MANEL FERNANDO AND ANOTHER v. D. M. JAYARATNE, MINISTER OF AGRICULTURE AND

012-SLLR-SLLR-2000-V-1-MANEL-FERNANDO-AND-ANOTHER-v.-D.-M.-JAYARATNE-MINISTER-OF-AGRICULTURE-AND.pdf


MANEL FERNADO AND ANOTHER
v.D.M. JAYARATNE. MINISTER OFAGRICULTURE AND LANDS AND OTHERS
SUPREME COURTFERNANDO. J.,
WADUGODAPITIYA. J. ANDGUNASEKARA. J.
SC APPLICATION NO. 797/9720™ AGUST. 1999
Fundamental rights – Land acquisition – Sections 2 and 38, proviso (a) ofthe Land Acquisition Act – Arbitrary and unreasonable decision to acquireland -Article 12 of the Constitution – Pre-conditions for a valid notice undersection 2 of the Act.
The 2nd petitioner, a Ceylon Tamil married to a Sinhala lady hadpurchased a land (which contained a house and small rubber plantation)at Horana. The 1st respondent purported Lo acquire that land undersection 38 proviso (a) of the Land Acquisition Act. The 2nd petitionerreceived a letter dated 12.9.1997 from the 3rd respondent (AssistantDivisional Secretary) that the land had been acquired and that he shouldhand over possession on 18.9.1997.
The order of acquisition was preceded by a notice purporting to be undersection 2 of the Act and exihibited on the land, stating that the land wasrequired for a public purpose. The notice did not set out the nature of thepublic purpose. However, the 3rd respondent's affidavit to the courtclaimed that the land was required for establishing a Govi Sevana Centre.According to the available evidence the acquisition had in fact beenengineered by the 2nd respondent (Gramasevaka) who had been harass-ing the 2 nd petitioner alleging that he was a terrorist. The 2nd respondenthad also visited the 2nd petitioner's house with police officers. Due to suchharassment the 2nd petitioner was compelled to take up residenceelsewhere and to advertise the land for sale. But the 4th respondent,(Govi Niyamaka/Secretary Sri Lanka Freedom Party) waylaid prospec-tive buyers and told them to refrain from purchasing the house as therewere plans to acquire the property.
Thereafter, the 2nd respondent, with the approved of the 5th respondent(the SLFP M.P. for the area) set in motion acquisition proceedings by thepublication of the section 2 notice. The said proceedings were completednotwithstanding an appeal by the Prime Minister against the acquisition
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Manet Fernando and Another v. D. M. Jayaratne,
Minister of Agriculture and Lands and Others (Fernando, J.)
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and a recommendation by the Commissioner of Agrarian Services, afteran inquiry, that the acquisition should be abandoned.
In the meantime, on 28.01.1997 the 2nd petitioner entered into anagreement with the 1st petitioner to sell the land to the 1st petitioner. The3rd respondent averred that such sale after the notice under section 2 hadbeen exhibited contravened section 4A of the Act.
Held :
In fact the petitioner’s land was not required for a public purpose,hence the acquisition was unlawful, arbitrary and unreasonable.
Per Fernando, J.
The statutory power given in order to enable the state to acquireland needed for a public purpose cannot be used for any other purpose.That would be a gross abuse of power, particularly in this case, where theowner's wish to dispose of his land had been brought about by unlawfuland improper harassment on account of race".
The 1st to 5th respondents infringed the fundamental rights of the2nd petitioner, who was the owner at the relevant time, underArUcles 12 (1) and (2).
The order under section 38, proviso (a) was also unlawful, arbitraryand unreasonable and that the 1st and 3rd respondents therebyinfringed the fundamental rights of the petitioner under Article12(1).
The notice under section 2 was invalid and the provisions of section4A were inapplicable for the reason that-
a section 2 notice must state the public purpose – althoughexceptions may perhaps be implied in regard to purposeinvolving national security and the like.
Per Fernando J.
