespondents as some of the persons who visited the building site on27th March, 1992.
On the same day, viz, 27th March 1992, the 2nd Respondent wroteto the Petitioner’s brother (letter marked X7) as follows
“Premises Nos: 19 & 21 Vipulasena Mawatha, Colombo 10Reference your development of the above premises.
Our officers have informed you over the telephone of theacquisition of land in the area including your premises andrequested you to terminate development activities.
I find that such activities are continuing.
Please be informed to terminate such activities forthwith.”
Soon thereafter, on 1st April, 1992, the President of the Republic ofSri Lanka made an Order under Section 2 of the Urban Development
Projects (Special Provisions) Act, No. 2 of 1980 and published inGazette Extraordinary No. 708/15 of the same day (marked ‘B’)declaring that several blocks of land including the said landsbelonging to the Petitioner are urgently required for the purpose ofcarrying out an Urban Development Project.
On 7th April, 1992, a notice under Section 2 of the LandAcquisition Act was published in respect of the Petitioner’s propertyand such notice was communicated to the Petitioner’s brotherAmaradasa Kodikara on 14th April, 1992 by Registered Post(document marked ’C’).
The Petitioner states that he became aware of the publication ofthe President’s Order (marked ‘B’) only on 28th April, 1992. Heobtained a copy thereof on the following day and filed this applicationon the 30th of April 1992.
The Petitioner prays that this Court be pleased to issue Writs ofCertiorari quashing the President’s Order marked ‘B’ in respect of hisproperty (viz. Nos. 19 and 21 Sri Vipulasena Mawatha, Colombo 10);the 6th Respondent’s recommendation to the President; the 2ndand/or 5th Respondents’ decision to acquire his land, and the 2ndRespondent’s order to terminate building operations on thePetitioner’s land. The Petitioner also seeks a declaration that theOrder made by the President (marked ‘B’) is null and void.
By way of motive for thi?f attempt to take over his land, thePetitioner lays the blame squarely on the shoulders of the 1stRespondent, who, he says, misused and abused his official positionand instigated the Urban Development Authority to acquire his landas an act of revenge.
The Petitioner alleges that the reason for this revengeful act is thatthe 1st Respondent, who is the Member for the Colombo MunicipalCouncil Ward in which the land in question is situated, and who livesa few hundred yards away from the site, had earlier tried to purchasethe self-same property, but failed. The Petitioner goes on to state thatfrom the time he purchased the said property, the 1st, 2nd, 3rd, and
4th Respondents had been harassing him: the 2nd, 3rd, and 4th,Respondents so acting at the instigation of the 1st Respondent. ThePetitioner points out that according to his workmen, the 1stRespondent accompanied the 2nd, 3rd, and 4th Respondents whenthey entered the premises on 27th March, 1992 and threatened toflatten the building in an hour if the construction work was notstopped. The Petitioner asserts that it was the 1st Respondent whohad induced the 2nd, 3rd and 4th Respondents to acquire the onlyproperty which the Petitioner owns, and on which now stands a partlyconstructed building on which he has spent about Rs. 2 million. ThePetitioner alleges that the President’s Order (marked ‘B’) is a sequelto the steps taken by the 1st, 2nd, 3rd and 4th Respondents todispossess him, and adds that the said 1st to 4th Respondents haveused the 5th Respondent to make the necessary recommendation tothe President upon which recommendation, the said declarationmarked “B", under section 2 of the Urban Development Projects(Special Provisions) Act was made.
The Petitioner goes on to state that the President’s order marked“B” is bad in law as there is no stipulation therein as required bySection 2 of the Urban Development Projects (Special Provisions)Act, No. 2 of 1980 that the project would meet the just requirementsof the general welfare of the People, and prays for the issue of a Writof Certiorari quashing the said Order made by the President inrespect of his lots 19 and 21, and to declare the said order a nullity.
Before I consider the main application, I would take up forconsideration the allegations made against the 1st Respondent.Replying to the averments made by the Petitioner, the 1stRespondent complains that he has been wrongly made a party tothese proceedings. He states in his affidavit that he had, at no stagemade any attempt to purchase or made any offer to purchase theproperty in question as alleged by the Petitioner; neither did heattempt to have the property transferred to him through an acquisitioneffected by the 5th Respondent. He denies that he visited the work-site on 12.2.92 accompained by others as alleged. Setting out thepart he played, he states that as a Member of the Municipal Councilof Colombo and as a resident of Ward No. 26 of Colombo, in the
interests of the slum dwellers of the area he had always beeninterested in the re-development of this particular area, and infurtherance of such public interest, and the duty he owes the rate-payers of the area, he had promoted the construction of flats for thebenefit of the poor, and in this connection admits that he hadinspected the site once. The 1st Respondent adds that except forthis “legitimate interest” as a politician and an elected member of theColombo Municipal Council, he had no personal interest in theacquisition of the land in question by the Urban DevelopmentAuthority. He goes on to state that, on the contrary, he was aware thatthe said property was included in a proposed re-development projectof this area, and that on a routine inspection of Ward No. 26, henoticed a new construction in progress and asked the MunicipalCouncil to investigate into the matter. He admits that, accompaniedby the 2nd Respondent and several other officers, he visited the sitein question on 27.3.92 on an inspection tour, but says that none ofthem entered the premises; nor did any of them threaten to flatten theland using bulldozers. He adds that it was the 2nd Respondent whosaid that the land was subject to acquisition and that thereforeconstruction should be stopped.
