030-SLLR-SLLR-2005-V-1-LUKMANJEE-AND-ANOTHER-vs.-SAYVESTER-AND-OTHERS.pdf

CA
Lukmanjee and another vs
Sylvester and others (Imam, J.)
233
LUKMANJEE AND ANOTHERVSSYLVESTER AND OTHERSCOURT OF APPEAL,IMAM, J.,
C.A 1460/2001FEBRUARY 17 ANDMARCH 05 AND 10, 2004.
234
Sri Lanka Law Repons
(2005) 1 Sri L. R.
■ Writs of mandamus/certiorari — Release of funds to pay balance compensation
Statutory duty – Land Acquisition Act. sections 17,18(2) and 29— Constitution.Articles 138 and 140 – Is writ of mandamus available against acquiring officer?
Are strict pleadings insisted upon?
The petitioners sought a writ of mandamus/ certiorari against the respondents(National Housing Development Authority) to release the necessary funds tothe acquiring officer for repayment of the balance compensation and interestdue in full to the petitioners. The respondents contended that the petitionersare not entitled to a writ of mandamus against the acquiring officer, since heis acting as a servant/ agent of the Government of Sri Lanka. Further thepleadings are bad as what is asked for is a “writ” and not a writ of mandamus.
Held:
It is now settled law that strict pleadings are not insisted on and that the. object of a pleadings is that both parties should know what the real
issues between them are.
Where Parliament has imposed a duty on particular persons acting insome capacity mandamus will not issue notwithstanding that thosepersons are servants of the Crown and acting on the Crown's behalf.This is because the legal duty is cast upon them personally and noorders given to them by the Crown will be any defence. If therefore the Actrequires the Minister to do something, mandamus will lie to compel theMinister to act.
APPLICATION for writs in the nature of mandamus and / or certiorariCases referred to :
Dayananda vs Talwatte (2000) – 2 Sri LR 72
Senanayke vs Anthonis 69 NLR 225
Munasinghe vs Devarajan 57 NLR 286
City Motor Transport vs Wijetunga 63 NLR 157
Padifield vs Minister of Agriculture, Fisheries <£ Food (1968) AC 997
R vs Secretary Ex.p Phanopakar (1976) QB 606
L. C. Seneviratne, P. C. with A. Kodikara and Anuruddha Dharmaratne forpetitioners
Anil Gooneratne. Deputy Solicitor General with A. R. Ameen. State Counselfor respondents.
CALukmanjee and another vs235
Sylvester and others (Imam, J.)
October 18, 2004
S.I. IMAM, J.
This is an application by the Petitioners seeking a Mandate in thenature of a Writ of Mandamus and Certiorari against the Respondents torelease the necessary funds to the 1 st Respondent for repayment of thebalance compensation and interest due in full to the Petitioners. The 1stPetitioner is the legal heir to' the estate of the deceased Adamjee. Lukmanjee, and the 2nd Petitioner is the Trustee ofTaiyabbhai'ChildrensTrust.
The issue in this case relates to the non payment of a certain portionof compensation awarded to the 1st and 2nd Petitioners in respect of anacquisition of land belonging to the Petitioners. The Petitioners do notcontest the validity of the acquisition, nor the award of compensation northe process duly adopted towards the determining of the said Award ofcompensation. A sum of Rs. 30,000,000/- was awarded to AdamjeeLukmanjee by way of compensation and a further sum of Rs. 3,164,000/- was awarded by way of compensation to the Taiyabbhai Childrens Trust,represented respectively by the 1 st and 2nd Petitioners to this application.The said compensation was paid in instalments as set out in X4 and X4atogether with interest, and a further sum of Rs. 2,333,109/- of the saidcompensation in accordance with the Award is claimed by the 1st and2nd Petitioners. Of this sum Rs. 4,838,366/- is claimed by the 1st Petitionertogether with interest and the 2nd Petitioner claims a sum of Rs. 394,743/-together with interest. The Petitioners further contend that compensationwas paid to them upto 14.12.1993, and that the Respondents failed andneglected to make the balance payment, since then to the Petitioners.
The Petitioner’s contention is that on the Award (X3 and X3a), thePetitioners are duly entitled to the aforesaid compensation, that theRespondents are bound by the said Award, and are obliged in law tomake the said payment on the basis of this Award. It is further pointedout by the Petitioners that the Respondents being bound by the Awardcannot for any reason detract from the obligation to pay the aforesaidcompensation, in accordance with the Award. Under section 17 of theLand Acquisition Act the Acquiring Officer is statutorily authorised tosupply failures and omissions prior to the making of the Award, and heis even authorised to reopen the inquiry, at any time prior to the making ofthe Award under section 17, by virtue of section 18 (2) of the said Act.
On perusal of section 29 of the said Act the Acquiring Officer has nopower to alter the payment of compensation after the Award is made.
236Sri Lanka Law Reports(2005) 1 Sri L. R.
