Northern PC too should follow ruling :

Historic SC judgment on land powers - Gomin Dayasri

by Manjula Fernando

In a historic judgment delivered by the Supreme Court on Thursday, it was ruled that in a unitary state, land powers are vested with the Central Government and that Provincial Councils can only administer, control and utilise state lands assigned to them.

The judgment was delivered unanimously by a three-member bench, sealing that Provincial Councils cannot enjoy land powers since, in a unitary state, the Centre has not ceded its dominium state to the provincial councils. The Bench comprised Chief Justice Mohan Peiris PC, Justice K. Sripavan and Justice Eva Wanasundera.

Senior Attorney who appeared for the second respondent in the case, Gomin Dayasri said this was a landmark decision by the Supreme Court, clarifying the powers vested with the Provincial Councils and emphasising that they did not enjoy excessive powers.

Delivering the judgment, Chief Justice Peiris said, “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 and having regard to the fact that in a unitary state of 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.”

It also upheld that the President's powers to make grants remained undeterred and when a National Land Commission is set up, guidelines formulated by such a commission would govern the power of provincial councils.

Justice K. Sripavan said the title of the land is vested with the Government even if the land is made available to a Provincial Council.

The judgment overturned the Appeal Court ruling that the provincial High Court (HC) of Kandy had jurisdiction to issue a Writ of Certiorari in respect of a quit notice issued under the amended State Lands Act, thus affirming the earlier provincial HC ruling.

Petitioner

The petitioner, Solaimuthu Rasu of Dickson Corner Colony, Stafford Estate, Ragala, Halgranaoya was represented by a team of counsels including Manoharan de Silva PC, Palitha Gamage and M.A. Sumanthiran.

Yuanjum Wijayatillake Solicitor General, PC appeared for the Attorney-General. Attorneys-at-Law Gomin Dayasri, Palitha Gamage, Manori Jinadasa, Anura Jayasinghe and Rakitha Abeygunawardena appeared for the Competent Authority of the Plantations Ministry.

The Sunday Observer interviewed Dayasri on the landmark ruling.

Excerpts of the interview:

Q: What is meant by the Supreme Court judgment in layman language?

A: It is a historic judgment, because the Supreme Court has decided that the land of the State belongs to the Central Government. On land powers, the Supreme Court held that the Central Government can divest land to be utilised for a Provincial Council purpose.

This is very significant because it means that every citizen of the country has a right to every inch of land, and it does not belong to the Chief Minister of the Provincial Council. Land is deemed to be in the hands of the President.

This judgment is also very remarkable because in recent times, there has never been a judgment where unanimity in the final decision was observed and where each of the judges gave separate distinct judgments in support of that finding. Such a judgment holds immense value.

The Supreme Court has revised two faulty decisions by former Chief Justices. Earlier, in a John Keells case, it was deemed that land belonged to the province.

This ruling was again cited by the Chief Justice. That created a major upheaval, because the Chief Ministers made that an opportunity to grab land. Now, that process has been reversed, because the present Chief Justice, in a very illustrious judgment, had analysed every aspect of the Constitution. It has been supported and further strengthened by Justice Sripavan and Justice Eva Wanasundara in declaring comprehensively that the land belongs to the Centre.

It is a judgment extremely beneficial to Sri Lanka and its people because it gives an equal right to any citizen to land in every part of the country. If not for the judgment, there would have been problems for people outside a particular province to settle in that province because the priority would have been given to the people of the province, but now everybody has equal rights. This means that all citizens will be treated equally on issues relating to land. That is democracy and that is equal treatment.

People must have a right to land wherever they desire to live in and this judgment helps that cause.

Any revision

Q: Now that this has become law, what is the possibility of this judgment being reviewed by a divisional bench?

A: There is no possibility of any review because it was a judgment made by three judges of the Supreme Court. It is stronger because all three judges have agreed to and strengthened the judgment by giving further reason.

Unless somebody wants to create absolute mischief, this judgment is everlasting. You will need a near revolution to grab land again after nearly forfeiting it previously.

Q: If the 13th Amendment was in operation, do you think the Supreme Court ruling would have been different?

A: The 13th Amendment had many obnoxious features. But now land has been taken out of the equation. That is in a safe zone. However, police powers are dangerously poised. I have not examined it closely. It might require an amendment to the Constitution. Whether a two-third majority can be obtained to revise the Constitution is another consideration.

Q: What is the law in India relating to state land, in relation to devolution of land powers to the states?

A: My knowledge on Indian law is minimal and I am afraid I cannot speak on it.

Q: What is the significance of this ruling in relation to the Northern Provincial Council?

A: This will not be a happy decision for the Northen PC because they may have lived under the expectation that they could distribute land under the law as was interpreted. But they are compelled to follow guidelines set by the State now.