i’ernandojmlle v. Minister of Lands and Agriculture
1978 Present: Samarakoon, C.J., Ismail, J. and Walpita, J.
MARIE INDIRA FERNANDOPULLE and ANOTHER,Petitioners
E. L. SENANAYAKE, MINISTER OF LANDS ANDAGRICULTURE, Respondents
S. C. Application No. 119 of 1978
Writ of Certiorari—Application to quash order made by Minister underproviso to section 38 of Land Acquisition Act (Cap. 460) —Immediate possession only in case of urgency—Can Courts revie lasuch order—Burden on petitioner.
An order by the Minister under the proviso to section_38_of—theLand Acquisition Act can_be_made_only_m_cases .of urgency andan order made under this proviso can be reviewed by the_ Courts.It is however a matter for a petitioner who’ seeks the remedy byway of Certiorari, to satisfy the Court that there was in fact nourgency and his application cannot succeed should he fail to doso._
Cases referred to:
Gunasekera v. Minister of Lands and Agriculture, 65 N. L. R. 119.Garrutge v. Minister of Lands, 76 N. L. R. 25.
Reg. v. Barnsley Council, Ex parte Hook, (1976) 1 W.L.R. 1052;(1076) 3 All E.R. 752.
Reg. v. Agricultural Land Tribunal, Ex parte Davies, (1953) 1 W.L.R.722 : (1953) 1 All E.R. 1182.
Reg. v. Criminal Injuries Compensation Board, (1967) 2 Q. B. 864 ;(1967) 2 All E. R. 770 ; (1967) 3 W. L. R. 348.
Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain, (1978)Q. B. 678 ; (1978) 2 W. L. R. 598; (1978) 2 All E. R. 198.
Application for a Writ of Certiorari.
V. S. A. Pullenayagam, with G. F. Sethukavaler, Dr. N. Tiru-chelvam and Mrs. Shanthini Gnanakaran, for the petitioner.
Sarath Silva, Senior State Counsel, for the respondents.
Cur. adv. vult.
116 SAMARAIvOON, C. J.—Fernandopulle v. Minister of Lands and Agriculture
August 25, 1978. Samarakoon, C.J.
This is an application for a Writ of Certiorari to quash theorder made by the Minister of Lands and Agriculture (1st.respondent) in terms of the proviso to section' 36 (a) of theLand Acquisition Act (Cap. 460) directing the Assistant Govern-ment Agent, Negombo, to take immediate possession of a landcalled Melawatte situated at Muruthana in Negombo. It isadmitted that the said land was required for the purpose ofproviding a playground and agricultural farm for the MuruthanaMixed Farm School. The land is claimed by the petitioner. Onthe 20th December, 1974, a notice was duly published in terms,of section 2 of the Land Acquisition Act stating that the landwas required for a public purpose. Objections to the proposedacquisition were then lodged by the Chief Political Organiser ofthe Sri Lanka Freedom Party for the Katana Electorate and thepetitioner’s father. On the 15th November, 1976, a notice wasduly published by the Assistant Government Agent, ColomboDistrict, in terms of section 4 of the Act stating that the landwas required for n XDublic purpose and that the government in-tends to acquire the said land (vide Document P). An objectionwas then lodged by Muruthana Rural Development Society (videDocument C) to the said acquisition. An inquiry was then heldon 22nd February, 1977, into all the objections by the Chief Edu-cation Officer of Minuwangoda. On the 13th May, 1977, a decla-ration was duly published under section 5 of the Act (DocumentJ). Thereafter the 1st respondent on 7th December, 1977, madeorder under the proviso to section 38(a) of the Act vesting thesaid land in the State and directing the 2nd respondent to takeimmediate possession of the land. This notice was publishedin Government Gazette No. 296 of 16.12.77 (vide Document 2R1).The 2nd respondent then gave notice to the petitioner that hewould come to the land on 28.02.78 at 10 a.m. to take possession.The 2nd respondent has stated in his objections dated 16th June,.1978, that he has been unable to take possession. It must benoted that a period of about 4 years has elapsed between thedate of the notice under section 2 and the notice to the petitioneron 13.02.76. The petitioner pleads—
that the land is not required for a public purpose, and
that the order 2R1 was in excess of powers conferred
by section 38 (a) of the Act “ in that the 1st respon-dent has failed to disclose the ground of urgency, andin fact no such ground of urgency exists. ”
The first contention was not argued before us. Indeed suchposition was not tenable in view of the declaration published bythe Minister (1st respondent) in Gazette No. 282 of the 9th ofSeptember, 1977. It is conclusive evidence that the land is required
SAMARAKOON, C. J.—Fernandoj-.utle v. Minister of Lands and Agriculture i 17
