RANAWICKREMA vs. MINISTER OF AGRICULTURE AND LANDS AND OTHERS

007-SLLR-SLLR-2006-V-1-RANAWICKREMA-vs.-MINISTER-OF-AGRICULTURE-AND-LANDS-AND-OTHERS.pdf


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RANAWICKREMAVSMINISTER OF AGRICULTURE AND LANDS AND OTHERSCOURT OF APPEALIMAM J. ANDSRISKANDARAJAH, J.
C.A. (WRIT) 280/2001MAY 10.2005
Writ of certiorari – Land Acquisition Act, sections 2,3 and 4(1)- Section 2 Notice- Should the land be identified with precision ? – What is a Section 2 Notice ? •Is it amenable to writ jurisdiction ? – What is the first decisive exercise of discretionby the Minister ?
Held:Without identifying a land, if Section 2 Notices are issued on severallands in an area for the purpose of investigation, it will causeinconvenience to the public and at the same time the Acquiring Authoritymay incur unnecessary liabilities under section 3.
The Land Manual has laid down the procedure to be followed in casesof acquisition of land for public purposes. The officers of relevantgovernment departments should conduct a preliminary investigationbefore identifying a land for the stated purpose. They should comparethe lands available in the area and identify a land for the said purposeand after identifying the land only a “request” could be made to therelevant Minister for acquisition. The Minister thereafter issues adirection to the Acquiring Officer of the area, to publish a Section 2Notice to investigate whether the land identified is suitable for the saidpublic purpose.
A Section 2 Notice is a notice to investigate for selecting, a land for apublic purpose. The investigation will not necessarily result in asubsequent acquisition of that land. This is not a decisive exercise ofdiscretion by the Minister.
The first decisive exercise of discretion by the Minister, affecting the rights ofa person is at the stage of section 4(1). Seeking a writ of certiorari to quasha Section 2 Notice or a writ of prohibition is premature and not ripe forreview.
CA
Ranawickrama v Minister of Agriculture and Lands
and Others (Sriskandarajah, J.)
43
APPLICATION for a writ of certiorari.
Case referred to:
1.D.C. Jayawardena vs. V.P. Silva – 72 NLR 25Manohara R de Silva for petitioner
Sanjay Rajaratnam, Senior State Counsel for 1 -3 RespondentsS.T. Gunawardena for 4th and 5 th respondents.
Cur. adv. vult.
June 30, 2005SRISKANDARAJAH, J.
The Petitioner in this application has sought a writ of certiorari to quashthe order marked P4B made by the 1 st Respondent and writ of prohibitionrestraining and /or prohibiting 1 st to the 5th Respondents from taking anysteps to acquire any part of the Petitioner’s land.
The petitioner is the owner of the property bearing assessment No. 6Peiris Road, Mt. Lavinia. The petitioner and her family are presently livingoverseas in the United Kingdom and the said property was rented out untiltheir return to the Island. The Petitioner’s husband is 61 years of age andintends to settle down in Sri Lanka with the Petitioner in a few monthstime after retirement. In the month of November or December 2000 thePetitioner’s tenant had received from the 3rd Respondent a registeredletter dated 21.11.2000 P4A addressed to the Petitioner. To this letter anotice under Section 2 of the Land Acquisition Act is annexed P4B,informing the Petitioner that the land in the area described in the notice isrequired for a public purpose namely to join the existing road to PeirisRoad through the land which is available in between the buildings bearingNos. 271 and 273 Galle Road. The said land is in extent of 3.56 Perchesa portion of lot 8 depicted in Plan No. 16/95 dated 26.6.1995 marked P5.The Petitioner submits that the whole exercise is to acquire 3.56 Perchesof the Petitioners land and not to widen the existing road. She furthersubmits that by this acquisition the benefit will only accrue to premisesNo. 259/5A and 259/5. The Petitioner submits that these two lands wereoriginally one land owned by the 4th Respondent and these two premiseshave access from the Galle Road. The purpose of the acquisition of thePetitioner’s land is solely to provide the 4th Respondent access to the
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Galle Road through Peiris Road and this acquisition has been initiated bythe 5th Respondent using his political power to the benefit of his father the5th Respondent.
