PIYARATHNA AND ANOTHER

Vs.

MINISTER OF LANDS AND OTHERS

COURT OF APPEAL
SAMAYAWARDHENA, J.
CA/WRIT/344/2012
JANUARY 22, 2020

Writs of certiorari and mandamus-Vesting order-Land Acquisition Act, No. 9 of 1950, proviso (a) to section 38, section 39A(1)-Land not utilised for 36 years after acquisition-Public purpose evaporated-Divesting Order-Public Trust Doctrine

A land in extent of approximately 13.5 hectares was acquired for the Dambulla New Town Development Plan in or around 1984.The petitioners filed this application in respect of part of that land to compel the Minister by mandamus to make a divesting order under section 39A(1) of the Land Acquisition Act, as the public purpose - if at all there was one - had faded away over a period of more than 36 years from the time of the acquisition.

After a vesting order under section 38 is made, the Minister can make a divesting order under section 39A(1) upon satisfaction of four conditions: (a) no compensation has been paid; (b) the land has not been used for a public purpose after possession was taken; (c) no improvements have been effected; (d) written consent has been given in respect of taking possession of the land immediately after the divesting order is published.

The respondents took up the position that what is sought to be divested is part of a larger land acquired for a development project and a large part of the project has been completed but the remaining part is still in progress and piecemeal divesting is not possible. They say the land claimed by the petitioners has been identified for the construction of a shopping complex as part of the development project.

Held:

1. The Minister can act in terms of the proviso (a) to section 38, "where it becomes necessary to take immediate possession of any land on the ground of any urgency". The burden of establishing urgency is on the Minister. The layout of the proposed shopping

complex has been prepared after the filing of this application. That shows there was no urgency.

2. That piecemeal divesting is not possible is belied by the admission of the respondents that out of the 13.5 hectares acquired, 5.86 hectares was divested part by part. This means the Minister had not taken a considered decision in the acquisition of lands for the Dambulla Development Plan.

3. The estimated cost of the proposed shopping complex had exceeded Rs. 385 million by the year 2015. The authorities have no funds to undertake such a massive project. The proposed shopping complex is only wishful thinking. The public purpose shall be real, not fanciful.

4. After acquisition, if the Minister realises that the desired objective cannot be practically achieved due to some reason and that the public purpose might become a reality only in the distant future, he ought to revert ownership of the acquired land to the former owner. He can, if he wants, seriously consider reacquiring the land when the necessity for a public purpose actually arises.

5. When the Minister acquires private lands under the proviso (a) to section 38 on the basis of urgent public purpose, he shall have a clear plan to implement at the time of taking the decision. He cannot acquire lands in a great hurry and then take his own time to think of plans after such acquisition. That is a betrayal of the public trust doctrine.

6. The public trust doctrine is based on the concept that the powers held by the organs of government are powers that originate with the people and are entrusted to the legislature, the executive and the judiciary only as a means of exercising governance and with the sole objective that such powers will be exercised in good faith for the benefit of the people. The exercise of power contrary to the public trust doctrine would be an abuse of power and a contravention of the rule of law. Such exercise of power is subject to judicial review.

7. Once possession is taken, the land shall be used for that