HEWAWASAM GAMAGE (alias J. A. William), Appellant, and THE MINISTER OF AGRIC

005-NLR-NLR-V-76-HEWAWASAM-GAMAGE-alias-J.-A.-William-Appellant-and-THE-MINISTER-OF-AGRIC.pdf


Hetvawatam damage v. Minister of Agriculture and Lands88
1973Present: Pathirana, J., and Rajaratnam, J.
HEWAWASAM GAMAGE (alias J. A. William), Appellant, and THE
MINISTER OF AGRICULTURE AND LANDS (The Hon. H. S. R. B.
Kobbekaduwa) and another, Respondents
ST. C. 94/71 (Inty.)—D. C. Colombo, 2364/ZL
Land Acquisition Act (Cap. 460)—Section 2 and proviso (a) to s. 38—Minister’s decision thereunder to acquire a land for a publicpurpose—Non-liability to be reviewed by the Courts—Order totake, on ground of urgency, immediate possession of a portion ofa larger land—Uncertainty of a boundary at that stage—Validityof the order—Whether an interim injunction can be claimed under. s. 86 of Courts Ordinance—Land Acquisition Act, as amended byAct No. 28 of 1964, ss. 2, 4, 4A (1), 5, 6, 17, 38, 41, 51.
On 31st August 1968 the Acquiring Officer issued notice undersection 2 (1) of the Land Acquisition Act, that a portion of a larger 'land described in "the notice was required for a public purpose.On 25th September 1970 the Minister, acting under proviso (a) tosection 38, directed the Acquiring Officer to take immediatepossession of the land as it had become urgently necessary to acquirethe land for the purpose of a public market. The plaintiff-appellantinstituted the present action on 31st October 1970 for a declarationthat the purported acquisition of the land was ultra vires and nulland void and for an interim injunction restraining the Ministerfrom acquiring or taking any further steps in the acquisitionproceedings. He submitted that the Minister was acting mala fideor in excess of his powers in that the proposed acquisition wasmotivated by political and personal animosity towards him on thepart of a Member of Parliament. He further contended that theacquisition of the land under proviso (a) to section 38 of the Land-Acquisition Act was made in contravention of the provisions of theAct as it did not set out the particular land to be acquired and/oras it purported to acquire an indeterminate corpus. Admittedly,although^ the portion of the land sought to be acquired had definiteboundaries to the North, East and South, the Western boundarywas not demarcated because it was vaguely referred to as aremaining portion of the same land.4*
Held, (i) that the validity of a decision of the Minister undersection 2 (1) of the Land Acquisition Act and an order of the Minis-ter under proviso (a) to section 38 of the Act cannot be questionedin a Court of law. The question whether a land should be acquiredis one of policy to be determined only by the Minister.
that the Minister is entitled, on the ground of urgency, tomake an order under proviso (a) to section 38 to take immediatepossession of a portion of a larger land, even though, owing to theabsence of a Plan, the boundaries of such portion are uncertainand indeterminate at that stage. In such a case the boundaries will,be demarcated at a subsequent stage when a survey and plan areprepared in compliance with the requirements of section 41 (c)
. read with section 6.'
Karunanayake v. de Silva (70 N. L. R. 398) not followed.
that the party affected by an order, under proviso (a) tosection 38 is not entitled to ask for an interim injunction in . termsof.section 86 of the Courts Ordinance to-challenge the order of theMinister and restrain the Minister' from acquiring the land beforethe stage when, under the Act, it becomes obligatory for a surveyand a plain to be prepared. In the present case, the Acquiring Officerwas not even attempting to take actual possession of the land-withthe western boundary undefined.
LXXVI—21* K 21400 (4/73)
26 PATHIRANA, J.—Hewawasam Oamage v. Minister of Agriculture and Lands
PPEAL from a judgment of the District Court, Colombo.
W. Jayewardene, with W. S. S. Jayewardene, Li. C.Seneviratne and Mark Fernando, for the plaintiff-appellant.
K.M. M. B. Kulatunga, State Counsel, with K. W. D. Perera,State Counsel, for the defendants-respondents.
Cur. adv. vult.
January 15, 1973. Pathirana, J.—
The plaintiff-appellant instituted this action on 30.10.70 againstthe 1st defendant-respondent, the Minister of Agriculture andLands, and the 2nd defendant-respondent, the Acquiring Officerand District Land Officer, Colombo, for a declaration that thepurported acquisition of the land called KEENAGAHALANDA,in extent 1A. OR. 0.6P, described in the second schedule to theplaint is illegal, ultra vires and null and void and for an interiminjunction restraining the defendants from acquiring or takingany further steps in the acquisition proceedings until the matteris finally decided. Pending the determination of this questionthe plaintiff-appellant had obtained an interim injunction fromthis Court in terms of Section 20 of the Courts Ordinance. Theacquisition of the plaintiff’s land was for the purpose of a publicmarket.
The plaintiff in the affidavit has stated that the said acquisitionhad been instigated or induced by Mr. Wilfred Senanayake,Member of Parliament for Homagama, who is the Chairman ofthe Town Council, Homagama, within whose electorate the landsought to be acquired is situated. The proposal for the saidacquisition was motivated by political and personal animositytowards him by Mr. Senanayake for working against him at thelocal and general elections and for not allowing two of his closerelatives, namely, D. A. Senanayake and D. C. Senanayake tocontinue the occupation of the land sought to be acquired. Theplaintiff had filed action No. DC 43850/M. to have these twopersons ejected from the portion sought to be acquired, and on31.3.69 a writ had issued against them for ejectment. He furtherstated that within a radius of 100 yards of the said land therewere two allotments of bare land which could easily be acquiredfor this purpose. In his plaint, the plaintiff has further statedthat the acquisition of the said land under proviso (a) of section38 of the Land Acquisition Act was made in contravention of theprovisions of the said Act as it does not set out the particularland to be acquired and/or as it purports to acquire anindeterminate corpus.
