021-SLLR-SLLR-2010-V-2-THIRMAVITHANA-vs.-URBAN-DEVELOPMENT-AUTHORITY-AND-OTHERS.pdf
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THIRIMAVITHANA VS. URBAN DEVELOPMENT AUTHORITYAND OTHERSCOURT OF APPEALSRIPAVAN, J.
SISIRA DE ABREW, J.
CA 378/2005NOVEMBER 14, 2005JANUARY 25, 2006
MAY 8, 10, 15, 16, 17, 23, 25, 26, 29, 2006JUNE 1, 6, 15, 27, 2006SEPTEMBER 6, 2006
Writ of Certiorari – Acquisition of Land reserved for play ground/recreational activities for residents – possession taken over -under unlawful arbitrary capricious? – Urban DevelopmentAuthority law (UDA) law of 41 of1978 as amended • Section 18(1).Alienation of UDA land ■ is the approval of the minister necessary?Availability of Judicial review ■ failure to follow procedure laiddown in law – total? – Legitimate Expectation – to have the groundkept as a play ground? change of promise – overriding publicinterest?
The petitioners are the owners/residents/ occupiers of the housessituated within the Jayanthipuara Housing Scheme – 65 Acres. TheLand was originally divided amongst the original owners and a block ofland of about 5 Acres 3 Roods was identified as open space. A portion ofthis area – in extent one Acre had been used as a playground and forrecreational activities by the residents and the school children of thearea.
The 1st respondent UDA sought to acquire the said 1 Acre and theadjoining 20 Perch land to be given to a State Department andpossession had been handed over to the State Department. ThePetitioners sought to quash the said decision on the basis that the saiddecision is unlawful, arbitrary capricious and offends the principles ofunreasonableness, Legitimate Expectation and natural justice.
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Held
Section 18 of the UDA Law suggests that the UDA can alienateany land or interest in any land held by the UDA with the approvalof the Minister in charge of the subject of Urban Development. Itappears that the UDA derives power to alienate any land orinterest in any land held by the UDA only with the approval of theMinister. The UDA has alienated a land held by.it without obtainingthe approval of the Minister.
The UDA took the decision to alienate the land on 8.4.2003 – theMinister had given approval only in October 2004.
The UDA in the circumstances has acted without any legal basis.
Per Sisira de Abrew, J.
“Acting without power, in my view, is more offensive to the rulesof Administrative Law than exceeding power when the principlelaid down in the judicial decisions apply to the facts of this case;the decision alienating the Land to the State Department has to bequashed.”
The possession was handed over on 18.9.2002. The approval ofthe Minister was on 25.10.2004. Approval was granted 2 yearsafter handing over of the Physical possession of the land to theState Department. This decision is ultra vires the UDA law.
Section 18 of the UDA law contemplates on instruments ofalienation. No such instrument has been produced. Section 18further states that when lands are alienated the UDA will have toprescribe the terms and conditions as determined by the Minister.This is a safeguard to protect the purpose for which the land wasalienated – purpose of Urban Development.
In Sisira De Abrew, J.
“Even if the petitioners have not come to Court on the basis thatthe UDA had failed to follow the procedure laid down in law, if itis brought to the notice of Court that the respondents have takendecisions after violating the procedure so laid down and withoutfollowing the mandatory requirements can the Court exercisingsupervisory Jurisdiction over the decisions made by the publicbodies, turn a blind eye to such decisions – the answer is No.”
Legitimate or reasonable expectation may arise either from anexpress promise given on behalf of a public authority upon the
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existence of a regular practice which the claimant can reasonablyexpect to continue. There is a clear promise given by the UDA thatthe land would be kept as a the play ground for the residents ofthe scheme – The petitioners also claim that they have been usingthis land as a play ground since 1964 when the housing schemewas originated. The promise had generated legitimate expectationsin the minds of the petitioners to keep this land as a play ground.
Her Excellency the President in a Cabinet Memorandum -30.01.2001 – stated that a land at Robert Gunawardene MawathaBattaramulla had been assigned by the UDA for the purpose ofconstructing a Head Office Complex for the State Department.Then can be an overriding public interest to give the land whichis at Jayathipura Battaramulla to the State Department – There isno overriding public Interest to give this Land to the State Depart-ment. It is not possible for the UDA to say that they changed theirpolicy as there was an overriding public Interest.
The public authorities are bound by its undertakings/promisesprovided (1) That they do not conflict with its statutory duty (2)that there is an overriding public interest justifying the departuresfrom the earlier undertakings or promises.
Per Sisira De Abrew, J.
“Hence after the promise or undertaking, if parties enter in to anagreement on the strength of the said promise or undertaking andif such agreement is violated, since in such a situation relation-ship between the parties is a contractual. No right lies to remedythe grievances arising from alleged breach of contract.”
If a public authority decides to act contrary to its published policyor decisions to frustrate Legitimate Expectation created amongthe individuals by way of promise or undertaking such decisions,unless there is an overriding public interest are liable to be quashedby way of Writ of Certiorari”.
APPLICATION for a writ of Certiorari. . .
Cases referred to :•
R. vs. North and East Devon Health Authority ex parte Coughlen -2000 3 All ER 850 at 873
Preston vs. IRC, 1985 2 All ER 327 at 337, 1985 AC 835 at 862
Cunarathne vs. Chandrananda de Silva 1998 3 SLR 265
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Associated Provincial Picture House Ltd vs. Wednesbury Corporation(1948)- 1KB 223 at 229
Bradbury and Others vs. Enfield London Borough Councial- 1967 1WLR 1311 at 1324
Regine vs. Hull University Ex Parte – (1993) AC 682 at 701
Boddington vs. British Transport Police 1999 2 AC 143 at page 171
Jayantha Wijesekera and Others vs. Attorney General and OthersSC (FR) 243-245/2006
Council of Civil Services Union vs. Minister for the Civil Service -(1985) AC 374 at 410
Tokya Cement Co. Ltd vs. Gunrathne and Others (SC Appeal No.23/2004)
Attorney General of Hong Kong vs. Ng Yuen Shiu (Privy Council)1983) 2 AC 629
Regina vs. Liverpool Corporation, Ex parte Liverpool Taxi FleetOperators Association (1972) -2 QB 299
Council of Civil Services Unionvs. Ministerfor the Civil Service (1984)3 All ER 935
Wickremaratne vs. Jayaratne and other 2001 3 SLR 161
Sirimal and Others vs. Board of Directors of the Co-operativeWholesale Establishment and others 2003 2 SLR 23
Regina vs. Secretary of State for Education and Employment,Ex-parte, Begbio 2000 1 WLR 1115
R vs. Home Secretary exp Asif Mahmood Khan (1984) 1 WLR 1337
Dayarathne and Others vs. Minister of Health and IndigenousMedicine (SC) (1999) 1 SLR 393 at 412
Chanfradasa vs. Wijeratne (1982) 2 SLR 412
Weligama Multipurpose Co-operative Society vs. ChandradasaDaluwatta (1984) 1 SLR 195 at 199
Jayaweera vs. Wijeratne (1985) 2 SLR 413
De Alwis vs. Sri Lanka Telecom (1995) 2 SLR 38
K. S. De Silva vs. National Water Supply & Drainage Board andAnother (1989) 2 SLR 1
Jayawardene vs. Peoples Bank (2002) 3 SLR 17
Sanjeewa Jayawardene with Rajeev Amarsinghe for the Petitioner.