The Petitioner further submits that as evident from the said Section 2notice the Respondent proposes to acquire 3.56 perches of the Petitioner’sland purportedly on the basis to connect the road which runs betweenpremises No. 271 and 273 Galle Road, Mt. Lavinia to Peiris Road, But thePlan P5 filed in this case shows that the existing road is to be widenedfrom Galle Road up to Peiris Road. However the Section 2 notice onlydeals with lot 8 and not lots 1 to 7 depicted in the said plan. This clearlydemonstrates that the whole exercise is to acquire 3.56 perches of thePetitioner’s land and not to widen the existing road. She further submitsthat the Section 2 notice that was published describes with precision theportion of the land the state intends to acquire from the Petitioner’s land.The said order has taken away the duty vested on the Acquiring Officer inascertaining the suitability of the land for the intended public purpose.Section 2 notice is published in an area for the purpose of investigatingand as certaining the suitability of the land required for the public purposeand the notice in question had identified the land in question and thereforethe said notice is of no force or effect in law and hence the notice of thepurported acquisition is unlawful, arbitrary, capricious and mala fide andhad been made without jurisdiction.
The 4th and 5th Respondents in their objections have stated that thesaid acquisition is being done in order to expand the width of the presentfoot path of 3ft. to 10ft. road way for the benefit of the residents of the areaand the members of the public. All the residents of the area whose landsare being affected by the proposed road widening have given their consentto the said widening whereas the Petitioner is the only party who hasobjected to the said road widening and therefore the 3rd Respondent hasbeen forced to take the mandatory step of acquiring a minor portion of thePetitioners land at the request of the local authority. The petition of theresidents of that area P1 and the resolutions passed by the MunicipalCouncil P2, P3 and P4 are annexed to support this contention.
The 1 st to the 3rd Respondents submitted that on an application dated10th March 2000 forwarded by the Ministry of Provincial Councils, theMinistry of Lands initiated action to acquire the land in question. The
CA
Ranawickrama v Minister of Agriculture and Lands
and Others (Sriskandarajah, J.)
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predecessor – in – office to the 1st Respondent being satisfied that thepurpose of this acquisition being a public one gave directions under Section2 of the said Act. The 1 st Respondent submitted that he was also satisfiedthat the purpose of this acquisition was to extend the road from Gall Roadup to Peiris Road, Mount Lavinia. Hence he directed the 3rd Respondentthe acquiring officer to cause a notice in accordance with section 2(2) ofthe Land Acquisition Act. The 3rd Respondent published the said noticeon 22nd November 2000.
The submissions of the 1st to the 3rd Respondents are that the saidland is required for widening of the existing road and to connect the sameto the Peiris Road. Further the residents who live along the said road havegiven their consent for the takeover of portions of their land to this purpose.Therefore there is no necessity to acquire lands to widen the said road.But a portion of the Petitioner’s land was identified for the purpose ofconnecting the said road to the Peiris Road for the benefit of the publicand that is why steps are being taken to acquire that portion of the land.The Petitioner’s contention that the portion of the Petitioner’s land acquiredis for the benefit of the 4th Respondent was denied by the 1st to the 3rdRespondents.
The Petitioner’s submission that the land that has to be acquired for apublic purpose should not be identified with precision at the stage ofpublishing Section 2 notice but it can only be identified after investigatingand ascertaining the suitability of the land required for the public purposecannot be accepted. The Land Manual has laid down the procedure thathas to be followed in case of acquisition of land for public purpose. Clause248 of the Manual provides for the procedure that has to be followed by aGovernment Department or an Authority that needs a land for a publicpurpose. It provides that before a Government Department or an Authoritymake a request for acquisition the officers of the relevant GovernmentDepartment or Authority should conduct a preliminary investigation beforeidentifying a land for that purpose. These officers should compare thelands available in the area and identify a land for the said purpose keepingin line with the provisions laid down in Clause 248(a) (1) to (12). By thisprocess the officers of the relevant Government Department or an Authorityhave to first identify a land for the said public purpose and after identifyingthe land only a request could be made to the Minister of lands for acquisition.The Minister of lands after the receipt of a request issues a direction to the
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acquiring officer of the area in which the said land is situated to publish anotice as provided in Section 2 to investigate whether the land identified issuitable for the said public purpose. Without identifying a land, if Section
notices are issued on several lands in an area for the purpose ofinvestigation it will cause inconvenience to the public and at the sametime the acquiring authority may incur unnecessary liabilities under section
of the said Act.
