MAHINDA KATUGAHA v. MINISTER OF LANDS AND LAND DEVELOPMENT AND OTHERS

028-SLLR-SLLR-2008-V-1-MAHINDA-KATUGAHA-v.-MINISTER-OF-LANDS-AND-LAND-DEVELOPMENT-AND-OTHERS.pdf


SQMahinda Katugaha v Minister of Lands and285
Land Development and Others
MAHINDA KATUGAHAv
MINISTER OF LANDS AND LAND DEVELOPMENT ANDOTHERSSUPREME COURTS.N. SILVA, C.J.
AMARATUNGA, J. ANDSOMAWANSA, J.
S.C. APPEAL NO. 68/2007S.C. (SPL.) L.A. No. 11/2007C.A. (WRIT) APPLICATION 522/2002NOVEMBER 11,2007.
Land Acquisition Act – Sections as amended – 2, 4, 5, 38, 39A, 44, 49, 50 ~Acquisition proceedings – Non utilization of the land for public purpose for morethan 10 years – Is it liable to be quashed by a Writ of Certiorari?
The Appellant filed an application in the Court of Appeal seeking inter-alia -orders in the nature of Writ of Certiorari to quash the entire acquisitionproceedings commencing from the notice in terms of Section 2 of the LandAcquisition Act and in the alternative for an order in the nature of mandamus tocompel the 1 st respondent in terms of Section 39A of the Land Acquisition Act todivest the land which originally belonged to the appellant and was later vestedin the State and restore the said land to the possession of the appellant.
The Court of Appeal by its judgment dismissed the application on the followinggrounds:
Undue delay on the part of the petitioner.
On the principle that the Minister’s decision that a land is required for apublic purpose cannot be questioned in a Court.
As the land had been handed over to the UDA under Section 44 of theLand Acquisition Act which had drawn plans and the land was developed,the petitioner cannot claim that the land acquired was not for a publicpurpose.
Held:
The Minister's decision to acquire a land can be challenged in a Court ofLaw.
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A Minister does not have the unfettered right to acquire land withoutspecifying a public purpose. Nor does a Minister have a right to acquireland and utilize it for purposes other than a public purpose.
The notice given under section 2 of the Land Acquisition Act in respect ofthe appellant's land ex-facie reveals that no public purpose has beenspecified and the failure to specify a public purpose is fatal to theacquisition proceedings and the subsequent vesting of the land in theUrban Development Authority does not cure the defect in the notice givenunder Section 2 of the Land Acquisition Act.
The subsequent vesting of the land in the Urban Development Authorityby the State under Section 44 of the Land Acquisition act is wrongful andbad in law and as such the Urban Development Authority does notbecome entitled to any rights in respect of the land so vested.
The appellant realized that the land acquired from him was not used fora public purpose only in 2002 when the 4th respondent put up its nameboard on the said land. Accordingly, the appellant adequately explainedhis delay in instituting the application in the Court of Appeal.
per Andrew Somawansa, J. –
"It is patently clear that the land was not acquired under the LandAcquisition Act for the 5th respondent but was vested in the 5th respondentin order to enable the 5th respondent to lease it to the 4th respondent, aprivate entity."
per Andrew Somawansa, J. –
"No improvements have taken place on the land and the filling up of the landby the 4th respondent for a purpose other than a public purpose cannot bedescribed as improvements for the purpose of section 39A(2)(C)".
Cases referred to:
Hewawasam Gamage v Minister of Agriculture and Lands 78 NLR 25.
Gunasinghe v Dissanayake and Others 1994 2 Sri LR 132.
Gunasekera v Minister of Lands and Agriculture 65 NLR 119.
Fernandopulle v Minister of Lands and Agriculture 79(2) NLR 116.
Manet Fernando and Another v D.M. Jayaratne, Minister of Agricultureand Lands and others 2000 1 Sri LR 112.
De Silva v Atukorale, Minister of Lands, Irrigation and MahaweliDevelopment and Another 1993 1 Sri LR 282.
APPEAL from the judgment of the Court of Appeal.
Romesh de Silva, P.C. with Lilanthi de Silva for the appellant.
Mrs. M.N.B. Fernando, D.S.G. for the 1st respondent.
Nihal Jayamanne, P.C. with Uditha Collure for the 4th respondent.
