RASHID v. RAJITHA SENARATNE ,MINISTER OF LANDS AND OTHERS

041-SLLR-SLLR-2004-V-1-RASHID-v.-RAJITHA-SENARATNE-MINISTER-OF-LANDS-AND-OTHERS.pdf


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RASHIDv
RAJITHA SENARATNE, MINISTER OF LANDS AND OTHERSSUPREME COURTFERNANDO, J.
YAPA, J. ANDWEERASURIYA, J.
• S.C. APPEAL NO. 25/2003CANO. 1032/2001OCTOBER 7, 2003
Writs of mandamus and certiorari – Order under section 38 Proviso (a) of theLand Acquisition Act to acquire a land urgently for a public purpose – Identityof the land -17 years delay in using the land – Application for mandamus todirect a divesting of the land – Section 39A of the Act.
The petitioner was the owner of 1/16 share of a land and building, No. 2 NewBazaar Street, Nuwara Eliya. Proceedings for acquiring the said land com-menced in 1983. A section 2 notice was published in respect of the land. Thiswas followed by an order for the acquisition of the land under section 38 pro-viso (a)-of the Land Acquisition Act. The notice of the order did not specify thepurpose .of the acquisition; and the acquiring proceedings continued for 17
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years. The land was not used for any purpose although possession of the landwas given to the Urban Development Authority.
A notice under section 7 of the Act was published calling for claims to the land.The appellant claimed title and compensation to the land. As different deci-sions were being made by the acquiring officer, the appellant applied for a writof mandamus to compel finality to the proceedings. That case was settledwhen the Surveyor-General made a plan NU/1839 dated 15.12.97 showing thepremises acquired as 25:25 purchase viz., premises No. 2 aforesaid.
In view of the continuing delay of proceedings the appellant applied inter alia,for a writ of mandamus to direct the Minister to make an order divesting theproperty under section 39A of the Act.
The application satisfied the pre-conditions in section 39A for divesting, but theCourt of Appeal dismissed it stating that it could not be shown that the acqui-sition was ultra vires.
Held:
The Minister never claimed that the land was required for a particu-lar public purpose.
For the issue of mandamus to compel a divesting of the land undersection 39A of the Act, it is unnecessary to establish that the acqui-sition was ultra vires.
The appellant was entitled to a writ of mandamus for a divesting ofNo. 2 New Bazaar Street depicted in the Surveyor-General’s planUN/1839 dated 15.12.97 and a writ of certiorari quashing the initialorder of acquisition.
Cases referred to:
De Silva v Dissanayake – (2003) 1 SRI LR 52
De Silva v Atukoraie – (1993) 1 SRI LR 203 at 293APPEAL from the judgment of the Court of Appeal
M.A. Sumanthiran for appellant
M. Gopallawa , State Counsel for 1 st and 3rd respondents.
Cur.adv.vult
JANUARY 20, 2004
FERNANDO, J.This is an appeal against the order of the Court of Appeal dis-missing the application of the petitioner-appellant (“the Appellant”)
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for Mandamus directing the 1st respondent, the Minister in chargeof the subject of land, to divest land acquired by the State under theLand Acquisition Act ("the Acf).
In November 1974 the appellant became the owner of an undi-vided 1/6th share of a land and building (2 acres'3 roods 28 perch-es in extent), which included the land and building bearing assess-ment No. 2 New Bazaar Street, Nuwara Eliya. Thereafter, accord-ing to him, with the full consent of the other co-owners he went into 10exclusive possession of No.2 New Bazaar Street, which wasapproximately 29.25 perches in extent. In July 1975 the buildingwas requisitioned by the Minister of Internal and External Trade, butin 1977, after litigation, the appellant was restored to possession.
In July 1983 the building was extensively damage in the ethnicriots.
Thereafter a notice dated 28.9.83 under section 2 of the Act waspublished in respect of a land (2 acres 2 roods 21 perches inextent), which admittedly included No. 2 New Bazaar Street. Thatwas followed by an order under the proviso (a) to section 38 which 20was published in the Gazette of 6.3.84. Neither the notice nor theorder specified the public purpose for which the land was required.Possession was taken of several premises including No. 2 NewBazaar Street, and on 31.5.88 possession was handed over to theUrban Development Authority, the 2nd respondent. I will considerlater in this judgment the question whether No. 2 New BazaarStreet thereafter vested in the 2nd respondent.
