QAJayawardane v Priyashanie187
(Eric Basnayake, J.)
SILVA AND OTHERSv
MINISTER OF LANDS AND LAND DEVELOPMENT ANDMINOR EXPORTS AND OTHERSCOURT OF APPEALSRISKANDARAJAH, J.
ABEYRATNE, J.
CA 703/2001MAY 21, 2008
Writ of Mandamus – Land Acquisition Act – Section 38 (a), Section 39, Section50 – Urban Development Projects (Special Provisions) Act 2 of 1980 – Section4 – No steps taken for a long period of time – Jurisdiction of the Court ofAppeal to entertain an application fora Writ of Mandamus – Public purpose notin existence – Could the land be divested?
The application seeking to quash the Section 38 (a) notice in the Court ofAppeal was dismissed on the ground that, His Excellency the President hadmade order in terms of Section 2 UDA (Special Provisions) Law. The SupremeCourt in appeal held that, when no steps have been taken for a long time toimplement a proposed project upon a land in respect of which a Section 2order has been made, an application for mandamus in respect of an omissionto divest the acquired land does not fall under Section 4 of the UDA (SpecialProvisions) Act. The Court of Appeal has jurisdiction to inquire into same.
It was contended by the petitioner that the acquisition was politicallymotivated, and there is no public purpose in existence. The possession hasalways been with the petitioners.
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Held:
The Section 38 (a) notice has been published in 1992 and up to nowno action has been taken to utilize the land in question. There are nodevelopment plans to utilize the said land for the just requirement ofthe general welfare of the people. It appears that the purpose forwhich the said land was acquired is now evaporated.
The possession of the land has not been taken over by the relevantauthorities therefore the restriction of the title could not be made bydivesting the said land under Section 39A but it has to be made onlyby a revocation order under Section 39 (1).
When the element of public benefit has faded away at some stage ofthe acquisition proceedings, the policy of the Act was that, theproceedings should terminate and the title of the former ownerrestored – Section 39 – Section 50.
APPLICATION for Writ of mandamus.
Case referred to:
D Silva v Atukorale, Minister of Lands, Irrigation and Mahaweli Developmentand another 1993 1 Sri LR 283.
Faiz Musthapha PC with Thushani Machado for petitioner.
A. Gnanathasan ASG for 1st, 2nd and 3rd respondents.
Gamini Perera with Wijitha Salpitikorale and A.N. Amarasiri for 4threspondent.
June 25, 2008SRISKANDARAJAH, J.
The Petitioner submitted that the Petitioners became owner of theland called "Palliya Bandarawatta" alias "Kammalawatta" situated atAmbalangoda in the District of Galle containing R1-P1.94 after thedemise of their father in the year 1959. The 1st petitioner is also inoccupation of the said land. There were several shops on the saidland which had been tenanted to various persons and the mainsource of livelihood of the petitioners was the income that theyreceived from the said land by way of rent from the tenants.
The petitioners submitted that the 4th respondent Councilproposed to acquire the petitioners' land under a purportedDevelopment Plan for the Ambalangoda town. In response to
q/ Silva and others v Minister of Lands and Land Development and-j gg
Minor Exports and others (Sriskandarajah, J.)
several appeals by the 1 st petitioner the Additional Secretary to theMinistry of Local Government, Housing and Construction by hisletter of 05.03.1986 informed the 1st petitioner that the UrbanDevelopment Authority had not finalized the Development Plan andthat no steps had been taken to acquire the land. The petitioners inorder to develop the said land submitted a plan for the constructionof a shopping complex. On a request by the Deputy DirectorPlanning to submit an amended plan an amended building planwas submitted to the then Chairman of the 4th respondent Council.The Chairman of the Ambalangoda Urban Council by his letter of10.06.1988 approved the said building plan-and requested tocommence work within 30 days of the receipt of the said letter. Dueto various reasons the construction work was not commenced andthe application of the petitioners for the extension of the approval ofthe building plan beyond 08.06.1990 was not granted.
It is common ground that a section 2 notice under the LandAcquisition Act was published on 08.10.1991 and the Minister by anorder made under proviso (a) to section 38 of the said Actpublished in the gazette bearing No. 7132 dated 04.05.1992directed the Assistant Government Agent to take immediatepossession of the said land.
The petitioners thereafter filed an application No. 504/92 in theCourt of Appeal seeking a writ of certiorari quashing the said order.This application was dismissed on the ground that his Excellencythe President made order in terms of section 2 of the UrbanDevelopment Project (Special Provisions) Act No. 2 of 1980 whichwas published in Gazette No. 721/2 dated 29.06.92 and thereforethe Court has no jurisdiction to hear and determine the saidApplication.
The present application was filed by the petitioner on17.05.2001 invoking the jurisdiction of this Court to issue a writ ofMandamus directing the 1st respondent to divest the land depictedin plan bearing No. 22 dated 13.07.1986 referred to in the order ofvesting. When the present application was taken up for hearing the1st and 2nd respondents raised preliminary objection with regard tothe maintainability of this application. Shiranee Tilakawardana, J. inthe Order on the preliminary objection upheld the preliminaryobjection and held that in terms of section 4 and 5 of the Urban
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Development Projects (Special Provisions) Act No. 2 of 1980, thisCourt has no jurisdiction to hear and determine this matter anddismissed the application.
