BOGAWANTALAWA PLANTATIONS LTD. v. MINISTER OF PUBLIC ADMINISTRATION AND P

038-SLLR-SLLR-2004-V-2-BOGAWANTALAWA-PLANTATIONS-LTD.-v.-MINISTER-OF-PUBLIC-ADMINISTRATION-AND-P.pdf


Bogawantalawa Plantations Ltd. v Minister of Public
CA Administration, Home Affairs & Plantation Industries (Marsoof, J.) 329
BOGAWANTALAWA PLANTATIONS LTD.vMINISTER OF PUBLIC ADMINISTRATION ANDPLANTATIONS AFFAIRS AND OTHERSCOURT OF APPEAL
SALEEM MARSOOF, P.C., J. (P/CA)
SRIPAVAN, J.,
C.A. NO. 836/2000MAY 19, 2004
Land Reform Law Amendment 39 of 1981 – Section 27A (1), Section27A (4), – Revesting in the Commission – Non-compliance of terms andconditions? – Absence of same – Is re-vesting in Order? Delay – Locusiuarit H – Conversion of Public Corporations or Government BusinessUndertakings into Public Companies Act 23 of 1987 – Section 2.
The petitioner sought to quash the order made by the 1st respondent to revest3 estates in the Land Reform Commission. The 3 estates were vested in the6th respondent – Janatha Estate Development Board (JEDB) in 1982. The
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petitioner came into possession of the 3 Estates by virtue of an order madeunder section 2 of Act, No. 23 of 1987 in 1992 and by virtue of a Memorandumof Record entered into with the 6th respondent. The 1st respondent actingunder section 27A (4) sought to revoke the earlier order made in 1982 and torevest the Estates in the Commission.
Held:
The 1982 vesting order in favour of 6th respondent JEDB did not set outany terms and conditions with respect to the conditions for the saidvesting. Nor has any evidence of any agreement or arrangement beforethe Commission and the 6th respondent relating to conditions for vestinghas been tendered.
It cannot be said that there has been non-compliance which would justifythe making of an order to revest the estate in the Commission.
An important pre-condition for the Minister to make an order of re-vestingdoes not exist.
The petitioner has explained the delay. The principles of laches have notbeen applied automatically or arbitrarily or in a technical manner by Courtsof Equity.
The petitioner is admittedly not the owner, but in possession of the landsin question and has expended enormous sums of money for thedevelopment of the estates and hence is a person affected by theimpugned order – and is therefore entitled to seek relief.
APPLICATION for Writ of Certiorari.
Cases referred to:
Issadeen v Commissioner of National Housing and others2003 – 2 Sri LR 10
Biso Menika v Cyril de Alwis and others1982 2 Sri LR 368 at 380
Ramasamy v The Ceylon State Mortgage Bank1976-78 NLR 510 at 514.
Rajakaruna v Minister of Finance1985 1 Sri LR 391 at 395
Vayamba Plantations (Pvt) Ltd. v Hon. D.M. Jayaratne, Minister ofAgriculture & Lands and 4 others
CA 167/99 – CAM 12.1.2004 (distinguished)
Gomin Dayasiri with Maithri Wickremasinghe for petitioner.
A. Gnanathasan, D.S.G., for respondents
Cur. adv. vult.
Bogawantalawa Plantations Ltd. v Minister of Public
CA Administration. Home Affairs & Plantation Industries (Marsoof. J.)
May 19, 2004
SALEEM MARSOOF, P.C., J. (P/CA)The petitioner, Bogawantalawa Plantation Ltd., has invoked 01the writ jurisdiction of this Court with a view of having the ordermade by the 1st respondent dated 21.10.99 and published in theGazette Extraordinary bearing No. 1106/39 dated 19.11.99 markedP7, quashed in so far as it relates to the properties namedUdabacje Estate, Udapola Estate and Iluktenna Estate. Thepetitioner came into possession of these estates by virtue of theorder dated 22.6.92 published in the Gazette Extraordinary dated22.6.92 and marked P1, made under section 2 of the Conversion ofPublic Corporations or Government Business Undertakings into ^Public Companies Act, No. 23 of 1987, and by virtue of theMemorandum of Record marked P4 entered into between thepetitioner and the 6th respondent, the Janatha Estate DevelopmentBoard. The latter has also executed the Power of Attorney markedP5 in favour of the petitioner.
