Legal Services and Laws of Sri Lanka
SLR - 1993 Vol.1, Page No - 376
AMARASINGHE AND OTHERS
THE ATTORNEY-GENERAL AND OTHERS
(COLOMBO - KATUNAYAKE EXPRESSWAY CASE)
GOONEWARDENE J. AND
S.C. (SPL) NO. 6/92,
JANUARY 21st AND 22nd, 1993.
Certiorari and Prohibition - Declaration made by President under section2oftheUrbanDevelopmentProjects(Special
Provisions) Act, No. 2 of 1990 - Recommendation of Minister - Opinion of President - ConstructionofColombo-Katunayake
Expressway - Environmental Impact Assessment (EIA) - Acquisition - Writ Jurisdiction - Pre-requisite of a hearing-Natural
justice - National Environmental Act No. 47 of 1980 as amended byAct.No.56of1988,sections23AAand23BB-
Opportunity for raising objections - Resettlement of persons affected.
The petitioners are residents and owners along with others of the lands and buildings which were declaredbythePresident
under section 2 of the Urban Development Projects (Special Provisions) Act No. 2of1990,ontherecommendationofthe
Minister, as being urgently required for carrying out an Urban Development project namely the construction of theColombo-
Katunayake expressway connecting the port of Colombo with the Katunayake International Airport. This was after afeasibility
study by a Japanese Agency. On 03.5.1991 the Urban Development Authority (2ndrespondent)signedaconsultancyagreement
with the Japan Bridge and Structure Institute Inc. (JBSI) for certain services including review and updateoftheprevious
feasibility study, the preparation of thedetaileddesign,thecarryingoutofacomprehensiveenvironmentalimpact
assessment (EIA) of the project and the preparation of the implementation project and tender documents. The Cabinetapproved
the project and the 2nd respondent (UDA) had been requested to go ahead with the work schedule. Thelandrequiredforthe
expressway had to be acquired under the Land Acquisition Act. A Supplementary EIA had also to be preparedandsubmittedto
the 3rd respondent (Central Environmental Authority (CEA) and if found satisfactory, would be made availabletothepublic
and no action would be taken to obtain possession of the lands required (e.g. by means of an order under section 38,proviso
(a) of the Land Acquisition Act) until thelapseof30daysaftertheEIAismadeavailableforpublicscrutiny.
Resettlement of persons affected (nearly 2500 families) was to be given adequate consideration.
1. A valid order under section 2 of the Urban Development Projects (Special Provisions) Act No. 2 of 1990 requires the
(a) A recommendation by the Minister (here the Minister was the President himself).
(b) An opinion formed by the President
(i) in relation to an urban development project,
(ii) that lands are required for the purposes of such project,
(iii) that this requirement is urgent, and
(iv) that such project would meet ' the just requirements of the general welfare of the People '. project.
2. The Expressway project is undoubtedly an urban development
3. Section 3 of Act No. 2 of 1990 does not affect the jurisdiction by Article 140 of the Constitution which in terms of
section 4 (1) has been transferred to the Supreme Court.
4. Although section 7 (1) of the Act No. 2 of 1991 empowers the Government or any other person to obtainpossessionofany
lands, such possession can be taken only when the lands are vested by virtue of proceedings under the Land Acquisition Ador
5. A hearing was not a pre-requisite for making a recommendation. The President cannot make a recommendation tohimselfand
it is sufficient for him to form an opinion on the available material.
6. The President's opinion as urgency was not vitiated by any excess of jurisdiction or erroroflaw.Therewasadequate
material on which he could form his opinion.
7.(a) A hearing before forming an opinion that the order would meet the just requirementsofthegeneralwelfareofthe
people would be impracticable and would need some sort of local referendum to ascertain theviewsofallthosehavinga
(b) Persons affected will have an opportunity of submitting objections when steps are takenundersection4oftheLand
(c) The Minister in making a recommendation and the President when making an Order under section 2 of Act No. 2 of1990are
determining policy, based on evidence of a general characterthere is no lis. The obligation to give a hearingarisesonly
later, when objections are submitted, and when there is a lisat that stage evidence as tothelocalsituation,andthe
effect on individuals, has to be adduced and weighed.
