DAYARATNE vs. RAJITHA SENARATNE ,MINISTER OF LANDS AND OTHERS

003-SLLR-SLLR-2006-V-1-DAYARATNE-vs.-RAJITHA-SENARATNE-MINISTER-OF-LANDS-AND-OTHERS.pdf


CA Dayaratne vs Rajitha Senaratne, Minister of Lands and Others 7
DAYARATNEvs
RAJITHA SENARATNE, MINISTER OF LANDS AND OTHERSCOURT OF APPEAL,
SALEEM MARSOOF P. C., J (P/CA) ANDSRISKANDARAJAH, J.
C. A. 1790/2003AUGUST 24, ANDOCTOBER 6, 2004
Land Acquisition Act – Section 2 Notice – Is it amenable to writ jurisdiction ? -Public Officer ceasing to hold office – Without amending the prayer are the
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successors in office bound by any order of court 7 – Applicability of the Court ofAppeal (Appellate Procedure) Rules 1990 • Is the Minister a Public Officerunder the Rules ?-Constitution, Articles 136, 140, 141 and 170.
The petitioner sought to quash the Section 2 Notice, The petitioner also madeas parties to the application, the persons holding office as the Minister ofLands and the Minister of Highways by name as well as by their respectiveofficial designations. When the matter was taken up for argument therespondents took up two preliminary objections that –
the two Ministers who previously held the portfolio of Minister of Lands/Highways have ceased to hold office, and in the circumstances theapplication should be dismissed in limine.
that the,Section 2 Notice is amenable to writ jurisdiction. The petitionercontended that in terms of Rule 5(4) where a Public Officer ceases tohold office, a writ application could be proceeded as against hissuccessor for the time being in such office and that the applicationcould be proceeded with as it presently stands after the successorshave been added as parties and that there is no necessity to amend thepetition or prayer thereto.
HELD:
(i) Neither Rule 5(2) nor Rule 5(4) nor Rule 5(4)(b) nor Rule 5(4)(c) wouldbe applicable.
For Rule 5(5) to apply (a) a Minister should be regarded as a PublicOfficer within the meaning of Part IV of the Rules and (b) and applicationshould have been filed before the specified date.
As the application was filed after the specified date (31.12.1991) evenRule 5 (5) is not applicable.
PerSALEEM MARSOOF, J. (P/CA)
“In the absence of any definition of the phrase “Public Officer” in theRules, I have some doubts as to whether a Minister of the Government iscaught up by the Rules”
Per SALEEM MARSOOF, J. (P/CA)
“I am inclined to the view that the Court of Appeal (Appellate Procedure)Rules have been formulated and have to be interpreted and applied so asto further the ends of justice rather than to perpetrate injustice. This policy isreflected in Rule 5(3). I am conscious that Rule 5(3) strictly has no application
to the present case but the policy manifested in the said Rule is
universally applicable ; and I would therefore have permitted the petitioners
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to add the successors in office and to amend the prayer to the petition as
may be appropriate subject to an order for costs had an application been
made at least on the occasion when the case was taken up for argument.”
Held Further:
A Section 2 Notice only facilitates an Authorised Officer to enter into aland and determine whether such a land is suitable for the publicpurpose for which it is required. A Section 2 Notice by itself does notaffect the right of any person, to his land except to the limited extent ofthe Authorised Officer to enter upon the said land and consider itssuitability for acquisition.
It (Section 2 Notice) is clearly not a decision or order which has theforce of ‘proprio vigore’
APPLICATION for a writ of certiorari/mandamus.
