041-SLLR-SLLR-2005-V-1-NILWALA-VIDULIBALA-COMPANY-PVT-LTD-.-vs.-KOTAPOLA-PRADESIYA-SABHA-AND-OT.pdf
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NILWALA VIDULIBALA COMPANY (PVT) LTD.VSKOTAPOLA PRADESHIYA SABHA AND OTHERSCOURT OF APPEALSRISKANDARAJAH, JC. A. 2001/03DECEMBER 3, 2004 ANDJANUARY 10. 2005
Writ of mandamus on Pradeshiya Sabha – Hydro Electricity Project – Is it adevolved subject? – Jurisdiction of the Court of Appeal – Constitution, Articles140, 154, and 154 (4) b- 13th Amendment – Concurrent List – Provincial List ■Reserved List
The petitioner sought to challenge the decision and/or the recommendationsmade by the 1st respondent Pradeshiya Sabha in respect of hydro – electricityprojects. Raising a preliminary objection, the respondents contended that,hydro power generation not being a devolved subject, the Pradeshiya Sabhahas no powers in relation to approval or granting of permission for powerprojects.
HELD
(i) In terms of the 13th Amendment, any subject not specified in the ProvincialList (List 1) or the Concurrent List (List III) is deemed to be included in theReserved List. In this Instance as there is no reference to hydro power orgrid connected power in List 1 or List III, it is clear that these are ReservedSubjects.
CA
Nilwala Vidulibala Company (pvt) ltd. vsKotapola Pradeshiya Sabha and Others (S. Sriskandarajah, J.)
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(ii) Writ jurisdiction conferred on the Provincial High Court, is concurrent withthe jurisdiction of the Court of Appeal under Article 140, and the latter hasnot been diminished by the 13th Amendment.
“Relief sought is for the exercise of power in relation to hydro powergeneration which is not a subject in the Provincial List of the 13thAmendment, therefore the Provincial High Court has ho jurisdiction toentertain this application under Article 140, of the constitution the Court ofAppeal could hear and determine applications of this nature.”
PRELIMINARY OBJECTION in relation to the juisdiction of the Court of Appeal.
Case referred to:
1. Weragama vs Eksath Lanka Wathu Kamkaru Samitiya and 2 others(1994) 1 Sri LR 293
S. S. Sahabandu P. C., with Ruana Rajepakse for petitioner.
Hugo Anthony for 1 st, 2nd and 3rd respondents.
N. Idroos, State Counsel for 4th and 6th respondents.
Geoffry Alagaratnam with Anura Ranawaka for 7th respondent
Cur. adv. vult.
March 10, 2005SRISKANDARAJAH, J.
The 1 st, 2nd and the 3rd Respondents raised a preliminary objection thatthis court has no jurisdiction to entertain this application. In this applicationthe writ of prohibition and mandamus is sought against the 1 st Respondentchallenging the decision and/or the recommendation made by the 1stRespondent. The first Respondent is a Pradeshiya Sabha and the writjurisdiction to challenge it is decision is specifically covered by Art 154(4)(b) of the Constitution of the Democratic Socialist Republic of Sri Lanka.Accordingly the issuing of writs sought in the petition of the Petitioner isstrictly within the purview of the relevant Provincial High Court created bythe Constitution. Therefor these Repondents submitted that this Courthas no jurisdiction to hear and determine this application.
The 7th Respondent submitted that the hydro power generation notbeing a devolved subject the Pradeshiya Sabha has no powers in relation
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to approval or granting of permission for power projects. The 7th Respondentalso associated himself with the 1 st to the 3rd Respondent’s preliminaryobjection and submitted that the Petitioners challenge is regarding thepowers, procedure and the approvals granted by the Pradeshiya Sabha inrelation to power generation. Therefore it could only be challenged in theHigh Court of the Province.
The Petitioner submitted that the subject matter of the project for whichthe Petitioner is seeking approval namely hydro – electricity, is not a subjectthat is devolved to the Provincial Councils or it is not in any type of powerproject that is connected to the national grid so devolved. The only referenceto electricity in the 13th Amendment to the Constitution occurs in theProvincial List, as item 34 and it is in the form of an exemption. Item 34reads as follows.
“Development, conservation and management of sites and facilities inthe Province for the generation and promotion of electrical energy (otherthan hydro electric power and power generated to feed the nationalgrid)”
In terms of the 13th Amendment to the Constitution, any subject notspecified in the Provincial List (List 1) or the Concurrent List (List III) isdeemed to be included in the Reserved List. In this instance, as there isno reference to hydro power or grid connected power other than thereference quoted above, it is clear that these are reserved subjects. ThePetitioner further submitted that the meaning of Article 154P was extensivelyconsidered by the Supreme Court in the case of Weragama V EksathLanka Wathu Kamkaru Samithiya and otherd'} Firstly: the Supreme Courtheld that the writ jurisdiction conferred on the Provincial High Courts isconcurrent with the jurisdiction of the Court of Appeal under Article 140and that the latter has not been diminished by the 13th Amendment to theConstitution. Secondly, on the question of interpretation of Article 154
(b), which is the Article relied upon by the contesting Respondents, theSupreme Court held that the words “any law” under that section should beread conjunctively with the words “in respect of any matter set out in theProvincial list”. The Peititioner further submitted that since the Respondents,including the Pradeshiya Sabha, cannot be said to be acting under anylaw in respect of a matter in the Provincial List, the Provincial High Courtwill not have jurisdiction.
CAJana Shakthi Insurance Co. LTd., vs299 ,
Dasanayake Manike and others (Wimalachandra J„)
The Petitioner in this application has sought writs of Prohibition andMandamus not only against the 1st, 2nd and 3rd. Respondent’s thePradeshiya Sabha Chairman and the Secretary but also has sought thesewirts against the 4th, 5th and 5th Respondents whose functions areregulated by the Statutes enacted by Parliament. The relief is sought forthe exercise of power in relation to hydro power generation which is not asubject in the Provincial List of the 13 th Amendment to the Constitution;therefore the Provincial High Court has no jurisdiction to entertain thisapplication. Under Article 140 of the Constitution the Court of Appeal couldhear and determine applications of this nature. For these reasons theCourt dismisses the preliminary objection of the Respondents.
Preliminary objection overruled;matter set down for argument