It may be recalled that according to the Petitioner, the sole reasonfor setting in motion the steps for acquisition was that the 1stRespondent had attempted to buy the said property but failed andthat he thereafter made this attempt to get the Urban DevelopmentAuthority to acquire the property with a view to having it given over tohim by that Authority after acquisition. Besides merely so stating,, thePetitioner does not proceed to substantiate this allegation in any way.Even in the teeth of the categorical denial by the 1 st Respondent, thePetitioner has failed to produce any proof that the 1st Respondenthad ever attempted to purchase the said property. The best proof ofthis fact would have been to adduce evidence by way of an affidavitfrom the previous owner from whom the 1st Respondent is said tohave attempted to buy the land, to the effect that the 1st Respondentdid in fact attempt to buy the land, but that he did not sell it to him.But no such evidence was adduced by the Petitioner. In thisconnection, I have to advert to the fact that Learned Counsel for thePetitioner invited the attention of this Court to the averment containedin the 2nd Respondent's first affidavit, to the effect that he was awarethat the 1st Respondent had attempted to purchase the land inquestion. This is in reply to paragraph 21 of the Petitioner’s affidavit tothe Court of Appeal which has been filed as part and parcel of thepresent petition to this Court, and which has been accepted by thisCourt. The said paragraph 21 states
“I am now aware the 1st Respondent has made offerspreviously to the owner of the relevant land to purchase thesame”.
The 2nd Respondent has in reply stated:
“I am aware of the averments contained in paragraph 21 of thesaid affidavit".
However, on this being pointed out by the Petitioner in a furtheraffidavit, the 2nd Respondent filed a second affidavit stating thatwhat had been set out in his first affidavit was a mistake due to atypographical error and that the correct position which should havebeen typed in, was: “ I am unaware of the averments contained inparagraph 21 of the said affidavit".
I have considered the matter very carefully and am inclined toagree that this was a mere typographical error, where the typist hadinadvertently typed the word "aware” in place of the word “unaware.”This is further supported by the context in which it is placed and bythe entire tenor of the 2nd Respondent’s affidavit. In any event, on thematter being pointed out by the Petitioner, the 2nd Respondent hadpromptly corrected it by his sworn affidavit. I am therefore of the viewthat this is a mere typist’s error and nothing more.
Thus, it is seen that the Petitioner has adduced no evidence tosubstantiate the serious allegation made against the 1st Respondent,which is thus reduced to a mere bald statement made by thePetitioner to supply a motive for the acquisition of his land. Thisallegation, made in such affirmative terms against a MunicipalCouncillor and a public figure is a very serious one, and beingtotally unsubstantiated, I have no hesitation in rejecting it. The 1st
Respondent has categorically denied it and said that he had nopersonal interest in the matter, and in the circumstances, I accept hisversion and hold that the motive alleged by the Petitioner as againstthe 1st Respondent remains unproved, and must be rejected. With itsjettisoning, the suggestion of mala fides disappears. Thus theallegation of malice on the part of the 1 st Respondent and the 2nd to5th Respondents falls away. While still on the question of malice, Imust here mention that no malice or mala fides has been attributed tothe President for making the impugned order marked 'B'.
I shall now turn to a consideration of whether the said Order(marked ‘B’) made by the President is invalid as urged by thePetitioner.
In this connection, it was common ground that by virtue of Section4(1) read with section 6 of the Urban Development Projects (SpecialProvisions) Act, No. 2 of 1980, jurisdiction to hear and determine thismatter was vested in the Supreme Court, and that it was unaffectedby Section 3 thereof.
As set out above, the President made an order on 1.4.92 (marked‘B’) under Section 2 of the Urban Development Projects (SpecialProvisions) Act, No. 2 of 1980. The said order reads as follows:
“By virtue of the powers vested in me, under section 2 of theUrban Development Projects (Special Provisions) Act, No. 2 of1980, I, Ranasinghe Premadasa, President, upon therecommendation of the Minister in charge of the subject of UrbanDevelopment, being of opinion that the lands specified in theschedule hereto are urgently required for the purpose of carryingout an Urban Development Project, do by this Order, declare thatthe said lands are required for such purpose.”
The Schedule to the above Order sets out the several lands sospecified, which includes the two blocks Nos. 19 and 21 belonging tothe Petitioner.
The said Order was made in terms of Section 2 of the UrbanDevelopment Projects (Special Provisions) Act, No. 2 of 1980, whichreads as follows:-
“Where the President, upon a recommendation made by theMinister in charge of the subject of Urban Development, is ofopinion that any particular land is, or lands in any area are,urgently required for the purpose of carrying out an UrbanDevelopment Project which would meet the just requirements ofthe general welfare of the People, the President may, by Orderpublished in the Gazette, declare that such land is, or lands insuch area as may be specified, are required for such purpose.”
The two main ingredients required to be satisfied in order to renderthe said Order valid in law, are
that there had to be “a recommendation made by the Minister in ,charge of the subject of Urban Development", and
that the President had to form an “opinion” upon suchrecommendation –
that there was in existence “an Urban DevelopmentProject”;
that such project was of such a nature as “would meet thejust requirements of the general welfare of the People”;
that certain lands were “required for the purpose ofcarrying out” such project, and
that such requirement was “urgent”.
As regards the first ingredient (i) above, there was no dispute thatthe Minister envisaged in Section 2 was the President himself.Learned President’s Counsel for the Petitioner submitted that, this factnotwithstanding, there should in fact have been a recommendationupon which the President formed his opinion; especially as theimpugned Order (marked ‘B’) refers specifically to the existence ofsuch a recommendation. However, no such recommendation exists,nor did Learned President’s Counsel for the 2nd to 6th Respondentsattempt to show the contrary. The question then is, where the
President and the Minister in charge of the subject of UrbanDevelopment are one and the same person, would the provisions ofsection 2 require the President to make a recommendation to himselfbefore arriving at an opinion? Will this not be an unnecessaryexercise and if gone through, amount to a fiction, merely for the sakeof giving effect to the letter of the law? Will the President ever departfrom his own recommendation in making his Order? Inconceivable !