Farzana Jameel SSC with Anusha Samaranayeke SC for the
respondnets.
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October 26th 2006SISIRA DB ABREW J.
The factsThe petitioners are the owners and/or residents and/or occupiers of the houses situated within the JayanthipuraHousing Scheme which comprises approximately 65 acres(26.31 Hectares) of land bordering the Battaramulla -Pannipitiya Road and Parliament State Drive. There areapproximately 2500 residents living in this housing scheme.According to the petitioners when the said land was origi-nally divided amongst the original owners, a block of landextent of which is about 5 Acres and 3 Roods was identifiedas open space and the said land is depicted as lot 5 in planmarked P3. The petitioners state that a portion of this landamounting to one acre had, since 1954, when the housingscheme was originated, been used as a play ground and forrecreational activities by the residents and the schoolchildren of Battaramulla.
In May 1995, the petitioners received information thatcertain interested parties were making attempts to acquirethe said land and on making inquires, the 1st respondent byletters marked P9 and PI 1 informed the petitioners that the1st respondent had not given any approval to allocate thisplayground to any outside party for development and that thisland has been reserved for Jayanthipura Housing Schemefor the last 40 years. However when the representatives ofthe petitioners met the Director (Lands) of the 1st respon-dent on 4.6.2003 they were informed that the land used asplayground had been earmarked to be given to a GovernmentDepartment. The document marked 1R16 indicates that lotNo.l of plan No. 664 dated 18.09.2002 has been given toDirector, Department of Wild Life Conservation on 18.9.2002.
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The petitioners, inter alia, move for a writ of certiorari to quashthe decision of the 1st, 2nd and 3rd respondents and/or 7th to13th respondents to allocate and/or grant and/or transfer theland depicted as lot No. 5 in plan marked P3. The Petitionersalso move for a writ of prohibition on the 1st to 3rd and 5threspondents from using and/or utilizing the said land forany purpose other than as an open space and playground.The 1st, 2nd and 3rd respondents in paragraph 16(n) of theirstatement of objections admit that physical possession oflot no 1 of plan No. 664 dated 18.9.2002 prepared by AJBWijekoon Licensed Surveyor amounting to one acre was dulyhanded over to the Department of Wild Life Conservation(Department of WLC) on 18.9.2002. It is significant to notethat the date of the plan in 18.9.2002 and the handing overof the said block of land was also done on the same date.From the pleadings filed by the petitioners and the respon-dents it is safe to conclude that physical possession of theplayground has been handed over to the said department andit is this playground and the adjoining block of 20 perchesthat the petitioners are complaining of. The petitioners allege,inter alia, that the decision of the 1st to 3rd respondents and7th to 13th respondents to allocate the above land is unlawful,arbitrary, capricious and offends the principles of unreason-ableness, fairness, proportionality, natural justice, legitimateexpectation and for improper motives. I will first advert tothis contention. Under section 18 of the Urban DevelopmentAuthority Law (UDA Law) No. 41 of 1978 as amended, theUrban Development Authority (hereinafter referred to as theUDA) has the power to alienate any land held by the UDA.Section 18(1) of the UDA Law provides as follows:-
*The Authority may, with the approval of the Minister,alienate, by way of sale, lease, rent or rent purchase for thepurpose of urban development, any land or interest in land
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held by the Authority, subject to such terms and conditionsincluding the use or uses for which the land or interest inland is alienated as may be determined by the Minister, andin particular, but without prejudice to the generality of theforegoing provisions of this section, a condition to the effectthat the alienation effected by the instrument of alienationmay be cancelled or determined in the event of a failure tocomply with any other condition specified in such instrument,or in the event of any money due to the Authority under suchinstrument remaining unpaid for any such period as may bespecified therein”
A close reading of Section 18 suggests that the UDA canalienate any land or interest in any land held by the UDAwith the approval of the minister in charge of the subject ofurban development (hereinafter referred to as the Minister).Considering the scheme provided in Section 18(1) of the UDALaw, it appears to me that the UDA derives power to alienateany land of interest in any land held by the UDA only withthe approval of the Minister. Thus, the UDA, before proceed-ing to alienate a land held by the UDA, must first obtain theapproval of the Minister and then proceed with the alien-ation. According to Section 18(1) of the UDA Law, terms andconditions which should be included in the instrument ofalienation must also be determined by the Minister. Thisshows that the Minister’s approval is a necessary require-ment prior to the alienation of the land. It is therefore seenthat if the UDA has alienated a land held by it withoutobtaining the approval of the Minister, such decision hasbeen taken without any legal authority.
Decision taken without authorityIn the present case, physical possession of the land washanded over to the Department of WLC on 18.9.2002. TheUDA took the decision, according to the respondents, to
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alienate the land on 8.4.2003 (1R14). The respondents claimthat the Minister gave the approval to alienate the land only inOctober 2004 (1R18). Thus, the decision to alienate the landwas taken without the approval of the Minister. It is thereforeseen that the UDA, when it decided to alienate the land tothe department of WLC, has acted without any legal basis. Ihave elsewhere in this judgment dealt with this aspect in de-tail. It is undisputed that the UDA derives power to alienatelands from the UDA Law. Then, can the UDA go against thevery same statue which gives it the power to alienate? I thinknot. “It is axiomatic that a public authority which derives itsexistence and its powers from statute cannot validly actoutside those powers.” [Vide Lord Wolf MR in R. vs North andEast Devon Health Authority ex parte Coughlen{lK “Judicialreview is available where a decision making authorityexceeds its power, commits an error of law, commits a breach ofnatural justice, reaches a decision which no reasonabletribunal could have reached or abuse its powers.” Vide LordTempleman in Preston. Vs IRC,™ at 337, at 862 (House ofLords). This dictum was considered by lord Wold MR inCoughlen’s case (supra).