ShiblyAziz, P.C. with A.P. Niles for the 5th respondents
Cur.adv.vult.
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July 23, 2008
ANDREW SOMAWANSA, J.The petitioner-petitioner-appellant hereinafter called the appellantwas granted special leave to appeal from the judgment of the Courtof Appeal dated 27.11.2006 on the questions of law as stated inparagraph 8 of the petition which reads as follows:
(8)(a)(i) Are acquisition proceedings under the Land AcquisitionAct incapable in law to be initiated or proceeded with,without the public purpose being specified in the noticeunder section 2 of the Land Acquisition Act?
(ii) If so, did the Court of Appeal make a serious error of lawin failing to issue the writ of certiorari prayed for by thepetitioner?
(i) Is an order under proviso (a) to section 38 of the Land
Acquisition Act made in 1990 in respect of land which isthereafter not utilized for any public purpose for morethan 10 years liable to be quashed by a writ of certiorari?
Was the petitioner’s land not utilized for any publicpurpose"
If so, did the Court of Appeal make a serious error in lawin failing to issue the writ of certiorari prayed for by thepetitioner?
(i) Is the allocation of the land acquired from the petitioner
to the 4th respondent not a public purpose?
Did the petitioner realize that the land acquired from thepetitioner was not used for a public purpose only in 2002when the 4th respondent put up its name board on thesaid land?
In the circumstances did the petitioner adequatelyexplain his delay in instituting the application in the Courtof Appeal?
If so, did the Court of Appeal err in law in concluding thatthe delay of the petitioner is ground for refusing thepetitioner’s application?
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Did the Court of Appeal err in law in concluding that theMinister's decision to acquire a land can never bechallenged in a Court of Law?
(i) Was the land acquired from the petitioner not used for a
public purpose and/or the public purpose for which itwas acquired?
(ii) If so, did the Court of Appeal err in law in failing to issuea writ of mandamus prayed for by the petitioner?
Did the Court of Appeal err in law in failing to concludethat the land of the petitioner could not have beenacquired without a decision by the 1st respondent underSection 4 of the Land Acquisition Act?
Did the Court of Appeal err in law in failing to concludethat there was no urgent public purpose in relation to theacquisition of the petitioner’s lands?
Did the Court of Appeal err in law in failing to concludethat the acquisition of the petitioners lands was ultravires the powers of the 1st respondent?
Did the Court of Appeal err in law in failing to concludethat the purported vesting of the petitioners land in the5th respondent was ultra vires?
Did the Court of Appeal err in law in failing to grant therelief prayed for by the petitioner?
The relevant facts are that by Deeds Nos. 4411 and 263 theappellant became the owner of certain lands in extent about 0.597hectares in Kandy. A notice dated 21.09.1989 under the LandAcquisition Act was published for the acquisition of the land claimedby the appellant and of several other lands in the vicinity statingthat the said lands are needed for a public purpose but did not setout the nature of the public purpose, subsequently identified anddescribed in the vesting order made under proviso (a) to section 38of the Land Acquisition Act. A letter addressed to the appellant bythe 3rd respondent stated that the acquisition was for developmentof necessary public utilities in the vicinity of the new GetambeKandy Road and the appellant was directed to vacate, hand overvacant possession of the land was duly handed over by the
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appellant acting through his agent as the appellant was out of thecountry.
The appellant contends that the provisions of Section 5 of theLand Acquisition Act has not been complied with and no Section 5notice has been published. However, it is to be seen that the Section5 notice has been published on 01.03.91. The appellant furthercontends that he being out of the country since 1981 for employmentwas represented at the inquiry before the 3rd respondent the DistrictSecretary by his Attorney and the appellant's Attorney being unawareof the illegality of the acquisition and the true market value of the landat the date of acquisition had claimed compensation for the landacquired at Rs. 25,000/- per perch and the 3rd respondent has notaccepted the said claim and that the appellant has so far not beenpaid any compensation under the Land Acquisition Act in respect ofthe aforesaid land.
