JAYANETTI v. THE LAND REFORM COMMISSION AND OTHERS

012-SLLR-SLLR-1984-2-JAYANETTI-v.-THE-LAND-REFORM-COMMISSION-AND-OTHERS.pdf


172
Sri Lanka Law Reports
[1984] 2 Sri L. R.
JAYANETTI
v.THE LAND REFORM COMMISSION AND OTHERS
SUPREME COURT.
SHARVANANDA, J.. WANASUNDERA. J.. WIMALARATNE. J.. COLIN-THOME', J.AND ABDUL CADER, J.
S.C. APPLICATION No. 15/84.
JUNE 12. 14. 15. 21 AND 22, 1984.
Fundamental right of equality under Article 12 of the Constitution-Application underArticles 17 and 126-Rule 65 (1) (b) of the Supreme Court Rules. 1978-Sections 22.23. 24, 26 and 47 of the Land Reform Law-Articles 4. 12 (1) and 126 of theConstitution-Sole and exclusive jurisdiction of Supreme Court in respect of violation offundamental rights-Addition of parties after time limit for institution ofproceedings-Time limit for determination of Court whether directory ormandatory-Requisites for alienation of land by Land Reform Commission-ls LandReform Commission an agency or an instrumentality of the State ? Meaning ofexecutive action-Violation of the fundamental right of equality by executive andadministrative action.
The petitioner had made an application to the Land Reform Commission (1strespondent) to purchase 50 acres out of Mount Pearl Estate an agricultural land andannexed to it a letter of recommendation from the then Member of Parliament the 6thadded respondent as this was an administrative requirement for such an application. Byletter dated 4th March 1982 the Regional Director of the Commission informed thepetitioner that the request could not be granted because the Member of Parliament hadwithdrawn his recommendation owing to strong objection raised by the local residents.The Member for Parliament also informed the petitioner that the land would bedistributed among the local villagers. But a few months later the Member of Parliamentrecommended the alienation of 50 acres of this estate to one Mrs. Dassanayake the4th added respondent whose husband was the Public Relations Officer of the Ministryof Trade and Shipping and a balance extent of 33 acres to Mr. Weerasinghe the 5thadded respondent who was his brother-in-law and resident with him.
In view of a general direction given by the Minister (2nd respondent) under section 47of the Land Reform Law that an alienation exceeding 10 acres should have his approval,the application was sent up to the Minister for his approval with the recommendation ofthe Commission. The Minister approved the alienation to Mrs. Dassanayake. This wasconveyed to the parties concerned by letter dated 14.3.1983.
The petitioner interviewed the Chairman of the Commission Mr. Ranjan Wijeratne whoconsidering that there was some basis for the petitioner's complaint of unfair treatmentsuggested a compromise whereby 25 acres could be given to the petitioner and 25acres to Mrs. Dassanayake and submitted the proposal to the Minister for his approval
sc
Jayanetti v. The Land Reform Commission
173
Mrs. Dassanayake, the petitioner and the M.P. interviewed the Minister and maderepresentations. In the meantime Mrs. Dassanayake had already deposited three lakhsof rupees towards this purchase and also incurred other expenses. Another applicationto alienate this land to the children of one Mr Seneviratne had been turned down by theMinister because of his earlier decision to alienate the land to Mrs. Dassanayake and asonly 34 acres were left. The petitioner too had by his letter of 13th October 1983 giventhe impression that he was no longer interested in the suggested compromise. Facedwith these facts the Minister chose to abide by his earlier decision. On 2nd February1984 the Land Reform Commission executed the conveyance in favour of Mrs.Dassanayake and on 10th February 1984 the petitioner filed this application. Mr. RajanWijeratne filed his affidavit on 13th March 1984 and brought to the notice of Court thatboth Mrs. Dassanayake and Mr. Weerasinghe who were not parties would be vitallyinterested in the proceedings and adversely affected by the prayer to the petition.
As the proceedings went on the petitioner further brought to the notice of Court the factthat Mrs. Dassanayake was employed in- the Sri Lanka Insurance Corporation anddisqualified under section 23 of the Land Reform Law from obtaining the land inquestion. The petitioner now insisted on the presence of Mrs. Dassanayake.Mr. Weerasinghe and Mr. Wijegooneratne before Court but the respondents relying onthe Rule 65(1) (b) of the Supreme Court Rules 1978 objected to this. The respondentsalso objected that the Court had no jurisdiction to hear and determine this matter afterthe expiry of two months. The 4th respondent objected that he was added after thetime limit for instituting action.
Held-
The Supreme Court Rules 1978 (Rules 63 to 65) deal with the bare skeleton ofprocedure relating to a proceeding under Article 126. It is inconceivable that these fourrules are comprehensive and all embracing and can provide for every situation thatcould arise in the exercise of the jurisdiction under Article 126. The procedural rulesmust be considered as secondary to the provisions of Articles 17 and 126 which arecentral. The Court is empowered to grant such relief or make such direction in the caseas it may deem just and equitable and within this jurisdiction of the Court is included thepower to make interim orders and to add parties without whose presence questions inissue cannot be completely and effectually decided. The presence of Mrs. Dassanayakeand Messrs. Wijegooneratne and Weerasinghe was necessary as the Court could notmake a fair order without consideration of the allegations against them in so far as theyhad a bearing on the conduct of the Land Reform Commission. These persons would beprejudiced if they were not given a full and complete hearing. The Court acting in theinterests of justice of necessity had to join them as parties.
The provision requiring the court to make its determination within two months isdirectory only but this does not mean that the provision is erased from the statute book.The time limit must be complied with except when delay is necessitated in the interestsof justice or where the delay is caused by circumstances beyond the control of theCourt.