8. The jurisdiction of the Court is not todeterminewhetherornottheexpresswayisnecessary,andifso,which
alternative is most suitable. It is for the Executive under the laws enacted by Parliament,tomakethosedecisions.The
writ jurisdiction authorises the Supreme Court to examine whether jurisdiction has been exceeded, whether there iserrorof
law and whether there has been procedural due process. The merits of a decisioncannotbequestionedmerelybecausethe
Court considers that some other decision would have been better. The Court can interfere onlyifitisunreasonable.The
available material does not in any way indicate that the decision to buildtheexpresswaywasunreasonable butonthe
contrary, that it was necessary and urgentand there is nothing whatever to suggest that theselectionoftheparticular
route or the rejection of alternative options, was unreasonable.
9. Sections 23AA and 23BB of the National Environmental Act No. 47 of 1980 amended by Act No. 56 of 1988adequatelyprotect
the public interest in regard to environmental considerations by preventing the implementation of a project until anEIAis
submitted and approval obtained. There will thus beafurtheropportunityforallinterestedpersonstoraisetheir
objections when the amended EIA is made available for public scrutiny. The section 2 Order s cannot therefore be impugnedon
10. Although nearly 2500 families would be affected, in the context of population of the district, and theareasconcerned,
that cannot per se be regarded as -unduly high, particularly if satisfactory steps are taken for resettlement.
11. It was not unreasonable for the President to have concluded when he made the section 2 order, that the expresswayisin
the national interest.
Cases referred to
1. Hirdaramani v. Ratnavale  75 NLR 67.
2. Visuvalingam v. Liyanage  2 Sri L.R. 123.
3. Wickremabandu v. Herath  2 Sri L.R. 348.
4. Weeraratne v. Colin-Thome  2 Sri L.R. 151, 167-169.
5. Fernandopulle v. Minister of Lands and Agriculture (1978) 79(2) N.L.R. 115.
APPLICATION for writs of Certiorari and Prohibition.
R. K. W. Goonesekera with Lalanath de Silva and Manohara de Silva for petitioners.
K. C. Kamalasabaysan Deputy Solicitor-General with Miss. A. Navaratne for respondents.
March 15, 1993.
On 21.01.92 the President made an Order ("P1 ") under section 2 of the Urban Development Projects (SpecialProvisions)Act,
No. 2 of 1980
" By virtue of the powers vested in me under Section 2 of the Urban Development Projects (Special Provisions) Act, No.2of
1980, l, Ranasinghe Premadasa, President, upon the recommendationoftheMinisterinchargeofthesubjectofUrban
Development, being of opinion that the lands specified in the Schedule heretoareurgentlyrequiredforthepurposeof
carrying out an urban development project, do by this Order declare that the said lands are required for such purpose".
The Schedule to that Order referred to all lands situated within several specifiedGramaSevaNiladhariDivisions,which
fell within six different A.G.A.'s Divisions. The Petitioners are residents of, and owners of lands and buildings withinthe
areas described in P1they say that they are some among about 2,500 families affected by P1. They seek Certioraritoquash
the Minister's recommendation referred to in P1, and the President's declaration contained in P1, as well asProhibitionto
restrain the Road DevelopmentAuthority(the2ndRespondent)fromtakingstepstoconstructtheColombo-Katunayake
expressway (" the expressway ") connecting the Port of Colombo with the KatunayakeInternationalAirportalongtheroute
depicted in the Plan marked P2A. That expressway is the Urban development project referred to inP1.TheOrderP1having
been made by the President, the Attorney General (in terms of Article 35(3) of theConstitution),hasbeenmadethe1st
Respondent. The Central Environmental Authority established under the National Environment Act,No.47of1980,andthe
Urban Development Authority established under the Urban Development Authority Act, No. 41 of 1978, havebeenmadethe3rd
and 4th Respondents, but no relief has been sought against them.
