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public officer or other person or persons as defined in LawNo. 7 of 1978, as amended by the Special PresidentialCommissions of Inquiry (Special Provisions) Act No. 4 of1978, and Act No. 38 of 1986, or other person or persons,and the extent to which such Prime Minister, Minister or otherpublic officer, or person or persons is or are responsible forsuch non-compliance or contravention;
And to make recommendations with reference to any of the mattersthat have been inquired into under the terms of this warrant."[emphasis added]
The Warrant required the Commissioners to transmit to thePresident within six months reports or interim reports setting out thefindings of their inquiries and their recommendations.
It is necessary to reproduce to some parts of that Schedule;
" 1. Air Lanka Ltd.Purchase of Airbus Aircraft.
Hotel Developers (Lanka) Ltd. Matters relating to the Hilton
Hotel Project and acts ofcommission and omission by.
Urban Development Authority
Sri Lanka Ports Authority
Ceylon Electricity Board
Major sales and leases ofproperty.
Acquisition of lands, their valu-ations . . . and transactions often million rupees and over.
Transactions of ten millionrupees and over . . .
Land Refrom Commission Sales and leases of land.
Government Contracts andtenders of ten million rupeesand over, and sales and
leases of land by the government." [emphasis added]
SC Wijayapala Mendis v. P. R. P. Perera and Others (Fernando, J.) 117
The Commission held several ex parte “preliminary hearings"commencing on 11.9.95, and then issued a Notice dated 13.11.95under section 9 of the Law requiring the petitioner to show causewhy he should not be found guilty of misuse or abuse of power. Afterinquiry, an interim report (the "interim report”) dated 2.3.97 wassubmitted to the President signed only by the 1st and 2nd respondents,and not by the 3rd respondent although he continued to be a memberof the Commission. There was then published in the Gazette of 26.5.97a brief summary of that report of which the following is relevant tothis application:
"The following contents of the report dated 2nd March, 1997,of the Special Presidential Commission of inquiry, 1995, appointedto inquire into alleged malpractices … are published as directedby Her Excellency the President in accordance with section 9 ofthe [Law] . . .
Charges :
The respondent in this case Tenahandi Wijayapala Mendis wasrequired to show cause why he should not be found guilty of misuseor abuse of power, in that "he did whilst holding office as a CabinetMinister of the Government of Sri Lanka between the period1.10.1980 and 26.2.1990 directly or indirectly induce Hon. E. L.Senanayake, the then Minister of Agricultural Development andResearch, Hon. S. Thondaman, the then Minister of Rural IndustrialDevelopment, Mr. K. D. M. Chandra Bandara, Member of Parlia-ment, officers of the said Ministries, officers of the Land ReformCommission and the National Livestock Development Board, topermit him to surrender an extent of about 76 acres of land calledPanikankulam situated in the Anuradhapura District belonging tohim and his daughter Manouri Mendis and obtaining in exchange
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an extent of 76 acres of land from the Mawatta division ofSiringapatha Estate situated at Dankotuwa in the Puttalam District,thereby causing wrongful loss to the Government of Sri Lanka and/or the National Livestock Development Board and/or the LandReform Commission0.
The Findings :
Upon a careful consideration of the evidence adduced before thisCommission we are satisfied that the request made to theChairman, LRC by Mr. Chandra Bandara in his capacity as MPAnuradhapura West to recover the land called Panikankulam forthe purpose of converting it into a Seed Paddy Farm (vide P5A),was not a genuine request, but a sham. We are also satisfied thatin the context of the relationship which existed between therespondent and Mr. Chandra Bandara who held office as CabinetMinister and Deputy Minister, respectively, in the Government thatthey had acted in collusion to achieve a different objective inrecommending to the LRC the take-over of the land at Panikankulambelonging to the respondent. It is dear on the evidence beforeus that when Mr. Bandara made this request for the ostensiblepurpose of setting up a Paddy Seed Farm on Panikankulam, hewas acting in collusion with the respondent who had initiated thiscourse of action and was determined to achieve his real objectiveof procuring a portion of Siringapatha estate for himself and hisdaughter which on the evidence before the Commission was muchmore valuable than Panikankulam which the respondent offeredin exchange therefor.
Having regard to the totality of the evidence of this case, weare firmly of the view that had it not been for this dubious andhighly questionable exchange of land under section 22 of the LandReform Commission Law mooted by the respondent in collusionwith Mr. Chandra Bandara, the then MP for Anuradhapura West,76 acres of Mawatta estate would well have been sold for a sumof over Rs. 2,665,000 in the open market.
We hold, therefore, that wrongful loss has indeed been causedto the LRC and the Government of Sri Lanka, by alienating an
SC Wljayapala Mendis v. P. R. P. Perera and Others (Fernando, J.) 119
extent of 76 acres from Mawatta division, Dankotuwa, belongingto the LRC in exchange for 76 acres of Panikankulam which hasbeen valued at Rs. 998,500 by the then Chief Valuer as thecommercial value of this property.
We hold that the allegation set out in the Show Cause Noticehas been established.
Recommendation :
In view of our finding in respect of the allegation set out in theShow Cause Notice, we hold the respondent guilty of misuse orabuse of power under the provisions of section 9 (1) of the SpecialPresidential Commissions of Inquiry Law, No. 7 of 1978, as amendedby the Special Presidential Commissions of Inquiry (SpecialProvisions) Act, No. 4 of 1978 and the Special PresidentialCommissions of Inquiry (Amendment) Act, No. 38 of 1986.
We, accordingly, recommend that the respondent TenahandiWijayapala Hector Mendis be made subject to Civic Disabilityunder the provisions of section 9 (1) of the aforesaid SpecialPresidential Commissions of Inquiry Law, No. 7 of 1978, as amendedby the Special Presidential Commissions of Inquiry (SpecialProvisions) Act, No. 4 of 1978 and the Special PresidentialCommissions of Inquiry (Amendment) Act No. 38 of 1986."
The petitioner filed an application dated 12.6.98 in the Court ofAppeal praying for Certiorari to quash those findings andrecommendations; on 16.6.98 that Court made order transferring theapplication to this Court in accordance with section 18A; and on
this Court issued notice on the respondents.
The respondents did not plead, and Mr. Kamalasabayson on theirbehalf did not contend, that our jurisdiction was in anywayrestricted by the provisions of sections 9 (2) and 18A of the Law.
I respectfully agree with Dheeraratne, J. that the jurisdiction whichthis Court exercises under Article 140 is unfettered (Cooray v.Bandaranayak&v).
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The Facts :
It is necessary to state briefly the facts relating to five mattersin particular: the approval in principle of the “exchange", theidentification of the portion of land to be given to the petitioner, theforcible taking over of a different portion by the petitioner, the existenceor establishment of a seed paddy farm on the land to be surrenderedby the petitioner, and the basis of valuation, as well as thevaluation, of the two lands sought to be exchanged.
The following summary of the facts is based on the interimreport, supplemented by other relevant items of oral and documentaryevidence which, though led in the course of the proceedingsbefore the Commission, have not been referred to in the interimreport: the latter evidence is italicized (and references are given tothe documents and/or the pages of the proceedings).
When the Land Reform Law, No. 1 of 1972, came into operationthe petitioner declared ownership of 250 acres of a land calledPanikankulam, of which he was entitled to retain only 50 acres;and he was permitted to effect an "inter-family transfer" of 26 acresto his daughter. This was the 76 acres (the "Panikankulam land")which was sought to be exchanged for 76 acres (the "Mawatta land")from Mawatta division of Siringapatha estate. However, the statutorydetermination in respect of the petitioner's 50 acres was Gazettedby the LRC only on 10.7.90. It is not known whether and when thepetitioner executed an inter-family transfer in favour of his daughter,and there seems to have been no survey plan identifying the particularallotment for such inter-family transfer (proceedings of 3.10.95,page 17, and page 11850).
