MENDIS v. JAYARATNE, MINISTER OF AGRICULTURE, LANDS AND FORESTRY

018-SLLR-SLLR-1997-2-MENDIS-v.-JAYARATNE-MINISTER-OF-AGRICULTURE-LANDS-AND-FORESTRY.pdf


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Mendis v. Jayaratne, Minister of Agriculture, Lands and Forestry
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MENDIS
V.
JAYARATNE, MINISTER OF AGRICULTURE,LANDS AND FORESTRY
COURT OF APPEAL.
DR. RANARAJA, J.
C. A. NO. 425/96.
MAY 09, 1997.
Land Acquisition Act No. 9 of 1950 – Sections 2, 5(2), 38, 38A, 39(A) – PublicPurpose – Urgency – Laches – Piece meal divesting.
Under the provisions of section 38 of the Land Acquisition Act the then Minister ofLands directed the Acquiring Officer to take possession of the petitioner's land.Physical possession was taken on 27.1.88. Thereafter in terms of the Act,petitioner made claims for compensation in respect of the 3 lots. The petitionerreceived compensation in respect of 2 lots. Not being satisfied with the quantumof compensation paid in respect of the 3rd lot, the petitioner appealed to the LandAcquisition Board of Review. While the appeal was pending, the petitioner,alleging victimisation by the previous regime, requested the Minister of Lands tomake a divesting Order under section 39A, stating that the land has not beenmade use of for the “Public Purpose" for which it was acquired.
The petitioner thereafter sought to quash the Order made under section 38A, andfurther sought a Writ of Mandamus directing the 1st respondent to make orderdivesting the said land in terms of section 39A.
The petitioner contends that the public purpose for which the acquisition hasbeen made is mala fide and for an extraneous purpose, and that the landacquired has not been used for the stated public purpose or for any purpose.
HELD:
The petitioner is not entitled to question the decision of the Minister that theland is required for a public purpose under section 38, made 16 years ago.
The decision whether the land should or should not be acquired is one ofpolicy to be determined by the Minister concerned and therefore cannot bequestioned by a Court of Law.
It is to be noted that in the instant case, the petitioner had by 1988 alreadyclaimed and received compensation for two other lots acquired for the same
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purpose. He has taken no objection that the acquisition of those two lots was badin law for lack of 'Urgency.1 Even in respect of the lot in respect of which thisapplication is made, he claimed and was awarded compensation on 27.6.1991.
The petitioner has not challenged the statement of the 1st respondent thatthe later land was taken over for the implementation of a Development Project -neither has he satisfied court that the land acquired is not being utilised for thepurpose it was acquired.
It is only if the Minister has failed to reasonably exercise his discretion thatrelief could be granted. The petitioner has failed to satisfy court on this aspect.
A piece-meal divesting order of a particular portion of the vested land is notpossible.
APPLICATION for a Writ of Certiorari and Mandamus.
Cases referred to:
Hopman v. Minister of Lands – [1994] 2 Sri L.R. 240.
Ratnayake v. Jayasinghe – 78 NLR 35.
Hulangamuwa v. Principal, Visaka Vidyalaya, [1988] 1 Sri L.R. 275.
Gamage v. Minister of Agriculture, 76 NLR 25.
Gunasekera v. Minister of Lands – 65 NLR 119.
Fernandopuile v. Minister of Lands 79(2) NLR 116.
De Silva v. Atukorale – [1993] 1 Sri L.R. 283.
Fernando v. Dayaratne – [1991] 2 Sri L.R.129.
Faiz Mustapha, P.C. with S. N. Senanayake for petitioner.
P. G. Dep., D.S.G. for respondents.
Cur. adv. vult.
May 09,1997.
DR. RANARAJA, J.