PATBIRANA,. J.—Hewawasam Qamage v. Minister of Agriculture and Lands 27
On 31.8.68 the Acquiring Officer, the 2nd respondent, hadissued notice (PI) under section 2 (1) of the Land AcquisitionAct that a block of land described in the said notice was requiredfor a public purpose. The plaintiff had addressed a letter (A2)on 16.9.68 to the Government Agent with a copy to the Ministerobjecting to the said acquisition. He received a reply (P3) dated7.9.70 that his objections will be considered at the inquiry thatwill be held under section 4 (4) of the Act. However, on 18.9.70he received a letter from the Permanent Secretary, Ministry ofAgriculture and Lands (P4), stating that by virtue of the powersunder proviso (a) of section 38 of the Act the Minister hasissued an order that it has become urgently necessary to acquirethe land for the purpose of a public market for the HomagamaTown Council. In that same letter the Permanent Secretary hasstated that the land will be surveyed very shortly, and whenthe plans are made after the survey the Acquiring Officer willhold an inquiry to come to a decision concerning the compensa-tion to be paid for the land under section 46, and that possessionof the land will be taken over by giving timely notice by theAcquiring Officer in due course.
By Gazette notification of 25.9.70 (D1a) the 1st defendant-respondent acting under section 38, proviso (a), directed theAcquiring Officer to take possession of the land described in thesecond schedule to the plaint.
The defendants-respondents in their statement of "objectionstook up the position that the District Court had no jurisdictionto review and/or adjudicate upon the validity of the said noticeissued in terms of section 2 of the Land Acquisition Act and/orthe said Order made under proviso (a) to section 38 of the saidAct. They prayed that the plaintiff’s application for an injunctionbe refused. It must, however, be noted that no affidavit wasfiled by the defendants-respondents controverting the allegationsand matters set out in the plaint and the affidavit of theplaintiff.
The objection relied on by the Crown at the inquiry into theapplication for an interim injunction was that the Minister’sdecision under section 2 (1), and the Minister’s order underproviso (a) to section 38 were not reviewable or justiciable bythe Courts. Whether a particular land is suitable for a publicpurpose or not is entirely a matter for decision by the Minister.Whether the decision was made for political reasons, mala fideor for considerations other than that for a public purpose, oncea decision was taken by the Minister, the Courts cannotsubstitute itself for the Minister. It was, therefore, notcompetent for the Courts to adjudicate on a decision taken bytijg Minister.
28 PATHXRANA, J.—-Hewawasam Oamage v. Minister of Agriculture and Lands
The Crown also took up the position that there was nouncertainty as to the corpus sought to be acquired and that thedescription given in the order under proviso (a) to section 38was of a determinate corpus.
The learned District Judge by his order dated 22.1.71 refusedthe plaintiff’s application for an interim injunction. He held thateven if the acquisition had been motivated by political reasonsor reasons extraneous to the Land Acquisition Act it cannot bequestioned in a Court of Law. The question whether the landshould or should not be acquired is one of policy to be determinedby the Minister concerned and even if that question had beenwrongly decided it was one that cannot be questioned in a Courtof Law. He further held that there was no merit in the contentionthat the corpus sought to be acquired was an indeterminateportion of a large land and that the order under Section 38described the land with regard to definite metes and boundsand gave its extent. He further held that on the material placedbefore, the Court on a bona fide view the plaintiff was notentitled to the substantive relief he claimed and as such it waswrong to issue an injunction. This appeal arises from this order.
Mr. Jayewardene appearing for the plaintiff-appellant basedhis argument on two main points. Firstly, that the 1st defendant-respondent, the Minister, was seeking to exercise his statutorypowers to acquire the land for reasons extraneous to the statute,namely, at the instigation of Mr. Wilfred Senanayake, theMember of Parliament for Homagama, and was therefore actingmala fide or in excess of his powers. Secondly, that the landsought to be acquired is an indeterminate portion of a largerland and for this purpose he relied on the judgment of T. S.Fernando J. in Karunanayake v. de Silva 1 (70 N. L. R. 398),which held that in proceedings under the Land Acquisition Act,the Notice under Section 4, the Declaration under Section 5 andthe Order under Section 38 must each set out the particular landto be acquired. The acquisition cannot be of an indeterminatecorpus, and that where there was uncertainty as to the preciselocation of the land, the plaintiff was entitled to an interiminjunction restraining the acquisition.
At the argument before us, Mr. Kulatunga, State Counsel, tookup the position that the District Court had no jurisdiction toadjudicate upon the validity of the acquisition order made bythe Minister as the Minister was not acting judicially, but in anexecutive capacity, and that the question whether the landshould or should not be acquired, being one of the policy to bedetermined by the Minister, was not, even if it was wrongly
» {10G8) 70 N. L. B. 398.