The appellant's main contention is that the land belonging to himand which was acquired has not been used for any public purposealthough possession of the same was taken by the 3rd respondent inDecember 1990 on the ground of urgency. That in or about January2002 he discovered that the 4th respondent has been placed inpossession of about 3 acres in extent including the said portion of theland which belongs to the appellant and that the 4th respondent wasplaced in possession by the Urban Development Authority the 5threspondent and that the 4th respondent was taking steps to constructa private hospital and resort thereon. The appellant contends thathaving taken possession of the property as far back as 1990 on thegrounds of an alleged urgent public purpose and having notdeveloped the property and having failed to specify the publicpurpose for which the said lands were purported to be acquired athird party was filling portions thereof which had been handed over tothe 4th respondent for its private purpose.
The appellant by his letter dated 22.01.2002 brought the aforesaidmatters to the notice of the 1st respondent and requested him todivest the land in terms of section 39A of the Land Acquisition Actwhich was copied to 2nd and 3rd respondents to which there was noresponse. He further contended that although the land has beenpurportedly vested in the 5th respondent in terms of Section 44 of theLand Acquisition Act no document specifying that the said land was
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required for the purpose of the 5th respondent at the time the Section02 notice was published or section 38 proviso (2) order was madehas been produced.
In the circumstances, the appellant filed an application in theCourt of Appeal in March 2002 seeking inter-alia – orders in thenature of writ of certiorari quashing the entire acquisition proceedingscommencing from the notice in terms of Section 2 of the LandAcquisition Act and in the alternative for an order in the nature ofmandamus to compel the 1st respondent in terms of Section 39Aofthe Land Acquisition Act to divest the land which belonged to theappellant and was vested in the State and restore the said land to thepossession of the appellant.
The Court of Appeal by its judgment dated 27.11.2006 dismissedthe application of the appellant on the following grounds:
Undue delay on the part of the petitioner.
On the principle that the Minister's decision that a land isrequired for a public purpose cannot be questioned in a Court.
As the land had been handed over to the UDA under Section44 of the Land Acquisition Act which had drawn plans and theland was developed the petitioner cannot claim that the landacquired was not for a public purpose.
At the hearing of this application parties agreed that thisapplication be restricted to lots 3 to 8 in the order under Section 7 ofthe Land Acquisition Act published in Gazette Extraordinary No.784/6 dated 14.09.1993 marked 'H1 and lots 01 to 11 in the orderunder Section 7 of the Land Acquisition Act published in GazetteExtraordinary No. 699/16 dated 20.01.1992 marked T.
It is contended by Counsel for the 4th respondent that thequestion whether any land should or should not be acquired is oneof policy to be determined by the Minister and therefore it cannot bechallenged in a Court of Law. In fact this was the view taken by theCourt of Appeal following the decision in Hewawasam Gamage vMinister of Agriculture and Lands<1). Counsel for the 4th respondentalso cited Gunasinghe v Dissanayake and othersf2^ Gunasekera vMinister of Lands and Agriculture(3 Fernandopulle v Minister ofLands and Agriculture<4) for the proposition that the Court cannot
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interfere in the policy decision of the Minister unless it is illegal.Counsel for the respondent also contends that Section 5 notice hasbeen published which in turn is a written declaration by the Ministerthat the land to be acquired is for a public purpose. In thecircumstances, the fact that the subject matter of this appeal, thelands claimed by the appellant are required for a public purpose isconclusively evidenced as being required or needed for a publicpurpose. However, it is common ground that the section 2 notice didnot specify or set out the nature of the public purpose for which theland was being acquired. Though counsel for the respondentcontends that the provisions of the Land Acquisition Act does notrequire to specify the public purpose in the relevant notices and thatSection 5 notice makes it conclusive evidence that the land isneeded for a public purpose, I am unable to agree with the aforesaidcontention in view of the decision in Manel Fernando and Another vD.M. Jayaratne, Minister of Agriculture and Lands and others<5>wherein the Supreme Court came to the conclusion that a Section 2notice must state the public purpose – although exceptions mayperhaps be implied in regard to purpose involving national securityand the like. At 125 per Fernando J.
"The first question is whether the public purpose should bedisclosed in the Section 2 and Section 4 notices.
The Minister cannot order the issue of a section 2 notice unlesshe has a public purpose in mind. Is there any valid reason whyhe should withhold this from the owners who may be affected?
Section 2(2) required the notice to state that one or more actsmay be done "in order to investigate the suitability of that landfor that public purpose"; obviously "that" public purpose cannotbe an undisclosed one. This implies that the purpose must bedisclosed. From a practical point of view, if an officer actingunder section 2(3)(f) does not know the public purpose, hecannot fulfill his duty of ascertaining whether any particular landis suitable for that purpose.