The 4th respondent being impleaded in an action filed within the prescribed timelimit, is not entitled to object that the petitioner is barred from proceeding against himas he was added after the expiry of the time limit for instituting action.
174
Sri Lanka Law Reports
[1984] 2 Sri L R.
Mrs. Oassanayake (4th respondent) being an employee of a State Corporation wasdisqualified under section 23 of the Land Reform Law from obtaining an alienation ofland from the Commission. Further she had no connection with the administrativedistrict where the land was situate and no notice under section 26 of the Land ReformLaw of the alienation was published in the Gazette. The mandatory requirement forgiving notice of any proposed alienation by publication in the Gazette is designed toensure fair dealing and equality.
The word "the law" in Article 12(1) refers not only to legislation but also toexecutive or administrative action. To confine it to legislation alone would be toemasculate the equality clause.
The expression 'executive action' in Article 126 is not to be understood in themeaning given to the expression 'executive' in Article 4.
Article 126 provides not only the sole and exclusive remedy in the case of aviolation of fundamental rights by executive or administrative action but also the mostexpeditious remedy.
The Land Reform Commission constitutes an agency or instrumentality of the Stateand its acts amount to executive or administrative action. All activity of the Commissionis subsumed under overriding policy considerations, and this is reflected in theprovisions enabling ministerial control with financial assistance being provided andfinancial control being exercised by the Government.
To make the recommendation of the Member of Parliament a condition precedentor to give him virtually a right of veto would be to frustrate the intention of theLegislature and to abdicate the powers vested in the Commission.
The application of Mrs. Dassanayake has been entertained and processed anddealt with in a most cursory and perfunctory manner.
There has-been unequal treatment of the petitioner by executive or administrativeaction violative of Article 12.
Cases referred to:
K. K. Kochunni v. State of Madras AIR 1955 SC 725.
Maharaj v. A. G. of Trinidad and Tobago [1979] AC 385.
Vivienne Goonewardene v. Hector Perera, S. C. No. 6/83-S. C. minutes of7.2.84
Raja Suryapalasingh v. U.P. Govt. AIR 1951 Allahabad 674.
State of U. P. v. DeomanAIR 1960 SC 1125.
Wijetunga v. Insurance Corporation [1982] 1 SLR 1.
Wijeratne v. People's Bank [1984] 1 SLR 1.
Ramana v. I. A. Authority of India AIR 1979 SC. 1628.
Jackson v. Metropolitan Edition Co. (1974) 419 U. S. 363.
(1Q) Ghanatilleke v. Attorney-General [1978-79] 1SLR 37.
Dhanraj Mills Ltd. v. KockerAIR 1951 Bombay 133.
Karthigesu Visuvalmgam and Others v. Don John Francis Liyanage and Others.
S C No. 47/83-S. C. Minutes of 19.10.1983.
sc
Jayanetti v. The Land Reform Commission
175
APPLICATION under Article 126 for violation of the fundamental right of equality.
H. L. de Silva. P. C. with Arthur Samarasekara. Kithsiri P. Gunaratne. Upali Almeida andA. L. M. de Silva for the petitioner.
Mark Fernando for the 1 st respondent.
S. W. B. Wadugodapitiya, Addl. Solicitor-General, with R. Selvaskandan. S. C. for the2nd and 3rd respondents.
A. J. I. Tilakawardena with Mohan M. Burhan. instructed by (Miss) I. Siriwardena for the4th added respondent.
R. K. S. Sureshchandra for the 5th and 6th added respondents.
Cur. adv. vult.
July 13. 1984.
WANASUNDERA, J.
This is an application by the petitioner under Article 126 of theConstitution complaining of the violation of the equal protection clauseby the Land Reform Commission the 1 st respondent, and the Ministerof Agricultural Development, Research and Co-operatives the 2ndrespondent, in regard to certain alienations of land under the LandReform Law of 1972. The Attorney-General has been made the 3rdrespondent in accordance with the provisions of Article 134 of theConstitution.
In his petition and affidavit, the petitioner, a resident of Colombo,has stated that he also has a residence in Welipenna in the Matugamaelectorate of the Kalutara District, where he is engaged in a businessof manufacturing crepe rubber. This crepe rubber factory, which issituated at Lewwanduwa, employs about 60 persons and has thecapacity of processing 2,000 kilograms of rubber per diem.
The petitioner has stated that in January 1982 he became awarethat the land constituting Mount Pearl Estate, an agricultural land,situated in the Matugama electorate, containing old rubber, vested inthe Land Reform Commission and in extent about 83 acres wasavailable for alienation under the Land Reform Law. The petitionerstates that he made an application for the purchase of an extent of 50acres and annexed to it a letter of recommendation from the thenMember of Parliament, the 6th added respondent, as this was anadministrative requirement for such an application. Though the 1strespondent denied that the petitioner made a formal application in theofficial form, it is clear that a written application had been made andwas entertained and considered by the Commission.
176
Sri Lanka Law Reports
[1984] 2 Sri L. R.
By letter dated 4th March 1982, the Regional Director of theCommission informed the petitioner that his request for the 50 acresof land cannot be granted as the Member of Parliament, the 6threspondent, had in the meantime informed the Commission that he iswithdrawing his recommendation due to strong objections raised bythe local residents. The 6th respondent himself confirmed this positionwhen the petitioner met him. He informed the petitioner that the landshould not be alienated to one or two individuals, but would bedistributed among the local villagers.