PATEECRANA, J.—Bewawasam Gam age v. Minister of Agriculture and Lands 29
decided, justiciable by the Courts. Secondly, he submitted thatthe District Court is a Court of original civil jurisdiction byvirtue of Section 62 of the Courts Ordinance and it was thereforean inferior Court unlike the Supreme Court which under Section7 is the only superior Court of Record. His position was that theSupreme Court being a superior Court of Record was the onlyCourt which has the supervisory jurisdiction over the inferiorCourts. This supervisory jurisdiction was exercised by means ofthe prerogative writs. The District Court being an inferior Courtsubject to the supervision of the Supreme Court having only theoriginal civil jurisdiction did not have the power of reviewingthe orders of administrative functionaries except where suchpower is conferred by the statute. In this case, there had beenno such power, the District Court had no jurisdiction to reviewthe order of the Minister. I must say that this was not theposition taken up in the District Court where the only questionthat arose for decision was the jurisdiction of the District Courtin the limited sense, namely, whether the order of the Ministermade in the circumstances of the case was reviewable by theDistrict Court, being a decision based on policy. State Counselfurther took up the position that even if we hold that theacquisition proceedings were ultra vires and null and void, stillin view of the provisions of the Interpretation (Amendment)Act, No. 18 of 1972, which came into operation on 11.5.72 afterthe order appealed from in this case was made on 22.1.71, thedeclaratory remedy and the relief by way of an interiminjunction were not available to the appellant as the amendingAct was retrospective in its operation and applied to pendingactions. Mr. Jayewardene contended otherwise. These questionswill only arise for decision if I hold that the acquisitionproceedings are not in conformity with the Statute.
I shall deal with the first contention of Mr. Jayewardene thatthe 1st defendant in issuing notice under section 2 and the orderunder proviso (a) to section 38 was not acting in terms of theStatute but was exercising his powers mala fide for thefurtherance directly or indirectly, of political motives and notfor a public purpose as stated in the Act and that therefore thedecision of the Minister was mala fide and/or in excess of hispowers, and was, therefore, subject to review by this Court.
To support his contention that where a Statute authorises theacquisition of a land for a particular purpose it would not bepermitted to exercise the powers for different purposes ormotivated by ulterior or extraneous reasons which are manifestlydifferent from the purpose for which the Statute was enacted,he relied on two cases. In the first case, Municipal Council of
X 21469 (04/73)
30 PATH IK AN A, J.—Hewawaaam Gamage v. Minister of Agriculture and Lands
Sydney v. Campbell and others1 (1925) A.C. 338, the Councilhad statutory power to acquire compulsorily land required forthe purpose of making or extending streets, also land requiredfor “ carrying out improvements in or remodelling any portionof the city The land owner threatened with the compulsorypurchase order succeeded in getting an injunction order toprohibit the Council since it appeared that the MunicipalCouncil had in fact no plan for improvements or remodellingthat portion of the city, but were merely threatening to acquireas much as possible of an area which was due for a rise in sitevalue owing to the extension of a street. The Council was in factmaking use of its powers to carry out schemes of improvementsfor what was really in fact a different purpose, namely, to enablethe Council to get the benefit of an increment in the value ofthem arising from the extension which the new street wouldcreate. It was held that a body such as the Municipal Council ofSydney authorised to take land compulsorily for specifiedpurposes will not be permitted to exercise its powers for differentpurposes and if it attempts to do so the Courts will interfere.Whether it does so or not is a question of fact.
The next case cited was Webb and others v. Minister ofHousing and Local Government and another" (1965) 2 A. E. R.193. In this case the Urban District Protection Act, under Section6 (1) of the Coasts Protection Act, 1949, adopted the worksscheme with a slight amendment involving the compulsoryacquisition of a strip of land over five thousand feet in lengthand some ten acres in area, which involves also a constructionof a paved way or promenade, some twelve feet wide, along thelength of the strip. The Minister of Housing and Local Govern-ment confirmed the work scheme and the compulsory purchaseorder. The compulsory purchase order was for the purpose ofcoast protection work, under section 6. It was held that thepurpose of the compulsory acquisition of the strip of land alongthe sea shore was not entirely for the coast protection butincluded purposes, namely, the paved way or promenade forwhich the Council could not lawfully acquire the landcompulsorily under the Act of 1949, as the major part of thestrip of land was not required for coast protection work.
It will be seen from these two cases that certain public bodieswere given powers to acquire land for certain specific purposes,but the acquisition turned out in fact to be for other purposesnot intended by the statute and motivated by some ulteriorobject. It is different from a case where a public functionary isgiven the powers to decide something and pursuant to those
1(1925) A. O. 338.
(1965)* 2 A. E. R. 193.
PATHTRANA, J.—Hexcawosam Qamage o. JMinister of A griculture and Lands 31
powers the public functionary makes a decision, in which' casethe Courts cannot impose its own idea of what ought to havebeen decided as the statute intended the powers of decision tolie elsewhere.
The difference is brought out by Wade on AdministrativeLaw—at page 56. It reads as follows:—
“ Two principles of statutory interpretation often come intoconflict. First, it is to be presumed that powers, even thoughwidely defined, have some ascertainable limits, and thatParliament is unlikely to intend the executive to be the Judgeof the extent of its own powers. Therefore, if it can fairly beimplied that the powers were given for some particularpurpose, exercise for any other purpose, will be illegal.Secondly, however, the Court must not usurp the discretiongiven to some other body. If the statute says that the minister,or the local authority, may decide something, it is not for theCourt to impose its own idea of what ought to have beendecided, for the statute intended the power of decision to lieelsewhere. The Court must not, in other words, concern itselfwith the politics of the case, or with the ‘‘mere meritsTheCourt’s only concern is with the legality of what is done. It isnot every mistake or aberration which affects legality. It is ofthe essence of discretion that it involves the powers to makemistakes. The Court has therefore to draw the line betweenmistakes made intra vires and mistakes made ultra vires.Acting perversely is not necessarily acting ultra vires; but. it is tempting to the Court to interfere with the unreasonableexercise of a power on the ground that there is some impliedstatutory restriction which gives the offending act . an aspectof irregularity.