“In my view the scheme of the Act requires a disclosure of the publicpurpose, and its objects cannot be fully achieved without suchdisclosure"
The section 2 notice sent to the 2nd petitioner was in Sinhalaonly despite the provisions of section 2 (2) and the fact that hewas a Tamil. Section 2 (2) requires the noUce to be in theSinhala, Tamil and English languages. That amounts to non-compliancewith a material statutory provision.
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In view of the fact that the petitioner's land had already beendetermined to be suitable for acquisition it was section 4 andnot section 2 which should have been resorted to.
APPLICATION for relief for infringement of fundamental rights.Manohara de Silva for the petitioners:
S.Rryaratnam, SSC. for the lsl to 3rd. 5Ul and 6th respondents.
Cur. adv. vull.
November 8, 1999FERNANDO. J.
The two Petitioners complain about the acquisition of an80 perch allotment of land. They claim that the decision of the1st Respondent, the Minister of Agriculture and Lands, toacquire that land, and the acquisition itself, were unlawful,arbitrary, capricious and mala fide; that the Respondents'attempt to take possession of that land, under the proviso (a)to section 38 of the Land Acquisition Act, was also unlawful,arbitrary, capricious and mala fide; and that their fundamen-tal rights under Articles 12 (1) and 12 (2) have thereby beenviolated.
The Petitioners case was set out in detail in an affidavitfiled by them. The only counter-affidavit was by the 3nlRespondent, the Assistant Divisional Secretary, Horana. ThePetitioners stated that the 2nd Petitioner is a Ceylon Tamil fromBalangoda married to a Sinhala lady. The 2nd Petitionerpurchased that land (which contains a substantial house aswell as a small rubber plantation) in September 1995 forRs. 500,000. He raised the purchase price by using his lifelongsavings, by pawning jewellery, and by obtaining loans. InOctober 1995 the 2nd Petitioner and the members of his familywent into occupation. A few weeks thereafter the 2nd Respond-ent, the Grama Sevaka of Henagama, with a team of Policeofficers from the Horana Police Station came to the house andchecked all their identity cards; the 2nd Respondent informedthe 2nd Petitioner that he suspected that the 2nd Petitioner was
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Manel Fernando and Another v. D. M. Jayaratne,
Minister of Agriculture and Lands and Others (Fernando, J.)
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a terrorist; and one of the Police officers said that in the eventof a soldier or Police officer being killed in action and his bodybeing brought to the village, the first house that would be burntwould be the 2nd Petitioner's. Thereafter the 2nd Respondentcame with Police officers on many occasions and harassed the2nd Petitioner and the members of his family, making allega-tions that they were terrorists. On one occasion, when therewas a visitor in the house, the 2nd Respondent had come withPolice officers and stated, in the presence of- the visitor, thatany person, other than the members of the household, couldenter the premises only with prior permission from the Policeor himself. Humiliated, the visitor went away. All this com-pelled the 2nd Petitioner to take up residence elsewhere,although he continued to come to the house regularly to lookafter his rubber plantation and other cultivations. But as hewas prevented, as aforesaid, from enjoying his property, hecould not repay the loans he had taken, and he was thereforecompelled to advertise the land for sale on 14.7.96 in theSunday newspapers.
The 2nd Respondent did not file an affidavit denying anyof those allegations. The 3rd Respondent merely said that hewas unaware of those averments. I therefore accept thoseaverments.
The 2nd Petitioner did not allege that the aforesaid conductconstituted an infringement of his freedom of choosing hisresidence within Sri Lanka.
THE DECISION TO ACQUIREThe Petitioner's affidavit went on to state that some of theprospective buyers complained that the 4th Respondent, theGovi Niyamake of Henagama (Division 609A):
“had waylaid them and said to refrain from pu rchasing thehouse as there were plans to acquire this property. At thattime there were no plans whatsoever to acquire thisproperty but the 2nd, 3rd and 4lh Respondentsconnived and instigated a conspiracy to request theGovernment to acquire this property. A few days thereaf-ter the 3rd Respondent sent letter dated 19.7.96 (“P6"l to
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the 5th Respondent who is the member of Parliament and
S.L.F.P. organiser of the area [requesting] his recommen-dation for acquisition."
