007-SLLR-SLLR-2009-V-1-VEN.-ELLAWALA-MEDANANDA-THERO-vs-DISTRICT-SECRETARY-AMPARA-AND-OTHERS.pdf
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Sri Lanka Law Reports
1200911 SRI LR.
VEN. ELLAWALA MEDANANDA THEROvs
DISTRICT SECRETARY, AMPARA AND OTHERS
SUPREME COURTS. N. SILVA C. J.
GAMINI AMARATUNGA J.
P. A. RATNAYAKE J.
SC FR 178/08.
JUNE 19, 2008.
SEPTEMBER 9, 2008.
OCTOBER 30, 2008.
Fundamental Rights – Constitution Article 10, 12 (1), 12 (2) -13thAmendment – Alienation of land – Fair and equitable process in effectingalienation of lands? – Doctrine of ultra vires – Public Law – Rule of Law -State land held by executive in trust for the people – Land DevelopmentOrdinance.
The petitioners allege that the executive and or administrative actiontaken to alienate the land – about 60 Acres to 500 Muslim familiesinfringe the fundamental rights guaranteed under Article 10,12(1), 12(2) of the constitution. The land is located 13km to theSouth of the Deegavapi Raja Maha Viharaya and the settlementof such a large number of Muslims within a close proximity to theRaja Maha Vihara would bar further expansion of Sinhala Buddhistresidents who are living close to the Viharaya. The petitionerscontend that, there is a total failure on the part of therespondents to act in terms of the 13th amendment and the LandDevelopment Ordinance.
The respondents contended that the beneficiaries were selected in termsof a Circular, that the land is not State land and that no provision ofthe 13th Amendment or the Land Development Ordinance prohibit theimpugned alienation.
Held:
Although the 1st respondent has stated that the selection process ofthe allottees had taken place in 2005 – after Tsunami, this position isuntenable since none of the beneficiaries have stated that they went
Ven. Bllawala Medannanda Thero vs. District secrectary Ampara and others
SC(Sarath N. Silva C. J.)55
through a selection process in 2005. The State has failed to produceany evidence as to the official or authority who selected the land andthe beneficiaries.
The Circular relied on by the 1st respondent was issued by theSecretariat of the President, it has not been issued in terms of anyapplicable law, it appears to have been a general executive measuretaken in the immediate aftermath of the Tsunami to relocate familiesthat were affected. The Circular does not specify the basis of selectionof land for relocation of displaced person by the Tsunami.
Per S. N. Silva. C. J.
“Even assuming that the land is not State land but vested in theSugar Corporation as contended by the respondents, the petitionersdo not claim that the land was alienated to them by the Corporationor the successor, they claim that the land was promised to themby the Divisional Secretary – 1st respondent – then, if the landremained vested in the Corporation this action of the 1st respondentwould per se be valid – on the other land if the land is State land, theground relied on would make the case worse for the respondents”.
The contention that, an action of a public authority is valid,so long as it is not prohibited by the applicable law, is a totallyuntenable contention in Public Law and is contrary to Rule ofLaw and the doctrine of ultra vires.
Action of an official should have –
legal justification;
be not in excess of lawful authority;
be authorized by law.
State land is held by the executive in trust for the public and maybe alienated only as permitted by law.
APPLICATION under Article 126 of the Constitution.
Case referred to:-
Liyanage vs. Gampola U. C. 1991 1 Sri LR 1 of 7Manohara de Silva PC with A Wijesundara for petitionersFaiz Musthapha PC with Ms. Faizer Marker, Thushani Machado forintervenient petitioners
M. A. Sumanthiran with E. Keegal for intervenient petitioners.
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[2009] 1 SRIL.R.
Dilshan Kayasuriya for 1“ intervenient petitioner
Prasantha Lai de Alwis with Sampath Gamage and Anusha
Perusing he for 9th – 10Ul respondents
No appearance for 5th and 11th respondents
J. C. Weliamuna with M. Ratnayake for 1 intervenient petitioner
Razick PC with U. L. M. Mowjood for 2 intervenient petitioners.
Iqbal Mohamed with M. I. M. Ishan for 2 intervenient petitioners.
Iqbal Mohamed with M. I. M. Nazeer for 2 intervenient petitioners.
