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K.T.D.S.N. DE SILVA AND OTHERS
v.SALINDA DISSANAYAKE, MINISTER OF LANDDEVELOPMENT AND MINOR AGRICULTURAL EXPORTPRODUCE AND OTHERS
SUPREME COURTFERNANDO, J.WIGNESWARAN, J„ ANDWEERASURIYA, J.
SC APPEAL No. 34/2002CA APPLICATION No. 703/200111TH SEPTEMBER, 2002
Writ of mandamus – Divesting of an order of acquisition of land under theLand Acquisition Act – Section 39A of the Act – Jurisdiction of the Court ofAppeal – Ouster of jurisdiction – Sections 2 and 4 of the UrbanDevelopment Projects (Special Provisions) Act, No. 2 of 1980 -Circumstances in which jurisdiction is not ousted.
A notice under section 2 of the Land Acquisition Act (“the LA Act”) wasissued on 08.10.91 in respect of a land owned by the applicants and anorder under section 38 proviso (a) dated 25.04.1992, was published in theGazette on 04.05.1992, directing that immediate possession of that land betaken on the ground of urgency. The President then made an order undersection 2 of the Urban Development Projects (Special Provisions) Act, No.2 of 1980 (“the UDP Act”) that the said land was urgently needed for the pur-poses of an Urban Development Project. That order did not specify or iden-tify the project.
On 07.07.1992 an application was made to the Court of Appeal for a writ ofcertiorari to quash the section 38 Proviso (a) order. It was dismissed in lim-ine on 15.08.1994 for want of jurisdiction in view of section 4 of the UDP Actand on the basis that writ jurisdiction can only be exercised by the SupremeCourt. No appeal was made to the Supreme Court from that order, nor wasany writ application made to the Supreme Court.
It was only in December 1999 that an attempt was made to take possessionof the land. Whereupon on 11.05.2001 the appellants applied to the CourtAppeal, inter alia, for a writ of mandamus directing the Minister to make a“divesting order” in terms of section 39A of the LA Act divesting the State of
K.T.D.S.N. de Silva and others v. Salinda Dissanayake, Minister of
SCLand Development (Fernando J.) 53
the land vested under the aforesaid acquisition. On a preliminary objectionraised, the Court of Appeal held that in view of section 4 of the UDP Act, ithad no jurisdiction to hear and determine the matter.
Held:
Having regard to the purpose for which the UDP Act was enacted and theprovisions of section 4(2), where no steps have been taken for a long peri-od of time, to implement a proposed project upon land in respect of whicha section 2 order has been made, an application for mandamus in respectof an omission to divest the acquired land does not fall within the scope ofsection 4 of the UDP Act, and must be filed in the Court of Appeal.
APPEAL from the judgment of the Court of AppealCases referred to:
De Silva v. Atukorale (1993) 2 Sri LR 283
Amerasinghe v. Attorney-General (1993) 1 Sri LR 376
Sanjeeva Jayawardene with Faizer Markar for appellants
A. Gnanadasan, Deputy Solicitor General for 1st, 2nd, 3rd and 6th respon-dents.
Gamini Perera with P.A. Amerasinghe for 4th and 5th respondents.
Cur.adv.vult
November, 13, 2002
FERNANDO, J.
This is an appeal against the order of the Court of Appealupholding a preliminary objection, in an application for writs ofProhibition and Mandamus, that the Court of Appeal had no juris-diction by virtue of the provisions of section 4 of the UrbanDevelopment Projects (Special Provisions) Act, No. 2 of 1980(the “UDP Act”).
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The relevant facts are not in dispute. A notice under sec-tion 2 of the Land Acquisition Act (the “LA Act”) was issued on8.10.91 in respect of an allotment of land owned by thePetitioners-Appellants (“the Petitioners”). That was followed byan order under proviso (a) to section 38, dated 25.4.92 and pub-lished in the Gazette of 4.5.92, directing that immediate posses-sion of that land be taken on the ground of urgency. ThePresident then made an order under section 3 of the UDP Act,published in the Gazette of 29.6.92, declaring that the said landwas urgently needed for the purpose of carrying out an urbandevelopment project. That order did not specify or otherwiseidentify the project. On 2.7.92 an application was made to theCourt of Appeal for a writ of Cetiorari to quash the section 38 pro-viso (a) order. A preliminary objection – that, in respect of thatmatter, the jurisdiction of the Court of Appeal, under Article 140of the Constitution, could only be exercised by the SupremeCourt – was upheld and the application was dismissed on15.8.94.
The jurisdiction of the Supreme Court was not invokedeither by way of an appeal against the Court of Appeal order orby a writ application to quash the section 38 proviso (a) orderand/or the section 2 order. According to the Petitioners, it wasonly in December 1999 that an attempt was made to take pos-session of the land.