The 4th Respondent did not file an affidavit denying theallegations against him. Apart from a general denial in hisaffidavit, even the 3rd Respondent did not specifically denythose allegations: His response was that:
a request was made by the Grama Sevaka Division [siclof 609A, Henagama, to acquire the land in question… forthe purpose of establishing a Govi Sevana Centre …. Iannex hereto a communication dated 19.7.96 from theSamurdhiGovi Niyamake in respect of this matter markedas “3R1". Following this request which is for a publicpurpose, the 5th Respondent's recommendation was soughtfor the proposed acquisition by letter dated 19th July 1996(“P6”). At the same time, the Commissioner of AgrarianServices too was notified of the request made by the GoviNiyamake, Henagama. (I annex hereto a copy of the said
letter marked as “3R2".)the Commissioner of Agrarian
Services directed that the land be inspectedby an officer attached to the Department of AgrarianServices, Kalutara, who has forwarded his report dated 6lhAugust 1996 [a copy marked “3R3” was produced).
Following this direction, the 2nd Petitioner was sent anotice under section 2 of the Land Acquisition Act ("P1 1 A”and “PI IB”)” [emphasis added]
It is clear that “Samurdhi Govi Niyamake" and "GoviNiyamake" refer to one and the same person – the 4th Respond-ent. It was he who wrote “3R1" of 19.7.96 to the DivisionalSecretary, and when the 3rd Respondent wrote “P6" the sameday to the 5th Respondent, it was to him that a copy was sent.
The reference to “Grama Sevaka Division of 609A,Henagama” is clearly a mistake for "Grama Sevaka of Division609A, Henagama” – and that was the 2nd Respondent.
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Manel Fernando and Another v. D. M. Jayaratne,
Minister of Agriculture and Lands and Others (Fernando, J.)
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The 3rd Respondent was not truthful In claiming that,when the 5th Respondent’s recommendation was sought, “atthe same time” the Commissioner was notified of the requestfor acquisition. On the contrary, the Commissioner was in-formed only later, by letter "3R2" dated 6.8.96. and indeed, bythat letter he was not informed of any request for acquisition,but of the 5th Respondent's approved, of the acquisition (uponthe 4th Respondent's representation that the land and premiseswere suitable for a Govi Sevana Centre). His views were notsought, and he was simply told to submit a proposal for theacquisition, through the Secretary of his Ministry, to theSecretary, Ministry of Lands. It also cannot be true that thereport submitted on 6.8.96 was upon the direction of theCommissioner. No such direction was produced. In any eventsince the Commissioner was only informed by “3R2” dated6.8.96 (which he would not in the ordinary course havereceived until after 6.8.96), there was no time for him to havemade any direction which could have resulted in an inspectionreport dated 6.8.96.
It was not disputed at the hearing that the questionwhether the Petitioners' land was required and was suitable fora Govi Sevana Centre was a matter for the Commissioner.However, the available evidence shows that there was norequest originating from the Commissioner, or with his knowl-edge or approval, and that he gave no direction for theinspection of the land.
Because of rumours that their land was to be acquired, the2nd Petitioner’s wife appealed to the Divisional Secretary,Horana, on 17.10.96. The reply came from the 3rd Respondentwho stated that a request for acquisition received by him, hadbeen submitted to the 5th Respondent, whose approval hadbeen obtained; and that thereafter the preliminary proposalfor acquisition had been prepared, and had been sent to theCommissioner for submission to the Secretary, Ministry ofLands. It was not suggested that it was the Commissioner whohad initiated or prepared that proposal.
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On 29.10.95, the 2,,d Petitioner's wife submitted an appealto the 1st Respondent, in which she made a brief reference tothe 2nd Respondent's conduct. She also appealed to the 5,hRespondent. She received no replies.
Thereafter a notice dated 2.11.96, purporting to be undersection 2 of the Land Acquisition Act, was exhibited on theland. I will deal later with the several issues which arise inrelation to that notice.