The petitioner is the owner of the allotment of land calledTambilikotuwa depicted as lot 3 in Plan No. 1717 (P1) and Plan 2062dated 12.12.84 (P1A), 0A, 2R, 23P in extent. By notice dated28.3.1980 (P2) published under the provisions of section 2 of theLand Acquisition Act (Act) the Government Agent of the KalutaraDistrict informed the public that the land called Modarwila,
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approximately 90 acres in extent, inclusive of the said land calledTambilikotuwa, would inter alia, be surveyed to ascertain whether thatland is suitable for a public purpose, namely a Housing Project. Bynotice (P3) dated 27.10.80 issued under the provisions of Proviso (a)to section 38 of the Act, the then Minister of Lands directed theAcquiring Officer, Panadura District to take possession of the land,and physical possession thereof was taken on 27.1.88. By noticeunder the provisions of section 7 of the Act published in Gazette411/11 dated 22.7.1986 (1R1) the Acquiring Officer called for claimsfor compensation. The petitioner made claims in respect of 3 lots,namely lots 3 and 4 in Plan P1A and lot 5 in Plan P1. The petitionerhas received compensation in respect of lot 4 in Plan P1A and lot 5 inPlan P1. Not being satisfied with the quantum of compensation paid(P5) in respect of lot 3 in Plan P1 A, the petitioner has made an appealto the Land Acquisition Board of Review. It appears that whilst thatappeal was pending, the petitioner by letter P6 dated 10.10.94,alleging victimisation by the previous regime, requested the 1strespondent Minister of Lands, to make a divesting order undersection 39A of the Act, stating that the land has not been made useof for the public purpose for which it was acquired. The matter wasreferred to the 2nd respondent Urban Development Authority, fornecessary action (P8). By letter P9E dated 4th December, 1995, thepetitioner informed the 2nd respondent inter alia, that “If however therelease of the land will disturb your development program, I amnot averse to accepting an extent of land to make up the deficit fromthe western side of Noel Mendis Mawatha. I am of course, glad tosee the development of my town of which I was a one-time Chairmanand a councillor for thirty years. But then there is a limit to which Icould sacrifice, I have already surrendered 3A.0R.33P. in the heart ofPanadura Town for a mere pittance. In this context, “natural justicedemands that I be appropriately compensated.” Although the 2ndrespondent offered the petitioner alternative land in lieu ofcompensation during the course of proceedings before this Court,that offer was rejected by the petitioner.
This application is inter alia, for:
(a) a writ of certiorari quashing the order made under proviso (a) tosection 38 of the Act, (P3) and
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(b) a writ of mandamus directing the 1st respondent to make orderdivesting the said land in terms of section 39A of the Act.
It is submitted that the public purpose for which the acquisition hasbeen made is mala fide and for an extraneous purpose, since theland has been sold by the 2nd respondent to the 3rd respondentColombo Gas Company Ltd. for a large profit. He has stated so inparagraph 9 of his counter affidavit. The petitioner has in his affidavitstated that he has credible information that negotiations are beingcarried on for the lease of the said land by the 2nd respondent to the3rd respondent. The petitioner has not produced any document inproof of either a lease or sale of the said land by the 2nd respondentto the 3rd respondent. Equitable relief is not available on merestatements.
The petitioner has sworn that the land acquired has not been usedfor the stated public purpose or for any purpose after possession wastaken thereof by the State. The 1st respondent has in his affidavitstated that approximately 69 acres of land had been acquired andpossession taken over by the National Housing Development Authorityin three stages for the Moderawila Development Project. The Designand Project Management Division of the 2nd respondent had alreadyprepared lay-out plans and the project will commence immediatelyafter providing the necessary infrastructure. The petitioner in his letterP9E has conceded that there was a proposed development plan andwould be glad to see the development of the Town.
In any event, the petitioner is not, as the law stands, entitled toquestion the decision of the Minister made on 27.10.80 that the landis required for a public purpose, under the provisions of section 38proviso (a) of the Act, that is almost 16 years ago.
In Hopman v. Minister of Lands™ Kulatunga, J. with G. P. S. deSilva, C.J. and Ramanathan, J. agreeing upheld the decision of theCourt of Appeal that the delay by the petitioner of less than threeyears to seek relief by way of a writ of certiorari to quash an ordermade under section 38 proviso (a) of the Act constituted laches, anddismissed the petitioner’s appeal to the Supreme Court. Also see:Ratnayake v. Jayasinghem, Hulangamuwa v. Principal VisakaVidyalaya<3).
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In Gamage v. The Minister of Agriculture, Pathirana, J. withRajaratnam, J. agreeing stated, "I am of the opinion that on theconstruction I place on section 2(1) and proviso (a) to section 38, theCourt cannot question the decision or the order of the Minister andsubstitute its judgment in place of that of the Minister and hold thatthe decision of the Minister was wrong, namely, that the land wasneeded for a public purpose. The decision whether the land shouldor should not be acquired is one of policy to be determined by theMinister concerned and therefore cannot be questioned by the courtof law." Pathirana, J. found support for his decision in the judgment ofH. N. G. Fernando J. in Gunasekera v. Minister of Lands™ whichview was followed also in Fernandopulle v. Minister of Lands™ bySamarakoon C.J. with Ismail J. and Walpita J. agreeing, when heheld, “If one looks at the entire Act two main powers are given to theMinister. They are: (1) the power to decide whether the land isrequired for a public purpose and to direct that it be acquired, and(2) whether there is an urgency compelling the immediate possessionbeing taken of the land and to direct that possession be taken. Aspointed out earlier, the former decision is by enactment (section 5(2))made conclusive and therefore removed from scrutiny of the courts.The latter has not been so treated and it is legitimate to hold that thelegislature did not intend to remove the Courts power of scrutiny.”
