038-SLLR-SLLR-1986-V-1-SIRIWARDENA-AND-OTHERS-v.-BRIGEDIER-J.-RODRIGO-AND-OTHERS.pdf
384
Sri Lanka Law Reports
[1986] 1 SriL.R.
SIRIW ARDEN/? AND OTHERS
0
v.c.
BRIGADIER J. RODRIGO AND OTHERS
SUPREME COURT.
RANA'SINGHE. J.. TAMBIAH. J. AND L. H. DE ALWIS. J.
S.C APPLICATION 104/85.
JANUARY 13 AND 15. 1986.
Fundamental Rights-Fundamental Right of equality-Articles 12(1) and (2) of theConstitution-Time limit for filing application-Land Grant (Special Provisions) Law.No. 43 of 1973.
Where a land called Gallewatta vested in the Land Reform Commission had beendistributed on minor leases to the petitioners and two similar lands also vested in thetand Reform Commission and situate in close proximity to Gallewatta were alsosimilarly distributed to others and on Gallewatte later becoming state land the 1 st and2nd respondents .who were the Government Agent and Assistant Government Agenttook steps to re-distribute Gallewatta to others in ten-perch blocks allegedly at theinstigation of the Member of Parliament the 3rd respondent to whom they werepolitically opposed-
sc
Siriwardena v. Brigadier J. Rodrigo
385
Held-
The land called Gallewatte being state land the 1 st and 2nd respondents couldexercise powers in their official capacity under the provisions of the Land Grant(Special Provisions) Law. No. 43 of 1973.
Gallewatte being a State land was in a-different category from the other two landswhich were vested in the Land Reform Commission.
There was therefore no infringement of the fundamental right of equality.
An application must be filed within one month from the date of the commission ofthe administrative or executive act which it is alleged constitutes the infringement orimminent infringement of the Fundamental Right relied on. Where, however, apetitioner establishes he became aware of such infringement or imminent infringementonly on a later date, the one month will run from that date. The petitioners had filed theirapplication long after the expiry of one month from the date they became aware of theinfringement. Hence the application was out of time.
Case referred to:
Edirisuriya v. Navaratnam and Others [1985](1) SLR 100.
APPLICATION complaining of violation of the Fundamental Right of Equality.
8. Weerakoon with Palihapitiya and D. S. Rupasinghe for petitioners.
Sarath Silva, Deputy Solicitor General for 1 st and 2nd respondents.
0. S. Wijesinghe with Shantha Perera for 3rd respondent.
•>
9Cur. adv. vult.
February 10, 1986.
RANASINGHE, J.
The 1 st petitioner and the other twenty-five petitioners, who are allsaid to have been granted Minor Leases, such as "A", under theprovisions of the Land Reform Law, No. 1 of 1972, of half an acreeach from and out of the land called Gallewatta. situate at Seeduwawithin the Ja-ela Parliamentary electorate, have instituted theseproceedings on 25.9.85 under and by virtue of the provisions ofArticle 1 7 read with Article 1 26 of the Constitution on the ground thatcertain acts of the 1 st and 2nd respondents, who are the GovernmentAgent and the Assistant Government Agent respectively of Gampaha.constitute violations of their Fundamental Rights of equality before,and the equal protection of the law guaranteed by the provisions ofArticles 12(1) and (2) of the Constitution.
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{1986] 1 SriL.R.