Cases referred to:
Haniffa vs Chairman, Urban Council, Nawalapitiya – 66 NLR 48
Abayadeera vs Dr. Stanley Wijesundara – (1983) 2 Sri LR 267
Kiriwanthe and Another vs Nawaratne and Another – (1990) 2 Sri LR393
R vs Electricity Commissioner's exparte London Electricity JointCommittee Company Ltd., -1924) 1 KG 171 at 205
De Mel vs De Silva – 51 NLR 105
Dias vs Abeywardena – 68 NLR 409
Fernando vs Jayaratne -78 NLR 123
G.P. A. Silva and others vs Sadique and Others – (1978-79)1 Sri LR 166
Bandaranayake vs Weeraratne – (1978-79) 2 Sri LR 412
Mendis, Fowzie & Others vs Goonawardena & G. P. A. Silva – (1978-79)2 Sri LR 322
Gunasekera vs Principal, M/R Godagama Anagarika DharmapalaKanishta Vidyalaya and Others – CA 388/2000 – CAM 17.07.2002
Lucian Silva vs Minister of Lands – CA 233/81 – CAM 22.07.82
Wickremasinghe vs Minister of Lands – CA 235/81 – CAM 22.07.82
Manel Fernando vs Jayaratne – (2000) 1 Sri LR 112
Ronald Perera with Dushit Johnthasan for petitioner
Bimba Jayasinghe – Tillekaratne, Deputy Solicitor General for 3-5 respondents
Cur.adv.vult.
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December 16, 2004SALEEM MARSOOF, J. P /C A
The petitioner who claims to be the owner of the part of a land called“Kurakkanmandiyehena” in extent 1 rood situated in Nugawela, PannilPattu, in Atakanal Korale in the Kahawatte Divisional Secretary's Divisionin the Ratnapura District, has filed this application on or about 16th October2003 challenging the order or decision said to have been made by therespondents to acquire the petitioner’s aforesaid land and the notice dated27th March 2003 (P15) which was exhibited on the land in terms of Section2 of the Land Acquisition Act, No. 9 of 1950, as subsequently amended.The petitioner claims that although the ostensible purpose of the saidproposed acquisition is to widen the Pelmadulla – Embilipitiya highway,land necessary for the said purpose in the vicinity have already beenacquired by the Order made under Section 38 proviso (a) of the LandAcquisition Act published in the Gazette Extraordinary bearing No. 1169/11, dated 30th January, 2001 (P3a) after the exhibition of another Section2 Notice (P2a). The 1st Respondent was the person holding office as theMinister of Lands at the time of filing this application, and the 2ndrespondent was the Minister of Defence, Transport, Highways and CivilAviation at the relevant time, and both these Respondents have been citedby name as well as their respective official designations. The 3rd respondentis the Road Development Authority, the 4th Respondent is the DivisionalSecretary and the 5th Respondent is the Project Engineer attached tothe Asian Development Bank Project Office of the Road DevelopmentAuthority. The petitioner seeks inter alia-
a writ of certiorari quashing the orders/decisions of the 1 st and / or2nd and / or 3rd and / or 4th and / or 5th respondents to acquire thepetitioner’s land and the notice issued by the 4th respondent underSection 2 of the Land Acquisition Act marked P 15 ;
a writ of mandamus directing the 1 st and / or 2nd and / or 3rd and/ or 4th and / or 5th respondents to continue the acquisitionproceeding commenced with the notice issued under Section 2 ofthe Land Acquisition Act (P2a) and the order made under Section38 proviso (a) of that Act and published in the Gazette marked P3a; and
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interim relief restraining the 1st to the 5th respondents, jointly orseverally, from continuing with the impugned acquisition proceedingand taking over any portion of the petitioner’s land.
The application was supported by the learned Counsel for the petitioneron 27th October, 2003, and the Court issued notice on the respondentsand also granted the interim relief prayed for by the petitioner. Therespondents filed their statement of objections in due course and theapplication was to be mentioned on 18th May, 2004 for the counter affidavitof the petitioner, with the stay order expiring on 19th May, 2004. However,it appears from the docket that when the application was mentioned on18th May, 2004 before Wijeratne J., there was no appearance for thepetitioner nor was the counter affidavit filed. Court had on its own motiongranted the petitioner time till 21 st June 2004 to file his counter affidavitsbut the stay order was not extended and it lapsed on 19th May, 2004.When the case was called on 21st June, 2004 before Balapatabendi. J,and Imam, J., learned Counsel for the petitioner informed Court that he willbe filing the counter affidavit of the petitioner in the Registry the very nextday and moved that the stay order may be restored as he failed to attendCourt on 18th May, 2004 owing to a genuine mistake made by him regardingthe date. Court made order directing that this matter be mentioned beforeWijeratne, J. on 29th June, 2004. Thereafter, the petitioner tendered thecounter affidavit of the petitioner with the motion dated 22nd June, 2004and moved Court to-
re-issue the stay order prayed for; and
add the incumbent Minister of Agriculture, Livestock Development,Lands and Irrigation as the 6th respondent and the Prime Ministerand Minister of Highways as the 7th respondent since the 1 st and2nd respondents who previously held the portfolios of Minister ofLands and Minister of Highways respectively have ceased to holdoffice.