By letter dated 28.10.80, Chandra Bandara, MP AnuradhapuraWest, requested the Chairman, Land Reform Commission (LRC), to"recover" the Panikankulam land situated in his electorate forconversion into a paddy seed farm. The petitioner by letter dated30.10.80 informed the then Minister of Agriculture, under whom theLRC was, that he had no objection to that request, provided alternativeland was given from Siringapatha estate; nothing seems to have
SC Wijayapala Mendis v. P. R. P. Perera and Others (Fernando, J.) 121
happened for over two months, until on 23.1.81 the Minister referredthat letter to the Chairman, LRC, with the endorsement "I approve".That estate was in the possession of the National LivestockDevelopment Board (NLDB) which was managing it on behalf ofthe LRC; the NLDB came under the Ministry of Rural IndustrialDevelopment (RID); and the Chairman, LRC, by letter dated 29.1.81requested the Secretary, Ministry of RID, to ascertain fromthe Chairman, NLDB, whether 76 acres from Siringapatha estatecould be released.
The interim report does not refer to any action taken by theLRC thereafter, between February, 1981 and January, 1982.
On 31.3.81 the petitioner handed over possession of thePanikankulam land to the District Authority of the LRC (R1 and R13dated 31.3.81).
Thereafter, the petitioner wrote P6B dated 23.9.81 to the Minister,RID, referring to the request made by the LRC to hand over 76acres to him, and asked him to expedite the matter. By P6C dated
10.81, the latter's Co-ordinating Officer forwarded P6B to theChairman, NLDB.
The Chairman, NLDB, wrote on 28.10.81 to the Secretary, RID,stating that Siringapatha estate was one of the best coconutlands, and that releasing 76 acres from that estate would bedetrimental to the NLDB. That reply was given by him without anyinvestigation into the feasibility of releasing the land requested(27.2.96, pages 7351-2). According to the interim report:
“after he despatched [that] letter he was summoned for ameeting at the Ministry of RID where Minister Thondaman, the[petitioner] and Festus Perera were present. Subsequent to [that]letter [the Chairman] had met the [petitioner] and had discussions. . . and as [the petitioner] had expressed his willingness to accept76 acres from Mawatta division, he had reluctantly agreedto release 76 acres from that division and informed the Secretary,RID, accordingly by his letter dated 11.1.82."
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That letter dated 11.1.82 does not manifest any "reluctance", butmerely states that the petitioner agreed to take 76 acres fromMawatta division. By another letter dated 25.1.81 the Chairmaninformed the Secretary, RID, that the petitioner had agreed to takethat extent from the northern end.
The Secretary, RID, testified that, some time before 20.1.82, hewas summoned to attend another meeting, at which MinisterThondaman, the petitioner, the Chairman, NLDB, and Festus Pererawere present; and that “the Minister agreed to give [76 acres fromMawatta] subject to the decision of the Chairman, NLDB, who woulddetermine a portion of land from Mawatta division which was notessential for his development work". The Secretary, RID, wrote on20.1.82 to the Chairman, LRC, that they were agreeable to release76 acres from Mawatta, the location and boundaries to be decidedby the NLDB so as not to interfere with its activities.
On 24.1.82 the petitioner had visited Mawatta division, and he hadagreed to take .76 acres from the northern part; that is confirmedin a letter dated 25.1.82 from the Chairman, NLDB, to theSecretary, RID. There was also the evidence of a Director, LRC, thathe had informed the petitioner by letter dated 3.2.82 that thedemarcation of the boundaries of the 76 acre block would be doneby the NLDB.
The interim report states the conclusion that the NLDB andits Chairman:
"have from the very outset been opposed to the proposal torelease any land from Mawatta division to the [petitioner]. Theevidence discloses that it was with a great degree of reluctancethat the Chairman ultimately agreed to release a portion of landfrom Mawatta division, on the specific condition that the [petitioner]agreed to the NLDB demarcating the boundaries starting from thenorthern end."
However, the interim report made no reference to the Chairman'sletter R5 dated 29.10.81 to the Sri Lanka Libya-Livestock Development
SC Wijayapala Mendis v. P. R. P. Perera and Others (Fernando, J.) 123
Co. Ltd. (SLLLDC), regarding a request for the release to thatCompany of that portion of land from Mawatta division whichcontained the existing poultry unit. In that letter the Chairmanstated that that section could not be released (because it containedbuildings, etc.), but offered "equally suitable land of lesser productivityavailable in close proximity", namely, a portion of Field No. 4comprising 130 acres which consisted entirely of old coconut whichwould soon require replanting. What the petitioner later took seemsalso to have been from Field No 4. (page 7440).
That omission is all the more significant because the interim reportdid mention in another context – the valuation of the Mawattaland – that the balance portion of Mawatta estate [Division ?] hadin fact been sold by the LRC at Rs. 30,000 per acre to that Companyin 1983. The interim report failed to consider why the Chairmanhad been willing to release 130 acres to SLLLDC on 29.10.81,although just the day before he had declined, without any investigation,to release any land whatsoever from Siringapatha estate to thepetitioner. The 1st respondent asked him:
"So without any type of investigation your first reaction was toinform him that it cannot be released?
A: Yes, because we depend on the income of coconut to runthe farm." (27.2.96, page 7352).
According to the Manager of Siringapatha estate, in February, 1982,the NLDB had instructed him to assist a surveyor to demarcatethe 76 acres from the northern end; he met the surveyor in thecompany of the petitioner, and clearly indicated the relevantarea; however, he was not present at the survey; but he had givenhis Assistant Manager specific directions to instruct the surveyorto demarcate from the northern end. (The Assistant Manager did notgive evidence.) When he went to Mawatta division to hand over, hefound that, contrary to instructions, land had been demarcatedfrom the southern end, and the petitioner's men had already startedfencing that portion with barbed wire and railway sleepers. Thesubstance of his evidence was that it was due to the pressure exertedupon him by the petitioner that he handed over that portion to the
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LRC officials (who in turn must have handed over possession tothe petitioner).
The surveyor testified that he had been instructed by theAssistant General Manager, NLDB, to demarcate 76 acres fromthe northern end; that he found that he could not carve out onecontiguous block of 76 acres; that he informed the Assistant Manager,who told him to get instructions from the NLDB; and that he thenmet the Assistant General Manager, NLDB, who asked him to carveout one contiguous block of 76 acres starting from the westernend. (The Assistant General Manager, NLDB, was not called to giveevidence.) It was also his evidence that soon thereafter the Chairman,NLDB, entrusted to him the survey of the rest of Mawatta divisionas well – an indication that the Chairman was not dissatisfiedwith him (pages 11869,12069). The 1st and 2nd respondents did notaccept his evidence.
The Chairman, NLDB, wrote on 18.2.82 to the Chairman, LRC,recording what had happened, and “disassociating ourselves with thisrelease". He said he had already brought this to the notice of hisMinister, who summoned him for yet another meeting on 3.3.82at which the petitioner was present, and directed him forthwith"to inspect the portion of land which the [petitioner] preferred to takeand consider whether [that land] could be released to him":
"He had accordingly visited Mawatta [on 4.3.82 and] . . . saw tohis utter surprise that an extent of about 76 acres had alreadybeen fenced with railway sleepers and barbed wire. This was notthe portion of land which the [petitioner] had agreed to take fromthe northern end. He had on this day seen the [petitioner] also. . . [who had requested him] not to take any action against theAssistant Manager [who had permitted the land to be fenced]."