The case for the petitioners, as set out in the petition, briefly is: that,in or about the year 1973, the land called Gallewatta, referred toabove, vested in the Land Reform Commission: that thereafter MinorLeases, as referred to above were granted to them all by the saidCommission: that two other lands, called Lahuwela Rajaye Idama andIsekhenawatte. which vyere. situate in close proximity to the said landcalled Gallewatta, were also distributed upon similar Minor Leases bythe said Commission: that in or about June 1979 the said leases givento the petitioners were cancelled, at the instigation of the 3rdrespondent, by notices similar to "C", which said notice also requiredthe petitioners to vacate their respective allotments: that thepetitioners did not quit their allotments; and. although attempts weremade by the 3rd respondent to have the petitioners evicted forcibly,all such attempts proved futile: that the 1st and 2nd respondentsthereafter, by notice "E", dated 23.8.82, announced that the saidland Gallewatta would be distributed in blocks of 20 perches each topersons-who had the qualifications set out therein: that subsequentlyin March 1985 by notice "D". dated 15.3.85, the said respondentsmade a further announcement that the said land would be sore-distributed in blocks of 10 perches each: that, despite the protestsmade by the petitioners, the respondents proceeded forcibly to surveythe said land about the 15th August 1985 and block it into ten perchblocks: that those steps are being ^o taken only to have the petitionersevicted, and the political supporters of the 3rd respondent settled onthe said land: that steps have already beenaaken. by letters "F" and"G", dated 7.6.1981 and 2.8.85 respectively, to give a politicalsupporter of the 3rd respondent, named M. W. D. K. S. Mendis. anallotment of 1/2 acre which is more than the extent that the saidnotices proclaimed the others would be granted, that, although thesaid land Gallewatta is being so sought to be redistributed, no suchsteps have been taken to redisrtibute the lands called Lahuwela RajayeIdama and Isekhenawatta, referred to above, and which had also beengiven out. at the same time as Gallewatta. upon Minor Leases: thatGallewatta has been so singled out for re-distribution because themajority of the occupants of Gallewatta, like the petitioners, arepolitically opposed to the 3rd respondent whilst most of theoccupants of the other two lands have now become supporters of the3rd respondent: that the reduction of the present allotments of thepetitioners to ten perch blocks would destroy even the houses whichthe petitioners have built on their allotments: that the respondents
SCSiriwardena v. Brigadier J. Rodrigo (Ranasinghe. J.)387
have, in issuing the said letters "F" and in resurveying the said landGallewatta for the purpose of blocking out into ten perch blocks,violated the aforesaid Fundamental Rights of the petitioners.
In the written submissions filed on behalf of the petitioners theviolations complained of were set out as: the breaking-up of the 1/2acre allotments of land which each of the petitioners enjoyed, into 10perch blocks; and the attempt to re-distribute the said ten perchblocks amongst the political supporters of the 3rd respondent withinthe Ja-ela electorate.
At the hearing of the application before this Court learned counselappearing for the petitioners, however, submitted that the violationthe petitioners complain of and rely on is the decision of the 1 st and2nd respondents, at the instigation of the 3rd respondent who wasmotivated by political reasons, to single out the said land calledGallewatta, without any reasonable grounds, from and out of the threelands-the said land called Gallewatta, and the two lands calledLahuwela Rajaye Idama and Isekhenawatte referred to earlier-for suchdivision and re-distribution.
Learned Deputy Solicitor-General appearing for the 1st and 2ndrespondents, and also learned counsel for the 3rd respondent,raised apreliminary objection to the petitioners' application being heard: thatthe petition has not been filed withiryhe period of one month set out inSub-Article (2) of Article 126 of the Constitution.
The period of one moifth specified in Sub-Article .(2) of Article 1 26of the Constitution would ordinarily begin to run from the very date theexecutive or administrative act, which is said to constitute theinfringement, or the imminent infringement as the case may be. of theFundamental Right relied on. was in fact committed. Where, however,a petitioner establishes that he became aware of such infringement, orthe imminent infringement, not on the very day the act complained ofwas so committed, but only subsequently on a later date, then, insuch a case, the said period of one month will be computed only fromthe date on which such petitioner did in fact become aware of suchinfringement and was in a position to take effective steps to comebefore this.Court-vide Edirisuriya v. Navaratnam and Others (I),3*where the earlier authorities are also referred to
Several of the present petitioners, including the 1 st'petitioner,initiated proceedings before the Court of Appeal in September 1982,in application bearing number 1163/82 of the Court of Appeal againsttwo respondents, who are the 1st and 2nd respondents in these
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proceedings, tohave the Order "E", which was marked P11 in thoseproceedings, quashed and to prohibit the said respondents fromproceeding to take any action in terms of such notice. After the saidrespondents filed their objections, and when the matter came up forinquiry, the said petitioners withdrew their application, in view of theaverment of the respondent that, if the petitioners preferredapplications in response to the said notice P11. such applicationswould be considered by the respondents on their merits. No referencewas made by the petitioners in their petition to the institution by themof such earlier application to the Court of Appeal, and to theirwithdrawal of such application. It was left to the Respondents to bringthose proceedings to the notice of this Court.