Acting without power, in my view, is more offensive to therules of Administrative Law than exceeding power. When theprinciples laid down in the above judicial decisions apply tothe facts of this case, the decision of the UDA alienating theland to the Department of WLC has to be quashed. The aboveview is also supported by the judicial decision pronouncedin the case of Gunarathne. vs. Chandrananda de SilvaPK Inthat case the petitioner, a Senior Deputy Inspector General ofPolice, was set on compulsory leave by the Secretary Defenceas the Commission of Inquiry (Batalanda Commission) hadmade adverse findings against the petitioner. It was contendedthat the decision to place the petitioner on compulsory leave
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is ultra vires and therefore is void in law for the reason thatthe said decision has not been taken by the proper authoritynamely by the PSC. Gunawardene J in the above case atpage 288 held: “The decision of the respondent (Secretary/Defence) being vitiated, as it is by a jurisdictional error, thatis a decision that had been made in the exercise of a poweror jurisdiction which the Secretary Defence clearly did notpossess the decision had been legally void from the begin-ning.” In this connection it is relevant to consider a passagefrom Administrative Law by Wade & Forsyth 8th edition page36. “Any administrative act or order which is ultra vires oroutside jurisdiction is void in law, i.e. deprived of legal effect.This is because in order to be valid it needs statutory autho-rization, and if it is not within the powers given by the Act,it has no legal led to stand on. Once the court has declaredthat some administrative act is legally a nullity, the situationis as if nothing had happened. In this way the unlawful actor decision may be replaced by a lawful one.” As observedearlier, when the UDA decided to-alienate the land it hadacted without power. Considering the principles laid down inthe above legal literature, I hold that the decision of the UDAalienating the land to the department of WLC is a nullity. Atthe hearing of this case, learned SSC, at one stage, admittedthat the UDA cannot alienate lands without the approval ofthe Minister. She conceded that the Minister’s approval isa necessary requirement for the UDA to alienate lands. Butshe contended that the UDA could take decisions to alienatelands without the Minister’s approval and seek Minister’sapproval later. She even contended that the physicalpossession of the land could be handed over to the prospectivebuyer and the buyer could commence development activitieson the land such as constructing buildings without the saidapproval of the Minister. Here, I ask the question: What
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happens, after taking the said steps, if the Minister refusesto grant approval? Then, can the UDA be heard to say that,since the prospective buyer has developed the land, leaveaside the Minister’s approval, alienation of the land mustbe proceeded with? If this is permitted, then the purpose ofSection 18 will be rendered nugatory and the Minister will bejust a figure head who becomes unable to use his discretionin the decision making process. The legislature, in enactingthis law, did not, in my view, permit the existence of thiskind of absurd situation. One should not forget that accord-ing to Section 18 of the UDA Law, terms and conditions in theinstrument of alienation should be determined by theMinister. May be for the sake of convenience the UDAstipulates terms and conditions and seeks the Minister’sapproval but the final decision with regard to the terms andconditions is left with the Minister. Although the learnedSSC contended that the Minister, by letter marked 1R18,had granted approval to allocate the land to the departmentof WLC on 25.10.2004, the Coordinating Secretary of theMinistry of Urban Development 8s Water Supply, on 17.2.2005,admitted by letter marked 1CA9 that the Minister had notgranted such approval. This is a letter written by the saidSecretary to the Director General UDA. This letter wasproduced to Court along with the counter objections. Therelevant paragraph of this letter is reproduced below. “Inthe absence of either Ministerial or Cabinet approval Hon.Minister has directed me to inform you to shift the site fromthe present site to the area with Pannipitiya road frontageas agreed upon by JSS and to release the block of land re-quired by JSS.” The Minister being the 5th respondent did noteven file an affidavit stating that he granted approval undersection 18 of the UDA law. For the above reasons, I amunable to agree with the contention of the learned SSC.
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Failure to follow the procedure laid down in lawWhen the 1st to 3rd respondents decided to handover the physical possession of the land as averred byparagraph 16(n) oftheirstatementofobjections, did they havetherelevant approval? According to 1R16 filed by the 1st to 3rdrespondents, physical possession of the land had been givento the Department of WLC on 18.09.2002. The 1“ and the3rd respondents claim that the approval of the Minister wasobtained on 25.10.2004. (Vide 1R18). Thus, this approvalwas granted two years after the handing over of the physicalpossession of the land to the Department of WLC. Respondentsclaim that the UDA took the decision to alienate the land on8.4.2003. Then it is clear that the UDA has failed to obtainthe Minister’s approval before taking the decision to alienatethe land to the Department of WLC and before taking thedecision to hand over the physical possession of the land.Therefore the decisions of the UDA to hand over the physicalpossession of the land to the department of WLC and toalienate the said land are ultra vires the UDA law as the UDAhas taken the decisions without following the procedure laiddown in Section 18(1) of the UDA law.
Under Section 18 of the UDA Law, the UDA has the powerto alienate lands held by the UDA by way of sale, lease, rent,or rent purchase. The modes of alienation are already spelt inthe said section. So when the UDA handed over the physicalpossession of one acre land on 18.9.2002 to the Depart-ment of WLC did alienation take place by way of sale, lease,rent or rent purchase? Section 18 of the said Law contem-plates an instrument of alienation. Is there an instrument ofalienation in this case? The respondents have failed toproduce any instrument of alienation. Therefore handing overof the physical possession of the said land (one acre) wascontrary to Section 18(1) of the said Law. According to the
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said Section when lands are alienated, the UDA will haveto prescribe the terms and conditions as determined by theMinister. Further, this Section provides that there should be acondition in the instrument of alienation to the effect that thealienation to be cancelled in the event of a failure to complywith any of the conditions specified in such instrument. Thiscondition too must be determined by the Minister. The idea ofthis condition, in my view, is to ensure adherence of the termsand conditions specified in the instrument by the person inwhose favour the instrument is effected. This, in my view, isa safeguard to protect the purpose for which the land wasalienated. One should not forget the fact that the alienationof the land under Section 18(1) is effected for the purposeof urban development. Thus the intention of the legislature,in Section 18, is to ensure that the land is utilized for thepurpose of urban development. This is one of the reasons whySection 18 of the UDA Law expects the terms and conditionsto be specified in the instrument of alienation. No instrumentof alienation setting out the terms and conditions is producedin this case. Considering the above observations, I am of theopinion that the Minister’s approval and the determinationof terms and conditions in the instrument of alienation bythe Minister are mandatory requirements in Section 18(1) ofthe UDA Law. As I pointed out earlier, the UDA has failed tofollow the mandatory requirements set out in law andtherefore the decision of the UDA to alienate the land is anullity. Considering all these matters it is clear that the UDAhas taken a decision to alienate the land without following theprocedure laid down in Section 18(1) of UDA Law. LearnedSSC contended that this was not the basis on which thepetitioners came to Court. That is to say the UDA had failedto follow the procedure laid down in the Law. Learned SSChowever argued that the petitioners are not entitled to claimthe reliefs prayed for. When considering this contention one
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should not forget paragraph 64 of the petition. The petitioners,in paragraph 64 of the petition, claim that the decision ofthe 1st to 3rd respondents is unlawful, arbitrary and offendsthe principles of reasonableness and fairness. In this regard Icannot resist quoting an excerpt from an eloquent pronounce-ment of Lord Greene MR in the case of Associated ProvincialPicture House Ltd. vs Wednesbury Corporation(4). To quote: “Itis true that discretion must be exercised reasonably. Nowwhat does that mean? Lawyers familiar with the phraseologycommonly used in relation to exercise of statutoiy discre-tions often use the word ‘unreasonable’ in a rather compre-hensive sense. It has frequently been used and is frequentlyused as a general description of the things that must not bedone. For instance. A person entrusted with discretion must,so to speak, direct himself properly in law. He must call hisown attention to the matters which he is bound to consider.He must exclude from his consideration matters which areirrelevant to what he has to consider. If he does not obeythose rules, he may truly be said, and often is said, to beacting unreasonably.”
In the present case has the UDA, entrusted with thediscretion of alienating lands under section 18 of the UDALaw, directed itself properly in law? Has it called its attentionto the matters which it is bound to consider? The answer isclearly no. For the above reasons, I am unable to agree withthe contention of the learned SSC.