He returned the same day, and reported to Minister Thondamanwho appeared to be very surprised. Thereafter, he had addresseda letter dated 12.3.82 to the Minister:
SC Wijayapala Mendis v. P. R. P. Perera and Others (Fernando, J.) 125
. . stating that a major portion of the 76 acres earmarkedhad already been barb wired and any adjustments at thisstage would require relocating these fences, and also havingregard to certain other matters in the context of this demarcationhe had allowed the status quo to remain as proposed by the[petitioner] since the advantages that would accrue to the Farmwould far outweigh the disadvantages resulting from thereadjustment."
In summarizing that letter, the interim report fails to mention thatthe purpose of that visit, as disclosed by that letter, was only to seewhether some minor adjustment could be made. I will refer to thatmatter later.
The assessment of the evidence of the Chairman, NLDB :
The interim report states that the gist of the Chairman'stestimony was:
"… to the effect that if the final decision in regard to the allocationof land from Mawatta division to the [petitioner] lay with him, hewould undoubtedly have refused this request. He had consistentlyobjected to this course of action. He was compelled to succumbto the pressures exerted on him both by Minister Thondamanand the [petitioner] and to quote his own words, he ultimately'surrendered'. In the circumstances, he had no other alternative."
Minister Thondaman was not called to give evidence.
The 1st and 2nd respondents had little hesitation in acceptingthe Chairman's evidence, for the reason that:
"We were impressed with the frank and forthright manner in which[he] testified … He was a truthful witness whose evidence weaccept without reservation. He was 82 years old at the time hetestified and although his recollection may not have been perfectlyaccurate in certain instances due to his age, we had no reasonto doubt his integrity or his testimony at any stage in spite of the
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very severe cross-examination . . . Besides his evidence has beencorroborated by both [the Secretary, RID, and the Director, LRC]and the documentary evidence produced in this connection.’
However, even a cursory examination shows not only that hisevidence was vague and uncertain, and even contradictory, onimportant aspects, but also that it was inconsistent with letterscontemporaneously written by him; indeed, the record shows thatthe Commissioners themselves realised these infirmities even whilehe was giving evidence. None of these matters have even beenreferred to in the interim report.
The 1st and 2nd respondents glossed over the defects in hisevidence, attributing them to his being 82 years of age.Mr. Wickremanayake complained that even that was incorrect,because twice – and both times in answer to the 1st respondent -the witness had given his age, as 75 (on 12.9.95) and 76 (on 29.2.96).While there was no reason to doubt the integrity of the witness,there were serious shortcomings both in his evidence, and in itsassessment, and to that I must now turn.
In his ex parte evidence-in-chief, the Chairman, NLDB, madevarious assertions (which were later probed in cross-examination).He described Siringapatha estate:
“That was prime coconut land well-fertilized and yielding about
– 5,000 nuts per acre. It was adjoining the Coconut ResearchBoard land more or less.
Chairman : So this is about the best land?
A :Besfland." (12.9.95, page 11) [emphasis added throughout]
A Ittle later counsel asked:
"Was the area that was fenced the best area in the Mawatta divisionor … ?
A :The entire division was a good ..estate. So / cant say it is
the best portion."(12.9.95, page 16)
SC Wijayapala Mendis v. P. R. P. Perera and Others (Fernando, J.) 127
But the witness quickly reversed himself: "I was surprised when hehad taken from the best; and a few minutes later agreed with the3rd respondent:
”Q : 76 acres of Mawatta from the middle which was the bestpart of Mawatta ? A: Yes . .(12.9.95 page 21)
Twice the 1st respondent asked him, "Left to yourself you wouldnot have given any part of MawattaT (12. 9.95, pages 21-22), andthe witness agreed, explaining on the second occasion:
"… I would never have given. (On another occasion a late Minister]wanted some [forty acres of prime] land and I refused to give.So then he said that he will break my legs when I come to [hiselectorate] … I reported the matter to [my] Minister, andthen he reported to [the then President]. Then he denied . . . thena meeting was summoned and [the late Minister] was asked toapologize to me."
It is not surprising that the witness asserted (page 21) that hewould not have been influenced by the petitioner.
The Chairman, NLDB, repeatedly claimed that he had notbeen aware, even as late as the meeting of 3.3.82, that the petitionerhad taken over 76 acres otherwise than from the northern end ofMawatta division (as previously agreed); and persisted in that positiondespite being shown his own letter of 18.2.82 by which he hadprotested to the Chairman, LRC:
"That means [the petitioner] had taken over in February?
A :/ wasn't aware of this even at the meeting on the 3rd of
"… Q : On 10.2.82 [18.2.82] you have written to the Chairman,LRC . . . protesting . . .
Chairman : There is a little controversy [sic] in that. Now by theletter of 10.2.82 [18.2.82 the witness] has protested
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to the Chairman, LRC. Then [his] evidence was thatat the meeting of the 10th [3rd] of March he was notaware that the [petitioner] had taken over the land.
Hon Jayasuriya: Only when he went on inspection [4.3.82Jhe discovered it … .
(Examination continued)
Q:How did you write a letter on the 10th [18th] February
protesting against this?
A :The LRC people had come to this land.
Q :You were aware that possession had been taken over on
5th February, apparently, you knew at that time?
A :/ cant recollect, it is a little complicating.
Q :Why did you go on the 4th of March?
A :That I can remember because the Minister asked me to go
and see whether we can give some land from Mawatta.
Q :So this is the other portion that had been taken over?
Chairman : The other portion is?
Mr. Premaratne: The best portion of the land which is fenced.
Chairman : On the 10th [18th] of February, 1982 [the witness]protested to the Chairman, LRC … therefore [he] was awarethat the [petitioner] had taken over a certain portion of theland. I cant reconcile that with his evidence on the 3rd ofMarch 1982, when he was directed to go there on the 4thhe was surprised that [the petitioner] had already takenpossession.
Hon. Jayasuriya: The two positions are inconsistent."
(12.9.95 pages 25, 28-29).
The 1st respondent then intervened with a series of leadingquestions, forcefully putting a position to the witness:
"Anyway, what you say is by 10th of February, 1982, you wereaware that [the petitioner] had taken some portion of the land?
A :Some portion of the land. Yes.
Q :When you went there in March you found that he had taken
the best portion of the land which had already been fenced,that is what you are saying?
SC Wijayapala Mendis v. P. ft P. Perera and Others (Fernando, J.) 129
A :Yes.
Q : That is what surprised you, not the fact that he had takenpossession, /s that your position?
A :Yes." (12.9.95, pages 29-30).
Almost immediately thereafter the 1st respondent turned to theletter dated 12.3.82 which the witness had written to the Minister afterhis visit to Mawatta on 4.3.82 :
“Q : To get back to your letter of 12.3.82, you wrote to the Ministera strong protest informing the Minister that the best portionof the estate had been taken over and had been fenced withsleepers, barbed wire and so on ?
A :Yes.
(Mr Premaratne marks the letter dated 12.3.82 as P21)"
There were three questions rolled up: that his letter was a protest,that it referred to the best land having been taken, and that it hadbeen fenced. Was the answer "Yes" a reply to all three questions,or only to the last?
"Q : To this letter to the Minister did you get a reply?
A :No.
Q : What was the reaction of the Minister to that letter?
A :He did not reply that letter nor did the Secretary, but after
that he would have given me verbal instructions.
Q : To fall in line?
A :I think so. I cant say something of which I am not very sure.
That is what must have happened thereafter.
Q :Anyway, after your protest of the 12th of March, 1982, you
ceased to protest any further?