HISTORY OF THE EXPRESSWAY PROJECT
In 1982, at the request of the Government of Sri Lanka, the Government of Japan agreed toconductafeasibilitystudyin
regard to the expressway, and entrusted that study to a Japanese Agencythat Agency, in its reportmadeinJanuary1984,
recommended the construction of an expressway to the east of the existing Colombo-Negombo road. The Petitioners haveannexed
("P2") the contents pages of that report, and no morealthough they say that " the said report wasnevermadepublicnor
was the public given free access to the same ", they add that they " have gained access to parts ofthisreportonlyvery
recently ". They state that the report dealt with traffic surveys and projections,andincludedaprojectfinancialand
economic evaluation, and contained"finalroutedrawings"fortheproposedexpressway butdidnotcontain"a
socioeconomic analysis wherein data collected, through field surveys, of the people affected by the proposedexpresswaywas
analysed "" nor did the economic and financial evaluation consider or take into account the social and environmentalcosts
involved in the construction of the expressway nor were fundamental alternatives to the proposedexpresswayconsidered.....
what was shown as alternatives were route alternatives which did notdepartsignificantlyfromthepre-determinedfinal
The Director, Special Projects, of the 2nd Respondent, and the Chairman of the 4th Respondent, have sworn affidavitstothe
effect that the report was a feasibility study not intended for publicationthat it contained asolo-economicanalysisto
arrive at traffic projections for the futurethat four alternativerouteswereconsidered.........aftercarefulfield
reconnaissance, collection of data and information,detailedstudyoftherelevantconditions,includingphotography,
sociology, land use and distribution of facilities "that " the final alignment was not pre-determined but was chosenafter
considering the four alternatives "that " social and environmental effects oftheconstructionwereconsideredinthe
evaluation of the projectand that the report waspreparedundertheguidelinessetbyanAdvisoryCommitteewhich
consisted of a large number of Sri Lankan Government officials and other experts, (whose names were set out inthereport).
Some extracts from the report were produced in support.
It is unfortunate that the entire report (running into about 200 pages), or at leastmoresubstantialextracts,werenot
produced. It was open to the Petitioners to have asked for an order for production, if they had not had sufficient accessto
the report. From the contents pages (P2) it appears that thefeasibilitystudycoveredinteralia"presenttransport
conditions ", " projection of traffic demand ", " relationship of expressway and railway ", " surveyofalternativeroutes
", " environmental consideration ", " economic cost ", " benefit calculation","economicanalysis",conclusionsand
recommendations. According to the extracts produced by the Respondents,theChapteron"EnvironmentalConsideration"
considered inter alia " physical indicators of assessment ":
a) Topography and geology
b) Hydrology (drainage, floods)
c) Metereology (climate and weather)
d) Traffic nuisances (noise, air pollution, vibration and other nuisances)
e) Traffic accidents 410
f) Construction nuisances
as well as social and economic indicators of assessment
g) Transport mobility and accessibility
h) Land use potentiality
i) Population distribution
k) Regional spectacle
l) Community cohesion
m) Resident displacement
n) Industrial and agricultural production
o) Land price
p) Prices of commodities
It was for the Petitioners to substantiate their allegations that the report was defectivetheavailablematerialneither
indicates that the above factors were not adequately considered, nor suggests that there was any significant error.
On 3.5.91 the 2nd Respondent signed a consultancy agreement with the JapanBridgeandStructureInstituteInc.("]BSI")
which was required to provide certain services, including the review andupdateofthepreviousfeasibilitystudy,the
preparation of the detailed design, the carrying out of acomprehensiveenvironmentalimpactassessment('EIA")ofthe
project, and the preparation of the implementation program and tender documents. The3rdRespondentissuedthetermsof
reference ("P4") for the EIA. A note at the end of P4 refers to " a number ofmeetings"heldtodiscussthetermsof
reference, the outcome of which was reported at theEighthCoordinationMeetingfortheproject.Theminutesofthe
Thirteenth Coordination Meeting held on 21.8.92 have been produced as ("4R4"), and from this it appears that alargenumber
of Government agencies, including the 3rd Respondent, were represented onthatCommittee anEIApreparedby]BSIwas
considered at that meeting, at which it was confirmed that the Cabinet had approved the project and that the2ndRespondent
had been requested to go ahead with the work schedule. Further -
" The General Manager stated that priority will have to be given to carry out the surveys and finding alternative
accommodation for people who will be affected.........."