Likewise, the object of section 4(3) is to enable the owner tosubmit his objections: which would legitimately include anobjection that his land is not suitable for the public purposewhich the state has in mind, or that there are other and more
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suitable lands. That object would be defeated, and there wouldbe no meaningful inquiry into objections, unless the publicpurpose is disclosed. If the purpose has to be disclosed at thatstage, there is no valid reason why it should not be revealed atthe section 2 stage.
In my view, the scheme of the Act requires a disclosure of thepublic purpose, and its objects cannot be fully achievedwithout such disclosure. A section 2 notice must state thepublic purpose – although exceptions may perhaps be impliedin regard to purposes involving national security and thelike."
In the circumstances, it appears that the failure to specify the publicpurpose in Section 02 notice in respect of the appellant's lands is fatalto the acquisition proceedings. I am also unable to agree with thecontention that the Minister’s decision to acquire a land can never bechallenged in a Court of Law. A Minister does not have the unfetteredright to acquire land without specifying a public purpose. Nor does aMinister have a right to acquire land and utilize it for purposes otherthan a public purpose. The appellant's land was taken possession ofallegedly on the ground of urgent public purpose as far back as 1990.The whole of it was unutilized until the year 2000 and in 2000 the landwas vested in the 5th respondent the Urban Development Authority.The 5th respondent in the year 2001 wrongly granted part of the landto the 4th respondent a private entity for a private purpose and a partof the appellant's land remains unutilized to date. This perse indicatesthat there was no public purpose urgent or otherwise at the time theSection 2 notice was made and indeed at the time the purported orderunder the proviso (a) to section 38 was gazetted.
It is contended by counsel for the 4th respondent that after theacquisition, the land was vested by State in terms of Section 44 ofthe Land Acquisition Act in the Urban Development Authority. In thecircumstances the public purpose for which this land was acquiredwas fulfilled by the State by vesting of the land in the UrbanDevelopment Authority under Section 44 of the Land Acquisition Actand therefore the appellant cannot and could not have made anapplication to the Court of Appeal to divest the land as against the 1strespondent Minister as the State had already vested the land in theUrban Development Authority and the 1st respondent cannot divest
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the land or portion of it as it is no longer vested in the State but in theUrban Development Authority. In the circumstances, the reliefsprayed for seeking a writ of certiorari to quash the acquisition or anorder in the nature of a writ of mandamus as against the 1strespondent to divest the land to the appellant cannot be granted.Respondent's counsel further contends that in any event though theUrban Development Authority was added as the 5th respondent stillno specific relief or orders are sought against the UrbanDevelopment Authority in whom the land is now vested and wasvested at the time the application was filed in the Court of Appeal andthe State or that 1st respondent cannot be called upon to divest theproperty as the State has no right to the land anymore. Thus theaction of the appellant is baseless and misconceived.
Counsel for the respondent also brings to the attention of Courtthe 1st paragraph of the letter written by the appellant to the 1strespondent marked 'k' wherein the appellant admits that the landincluding the lots claimed by him were acquired for the state publicpurpose of constructing the Getambe-Kandy road and developmentof amenities adjacent to the Getambe-Kandy road. Counsel for therespondent contends that thus the appellant has admitted that theland was acquired for a public purpose and that the State vested it inthe Urban Development Authority under Section 44 of the LandAcquisition Act to carry out the public purpose. Here again,
I am unable to agree with the aforesaid submission of therespondent.
It is to be seen that according to the respondents the appellant'sland has been acquired and vested in the Urban DevelopmentAuthority under Section 44(1) of the Land Acquisition Act which is aspecial procedure that is available to acquire land required for thepurpose of any local authority or any other person or body ofpersons. The relevant section provides as follows:
"Where any land which is required for the purpose of any focalauthority or of any other person or body of persons is, inpursuance of this Act or any other written law, acquired underthis Act for such purposes, the acquiring officer of the district inwhich that land is situated shall, after possession of that landhas been taken for and on behalf of the State, by a certificateissued under his hand, vest that land in such focal authority or
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such person or body of persons, as the case may be, subject tosuch conditions or restrictions as may be specified in thecertificateu.