A :Yes, there was no point in protesting." (12.9.95, pages
Naturally, those matters were probed in cross-examination. Onmany matters, the Chairman's recollection was poor. Thus hecould only remember meeting the petitioner once, on 3.3.82 (27.2.96,pages 7363-4, 7366). When shown his own letter P16 dated 11.1.82
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which referred to discussions with the petitioner, he said: "I am verysorry. I cant remember what discussions I had after so many years”(page 7365). Nevertheless, the interim report baldly records that hetestified to three meetings.
He was asked whether the northern portion of Mawatta was moreor less the same as the portion which the petitioner took, in regardto the fertility and the age of the plantation. Before he could answer,the 3rd respondent intervened:
Q :In the same condition?
A :Same condition. But this land is very close to the Assistant
Manager's quarters, office and other buildings. That was oneof the objections . . .
Q :That is the only unsatisfactory feature about it?
A :Yes.
Q :In other respects you have have nothing to say?
A :And there is a water course going in the centre where the
cattle [go for] water." (page 7443).
Turning to his evidence-in-chief of an annual yield of 4,000 to 5,000nuts per acre, he was shown the relevant annual report of the NLDB,and was forced to concede that the average yield per acre for theentirety of Siringapatha estate at the relevant time was only 3,064nuts per acre. He also admitted that no part of Mawatta division "moreor less adjoins the Coconut Reseach Board land11 (page 7537).
The witness had previously fallen into line with the leadingquestions put to him (on 12.9.95, pages 29-30) by the 1st respondent,as to when he became aware that the petitioner had taken possession:that by 10th of February, 1982, he was aware of this, and thathis surprise was only because the petitioner had taken the bestportion* But on 29.2.96, under cross-examination, he again revertedto the position that until 4.3.82 he was not aware that the petitionerhad taken over any land from Mawatta. The 1st respondent himselfthen pointed out the contradiction to him – but to no avail:
SC Wijayapala Mendis v. P. R. P. Perera and Others (Fernando, J.) 131
“Q : How do you reconcile your evidence . . . ?
A :On the 3rd of March if I was aware of this whole situation
that the land actually is physically taken over, then I wouldhave told my Minister at that time that there is no point inmy visting Mawatta to select land . . .
Hon. Yapa : But it is difficult to reconcile. You say there was ameeting on 3rd March and you were asked to go and earmarkthe land to be given to [the petitioner]?
A :Yes.
Q :By then you have already written this letter. . . that already
land has been ear-marked. How do you reconcile these twosituations?
A : (Witness silent)." (pages 7541-4).
The cross-examination moved on to the letter dated 12.3.82 whichthe Chairman wrote to the Minister after visiting Mawatta on 4.3.82.Although he had readily agreed (on 12.9.95) in answer to a leadingquestion put to him by the 1st respondent, that he wrote a strongprotest to the Minister that the best portion had been taken over, hewas asked to read the letter and identify the protest; he could not.It was then put to him that the only purpose of his visit was to ironout a minor aspect of the demarcation (ie to provide a corridorto connect two portions of the land which then remained with theNLOB). Before he could answer, the 1st respondent told him to readthe letter, and asked him:
"… You were asked to visit the place and to resolve that problem
[relating to the corridor]. Isn't that what the letter speaks of?
A : Yes.
Q :So is that correct?
A :Yes. I have written it. It should be correct." (page 7548).
It then became clear that by that letter the Chairman had notprotested at all, but on the contrary had given five reasons why thestatus quo should not be disturbed. The 1 st respondent then told thewitness: “this is the impression we get from your letter". The witness,weakly, suggested that he had intended to convey a protest, but didnot do so directly because he could not go against a Minister (page
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7550). Nobody reminded him how firmly he had stood up to that otherMinister who had even threatened to break his tegs.
Finally, he gave up the position that he had protested becausethe best land had been taken: he agreed (page 7552) that as faras the land was concerned whether it was from the northern end orfrom the place where the petitioner actually got it, it was the sametype of land. Both as to his reluctance to part with the land,and as to how good the land really was, the most relevantcontemporaneous documentary evidence was his letter R5 dated29.10.81 (referred to earlier), which too, somehow, escaped theattention of the 1st and 2nd respondents.
The valuation :
The lands sought to be exchanged had been valued at the relevanttime by a valuer, Somathilleke, who was then Director (Valuation andCompensation), LRC. His valuation was on the basis of the agriculturalvalue of the two lands, because his view was that a valuation forthe purpose of alienation by way of exchange under section 22 ofthe Land Reform Law should be on that basis. His position was thatland alienated under that section could only be used for the limitedpurposes set out therein. According to him, on that basis, the Mawattaland was worth Rs. 99,000 more: and that sum the petitioner paidto the LRC. He also stated that his valuation had been approved bythe Chief Valuer (page 4077).
However, in June, 1995, the Commission had requested the ChiefValuer to value the lands as at 1982. He assessed the market values:the Mawatta land at Rs. 2,665,000 (four blocks at rates rangingfrom Rs. 30,000 to Rs. 50,000 per acre) and 65 acres of thePanikankulam land at Rs. 660,000. The latter valuation had been madealthough he had not been able to identify 26 acres of the Panikankulamland correctly; and he subsequently made a hypothetical valuation ofits open market value, at Rs. 988,500.
The interim report does not mention that during the ex parte stagethe 1st respondent had told the Solicitor-General, who was assisting
SC Wijayapala Mendis v. P. R. P. Perera and Others (Fernando, J.) 133
the Commission, that it may be useful to call somebody from the LRC,either the Chairman or someone else, “particularly to clarify thisposition in regard to exchanges which fall outside the ambit of theLaw"; and that in fact R. S. Ramanayake, who had been the Chairmanfrom 1978 to 1982, was called by the Solicitor-General for thatpurpose. Reference was made to his evidence only in quite a differentcontext, namely the existence of the seed paddy farm.
In his evidence, Ramanayake stated that "when property wasalienated by the Commission, for agricultural purposes, the valuationwas always on an agricultural basis"; that although valuations weredone by an officer of the LRC, they were reviewed by the Chief Valuer;and that the maximum price at which land was alienated fromSiringapatha estate was Rs. 15,000 per acre, and that was for a 15acre block abutting the main road, (pages 10841, 10859 and 10871)
It is without considering that evidence as to the practice of theLRC during the period 1978 to 1982 that the 1st and 2nd respondentsproceeded on the basis that it was market value which was relevant;the evidence of the valuer and of Ramanayake as to approval bythe Chief Valuer was not even mentioned; and with one minor exception,the prices at which other allotments from Siringapatha estate hadpreviously been alienated were not considered. The interim reportmentions a subsequent alienation, of "the balance portion of Mawattaestate [which] was sold by the LRC at Rs. 30,000 per acre to theSLLLDC in 1983", but fails to refer to and consider the fact that theChief Valuer took rates as high as Rs. 50,000 per acre in determiningthe 1982 value of the 76 acres given to the petitioner.
The interim report cited an amendment to section 22 of the LandReform Law effected by Act No. 39 of 1981 (which came into forceon 3.6.81), adding a new provision enabling "alienation by way of sale,with Ministerial approval, for non-agricultural purposes", and added:
“Thus the limitation placed upon alienation of land vested inthe LRC in regard to the purposes for which agricultural land vestedin that Commission may be used has in fact been eliminated. Thisamendment permits the outright sale of lands … with the approval
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of the Minister and has come into effect on a date very muchanterior to [5.2.82 when] 76 acres of Mawatta was handed overto the [petitioner] by the LRC.°
This amendment the 1st and 2nd respondents seem to haveregarded as justification for valuation on a market value basis. However,the interim report itself discloses that the only approval given by theMinister of Agriculture was on 23.1.81, long before the amendment,and therefore could not have been treated as an approval of analienation for non-agricultural purposes in terms of the amending Actof 1981.