" The General Manager also requested the RDA to immediately commence work to peg the center line and,basedonthecenter
line to define a corridor (the normal section required will be 100m. but expected borrow area will requireextraland)for
the Survey Department to commence the survey..........."
" The General Manager requested the UDA to look at the development plan in the area and in relation tothishowsettlement
of families is going to take place and NHDA to do the infrastructure work......"
" Acting Director (NRM) of the CEA stated that the Environmental Assessment Report prepared by the Consultants, which isdue
to be open for a 30 day period of public comments lacks certain information. She was of the opinion thatthereportshould
be updated prior to making it available for public comments. She stated that
- The resettlement aspect has not been covered adequately.
- How to deal with the various categories of people coming under this projectandtheassurancegivenwillhavetobe
incorporated in this report.
The General Manager requested CEA to initiate a letter indicating their comments and inadequacies observed by them,andRDA
will identify ways of dealing with the suggestions. The EAR will not be open for public comments pending these alterations.
However, the General Manager, stated that the Consultants may proceed with their work, pending the results of the EAR."
By letter dated 4.9.92 ("4R5") the3rdRespondentsenttothe2ndRespondentthetermsofreference("4R5A")for
resettlement aspects which had not been adequately 'addressed in the EIA, and called for a supplementary report. Thoseterms
required a detailed study of the area affected by the development and thesitesinvolvedinresettlementofthepeople
affected, the population characteristics, the existing facilities, the major economic activities in the area,rehabilitation
policy, land availability for relocation, and alternative sites for relocation
The affidavit of the Director, Special Projects, of the 2nd Respondent states
" From October to December, 1992, National Housing Development Authority carried out an enumeration of allthehouseholders
that would be affected by the expressway. It was reported that the first petitioner has not co-operated with theenumerators
and has refused to provide any information to them. It was theintentionofthe2ndRespondenttoholdmeetingswith
affected parties and two meeting were held in December, 1992. More meetings are expectedtobeheld.3rdRespondenthas
examined the Environmental Assessment Report prepared in March, 1992, as part ofDetailEngineering,andhadrecommended
that human settlement aspects should be studied in further detail. This supplementary environmental impactassessmentstudy
has been entrusted to a firm of consultants and it is still under preparation. Once completed, the Report of this studywill
be submitted to 3rd Respondent for comments and if satisfactory, the report will be available for scrutiny by members ofthe
He, as well as the Chairman of the 4th Respondent, state that proceedings will be taken under theLandAcquisitionActto
acquire the required lands. The learned Deputy Solicitor General categorically assured us, in the course of hissubmissions,
that the supplementary EIA would be submitted to the 3rd Respondent, and if found satisfactory, would bemadeavailableto
the publicand that no action would be taken to obtain possession of the lands required (e.g. by meansofanorderunder
section 38, proviso (a), of the Land Acquisition Act) until the lapse of 30 days after the EIA is made availableforpublic
The section 2 Order was published in the GazetteExtraordinaryNo.738/4of26.10.92,andthePetitionerfiledthis
application on 25.11.92. It was supported on 4.12.92, but fixed for hearing only for 21.1.93although it wastakenupfor
hearing on that day and concluded on 22.1.93, it was not possible, because many complex questions arose, tomakeourorder
within the period of two months stipulated by section 4(2) of the Urban Development Projects (Special Provisions) Act.