The petitioner in his petition contends that the Order markedP7 which has purportedly been made by the relevant Ministerunder section 27A (4) of the Land Reform Law, No. 1 of 1972, assubsequently amended, is null and void as it is ultra vires,unreasonable and has been made in violation of rules of natural 20justice. However, at the hearing, learned Counsel for the petitionerplaced greater reliance on the argument that the impugned orderwas ultra vires the powers of the Minister under section 27A (4) ofthe Land Reform Law as there has been no non-compliance withany condition relating to consideration for the vesting of the saidlands in the 6th respondent.
Section 27A (1) of the Land Reform Law was introduced intothe Land Reform Law in 1981 by the Land Reform (SpecialProvisions) Act, No. 39 of 1981. The new provision empowered theMinister, at the request of the Land Reform Commission, to vest in 30any State Corporation by an Order published in the Gazette, anyagricultural land or estate land or any portion thereof vested in theCommission under the said Law where it is considered in theinterest of the Commission to so vest, “subject to such terms andconditions relating to consideration for the vesting of that land in
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such Corporation as may be agreed upon between theCommission and such Corporation" (Italics added). According tosection 27A (2), any Order made under the preceding provisionshall have the effect of vesting in such State Corporation specifiedin the Order such right, title and interest to the agricultural land orestate land or portion thereof described in that Order, as was heldby the Commission on the day immediately preceding the date onwhich the Order takes effect. Section 27A (3) provides that byreason of such Order, all the rights and liabilities of the Commissionunder any subsisting contract or agreement, express or implied,which relate to such agricultural land or estate land or portionthereof, shall become the rights and liabilities of such StateCorporation. It is pointed out by learned Counsel for the petitionerthat the vesting order dated 15.2.1982 published in GazetteExtraordinary bearing No. 183/10 and dated 12.3.1982 marked P3by which several estates including the estates in question werevested in the 6th respondent (Janatha Estate Development Board)did not set out any terms and conditions with respect to theconsideration for the said vesting. Nor has any evidence of anyagreement or arrangement between the Commission and the 6threspondent relating to consideration for vesting been tendered byany of the respondents to this application along with theirStatement of Objection.
The impugned Order P7 is an order purported to have beenmade under section 27A(4) of the Land Reform Law, whichprovides that –
“Where any term or condition relating to consideration for thevesting of any agricultural land or estate land or portion thereofin any such State Corporation by an Order under subsection(1) is not complied with, the Minister may be Order publishedin the gazette, revoke the Order under subsection (1) relatingto that land and thereupon that land shall revest in theCommission.”
Having examined the material produced in this case by theparties, it is clear that there is absolutely no evidence of any termsor condition relating to consideration being laid down either in theorder marked P3 or in any other agreement or arrangementsbetween the parties. In the absence of any evidence of any
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Bogawantalawa Plantations Ltd. v Minister of Public-33
^ Administration, Home Affairs & Plantation Industries (Marsoof, J.)
agreement or arrangement between the Land Reform Commissionand the 6th respondent Janatha Estate Development Boardrelating to consideration for the initial vesting of title in the Board,this Court is unable to hold that there has been any non-compliancewhich could justify the making of an order to revest the estates inquestion in the Commission. In the circumstances, this Court holdsthat an important pre-condition for the Minister to make an order ofrevesting under section 27(a)(4) of the Land Reform Law does notexist, and the order P7 is clearly ultra vires.
