Legal Services and Laws of Sri Lanka


SLR - 1978-79-80 Vol.1- P 37

SLR - 1978-79-80 Vol.1, Page No - 37

GNANATILLEKE v. ATTORNEY-GENERAL&
ANOTHER

SIRIMANE v. ATTORNEY-GENERAL & ANOTHER
SUPREME COURT
SAMARAKOON, C.J., ISMAIL, J. AND SHARVANANDA, J.
S.C. APPLICATION NOS. 47 AND 48 OF 1979.
OCTOBER 12, 1979.

Constitution of Sri Lanka, 1978, Article 12 (1)-Right to equality before the law-Wheninfringedbyadministrativeaction-
Wrong decision bona fide made does not violate Article 12(1).
The petitioners made applications to the Government Agent for the allotment of State land being distributedunderascheme
of distribution designed to ensure that the most deserving persons are granted land. Petitioners' applications wererejected
on the allegations made that they possessed land. The petitioners made applications to the SupremeCourtforreliefunder
Article 126(2) of the Constitution. In their affidavits, the petitioners denied that they own, possessoroccupyanyland
and it was argued on their behalf that the allegations that they possessed land beinguntrue,theyhadbeendeprivedof
equal treatment with the others.
It was common ground that owing to the insufficiency of the land available for distribution,outofthelargenumberof
applicants, some who were qualified, did not receive any land. The petitionersdidnotquestionthebonafidesofthe
Government Agent.

Held :
What the petitioners complain of is a wrong determination of facts, namely that they owned land when theyinfactdidnot
own, possess or occupy land. As a result they were placed in the wrong category.Awrongdecisionbonafidemadeona
question of fact cannot constitute a breach of the fundamental right of equality intheeyeofthelaw,(Wijesinghev.
Attorney-General et al., followed).

Case referred to :
(1) Wijesinghe v. Attorney-General & Others, (1978-79) 1 Sri L.R. 65.
APPLICATION under Article 126(2) of the Constitution
E.D. Wickremanayake, for the petitioners.
. Ratnapala, State Counsel, for the Attorney-General.
Cur. adv. vult.
October 17,1979.
SAMARAKOON, C.J.
The petitions in these two cases deal with the same subject matter. Each of the petitioners is a citizenof SriLankaby
descent, and each has been resident in the District of Nuwara Eliya from birth.
38
Each of them alleges that he is not married and does not own or possess or occupy anylandwhatsoever.Theseapplications
arise as a result of a failure to obtain allotments of land from the Government. On or about, the15thofFebruary,1978,
the 2nd respondent who was the Government Agent of Nuwara Eliya at the time published a notice callingforapplicationsto
hold a Land Kachcheri for the purpose of allotting 3/4th acre blocks of land in the Meepilimana Co-operativeFarm.Eachof
the petitioners in these two cases applied. The petitioner in application No. 47 was notoneofthoseselected,butthe
petitioner in application No. 48 was one of the selectees. There seems to have been some objection lodged totheselections
made and the 2nd respondent by notice dated 27th October, 1978, cancelled the said Land Kachcheri. He then publishedanother
notice on 20th February, 1979, calling for application for selection at a Land Kachcheri to beheldon4th,5thand6th
April, 1979, for allocation of half acre lots in the same Cooperative Farm. Someofthequalificationssetoutwereas
follows:

"(a) Permanent uninterrupted residence since 1.1.73 by citizens of Sri Lanka in the villages of Meepilimana and Elk Plains
(b) Applicants had to be persons not employed by the State nor engaged in business
(c) Applicants had to be between the ages of 18 to 50 years
(d) Applicants had to be persons not in receipt of an income of over Rs. 400 per month
(e) Special consideration was to be shown to applicants who, and whose wives, did not own land and who were in receiptofa
low income."
The notice also stated that should any application on the face of it show that applicantwasapersonnotqualifiedfor
allotment, his application would be rejected. After inquiry the 2nd respondent published the notice dated18thJuly,1979,
showing the final list of allottees. The two petitioners had failed to obtain any allotment. Hence theseapplications.Each
of them alleges in his petition -

(a) that the allottees are either members or supporters of the United National PartywhichwontheGeneralElectionsin
1977, and therefore formed the Government. The petitioners llege that they were supporters of the Sri Lanka Freedom
39
Party, and therefore in the matter of the allotment each has been discriminated against for political reasons, and
(b) that each has been treated unequally which is an infringement of the "fundamental right to be treated equally".