The factual position immediately prior to the issue of thesection 2 notice was as follows. The 2nd Respondent had madethe 2nd Petitioner's occupation of the premises difficult, if notimpossible; the 4th Respondent had then obstructed his effortsto sell his property. Thereupon, without any consideration bythe Commissioner of Agrarian Services ("the Commissioner")of the need for a Govi Sevana Centre, or of the suitability of thePetitioner's land for such a Centre, without a request from him,and without even informing him, the 3rd Respondent hadsought and obtained the 5th Respondent's approval for theacquisition; and only thereafter a proposal for acquisition hadbeen prepared, and sent to the Commissioner, not for hisapproval but simply for transmission to the relevant Ministry.Not only did the 3rd and 4lh Respondents act with remarkablespeed – within days of the 2nd Petitioner advertising hisproperty for sale – but both of them described the house asbeing unoccupied, without even a hint as to the circumstancesin which the 2nd Petitioner had been forced to leave thepremises,. There in no evidence that the Commissioner haddecided that any land in the area – let alone the 2nd Petitioner'sland – was needed for a Govi Sevana Centre or any other publicpurpose.
The 3rd Respondent by letter dated 20.11.96 forwarded tothe 2nd Petitioner a copy of the section 2 notice; both the letterand the copy of the notice were in Sinhala, although the 2ndPetitioner was a Tamil. Since the 2nd Petitioner's wife had notreceived a response to her appeals, the 2nd Petitioner's motherappealed to the Hon. Prime Minister, who thereupon wrote tothe 1st Respondent a letter dated 7.1.97 which speaks for itself:
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Mattel Fernando and Another u. D. M. Jayaratne,
Minister of Agriculture and Lands and Others (Fernando, J.)
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“Acquisition of land at Henegama. Villagein Horana Divisional Secretary's Division
I have received an appeal from a dear friend of mine,Mrs. Polly Murugesu of 33C, Aponso Avenue, Dehiwela,requesting me to intervene on her behalf in what shealleges [isi discrimination and victimization.
Her son had bought a house situated within the HoranaDivisional Secretary's Division. Your Ministry has issueda notice under section 2 of the Land Acquisition Act(Chapter 460) to acquire this house which the Grama SevaNiladhari of Horana 609 Grama Seva Niladhari Divisionhas misrepresented as abandoned.
I am attaching a copy of the notice under section 2.
I am personally aware that Mrs. Murugesu had verydifficult times during the disturbances in 1983. They hadto leave Colombo and for sometime they were in Jaffna.They bought this house recently as houses in Colombowere beyond their reach. However, they were unable to livein Horana as people there were hostile to them. I believethat it is a crime to acquire this house which they are nowplanning to dispose of. I reliably understand that theresidents of Horana have chased away people who havecome to purchase the house informing that this house isto be acquired.
I certainly [indecipherable] you to take very urgentaction on this matter and stop forthwith any acquisitionproceedings, lest it will be misconstrued as an act ofcommunal discrimination.”
It appears that the Hon. Prime Minister wrote another letterdated 5.3.97 to the 1st Respondent, but that has not beenproduced.
By letter dated 18.4.97 the Assistant Commissioner ofAgrarian Services, Kalutara, informed the 2nd Petitioner’s wife
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that the Commissioner had directed him to inquire into herobjections to the acquisition. The 2nd petitioner averred that heand his wife attended the inquiry on 2.5.97; that they receiveda good hearing; and that the Assistant Commissioner informedthe 2nd Petitioner that he would not recommend the acquisitionas it would be unreasonable to acquire that property. The 3rdRespondent had no personal knowledge thereof and could nothave controverted those averments. On the contrary, he statedthat the Commissioner “has recommended to suspend theacquisition after inquiry”, and produced the Commissioner'sletter dated 23.10.97 (“3R6”) to the Secretary, Ministry ofLands. In that letter the Commissioner confirmed that afterinquiry into the acquisition of the land for the Govi SevanaCentre, the Assistant Commissioner had recommended againstacquisition: thus in May itself the 1 st Respondent must haveknown that the acquisition had not been recommended. TheCommissioner also requested that the acquisition proceedingsbe suspended in accordance with section 50 of the LandAcquisition Act (which in fact provides for the abandonment ofacquisition proceedings bejore the publication of an orderunder section 38).