But. a few months later the Member of Parliament was singing adifferent tune. In August or September 1982, by his letter annexed toMrs. Dassanayake's application, he is found recommending thealienation of 50 acres of this estate to Mrs. Dassanayake, the 4thadded respondent. About this time, his brother-in-law the 5th addedrespondent, residing with him, was also making an application for thebalance 33 acres and this application too was recommended by the6th respondent though he was a resident of Galle. The petitioner hasplaced before us some material to show that all the GramodayaMandalayas in that area had protested against the proposed alienationto Mrs. Dassanayake.
Mrs. Dassanayake's application had been entertained and, in ourview, processed and dealt with in a most cursory and perfunctorymanner. In view of a general direction given by the Minister undersection 47 of the Law that an alienation exceeding 10 acres shouldhave his approval, the application was sent up to the Minister for hisapproval with the recommendation of the Commission. The 2ndrespondent Minister then approved this alienation to Mrs.Dassanayake. This was conveyed to the parties concerned by letterdated 14.3.1983.
In the meantime the petitioner had got wind of these developments.He discovered that Mrs. Dassanayake was a resident of Colombohaving no connection whatsoever with the Matugama electorate. Healso found that Mrs. Dassanayake's husband was employed as PublicRelations Officer of the Ministry of Trade and Shipping. The petitionertherefore concluded that she may have brought to bear some officialor political influence on the Commission to obtain her alienation. Thepetitioner believed that he had been discriminated against and soughtan interview with Mr. Ranjan Wijeratne, the Chairman of the 1st
sc
Jayanetti v. The Land Reform Commission (Wanasundera, J.)
177
respondent, with a view to obtaining relief. Mr. Wijeratne granted theinterview and appears to have been sympathetic to the petitioner andthought that there was some basis for the petitioner's complaint thathe had not been fairly treated. He suggested a compromise. Of the 50acres proposed to be alienated, 25 acres should be given to thepetitioner and the balance 25 acres to Mrs. Dassanayake. Hesubmitted this suggestion for the Minister’s consideration since theMinister had already approved the alienation of 50 acres to Mrs.Dassanayake.
Mrs. Dassanayake, the petitioner and the M.P. had thereafterinterviewed the Minister and made representations to him on thismatter. By this time Mrs. Dassayanake had taken a number of steps toconclude the transaction and had deposited over 3 lakhs of rupeestowards this purchase and also incurred other expenses. Anotherapplication to alienate this same extent of land to the children of oneMr. Seneviratne had been turned down by the Minister in view of hisearlier decision to alienate this land to Mrs. Dassanayake and as only34 acres were left. Faced with these facts the Minister chose to abideby his earlier decision. It appears to us that whatever decision theMinister took at this stage would have resulted in litigation, because itwould have adversely affected the rights of one or other of the parties.He appears to have advised himself properly when he played safe anddecided not to vary the decision he had already made. Besides, thepetitioner's own letter of 13th October 1983 gives the impressionthat ne was no longer interested in a compromise settlement. Wehave no doubts about the bona fides of both the Minister and Mr.Wijeratne in this matter and the allegations made against them are, inour view unfair and without foundation.
The petitioner had filed this application on 10th February 1984. On13th March 1984 the Chairman, Land Reform Commission, Mr.Ranjan Wijeratne, filed his affidavit before this Court. While explainingthe position of the Commission and his own role in the developments,he also brought to the notice of Court that both Mrs. Dassanayake andMr. Weerasinghe, who were not parties to the application, would bevitally interested in these proceedings and would be adversely affectedif an order is made by us in terms of the prayer to the petition in theirabsence.
178
Sri Lanka Law Reports
[1984] 2 Sri L. R.
On 19th March 1984 the petitioner himself filed a list of personswhose evidence would be required by him, naming Mrs. Dassanayake,Mr. J. D. Weerasinghe, Mr. Reginald Wijegooneratne the ex-M.P., andsome officers of the Land Reform Commission, and prayed for noticeon them.
On the 21st of March 1984 the 2nd and 3rd respondents filed amotion praying for the issue of notice on Mrs. Dassanayake 'as she isa necessary party to be added to these proceedings, as her interestsmay be adversely affected by the decision in these proceedings.'
As the proceedings developed further, the petitioner brought to ournotice his discovery that Mrs. Dassanayake has concealed from theCommission the fact that she was employed in the Sri Lanka InsuranceCorporation and was therefore disqualified under section 23 of theLand Reform Law from obtaining the alienation in question. Thepetitioner now insisted on the presence of all these parties in Court.
The respondents, notwithstanding their earlier assertions that Mrs.Dassanayake would be adversely affected and should be made aparty, now objected to a widening of the scope of these proceedingsby the inclusion of persons not parties to the original application and toany inquiry into matters pertaining to them. They specifically relied onthe provisions of Rule 65 (1) (b) of the Supreme Court Rules 1978,which they said debarred the addition of new parties.
Due to the importance of this question and the application of thepetitioner to examine witnesses in these proceedings, the originalbench of three judges thought that it was desirable that this case beheard by a larger bench. It is in deference to this request that the ChiefJustice has nominated the present bench to hear this appeal.
After hearing submissions of counsel, we directed that Mrs.Dassanayake, Mr. Wijegooneratne and Mr. Weerasinghe be added asparties and time was given to these added parties to file whateverpapers they wished. These parties have filed statements of objection.The submissions of their counsel have also been heard by us. Sincewe did not at that stage give our reasons for our ruling regarding theaddition of these parties, they may be mentioned at this stage.
sc
Jayanetti v. The Land Reform Commission (Wanasundera, J.)
