031-SLLR-SLLR-1993-1-DE-SILVA-v.-ATUKORALE-MINISTER-OF-LANDS-IRRIGATION-AND-MAHAWELI-DEVELOPME.pdf
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De Silva, v. Atukorale, Minister of Lands, Irrigation and
Mahaweli Development and Another
283
DE SILVA
v.ATUKORALE, MINISTER OF LANDS, IRRIGATION ANDMAHAWELI DEVELOPMENT AND ANOTHER
SUPREME COURT.
FERNANDO, J., DHEERARATNE, J. ANDWADUGODAPITIYA J.
S.C. APPEAL NO. 76/92.
C.A. APPLICATION NO. 482/91.
3 MARCH, 1993.
Mandamus – Acquisition – Land Acquisition Act as amended by Act No. 8 of1979, S. 39A, 38 proviso (a) – Section 16 of Vie Urban Development AuthorityLaw, No. 41 of 1989 – Exercise of discretion – Public purpose.
After a notice had been exhibited under section 2 of the Land Acquisition Act,orders had been made on 12.03.82 under proviso (a) to section 38, for the takingof immediate possession, on the ground of urgency, of seven allotments of landin Bibile 19A IR 23, 8P in extent. An application made in April 1982 for certiorarito quash the orders on the ground that the acquisition was politically motivatedand not in compliance with the UDA Law was dismissed on 16.10.86. Thereafterpossession was taken. No action was taken to utilise the land. The inaction wasattributed to the fact that court proceedings were pending and lack of finance.The public purpose for which the land was acquired was the Bibile (Town)Development Project. Tenders were called for a project to construct a shoppingcomplex of 32 shops on the land – When can the Minister divest an acquiredland? – Exercise of discretion – Section 39 (A) & (2) of the Land AcquisitionAct as amended by Act No. 8 of 1979.
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Held :
The purpose of the Land Acquisition Act was to enable the State to takeprivate land, in the exercise of its right of eminent-domain, to be used for apublic purpose, for the common good ; not to enable the State or Statefunctionaries to take over private land for personal benefit or private revenge.Where the element of public benefit faded away at some stage of the acquisitionproceedings, the policy of the Act was that the proceedings should terminateand the title of the former owner restored ; Section 39 and section 50.
(a) Where the public purpose was so urgent as to require immediatepossession, necessitating a section 38 proviso (a) order, the land could not berestored if the public purpose was found to have evaporated after possessionwas taken. An improper acquisition could not be put right by executive action.So it was that the amending Act No. 8 of 1979 was enacted to enable reliefto be granted even where possession was taken. The Act contemplates acontinuing state of things and does not refer only to the time of initial acquisition.It is sufficient if the lack of justification appears at any subsequent point of time.
The Minister shall make a divesting order after satisfying himself offour conditions :
no compensation has been paid ;
the land has not been used for a public purpose after possession wastaken under Section 40 (a) of the Land Acquisition Act ;
no improvements have been effected after the Order for possessionunder section 40 (a) ;
the person or persons interested in the land have consented in writingto take possession of the land after the divesting order is publishedin the Gazette.
The purpose and the policy of the amendment (Act No. 8 of 1979)is to enable the justification for the original acquisition, as well as for the continuedretention of acquired lands, to be reviewed. If the four conditions are satifiedthe Minister is empowered to divest. Even in such a case it would be legitimatefor the Minister to decline to divest if there is some good reason – for instance,that there is now a new public purpose for which the land is required.
The executive discretion vested in the Minister is not unfettered or abolute.He must in the exercise of his discretion do not what he likes but what he ought.
The true intent and meaning of the amending Act was to empower the Ministerto restore to the original owner land for the acquisition (or retention) of whichthere was originally (or subsequently) no adequate justification, upon the fulfilmentof the stipulated conditions. It is a power conferred solely to be used for the
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public good, and not for his personal benefit ; it is held in trust for the public;to be exercised reasonably and in good faith, and upon lawful and relevantgrounds of public interest.