Thus section 44(1) specifically requires that lands vested in termsof this Section is to be acquired for a purpose of the body in whom itis vested. The appellant’s land has been vested in the UrbanDevelopment Authority, the 5th respondent. However, there isabsolutely no evidence whatsoever not even an averment that it wasacquired for the purpose of the 5th respondent. On the contrary, theland taken possession of for an urgent public purpose in the year1990 has been purportedly vested in the Urban DevelopmentAuthority only on 28.08.2000. It is patently clear that the land was notacquired under the Land Acquisition Act for the 5th respondent butwas vested in the 5th respondent in order to enable the 5threspondent to lease it to the 4th respondent a private entity.
In any event, the land has been purportedly vested in the 5threspondent subject to the following conditions:
the land to be used exclusively for development of publicutilities adjacent to the Getambe-Kandy road.
the land or any part thereof not required for the 5th respondentshould be handed back to the State.
Here again it is common ground that a part of the appellant's landhas been handed over to the 4th respondent and that the 4threspondent is a private company and no hospital has beenconstructed on this land even by the year 2007. Thus it cannot becontended that a private profit making venture which has not utilizedthat land for over 07 years for the alleged purpose for which it wasgiven to them can be construed as development of public utilities. Inany event, as stated above the scheme of the Act requires adisclosure of the public purpose and its objects cannot be fullyachieved without such disclosure. A Section 2 notice must state thepublic purpose although exceptions may be implied if the purposeinvolves national security and the like. The section 2 notice in respectof the appellant’s land ex-facie reveals that no public purpose hasbeen specified and the failure to specify a public purpose is fatal tothe acquisition proceedings and the subsequent vesting of the landin the Urban Development Authority does not cure the defect in the
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Section 2 notice. Thus the subsequent vesting of the land in theUrban Development Authority by the State under Section 44 of theLand Acquisition Act is wrongful and bad in law and as such theUrban Development Authority does not become entitled to any rightsin respect of the land so vested.
It is also contended by counsel for the respondents that theappellant cannot have and maintain this application and or is entitledto any relief prayed for in the petition inasmuch as the appellant hasbeen guilty of delay and or laches as the appellant has failed to takeappropriate action against an acquisition effected in. 1990. For eventhough he was said to be out of the country in 1990, it is admitted thathis affairs in the country specially with regard to the subject matter ofthis action had been looked after by his attorney. Thus the appellanthas failed to explain the delays and in any event the appellant'sexplanation of delay is not acceptable. The appellant contends thathis land was taken possession of in 1990 allegedly on the ground ofurgency. The whole of it was unutilized until the year 2000. In theyear 2000 the land was wrongfully vested in the Urban DevelopmentAuthority the 5th respondent and in the year 2001 the 5th respondentwrongfully granted a part of the land to a private entity the 4threspondent for a private purpose. Thus he became aware of it onlywhen the 4th respondent put up a notice on the land in the year 2002and the appellant filed the instant application in the Court of Appealon 14th March 2002. Thus he contends that there was no delay onhis part as he could not have been aware of the ultra virestransaction until 2002. I am inclined to accept the explanation givenby the appellant as being reasonable, sufficient and acceptable, forthe appellant could not have been aware of the purported lease tothe 4th respondent by the 5th respondent until the 4th respondent putup the notice marked X. In this respect, the Court of Appeal observedon page 4 of its judgment,
"The procedure laid down in the Land Acquisition Act wasproperly followed and there is no illegality in the acquisitionprocess. The petitioner could only challenge the order ofacquisition on the ground that there is no urgency. Thepetitioner cannot challenge the said order of acquisition on theground that there is no urgency after lapse of 12 years and afterparticipating in the compensation inquiry".
