I~- ! I . \ \ \ 1 ' \ IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

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1 1., 1 1, N THE COURT OF APPEAL OF THE DEMOCRATC SOCALST REPUBLC OF SR LANKA 1. Devakumar Ragth Hettarachchy No. 39, Baddegana Road (South), Pta Kotte, Kotte. C.A 469/2009 (Wrt) 2. Palthawadana Arachchge Renze Pascal Chrstopher Perera No. 19, Bogahahena Road, Battaramulla. PETTONERS Vs. 1. Jeevan Kumaranatunge Mnster o Agrculture, Lands and Land Development Mnstry o Lands "Govjanamandhraya" Rajamalwatta Road, Battaramulla. j ~ 1A. Janaka Bandara Tennakoon Mnster o Lands, Mnstry o Lands "Govjanamandhraya" Rajamalwatta Road, Battaramulla. 1 ' 2. Sr Lanka Land Reclamaton & Development Corporaton, No.3, Sr Jayawardenapura Mawatha, Welkada, Rajagrya. ; ~-

2 2 3. Dnesh Gunawardena Mnster o Urban Development, Mnstry o Urban Development and Sacred Area Development Sethsrpaya, Battaramulla. 3A. The Attorney-General The Attorney General's Department, Colombo 12. RESPONDENTS BEFORE: COUNSEL: Anl Gooneratne J. & Deepal Wjesundera J. Manohara De Slva P.c. wth H. Wjesurendra and H. Munasnghe or the Pettoners Chaya Sr Nammun S.c., or Respondents, l t { ARGUEDON: , DECDED ON: GOONERATNE J r t The two Pettoners n ths Wrt Applcaton have sought Wrts o Certorar and Mandamus. A Wrt o Certorar to quash letters marked P28 & P30, t, r t,

3 3 wheren t s more partcularly stated n the sad letters that lands avalable or retenton o water or lood water whch had been acqured by the Government cannot be released snce the lands so retaned had got reduced and as such plot o land clamed by the Pettoners cannot be released. Mandamus s sought to dvest the lands clamed by the Pettoners n terms o Secton 39A(1) o the Land Acquston Act. Letters P28 & P30 had been ssued by the 2 nd Respondent. The case o the two Pettoners could be summarzed as ar as possble as stated below. Pettoners were members o the 'Dyawanna Nvasa Yojana Kramaya saha Nvasa Subasadhaka Samtya' (herenater reerred to as the Socety). The sad socety was establshed n 1970 manly to provde houses or ts members who do not own houses o ther own. Socety purchased 6 ~ acres o land rom Nawala Kotte, by deeds reerred to n paragraphs 3:3 o the petton. The land s shown n plan No. 647 comprsng o 57 blocks and block Nos. 16 & 18 are clamed by the Pettoners (P2a & P2b) who on deeds marked P3 & P4 executed n 1974 [ t J, became the owners, o those separate lots. t s pleaded that the land purchased by the socety as above was not developed properly and due to several years o stagnant progress socety sought the nterventon o the state and oered the land to be acqured and developed at the expenses o the State and to ultmately

4 4 sell t to ts members on a rent purchase scheme. P5 letter gves certan detals. t was the poston o the Pettoners and the socety that the Natonal Housng Department and the Natonal Housng Development Authorty undertook to develop as pleaded n paragraphs 4:1, 4:2 & 4:3 o the petton. Acquston procedure was completed and possesson taken over by the Department o Natonal Housng and the Natonal Housng Development Authorty. (P6a & P6b, P7a & P7c). However t was the poston o the Pettoners despte the acquston, steps were not taken by the State to develop the land n dspute or some perod o tme (vde P7a to P7c). t s pleaded that rom tme to tme Pettoners and other members o the socety experenced delays on the part o the state organzaton.e NHDA. Pettoners plead that Pettoners and the socety appealed to the NHDA to dvest the lands to ts members. On such request to gve t back to the socety, the Survey General was requested to survey the land and J accordngly Survey General's plan 5843 o was prepared (P8 & P8a). Thereater Pettoners and the socety had to undergo urther delays as pleaded and only by 1989 that blocks o land were re-transerred. Accordngly 1 st Pettoner receved lot 33 n plan P8and 2 nd Pettoner lot 45 n P8 by deeds marked P11 & P12 respectvely.