The Minister in the instant case, has exercised his discretion very curiously.First he agreed to divest one lot, but did not do so. He then divested the firstlot. Thereafter his reply to a direct request to divest the remaining land, wasin effect, that it was not his business, but a matter for his colleague, who wasnot the statutory authority. This was a clear refusal to exercise his discretionfor a wrong reason, and also an abdication of discretion. In the Court of Appealhe sought to justify his inaction on the different, but patently erroneous basisthat the land was required for a shopping complex – ignorant or forgetful ofthe fact that the land was over 19 acres in extent while the shopping complexrequired only about 3% of that extent; a manifestly erroneous basis for his refusalto exercise his discretion.
The affidavits and documents produced, show, beyond doubt, that hadthe matter been considered properly, the Minister (1st respondent) had no optionbut to make a divesting order, retaining only the land actually required for theshopping complex, subject to compliance with section 39A (2) (d).
Cases referred to :
Ratwatte v. Minister of Lands, (1969) 72 NLR 60,61,63.
Gamage v. Minister of Lands, (1973) 76 NLR 25,32,44.
Femandopulle v. Minister of Lands, (1978) 79 (2) NLR 115, 118.
United States v. Wunderlich, (1951) 342 US 98, 101.
Rooke's Case, (1598) 5 Co. Rep. 99b.
Estwick v. City of London (1647) Style 42.
Roberts v. Hopwood, (1925) AC 578, 613.
Padfield v. Minister of Agriculture, Fisheries and Food, (V968) AC 997.
Breen v. Amalgamated Engineering Union, (1971) 2 Q8 175, 190.
Roncarelli v. Duplessis, (1959) 16 DLR (2d) 689, 705.
APPEAL from judgment of the Court of Appeal.
R. K. W. Goonesekera with K Balapatabendi for the petitioner-appellant.
D. Premaratne, P.C., A. S. G. with Chanaka de Silva for the respondent-respondents.
Cur. adv. vult.
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APRIL 01 St, 1993.
FERNANDO, J.
This appeal involves a question of public and general importanceas to the manner of the exercise of the powers of the Minister undersection 39A of the Land Acquisition Act, as amended by Act No.8 of 1979. After a notice had been exhibited under section 2 of theAct, Orders had been made on 12.3.82, under proviso (a) to section38, for the taking of immediate possession, on the ground of urgency,of seven allotments of land in Bibile, 19A-1R-23, 8P in extent. OneLot was 1R-17P ("thefirst Lot"), another (" the second Lot “) 25,8P,and the remaining five 18A-3R-21P in extent. The petitioner-appellant(" the appellant") claims that he and other members of his familywere co-owners of those allotments; he made an application in April1982 for Certiqrafi to quash those Orders, alleging that the acquisitionhad been politically motivated, that there was no urgency, and thatthere had been no compliance with section 16 of the UrbanDevelopment Authority Law. No. 41 of 1989 ; that application wasdismissed on 16.10.86; and thereafter possession was taken.Subsequently the land seems to have been handed over to the 2ndrespondent, the Urban Development Authority. It is common groundthat the public purpose for which the land was acquired was the Bibile(Town) Development Project.
No action was taken to utilise the land, or any part thereof, pendingthe determination of that application by the Court of Appeal; thereafter,says the Chairman of the Bibile Pradeshiya Sabha, implementationwas " suspended " due to the nonavailability of finance. The appellant,probably noticing this large extent of land remaining unutilized for solong, began to seek its return administratively ; since Orders undersection 38 had been made, the acquisition proceedings could not beabandoned under section 50 ; since possession had been takenunder section 40 (a), pursuant to the section 38 Orders, the Ministerwas not empowered to revoke those Orders under section 39. Theonly possible remedy was thus under section 39A ; according to its
long title, Act No. 8 of 1979 was “ An Act to provide relief
to persons whose lands have been acquired without adequatejustification it provided :
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" 39A (1) Notwithstanding that by virtue of an Order undersection 38 (hereinafter in this section referred to as a “ vestingOrder") any land has vested absolutely in the State and actualpossession of such land has been taken for or on behalf of theState under the provisions of paragraph (a) of section 40, theMinister may, subject to subsection (2), by subsequent Orderpublished in the Gazette (hereinafter in this section referred toas a “ divesting Order') divest the State of the land so vestedby the aforesaid vesting Order.