I do not therefore think, that in these circumstances, the Presidentwas required to make any recommendation in writing to himself. Itmust not be forgotten that the President’s act in not assigning thesubject of Urban Development to a Minister, whereupon such subjectwould remain under him, is permissible in terms of Article 44(2) of theConstitution.
I now propose considering the second ingredient in Section 2which concerns the “opinion” which the President ought to haveentertained before he made his Order (marked ‘B’). The conditionsfor the formation of such opinion, as set out in section 2 are
that there should in fact have existed an "Urban DevelopmentProject”;
that such project was designed to “meet the just requirementsof the general welfare of the People”;
that the lands in question were “required for the purpose ofcarrying out” such project, and
that such requirement was “urgent”.
Learned Counsel for the Petitioner submitted, firstly, that the Ordermade by the President (marked ‘B’) must, on the face of it, reflect theexistence of the requisite ingredients and that inasmuch as the Orderdid not recite the fact that the project would meet the justrequirements of the general welfare of the People, the Order was exfacie bad.
The impugned Order has, in fact, omitted to set out these words.However, I do not think it is absolutely necessary that all the words insection 2 should be reproduced in the Order. The Order itselfmentions the fact that it is one made under Section 2, and I do notthink that these words constitute an essential part of the declarationby the President. They only indicate as to why the lands are requiredand the reason for making the Order. The essential matters are in factincluded in the Order and I do not think any prejudice is caused toanybody by the omission of these words. I am therefore of the viewthat the omission of the words “to meet the just requirements of thegeneral welfare of the People” does not render the Order invalid.
I now propose to consider the principal submissions of LearnedCounsel for the Petitioner. His attack was two-pronged. He firstsubmitted that the entire exercise culminating in the section 2 Orderby the President was tainted with malice generated by the 1stRespondent. He did not, at any stage, impute mala tides or malice tothe President, but submitted that, as set out earlier in this judgment,the attempt to deprive him of his property was motivated by maliceon the part of the 1st Respondent and the Officers of the UrbanDevelopment Authority (2nd, 3rd and 4th Respondents). However, asset out earlier, I have considered this matter and found this allegationto be baseless and therefore it merits no further consideration.
If therefore, there was no malice on the part of anybody, thequestion that arises is, was the President's Order baseless,unreasonable and arbitrary?
in this connection, Learned Counsel for the Petitioner submittedvery strenuously as the second limb of his attack, that no “UrbanDevelopment Project” of any sort existed at the time the impugnedOrder ‘B’ was made by the President. He stressed that thus, theprincipal ingredient required by section 2 to be satisfied, was totallyabsent and that being so, the President had no material and was inno position to form his “opinion," and upon such opinion, to make hisOrder (marked ‘B’).
Thus, in considering the facts of this case in the light of the writjurisdiction vested in this Court, the questions that arise are, whether,in the absence of material as aforesaid, the President has exceededhis jurisdiction; whether his Order is unreasonable and whether inconsequence there has occurred an error of law.
t
The main question which arises for consideration in this case iswhether there in fact existed an Urban Development Project. LearnedCounsel for the Petitioner submitted that there was none, and that allthe papers and documents produced by the Respondents revealednone. He in fact challenged Learned Counsel for the Respondents toproduce, even during the hearing, any material showing theexistence of a project, and this Court did in fact call upon him to doso on the next date of hearing. This he failed to do on any of thesubsequent dates of hearing.
I shall now set out in detail, the material placed before this court byLearned Counsel for both the 1st and 2nd Respondents, in proof ofthe existence of an "Urban Development Project".
The 1st Respondent, in paragraph 7 (c) of his affidavit has statedas follows:-
“I am aware that there is an integrated plan for the re-development of the larger area, and that the Petitioner’s landforms only a part of the said larger area. For the re-developmentof the said larger area, all plans have been made and othersteps taken by the Urban Development Authority for theconstruction of a Housing Complex consisting of a largenumber of residential flats and commercial buildings;”
and in paragraph 8(d) (iv), he says:
“I am aware that the property in question was included in aproposed re-development project of this area.”
I need only say that apart from so stating, the 1st Respondent hasneither produced nor in any way caused to be produced any materialtending to show the existence of any such “project”.
Besides the 1st Respondent, the Petitioner has cited the AdditionalDirector-General of the Urban Development Authority as the 2nd
Respondent, the Assistant Director (Lands) as the 3rd Respondent,the Director (Lands) as the 4th Respondent and the UrbanDevelopment Authority itself as the 5th Respondent in this case.However, it was only the 2nd Respondent who sought to file anaffidavit in reply to the Petitioner. (The 3rd Respondent has also filedan affidavit, which however is merely supportive of that of the 2ndRespondent). I must mention that the affidavit of the 2nd Respondentappears to be only on his own behalf and not on behalf of the otherRespondents, including the 5th Respondent (the Urban DevelopmentAuthority).
In his affidavit, having admitted that on 27.3.92, he, along withseveral officers (no mention of the 1st Respondent) visited theproperty of the Petitioner on an inspection tour, and having admittedthat, without entering the premises he informed the workmen not tocontinue construction work as the land was under acquisition, andhaving denied that any of the officers threatened to flatten the landwith bulldozers, he goes on to set out the material in his possessionpertaining to the all important question of the existence or not of thealleged “project”.
