050-SLLR-SLLR-2006-V-2-JAYAWICKREMA-vs.-MAHARAGAMA-URBAN-COUNCIL-AND-OTHERS.pdf
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JAYAWICKREMAvs.
MAHARAGAMA URBAN COUNCIL AND OTHERSCOURT OF APPEAL.
SRISKANDARAJAH.J.
CA 2192/2004.
MARCH 22.2006.
Urban Development Authority Law – Amended by Act No. 4 of 1982 section 3,section 8(5), 8 J (3) (a) – (b) -23(5)- Area earmarked for development activities- JRefusal of authority to approve sub-division – Legality?- Matters to beconsidered in refusing approval?
CA
Jayawickrema vs. Maharagama Urban Council
and Others (Sriskandarajah, J.)
383
The petitioner sought a Writ of Certiorari to quash the decision of therespondents refusing to approve the sub -division of Lot 7 and a Mandamus toapprove the plan. The contention of the respondents was that the land inquestion is a part of a larger area that has already been earmarked fordevelopment activities and the land is in the process of being acquired.
HELD:
The respondents (if there is a development plan for the area) couldrefuse an approval for sub-division of a land in that area and if the subdivision is inconsistent with or in contravention of any proposal orprovision in such development plan or if the development plan is notprepared then the respondents could refuse an approval of a sub -division of a land in that area, if it is not in conformity with the futuredevelopment of such area.
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The respondents have not considered any of the relevant mattersprovided in section 8 J(3)(a) or (b). If they have considered the saidprovisions and made an order then the petitioner would have had anopportunity to appeal to the Minister under section 8 J(5).
The respondents have a legal duty under section 8J (3) to consider theapplication for the approval of the sub-division.
Nihal Jayamanne PC with Anandalal Nanayakkara for petitioner.
Gamini Marapana PC with Navin Marapana for respondents.
Cur.adv.vult.
May 24,2006SRISKANDARAJAH, J.
The Petitioner in this application in seeking a writ of certiorari to quashthe decision of the Respondents contained in P6, namely: the refusal forthe approval of sub-division of Lot 7 in Plan No. 2752C prepared byK.Nadarajah Licensed Surveyor dated 23.11.1993 (P2A) and for amandamus to consider and approve the said Plan.
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It is an admitted fact that in terms of section 23(5) of the UrbanDevelopment Authority law, the Urban Development Authority has delegatedto the 2nd and 3rd Respondent its powers, duties and functions relating toplanning within the Maharagama Urban Council Area. In terms of section8J of the said Law, introduced by the Urban Development (Amendment)Act, No.04 of 1982, once an area has been declared as an UrbanDevelopment Area in terms of section 3 of the said Law, any developmentactivity within that area requires approval under the Urban DevelopmentAuthority Law. The definition of development activity includes the sub-division of land.
The Petitioner submitted an application to the Respondents for theapproval of the sub-division of lot 7 of plan P2A, annexing the Plans P2A,P2B, and P2C. The Respondents by letter dated 13.02.2004 (P6) informedthe Petitioner that the said land falls within the Kottawa urban developmentactivities, and therefore approval of the sub- division cannot be considered.
The Petitioner contends that there is no provision in Law for theRespondents to refuse to consider the Petitioner’s application for sub-division. The reason given in the said letter of refusal P6 is unacceptableand in violation of the Urban Development Authority Law and the UrbanCouncils Ordinance and therefore the said decision is unlawful and arbitrary.
The position of the Respondents is that the land in question is a part ofa larger area that has already been earmarked for development activity bythe Urban Development Authority as a part of Maharagama DevelopmentProject and that these lands are in the process of being acquired. But theRespondents failed to produce the preliminary notice such as notice undersection 2 of the Land Acquisition Act or any other regulation, rule ordocument that prevents sub-division of lands in this development area.
Section 8 J of the Urban Development Authority Law as amended providesthat permits are necessary to carry out or engage in development activitiesin development areas. It provides :
8J(1) Notwithstanding the provisions of any other law, no Governmentagency or any other person shall carry out or engage in any developmentactivity in any development area or part thereof, except under the authority,
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Jayawickrema vs. Maharagama Urban Council
and Others (Sriskandarajah, J.)
385
and in accordance with the terms and conditions, of a permit issued inthat behalf by the Authority.
An application, for a permit to carry on or engage in any developmentactivity within a development area or part there of shall be made to theAuthority in such form and shall contain such particulars and beaccompanied by such fees as may be prescribed by regulations madeunder this Law.
A permit under sub-section (1) shall be granted by the Authorityunder that sub-section subject to such terms and conditions as the Authoritymay consider necessary, if the Authority is satisfied that,
in any case where the development plan has been submitted tothe Minister for approval or the development plan has beenapproved by the Minister, the development activity proposed tobe carried out or engaged in will not be inconsistent with or incontravention of any proposal or provision in such developmentplan; and
in any case where no development plan has been prepared, thepurpose for which such permit is required to carry out or engagein such development activity conforms to the future developmentof such area.
The Authority may take into consideration the recommendation ofthe Planning Committee, in granting or refusing to issue a permit underthis section.
Any person who is aggrieved by the refusal of the Authority to granta permit under this section may, subject to regulations made under thisLaw, appeal to the Minister against such refusal and the decision of theMinister upon any such appeal shall be final.
A permit issued under this section shall be valid for a period of oneyear:
Provided, however, that the Authority may on application extend thevalidity of a permit for a further period or periods not exceeding two years
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if the Authority is satisfied that the development activity referred to in thepermit has been commenced but not been completed due to unforseencircumstances:
Provided further that the expiry of a permit shall not preclude anysubsequent application being made for a fresh permit for such purpose.
In view of the above section the Respondents (if there is a developmentplan for the'said area) could refuse an approval for sub -division of a land inthat area only if the sub-division is inconsistent with or in contravention ofany proposal or provision in such development plan or if the developmentplan is not prepared then the respondent could refuse an approval of a sub-division of a land in that area if it is not in conformity with the futuredevelopment of such area. For this matter the Respondents are empoweredto take into consideration the recommendation of the planning committee.
In the instant case the Respondents have not considered any of therelevant matters provided in section 8J(3)(a) or (b). If they have consideredthe said provisions and made an order then the Petitioner would have hadan opportunity to appeal to the Minister under section 8J (5).
The Respondents have a legal duty under section 8J (3) to consider theapplication of the Petitioner for the approval of the sub-division of his landand the Petitioner has a right to make such application under section 8J ofthe said law. The Respondents have not taken relevant facts intoconsideration in refusing to consider the said application. In thesecircumstances the court quashes the order P6 dated 13.02.2004 by a writof certiorari and issues a mandamus for the Respondents to consideraccording to law the application made by the Petitioner for sub-divisionshown in plan No.2752C(P2A). The application of the Petitioner is allowedwithout costs.
Application allowed.
Writ of Mandamus issued on the respondents to consider according tolawthe.application for sub -division.