On 11.5.2001 the Petitioners applied to the Court of Appealfor, inter alia, a writ of Mandamus directing the 1st Respondent-Respondent, the Minister of Land Development, to divest thesaid land. The Petitioners’ position was that the conditions spec-ified in section 39A of the LA Act had been satisfied in relation tothat land, and that accordingly the 1st Respondent became sub-ject to a duty to make a divesting order in respect of that land.
Section 39A of the LA Act provides:
“(1) Notwithstanding that by virtue of an Order under section 38….anyland has vested absolutely in the State and actual possession of such landhas been taken… the Minister may, subject to subsection (2), by subse-quent…“divesting Order” divest the State of the land so vested….
K.T.D.S.N. de Silva and others v. Salinda Dissanayake, Minister of
Land Development (Fernando J.)
55
(2) The Minister shall prior to making a divesting order….satisfy him-self that-
no compensation has been paid under this Act…
the said land has not been used for a public purpose afterpossession of such land has been taken…
no improvements to the said land have been effected….
the person or persons interested in the said land have con-sented in writing to take possession…immediately after thedivesting Order is published….”
The UDP Act provides as follows:
“An Act to provide for the declaration of lands urgently required for carryingout urban development projects.
Where the Presidentis of opinion that any particular land is, or lands
in any area are, urgently required for the purpose of carrying out an urbandevelopment project…. The President may, by Order published in theGazette, declare that such land is, or lands in such areas as may be spec-ified are, required for such purpose….
No person aggrieved by an Order made or purported to have been madeunder section 2…shall be entltled-
to any remedy, redress or relief in any court other than by way ofcompensation or damages;
to a permanent or interim injunction….or other order having theeffect of staying, restraining, or impeding any person or authority inrespect of-
any acquisition of any such land or any land in such area;
the carrying out of any work on any such land or in anyland in such area; .
the implementation of such project in any manner whatso-ever.
(1) The jurisdiction conferred on the Court of Appeal by Article 140 of theConstitution shall, in relation to any particular land or any land in any areain respect of which an Order under or purporting to be under section 2 ofthis Act has been made, be exercised by the Supreme Court and not by theCourt of Appeal.
(2) Every application invoking the jurisdiction referred to in subsection (1)shall be made within one month of the date of commission of the act inrespect of which or in relation to which such application is made and the
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Supreme Court shall hear and finally dispose of such application within twomonths of the filing of such application.”
Section 5 made consequential provisions in regard to caseswhich were pending when a section 2 order was made.
The Court of Appeal, after setting out the facts and the rel-evant provisions of the UDP Act, upheld the preliminary objectionas follows:
“It is an important rule in the construction of statutes that what aCourt or person is prohibited from doing directly, it may not do indi-rectly or in a circuitous manner.
The Petitioner in the present application now seeks to have thesame land, [in] regard to which the original vesting order was chal-lenged divested. Having come to this Court originally on the basisthat vesting was illegal he now seeks to invoke the jurisdiction ofthis Court on the basis that vesting was a valid vesting and theCourt seems to have complied [sic] with the divesting of the saidland.
It appears that the Petitioner is seeking to approbate and reprobatein the same matter and therefore this application is not tenable inlaw. In any event in terms of sections 4 and 5 of the [UDP Act] thisCourt has no jurisdiction to hear and determine this matter."
The finding that the Petitioners were seeking to approbateand reprobate is plainly mistaken. While it is true that in the 1992application the Petitioners’ position was that the vesting was illegal,the present application does not relate to any such claim. In 2001the Petitioners sought a divesting order, and their claim did notdepend on, or acknowledge, the validity of the original vesting. Theobligation imposed by section 39A does not depend on a valid vest-ing: indeed, the Minister’s duty to divest would be all the greater ifthe original vesting was illegal. The long title of Act, No. 8 of 1979,which introduced section 39A, shows that section 39A was intend-ed to provide relief to persons whose lands had been acquired with-out adequate justification (see de Silva v. Atukorale C), where tooan initial unsuccessful challenge to the vesting was followed by anapplication for Mandamus to divest.
K.T.D.S.N. de Silva and others v. Salinda Dissanayake, Minister of
Land Development (Fernando J.)