Although, there is no record to bear this out in the docket, it may besurmised from the journal entry of 1st July, 2004 that the case wasmentioned before Wijeratne, J on 29th June 2004 who in turn had directedthat the case be mentioned in the President’s Court on 1 st July, 2004. Onthat date, when the case was accordingly mentioned, Court had issuedan interim order in the same lines as the interim order issued on 27th
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October 2003, and fixed the case for argument on 24th August, 2004. Noapplication was made on that date to add the successors in office to the1 st and 2nd respondents as the 6th and 7th respondents or to amend theprayers to the petition.
When the case was taken up for argument on 24th August, 2004, learnedDeputy Solicitor General appearing for the 3rd to 5th respondents took upthe following preliminary objections:
Since the 1 st and 2nd respondents do not hold off ice respectivelyas Minister of Lands and Minister of Highways, can the petitionersseek relief as prayed for in prayers (b), (c), (d) and (e) of theprayer to the petition ?
Is the notice marked P15, a decision or determination amenableto writ of certiorari ?
Learned Counsel agreed to the disposal of these preliminary objectionsby way of written submissions. Learned Counsel for the petitioner reservedhis right to support his motion dated 22nd June 2004 to add the 6th and7th respondents named in the said motion in the event the said preliminaryobjections are not upheld by Court.
Preliminary objection (a) raises an important question relating to theprocedure to be followed in the event of a public officer who is a respondentto a writ application ceasing to hold office during the pendency of theapplication before this Court. There is no dispute that at the time thisapplication was filed on or about 16th October 2003, the 1st and 2ndrespondents did hold the respective portfolios which included the Ministriesof Lands and Highways respectively. It is also common ground that afterthe General Election which was held on the 2nd April 2004, the 1st and2nd respondents ceased to hold their respective Ministries and the personsnow sought to be added as the 6th and 7th respondents took over the saidportfolios. Learned Deputy Solicitor General has pointed out that while thepetitioner has by his prayers (b), (c), (d) and (e) prayed for certain reliefagainst inter alia the 1 st and 2nd respondents in terms of the existingpleadings and prayers, It is further submitted by the learned Deputy SolicitorGeneral that premitting the petitioners to amend the caption with a view ofadding the present incumbents of the offices of Minister of Lands andMinister of Highways at this late stage respectively as the 6th and 7threspondents would be quite meaningless as the petitioner in the prayer to
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the petition does not seek any relief against these persons. It is furthersubmitted by the learned Deputy Solicitor General that the petitioner hasprayed for relief against inter alia the 1 st and 2nd respondents who havenow ceased to hold office and do not enjoy any of the powers that werevested in them at the time of the filing of this application. Learned DeputySolicitior General relies on the decisions in Haniffa v. Chairman, UrbanCouncil, Nawalapitiya(,) and Abayadeera v. Dr. Stanley Wijesundera <2,forthe proposition that the writ of mandamus would only be issued agaisntthe officer or authority in whom the power in question is vested by Law. Infact, in the first of these cases, Tambiah J. (with whom Sri Skanda RajahJ. agreed) observed that a mandamus can only issue against a naturalperson, who holds a public office. Learned Deputy Solicitor General submitsthat to issue a writ of a mandamus against a person who does not possessthe power would be an exercise in futility. ■
Learned Deputy Solicitor General has also submitted that in terms ofRule 3(8) of the Court of Appeal (Appellate Procedure) Rules 1990, a partymay with the prior permission of the Court, amend his pleadings, or fileadditional pleadings, affidavits or other documents, within two weeks ofthe grant of such permission, unless the Court otherwise directs The saidRule expressly provides that after notice has been issued in any case,such permission shall not be granted ex parte. Learned Deputy SolicitorGeneral has invited the attention of Court to the decision of the SupremeCourt in Kiriwanthe and Another v. Nawaratne and Another,<3) which hasheld that the Court has a discretion in allowing any non-compliance oromission in pleadings to be cured upon an application of the partyconcerned. However, learned Deputy Solicitor General submits that noapplication has been made to Court by the petitioner praying for the exerciseof such discretion, although the petitioner had ample opportunity to do so.
