059-NLR-NLR-V-73-H.-S.-H.-P.-GUNAWARDENE-Appellant-and-THE-DISTRICT-REVENUE-OFFICER-WELIGAM.pdf
Gunatcardene v. District Revenue Officer, IVeltgama Korate
a 3
1988Present: Alles, J.
S. H. P. GUNAWARDENE, Appellant, and THE DISTRICTREVENUE OFFICER, WELIGAMA KORALE, Respondent
S. C. 9811967—M. C. Matara, 31977Compulsory acquisition of land—Failure oj the public purpose for which it wasacquired—Claim to nullify the acquisition proceedings—Maintainability—LandAcquisition Act, ss. 4, 5 (2), 5 (3). 17. 38, 40, 42.
It is not open to a person whose land has been acquired under the LandAcquisition Act and the title to which has been vested in the Crown to maintainthat the acquisition proceedings are bad on the ground that the public purposefor which the land was originally acquired has foiled. The Crown is entitled toutilise the land for a public purpose different from that for which it was originallyintended to be acquired. 1
1 (1891) A. C. 455.
See Adkins v. Children's Hospital 1923, 201 U. S. 525, at p. 544.
See, for instance, per Griffith C.J. in Osborne v. Commonwealth (1911), 12 C.L.B,at p. 337.
334ALLES, J.—ChinauarJcnc'jv. District Revenue OJJiccr, Weligama Karate
A.PPEAL from a judgment of the Magistrate’s Court, Matara.
O.E. Chilly, Q.O., with Elmo B. Vannitamby and J/. S. J/. Hussein*for the petit ioner-appella nt.
Mervyn Fernando, Crown Counsel, for the Attomej'-General.
Cur. adv. vult.
September 23, 1968. Alles, J.—
There is no right of appeal in this case but I have considered the matterraised in the petitioner’s appeal by way of revision. This appeal wasfiled on the loth of January 1967 from the order of the Magistrate ofMatara directing the Fiscal to deliver possession of a land belonging tothe petitioner bearing assessment number 347 to the District RevenueOfficer, Weligama Korale, as the representative of the Acquiring Officer.under section 42 of the Land Acquisition Act.
The order under section 4 of the Land Acquisition Act to acquire thepetitioner’s land for a cross-road, bus-stand and for the office of theUrban Council, Weligama (the public purpose contemplated under theAct) was made on the 2nd August 1962 and the 13th of November 1962and notice under section 4 was given to the owners of the land. Inquiryinto the objections to the acquisition was held and thereafter, the decla-ration by the Honourable the Minister was exhibited on the land on 27thApril 1963. The petitioner, who was a tenant of the premises since 1958,purchased the premises on the 12th August 1963 and could not have beenunaware that acquisition proceedings in regard to the land had alreadybeen commenced. The order under section 38 of the Act was made onthe 6th November 1964 and published in the Government Gazette of27th November 1964. On that date therefore, the. title of the landvested in the Crown (vide section 40). Thereafter, the petitioner, on
7.66 made a claim in respect of his interest in the land and asked fora sum of Rs. 170,000 as compensation. This inquiry has also beenconcluded and an award under section 17 of the Act has also been made.According to the petitioner, the compensation offered was only Rs. 27,000which he claimed was inadequate, and he has appealed to the Board ofReview against the award of the Acquiring Officer.
The application for the writ of possession under section 42 (2) wasmade by the District Revenue Officer, Web'gama Korale, on the 24thSeptember 1966 requesting the Magistrate to issue directions to theFiscal to enter the land and break open any doors, if necessary withPolice assistance. On this direction, the Magistrate made an ex parteorder and issued the writ of possession as prayed for by the DistrictRevenue Officer. Notice of the order was given to all occupants of theland including the petitioner. The petitioner then made an applicationto the Supreme Court and prayed that the order to stay execution for
AXLES, J.—Gunaicardene v. District Revenue Officer, Weligama Korale
335
delivery of possession be stayed. When this application came up beforeme on the 12th November 19G6, I directed the Magistrate of Matara tosatisfy himself by affidavit or oral evidence that the averment in theapplication of the District Revenue Officer of threatened obstruction vrasjustified. In pursuance of my directions the Magistrate recorded theevidence of the District Revenue Officer and made order directing theofficer to take possession of the land in terms of section 42 (4) of tho Act.The present appeal is from that order and the main complaint of thepetitioner as stated in his petition of appeal is that he was not given anopportunity to cross-examine the District Revenue Officer at the inquiry.In view of my previous order and the judgment of Sirimane, J. inMohamed Lcbbe v. Madana 1 I do not think there was any necessity forsuch an opportunity to be given to the petitioner,
Mr. Chitty for the petitioner stated that when this appeal came upbefore my brother Tennckoon, J. on 24.S.67, he granted an opportunityto the parties to file affidavits. Crown Counsel is unable to contradictthis position. The petitioner then filed a petition and affidavit on 5.9.67and in that affidavit he stated that the Minister of Public Works,Mr. Montague Jayawiekrema, had stated in the course of a public speechon or about 1st June 1967 that the acquisition of the land for the purposeoriginally intended was not going to be carried out. He also said that theMinister had personally informed him on or about 6th December 1966that the proposed acquisition was not being proceeded with. Theaffidavit contained much hearsay matter and I am not prepared to acceptthe statement in that affidavit as statements of truth. The acquiringofficer also filed an affidavit on the 19th July 196S and in that affidavit hestated that the subject matter of the petitioner’s petition was part ofan entire corpus for an acquisition required for a cross-road, bus-standand Urban Council Office. Crown Counsel stated that the purpose ofthe acquisition has not been changed nor has the acquisition beenabandoned.
Even assuming that after the order made under section 3S the Crownhad decided to utilise the land for some other public purpose, I do notthink that it is open to a person whoso land has been acquired and thetitle to which has been vested in the Crown to maintain that theacquisition proceedings are bad. Learned Crown Counsel drew attentionto the fact that nowhere in the Act is it stated that the public purposeshould be mentioned. Under section 5 (2)aml5(3)oftheActa declarationthat a land is required for a public purpose shall be conclusive evidencethat a land is needed for a public purpose. One must, of course, presumethat the Government will always act in good faith when they acquireproperty belonging to the subject. I can however see no objection to theCrown utilising the land for a different public purpose than that forwhich it was originally intended to be acquired. Circumstances mayarise when it may become necessary for the Government to abandon theoriginal public purpose contemplated and utilise the land for anotherpublic purpose.
1 (1964) 66 N. L. R. 239.
336 . ALLES, J.—Gunawardcnc v. District Revenue Officer, WcUgenna Kornle
I am therefore unable to agree with the submission of Counsel for theappellant that even assuming that the original public purpose hasfailed he is entitled to maintain that the entire acquisition proceedingsare bad. As a result of the dilatory tactics adopted by the petitionerthis matter has been long delayed. Let my order be communicatedforthwith to the Magistrate of Matara so that steps may be taken forcompliance with the Magistrate’s order of 15.1.67. The application isdismissed with costs which I fix at Rs. 105.
J ppliculion dismissed.