The above order was challenged in the Supreme Court in SCAppeal No. 34/2002 and the Supreme Court held that, where nosteps have been taken for a long period of time, to implement aproposed project upon land in respect of which a section 2 Orderhas been made an application for mandamus in respect of anomission to divest the acquired land does not fall within the scopeof section 4 of the Urban Development Projects (SpecialProvisions) Act, and must be filed in the Court of Appeal. TheSupreme Court allowed the appeal and directed this Court toentertain, hear and determine the application on merits.
Now I will proceed to consider this application on its merits.
The said land was acquired by the Minister of Lands upon therequest of the Urban Development Authority and the Urban CouncilAmbalangoda for the purpose of Urban Development. The Ministerby an order under section 38 proviso (a) of the Land Acquisition Actdated 04.05.1992 acquired the said land for an urgent publicpurpose. His Excellency the President made order in terms ofsection 2 of the Urban Development Projects (Special Provisions)Act, No. 2 of 1980 in relation to the said land and it was publishedin Gazette No. 721/2 dated 29.06.92. The Divisional SecretaryAmbalangoda the 2nd respondent submitted that there was achange in the Government in 1994 and hence there was some timetaken in receiving instruction in proceeding with the saidacquisition. The section 5 notice was published on 03.10.1996. In1999 when the petitioner was requested to hand over possessionthey refused to do so and the possession of the land was not taken.The petitioners are in possession of the said land even now.
The petitioners contended that the acquisition was politicallymotivated. The 3rd respondent submitted that the land in questionwas identified for urban development in 1991 and the request wasmade to acquire the land through the Urban Development Authority.A notice has been published by the President in terms of section 2of the Urban Developments (Special Provisions) Act, No. 2 of 1980that the said land was urgently required for the purpose of carrying
q/Silva and others v Minister of Lands and Land Development and – 91
Minor Exports and others (Sriskandarajah, J.)
out an urban development project. But it is an admitted fact that noaction had been taken to utilize the said land until now. The 2ndrespondent's position is that the land was acquired on the requestof the 3rd respondent but the 3rd respondent Council has notsubmitted any development plan in relation to the said land thatwas acquired. Even at present the 3rd respondent does not haveany development plan to utilize the said land for the justrequirement of the general welfare of the people.
The question that arises is; in these circumstances is itjustifiable for the respondents to have this land without any plan toutilize the same for any public purpose. It appears that the purposefor which the said land was acquired by the 3rd respondent is nowevaporated. The 3rd respondent has not shown to Court that theyhave any public purpose for which this land could be utilized. As thepossession of the said land has not been taken over and the publicpurpose for which the said land was acquired is not in existence,the Minister of land has authority under section 39(1) of the LandAcquisition Act by order published in the gazette to revoke thevesting order of the said land made under section 38 of the saidAct.
When a land has been acquired without adequate justificationand if immediate possession is taken over by the State the aboveprovisions will not apply and therefore to fill this lacuna in the lawthe Land Acquisition Act was amended and section 39A wasintroduced to divest a land acquired if certain conditions stipulatedin the said section are fulfilled. Even though the petitioners havesought a divesting of their land in this application, in effect thepetitioners are seeking the restoration of their title. It is commonground that the possession of the land has not been taken over bythe relevant authorities therefore the restoration of title could not bemade by divesting the said land under section 39A but it has to bemade only by a revocation order under section 39(1).
In De Silva v Atukorale, Minister of Lands, Irrigation andMahaweli Development and another, Fernando, J. held:
"The purpose of the Land Acquisition Act was to enable theState to take private land, in the exercise of its right of eminentdomain, to be used for a public purpose, for the common
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good; not to enable the State or State functionaries to takeover private land for personal benefit or private revenge.Where the element of public benefit faded away at some stageof the acquisition proceedings, the policy of the Act was thatthe proceedings should terminate and the title of the formerowner restored; section 39 and section 50."
The amending Act has introduced section 39A and has givendiscretion to the Minister to make an order to divest a land ifpossession of the land had been taken over by the State. It hasbeen held that when the conditions in that section are fulfilled eventhough the Minister has discretion to divest he should exercise hisdiscretion fairly and according to law divest the land and amandamus will lie to compel the Minister to make such an order;De Silva v Atukorale, Minister of Lands, Irrigation and MahaweliDevelopment and another (supra).
Similarly when the public purpose is not in existence and theauthority which had sought the acquisition has no other identifiedpublic purpose for which it could be used it is the duty of theMinister to revoke the vesting order if the possession of the landhas not been taken over by the State. Hence this Court issues awrit of mandamus directing the 1st respondent and his successorsin office to revoke the vesting order made and published in thegazette bearing No. 713/2 dated 04.05.1992. Th application for awrit of mandamus is allowed without costs.
UPALY ABEYRATHNE, J. -I agree.
Application allowed.
