012-NLR-NLR-V-72-Mrs.-MALLIKA-RATWATTE-et-al.-Petitioners-and-THE-MINISTER-OF-LANDS-The-Hon.-C.pdf
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Ralwatte v. Minister of Lands
1969Present: Samerawiekrame, J.
Mrs. MALLIKA RATWATTE el al., Petitioners, andTHE MINISTER OF LANDS (The Hon. C. P. de Silva) et ah,
Respondents
S. C. 141 j69—Application for an Injunction in terms ofSection 20 of the Courts Ordinance
Compulsory acquisition of land—Interim injunction to restrain it—Requisite conditions—Suspicion of malice—Duly of Court then to scrutinise the acquisition—LandAcquisition Act, ss. 4 (1), 5, 38 (proviso)—Courts Ordinance, 8. 20.
… The requisite conditions for the issue, by the Supreme Court, of a temporaryinjunction under section 20 of the Courts Ordinance are-^-
(1) irremediable mischief would ensue from tho act sought to be restrained ;
{2) an action would lie for an injunction in some court of original jurisdiction ;and
(3) the plaintiff is prevented by some substantial cause from applying to thatcourt.
By a notice under section 4(1) of tho Land Acquisition Act, the Minister. (the 1st respondent) sought to acquire certain lands of the 1st petitioner forthe purpose of carrying out the widening of a road. Upon the facts andcircumstances disclosed in tho Supreme Court, the question arose whether,in giving directions for these acquisitions, the 1st respondent, wittingly orunwittingly, gave effect to a design or plan by a political opponent of thopetitioners which was calculated to protect the interests of himself and hisrelatives and cause loss and detriment to tho petitioners.
Held, that tho petitioners were entitled to tho issuo of a temporary injunctionrestraining the respondents in respect of tho acquisition of tho lands. In orderthat an intorim injunction may issuo, it is not necessary tiiafc tho Court shouldfind a case which would ontitlo tho plaintiff to relief at all events ; it is quitesufficient if the Court finds a cose which shows that there is a substantialquestion to be investigated, and that matters ought to be preserved in statu quountil that question can bo finally disposed of.
A. PPLICATION for an injunction in torms of Section 20 of the CourtsOrdinance.
Nihal Jayawickrema, for the petitioners.
L. de Silva, Crown Counsel, for the 1st, 2nd and 3rd respondents.
Cur. ado. vult.
SAMERAWICKRAME, J.—Ratwatle v. Minister of Lands01
April 11, 1969. Samera-wickbame, J.—
On tho application of tho petitioners, I made order on the 20th ofMarch, 1969, ordering tho issue of a temporary injunction restrainingthe respondents in respect of the acquisition of certain lands and in myorder, I reserved the right to the respondents to apply, on good groundsshown, to have tho order vacated. The respondents have now applied tohave tho order sot aside and, in view of tho imminence of the CourtVacation and the possibility that this matter may not come up forhearing during the term if they controverted the facts and thereby madeit necessary for the respondents to hie counter affidavit, they have beencontent with contending that upon tho facts and circumstances disclosedin tho papers filed by the petitioners, they were not entitled to tho issueof an injunction.
In the caso of Mohamado v. Ibrahim,1 Bonsor, C.J. set out thecircumstances in which a temporary injunction under Section 20 of tho"Courts' Ordinance would issue and- his-statement of -them hasJbeen. citedand adopted by Alles, J. in VeUasamy v. N. Q. Dias2. Tho requisiteconditions are as follows :—
Irremediable mischief would ensue from tho act sought to bo
restrained ;
an action would lie for an injunction in some court of original
jurisdiction ; and
the plaintiff is prevented by some substantial cause from applying
to that court.
A notice under s. 4 (1) of the Land Acquisition Act has been issued inrospect of these acquisitions and unless the respondents are restrained,the petitioners are in grave danger of being deprived of their lands, and,if their caso is true, being deprived wrongfully. An order under s. 5, andan order for immediate possession under the proviso to s. 38 could bomade in a matter of few days. In recent times, it has been the rule ratherthan the exception to make orders for immediate possession of land inacquisitions. I am, therefore, satisfied that condition (1) is fulfilled inthis case. The petitioners are also prevented from applying to tho DistrictCourt for relief by reason of tho requirement that notice of action shouldbe given before an action is filed against a person holding the office ofMinister or a public officer. The petitioners state that they have issuednotice but are precluded from applying for relief immediately to theDistrict Court by reason of the requirement that action should be filedonly after the expiry of a month after delivery of notice. I am also,therefore, satisfied that condition (3) has been fulfilled.
