S.C. (FR) Application No. 477/98 - Case of Lanka Leisure Ltd., Asker Moosajee, Haseena Moosajee, Tasneem Moosajee

S.C. Application FR No. 477/98

In the Supreme Court of the Democratic Socialist Republic of Sri Lanka

Colombo 12.

Petitioners:
1. Lanka Leisure Ltd., No. 32, Park Street, Colombo 2.
2. Asker Moosajee,
3. Haseena Moosajee,
4. Tasneem Moosajee, All of 32, Park Street, Colombo 2.

Vs.

Respondents:
1. Hon. D.M. Jayaratne, Minister of Agriculture and Lands, Sampathpaya, Battaramulla.
2. Hon. Richard Pathirana, Minister of Education and Higher Education, Isurupaya, Kotte.
3. T.A. Gunadasa, Divisional Secretary, Bentota.
4. P.A.N. De Silva, Superintendent of Surveys, Survey Department, Galle.
5. D.S. Kumarasinghe, Chairman, Bentota Pradeshiya Sabha, Bentota.
6. D. Abeynayake, Secretary, Bentota Pradehiya Sabha, Bentota.
7. Sunny Kanahararachchi, Member, Bentota Pradeshiya Sabha, Bentota.
8. Manel Senaratne, Principal, G/ Gurukanda Maha Vidyalaya, Induruwa.
9. Hon. Mahinda Yapa Abeywardane, Chief Minister, Southern Province, Galle.
10. B. Dayananda, Director of Education, Southern Provincial Council, Galle.
11. Lelawansa, Officer in Charge, Police Station, Kosgada.
12. Hon. The Attorney General, Colombo 12.


Before:
SARATH N. SILVA C.J.
S. W. B. WADUGADAPITIYA, J.
D. P. S. GUNASEKERE J.

Counsel:
Faiz Mustapha, P.C., For the Petitioner
I. Demuni, S.S.C., For the 1 st. and 4 th. Respondents and 11 th. Respondent
P. L. Gunasekere, For the 3 rd. and 6 th. Respondents
Lalantha de Silva, For the 8 th. and 10 th. Respondents

Argued on: 13 February 2001
Written submissions: 14 March 2001
Decided on : 30 August 2001

SARATH N. SILVA, C.J.

The 1 st. Petitioner is a Company and the 2 nd. and 3 rd. Petitioners being husband and wife respectively are Directors of the Company. The 4 th. Petitioner is the daughter of the 2 nd. and 3 rd. Petitioners. The Petitioners have filed this application alleging that their fundamental rights guaranteed by Article 12 (1) of the Constitution have been infringed by the 1 st. to 11 th. Respondents. The alleged infringements in respect of which they have been given leave to proceed relates to the measures being taken to acquire a portion of land owned by the 1 st. Petitioner Company under the Land Acquisition Act. The land owned by the Petitioner Company is depicted in Plan No. 1856 dated 28 .09. 1985 made by G. L. W. Perera, Licensed Surveyor as lots 1 and 3. Lot 2 of the said plan is owned by the State on which the school named, Gurukanda Maha Vidyalaya is located.

The Petitioners intend to construct a beach house on lot 3 of the said land for use and occupation of the 4 th. Petitioner. For this purpose the petitioners obtained a permit for " development activity " from the Director of Coast Conservation under the Coast Conservation Act No. 57 of 1981. Thereafter a building plan was submitted for approval to the Bentota Pradeshiya Sabhawa. The Pradeshiya Sabhawa requested the Petitioners to get a letter from the Principal of Gurukanda Maha Vidyalaya, the 8 th. Respondent stating that she has no objection to the proposed construction.

The 8 th. Respondent gave her consent subject to certain conditions. There is a dispute as to these conditions. The Petitioners state that they agreed to construct a protective wall around that part of the boundary of the school , which did not already have a boundary wall separating the school premises from lot 3. On the other hand the 8 th. Respondent claims that the Petitioners undertook to provide several other facilities for the school.

The Petitioners having obtained the building permit commenced construction work on lot 3 by clearing the land, on or about 6. 6. 1998. At this stage there were protests on the part of the students of the school and other persons who engaged in a picketing campaign for several days.

The Petitioners allege that the 7 th. Respondent being a member of the Pradeshiya Sabhawa and the 8 th. Respondent provoked certain persons to enter the Petitioner's land and to cause damage. The incident has taken place on 16. 6 . 98 pursuant to which a complaint was made to the Kosgoda Police. Thereafter a prosecution was instituted in the Magistrates Court against the 7 th. and 8 th. Respondents and certain others, on 24. 6. 98.

