ENVIRONMENTAL FOUNDATION LTD. v. THE LAND COMMISSIONER AND OTHERS

007-SLLR-SLLR-1993-2-ENVIRONMENTAL-FOUNDATION-LTD.-v.-THE-LAND-COMMISSIONER-AND-OTHERS.pdf


sc
Rassool and others v. Cadet, Director for Mosques and Muslim
Charitable Trusts and others (Fernando, J.)
41
ENVIRONMENTAL FOUNDATION LTD.
v.THE LAND COMMISSIONER AND OTHERS
COURT OF APPEALS. N. SILVA, J.. ANDD. P. S. GUNASEKERA, J.
CA 573/92JULY 30, 1992.
Disposition of Crown Land – Requirement of notification in the Gazette -Environmental impact – Restraining order – Regulation 21 (2) made under section96/6 of the Crown Land Ordinance – Section 24 (1) (as amended) of theInterpretation Ordinance – Inherent power of the Court.
Regulation 21 (2) made in terms of section 96/6 of the Crown Lands Ordinanceobligates the Land Commissioner, unless otherwise directed by the Ministerto cause a notification of every proposal to make a grant or lease of any crownland on preferential terms to be published in the Gazette.
Section 24 (1) of the Interpretation Ordinance as amended does not remove theinherent power of the Court to make an interim order in the nature of a stayorder restraining an administrative authority from proceeding with a particularcourse of action pending determination of an application, where the final reliefwill otherwise be rendered nugatory.
In view of the environmental impact of the proposed lease of state land aninterim order can issue against the 1st respondent (Land Commissioner) and2nd respondent (Minister of Lands, Irrigation and Mahaweli Development)restraining them from executing a lease in respect of state land in favour ofthe 3rd respondent a private company (Aitken Spence Hotel Management (Pvt.)Ltd.).
42
Sri Lanka Law Reports
[1993] 2 Sri LR.
The 3rd respondent being a private company cannot directly be affected by reliefthat will finally be granted in an application for judicial review. If the 3rd respondentcontinues with any construction work on the land it will do so at its peril.
APPLICATION for Writs of Certiorari and Mandamus.
H. L de Silva, P.C. with Lalanath de Silva and Ananda Nanayakkara for petitioner.
K. N. Choksy, P.C. with Romesh da Silva, P.C., Britto Muthunayagam and HarshaAmerasekera for 3rd respondent (Aitken Spence Hotel Management (Pvt.) Ltd.).
Cur. adv. vult.
July 30, 1992.
S.N. SILVA, J. read the following order of Court:
The petitioner has filed this application for Writs of Mandamusand Certiorari against the Land Commissioner and the Minister ofLands. The petitioner has also sought interim relief against theserespondents and the 3rd respondent being a private companyengaged in hotel management. The petitioner is a company andclaims to file this application in the public interest in keepingwith the objects of the company that are directed mainly at thepreservation of the environment. The petitioner has issued notice ofthis application as required by the Rules, in view of the interimrelief that is prayed for. Mr. Choksy, P.C., is appearing for the 3rdrespondent pursuant to this notice. He has objected to the grantof interim relief against the 3rd respondent and also against the1st and 2nd respondents. The 1st and the 2nd respondents havenot appeared before Court although the same notice has been issuedon them. They have also tendered no objection to the grant of interimrelief against them.
The case of the petitioner is that Aitken Spence Hotels Ltd.issued a prospectus in February, 1992 (P4) whereby the publicwere invited to subscribe to shares in the company. The prospectuscontained a section titled " Profile of the Company u. In this sectionit is stated that the company plans to construct a 150 roomed4-Star class Hotel at Kandalama, Dambulla, by a fully ownedsubsidiary. It is stated further, under the sub-heading * Lands andBuildings “ that 50 0 acres of land at Kandalama, Dambulla will beutilised for the construction of the new hotel. This land has been
CA
Environmental Foundation Ud. v. The Land Commissioner and others
(S. N. Silva, J.)
43
leased to Aitken Spence Hotel Managements (Pvt.) Ltd. for a periodof 50 years (which is renewable) by the Ministry of Lands, Irrigationand Mahaweli Development On receiving this information, thepetitioner being concerned with the environmental impact of theconstruction of the proposed hotel made representations to therelevant authorities to ascertain whether such lease has beengiven and if so the conditions of the lease. The petitioner hasproduced copies of letters addressed not only to each of therespondents but also to the Secretary, Ministry of MahaweliDevelopment, Secretary, Ministry of Lands, Minister for Environmentand Parliamentary Affairs and the Surveyor-General, in this regard.There has been no response to these letters specifying whetherany lease has been granted as claimed in the prospectus (P4)and the conditions to be included in such lease. LearnedPresident's Counsel for the petitioner submitted that if such leaseis to be granted the provisions of Regulation 21, made in termsof section 96 (6) of the Crown Lands Ordinance, that relate to,” Sales, Leases and Other Dispositions of Crown Land " shouldbe complied with. In terms of Regulation 21 (2), the LandCommissioner is required, unless otherwise directed by the Minister,to cause a notification of every proposal to make a grant or lease. of any crown land on preferential terms, to be published in theGazette. The Regulation also provides for the matters to be specifiedin the notice, which includes the date on or before which objectionsto the proposal will be received by the Land Commissioner. Thepetitioner has produced marked P34 to P50 notices that had beenpublished under this Regulation with regard to other proposedleases. In particular P39, relates to a notice published in terms ofthis Regulation with regard to the proposed lease for a period of 30years of an extent of about 2 acres for the purpose of constructinga Tourist Guest House and cultivating fruit trees, in the Kandalamavillage at Dambulla. On this basis, it is submitted that no exceptionshould be made if a lease is to be given to the 3rd respondentof 50 acres of land for the construction of the proposed hotel.The petitioner, therefore submits that he is entitled in law to a Writof Mandamus as prayed for in prayer (a) requiring the 1strespondent being the Land Commissioner to cause a notification tobe published in accordance with Regulation 21 (2) regarding the leaseof that land.
