014-SLLR-SLLR-2004-V-3-RATHNAYAKE-v.-SARATH-DIVISIONAL-SECRETARY-THIHAGODA-AND-OTHERS.pdf
Rathnayaka v. Sarath, Dovisional Secretary. Thihagoda
and Others (Wiieratne. J),
95
RATHNAYAKAvSARATH, DIVISIONAL SECRETARY, THIHAGODA ANDOTHERSCOURT OF APPEALWIJAYARATNE, J.
CA 259/2001.
FEBRUARY 26, 2004.
Writ of certiorari – Land Acquisition Act, sections 2, 4 and 38 – Laches -Principles of unreasonableness – Procedure of acquisition flawed? – Malafide?
The petitioner sought to quash the decision of the 1st respondent DivisionalSecretary to take over possession of his land. The petitioner contended that aportion of his land along with a portion of the land on the opposite side of theroad were acquired in 1968 for the purpose of widening the road and theselands were still unutilized. It was his position that the 2nd respondent Ministerhas acted unreasonably, arbitrarily and capriciously.
The respondent contended that the acquisition was lawfully done after dueprocess, and further contended that there is delay on the part of the petitioner.
Held:Delay unexplained and undue in the circumstances could beconsidered in rejecting an application.The petitioner however hadexplained the delay and it is for the court to consider whether the delayis unreasonable.
,The section 2 notice had been issued after the survey of the land by a
private surveyor and it is evident that the section 2 notice was not forthe purpose of determining the suitability of the land as it was alreadydetermined that the land should be acquired.
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Inquiry under section 4 (4) was a mere formality and there is nothingthe respondents have shown to prove that it was a genuine effort toconsider the grievance of that petitioner.
Even at this late stage the decisions and the recommendation are notforthcoming and it is thus not possible to consider what this inquiringofficer has considered.
The matter of procedure of acquisition being followed, does not satisfythat the procedure was duly followed and genuinely taken in respect ofthe acquisitions challenged.
APPLICATION for a writ of certiorari / mandamus.
Cases referred to:
Dissanayake v Fernando 66 NLR 145.
Virakesari v Fernando 66 NLR 145
Biso Menike v Cyril de Alwis -1982 1 Sri LR 368
Topa Sporting Goods (Pvt) Ltd. v The Commissioner of Labour andothers 1997 2 NLR 95
Manel Fernando v D. M. Jayaratne, Minister of Lands and others -2000 1 Sri L.R 112
Chandana Prematilka for petitioner.
Y: J. W. Wijayatilake, Deputy Solicitor General for respondent.
Cur. adv. vult
April 27, 2004WIJEYARATNE, J.
Thepetitioner filed this application seeking the issue of a writ ofcertiorari quashing the decision of the 1st respondent in P33 to takeover possession of the land in suit depicted as lot I in plan P16 andthe order No. 79 of 1998 published in Gazette Extra Ordinary No..1030/2 dated 06.01.1998 directing the 1st respondent to takepossession of the land mentioned in such order. The petitionersought the issue of writ of mandamus directing the 1st and 2ndrespondents to take all steps to revoke the order No, 79 of 1988and further sought , interim relief pending determination of thisapplication.
CA
Rathnayaka v. Sarath, Dovisional Secretary. Thihagoda
and Others (Wijeratne, J)
97
The application was made on the premise that a portion of thepetitioner’s land along with a portion of the land on the oppositeside of the road were acquired in the year 1968 for.the purpose ofwidening the road and the same are shown in plan 169 dated7.10.1069. Relevant documents were marked as P2 to P11. Thepetitioner states that though lands on either side of the road wereacquired for the purpose of widening the road, the portion acquiredon the opposite side of the road was never taken possession of.