for a public purpose (vide section 5 (2) of the Act) and thereforecannot be canvassed in a Cour, of Law. Gunasekera v. TheMinister of Lands and Agriculture, 65 N.L.R. 119. Such aprovision expressly removes the right of a Court of Law toreview the decision of the Minister. However there is no suchprovision with regard to the proviso to section 38. The provisionsof section 38 states that the Minister may by order publishedin the Gazette I: at any time after the award is made undersection 17 ” direct the acquiring officer to take possession of theland or servitude acquired, as the case may be. Such an order isa vesting order and vests title in the State absolutely and freefrom all encumbrances from the.date of the order. It must benoted thiat the Minister ordinarily has no power to vest the landin the State until an award is made in terms of section 17 of theAct. Even though the market value is calculated as at the dateof the notice under section 7 the award can only be made after21 days of the date of the notice. If there is a reference to Courtunder the provisions of section 10 of the Act such award willbe made at a such later date (section 17). Whatever the length oftime the Act makes it clear that in the first place possession onlybe taken after the award is made and after the quantum ofcompensation offered is~ made known to the claimants. Any-vesting order made before such award would be an act in excessof powers. The intention of the legislature is clear, i.e., that theofficers of the State cannot take possession until and unless anoffer of payment of compensation is made and the acquisitionproceedings are concluded. It is only then that the Act recognisesthe State’s right to possession of the land. The proviso to section
38 is a departure from this.general rule. It empowers the Ministeron behalf of the State, to take immediate possession^ where itbecomes""necessaryjtWtake immediatejpossession ofjany land on' the “ground of any urgency. As observed earlier, there is noexpress conclusive‘effect given to this decision as is given to thedecision regarding “ public purpose ” in section 5 of the Act.This is a distinction which is significant. It was contended byState Counsel that the notice under section 38 (Proviso) hadalready been published and the title now vests absolutely in theState free from all encumbrances. Therefore, the argument goes,it is futile for the Court to judge the correctness or otherwise iof the Minister’s act. In fact it cannot now look into it as titlehas vested in the State absolutely. I cannot agree. If in fact theCourt has the power its jurisdiction cannot_be~ extinguished bya mere veiling order.
State Counsel next contended that the order of the Ministerunder the provisions of section 38 (Cap. 460) cannot be reviewedby this Court. He cited the authority of this Court’s decision in
118 SAi5Al*AK00!N, C. J.—Fernandopulle v. Hinieler of Lands and Agriculture.
Hewavasam Gamage v. The Minister of Lands (76 N.L.R. 25).In that case the plaintiff (who was the appellant), sought aninjunction from the District Court to restrain the Minister fromacquiring his land. The Minister stated that it was urgentlyrequired for a public purpose, viz., the construction of a publicmarket in the town of Homagama. The plaintiff alleged that theacquisition was motivated by the political and personal animosity .of the chairman of the Town Council against the plaintiff. HisCounsel’s first argument was recited by Pathirana, J. as follows: —
“ I shall deal with the first contention of Mr. Jayewardenethat the 1st defendant in issuing notice under section 2 andthe order under proviso (a) to section 38 was not actingin terms of the Statute but 'was exercising his powers mala■fide for the furtherance directly or indirectly, of politicalmotives and not for a public purpose as stated in the Actand that therefore the decision of the Minister was mala1 fide and/or in excess of his powers, and was, therefore,subject to review by this Court.”"~—
The Court was dealing with the question as to whether thepurpose was in fact a public purpose or whether the acquisitionwas a cloak for purely personal vengeance .against a politicalopponent. Pathirana, J. was of the view that on a constructionof section 2 and proviso to section 38 the Court cannot questionthe decision or order of the Minister and thereby cannot hold that“the decision of the Minister was.wrong namely that the landwas needed for a public purpose ”. He was dealing only withthe question of the “ public purpose ”. A reading of section 38reveals that it comes into operation only after an order undersection 2 and/or section 4. Both these sections operate on theMinister’s decision under these two sections that the land isrequired for a public purpose. Section 38 nowhere refers to“ public purpose ”. It only refers to the sections where the needfor such purpose has been decided. .The only decision it is con-cerned with is the “ urgency ” which necessitates “ immediate'•possession ” of the land being taken. The Minister’s sole powerunder that section is to decide the question of urgency to meetthe need for which an order was made under section 2 and/orsection 4. I therefore find myself unable to follow that decisionso far it concerns the provisions of section 38 and must respect-fully disagree. Furthermore, we are in this case dealing withthe situation where a decision has been made under the provi-sions of section 5(1) that the land is required for a publicpurpose and that decision is conclusive as stipulated by section5(2).