Learned Counsel for the Petitioners submitted that although section 2 referred to the President's " opinion "insubjective
terms, it was nevertheless subject to review on the basis set out in Hirdaramani v. Ratnavale (1), Visuvalingamv.Liyanage
(2), and Wickramabandu v. Herath (3). He did not contendthatthatopinionhadnotinfactbeenentertainedbythe
President, or had been formed in bad faith, or was a mere pretence. His submission was that -
(a) there was a failure of Natural Justice, in that there had been no hearing prior to therecommendationandtheopinion
referred to in section 2, and
(b) there had been an excess of jurisdiction and/or a failure to consider relevant material and/orthatthePresidentdid
not have adequate material on which he could properly have formed an opinion.
As the learned Deputy Solicitor General did not contend that the Order was not justiciable, we do not have toconsiderthat
Learned Counsel for the Petitioners contended that in order to determine the character of an Order undersection2itwas
necessary to consider its consequences : firstly, the ouster of jurisdiction effected by sections 3 and 4, and secondly,the
liability of an owner to summary deprivation of possession under section 7.
A valid order under section 2 requires the following elements
(1) a recommendation by the Minister (and it is common ground that the President was himself the Minister concerned)
(2) an opinion formed by the President -
(i) in relation to an urban development project,
(ii) that lands are required for the purposes of such project,
(iii) that this requirement is urgent, and
(iv) that such project would meet " the just requirements of the general welfare of the People ".
Whether the expressway project is desirable, prudent, or otherwise, undoubtedly it is an urban development project "andit
is clear that for the particular expressway that has been proposed, some parts of the lands, describedintheScheduleto
the Order, are required. I need therefore to consider only the remaining elements.
It is convenient to reproduce here the relevant sections
"2. Where the President, upon a recommendation made by the Minister in charge of the subjectofUrbanDevelopment,isof
opinion that any particular land is, or lands in any area are, urgently required for the purpose ofcarryingoutanurban
development project which would meet the just requirements of the general welfare of the People, the President may, byOrder
published in the Gazette, declare that such land is or lands in suchareaasmaybespecifiedare,requiredforsuch
3. No person aggrieved by an Order made or purported to have been made under section 2 of this Act, oraffectedbyorwho
apprehends that he would be affected by any act or any step taken or proposed to be taken under orpurportingtobeunder
this Act or under or purporting to be under any other written law, in or in relation to any particular land oranylandin
any area, shall be entitled -
(a) To any remedy, redress or relief in any court other than by way of compensation or damages
(b) to a permanent or interim injunction, an enjoining order, a stay order or any other order having the effect of staying,
restraining, or impeding any person, body or authority in respect of -
(i) any acquisition of any such land or any land in such area
(ii) the carrying out of any work on any such land or in any land in any such area
(iii) the implementation of such project in any manner whatsoever.
4(1) The jurisdiction conferred on the Court of Appeal byArticle140oftheConstitutionshall,inrelationtoany
particular land or any land in any area in respect of which an Order under or purporting to be under section 2ofthisAct
has been made, be exercised by the Supreme Court and not by the Court of Appeal.
(2) Every (such) application .......... shall be made within one month......... and the Supreme Court shall hear andfinally
dispose of such application within two months........
7(1) Where it becomes necessary for the Government or any person, body or authority, forthepurposeofcarryingoutor
assisting in the carrying out of any Urban Development Project, to take possession of any particular land or any land inany
area in respect of which an Order under or purporting to be under section 2 of this Acthasbeenpublished,itshallbe
lawful for the Government or any such person, body or authority, to take stepsundertheprovisionsoftheStateLands
(Recovery of Possession) Act, and accordingly -
(a) the expression " State land " as defined in such Act shall include any land vested in or belonging toanysuchperson,
body or authority or which such person, body or authority is entitled to dispose ofand
(b) the expression " competent authority " shall include such person or the principalexecutiveofficerofsuchbodyor
(2) Every application under the State Lands (Recovery of Possession) Act, in respect of any particular land oranylandin
any area in respect of which an Order under or purporting to be under section 2 of this Acthasbeenpublished,shallbe
finally disposed of within thirty days....... and the court shall make all such orders as are necessary toensurethatall
persons are ejected from that land within sixty days of the making of such application ".