The next stage of the sequence of events relate to the involvement of the 2 nd. Respondent. It is alleged in the petition that on 11 th. July 1998, the 2 nd. Respondent being the Minister of Education and Higher Education stopped his vehicle outside the Petitioner's land and directed the Petitioners' caretaker to cease the construction work on the land immediately. The 2 nd. Respondent has in his affidavit specifically denied this incident. The Petitioners have not produced any evidence in support of this allegation. The caretaker of the Petitioners has not filed an affidavit and the averments in the petition and the Petitioner's affidavit would be hearsay and cannot be accepted in the circumstances.

It is common ground that the 2 nd. and 4 th. Petitioners met the 2 nd. Respondent regarding the matter through the intervention of another Minister. At that meeting the 2 nd. Respondent informed these two Petitioners of the long felt need of to expand the existing playground of the Gurukanda Maha Vidyalaya. These Petitioners offered to give a strip of land 10 feet in width from lot 3 to expand the playground. According to the 2 nd. Respondent the area offered was inadequate for the required purpose. In the circumstances he requested the 1 st. Respondent to take steps to acquire the necessary land in terms of the Land Acquisition Act. The request had been made for the acquisition of an extent of 3 roods and 11.5 perches. On the basis of this request an order has been made in terms of Section 2 of the Land Acquisition Act on 5. 08. 98 for the survey of the land in extent 1A. 2R. 8P. to consider the acquisition of the said land necessary for the given public purpose. The notice issued in terms of the said order made under Section 2 of the Land Acqusition Act has been affixed on the land on 6. 8. 98. The infringement of Article 12(1) is alleged in respect of the order made under Section 2 of the Land Acquisition Act referred to above and the publication of the notice. A declaration is sought that the said notice is null and void.

The case of the Petitioners is that the acquisition of the land for the given public purpose is without any basis. That, it has been initiated by the 8 th. Respondent and Member of the Pradeshiya Sabha, the 7 th. Respondent, for the avowed purpose of expanding the playground although there is adequate land within the present premises of the school and the space available is adequate for their recreational purposes.

The 2 nd. Respondent has disclosed the circumstances relevant to the acquisition. He has produced marked 2R3 a letter dated 1. 11. 85 addressed to the then Minister of Education by the then Principal of the school requesting that land be acquired for the expansion of the existing playground. This request had been referred to the Regional Director of Education , Galle who by letter dated 18. 12. 86 stated that since it is intended to shift the school to another location, the acquisition need not be proceeded with. However, the proposed relocation of the school did not take place and the request for additional land for the playground was revived by the Member of Parliament for Galle District by letter dated 21. 1. 1995. The 2 nd. Respondent has further stated that the school has 485 students and not 300 as claimed by the Petitioners and that only an area of 140 ft. x 70 ft. within school premises could be utilized for a playground. He has annexed a sketch depicting the area that is available. On this basis he has stated that the extent of land offered by the Petitioners being a strip 10 feet in width would be insufficient for a meaningful expansion of the playground.

It is to be noted that the 2 nd. Respondent being the Minister in charge of the subject, is the proper authority to initiate the process of acquisition under the Land Acquisition Act. The allegation of the Petitioners that the 2 nd. Respondent was personally involved in the matter and that he requested the caretaker to stop the construction activities cannot be accepted. As noted above the Petitioners have failed to support this allegation with any admissible evidence and the denial of the 2 nd. Respondent of this episode has to be accepted. In any event, the admitted fact that the 2 nd. Respondent met with two of the Petitioners and discussed their proposal to offer a strip of land to the school, shows the bona fides of the 2 nd. Respondent . The 2 nd. Respondent has also adduced evidence to establish that the strip 10 ft. wide offered by the Petitioners is inadequate for a meaningful expansion of the playground. The needs of a school and of students attending a school cannot be fixed as at a given point of time. There is bound to be an increase in the number of students and the authorities have to provide not only adequate classrooms and educational facilities but also sufficient facilities for sports and recreation. Upon an examination of the plan relied on by the Petitioners marked P 6, it is clear that the existing playground is bounded in the east and west by the Colombo - Galle Road and the sea shore, respectively. Therefore any expansion of the playground should necessarily take in the land of the Petitioners, to the south, which is lot 3 since the school buildings are located to the north.

In the circumstances I uphold the position taken up by the 2 nd. Respondent that there is a public need to expand the playground of the school and that for such purpose the only available land is the one claimed by the Petitioners in respect of which an order has been made in terms of Section 2 of the Land Acquisition Act. The specific area actually needed for the purpose could be determined in the course of proceedings under the Land Acquisition Act.

I hold that the Petitioners have failed to establish an infringement under Article 12 (1) of the Constitution.

The application is accordingly dismissed. I make no order for costs.


CHIEF JUSTICE

WADUGODAPITIYA, J.
I agree.
JUDGE OF THE SUPREME COURT

GUNASEKERE, J.
I agree.
JUDGE OF THE SUPREME COURT