Even the widest powers can thus be made subject to ameasure of control. The typical example is where the Act ofParliament gives power to an authority to act in certaincircumstances “ as it may think fit It might be supposedthat, provided the circumstances existed and no proceduralmistake was made, such a power would be quite ‘judge-prooffor plainly the * thinking fit ’ is intended to be done by theauthority, and not by a Court of Law trying to control it. Here,one might suppose, was the domain of pure policy which nolegal control could touch. But in fact the Courts have contrived. to make a number of successful sorties into this territory,using as their passport some implied statutory restriction whichthey have been able to discover. ”
32 i'ATHJ KANA, J.—Hewauasam Gamage v. Minister of Agriculture and Lands
The distinction is also brought out by the judgment of LordEsher, in Queen v. The Commissioner for Special Purposes ofIncome Tax1 (1888) 21 Q. B. D. 313 at 319 : —
“ When an inferior court or tribunal or body, which has toexercise the power of deciding facts, is first established by Actof Parliament, the legislature has to consider what powers itwill give that tribunal or body. It may in effect say that, if acertain state of facts exists and is shown to such tribunal orbody before it proceeds to do certain things, it shall havejurisdiction to do such things, but not otherwise. There it isnot for them conclusively to decide whether that state of factsexists, and if they exercise the jurisdiction without its exis-tence, what they do may be questioned, and it will be heldthat they have acted without jurisdiction. But there is anotherstate of things which may exist. The legislature may intrustthe tribunal or body with a jurisdiction, which includes thejurisdiction to determine whether the preliminary state of factseocists as well as the jurisdiction, on finding that it does exist,to proceed further or do something more. When the legislatureis establishing such a tribunal or body with limited jurisdiction,they also have to consider whatever jurisdiction they givethem, whether there shall be any appeal from their decision,for otherwise there will be none. In the second of the twocases I have mentioned it is an erroneous application of theformula to say that the tribunal cannot give themselvesjurisdiction by wrongly deciding certain facts to exist, becausethe legislature gave them jurisdiction to determine all thefacts, including the existence of the preliminary facts on whichthe further exercise of their jurisdiction depends.”
The question before me is whether a Court can question thedecision of the Minister under section 2 (1) of the LandAcquisition Act, that the land in question was needed for apublic purpose. I
I am of opinion that on the construction I place of section 2(1)and proviso (a) to section 38, the Court cannot question thedecision or the order of the Minister and substitute its judgmentin place of that of the Minister and hold that the decision of theMinister was wrong, namely, that the land was needed for apublic purpose. The decision whether the land should or shouldnot be acquired is one of policy to be determined by the Ministerconcerned and therefore cannot be questioned by the Court ofLaw.
(18X8) 21 Q- B. D. 313 at 319.
PATHXRAXA, J.—Bewawasam Gamugev. Minister of Agriculture and hands 33
My v.ew in this connection is also supported by the principleslaid down in the following Ceylon cases. In Gunasekera v. TheMinister of Lands and Agriculture and another1 (65 N. L. R. 119)
N. G. Fernando J. held that in connection with a declarationmade under section 5 (1) of the Land Acquisition Act, thequestion whether the land should or should not be acquired isone of policy to be determined by the Minister concerned andeven if the question may have been wrongly decided, sub-section
of section 5 renders the position one which cannot bequestioned in the Courts. Although this decision refers to anorder under section 5 of the Land Acquisition Act, and it isfurther stated in section 5 (3) that the declaration shall, beconclusive evidence that such land is needed for a public purpose,I am of opinion that the principle set out in this case is applicableto a decision made by the Minister under section 2 (1). When hedecides that the land is needed for a public purpose, it is adecision entrusted to the Minister by the statute and the questionwhether the land should be acquired is one "of policy to bedetermined by the Minister and therefore cannot be questionedby the Courts.
I will next refer to the judgment of T. S. Fernando J. in
P.Kannusamy v. The Minister of Defence and External Affairs*(63 N. L. R. 380). The relevant portion of the statute that arosefor consideration reads as follows : —
“The Minister may refuse an application sent to him undersection 3 if he is satisfied that it is not in the public interestto grant the application.” .
T.S. Fernando J. held,
“ Where the Act permits the Minister to disallow anapplication where the Minister is satisfied that it is not in thepublic interest to grant it, I cannot conceive that Parliamentintended that this Court should review a disallowance of anapplication by examining whether it is actually not in thepublic interest to grant it. Parliament clearly intended thatthe Minister should be the sole judge of the requirements ofthe public interest, and in making a determination on thequestion it can hardly be doubted that the Minister mayconsider not merely the qualifications of the applicant but,among other things, questions of policy and expediency as well.The decision of the Minister is a thing for which she must beanswerable in Parliament, but her action cannot be controlled
>(1963) 65 N. L. B. 119.
(1961) 63 N. L. B. 380.
34 PATHIRANA, J.—H exuawa&am damage v. Minister of Agriculture and Lands
by the Court. As to what considerations should weigh with
the Minister, it is not open to the Court to substitute its own
opinion in place of the Minister’s opinion
Learned State Counsel also referred me to the case of TheGovernment Agent v. Perera* (7 N. L. R. 313), the case underthe Land Acquisition Ordinance No. 3 of 1876. It was held in thiscase that the decision of the Governor on the question whetherthe land is needed or not for a public purpose is final, and theDistrict Court has no power to entertain objections to HisExcellency’s decision.
Reference was also made to the case of Wijeyesekera v. Festing’(Vol. 121, Law Times Reports, p. 1) in which it was held by thePrivy Council following the case of Government Agent v. Pererathat where acting under a report under section (4) of the LandAcquisition Ordinance (1876) the Governor in Council, undersection (6) directs steps to be taken for the acquisition of aspecific land, it was not open to the owner to aver that the landis not needed for public purposes as the order for the acquisitionis final and conclusive and cannot be questioned in any Court.I, therefore, hold that the validity of the decision of the Ministerunder section 2 (1) and the order of the Minister under proviso
of section 38 of the Act cannot be questioned by the plaintiffin a Court of Law.