Section 29 of the Land Acquisition Act states as follows. "Where anaward is made under section 17, the Acquiring officer of the district inwhich the land to which that award relates is situated, shall tender toeach person who is entitled to compensation according to that award theamount of compensation allowed to him by that award"
The Petitioners seek that in the event the 1st Respondent fails to actin conformity with the statutory duty cast on him under section 29 of theLand Acquisition Act, this Court is entitled in terms of Article 140 ofthe Constitution to issue a Mandate in the nature of a Writ of Mandamusto compel the 1st Respondent to act in accordance with the stautoryobligation. The Petitioner’s further submit that the payment of the aforesaidbalance amount of compensation was withheld by the 3rd Respondenton representations made by the 2nd Respondent, that certain portions ofland, the subject matter of the acquisition had been vested in theCommissioner of National Housing and that the Award to the Petitionersincluded compensation of such lands. The Petitioners contend that theynever claimed or received any Award for any land belonging to any otherperson, and that the Award refers to Lots 1 to 34 in Preliminary Plan No.6609 (2R5). Compensation awarded was only in respect of the land claimedby the deceased Adamjee Lukmanjee and the Taiyabbahai Childrens Trust.The deceased Adamjee Lukmanjee has since his demise been substitutedby his legal heir, namely Murtaza Adamjee Lukmanjee. The Petitionersfurther state that none of the Respondents including the Commissioner ofNational Housing nor any other person objected to nor appealed againstthe said Award, nor sought to have the Award quashed. Contrarily theRespondents acted on the basis that the Award was valid, and furthermore paid compensation to the Petitioners. The Petitioners further submitthat the 1 st Respondent by letters (X6 and X7) clearly intimated that theunilateral decision to withold the payment of compensation from thesaid Award should not be resorted to, as it could lead to legalcomplications. Thus the Petitioners seek a Writ of Mandamus directingthe 1st Respondent to make payment of the balance compensationtogether with interest, and a Writ of Certiorari directing the 2nd Respondentto quash any decision not to make payment of the balance compensation.The Respondents initially took up the position that the relief prayed for inthe Petition does not specify the Writs sought for as stipulated by Article140 of Constitution. Dayananda vs Talwatte was referred to by theRespondents who futher contended that a relief prayed for in the
CALukmanjee and another vs237
Sylvester and others (Imam, J.)
prayer to the Petition should specify one of the four Writs, as set out inArticle 140 of the Constitution. However what was decided in this casewas that an application for revision in terms of Article 138 of the Constitutioncannot be combined with an application for Writs of Certiorari, Prohibition,Quo Warranto and Mandamus under Article 140 since the relief bywayof Revision and Prerogative Writs are two distinct remedies that, cannotbe combined in one application. Paragraph 17 of the Petition refers to theWrit of Certiorari and/or Mandamus against the Respondents, and prayerC of the Petition refers to a direction to the 1st Respondent by way ofWrit to comply with full payment of the award of compensation and theinterest due to the Petitioners although the word “Mandamus" hSs notbeen referred to. However it is now settled law that strict pleadings are notinsisted on, and that the object of the pleadings is.that both parties should
know what the real issues between them are. This is illustrated in
(2)
Senanayake vs Anthonis. It is therefore clear that on a perusal of theaverments contained in the Petition, and the relief prayed for, thePetitioners are seeking a Writ of Mandamus for the payment of the balancemoney due to them on the aforesaid Award.
The Respondents further took up the position that the Petitioners arenot entitled to a Writ of Mandamus for the payment of compensation interms of the Land Acquisition Act against the 1st Respondent since heis acting as a servant/agent of the Government of Sri Lanka. To strengthentheir position the Respondents cited (1) Munasinha vs Devarajait CityMotor Transit Co. vs Wijesinghe(4)
The rule is based on the'equivalent rule in England that a Writ ofMandamus will not issue against the Crown or on a servant acting onbehalf of the Crown. However the law relaing to administrative law hasnow developed to a large extent and in Wade, Administrative Law, 8thEdition at page 617 states as follows. “On the other hand, where Parliamenthas imposed a duty on particular persons acting in some particularcapacity, Mandamus will issue notwithstanding that those persons areservants of the Crown and acting on the Crown’s behalf. This is becausethe legal duty is cast upon them personally and no orders given to themby the Crown will be any defence. If therefore the Act requires the Ministerto do something, Mandamus will lie to compel the Minister to act.”
This principle was followed in Padfield vs Minister of Agriculture,Fisheries and Food,151 and R vs Secretary ex p. Pihansopakar IB> At
238Sri Lanka Lav,' Reports(2005) 1 Sri L. R.
page 616 it is stated that “Today Mandamus has largely lost the characterof a residual remedy and as noted earlier, it has been the regular remedyfor enforcing the statutory duties of public authorities, and its procedure isno longer cumbersome and expensive. Accordingly the courts have grownaccustomed to awarding it more freely, even when some other remedyexists.”
The Respondents further contend that the Award made in favour of thePetitioners include compensation that should be paid to the Commissionerof National Housing as a portion of the land acquired was vested in theaforesaid Commissioner. However this position was never taken up bythe Respondent prior to the Award being made. The Respondents cannotsay that they are unaware of these facts as the notice issued undersection 7 of the Land Acquisition Act by the Assistant Government Agent,Colombo district marked X8(b) clearly sets out several allotments of landto be acquired, of which Lots 6, 7, 29, 32 and a part of Lot 40 are stated tobe claimed by Adamjee Lukmanjee and Lots 35, 36, 41, 42 and thebalance portion of Lot 40 was stated to be claimed by the TaiyabbhaiChildren Trust. From a persusal of the relevant Documents these areallotments of land the Petitioners claim in respect of which the Awardwas made.
Although Lots 1-5, 8-28, 30, 31 and 33 was stated to be claimed bythe Commissioner of National Housing, it is manifestly clear whatallotments were claimed by the Petitioners. There was no dispute as tothe Award made to the Petitioners, which clearly shows that the saidcompensation was awarded to the Petitioners in respect of the portionsof land claimed by them which exceeds 6 1/2 Acres in extent out of 8 1/2 Acres of the entirety of the land.
For the aforesaid reasons I allow the application of the Petitioners andorder that that this court issues a Writ of Mandamus on the 1 st and / or2nd and /.or 3rd Respondents directing that the balance compensationdue on the Award together with interest be paid to the 1st and 2ndPetitioners. I further issue a Writ of Certiorari against the 2nd Respondentto quash and cancel orders made by the 2nd Respondent to stop paymentunder the Award if any. No costs.
Application allowed.