179
Rule 65 (1) (b) of the Supreme Court Rules requires the petitioner toname in his petition the Attorney-General and any person or personswho he alleges have infringed or are about to infringe his fundamentalor language rights. In this context it should be noted that the remedyprovided by Article 126 for a violation of a fundamental right iS limitedto such violation by executive or administrative action. A privateperson who is in some way connected with such an action such as, forexample, a person who stands to benefit by the transaction does notappear to fall within the kind of persons contemplated by Rule65 (1) (b). This problem becomes more complex if such a name wereto transpire in the course of the proceedings, for it has been submittedby counsel for the petitioner that Rule 65 (1) {b) is limited to the pointof time as at the institution of proceedings and does not provide formatters arising thereafter.
As far as the rules go, it would appear that they deal with the bareskeleton of procedure relating to a proceeding under Article 126. PartVI of the Rules which deals with these procedural matters consists ofonly four Rules, i.e. Rules 63-66. It is inconceivable that these fourRules are comprehensive and all embracing and can provide for everysituation that could arise in the exercise of our jurisdiction under Article126. Incidentally, even the Civil Procedure Code with more than 800sections is said not to be exhaustive.
The remedy for a violation of a fundamental right is enshrined inArticles 17 and 126 of the Constitution and not in any rules. Article 17is given the importance of being dignified into a fundamental rightitself. This provision is of the utmost importance not only for securingthe safety and welfare of the people of this country but stands as animpregnable redoubt protecting the operation of the democraticsystem of Government in the country. Therefore, if we take our standon these two provisions as central, we find that any procedural rulesmust be considered secondary to these constitutional guarantees. Weare empowered, and indeed it is our duty, to give full operation to theprovisions of Articles 17 and 126. These provisions vest this Courtwith sole and exclusive jurisdiction to hear and determine any questionrelating to an infringement of fundamental rights by executive oradministrative action. We are empowered after such inquiries, as weconsider necessary, to grant such relief or make such direction in thecase as we may deem just and equitable. This is an extensivejurisdiction and it carries with it ail implied powers that are necessaryto give effect and expression to our jurisdiction. We would include
180
Sri Lanka Law Reports
[1984] 2 Sri L. R.
within our jurisdiction, inter alia, the power to make interim orders andto add persons without whose presence questions in issue cannot becompletely and effectually decided. In fact, our present decision in noway widens the ambit of Article 126 but seeks to articulate its realscope and to make the remedy more effective.
In K. K. Kochunai v. State of Madras, (1) the Supreme Court ofIndia, dealing with Art. 32 the corresponding Article in the IndianConstitution, said –
". . . . But on a consideration of the authorities it appears to bewell established that this Court's powers under Art. 32 are wideenough to make even a declaratory order where that is the properrelief to be given to the aggrieved party. The present case appearsto us precisely to be an appropriate case, if the impugned Act hastaken away or abridged the petitioners' right under Art. 19 (1)(f)byits own terms and without anything more being done and suchinfraction cannot be justified. If, therefore, the contentions of thepetitioners be well founded, as to which we say nothing at present,a declaration as to the invalidity of the impugned Act together withthe consequential relief by way of injunction restraining therespondents and in particular respondents 2 to 17 from assertingany rights under the enactment so declared void will be the onlyappropriate reliefs which the petitioner will be entitled to get. UnderArt. 32 we must, in appropriate cases, exercise our discretion andframe our writ or order to suit the exigencies of this case broughtabout by the alleged nature of the enactment we are considering. Ina suit for a declaration of their titles on the impugned Act beingdeclared void, respondents 2 to 17 will certainly be necessaryparties, as persons interested to deny the petitioners' title. We seeno reason why, in an application under Art. 32 where declarationand injunction are proper reliefs, respondents 2 to 17 cannot bemade parties."
In regard to an argument that was advanced that the Court had nopower under Art. 32 to go into disputed questions of fact, the Courtobserved –
". . . . Clause (2) of Art 32 confers power on this Court to issuedirections or orders or writs of various kinds referred to therein. ThisCourt may say that any particular writ asked for is or is notappropriate or it may say that the petitioner has not established any
sc
Jayanetti v. The Land Reform Commission {Wanasundera, J.)
181
fundamental right or any breach thereof and accordingly dismissthe petition. In both cases this Court decides the petition on merits.But we do not countenance the proposition that, on an applicationunder Art. 32. this Court may decline to entertain the same on thesimple ground that it involves the determination of disputedquestions of fact or on any other ground. If we were to accede tothe aforesaid contention of learned counsel, we would be failing inour duty as the custodian and protector of the fundamental rights.We are not unmindful of the fact that the view that this Court isbound to entertain a petition under Art. 32 and to decide the sameon merits may encourage litigants to file many petitions under Art.32 instead of proceedings by way of a suit. But that considerationcannot, by itself, be a cogent reason for denying the fundamentalright of a person to approach this Court for the enforcement of hisfundamental right which may, prima facie, appear to have beeninfringed. Further, questions of fact can and very often are dealt
with on affidavitsAs we
have already said, it is possible very often to decide questions of facton affidavits. If the petition and the affidavits in support thereof arenot convincing and the court is not satisfied that the petitioner hasestablished his fundamental right or any breach thereof, the Courtmay dismiss the petition on the ground that the petitioner has notdischarged the onus that lay on him. The court may, in someappropriate cases, be inclined to give an opportunity to the partiesto establish their respective cases by filing further affidavits or byissuing a commission or even by setting the application down fortrial on evidence, as has often been done on the original sides of theHigh Courts of Bombay and Calcutta, or by adopting some otherappropriate procedure. Such occasions will be rare indeed and suchrare cases should not, in our opinion, be regarded as a cogentreason for refusing to entertain the petition under Art. 32 on theground that it involves disputed questions of fact.'