He has produced marked 2R1, a letter sent by the 4th Respondentto the Municipal Commissioner dated 27.3.1989 enclosing “a copy ofthe acquisition sketch showing the above lands (which includes thePetitioner’s property), which are under acquisition by this authority fora commercial and residential complex.” He next produces the Orderof the President (marked 2R2 by him), and goes on to produce(marked 2R3) a copy of the “proposed development plan of theadjoining area” which had been acquired earlier. On perusal onefinds that 2R3 shows sketches of buildings but is neither signed byanyone nor dated. The space for the signature of the Chief Architectremains blank. In any event, this plan does not include and is notapplicable to the property of the Petitioner. Another plan produced byhim marked 2R3a, is similarly unsigned and undated by the relevantauthorities. He admits sending the letter marked X7 to the brother ofthe Petitioner (reproduced above) wherein, he again uses the word“acquisition” only. Nowhere in that letter is any “Project” evenmentioned. At this point, it needs to be mentioned that on one of thedates of hearing (7.9.94), Learned Counsel for the Respondents
attempted to produce enlargements of plans purporting to be theoriginals of 2R3 and 2R3a abovementioned. However, on a closeexamination and comparison, this Court found that they wereenlargements of some other sketches and plans, and were quitedefinitely not the originals of 2R3 and 2R3a. We therefore rejectedthem.
The 2nd Respondent next produced a Gazette marked 2R4 settingout that the area where the Petitioner’s property was situated wasdeclared a Development Area under section 3 of the UrbanDevelopment Authority Law, No. 41 of 1978. This Gazette howeverdoes not mention anything about the existence of a “project” ascontemplated by the President’s Order. In fact Learned Counsel forthe Petitioner submitted that according to 2R4 the entire area of theMunicipality of Colombo has been made subject to such adeclaration; besides the area covered by the Dehiwala-Mount-LaviniaMunicipal Council and the Moratuwa Urban Council.
Further answering, the 2nd Respondent states that in 1986 someland "to the left of the Petitioner's present land” was acquired utilizingthe proviso to section 38 of the Land Acquisition Act (enabling urgentacquisitions to be effected). He says that this was part of itsdevelopment project for that area. He produces the relevant Gazette(2R5) and a copy of the plan (2R5A). No project is discernible and inany event this does not concern the Petitioner’s property.
The 2nd Respondent then says in paragraph 10(c) of his affidavitthat, "In 1988, the Urban Development Authority took steps to acquirethe balance area for the completion of the project and an applicationwas made to the Secretary, Lands, to take steps to acquire the saidarea under the Land Acquisition Act.” He produces the saidapplication marked 2R6 and dated 8.8.88, but this nowhere mentionsthe Petitioner’s property. He also produces marked 2R6A, adocument regarding the above acquisition, which however isunsigned, undated and does not bear even a reference number. Thistoo does not specifically mention the Petitioner’s property. 2R6Bdated 8.8.88, is a document containing details of the lands sought tobe acquired and 2R6C is a sketch, again unsigned and undated,showing the lands to be acquired. While these two latter documentsmentioned the Petitioner’s property, none of them makes anyreference to the all important “Project."
It is to be noted that all this was in August 1988. Although theapplication was to acquire the land immediately under the proviso tosection 38 of the Land Acquisition Act (2R6), nothing further wasdone in this connection. Thereafter, on 12.10.91, a little over 3 yearslater, the 4th Respondent wrote 2R7 to the Secretary, Ministry of PlanImplementation requesting to be informed of the present position.Does this show the urgency of the matter, or was the proposedacquisition abandoned and subsequently re-activated?
The 2nd Respondent then says in paragraph 10(e):—
“The Urban Development Authority was informed over thetelephone by the Ministry of Policy Planning and Implementationto make another application in respect of the said proposedacquisition, as the earlier application had got misplaced. Assuch, another application was made on 28.10.91."
A copy of this application has been produced marked 2R8, where,once again no reference is made to the Petitioner’s lands. Annexed tothis application are a copy of 2R6A (now marked (2R8A), a copy of2R6B (now marked 2R8B), and a copy of the sketch 2R6C (nowmarked 2R8D). The only new document is 2R8C which is againundated and unsigned, giving a description of the land and a list ofclaimants. The lands of the Petitioner, Nos. 19 and 21 are notmentioned.
A matter worth mentioning in connection with the fresh applicationfor acquisition (2R8) is that in it, the writer (4th Respondent),specifically requests that the acquisition should be under the normalprocedure set out in the Land Acquisition Act. This is a noteworthydeparture from the original application (2R6), wherein the requestwas that the acquisition should proceed under the proviso to section38 of the Land Acquisition Act which is used for effecting immediateacquisitions. This too was signed by the 4th Respondent.
As set out above, the second application dated 12.10.91 wasaccompanied by a request for a normal acquisition, the onlyinference from which being that there was no urgency in the matter ofthe said acquisition.
Thereafter, on 1.12.1991, the Petitioner purchased the property inquestion (Lots 19 and 21); had his building application approved bythe Municipal Council on 13.3.1992, and immediately commencedbuilding operations.
Then, on 27.3.92, as set out earlier, the U.D.A. officials arrived atthe building site and asked the workmen to stop construction work;and, just four days later, on 1.4.92, Gazette Extraordinary No. 708/15was published containing the President’s Order (marked ‘B’) saying,inter alia, that the lands were “urgently required.”
The 2nd Respondent adverts to this fact in the following manner inparagraph 10(f) of his affidavit:-
“Consequently, in terms of section 2 of the Urban DevelopmentProject (Special Provisions) Act, No. 2 of 1980, H.E. thePresident made a declaration under the said section, as theland was urgently required for the purpose of carrying out anUrban Development Project."
There is no supportive material to substantiate the avermentsmade. Thereafter on 7.4.92, steps under the Land Acquisition Actwere started with the publication of a notice under Section 2 thereof,to acquire the Petitioner's land, (2R9).
