THlRlMAVlTHANA VS. URBAN DEVELOPMENT AUTHORITY AND OTHERS

THlRlMAVlTHANA VS. URBAN DEVELOPMENT AUTHORITY
AND OTHERS

COURT OF APPEAL
SRIPAVAN, J.
SISIRA DE ABREW, J.
CA 378/2005
NOVEMBER 14,2005
JANUARY 25,2006
MAY 8, 10, 15, 16, 17, 23, 25,26,29,2006
JUNE 1,6, 15,27,2006
SEPTEMBER 6,2006

Writ of Certiorari- Acquisition of Land reserved for play ground / recreational activities for residents - possession taken over - under unlawful arbitrary capricious? - Urban Development Authority law (UDA) law of 41 of 1978 as  amended - Section 18(1). Alienation of UDA land - is the approval of the minister necessary? Availability of judicial review - failure to follow procedure laid down in law - total? - legitimate Expectation - to have the ground kept as a play ground? change of promise - overriding public interest?

The petitioners are the owners/residents/ occupiers of the houses situated within the Jayanthipuara Housing Scheme - 65 Acres. The Land was originally divided amongst the original owners and a block of land of about 5 Acres 3 Roods was identified as open space. A portion of this area - in extent one Acre had been used as a playground and for recreational activities by the residents and the school children of the area.

The 1st respondent UDA sought to acquire the said 1 Acre and the adjoining 20 Perch land to be given to a State Department and possession had been handed over to the State Department. The Petitioners sought to quash the said decision on the basis that the said decision is unlawful, arbitrary capricious and offends the principles of unreasonableness, Legitimate Expectation and natural justice.

Held

(1) Section 18 of the UDA Law suggests that the UDA can alienate any land or interest in any land held by the UDA with the approval of the Minister in charge of the subject of Urban Development. It appears that the UDA derives power to alienate any land or interest in any land held by the UDA only with the approval of the Minister. The UDA has alienated a land held by it without obtaining  the approval of the Minister.

2) The UDA took the decision to alienate the land on 8.4.2003 - the Minister had given approval only in October 2004.

(3) The UDA in the circumstances has acted without any legal basis.

Per Sisira de Abrew, J.

'Acting without power, in my view, is more offensive to the rules of Administrative Law than exceeding power when the principle laid down in the judicial decisions apply to the facts of this case; the decision alienating the Land to the State Department has to be quashed."

(4) The possession was handed over on 18.9.2002. The approval of the Minister was on 25.10.2004. Approval was granted 2 years after handing over of the Physical possession of the land to the State Department. This decision is ultra vires the UDA law.

(5) Section 18 of the UDA law contemplates on instruments of alienation. No such instrument has been produced. Section 18 further states that when lands are alienated the UDA will have to prescribe the terms and conditions as determined by the Minister. This is a safeguard to protect the purpose for which the land was alienated - purpose of Urban Development.

In Sisira De Abrew, J.

"Even if the petitioners have not come to Court on the basis that the UDA had failed to follow the procedure laid down in law, if it is brought to the notice of Court that the respondents have taken decisions after violating the procedure so laid down and without following the mandatory requirements can the Court exercising supervisory Jurisdiction over the decisions made by the public bodies, turn a blind eye to such decisions - the answer is No."

(6) Legitimate or reasonable expectation may arise either from an express promise given on behalf of a public authority upon the

existence of a regular practice which the claimant can reasonably expect to continue. There is a clear promise given by UDA that the land would be kept as a the play ground for the

Click Here to Read the rest of this document