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Though Counsel cited several decisions wherein it was held thatdelay vitiates a remedy by way of writ if there is no illegality, l amunable to agree with the aforesaid reasoning for acquisitionproceedings commenced with a Section 2 notice which did not setout the nature of the public purpose for which the said notice waspublished. Thereafter by a notice purportedly in terms of proviso (a)to section 38 the 1st respondent directed the immediate possessionof the said lands be taken for and on behalf of the State on theground of a purported urgency. It is to be seen that none of thenotices published in pursuance of acquisition of the land of theappellant specify the nature of the public purpose for which the landis being acquired. Without such disclosure can an owner submit hisobjection which would legitimately include an objection that his landis not suitable for the public purpose which the State has in mind orthat there are other and more suitable lands available in the vicinity.The only intimation the appellant has as to the nature of the publicpurpose for which the land was acquired was by the caption to theletter addressed to him by the 3rd respondent requesting to handover vacant possession of his land which reads as follows:"Acquisition of land for development of necessary public utilities inthe vicinity of the new Getambe-Kandy road." Accordingly thepetitioner handed over his land through his agent. Thus thepetitioner's land was taken possession of allegedly on the ground ofan urgent public purpose as far back as 1990. A portion of the landso acquired for an alleged urgent public purpose has been handedover to a private company in the year 2001 more than 10 years afterthe order under proviso (a) to Section 38 of the Land Acquisition Act.
Thus the appellant could not have been aware that the 5threspondent had leased out a portion of the appellant's land to the 4threspondent until the 4th respondent put up the notice on the land in2002 and the appellant has come to Court on 14.03.2002. In thecircumstances, the Court of Appeal has erred in law in refusing togrant relief to the appellant on the basis of delay.
Respondent contends that part of the appellant's land and thelands of several others had been used for the Getambe-Kandy road.However, it is apparent as contended by counsel for the appellantthat no part of the appellant's land has been used for the constructionof the Getambe-Kandy road nor has any part of the appellant’s land
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been used for development of any public utility. Counsel for the 5threspondent contends that the appellant's land and surrounding landswere vested with the 5th respondent in terms of Section 44 of theLand Acquisition Act and that it has endeavoured to allocate the saidlands for large scale development with the intention of inducinginvestors from the private sector to participate in the planneddevelopment of the city of Kandy. However, it is to be seen as iscontended by counsel for the appellant that while some landsacquired for a public purpose were in fact made use of for a pubicpurpose of constructing Getambe-Kandy road, such lands aresituated on the western bank of the Meda Ela and the lands claimedby the appellant are lands situated in the eastern bank of Meda Elawhich were not used for a public purpose and remained unutilizeduntil the said lands were allocated to the 4th respondent to constructa private hospital, the first large scale private hospital in the whole ofthe Central Province as claimed by the 5th respondent. Therespondent also claims that the said Aloka Hospital project is a largescale project that will infuse capital of Rs. 60 million and createemployment opportunities for a number of persons, whilst providingmodern medical facilities for people in the whole of the CentralProvince.
The 4th respondent further claimed that the private hospital theywere going to construct was unique in that it was a two-tier hospitalin that it reserves part of the wards to give free treatment to thepublic. The non-paying facility for the public includes free OPDservice and a ward with 15 beds free of charge for non-payingpatients. Undoubtedly, the balance facility would be for private profitmaking venture which would be the hidden agenda. This certainly isnot a purpose for which the provisions of the Land Acquisition Actcould be made use of.
Counsel for the appellant points out that the conveyance of thelands to the 5th respondent was made subject to the condition thatthe land be used only for the purpose of developing the requisitepublic utilities adjacent to the Getambe-Kandy new road and that ifany portion of the land was not required for the 5th respondent itshould be handed back to the State. He also submits that the 5threspondent handed over some lands to the Diabetic Association ofSri Lanka which had returned the said lands. In any event, the new
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Getambe-Kandy road does not run through any portion of theappellant's land and no portion of the appellant's land has been usedto provide public utilities or any other development activity.