It is seen that the 2nd Respondent’s narration does not in any waythrow any light on the question at issue, viz: was there a project inexistence? On the contrary, the only mention is about acquisition ofland. No details of a project as contemplated by Act, No. 2 of 1980are forthcoming. In fact this Court showed much latitude to theRespondents by calling upon Learned Counsel to produce, at anystage of the hearing material to show the existence of a project.Although such opportunity was given on several occasions, LearnedCounsel for the Respondents failed to produce any such material. All
that was forthcoming was a further affidavit by the 2nd Respondentenclosing several photographs marked ‘A’ to ‘Q' depicting buildingsin the area, which the 2nd Respondent says Is an area of '‘activedevelopment," situated in “an area of urban renewal Interest," withjoint intervention of the National Housing Development Authority,Urban Development Authority and the Colombo Municipal Council.He concludes by stating that “the proposed development project ispart of the Development Project of the area” which has been jointlyundertaken by the three institutions mentioned above. However, the2nd Respondent does not proceed to say what exactly the project is,nor has he filed any affidavits from the other two institutionsmentioned above, as to what the joint project was. In the result, thereis no material before us to show that any Urban Development Projectas contemplated by Act, No. 2 of 1980 was in existence at the timethe President made his Order marked ‘B’.
On the other hand, as stated earlier, having purchased theproperty in question on 1.12.91, the Petitioner, through his brother,Amaradasa Kodikara, submitted on 23.12.91 a building plan forapproval to the Colombo Municipal Council, which was in factapproved by the said Council on 13.3.92. The Petitioner’s brother, anAttorney-at-Law, has filed an affidavit (marked X9), stating that wellbefore the purchase of this property, in July 1991, he made searchesand inquiries at the Land Registry, Colombo Municipal Council andthe Urban Development Authority, and was satisfied that there wereno encumbrances or any move to acquire the premises. He adds thathe made an inquiry in writing from the Chief Architect of the UrbanDevelopment Authority, Mr. Tissa Kumarasinghe as to whether thatAuthority intended to acquire the land in question, and that Mr.Kumarasinghe whilst stating that he could not give a reply in writing,assured him that he was satisfied that the UDA had no suchintentions. The 2nd Respondent in reply has not sought to deny this,but merely states that Mr. Tissa Kumarasinghe was not the personcompetent to give such information. He has not filed an affidavit fromMr. Kumarasinghe.
As stated above, the Colombo Municipal Council had on 13.3.92approved the Petitioner’s building plan. On probing the mater further,this Court requested information as to how the Municipal Council
could possibly have approved a building permit if the land inquestion was about to be acquired.
It transpired that approval is given by the Planning Committee ofthe Colombo Municipal Council, on which the Urban DevelopmentAuthority is represented by an Officer of the level of Director. H. P.Silva who has sworn an affidavit to the effect that, as Director(Development Regulations) of the Urban Development Authority, heattends meetings of the Planning Committee of the Council onPlanning and Building approval, on the directions of the Chairman,UDA. He goes on to state that the Petitioner’s building applicationwas taken up and approved by the Planning Committee on 10.3.92,and the building permit was issued on 13.3.92, but adds that he wasnot aware of any intended acquisition of the premises.
The Senior Town Planner, Colombo Municipal Council, Ms. N. P.Herath, who is also a member of the Planning Committee states inher affidavit that the Committee unanimously decided to approve thePetitioner’s application; adding that no information was available“with regard to any acquisition of the said land by any Authority.”
The third member of the Planning Committee was the DeputyMunicipal Engineer of the Municipal Council, U. A. J. S. Perera, whohas also filed an affidavit on the same lines as that of Ms. Herath.
The resulting situation is singular. An urgent Urban DevelopmentProject authored by the U.D.A., necessitating the acquisition of thePetitioner’s property and meriting the personal intervention of thePresident on 1.4.92, remained unknown to one of the Directors of theU.D.A. who sat on the Planning Committee of the Colombo MunicipalCouncil on the directions of the Chairman of the self-same U.D.A.,and who approved the Petitioner’s building application on 10.3.92,just 20 days before the President made his Order under Section 2.
In any event, it is inconceivable that the Senior Town Planner of theCouncil and the Deputy Municipal Engineer had not even heard ofthis urgent project which, according to the 2nd respondent, had beenjointly undertaken by three institutions, of which, the ColomboMunicipal Council was a co-participant.
This is not all. The Petitioner has filed a further affidavit in which herefers to premises Nos. 203 and 205, Deans Road, Colombo 10,which fall within the land which, according to the 2nd Respondent, isurgently required for an Urban Development Project, which projecthas been in existence since 1988. The Petitioner has filed with thesaid affidavit, the following documents in respect of the saidpremises Nos. 203 and 205, viz, the Certificate of Conformity (P6)dated 7.9.89 in respect of a three-storeyed shop and office buildingon the said premises and the Certificate of House Drainage (P7)dated 17.8.89 in respect of the same premises; both of which havebeen issued by the Municipal Engineer, Colombo Municipal Council.The Petitioner submits that the fact that private individuals like theowner of premises Nos. 203 and 205 have been allowed to constructbuildings within the area said to be earmarked for an alleged projectgoes to show that there never was any such project in the area inquestion. Further, one wonders as to why and for what purpose ablanket declaration of the area where the Petitioner’s land is situated(Gazette marked 2R4, dated 30.9.78), as a “Development Area” wasdeemed necessary. Was it to put a strangle-hold on ownership ofland? According to paragraph 8(i) (a) of the Petitioner's affidavit of
the Gazette marked 2R4 declares as a “Development Area”,the entirety of the Colombo Municipal Council area, the Dehiwela-Mount Lavinia Municipal Council area and the Moratuwa UrbanCouncil area, besides other areas in Sri Lanka. The Gazette 2R4therefore does not help the 2nd Respondent in any way.
