Supreme Court refuses six FR petitions on Revival Bill

By S.S. Selvanayagam

The Divisional Bench of five Judges of the Supreme Court yesterday (15) refused to grant leave to proceed with six different Fundamental Rights violation petitions challenging the Expropriation Bill titled ‘an Act to provide for the vesting in the State identified Underperforming Enterprises and Underutilised Assets Act’.

The Bench comprising Justices N.G. Amaratunga, S.I. Imam, R.K. Suresh Chandra, Sathya Hettige and Priyasath Dep held that there is no basis to grant leave to proceed and dismissed the petitions.

Ven. Thiniyawala Palitha Thero and employees of Sevanagala Sugar Industries Ltd. as well as the cultivator of sugarcane filed their petition against the impugned bill.

Romesh de Silva PC with Nihal Fernando PC, Sugath Caldera, Rohan Dunuwila and Eraj de Silva appeared for Ven. Palitha Thero. Saliya Peiris with Asthika Devendra and Dilan Warusuvitha appeared for the employees of the Sevanagala Sugar Industries Ltd. J.C. Weliamuna with Pulasthi Hewamanne appeared for sugar cultivators. Deputy Solicitor General Janak de Silva with Senior State Counsel Nerin Pulle appeared for the Attorney General.

President Mahinda Rajapaksa had forwarded the draft bill titled ‘an Act to provide for the vesting in the State identified Underperforming Enterprises and Underutilised Assets’ as an urgent bill in the national interest to the Supreme Court for its constitutionality.

It was taken up on 24 October before the Bench comprising Chief Justice Shirani A. Bandaranayake, Justices P.A. Ratnayake and Chandra Ekanayake. The Supreme Court communicated its special determination to the President and the Speaker of the Parliament that the said bill is not inconsistent with the Constitution.

The bill was presented to Parliament on 8 November and passed on the next day.

Under the said act, anyone who refuses or fails to deliver the possession of the said enterprise or asset shall be guilty of an offence under the act and shall on conviction after summary trial before a magistrate shall be liable to imprisonment of 10 years or fine or both.

The said bill is to appoint in respect of each one or more of such underperforming enterprises or underutilised assets, a Competent Authority to provide for their effective managing, administration or revival through alternative utilisation and the payment of compensation.

Whereas, in furtherance of the expeditious development policies being expeditiously implemented within the country in the backdrop of the favourable economic environment, the Government having regard to the Directive Principles of State Policy enshrined in the Constitution considers it necessary and expedient to ensure to its people the maximum benefit from the limited resources available, by securing and protecting as effectively as the Government could, a social order in which social, economic and political justice would prevail; and whereas it has become necessary in the national interest to vest in the State certain identified underperforming enterprises and underutilised assets, in order to ensure the effective administration, management or revival of such enterprises or assets, through alternate methods of utilisation, such as restructuring or entering into management contracts; this act is to be enacted by the Parliament.

With effect from the date of the coming into operation of this act, where any of the underperforming enterprises or underutilising assets are having an adverse impact on the national economy and thereby on the public interest, such enterprises and assets shall with effect from the date of coming into operation of this act, stand vested in the Secretary to the Treasury for and on behalf of the Government of Sri Lanka.

A Competent Authority appointed to control, administer and manage an underperforming enterprise shall take possession of all movable and unmovable properties of such enterprise (including any building belonging to or standing on land belonging to, such enterprise, together with fixtures or fittings thereto belonging and appurtement therewith, or treated as part and parcel thereof, and shall cause an inventory to be prepared of property in the presence of wherever it is, so possible, the person who on the day prior to the date of the vesting of such enterprise, was the chairman of the board directors of such enterprise or an asset duly authorised by such chairman.

The Competent Authority shall take possession of an underutilised asset (including any building which is part of, the fixtures, the fittings thereto and any building, belonging and appurtement or treated as part and parcel thereof) and shall cause an inventory to be prepared appropriately in the presence of wherever it is so possible, the person who on the day prior to the date of the vesting of such asset in the Secretary to the Treasury, was the owner or an agent duly authorised by such owner.

Shareholder or shareholders or the owner or owners, as the case may be, of any underperforming enterprise or underutilised asset as the case may be, shall where the shares of any underperforming enterprise held such shareholders or owners of such enterprise as on the date of the coming into operation of this act, have vested with the Secretary to the Treasury.

When such underutilised assets has, on the date of the coming into operation of this act, vested in the Secretary to the Treasury, be entitled to receive prompt, adequate and effective compensation in terms of the succeeding provision of this act.

Any person who with regard to any underperforming enterprise or underutilised asset vested in the Secretary to the Treasury refuses or fails to deliver possession to the Competent Authority of any property movable or unmovable including any building, plant, machinery or any fittings or fixtures, appurtement thereto and stock in trade of such any enterprise or asset; or wilfully or negligently destroys, damages or disables or causes to be destroyed or damaged or disabled or wilfully conceals or puts away or causes to be concealed or put away any property of, any such enterprise or asset; or prevents or obstruct or directly or indirectly causes any other person to prevent or obstruct the Competent Authority in taking over the management of, or taking possession or control of, any building or property, of any such enterprise or asset; shall be guilty of an offence under this act and shall on conviction after summary trial before a Magistrate to be liable to imprisonment either description for a period of not exceeding 10 years or to a fine not exceeding ten thousand rupees or to both such fine and imprisonment.