After several decades in 1992 the Pradeshiya Sabha of. the areainitiated action to acquire land from the petitioner (P12 & P13) and 20the Divisional Secretary after inspection recommended thedemolition of parapet walls on either side of the road withoutdamaging either of the houses (P14 & P15). Pradeshiya Sabha haspassed a resolution to acquire 0.52 perches only from thepetitioner’s land and got a private surveyor to prepare plan No. 429dated 12.7.1995 marked P16. The petitioner states that theacquisition and taking possession of the area depicted in plan 429marked P16 will cause a portion of his residing houses to bedemolished and the road widened would run at the doorstep of theremaining portion of the house. After the consideration of 30representations made the ,2nd respondents predecessor in officeabandoned the acquisition and a decision in terms of section 50 ofthe Land Acquisition Act was communicated in letter dated11.11.1996 marked P17. However section 2 notice under Land-Acquisition Act dated 22.01.1997 and section 4 notice (P18 and 19)were later published at the instance of the Pradeshiya Sabha,which the petitioner alleged acted mala tides, to acquire land onlyfrom the premises of the petitioner ignoring the recommendation inP14 & P15 and the previous abandonment of the acquisition (P17).Consequent to the representation made in P20 and P21 an inquiry 40was held at which the petitioner alleged his representation was notduly considered and documents rejected. Copies of the same aremarked P22 and P23. No decision of the inquiry wascommunicated, the petitioner urged the respondents to use lot 2 in•P4 for the widening of the road (P24). The petitioner appealed tothe 2nd respondents predecessor in office and to Minister of LocalGovernment and Provincial Councils (P25 to P28). Uponinformation he gathered, the petitioner made complaint to Police(P29 & P30) and made application to Provincial High Court of
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Southern Province holden at Matara in case No. Writ 79/98 whichwas rejected on ground of jurisdiction (P31 and P32). Thereafterthe 1st respondent informed the petitioner that possession of theland referred to in P31 be taken by him (P33) consequent to noticeunder section 38(a) of the Land Acquisition Act.
The petitioner states that the relevant Pradeshiya Sabha and itsChairman moving the acquisition of his land acted mala tides andwith Improper consideration and the predecessor in office of the2nd respondent who made orders and decisions to acquire landonly from the premises Of the petitioner ignoring therecommendations in P14 and the fact that lot 2 in P4 alreadyacquired for road widening was still unutilized for the purpose itwas acquired and the utilization of the same would avoid the use ofpetitioners land after demolition of part of his residing house. Thereis no urgency in taking possession of his land as there is norecommendation by the applicant Minister requesting the 2ndrespondent to take possession of land acquired under section38(a). Accordingly the petitioner states that the 2nd respondenthas acted unreasonably,'arbita.rity and capriciously and thereforethe acquisition is illegal, and / or bad in law and prayed for the reliefas in this application.
. The 2nd respondent’s response to this application shown in hisaffidavit categorically states that he is unaware of previousacquisition as the relevant files and documents are not availablebut states that all requirements of the Land Acquisition Act and theprocedures were followed in the acquisition of land from thepetitioner’s premises. The acquisition is lawfully done after dueprocess and hence there are no grounds to issue writs as soughtby the petitioner. He seeks the dismissal of the application.
At the stage of the hearing the learned counsel for therespondent reiterated his position that acquisition. was lawfullydone, and in'the absence of proof of mala tides, reasonableness ofthe decision of the Minister to acquire and take possession of theland cannot be challenged in these proceedings. In.addition thelearned counsel for the respondent raised the objections that theapplication of the petitioner made in 2001 seeks to challenge theorder made two years prior to the application and therefore shouldbe dismissed in limine.
so
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70
80
Rathnayaka v. Sarath and Others
(Wijayaratne, J.)
99
CA
It is pertinent to note that delay unexplained and undue in thecircumstances of the case only can be considered in rejecting anapplication. The petitioner however has explained the delay 9°occasioned by the unsuccessful application before the ProvincialHigh Court Matara. In those circumstances the period during thependency of the proceedings before the Provincial High Court isneither undue delay not is it unexplained. However it is for the courtto consider whether the delay is unreasonable Vide Dissanayake vFernando 0).
"whether there has been unreasonable delay or not islargely a matter of opinion and depends on thecircumstances of each case"
In the cases of -100
Virakesari v Fernando <2)
Bisomenika v Cyril de Aiwis (3) and
Topa Sporting Goods (Pvt) Ltd v the Commissioner ofLabour & others (4)>
It was decided that before dismissing an application on the’ground of delay, the court should consider whether an aggrievedparty could establish an error on the face of the record, the mischiefcomplained and whether substantial prejudice would' be caused tothe respondents.
