RAJALINGAM

VS.

COLOMBO MUNICIPAL COUNCIL

SUPREME COURT
JAYAWARDENA, J.
FERNANDO, J.
SURASENA, J.
SC/APPEAL/60/2017
SC/SPL/LA/246/2015
CA/PHC/141/2010
HC COLOMBO/RA/61/2009
MC COLOMBO/9341/5
DECEMBER 4, 2019

Urban Development Authority Law, No. 41 of 1978, as amended, sections 23(5), 28A1, 28A3-Development area-Development activity without the permission of the Urban Development Authority-Demolition order-Delegation of power by the Urban Development Authority to local authorities-Applicability of the Rent Act, No. 7 of 1972

Held :

1. Section 23(5) of the Urban Development Authority (UDA) Law empowers the UDA to delegate to any officer of a local authority any of its powers, duties and functions relating to planning within any area declared to be a development area.

2. Section 28A(3), which permits the UDA to make an application to the Magistrate's Court seeking a demolition order of an unauthorised construction, falls within the scope of the term "planning" referred to in section 23(5) and therefore such power can be delegated to any officer of a local authority.

3. The Rent Act, No. 7 of 1972, as amended, has no application when steps are taken to demolish unauthorised constructions under the UDA Law.

Cases referred to :

1. Jayasinghe v. Seethawakapura Urban Council and others [2003] 3 Sri LR 40
2. Muniyandy Paneer Selvan v. Kuragamage Harishchandra Perera of the Municipal Engineers' Department (Drawing) of Colombo Municipal Council and Hon. Attorney General (CA/PHC/APN/170/2007, CA Minutes of 29.05.2009)
3. E.R.M. Piyasena (Chairman Urban Council, Bandarawela) v. H.M.Wijesooriya (CA/119/1990, CA Minutes of 04.11.1994)
4. S.Sivapragasam and two others v. Robert Jayaseelan Perimpanayagam of Municipal Council Batticaloa and Saravana-muttu Navaneethan - Special Commissioner, Municipal Council Batticaloa (CA/PHC/APPEAL/02/1997,CA Minutes of 05.05.2002).
5. Palligoda Withanage Keerthi Wimal Withana (District Inspector Colombo Municipal Council) v. Muniyandy Paneer Selvam (SC/ APPEAL CA/PHC/APPEAL/123/2009, SC Minutes of 18.01.2012)
6. Malwattage v. Dharmawardena [1991] 2 Sri LR 141

APPEAL from the Judgment of the Court of Appeal.

Manohara de Silva, P.C., with lmalka Abeysinghe for the Respondent- Respondent-Respondent-Appellant.

Jacob Joseph for the Applicant-Petitioner-Appellant-Respondent.

cur. adv. vult.

June 18, 2020

SURASENA, J.

In this case, the Applicant-Petitioner-Appellant-Respondent (hereinafter sometimes referred to as the Respondent) has made an application to

the Magistrate's Court of Colombo seeking a mandatory order from the learned Magistrate under section 28A(3) of the Urban Development Law (hereinafter sometimes referred to as UDA Law), to demolish an unauthorized construction. This was pursuant to the Respondent-Respondent-Respondent-Appellant (hereinafter sometimes referred to as the Appellant) defaulting the compliance with a notice issued under section 28A(1) of the UDA Law.

Learned Magistrate having considered the material before him, had pronounced his order dated 20-02-2009, rejecting the application made by the Respondent on the basis that the said application is misconceived in law.

Being aggrieved by this order, the Respondent filed a revision application in the Provincial High Court of Western Province holden in Colombo seeking to revise the said order of the learned Magistrate. The Provincial High Court after hearing parties had pronounced its order dated 19-11-2010 dismissing the said revision application.

Being aggrieved by the said order, the Respondent appealed to the Court of Appeal challenging the said order of the Provincial High Court. The Court of Appeal after the argument of the case, by its judgment dated 16-10-2015 set aside both the judgment of the Provincial High Court and the judgment of the Magistrate's Court. The Court of Appeal by the said judgment has directed the Magistrate to hold a proper inquiry into the applicati