The lease of the said land was granted to the 4th respondent inthe year 2001 for an initial period of 50 years. The 4th respondenthas filled up a portion of the appellant's land and there is no otherdevelopment. In any event, it is common ground that no hospital ofwhatsoever nature has been constructed on the appellant's landeven by 2007 and one cannot claim that a private profit makingventure which has not utilised the land for 7 years for the allegedpurpose for which it was given to them can be construed as adevelopment of public utilities. It is interesting to note that the leaseof the land was granted to the 4th respondent in the year 2001 foran initial period of 50 years. The extent of the land to be utilized forthe said project is approximately 2.5 acres. The 4th respondent hasfilled up a portion of the appellant's land only and there is no otherdevelopment. The 4th respondent is getting very valuable landvalued at Rs. 30 million when the 4th respondent has according tothe indenture of lease only to pay rental at Rs. 600,000.00 a yearfrom 2001 to 2005 and thereafter Rs. 1,200,000 for the next 20years and Rs. 600,000.00 in 2028. Thus it could be seen the 5threspondent Urban Development Authority as well as the 4threspondent has been unjustly enriched at the expense of theappellant. It is my considered view that before the 5th respondentleased the appellant's lands to the 4th respondent for a purportedprivate hospital and resort project which is a profit making ventureof a commercial nature the 5th respondent should have offered theappellant's land to the appellant himself to develop the land for thepublic purpose, for development of public utilities. In fact theappellant had submitted an affidavit with his counter objections inthe Court of Appeal wherein he and several persons who claimedto be owners of the land acquired and leased to the 4th respondenthad stated that they can develop the land for a public purpose andthat they have the money to do so. Though counsel for the 4threspondent contends that this proposal is unacceptable on the faceof it as no mention is made of what the project is or how thefinancing is to be had, it appears to me that it would have been justand fair if the appellant was given the opportunity to place beforethe 5th respondent the proposal for development of public utility
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before leasing out the appellant's land to a profit making privateventure of a commercial nature.
Counsel for the 4th respondent contends that conditionsprecedent contained in Section 39A(2) before a divesting order canbe made are as follows:
no compensation had been paid.
the land has not been used for a public purpose.
no improvements have been made.
the person interested in the land has consented to takepossession of the land.
Counsel for the respondent submits that it is clear from the factssubmitted to Court that elements (b)and (c) are not fulfilled.
as the land has been subsequently vested in the UrbanDevelopment Authority for the purpose of providing necessaryfacilities and amenities along side the main road.
a part of the land has been used as a reservation for a streamor waterway.
the remaining portion of the land is being used for a privatehospital which is a public need in Kandy and based on a policyof the UDA the said hospital will have a free OPD service anda ward of 15 beds free which will benefit the public.
appellant himself has admitted that improvements have beenmade.
the appellant's land is only a part of the land acquired andtherefore cannot claim that his land was not used for a publicpurpose since the question is whether the entire landsacquired was used for a public purpose.
I am unable to agree with the aforesaid contention of counsel forthe respondent.
As stated above, the appellant's land was taken possession of inthe year 1990 on the ground of an alleged urgent public purpose thewhole of it was unutilized until the year 2000 and then in the year2000 the land was vested on the 5th respondent though there is noevidence produced that it was acquired for the purpose of the 5threspondent. The 5th respondent in 2001 wrongly granted a part ofthe land to a private entity the 4th respondent for a profit makingventure of a commercial nature. A part of the appellant's land
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remains unutilised even as at today. In the circumstances, no part ofthe appellant's land has been used for a public purpose. Noimprovements have taken place on the land and the filling up of theland by the 4th respondent for a purpose other than a public purposecannot be described as improvements for the purpose of Section39(A)(2)(c). However, the Court of Appeal too has come to theconclusion that conditions set out in Section 49(A)(2)(b) and (c) havenot been fulfilled.
In the case of De Silva v Atukorale, Minister of Lands, Irrigationand Mahaweli Development and Another the question of when canthe Minister divest an acquired land was discussed at length withreference to Section 39(1 )(A) and (2) of the Land Acquisition Act asamended by Act No. 8 of 1979. In that case Court came to theconclusion that:
The purpose of the Land Acquisition Act was to enable theState to take private land, in the exercise of its right of eminentdomain, to be used for a public purpose, for the common good;not to enable the State or State functionaries to take overprivate land for personal benefit or private revenge. Where theelement of public benefit faded away at some stage of theacquisition proceedings, the policy of the Act was that theproceedings should terminate and the title of the former ownerrestored; section 39 and section 50.
(a) Where the public purpose was so urgent as to require
immediate possession, necessitating a section 38 proviso (a)order, the land could not be restored if the public purpose wasfound to have evaporated after possession was taken. Animproper acquisition could not be put right by executive action.So it was the amending Act No. 8 of 1979 was enacted toenable relief to be granted even where possession was taken.The Act contemplates a continuing state of things and does notrefer only to the time of initial acquisition. It is sufficient if thelack of justification appears at any subsequent point of time.