The next question is whether the land sought to be acquiredand described in the order of the Minister under proviso (a) ofsection 38, which is a portion of a larger land, the boundariesof which portion are, according to Mr. Jayewardene, uncertainand indeterminate, and, as such, whether the order under proviso
to section 38 is not in conformity with the Act. If so, whetherthe plaintiff is entitled to an interim injunction restraining theacquisition of such an indeterminate corpus.
According to (PI), the notice under section (2), the landrequired for the public purpose is described as a block of landabout one acre, with the following boundaries : —
North : By the land of R. A. D. Perera, R. I. A. Perera andSenanayake;
East: By the land owned by U. P. Perera ;
South : By the high level road ; and
West: By the land owned by J. A. Williams.
(1903) 7 N. L. R. 313.
(1919) 121 L. T. R. 1.
PATHXRANA, J.—H euawasam Qamagts v. Minister of Agriculture and Lands 36
The order of the Minister made under proviso (a) to section38 (IDA) describes the land as follows : —
The land called KEENAGAHALANDAWATTA, comprisingof assessment numbers 55, 57, 61 & 63 of Avissawella Road,and a portion of assessment number 28 of Station Road, inextent 1A. OR. 0.6P. in Ward 3, Bazaar area, within the Town-Council limits of Homagama, Hewagam Korale West, ColomboDistrict:
North-: Keenagahalande claimed by R. A. I. Perera, T. D.
Pedrick and Wilfred Senanayake;
East: Keenagahalande claimed by U. P. Perera ;
South : High Level Road ; and
West :■ Keenagahawatte claimed by J. A. William.
It is admitted that this land sis a portion of a larger landdescribed in the first schedule to the plaint which is in extent6A. 3R. 31P. The portion of the land sought to be acquiredtherefore has defined boundaries in the North, East and South.But, the western boundary is not demarcated because it isreferred to as a remaining portion of the same land. I agree withthe contention of Mr. Jayewardene that the western boundaryis therefore undefined and uncertain because if the southernboundary is taken as the base, the line of demarcation of thewestern boundary can be perpendicular, at an acute angle, at anobtuse angle, perhaps a curve, or other forms of demarcation.The question I have to decide is, whether, in the circumstances,the order under section 38 which describes the western boundaryin this uncertain manner is not in accordance with the Act, andtherefore invalid and of no force or avail in law, and thereforethe plaintiff is entitled to an interim injunction to restrain theacquisition on this ground. Difficulties of this nature do notarise when the entirety of the land is sought to be acquired. Theproblem in this form can only arise if a portion of a larger landis to be acquired.
The submission of Mr. Jayewardene in regard to this matterappeared to me at first sight to be unassailable. It was supportedby the judgment of T. S. Fernando J. in Karunanayake v.de Silva. However, my analysis of the relevant provisionsof the Land Acquisition Act compels me to take a different viewin the circumstances of this case. To answer the question thathas been raised in this connection it will be useful for me todecide the following matters: —
whether under the scheme of the Land Acquisition Actat some stage before the acquisition proceedings areconcluded a Plan is imperative and necessary ;
36 PATHIRANA, J.—Hewawasam Oamage v. Minister of Agriculture and Lands
whether at some intermediate stage of the acquisitionproceedings under the Act it is inevitable that thedemarcation of the boundaries may be uncertain andindeterminate ;
(,c J whether the party affected by an order under proviso(a) to section 38, can ask for an interim injunction tochallenge the order of the Minister and restrain theMinister and the Acquiring Officer from acquiring theland before the stage, when, under the Act it becomesobligatory for a survey and a plan to be prepared.
In the view I take a survey and a plan of the land sought tobe acquired are essential and imperative before the acquisitionproceedings are concluded.
Under section 2 (1), when the Minister decides that a land inany area is needed for a public purpose he may direct theacquiring officer to cause a Notice to be exhibited in that area.After the Notice is published, under Section 2 (2), in order toinvestigate the suitability of the land in that area for that publicpurpose all or any of the acts in Section 2 (3) may be done andfor this purpose an authorised officer may enter any land in thatarea, and among other acts—
survey and take levels of that land ;
set out the boundaries of that land ; and
mark such levels, boundaries, etc.
I agree that under this section a plan can be made and madeavailable to the acquiring officer, and the corpus sought to beacquired be therefore determined.
Under Section 4 (1) where the Minister considers that aparticular land is suitable for a public purpose, then he shalldirect the acquiring officer to cause a Notice in accordance withsubsection (3) to be given to the owner or owners of that land.The position therefore is that having investigated all the landsin the area in order to ascertain whether any land is suitablefor a public purpose, when the Minister considers that a particularland in that area is suitable for that public purpose, he isempowered to give a direction under section 4 (1) of the Act.In my view the words “ particular land ” in section 4 (1) relateto one particular land as distinct from other lands in the area,and the words mean no more. It may even mean a portion or apart of a particular land as distinct from other lands in the area.It does not mean that when he decides that a particular landor a portion of a particular land is suitable for a public purposehe must describe the land with its metes and bounds, or in
PATH! KA_NA, J.—Hetoawasam Damage v. M inister oj Agriculture and Lands 37
relation to a plan. If a plan has been made under section 2 (3) .or if a plan is available it will certainly be helpful.A direction under Section 4 (1) in my view can be made withoutreference to a plan and all that is necessary is to mention theparticular land that the Minister considers suitable as distinctfrom other lands in the area. For example if under section 2 theMinister decides that a land in any area, say, along a particularroad, bearing assessment . Nos. 1 to 40 is needed for a publicpurpose, then after having made the investigation under section2 (3), he may under section 4 (1) consider that a particular landis suitable for that public purpose, e.g., premises bearingassessment No. 2 or a portion of the said premises. It istherefore not necessary that under Section 4 (2) when he refersto a particular land he must necessarily refer to it in relationto a plan or other form of demarcation of boundaries.