A consideration of the affidavit, 1R2, filed by the petitioners in theaforementioned earlier application shows that they had specificallycomplained that the impugned action, which is also the actcomplained of in these proceedings as constituting the violation of theFundamental Right guaranteed in Articles 12(1) and (2) of the■ Constitution, "amount to acts of cruelty and discrimination againstcitizens or denial of the Fundamental Rights stated in Articles 11 and1 2 of the Constitution of Sri Lanka".
Learned counsel for the petitioners contended that, even though theorder "E" was made in August ?982 and thpy became aware of it atthat time, yet, the act which actually constituted the violationcomplained of, namely: the survey, took place only in August 1985.
Having regard to the principles set forth in the judgments of thisCourt, referred to earlier, it seems to me that, in view of the facts andcircumstances relevant to this matter, the said period of one monthshould be calculated from the date the petitioners became aware ofthe Order "E" which itself bears the date 23rd August 1982. Theaffidavit 1R2, referred to above, as having been filed by the petitionersin support of their application to the Court of Appeal seeking reliefagainst the said Order (marked P11 in those proceedings), has beenAffirmed to by the 1st petitioner, and several of the other petitioners,on 7.9.82. The petitioners have instituted these proceedings beforethis Court only on 25.9.85. Hence,, even on learned counsel's owncontention-that the operative date should be the date of the survey,which, as already stated, was done on 1 5.8.1 985-the saidone-month period has been exceeded.
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Siriwardena v. Brigadier J. Rodrigo (Ranasinghe, J.)
389
Even though the said preliminary objection must be upheld and theapplication dismissed upon that ground alone, yet, I shall proceed toconsider the further objection that the petitioners cannot, upon thefacts and circumstances of this case,invoke the provisions of Articles1 2(1) and (2) at all.
By the Order 1R1, dated 17.5.1982, the aforesaid land Gallewatta.which had ealier, on 26.8.1972, vested in the Land ReformCommission under the provisions of the Land Reform Law, No. 1 of1972, was vested in the State under and by virtue of the provisions ofSec. 2(1) Land Grant (Special Provisions) Law No. 43 of 1979. Fromand after the date on which the Order 1R1 was made, the aforesaidland Gallewatta became State land, whilst the other two lands,Lahuwela Rajaye Idama and Isekhenawatta, referred to earlier ashaving been, along with the aforesaid land called Gallewatta, vested inthe Land Reform Commission, continued to be vested in the LandReform Commission. After the said land called Gallewatta vested inthe State it became land in respect of which the 1st and 2ndrespondents could exercise powers in their official capacity, under theprovisions of the Land Grant (Special Provisions) Law No. 43 of 1979.Once the said Order 1R1 came into operation the aforesaid land called. Gallewatta fell into a different category of land; and it could notthereafter be treated as being in th£ same category as, and similar tothe other two lands, Lahuwela Rajaye Idama and Isekhenawatta. Thediscrimination, if at all, i§ the treatment of the three said lands tookplace on the occasion 1R1 was made, when the said land calledGallewatta was singled out for vesting in the State whilst leaving theother two lands still vested in the Land Reform Commission. There isno evidence of any steps having been taken by the petitioners tochallenge the validity of the said Order 1R1.
The petitioners have also wholly failed to prove any improperconduct on the part of the 1 st and 2nd respondents. The materialplaced before this Court, in my opinion, clearly establishes that the 1 stand 2nd respondents have, far from being dictated to by the 3rdrespondent, resisted succumbing to any outside pressure, and haveacted on their own.
For these reasons, the petitioners' application is dismissed, but*without costs.
TAMBIAH, J. – I agree.
L. H. DE ALWIS, J.-I agree.
Application dismissed.