Thus the pleadings and the letter “3R6” establish, beyondany reasonable doubt, that at no stage between October 1995and October 1997 did the Commissioner propose or approveof the acquisition of the Petitioners ' land for a Govi SevanaCentre; and that the Assistant Commissioner did inform the2nd Petitioner, at the conclusion of the inquiiy held on 2.5.97,that he would not recommend the acquisition. Nevertheless,the 1st Respondent wrote to the Hon. Prime Minister a letterdated 14.5.97 stating that, pursuant to the request of theCommissioner, a notice under section 2 had been issued on2.11.96. Not a single document emanating from the Commis-sioner has been produced which suggests that he had everproposed or requested that acquisition, or viewed it with anyfavour whatsoever. On the contrary, the evidence is over-whelming that the only proposal or request for acquisition wasby the 3rd and 4th Respondents. The lsl Respondent further
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Minister of Agriculture and Lands and Others (Fernando, J.)
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stated that the acquisition had been temporarily stayed at therequest of Minister S. Thondaman, but that the 5th Respond-ent, upon Inquiry, had said to go ahead; and that because theHon. Prime Minister by letter dated 5.3.97 (which has not beenproduced) had requested that the acquisition be stopped,reference had again been made to the 5th Respondent who hadwanted the acquisition to be proceeded with. In conclusion,the 1st Respondent stated that upon the recommendation ofthe Member of Parliament for the area in which the land wassituated the land would be acquired.
The 3rd Respondent stated in his affidavit that the Hon.Prime Minister's letter dated 7.1.97 was referred to the 5thRespondent for his observations, “but the 5th RespondentMinister directed that the acquisition proceedings shouldcontinue.”
I hold that the 1st Respondent had no material on which,objectively, it could reasonably have been concluded that thePetitioners' land was required for the stated public purpose ofa Govi Sevana Centre; that he did not bona fide think that itwas so required; and that he had misinformed the Hon. PrimeMinister that the Commissioner had made a request for suchacquisition. Further, although no formal order had been madeunder section 4 of the Land Acquisition Act, an inquiry washeld into the 2nd Petitioner’s objections to the acquisition, afterwhich the inquiring officer (the Assistant Commissioner) hadmade a recommendation (which the Commissioner had sub-sequently approved), that the land should not be acquired: andthat the 1st Respondent ignored or failed to consider. On theother hand, he placed undue reliance on the 5th Respondent'srecommendation which failed to take account of the relevantfactors. I hold that in fact the Petitioners' land was not requiredfor a public purpose, and that the acquisition was unlawful,arbitrary and unreasonable.
It is necessary to consider whether the fact that the 2ndPetitioner had decided in July 1996 to sell the property makes
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any difference: Can it be said that if an owner wishes to sell hisproperty, he cannot object if the State thereafter decides toacquire it? If, in the case of a willing seller, an acquisitionwould result in the payment of the market value of the landacquired with the same promptitude and convenience as upona private sale, it might seem unduly technical to invalidatesuch an acquisition. But two questions arise.
First, was the 2nd Petitioner in the position of a willingseller,.likely to receive prompt payment of the market value?Considering the circumstances which compelled him to decideto sell his property it is impossible to treat the 2nd Petitioner asa willing seller. Further, acquisition proceedings are known toinvolve delay, technicalities and expense, and seldom result inthe prompt payment of market value or market rates of interestand that is perhaps why the Hon. Prime Minister remarkedthat “it is a crime to acquire this house which they are nowplanning to dispose of.”
Second, does the Land Acquisition Act authorize theacquisition of a land, which is not in fact required for a publicpurpose, simply because the owner wishes to dispose of it? Thestatutoiy power given in order to enable the State to acquireland needed for a public purpose cannot be used for any otherpurpose. That would be a gross abuse of power, particularly inthis case, where the owner's wish to dispose of his land hadbeen brought about by unlawful and improper harassment onaccount of race.
