040-SLLR-SLLR-1993-1-AMARASINGHE-AND-OTHERS-v.THE-ATTORNEY-GENERAL-AND-OTHERS-COLOMBO-KATUNAYA.pdf
376
Sri Lanka Law Reports
[1993] ISriLR.
AMARASINGHE AND OTHERS
v.THE ATTORNEY-GENERAL AND OTHERS(COLOMBO – KATUNAYAKE EXPRESSWAY CASE)
SUPREME COURT.
FERNANDO, J.
GOONEWARDENE J. ANDPERERA J.
S.C. (SPL) NO. 6/92,
JANUARY 21st AND 22nd, 1993.
Certiorari and Prohibition – Declaration made by President under section 2 ofthe Urban Development Projects (Special Provisions) Act, No. 2 of 1990 -Recommendation of Minister – Opinion of President – Construction of Colombo
Katunayake Expressway – Environmental Impact Assessment (EIA) – Acquisition
Writ Jurisdiction – Pre-requisite of a hearing – Natural justice – NationalEnvironmental Act, No. 47 of 1980 as amended by Act. No. 56 of 1988, sections23 AA and 23 BB – Opportunity for raising objections – Resettlement of personsaffected.
The petitioners are residents and owners along with others of the lands andbuildings which were declared by the President under section 2 of the UrbanDevelopment Projects (Special Provisions) Act No. 2 of 1990, on the recommen-dation of the Minister, as being urgently required for carrying out an UrbanDevelopment project namely the construction of the Colombo – Katunayakeexpressway connecting the port of Colombo with the Katunayake InternationalAirport. This was after a feasibility study by a Japanese Agency. On 03.5.1991the Urban Development Authority (2nd respondent) signed a consultancyagreement with the Japan Bridge and Structure Institute Inc. (JBSI) for certain
sc
Amarasinghe and Others v. The Attorney-General and Others
(Colombo-Katunayake Expressway Case)
377
services including review and update of the previous feasibility study, thepreparation of the detailed design, the carrying out of a comprehensive environ-mental impact assessment (EIA) of the project and the preparation of theimplementation project and tender documents. The Cabinet approved the projectand the 2nd respondent (UDA) had been requested to go ahead with the workschedule. The land required for the expressway had to be acquired under theLand Acquisition Act. A Supplementary EIA had also to be prepared and submittedto the 3rd respondent (Central Environmental Authority (CEA) and if foundsatisfactory, would be made available to the public and no action would be takento obtain possession of foe lands required (e.g. by means of an order undersection 38, proviso (a) of foe Land Acquisition Act) until foe lapse of 30 daysafter the EIA is made available for public scrutiny. Resettlement of personsaffected (nearly 2500 families) was to be given adequate consideration.
Held :
A valid order under section 2 of the Urban Development Projects(Special Provisions) Act No. 2 of 1990 requires the following elements:
A recommendation by the Minister (here the Minister was the
President himself).
An opinion formed by the President :
(i) in relation to an urban development project,
, (ii) that lands are required for the purposes of such project,
that this requirement is urgent, and
that such project would meet * foe just requirements of thegeneral welfare of the People *.
The Expressway project is undoubtedly an urban development
project.
Section 3 of Act No. 2 of 1990 does not affect foe jurisdiction byArticle 140 of the Constitution which in terms of section 4 (1) has been transferredto foe Supreme Court
Although section 7 (1) of the Act No. 2 of 1991 empowersthe Government or any other person to obtain possession of any lands, suchpossesion can be taken only when foe lands are vested by virtue of proceedingsunder foe Land Acquisition Act or other statutes.
A hearing was not a pre-requisite for making a recommendation.The President cannot make a recommendation to himself and it is sufficient forhim to form an opinion on foe available material.
378
Sri Lanka Law Reports
11993) ISriLR.
The President's opinion as urgency was not vitiated by any accessof jurisdiction or error of law. There was adequate material on which he couldform his opinion.
(a) A hearing before forming an opinion that the order would meetthe just requirements of the general welfare of the people would be impracticableand would need some sort of local referendum to ascertain the views of all thosehaving a legitimate interest.
Persons affected will have an opportunity of submitting objectionswhen steps are taken under section 4 of the Land Acquisition Act.
e
The Minister in making a recommendation and the President whenmaking an Order under section 2 of Act No. 2 of 1990 are determining policy,based on evidence of a general character ; there is no li$. The obligation togive a hearing arises only later, when objections are submitted, and when thereis a /is; at that stage evidence as to the local situation, and foe effect on individuals,has to be adduced and weighed.