Upon a consideration of facts urged and the response to the nosame, it is apparent that previous acquisitions in 1969 is neitherdenied nor commented upon by the 2nd respondent due asalleged, to non availability of relevant records which are producedby the petitioner who produced copies of the notice under section38 (a) dated 24.8.1969. However the non availability of relevantdocuments is no reason for the respondent to act unreasonably orwithout due consideration of relevant facts, and the respondentcannot in law claim any benefit of non-availability of documents tojustify the subsequent acts’.
With regard to acquisition procedures, it appears the section 2 120notice was issued much after the survey of the land by a privatesurveyor. It is evident that section 2 notice was not for the purpose
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of determining the suitability of the land, as it was alreadydetermined that the portion of land in P16 should be acquired. Evensection 4 notice and the inquiry under section 4(4) were followed asmere formalities and there is nothing the respondent has shown toprove that it was a genuine effort to consider the grievance of thepetitioner. Even at this late stage the decisions and therecommendation are not forthcoming and it.is thus not possible toconsider what the inquiring officer has considered. The petitionerhas produced documents marked P35 to P39 establishing that theMinistry and relevant authorities in fact have acknowledged thereceipt of complaints of the petitioner disproving the position takenup by the second respondent in his affidavit that petitioner’s letterof complaints were not received-by the relevant authorities.
However the fact of the land previously acquired on the otherside of the road, remaining unutilized.remains unanswered by therespondents. It appears that the respondents for whatever thereason are not acting in a just and reasonable manner when theyhave failed to utilize the already acquired land for the purpose'ofwidening the road, but proceeded to acquire more land from thepetitioner’s premises only with the likely result of part of his housebeing demolished only to avoid the demolition of the parapet wallon the other side of the road. It is apparent that the respondentshave failed to consider the recommendation of the 1 st respondent’spredecessor in office. Nor is there any proof that the inquiry officerhas considered this aspect of the matter. Order under provision (a)to section 38 is not made on any recommendation of the applicantMinistry and the respondents do not even suggest that there wassuch recommendation.
This renders the impugned orders unreasonable, arbitrary andcapricious, in so far as they were not made after due andreasonable consideration of all the attendant circumstances.Contrary to the submission made by the respondents,unreasonable arbitrary and capricious decisions are alwaysconsidered to be amenable to judical review, and this is commonlyand more popularly referred to as “Wednesbury Review”
CA
Rathnayaka v. Sarath and Others
(Wiiavaratne. J.)
101
Vide Chapter under the heading.
THE PRINCIPLE OF UNREASONABLENESS
page 353, Administrative Law, (Eighth Edition) by Professor 160Wade.
The matter of procedure of acquisition being followed asreferred to by the respondent, does not satisfy that the procedurewas duly followed and genuinely taken in respect of acquisitionschallenged in these proceedings for the reasons stated earlier ipthis order and they appear a sham and a pretense, specially in theabsence of any documents of such inquiry and consideration beingreferred to or placed before this court for consideration. Thepetitioner has made reference to the decision of the case of MartelFernando v D.M. Jayaratne, Minister of Lands and others. The 170counsel for. the respondents urged that the said decision issubsequent to the acquisition proceedings impugned in this caseand hence it cannot reopen these proceedings, there is.no disputethat the same cannot be applied as a rule. However the principlesenunciated there are relevant to the facts at all times and the factsof the present case too are similar.
In the circumstances I hold that the decisions of 1st respondentin P33 and order No. 79 of 1998 published in Gazette ExtraordinaryNo. 1030/2 dated 06.01.1998 are unreasonable, arbitrary andcapricious for the reasons stated above and quash the same. 180Consequent to such quashing, writ of mandamus is . issued torevoke the said order No. 79 referred to above and direct therespondents to take all steps according to law to revoke the same. ,
Accordingly the application of the petitioner is allowed and writsof certiorari and mandamus are issued in terms of prayer (IV) (V)and (VI) of the petition.
Application allowed.