This Court granted the Petitioners leave to proceed on November 12 2007 on an alleged infringement of Article 12(1) of the Constitution of the Democratic Socialist Republic of Sri Lanka.
The Petitioners presented their case on the basis of an infringement pertaining to the acquisition of land on the premise that such land would be utilized to serve a public purpose whereas, by this impugned executive or administrative action the land was knowingly, deliberately and manipulatively sold to a private entrepreneur to serve as an exclusive and private golf resort in Sri Lanka, one carrying a membership fee of Rs. 250,000/-. Learned Counsel submitted that this was done through a process that was conniving and contrary to the equal protection of the law guaranteed by Article 12(1) of the Constitution which assures to the People the Rule of Law. Counsel also submitted that the facts in this case reflected a flagrant betrayal of the purported policy of the 1994 government under :the 1st Respondent to establish transparent governance and eliminate corruption, and that the facts disclose that this transaction reeked of corruption .
Counsel submitted that the most disturbing factor of all was that those alleged to have initiated, facilitated and/or conspired to achieve this outcome were those from the highest echelons of the executive and included senior officials, members of the public sector and statutory bodies of the government, the former President (the 1st Respondent), multiple government agencies, the 4th Respondent Company, and as Counsel submitted in particular, the 5th Respondent Mr: Ronnie Peiris chose not to take part in the proceedings despite notices being served on him, and who through tax declarations, was revealed to have obtained a sum of approximately Rs. 60 Million in profit from this transaction despite having no disclosed association with it. Counsel additionally submitted that there had been a series of deliberate acts of gross abuse of executive power by the 1st Respondent.
Counsel submitted that given the executive or administrative power wielded by those involved, the nature of the allegations made, and the seriousness of the implications of such allegations upon the national interest and national economy and, importantly, the citizenry of this country, the ramifications of this case, though exceedingly complex, should be carefully and incisively scrutinized by this Court He further submitted that this Court was the last bastion of hope to the people in whom sovereignty is reposed who are the most affected by the patent abuse of executive or administrative power especially by the 1st, 3rd, and 7th Respondents in this case. The facts indeed are complex, as one would expect from the voluminous pleadings presented to Court. Despite its scale and magnitude, a detailed study of the facts of the case has been done and it is appropriate to begin at the inception with an analysis which chronologically unravels the basic, relevant and important sequence of events of the impugned transaction:
n According to the Petitioner, on or about 1984 Hon. Gamini Dissanayake, then Minister of Lands, decided to acquire a large tract of land situated in Kalapaluwawa, Rajagiriya, under the provisions of the Land Acquisition Act No 9 of 1950 as amended by No. 39 of 1954, No. 22 of 1955, No. 28 of 1964, No. 20 of 1969, No. 48 of 1971, No. 8 of 1979 and No. 12 of 1983 (referred to hereinafter as the Land Acquisition Act ), for the public purpose of urban development and ostensibly for increasing the Parliamentary Administrative Complex and for providing water retention as a low lying area . This fact has not been substantively contested by any of the Respondents.
n In terms of Section 5 of the said Land Acquisition Act, as amended, a declaration was issued through the publication of a Gazette notification dated October 1988 (Document P1 (b) of the Petitioner s amended Petition) to notice the owners of the land being acquired, some of whom have intervened in this case as Intervenient Petitioners (hereinafter referred to as the Intervenient Petitioners ). Section 5 of the Land Acquisition Act mandates that the Minister, before acquiring land, shall make a written declaration that such land is needed for a public purpose and will be acquired under the Act . In terms of this section, he accordingly named S. Sakalasuriya, the Divisional Secretary/Additional Government Agent, as the acquiring officer. This officer made payment of compensation in a sum of Rs. 312 per perch, and a Certificate of Vesting was Sued, vesting the land with the 3rd Respondent, the Urban Development Authority (referred to hereinafter as the UDA ). It is to be noted that (i) Document P1(b) categorically declared that the land had been acquired for a public purpose and (ii) the second annexure to the Certificate of Vesting granting the land to the UDA from the Divisional Secretary/Additional Government Agent (Document P1(a) of the Petitioner s amended Petition) expressly declared that The land should not be utilized for any other purpose than that for which it was originally acquired. (Vide Schedule 2)
n In spite of the supposed urgency for acquiring the land, no action regarding the said land occurred for approximately 9 years subsequent to the vesting of the land with the UDA. On May 14 1997 the 7th Respondent, the Board of Investment (referred to hereinafter as the 801 ) approved by letter dated June 5 1997 (Document F of the affidavit dated June 13 2008) a BOl proposal dated April 7 1997 (Document B through B4 of the aforementioned affidavit), submitted by one Shantha Wijesinghe in his capacity as Managing Director of Asia Pacific Golf Course Ltd. (referred to hereinafter as Asia Pacific ) to establish an 18-hole Golf Course on 150 acres of the aforesaid land. There are several matters of significance that must be noted land was recommended to Asia Pacific by the UDA in response to Asia Pacific s original inquiry letter In addition to the aforementioned golf course and despite a pledge to harmonize the said golf course with the flood retention purposes of the land, Asia Pacific also proposed the construction of a park, football pitch, cricket pitch, and a hawker centre, which was to be made available to the public, (vide B referred to above) ostensibly to satisfy in some minimal way the original purpose for which such land was acquired. It is to be noted that the purpose for which it was acquired, being solely to serve a public purpose, was to serve the needs of the general public as distinct from the elitist requirements of the relatively small segment of society in Sri Lanka. It is significant to note that under the law this public purpose was attached to the land at the point it was acquired from the original owners. The enactment of laws to allow for such land acquisition was only done because of a legislative belief that private ownership in Sri Lanka is subject to the paramount, essential and greater need to serve the general public, a significant segment who lack even basic living amenities like running water, electricity, and housing.
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10 Oct 2008 05:50:39 GMT 
16 Oct 2008 05:36:33 GMT