The jurisdiction of the Court is not to determine whether or not theexpressway is necessary, and if so, which alternative is most suitable. It is forthe Executive under the laws enacted by Parliament, to make those decisions.The writ jurisdiction authorises foe Supreme Court to examine whether jurisdictionhas been exceeded, whether there is error of law and whether there has beenprocedural due process. The merits of a decision cannot be questioned merelybecause the Court considers that some other decision would have been better.The Court can interfere only if it is unreasonable. The available material doesnot in any way indicate that the decision to build the expressway was unrea-sonable; but on the contrary, that it was necessary and urgent ; and there isnothing whatever to suggest that the selection of the particular route or therejection of alternative options, was unreasonable.
Sections 23AA and 23BB of the National Environmental Act No.47 of 1980 amended by Act No. 56 of 1988 adequately protect the publicinterest in regard to environmental considerations by preventing the implemen-tation of a project until an EIA is submitted and approved obtained. There willthus be a further opportunity for all interested persons to raise their objectionswhen the amended EIA is made available for public scrutiny. The section 2 Ordercannot therefore be impugned on this ground.
Although nearly 2500 families would be affected, in the contextof population of the district, and the areas concerned, that cannot per se beregarded as unduly high, particularly if satisfactory steps are taken for resettle-ment. 11
11.It was not unreasonable for the President to have concluded whenhe made the section 2 order, that the expressway is in the national interest.
sc
Amarasinghe and Others v. The Attorney-General and Others
(Colombo-Katunayake Expressway Case) (Fernando, J.)
379
Cases referred to :
Hirdaramani v. Ratnavale [1971] 75 NLR 67.
Visuvalingam v. Liyanage [1984] 2 Sri LR. 123.
Wickremabandu v. Herath [1990] 2 Sri LR. 348.
Weeraratne v. Colin-Thome [1988] 2 Sri LR. 151, 167-169.
Fernandopulle v. Minister of Lands and Agriculture (1978) 79(2) N.LR. 115.
APPLICATION for writs of Certiorari and Prohibition.
R. K. W. Goonesekera with Lalanath de Silva and Manohara de Silva forpetitioners.
K. C. Kamalasabaysan Deputy Solicitor-General with Miss. A. Navaratne forrespondents.
Cur. adv. vutt.
March 15, 1993.
FERNANDO, J.
On 21.01.92 the President made an Order ("P1") under section 2of the Urban Development Projects (Special Provisions) Act, No. 2of 1980 :
" By virtue of the powers vested in me under Section 2 ofthe Urban Development Projects (Special Provisions) Act, No. 2of 1980, I, Ranasinghe Premadasa, President, upon the recom-mendation of the Minister in charge of the subject of UrbanDevelopment, being of opinion that the lands specified in theSchedule hereto are urgently required for the purpose of carryingout an urban development project, do by this Order declare thatthe said lands are required for such purpose".
The Schedule to that Order referred to all lands situated withinseveral specified Grama Seva Niladhari Divisions, which fell withinsix different A.G.A.'s Divisions. The Petitioners are residents of, andowners of lands and buildings within the areas described in P1; theysay that they are some among about 2,500 families affected byP1. They seek Certiorari to quash the Minister's recommendationreferred to in P1, and the President's declaration contained in P1,as well as Prohibition to restrain the Road Development Authority(the 2nd Respondent) from taking steps to construct the Colombo-Katunayake expressway (" the expressway ") connecting the Port
380
Sri Lanka Law Reports
[1993] ISriLR.
of Colombo with the Katunayake International Airport along the routedepicted in the Plan marked P2A. That expressway is the Urbandevelopment project referred to in P1. The Order P1 having beenmade by the President, the Attorney General (in terms of Article 35(3)of the Constitution), has been made the 1st Respondent. The CentralEnvironmental Authority established under the National EnvironmentAct, No. 47 of 1980, and the Urban Development Authority establishedunder the Urban Development Authority Act, No. 41 of 1978, havebeen made the 3rd and 4th Respondents, but no relief has beensought against them.