In the Indian provisions, no doubt, the writ jurisdiction is alsointertwined with this jurisdiction, but in substance both Constitutionsseek to achieve the same end and, in my view, our jurisdiction is in noway less extensive than that under the Indian Constitution – videMaharaj v. A. G. of Trinidad and Tobago. (2).
182
Sri Lanka Law Reports
[1984] 2 Sri L. R.
The 1 st respondent has himself stated that these added parties arevitally interested in the result of the application. The preliminarysubmissions showed that serious allegations were being made againstthem and in particular, as Mr. Mark Fernando himself said, in thepublic interest the validity of Mrs. Dassanayake's alienation may haveto be reconsidered by the Land Reform Commission in the light ofthese allegations. Far from there being any legal bar to their additionas parties, it seems to me that it was the only course any court couldhave followed in this matter.
It would be interesting to contrast this case with the facts of thecase of Vivienne Goonewardene v. Hector Perera, (3) where thecontrary proposition was advanced. In that case an affidavit of aperson admitting certain facts in issue was presented to court by oneof the respondents in support of his own case. This respondenttreated this person in effect as a willing witness. In that case it wasurged on behalf of the witness that he should have been made a partyand given a hearing, because the order of the Court could have anadverse effect on him. But that submission failed to draw thedistinction between a mere witness and the case of a person whostands independent of the parties but whose presence is required as aproper party to the proceedings.
In this case Mrs. Dassanayake, Mr. Weerasinghe and Mr.Wijegooneratne have been brought into the case against their own willand do not represent anybody but stand in virtue of their own right.Since this Court cannot make a fair order in this case withoutconsidering the allegations against them, in so far as they have abearing on the conduct of the Commission, and since they would beprejudiced if they are not given a full and complete hearing, this Courtacting in the interests of justice of necessity had to join them asparties.
Mrs. Dassanayake, Messrs Wijegooneratne and Weerasinghe thenfiled statements of objection. Mrs. Dassanayake has been evasive inregard to the specific and grave allegation made against her by thepetitioner, in that she had misled the Commission by a false statementin her application. She had concealed the fact that she wasdisqualified from getting an alienation of land from the Land ReformCommission since she is an employee of a corporation. Mrs.Dassanayake has not denied this allegation – which should have beendone by affidavit.
sc
Jayanetti v. The Land Reform Commission (Wanasundera, J.)
183
I shall now examine the provisions of the Land Reform Law that havea bearing on this matter. The Land Reform Law, No. 1 of 1972, wasenacted to fix a ceiling on the extent of agricultural land that may beowned by any individual in this country. Any land exceeding this ceilingis to be vested in the Land Reform Commission established by thisLaw. This amounts to the nationalisation of all such excess land. TheCommission is a statutory Corporation. It consists of a Chairmanappointed by the Minister and eight other members. Three of suchmembers are ex-officio members, heads of government departments,namely the Land Commissioner, the Commissioner of AgrarianServices, and the Director of Agriculture. Of the remaining'fivemembers, again three have to be state officers nominated by theMinister of Finance, the Minister of Plantation Industry, and theMinister of Planning and Employment. Therefore we find that at leastsix of the eight members of the Commission must be state officers andthey constitute the board of management of the Commission. TheCommission has its own Fund, but the initial capital was paid from theConsolidated Fund. Additional amounts could also be voted byParliament. Section 47 provides for Ministerial control enabling theMinister to give special or general directions to the Corporation. Mr. H.L. de Silva also drew our attention to sections 48, 57 and 62 showingState interest or other ways of State control of the Commission.
Section 22 of the Law empowers the Commission to alienate landvested in it for specified purposes. It provides, inter alia, for alienationof land vested in the Commission by way of sale, exchange, rentpurchase or lease for agricultural development or animal husbandry.Section 23 prohibits the alienation of land to certain categories ofpersons. This includes 'any employee of the Government or of anyState Corporation or of a local authority, save and except for thepurpose of construction of residential houses'. Section 22 (3) hasprovided that in determining the persons to whom land should bealienated, "the Commission shall, as far as practicable, comply withprovisions that consideration shall be given to persons from theadministrative district where such land is situated.' Section 26prescribes that notice of the proposed alienations should be publishedin the Gazette.
Mr. H. L. de Silva submitted that the material before us shows thatmany of these statutory provisions have been disregarded by theCommission in the present case. I have already referred to the factthat Mrs. Dassanayake. being the employee of a State Corporation.
184
Sri Lanka Law Reports
[1984] 2 Sri L. R.
was disqualified from obtaining an alienation from the Commission, ofwhich the Commission was apparently unaware. Further, she is aperson without any connection with the administrative district wheresuch land is situated.
Equally important is the fact that notice of the proposed alienationhas hot been published in the Gazette. Mr. Mark Fernando sought toargue that the publication in the Gazette is discretionary. He relied onthe use of the word 'may' in section 26 and also drew our attention tothe various kinds of alienation set out in section 22, and submittedthat in some cases a publication in the Gazette did not appear to becalled for. These submissions do not bear examination. Section 26contemplates two separate acts, namely, the decision to alienate andthereafter, if alienation is decided, the publication in the Gazette ofnotice of such alienation. The discretion vested in the Board relates tothe first act. This provision does not show a second discretion, nor isthe word 'may' used twice to indicate this second discretion inrespect of the second act. The very facts of this case militate againstleaving such discretion to the Commission. There is also nothing in theprovisions of section 22 to indicate why a publication in the Gazetteshould not be made in respect of all those items. In any event it mustcertainly apply in the case like the present case where an alienation ismade to persons under section 22 (1) (a), [b) or (c). This mandatoryrequirement for giving notice of any proposed alienation by publicationin the Gazette is designed to ensure fair dealing and equality.