Nimal Fernando PC with Rajendra Jayasinghe and Gamini Perera for 1intervenient petitioner
Uditha Egalahewa with Ranga Dayananda for 2 intervenient petitionersD. P. Kumarasinghe PC with Shameendra Rodrigo and MahendraKumarasinghe for 2 intervenient petitioners
Palitha Kumarasinghe PC with Priyantha Abeyagunawardane for 2intervenient petitioners
Upul Jayasuriya with Lelum Kumarasinghe and M. Madhubashinifor 3 interventent petitioners
I. S. de Silva with Vinod Wickremasinghe, Deeptha Perera, DilshanWijewardane and Wishva Mettananda for 3 intervenient petitionersW. D. Weeraratne with Eranga Abeykumara for 2 intervenient petitionersSanjeewa with Sandamali Chandrasiri for 1 intervenient petitionerKushan de Alwis with Kaushalya Nawaratne for 3 intervenientpetitioners
Pubudinie Wickremaratne for 1 intervenient petitioner
Vishwa Gunaratne with Lasitha Chaminda for 1 intervenient
petitioner
Prasanthalal de Alwis with Sampath Gamage for 1 intervenientpetitioner
Mrs. Jayasinghe B. Tillakaratne DSG with Sudharshi HerathSC for 1st – 4th, 6th – 8th, 12th respondents.
S. de Silva with Deeptha Perera for 30th and 55th respondents
Cur.adv.vult.
December 02, 2009SARATH N SILVA, C. J.
Petitioners have been granted leave to proceed on thealleged infringement of the fundamental rights guaranteedby Articles 10, 12(1) and 12(2) of the Constitution. Interimrelief was granted by the bench which dealt with the matterat the stage of considering leave to proceed, restrainingthe Respondent from leasing or in any way alienating the
Ven. Ellawala Medananda Them vs. District Secretary Ampara and others
SC(Sarath N. Silva, C. J.)57
land in question situated at Norochcholai in the AmparaDistrict. The petitioners include the Venerable Thera, being theViharadhipathi of the Deeghavapi Raja Maha Viharayasituated in the Ampara District, the President of theDighavapi Surakeemay Sanvidanaya and Theras activelyengaged in the protection of the Buddha Sasana.
The 9th and 10th Respondents being the DeeghavapiPratisanskarana Sabhawa and the President of that Sabhawahave filed papers in support of the petition. Further, the 29thto 44th and 51st to 63rd Respondents have all intervened insupport of the petition. They belong to different Buddhistorganizations and represent the interests of persons concernedin preserving the Deeghavapi Raja Maha Viharaya.
The alleged infringement is the executive and/oradministrative action taken to alienate the land in questionwhich is about 60 Acres in extent to 500 families being entirelyof the Muslim community. The land is located 13 kilometersto the south of the Deeghavapi Raja Maha Viharaya. The caseof the Petitioner and the Respondents referred to above whosupport the Petition is that the settlement of such a largenumber of Muslims within close proximity to the Raja MahaViharaya would bar further expansion of Sinhala Buddhistresidents who are now living close to the Viharaya. Theyallege that the infringement results from a total failure onthe part of the Respondents, to act in terms of the applicablelaw, being the 13th Amendment to the Constitution andthe Land Development Ordinance and to follow a fair andequitable process in effecting the impugned alienation oflands. It is alleged that the alienation is arbitrary anddiscriminates against Sinhala and Tamil persons who arewithout land and have requested that they be alienatedState land and, is biased in favour of Muslims. It is furtheralleged that the settlement of 500 families of Muslims in anarea proximate to the Viharaya would infringe the freedomof religion. The infringement of the fundamental rightsguaranteed under Articles 12(1), 12(2) and 10 are alleged onthe aforestated basis.
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At the outset it is to be noted that there has beenno compliance with the provisions of the Land DevelopmentOrdinance and of the 13th Amendment to the Constitutionwith regard to alienation of the land in question. None of theRespondents have claimed that they have acted in terms ofthe applicable law.
Whilst one Minister of Government, being the 10thRespondent in his capacity as the President of the DeeghavapiPratisanskarana Sabhawa supports the petitioners, on thebasis that the impugned alienation of land is illegal andadversely affects the Buddhists, another Minister ofGovernment being the 7th Respondent supports the alienationon the basis that the land is 13 kilometers away from theViharaya. She however denies any involvement in theselection of the particular persons to whom the land wasallocated. She denies any involvement of her Ministry, aswell. .
