031-SLLR-SLLR-2008-V-2-JANAK-HOUSING-PVT-LTD-AND-ANOTHERS-v.-URBAN-DEVELOPMENT-AUTHORITY.pdf
302Sri Lanka Law Reports[2008] 2 Sri LR
JANAK HOUSING (PVT) LTD AND ANOTHERv
URBAN DEVELOPMENT AUTHORITYCOURT OF APPEALSRISKANDARAJAH, J.
CA 1131, 2005 (writ)
JULY, 9. 2007
Writ of Mandamus – Compelling Urban Development Authority (UDA) to enterinto a lease agreement – Legal right – performance of a legal duty – Essenceof Mandamus?
Held:
The petitioner seeking a writ of mandamus must show that there residesin him a legal right to the performance of a legal duty by the party againstwhom the mandamus is sought.
The general rule of mandamus is that its function is to compel a publicauthority to do its duty. The essence of mandamus is that it is a commandissued by the Superior Court for the performance of public duty. Whereofficials have a public duty to perform and have refused to perform,mandamus will be to secure the performance of the public duty, in theperformance of which the appellant has sufficient legal interest.
Janak Housing (Pvt) Ltd, and Another v
CAUrban Development Authority ( Sriskandarajah, J.) 303
Held further:
The petitioners have failed to show that the respondent has a legal duty toenter into a lease agreement and it is not sufficient, to show that therespondent has the power to enter into a lease agreement with thepetitioner. The petitioners have also not shown that they have a legal rightto enter into a lease agreement with the respondent.
APPLICATION for a writ of Mandamus.
Cases referred to :
Ratnayake and Others v C.D. Peiris and Others 1982 2 Sri LR 451 at 456.
Credit Information Bureau of Sri Lanka v Jafferjees' and Jafferjees (Pvt.)Ltd. 2005 1 Sri LR 89 at 93.
R v Barns Staples Justices Exp. Carder 1938 1 KB 385.
Napier ex parte 1852 18 QB 692 at 695.
R v Lewisham Union Guardians 1897 1 QB 498.
P.K. Benarji v H.J. Simonds.
Faiz Musthapha PC with Faizer Markar and Tushani Machado for petitioner.Nihal Jayawardane with Malith Kumara for respondent.
September 12, 2007SRISKANDARAJAH, J.
The 1st petitioner is a private limited liability company engagedin the business of a property developer. The 2nd petitioner is theChairman and the Managing Director of the 1st petitionerCompany. The 1st petitioner in or about 21st of January 2003submitted a project proposal to the Respondent to construct 710houses at Hi-Ton City New Town (Weralupe), Ratnapura andsought allocation of land for the said project on a 50 years lease. Inthis regard the respondents called for additional particulars by itsletter of 19.3.2003. The petitioners contended that after furnishingthe particulars the respondent informed them that the approvalfrom the state land alienation committee was obtained for theallocation of the UDA land at new Town Ratnapura for the saidpurpose and it was awaiting the valuation of the chief valuer'sreport. The petitioners were also called upon by the respondent byits letter of 2.3.2004 to obtain environmental clearance, sub-division approval and a building permit. The Respondent by itsletter dated 12th November 2003 informed the Board of Investmentwith a copy to the 2nd petitioner that on the receipt of the
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Environmental Impact Assessment Report from the developer,action will be taken to expedite the Chief Valuer's valuation andoffer the land to the Company for payment and enter in to a leaseagreement for development. The respondent contended that therespondent authority was made to understand that the petitionersare engaged in unauthorised activities at the proposed site and the2nd petitioner was requested by the respondent to terminate suchactivities by its letter of 30th April 2004.
The petitioners contended that the 1 st petitioner has obtained allthe necessary approvals in terms of the letter of the respondentdated 12th November 2003 including the Environmental ImpactAssessment Report in these circumstances the petitionerscontended that the respondent under Section 8(1) of the UrbanDevelopment Authority Act has a duty to enter into a leaseagreement with the 1st petitioner on terms and conditionscontained in the letter dated 12.11.2003 and the petitioner soughtin this application a writ of mandamus to this effect.
In this application the Respondent's objection was not acceptedby court as it was not filed within the time granted by court.
Section 8 of the Urban Development Authority Act deals with thepowers and functions of the Authority and it does not cast any dutyin respect of those matters on the Authority. The petitioner to seeka writ of mandamus must show that there resides in him a legalright to the performance of a legal duty by the party against whomthe mandamus is sought. Therefore that a mandamus may beissued to compel something to be done under a statute and it mustbe shown that the statute imposes a legal duty. In Ratnayake andOthers v C.D. Perera and Other&h at 456 Sharvananda, J. withVictor Perera, J. and Colin-Thome, J. agreeing held;
"The general rule of mandamus is that its function is to compela public authority to do its duty. The essence of mandamus isthat it is a command issued by the Superior Court for theperformance of public legal duty. Where officials have a publicduty to perform and have refused to perform, mandamus will Heto secure the performance of the public duty, in the performanceof which the applicant has sufficient legal interest."
Janak Housing (Pvt) Ltd, and Another v
CAUrban Development Authority (S. Sriskandarajah, J.)305
In Credit Information Bureau of Sri Lanka v Messrs Jafferjee &Jafferjee (Pvt) LtdS2) at 93 the Supreme Court held:
"There is rich and profuse case law on mandamus on the
conditions to be satisfied by the applicant. Some of the
conditions precedent to the issue of mandamus appear to be:
The applicant must have a legal right to the performanceof a legal duty by the parties against whom the mandamusis sought (R. v Barnstaple Justices exp. Carded. Thefoundation of mandamus is the existence of a legal right(Napier ex parted)).
The right to be enforced must be a "Public Right" and theduty sought to be enforced must be of a public nature.
The legal right to compel must reside in the applicanthimself (R. v Lewisham Unions)
The application must be made in good faith and not for anindirect purpose.
The application must be preceded by a distinct demandfor the performance of the duty.
The person or body to whom the writ is directed must besubject to the jurisdiction of the court issuing the writ.
The Court will as a general rule and in the exercise of itsdiscretion refuse writ of mandamus when there is anotherspecial remedy available which is not less convenient,beneficial and effective.
The conduct of the applicant may disentitle him to theremedy, (i) It would not be issued if the writ would be futilein its result.
(j)Writ will not be issued where the respondent has no powerto perform the act sought to be mandated.
The above principles governing the issue of a writ of mandamuswere also discussed at length in P.K. Benarji v H.J. Simonds^6lWhether the facts show the existence of any or all pre-requisitesto the granting of the writ is a question of law in each case to bedecided not in any rigid or technical view of the question, but
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according to a sound and reasonable interpretation. The court willnot grant a mandamus to enforce a right not of a legal but of apurely equitable nature however extreme the inconvenience towhich the applicant might be put." (Emphases added).
In the instant case the petitioner has failed to show that therespondent has a legal duty to enter into a lease agreement withthe petitioners and it is not sufficient to show that the respondenthas the power to enter into a lease agreement with the petitioners.On the other hand the petitioners have also not shown that theyhave a legal right to enter into a lease agreement with therespondent. For these reasons the petitioners application for a writof mandamus is dismissed without costs.
Application dismissed.