HISTORY OF THE EXPRESSWAY PROJECT
In 1982, at the request of the Government of Sri Lanka, theGovernment of Japan agreed to conduct a feasibility study in regardto the expressway, and entrusted that study to a Japanese Agency;that Agency, in its report made in January 1984, recommended theconstruction of an expressway to the east of the existing Colombo-Negombo road. The Petitoners have annexed ("P2") the contentspages of that report, and no more ; although they say that “ thesaid report was never made public nor was the public given freeaccess to the same ”, they add that they " have gained accessto parts of this report only very recently H. They state that the reportdealt with traffic surveys and projections, and included a projectfinancial and economic evaluation, and contained “ final route draw-ings " for the proposed expressway ; but did not contain "a socio-economic analysis wherein data collected, through field surveys, ofthe people affected by the proposed expressway was analysed" nor did the economic and financial evaluation consider or takeinto account the social and environmental costs involved in theconstruction of the expressway nor were fundamental alternatives
to the proposed expressway consideredwhat was shown as
alternatives were route alternatives which did not depart significantlyfrom the pre-determined final alignment
The Director, Special Projects, of the 2nd Respondent, and theChairman of the 4th Respondent, have sworn affidavits to the effectthat the report was a feasibility study not intended for publication ;that it contained a socio-economic analysis to arrive at trafficprojections for the future ; that “ four alternative routes were
SCAmarasinghe and Others v. The Attorney-General and Others
(Colombo-Katunayake Expressway Case) (Fernando, J.)381
consideredafter careful field reconnaissance, collection of data
and information, detailed study of the relevant conditions, includingphotography, sociology, land use and distribution of facilities that" the final alignment was not pre-determined but was chosen afterconsidering the four alternatives "; that " social and environmentaleffects of the construction were considered in the evaluation of theproject*; and that the report was prepared under the guidelines setby an Advisory Committee which consisted of a large number of SriLankan Government officials and other experts, (whose names wereset out in the report). Some extracts from the report were producedin support.
It is unfortunate that the entire report (running into about 200pages), or at least more substantial extracts, were not produced.It was open to the Petitioners to have asked for an order forproduction, if they had not had sufficient access to the report.From the contents pages (P2) it appears that the feasibility studycovered inter alia " present transport conditions ", * projection oftraffic demand ”," relationship of expressway and railway ”, ” surveyof alternative routes ", " environmental consideration ", ” economiccost ”, " benefit calculation ", " economic analysis ", conclusions andrecommendations. According to the extracts produced by theRespondents, the Chapter on * Environmental Consideration " con-sidered inter alia " physical indicators of assessment
Topography and geology
Hydrology (drainage, floods)
Metereology (climate andweather)
Traffics nuisances (noise, air pollution, vibration andother nuisances)
Traffic accidents
Construction nuisances
as well as social and economic indicators of assessment :
Transport mobility and accessibility
Land use potentiality
Population distribution
J)Tourism
382
Sri Lanka Law Reports
[1993] iSriLR.
k)Regional spectacle
Community cohesion
m)Resident displacement
n)Industrial and agricultural production
o)Land price
p)Prices of commodities
It was for the Petitioners to substantiate their allegations that thereport was defective ; the available material neither indicates that theabove factors were not adequately considered, nor suggests that therewas any significant error.
On 3.5.91 the 2nd Respondent signed a consultancy agreementwith the Japan Bridge and Structure Institute Inc. ("JBSI") which wasrequired to provide certain services, including the review and updateof the previous feasibility study, the preparation of the detailed design,the carrying out of a comprehensive environmental impact assessment('EIA") of the project, and the preparation of the implementationprogram and tender documents. The 3rd Respondent issued the termsof reference ("P4") for the EIA. A note at the end of P4 refers to” a number of meetings “ held to discuss the terms of reference,the outcome of which was reported at the Eighth Coordination Meetingfor the project. The minutes of the Thirteenth Coordination Meetingheld on 21.8.92 have been produced as ("4R4"), and from this itappears that a large number of Government agencies, including the3rd Respondent, were represented on that Committee ; an EIAprepared by JBSI was considered at that meeting, at which it wasconfirmed that the Cabinet had approved the project and that the2nd Respondent had been requested to go ahead with the workschedule. Further –
" The General Manager stated that priority will have to be givento carry out the surveys and finding alternative accommodationfor people who will be affected“
" The General Manager also requested the RDA to immediatelycommence work to peg the center line and based on the centerline to define a corridor (the normal section required will be 100m.but expected borrow area will require extra land) for the SurveyDepartment to commence the survey“
sc
Amarasinghe and Others v. The Attorney-General and Others
(Colombo-Katunayake Expressway Case) (Fernando, J.)
383
* The Genera/ Manager requested the UDA to look at thedevelopment plan in the area and in relation to this how settlementof families is going to take place and NHOA to do the infrastructurework"
“ Acting Director (NRM) of the CEA stated that the Environ-mental Assessment Report prepared by the Consultants, whichis due to be open for a 30 day period of public comments lackscertain information. She was of the opinion that the report shouldbe updated prior to making it available for public comments. Shestated that :
The resettlement aspect has not been covered adequately.