The 2nd respondent in his affidavit stated that the inquiry into these applications and objections was heldbytwoofhis
subordinate officers and that after perusing the inquiry notes of those officers he found that the petitioner inapplication
No. 48 had been named to succeed to a plot of State land 3/a acre in extent given on permit to his father and also thatthis
petitionerhad encroached up to 1/2 acre of State land. At the hearing of this application StateCounselstatedthatthe
former allegation was mistakenly made. Thesecondrespondentalsostatedthattheinquirynotesdisclosedthatthe
petitioner in application No. 47 of 1979 was in possession of 1/4 th acre of land. Bothpetitionershavefiledaffidavits
denying that they own or possess or occupy any land. They state that their application had been wronglyrejected,andthat
they have been subjected to unfair treatment. It was admitted in the course of the argument by Counsel forbothpetitioners
that there was a large number of applicants in this Land Kachcheri and that a number of them, whowerequalified,hadnot
received any allotment. Apparently the extent ofland available for distribution was insufficient to meet the demand ofall
qualified applicants.
The allegation that the petitioners had been discriminated against on the ground of political opinion waswithdrawnatthe
argument. Counsel for the petitioners restricted his application to his allegation that thepetitionershavebeentreated
unequally. He relied on Article 12(1) of the Constitution of the Democratic Socialist Republic of Sri Lankawhichreadsas
follows:

"12 (1) All persons are equal before the law and are entitled to equal protection of the law."
He argued that the petitioners' applications had been wrongly rejected on the allegation that each ofthempossessedland,
and that being untrue they had been deprived of equal treatment with the others. In other words the2ndrespondenthadby
administrative action infringed their fundamental right of equality before the law.
The 2nd respondent in his affidavit states that he has been delegated the authority to issue permits undersection2(4)of
the Crown Lands Ordinance (Chapter 454) for the occupation of State
40
land. In regard to the matter of division of this Meepilimana Cooperative Farm in extent82Acresand3Roods,the2nd
respondent states as follows in paragraph 7 of his affidavit dated 20th September, 1979:
"Although I was aware that I did not have to observe any prescribed procedure in issuing these permitsIdecidedtoadopt
what is popularly known as the "Land Kachcheri" method in order to ensure that the most deservingpersonsaregrantedthe
permits. Accordingly after obtaining the sanction of the Land Commissioner I published the notice dated 15th February,1978,
a copy of which has been annexed to the Petitioner's affidavit marked 'A'."

What he has set out to do was to ensure that the most deserving persons were granted the permitsandthatwassolelyhis
decision. For the purpose of doing this he had two categories. One category was those who satisfied the conditions laiddown
in the Notice dated 20th February, 1979, and the other category was those who did not satisfy these conditions. Inparagraph
10 of the affidavit, the 2nd respondent states that on the second occasion hemademodificationstothe1stNotice"to
ensure a fairer and more equitable distribution and to enable a larger number of persons to benefit from thisdistribution."
Ultimately a list of 120 persons was compiled for the purpose of issuing permits. As stated earlieranumberofqualified
persons were not in the list because there was an insufficiency of landforallotmenttomeettherequirementsofall
persons qualified. It is significant that all of them did not complain. What thepetitionerscomplainofisofawrong
determination of facts, namely, that they owned land when they in fact did not own, possess or occupy land. As a resultthey
were placed in the wrong category. This is not a decision of law but a decision on disputed facts. The bona fides of the2nd
respondent in making the finding of fact is not inquestion.Inthecircumstancesthoughthepetitionersmayhavea
grievance, I fail to see how a wrong decision bona fide made onaquestionoffactcouldconstituteabreachofthe
fundamental right of equality in the eye of the law. It is not even a breach of law and I cannot see how thisCourtcanon
application made under Article 126 of the Constitution give these petitioners protection againstwrongdecisionsonfacts
due to an error of judgment. Wijesinghe v. The ` Attorney-General et al. (1). I
would therefore, dismiss each of the applications, but make no order as to costs.

ISMAIL, J. - I agree.

SHARVANANDA, J. - I agree,

Applications refused.


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