Sri Lanka Law Reports
12003] 3 Sri L.R
SEETHAWAKAPURA URBAN COUNCILAND OTHERSCOURT OF APPEALSRIPAVAN, J.
C.A. NO. 1636/2001FEBRUARY 20, 2003MARCH 17,2003APRIL 8, 2003MAY 7, 2003
Urban Councils Ordinance – Section 84 (1) – Urban Development AuthorityLaw 41 of 1978 – Sections 3, 8(J), 23(3), 28A and 29 – Development Activity- Delegation ? – Unauthorised structure.
The Petitioner was asked to remove the unauthorised structure within sevendays by the 1 st respondent. The area has been declared as a DevelopmentArea in terms of the Urban Development Authority Law.
Once an area has been declared as a "development area" no personcould carry out or engage in any development activity in any such partwithout a permit issued by the Urban Development Authority (UDA).
If any development activity is commenced, continued, resumed or com-pleted without a permit issued by the Urban Development Authority -3rd respondent, in a development area, action has to be taken only bythe 3rd respondent (UDA).
Provisions of the Urban Councils Ordinance has no application inrespect of any development activity carried out or engaged in an areadeclared as a development area.
What can be delegated are only the powers, duties, and functions relat-ing to planning. Matters relating to development activities are not capa-ble of being delegated.
APPLICATION for a writ of certiorari
Douglas Premaratne PC. with Ms. P. Dias for the petitioner.
Mohan Peiris for the first and second respondents.
Mrs. B. Thilakaratne D.S.G, for the third respondent.
Jayasinghe v Seethawakapura Urban Counciland others (Sripavan, J.)
June 9,2003SRIPAVAN, J.
The petitioner has been carrying on the business of "Vajira Cool 01Spot", "Vajira Tailors" and "Vajira Saloon" since 1994 on the landbelonging to the second respondent. Somewhere around 3rdOctober 2001, the petitioner received a notice marked P1 purport-ing to be under sec, 84(1) of the Urban Councils Ordinancerequesting the petitioner to remove the unauthorized structureswithin seven days from the date of the said notice. The petitionerseeks a writ of certiorari to have the said notice P1 quashed on thebasis that the second respondent acted completely outside hisjurisdiction, without any power or authority and as such the said 10notice was illegal and void.
It is common ground that Avissawella (Seethawakapura) UrbanCouncil area has been declared as an "Urban Development Area"(hereinafter referred to as a development area) in 1980 by theMinister in terms of section 3 of the Urban Development AuthorityLaw No 4T of 1978 (hereinafter referred to as the UDA law) asamended. Once an area has been declared as a "developmentarea", in terms of Sec 8J of the UDA law, no person shall carry outor engage in any "development activity" in any such area or partthereof without a permit issued by the third respondent, notwith- 20standing the provisions contained in any other law. Thus, thelearned President's Counsel submitted that the UDA law alone canapply in respect of any "development activity" carried out in a"development area".
Sec 29 of the UDA law defines "development activity" as follows:
"Development activity" means the parcelling or subdi-vision of any land, the erection or re-erection of struc-tures and the construction of works thereon, the carry-ing out of building, engineering and other operationson….30
Hence, Counsel contended that any unauthorized structures putup by the petitioner falls within the definition of "development activ-ity" as provided in sec 29. It is on this basis Counsel urged thatwhen any "development activity" is commenced, continued,
Sri Lanka Law Reports
 3 Sri L.R
resumed or completed without a permit issued by the third respon-dent in a "development area", action has to be taken only by thethird respondent in terms of sec 28A of the UDA law and not by thesecond respondent acting under sec 84(1) of the a Urban CouncilsOrdinance.
One of the powers and functions of the third respondent as stat-ed in sec 8(p) of the UDA law is to approve, co-ordinate, regulate…any development activity in a "development area". The ambit andscope of the UDA law clearly shows the intention of the legislature,namely, that no "development activity" shall be carried out exceptwith a permit issued by the third respondent in that behalf. Thelearned Counsel for the first and the second respondents submit-ted that acting under sec 84(1) of the Urban Councils Ordinancethe first / second respondent has the authority to order the removalof any obstruction and encroachment. I am unable to agree withthis submission in situations where a "development activity" is car-ried out in an area declared as a "development area" by theMinister under the UDA law. The object of an order in terms of sec3 of the UDA law necessarily involves certain built-in assumptions.One such assumption is that the power to issue permits for the pur-poses of carrying out any development activity in any "developmentarea" vests in the third respondent. Similarly, if any "developmentactivity" continues .without a permit issued by the third respondent,
I agree with the learned President's Counsel that action has to betaken by the third respondent to whom the power is committed interms of sec 28A of the UDA law. The said provision specificallyprovides for the procedure to be followed in such a situation. It isimperative that the procedure laid down in the relevant statuteshould be properly observed and it is well settled that statutorypowers can only be exercised by public bodies invested with suchpowers and not by others. Hence, I hold that sec 84(1) of the UrbanCouncils Ordinance has no application in respect of any "develop-ment activity" carried out or engaged in an area declared by theMinister as a "development area" under sec 3 of the UDA law.
Learned Deputy Solicitor General urged that the third respon-dent has delegated its powers to the Chairman of the secondrespondent under sec 23(5) of the UDA law which reads.thus :
Trust Union Shipping Corporation v Commissioner General of
Inland Revenue. (Somawansa, J.)
"The Authority may delegate to any officer of the localauthority, in consultation with that local authority, any ofits powers, duties and functions relating to planningwithin any area declared to be a development areaunder sec 3, and any such officer shall exercise, per-form or discharge any such power, duty or function sodelegated, under the direction, supervision and controlof the Authority."
Accordingly, what can be delegated are only'the powers, duties soand functions relating to. planning. Matters relating to developmentactivities are not capable of being delegated under the said provi-sion. Hence, the delegation relied on by the learned Deputy SolictorGeneral does not empower the first respondent to issue a noticeunder sec 84(1) of the Urban Councils Ordinance. In the result, Iissue an order in the nature of a writ of certiorari quashing thenotice dated 03.10.2001 marked P1 issued by the first respondent.
I make no order as to costs.