CHANDRASENA AND ANOTHER

Vs.

DIVISIONAL SECRETARY, AMPARA AND OTHERS

COURT OF APPEAL
DE SILVA, J.
KARUNARATHNA, J.
CA/WRIT/196/2007
JUNE 27, 2019

Writs of certiorari, mandamus and prohibition-Decision to grant long-term lease to permit-holders of state land-Subsequent reversal of government policy-Legitimate expectation

The petitioners' family had been in occupation of the state land in issue for over three decades. In 1992 the petitioners and their brother were issued annual permits to portions of the said land. The 1st and 2nd petitioners' permits were renewed annually until 2002 and 2003 respectively. On 18.03.2005, the petitioners attended a mobile service with the participation of the Deputy Minister of Lands, the Surveyor-General, the 1st respondent Divisional Secretary and other officials, and were informed by the relevant officials that arrangements would be made to grant each of them 20 perch plots out of the said land and that they would be given long-term leases in respect of those plots of land. Thereafter, the 1st respondent took further steps in pursuance of the said decision: the petitioners paid for the survey of their lots and a Cadastral Map and Schedule of Parcels were prepared and two lots were earmarked to be given to the petitioners.

Meanwhile, the 21st respondent Minister of Housing and Common Amenities submitted a Cabinet Memorandum dated 07.09.2005 recommending the lease and sale of a larger land, which included the land earmarked for the petitioners, to the 7th respondent company HDFC Real Estate Development Ltd to implement a housing project. This was approved by the Cabinet. As a result of the Cabinet decision, the 1st respondent and other officials decided not to grant the long-term leases to the petitioners. The petitioners sought writs of certiorari to quash the Cabinet decision and the subsequent decision by the officials not to grant long-term leases to them, a writ of mandamus compelling the officials to grant them the long-term leases and/or grants in respect of the lands, and a writ of prohibition prohibiting the officials from evicting the petitioners from the lands and/or restricting their access to the lands.

Held:

1. An expectation founded on a representation made by a public decision maker will be protected if the terms of the representation entitle the party to whom it is addressed to expect, legitimately, that (a) a hearing or other appropriate procedure will be afforded before a decision is made that is at variance with the expectation (procedural legitimate expectation); or (b) a benefit of a substantive nature will be granted or, if the party is already in receipt of the benefit, that it will be continued and not substantially varied (substantive legitimate expectation).

2. A substantive legitimate expectation may be protected procedurally by giving the affected party an opportunity to argue for its fulfilment. Substantive protection of a legitimate expectation -which requires the actual benefit itself to be given - is more controversial, as it entails inter alia fettering the discretion of public authorities.

3. In terms of Article 140 of the Constitution, the Court of Appeal will issue writs "according to law", which has consistently been interpreted to mean English common law.

4. The representation made to the petitioners comes within the meaning of legitimate expectation that the law will protect. The whole purpose of the Minister of Lands initiating mobile services to solve land disputes with the participation of the Deputy Minister of Lands will be rendered redundant if people cannot rely on representations and decisions made at such mobile services. It was not alleged that the representation was ultra vires. The Cabinet decision was taken much later in September 2005.

5. This is a fit and proper case to recognise and protect the substantive legitimate expectation of th