(2) The Minister shall prior to making a divesting Order undersubsection (1) satisfy himself that –
no compensation has been paid under this Act to any personor persons interested in the land in relation to which the saiddivesting Order is to be made ;
the said land has not been used for a public purpose afterpossession of such land has been taken by the State underthe provisions of paragraph (a) of section 40 ;
no improvements to the said land have been effected afterthe Order for possession under paragraph (a) of section 40has been made ; and
the person or persons interested in the said land haveconsented in writing to take possession of such landimmediately after the divesting Order is published in theGazette
It would appear that the appellant was espousing the cause ofall the co-owners, and at no stage did the respondents contend thatthe appellant lacked locus standi or that the application was defectivefor failure to join all the co-owners. At first he had some success.By letter dated 10.1.89, a director of the 2nd respondent informedthe appellant's sister that there had been a change in the 2ndrespondent's development pian, and that it had been decided to divestthe ownership of one lot to her; the appellant says he met the saiddirector and tendered a handwritten letter from his sister consentingto the divesting, but that up to date the land had not beendivested ; the respondent's position is that no letter of consent wasreceived. However, it is admitted that by a divesting order dated
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25.1.89 under section 39A, published in Gazette 543/12 of 2.2.89,another lot (the first lot) was divested. The appellant then appealedto H.E. the President by letter dated 19.5.89, to which he receiveda reply dated 16.7.89 from the Presidential Secretariat stating thatthe letter had been forwarded to the Secretary, Ministry of Lands,for appropriate action. On 11.8.89 the then Minister of Lands, inanswer to a question in Parliament, stated that the decision as tothe suitability of the land for acquisition had been taken by the2nd respondent, which would be responsible for the payment ofcompensation ; if the 2nd respondent decided that this acquisitionwas unnecessary, because the land was not required for urbandevelopment, or for any other reason, the acquisition proceedingsmight even be totally abandoned ; apart from this, there appears tohave been no response to the appeal to H.E. the President. Theappellant’s brother then appealed on 1.3.90 to the Chairman ofthe 2nd respondent, who by letter dated 26.3.90 stated that " thisAuthority is studying the present land requirements of the Bibile
Town Development and you will be informed when this matter
is finalized and again on 14.9.90 that “ this Authority is pursuing
action with the Ministry of Policy Planningto reach a finality in
acquisition of lands at Bibile “. Thereafter representations were madeto H.E. the President in January 1991 by a Member of Parliamentfrom Bibile, on behalf of the appellant, pleading for the return of hislands which had not been put to any use for nine years. On 22.2.91the appellant wrote to the then Minister requesting him to divest theland. The reply to that request, sent on behalf of the Minister, wasvery significant :
" Acquisition proceedings were initiated by this Ministry on arequest made by the then Ministry of Local Government. Housingand Construction. Your request for the release of this land is amatter for consideration by the Ministry of Policy Planning andImplementation. Please, therefore, make your representations tothe Secretary of that Ministry. *
According to the Chairman of the Bibile Pradeshiya Sabha, sinceBibile town had an acute shortage of proper facilities for commercialactivities it was decided to construct a shopping complex consistingof 32 shops ; tenders were called on 9.11.90 from prospectiveoccupants (lessees) ; and numerous applications were received.According to the 1st respondent (who is the Minister for the purposesof section 39A), it would appear that the decision to construct a
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shopping complex was taken in the latter part of 1990 – probablythe result of the " study “ and the “ action " referred to in the letterswritten by officers of the 2nd respondent in March and September1990. Within the ambit of the original town development project, asconceived in or about 1982, there was nothing in contemplation in1991 other than this shopping complex; there was no other publicpurpose.