What is important in this connection is the reply given by the 2ndRespondent as to why the Colombo Municipal Council allowed thebuilding application of the Petitioner and issued him with a permit tobuild in the teeth of the fact that the area was supposed to beurgently required for an Urban Development Project, and in the teethof the fact that a Director of the Urban Development Authority sat onthe Planning Committee of the Colombo Municipal Council whichapproved the building application and issued the building permit X6to the Petitioner. The 2nd Respondent's reply is at paragraph 4 of hisaffidavit, where he states that “the Municipal Engineer by anoversight had approved the said building plan”. There is no affidavitby the Municipal Engineer supporting this position. In any event it isnot the function of the Municipal Engineer to approve building plans.That function is exercised by the Planning Committee of theMunicipal Council consisting of three members, viz. the Senior TownPlanner, the Deputy Municipal Engineer and the Director(Development Regulations) of the Urban Development Authority, all ofwhom have filed affidavits to the effect that none of them knewanything about an intended acquisition of the area in which thePetitioner's land stood. It is difficult to believe that, if there in fact wasa development project for the entire area, and if such area was to beacquired for such purpose, the representative of the U.D.A. would nothave known of it. If he knew of it, I have no doubt that he would havebrought it to the notice of the Planning Committee. After all, the wholepoint of having a senior officer of the U.D.A. on the PlanningCommittee is for the very purpose of apprising the Committee of thestatus of the lands in respect of which building applications aremade. According to his own affidavit, this U.D.A. representative sitson the Committee” on the directions of the Chairman, UrbanDevelopment Authority”. At least the Chairman ought to have knownand given the necessary directions. The question that arises onceagain is, whether there was in fact an Urban Development Project inexistence relating to the Petitioner’s land. The answer inclinestowards the negative. There certainly was no “oversight”. ThePlanning Committee was totally unaware of any project, or even ofany acquisition for the purposes of a project.
Thus it appears that the totality of the material placed before thisCourt by Learned Counsel for the Respondents does not measure upin any degree to satisfy the requirements of the factual existence ofan Urban Development Project as envisaged in the UrbanDevelopment Projects (Special Provisions) Act No. 2 of 1980. Thoughgiven numerous opportunities, Learned Counsel for the Respondentsproduced no documents of any sort to show a project plan or anysort of development plan, which would have constituted a basicdocument showing the existence of a development project. Neitherdid he produce before us any feasibility report relating to the allegedproject or any project report, or even any minutes in files showing thatdiscussions, at least, were had in connection with the establishmentof such a project. On the contrary, what appears to have beenuppermost in the minds of the Respondents is the question of
acquisition of the relevant land. Ever so often, in the documentsproduced, one comes across a phrase to the effect that the land is“under acquisition.” Was it that the Urban Development Authoritywas primarily concerned only with merely acquiring the relevant land;the question of an Urban Development Project to follow at somefuture time, once the land had been acquired and taken possessionof? This seems to have been the pattern, as it was pointed out to usthat even the adjacent lands though acquired, were not utilised forany project. It appears that, in their minds, the Respondents equated“acquisition” with “project”, or at least, felt that from an “acquisition”,one ought automatically to infer the actual existence of a “project".What strikes me at this point is that Learned Counsel for theRespondents wanted this Court to infer that an Urban DevelopmentProject existed, from the gazettes, sketches and photographs heproduced. I regret I am unable to draw such an inference, and wishto state affirmatively, that this is too important a matter to be disposedof upon the basis of any such inference. There must be definite andpositive material showing that a project already existed; for whichproject, the land in question had to be acquired, and not the otherway around. The simplest thing Learned Counsel for theRespondents could have done was to have produced before us thefile pertaining to the alleged project or at least the relevantdevelopment plans or project reports or feasibility reports and otherrelevant documents. This he did not do, and it would not beunreasonable to conclude that no such file and no such documentsin fact exist.
In view of the conclusion reached that there was no UrbanDevelopment Project in existence at the time the President made hisOrder, the question that arises is: “What material, if any, did thePresident have before him to enable him to arrive at his opinionbefore making his Order under section 2 of Act, No. 2 of 1980?”
In fact, Section 2 incorporates the safeguard of requiring therelevant Minister to place his recommendation before the President.This means that the President must not act arbitrarily or unreasonably,but on definite material placed before him. Where the President andthe relevant Minister are one and the same person, even though onewould not expect him to make a recommendation to himself, he must,
nevertheless, have the necessary material before him. It is clearly theduty of the officers of the U.D.A. to fully brief and apprise thePresident of not only the “full facts”, but also the “true facts” beforerequesting the President to form his opinion, and upon such opinion,to make his Order under section 2 of Act, No. 2 of 1980.
This involves a consideration of the vital question in connectionwith the ingredients made necessary of compliance by section 2 ofAct, No. 2 of 1980. I have set out the ingredients earlier in thisjudgment, but feel it necessary to reiterate only the fact that the saidsection 2 requires the President, prior to making his Order to arrive atand entertain the subjective opinion that there in fact exists “anUrban Development Project”, for the carrying out of which, certainlands are urgently required. Section 2 goes on to suggest that theOrder itself should declare that the lands are required “for suchpurpose."
I wish to stress here that the vital ingredient is, that there shouldexist a project. If there is no project the Act itself becomes inoperableand nothing flows. I have been at pains to set out in detail, every itemof relevant material submitted by Learned Counsel for theRespondents but, as stated above, have been unable to discover theexistence of any project as contemplated by Section 2.
I therefore hold that there was no Urban Development Project inexistence, and that therefore the Respondents have failed to satisfyan essential ingredient, required by section 2, to be satisfied prior tothe making of the impugned Order. If there was no project, then itfollows that the President had no material before him to enable him toarrive at his opinion before making the Order. How then did thePresident arrive at his opinion? Can such an Order made in vacuo, soto speak, be allowed to stand? I think not.