The 13th to 28th Respondents and the 45th to 50Respondents were allowed to intervene on the basis thatthey are the beneficiaries of the impugned alienation. Theyclaim that their houses at Akkaraipattu about 20 kilometersaway from the land in question were affected by the tsunamiof December 2004 and that their houses were located withinthe 200 meter buffer zone demarcated after the tsunami.Paragraph 4 (e) of the objections of the 45 – 50th Respondentsstates as follows:
“In 2007 these Respondents were promised houses by thethen Divisional Secretary of Akkaraipattu. The said houseswere on part of the non-irrigable highland which wasadministered by Hingurana Sugar Corporation for manyyears. ”
It is significant that none of the persons who havebeen allowed to intervene as beneficiaries of the impugned
Ven. Ellawala Medananda Them vs. District Secretary Ampara and others
SC(Sarath N. Silva, C. J.)59
alienation have disclosed the process by which they wereselected for the allotment of land.
I would now refer to the position of the State representedby the Deputy Solicitor General who appeared for the relevantofficials and the Minister of Lands. The 1st Respondentbeing the District Secretary has stated that he assumedoffice on 27.12.2006 and that the selection process of theallottees had taken place in 2005. This position is plainlyuntenable since as pointed out above, none of thebeneficiaries who intervened have stated that they wentthrough a selection process in 2005. The State has failedto produce any evidence as to the official or authority whoselected the land and the beneficiaries. This lacuna in thecase for State lends much credibility to the case of thepetitioners as to the illegality and arbitrariness of theimpugned alienation. It is nevertheless claimed by the Statethat the beneficiaries were selected in terms of the CircularIR25. This was purportedly issued by the Secretariat ofthe then President. It has not been issued in terms of anyapplicable law. It appears to have been a general executivemeasure taken in the immediate aftermath of the tsunami torelocate families that were affected. The Circular cannot inany event warrant administrative action four years after thetsunami affected the Island. It is to be noted that theCircular does not specify the basis for the selection of landfor relocation of persons displaced by the tsunami, being thematter in dispute in this case. It contains an elaborateprocess of selection with public notifications, objections,inquiries and so on. But, as observed above, the beneficiarieswho have intervened do not claim to have gone through anysuch process of selection. Further, no official has claimedthat he followed such a process for the selection of thebeneficiaries in question. In the circumstances the Circular1R5 cannot possibly ascribe validity of the impugnedalienation of State land.
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The Petitioners and the Respondents who support thepetition submitted that the Deeghavapi Rajamaha Viharayais one of the 16 most venerated sites of Buddhists in thiscountry. According to the Mahavamsa the Buddha in histhird visit to Sri Lanka attended the site of the Viharaya.These matters urged by the Petitioners are supported by thecomprehensive Report of the Director General of Archaeology,which has been produced by the 1st Respondent himselfmarked 1R9. According to this report the name Deeghavapihas been used from the 2nd Century B. C. and the Viharayawas constructed by King Saddhatissa in the lsl century B. C.Further, the sacred Viharaya had been reconstructed byKing Kirthsiri Rajasinghe of the Kandyan Kingdom in 1746A. D. In the circumstances nothing further need to be statedas regards the sensitivity which has been affected by theimpugned action from the perspective of the Buddhist, notonly in that area but in the entire country.
The Petitioners further submit that the 7th Respondent inan interview given to the newspaper produced marked “P31”admitted that “she asked for 60 acres to house 500 Muslimfamilies who had been victims of the tsunami”. It is allegedthat this is discrimination in favour of Muslims since therequest does not take into account the claims of persons ofother ethnicity who are landless in the matter of allocationof land. The Petitioner rely on documents produced markedP32A to F and P33A to D to establish claims of Tamil personswho are landless and who live closer to the land in questionthan the beneficiaries who are from the coastal areas, thathave been ignored by the administration. Similarly documentsmarked P33E and P34A to D and P35A and B are objectionsand claims that have been made by Sinhala persons andignored by the administration. Some of the claims are fromvictims of terrorism who are entitled to be considered in thematter of allocation of State land.