How to deal with the various categories of people coming underthis project and the assurance given will have to be incorporatedin this report.
The General Manager requested CEA to initiate a letter indicatingtheir comments and inadequacies observed by them, and ROAwill identify ways of dealing with the suggestions. The EAR willnot be open for public comments pending these alterations.
However, the General Manager, stated that the Consultants mayproceed with their work, pending the results of the EAR."
By letter dated 4.9.92 ("4R5") the 3rd Respondent sent to the 2ndRespondent the terms of reference ("4R5A”) for resettlementaspects which had not been adequately addressed in the EIA, andcalled for a supplementary report. Those terms required a detailedstudy of the area affected by the development and the sites involvedin resettlement of the people affected, the population characteristics,the existing facilities, the major economic activities in the area,rehabilitation policy, land availability for relocation, and alternativesites for relocation.
The affidavit of the Director, Special Projects, of the 2ndRespondent states :
384
Sri Lanka Law Reports
[19931 r Sri LR
" From October to December, 1992, National Housing Devel-opment Authority carried out an enumeration of all thehouseholders that would be affected by the expressway. It wasreported that the first petitioner has not co-operated with theenumerators and has refused to provide any information to them.It was the intention of the 2nd Respondent to hold meetings withaffected parties and two meeting were held in December, 1992.More meetings are expected to be held. 3rd Respondent hasexamined the Environmental Assessment Report prepared in March,1992, as part of Detail Engineering; and had recommended thathuman settlement aspects should be studied in further detail. Thissupplementary environmental impact assessment study has beenentrusted to a firm of consultants and it is still' under preparation.Once completed, the Report of this study will be submitted to 3rdRespondent for comments and if satisfactory, the report will beavailable for scrutiny by members of the public ".
He, as well as the Chairman of the 4th Respondent, state thatproceedings will be taken under the Land Acquisition Act to acquirethe required lands. The learned Deputy Solicitor General categoricallyassured us, in the course of his submissions, that the supplementaryEIA would be submitted to the 3rd Respondent, and if foundsatisfactory, would be made available to the public ; and that noaction would be taken to obtain possession of the lands required (e.g.by means of an order under section 38, proviso (a), of the LandAcquisition Act) until the lapse of 30 days after the EIA is madeavailable for public scrutiny.
The section 2 Order was published in the Gazette ExtraordinaryNo. 738/4 of 26.10.92, and the Petitioner filed this application on
It was supported on 4.12.92, but fixed for hearing only for21.1.93 ; although it was taken up for hearing on that day andconcluded on 22.1.93, it was not possible, because many complexquestions arose, to make our order within the period of two monthsstipulated by section 4(2) of the Urban Development Projects (SpecialProvisions) Act.
SCAmarasinghe and Others v. The Attorney-General and Others
(Cotombo-Katunayake Expressway Case) (Fernando, J.)385
JUSTICIABILITY
Learned Counsel for the Petitioners submitted that although section2 referred to the President's * opinion " in subjective terms, it wasnevertheless subject to review on the basis set out in Hirdaramaniv. Ratnavale <1 Visuva/ingam v. Uyanage «, and Wickramabanduv. Herath <3). He did not contend that that opinion had not in factbeen entertained by the President, or had been formed in bad faith,or was a mere pretence. His submission was that –
there was a failure of Natural Justice, in that there had beenno hearing prior to the recommendation and the opinion referredto in section 2, and
there had been an excess of jurisdiction and/or a failure toconsider relevant material and/or that the President did not haveadequate material on which he could properly have formed anopinion.
As tiie learned Deputy Solicitor General did not contend that theOrder was not justiciable, we do not have to consider that question.
Learned Counsel for the Petitioners contended that in order todetermine the character of an Order under section 2 it was necessaryto consider its consequences: firstly, the ouster of jurisdiction effectedby sections 3 and 4, and secondly, the liability of an owner to summarydeprivation of possession under section 7.
A valid order under section 2 requires the following elements :
a recommendation by the Minister (and it is common groundthat the President was himself the Minister concerned) ;
an opinion formed by the President –
fi) in relation to an urban development project,
(ii) that lands are required for the purposes of such project,p) that this requirement is urgent, andfiv) that such project would meet * the just requirements ofthe general welfare of the People *
386
Sri Lanka Law Reports
[1993] 1 Sri l.R.
Whether the expressway project is desirable, prudent, or otherwise,undoubtedly it is an " urban development project and it is clearthat for the particular expressway that has been proposed, some partsof the lands, described in the Schedule to the Order, are required.I need therefore to consider only the remaining elements.