Mr. Fernando then contended that even those transgressions wouldnot enable the petitioner to succeed in an application under Article126, unless he can show a violation of his fundamental right ofequality under Article 12. He first contended that the word 'the law' inArticle 12 (1) refers to legislation and not to executive oradministrative action. Such a reading of Article 12(1) would result inemasculating the equality clause. There are clear indications in theConstitution itself that the fundamental rights are to be secured,respected and- advanced by all organs of government. Besides, anyproposed legislation contrary to fundamental rights would be struckdown at the Bill stage itself and the question of discrimination by'legislation' as such does not really arise.
Article 12 of our Constitution is similar in content to Article 14 of theIndian Constitution. The Indian Supreme Court has held that Article 14"combines the English doctrine of the rule of law with the equal
sc
Jayanetti v. The Land Reform Commission (Wanasundera, J.)
185
protection clause of the 14th amendment to (the U.S.) Constitution'.We all know that the rule of law was a fundamental principle of EnglishConstitutional Law and it was a right of the subject to challenge anyact of the State from whichever organ it emanated and compel it tojustify its legality. It was not confined only to legislation, but extendedto every class and category of acts done by or at the instance of theState. That concept is included and embodied in Article 12.
In India the words used in the equal protection clause are 'equalitybefore the law" and "the equal protection before the law". OurConstitution uses the expression "equal before the law' and 'equalprotection of the law". They mean substantially the same thing. It hasbeen said that "equality before law" may be defined as equalsubjection of all persons to the ordinary law of the land and 'equalprotection of laws' as the protection of equal laws. RajaSuryapalasingh v. U.P. Govt. (4).
In State of U.P. v. Deoman (5) the Indian Supreme Court definedthose expressions as follows :
'Equality before the law is a negative concept; equal protectionof law is a positive one. The former declare that every one is equalbefore the law, that no one can claim special privileges and that allclasses are equally subjected to the ordinary law of the land ; thelatter postulates an equal protection of all alike in the samesituation and under like circumstances. No discrimination can bemade either in the privileges conferred or in the liabilities imposed."
Seervai sums up the position as follows :
"And law in Article 14 is not confined to the law enacted by alegislature but includes any order or notification. Thus Article 14protects a person not only against legislation but also againstexecutive orders or notifications. This is not surprising, for theprotection given by the Article would be worth little if a law enactedby the legislature could not violate it but executive action could. AsLord Atkin said in another context: 'The Constitution is not to bemocked by substituting executive for legislative interference withfreedom'.'
The next ground urged by Mr. Fernando is that the alleged acts donot constitute executive or administrative action bringing them withinthe ambit of Article 126. This has been presented in two ways first, onthe broad basis that Article 126 is limited to violation of fundamental
186
Sri Lanka Law Reports
[1984] 2 Sri L. R.
rights by executive action, meaning that the expression 'executive'must be read in accordance with and given the same meaning asindicated in Article 4. This is not the first time such an argument hasbeen raised before us to narrow the application of Article 126 andbeen rejected. I think it is time that we finally nail this to the counter. Itwould be a sufficient answer if we merely indicate that the expressionused in Article 126 and the expression used in Article 4 are notidentical. In Article 126 the expression is 'executive and administrativeaction', while Article 4 uses the words 'executive power". We aretherefore of the view that as a matter of ordinary interpretation thewording in Article 4 cannot have a controlling effect on theinterpretation of Article 126.
In aid of this argument, Mr. Fernando submitted that Article 126does not exhaust the reliefs available to a person complaining of aviolation of a fundamental right, so that any category of persons left outby a narrow interpretation of Article 126 could obtain relief elsewhere.He probably thought that the Court had opted for a broadinterpretation of Article 126 because of this wrong view. While thisCourt has been aware that in suitable cases resort to the Court ofAppeal and even to the lower Courts is available and relief by way ofwrit, declaration, injunction, etc., can be obtained, it must however bepointed out that Article 126 provides not only the sole and exclusiveremedy in the case of violation of fundamental rights by executive oradministrative action, but also the most expeditious remedy. Theintention embodied in Article 126 for a summary disposal of casesinvolving transgression of fundamental rights is a satisfactory andeffective provision for protecting fundamental rights. At the same timethis provision has been designed to aid the administration, for pastexperience has shown that administrative action can be delayed oreven brought to a halt by protracted litigation and by interim orders,injunctions, etc. In this context it somewhat surprises me to find aState Corporation endeavouring to get out of the operation of Article126 when one would expect them to act otherwise and takeadvantage of this provision:
The other objection was narrower. Mr. Fernando submitted that theLand Reform Commission does not constitute an agency orinstrumentality of the State, nor does its acts amount to executive oradministrative action. Earlier decisions of this Court have considered
sc
Jayanetti v. The Land Reform Commission (Wanasundera. J.)
187
this matter in great detail and I would refer with approval to thejudgments of my brother Sharvananda, J., in Wijetunga v. InsuranceCorporation (6) and Wijeratne v. People's Bank (7) in this regard.
In the Insurance Corporation case, my brother Sharvananda, J. hasset out the several criteria which judges have accepted in determiningwhether or not a public corporation is an agent or instrumentality ofthe State. In the People's Bank case, my brother Sharvananda, J.summed up the law as follows :
'It will thus be seen that there are several factors which may haveto be considered in determining whether a corporation is an agencyor instrumentality of the government. Bhagawathi, J. in his very lucidjudgment in Ramana v. I. A. Authority of India (8) summarised someof those factors 'whether there is any financial assistance given bythe State, and if so , what is the magnitude of such assistance,whether there is any other form of assistance given by the State,and if so, whether it is of the usual kind or it is extraordinary,whether there is any control of the management and policies of thecorporation by the State and what is the nature and extent of suchcontrol, whether the corporation enjoys State conferred or Stateprotected monopoly status and whether the functions carried out bythe corporation are public functions closely related to governmentalfunctions'.
