030-SLLR-SLLR-1999-V-1-SINHARAJA-PLANTATIONS-ORGANIC-PVT-LTD.-AND-OTHERS-v.-THE-LAND-REFORM-COM.pdf
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Sinharaja Plantations Organic (Pvt) Ltd. and Others v.
The Land Reform Commission and Others
247
SINHARAJA PLANTATIONS ORGANIC (PVT) LTD.
AND OTHERS
v.THE LAND REFORM COMMISSION AND OTHERS
SUPREME COURTDHEERARATNE, J.,
WADUGODAPITIYA, J. ANDWIJETUNGA, J.
S.C. APPLICATION NO. (FR) 422/97NOVEMBER 16, 1998DECEMBER 18, 1998
Fundamental rights – Land Reform Law – Section 22 (4) – Alienation of landsvested in the Land Reform Commission – Abdication of statutory duties of theCommission – Article 12 (1) of the Constitution.
The petitioners took steps with a view to the 3rd petitioner-company commencinga project for production of organically grown tea for export to countries constitutingthe European Economic Community (EEC). The 2nd petitioner who was theManaging Director of both the 1st and 3rd petitioner-companies identified a landwhich had vested in the Land Reform Commission (LRC) as being most suitablefor the purpose. After all the relevant governmental and other authorities approvedthe project the 5th respondent (Minister in charge of the subject of PlantationIndustries) granted approval for the release of the land. Thereafter the petitionerscomplied with certain other requirements; and on 26. 11. 1996 the 4th respondent(the Director, Sabaragamuwa Province LRC) informed the 2nd petitioner in writingthat possession of the land was granted. On the same day physical possessionof the estate was handed over to the officers of the 1st petitioner-company (theBOI approved company for the project). However on 27. 12. 1996 the 2ndrespondent (Chairman, Land Reform Commission) informed the 3rd petitioner overthe telephone that the 7th respondent (Member of Parliament) proposed to alienatethe land for another purpose. Therefore he could not proceed with the alienationof the estate.
Held:
A Member of Parliament does not fall into the statutory scheme of theLand Reform Law, in particular having regard to the provisions of section24 (4) of the law as amended which permit alienation of agricultural landwith the approval of the Minister. The Land Reform Commission abdicatedits duties at the behest of the 7th respondent Member of Parliament. The
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Commission thereby violated the fundamental rights of the petitionersbecause Article 12 prohibits arbitrary capricious and/or discriminatory action.
Case referred to:
1. Kuruppuge Don Somapala Gunarathne and 3 others v. Ceylon PetroleumCorporation and 11 others – 1996 1 SLR 315.
APPLICATION for relief from infringement of Fundamental rights.
Faiz Musthapha, PC with A. Panditharatne and Ms. F. Markar for petitioners.
L V. P. Wetthasinghe with Palitha Mathew for 1st respondent.
D. M. A. Dissanayake with Mahinda Nanayakkara for 3rd and 4th respondents.
Ms. I. Demuni de Silva SC for 5th, 6th, 8th and 9th respondents.
Cur. adv. vult.
January 21, 1999.
DHEERARATNE, J.
At the commencement of this hearing, Mr. Wetthasinghe informed usthat the 2nd respondent was no more the Chairman of the Land ReformCommission (LRC) and that he was not appearing for him. The firstpetitioner is a Board of Investment (BOI) approved private limitedliability company, incorporated in terms of the Company Laws of SriLanka. The second petitioner is the managing director of both the 1stpetitioner-company and the 3rd petitioner-company. The 3rd petitioner-company with a view to commencing a project for production oforganically grown tea for the purpose of export to countries constitutingthe European Economic Committee (EEC) effected a feasibility studyin order to identify a land suitable for cultivation of organic tea. The2nd petitioner having inspected several lands selected the land knownas Weddagalawatta alias Weddagala Estate in extent A.102 R.O P.02as the most suitable for the purpose.
Upon further inquiry the 2nd petitioner became aware that theWeddagala Estate was a land vested in the 1st respondent LRC.