5 t J, 5 The man complant o the Pettoners more or less as submtted by learned Presdent's Counsel proceed on the bass o the 2 nd Acquston o land n dspute or the purposes o lood control. Thereater steps had been taken by the authortes n terms o the land Acquston Act to acqure the land and the relevant notces under Secton 38A, 10(1)(a) & 17 o the Land Acquston Act ~ were publshed wthn a certan tme perod (vde P17, P23, P24a & P24b & P25b) Learned Presdent's Counsel submtted that several attempts were made to get the land released wthout success (vde P18, P19, P20a & P20b, P21, P22a & P22b). t was also submtted that Pettoners were pad compensaton n terms o the Land Acquston Act and they appealed to the Board o Revew snce the amount oered by way o compensaton was not enough. However Pettoner had wthdrawn the appeal beore the Board o Revew at a subsequent stage. t s pleaded n paragraphs 9:1 to 9:3 o the petton that several requests and appeals were submtted to the 2 nd to 4th Respondents to ether release the lands or to allocate the lands or development. Despte the several attempts by the Pettoners as pleaded n the body o the petton letters P28 & P30 were receved by the pettoners where the contents o same are sel explanatory.e due to the shortall o land n the lood retenton area, t s decded to keep hold o the Pettoner's lands. The Pettoners havng receved

6 6 P28 & P30 made urther appeals wthout success. Ths court note the contents o paragraphs 9:3 o the petton. would preer to reer to paragraphs 10:1 o the petton or purposes o clarty as ollows: 1. The Pettoners state that the aoresad decson/s as contaned n P28 and P30 are dscrmnatory and are thereore caprcous, malcous, llegal and arbtrary nasmuch as, (a) Out o the 61 blocks n Plan No (vde P8), 21 blocks have been purportedly deemed not necessary or "lood retenton projects" and have been released to respectve partes and now they are ether developed or are presently undergong development. The partculars o some o the sad development are gven below; () Block No. 22 and 24 whch are mmedately adjacent to block No. 33 clamed by the 1 st Pettoner are developed. () Block No. 39,46, whch are mmedately adjacent to block No. 45 clamed by the 2 nd Pettoner are developed. (b) Approxmately 16 blocks n plan No have been lled by the State and are no longer marshy land. Thereore the Pettoners state that such land cannot serve the purpose o the "Land Acqurng Oce o the Greater Colombo Flood Control Project o the Urban Development Mnstry" any urther. Ths court note the ollowng ponts reerred to n the objectons o the Respondents and the correspondng adavt, as well as the submssons made to ths court by learned State Counsel. (1) By order marked 2R1 ssued under Secton 2 o the Colombo Dstrct (low lyng areas) Reclamaton & Development Board Act No. 15 o 1968 n Gazette No. 43 the area speced n schedule o 2R' declared to be a

7 7 Reclamaton & Development Area. Ths ncludes lands clamed by Pettoners. (2) 2 nd Respondent entrusted wth the task o mplementng the Greater Colombo Flood Control Project whch ncludes the Rehabltaton and Development o the new work o canals, and to provde the retenton areas. (3) Fllng and developments o lands wthn the acqured lands n the Greater Colombo area lkely to result n loodng n the Greater Colombo area. (4) Securty o numerous nhabtants o the Greater Colombo regon rom the r threat o loodng s paramount. (5) Not possble to exclude or exempt the lands requested by the socety. As such P13 ssued (6) Dvestng commttee o the 2 nd Respondent decded to cut a canal through lots 33 & 45 clamed by the Pettoners ncludng several other lots - 2R4. (7) 1000 acres acqured or water retenton and only 700 (2R5) acres remanng. 2 nd Respondent decded that no steps be taken to releasd the, ( balance. (8) Project launched on the bass o a report prepared by nternatonal Consultants o U.K whch recommended 380 hectares o marsh land to be reserved or lood retenton 2R2 and 2R3 s the plan settng out the network o canals n the area. (9) Recent Survey (2R6) the land to the east o the canal area lower lyng whle the lands to the west o the canal are at a hgher elevaton. As such east o the land are conducve or water retenton.