Ven. EUawala Medananda Them vs. District Secretary Ampara and others
SC(Sarath N. Silva, C. J.)61
The Petitioners further allege that the purported premiseof there being 500 tsunami victims being Muslims whorequire land for construction of houses is a sham to cover upa long standing demand to settle Muslims in the area. Theyseek to establish this position on a twofold basis. Firstly, itis alleged that the figure of 500 tsunami victims is a highlyinflated one. For this purpose they rely on document P30Adated 30.03.2007 sent by the 11th Respondent to the District,Secretary, Ampara, which states as follows:;
*Today, we were informed that there is a Housing SchemeProject proposed for tsunami displaced families. Ourinquires revealed that there are only about 50 familiesawaiting houses. However, an extent of land suitable forthe construction of houses for 50 families could be releasedfrom the available area. ”
It is common ground that the land in question had beenvested in the Hingurana Sugar Corporation which matterwould be adverted to subsequently. The letter P30A sent byM. M. Ifthikar, General Manager of the Corporation has beenwritten in the context of a request to release an extent of landof the Corporation to house tsunami victims of Akkaraipattu.The contents of the letter have not been denied. The letterforms part of official correspondence on the matter and hasto be accepted by Court.
The Petitioners have also undertaken a meticulousanalysis to establish from the addresses given and the likethat there could not have been 500 families affected in thebuffer zone of 200 meters in the Akkaraipattu area. It wouldnot be necessary for the purpose of this judgment to analyzethe copious material produced in this regard, since in myview P30A being contemporaneous official correspondenceestablishes that as at 30.03.2007 there were only about 50families who had been displaced by the tsunami and requiredland for housing.
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The second basis relied on by the Petitioners is a historicsurvey.
The Petitioners have submitted that the issue withregard to the allocation of land in the area had been a matterof dispute from about 1960, when the settlements on the rightbank of the Gal Oya Valley Irrigation Project commenced. Itis common ground that the area in question is situated onthe right bank. The Petitioners contend with reference todocuments that there was a demand for the settlement ofBuddhists in the area proximate to the Rajamaha Viharayafrom the year 1962. On the other had there was a competingclaim for land in the area to settle landless Muslim families,espoused by the husband of the 7th Respondent who was thethen Minister. The Petitioners have produced marked PI6,letter dated 29.6.98 addressed by the husband of the 7thRespondent to the then Minister of Lands. I would reproducethe entire content of the letter which reads as follows:
“June 29. 1998
Hon. D. M. Jayaratne, M. P.,
Minister of Land & Forestry,
Rajamalwatta,
Battaramulla.
My Dear Minister
RELEASE OF NORRAICHOLAI HIGHLAND TO
AKKARAIPATTU PEOPLE FOR RESETTLEMENT PURPOSE
I have received representations from about 500 landlessfarmers of Akkaraipattu to the effect that they are desperatelyin need of land for settlement.
The D. S. of the area had recommended that there is anextent of nearly 125 acres of highland in Noraicholai area.This highland was earlier alienated to the Hingurana Sugar
Vert. EUawala Medananda Them vs. District Secretary Ampara and others
SC(SamthN. Silva, C.J.)63
Corporation for cultivation of sugarcane but was foundunsuitable for that purpose and therefore left abandoned forthe past 20 years.
This land could be utilized for distribution amonglandless people – Vi area per family of the area and could bedeveloped with the existing resources.
I am forwarding herewith a self explanatory request ofthe DS Akkaraipattu already sent to the Commissioner ofLands in this regard.
I shall be grateful if you could please consider thisrequest sympathetically and help these poor landlesspeople to get themselves settled peacefully by issuing necessarydirectives to those concerned.
Thank you,
Sincerely yours,
M. H. M. Ashroff P.C., M. P.,
Minister of Port Development, Rehabilitation
& Reconstruction
Leader/Sri Lanka Muslim Congress
It is thus clear that the demand for the allocation of theland in question to 500 Muslim families from Akkaraipattuante dates the tsunami of 2004 by nearly 6 years.
Counsel for Respondent who are beneficiaries of theimpugned allocation of land have urged three grounds tooppose the application. One of which is the reliance on theCircular IR25 issued by the Secretariat of the then Presidentwhich has been dealt with above in reference to submissionsof the State addressed on the same basis.
