KAPUGEEKIYANA VS. HON JANAKA BANDARA TENNAKONE,
MINISTER OF LAND AND 6 OTHERS

SUPREME COURT
SHIRANEE TILAKAWARDANE, J.
MARSOOF, P.C., J. AND
DEP,P.C.J.
S.C. APPEAL NO. 161/2010
S.C. SPL. L.A. NO. 186/2010
C. A. APPLICATION NO. 691/2007 (WRIT)
JUNE 26TH, 2013

Land Acquisition Act- Section 2 -Investigation for selecting land for public purpose - Where the Minister decides that land in any area is needed for any public purpose - Acquisition procedure - Section 38A.- Immediate possession of certain land acquired for the purposes of local authorities - Section 38 - Order for taking possession of a land or subjecting a land to a servitude - Section 39 - Divesting order - Compensation paid - Improvement Done - Reasonable to divest?

The land in question belonging to the Petitioner was acquired by the Ministry of Lands under the Land Acquisition Act. The Petitioner challenged the acquisition in the Court of Appeal. The first relief sought by the Petitioner was a writ of certiorari to quash the order made by the Minister of Lands and Land Development on 2.1.1986 and published in the Government Gazette on on 08.01.1986 whereby the Respondents took possession of the land belonging to the Petitioner under the provisions of Section 38 A of the Land Acquisition act.

The Petitioner, in the alternative, also sought a writ of mandamus, directing the Respondent to divest the said land on the basis that the land had not been utilized for any purpose nor have there been any improvements carried out on the land. Court of appeal refused both writs.

Held:

(1) It is necessary for the Minister and/or any authority acquiring land, under the Land Acquisition Act to have a clear and distinct public purpose for which the acquisition is commissioned. If the

Minister or Government officials are not aware of the true public purpose of acquiring the land then the act of acquiring the property should be viewed through a lens of zealous concern by the Courts. Acquiring properties under deception and pretense or for a potential nonexistent future public purpose will be unlawful.

(2) Importance and necessity in accordance with the provisions of the Land Acquisition Act should be given to the existence of the knowledge of the genuine public purpose the land would be put to use and to disclose such purpose to the land owner at the time of acquiring the property.

(3) The requisite public purpose was clearly clarified and informed by the Respondents to the Petitioner as specified in Section 2 of the Land Acquisition Act. Therefore, there was an urgent supervening public purpose for acquiring the Petitioner's land.

(4) To grant a divesting order on behalf of the Petitioner as per Section 39A of the Land Acquisition Act, the four conditions set out in Section 39 A (2) must be satisfied.

per Shiranee Tilakawardane, J.

It is not in dispute that the Respondents have paid compensation to the Petitioner for acquiring his land and furthermore a considerable amount of improvements have been carried out on the land in preparation for building houses. Therefore, it would be unreasonable to divest the land".

APPEAL from the judgment of the Court of Appeal.

Cases referred to:

1. Manel Fernando and another V. D. M. Jayarathne Minister of Agriculture and Lands

2. De Silva Vs. Athukorale, Minister of Lands, irrigation and Mahaweli Development and another- (1993) 1 Sri L.R. 283

Faiz Musthapha, P. C., with Faizer Marker, Ashiq Hashim and Janka Kroon instructed by W.B. Ekanayake for the 2nd Petitioner - Petitioner - Appellant.

Milinda Gunathilleke, D.S.G. for the Respondents

Cur.adv. vult

November 18, 2013
SHIRANEE TILAKAWARDANE, J.

The Petitioner - Appellant (hereinafter referred to as the Petitioner) has sought Leave to Appeal from the decision of the judgment of the Court of Appeal dated 23.08.2010 where­ by the Court of Appeal refused an application made by the Petitioner seeking a writ of cert