Learned Counsel for the petitioner relies heavily on Rule 5(4)(b) readwith Rule 5(5) of the Court of Appeal (Appellate Procedure) Rules 1990 forhis submission that where a respondent who has been cited both byreference to his name and his designation ceases to hold office while anapplication filed against him in terms of Articles 140 or 141 of theConstitution is pending before court, the case can proceed against hissuccessor for the time being in such office, “Without any addition orsubstitution of respondent afresh, proxy or the issue of any notice, unlessthe Court considers such addition substitution, proxy or notice to benecessary in the interests of justice”.
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For the purpose of appreciating the Rules in question, it is necessaryto quote in full all sub-rules of Rule 5 of the Court of Appeal (AppellateProcedure) Rules 1990-
“(1)This rule shall apply to applications under Articles 140 and 141
of the Constitution, in which a public officer has been made arespondent in his official capacity, (Whether on account of anact or omission in such official capacity, or to obtain relief againsthim in such capacity, or otherwise)
A public officer may be made a respondent to any such applicationby reference to his official designation only (and not by name),and it shall accordingly be sufficient to describe such publicofficer in the caption by reference to his official designation orthe office held by him, omitting reference to his name. If arespondent cannot be sufficiently identified in the manner, itshall be sufficient if his name is disclosed in the averments inthe petition.
No such application shall be dismissed on account of anyomission, defect or irregularity in regard to the name designation,description, or address of such respondent, if the Court issatisfied that such respondent has been sufficiently identifiedand described, and has not been misled or prejudiced by suchomission, defect or irregularity. The Court may make such orderas it thinks fit in the interest of justice, for amendment ofpleadings, fresh or further notice, costs, or otherwise, in respectof any such omission, defect or irregularity.
(a) In respect of an act or omission done in official capacity by a
public officer who has thereafter ceased to hold such office, suchapplication may be made and proceeded with against hissuccessor, for the time being in such office, such successorbeing made a respondent by reference to his official designationonly, in terms of sub-rule (2)
If such an application has been made against a public officer,who has been made a respondent by reference to his officialdesignation (and not by name) in respect of an act or omissionin his official capacity, and such public officer ceases to hold
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such office, during the pendency of such application, suchapplication may be proceeded with against his successor, forthe time being, in such office, without any addition or substitutionof respondent afresh, proxy or the issue of any notice, unlessthe Court considers such addition, substitution, proxy or noticeto be necessary in the interest of justice. Such successor willbe bound, in his official capacity, by any order made, or directiongiven, by the Court against, or in respect of, such originalrespondent.
Where such an application has been made against a publicofficer, who has been made a respondent by references to hisofficial designation (and not by name), and such public officerceases to hold such office after the final determination of suchapplication, but before complying with the order made or directiongiven therein, his successor, for the time being in such office willbe bound by and shall comply with, such order or direction.
The provisions of sub-rules (4)(b) and (4)(c) shall apply to anapplication under Article 140 and 141 filed before such date asmay be specified by the Chief Justice by direction, against apublic officer, in respect of an act or omission in his official capacity,even if such public officer is described in the caption both byname and by reference to his official designation.
Nothing in this rule shall be construed as imposing any personalliability upon a public officer in respect of the act or omission ofany predecessor in office
In this rule, “ceases to hold office ‘means’ dies, or retires orresigns from, or in any other manner ceases to hold, office”(Emphasis added)
It is the contention of the learned Counsel for the petitioner that interms of Rule 5(4)(a) where a public officer ceases to hold office, a writapplication may be made and proceeded with against his successor forthe time being in such office, such successor being made respondent byreference to his official designation only in terms of sub-rule 2. It is
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submitted that the 1st and 2nd respondents to this application haveadmittedly ceased to hold their respective offices, and it is sought to addthe 6th and 7th respondents who are their successors in office. LearnedCounsel for the petitioners submits that this application of the petitionercan be proceeded with as it presently stands against the 6th and 7thRespondents in place of the 1st and 2nd Respondents after the 6th and7th respondents have been added as parties to this application. It issubmitted by learned Counsel for the petitioner that there is no necessityto amend the petition or the prayer thereto as stated by the learnedCounsel for the 1 st to 5th respondents.
