294
Sri Lanka Law Reports
[2003] 2 Sri L.R
JOSEPH FERNANDOv
MINISTER OF LAND DEVELOPMENT ANDMINOR EXPORT AGRICULTURE AND OTHERS
COURT OF APPEALSRIPAVAN, J.
CA NO. 18. 2001MARCH 5, ANDMAY 29, 2003
Writ of certiorari – Land Acquisition Act, section 38(a) – Section 4 Notice pub-lished – Public purpose not disclosed – Possession not taken over – Delay -Proceedings a nullity? – Compensation awarded – Appeal lodged againstorder – Does writ lie?
The petitioner sought to quash a vesting order issued on 22.11.1990 undersection 38(a). It was contended that the section 4 notice was published on4.7.1983 without disclosing the public purpose. It was also contended that pos-session was not taken over even though the order was made, on the groundof urgency.
Held:
No notice under section 2 had been published. The section 4 notice didnot disclose the public purpose. The decision of the first respondentwithout disclosing the public purpose is clearly a decision made outsidejurisidiction.
Length of delay does not disentitle the petitioner seeking a writ whichlies at the discretion of court and will not be denied as the proceedingsare a nullity.
Although 13 years have lapsed since the acquisition no material hasbeen placed before court to show that the land has been developed orthat it had been put to any public purpose. No material has been placedto justify urgency.
Mere fact that the petitioner has preferred an appeal to the Board ofReview does not prevent him from challenging the Order made undersection 38(a).
CA
Joseph Fernando v Minister of Land Development and Minor
Export Agriculture and others (Sripavan. J.)
295
APPLICATION for writ of certiorari.
Cases referred to:
ManeI Fernando and another v Das Jayantha (2000) 1 SRI LR 112 at115
Macfoyv United African Co.. Ltd. (1961) 3 All ER 1172
Biso Menike v Cyril de Alwis (1982) 1 SRI LR 368
De Silva v Athukorale, Minister of Lands (1993) 1 SRI LR 283 at 292
Bandula v Almeida and others (1995) 1 SRI LR 309 at 330.
Hopman and others v Minister of Lands and Land Development andothers (1994) 2 SRI LR 240.
Fernandopuiie v Minister of Lands and Agriculture 79 NLR 115 at 120.
Nihal Jayamanne, P.C. with Diian de Silva for petitionerY.J.W. Wijayatiiake, Deputy Solicitor General for respondents.
July 7, 2003SRIPAVAN, J.
The petitioner is the owner of the land called “Tilleaddy Thottam” 01morefully depicted in Plan No. 357 dated 04.12.1931 made byD.E.J.R.de Vas, Licenced Surveyor and Leveller. The petitioneralleges that the first respondent acting in terms of section 38 provi-so (a) of the Land Acquisition Act published in the Gazette No. 637/ 20 dated 22.11.1990 a vesting order in relation to the said land.
The petitioner seeks, inter-alia, an order in the nature of a writ ofcertiorari to quash the said vesting order published in the Gazettedated 22.11.1990 and / or a writ of mandamus directing the first and/ or the second respondent to divest the said land acquired in terms 10of the said vesting order marked P4.
The affidavit of the first respondent dated 25.06.2002 revealsthat the land in question was acquired upon a request made by the' Secretary, Ministry of Fisheries on 17.08.1982 (1R1) for fisheriespurposes. Notice under section 4 of the said Act was published on
296
Sri Lanka Law Reports
[2003] 2 Sri LR
(1R2). However, the said notice did not disclose thepublic purpose for which the said land was acquired. The petition-er alleges that despite an order being made in terms of section 38proviso (a) of the said Act on the ground of urgency, possession ofthe land has not been taken on behalf of the State. The first respon-dent however denies this and states that possession of the land. has been taken over in the absence of the petitioner.
It is observed that the third respondent has not filed anyobjections to this application. The Acting Minister of Tourism andFisheries (Western Province) by his letter dated 30.07.2000 (P20)wrote to the Chairman, Parliamentary sub Committee onInvestment Promotions stating that the land in question was takenover to build up a trawler boat building yard and observed that thetwo bridges were not high enough to bring the trawlers to the saidland. He recommended that the acquisition order be revoked andthe said land be divested and given back to the owner. Anotherinteresting feature is that the Director (Fisheries CommunityDevelopment) of the Ministry of Fisheries and Aquatic Resourceshas by letter dated 30.06.1999 (P8) informed the DivisionalSecretary, Negombo that the Ministry of Fisheries does not haveany files in respect of this acquisition. No notice under Sec. 2 ofthe Act was published. Thus, the petitioner was not in a position toascertain the public purpose for which his land was required.Accordingly, the decision of the first respondent without disclosingthe public purpose is clearly a decision made outside jurisdiction.The lawful exercise of a statutory power presupposes not only com-pliance with the substantive, formal and procedural requirementslaid down for its performance but also with the implied requirementsgoverning the exercise of that discretion.