It is convenient to reproduce here the relevant sections :
"2. Where the President, upon a recommendation made bythe Minister in charge of the subject of Urban Development,is of opinion that any particular land is, or lands in any areaare, urgently required for the purpose of carrying out an urbandevelopment project which would meet the just requirementsof the general welfare of the People, the President may, byOrder published in the Gazette, declare that such land is orlands in such area as may be specified are, required for suchpurpose.
3. No person aggrieved by an Order made or purported tohave been made under section 2 of this Act, or affected byor who apprehends that he would be affected by any act orany step taken or proposed to be taken under or purportingto be under this Act or under or purporting to be under anyother written law, in or in relation to any particular land or anyland in any area, shall be entitled –
To any remedy, redress or relief in any court other thanby way of compensation or damages ;
to a permanent or interim injunction, an enjoining order,a stay order or any other order having the effect ofstaying, restraining, or impeding any person, body orauthority in respect of –
any acquisition of any such land or any land in such area;
the carrying out of any work on any such land or in anyland in any such area ;
the implementation of such project in any mannerwhatsoever.
sc
Amarasinghe and Others v. The Attorney-General and Others
(Cokmbo-Katunayake Expressway Case) (Fernando, J.)
387
4(1) The jurisdiction conferred on the Court of Appeal byArticle 140 of the Constitution shall, in relation to any particularland or any land in any area in respect of which an Order underor purporting to be under section 2 of this Act has been made,be exercised by the Supreme Court and not by the Court ofAppeal.
(2) Every (such) applicationshall be made within one
month and the Supreme Court shall hear and finally
dispose of such application within two months
7(1) Where it becomes necessary for the Government or anyperson, body or authority, for the purpose of carrying out orassisting in the carrying out of any Urban Development Project,to take possession of any particular land or any land in anyarea in respect of which an Order under or purporting to beunder section 2 of this Act has been published, it shall be lawfulfor the Government or any such person, body or authority, totake steps under the provisions of the State Lands (Recoveryof Possession) Act, and accordingly –
the expression " State land " as defined in such Act shallinclude any land vested in or belonging to any suchperson, body or authority or which such person, body orauthority is entitled to dispose of ; and
the expression “ competent authority 11 shall include suchperson or the principal executive officer of such body orauthority.
(2) Every application under the State Lands (Recovery ofPossession) Act, in respect of any particular land or any landin any area in respect of which an Order under or purportingto be under section 2 of this Act has been published, shall
be finally disposed of within thirty daysand the court shall
make all such orders as are necessary to ensure that allpersons are ejected from that land within sixty days of themaking of such application ".
388
Sri Lanka Law Reports
[19X3] 1 Sri LR.
OUSTER OF JURISDICTION: SECTIONS 3 AND 4
It was contended on behalf of the Petitioners that section 3 not onlytook away the jurisdiction of the District Court to grant declarationsand injunctions in respect of an order under section 2, but even thejurisdiction of the superior courts ; that “ any court " included theSupreme Court. My observations in Weeraratne v. Colin-Thome <4>,were referred to : that the scope of the ouster provided for by section9 (2) of the Special Presidential Commissions Law, No. 7 of 1978,was enlarged by section 18 (A) 2 of ‘the amending Act No. 4of 1978 so as to preclude " any court " – and this would includethe Supreme Court – from staying, suspending or prohibiting theholding of any proceeding ". Those observations were only obiter,as the power of this Court to make an interim order was not in issue.However, Law No. 7 of 1978 (and section 9(2) in particular) waspre-Constitution legislation, which was kept in force by Article 168(1),and the Bill in respect of Act No. 4 of 1978 was referred to thisCourt with a certificate that it was intended to be passed by thespecial majority required by Article 84, (and thus would have effectnotwithstanding inconsistency with Article 140). Further a section 18A(2) of that Statute disclosed an intention to affect the jurisdiction-conferred by Article 140, quite unlike section 3 which is phrased invery different terms. Section 3 must therefore be interpreted, as faras possible, in a manner consistent with Article 140. If" any Court“ in section 3 (a) is interpreted as including the Supreme Court, theonly relief which that provision permits would be compensation ordamages ; that view would render section 4 nugatory because Article140 does not refer to those remedies. Clearly therefore section 3(a) read with section 4 – quite apart from the constitutional question- was not intended to apply to the superior courts. Section 6 puts
this beyond doubt, because " nothing contained in section 3
shall affect the powers which the Supreme Court may otherwiselawfully exercise [under] section 4 (1)“, i.e. the jurisdiction (conferredby Article 140) and transferred by section 4(1) to the Supreme Court.The learned Deputy Solicitor General conceded that section 3 didnot affect the jurisdiction conferred by Article 140. I
I hold that section 3 does not affect the jurisdiction entrenchedby Article 140, which has (in terms of the First Amendment), beentransferred to this Court by section 4(1).
sc
Amarasinghe and Others v. The Attorney-Genera/and Others
(Cotombo-Katunayake Expressway Casej (Fernando, J.)