If one further examines the provisions of section 4 (2) andsection 4 (3) it becomes evident at this stage it is not necessaryto refer to the land in relation to a plan or a definite corpus.Under section 4 (2) the Minister may issue a direction undersection 4 (1) notwithstanding that no Notice has been exhibitedas provided by section 2. Where he issues such a direction to anacquiring officer under section 4 (1), then the provisions ofsection 2 (3) shall apply in regard to the land to which thedirection relates in like manner as those provisions would haveapplied if that acquiring officer had caused a Notice under section
to be exhibited in the area in which that land is situated. Inother words,' the provisions of section 2 (3) whereby the officerinvestigating into the suitability of the land for a public purposeby surveying, setting out the boundaries, marking levels andboundaries, need not be complied with. Under the Act when theMinister makes a direction under section 4 (1), he may give thisdirection without reference to a plan or a determinate corpus.
Section 4 (4) of the Act says that after considering theobjections the Permanent __ Secretary shall make hisrecommendations on the objections to the Minister. Section 4 (5)states that after the Minister has considered the PermanentSecretary’s recommendations on those objections he shall decidewhether the land should or should not be acquired under thisAct. Section 5 (1) states that where the Minister decides undersection 4 (5) that a particular land should be acquired underthe Act he shall make a written declaration that such land isneeded for a public purpose under section 5 (3). The publicationof the declaration under section (1) in the Gazette shall beconclusive evidence of the fact that such declaration was dulymade.
38 PATHIRA-NA, J.—Bewawasam Oamage v. Minister of Agriculture and Bands
So far as the problem in this case is concerned, section 6 isa very important section. Under this section where a declarationunder section 5 has been published in the Gazette the acquiringofficer of the District in which the land is situated may, if thereis no plan of that land made by the Survey Department of theGovernment or no such plan which is suitable for use for thepurposes of proceedings under this Act, cause a survey and aplan of that land to be made by a surveyor of that department,or by a licensed surveyor acting under the directions of theSurveyor-General. In my opinion section 6 of the Act makes itimperative and obligatory that the acquiring officer should, afterthe section 5 declaration, cause a survey and a plan of the landto be made, if a plan has not been made under section 2 (3) orif there is no other suitable plan available. In the context ofsection 6, I construe the word “ may ” as imperative orobligatory—vide Julius v. Bishop of Oxfard1 (1880) 5 A.C. 214.Maxwell on Interpretation of Statutes (11th Edition, p. 234) inconstruing the word “ may ” in certain circumstances to beimperative or obligatory states, “ Where there is a powercoupled with a duty of the person to whom it is given to exerciseit, then it is imperative.”
The next important section is section 38 (a) which states thatat any time after the award is made under section 17, theMinister may by Order published in the Gazette direct theacquiring officer to take possession of the land.
It would thus appear that in a normal case where a section 5declaration is made by the Minister and an award forcompensation under section 17 has been made by the acquiringofficer there has to be compliance with section 6 and thereforeat the time the possession is taken of the land under section 38a plan will always be available to define and demarcate the landwhich is to be acquired.
I shall next consider the case where the Minister acting underproviso (a) to section 38, in exceptional circumstances, makesan order to take immediate possession of a land on the groundof urgency. This order could be made at any time after Noticeunder Section 2 or at any time after Notice under Section 4 isexhibited for the first time on or near the land. Even in such acase by reason of Section 41 which is an amendment to the Actenacted by Act No. 39 of 1954, consequent I believe to thedecision of Gratiaen J. in Suffragam Rubber & Tea CompanyLimited v. Muhsin 3 (55 N. L. R. 54) and by virtue of section 41
if a declaration under section 5 has not been made prior to themaking of such an order a declaration shall be made and
(1880) 5 A. O. 214.
(1953) 55 N. L. R. 44.
PATH IRANA, J.—Hewawasam Gamage v. Minister of Agriculture and Lands 39
published in terms of that section. Section 41 (c) states thatnotwithstanding such an order takes effect as provided in section40 all the provisions3 of this Act save as hereinbefore in thissection provided shall apply in the aforesaid case in like manneras they apply in the case of 'a land or servitude which is to beacquired. In my view section 41 (c) makes it obligatory for aplan under section 6 to be made by the acquiring officer if a planhas not been made even in a case of an acquisition, as in the casebefore me, under the proviso (a) to section 38.
It will therefore be seen that in a normal case of an orderunder section 38 or where the order is made under the provisoto section 38 (a) there must be a survey and a plan in order to. demarcate the land as a determinate corpus.
In the case before me I find that no plan has been made andwhat is sought to be acquired is an, extent of 1A. OR. 0.6P.,ofthe land called KEENAGAHSALANDA with its westernboundary undefined and uncertain. On the facts of this case,especially in view of letter (P4) the acquiring officer was notattempting to take possession of the land with the- westernboundary undefined. At this stage I must refer to the contentsof the letter sent by the Permanent Secretary to the plaintiff-appellant (P4) dated 18.9.1970. The Permanent Secretary wasobviously acting under section 51 of the Act on the directionsof the Minister. The relevant part of this letter states : —
. “ The possession of the land will be taken over by givingtimely notice to you by the Acquiring Officer of theColombo District, or any other officer authorised by himin due course. The land will be surveyed very shortly andwhen the plans are made after surveying, the GovernmentAgent or the Assistant Government Agent, the AcquiringOfficer, will hold an inquiry to come to a decision concerningthe compensation to be paid for the land under Section 46.”'
