WANNIARACHCHI

Vs.

ROAD DEVELOPMENT AUTHORITY AND OTHERS

COURT OF APPEAL
KODAGODA, J. (P/CA)
OBEYESEKERE, J.
CN/WRIT/401/2019
NOVEMBER 20, 2019

Writs of certiorari and mandamus-Land Acquisition Act, sections 2, 4, 9(1), 17(1), 21, 28, 38(a), 42(2)-Payment of compensation upon acquisition- Taking over possession

Upon an order made by the Minister under the proviso (a) to section 38 of the Land Acquisition Act, the land of the petitioner together with several other lands was acquired for a road development project. The petitioner submitted a claim for compensation and participated at the inquiry held in terms of section 9(1) of the Act to determine the claim. Being dissatisfied with the compensation awarded, he appealed to the Board of Review, as provided for in section 21 of the Act. The petitioner's appeal was considered by the Land Acquisition Review Committee (LARC) and the Super LARC, and the compensation payable to the petitioner was enhanced.

The petitioner did not hand over possession of the land despite receiving several notices, claiming inter alia that the loss of earnings from his business which he conducted on the land had not been considered in calculating the compensation.

The respondent filed action in the Magistrate's Court in terms of section 42(2) of the Act and obtained a writ of execution to eject the petitioner from the land.

A person dissatisfied with the decision of the Board of Review has a further right of appeal to the Court of Appeal in terms of section 28 on a question of law. The petitioner filed this application seeking to quash the decision to take over possession by a writ of certiorari and to prevent the respondents from taking possession of the land by a writ of mandamus until a proper valuation is done.

Held:

1. In terms of section 38(a) of the Land Acquisition Act, possession can be taken over at any time after an award is made under section 17. There is no requirement that the state must await the outcome of an appeal against the award.

2. In terms of the proviso (a) to section 38 of the Act, the Minister may make an order to take immediate possession of the land on the ground of urgency after a notice under either section 2 or 4 has been exhibited. Where an order is so made, there is no necessity to await an award under section 17(1) to take over possession of the land.

3. The respondent is entitled to take over possession of the petitioner's land, as the order was made in terms of the proviso (a) to section 38. The payment of compensation and/or a final determination by the Board of Review and/or Court of Appeal with regard to the entitlement and/or quantum of compensation are not conditions precedent to taking over possession.

Cases referred to:

1. Mohammed Lebbe v. Madana 66 NLR 239

APPLICATION for Writs of Certiorari and Prohibition.

J. P. Gamage with Rasika Wellappili for the Petitioner.

Avanti Weerakoon, S.C., for the Respondents.

cur. adv. vult.

January 13, 2020

OBEYESEKERE, J.

The Petitioner owns one half of a land in extent of 2.25P situated in Mahabuthgamuwa within the Kotikawatte-Mulleriyawa Pradeshiya Sabha area. The Petitioner states that he is carrying on a business of manufacturing rubber bushes, beadings and packing under the name of 'Sarath Rubber Industries' at the said premises.

The Petitioner states further that proceedings in terms of the Land Acquisition Act, as amended (the Act). to acquire the said land for the purpose of road expansion and development work, commenced in 2012

and that the Minister has made an Order under proviso (a) to Section 38 of the Act to take over immediate possession of the said land. It does not appear that the Petitioner had any objection to the said acquisition, even though he had to relocate his business premises. The Petitioner had accordingly submitted a claim for compensation, and had participated at the inquiry held in terms of Section 9(1) of th