389
SUMMARY DEPRIVATION OF POSSESSION: SECTION 7
Learned Counsel for the Petitioners submitted that section 7(1)empowers the Government, or any other person, to obtain possessionof any lands, in respect of which a section 2 Order has been made,under the State Lands (Recovery of Possession) Act; a landownercould thus be summarily dispossessed at any time after a section2 Order. However, section 7 merely authorises the Government orany other person " to take steps * under that Act. In view of thedefinition of * State land " at that time notices could have been issuedunder that Act only in respect of land to which the State was lawfullyentitled or which may be disposed of by the State and lands underthe control of certain specified authorities ; and it was only a" competent authority " who could issue such notices and take othersteps. The effect of section 7 (1) was to enable a * person, bodyor authority " to take steps, even though not a " competentauthority ”, and paragraph (a) was enacted in order to widen thedescription of “ State land “ to include " any land vested in or belongingto any such person, body or authority hence notices can be issuedand possession obtained only after the lands referred to in the section2 Order became duly vested, in the State or such other person, bodyor authority. The learned Deputy Solicitor General agreed with thisconstruction of section 7, and submitted that possession could notbe taken under that Act before the lands were vested by virtue ofproceedings under the Land Acquisition Act or other statutes.
A section 2 Order thus does not have the drastic consequencessuggested by learned Counsel for the Petitioners, and it is on thatbasis that the validity of the section 2 Order has to be examined.
MINISTERS RECOMMENDATION
Learned Counsel for the Petitioners submitted that although thePresident was also the Minister concerned, there should neverthelesshave been a recommendation, and that this should have been madeafter hearing the views of those affected by and/or opposed to theproject; and also that the recommendation should have made referenceto those views in order to enable the President to form an opinionafter considering every aspect of the matter.
390
Sri Lanka Law Reports
[1993] 1 Sri L.R.
I hold that a hearing was not a pre-requisite for making arecommendation, for the same reasons which I have set out laterin this judgment for holding that the President was entitled to forman opinion without a prior hearing. It is constitutionally permissiblefor the President to refrain from assigning a particular subject orfunction to a Minister, whereupon it would remain in his charge (underArticle 44 (2)). I cannot interpret section 2 as requiring the Presidentto make a recommendation to himself, and thereafter to form anopinion upon the same matter; if his opinion was the same as hisrecommendation, the latter would be superfluous ; and it is absurdto think that his opinion could have differed from his recommendation.
I hold that the President was not legally required to make arecommendation to himself, and it was sufficient for him to form anopinion on the available material. The Order has been drafted withless than ordinary care and precision, and mistakenly refers to a
non-existent “ recommendation of the Minister; however, in the
circumstances this is a superfluity which does not vitiate the Order.
URGENCY
Urgency is always relative ; sometimes action may be required withinhours ; for an enormous project, such as this expressway, urgencymay be a matter of months or years. Considering that the projecthad been in contemplation at least from 1983, and had already beendelayed for almost ten years, it is not unreasonable to consider, inthe light of increases in population, traffic, economic activity, etc., thatspeedy implementation was imperative. I hold that the President'sopinion as to urgency was not vitiated by any excess of jurisdictionor error of law ; and that there was adequate material on which thatopinion could have been formed.
JUST REQUIREMENTS OF THE GENERAL WELFARE OF THEPEOPLE
Learned Counsel for the Petitioners submitted that in forming anopinion that the expressway would meet the just requirements of thegeneral welfare of the People, the President was obliged –
SCAmarasinghe and Others v. The Attorney-General and Others
(Colombo-Katunayake Expressway Case) (Fernando, J.) 391
to give a hearing to the people likely to be affected by the project;
to consider alternatives to the project ;
to consider environmental and socio-economic factors ; and
to have regard to the large number of people affected and theneed for their relocation.