The Seed Paddy Farm
Finally, the 1st and 2nd respondents concluded that the requestmade by Chandra Bandara to establish a seed paddy farm was asham, and that his request had been made in collusion with thepetitioner to enable the petitioner to obtain land which was much morevaluable than the Panikankulam land; that no steps had been takenby Chandra Bandara to pursue the project; and that his subsequentconduct was inexplicable. Those observations were made withouthaving required him to explain or to testify. The interim reportdiscusses the evidence of several witnesses including Ramanayakeand Nimal Gunaratne, Deputy Director (Revenue), LRC:
"The uncontradicted testimony of [Gunaratne] was that no seedpaddy farm was started on Panikankulam … He vouched for thefact that there was no seed paddy farm on this land during theentire period he managed this project."
“Mr. Marapana also sought to rely on the evidence of Ramanayake… to establish the existence of the seed paddy farm … Accordingto Ramanayake. the LRC was running a seed paddy farm on thisland for some time and he was aware of the fact because oneof his Directors [Madawela] was in charge of the Division whichmanaged this Project. Apart from this vague answer he did notclaim to have any personal knowledge of this fact. It is significantthat Madawela was not called to testify . . .
SC Wijayapata Mendis v. P. R. P. Perera and Others (Fernando, J.) 135
… we have no hesitation in rejecting Ramanayake's evidence
in view of the very definite evidence given by Gunaratne . . . “
That gives the impression that Ramanayake was the petitioner'switness, although in fact he was called because the Commissionwanted the Solicitor-General to call him. While he was undercross-examination, it was the 3rd respondent who raised the issue:
"Hon. Jayasuriya: Q. Was the seed paddy station ever set up?
A. Yes . . .
Chairman: Q. How do you know that?
A. One of my directors : . . Madaweia was in charge of it."
Thereafter the 1st and the 3rd respondents, alternately, questionedRamanayake five times about the matter. They expressed no doubtabout his answers; nor did they treat him as hostile.
The report does not refer to important aspects of Gunaratne'sevidence as to his knowledge of the facts. His evidence was that hehad been working in the Estate Management Services Divisionfrom 1981 to 1984; that he came to know of Panikankulam only inabout 1982, and left in 1984; and he had visited the land three times.The impression he created on the 1st respondent when he gaveevidence appears from the following:
“Chairman: Mr. Marapana, you see the calibre of this witness: hesays he's Deputy Director; you asked, whether he's thesubject clerk and he says yes.
Q :. . . You can't give a suitable answer to any of the questionsasked of you without referring to the files.
A. Yes. Without any files I am unable to give evidence.
Q :Then why did you give evidence all this time?
A :It was under my . . .
Chairman: That is not the question you were asked Mr Gunaratne.You were asked by Mr Premaratne whether there was a seedpaddy farm?
A : No Sir.
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Chairman: You said no, now you say you cant say anything withouta file, what is the correct position? Is it that you cant sayanything without a file or are you in a position to say thatthere was no seed paddy farm?
A : There was no seed paddy farm.
Chairman: Mr. Gunaratne, the truth is that you are coming hereto say that there is no seed paddy farm because you havebeen asked to say so?
A :As I served in that division the Chairman asked me to say
anything I know.'' (page 11856)
Certainly, the 1st and 2nd respondents could have disbelievedRamanayake and believed Gunaratne. But to characterize Gunaratne'sevidence as "uncontradicted" (when Ramanayake and at least onewitness testified to the contrary) and as “very definite" (despite the1st respondent's own contemporaneous observations as to itscredibility) required some explanation, and the interim report containsnone. In contrast, to describe as "vague" Ramanayake's answers inreply to the Commissioners, although they had then made no adverseremark whatsoever about his evidence, required even moreexplanation and reasons. Again, there was none. And in thecircumstances the comment that it was significant that the petitionerhad failed to call Madawela seems unfair, since Ramanayake wascalled because the Commission wanted him called; and if theCommission had then any unexpressed doubt about the replies hegave to them, it was the Commission which should, in the interestsof justice, have directed that Madawela be called and the relevantfiles produced.
I have referred to the facts, and the approach of the 1 st and 2ndrespondents to the facts, not only because they are relevant to thequestion whether the findings are vitiated by errors of law (by thefailure to take into consideration, and/or by the misconstructionof relevant oral and documentary evidence), but also becauseof rather unusual attempts which the Commissioners made to“settle" the dispute.
SC Wijayapala Mendis v. P. R. P. Perera and Others (Fernando, J.) 137
On 3.6.96, while the Chief Valuer was being re-examined, theCommissioners realised that there had been no transfers of title, interse. It is necessary to refer in some detail to what happened:
"Hon. Jayasuriya : … the witness is seeking to assert that thereis no transfer.
Mr. Marapana : Yes.
Hon Jayasuriya : Without a transfer there cannot be a restrictiveuser?
Mr. Marapana : Without a transfer I do not get any title at all…. I have paid very good money and got nothing inreturn.
Hon. Jayasuriya : So you return it back to get your own land?
Hon. Jayasuriya : … If you give this back and take that everythingwill end.
Mr. Marapana : I do not mind.
Hon. Jayasuriya : Are you prepared to do that?
Mr. Marapana : Of course . . .
Chairman : Why do you not consider this proposition?
Mr. Marapana : Yes, My Lord, I will certainly . . .
Hon. Jayasuriya : You have not got title yet?
Mr. Marapana : Yes
Hon. Jayasuriya : If you give back and take your land everythingends. . . .
Hon. Jayasuriya : Then we need not go into this any further,Mr. Premaratne?
Mr. Premaratne : It is a matter for the Commission . . .
Hon. Jayasuriya : If he is prepared to give it back and put thestatus quo then everything is all right. Then we need notgo into this matter any further. Why do you not consider that?
Mr. Premaratne : I have no stakes here; I am only assisting theCommission ….
Chairman : Shall we call this on some other day so that we canconsider this . . .
Hon. Jayasuriya : Consider this seriously without wasting our timegoing into this …" (pages 8834-6)
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On 4.7.96 Mr. Marapana filed a document manifesting thepetitioner's consent to restoring the status quo, and inquired what thenext step would be. The 1st respondent said “then we will make anorder giving directions to the LRC to give effect to this" (page 9264).
The staff of the Commission delayed for six weeks to communicatethat order to the LRC. On 17.9.96 the Chairman, LRC, was present,on summons. The 1st respondent expressed serious concern aboutthe delay, and added: “We have made an order to communicate ourorder to the LRC for implementation. It is very unsatisfactory".
Later, the LRC seems to have reported that it would not be ableto restore possession of the Panikankulan land to the petitioner. The"settlement" was not pursued any further, and the inquiry proceeded.
The "allegation" set out at the commencement of the interim reportand the "charges" contained in the summary published in the Gazetteare similar. However, they differ from the show cause notice in subtle,though significant, respects. The interim report and the summarystate that the petitioner was asked to show cause why he should notbe found guilty of misuse or abuse of power, in that, in substance,"the petitioner did directly or indirectly induce [identified persons] topermit him to surrender the Panikankulam land and obtaining inexchange [sic] the Mawatta land, thereby causing wrongful loss to[named institutions]'1. The show cause notice alleges that he committedor omitted to do one or more of the acts specified in six subparagraphsof the notice, "which [acts] directly or indirectly induced [the sameidentified persons] to permit the exchange of the Panikankulamland with the Mawatta land, with the intention of causing wrongful gainto himself. . . and/or wrongful loss to [the same named institutions]".
