SOMARATNE v. MINISTER OF AGRICULTURE, LANDS AND FORESTRY AND OTHERS

048-SLLR-SLLR-2002-3-SOMARATNE-v.-MINISTER-OF-AGRICULTURE-LANDS-AND-FORESTRY-AND-OTHERS.pdf


CA
Somaratne v. Minister of Agriculture, Lands and
Forestry and Others
353
SOMARATNE
v.MINISTER OF AGRICULTURE, LANDS ANDFORESTRY AND OTHERS
COURT OF APPEALJAYASINGHE, J. (P/CA) ANDEDIRISURIYA, J.
MARCH 26,
MAY 06, ANDJUNE 25, 2002
Constitution – 13th Amendment – Land Acquisition Act, sections 2, 4, 5 (1), 6and 44 – Provincial Councils (Consequential Provision) Act, No. 12 of 1989section 2 – Acquisition of land – Appropriate Minister – Provincial Council list.
The Divisional Secretary on the direction of the 1st respondent published asection 2 notice. Thereafter, by a section 4 notice objections were called in writingto be sent to Secretary, Ministry of Education. Thereafter, a section 5 notice waspublished. It was contended that in terms of the 13th Amendment, the subjectof Education has been devolved on the Provincial Councils and that accordingto Item 20 of Appendix ill, 9th Schedule, construction and maintenance of educationalbuildings and playgrounds are matters devolved on the Provincial Councils.
The school concerned was not a National School or a Special School, to come.within the Ministry of Education in the Central Government. In terms of section2 of Act, No. 12 of 1989 the appropriate Secretary should have been the Secretaryof the Provincial Ministry, who was in charge of the subject of Education andnot the Secretary to the Ministry of Education in the Centre.
Held :
The subject of acquisition is contained in the concurrent list. Decision toissue notices in terms of sections 2 (1), 4 (1) and 5 (1) of the LandAcquisition Act is made by the Minister of Lands at the Centre.
There is a duty cast on the appropriate Minister to make a recommendationto the Minister of Lands whether the land should or should not be acquired.
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Sri Lanka Law Reports
[2002] 3 Sri L.R.
A Provincial Minister cannot make that recommendation since acquisitionof land is not a subject in the Provincial Council list.
The requirements of the school is a matter entirely left to the discretionof the school.
Land acquired in terms of the Land Acquisition Act becomes property ofthe State. It is subsequently vested in a body such as the Provincial Council.
A decision or a recommendation concerning the acquisition of lands shouldbe taken by the Central Government and not by the Provincial Council.
APPLICATION for a writ of certiorari.
Chula Bandara for petitioner.
M. R. Ameen, State Counsel for respondents.
Cur. adv. vult.
January 16, 2003
JAYASINGHE, J. (P/CA)
The 3rd respondent on the directions of the 1st respondent published 01a notice P2 dated 15. 06. 1995 under section 2 of the Land AcquisitionAct informing the petitioner and two others that the land referred toin the said section 2 notice was required for a public purpose. On13. 05. 1996 the 3rd respondent issued a notice P4 under section4 of the Land Acquisition Act calling for objections if any in writingto be sent to the Secretary to the Ministry of Education and HigherEducation with regard to the proposed land acquisition. On 09. 12.
the petitioner made representation accordingly. On 20. 08.
the 1st respondent caused a notice P6 to be published in the 10Gazette in terms of section 5 of the Land Acquisition Act that landmorefiilly described as Lot D was required for a public purpose and
CA
Somaratne v. Minister of Agriculture, Lands and
Forestry and Others (Jayasinghe, J.)
355
will be acquired accordingly. The counsel for the petitioner contendedthat in terms of the 13th Amendment to the Constitution the subjectof Education has been devolved on the Provincial Councils and thataccording to item 20 of Appendix III of the said 9th Schedule"Construction and Maintenance of Educational Buildings, Libraries andPlaygrounds" are matters devolved on the Provincial Councils.
The learned counsel submitted that R/Godakumbura MiyanavitaMaha Vidyalaya is situated in the Ratnapura District of theSabaragamuwa Province. Hence, the construction and maintenanceof the playgrounds have been devolved on the Sabaragamuwa ProvincialCouncil; that the said school is not a national or a special schoolfor service personnel to come within the administrative ambit of theMinistry of Education and Higher Education of the Central Government.