Even if the petitioners have not come to court on thebasis that the UDA had failed to follow the procedure laiddown in law, if it is brought to the notice of court that therespondents have taken decisions after violating theprocedure so laid down and without following the mandatoryrequirements, can the court, exercising supervisory jurisdic-tion over the decisions made by the Public Bodies, turn a
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blind eye to such decisions? The answer is no. “If a localauthority does not fulfill the requirements of law, this courtwill see that it does fulfill them.” [Vide Lord Dening MR inthe case of Bradbury and Others vs. Enfield London BoroughCouncil5> at 1324. What happens when the procedure laiddown in law is not followed by Public Bodies? What is theduty of court when such violations are brought to the noticeof Court? In this connection, I would like to cite the followingpassage from the judgment of Danckwerts LJ reportedin Bradbury’s case (supra) at 1325. “It is imperative thatthe procedure laid down in the relevant statute should beproperly observed. The provisions of the statute in thisrespect are supposed to provide safeguards for Her Majesty’ssubjects. Public Bodies and Ministers must be compelled toobserve the law; and it is essential that bureaucracy shouldbe kept in its place.” Lord Denning MR in the above case ’observed thus: “If a local authority does not fulfill therequirements of the law, this court will see that it does fulfillthem. It will not listen readily to suggestions of ‘chaos.’ Thedepartment of Education and other local education authorityare subject to the rule of law and must comply with it, justlike everyone else.” Bradbury’s case (supra) was a case wherepetitioners, by their writ, claimed, inter alia, for a declarationthat the defendants’ resolutions carrying out of the proposedreorganization of secondary education in the borough wereultra vires and of no effect. It response to circular issuedby the government, many of the local education authoritiesbegan to reorganize their system of secondary education.One of them was the council for London Borough of Enfield.Chief Education Officer submitted proposals to the relevantDepartment. A week later Department replied indicating thatrevised proposals were acceptable but giving a reminder to theCouncil that, under the statute, public notice had to be givenbefore the proposals could be officially approved. The Council
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issued public notices in regard to a number of schools.Thereafter several persons objected and submitted theirobjections to the Minister. He considered the objections. Hegave his official approval to the proposals for those schools.But in respect of eight of the schools, no public notice wasgiven and as such members of the public were not givenan opportunity to voice their objections. Under the law ofEngland when the Council intends “to establish a new school"or to “cease to maintain” an existing school, Council wasunder a duty to submit their proposals to the Minister andforthwith give public notice of the proposals in the prescribedmanner. Thereupon any ten local government electors could,within three months, submit objections to the Minister.Under the law the Minister, after considering the objectionsmay approve the proposals. A local education authority can-not do anything to implement their proposals until they havebeen approved by the Minister. After considering the proposalsof the council, Court took the view that in regard to theeight schools, the intention of the education authority wasto “cease to maintain” them (schools) and “to establish new”schools within Section 13 of the Act. Lord Denning MRdelivering the judgment remarked as follows: (page 1323)“They ought, therefore, to have given public notices of theirproposals, so that the people could object. On objectionbeing lodged, the Minister would have to consider them. Nottill then could the Minster give his approval. … It is implicitin Sections 13(3) and (4) that the Minister cannot approveunless he has considered all objections submitted to him….. I hold that, therefore, the council has not fulfilled thestatutory requirements of Sections 13(3) and (4) in regardto the eight schools. They must continue to maintain them(schools) and must not cease to maintain them until thestatutory requirements are fulfilled.”
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As I pointed out earlier, in the present case, the decisionsof the UDA to hand over the physical possession of the playground and to alienate the play ground are without authority.The UDA has taken the said decisions without following theprocedure laid down in Section 18 of the UDA law. When Iapply the principles laid down in Bradbuiy’s case (supra),I have to make an order quashing the said decisions of theUDA.
In Regina vs. Hull University Ex part#* at 701 (HouseLords) Lord Brown Wlikinson observed thus: “The fundamentalprinciple (of judicial review) is that courts will intervene toensure that the powers of public decision -making bodies areexercised lawfully. In all cases. . . this intervention by way ofprohibition or certiorari is based on the proposition that suchpowers have been conferred on the decision maker on theunderlying assumption that the powers are to be exercisedonly within the jurisdiction conferred, in accordance withthe fair procedures and, in a Wednesbury sense (AssociatedProvincial Picture House Ltd. vs. Wednesbury Corporation(supra), reasonably. If the decision maker exercises hispowers outside the jurisdiction conferred, in a manner whichis procedurally irregular or is Wednesbury unreasonable, heis acting ultra vires his powers and therefore unlawfully. . ..” The above dictum of Lord BrownWilkinson was followed byLord Steyn in the case of Boddington. Vs. British TransportPolice (House of Lords)17' at 171.
In Jayantha Wijesekera and Others vs. AttorneyGeneral and Others SC,8) the question in relation to thevalidity of Proclamation effecting a merger of Northern andEasterns Provinces was considered by a bench of five Judgesof the Supreme Court. The Supreme Court observed thus:Whilst Section 37(l)(a) of the Provincial Councils Act No. 42
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of 1987 empowers His Excellency the President to make aProclamation declaring two or three Provinces would formone administrative unit, sub paragraph (b) of Section 37 (1) ofthe said Act contains an exception in respect of the Northernand Eastern Provinces where special conditions have to besatisfied as to the surrender of weapons and cessation ofhostilities before an order of merger is made. Those conditionsare:
that arms, ammunition, weapons, explosives and othermilitary equipment which on 29.7.1987 were held orunder the control of terrorist militants or other groupshaving as their objectives the establishment of sepa-rate State, have been surrendered to the Government ofSri Lanka or to authorities designated by it, and;
that there has been a cessation of hostilities and otheracts of violence by such groups in the said Province.
Terrorist militants continued to do acts of violence in thesaid Provinces even after enactment of the said ProvincialCouncils Act. Therefore two conditions for the merger asstated in Section 37(l)(b) of the Provincial Councils Act No.42 of 1987 as to the weapons being surrendered by terroristmilitants and a cessation of hostilities had not been met whenthe President made the impugned order of merger. His Lord-ship Chief Justice S.N. Silva held as follows:
“The next question to be decided is in relation to thevalidity of order P2 effecting a merger of the Northern andEastern Provinces. Section 37(1 )(b) contains two mandatoryconditions that have to be satisfied before a Proclamationeffecting a merger is issued. The address made by thePresident to the Parliament and the statements as to thesecurity situation seeking an approval of the Proclamations
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of the state of Emergency in the year 1988 referred to inthe preceding analysis clearly establish that the Presidentcould not have been possibly satisfied as to either of these
mandatory conditionsThe Proclamation P2 made by
the then President declaring that the Northern and EasternProvinces shall form one administrative unit has been madewhen neither of the conditions specified in Section 37(l)(b) ofthe Provincial Councils Act No. 42 of 1987 as to the surrenderof weapons and the cessation of hostilities, were satisfied.Therefore the order must necessarily be declared invalid sinceit infringes the limits which Parliament itself had ordained.”
In view of the foregoing analysis, I hold the view that if anorder has been made by an administrative tribunal withoutfollowing the procedure laid down in law or if an order, madeby an administrative tribunal, infringes the limits ordainedby the Parliament such an order can be declared invalid byCourt exercising the writ jurisdiction.