I have several difficulties in agreeing with this submission made onbehalf of the petitioner. Firstly, even assuming that a Minister can be regardedas a “public officer” within the meaning of the phrase as used in Part IV ofthe Court of Appeal (Appellate Procedure) Rules 1990, neither Rule 5(2)nor Rule 5(4)(a) of these Rules has any relevance to this case as this isnot a case where any public officer or successor in office to a public officerhas been cited as a respondent by reference to his official designationonly. Secondly, neither Rule 5(4)(b) nor Rule 5(4)(c) would apply to theinstant case as this is not a case where a public officer cited as respondentby his official designation only has ceased to hold office during the pendencyof the case or after the judgment but prior to its execution. This is a casewhere the 1 st and 2nd respondent have been described in the caption byname and by reference to their respective official designations. Such acase could attract Rule 5(5) of the aforesaid Rules only if-
A Minister can be regarded as a “public officer” within the meaningof Part IV of the aforesaid Rules ; and
the application was filed before such date “as may be specifiedby the Chief Justice by direction."
In the absence of any definition of the phrase “public officer” in theRules, I have some doubt as to whether a Minister of the Government iscaught up by these Rules as the said phrase is defined in Article 170 ofthe Constitution of the Democratic Socialist Republic of Sri Lanka (interms of Article 136 of which these Rules have been made) so as toexclude a Minister. Of course, the definition contained in Article 170 willonly apply with respect to the provisions of the Constitution, and it ispossible to argue that the definition is not applicable to the Rules made
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under Article 136 of the Constitution. It is also possible to argue that thephrase “public officer" as used in the Rules in question should be broadlyinterpreted. It is however not necessary to decide those quesiton as thisapplication has been filed on or about 16th October 2003, long after 31 stDecember 1991 which is the date specified by the Chief Justice for thepurposes of Rule 5(5) in terms of the notification dated 16th December1991 published in the Gazette of the Democratic Socialist Republic of SriLanka bearing No. 697 and dated 10th January 1992 ; it will follow thatRule 5(5) will not have any application to this case* and accordingly Rule5(4)(b) too will not have any application to this case.
Had this been an application filed before the “specified date” (31stDecember 1991) against public officers cited as respondents by referenceto their names and designations, the combined effect of Rule 5(4)(b) andRule 5(5) would have been to permit the continuation of the proceedingsagainst the successors in office of the public officers in question even afterthey cease to hold office “without any addition or substitution of respondentafresh”. That facility may not be available in a case like the present, fortwo reasons : Firstly, this being an application for mandamus, relief canonly be obtained against a natural person who holds a public office as wasdecided by the Supreme Court in Haniffa v. Chairman, Urban Council,Nawalapitiya. (Supra) Secondly, this is an application that has beeninstituted after 1 st January 1992. Accordingly, it will be necessary in casessuch as this to add or substitute the successor in office of any originalrespondent who has been made a respondent by reference to both hisname and his official designation, but as pointed out by learned DeputySolicitor General it would be quite meaningless to add or substitute thesuccessor in office of the respondent who has ceased to hold office unlessthe pleadings, and in particular the prayer, is amended to apply to theadded or substituted respondent. I note that although the learned Counselfor the petitioner has reserved his right to support his motion dated 22ndJune 2004 to add the 6th and 7th respondents named in the said motion inthe event the preliminary objections raised in this case are not upheld byCourt, no application has ever been made on behalf of the petitioner toamend the prayer to the petition.
