006-SLLR-SLLR-2003-1-STEPHEN-PERERA-AND-OTHERS-v.-MINISTER-OF-LANDS-IRRIGATION-AND-MAHAWE.pdf
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Sri Lanka Law Reports
[2003] 1 Sri L.R
STEPHEN PERERA AND OTHERSv
MINISTER OF LANDS, IRRIGATION AND MAHAWELIDEVELOPMENT AND ANOTHER
SUPREME COURTFERNANDO, J.EDUSSURIYA, J., ANDWIGNESWARAN, JSC APPEAL No. 18/97CA APPLICATION No. 423/928TH OCTOBER, 2002
Writs-Writs of certiorari and mandamus – Land acquisition – Breach of settle-ment in court to provide alternate land – Power of court to grant compensation.
The appellant applied to the Court of Appeal for writs of certiorari and man-damus to quash an acquisition of 16.85 perches of land in Wellawatte in 1979under an order in terms of the proviso (a) to section 38 of the Land AcquisitionAct and for a direction to make a divesting order in respect of the said land interms of section 39A. The Court of Appeal dismissed the application in 1996.
In the course of the appeal before the Supreme Court the parties entered intotwo settlements, one on 23.5.2000 and another on 11.2.2002 whereby the dis-pute was settled on the basis that the appellants would accept alternate land.The appeal was dismissed subject to the first settlement. That settlement failedas the appellants objected to the suitability of alternate land offered. Hence the2nd settlement. Thereafter on 8.10.2002 the court was informed that alternatelands were no longer available. Consequently the second settlement toofailed. In view of the failure of the settlement the parties requested the court toorder compensation to be paid by the 2nd respondent (National HousingDevelopment Authority), in an amount to be agreed upon by the parties, andfailing agreement in an amount to be determined by the court on an equitablebasis.
Held:
(1) If the circumstances do not warrant contempt proceedings, loss orprejudice caused by the failure of settlement can be averted by anorder for substituted performance or compensation in lieu. The court
Stephen Perera and others v. Minister of Lands, Irrigation and
SC Mahaweii Development and another (Fernando. J.)
can order payment of compensation in lieu of the 2nd respondent’sobligations under the settlement.
(2) Whatever rights the appellants may have had in respect of the landoriginally acquired, the two settlements entered into by them must bethe measure of their present rights.
APPEAL from the judgment of the Court of Appeal
Mohan Peiris for appellants
Shavindra Fernando Senior State Counsel for respondents.
Cur.adv.vult
December, 9, 2002FERNANDO, J.
The three Petitioners-Appellants filed an application in theCourt of Appeal in 1992, in respect of an order made in 1979 underproviso (a) to section 38 of the Land Acquisition Act, praying forCertiorari to quash that order and Mandamus for a divesting orderunder section 39A. That acquisition was of land at Galle Road,Wellawatte, for the National Housing Development Authority, the2nd Respondent. The Court of Appeal dismissed that application in1996, and the Petitioners appealed to this Court with special leave.In the course of the proceedings the 3rd to 5th Respondents weredischarged. It is unnecessary to consider the facts and the legalissues, relating to that application, as the dispute was settled on23.5.2000 on the basis that the Petitioners would accept 40 perch-es out of the. land available at the Maththegoda Housing Scheme,the exact location of which was to be determined by the 2ndRespondent in consultation with the Petitioners. Subject to that set-tlement, the appeal was dismissed.
However the Petitioners considered the land offered by the2nd Respondent to be unsuitable, and it was thereafter agreed on11.2.2002 that the 2nd Respondent would communicate a writtenoffer within two weeks, giving the Petitioners a choice: the 40 perchland at Maththegoda, or two allotments from the Jaya-
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wardenagama Housing Scheme (one being 18.62 perches and theother 13 perches), or, if possible, another allotment from theGajabapura Housing Scheme. It was agreed that the Petitionerswould indicate within two weeks which option they accepted, failingwhich they would be entitled only to the Maththegoda land.
That agreement, too, was not complied with. On 8.10.2002the Court was informed that the aforesaid allotments were nolonger available, and that no purpose would be served by makingfurther attempts to reach a settlement. It is unnecessary to deter-mine who was responsible for the failure to implement the settle-ment, because the parties requested the Court to order compensa-tion to be paid by the 2nd Respondent to the Petitioners, in anamount to be agreed upon by the parties, and failing agreement inan amount to be determined by the Court on an equitable basis.
Where a settlement entered into by the parties cannot beimplemented, one or both parties will suffer loss or prejudice. If thecircumstances do not warrant contempt proceedings, such loss orprejudice can only be averted by an order for either substituted per-formance or compensation in lieu. It is not feasible for this Court toattempt to identify alternative lands which the 2nd Respondentshould offer to the Petitioners, and accordingly the remaining optionis to order equitable compensation. Although the Petitioners’ prayerwas for Certiorari and Mandamus, this Court can order payment ofcompensation in lieu of the 2nd Respondent’s obligations under thesettlement.
In his written submissions, learned Senior State Counselcontended, on behalf of the 2nd Respondent, that 40 perches ofland at Maththegoda are presently worth Rs. 65,200 per perch, andsubmitted that compensation should be assessed on that basis.
Learned Counsel for the Petitioners did not contest that val-uation, but relied on a valuation report valuing the land originallyacquired (16.85 perches in extent) at Rs. 40,000 per perch in 1980,and Rs, 1,000,000 per perch in 2000 (and even now) – on whichbasis he claimed Rs. 16,850,000 as compensation.
Whatever rights the Petitioners may have had in respect of theland originally acquired (even assuming that there were no factorswhich would have depreciated its value) were superseded by the
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Stephen Perera and others v. Minister of Lands, Irrigation and
Mahaweli Development and another (Fernando. J.)
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terms of the settlement entered into on 23.5.2000, and that togetherwith the subsequent settlement must be the measure of their rightsnow.
Having regard to the value (as assessed by the 2ndRespondent) of the land which the Petitioners have been deprivedof, and the circumstances of this case, including the delay, expenseand inconvenience to the Petitioners, I consider that a sum of Rs.3,300,000 would be equitable compensation, and I direct the 2ndRespondent to pay that sum to the Petitioners in equal shares, onor before 31.1.2003, together with interest calculated at the rate of15% p.a. in the event of any delay in payment.
EDUSSURIYA, J.-I agree.
WIGNESWARAN, J. -I agree.
Compensation ordered in lieuof settlement.