The acquisition proceedings dragged on. In response to anotice under section 7, the appellant claimed title and compensa-tion in a sum of Rs. 4.6 million. On 3.4.90 the Acquiring Officer 30made his determination under section 10(1)(a), declaring the appel-lant entitled to 29.25 perches out of the land acquired. The appel-lant accepted that determination in regard to title to 29.25 perchesbut requested clarification as to whether the building on No. 2 NewBazaar Street was included. By letter dated 17.4.90 the AcquiringOfficer confirmed that the determination referred to No. 2 NewBazaar Street. While pressi/.g his claim to compensation, theappellant requested that the land acquired from him be demarcat-ed so that it could be valued correctly. .
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There was no objection to that determination, nor any applica-tion for a reference, and as stated in the determination it thereforebecame final. However, by letter dated 12.9.91, another officer pur-ported to cancel that determination and to order a fresh inquiry.After a fruitless exchange of correspondence, the appellant appliedto the Court of Appeal (CA Application No. 399/96) for Mandamusdirecting the acquiring officer to expedite the finalisation of the mat-ter and the payment of compensation. It was specifically averredthat the purported cancellation of the determination made on 3.4.90was illegal and had no force in law. That application was settled on10.12.96. Senior State Counsel who then appeared did not take upthe position that the determination had been cancelled or was notin force, but on the contrary acknowledged that the appellant wasentitled to a 1/6th share. However, she maintained that he was enti-tled to less than 29.25 perches, and consented to the relevant landbeing identified. The land was thereafter surveyed by the Surveyor-General, and was identified and depicted in Plan No. NU/1839dated 15.12.97, its extent being stated to be 0.0634 hectares inextent: i.e. 25.25 perches. Although the appellant now disputes thatextent, he took no action either in the same or in another applica-tion to challenge that finding. For the purpose of this appeal, there-fore, the land and its extent must be taken to be as shown in PlanNo. NU/1839, and the appellant’s title to that land, its identity andits extent cannot now be disputed. The determination dated 3.4.90is also final, subject only to the variation in extent.
Not having received compensation for 17 long years, by letterdated 1.3.2001 the appellant requested the therj Minister of Landsto divest the land under section 39A of the Act, pointing out thatalthough it was purportedly acquired for an urgent public purpose itremained idle and neglected, and that the requisite conditions hadbeen satisfied, namely:
No compensation had been paid;
The land had not been used for a public purpose;
No improvements had been effected; and
The person interested in the land consented in writing totake possession upon divesting.
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The Minister did not deny or dispute the appellant’s contentions,either in a reply or by an affidavit in the subsequent writ application.In particular, he did not claim that the land had been vested in the2nd respondent, or had been used for a public purpose, or wasneeded for a public purpose. Instead, after four months, by a letterdated 4.7.2000 the Director/Lands of the Minister acknowledgedthe appellant’s letter dated 1.3.2000 – both references should havebeen to the year 2001 – stating that “action will be taken to acquirethe land and to pay compensation to you under the of the LandAcquisition Act”. One can only lament such a grievous lack of careand consideration in acquiring a citizen’s land and disposing of hisclaims to compensation or divesting.
The appellant then applied to the Court of Appeal for Mandamusto divest the land, certiorari to quash the Acquiring Officer’s deci-sion of 12.9.91 to cancel the determination dated 3.4.90, andMandamus to direct the Acquiring Officer to declare the appellantentitled to a 1/6th share equivalent to 29.25 perches.
The matter was argued on 24.9.2002, and on 14.11.2002 theCourt of Appeal held that:
“The [Appellants] application is based on the groundthat he had obtained prescriptive right against theother co-owners and therefore this Court should makea declaration that he is entitled to 1 /6th share of the
landClearly this application is misconceived in law,
as this relief can only be granted by a Civil Court ofcompetent jurisdiction.