In the case of Manet Fernando and another v D.M.JayaratneS1) Fernando, J. stated “that the first question is whetherthe public purpose should be disclosed in the Sec. 2 and Sec. 4notices …. In my view, the scheme of the Act requires a disclosureof the public purpose and its objects cannot be fully achieved with-out such disclosure”. Thus, the failure to disclose the public pur-pose in Sec. 4 notice would make the said notice a nullity. “You can-not put something on nothing and expect it to stay there, it will col-lapse.” – per Lord Denning in Macfoy v United Africa Company
20
30
40
50
CA
Joseph Fernando v Minister of Land Development and Minor
Export Agriculture and others (Srioavan, J.)
297
LimitedHence, the length of delay as submitted by the learnedD.S.G. does not disentitle the petitioner from seeking a writ whichlies at the discretion of court, will not be denied if the proceedingswere a nullity (Vide Biso Mertika v Cyril de Alwisffl.
In De Silva v Athukorale, Minister of Landst4), Fernando, J.observed that “the Act contemplates a continuing state of things; itis sufficient if the lack of justification appears at any subsequentpoint of time; this is clear from paragraph (b) of section 39A (2); ifthe land has not been used for a public purpose after possessionhas been taken, there is then an insufficiency of justification; andthe greater the lapse of time, .the less the justification for the acqui-sition.” The mere assertion by the first respondent that the land isrequired for fisheries activities without sufficiently describing thenature and extent of the requirement gives rise to a reasonablesuspicion that there is no clear need for the land in question.Although thirteen years have lapsed since the said acquisition, nomaterial has been placed before court to show that the land hasbeen developed or that it has been put to any public purpose.
In Bandula v Almeida and others*5> Wadugodapitiya, J.observed “that the totality of the material placed before this court bythe learned Counsel for the respondents does not measure up inany degree to satisfy the requirements of the factual existence ofan Urban Development Project as envisaged in the UrbanDevelopment Projects (Special Provisions) Act, No. 2 of 1980 …What strikes me at this point is that the learned Counsel for therespondents wanted this court to infer that an Urban DevelopmentProject existed, from the gazettes, sketches and photographs heproduced. I regret I am unable to draw such an inference, and wishto state affirmatively, that this is too important a matter to be dis-posed of upon the basis of any such inference. There must be def-inite and positive material showing that a project already existed;for which project, the land in question had to be acquired, and notthe other way around.”
In the case in hand, the learned D.S.G. appearing for therespondents did not produce any positive material by way qf pro-ject plan, development plan, sketches or photographs to demon-strate the existence of a public purpose. As submitted by thelearned President’s Counsel coast conservation should be carried
60
70
80
90
298
Sri Lanka Law Reports
[2003] 2 Sri L.R
out consistent with a Coastal Zone Management Plan prepared interms of the Coast Conservation Act, No. 57 of 1981. No such planhas been produced before this court. Neither did the respondentsproduce any feasibility report or minutes in the departmental fileshowing any discussions held regarding the conservation of coast.
In the circumstances, I agree with the submissions made by thelearned President’s Counsel that no public purpose exists in rela-tion to the land which is the subject matter of this application.
The learned D.S.G. submitted that the compensation inquiry 100has been completed and an award in terms of Sec. 17 of the saidAct has been made. It was the submission of the learned D.S.G.that since the petitioner has preferred an appeal to the Board ofReview against the award of compensation he is not entitled to getthe reliefs sought in these proceedings. In Hopman and others vMinister of Lands and Land Development and others <6>. Kulatunga,
J. observed that “the appellant’s appeal to the Board of Review forenhanced compensation cannot be regarded as conduct whichprecludes the relief sought by the appellants and their conduct didnot amount to a waiver.” Accordingly, the mere fact that the peti- notioner has preferred an appeal to the Board of Review does not pre-vent him from challenging the order made under Sec. 38 proviso (a)of the said Act.
In Fernandopulle v Minister of Lands and Agriculture (7>Samarakoon, C. J. observed as follows “Are the Courts obliged toturn a deaf ear merely because some statutory officer is able to pro-claim “I alone decide”. “When I open my mouth let no dog bark?” Ifthat be the position when the rights of the subject are involved thenthe Court would have abdicated its powers necessary to safeguardthe rights of the individual. I do not think that is the test. No doubt pri- 120marily the Minister decided urgency. He it is who is in possession ofthe facts and his must be the reasoning. But the courts have a dutyto review the matter.” In the case in hand, although the vesting orderwas made in 1990 no material has been placed to justify urgency; novalid public purpose has been established with cogent evidence forretaining the said land in the State. In the circumstances, a writ ofcertiorari is issued to quash the vesting order published in theGazette No. 637 / 20 dated 22.11.1990 marked P4 in so far as itrelates to the petitioner’s land. I make no order as to costs.
Application allowed.
