Jayasooriya v Ratnayake and Others
Dr. A.De Z. GUNAWARDANA, J. -1 agreeAppeal allowed.
RATNAYAKE AND OTHERS
COURT OF APPEALSRIPAVAN, J.
CA 1067/99FEBRUARY 14, 2003.
MARCH 17, 2003.
MAY 19, 2003.
Writ of certiorari/mandamus – Land Reform Commission Law No. 1 of 1972 -Sections 23,24,25,26,27 – Necessary parties – Mandamus can only besought against the person who is vested with statutory power and not againstothers.
The petitioner sought a writ of certiorari to quash the decisions of the 1st, 2ndand or 3rd respondents – All officers of the Land Reform Commission – And awrit of mandamus on the same officers to transfer the property in favour of thepetitioners.
On a preliminary objection raised,
The Land Reform Commission (L.R.C.) is a body corporate and cansue and or be sued in its corporate name. Under sections 22-27 theL.R.C. is vested with the statutory powers to alienate the property inquestion.
The 1st, 2nd and 3rd respondents are not empowered to alienateproperties vested in the L.R.C: the relief sought can only be againstthe L.R.C.
Writ of mandamus can only be sought against the person who isvested with the statutory power and not against others. Thepetitioners cannot seek a writ of mandamus against the 1st-3rdrespondents directing them to transfer the property in question infavour of the petitioners.
The Land Reform Commission – LRC – is a necessary party.
Sri Lanka Law Reports
 3 Sri L.R
APPLICATION for a writ of certiorari and/or mandamus.
On a preliminary objection taken.
Case referred to:
Muthusamy Gnanasambanthan v Chairman REPIA and others1998-3 Sri LR 169 (SC)
Ranjan Suwandaratne with Anil Rajakaruna for petitioner
M.R. Ameen SC for 1st – 3rd respondents
June 10, 2003SRIPAVAN, J.
The petitioners in this application are seeking for a writ of 01certiorari to quash the decisions of the 1st and/or 2nd and/or 3rdrespondents contained in the documents marked G1, G2 anddeeds marked K1 to K5 and all other alienations effected; and awrit of mandamus directing the 1st to 3rd respondents to transferthe property depicted in plan marked F2 in favour of the petitioners.
On 14.02.2003 learned State Counsel appearing for the 1st to3rd respondents raised a preliminary objection to themaintainability of the petitioners’ application on the basis that thepetitioners have failed to make the Land Reform Commission a 10necessary party to this application. Learned State Counselsubmitted that in terms of section 43(2) of the Land ReformCommission Law No. 1 of 1972 as amended, the Land ReformCommission is a body corporate and can sue and be sued in itscorporate name. Further, in terms of sections 23,24,25,26 and 27of the said law the Land Reform Commission is vested with thestatutory powers to alienate the property in question. Since the 1stto 3rd respondents are not empowered to alienate propertiesvested in the Land Reform Commission, the relief in the nature ofwrit of mandamus as prayed for by the petitioners can only be 20sought against the Land Reform Commission. The writ ofmandamus can only be sought against the person who is vestedwith the statutory power and not against others. Thus, I agree withthe submission made by the learned State Counsel that thepetitioners cannot seek a writ of mandamus against the 1 st to 3rdrespondents directing them to transfer the property in question infavour of the petitioners.
CAJayasooriya v Ratnayake and Others155
Learned State Counsel heavily relied on the decision made bythe Supreme Court in the case of Muthusamy Gnanasambanthan vChairman REPIA & Others n>. In that case, the petitioner applied tothe Court of Appeal for a writ of certiorari to quash the divestingorder and for a writ of mandamus directing the 1st respondent tomake order divesting the property to the petitioner. By its letterdated 27.08.1983 the REPIA in the exercise of its powers underthe regulation, divested the property to the 2nd and 3rdrespondents. The letter was signed by the 1 st respondent who wasthe Chairman of REPlA.The Court of Appeal upheld the preliminaryobjection raised by the 1st respondent that since REPIA was theauthority concerned with the making of divesting orders, the failureto make REPIA a party should lead to the dismissal of the petition.In appeal to the Supreme Court Amerasinghe, J., observed asfollows: “in the matter before us the petitioner seeks both a writ ofcertiorari and a writ of mandamus, in any event the question beforeus is not whether the Chairman of REPIA could be cited Nomineeofficii, which perhaps was possible in respect of the application forcertiorari but not in respect of the application for mandamus, butwhether REPIA should have been cited as a necessary party, sincethe decision was one which only REPIA was empowered to make.”
It is on the basis of the aforesaid judgment, the learned StateCounsel contended that the petitioners in this application cannotseek a writ of certiorari to quash the decisions contained in thedocuments marked G1 and G2. The said decisions have beenmade on behalf of the Land Reform Commission who could besued in its name. Accordingly, Counsel urged that the Land ReformCommission is a necessary party to this application in order topursue the relief of certiorari. This court is bound by the decision ofthe Supreme Court in Gnanasambanthan’s case.
For the reasons stated, I hold that the Land ReformCommission is a necessary party to this application and the failureto make it a party is a fatal irregularity. In the result, I uphold thepreliminary objection raised by the learned State Counsel anddismiss the petitioners' application without costs.
SRIPAVAN, J. – I agree.