57
In regard to the jurisdictional issue, the Court of Appeal gave noreasons for its conclusion. Mr. Jayawardene’s contentions onbehalf of the Petitioner may be summarized as follows: that sec-tion 4(1) must be interpreted together with, and in the context of,section 4(2); that every writ application under section 4(1) had tobe made “within one month of the date of commission of the actin respect of which that application was made;, that, when readwith section 4(2), it was clear that section 4(1) was restricted toapplications in respect of the “positive commission of an acf;that although “act” might sometimes include an “omission”, in thiscontext the phrase “commission of the act” did not include anomission; that there was no method whereby the period of onemonth could be reckoned in the case of an omission, as no datecould be ascribed to such omission; that the Petitioner’s griev-ance was in respect of an omission to which no date could beascribed, namely, the failure to perform the duty to make adivesting order when the requisite conditions were satisfied; thataccordingly section 4 did not apply to an application forMandamus to compel the performance of that duty; and that theintention of Parliament was to transfer to the Supreme Court forexpeditious disposal within two months only those writ applica-tions in respect of positive acts of commission in relation to theacquisition of land urgently required or an urban developmentproject, and not the entire writ jurisdiction of the Court of Appealin respect of land acquisition matters involving lands covered byan order made under section 2 of the UDP Act. He added thateven if there was an inconsistency between the seemingly widelanguage of section 4(1) and the restrictive phraseology of sec-tion 4(2), the latter provision must prevail, as it was the laterexpression of the will of Parliament.
Although section 4 of the UDP Act appears to erode thejurisdiction vested in the Court of Appeal under Article 140 of theConstitution, that is no reason for interpreting section 4 restric-tively. While the vesting of even a part of the constitutionallyentrenched jurisdiction of one of the superior Courts in someother body or institution may be viewed with disfavour, as beingan erosion of judicial power, the position is different in the caseof a re-distribution of such jurisdiction between the superior
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Courts themselves, as im this case. Besides, the FirstAmendment introduced a proviso to Article 140:
"Provided that Parliament may by law provide that, in any such cate-gory of cases as may be specified in; such law, the jurisdiction con-ferred on the Court of Appeal by the preceding provisions of thisArticle shall be exercised by the Supreme Court and not by the Courtof Appeal.”
Section 4 of the UDP Act is, a valid exercise by Parliamentof the power conferred by that proviso, and cannot be restric-tively interpreted upon an assumption that there was an erosionof the jurisdiction of the Court of Appeal.
However, giving section 4(1) a wide literal interpretationcreates serious anomalies, andl even absurdities, in severalrespects.
The phrase “any particular land or any land in any area”contemplates two distinct situations; first, where a particular landhas already been identified as suitable for the relevant urbandevelopment project (e.g. the extention of a public market orpublic vehicle park will almost invariably require the acquisitionof a particular identified adjacent land); and second, where a pro-ject (e.g. to provide housing for public officers) requires landlocated within a large area (e.g. wiithim ani electoral division, or aGrama Sevaka division, or an AGA’s division, or a Municipalward), but further investigations of various kinds are required inorder to identify which land! is most suitable for the project.Another example of the latter would be the acquisition of landsfor an expressway (as in Amerasinghe v Attorney-General,<2))where the most suitable route for the expressway cannot beidentified without entering, examining and: surveying many landsin several areas. Such areas may well! include State land as well.
In the first situation, the ulimate result of the acquisitonprocess would be (a) the acquisiton of the particular land, or (b)the acquisition of part of that land, and the abandonment of therest, or (c) the abandonment of the entire acquisition. In the sec-ond situation, the ultimate result would be (a) the acquisition of adefined land out of the larger area, or (b) the abandonment of theentire acquisition.
K.T.D.S.N. de Silva and others v. Salinda Dissanayake, Minister of
SCLand Development (Fernando J.)
If section 4(1) is given a wide literal meaning, where anyland is acquired and the project is thereafter fully implemented,that land would nevertheless continue to be “land in respect ofwhich [a section 2 order] has been made”. Thus in the case ofland acquired for housing, disputes may arise, many years later,in regard to the allocation of houses, termination of occupation,ejectment, etc, giving rise to the need to invoke the writ jurisdic-tion. Even land which was ultimately not acquired would contin-ue to be “land in respect of which [a section 2 order] has beenmade”, and disputes may later arise (e g. by reason of the exer-cise of powers under the LA Act or other statutes) requiringrecourse to the writ jurisdiction. Was it the intention of Parliamentwhen enacting the UDP Act, that in all such cases writ applica-tions must be filed in the Supreme Court simply because at sometime in the past a section 2 order had been made in relation tothat land in an entirely different context? That would mean that asection 2 order had the effect of attaching to the land (creating,asit were, an encumbrance) an obligation to apply to the SupremeCourt. Besides, there are practical difficulties, as for instancewhere such land has passed to a new owner, who many yearslater wishes to invoke the writ jurisdiction: how can he ascertainwhether a section 2 order was ever made in respect of that land,in order to decide whether to apply to the Court of Appeal or theSupreme Court?
What is more, a literal interpretation would result in attach-ing such an “encumbrance” to land – not only a “particular land”but to all land in an entire “area” – even where the relevant sec-tion 2 order had been quashed in the exercise of the writ juris-diction.