In the instant case, at the time the land was alienatedto the Department of WLC, the UDA had not obtained theMinister’s approval. As was pointed out earlier, the Ministergranted the purported approval two years after the handingover of the physical possession of the land. Under section18 of the UDA law, UDA derives power to alienate the landsonly when the Minister grants the approval. Therefore whenthe principle laid down in the Hull University case (supra) isapplied to the facts of this case, the UDA has exercised itspowers outside the jurisdiction conferred in alienating theland, and the procedure adopted by the UDA is irregular.Thus, I hold that the UDA has acted ultra vires its powersand therefore the said decision of the UDA is unlawful. Thus,the decision of the UDA to alienate the land must be quashedon this ground alone. When the above judicial decision is
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considered in relation to the facts of this case, can there bean argument that the petitioner is not entitled to seek judicialreview in this case? I say no.
What happens when a Public Body does not fulfill therequirements of law when taking decisions?Lord Diplock, in Council of Civil Services Union. VsMinister for the Civil Servicei*9' at 410 observed thus:“By ‘illegality’ as a ground for judicial review 1 mean thatthe decision maker must understand correctly the law thatregulates his decision-making power and must give effectto it. Whether he has or not is par excellence a justiciablequestion to be decided, in the event of dispute, by thosepersons, the judges, by whom the judicial power of the Stateis exercisable.”
In the present case, the UDA did not obtain the approvedof the Minister prior to the two decisions dated 18.9.2002and 8.4.2003. Further when the land was handed over to theDepartment of WLC on 18.9.2002, there was no decision bythe UDA to hand over the physical possession of the land.Thus handing over of the physical possession of the land iscontrary to section 18 of the UDA law. There is no instrumentof alienation. Terms and conditions which should be includedin the instrument of alienation have not been determined bythe Minister. These are some of the requirements stipulatedin section 18 of the UDA law. I pause here to ask the question:Has the decision maker namely the UDA understood the law(section 18 of the UDA law) correctly? I think not. Then, whenthe above dictum of Lord Diplock is applied to the facts of thiscase, the decisions of the UDA alienating and handing over ofthe physical possession of the land will have to be quashed.
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I pause to state here if a public body does not fulfill therequirements of law when taking decisions affecting the rightsof the individual, the Court, exercising writ jurisdiction, whenit is brought to its notice, must see that such Public Bodydoes fulfill them.
Both Counsel at the hearing of this case agreed that thesubject matter of this case is the play ground (one acre land)and the adjoining block of land amounting to 20 perches inextent. With regard to 20 perches block, adjoining the playground, there is no decision by the board of managementof the UDA to alienate this land to the Department of WLC.Therefore the decision of the 1st to 3rd respondents and or7th to 13th respondents alienating this land (20 perches land)too should be quashed.
Legitimate expectation
I would now like to deal with the question whether thepetitioners had a legitimate expectation to keep the said landas a playground. In this context it is relevant to consider P9and Pll. P9 is a letter written by Director General UDA tothe Coordinating Secretary to the Ministry of Housing andConstruction with copy to the Secretary Jayanthipura HousingScheme. The Director General, by P9, on 14th November 1995,admitted that the said land had been reserved for Jayan-thipura Housing Scheme for the last 40 years. Accordingto P9, this land had been recommended to continue as aplayground for Jayanthipura Housing Scheme. The DirectorGeneral UDA, by Pll, on 29.11.1999, again reiterated theabove stand of the UDA namely that the land had beenrecommended to continue as a playground for JayanthipuraHousing Scheme. The Director General, by the said letter,categorically informed the President of the said housingscheme that the UDA had not given any approval to allocate
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the said playground to any outsider for development. Thesetwo letters (P9 and PI 1) were issued in response to two letterswritten by the petitioners.
Learned SSC contended that P9 and PI 1 were not withinthe vires of the UDA since they were issued without anylegal authority. She, therefore, contended that these two letterscannot generate legitimate expectation in the petitioners. Sherelied on the judgment of the Supreme Court delivered on16.11.2005 in Tokyo Cement Co. Ltd. Vs. Gunarathne andothers<101. In Tokyo Cement Co. case, the petitioner claimedthat the vessel was purchased by the petitioner in view ofcertain representations made by the Department of Customsin a gazette notification made under Section 47 of theCustoms Ordinance specifying the form of the bill of en-try and the guide issued, with regard to the clearance ofgood. The petitioner wrote a letter to the Director General ofCustoms notifying of the purchase of the vessel and seekingconfirmation that 23.5% of the FOB value be taken asthe component of freight. The Deputy Director made anendorsement on the letter stating “freight charge of 23.5%approved.” This matter was confirmed by the same officer byletter dated 24.5.2001. However when the goods were importedthe valuation department of the customs refused to acceptthe said freight charge of 23.5% and sought to impose theduties on the basis of CIF value that had been declared bythe petitioner previously. The decision of the customs waschallenged on the following grounds. They are:
that the impugned decision was contrary to the contentsof the ‘cusdec’ form and access guide and as such is ultravires;
that the impugned decision cannot be made in law in viewof the previous representation made by the Department
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of Customs giving rise to the principle of estoppel and
denial of legitimate expectation of the petitioner.
In terms of Section 51 of the Customs Ordinance whenad valorem duties are imposed, the importer is required tostate the value of such articles in the entry together with thedescription and quantity of the same. It is further providedthat “the value shall be determined in accordance with theprovisions of the schedule E and duties shall be paid on avalue so determined.” His Lordship Chief Justice S. N. Silvaheld as follows: “In the case at hand the Deputy Director hasin the communication P6 and PI 7 purported to fix the freightcharge at 23.5% of the FOB price. Such a course of actionis clearly not permitted by the provisions of the Ordinancereferred to above in relation to the imposition of ad valoremduties. The whole purpose of making a valuation in terms ofSection 57 and schedule ‘E’ of the Customs Ordinance wouldbe brought to nought if such a course of action is permittedto stand. The representation is ultra vires and would not bebinding.”