'He further observed that this particularisation of relevant factorsis however not exhaustive and by its very nature it cannot be,because with increasing assumption of new tasks, growingcomplexities of management and administration and the necessityof continuing adjustment in relation between the corporation andgovernment calling for flexibility, adaptability and innovative skills, itis not possible to make an exhaustive enumeration -of the testswhich would invariably and in all cases provide an unfailing answerto the question whether a corporation is a governmentalinstrumentality or agency. Consideration of any single factor maynot suffice, a Court will have to consider the cumulative effect ofthese various factors to arrive at its decision. 'It is not enough toexamine seriatim each of the factors upon which a claimant reliesand to dismiss each as being individually insufficient to support afinding of State action. It is the aggregate that is controlling'-perDouglas, J. in Jackson v. Metropolitan Edition Co. (9). It is thecumulative effect of all the relevant factors that determines themeasure of State responsibility."
188
Sri Lanka Law Reports
[1984] 2 Sri L. R.
Earlier in his judgment, my brother had explained another type ofsituation where a public corporation not strictly an agency orinstrumentality of the State can in the exercise of a particular power orpowers be endowed with a function that is executive or administrative.He said :
'A public corporation can for certain purposes serve as an agentor surrogate of the State. It all depends on the nature of itsfunctions, whether it is performing a governmental function or not. Itmay happen that certain of its functions may be governmental,whilst the others may not. When a public corporation is performingits non-governmental functions its action does not have theattributes of State action or executive or administrative action.When the Bank performs its functions of redemption or acquisitionof land, under Section 71 of the Finance Act No. 11/63, it may beurged with certain cogency that such action of the Bank constitutesexecutive or administrative action'. But in this case, the petitionerswere not employed in the service of the Bank for the performance ofduties connected with the exercise by the Bank of its powers underthe said section 71
The Land Reform Commission was an instrumentality established bythe law to manage and administer the vast acres of agricultural landappropriated or 'nationalized' by the State. These lands have to bemanaged in terms of State policy which is writ large in the numerousprovisions of the law. In this case we are concerned with its powers ofalienation. One cannot imagine that the Commission has been given afree hand to deal with those properties in any manner it wishes as inthe case of an individual. Mr. Tilakawardena, whose argument wassupported by Mr. Fernando, sought to argue that while alienationsunder section 22 are fettered to the extent set out therein, in othermatters the Commission has an absolute power over its lands with thediscretion to alienate them in any way it chooses. He saw such apower in section 26 and drew a distinction between section 22 andsection 26.
Mr. H. L. de Silva demonstrated that sections 22-26 must be readin sequence and when one does so, it is quite apparent that theempowering power as regards alienation is contained in section 24alone. These provisions hang together as a part of a coherent schemewith section 22 dealing with the purposes of alienation, section 23with qualifications, and section 26 setting out the machinery or theprocedure for effecting such alienations. This view is reinforced when
SCJayanetu v. The Land Reform Commission (Wanasundera. J.)189
we examine the preamble to the law which emphasis that alienationsshould be strictly confined to purposes which would ensureproductivity or utilization of man power, and not for other reasons. Allactivity of the Commission is subsumed under overriding policyconsiderations and this is reflected in the provisions enablingministerial control with financial assistance being provided andfinancial control being exercised by the Government.
The affidavit filed by the Chairman of the Commission states thatalienations are subject to Ministerial direction. Section 47 empowersthe Minister to give special or general directions to the Commissionand the Commission is obliged to comply with such directions.Directions have been laid down in respect of alienations and, since theextents involved in this case are over 10 acres, any such alienationmust have the approval of the Minister.
Mr. H. L. de Silva sought to attack the acts of both the Commissionand the Minister in this regard. He said that the Commission hadwrongly required a recommendation from the M.P. which is in thenature of a condition precedent to the exercise of its jurisdiction. It hadalso surrendered its decision making power to the Minister and theMinister had dictated to the Commission. All these acts, he submitted,were impermissible. I do not think that this criticism of the Minister isjustified. As I read these provisions together with the manner thepowers have been exercised, I find that it was the Commission alonethat went into the merits of each application and made the decision.The recommendation to the Minister for his approval was arequirement validly imposed in terms of the law. The Minister wasentitled in terms of section 47 to vest in himself a right of approval notin the generality of cases which is left to the Commission, but in thoseexceptional cases recommended by the Board. Even here, thedecision is made by the Commission, the Minister can only approve ornot approve it. I can find nothing illegal in this arrangement.
The need for the Minister’s approval and his sanctioning thealienation in the present case brings this particular alienation in closerelationship to the Ministerial powers, thereby giving it an executive oradministrative character whether or not the Commission itself is anagent or instrumentality of the Government. It is superfluous thereforeto decide in this context the larger question as to the character of theCommission itself.
190
Sri Lanka Law Reports
[1984] 2 Sri L. R.