It is therefore necessary to consider this shopping complex insome detail. According to the Chairman of the Pradeshiya Sabha,the cost of the project was six million rupees ; upon completion itwould bring immense benefit to the people of Bibile – public roads,wells, conveniences, and cemeteries in the area were in poorcondition, and the income from the shops would enable the PradeshiyaSabha to improve their condition, and also to provide pre-schoolfacilities for needy children ; the complex was to be completed intime for the Buttala Gam Udawa of June 1992. The extent of theproposed complex appears from two documents annexed to the1st respondent's affidavit. One was the relevant declaration undersection 5 which referred to the second lot, 25.8P in extent. The otherdocument was a set of sketches of the complex, according to whichthe total area required was 900 square metres (or less than 35perches). Learned Counsel for the appellant submitted that the 1strespondent's affidavit proceeded on the basis that the shoppingcomplex was to be constructed on the second lot alone. Clearly, theshopping complex did not require 19 acres of land ; in the foreseeablefuture no shopping complex, anywhere in Sri Lanka,’ .would require19 acres xrf land ; beyond any reasonable doubt, therefore, over 18acres of the remaining vested land was not required for the only publicpurpose in contemplation during the period 1990-1992.
On 10.6.92 the appellant filed an application in the Court of Appealfor Certiorari to quash the acquisition and for Mandamus to compelthe 1st and 2nd respondents to divest the aforesaid six allotmentsof land. The Court of Appeal dismissed that application, holdingthat –
The appellant was not entitled to question the acquisition,as his previous application had been dismissed:
the appellant could not complain that the land vested fora specific public purpose ("Bibile (Town) DevelopmentProject") was to be used for a different public purpose (the
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establishment of a shopping complex) which is for the benefitof the public ; " the Minister has the discretion to utilize theland acquired for any other public purpose with the ultimateview of the development of the area
since the land was being used for a public purpose, thequestion of making a divesting order did not arise ; and
in any event “ the whole question of whether there shouldbe a shopping complex is a question to be resolved in thepolitical arena and the appellant is trying to turn a politicalmatter into a justiciable issue " the Minister has the power(to make a divesting order) but it is discretionary. Central tothis sense of discretion is the idea that within a defined areaof power'the official must reflect upon its purpose, and thensettle upon the policies and sto (sic) [steps ?] for achievingthem. There may be discretion in identifying and interpretingpurposes, there may also be discretion as to the policies,standards and procedure to be followed in achieving thesepurposes" where a decision involves a broad question ofState Policy for the development of the area for the publicbenefit, the courts will also be unwilling to exercise theirsupervisory jurisdiction ".
The respondents do not dispute that, as at the date when theapplication was made to the Court of Appeal (and even now), theconditions specified in section 39A (2) have been satisfied : nocompensation had been paid in respect of the land (except perhapsin the case of one lot), the land had not been used for a publicpurpose, and no improvements to the land had been effected.Although no formal written consent by the co-owners was submitted,it is apparent that this was not the ground on which the Ministerrefused to divest; it appears from the affidavits and documents thatsuch consent would have been forthcoming if called for; and theCourt of Appeal did not refuse the application for want of suchconsent, nor did the respondents take up that position. LearnedCounsel for the Appellant did not pursue the prayer for Certiorari inrespect of the original acquisition. He did not seek to question therefusal to divest the second lot, or such other portion of land, aswas reasonably required for the shopping complex. He concededfor the purposes of this appeal, that the shopping complex was a
SCDe Silva v. Atukorale, Minister of tends, Irrigation end
Mahaweli Development end Another (Fernando, J.)291
public purpose and that some land in addition to the second lot couldreasonably be regarded as necessary for that' purpose ; he onlyclaimed a right to the divesting of .the rest of the land.