The other two grounds are –
The land in question is not State land since it is vestedin the Sri Lanka Sugar Corporation by virtue of
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an order made in terms of Section 25 of the StateIndustrial Corporations Act No. 49 of 1957 (vide P36)and the provisions of the 13th Amendment to theConstitution and the Land Development Ordinancerelied on by the Petitioners would not apply to theland;
That in any event there is no provision in the 13thAmendment to the Constitution or in the LandDevelopment Ordinance which prohibits theimpugned alienation.
As regards ground (i) above, even assuming that landremains vested in the Corporation by virtue of P36, theseRespondents do not claim that the land was alienatedto them by the Corporation or its successor. I havereproduced paragraph 4e of the objections of theseRespondents which states that they were promised landby the Divisional Secretary of Akkaraipattu. If the landremained vested in the Corporation this action of the DivisionalSecretary would be per se invalid. On the other hand theposition of the State is that the land was allocated to thebeneficiaries on the basis that it was State land. Hencethe ground relied on would make case worse of theseRespondents.
Ground (ii) relied on by these Respondents seemed to bebased on the premise that action of a public authority is validso long as it is not prohibited by the applicable law. This isa totally untenable contention in Public Law and is contraryto the Rule of Law and the doctrine of ultra vires A.V. Diceyin his work titled "Law of the Constitution" has stated thesecond meaning of the phrase "Rule of Law" as follows(at page 193):
"In England the idea of legal equality, or of the universalsubjection of all classes to one law administered by theordinary courts, has been pushed to its utmost limit.
Ven. Ellawala Medananda Them vs. District Secretary Ampara and others
SC(SarathN. Silva, C.J.)65
With us every official, from the Prime Minister downto a constable or a collector of taxes, is under the sameresponsibility for every act done without legal justificationas any other citizen. The Reports abound with cases inwhich officials have been brought before the courts, andmade, in their personal capacity, liable to punishment, orto the payment of damages, for acts done in theirofficial character but in excess of their lawful authority.
A colonial governor, a secretary of state, a militaryofficer, and all subordinates, though .carrying out thecommands of their official superiors, are as responsiblefor any act which the law does not authorise as is anyprivate and unofficial person”
The citation implies the action of an official should have :
legal justification;
be not in excess of lawful authority and
be authorized by law
Wade and Forsyth in their work on Administrative Law(9th Edition at page 21) states the same proposition as theprimary meaning of the Rule of Law as follows:
“The British constitution is founded on the rule of law, andadministrative law is the area where this principle is tobe seen in its most active operation. The rule of law has a 'number of different meanings and corollaries. Its primarymeaning is that everything must be done according to law.Applied to the powers of government, this requires thatevery government authority which does some act whichwould otherwise be a wrong (such as taking a man’s land),must be able to justify its action as authorized by law andin nearly every case this will mean authorized directly orindirectly by Act of Parliament. Every act of governmentpower, i. e. every act which affects the legal rights, dutiesor liberties of any person, must be shown to have a strictlylegal pedigree….”
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The use of the phrase “legal pedigree” implies thatauthority for official action has to be derived from the lawitself.
In the case of Liyanage vs Gampaha Urban Councilat 7 I have examined the same question from the perspectiveof the doctrine of ultra vires in relation to the powers of anUrban Council and stated as follows:
“Anything purported to be done, by the Council, in excessof what is permitted by the statutory provisions will beconsidered as wholly invalid in law, on the application of thedoctrine of ultra vires. However, in construing the relevant, statutory proinsions the Court will bear in mind the need topromote the general legislative purpose underlying theseprovisions and consider whether the impugned act isincidental to or consequential upon the express provisions.If it is so considered necessary, the impugned act will not bedeclared ultra vires. ”
State land is held by the executive in trust for the Peopleand may be alienated only as permitted by law. For thereasons stated above I hold that the impugned alienationis bereft of any legal authority and has been effected in aprocess which is not bona fide. Accordingly, the Petitionershave a locus standi to implead such action in a proceedingunder Article 126(2) of the Constitution. On the precedinganalysis of evidence, the Petitioners have established aninfringement of the fundamental rights guaranteed byArticles 12(1), 12(2) and 10 of the Constitution.
The application is allowed and I grant to the Petitionersthe relief prayed for in paragraph (b), (c), (d) and (e) of the prayerto the Petition. The State will pay a sum of Rs. 150,000/- ascosts to the Petitioners.
AMARATUNGA J. -1 agree
RATNAYAKE J. – I agreeRelief granted.