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On 4. 6. 96 the 2nd petitioner met the 2nd respondent Chairman LRCand presented a detailed project proposal to him. Thereafter on5. 6. 96 the 2nd petitioner submitted to the 2nd respondent a formalrequest for the allocation of the Weddagala estate. On 12. 6. 96 the2nd petitioner also addressed a letter to the 7th respondent MP forthe area informing her of the proposed project. The 2nd petitioneraddressed a further letter on 19. 6. 96 to the 5th respondent theMinister of Plantation Industries, under whom the subject of LandReform fell, informing him of the project and – requesting him torelease the land vested with the LRC.
On 19. 6. 96 and 20. 6. 96 the 2nd petitioner met the 7threspondent. On a copy of the letter dated 19. 6. 96 which wasaddressed by the 2nd petitioner to the 5th respondent, the 7threspondent made a minute directing the Chairman LRC to "takenecessary action". In pursuance of the 2nd petitioner's letter addressedto the 5th respondent Minister, the 8th respondent Assistant Secretary(Land), addressed a letter dated 28. 6. 96 to the 2nd respondentrequesting him to submit a report on the availability of the Weddagalaestate and the possibility of alienating that land to the 2nd petitionerfor the purpose of the organic tea project. The 8th respondent alsoaddressed 2 further letters dated 28. 6. 96 to the Conservator ofForests and the Chairman of the Sri Lanka Tea Board, requestingthem to furnish reports on the organic tea project.
Meanwhile the 2nd petitioner acting on behalf of the 3rd petitioner-company submitted a project proposal and a formal application to theBO! on 10. 7. 96, seeking the BOI approval for the organic tea project.The 2nd petitioner also informed the Export Development Board (EDB)regarding his project and the EDB on 26. 6. 96, wrote to the 2ndrespondent, signifying its approval of the project and requesting the2nd respondent to assist in releasing the said land to the 3rd petitioner-company. The BOI by letter dated 11. 7. 96 addressed to the 2ndrespondent inquired whether Weddagala estate could be released forthe organic tea project. The BOI also wrote to the Sri Lanka TeaBoard to inform the BOI whether the Tea Board had any objectionsto granting approval for the project. The Tea Board replied that it hasno objection for the approval being granted by the BOI.
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Meanwhile in response to a letter addressed by the BOI dated11. 7. 96 to the Ministry of Plantation Industries, the Senior AssistantSecretary by letter dated 22. 7. 96 informed the BOI that the LRChad informed the Ministry that Weddagala estate could be releasedand further requesting the BOI to inform the Ministry whether theproject has been approved in order to obtain the 5th respondentMinister's-approval to release the land. By letter dated 24. 7. 96 theBOI informed the Ministry that the organic tea project has beenapproved in principle. The BOI by its letter dated 25. 7. 96 alsoinformed the 2nd petitioner that the project has been approved subjectto the conditions stipulated in that letter. One of the conditions stipu-lated was that the 2nd petitioner should incorporate a company inSri Lanka for the purpose of pursuing the proposed project. In compliancewith this condition, on 13. 6. 96 the 1st petitioner-company wasincorporated. On 25. 7. 96 Ministry addressed a letter to the 2ndrespondent stating that the project has been approved by the BOIand further intimating that the Ministry has sought reports from theSri Lanka Tea Board and the Conservator of Forests and that theapproval of the Tea Board has been already obtained. That letterfurther stated that when the report of the Conservator of Forestswas received, action would be taken to obtain the approval of theMinister for the release of the land. On 31. 7. 96 the Conservatorof Forests informed the Ministry that the Forest Department had noobjection for the release of the Weddagala estate. Finally the 6threspondent by letter dated 16. 8. 96 informed the 2nd respondentthat "the Hon. Minister has granted his approval to release the requestedland for the said project". In view of the Minister's approval grantedin terms of the Land Reform Law, the 2nd respondent was alsodirected to make arrangements for release of the land to the 3rdpetitioner in terms of the conditions set out in that letter (P24).
By letter dated 26. 8. 96 the 3rd respondent informed the petitionerthat approval was granted for a private survey of the Weddagalaestate. He was further instructed that once the survey was carriedout he would have to obtain a certificate from the 4th respondent tothe effect that the boundaries and other particulars furnished in thesurvey plan were accurate. On 30. 8. 96 the BOI officers visited theland to ascertain the suitability of that land for the proposed project.In compliance with one of the conditions stipulated by the BOI in its
SCSinharaja Plantations Organic (Pvt) Ltd. and Others v.