The Petitioner in this application is seeking to quash the order P4Bmade by the 1 st Respondent. The said order is in fact is not an order buta notice under Section 2 of the Land Acquisition Act. This notice is toinvestigate for selecting a land for public purpose.
In D. C. Jayawardana vs. V.PSilvet'> the court held that certiorari doesnot lie against a person unless he has legal authority to determine aquestion affecting the rights of subjects and, at the same time, has theduty to act judicially when he determines such questions.
Administrative Law by H.W.R.Wade & C.F. Foster, Ninth Edition theauthors in pages 611,612 & 613 states :
“As the law has developed, certiorari and prohibition have becomegeneral remedies which may be granted in respect of any decisiveexercise of discretion by an authority having public functions, individualor collective. The matter in question may be an act rather than a legaldecision or determination, such as the grant or refusal of a license, themaking of a rating list on wrong principles, taking over of a school, thedismissal of employees who have statutory protection, or the issue of asearch warrant. They will lie where there is some preliminary decision,as opposed to a mere recommendation, which is a prescribed step in astatutory process which leads to a decision affecting rights even thoughthe preliminary decision does not immediately affect rights itself’
“If confusion and complication are to be avoided judicial review mustbe accurately forcussed upon the actual existence of power and notupon the mere preliminaries. The House of Lords perhaps appreciatedthis point in refusing to review letters in which a Minister refused toaccept that legislation about unfair dismissal and redundancy pay wassexually discriminate or contrary to European community law. Thatwas a case of prematurety, where the issue was not ripe for review”.
CA
Ranawickrama v Minister of Agriculture and Lands
and Others (Sriskandarajah, J.)
47
In this instant case on an application of the Ministry of ProvincialCouncils dated 10th March 2000 to the Ministry of Lands, the Minister ofLands, the 1 st Respondent decided under section 2 of the Land AcquisitionAct that a land in an area specified in the request is needed for a publicpurpose. A notice was published under section 2(2) of the said Act toinvestigate a land for selecting a land for the said public purpose. In thisinstant the decision of the 1 st Respondent under section 2 is that a land ina specific area is needed for public purpose. To identify a land in that areafor the said public purpose is the function of the requesting Ministry. TheMinister of Lands under section 2 directs the acquiring officer to investigateby causing a notice under section 2 whether the land identified is suitablefor the said public purpose. The direction of the Minister under section 2 orthe act of the acquiring officer under this section is not a decision affectingthe rights of a person but an investigation which leads to a recommendationto the Minister that the said land is either suitable or not suitable for thesaid purpose. The Minister after considering the suitability of the said landas provided in section 4(1) of the said Act makes a preliminary decisionto acquire.
The decision that is challenged in this application is P4B, a noticeunder section 2 of the Land Acquisition Act to investigate a land and thisinvestigation will not necessarily result in a subsequent acquisition of thatland. Therefore, this is not a decisive exercise of discretion by the Minister.The first decisive exercise of discretion by the Minister under the LandAcquisition Act affecting the rights of a person is made at the stage ofsection 4(1) of the said Act. At this stage the person who has an interestin the land could object to the acquisition of the land as provided by thatsection. Therefore, seeking a writ of certiorari to quash a notice undersection 2 of the Land Acquisition Act marked P4B or for a writ of prohibitionat this stage from taking any steps to acquire any part of the Petitioner’sland is premature and not ripe for review. Therefore the court dismissesthis application without costs.
IMAM, J. -1 agree,
Application dismissed.
Ed. Note.: The Supreme Court in SC SP CA 166/05 on 04.07.2006 refusedSpecial Leave to the Supreme Court.