The purpose of the UDP Act was to ensure that landsurgently required for urban development projects were obtainedwithout the delays caused by (1) the exercise of the writ jurisdic-tion, original and appellate, and (b) the exercise of the jurisdic-tion of other courts. Accordingly, section 4 abolished the appel-late jurisdiction, and transferred the original writ jurisdiction tothe Supreme Court, with time limits, thereby considerably reduc-ing delays attributable to the exercise of the writ jurisdiction; andsection 3 prevented other courts granting injunctions and making
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orders which would stay, restrain or impede the acquisition ofany land, the carrying out of work thereon, and the implementa-tion of the project. In that context, I am of the view that section4(1) must be interpreted in the light of that purpose and inten-tion. One consequence is that section 4(1) does not requirerecourse to the Supreme Court where the dispute arises after theproject has been implemented or where the dispute relates toland in respect of which the acquisition had been quashed orabandoned.
The phrase “jurisdiction….in relation to any….land….” givesrise to further questions. Land acquisition proceedings mayresult in a wide variety of disputes “in relation to” the land affect-ed by the section 2 order but which would not in any way hindereither the speedy acquisition of the land actually needed for anurban development project or the expeditious implementation ofthe project. I will refer to a few examples.
Section 4(6) of the LA Act prohibits a decision to acquireonly a part of a building if the owner desires that the whole build-ing be acquired unless such part can be severed or demolishedwithout serious detriment to the rest of the building. A landownermay accept the need for the project, and may therefore notobject to the acquisition. However where the part to be acquiredcannot be severed without serious detriment to the rest, he mayproperly insist that the entirety of his building be acquired.Although that would not be a dispute as to the part to be acquiredit would nevertheless be a dispute in relation to or connectedwith the part to be acquired. If there is an omission on the part ofthe Minister to acquire the rest as well, and the owner seeksMandamus to compel the acquisition of the rest of his building,should application be made to the Supreme Court? The grant orrefusal of such an application will not affect the speedy imple-mentation of the project. It would not be reasonable to attributeto Parliament an intention that such matters too should be trans-ferred to the Supreme Court for expeditious disposal. Likewise,disputes regarding the assessment and payment of compensa-tion for acquired land would constitute disputes in relation to theland acquired. Accordingly, Mandamus may be the remedy fordisputes arising from such omissions, e.g. the omission to refer
K.T.D.S.N. de Silva and others v. Salinda Dissanayake, Minister of
Land Development (Fernando J.)
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a disputed claim to title to the District Court as required by sec-tion 10(2), the failure to make an award under section 17, theomission to honour a written agreement (under section 36) totransfer alternative land in lieu of compensation. Since such mat-ters do not involve a date of commission section 4(1) read withsection 4(2) would not require application to the Supreme Court.Again, a landowner may seek Prohibition, on the ground of bias,against an officer holding a compensation inquiry under section9. Requiring that such applications be dealt with by the SupremeCourt does not in any way facilitate the implementation of pro-jects. Such applications do not appear to fall within the scope ofsection 4(1).
I must now turn to other situations in which writ applica-tions may be in relation to omissions and acts which, thoughanticipated or imminent, have not yet been committed. If a noticeunder section 2 of the LA Act fails to state the public purpose forwhich land is required, a person whose land is affected by suchnotice may seek Certiorari to quash it, or Prohibition to restrainacts proposed to be done thereunder. If the Minister is about todecide under section 4(5) to acquire a land, unlawfully ignoringthe owner’s legitimate claim under section 4(6), the owner mayseek Prohibition in respect of that imminent breach of his rights.In such cases recourse to the Court of Appeal would entail delay,and that would hinder the speedy implementation of the projectconcerned. I incline to the view (which I acknowledge is no morethan obitei) that in such instances, notwithstanding section 4(2),section 4 requires recourse to the Supreme Court, even thoughthere is no “positive commission of an act”; and, conversely, thatwhere there is no such urgency, section 4 does not requirerecourse to the Supreme Court even in respect of the commis-sion of an act. Legislative clarification is desirable, as otherwiselitigants may be forced out of an abundance of caution to file writapplications simultaneously in both Courts.
Having regard to the purpose for which the UDP Act wasenacted, and the provisions of section 4(2), I hold that, where nosteps have been taken, for a long period of time, to implement aproposed project upon land in respect of which a section 2 orderhas been made, an application for Mandamus in respect of an
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omission to divest the acquired land does not fall within thescope of section 4 of the UDP Act, and must be filed in the Courtof Appeal, I must add that this judgment deals only with the juris-dictional issue, and I express no opinion on the question whetherthe conditions set out in section 39A have been satisfied.
I allow the appeal, and direct the Court of Appeal to enter-tain, hear and determine the application on the merits. ThePetitioners will be entitled to a sum of Rs. 20,000 as costs in bothCourts, payable by the State.
WIGNESWARAN, J. – I agree.WEERASURIYA, J. – I agree.
Appeal allowed; Court of Appeal directed to hear application onmerits.