In my view, the Petitioners' allegation that the 2rid, 3rd and4th Respondents connived and conspired to procure theacquisition of this property has been established . Theirconduct resulted in the 5th Respondent's recommendation andthe 1st Respondent's decision to acquire.
I hold that the 1st to 5th Respondents have infringed thefundamental rights of the 2nd Petitioner, who was the owner atthe relevant time, under Articles 12(1) and (2).
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Manel Fernando and Another v. D.M. Jayamtne.
Minister of Agriculture and Lands and Others (Fernando, J.)
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THE ORDER UNDER SECTION 38 PROVISO (a)The 1st Respondent's letter dated 14.5.97 was not copiedto the 2nd Petitioner or his wife. In the circumstances, I acceptthe 2nd Petitioner's statement that he “did not proceed with anylegal or administrative action as [he had been] assured that theacquisition was not to be proceeded with.” However, on
he received a letter (in Sinhala) dated 10.9.97 from the3rd Respondent that the land had been acquired under theproviso (a) to section 38 of the Land Acquisition Act, and thathe should hand over possession on 18.9.97. The 2nd Petition-er's mother, Mrs. Polly Murugesu, died on 15.9.97, and the 2ndPetitioner informed the 3rd Respondent by telegram (which the3rd Respondent admitted) that he Would not be able to attenddue to his mother's funeral.
In the meantime, the 1st Petitioner had come into thepicture. Being unable to repay the loans taken by him. the 2ndPetitioner had entered into an Agreement, dated 28.1.97, tosell the land to the 1st Petitioner; and the Deed of Transfer wasexecuted on 14.9.97.
According to the 1st Petitioner, when the 3rd Respondentcame to take possession on 18.9.97, she asked for his identitycard. He refused to show it, and went away after inspecting thepremises. Thereafter she was arrested and produced beforethe Horana Magistrate on a charge of obstructing a publicofficer under section 183 of the Penal Code. Replying to the 1stPetitioner's allegations, the 3rd Respondent did not deny thathe had refused to show his identity card; and did not say inwhat way the 1st Petitioner had obstructed him.
The 3rd Respondent also averred that the 2nd Petitioner hascontravened section 4A of the Act by selling the land afternotices under section 2 had been issued and exhibited, andthat makes it necessary to determine the validity of the section2 notice.
By September 1997, the Assistant Commissioner's in-quiry had been concluded. The 3rd Respondent did not claim
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that he (or other relevant officers) did not know recommenda-tions had been made. He did not state what circumstancesmade it urgent to take immediate possession of the land.
Apart from that, an order under proviso (a) can only bemade after a notice under section 2, or section 4, has beenexhibited. In this case, for the reasons set out below, 1 hold thatthere was no valid section 2 notice.
Accordingly, I hold that the order under section 38,proviso (a), and the attempt to take possession were alsounlawful, arbitrary and unreasonable; and that the 181 and 3^Respondents have thereby infringed the fundamental rights ofthe Petitioners under Article 12 (1).
THE SECTION 2 NOTICESections 2, 4 and 4A of the Act provide as follows:
"2(1) Where the Minister decides that land in any area isneeded for any public purpose, he may direct the acquir-ing officer of the district in which that area lies to cause anotice in accordance with subsection (2) to be exhibited insome conspicuous places in the area.
2(2) The notice referred to in subsection (1) shall be in theSinhaUjL Tamil and English languages and shall state thatland in the area specified in the notice is required /or apublic purpose and that all or any of the acts authorizedby subsection (3) may be done on any land in that area inorder to investigate the suitability of that land for thatpublic purpose.
2(3) After a notice under subsection (2) is exhibited
|an authorized officer) may enter any
land in that area . . . and … (f) do all other acts necessaryto ascertain whether that land is suitable for the publicpurpose for which land in that area is required . . ."
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Mansi Fernando and Another o. D. M. Jayaratne,
Minister of Agriculture and Lands and Others (Fernando. J.)