The learned Deputy Solicitor-General appearing for therespondents took up two preliminary objections to the application ofthe petitioner, namely: (1) that the petitioner is guilty of laches in sofar as he has come to Court nearly 9 months after the impugnedorder marked P7, and (2) the petitioner has no locus standi.
In regard to laches, the learned Deputy Solicitor-Generalsubmits that the petitioner is guilty of undue and unexplained delayas these proceedings were commenced only on 23.7.2000, nearly9 months after the impugned order P7 was published in theGazette. He relied on the decisions of our courts such as Issadeenv The Commissioner of National Housing and Others 0) holdingthat a prerogative writ will not be issued where there is “unjustifiabledelay in applying for the remedy” (per Bandaranayake, J. at page16). The Supreme Court decided in that case that the party seekingredress by way of writ was not entitled to relief by reason of hisdelay amounting to 6 months in the absence of any acceptableexplanation to excuse the delay which had caused prejudice to therespondent. However, this Court is of the view that laches on thepart of the petitioner is only one of the many factors that ought tobe considered in the exercise of the discretion vested in the Courtfor the grant of prerogative relief. Learned Counsel for the petitionerhas pointed out that the order P7 was being challenged on thebasis that it is ultra vires the powers of the Minister, and relied ondicta in Bisomenika v Cyril de Alwis and Others (2) at 380 stressingthat a Court may in its discretion entertain an application for redressin spite of delay on the part of the applicant, especially where theorder challenged is a nullity for absolute want of jurisdiction in theauthority making the order. Our courts have repeatedly pointed outthat “the principles of laches have not been applied automatically or
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arbitrarily or in a technical manner by Courts of Equity themselves."
See, Wanasundera, J. in Ramasamyv The Ceylon State MortgageBanId3) at 514 and G.P.S. de Silva, J. Rajakaruna v Minister ofFinanceW at 395.
The petitioner in this case, however, has sought to explain thereasons for his apparent delay in invoking the jurisdiction of thisCourt. The petitioner is admittedly not the owner of the threeestates and got into the possession of the estates by virtue of theorder marked P1 and the Memorandum of Record dated 25.7.95 120marked P4. The petitioner states that it became aware of therevesting order marked P7 only upon receipt of the letter dated13.6.2000 marked P6 from the 4th respondent (with a copy of P7annexed thereto) requesting the petitioner to handover the propertyknown as Iluktenne Estate to the 4th respondent. It was afterexamining P7 did the petitioner realize that the Minister had madeorder purporting to revest the title in these three estates possessedby the petitioner, on the 2nd respondent Land Reform Commission.These facts have not been denied by the respondents, and are inthe opinion of the Court sufficient to satisfy court that the petitioner ^is not guilty of laches. In the circumstances the preliminaryobjection raised on the basis of the petitioner's alleged laches hasto be rejected.
In regard to the question of locus standi, learned DeputySolicitor-General contends that the petitioner is not the legal ownerof the lands in question and is therefore not a person interested inthe said land. He relies for his submissions on the unreportedjudgment of this Court in Vayamba Plantation (Pvt) Ltd. v Hon.
D.M. Jayaratne. Minister of Agriculture and Lands and fourothers.^ This Court finds that the petitioner, who is admittedly in 140possession of the lands in question and has expended enormoussums of money for the development of the estates, is a personaffected by the Order P7, and is therefore entitled to seek redressfrom this Court by way of prerogative relief. The unreporteddecision cited by the Learned Deputy Solicitor General has to beconfined to the four corners of the Land Acquisition Act in thecontext of which it was made. The said decision relates to thedefinition of the phrase “person interested” in the Land AcquisitionAct, and has no general application.
Muthuvelu v Dias and another
(Wijeyaratne, J,)
335
CA
For the foregoing reasons, the Court accordingly makes orderquashing the revesting order marked P7 in so far as it relates toUdabage Estate, Udapola Estate and lluktenna Estate. There willbe no order of costs.
SRIPAVAN, J. – I agree.
Application allowed.
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