Supreme Court rules: SETTLED: LAND POWERS WITH STATE-Centre not ceded dominium of state lands to PCs:Overturns Court of Appeal Judgement:
Posted on September 27th, 2013

Sarath Malalasekera Courtesy The Daily News

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

-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 PC said, delivering a judgement 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 judgement the Chief Justice stated, -This is an application for special leave to appeal from the judgement of the Court of Appeal dated Aug 8, 2012 wherein the court of appeal set aside the judgement of the Provincial High Court dated Oct. 25, 2000.

Chief Justice Mohan Peiris in his judgement interalia 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 judgement 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 judgement 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 Amendement.

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 (Omne majus continent in se minus) 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 as would appear later in the judgment.

The Supreme Court Bench comprised Chief Justice Mohan Piries PCm Justice K Sripavan and Justice Eva Wanasundera.

The Petitioner Solaimuthu Rasu of Dickson Corner Colony, Stafford Estate, Ragala, Halgranaoya cited SCK de Alwis, Consultant/Plantation Expert, Plantation Reform Project, Ministry of Plantation Industries, Colombo 4 and the Attorney General as Respondents.(And now between The Superintendent Stafford Estate Ragala, Halgranaoya, SCK De Alwis and the Attorney General as Respondents Petitioner and Solaimuthy Rasu as Petitioner Appelant respondent).

President-â„¢s Counsel Manohara de Silva with Attorney Palitha Gamage appeared for the Petitioner, Senior Attorney Gomin Dayasiri with Attorney Manoli Jinadasa and Rakitha Abeygunawardena appeared for the second respondent.

Solicitor General Y J W Wijayatillake PC, with Senior State Counsel Vikum de Abrew and State Counsel Yuresha Fernando appeared for the third respondent.

– See more at: http://www.dailynews.lk/local/settled-land-powers-state#sthash.ilLJp5GU.dpuf

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