By Sarath N. Silva –
The recent decision of the Supreme Court, coming in the wake of the first ever election to the Northern Provincial Council, has aroused much concern and mixed reaction that it is in the public interest to make with due respect to the court, a realistic analysis of its content.
The appeal to the Supreme Court stems from an application filed by Solamuthu Rasu, a workman in a tea estate, before the Provincial High Court of the Central Province, seeking a writ of Certiorari to quash a notice to quit issued on him purportedly under the State Lands (Recovery of Possession) Act. The land from which he is to be evicted is described in the notice as a portion to Stafford Division of the Ragala Estate.
Rasu claims that he was an employee of the Estate, which vested in the Land Reform Commission in 1975 and that he was allocated the plot of land in question in about 1980 under a scheme of providing workmen with a means of income. He cleared the land which was undeveloped and has been cultivating it since then. On March 12, 1982 the Minister vested the Ragala Estate in the J. E. D. B. which was established under the State Agricultural Corporation Act. The new management sought to eject him from the land and a proceeding was instituted in the Primary/Magistrates Court of Nuwara Eliya under section 66 of the Primary Court Procedure Act. The court made order in favour of Rasu and directed that he could remain in possession until evicted upon an order of a Civil Court. No such case was filed against him.
In 1992, there was another change of management and the business of the Ragala Estate was taken over by a Public Company viz Mathurata Plantation Ltd in terms of an order under Act No 23 of 1987. Subsequently this company was privatised. Several years later the 2nd Appellant before the Supreme Court described as a “Consultant/Plantation Expert” acting apparently on a resolution of the JEDB purported to issue a notice to quit on Rasu, the validity of which he challenged in the application to the High Court. It appears that although the functions and the business of the JEDB had been taken over by the Plantation Company on the order referred above, there remains an insidious and highly questionable practice of recovering possession of land claimed by the company through the summary procedure in the State Lands (Recovery of Possession) Act in the Magistrate Court without going through a regular civil action in the District Court.
It is regretted, with respect, that the Supreme Court has failed to take into account or even to mention any of the facts referred to above which could have been gleaned from documents filed in the relevant proceedings. Such an inquiry was required since Rasu had challenged the entire process of ejecting him from the land he was cultivating from 1980 by the purported recourse to the summary procedure in the State Lands (Recovery Possession) Act.
The “Plantation Expert and the Superintendent of the Stafford Division who were cited by Rasu as Respondents objected to the jurisdiction of the High Court on the basis that the land in question in “State Land” which is not a matter set out in the Provincial Council list of the 13th Amendment. The High Court upheld the objection and dismissed the application. Rasu appealed to the Court of Appeal which reversed the decision of the High Court and held that the Court had the jurisdiction to entertain Rasu’s application. Then the Plantation Expert, the Superintendent of the estate and the Attorney General appealed to the Supreme Court which by the said decision overruled the Court of Appeal and restored the order of the High Court dismissing Rasu’s application. The net result of the copious interpretation of the 13th Amendment and the powers relating to “State Land” undertaken by the Chief Justice in his judgment is that Rasu will now be evicted summarily from the land he was cultivating from 1980.
The first point I wish to raise in this analysis with due respect is that the Chief Justice in his judgment failed to examine the basic issue whether the land in respect of which Rasu filed his application is “State Land” in terms of the Constitution. Any interpretation of the Constitution being the Supreme Law of the Republic has to be done in the context of the Constitution itself and no other. The phrase “State Land” appeared firstly in the Constitution in Appendix II of list 1 (Provincial Council List) in the 13th Amendment. According to its provisions “State Land” has two attributes;
(i) It is land vested in, meaning owned by, the Republic and,
(ii) which may be disposed of by the President in accordance with Article 33 (d), contained in the provisions setting out the President’s powers and functions, in accordance with written law governing the matter.
It is manifest from the matters stated above, which do not feature in the judgment, that the land claimed by Rasu does not come within any of these attributes. The land which was privately owned, vested in the LRC, then the JEDB and then passed to the control of a public company shares of which are traded in the Stock Exchange. The President never had power under the Constitution to dispose of that land.
It appears that the Chief Justice has mistakenly assumed that the land in question is “State Land” from the reference to the State Lands (Recovery of possession) Act. But any such misapprehension could have been cleared by an examination of the provisions of that Act, which too has not been done in the judgment.
The Act, contains a summary procedure (Without a trial) to recover possession of state land. Section 18 of the Act contains an interpretation clause which provides that state land means the land to which the state is lawfully entitled to or disposed of by the state (which would be state land within the meaning of the Constitution) and includes land of various Corporation and Boards. However the opening words of section 18 specifically states that this interpretation is restricted only to that Act. It would be preposterous to assume that the extended meaning given to the phrase “State Land” in that Act would apply to the phrase “State Land” in the Constitution. Thus it is seen that the land in respect of which Rasu filed his application is not “State Land” within the meaning of the 13th Amendment and with due respect, the deep foray of the Chief Justice to the gamut of provisions in the 13th Amendment regarding “state land” is without a basis. The purpose of a judgment is to apply the law to the facts of a case. To use the words of Chief Justice Abrahams, the Court is not an ‘Academy of law’ where an exposition of law is done to expand the base of knowledge.
The 13th Amendment has three sets of provisions on the subject of land including rivers, waterways, foreshore, maritime zones and the like. Whilst it provides a delineation of the respective powers and functions that are reserved to the Government on the one hand and devolved to the Provincial Councils on the other, it provides for consultation, the need to seek advice and so on demonstrating the intention of the Constitution that they be implemented on the basis of consensus and harmony for the benefit of the people of Sri Lanka who are the ultimate repositories of power in terms of Article 3 of the Constitution.
The role of the court in any scheme of devolution of power is that of an arbiter, to decide on any particular dispute or question that has arisen. The Court should not endevour to lay out a roadmap for the implementation of the respective powers since it may disturb the harmony and the process of giving and taking that would evolve in keeping with the intention of the consultation in the course of such implementation.
Be that as may. What of Rasu’s land? Where if any does it fall in the scheme of the 13th Amendment?
The first in sequence of the three sets of provisions is items 18 in list 1 (Provincial Council list) which specifies “land” as a subject of Council. It elaborates the term “land” to encompass rights in and over land, land tenure, use, settlement, improvement and so on subject to the extent set out in Appendix II to that list. This Appendix is titled “Land and Land Settlement”. It states specifically that “Land shall be a Provincial Council subject”, except for the overriding reservation that state land shall continue to vest in the Republic and may be disposed of by the President in terms of Article 33 (d) and applicable written law and further subject to the special provisions in paragraphs 1 and 2, Paragraph 1 providing for the use of State land within a province by the Government for its functions on the one hand and the Provincial Council for its functions on the other and for the alienation of state land within a Province by the President. Paragraph 2 is special provision with regard to Inter-Provincial Irrigation and Land Development Project. The land which Rasu is in possession is not excluded by any of the special provisions and as such would be a matter in the Provincial Council List in respect of which the High Court has the jurisdiction to issue a writ of certiorari. Is Rasu a victim of an injustice?
*This article appeared in the Daily Mirror