The first and second grounds relied on by the Court of Appealare not questioned by the appellant. Indeed, the shopping complexwas not a different public purpose, but merely one component of atown development project. The order of the Court of Appeal ischallenged in respect of the other two grounds :
the Minister's discretion under section 39A is not an
unfettered or absolute discretion ; the statute did not evenseek to make it" final and conclusiveand it is subject to .the supervisory jurisdiction conferred by Article 140 of theConstitution ; '■
that discretion has to be exercised reasonably andproperly ; if not, it is subject to review by Mandamus; and
that discretion either was not exercised, or was unreasonablyand erroneously exercised, insofar as the Minister failed todivest the remaining land (apart from whatever was actuallyrequired for the shopping complex); the fact that a small partof the land was required for that purpose did not enable theretention of the entirety.
The learned Deputy Solicitor General contended that even ifthe conditions set out in section 39A (2) had been satisfied, section39A (1) confers an unfettered or absolute discretion on theMinister; that the Minister had chosen not to exercise his discretionunder section 39A (1), and that in any event the refused to exercisehis discretion could not be questioned; and, alternatively, that theMinister could be compelled to make a divesting order only wherethe original acquisition was improper or illegal, or constituted anabuse of power.
There is a fundamental fallacy in this contention. The purpose ofthe Land Acquisition Act was to enable the State to take private land,in the exercise of its right of eminent domain, to be used for a publicpurpose, for the common good ; not to enable the State or Statefunctionaries to take over private land for personal benefit or private
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revenge. Where the element of public benefit faded away at somestage of the acquisition proceedings, the policy of the Act was thatthe proceedings should terminate and the title of the former ownerrestored; hence section 39 and section 50. But there was a lacuna.Where the public purpose was so urgent as to require immediatepossession, necessitating a section 38 proviso (a) order, the landcould not be restored if the public purpose was found to haveevaporated after possession was taken. The mischief of that stateof the law is apparent from several decisions, reported andunreported. Thus in Ratwatte v Minister of Lands,(1) Samarawickrame,J., pointed out that" in recent times, it has been the rule rather thanthe exception to make order for immediate possession of land in
acquisitionsit is remarkable how often over the years it has turned
out that the public interest appeared to require the acquisition of landbelonging to persons politically opposed to the party in power at thetime “. Pathirana, J., in Gamage v Minister of Lands, (2) held thatthe validity of a section 38, proviso (a), order cannot be questionedin a Court, and an aggrieved person can only seek administrativerelief from the Minister under section 39 ; but that provision hadno application where possession had actually been taken. Thereafterwhen the power of the Courts to issue interim injunctionsin respect of mala fide acquisitions was upheld in 1974 by abench of nine Judges (S. C. APN/GEN/6/74 and other cases), theInterpretation (Amendment) Law No. 29 of 1974 was immediatelyenacted. Although Samarakoon, C.J., in Fernandopulle v Ministerof Lands, <3> disagreed with Gamage v Minister of Lands, therecontinued to be dissatisfaction about the extensive use of section38, proviso (a), and the difficulty of challenging such Orders ; thusan improper acquisition in those circumstances could not be put rightby executive action. So it was that the amending Act was enactedin 1979 to enable relief to be granted even where possession hadbeen taken. The long title of the Act refers to land acquired " withoutadequate justification ". The learned Deputy Solicitor Generalcontended that this referred only to the point of time at which theland was initially acquired. I cannot agree. The Act contemplates acontinuing state of things ; it is sufficient if the lack of justificationappears at any subsequent point of time ; this is clear from paragraph
of section 39A (2): if the land has not been used for a publicpurpose after possession has been taken, there is then aninsufficiency of justification ; and the greater the lapse of time, theless the justification for the acquisition.