Section 4 (4) of the Land Acquisition Act provides that –
"Where a notice relating to the intended acquisition of a landor of a servitude over a land is exhibited under subsection (1) andobjections to such acquisition are made to the appropriate Secretaryby any of the persons interested in the land within the time allowedtherefor by the notice, the appropriate Secretary shall consider suchobjections or direct an officer to consider such objections on hisbehalf and to make recommendations to him. When such objectionsare considered every objector shall be given an opportunity of beingheard in, support thereof. After the consideration of the objectionsthe appropriate Secretary shall make his recommendations on theobjections to the Minister in charge of the Ministry specified in thenotice (hereafter in this section referred to as the "appropriateMinister"), and such Minister shall, after considering suchrecommendations, make his own recommendations on the objectionsto the Minister".
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The learned counsel submitted that in terms of the section 4 noticethe objection to the proposed acquisition should have been made tothe Secretary to the Ministry of Education and Higher Education atthe Centre. However, that in terms of section 2 of Provincial Councils(Consequential Provision) Act, No. 12 of 1989 the appropriate Secretarynamed in the notice should have been the Secretary of the ProvincialMinistry which was in charge of the subject of education in theSabaragamuwa Provincial Council and not the Secretary to the Ministryof Education and Higher Education at the Centre.50
Similarly, the appropriate Minister should have been the Ministerin the Provincial Council and not the Minister at the Centre. Therefore,the failure to obtain the recommendation of the Provincial Minister ofEducation in terms of section 4 (4) of the Land Acquisition Act rendersthe decision made by the Minister of Lands to acquire the petitioner'sland in terms of section 5 (1) ultra vires.
The learned State Counsel submitted that although the subject ofconstruction and maintenance of playgrounds is contained in theProvincial Council list, the subject of acquisition of land is containedin the Concurrent List. The learned State Counsel submitted that »"Acquisition and Requisitioning of Property" is contained in paragraph6 of List III i.e. Concurrent List. That the decision to issue the noticesin terms of inter alia sections 2 (1), 4 (1) and 5 (1) of the LandAcquisition Act are made by the Minister of Lands at the Centre interms of item 6 of List III.
The learned State Counsel then submitted that in terms of the LandAcquisition Act a duty is cast on the "appropriate Minister” to makea recommendation to the Minister of Lands whether the land shouldor should not be acquired. A Provincial Minister cannot make thatrecommendation since the acquistion of land is not a subject contained 70in the 'Provincial Council List'.
CA
Somaratne v. Minister of Agriculture, Lands and
Forestry and Others (Jayasinghe, J.)
357
The argument of the counsel for the petitioner that recommendationsunder sections 4 (4) and 4 (5) of the Land Acquisition Act read withsection 2 of the Provincial Councils (Consequential Provisions) Act,No. 12 of 1989 has not been considered by the 1st respondent priorto the publication of P6 and therefore ultra vires cannot succeed.
Mr. Chula Bandara also submitted that the acquisition of Lot Ddoes not meet the requirement of the needs at the school becausethe request of the Principal of the school was for an extent
of 11/ acres; that after inquiry into the question made in terms of
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section 4, the Inquiring Officer has recommended the acquisition of 80Lot D only leaving Lots A, B and C. Counsel submitted that theacquisition is bad as the Inquiring Officer has failed to consider themain objective of the proposed acquisition. However, the requirementsof the school is a matter entirely left to the discretion of the schooland if the acquisition of Lot D meets the requirements of the school,the objections by the petitioner on that ground is not valid.
The learned State Counsel submitted while the Provincial Councilcould decide as to whether it should construct a playground thedecision whether a land should be acquired for the construction ofsuch playground is for the Central Government. This position is sosupported by the fact that the land acquired in terms of the LandAcquisition Act in the first instance becomes the property of the theGovernment of Sri Lanka. It is subsequently vested in a body suchas the Provincial Council in terms of section 44 (4) of the LandAcquisition Act; that in terms of first paragraph in Appendix II titled"Land Settlement" State land continues to vest in the CentralGovernment. Consequently, a decision or a recommendation concerningthe acquisition of lands should be taken by the Central Governmentand not by the Provincial Council.
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Sri Lanka Law Reports
[2002] 3 Sri L.R.
The petitioner in his affidavit filed in this proceedings had allegedthat the 1st respondent has been influenced by the local politiciansupporting the People's Alliance to take over his property and thatthe proposed acquisition is actuated by political considerations; thatthere is alternate land available on the western boundary suitable tobe developed as a playground. I find that the present administrationis yet pursuing the acquisition and therefore the allegation that theacquisition is motivated by extraneous considerations is not valid. Ihave considered the submissions of counsel. I am of the view thatthis is not a fit case to grant the petitioner relief. Application forcertiorari is accordingly dismissed. I make no order for costs.
EDIRISURIYA, J. – I agree.
Application dismissed.
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