It is then seen in the above case that the representationmade by the Deputy Director is ultra vires. In the presentcase, what is the material to suggest that P9 and Pll arecontrary to the provisions of the UDA Law? Learned SSC,whilst inviting the attention of court to Section 8 of the UDALaw, tried to argue that P9 and Pll are contrary to the saidsection. I have carefully examined Section 8 of the UDA Lawand I am of the opinion that P8 and Pll are not contrary tothe said section. Even the respondents, in their objections,do not state that P9 and Pll are contrary to the UDA Law.There is no such material even in the letter (P26) sentsubsequent to P9 and Pll, although the writer of P26has mentioned about P9 and Pll. P26 is a letter written on
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by Director Lands on behalf of the Chairmanof the UDA. Even in this letter, the said Director Landsdoes not say that P9 and PI 1 were issued without authority.A copy of PI 1 had even been sent to the Secretary to thePresident. Thus is it the position of the respondents thatdecision taken without authority has been communicatedto Her Excellency the President? It there any material tosuggest that the Board of Management of the UDA subse-quently resolved that P9 and Pll had been issued withoutauthority? Has the UDA up to date withdrawn P9 and Pll?The above two questions will have to be answered in thenegative. In view of these observations court is unable tohold that P9 and Pll are not within the authority of UDA.Therefore the principles laid down in the above judicialdecision (Tokyo Cement Company case) have no applicationhere. Hence the contention of the learned Senior State Counselwhich is not based on the facts of this case will have to berejected. To my mind there is a clear promise given by the UDA inP9 and Pll that the land would be kept as a playground for theresidents of Jayathipura Housing Scheme. The petitionersclaim that they have been using this land as a playgroundsince 1964 when the housing scheme was originated. Thepetitioners have taken up the position that even the schoolchildren of Battaramulla have been using this land as aplayground. This position of the petitioners is strengthenedby letter P9 wherein Director General of the UDA has statedthus: “The above land is an informal playground used bythe occupants by the Jayanthiputa Housing Scheme (about300 houses) and the school children of the surrounding.” Inview of these facts, the question whether the petitioner had alegitimate expectation to keep or use this land as a playground must be considered. 1 now turn my attention to thisquestion. With regard to P9 and Pll learned SSC, referringto 1R4, submitted that 1st respondent became the owner of
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the land only in 19.3.1989 and as such the Director Generalof the UDA could not have said that this land (playground)has been reserved for Jayanthipura Housing Scheme for thelast 40 years. She contended that by 14th November 1995which is the date of P9, the UDA was holding the ownershipof the land only for six years and as such 40 years periodmentioned in P9 was factually incorrect. She contendedthat the Board of Management of the UDA had not grantedapproval to write P9 and Pll. On the strength of these factsshe contended that both P9 and Pll are factually incorrectand that court should not consider these documents. I nowadvert to these contentions. It is true that when P9 wasissued the UDA was not holding the ownership of the landfor 40 years. But it must be noted that according to P9 itis not the UDA which had reserved the land for the last 40years. What P9 says is that the land has been reserved forJayanthipura Housing Scheme for the last 40 years. The UDA,by P9, too admits the above reservation. The fact that thisland had been recommended to continue as a playground bythe UDA remains unchallenged. Although P9 speaks about 40year period, PI 1 dose not state so. P9 and PI 1 have also beenproduced by the 1st, 2nd and 3rd respondents along with theirstatement of objections as lR2b and lR2c. But strangely,1st to 3rd respondents in their statement of objections do notstate that P9 and Pll were issued without the approval of theBoard of Management of the UDA. Even in the letter dated
(P26) written by the Director Land Developmentand Management of the UDA, he had failed to mention thealleged failure on the part of the Board of Management of theUDA to grant the said approval although he had admittedhaving sent P9 and Pll. The UDA has, so far, not withdrawnP9 and Pll. The 1st respondent (UDA), by P9 (dated4.11.1995) and Pll (dated 29.11.1999), admitted that ithad recommended to continue this land as a playground for
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Jayanthipura Housing Scheme. Then it would appear thatthis admission has been made by the Is* respondent afterit became the owner of the land. Thus, it can be arguedthat this is one of the grounds on which the petitioners areentitled to form a legitimate expectation to keep this land as aplayground. Learned SSC sought to stemgthen her contention,that is to say that P9 and PI 1 are not within the vires of theUDA by raising the following question. Can the petitionersexpect to enjoy privilege of open space from others land?According to regulation 22 (1) of the UDA regulation (P5), 10%of the land must be kept for recreational purpose. Regulation22(1) provides:
“Where the parcel of land or site to be subdividedexceeds 1.0 hectare, an area of not less than ten per centumor the land or site, excluding streets shall be reserved forcommunity and recreation used in appropriate locations.”
Learned SSC contended that according to the saidregulation, 10% of the land must be reserved at thetime of thesubdivision of the land. She further contended that the saidpercentage must be reserved from the land to be subdividedand not from the nearby land or adjoining land. With regardto this contention I have to make the following observa-tion. Regulation No. 22, in Gazette P5, was promulgated on10.3.1986 whereas the subdivision of the petitioner’ land,according to plan P2A, took place in 1962. Thus regulation22 has no application here. Despite the existence of such asituation, the Director General of UDA issued P9 and Pll.This shows that the UDA wholeheartedly recommendedthe continuation of this land as a playground. The UDA, byP9, admits and has recognized the necessity to keep openspace within the residential areas. Why did the UDA, by P9,recommend that this land be continued as a play ground?
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The word ‘continue’ must be emphasized. To continue withsomething, it must already be in existence. Therefore it isclear that this land had been used as a playground even priorto the issue of P9. According to Pll it was the decisionof the UDA to continue this land as a playground and nota decision of the Director General. Minutes of the boardmeetings of the UDA are kept with the UDA. The petitionershave no access to these minutes. If there is-no such decisionby the UDA, then, the minutes of the board meeting priorto the issue of Pll would indicate the there was no suchdecision. As I pointed out earlier, the 1st and 3rd respondents,in their statement of objections, had not taken up theposition that P9 and Pll were issued without the approvalof the UDA. Even in letter dated 25.10.2004 (P 26) the respon-dents have not taken up this position. For the above reasons,I am unable to agree with the contention of the learned SSC.
On the question of legitimate expectation, I would like toconsider following judicial decisions. “Where a student fromNigeria was given oral assurances that she would have nodifficulty in returning after going home for Christmas, yet wasrefused leave to enter on returning, the refusal was quashedby the Court of Appeal on the ground of legitimate expectationand unfairness.” Vide Administrative Law by Wade andForsyth 8th edition page 371.
The Privy Council, in holding that the Government ofHong Kong must honour its published undertaking to treateach deportation case on its merits, has applied the principlethat a public authority is bound by its undertakings as to theprocedure it will follow, provided they do not conflict with itsduty. Vide Attorney General of Hong Kong vs. Ng Yuen Shut(Privy Council}n)
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In Regina Vs. Liverpool Corporation, Ex parte LiverpoolTaxi Fleet Operators’ Association)121, Liverpool Corporationhad the duty of licensing the number of taxies which theythought fit, and for some years the number had been fixed at300. In 1971 a sub committee of the council recommendedincreases in the number of licensed taxies for 1972 and againin 1973, and no limitation on the numbers thereafter. Thechairman of the relevant committee gave a public undertakingon August 4, 1971, that the number would not beincreased beyond 300 until a private bill had been passed byParliament and had come into effect, and his undertak-ing was confirmed by him orally and by the town clerk in aletter to two associations representing the holders of existingtaxi licences. In November 1971 the sub committee resolvedthat the number of licences should be increased in 1972,before the private bill had been passed, and the resolutionwas approved by the full committee and by the council inDecember. The association of licence holders applied to courtfor an order of prohibition and certiorari. The DivisionalCourt refused the application, but the Court of Appeal grant-ed an order of prohibition against the corporation from grant-ing any increased number of licences without first hearingany representations which might be made by or on behalf ofpersons interested therein, including the appellant asso-ciation. Lord Denning MR said at page 308: “the corpora-tion was not at liberty to disregard their undertaking. Theywere bound by it so long as it was not in conflict with their
statutory dutyThe public interest may be better served
by honouring their undertaking than by breaking it.”