SCDe Silva v. Atukorale, Minister of Lands, Irrigation and
Mahaweli Development and Another (Fernando, J.)293
If compensation has been paid or improvements have been made,then despite the inadequacy of justification, divesting is not permitted.The purpose and the policy of the amendment is to enable thejustification for the original acquisition, as well as for the continuedretention of acquired lands, to be reviewed ; if the four conditionsare satisfied, the Minister is empowered to divest. Of course, evenin such a case it would be legitimate for the Minister to decline todivest if there is some good reason – for instance, that there isnow a new public purpose for which the land is required. In sucha case it would be unreasonable to divest the land, and then toproceed to acquire it again for such new supervening public purpose.Such a public purpose must be a real and present purpose, not afancied purpose or one which may become a reality only in the distantfuture. The 1st respondent, however, has not given any such reasons,and I cannot make any assumption in his favour.
The argument that an executive discretion of this nature isunfettered or absolute, that the repository of such a discretion cando what he pleases, is not a new one. But it is one which has beenunequivocally rejected. The discretion conferred in 1979 must alsobe considered in the background of the constitutional guaranteeswhich sought to make the Rule of Law a reality, and in particularArticle 12. An example was suggested to the learned DeputySolicitor General : where after an acquisition of one hundredcontiguous allotments of land, for an irrigation project, or for a road,the project had to be abandoned, for technical, financial or politicalreasons, the Minister then exercised his discretion under section 39A,to divest some allotments, while retaining others (in circumstancesin which no rational distinction could be made between the twocategories), perhaps influenced by personal or political considerations.
It was readily conceded that such a decision could be challengedin an application under Article 126. That alone is enough to establishthat the discretion under section 39A is not unfettered ; and here,out of seven lands acquired in one acquisition proceeding, the firstlot has been divested, but not other lots which are equally unaffectedby the proposed shopping complex, and no grounds have been urgedto justify that discrimination. The respondents did not contend thatthe time limit prescribed by Article 126 (2) applied in respect ofthis allegation of the violation of fundamental rights by executiveaction, and in any event that time limit has not been made applicablewhere such a question arises in the course of hearing a writapplication (cf Article 126 (3)). However, leaving aside constitutional
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considerations, according to the general principles of administrativelaw governing statutory discretions, the Minister's discretion isneither unfettered nor absolute. As Justice Douglas of the UnitedStates Supreme Court observed, dissenting, in United States vWunderlich, ,4>.
■ Law has reached its finest moments when it has freed manfrom the unlimited discretion of some ruler, some civil or militaryofficial, some bureaucrat. Where discretion is absolute, man hasalways suffered. At times it has been his property that hasbeen invaded ; at times, his privacy ; at times, his liberty ofmovement ; at times, his freedom of thought; at times, his life.Absolute discretion is a .ruthless master. It is more destructiveof freedom than any of man's other inventions. [The decision ofthe majority] makes a tyrant out of every contracting officer. Heis granted the1 power of a tyrant even though he is stubborn,perverse or captious. He is allowed the power of a tyrant thoughhe is incompetent or negligent. He has the power of life and deathover a private business even though his decision is grosslyerroneous. Power granted is seldom neglected. “
These principles have been explained and elaborated in aseries of English decisions over a long period of time :
“and notwithstanding the words of the commission give
authority to the commissioners to do according to their discretions,yet their proceedings ought to be limited and bound with the ruleof reason and law. For discretion is a science or understandingto discern between falsity and truth, between wrong and right,between shadows and substance, between equity and colourableglosses and pretences, and not to do according to their wills andprivate affections ; for as one saith, talis discretio discretionemconfundit" (Lord Hailsbury, citing Coke, in Rooke's case,,5))
“ Wheresoever a commissioner or other person hath power givento do a thing at his discretion, it is to be understood of sounddiscretion, and according to law, and that this court hath powerto redress things otherwise done by them " (Estwick v City ofLondon, ,6>)