Although the opinion contemplated by section 2 is a subjectiveone, I am of the view that it is nevertheless justiciable and subject toreview – vide:
Hirdaramani v. Ratnavale (1971) 75 NLR 67Visvalingam v. Liyanage( 1984) 2 Sri L.R. 123<2) andWickremabandu v. Herath (1990) 2 Sri L.R. 348(3).
The contention of Learned Counsel for the Petitioner was that thePresident did not have material on which he could properly haveformed such an opinion. Learned Counsel for the Respondents, onthe other hand, contended that the President’s opinion wasunfettered, but I do not think that that is the correct position in lawand I therefore cannot agree with him. I therefore hold that this Courtcan look into the matter with a view to discovering what material, ifany, moved the President to form his opinion.
On the question of whether this application is premature andwhether the Order of the President has caused prejudice to thePetitioner, it was submitted by Learned Counsel for the Petitioner thatupon the impugned Order being published, there was an imminentdanger of the Petitioner being forcibly evicted from and deprived ofhis land, by the use of the provisions of Section 7 of Act, No. 2 of1980, and of his being immediately divested by the use of the provisoto section 38 of the Land Acquisition Act. Thus, Learned Counselsubmitted that once the Order is published, the Petitioner’s propertywas “as good as gone", and that there was an automatic impact ofan adverse nature thereon; his rights as owner being necessarily soaffected.
In terms of Section 7 of Act, No. 2 of 1980, it would be possible forthe Government to take possession of the Petitioner’s land by utilizingthe State Lands (Recovery of Possession) Act, and to have allpersons ejected from such land within sixty days of the making of anapplication under that Act.
Then again, now that a Section 2 notice under the LandAcquisition Act has already been published in respect of thePetitioner’s land, it is always possible for the State to acquire his landimmediately, utilizing the proviso to section 38 of the Land AcquisitionAct, thus by-passing the steps in that Act containing the salutaryprovisions in regard, inter alia, to the holding of an inquiry and thegiving of a hearing at such inquiry. The Petitioner could thus bedeprived of the opportunity of voicing his protest under that Act.
It is thus seen that the prejudice caused to the Petitioner by suchan act of strangulation is only too clear. At the same time, I feel that
the petitioner’s instant application for a Writ of Certiorari is certainlynot premature. As set out above, I do not think he need wait untilacquisition proceedings actually get going under the LandAcquisition Act, to lodge his protest to Court. If he waits that long itmay well be too late in the day, for, after possession of his property istaken under the proviso to section 38, all that the Petitioner could dois to mount a challenge on the question of the urgency in resorting tothat provision, vide Fernandopulle v. £ L. Senanayakem.
It is noted in passing, that the label used has no impact on what Ihave said on this matter. Whether it is called a “declaration” in termsof Section 2 of Act, No. 2 of 1980, or anything else, consequences asset out above do flow from the Order made by the President.
Therefore, I am of the view that the Petitioner has very correctlymade his application to this Court in terms of Section 4 of Act, No. 2of 1980.
Turning now to a consideration of the Petitioner’s application for aWrit of Certiorari to quash the Order made by the President underSection 2 of Act, No. 2 of 1980, it needs to be mentioned at theoutset, that it is clear that a statute which has the effect ofencroaching on the rights of the citizen, whether as regards personor property, must be strictly construed. (Maxwell's Interpretation ofStatutes, 11th Edition, at page 275). The Act under consideration isone such, and upon a strict construction thereof, I am of the view thatfor the reasons set out earlier, the President could not reasonablyhave arrived at, and entertained the opinion he is said to haveentertained.
Lord Atkin said in R. v. Electricity Commissioners(6) that Certiorariwould issue to “any body of persons having legal authority todetermine questions affecting the rights of subjects, and having theduty to act judicially.”
Firstly, inasmuch as Section 2 of Act, No. 2 of 1980 vests in thePresident the legal authority to make the Order thereunder, andinasmuch as the President in fact made the said Order in pursuanceof the legal authority so vested in him, there can be no doubt that thePresident in fact had the legal authority to make the Order inquestion.
The second question that arises is whether the said order affectedthe rights of the Petitioner. It is settled now that the word “rights” mustbe interpreted broadly and is not confined to enforceable rights only.Lord- Denning has said in Schmidt v. Secretary of State for HomeAffairs(6) that, “It all depends on whether he has some right or interest… of which it would not be fair to deprive him without hearing what hemay have to say.” I have set out earlier in this judgment as to howand in what manner the President’s Order affected the Petitioner'srights, and it is not necessary to repeat those comments here. Sufficeit to say that in my view the said Order is one that adversely affectsthe rights of the Petitioner as owner of the said lots 19 and 21, and assuch, he would come within the ambit of the dictum of Lord Atkin asregards his “rights”.
Regarding the third matter, viz: the duty to act judicially, theaccepted view is that the authority concerned (in this instance, thePresident) is under a duty to act judicially or quasi-judicially not onlywhen he is clothed with judicial power, but even if he were exercisinga purely administrative power.
The House of Lords in Ridge v. Baldwin (7) made it clear that theremedy lies in respect of “bodies having legal authority to decidequestions … and (which accordingly have) the duty to act judicially.”This decision extended both the scope of the operation of the Writ ofCertiorari and, with it, the scope of the operation of the rules ofNatural Justice.
It has even been held that where a decision is sufficiently close toa judicial decision, such a decision may also be amenable to a Writof Certiorari, (R. v. Hendon Rural District council(8). However in Ross-Clunis v. Papadoponllous(9)) the Privy Council went further and heldthat even if the power which was granted by the enactment was anadministrative power, "If it could be shown that there were nogrounds on which the appellant could be so saisfied, a Court mightinfer that he did not honestly form that view, or that, in forming it, hecould not have applied his mind to the relevant facts.”