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letter dated 25. 7. 96 regarding obtaining clearance from the CentralEnvironmental Authority (CEA), the 2nd petitioner furnished on23. 9. 96 the relevant information to the CEA. The officers of theCEA visited Weddagala estate and thereafter by letter dated16. 10. 96 CEA informed the 2nd petitioner that clearance would begranted on implementation of the terms and conditions specified inthat latter.
A private survey of the land was carried out and a report of thesurveyor was forwarded to the 1st respondent together with acertificate from the 4th respondent. By letter dated 21. 10. 96addressed to 2nd petitioner by the BOI, he was informed that he waspermitted to locate the project in the Weddagala estate subject tocertain conditions. On 24. 10. 96 the petitioner made an applicationto the Kalawana Pradeshiya Sabha seeking registration and clearancefor his project from that local authority. This approval and clearancewere granted by letter dated 25. 10. 96 by the chairman of that localauthority.
The 2nd petitioner received a letter dated 26. 11. 96 from the 4threspondent informing him that possession of Weddagala estate wasthereby granted for the proposed project and on the same day physicalpossession of the estate was handed over to officers of the 1stpetitioner-company.
However on 27. 12. 96, according to the 3rd petitioner, when hetelephoned the 2nd respondent he was informed that the 7threspondent proposed to alienate the land in question for anotherpurpose, therefore he could not proceed to alienate the Weddagalaestate to the 1st petitioner-company. Certain decisions appear to havebeen taken by a Ministerial subcommittee in consequence of the volte-face of the 7th respondent MP. We are not concerned about thatmatter as the MP does not fall into the statutory scheme of the LandReform Law. The letter P24 is referable to subsection 22 (4) of theLand Reform Law brought into force by the Land Reform (SpecialProvisions) Act No. 39 of 1981 which reads :
'It shall be lawful for the Commission to alienate by way of lease
under paragraph (b) or paragraph (bb) of subsection (1), Agricultural
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Land to any person in excess of fifty acres for such purposes as
may be approved by the Minister."
The complaint of the 1st and 2nd petitioners is that their funda-mental right to equality and equal protection of the law as guaranteedto them by Article 12 (1) of the Constitution has been infringed by1st to 3rd respondents by their failure to alienate the land as approvedby the Minister. Ms. Demuni de Silva submitted that the Minister'sdetermination made under subsection 22 (4) stands and that it hasnot been revoked. Ms. Demuni de Silva and Mr. Wetthasinghe bothrightly conceded that when the Minister gives a direction to the LRCin respect of a decision made by him under subsection 22 (4), theLRC has no discretion to refuse granting an alienation. The LRCappears to have abdicated its statutory duties at the behest of the7th respondent MP.
In these circumstances we hold that the fundamental rights of the2nd and 3rd petitioners are violated because Article 12 prohibitsarbitrary, capricious and/or discriminatory action, (see Kuruppuge DonSomapala Gunaratne and 3 others v. Ceylon Petroleum Corporationand 11 otherd' In view of this finding we make no decision as towhether the fundamental rights of equality were also violated on theground of "legitimate expectation".
We direct the 1 st respondent LRC (which will include its Chairmanand Directors) to alienate the land in question to the 3rd petitioner(or the 1st petitioner as suggested by the BOI) on the conditionsstipulated by the 5th respondent Minister in the letter dated 16. 8.96 (P24), within 6 months of the date of this order. The parties willbear their own costs. We further direct the Registrar of this court tolist this case with notice to the petitioners and the LRC, after sixmonths of the date of this judgment, to ascertain whether the orderof this court has been complied with.
WADUGODAPITIYA, J. – I agree.
WIJETUNGA, J. – I agree.
Relief granted.
ERRATA
B. Sirisena Cooray v. Tissa Dias Bandaranayakeand Two Others1999 – 1 SLRAt page 3 – line 24
"Cold Neutrality of an impractical judge" should read"Cold neutrality of an impartial judge"
At page 15 – line 17
"what attracts judicial review" should read as“What attracts judicial review?"