However on the facts of that case, Samarakoon C.J. proceededto hold that extraneous forces had delayed the take over of the landand that the delay and the need decided the urgency.
The petitioner has submitted that no "urgency” existed in the instantcase and therefore the order P3 should be quashed on that ground.
The reason why section 38 proviso (a) should not be made use ofis explained by Samarakoon C.J. in Fernandopulle (supra) thus: “Itmust be noted that the Minister ordinarily has no power to vest theland in the state until an award is made in terms of section 17 of theAct… Whatever the length of time, the Act makes it clear that in thefirst place possession only be taken after the award is made and thequantum of compensation offered is made known to the claimants.Any vesting order made before such award would be an act inexcess of powers."
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It is to be noted that in the instant case the petitioner had by 1988already claimed and received compensation for two other lotsacquired for the same purpose. He has taken no objection that theacquisition of those two lots was bad in law for lack of “urgency".Even in respect of the lot in respect of which this application is made,he claimed and was awarded an amount of compensation way back,on 27.6.91 (P5) with which he was not satisfied. The principle oflaches in Hopman (supra) will equally apply here, apart from hisacquiescence of the allegedly illegal order for lack of "urgency”before an order under section 17 of the Act was made. The petitionerhas failed to satisfy court that he was unduly prejudiced by order P3for the reason that there allegedly was no "urgency” by adducing anargument based on the curate’s egg.
The entire extent of the land acquired was over 65 acres. Thedifficulty in taking physical possession of many lots comprising thatextent could very well have been the reason for the delay between27.10.80 the day P3 was made and 27.1.88, when actual physicalpossession was finally taken over.
It is submitted that the 1st respondent is under a legal duty tomake an order divesting the said land under section 39A of the Act inas much as the petitioner had satisfied all the criteria contained insection 39A (2) (a) to (d) of the Act.
It has been submitted by the 1st respondent that a major portion ofthe 65 Acres acquired for the Moderawila Development Project, ofwhich lot 3 in plan P1A forms part, has been utilised for buildinghouses and factories. The petitioner has implicitly accepted this factin letter P9E referred to above.
The rationale for introducing section 39A by Act, No. 8 of 1979,was explained by Fernando, J. in De Silva v. Atukoralem as follows.“The long title of the Act refers to land acquired without adequatejustification. The Act contemplates a continuing state of things; it issufficient if the lack of justification appears at any subsequent point oftime; this is clear from paragraph (b) of section 39A (2); if the landhas not been used for a public purpose after possession has beentaken, there is then an insufficiency of justification; and greater the
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lapse of time, the less the justification for the acquisition…Thepurpose and powers of the amendment is to enable the justificationfor the original acquisition as well as for the continued retention ofacquired lands, to be reviewed; if the four conditions are satisfied,the Minister is empowered to divest.”
Nowhere in his counter affidvit has the petitioner challenged thestatement of the 1st respondent that the larger land of 65 acres wastaken over by the 2nd respondent for the implementation of theModerawila Development Project involving Housing, Commercial andIndustrial Development. The petitioner has merely denied theaverment of the 1st respondent that the Design and ProjectManagement Division of the 3rd respondent had already preparedlay out plans for the project and the work on the project willcommence immediately. Apart from his bare denial no documentaryproof has been forthcoming of his allegation that the relevant landhas either been sold or leased to the 3rd respondent or for thatmatter to any other person. On the other hand it is evident from P9Ethat the petitioner was satisfied that the 2nd respondent was in theprocess of implementing the proposed development program and forthat reason expressed his willingness to accept alternative land. Thepetitioner has not satisfied this Court that the land acquired is notbeing utilised for the purpose it was acquired and the acquisitioncannot be adequately justified. The petitioner has therefore not madeout a case for mandamus, considering the fact that section 39(A) ofthe Act does not grant him such a right. It is only if the Minister hasfailed to reasonably exercise his discretion under that section, thatrelief by way of mandamus could be granted. The petitioner hasfailed to satisfy this Court that the 1st respondent had actedunreasonably. The question also arises whether in any event thepetitioner is entitled to a “piece-meal" divesting order of a particularportion of the land vested by order P3. – See Fernando v.Dayaratnem where Silva J. held it was not possible.
The application is dismissed with costs fixed at Rs. 2500/- payableto the 1st respondent.
Application dismissed.