This was followed in Don Samuel v. De Silva m in which it was heldthat, “as the Director did not …even bring his mind to bear upon the
question, the principle enunciated in the Cyprus case (above) woulda fortiori apply. ”
In Ashbridge Investments Ltd., v. Minister of Housing and LocalGovernment(11> Lord Denning stated that, “The Court can interferewith the Minister's decision if he has acted on no evidence …” Thiswas followed in Coleen Properties Ltd. v. Minister of Housing andLocal Government(12) where a local authority had declared two rowsof houses to be clearance areas under the Housing Act, 1957. ThatAct authorised compulsory purchase of "any adjoining land, theacquisition of which is reasonably necessary for the satisfactorydevelopment or use of the cleared area.” The local authority, underthis power, sought to acquire compulsorily, a property owned by theapplicants. Following objections by the applicants, a public inquirywas held, at which no evidence was presented to show the need toacquire the applicant’s property in order to develop the cleared land.The inspector reported that its acquisition was not reasonablynecessary for that purpose. This notwithstanding the Ministerrejected this finding and confirmed the compulsory purchase order.The Court of Appeal quashed the Minister’s decision on the groundthat there was no evidence upon which he could have arrived at hisdecision.
In Secretary of State for Education and Science v. FamesideMetropolitan Borough Council(W Lord Wilberforce said, "If ajudgment requires, before it can be made, the existence of somefacts, then, although the evaluation of those facts is for the Secretaryof State alone, the Court must inquire whether those facts exist, and*have been taken into account. … If these requirements are not met,then the exercise of the judgment, however bona fide it may be,becomes capable of challenge.” In this case the subjective wordingused, viz: “If (he) is satisfied,” meant, “if there are reasonablegrounds upon which he could be satisfied.” and the question for theCourt therefore becomes, “did the Secretary of State havereasonable grounds upon which he could, consider that theeducation authority was acting unreasonably?”; and, “unreasonably”meant, acting in a way that no reasonable authority would act. TheHouse of Lords held that the information available to the Secretary ofState did not warrant his entertaining the view he did.
If I may reiterate, in the instant case, it has been clearlydemonstrated, and I have so held, that inasmuch as there was nomaterial to show the existence of a project at the time the Presidentmade his Order, the President had no evidence whatsoever beforehim to enable him to form the opinion he was required to form,before making his decision to issue his Order. There was therefore nomaterial before him which he could have considered and given hismind to, and no ground upon which he could have formed an opinionbefore he made his Order. The Order made by him under thesecircumstances cannot therefore be allowed to stand.
The duty to act judicially or quasi-judicially involves the duty toafford a hearing. As set out earlier, in Schmidt v. Secretary of State forHome Affairs {6) Lord Denning spoke of a right or interest in theaggrieved party, "Of which it would not be fair to deprive him withouthearing what he may have to say.” In the instant case it was nobody’scontention that the President himself ought to have held an inquiryand given a hearing, This would be both impractical and unrealistic.However, the general rule is that a right to a hearing constitutes aminimum pre-requisite of Natural Justice, and in the instant case, Iam of the view that it ought to have been the duty of the officers ofthe U.D.A. who were responsible for formulating the so called UrbanDevelopment Project and making the recommendation to thePresident to make the Order in question, to have at least, informedthe owners of the houses and buildings to be acquired, of theproposed project and the consequent need for acquisition, and tohave called for their observations and/or objections. The number ofsuch persons would not have been large and I do not think it couldhave been categorized as an impracticable exercise so as to affordan excuse for non-compliance with the audi alteram partem rule. Inthis context, the existence of a litis inter partes is not an essential pre-requisite to the exercise of the audi alteram partem rule, which ariseswhenever there is a duty to act fairly. (S. A. de Smith, Judicial Reviewof Administrative Action, 4th Edition, pages 176 and 177).
And, on the question of fairness, I need only advert to what LordMorris said in the Privy Council case of Furnell v. Whangarai High
Schools Board<14). Delivering the majority opinion, he said: “NaturalJustice is but fairness Writ large and judicially. It has been describedas ‘fair play in action’. Nor is it a lever to be associated only withjudicial or quasi-judicial occasions.”
In R. v. H. /C<15) Lord Parker, C.J. said "Good administration and anhonest bona fide decision must, as it seems to me, require not merelyimpartiality, but acting fairly,” and Salmon L.J. added at page 223:“The authorities, in exercising these powers and making decisions,must act fairly in accordance with the principles of Natural Justice.”
As mentioned earlier no hearing of whatever kind was afforded tothe Petitioner before the impugned Order was published. Needless tosay, if a hearing was given, the fact that there did not exist anyproject as contemplated in section 2 of Act 2 of 1980 would have, tosay the least, come to light.
Learned counsel for the Respondents submitted that since thePresident’s Order relates to several lands besides those of thePetitioner, it will not be possible for this court to quash only that partof the impugned Order (marked ‘B’) relating to the lands Nos. 19 and21 belonging to the Petitioner.
It is my view and I so hold that the Order of the President marked‘B’, tainted as it is with more than one defect, warrants the issue of aWrit of Certiorari quashing the entire Order.
I would add that on a consideration of Article 35 of theConstitution, the Petitioner has correctly not made the President aparty Respondent to the amended application, however he isrepresented by the Attorney-General.
I have given long and anxious consideration to this matter, and forthe reasons set out above, hold that the impugned Order of thePresident marked ‘B’ is null and void, and must be quashed.
It is not necessary for the purposes of this case to discuss theother ingredients set out in Section 2 of Act, No. 2 of 1980. It is
sufficient to say that, in the circumstances of this case, Certiorari liesfor the reasons set out above.
I accordingly quash the Order of the President of the Republic ofSri Lanka dated 1.4.92. The Petitioner is entitled to costs of thisapplication from the State.
BANDARANAYAKE, J. -1 agree.
WIJETUNGA, J. -1 agree.
Application allowed.
Certiorari to issue.