JAYANETTI AND OTHERS

Vs.

URBAN DEVELOPMENT AUTHORITY AND OTHERS

SUPREME COURT
DE ABREW, J.
JAYAWARDENA, J.
DEHIDENIYA, J.
SC/FR/621/2010
JULY 6, 11, 16, 2018

Fundamental rights, Articles 12(1) and 14(1)(h) of the Constitution-Constructions within a Mixed Development Zone-Violation of Regulations-Violation of conditions of Development Permit-illegality-Demolition of unlawful constructions

The petitioners reside in close proximity to Chapel Lane, Nugegoda, where the Royal Institute (the 9th respondent), a private international school, is in operation. The petitioners alleged that the running of such a school in the said location and the construction of another high-rise building are illegal as the same is not in line with the relevant regulations, and as a result, their fundamental rights guaranteed under Articles 12(1) and 14(1)(h) have been violated.

Held:

1. According to section 27(1) of the applicable regulations marked P4, to construct a building consisting of a ground floor plus four upper floors, the minimum extent of the land should be 40 perches but the extent of the relevant land at No. 10, Chapel Lane, Nugegoda is only 38.6 perches. When the 10th respondent Managing Director of the Royal Institute started constructing this building consisting of a ground floor plus four upper floors, there was already a building consisting of a ground floor plus three upper floors at No. 10, Chapel Lane and a certificate of conformity had already been issued to that building. In view of the extent of land, the second building with a ground floor plus four upper floors for which the development permit had been issued is an illegal building.

2. Although the 2nd respondent Sri Jayawardenepura Kotte Municipal Council issued the development permit 9R9 to construct a building consisting of a ground floor plus four upper floors, when

the building was completed, it had a ground floor plus five upper floors. The 9th and 10th respondents have intentionally violated the conditions of the development permit.

3. According to regulation 27(2), in order to construct a building consisting of a ground floor plus four upper floors the width of the access road cannot be less than 12 meters. The width of the access road (Chapel Lane) to this building is only 6 meters.

4. Even if the second building has only the ground floor plus four upper floors, it is an illegal building and therefore cannot be permitted to stand.

5. The running of the said school in the second building is illegal since a certificate of conformity had not been issued to the said building.

6. Chapel Lane, Nugegoda comes under the Mixed Development Zone in the Sri Jayawardenepura Kotte Municipal Council Area. Schools are not permitted in Mixed Development Zones. The 10th respondent must stop running schools at Chapel Lane, Nugegoda.

7. The 10th respondent has made an application to the Sri Jayawardenepura Kotte Municipal Council to construct a building consisting of a basement, mezzanine floor plus ten upper floors at Nos. 10 and 12, Chapel Lane. The extent of this land is only 64.6 perches. The development permit issued and extended to construct the said new building violates the above regulations and therefore it is an illegal document.

8. The 1st and the 2nd respondents, the UDA and the Sri Jayawardenepura Municipal Council, have violated the fundamental rights of the petitioners guaranteed by Article 12(1) and 14(1)(h) of the Constitution.

9. The 1st and the 2nd respondents shall demolish all illegal constructions pertaining to the buildings on the premises bearing assessment Nos. 10 and 12, Chapel Lane and cancel all permits granted to the 9th respondent Royal Institute to carry on the business of an international school at Chapel Lane.

APPLlCATION under Article 126 of the Constitution for infringement of fundamental rights.

Gamini Marapana, P.C., with Na