8 J 8 (10) Release o land carred out pursuant to the dvestng commttee report and/or a decson o the Cabnet. Table o the bass o dvestture reerred 1 to n paragraph 16a o the adavt o the General Manager o the 2 nd Respondent. There s no doubt that the land n dspute all wthn the area dented as the Greater Colombo Flood Control Project and wth the publcaton o Gazette 2Rl whch s an order made n terms o Secton 2 o Act No. 15 o 1968 such an area s declared to be a reclamaton and development area. Rans, sunshne and wnd may be natures/god's gt to manknd but all the same also have ts evl eects on earth. As such the Respondents n ths case would have to act and take certan steps to avert a dsaster and especally the 2 nd Respondent would be bound to mnmze the bad eect o loodng due to heavy rans, and or such purpose need to serve the cvl socety wth ts expertse. Over the years and orm tme to tme, the need arose to study and make recommendatons to retan certan plots o land and n the process to buld canals to ensure that lood waters and waste water s properly draned and also to ensure that as ar as possble land owners are not made to suer any nconvenence or at least to mnmze ts losses. t s unortunate that the two Pettoners beng members o a 'socety' as stated above, a socety establshed to provde housng acltes were deprved o

9 1 9 ther rght to property n the manner demonstrated and descrbed n the pleadngs led o record, but some others n the same socety were successul to retan ther plots o land, allocated to them. Ths court havng consder the case o both partes and on veryng acts relevant to the case, cannot conclude that the authortes concerned acted, t l r malcously, merely because the plots o land clamed by the Pettoners had not been released to them n comparson to others. t s also a dcult queston n the t context o ths case to conclude that the authortes concerned were dscrmnatory o the Pettoners. Nor can nd sucent materal to ssue a Wrt o Mandamus n the manner pleaded and prayed or n the petton. The requred statutory duty and or the publc duty to ssue a Wrt o Mandamus does not seem to surace rom the avalable materal. Thereore would reject and dsmss the rele prayed or a Wrt o Mandamus. What remans to be decded s whether a Wrt o Certorar could be ssued n the crcumstances o ths applcaton. Even certan grounds that need to be establshed or the ssue o certorar cannot be easly proved, the reasonableness o the decson contaned n documents P28 and P30 need to be consdered. A decson whch ound to be unreasonable or rratonal s lable to be quashed by a Wrt o Certorar. t { J

10 10 Survey General's plan P8 and the tenement lst P8a are not dsputed. Lot No. 33 & 45 are clamed by the Pettoners. Respondents n paragraph 16{a) o t, the adavt reer to the release o lands carred out pursuant to the Dvestng Commttee report and a decson o the Cabnet. Several lots as pleaded by the Respondent are released. Namely lots 2, 3, 5, 6, 7, 8, 10 (part) 11 & 12 all o whch s more to the Northern part o the land n dspute and n extent o more than 15, perches. Lot 33 whch s clamed by the Pettoner s only 15 perches. The other lots released are 21, 22, 34, 35, 37, 39 & 46 are more or less n the mddle and adjacent to the land n dspute and some o those lots are n extent o about 20 perches. Lot 45 clamed by the Pettoner s n extent o 13.4 perches. The r queston s whether a plot o land lesser n extent could retan more water than other lots whch are more or less larger n extent than that o the Pettoners. that be the case there appears to be a very clear mbalance o the decson taken n documents P28 & P30. j l The other explanaton s the hgher elevaton o the lands that are more prone to be released. t s pleaded by the Respondents that by reerence to plan 2R6, that area to East o the canal are n a lower lyng level, whlst the lands to the west o the canal are at a hgher elevaton and as such East o the canal are conducve to retan water. Document 2R6 gves a bre descrpton (though not so t

