GUNATHILAKE AND OTHERS

Vs.

MINISTER OF LANDS AND OTHERS

COURT OF APPEAL
SAMAYAWARDHENA, J.
OBEYESEKERE, J.
CA/WRIT/387/2017
JULY 15, 2020

Writ of certiorari-Land Acquisition Act, No. 9 of 1950, sections 2, 4, 5, 7, 10, 17, 38, 41-Procedure for the acquisition of land-Finality of Minister's decision-Grounds for judicial review and degrees of review-Burden of proving urgency-Public Trust Doctrine

The 1st respondent, the Minister of Lands, published a notice under section 2(1) of the Land Acquisition Act, No. 9 of 1950, as amended, in respect of an extent of land that included the land on which the petitioners' newly constructed wedding reception hall stood. The land had been requested by the Minister of Highways for the stated public purpose of extending the approach road of the Ganemulla flyover, which was still

under construction. The 1st respondent thereafter published a notice (P8) under the proviso (a) to section 38 of the Land Acquisition Act requiring the Acquiring Officer to take immediate possession of the land on the ground of urgency. The petitioners sought to challenge the notice inter alia on the ground that there was no necessity to acquire their land and also that there was no urgency to justify immediate possession under the proviso (a) to section 38.

Held:

1. The acquisition process under the Act begins with the Minister of Lands publishing a notice under section 2(1) stating that land in any area is needed for a public purpose, which should also be mentioned in the notice. The second step is to investigate the suitability of the land referred to in the section 2(1) notice for the implementation of the public purpose referred to in the notice.

2. In terms of section 4(1), once the Minister considers that a particular land is suitable for a public purpose, he shall direct the Acquiring Officer to cause a notice in accordance with section 4(3) to be given to the owner or owners of that land and to be exhibited in some conspicuous place on or near that land. Any objecting landowners should be given a hearing where they may challenge the necessity of the acquisition as well as the suitability of the land to be acquired.

3. After having considered the recommendations of the Minister at whose request the acquisition has been initiated, the Minister of Lands should satisfy himself of the necessity of the land for a public purpose and of the suitability of the land referred to in the notice under section 4(1) for that particular purpose, before making a decision to acquire that land in terms of section 4(5).

4. In terms of section 38, in the course of an ordinary acquisition, the state can only take possession of the land that is sought to be acquired after it is satisfied of the necessity of the land for the public purpose specified in the section 2 notice and of the suitability of the land for the said public purpose, which is determined after hearing the objections of the landowners and after an award has been made in relation to compensation under section 17.

5. The proviso to section 38 provides for an exception where the Minister may make an order to take immediate possession of a

land on the ground of urgency at any time after a notice has been published in terms of section 2(1) indicating necessity, or where a notice under section 4(1) has been published indicating suitability of a particular land for the public purpose mentioned in the section 2(1) notice.

6. Urgency does not obviate the need for the Minister to consider necessity and suitability. Whether the ordinary procedure is followed or where the exception is followed, necessity and suitability must be decided by the Minister, and it is only then that the Minister can determine urgency. The proviso only excuses the Minister from giving a hearing to a landowner, but still requires the Minister to take a considered decision of all th