The ’ People " referred to in section 2 includes not only such" People * as may be affected by the project, but the * People "of Sri Lanka. The phrase under consideration is virtually identical tothat occurring in Article 15 (7) of the Constitution. It must includethe national interest in general. In any event, any supposed require-ment of a hearing must apply also to those likely to benefit fromthe project. Thus a hearing is obviously impractical, as some sortof a local referendum would be needed to ascertain the views ofall those having a legitimate interest in the project. The Order has,of itself, no adverse impact on the citizen's property, libertyor livelihood ; it does not deprive him of, or affect, the title to, orpossession of, his property ; his legal remedies under Article 140are unimpaired ; he is not subjected to any disadvantage whatsoever;and he will have an opportunity of submitting objections when stepsare taken under section 4 of the Land Acquisition Act. I am of theview that the Minister in making a recommendation, and the Presidentwhen making an Order, under section 2, are determining policy, basedon evidence of a general character; there is no Us. The obligationto give a hearing arises only later, when objections are submitted,and when there is a lis; at that stage evidence as to the local situation,and the effect on individuals, has to be adduced and weighed.
It is of course possible that land-owners may be deprived of theirright to submit objections if, instead of making an order under section4, the relevant Minister makes an order under section 2 of the LandAcquisition Act, and soon thereafter an order under section 38,proviso (a). However, in the present case the land that is actuallyrequired for the expressway (and therefore land the possession ofwhich is urgently required) cannot be determined from the scheduleto the section 2 Order, since that schedule admittedly includes moreland than needed. To determine what portions of land are required,it will be necessary to enter those lands, survey and take and mark
392
Sri Lanka Law Reports
[1993] 1 Sri L.R.
levels, set out and mark the boundaries of the proposed expressway,and do other necessary acts. An Order under section 2 of the LandAcquisition Act would be needed to do all this, it is only thereafterthat the Minister would know which particular lands are required, andthat possession must be taken urgently. The learned Deputy SolicitorGeneral concedes that an order under section 38, proviso (a) canbe challenged by certiorari, as held in Fernandopulle v. Minister ofLands and Agriculture (5).
The extracts produced from the 1984 report show that alternativeswere considered – not only the alternative routes but the railway aswell. In the absence of other relevant portions of the report, it isimpossible for us to say either that the material was inadequate orthat the rejection of the alternatives was unreasonable. LearnedCounsel for the Petitioner further submitted that one of the alternativesthat should, have been considered was the " no action “ alternatives- to leave the status quo unchanged. Our jurisdiction is not todetermine whether or not the expressway is necessary, and if so,which alternative- is the most suitable. It is for the Executive, underthe laws enacted by Parliament, to make those decisions. The writjurisdiction authorises this Court to examine whether jurisdiction hasbeen exceeded, whether there is error of law, and whether there hasbeen procedural due process. The merits of a decision cannot bequestioned merely because we consider that some other decisionwould have been better; we can interfere only if it is unreasonable.
The available material does not in any way indicate that thedecision to build the expressway was unreasonable ; but on thecontrary, that it was necessary and urgent ; and there is nothingwhatever to suggest that the selection of the particular route, or therejection of the alternative options, was unreasonable.
Any expressway would inevitably cause a certain amount ofinconvenience, (or loss or prejudice) to one group of citizens oranother, depending on its location. Neither the fact that a particularroute causes inconvenience to some people, nor the selection of oneroute (which causes inconvenience, or inconvenience to a greaternumber of people), in preference to another route, constitutes proofof unreasonableness. In any event, the Petitioners have not evenattempted to show that some other route would be better for anyreason whatsoever.
SCAmarasinghe and Others v. The Attorney-General and Others
(Cotombo-Katunayake Expressway Case) (Fernando, J.)393
The next contention on behalf of the Petitioner was based on PartIV C of the National Environmental Act, No. 47 of 1980, introducedby amending Act No. 56 of 1988. Section 23AA requires that approvalbe obtained for the implementation of all “ prescribed projects ", fromthe appropriate " project approving agencies ". Under section 23BB,for the purposes of granting such approval, project approvingagencies are required to call for an Environmental Impact Assessmentreport (“EIA"), which is defined in section 33. It was submitted thata section 2 Order could not have been made in respect of theexpressway before an EIA had been prepared, and that an essentialcomponent of an EIA was an " environmental cost-benefit analysis“ – something much more than mere financial cost-benefit analysis.This contention cannot succeed. Those provisions apply only to "project approving agencies H and “ prescribed projects ", as deter-mined by the Minister by Orders under sections 23Y and 23Z ; nosuch Orders had been made. Further, section 33 makes it clear thatthe submission of an environmental cost-benefit analysis is requiredonly if such an analysis has in fact been prepared.