11 1 l 11 legble}. t s stated that several lots could not be measured or the reasons gven n 3, 4 & 5 o 2R6. Ths ndcates that plan annexed to 2R6 s ncomplete or ths reason and measured accordng to the sea level (lmted to certan lots). What s shown n red lnes n the plan s descrbed as the 'ella'. that be so the porton shown n red lnes only takes a porton o lot 33 & 45. At a glance t s less than hal o lot 33 & 45. Entrety o 33 & 45 do not all wthn the canal on ther own showng wth reerence to the plan. one compares the heght rom the sea level lot 33 gves & rom the sea level. Lot 45 gves & rom the sea level. The adjacent lot 34, 35 & 39 (adjacent to 33) s less n heght at a certan pont, compared to lot 33. Lots 26, 25 & 24 are less n heght n comparson to lot 33. n vew o the above acts ths court s o the vew that t s t, unreasonable to retan the entrety o lots 33 & 45 as per plans annexed to 2R6 and survey plan P8. We have also perused document Xl led wth moton o whch explans that Pettoner Perera's land stands a "greater chance o gettng released". Letter Xl s a letter o the 2 nd Respondent (AG.M) dated On the other hand there s materal dsclosed beore ths court that there had been a selectve release o about 300 acres o land and what remans s l, t, ~

12 12 above 700 acres rom the Greater Colombo area. Case law support the vew that unreasonableness and rratonalty s an extenson o the prncple o ultra vres. Development n admnstratve law usually spread all over the globe. There s no reason to doubt such development and n Sr Lanka the Court o Appeal dd not hestate to ollow the dcta n Lord Dplock's ormal statement on judcal revew. n Desmond Perera and Others vs. Karunaratne Commssoner o Natonal Housng 1994(3) SLR 316 At n the queston o the rght to be heard admnstratve acton could be made subject to ~ control by judcal revew under three heads: () () () llegalty rratonalty Procedural mproprety rratonalty may succnctly be reerred to as unreasonableness. t apples to a decson whch s so outrageous n ts deance o logc or o accepted moral standards that no sensble person who had appled hs mnd to the queston to be decded could have arrved at t. n Fazrul Heeera and Another Vs. Sokkalngamplla and Others 1998 (3) SLR 60 The decson on "equtes" s a matter where the Commssoner could exerc~e hs dscreton. Such a decson could be revewed on the ground o "rratonalty". As Lord Dplock n GCHQ Case Councl o Cvl Servce Unons v. Mnster or the Cvl Servce explaned "Wednesbury Unreasonableness" apples to a "decson whch s so outrageous n ts deance o logc or o accepted moral standards that no sensble person who had appled hs mnd to the queston to be decded could have arrved at t". Unless "unreasonableness" or "rratonalty" could be treated as an extenson o the, ~ ~ J

13 , ; prncple o ultra vres, the pettoner s aced wth the obstacle o secton 39(3) read 13 wth secton 22 o the nterpretaton Ordnance. n all the above acts and crcumstances o ths case we are mndul o the magntude role o the 2 nd Respondent n a project dealng wth lood water and the retenton areas needed or the purpose. However ths court s o the vew that t s unreasonable not to release the plots o lands clamed by the Pettoners as stated above. As such we allow the Wrt o Certorar as per sub paragraph (b) o the prayer to the petton, and quash the decson n letters P28 & P30 wthout costs. Applcaton allowed as above only. O~----Y~ JUDGE OF THE COURT OF APPEAL Deepal Wjesundera J. agree. / t 1J::jVV:W1 JUDGE OF THE COURT OF APPEAL