•SAMATtAKOON, C. -T-—Fcrnandopulle v. Minister of Lands and Agriculture 11
The next question is whether the Minister’s decision regardingthe urgency, and therefore the need to take immediate possession,can be reviewed by Court. Counsel for the petitioner stated thatthe Court must apply an objective test and not a subjective test.State Counsel contended for the latter. If one looks at the entire.Act two main powers are given to the Minister. They are: —
The power to decide whether the land is required for
a public pur-pose and to direct that it be acquired, and
Whether there is an urgency compelling the immediate
possession being taken of the land of and to direct that .
possession be taken.
As pointed out earlier, the former decision is by enactment(section 5(2) ) made conclusive and therefore removed fromscrutiny by the Courts. The latter has not been so treated andit is legitimate to hold that the legislature did not intend toremove the Court’s power of scrutiny. Another important factis that section 38 circumscribed the Minister’s power to -interferewith private rights or property by stating that possession canonly be interfered with after an award is made. It is only incases of urgency that an exemption is made. To my mind thisis a clear indication, that the Minister was only permitted toact with due regard to Common Law rights. When CommonLaw rights are involved the Court always has a right of review.Reg. v. Barnsley Council, Ex parte Hook, (1976) 1 W.L.R. 1052.The Common Law right to possession of one’s own propertyis one of these. Reg. v. Agricultural Land Tribunal, Ex parteDavis. (1953) 1 W.L.R. 722. This writ of certiorari is not con-fined to judicial or quasi-judicial acts. It extends even toadministrative acts that affect the rights of the subject. It hasbeen stated that “ the exact limits of the ancient remedy by wayof certiorari have never been and ought not be specially defined.They have varied from time to tijne being extended to meetvarying conditions ”—per Lord Parker, C.J. in Reg. v. CriminalIn juries Compensation Board, (1967) 2 Q.B. at page 882. “ Onemust start this question of whether certiorari will or will notgo with a recognition of the fact that there is not, ,and one mayhope never will be, a precise and detailed definition of the exactsort of order which can be subject to certiorari. If we ever getto the day when one turns up a book to see what the limit ofthe rights of certiorari is. it will mean that the right has becomerigid, and that would be a great pity ”—per Lord Widgery inReg. v. Board of Visitors Ex parte St. Germain, (1978) 2 W.L.R.at page 60. I approach it in the same way bearing in mind thatpurely private and domestic bodies and a few others are outside
120 SAMARAKOON, C. J.—JFcrnandopullc v. Minister of Lands and Agriculture
the pale of certiorari. What is the exact limit of a subjectivetest. Are the Courts obliged to turn a deaf ear merely becausesome statutory officer is able to proclaim “ I alone decide“ When I ope my mouth let no dog bark ” ? If that be theposition when the rights of the subject are involved then theCourt, would have abdicated its powers necessary to safeguardt.he rit'hls of the individual? 1 do not think that is the test. Nodoubt primarily the Minister decided urgency. He it is who is inpossession of the facts and his must be the reasoning. But theCourts have a duty to review the matter. In this case the needfor a playground and a farm had been mooted as far back as 1974.Political influences and extraneous forces delayed the take overof the land.
Four years dragged on and school’s needs were still waitingto be met. The delay and the need decided the urgency. Thesebeing the facts the petitioner has failed to satisfy me that therewas no urgency. I would therefore dismiss the application withcosts.
Ismail. J.—I agree.
WALriTAj J.—I agree.