It was then urged that draft regulations under section 32, coveringthese matters, have been prepared and that the section 2 Order hadbeen made hastily before the regulations could be gazetted, notbecause of any real urgency, but simply to prevent theexpressway project becoming subject to those regulations. This ishighly speculative, and is not supported by any evidence. Theimplementation of the project could reasonably have been consideredurgent ; even if regulations had been made the expressway mightnot have been declared to be a prescribed project ; and finally thescheme of the Act does not contemplate that an EIA should havebeen prepared and finalised before a section 2 Order in respect ofthe project. Sections 23AA and 23BB adequately protect the publicinterest in regard to environmental considerations by preventing theimplementation of a project until an EIA is submitted and approvalobtained.
However section 10 (h) does provide certain safeguards, eventhough the expressway is not a prescribed project. One of the powers,functions and duties of the Central Environmental Authority (“CEA")is to require the submission of proposals for new projects 11 for thepurpose of evaluation of the beneficial and adverse impacts ofsuch proposals on the environment". Section 24B authorises the CEA
394
Sri Lanka Law Reports
{1993] 1 Sri L.R.
to issue directives in respect of a project * which is causing, or islikely to cause, damage or detriment to the environment, regardingthe measures to be taken to prevent or abate such damage ordetriment * ; upon failure to comply with such directives the CEAmay apply to a Magistrate to order the temporary suspension of suchproject until such measures are taken. The Respondents have statedthat no action will be taken to obtain possession of the lands requiredfor the project until an EIA, satisfactory to the CEA, had been preparedand made available for public scrutiny for 30 days. While that wouldbe the appropriate stage at which to consider public representationsas to environmental factors, I must emphasise that the documentsproduced indicate that some consideration has already been givento these matters. Noise, fumes and other forms of. air pollution areinevitable with any road or railway ; the " no action 11 alternative,which would leave the existing road as it is, will, as traffic increaseswith time, increase pollution, as well as expense, delay and incon-venience to all users of that road and residents ; widening that roadwill entail much greater expense for land acquisition, and will affecta much larger number of residents, with no appreciable reduction inpollution. The construction of an alternative road will necessarilyreduce traffic, and consequently also pollution, congestion and delayin respect of the existing road. While the expressway will inevitablycause some amount of noise pollution, an inconvenience to residentsin the- vicinity, yet these will be comparatively very much smaller innumber ; the documents produced also show an awareness of theneed to reduce noise and pollution by preventing the constructionof buildings immediately adjacent to the road and by erecting suitablefences and barriers. It appears to me therefore that environmentalfactors have already been considered, and that there will be a furtheropportunity for all interested persons to raise such matters when theamended EIA is made available for public scrutiny. The section 2Order cannot therefore be impugned on this ground.
Learned Counsel for the Petitioners focussed attention on onefactor in particular – the need for resettlement of a large numberof persons who would be displaced from their homes by the express-way. This has already been considered, and in 4R4, inadequacieshave been specifically pinpointed, and a supplementary EIA has beencalled for in accordance with the terms of reference, 4R5A. ThePetitioners contend that 2,500 families will be affected : in the contextof population of the district, and the areas concerned, that cannot
sc
Amarasinghe and Others v. The Attorney-General and Others
(Colombo-Katunayake Expressway Case) (Fernando, J.)
395
per se be regarded as unduly high, particularly if satisfactory stepsare taken for resettlement.
It is not for this Court to determine whether, upon a considerationof all these factors, the disadvantages outweigh the advantages ofthe expressway, or whether in its view the expressway meets thejust requirements of the general welfare of the People. There isadequate material to show that these factors have been considered,and will be considered further in accordance with the relevantstatutory provisions ; that the public will have an opportunity to expresstheir views ; and that it was not unreasonable for the President tohave concluded, when he made the section 2 Order, that the ex-pressway is in the national interest.
For these reasons the Petitioners application for Certiorari andProhibition is refused. The questions raised by the Petitioners inregard to environmental considerations demonstrate that they havebeen motivated primarily by concern for the public interest, and forthat reason I make no order for costs.
The 1st Petitioner has another grievance personal to himself. Itappears from his correspondence with some of the Respondents thatat the time of the 1984 study, surveyors had demarcated the centreline of the proposed highway by means of cement pegs ; his propertywas not affected. However, a priest who had thereafter been expelledfrom a nearby temple then put up a building upon a land which wasaffected by the centre line ; in 1988 the priest planted a Bo-saplingnext to the centre line pegs upon that land. In February 1992 thesurveyors entertained the protests of the priest, and moved the centreline on to the 1st Petitioner's land. These matters are not relevantto the questions which arose for determination, and quite properlywere not agitated by learned Counsel for the Petitioners ; the 1stPetitioner will be free to raise these matters in the appropriateproceedings.
GOONAWARDENA, J. – I agree.
PERERA, J. – I agree.
Application refused.