OUSTER OF JURISDICTION: SECTIONS 3 AND 4
It was contended on behalf of the Petitioners that section 3 not only took away the jurisdiction oftheDistrictCourtto
grant declarations and injunctions in respect of an order under section 2, but even the jurisdiction of the superiorcourts
that " any court " included the Supreme Court. My observations in Weeraratne v. Colin-Thome (4), were referredtothatthe
scope of the ouster provided for by section 9 (2) of the Special Presidential Commissions Law, No. 7 of1978,wasenlarged
by section 18 (A) 2 of the amending Act No. 4 of 1978 so as to preclude " any court " - and this wouldincludetheSupreme
Court - from staying, suspending or prohibiting the holding of any proceeding ". Those observations were only obiter, asthe
power of this Court to make an interim order was not in issue. However, Law No. 7 of 1978 (and section9(2)inparticular)
was pre-Constitution legislation, which was kept in force by Article 168(1), and the Bill in respect of ActNo.4of1978
was referred to this Court with a certificate that it was intended to be passed by the special majority requiredbyArticle
84, (and thus would have effect notwithstanding inconsistency with Article 140). Further a section 18A (2)ofthatStatute
disclosed an intention to affect the jurisdiction conferred by Article 140, quite unlike section 3 which is phrasedinvery
different terms. Section 3 must therefore be interpreted, as far as possible, in a manner consistent with Article 140.If"
any Court " in section 3 (a) is interpreted as including the Supreme Court, the onlyreliefwhichthatprovisionpermits
would be compensation or damagesthat view would render section 4 nugatory because Article140doesnotrefertothose
remedies. Clearly therefore section 3 (a) read with section 4 - quite apartfromtheconstitutionalquestion-wasnot
intended to apply to the superior courts. Section6putsthisbeyonddoubt,because"nothingcontainedinsection
3.......... shall. affect the powers which the Supreme Court may otherwise lawfully exercise [under]section4(1)',i.e.
the jurisdiction (conferred by Article 140) and transferred bysection4(1)totheSupremeCourt.ThelearnedDeputy
Solicitor General conceded that section 3 did not affect the jurisdiction conferred by Article 140.
I hold that section 3 does not affect the jurisdiction entrenched by Article 140, which has (n terms of the First
Amendment), been transferred to this Court by section 4(1).
SUMMARY DEPRIVATION OF POSSESSION: SECTION 7
Learned Counsel for the Petitioners submitted that section 7(1) empowers the Government,oranyotherperson,toobtain
possession of any lands, in respect of which a section 2 Order has been made, under the State Lands (Recovery ofPossession)
Acta landowner could thus be summarily dispossessed at any timeafterasection2Order.However,section7merely
authorises the Government or any other person " to take steps " under that Act. In view of the definition of " Stateland"
at that time notices could have been issued under that Act only in respect of land to which the State waslawfullyentitled
or which may be disposed of by the State and lands under the control of certain specified authoritiesand it wasonlya"
competent authority " who could issue such notices and take other steps. The effect of section7(1)wastoenablea"
person, body or authority " to take steps, even though not a " competent authority ", and paragraph (a) was enacted inorder
to widen the description of " State land "to include " any land vested in or belonging to any such person, body orauthority
hence notices can be issued and possession obtained only after the lands referred to inthesection2Orderbecameduly
vested in the State or such other person,bodyorauthority.ThelearnedDeputySolicitorGeneralagreedwiththis
construction of section 7, and submitted that possession could not be taken under that Act before the landswerevestedby
virtue of proceedings under the Land Acquisition Act or other statutes.
A section 2 Order thus does not have the drastic consequences suggested by learned Counsel for the Petitioners, and it ison
that basis that the validity of the section 2 Order has to be examined.
Learned Counsel for the Petitioners submitted that although the President wasalsotheMinisterconcerned,thereshould
nevertheless have been a recommendation, and that this should have been made after hearing the viewsofthoseaffectedby
and/or opposed to the projectand also that the recommendation should have made reference to those views in order toenable
the President to form an opinion after considering every aspect of the matter.