Mr. Fernando next contended that a mere mistake or error on thepart of the officers administering that law will not entitle a person tocome into court on the basis of a violation of fundamental rights by theState. He submitted that to found an application under Article 126,there should be an intentional or purposeful act by or at the instance ofthe State. In this case, he submitted, what is alleged is an error ormistake on the part of an officer who dealt with the relevantapplications for alienation. In support of this proposition he referred usto the case of Gnanatilleke v. Attorney-General, (10)
In Dhanraj Mills Ltd. v. Kocker. (11) the court stated the law in thefollowing terms :
“. … a clear distinction must be borne in mind between the lawand the administration of the law. If the law itself permitsdiscrimination, even though the law may appear to be fair andundiscriminatory, the Court may interfere and say (sic) 'We aremore concerned with how the law actually works rather than how itappears in black and white' . . . One may even have a case where inexercising the discretion vested in officers under the statute, theState may, as a policy of administration, require its officers toexercise the discretion unfairly and unequally …. even in such acase the Court may interfere and say …. the administrative orderssuggest behind them a policy of the State of discrimination. But…. the position is different when a subject comes to the Court andchallenges a specific act of an individual officer as being incontravention of Art. 14. The officer in acting contrary to Art. 14 isreally acting contrary to the law and not in conformity with or inconsonance with the law … In such a case the subject comes toCourt not for protection under Art. 14, but for protection against thedishonest, arbitrary or capricious act of the officer. The Court is notpowerless to give the subject protection against a dishonest officer,but that protection cannot be sought under Art. 14 or under Art.226.”
But this view is not without its critics. Text writers have stronglyadvocated that the State should be made liable even in respect oferrors and mistakes on the part of public officers if the end result is aviolation of fundamental rights.
Mr. H. L. de Silva however placed his case on a somewhat broaderfooting than that of a mere error or mistake on the part of an officer ofthe Commission. He referred to a number of acts and omissions on
sc
Jayanetti v. The Land Reform Commission (Wanasundera, J )
191
the part of the Commission which he said induced or facilitated thediscrimination complained of by the petitioner. He submitted that thewhole operation of the alienations was conducted by hole and cornermethods ; there was no public notice of it given by gazetting asprescribed by the Law. There was the unwarranted requirement ofhaving a recommendation from the local Member of Parliamentannexed to each application, although it would have been* legitimatefor the Commission to have obtained the views of the local Member ofParliament as regards the needs of land for his electorate. To make therecommendation of the Member of Parliament a sort of conditionprecedent or to give him virtually a right of veto would be to frustratethe intention of the Legislature and to abdicate the powers vested inthe Commission.
He added that the procedures for processing applications wereunsatisfactory, leading to abuses and discrimination. In this regard, hesaid that vital matters in Mrs. Dassanayake's application were takenmerely at their face value and not subjected to checking andconfirmation as expected of a prudent and efficient institution. Thiswas absolutely necessary since the project put forward by her involvedan outlay of a large sum of money. On examination, it now appearsthat she was not even in a position to pro *ide any worthwhile securityfor her undertaking. Similarly, Mr. Weera1 nghe's application did noteven contain the basic,information called .or in the application. Mr. H.L. de Silva also complained that the volte face of the Member ofParliament and his recommendation of Mrs. Dassanayake and Mr.Weerasinghe soon after should have alerted the Commission to thefact that something was amiss, but the Commission turned a blind eyeto this turn of events. Mr. de Silva also stated that when Mr. RanjanWijeratne thought that the petitioner had been unfairly treated, it wasvirtually an admission on the part of the Commission that it had notacted correctly towards the petitioner.
These submissions show something more than an error or mistakeon the part of an individual or isolated officer administering the Law.This is more akin to the existence of an administrative policy in theadministrative procedures inducing or resulting in the discriminationcomplained of in this case. If so, it could amount to a violation by theexecutive or administrative authorities themselves.
192
Sri Lanka Law Repons
[1984] 2 SriL. R.
There is also another aspect to this matter. Section 23 provides fora disqualification. Although it is couched in that form, this provisionbasically sets out a classification. It has not been suggested that thisclassification is unreasonable. In the present case, when theCommission made an alienation to Mrs. Dassanayake, it hasdisregarded a classification made by the Legislature itself. In theresult, the case of the petitioner, who is legally entitled to make anapplication, has suffered in preference to the case of a person who isdisqualified by Law. The disregarding of a valid classification is theclearest example of discrimination. In the above circumstances I am ofthe view that there has been a violation by the Commission of thefundamental right of the petitioner guaranteed by Article 12.
Counsel for the respondents also contended that due to theimperative provisions of Article 126, this Court would have nojurisdiction to hear and determine this matter after the lapse of aperiod of two months. On this issue, we are bound by the decision inKarthigesu Visuvalingam and Others v. Don John Francis Liyanage andOthers, (12) which held that this provision is directory. Our ruling thatthis provision is directory does not signify that it is being erased fromthe statute book. It only means that the time limit imposed by theprovision will not be strictly applied to defeat the interests of justice,where such delay is caused by circumstances beyond the control ofcourt or when such delay is necessitated in the interests of justice.
Mr. Tilakawardena's further submission that we cannot proceedagainst the 4th respondent outside the initial time limit set out inArticle 126 is equally untenable. The correct position is that the 4threspondent has been impleaded to an action filed within theprescribed time limit. That action is against the State and the 4threspondent has been added as a proper party to this action.
In the result I would hold that there has been unequal treatment ofthe petitioner violative of Article 12 by executive or administrativeaction in this case. In the exercise of our powers under Article 126 (4)we would declare that due to the violation of the provisions of theLand Reform Law, the deed of transfer to Mrs. Dassanayake No.1125 dated 2nd February 1984 and all proceedings in connectionwith the alienation of the 84 acres of this land are null and void. Werefrain however from giving any other specific directions in the matter.We leave it open to the Commission to take whatever action in
193
SCJayanetti v. The Land Reform Commission (Wanasundera, J )
accordance with the Law, which it considers meet in respect ofdealings with this land which is vested in it. The parties will bear theirown costs.
SHARVANANDA, J. – I agree.
WIMALARATNE, J. -1 agree.
COLIN-THOMI:, J. – I agree.
ABDUL CADER, J. -1 agree.
Application allowed.