Straightaway, it is manifest that the show cause notice alleged adishonest intention, as defined in the Penal Code, on the part ofthe petitioner; it was not enough therefore to establish that he didinduce the identified persons to permit the exchange; it had also tobe proved that he had induced them to do so with a dishonest
SC Wijayapala Mendis v. P. R. P. Perera and Others (Fernando, J.) 139
intention. The fact that a valuer, acting independently of the petitioner,might have made an erroneous valuation was insufficient: for thatwould only prove the fact of wrongful loss, but would be quiteinadequate to prove a dishonest intention. Nevertheless, the interimreport incorrectly suggests that the "allegation" set out therein wasthe same as that which the petitioner was required to meet in theshow cause notice, and the 1st and 2nd respondents held "that theAllegation set out in the Show Cause Notice has been established".
In order to clarify this matter, we called for written submissionsafter judgment was reserved, and counsel on both sides havesubmitted that the show cause notice was never amended. On behalfof the respondents, it was submitted that "the Notice itself is wideenough to contemplate wrongful loss as well as wrongful gain althoughthe allegation relates to only wrongful loss . . . since both these areelements of dishonesty, no prejudice would be caused to the petitioneras there is no reference to the element of wrongful gain in theallegation. In the circumstances … the Commission's finding is basedon the charge contained in the Notice . . . and the allegation whichis couched in general terms is merely a narrative of the gist of thesaid Notice".
That submission fails to justify the total absence in the interim reportof either a finding that there was a dishonest intention as alleged inthe notice, or an explanation as to how the charge was held proveddespite the absence of such a finding. The finding that the petitionertook over a different portion of land – even a better portion – didnot by itself prove a loss, for whether there was a loss or not dependedon the subsequent valuation; if there was a proper valuation, therewould have been no loss; and even if there was an undervaluation,that would only prove the fact of loss, but not an intention of causinga loss (unless, of course, there was evidence of impropriety on thepart of the petitioner in causing or procuring such undervaluation).
It is unnecessary, in the circumstances, to consider the furtherunexplained difference, namely, that the show cause notice allegesinducement to permit the exchange of the two lands, while the interimreport alleges inducement to permit the surrender of one land andobtaining in exchange the other land.
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Several distinct questions of jurisdiction arise:
Did the 1st and 2nd respondents have jurisdiction – after12.11.96 when the 3rd respondent ceased to participate in theproceedings – to proceed with the inquiry and/or to makefindings and recommendations?
Did the Warrant establishing the Commission authorise theCommission to inquire only into sales and leases (and notexchanges) of land belonging to the LRC?
Did the conduct of the Commissioners in regard to the attempted"settlement" constitute an acknowledgement and/or representa-tion by them that the evidence disclosed neither misuse or abuseof power nor justification for subjecting the petitioner to civicdisability, with the consequence that they were precluded fromproceeding any further?
Non-participation of the 3rd respondent
Findings and recommendations had been made in the same interimreport in an inquiry relating to another person, who applied for Certiorari,on the ground that the report had not been signed by the 3rdrespondent (Paskaralingam v. PerereF). The following question wasconsidered:
"Does the non-participation of Justice F. N. D. Jayasuriya render
the interim report one made without jurisdiction?"
This Court, by a majority decision, answered that question in theaffirmative, and quashed the findings and recommendations made bythe 1 st and 2nd respondents. Mr. Wickremanayake, on behalf of thepetitioner, relied on that decision.
SC Wijayapala Mendis v. P. R. P. Perera and Others (Fernando, J.) 141
Mr. Kamalasabayson, PC, SG, stated that he was not seeking tocanvass its correctness, and I see no reason to decline to follow thatdecision. However, in his counter-affidavit the 1 st respondent pleadedthat this application was belated, and that because the subject-matterof this application was before Parliament the petitioner was not entitledto any relief. Mr. Kamalasabayson submitted that we should takeinto consideration the fact that the petitioner was guilty of delayexceeding 12 months. He pointed out that the Order Paper ofParliament for 7.10.97 contained notice of a resolution for theimposition of civic disability on the petitioner under Article 81 of theConstitution consequent upon the interim report, so that the matterwas now before Parliament; and therefore this Court should declineto entertain, hear or determine the petitioner's application. He drewour attention to Bandaranaike v. Weeraratnd3) where this Court uphelda preliminary objection and dismissed a similar application; quiteproperly, he indicated that there was a distinguishing feature, for inthat case, by the time the application was taken up for hearingParliament had already passed the resolution.
Delay is never an absolute bar, particularly where the challengeis to jurisdiction. In any event, a plea of delay must be consideredon equitable grounds: as for instance, whether the conduct of thepetitioner indicates acquiescence or a waiver of his rights, and whetherany appreciable prejudice had been caused to the adverse party bythat delay. Nothing of that kind has even been alleged.
As for pending Parliamentary proceedings, it is enough to say thatParliament and the judiciary have distinct and defined roles. Article4 of the Constitution does not permit Parliament directly to exercisethe judicial power of the people "except in regard to matters relatingto the privileges, immunities and powers of Parliament wherein thejudicial power of the people may be exercised directly by Parliament".Apart from that single exception in respect of what may be regardedas an internal jurisdiction intimately connected with its legislativefunction, if Parliament desires to exercise judicial power in any othercase, it cannot do so directly; it must do so only through courts,tribunals and institutions created and established by the Constitutionor by law. While it is undoubtedly true that Parliament can refuse to
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act on the findings and recommendations of a Commission,nevertheless Parliament cannot subject them to judicial review orquash them – for want of jurisdiction, or breach of natural justice,or otherwise; it is only the judiciary which can do so.
The application now before us is a legitimate invocation of thejurisdiction of this Court to review the findings and recommendationsof the Commission; it seeks relief only in an area in which Parliamenthas no jurisdiction, and it seeks no order or relief in respect of whatParliament has done or may do. In Bandaranaike v. Weeraratne,this Court declined to inquire into the validity of a resolution inview of the preclusive clause contained in Article 81(3). We do nothave to decide this case in the shadow of such a resolution. It istrue that in that case this Court also declined to review the findingsof the Commission, because it was of the view that to do so wouldindirectly affect the resolution. Assuming, with respect, that that viewis right, nevertheless that would not affect in any way the exerciseof our jurisdiction in a case where no resolution had been passed.
I, therefore, hold that neither delay nor pending Parliamentaryproceedings constitute a bar to the grant of Certiorari, which musttherefore issue to quash the findings and recommendations of the 1 stand 2nd respondents on the ground of non-participation by the 3rdrespondent.
2. Jurisdiction regarding exchange of LRC land
Mr. Wickremanayake referred to the second limb of the firstparagraph of the Warrant, and submitted that the Warrant confinesthe jurisdiction of the Commission: “more specifically in respect of thetransactions, activities and matters relating to such public bodiesreferred to in [the] Schedule", and that it is item 17 which appliesin the case of the LRC: "sales and leases of land", and nothing else.
Mr. Kamalasabayson relied on the first limb of that paragraph: "themanagement, administration and conduct of affairs of the publicbodies referred to in the schedule hereto", and submitted that anexchange of land belonging to the LRC could be inquired into underthat limb.
SC Wijayapala Mentis v. P. R. P. Perera and Others (Fernando, J.) 143
I agree that it is a possible interpretation that the second limb doesnot restrict the amplitude of the first; and that accordingly theCommission did have jurisdiction to inquire into the management (etc)of the LRC; and that in the course of such inquiry it could havemade findings and recommendations in regard to either anyaspect of such management (etc), or any "transactions, activities andmatters" referred to in item 17. But the question is whether thisparticular inquiry by the Commission was into such management (etc),or into one particular transaction.