However, I am inclined to the view that the Court of Appeal (AppellateProcedure) Rules have been formulated, and have to be interpreted andapplied, so as to further the ends of justice rather than to perpetrate
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injustice. This policy is reflected in Rule 5(3) which expressly providedthat Court may make such order as it thinks fit in the interest of justice, foramendment of pleadings, fresh or further notice, costs, or otherwise, inrespect of any ….omission, defect or irregularity. I am conscious that Rule5(3) strictly has no application to the present case as the 1st and 2ndrespondents have been cited as respondents to this application both byreference to name and official designation, but the policy manifested inthe said Rule is universally applicable. I would therefore have permittedthe Petitioner to add the successors in office to the 1st and 2ndrespondents as the 6th and 7th respondents respectively and to amendthe prayer to the petition as may be appropriate subject to an order forcosts, had an application been made at least on the occasion when thecase was taken up for argument.
However, there is an even more formidable obstacle to the maintainabilityof the application before Court. That obstacle takes the form of preliminaryobjection (b) that has been raised on behalf of the 3rd to 5th respondents.The said is simply that the notice marked P15 is not a decision ordetermination amenable to writ of certiorari. In this connection, the attentionof Court has been invited to the seminal and oft cited speech of Lord Atkinin R v. Electricity Commissioner ex parte London Electricity JointCommittee Company Ltd(t) at 205, pronouncing that –
“Wherever any body of persons having legal authority todetermine questions affecting the rights of subjects, and havingthe duty to act judicially, act in excess of their legal authority theyare subject to the controlling jurisdiction of the King’s Bench Divisionexercised in these Writs” [emphasis added]
Learned Deputy Solicitor General has submitted that it is trite law thata writ will issue only where the decision-maker has determined questionsaffecting the rights of subjects, but the Section 2 notice marked P15 doesnot contain any such determination. Learned D. S. G. has referred us tocertain decisions relating to Commission of Inquiry such as De Mel v. DeSiivaf5>, Dias v. Abeyawardena(6> and Fernando v. Jayaratne|7) holding inessence that only a determination which directly or inevitabley results inthe legal rights of a subject being affected is amendable to writ of certiorari.In the last of the above mentioned cases, Sharvanada J (as he then was)observed at page 129 of the judgement that-
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‘The only power that the Commissioner has is to inquire andmake a report and embody therein his recommendations. He hasno power of adjudication in the sense of passing an order whichcan be enforced proprio vigore, nor does he make a judicialdecision. The report of the respondent has no binding force; it isnot a step in consequence of which legally enforceable rightsmay be created or extinguished.”
In G. P. A. Silva & Others v. Sadique and Others w, it was held that asthe impugned decision had no effect proprio vigore no Writ shall lie againstsuch a decision. However, in Bandaranaike v. Weeraratne{9)m\ of certiorariwas issued on the basis that-
“Although, the writs will not normally issue to a body having nopower to make a binding determination, they have issued to personsand bodies making reports and recommendations that acquirelegal force after adoption or confirmation or other consequentialaction by another body” [emphasis added]
The Court reasoned that once the Special Presidential Commission ofInquiry determined that a person was guilty, there was nothing more left tobe done than the adoption of that decision by the executive and thelegislature, Similarly in Mendis, Fowzie & Others v. Goonewardena andG. P. A. Silva(,0) Vythialingam, J. after an extensive survey of the caselaw, held that a writ should lie against the decision of the Commission ofInquiry as it had force proprio vigore.