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“ A person in whom is vested a discretion must exercise hisdiscretion upon reasonable grounds. A discretion does notempower a man to do what he likes merely because he is mindedto do so – he must in the exercise of his discretion do not whathe likes but what he ought. In other words, he must, by theuse of his reason, ascertain and follow the course which reasondirects. He must act reasonably" (Lord Wrenbury in Roberts vHopwood, m)
“ Parliament must have conferred the discretion with theintention that it should be used to promote the policy and objectsof the Act; the policy and objects of the Act must be determinedby construing the Act as a whole and construction is always amatter of law far the court. In a matter of this kind it is not possibleto draw a hard and fast line, but if the Minister, by reason ofhis having misconstrued the Act or for any other reason, so useshis discretion as to thwart or run counter to the policy and objectsof the Act, then our law would be very defective if personsaggrieved were not entitled to the protection of the court " (LordReid in Padfield v Minister of Agriculture, Fisheries and Food, (8>)
" First, the adjective [unfettered] nowhere appears in section19 and is an unauthorised gloss by the Minister. Secondly, evenif the section did contain that adjective I doubt if it would makeany difference in law to his powers, save to emphasise what hehas already, namely that acting lawfully he has a power of decisionwhich cannot be controlled by the courts; it is unfettered. But theuse of that adjective, even in an Act of Parliament, can do nothingto unfetter the control which the judiciary have over the executive,namely that in exercising their powers the latter must act lawfullyand that is a matter to be determined by looking at the Act andits scope and objects in conferring a discretion upon the Ministerrather than by the use of adjectives “ (Lord Upjohn in Padfieldv Minister of Agriculture, Fisheries and Food, <8))
* The discretion of a statutory body is never unfettered. It isa discretion which is to be exercised according to law. That meansat least this : the statutory body must be guided by relevantconsiderations and not by irrelevant. If its decision is influencedby extraneous considerations which it ought not to have taken into
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account, then the decision cannot stand. No matter that thestatutory body may have acted in good faith ; nevertheless thedecision will be set aside. That is established by Padfield v Ministerof Agriculture, Fisheries and Food which is a landmark in modernadministrative law" (Lord Denning, M.R., in Breen vAmalgamatedEngineering Union, (9))
" 'Discretion' necessarily implies good faith in dischargingpublic duty; there is always a perspective within which a statuteis intended to operate ; and any clear departure from its lines orobjects is just as objectionable as fraud or corruption. Could anapplicant be refused a permit because he had been born in anotherProvince or because of the colour of his hair ? The ordinarylanguage of the Legislature cannot be so distorted " (Rand, J.,in Roncarelli v Duplessis, (10))
Wade observes (Administrative Law, 5th ed., pp. 353-354) :
" The common theme of all the passages quoted is that thenotion of absolute or unfettered discretion is rejected. Statutorypower conferred for public purposes is conferred as it were upontrust, not absolutely – that is to say, it can validly be used onlyin the right and proper way which Parliament when conferring itis presumed to have intended. Athough the Crown's lawyers haveargued in numerous cases that unrestricted permissive languageconfers unfettered discretion, the truth is that, in a system basedon the rule of law, unfettered governmental discretion is acontradiction in terms. The real question is whether the discretionis wide or narrow, and where the legal line is to be drawn. Forthis purpose everything depends upon the true intent and meaningof the empowering Act.
The powers of public authorities are therefore essentiallydifferent from those of private persons. A man making his will may,subject to any rights of his dependants, dispose of his propertyjust as he may wish. He may act out of malice or a spirit ofrevenge, but in law this does not affect his exercise of his power.In the same way a private person has an absolute power to releasea debtor, or, where the law permits, to evict a tenant, regardlessof his motives. This is unfettered discretion. But a public authoritymay do neither unless it acts reasonably and in good faith and
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upon the lawful and relevant grounds of public interest. Unfettereddiscretion is wholly inappropriate to a public authority, whichpossesses powers solely in order , that it may use them for thepublic good.