The starting point of the inquiry was the show cause notice, andthat establishes that the inquiry was into a single transaction, andnot into the management (etc) of the LRC. Further, the interim reportitself (page 228) describes two inquiries as "Malpractices in theNational Housing Development Finance Corporation" and "Malprac-tices in the Custpms Department", thereby indicating that theCommission was acting under the first limb, whereas this inquiry istitled "Exchange of NLDB/LRC Land Inquiry against Mr. WijayapalaMendis".
This was, therefore, an inquiry into one transaction, and althoughthe alleged exchange involved land belonging to the LRC, andeven involved some aspects of the procedures and practices of theLRC, that did not convert the inquiry into one under the first limb.
An inquiry under the first limb would have involved direct anddetailed scrutiny – in general, and not just in respect of onetransaction – of matters such as the policy and practice of the LRCin regard to decisions to alienate land, the selection of land foralienation, the basis and procedures for valuation, etc. Indeed, if thisinquiry be regarded as one under the first limb, it would have beeninvidious discrimination to have singled out only the petitioner's trans-action, ignoring all others; at least the other transactions falling intothe same relevant class – whether Ministers, Members of Parliament,or politicians – should have been included if it were an inquiry heldunder the first limb.
Upon a scrutiny of the second limb and the schedule, it is clearthat the warrant has carefully specified and restricted the matters which
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could be inquired into. It said “transactions” in some instances (evenspecifying a monetary limit); it specified particular types of transactionsin other cases – such as “purchase", “contracts”, "tenders"; and instill other cases, it referred to “activities". One form of “alienation” whichthe Land Reform Law contemplates is “exchange”. Nevertheless,in the case of transactions involving the LRC, the warrant specifiedonly “sales and leases of land”, although it would have been easyeither to have expressly included “exchange", or to have specified"alienations” instead. This careful choice of words must be presumedto be deliberate.
I hold that the Commission had embarked upon an inquiry intoan alleged exchange of land belonging to the LRC, thereby exceedingthe jurisdiction which the Presidential warrant had conferred.
Loss of jurisdiction resulting from attempted “settlement“
It was the Presidential warrant alone which gave the Commissionjurisdiction. It authorised the Commission to inquire into and obtaininformation about various matters, including the misuse or abuse ofpower in relation to any "transaction, activity or matter"; and requiredthe Commission to report its findings and recommendations to thePresident. It did not authorise the Commission to make orders or totake other action designed to remedy any misuse or abuse of power,or to make good the loss caused thereby. If the evidence before theCommission disclosed a misuse or abuse of power, all that theCommissioners could lawfully and properly do was to report theirfindings and recommendations; indeed, they were bound to do so.
On 3.6.96 the 3rd respondent expressed the view (affirmed by the1st respondent and acquiesced in by the 2nd respondent) that if thepetitioner restored possession of the Mawatta land to the LRC"everything will end", "without wasting our time going into this". If theevidence then disclosed to the Commissioners that the Petitioner wasprobably guilty of a misuse or abuse of power, they would have beenacting contrary to the Presidential warrant in deciding to refrain fromreporting the petitioner for misuse or abuse of power (and, instead,"settling” the matter by procuring a re transfer of possession): noamount of “restitution” or "reparation" at that point of time could have
SC Wijayapala Mendis v. P. ft. P. Perera and Others (Fernando, J.) 145
retrospectively wiped out any misconduct which had actually takenplace or procured amnesty for it. Although the Commissioners havenot said so, it is theoretically possible that they had not assessedthe evidence, and therefore had not formed an opinion as to whetheror not there was misconduct. But even then they had before theman allegation in respect of which they themselves had issued a showcause notice – suggesting a prima facie case. Their duty was to inquireand report; not to mediate, conciliate or settle the dispute. It was onlyif the evidence disclosed that the petitioner was not guilty of misuseor abuse of power that it would have been lawful and proper for theCommissioners to have refrained from reporting the petitioner.
The respondents did not explain their conduct in relation to theattempted "settlement", either in the interim report or in the affidavitsfiled in this Court.
It becomes necessary to determine on what basis the Commis-sioners acted in attempting this "settlement". Should this Courtpresume that the evidence disclosed to the Commissioners a misuseor abuse of power, but that nevertheless (a) they decided that theywould not report the petitioner to HE the President; (b) the 3rdrespondent considered it a waste of time to inquire any further intosuch misuse or abuse of power, despite the provisions of the warrant;and (c) the 1st respondent considered it proper to order the LRC,in effect, to "cover up" such misuse or abuse of power? Or, on theother hand, should this court presume that the Commissioners actedproperly in indicating to the petitioner that they would refrain fromreporting because they honestly believed that the evidence did notdisclose a “reportable" misuse or abuse of power? Especially in theabsence of any allegation by anyone that the Commissioners wereacting contrary to the terms of the warrant, I hold that at that stagethe Commissioners did believe that there was nothing to report. Inany event, whatever the Commissioners may have thought, what theyactually did say would reasonably have conveyed to the petitioner thatthe Commissioners were of the view that there was nothing to report.Nothing that transpired thereafter changed that position.
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The attempts which the Commissioners made to “settle" the disputedo not have the slightest resemblance to attempts by Judges to settlecivil disputes. It is well to remember the caution administered inSabapathy v. Dunlop:
"This case conspicuously manifests the danger of Judgesparticipating in the discussion of terms of settlement and takingtoo active a part in seeking to bring about a compromise. Theterms of settlement should be left entirely to the parties and theirlegal advisers who know best, or else there will always remainthe possibility of remarks or observations coming from the Judgein the course of discussion being misunderstood and wronginterpretations put thereon."
Judges dealing with civil and criminal disputes have a jurisdiction,albeit limited, to sanction compromise; the Courts in which theyfunction have general jurisdictions, as well as inherent jurisdictions.Commissions of Inquiry do not; their jurisdiction is statutorily limited.If there is a misuse or abuse of power, they cannot initiate or sanctiona "settlement" or “compound" misconduct, by refraining to report itin obedience to the Law and. the Presidential Warrant. I
I hold that the Commission had no jurisdiction to proceedany further in the matter. Whether or not the Commission hadjurisdiction, I further hold that in any event the ultimate findings andrecommendations of the 1st and 2nd respondents were so completelyinconsistent with the previous observations and conduct of theCommissioners that those findings and recommendations are perverseand unreasonable. I must add that this illustrates the gravity ofthe non-participation of the 3rd respondent who initiated andexpressed strong views about the attempted "settlement". The otherCommissioners should have postponed their report to enable him toexpress his views on that matter. Their failure to consider his viewsbecomes all the more serious because they have failed to explaintheir conduct.
Wijayapala Mendis v. P. R. P. Perera and Others (Fernando, J.) 147
As already noted, the 1st and 2nd respondents found the petitionerguilty on a basis significantly different to that set out in the showcause notice, which they have signally failed to justify, even inwritten submissions filed after judgment was reserved. This is afundamental breach of natural justice by the 1 st and 2nd respondentswho have found the petitioner guilty on a charge materially differentto that which they asked him to answer.
