VEN. ELLAWALA MEDANANDA THERO
VS
DISTRICT SECRETARY, AMPARA AND OTHERS

SUPREME COURT
S. N. SILVA C. J.
GAMINI AMARATUNGA J.
P. A. RATNAYAKE J.
SC FR 178/08.
JUNE 19, 2008.
SEPTEMBER 9, 2008.
OCTOBER 30, 2008.

Fundamental Rights - Constitution Article 10, 12 (1), 12 (2) -13 th Amendment - Alienation of land - Fair and equitable process in effecting alienation of lands?- Doctrine of ultra vires - Public Law - Rule of Law -State land held by executive in trust for the people - Land Development Ordinance.

The petitioners allege that the executive and or administrative action taken to alienate the land - about 60 Acres to 500 Muslim families infringe the fundamental rights guaranteed under Article 10, 12(1), 12(2) of the constitution. The land is located 13km to the South of the Deegavapi Raja Maha Viharaya and the settlement of such a large number of Muslims within a close proximity to the Raja Maha Vihara would bar further expansion of Sinhala Buddhist residents who are living close to the Viharaya. The petitioners contend that, there is a total failure on the part of the respondents to act in terms of the 13th amendment and the Land Development Ordinance.

The respondents contended that the beneficiaries were selected in terms of a Circular, that the land is not State land and that no provision of the 13lh Amendment or the Land Development Ordinance prohibit the impugned alienation.

Held:

(1) Although die 1" respondent has stated that the selection process of the allottees had taken place in 2005 - after Tsunami, this position is untenable since none of the beneficiaries have stated that they went

through a selection process in 2005. The State has failed to produce any evidence as to the official or authority who selected the land and the beneficiaries.

(2) The Circular relied on by the 1st respondent was issued by the Secretariat of the President, it has not been issued in terms of any applicable law, it appears to have been a general executive measure taken in the immediate aftermath of die Tsunami to relocate families that were affected. The Circular does not specily the basis of selection of land for relocation of displaced person by the Tsunami.

Per S. N. Silva. C. J.

"Even assuming that the land is not State land but vested in the Sugar Corporation as contended by the respondents, the petitioners do not claim that the land was alienated to them by the Corporation or the successor, they claim that the land was promised to them by the Divisional Secretary - 1" respondent ? then, if the land remained vested in the Corporation this action of the 15t respondent would perse be valid - on the other land if the land is State land, the ground relied on would make the case worse for the respondents".

(3) The contention that, an action of a public authority is valid, so long as it is not prohibited by the applicable law, is a totally untenable contention in Public Law and is contrary to Rule of Law and the doctrine of ultra vires.

Action of an official should have -

(1) legal justification;

(2) be not in excess of lawful authority;

(3) be authorized by law.

(4) State land is held by the executive in trust for the public and may be alienated only as permitted by law.

APPLICATION under Article 126 of the Constitution.

Case referred to:-

Uyanagevs.CampolaU.C. 1991 lSriLR 1 of 7

Manohara de Silva PC with A Wijesundara for petitioners

Faiz Musthapha PC with Ms. Faizer Marker, Thushani Machado for intervenient petitioners

M. A. Sumanthiran with E. Keegal for intervenient petitioners.

Dilshan Kayasuriya for 1st intervenient petitioner

Prasantha Lal de Alwis with Sampath Gamage and Anusha

Perusinghe for 9th - 10th respondents

No appearance for 5th and 11th respondents

J. C. Weliamuna with M. Ratnayake for 1 intervenient petitioner

Razick PC with U. L. M. Mowjood for 2 intervenient petitioners.

Iqbal Mohamed with M