In the instant case, the order sought to be quashed by certiorari is thenotice exhibited under Section 2 of the Land Acquisition Act marked P15.It is clearly not a decision or order which has force proprio vigore. In thescheme of the Land Acquisition Act, a Section 2 notice only facilitates anauthorized officer to enter into a land and determine whether such a landis suitable for the public purpose for which the land is required. Thus theSection 2 notice by itself does not affect the right of any person to his landexcept to the limited extent of permitting the authorised officer to enterupon the said land and consider its suitability for acquisition, which is avery preliminary stage of the entire process. Therefore, if the Ministerconsiders that a particular land is suitable for a public purpose, he directsthe acquiring officer in terms of Section 4(1) of the Act to publish a notice
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calling for written objections to the intended acquisition, and afterconsidering such objections, if any, and the relevant Minister's observationson such objections, the Minister has to decide in terms of Section 4(5) ofthe Act whether such land should be acquired or not. It is thereafter that awritten declaration that such land is needed for a public purpose is madeby the Minister and published in the Gazette as required by Section 5 ofthe Act. It is for this reason that this Court in Gunasekara v. The Principal,MR/GodagamaAnagarkika Dharmapala Kanishta Vidyalaya and Otherdheld that an application fora writ of certiorari to quash a Section 2 noticeunder the Land Acquisition Act was premature and thereby upheld thepreliminary objections to that effect. As Shiranee Tilakawardena J. observedat page 7 and 8 of her judgment-
“Another matter that is relevant to this application is that at thetime of filing of this application the acquisition proceedings wereat an initial stage, and only notice under Section 2 of the LandAcquisition Act had been issued. A notice in terms of Section 2of the Land Acquisition Act is issued when the Minister decidesthat the land in any area is needed for any public purpose. TheSection 2(1) notice is issued with the objective of making a surveyof a land and making boundaries thereon and to determine whethera land would be found within its parameters that would be suitablefor the public purpose of the said Act.”
Justice Tilakawardene went on to hold in this case that the applicationfor writ of certiorari was premature in the circumstances of that case, andshould be dismissed in limine, Similarly, in Lucian de Silva v. Minister ofLandd'2) and Wickremasinghe v. Minister of Lands(,3), it was held thatsteps taken under Section 2 of the Land Acquisition Act are onlyinvestigative in character, and that it is premature to invoke the writjurisdiction of our courts with a view of quashing a Section 2 notice.
Learned Counsel for the petitioner has in this connection drawn theattention of Court to the judgment of the Supreme Court in Mane!Fernandov. Jayaratne(,4). That was a fundamental rights application filed in theSupreme Court under Article 126 of the Constitution M. D. H. Fernando J.after carefully analyzing the relevant provisions of the Land AcquisitionAct held that the Section 2 notice in that case was bad in law insofar as itdid not disclose the particular public purpose for which the land was soughtto be acquired. His Lordship observed at page 126-
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“Section (2)2 required the notice to state that one or more actsmay be done” in order to investigate the suitability of that land forthat public purpose”: obviously “that” public purpose cannot bean undisclosed one. This implies that the purpose must bedisclosed. From a practical point of view, if an officer acting underSection 2(3)(i) does not know the public purpose, he cannot fulfillhis duty of ascertaining whether any particular land is suitable forthat purpose.
Likewise, the object of Section 4(3) is to enable the owner tosubmit his objections which would legitimately include an objectionthat his land is not suitable for the public purpose which the statehas in mind, or that there are other and more suitable lands. Thatobject would be defeated, as there would be no meaningful inquiryinto objections, unless the public purpose is disclosed. If the publicpurpose has to be disclosed at that stage, there is no valid reasonwhy it should not be revealed at the Section 2 stage.
In my view, the scheme of the Act requires a disclosure of thepublic purpose, and its objects cannot be fully achieved withoutsuch disclosure. A Section 2 notice must state the public purpose- although exceptions may perhaps be implied in regard topurposes involving national security and the like.”
Although Manel Fernando’s case (Supra) was a fundamental rightsapplication which was not circumscribed by the parameters enunciatedby Lord Atkin in the Electricity Commissioners case (Supra) as developedby our Courts in the decisions mentioned above, I find that the abovequoted dicta of Fernando, J. support the view that a Section 2 notice isexhibited to facilitate investigation into the suitability of the land, and thatit would be premature to challenge a Section 2 notice which sets out theparticular public purpose for which the land is needed, at a stage prior to adecision being made by the Minister under Section 4(5) of the LandAcquisition Act that the land in question should be acquired. I am satisfiedthat the Section 2 notice marked P15 which is sought to be quashed inthese proceedings clearly sets out the particular public purpose for whichthe land is needed, namely for the widening of the Pelmadulla – Embilipiitiyahighway, and is therefore not afflicted by the malady that was sought to beremedied in Manel Fernando’s case (Supra), I therefore uphold preliminaryobjection (b) raised by the learned Deputy Solicitor General and dismiss
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this application. There shall be no order of costs in all the circumstancesof this case.
SRISKANDARAJAH, J — I agree.
Application dismissed.