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“4(1) where the Minister considers that a particular landis suitable for a public purpose, … he shall direct the .acquiring officers of the district … to cause a notice inaccordance with subsection (3) to be given to the owner orowners of that land and to be exhibited in some conspicu-ous places on or near that land . . .
4(2) The Minister may issue a direction under the preced-ing provisions of this section notwithstanding that nonotice has been exhibited as provided by section 2 . . .
4(3) The notice referred to in subsection (1) shall –
be in the Sinhala, Tamil and Eglish languages; . . .fb) . . .
state that the Government intends to acquire thatland or servitude for a public purpose, and that writtenobjections to the intended acquisition may be made ….
. . .”
“ 4A(1) where a notice has been issued or exhibited inrespect of any land under section 2 or section 4, no ownerof that land shall, during the period of twelve months afterthe date of issue or exhibition of such notice –
sell or otherwise dispose of that land; or . . .fb)
4A(2) Any sale or other disposal of land in contraventionof the provisions of subsection (1) (a) of this section shallbe null and void . . .“
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 noticeunless he has a public purpose in mind. Is there any validreason why he should withhold this from the owners who maybe affected?
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Section (2)2 required the notice to state that one or moreacts may be done “in order to investigate the suitability of thatland for that public purpose”: obviously, “that" public purposecannot be an undisclosed one. This implies that the purposemust be disclosed. From a practical point of view, if an officeracting under section 2(3) (f) does not know the public purpose,he cannot fulfil his duty of ascertaining whether any particularland is suitable for that purpose.
Likewise, the object of section 4(3) is to enable the ownerto submit 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 moresuitable lands. That object would be defeated, and there wouldbe no meaningful inquiry into objections, unless the publicpurpose is disclosed. If the public purpose has to be disclosedat that stage, there is no valid reason why it should not berevealed at the section 2 stage.
In my view, the scheme of the Act requires a disclosureof the public purpose, and its objects cannot be fullyachieved without such disclosure. A section 2 notice muststate the public purpose – although exceptions may perhaps beimplied in regard to purposes involving national security andthe like.
The second matter is that the section 2 notice sent to the2nd Petitioner was in Sinhala, despite the provisions of section2(2), although he was a Tamil (cf also Article 22(2) (c)) of theConstitution. That amounts to non-compliance with a mate-rial statutory provision.
Finally, the purpose of section 2 is to ascertain whetherland in any area, and if so which land, is suitable for a publicpurpose. If without resort to that provision a particular landhas already been identified, then it is section 4 (and not section2) which should be resorted to. In this instance, the 2ndPetitioner's land had already been determined to be suitable,and there was no purpose in issuing a section 2 notice.
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Manel Fernando and Another v. D. M. Jayaratne,
Minister of Agriculture and Lands and Others (Fernando, J.)
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The language of the section 2 notice issued in this caseclearly disclosed that it was no more than a pretext. Besidesnon – disclosure of the alleged public purpose, it stated that“land in the area described below is required for a publicpurpose”. The “area” described was just the 2nd Petitioner'sproperty. The notice went on to authorize an officer "to enterany land in the aforesaid area” (i.e. any land within the 2ndPetitioner’s property!), and “to ascertain whether that land issuitable for the public purpose for which land in that area isrequired". By the time that notice was issued, the 2nd Petition-er's land already had been identified for acquisition, and if thathad been validly done, what should have been issued was anotice under section 4. The issue of a section 2 notice insteadwas a pretext.
I therefore hold that the section 2 notice was a nullity andthe provisions of section 4A were inapplicable. The fact that the2nd petitioner transferred the land to the 1st Petitioner did notin any way affect the former's right to relief in respect of thedecision to acquire and the section 38 notice or the latter’sright to relief in respect of the attempt to take possession.
RELIEFI award the 2nd Petitioner a sum of Rs. 50,000 ascompensation, and the Petitioners jointly a sum of Rs. 15,000as costs, both payable by the State within one month.
WADYGIDAOUTUTA, J.I agree.GUNASEKERA, J.I agree.
Relief granted.