It is therefore very apparent that the Permanent Secretarywas contemplating observing the provisions of section 41 (c)in order to make a plan under section 6 of the Act before takingpossession of the land. This letter as I said is dated 18.9.1970.Hie plaintiff, in spite of this letter, made the application for aninjunction to the District Court on 30.10.1970.
I am therefore of the view that although the Notice undersection 2 or the Order made by the Minister under proviso (a)to Section 38 does not "define the western boundary, the failureto do so does not make the Notice and the Order illegal orinvalid.
40 PATHIRANA, J.— Hewawasam Oamage v. Minister of Agriculture and Lands
Mr. Jayewardene strongly relied on the judgment of
T.S. Fernando J., in Karunanayake v. de Silva1—70 N. L. R. 398—that where there is uncertainty as to the precise location of theland and that the Notice under section 4 and declaration undersection 5 and the order under section 38 had not set out theparticular land to be acquired in the sense that the corpus wasindeterminate, then the plaintiff was entitled to tfie interiminjunction restraining the acquisition.
In that case the land sought to be acquired was described asan extent of 1A. 1R. 16P. bounded as follows : —
“ North and East by the remaining portion of the same land ;
South and West by Pol watte ganga and the remaining portionof the same land. ”
It was admitted at the argument that whichever way one maytry to ascertain where precisely within the larger land thisportion of 1A. 1R. 16P. is to be found one would be met withuncertainty of its location. It was held that as the order undersection 38 and indeed the other documents for this reason werenot in conformity with the law they do not have that force andeffect which the Land Acquisition Act contemplates.T. S. Fernando J., further makes this observation at page 399—
“ the proviso to section 38 enables the Minister to
take steps on occasions calling for urgent acquisitions provideda notice under section 2 or section 4 has been exhibited. Whilethe notice under section 2 will ordinarily specify only an areaand such a notice is sufficient authority for the authorizedofficer to enter any land situated within that area, neverthelesspossession of any such land can be taken only after decidingor determining the particular land of which it is necessaryto take possession. There would be no difficulty to demarcatewith sufficient precision the land intended to be taken and, itmust be noted, the authorized officer is employed by section2 (3) to enter and survey the land.”
I am in agreement with this observation, but I must add thatthere is also provision under Section 6 of the Act to cause asurvey and a plan to be made either before the order undersection 38A is made or after the order under the proviso tosection 38 is made.
T. S. Fernando J., gives another reason why the land shouldbe described as a determinate corpus at page 399 in the followingwords: —•
“The circumstance that the law contemplates
objections to the proposed acquisition involves necessarily thatthe precise location has to be known not only to the officers
1 (1968) 70 N. L. E. 398.
PATHIRANA, J.—Bewawasam G(image v. Minister of Agriculture and Lands 41
of the government charged with the duty of acquiring the landbut also to the owner or owners thereof. It is only after theobjections have been disposed of as provided in section 4 thatthe decision to acquire can be taken by the Minister. Thewritten declaration that follows such decision also must relateto that particular land. I am, therefore, of opinion that thenotice under section 4, the declaration under section 5 andthe Order under section 38 must each set out the particularland to be acquired. ”
Applying this principle to a case where a portion of a largerland is acquired, I do not' think that the circumstances that the .corpus sought to be acquired, is indeterminate will affect theconsideration of objections to the proposed acquisition as it isstill open to the owner to make representations that in the eventof any acquisition such portion of the land he would prefer notto be brought within the corpus, be not acquired out of thelarger land. One cannot therefore conclude that this is acircumstance that should decide the question whether there hasbeen non-compliance with the provisions of the Act in that anindeterminate corpus was sought to be acquired.
The 3rd reason given is that in view of the provisions ofsection 4 (A) (1) of the Act which states that when notice hasbeen issued or exhibited, in respect of any land under section 2or section 4, no owner of that land shall till the period of 12 .months after the publication of the issue or exhibit of suchnotice—
sell or otherwise dispose of that land ;
or
do any act which directly or indirectly depreciate the
value of that land after the publication of such issue orexhibit and which renders any sale or other disposalof the land in contravention of the provisions of thesection as null and void and make any person whocontravenes the provision of that section being guiltyand punished with a fine not exceeding Rs. 1,000 ;
T.S.. Fernando J:, states—
“that if a person is punished for selling or otherwisedisposing of certain land, surely he must be informed of theprecise location and extent of such particular land. Anyinterpretation which will involve the result that a person willbe prevented from dealing with all his lands in a particulararea because he does not know what is the land in that areahe cannot sell or dispose of without contravening the Actshould be avoided. ”
42 P ATHIR ANA, J.—Hewawasam Gamage v. Minister of Agriculture and Lands
One must not lose sight of the fact that the consequentialdisability and the penalty brought about by section 4 (a) (1) ofthe Act applies not only to a notice under section 4, but also toa notice under section 2 which affects all land in any area whenthe Minister decides that land in that area is needed for anypublic purpose- So that section 4 A (1) will prohibit all landowners in that area once the section 2 notice is published fromdoing the acts prohibited by section 4 A (1) (a) and (b) of theAct. Of course, the disabilities are in force only during the periodof 12 months after the issue or exhibition of such notice. It istherefore inevitable that when proceedings are initiated underSection 2 of the Act, certain hardships and inconveniences willbe inflicted on owners of land for a period of 12 months. If thelegislature so enacts laws, however much hardship be caused, onecannot run away from giving effect to the statute and therebyreduce the legislation to a futility. Effect must be given to themanifest purpose of the Legislation for the purpose of bringingan effective result.
