Bid to acquire private lands foiled; Court of Appeal orders to pay costs

By S.S.Selvanayagam

In a landmark case on land issues in the Eastern Province, the Court of Appeal has apparently foiled the bid to acquire the personal lands of citizens under the pretense of terming it State land. 

Justice W.M.M.Malinie Gunaratne with Justice P.R.Walgama in her judgment ordered the State to pay costs to the aggrieved land owners in the proceedings. 

Sivanu Sinnasamy, Perumal Subramaniam and Nesiah Nagendran and their spouses became entitled to the said lands on dispute by virtue of deeds possessed and they were removed to a refugee camp due to the ethnic conflict which prevailed in the North and East. 

In November 2005, on direction of the Divisional Secretary of Manmunai North, a number of officials entered the disputed land and ordered them to vacate said land on the purported position that the respective plots of land has been acquired by the State by way of notification by gazette. 

The aggrieved families filed an application in the High Court of the Eastern Province holden in Batticaloa citing the Divisional Secretary of Manmunai North, the Minister of Lands Tissa Karaliyatta and the Attorney General as respondents. 

They sought a stay order against the respondents and to squash the order of the Minster to acquire their lands. 

The State took up the position that the High Court has no jurisdiction to issue orders against the respondents and maintained that the acquisition of property is excluded from the Provincial Council list. 

The State had also raised objection stating that after acquiring the said land for the purpose of building houses for people displaced by the Tsunami, the Minister has handed it over to the Divisional Secretary. The High Court noted that’s the State had failed to produce documents to date and held that it will not be able to decide whether the subject land is vested with the State or not. 

The High Court arrived at the conclusion that that the High Court of the Province is empowered to determine any matter relating to lands. 

The State appealed to the Court of Appeal against the order of the High Court seeking to set aside and vacate the said order. 

The Court of Appeal took cognisance of Item 18 of the Provincial Council’s list which allows that  the land right in or over land, land tenure, transfer and alienation of land, land use, land settlement and land improvement to the extent set out in Appendix II and adverted that the State land shall continue to vest in the Republic and may be disposed of in accordance with Article 33(d) and written law governing the matter. 

It also observed that State land required for the purposes of the Government in a Province, in respect of a reserved or concurrent subject may be utilised by the Government in accordance with the laws governing the matter and the government shall consult the relevant Provincial Council with regard to the utilisation of such land. 

The Court of Appeal held that there is no proof to the fact that the land in issue is a State land and the High Court is empowered to act under Article 154(p)(4) of the Constitution and determine the issue. 

For the forgoing reasons, the Court of Appeal dismissed the application subject to a cost of Rs 10,000. B.N.Thamboo appeared for the aggrieved party. Senior State Counsel Yuresha Fernando appeared for the State.