….the relief sought which was to divest the corpusunder section 39A [of the Act] was on the basis thatthe land was not used for any purpose for the last 18years nor any compensation was paid in relation to thesame. However [the notice under section 2 had beensent and the order under the proviso (a) to section
38]could be challenged onlyon the ground that
there was no urgent public requirement, or on the basisof failure to comply with the rules of natural justice…
….it seems that the [appellant has] indirectly accededto this vesting and the inquiry that was held in terms of
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section 9 and 10(1 )(a)…
…this Court cannot on the basis of the prayers of the[appellant] come to a finding that the aforesaid order…was ultra vires even though no steps have been takenwith regard to the public purpose for which the landwas acquired, even after the lapse of 18 years.
Therefore it must remain as a valid order.
Further the prayer of the [appellant] to quash the order 120of the Acquiring Officer cancelling the decision madeunder section 10(1)(a)… is belated and laches wouldoperate against the invocation of the writ jurisdiction.’’
1 will deal first with the Acquiring Officer’s determination dated3.4.90. The effect of that determination read with the subsequentsettlement in the Court of Appeal (CA Application No. 399/96) wasthat the determination was valid and operative (subject only to thevariation in extent), that the cancellation of that determination wasvoid and inoperative, and that the appellant had title (howsoeveracquired) to the land 25.25 perches in extent depicted in Plan No. 130NU/1839. In those circumstances, the appellant’s prayer forCertiorari to quash the cancellation of that determination wassuperfluous, and the Court of Appeal should have proceeded onthe basis that the determination was valid and operative. No ques-tion of laches arose.
Likewise, whatever the basis on which the appellant claimedtitle, that determination was final and conclusive as to the appel-lant’s 1/16th share, and Mandamus directing the Acquiring Officerto declare the Appellant’s right was superfluous. The Court ofAppeal should have proceeded on the basis that the appellant’s uoshare had been conclusively established.
There remained only the prayer for Mandamus to divest theland. The Court of Appeal erred in holding that the appellant wasnot entitled to a divesting order because the notice under section 2and the order under proviso (a) to section 38 were vaiid and/or hadnot been challenged, and because he had acquiesced in the vest-ing. There is nothing in section 39A of the Act which excludes theright to a divesting order where the original vesting is valid: the enti-tlement to a divesting order springs primarily from the fact that –
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after vesting – the land had not been used for the public purpose 150for which it had been acquired. Thus a claim under section 39Adoes not depend on the validity or invalidity of the original vesting,although a divesting order may perhaps be more readily grantedwhere the original vesting was wrongful (see de Silva vDissanayake(1)).
I turn no to the question whether No. 2 New Bazaar Street didvest in the State and thereafter in the 2nd respondent.
Although the documents produced did not unambiguously showthat No. 2 New Bazaar Street was covered by the section 38 order,the appellant (as well as the other parties) proceeded throughout 160on the basis that the premises had vested in the State, and in thecircumstances I will proceed on the same basis.
In the course of the hearing in this Court, we raised the questionwhether this Court would be precluded from directing the divestingof the premises if in the meantime title to the premises had passedto the 2nd respondent. However, up to that point of time there wasno evidence that title had passed, and the 2nd respondent hadmade no such claim. When judgment was reserved the partieswere given time to file written submissions. The respondents werealso asked to ascertain whether there was documentary proof that 170title had passed. Although the 2nd respondent had not been repre-sented at the hearing, its attorney-at-Law tendered an affidavit fromits Director-General, together with a copy of a vesting certificate(dated 20.12.2000) under section 44 of the Act in favour of the 2ndrespondent, which was subject to the condition that the landshould be used only for the purpose for which it had beenacquired. At no stage previously had it been pleaded that No. 2Bazaar Street had vested in the 2nd respondent. It appears fromthe vesting certificate (read with relevant plan) that the Certificatedid cover No. 2 New Bazaar Street, but restricted the purposes for isowhich the 2nd respondent could use the land.
In order to determine the appellant’s claim to a divesting order, Ihave now to consider whether the land had been used for a publicpurpose and/or whether any improvements had been effected.