With all respects to the reasons given by T. S. Fernando J.,having analysed the entire scheme of the Act, I find it difficultto agree withjiis conclusion that the notices, declaration and theOrders made under the provision of Section 38 of the Act, mustalways set out the particular land to be acquired in the sensethat it must be a determinate corpus at the stage at which Orderunder the proviso (a) to Section 38 is published.
Mr. Jayewardene next submitted that it is not necessary fora Court in order to grant an interim injunction that a Judgeshould decide the substantive question in issue between theparties, but that the Judge should restrict himself to considerwhether there was a serious matter for decision, and if so,prejudice will be caused to the plaintiff, if the defendants werenot restrained by the injunction. In order that a interim injunc-tion may issue, he submits, that it was not necessary that theCourt should find a case which will entitle the plaintiff to reliefat all events. It is quite sufficient if a Court finds a case whichshows that there was a substantive case to be investigated andthat the matters be preserved in status-quo until that questioncan be finally disposed of. In support of it he cited the case ofMrs. Mallika Ratwatte v. The Minister of Lands1 (72 N. L. R. 60)which was an application for a temporary injunction undersection 20 of the Courts Ordinance.
I agree with the observations of Samerawickrame J., that inthe special circumstance of an application for an injunctionunder section 20 of the Courts Ordinance, when the
(1969) 72 N. L. Tt. 60.
PATHIRANA, J.—Hewawasam Gamage v. Minister of Agriculture and Lands 43
extraordinary jurisdiction of this 'Court is invoked theconditions for the granting of an interim injunction, accordingto the decisions of this Court are as follows :—
Irremediable mischief would ensue from the act
sought to be restrained;
an action would lie for an injunction in some Court
of original jurisdiction; and
the plaintiff is prevented by some substantial cause from
applying to that Court.
In such a case it is not necessary that the Court should finda case which will entitle the- plaintiff to relief at all events.
My Lord, the Chief Justice, in the recent case of Sunthara-lingam v. The Attorney-General1 75 N. L. R. 318, has discussedSection 20 of the Courts Ordinance and has referred to thisjurisdiction as—'
“a limited jurisdiction, protecting the applicant ad interim,until he can protect himself by obtaining an injunction in theDistrict Court.”
But, as in this case, when an application for an interim injunctionis made in terms of Section 86 of the Courts Ordinance, differentconsiderations apply and the principles governing the grantingof an interim injunction are set out by H. N. G. Fernando J., inRichard Perera v. Albert Perera * (67 N. L. R. 445). I shall citefrom the judgment of His Lordship at page 447, where hestates—
“ While adhering to the view that the trial Judge should notdecide the substantive question in considering an applicationfor an injunction, I do not agree that some consideration ofthe substantive question at this early stage is necessarilyirrelevant.
Although paragraph (a) of Section 86 does not apply in thepresent circumstances, it is useful to examine it beforeconsidering paragraph (b). Under paragraph (a) the Courtwill consider the question of granting an injunction, where itappears from the plaint that ‘ the plaintiff demands and isentitled to a judgment against the defendant restraining thecommission or. continuance, etc. … ’. A basic -condition
therefore is that it must appear from the plaint that theplaintiff is entitled to the judgment he seeks. Turning toparagraph (b) it must appear that the defendant is-doing or
committing an act or nuisance in violation
of the plaintiff’s rights respecting the subject matter andtending to render the judgment ineffectual. It seems to methat in this context (as in the case of paragraph (a) ) there
(1973) 75 N. L. R. 318.
• (1963 67 N. L. X. 145.
44 PATHUiANA, J.—Hewawasam damage v. Minister of Agriculture and Lands
must be some apparent violation of rights to which the plaintiffappears to be entitled and not merely of rights which heclaims.”
At page 448 His Lordship states—
“If the material actually placed before the^Court revealsthat there is probably no right of the plaintiff which can beviolated, it would be unreasonable to issue the injunction.”
In view of my findings that : Firstly, the Minister’s Orderunder Section 2 of the Act cannot be the subject matter ofreview by the Courts : Secondly, the fact that the notice underSection 2 and the Order under proviso (a) to Section 33, arein conformity with the provisions of the Land Acquisition Act,the plaintiff-appellant is not entitled to an interim injunction.
The other questions argued at the hearing, namely, whetherthe District Court has supervisory jurisdiction to review theorders of administrative bodies or authorities, or the questionwhether a declaratory remedy and relief by way of an interiminjunction are available to the plaintiff-appellant in view ofthe provisions of the Interpretation (Amendment) Act, No. 18of 1972, on the ground that this Act is retrospective in itsoperation and applies to pending actions, do not therefore arisefor consideration.
I therefore dismiss the appeal.
The application in revision—No. 70 of 1971—which relates tothe same subject matter is also dismissed.
On the question of costs, I find that the defendants-respondentshave not controverted any of the allegations made by theplaintiff-appellant in his affidavit, the contents of which I havereferred to earlier in this judgment. On the imcontrovertedfacts set out in the affidavit, it certainly appears that theplaintiff-appellant’s grievances may be genuine, but I am afraidI cannot give him the relief he seeks as on the interpretationI have placed on the relevant provisions of the Land AcquisitionAct, the plaintiff-appellant is not entitled to any relief underthe Act. His remedy lies, if at all, in seeking administrativerelief from the Minister who can still under Section 39 (1) ofthe Act revoke the vesting order. The only consolation I canoffer the plaintiff-appellant in this predicament is in regard tothe Order for costs which is “ one panacea which heals everysore in litigation ”. The plaintiff-appellant, in the circumstancesof this case, will not pay any costs to the defendants-respondents,both here and in the Court below.
Rajaratnam, J.—I agree.
Appeal dismissed.