In other respects too there has been a failure of natural justice.The proceedings of the Commission were not strictly adversarialin nature; the Commissioners had a duty to ascertain the factsthemselves. In several instances, the Commission refrained from callingimportant witnesses: including Madawela, the Assistant GeneralManager, NLDB, and the Assistant Manager of Siringapatha estate.Further, the evidence showed that at every stage Minister Thondamanhad given approval: for the exchange of the Mawatta land in principle(after 28.10.81), for the demarcation to be done by the NLDB (in earlyJanuary, 1982), and finally for the retention by the petitioner of theportion which he had actually taken over (in March, 1982). There wasno evidence of pressure or influence vis-a-vis the Minister ofAgriculture, Minister Thondaman, the Chairman, LRC, the Chairman,NLDB, and Chandra Bandara. Since Minister Thondaman was directlyinvolved in those three decisions, the question whether any of thosedecisions had been induced "wrongfully and by undue means"(as alleged in the show cause notice) could not have been fullyand fairly investigated without the benefit of an explanation ortestimony from Minister Thondaman, but the Commission refrainedfrom asking Minister Thondaman to explain or to testify.
There is yet another unfortunate aspect. By the end of November,1996, the 1st and 2nd respondents were aware that the 3rdrespondent's resignation had not taken effect, and that he wastherefore still a Commissioner. However, the petitioner was not toldat any time thereafter whether or not he would participate in theproceedings: whether the order of the Commission would be madeby the other two Commissioners, or by all three, after the proceedings
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were read by the 3rd respondent. Indeed, the record shows at degreeof haste which was not seemly. On 21.12.96 the petitioner wastold that the Commission had to send its report by the end of January.The judgment in Paskaralingam v. Perera shows that the period forsubmitting that report was due to expire on 2.2.97; that on 31.1.97it had been extended until 2.3.97; and again on 28.2.97 until 30.6.97.Considering that the sitting on 21.12.96 was the 276th sitting of theCommission, a further short postponement, to enable the 3rdrespondent to participate, was only reasonable. The Commission hadto submit reports in eight inquiries; of these, three had been concludedas early as September, November and December, 1995, respectively(long before the 3rd respondent fell ill on 12.11.96). But even thosereports were signed only by the 1st and 2nd respondents. The audialteram partem rule does not merely entitle a party to a purely formalopportunity of placing his case before a tribunal. Natural justice wouldbe devalued if the tribunal – and, indeed, every member of thetribunal – does not consider the evidence and the submissions; andevaluate it properly and not in haste; and, in general, give reasonsfor its conclusions. Here the 1st and 2nd respondents failed to takeenough time to enable its members to consider the petitioner's case,and, on some important issues, to give reasons.
Natural justice is fairness in action. The inquiry against the petitionerfailed to reach the minimum standard of fairness demanded of ajudicial or quasi – judicial inquiry.
I have referred extensively to some portions of the evidence notin any attempt to review the findings of fact of the Commission, butin order to identify serious shortcomings in the proceedings of theCommission, which amount to errors of law.
The proceedings began with one charge, an essential ingredientof which was mens rea – an intention to cause wrongful loss; butinstead of a finding on that issue the 1st and 2nd respondentsconcluded only that wrongful loss had in fact been caused.
SC Wijayapala Mendis v. P. R. P. Perera and Others (Fernando, J.) 149
I have already dealt with the unexplained change of front by theCommissioners in regard to the attempted "settlement".
There were two serious errors of law in regard to the proper basisof valuation of the two lands: ignoring the practice of the LRC, oftaking agricultural value, and wrongly assuming the 1981 amendmentto the Law to be applicable, despite the lack of Ministerial approvalgiven under that amendment.
It is manifest from the summary of facts that some vital documents,and many material items of oral evidence, were ignored, and otherswere misconstrued.
Although findings as to the credibility of witnesses would normallyhave been outside the scope of review, the 1st and 2nd respondentsaccepted the evidence of some witnesses, and rejected the evidenceof others, not only ignoring vital evidence relevant to credibility, buteven their own contemporaneous and recorded perceptions as tocredibility. In this context, let me recall the observations of this Courtin Senanayake v. de Silva(5) :
". . . Even witnesses who are able to stand their ground in theface of the severest cross-examination at the hands of opposingcounsel are, in view of the deference with which they treat theCourt, inclined to treat with the greatest regard suggestions of thisnature when they come from Court and are couched in compellinglanguage, and it is a rare witness who will steadily maintain hisversion in the face of such questioning by the Court . . .
. . . One of the well-recognised limitations on the powers ofCourt [to question witnesses] is that the Court must not questiona witness in the spirit of beating him down or encouraging himto give an answer . . .
… the concessions which the witness made were concessionsunder the pressure of a view expressed by Court in termssuggesting that that was the only reasonable view … It isremarkable however that although this view has been so strongly
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put to the witness in the course of the Court's questions to him,the Court has in its judgment expressed a diametrically oppositeview."
Those observations are applicable to the unexplained change ofviews by the 1st and 2nd respondents in relation to the attempted"settlement'', as well as to the manner in which they elicited answersfrom witnesses.
The summary of facts shows how the Chairman, NLDB, so readilyfell in line with suggestions strongly put to him by the Commissioners,even to the extent of veering from one position to a diametricallyopposite one – all of which the interim report failed to mention.Nimal Gunaratne's evidence was accepted without even a passingreference to the 1st respondent's rebuke that he was merelycoming to say what someone else had asked him to say; andRamanayake's evidence was rejected because of “the very definiteevidence given by Gunaratne", and was characterized as "vague"although none of the Commissioners seem to have thought so atthe time.
Considered in isolation, each of these is a serious error of law;taken cumulatively, they are so extensive and so grave as to amountto a denial of a fair inquiry.
Since the findings of the 1st and 2nd respondents cannot standfor the several reasons set out above, the recommendations arenecessarily null and void. But even if the findings were valid, therecommendations proceed on the assumption – manifest from the useof the phrase "we accordingly recommend" – that the automaticconsequence of a finding that there was a misuse or abuse of powermust be a recommendation for the imposition of civic disability. Theyhave assumed that they had no discretion in the matter. They failedto consider, for instance, the fact that there had been no transfer oftitle, that there was no finding as to a dishonest intention, andthat the two lands had been valued in accordance with the procedure
SC Wijayapala Mendis v. P. R. P. Perera and Others (Fernando, J.) 151
prevailing at the time, including approval by the Chief Valuer. It canhardly be argued that upon a proper consideration of those mattersthe same recommendations might have been made, especiallybecause of the strong views expressed by the Commissioners inregard to the "settlement". Cogent reasons would have been necessaryto justify a recommendation for the imposition of civic disability foralleged "misconduct", which the Commissioners had seriouslyconsidered to be "compoundable".
I hold, therefore, that the recommendations were arbitrary andunreasonable.
In view of the concession made, with characteristic fairness, byMr. Kamalasabayson, who appeared for the 1st and 2nd respondents,that he was not canvassing the correctness of Paskaralingam v.Perera, Certiorari must necessarily issue bn the ground that the interimreport had not been signed by the 3rd respondent.
I hold, further, for the reasons set out in this judgment, that thefindings and recommendations of the 1st and 2nd respondents werevitiated, inter alia, by want or excess of jurisdiction, breach of naturaljustice, and error of law on the face of the record. I
I direct the issue of a mandate in the nature of a writ of Certiorarito quash the findings and recommendations made by the 1st and 2ndrespondents (set out in their interim report dated 2.3.97, InquiryNo. 5/97) against the petitioner. In regard to costs, I cannot ignorethe fact that in the course of the proceedings the Commissionersthemselves made observations which were consistent only with theconsidered view that findings of guilt and recommendations for theimposition of civic disability were not reasonably possible. Accordingly,
I direct the State to pay the petitioner a sum of Rs. 20,000 towardshis costs before the Commission, and a sum of Rs. 20,000 as costsin this Court.
GUNAWARDANA, J. – I agree.
GUNASEKARA, J. – I agree.
Application allowed; certiorari issued.