EVERAD ANTHONY PAYOE AND OTHERS

EVERAD ANTHONY PAYOE AND OTHERS

VS.

HATTON DICKOYA URBAN COUNCIL AND OTHERS

SUPREME COURT
S. EVA WANASUNDERA P.C, J.
UPALY ABEYRATHNE J.
H.N J. PERERA, J.
SC FR 654/09
21.02.2017.

Road way - Unauthorized construction - Width of road - Obstructions of side way - Commission - Inconvenience to public - Article 12 (1) of the Constitution - Alternative remedies.

Petitioner filed a Fundamental rights application. Two members of the 1st Respondent council are Petitioners and others, citizens. The 2nd Petitioner is not, pursuing the application. The subject matter is the width of the Sunday Fair Road from the entrance point to upper Division of Gaminipura and the unauthorized construction as alleged to be hindering the upkeep of the width of the Road.

HELD:

1. During the proceedings of this Court all parties have agreed at different times that the width of the road had been 14 feet from the very inception. The first plan done by the Land Reform Commission is dated in the year 1998. Plan 50/20 referred to above which was done on a commission as ordered by this court also shows the width as 14 feet.

2. The Urban Council is duty bound to serve the people of the area which this particular Urban Council has failed to do. Whether the Urban Council is politically with the party of the prevailing Central Government or not, it has to do its duty towards the people of the area.

3. The 1st Respondent, the Urban Council of Hatton Dickoya has failed to use its authority and discretion in the proper manner with regard to the grievances of the Petitioners as well as the public at large who use this particular road. The fundamental rights of the Petitioners contained in Article 12 (1) of the Constitution have been violated by the 1st Respondent. However, in the written submission filed by the

Petitioners, it is specifically mentioned that the relief sought at this stage is only to ensure that the authorities are directed to develop the Sunday Fair road as a 14 feet wide road. Yet, I find that the prayer to the Petition is to get relief as prayed for in the Petition. I hold that the Petitioners are entitled to a declaration that "any construction carried out within the Hatton Dickoya Urban Council Limits circumventing the provisions of the Urban Council Ordinance (as amended), Rules and Regulations thereto, By-Laws and other applicable laws of the country is violative of law and therefore have to be removed and or demolished".

Cases referred to :

1. Priyangani vs. Nanayakkara and others (1996) 1 SLR 399 at pg. 400.

J. C. Weliamuna with Pasindu Silva and Sulakshana Senanayake for the Petitioners

S. Mandaleswaran with P. Peramunagama, Weerasena Ranepura Hewage and M.A.M. Haleera for the 2nd and 3rd Respondents.

Dushith Johnthasan with Elisha Fernando for the and 4th Respondents. Rajitha Perera SSC for the 5th and 6th Respondents.

The Added 7th Respondent was not represented.

Cur.adv.vutt.

EVA WANASUNDERA PC J.

The Petitioners who filed this Fundamental Rights Application are two members of the Hatton Dickoya Urban Council and four other citizens of this country who live in their residencies in Hatton House Road, Gaminipura, Hatton. The Counsel for the Petitioners informed court that the 2nd petitioner is not pursuing this Application any longer. The subject matter is totally with regard to the width of the Sunday Fair Road from the entrance point to upper division of Gaminipura and the unauthorized constructions as alleged to be hindering the upkeep of the width of the road.

Leave to proceed was granted on the 1st of April, 2013 for the alleged violation of Article 12 (1) of the Constitution against the rights of the

Petitioners by the 1st to 5th Respondents. From the time of the filing of this Application onwards, this Court has done its best to get the Respondents to do the needful to keep this road unobstructed to those who use the same. Due to the said ac

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