The only relevant material produced in the Court of Appeal wasa brochure issued by the 2nd respondent advertising “an uniquely
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designed complex to accommodate both commercial and residen-tial units”, consisting of a three-storey building, with 35 shops (120to 525 square feet in area, at prices running from Rs. 0.7 to Rs. 2.3million) and 16 residential units (200 to 575 square feet in area, atprices ranging from Rs.1.0 to 2.7 million). A senior assistant secre-tary of the Ministry of Urban Development submitted an affidavit,dated 2.11.2001, in which he claimed that the 2nd respondent “hasimplemented a commercial complex within Lawson Street on theland acquired for constituting the subject-matter of this application[s/c] has also been utilized as a public car park; as part of the com-mercial development of the site”. The Court of Appeal itselfobserved that “no steps have been taken with regard to the publicpurpose for which the land was acquired, even after the lapse of 18years”.
In the written submissions filed in this Court (before the oralhearing) by the 1st and 3rd respondents, it was contended that theland had been used for a public car park, as part of the commercialdevelopment of the site and that “the mere fact that the shoppingand residential complex has not been constructed does not in anymanner indicate that the land has not been used for a public pur-pose”. It is thus clear that nothing had been done in respect of thecommercial complex.
As for the “public car park”, it was only their written submissionsfiled in this Court that those respondents tendered the 2nd respon-dent’s “construction plan” and the builder’s final bill dated
(for nearly 5 million rupees). That bill disclosed that thecontract for the “construction of car park and public square atLawson triangle” was awarded on 16.3.2001 – after the appellanthad sought divesting on 1.3.2001. No explanation was forthcomingfor the failure to produce these documents in the Court of Appeal.The construction plans do not show any shopping or residentialunits, or any buildings, but only an open area consisting of a raisedstage, paved areas for pedestrians, and some parking areas.According to those plans, the appellant’s land was intended to beused for the stage, and not for a car park. A “car park and publicsquare” is a purpose very far removed from a multi-storey shop-ping-cum-residential complex. Even if the vesting certificate didvest the land in the 2nd respondent, that was not a permissible use
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of the land taken from the appellant. Construction activities con-nected with a wrongful use of the land cannot be regarded as an“improvement” within the meaning of section 39A.
In support of the contention that the land was required for a pub-lic purpose, albeit different to the original, the respondents referredto my observations in de Silva v Atukorale (2) [1993] 1 Sri LR 283 at 230293:
“….even [if the requisite conditions are satisfied] it' would be legitimate for the Minister to decline to divestif there is some good reason – for instance, that thereis now a new public purpose for which the land isrequired. In such a case, it would be unreasonable todivest the land, and then to proceed to acquire it againfor such new supervening public purpose. Such a pub-lic purpose must be a real and present purpose, not afancied purpose or one which may become a reality 240only in the distant future.”
■ Not only did the vesting certificate excluded the “new” purpose,but the Minister never claimed – either in the course of .the courtproceedings or before – that he (or any of his predecessors) hadever formed the opinion that No. 2 New Bazaar Street was requiredfor a car park and/or public square.
I therefore hold that the acquisition was only for the purpose of theparticular shopping-cum-residential complex proposed by the 2ndrespondent; that no steps whatsoever had been taken to implementthat project; that the mere use of the land as a car park in the mean- 250time cannot in the circumstances be regarded as “use” for that pub-lic purpose; that the use of the land by the 2nd respondent for a “carpark and public square” was not a purpose contemplated or autho-rised by the State; that even if the vesting certificate did pass title tothe 2nd respondent, a “car park and public square” was neverthelessan unauthorised and unlawful purpose, and not for a public purposewithin the meaning of section 39A of th Act; that construction activi-ties for the purpose were not “improvement” within the meaning ofsection 39A; and that in any event construction activities commencedafter divesting had been demanded should not, save in very excep- 260tional circumstances, be treated as improvements.
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I therefore grant and issue an order in the nature of a writ ofMandamus directing the 1st respondent to divest No. 2 BazaarStreet (depicted in Plan No. NU/1839 dated 15.12.97, 0.0634hectares in extent) to the appellant under and in terms of section39A of the Act, and in order to make such order effective and toremove any doubt as to title, I also grant and issue an order in thenature of a writ of Certiorari quashing the vesting certificate dated20.12.2000 in favour of the 2nd respondent, in so far as it relates tothe aforesaid land and premises. This order will not preclude any 270future bona fide acquisition of the aforesaid land’and premises. Theappellant will be entitled to costs in a sum of Rs. 50,000 payable bythe 2nd respondent.
YAPA, J.-I agree
WEERASURIYA, J.-I agree
Appeal allowed.