44
Sri Lanka Law Reports
[1993] 2 Sri LR.
Learned President's Counsel appearing for the 3rd respondentsubmitted that no interim relief could be granted against the 3rdrespondent since the 3rd respondent is a private company and hisaction is not subject to review in an application for a Writ ofMandamus or Certiorari. Learned President's Counsel also submittedthat the 3rd respondent was placed in possession of the land inquestion pursuant to a decision of D. G. Premachandra, Secretary,Ministry of Lands. In this connection, he has produced letter dated
marked 3R3. As regards the interim relief sought againstthe 1st and the 2nd respondents, learned President's Counselsubmitted that this Court has no jurisdiction to grant such interimrelief in view of the provisions of section 24 (1) of the InterpretationOrdinance, as amended.
We have considered the submissions of learned Counsel andthe contents of the documents that have been filed and produced.We are of the view that the petitioner has established a prima faciecase that a lease in the nature of what is proposed to be given tothe 3rd respondent company will attract the provisions of Regulation21 (2) of the Regulation referred above. In any event notices P34to P50 constitute evidence of an administrative practice and thereappears to be no basis to make an exception in the case of the3rd respondent. In the circumstances, it would be obligatory onthe 1st respondent to publish a notification specifying inter aliathe date on which objections may be filed to the proposed lease.
We have also considered the submission of learned President'sCounsel for the 3rd respondent with regard to the application ofsection 24 (1) of the Interpretation Ordinance, as amended. We areof the view that this provision does not remove the inherent powerof the Court to make an interim order in the nature of a stay orderrestraining an administrative authority from proceeding with aparticular course of action, pending determination of an application,where the final relief will otherwise be rendered nugatory.
Considering the matters that have been pleaded in the petition,in particular with regard to the environmental impact of the proposedlease of state land adjacent to the Kandalama tank, we are of theview that the 2nd respondent should be restrained, pending thedetermination of this application from executing a lease of that landwithout complying with Regulation 21 (2).
CAEnvironmental Foundation Ltd. v. The Land Commissioner and others
(S. N. Silva, J.)45
As regards the interim relief sought against the 3rd respondent,we have considered the submission of learned President's Counselthat the 3rd respondent is a private company and cannot be directlyaffected by judicial review exercised in an application of this nature.
The documents marked 3R1 to 3R3 produced by learnedPresident's Counsel do not disclose the legal basis on whichD. G. Premachandra, Secetary, Ministry of Lands, Irrigation andMahaweli Development directed that the 3rd respondent be placedin possession of the land in question prior to the execution of theproposed lease. Certainly, there is no provision in the Crown LandsOrdinance or the Regulations made there under that empower theSecretary to take administrative action to place any party inpossession of state land pending grant of a lease. Such actionmilitates against the provisions of Regulation 21 (2) which requiresa notice to be published inviting objections. No useful purpose willbe served by such a Regulation if the Secretary could arrogate tohimself the power to place a private party in possession of stateland pending the completion of statutory procedures.
Learned President's Counsel submitted that a lease may begranted in terms of section 2 of the Crown Lands Ordinance. Weare mindful that section 2 grants a complete power to the Presidentto effect, inter alia leases of state land. However, the documentsmarked 3R1 to 3R3 do not disclose that there has been any decisionby His Excellency the President to grant a lease in terms of section2, to the 3rd respondent. Furthermore, we note that according to theprospectus P4 it has been claimed by the 3rd respondent that thelease has been granted by the Ministry of Lands and MahaweliDevelopment. In the circumstances, we are of the view that thedocuments produced by learned Counsel do not establish anauthority under law for the 3rd respondent to be in possession ofstate land. However, we are inclined to agree with the submissionof learned President's Counsel that the 3rd respondent being a privatecompany could not directly be affected by relief that will finally begranted in an application for judicial review. In the circumstances,we are not inclined to grant interim relief prayed for in prayer
of the prayer to the petition. However, it has to be noted thatthe 3rd respondent, if it continues with any construction work on theland in question, it will do so, at its peril.
46
Sri Lanka Law Reports
[1993] 2 Sri LR.
We direct the issue of notice on the 1st and the 2nd respondents(who are not before Court today pursuant to notices that have alreadybeen sent), stating that they may file objections, if any, on 18.8.92.Mr. Choksy, P.C., takes notice on behalf of the 3rd respondent butreserves his right to file objections after the objections, if any, of the1st and the 2nd respondents have been filed.
In view of the reasons stated above we grant the petitioner theinterim relief prayed for in paragraph (/) of the prayer to the petitionon the 1st and the 2nd respondents operative till the finaldetermination of this application. This order will restrain the 1stand 2nd respondents from executing any lease of the state land,in question, without complying with the requirements of regulation21 (2) referred above.