HORANA PLANTATIONS LTD.
VS.
HON. MINISTER OF AGRICULTURE AND 7 OTHERS

SUPREME COURT
TILAKAWARDANE, J
IMAM,J AND
SURESH CHANDRA, J
S. C. APPEAL No. 06/2009
S.C( SPECIAL) I .A. No. 215/2008
CA (WRIT) APPLICATION NO. 1364/2004
NOVEMBER 4TH, 2011

Writ of Certiorari - Validity of the order - Absence of urgency at the time of issue- -Principle of reasonableness - Land Acquisition Act - Section 2 - Public purpose of acquisition - Section 38 - Acquisition on the ground of urgency - Burden of establishing urgency.

The Petitioner appealed against the Judgment of the Court of Appeal dismissing the Petitioner's Application seeking a Writ of Certiorari to quash the order of acquisition published in the Government Gazette under clause (a) of the proviso to Section 38 of the Land Acquisition Act and to quash the notices issued under Sections 2 and 4 of the Act.

Leave to appeal was granted by the Supreme Court on the following questions:

(1) Has a public purpose been manifested and/or stated in the notice under Section 2 of the Land Acquisition Act?

(2) Do the facts and circumstances of this case warrant an order under clause (a) of the proviso to Section 38 of the Land Acquisition Act on the ground of urgency?

HELD:

(1) When lands are acquired for public purposes it is important to spell out the true purpose for which such acquisition is being made to justify such acquisition.

In this case, the public purpose has not been clearly manifested in the notice issued under Section 2 of the Land Acquisition Act.

(2) The proviso to Section 38 of the Land Acquisition Act is based on the urgency regarding a proposed acquisition and therefore the burden of establishing urgency is on the acquiring authority. In the circumstances of the case, the requirement of urgency has not been established by the acquiring authority and placing the burden of showing that there was no urgency on the appellant would amount to a misdirection in law. The facts and circumstances of this case do not warrant an order under proviso (a) to Section 38 of the Land Acquisition Act on the ground of urgency.

(3) Since the final authority regarding the decision to acquire land under the provisions of the Land Acquisition Act ,especially in terms of Clause (a) of the proviso to Section 38 is on the Minister, the Minister has a duty to act with care in arriving at such decisions as the discretion conferred on him is not one which is unfettered. Exercise of unfettered discretion could be the subject of challenge. The Minister must endeavour to make proper inquiries and only pursue such acquisitions if no alternative is available as otherwise such actions would jeopardize the interests of the Public.

Cases referred to:

(1) Manel Fernando V. D.M.Jayaratne, Minister of Agriculture and Lands and Others-2000 - 1 Sri L.R. 112
(2) Katugaha V. Minister of Lands and Land Development - S.C. Appeal 68/2007, S. C. Minutes 23.07.2008
(3) Marie Indira Femandopulle and Another v. E.L.Senanayake, Minister of Lands and Agriculture - 79 N2R 115
(4) Ram Dhari Jindal Memorial Trust v. Union of India and Others.- C.A. No. 3813 of 2007
(5) Padfield v. Minister of Agriculture, Fisheries and Food - (1968) AC 997
(6) Breen v. Amalgamated Engineering Union - (1971) 2 QB 175

APPEAL from the judgment of the Court of Appeal.

Harsha Soza, PC with N. R. Sivendran for the Petitioner-Petitioner-Appellant

Ashan Fernando, S. C. for the Respondents

Cur.adv.vult.

July 2, 2012
SURESH CHANDRA, J.

This is an appeal against the judgment of the Court of appeal exercising its writ jurisdiction dissmissing the petitioner's application seeking a writ of Certiorari to quash the order of acquisition published in the Government Gazette No. 46 dated 17th March, 2004 made under clause (a) of the proviso to Section 38 of the Land Acquisition Act No.09 of 1950 and to quash the notices issued under Section 2 and Section 4 of the said Act.

The applicati