“Legitimate, or reasonable, expectation may arise eitherfrom an express promise given on behalf of a public authorityor from the existence of a regular practice which the claimantcan reasonably expect to continue” Vide Lord Fraser in
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Council of Civil Service Unions and Others. Vs. Minister forthe Civil Service<13) (House of Lords) at 944. It is pertinentto consider the case of R v. North and East Devon HealthAuthority, ex parte Coughlentl4). The facts of this case in briefare as follows: Miss Coughlen met with an accident in 1971.From the date of her tragic accident in 1971 until 1993Miss Coughlen lived in and received nursing care in New-court Hospital for the chronically sick and disabled. It wasa large old house with communal wards. It was consideredunacceptable for modem care. A decision was taken todischarge the resident “to a setting which would be moreclinically and socially appropriate.’ On 15th March 1993 MissCoughlen moved to Mardon House along with other patientsand the Majority of the staff from Newcourt. Marden Housewas designed to house young, long-term severely disabled,residential patients. The residents of Newcourt had beeninvolved in discussions about the nature and design of thebuildings and its services. Newcourt patients were persuadedto move to Mardon House by representations on behalf of thehealth authority that it was more appropriate to their needs.The patients relied on an express assurance or promise thatthey could live there Tor as long as they chose.’ Nursing carewas to be provided for them in Mardon House. It was the newNewcourt.
Mardon House was let by the Exeter and DistrictCommunity Health Service NHS Trust to a charity, the JohnGrooms Association, and it was registered as nursing home.John Grooms withdrew in June 1994, as they felt that theevolving service was so heavily weighted in favour of acuteclinical work that the unit would be unregistrable underthe terms of Registered Homes Act 1984. It ceased to be aregistered nursing home and became the responsibility ofthe NHS trust. It reverted to being solely a NHS facility. No
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new long-term patients were admitted from mid-1994. On 7thOctober 1998 the decision was taken by the health authorityto withdraw services from Mardon House and to close thefacility. Miss Caughlen challenged the decision of the healthauthority by way of judicial review. Issues, inter alia, beforethe court were whether the assurance given on behalf of thehealth authority to Miss Coughlen and other patients thatthey can live in Mardon House for as long as they chooseconstituted a legitimate expectation, and whether thefrustration of the legitimate expectation amounts to an abuseof power. Lord Woolf MR at page 883 held: “We have nohesitation in concluding that the decision to move MissCoughlen against her will and in breach of the healthauthority’s own promise was in the circumstances unfair. Itwas unfair because it frustrated her legitimate expectationof having a home for life in Marden House. There was nooverriding public interest which justified it.” Lord Woolf MRat page 889 further remarked thus: “The decision to close
Marden House was, however, unlawful on the ground that
the decision was an unjustified breach of a clear promise givenby the health authority’s predecessor to Miss Coughlen that sheshould have a home for life at Marden House. This constitutedan unfairness amounting to an abuse of power by the healthauthority.
In the case of Wickremratne vs. Jayaratne and Others*151,“lease of corpus was originally granted to the Petitioner’sfather. After his death the Provincial Land Commissionerrecommended that a portion of the corpus be leased to thePetitioner. The Petitioner agreed to this. The District Secretaryrequested the Petitioner to handover possession of the entireland whilst retaining the area agreed to be retained by him.However, thereafter the District Secretary decided to takepossession of the entire land on behalf of the State, without
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affording an opportunity to the Petitioner to make represen-tations. It was contended inter alia that the Petitioner had alegitimate expectation that he would be given a lease of theland (portion).” Gunawardana J held thus: “It is the fact thatthe legitimate expectation had arisen against the State itself(on the basis the State must be held to have acted through itsofficers, who are agents of the State) that makes it (expectation)enforceable against the State. If it had been otherwise, that isif the legitimate expectation had not arisen directly as againstState itself – then the State could still have proceeded toacquire the land – undeterred by the fact that the legitimateexpectation had arisen as against the officers only – becauseit is the State that is seeking to acquire the lands, but theState is bound, because the officials had in giving assurances,acted as agents of the State and not in their private capacity.The State itself has to honour and cannot renege on thepromise held out by its servants to the petitioner.”
In the case of Sirimal and Other vs. Board of Directorsof the Co-operative Wholesale Establishment and Others1161,“the petitioners complained that the 1st respondent (“TheCWE”) did in violation of their rights under Article 12(1) of theConstitution stopped extension of their services beyond55 years and purported to retire them from 31.7.2002, bycircular dated 21.6.2002(P6). The previous circular dated14.11.1995 (P5) provided for granting of annual extensionfrom 55 until 60 as in the case of the public sector underChapter V section 5 of the Establishments Code. The reasonsgiven for the new policy decision were:
Redundant labour force
Heavy losses; and
Reorganization of the CWE to make it a profit making
organization
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The applications of all petitioners except Nos. 19 and20 were recommended by the Service Extension Committee;and no application was sent to the Ministry for decision. Theprevious practice was to grant annual extension up to 60years except where medical or disciplinary grounds existed.”
Weerasuriya J (S. N. Silva CJ and Ismail J agreeing) heldas follows:
The optional age of retirement in the CWE had been55 years of age with a right to seek extension up to60 years of age as in the public sector. The impugnedcircular seeks to make retirement compulsory at 55 years.The petitioner had a legitimate expectation of receivingextension up to 60 years except where medical ordisciplinary grounds were present.
Where it is sought to change conditions of servicedenying the right of extension, the employees should begiven a reasonable time and an opportunity of showingcause against change. The court may decide whetherthe change of conditions of service on policy was lawful.Where the decision is perverse or irrational, the court willintervene.
Applying the principles laid down in above judicialdecisions, I hold the view that P9 and Pll had generated alegitimate expectation in the minds of the petitioners to keepthis land as a playground.
Change of earlier promises given by Public Bodies whenthere is an overriding public interest
Having created legitimate expectation amongst theresidents/occupiers/ owners of Jayanthipura HousingScheme is it fair for the UDA to alienate the said land to
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the Department of WLC? Learned SSC contended that itbecame necessary for the UDA to take this decision in orderto house the Department of WLC. Can the UDA change itsearlier promises or undertaking on the basis that the publicinterest requires to do so? On this question I would liketo consider the following passage from Administrative Lawby Wade and Forsyth 8th Edition page 372 “Although thereare now decisions of high authority to show that voluntarystatements of policy may sometimes be treated almost asbinding restrictions in Law, it is obvious, on the other hand,that public authorities must be at liberty to change theirpolicies as the public interest may require from time to time.”It is therefore seen from the above passage that public bodiescan change their policies depending on whether there is apublic interest to do so. When government, especially in adeveloping country, undertakes development activities,public bodies should be at liberty to change their earlierdecisions. But what in necessary to consider, in this case, iswhether there was such an overriding public interest whenthe UDA decided to alienate the said land to the Departmentof WLC. In this connection, Cabinet memorandum (P16)dated 8.2.2001, signed by the Minister of Urban Development,Construction and Public Utilities, is important. TheMinister in PI6 stated that the Government had decided toconstruct a new secretariat with all facilities in Battaramullain order to bring all government departments and agenciesfunctioning outside the Sri Jayawardenepura administrativearea into one building and the Department of WLC could beprovided with necessary office space within the said premises.The Minister has made the following statement in the saidCabinet memorandum (P16). “Under these circumstances,allocation of a land to the Wild Life Department as suggesteddoes not arise.” In view of the said statement by the Minister
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can the UDA say that there was on overriding public interestto give this land to the department of WLC? The respondentshave not produced any document to contradict the saidposition of the Minister. Her Excellency the President, in acabinet memorandum, dated 30.1.2001 (P16) stated that aland at Robert Gunawardene Mawatha, Battaramulla hadbeen assigned by the UDA for the purpose of constructing aHead Office Complex for the Department of WLC. Then, howcan there be an overriding public interest to give this landwhich is at Jayanthipura Battaramulla to the Departmentof WLC? For these reasons I am of the view that there is nooverriding public interest to give this land to the Departmentof WLC. In these circumstances it is not possible for theUDA to say that they changed their policy as there was anoverriding public interest to give this land to the Departmentof WLC. For the above reasons, I am unable to agree with thecontention of the learned SSC.