There remains to be considered the question whether an action inthe District Court would lie to the petitioners in which they would beentitled to apply for an interim injunction. The 1st petitioner is the Memberof Parliament for Balangoda and her husband had been the Member of1 (1895) 2 N. L. R. 36.* (1965) 68 O. L. TV. 37,
6 2
SAMERAWICKRAME, J.—Ualwatte v. Minister oj Lands
Parliament boforo her. The other petitioners aro their political supporters.Both at tho election at which sho was elected and at tho olection at whichher husband was returned, tho opposing candidate was one Aboosally,a gentleman who now holds the office of Chairman of the Urban Councilof tho area. According to the petitioners, their political opponent Aboosallyinformed them that he had decided that, instead of widening tho existingmain road which 2>asscs ihrough the bazaar, an old circuitous road,which had hitherto been ha icily used by motorists, would be widenedby 34 feet. The main road which is at most places about 40 feet wido isat tho ccntro of the bazaar only about 20 feet wido and tho land andbuildings immediately adjacent to that spot aro occupied by tho saidAboosally and several of his relatives. The land and premises on eitherside of tho old circuitous road belong to tho families of the petitioners.On 21st February, 1GC9, tho 3rd respondent, in tho company of the saidAboosally and other officials, inspected tho said old circuitous road.At tho inspection tho 1st petitioner’s husband requested the 3rdrespondent not to pursue the proposed project as it was nothing but anattempt to tako political revenge. According to the petitioners, tire. 3rd respondent rejected tire request of the petitioner’s husband apparentlyfor tho reason that it did not lie in the mouth of tire petitioners to raisesuch an objection because the previous government, which the petitionershad suj>portod, had arbitrarily acquired lands, including a land belongingto a relative of his, upon false pretexts. It is alleged that Aboosally whowas present also stated that tho previous government had acquired aland belonging to him for the purpose of a housing scheme about tenyears ago but had failed to pay him any compensation.
On or about tho 14th of March, 19G9, a notico under s. 4 of tho LandAcquisition Act was issued in respect of iheso acquisitions and thopetitioners mado tho present application on the 17th of March, 19G9.They state in their petition that the said notice is a nullity and is voidand has no forco or effect in law as the 1st respondent as tho Ministor ofLands has acted in oxcoss or in abuso of his powers and lias been inducedby tho said Aboosally, for political and other reasons, to direct tho issue*of tho said notice.
Aboosally was the government party candidate at tho election for amember of parliament for the Balangoda constituency at tho last two;parliamentary elections. He is also presently tho Chairman of tho Urban.Council of tho area. It is, therefore, likely that the 1st respondent whois tho'Minister of Lands would have received and given weight to thoviews that he expressed in respect of the road widening. In addition toantecedent, probability there arc the further circumstances relied onby the petitioners that Aboo3all3*’s information to them that he haddecided.that instead of the main road tho old circuitous road shouldbe widened was followed bv directions bv the 1st respondent for tho.acquisition of their kinds for tho purpose of carrying out tho proposedwidening of the old circuitous road.
SAMERAWICKR AME, J.—Ralwatte v. Minister of Lands
G3
Section 4 of the Land Acquisition Act makes provision for objectionsto an intended acquisition and for consideration of those objections bytho Permanent Secretary who i3 to mako his recommendation to thoMinister, and it provides that after tho Minister has considered thePermanent Secretary’s iccommendation on objections, ho should decide■whether the land should or should not be acquired. In this case thoPermanent Secretary who is to receive objections is the 3rd respondentwho had, at the inspection, already expressed the view that there wasnot available to the petitioners tho objection that tho acquisitions werean act of political revenge. It would follow, therefore, that the petitionersarc deprived of the opportunity of any real consideration of theirobjections, and of a proper and impartial recommendation upon themto tho Minister.
Upon tho matters placed before this Court by the petitioners, thequestion arises Avhethcr in giving directions for these acquisitions,the 1st respondent, wittingly or unwittingly, gave-.efFeet to a design or -phm by a political opponent of tho petitioners which was calculated toprotect tho interests of himself and his relatives and causo loss and■detriment to the petitioners; and if tho 1st respondent did so, butacted unwittingly, whether tho petitioners aro entitled to. relief. In '
. order that an interim injunction may issue it is not necessary that thocourt should find a case which would cntitlo the plaintiff to relief at allevents : it is quite sufficient if tho Court finds a case which shows thatthere is a substantial question to bo investigated, and that mattersought to be preserved in statu qvo until that question can be finallydisposed of.—vide Halsbury’s Laws of England, Simonds Edition,Volume 21, page 365. I am, therefore, of tho opinion lhat condition (2)also is fulfilled in this case.
I cannot resist the observation that it is remarkable how often overthe yca:s it has tumid out by some extraordinary coincidence that thepublic interest appeared to rcquiio the acquisition of lands belonging toporsons politically opposed to tho party in p:>owcr at the time. It is,therefore, necessary that Courts, wlxilo discouraging frivolous andgroundless objections to acquisitions, should be vigilant, if it is opento them to do so, to scrutinise acquisition proceeding whero it is allegedthat they aro done mala fide and from an ulterior motive.
In fairness to tho persons against whom tho petitioners have madeallegations, I should state that tho Court is not called upon, at this stage,to consider the truth of the petitioners’ caso and it has not done so.
In fact, this Court has not heard what tho other persons have to say onthe subject. As indicated earlier, my order was made ex parte and, ovonupon tho application made by the respondents, occasion has not arisenfor going into tho questions of fact. I desire to point out that tho issueof a temporary injunction by this Court to enable a party to filo an actionin tho District Court and to apply for an injunction in that action, docsnot absolvo that Court from the duty of considering the matter and offorming its own view, particularly whore it comes to consider the matter
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S AMERAWICKRAME, J.—Sebastian v. Ediriiteera
after the defendants have put before it such material as it may bopormitted to place before it by law in support of their opposition to thegrant of th© injunction.
I accordingly hold that tho objections of tho respondents fail and theyare dismissed. I make no order as to costs.
Application for temporary injunction allowed.