(b)The Minister shall make a divesting order after satisfyinghimself of four conditions:
no compensation has been paid:
the land has not been used for a public purpose after
SQMahinda Katugaha v Minister of Lands and3Q1
Land Development and Others (Andrew Somawansa, J.)
possession was taken under Section 40(a) of the LandAcquisition Act.
no improvements have been effected after the Order ofpossession under section 40(a);
the person or persons interested in the land haveconsented in writing to take possession of the land after thedivesting order is published in the Gazette.
(c) The purpose and the policy of the amendment (Act No. 8 of1979) is to enable the justification for the original acquisition,as well as for the continued retention of acquired lands, to bereviewed. If the four conditions are satisfied the Minister isempowered to divest. Even in such a case it would belegitimate for the Minister to decline to divest if there is goodreason – for instance that there is now a new public purposefor which the land is required.
The executive discretion vested in the Minister is notunfettered or absolute. He must in the exercise of hisdiscretion do not what he likes but what he ought.
The true intent and meaning of the amending Act was toempower the Minister to restore to the original owner land forthe acquisition (or retention) of which there was originally (orsubsequently) no adequate justification, upon the fulfillmentof the stipulated conditions. It is a power conferred solely tobe used for the public good, and not for his personal benefit;it is held in trust for the public; to be exercised reasonably andin good faith, and upon lawful and relevant grounds of publicinterest.
At 292 per Fernando, J.
"So it was the amending Act was enacted in 1979 to enablerelief to be granted even where possession had taken place.The long title of the Act refers to land acquired "withoutadequate justification". The learned Deputy Solicitor-Generalcontended that this referred only to the point of time at which theland was initially acquired. I cannot agree. The Actcontemplates a continuing state of things; it is sufficient if thelack of justification appears at any subsequent point of time; thisis clear from paragraph (b) of section 39A(2): if the land has not
302Sri Lanka Law Reports[2008] 1 Sri L.R
been used for a public purpose after possession has beentaken, there is then an insufficiency of justification; and thegreater the lapse of time, the less the justification for theacquisition".
Considering the material placed before this Court, I would holdthat the Court of Appeal erred in law in refusing to issue a writ ofmandamus on the basis that conditions set out in Section 39A(2)(b)and (c) have not been fulfilled.
In passing I might also refer to a false and material mis-representation of facts by the 4th respondent contained in paragraph3 of page 10 of the written submissions tendered by the 4threspondent dated 28.12.2007 which reads as follows:
"It is respectfully submitted that the 4th respondent company isnow owned by the Asiri Hospitals which has done yeomenservice to the people of this country".
The appellant by motion dated 12.01.2008 has tendered a letterissued by the Asiri Hospitals PLC under the hand of Dr. ManjulaKarunaratne the Director/Chief Operating Officer of Asiri HospitalsPLC stating that neither Asiri Hospitals PLC nor any of the AsiriGroup of Companies have purchased nor have any interest in AlokaHospitals Resorts Kandy (Pvt) Ltd.
It is apparent the aforesaid false and material misrepresentationof facts made by the 4th respondent is to overcome the allegationsleveled against the 4th respondent by the appellant inter alia that it isa fraudulent company, that it has no assets to invest such a largesum of money, that it has no money to pay its contractors, thatcontractors have initiated two cases against the 4th respondent torecover a sum of 16 million etc. Though the 4th respondentvehemently denied these allegations it appears that in view of theaforesaid false statement of fact the credibility and integrity of the 4threspondent company is questionable and so is the motive andpurpose of the 4th respondent company in obtaining the lease of theland.
For the foregoing reasons, I would answer the question of lawNos. c(i) to (iv), d,e (i) and (ii) and g dealing with the issue of amandate in the nature of a writ of mandamus in the affirmative in
SCWestern Province Technological Officers (Civil) Union v303
Nimal Karunaratne and Others
favour of the appellant. Accordingly I would set aside the judgment ofthe Court of Appeal insofar as it dismissed the appellant's prayer formandamus and issue a mandate in the nature of a writ of mandamusto the 1st respondent directing him to make a divesting order underSection 39A(1) of the Land Acquisition Act in respect of the landwhich belongs to the appellant and was vested in the State andrestore the said land to the possession of the appellant. Theappellant would be entitled to costs of these proceedings.
S.N. SILVA, C.J.-I agree.
AMARATUNGA, J.-I agree.
Appeal allowed with costs.