Protection of legitimate expectationI have earlier pointed out that the petitioners had alegitimate expectation to use this land as a playground.Can the decision of the UDA to alienate the said land to theDepartment of WLC be quashed on the basis that thepetitioners had a legitimate expectation? I now turn to thisquestion. “Inconsistency of policy may amount to an abuseof discretion, particularly when undertakings or statementsof intent are disregarded unfairly or contrary to citizen’s.legitimate expectation.” Vide Administrative law by Wade andForsyth 8th edition page 370.
In the case of Attorney General of Hong Kong vs. NgYuen Shiu (supra) the Government of Hong Kong announcedthat certain illegal immigrants, who were liable to deporta-tion, would be interviewed individually and treated on their
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merits in each case. The Privy Council quashed a deportationorder where the immigrants had only been allowed to answerquestions without being able, to put his own case, holdingthat ‘when a public authority has promised to follow acertain procedure, it is in the interest of good administrationthat it should act fairly and should implement its promise,so long as implementation does not interfere with its statu-tory duty. Lord Denning MR in Liverpool Taxi Fleet Operators’Association’s case (supra) expressed the view that LiverpoolCorporation was not at liberty to disregard their undertakingand the corporation was bound by it so long as it was not inconflict with its statutory duty.
In Regina vs. Secretary of State for Education andEmployment, Ex-parte, Begbie*1B) Court of Appeal of Englandheld that Court would not give effect to a legitimateexpectation if it would require a public authority to actcontrary to the terms of a statute.
In R vs. Home Secretary exp AsifMahmood Khan{l0), Courtof Appeal of England quashed the refusal of Home Office toallow a Pakistani, settled in England, to bring in his youngnephew with a view to his adoption, since the Home Officerhad issued a circular specifying the conditions which needto be satisfied but had, by ‘grossly unfair administration’,refused admission on altogether different ground. If thepublished policy was to be changed, the applicant should begiven full and serious consideration whether there is someoverriding public interest justifying the new departure.
In the case of Dayarathne and others v. Minister of Healthand indigenous Medicine!20' at 412 His Lordship JusticeAmerasinghe held: “When a change of policy is likely tofrustrate the legitimate expectations of individuals, they must
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be given an opportunity of stating why the change of policyshould not affect them unfavourably. Such procedural rightshave an important bearing on the protection afforded byArticle 12 of the Constitution against unequal treatmentarbitrarily, invidiously, irrationally or otherwise unreason-ably dealt out by the executive. They focus on formal justiceand the rule of law, in the sense that rule of natural justicehelp to ensure objectivity and impartiality, and facilitate thetreating of like cases alike. Procedural rights are also seen asprotecting human dignity by ensuring that the individual istold why he is being treated unfavourably, and by enablinghim to take part in that decision.”
Considering the above judicial decisions, I hold that thepublic authorities are bound by its undertakings/promisesprovided (1) that they do not conflict with its statutory duty(2) that there is an overriding public interest justifyingthe departure from the earlier undertakings or promises.However after the promise or undertaking, if parties enterinto an agreement on the strength of the said promise orundertaking and if such agreement is violated, then no writ willlie to remedy the grievances arising from such violation sincein such a situation relationship between parties is contrac-tual. When the relationship between parties is a contractualone, no writ will lie to remedy the grievances arising from analleged breach of contract. See Chandradasa vs. Wijeratne*21'Weligama Multipurpose Co-operative Society vs. ChandradasaDaluwattcP21 Jayaweera vs. Wijeratne*23' De Alwis vs. SriLanka Telecom1241 K. S. De Silva vs. National Water Supply &Drainage Board and Another*25', Jayawaredene vs. PeoplesBanki26*. I further hold that if a public authority decides toact contrary to its published policy or decides to frustratelegitimate expectation created among the individuals by wayof promise or undertaking such decisions, unless there is an
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overriding public interest, are liable to be quashed by way ofwrit of certiorari.
In the present case, the UDA, by P9 and Pll, gavea promise/ undertaking that this land could be used as aplaygroundbytheresidents/occupiers/ownersofJayanthipuraHousing Scheme and thereby published its intention.The petitioners and the school children of Battaramullahave been using this land as their playground for severalyears. This is the position of the petitioners. These factshave even been admitted by the UDA in the letter P9.1 haveearlier referred to the undertakings given in P9 and Pll.Before the 1st to 3rd respondents departed from theirundertaking, were the petitioners given a fair hearing asto why they depart from their undertaking? The answer isno. Thus, the 1st to 3rd respondents have not followed theprinciples laid down in Khan’s case (supra). I have earlierheld that P9 and Pll had generated a legitimate expectationamongst the residents/occupiers/owners of JayanthipuraHousing Scheme to keep/use the land as a playground.When I apply the principles laid down in the above judicialdecisions to the facts of this case, the decisions of the UDA toalienate/handing over the physical possession of the land tothe department of WLC will have to be quashed.
At the hearing of this application both counsel agreedthat the subject matter of this application is one acre(playground) and the adjoining block of land amounting to20 perches. Thus, the judgment of this case applies to bothblocks of land.
For the reasons set out in my judgment, I issue a writof certiorari quashing the decisions of 1st to 3rd and the 7thto 13th respondents to alienate and/or grant and/ transferthe said land to the Department of WLC. With regard to writ
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Sri Lanka Law Reports
[2010] 2 SR1L.R.
of prohibition prayed for by the petitioners, I must mentionhere in future if there is an overriding public interest todepart from the undertaking given by the UDA it must bepossible for the UDA to do so after following the correct le-gal procedure. I have earlier, referring to Cabinet memo-randa of H.E the President and the Minister of Urban De-velopment, Construction and Public Utilities (PI 6), held thatthere was no overriding public interest to give this land to thedepartment of WLC. Therefore I am justified in issuing awrit of prohibition in respect of two blocks of land referred toabove. A writ of prohibition is, therefore, issued restrainingthe 1st, 2nd, 3rd and 5th respondents from using and/or utilizingthe said land namely one acre land used as playground andthe adjoining block of land amounting to 20 perches for anypurpose other than as an open space and playground.
The 1st respondents is directed to pay Rs. 50,000/- to thepetitioners as costs.
SRIPAVAN J. – I agree.application allowed.