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Supreme Court ruled: Land powers rest with the Central Government and not with the Provincial Councils.

Colombo, Sept. 27 -- "Having regard to the fact that in a unitary state government no cession of dominium takes place, the centre has not ceded its dominium over state lands to the Provincial Councils except in some limited circumstances," Chief Justice Mohan Peiris said, delivering a judgment , overturning the Court of Appeal ruling that held that the Provincial High Court of Kandy had jurisdiction to issue a writ of certiorari in respect of a quit notice issued under State Lands (Recovery of Possession) Act as amended.

"The order made by the Court of Appeal dated August 8, 2012 is set aside and the order of the Provincial High Court of Kandy dated October 25, 2000 is affirmed," the Chief Justice said. Delivering judgment the Chief Justice stated, "This is an application for special leave to appeal from the judgment of the Court of Appeal dated Aug 8, 2012 wherein the court of appeal set aside the judgments of the Provincial High Court dated Oct. 25, 2000.

The Supreme Court yesterday delivered three judgments and held that land is a subject matter of the Central Government and that the Provincial Councils shall administer control and utilize lands in accordance with the laws and statutes governing them.

Chief Justice Mohan Peiris in his judgment inter alia states ; "It is my considered view that the reasoning I have adopted having regard to structure of power sharing accords with the gladsome jurisprudence set out as above by Sharvannda CJ.

Having adopted the above analysis and in light of the structure and scheme of the constitutional settlement in the 13th amendment to the Constitution, the irresistible conclusion is that Provincial Council subject matter in relation to State Lands would only mean that the Provincial Councils would have legislative competence to make statutes only to administer, control and utilize State Land, if such State Land is made available to the Provincial Councils by the Government for a Provincial Council subject. As I pointed out above, if and when a National Land Commission is in place, the guidelines formulated by such Commission would govern the power of the Provincial Councils over the subject matter as interpreted in this judgment in relation to State Lands.

When one transposes this interpretation on the phrase "any matter set out in the Provincial Council List" that is determinative on the ingredient necessary to issue a writ in the Provincial High Court in relation to State Land, the vital precondition which is found in Article 154P 4 (b) of the Constitution is sadly lacking in the instant case.

In terms of that Article, a Provincial Council is empowered to issue prerogative remedies, according to law, only on the following grounds.

(a) There must be a person within the province who must have exercised power under

(b)Any law or Any statute made by the Provincial Council

(d)in respect of any matter set out in the Provincial Council List.

No doubt the Competent Authority in the instant exercised his power of issuing a quit notice under a law namely State Lands (Recovery of Possession) Act as amended. But was it in respect of any matter set out in the Provincial Council List? Certainly the answer to the question must respond to the qualifications contained in 1.2 of Appendix II namely administering, controlling and utilizing a State Land made available to a Provincial Council.

The power exercised must have been in respect of these activities. The act of the Competent authority in issuing a quit notice for ejectment does not fall within the extents of matters specified in the Provincial Council List and therefore the Provincial High Court would have no jurisdiction to exercise writ jurisdiction in respect of quit notices issued under State Land (Recovery of Possession) Act as amended.

The judgment also stated "the resolution of this question necessarily involves an examination of the nature and content of the subject matter of State Land that lies with a Province by virtue of the 13th Amendment to the Constitution and it is quite convenient to begin this examination by looking at the apportionment of land as delineated by the terms of the Supreme Law of the country that are found in the 13th Amendment.

The 13th Amendment to the Constitution refers to State Land and Land in two different and distinct places. In my view the entirety of State Land is referred to in List ii (Reserved List) and it is only from this germinal origin that the Republic could assign to the Provincial Councils land for whatever purposes which are deemed appropriate. It is therefore axiomatic that the greater includes the lesser (

Justice K. Sripavan in his judgment pointed out, "State land required for the purpose of the governance of a Province, in respect of the reserved list or concurrent subject, may be utilized by the government in accordance with the laws governing the matter.

"The Provincial Council gets its powers from Parliament. Administration and the control of lands in a Province are decided by Parliament in accordance with the National Land Polices of the Land Commission."

Justice Wanasundara stated, "The Court of Appeal erred in deciding that the Provincial High Court had jurisdiction to hear cases, where disposition or encroachment and alienation of State lands are an issue or where there is challenge to the quit notice issued in respect of State land.

"The devolution of State land to Provinces is undoubtedly subjected to State land continuing to be vested in the republic.

"There is no doubt that the President's power to make grants and dispositions according existing laws remains unfettered. Interpretation in my view to be given to all the provisions governing this matter as set out in the judgments of my brothers is that exercise of existing rights of ownership of State land is unaffected but restricted to the limited of powers given to Provincial Councils, which must be exercised having regard to national policy to be formulated by the National Land Commission."

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Publication:Asian Tribune (India)
Date:Sep 27, 2013
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