There is nothing paradoxical in the imposition of such legallimits. It would indeed be paradoxical if they were not imposed.Nor is this principle an oddity of British or American law ; it isequally prominent in French law. Nor is it a special restriction whichfetters only local authorities ; it applies no less to Ministers of theCrown. Nor is it confined to the sphere of administration : itoperates wherever discretion is given for some public purpose,for example where a judge has a discretion to order jury trial. Itis only where powers are given for the personal benefit of theperson empowered that the discretion is absolute. Plainly this canhave no application in public law *.
I hold that the true intent and meaning of the amending Actwas to empower the Minister to restore to the original owner landfor the acquisition (or retention) of which there was originally (orsubsequently) no adequate justification, upon the fulfilment of thestipulated conditions. It was a power conferred solely to be used forthe public good, and not for his personal benefit; it was held in trustfor the public ; to be exercised reasonably and in good faith, andupon lawful and relevant grounds of public interest.
Further, the Minister has approached his discretion very curiously.First, he agreed to divest one Lot, but did not do so. He then divestedthe first Lot. Thereafter, his reply to a direct request to divest theremaining land, was, in effect, that it was not his business, but amatter for his colleague, who was not the statutory authority ; thiswas a dear refusal to exercise his discretion for a wrong reason,and also an abdication of discretion. However, in his affidavit in theCourt of Appeal, he sought to justify his inaction on the different,but patently erroneous, basis that the land was required for a shoppingComdex – ignorant or forgetful of the fact that the land was over19 acres in extent while the complex required only about 3% ofthat extent; a manifestly erroneous basis for his refusal to exercisehis discretion. The affidavits and documents produced, show,beyond doubt, that had the matter been considered properly, the 1st
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[1993] ISriLR.
respondent had no option but to make a divesting order, retainingonly the land actually required for the shopping complex, subject tocompliance with section 39A (2) (d).
It was agreed by Counsel for all parties that the 1st respondentwould tender to the Court a copy of the Preliminary Plan showingthe portion of land actually required for the shopping complex; thatPlan No. MO/A/80/10 dated April 1981 has been tendered on 26.3.93,and shows two allotments, 2R-19.8P in extent, as being required forthe shopping complex. This the State will be entitled to retain.According to the respondents, one allotment, Hatnarawawatta (2A-3R-32P in extent) did not belong to the appellant, and compensationhas been paid. I therefore set aside the order of the Court of Appeal,insofar as it dismissed the Appellant's prayer for Mandamus. Amandate in the nature of a writ of Mandamus will issue to the 1strespondent (or if he has ceased to hold office, to his successor inoffice)-
directing him to make a divesting order under section 39A (1)of the Land Acquisition Act, in respect of three allotments of landof which possession was taken by virtue of Orders, under proviso(a) to section 38, dated 12.3.82, (namely Dalukwatta, 5A-1R-24P; Galsiyambalawatte, 1A-1R-24P ; and Hatnarawawatta, 8A-2R-13P, in respect of which the conditions specified in section39A (2)(a) to (c) admittedly have been satisfied), provided thatthe Appellant tenders to the 1st respondent on or before 31.5.93a written consent in terms of section 39A (2) (d) from the personsinterested (insofar as he is aware) in the said allotments, and
directing him to consider whether a divesting order ynder section39A (1) ought to be made in respect of Hatnarawawatta, 2A-3R-32P in extent, after hearing the appellant.
The respondents will pay the appellant a sum of Rs. 10,000 ascosts in this Court.
DHEERARATNE, J. – I agree.
WADUGODAPITIYA, J. – I agree.
Appeal allowed.
Mandamus issued.