JAYASINGHE v. SECRETARY ,SEETHAWAKA URBAN COUNCIL AND OTHERS

031-SLLR-SLLR-2004-V-3-JAYASINGHE-v.-SECRETARY-SEETHAWAKA-URBAN-COUNCIL-AND-OTHERS.pdf


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Sri Lanka Law Reports
(2004) 3 Sri L.R
JAYASINGHEv
SECRETARY, SEETHAWAKA URBAN COUNCIL AND OTHERSCOURT OF APPEALSRIPAVAN. J.
CA 1636/2001February 20, 2003March 17, 2003April 8, 2003May 7, 2003
Writ of Certiorari – Urban Councils Ordinance Section 84 (1) – Removal ofunauthorized structures – Urban Development Authority Law No. 41 of 1978 asamended – Section 3, Section 8J, Section 23 (2), Section 29 – Developmentarea – Development activity commenced in area – Who should take action? -Is it the Urban Development Authority (UDA) or the Local Council? – Powersthat can be delegated to the Local Authority by the U.D.A.
The petitioner complains that he received a notice from the Local Councilrequesting him to remove the alleged unauthorised structures. The petitionercontends that any development activity commenced without a permit from the3rd respondent U.D.A. in a development area, action has to be taken only bythe U.D.A. in terms of Section 28A of the UDA Law and not by the LocalCouncil, and challenged the notice issued under Section 84 (1) of the UrbanCouncils Ordinance.
Held: (1) One of the powers and functions of the 3rd respondent UDA(Section 8 (p) UDA Law) is to approve, co-ordinate, regulate, anydevelopment activity in a development area. No Developmentactivity could be carried out except with a permit issued by theUDA in that behalf.
(2) If any development activity continues without a permit issued bythe UDA action has to be taken by the UDA to whom the power iscommitted in terms of Section 28A of UDA Law.
Held further
(3) What can be delegated under Section 23 (5) of the UDA Law areonly the powers duties, and functions relating to planning. Mattersrelating to development activities are not capable of beingdelegated. Delegation does not empower the 1st respondent to
q/ Jayasinghe v Secretary, Seethawaka Urban Council and Others 199
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issue a notice under Section 84 (1) of the Urban CouncilsOrdinance. Section 84(1) has no application in respect of anydevelopment activity carried out in an area declared by theMinister as a development area under Section 3 of the UDA Law.
APPLICATION for a Writ of Certiorari.
Douglas Premaratne PC with Ms. P. Dias for petitioner.
Mohan Peiris for 1st and 2nd respondents.
Ms. B. Tilakaratne DSG for 3rd respondent.
Cur.adv.vult.
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 03rdOctober 2001, the petitioner received a notice maked P1 purportingto be under Section 84 (1) of the Urban Councils Ordinancerequesting the petitioner to remove the unauthorised 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 saidnotice was illegal and void.10
It is common ground that Avissawella (Sethawakapura) 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. 41 of 1978 (hereinafter referred to as the UDA Law) asamended. Once an area has been declared as a “developmentarea”, in terms of Section 6J of i'ne UDA law, no person shall carryout or engage in any “development activity” in any such area or partthereof without a permit issued by the third respondent,notwithstanding the provisions contained in any other law. Thus, 20the learned President’s Counsel submitted that the UDA law alonecan apply in respect of any “development activity” carried out in a"development area”.
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Section 29 of the UDA law defines “development activity” asfollows:-
“Development activity” means the parcelling or subdivision ofany land, the erection or re-erection of structures and theconstruction of works thereon, the carrying out of building,engineering and other operation on
Hence Counsel contended that any unauthorised structures putup by the petitioner falls within the definition of “developmentactivity” as provided in Section 29. It is on this basis Counsel urgedthat when any “development activity” is commenced, continued,resumed or completed without a permit issued by the thirdrespondent in a “development area”, action has to be taken only bythe third respondent in terms of Section 28A of the UDA law and notby the second respondent acting under Section 84 (1) of the UrbanCouncils Ordinance.
One of the powers and functions of the third respondent asstated in Section 8 (p) of the UDA law is to approve, co-ordinate,regulate any development activity in a “development area”. Theambit and scope of the UDA law clearly shows the intention of thelegislature, namely, that no “development activity” shall be carriedout except with a permit issued by the third respondent in thatbehalf. The learned Counsel for the first and second respondentssubmitted that acting under Section 84 (1) of the Urban CouncilsOrdinance the first/second respondent has the authority to orderthe removal of any obstruction and encroachment. I am unable toagree with this submission in situations where a “developmentactivity” is carried out in an area declared as a “development area”by the Minister under the UDA law. The object of an order intermsof Section 3 of the UDA law necessarily involves certain built-inassumptions. One such assumption is that the power to issuepermits for the purposes of carrying out any development activity inany “development area” vests in the third respondent. Similarly, ifany “development activity” continues without a permit issued by thethird respondent. I agree with the learned President’s Counsel thataction has to be taken by the third respondent to whom the poweris committed in terms of Section 28A of the UDA law. The saidprovision specifically provides for the procedure to be followed insuch a situation. It is imperative that the procedure laid down in the
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relevant statute should be properly observed and it is well settledthat statutory powers can only be exercised by public bodiesinvested with such powers and not by others, hence, I hold thatSection 84 (1) of the Urban Councils Ordinance has no applicationin respect of any “development activity” carried out or engaged in 70an area declared by the Minister as a “development area” underSection 3 of the UDA law.
Learned Deputy Solicitor General urged that the thirdrespondent has delegated its powers to Chairman of the secondrespondent under Section 23 (5) of the UDA law which reads thus:-
“The Authority may delegate to any officer of the local authority,in consultation with that local authority, any of its powers, dutiesand functions relating to planning within any area declared to bea development area under Section 3, and any such officer shallexercise, perform or discharge any such power, duty or function soso delegated, under the direction, supervision and control of theAuthority.”
Accordingly, what can be delegated are only the powers, dutiesand functions relating to planning. Matters relating to developmentactivities are not capable of being delegated under the saidprovision. Hence, the delegation relied on by the learned DeputySolicitor General does not empower the first respondent to issue anotice under Section 84 (1) of the Urban Councils Ordinance. In theresult, I issue an order in the nature of a writ of certiorari quashingthe notice dated 03.10.2001 marked P1 issued by the first 90respondent.
I make no order as to costs.
Application allowed.