IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Application in the nature of Writ of Mandamus under Article 140 of the

1978 Constitution.

1. Mayadunnage Gunasena Senasilu, No. 86/1, Madagamuwa, Post Narammala.

2. Dr. M. S. S. Mayadunna Lot No. 91, Daba Kandawatte, Boyagane.

CA (Writ) Application No: 84/21 Petitioners Vs.

1. Kurunegala Pradeshiya Sabha Malpitiya Boyagane, Kurunegala.

2. Achala Nimantha Wickramathilaka Chairman, Kurunegala Pradeshiya Sabha, Malpitiya Boyagane, Kurunegala.

3. Sudrama Herat Technical Officer, Kurunegala Pradeshiya Sabha, Malpitiya Boyagane, Kurunegala.

4. Hon. Attorney General Attorney General’s Department, Hulftsdorp, Colombo 12.

Respondents Before : Sobhitha Rajakaruna, J.

Dhammika Ganepola, J.

Counsel : P. K. Prince Perera with S. Panchadsaram for the Petitioners.

Thusitha Wijekone for the 1^st, 2^nd and 3^rd Respondents.

Amasara Gajadeera, S. C for the Respondents.

Written Submission : Petitioners : 17.07.2023 tendered On Respondents : 11.09.2023 Decided On : 20.09.2023 Dhammika Ganepola, J.

The 1^st Petitioner is the owner of Lot No.91 0f Dambakanda Estate which is depicted in plan No. මු.පි.කූ.1977 marked P1. The said Dambakanda Estate depicted in the P1 holds a separate roadway (Lot 46 of plan P1) and drainage system. Both the roadway and the drainage system are currently owned by the National Housing Development Authority. These have, so far, not been acquired by the 1^st Respondent Pradeshiya Sabha. The Eastern boundary of the 1^st Petitioner’s land is the common road which is the Western boundary of Lots Nos.88 and 89 of the P1. Simply put, Lot No. 91 and Lots No. 88 & 89 of P1 are located on either side of the common road.

Following an inspection, the 2^nd Respondent had ordered a ‘hume pipe’ to be installed across the common road in between lots 91 and 89 of P1. The Petitioners submit that as a result of putting up a such culvert the ground floor of the Petitioners’ house gets flooded by water during rainy days. The Petitioners contend that in terms of Sections 79 and 80(2) of the Pradeshiya Sabha Act No.15 of 1987, the 1^st Respondents owed a mandatory legal and public duty to provide a substituted system. This would have been done by putting concrete 40 meters along the earth drains on both sides of the road. However, the Petitioners claim that the Respondents have failed to do so. Hence putting up a hume pipe culvert across the common road by the 1^st Respondent is a breach of a legal and public duty. Based on the above grounds, the Petitioners in this application seek writs of mandamus directing the 1^st to 3^rd Respondents to remove the hume pipe culvert, close the drainage which was placed across the middle of the roadway, and put the concrete on both sides of the existing earth drain.

Both the Petitioners and the Respondents agreed that this matter we dealt with and determined solely based on written submissions and accordingly all parties have filled written submissions.

It is on the common ground that the common roadway (Lot 46) depicted in plan P1 which is vested with the National Housing Development Authority has not been acquired by the 1^st Respondent Pradeshiya Sabha yet. However, the National Housing Development Authority is in the process of transferring the common areas depicted in Plan P1 including said roadway to the 1^st Respondent and it has no objection to any development activities in the said common areas in Plan P1 being carried out by the 1^st Respondent until such transfer (see R1). Therefore, it is clear that the 1^st Respondent has all the authority to make any development in the common areas depicted in plan P1.

Under Section 79 of the Pradeshiya Sabha Act, 1^st Respondent Pradeshiya Sabha is empowered to make drains as it may appear to be necessary for the effectual draining of any area. Said Section is as follows, 79. Pradeshiya Sabha to make public drains.

The Pradeshiya Sabha may from to time cause to be made, altered or extended such public,