I hold that a hearing was not a pre-requisite for making a recommendation, for the same reasons which I havesetoutlater
in this judgment for holdingthatthePresidentwasentitledtoformanopinionwithoutapriorhearing.Itis
constitutionally permissible for the President to refrain from assigning a particular subjectorfunctiontoaMinister,
whereupon it would remain in his charge (under Article 44 (2)). I cannot interpret section 2 as requiringthePresidentto
make a recommendation to himself, and thereafter to form an opinion upon the same matterif his opinion was the same ashis
recommendation, the latter would be superfluousand it is absurd to think that his opinioncouldhavedifferedfromhis
recommendation. I hold that the President was notlegallyrequiredtomakearecommendationtohimself,anditwas
sufficient for him to form an opinion on the available material. The Order has been drafted with less than ordinary careand
precision, and mistakenly refers to a non-existent " recommendation of the Minister........however,inthecircumstances
this is a superfluity which does not vitiate the Order.
Urgency is always relativesometimes action may be required within hoursfor an enormous project, such as thisexpressway,
urgency may be a matter of months or years. Considering that the project had been in contemplation at leastfrom1983,and
had already been delayed for almost ten years, it is not unreasonable to consider, in the light of increasesinpopulation,
traffic, economic activity, etc., that speedy implementation was imperative. IholdthatthePresident'sopinionasto
urgency was not vitiated by any excess of jurisdiction or error of lawand that there was adequate materialonwhichthat
opinion could have been formed.
JUST REQUIREMENTS OF THE GENERAL WELFARE OF THE PEOPLE
Learned Counsel for the Petitionerssubmittedthatinforminganopinionthattheexpresswaywouldmeetthejust
requirements of the general welfare of the People, the President was obliged -
(a) to give a hearing to the people likely to be affected by the project
(b) to consider alternatives to the project
(c) to consider environmental and socio-economic factorsand
(d) to have regard to the large number of people affected and the need for their relocation.
The " People " referred to in section 2 includes not only such " People " as may beaffectedbytheproject,butthe"
People " of Sri Lanka. The phrase under consideration is virtually identical to that occurringinArticle15(7)ofthe
Constitution. It must include the national interest in general. In any event, any supposedrequirementofahearingmust
apply also to those likely to benefit from the project. Thus a hearing is obviously impractical, assomesortofalocal
referendum would be needed to ascertain the views of all those having a legitimate interest in the project.TheOrderhas,
of itself, no adverse impact on the citizen's property, liberty or livelihoodit does not deprive himof,oraffect,the
title to, or possession of, his propertyhis legal remedies under Article 140 are unimpairedhe isnotsubjectedtoany
disadvantage whatsoeverand he will have an opportunity of submitting objections when steps are takenundersection4of
the Land Acquisition Act. I am of the view that the Minister in making a recommendation, and thePresidentwhenmakingan
Order, under section 2, are determining policy, based on evidence of a general characterthere is no lis. The obligationto
give a hearing arises only later, when objections are submitted, and when there is a lisat that stage evidenceastothe
local situation, and the effect on individuals, has to be adduced and weighed.
It is of course possible that land-owners may be deprived of their right to submit objections if, instead of making anorder
under section 4, the relevant Minister makes an order under section 2 of the Land Acquisition Act,andsoonthereafteran
order under section 38, proviso (a). However, in the present case the land that is actually required for the expressway(and
therefore land the possession of which is urgently required) cannot be determined from the schedule to the section2Order,
since that schedule admittedly includes more land than needed. To determine what portions of land are required,itwillbe
necessary to enter those lands, survey and take and mark levels, set out and mark the boundaries of the proposedexpressway,
and do other necessary acts. An Order under section 2 of the Land Acquisition Act would be needed to do all this. It isonly
thereafter that the Minister would know which particular lands are required, and that possession must be taken urgently.The
learned Deputy Solicitor General concedes that an order under section 38, proviso (a) can bechallengedbycertiorari,as
held in Fernandopulle v. Minister of Lands and Agriculture (5).
The extracts produced from the 1984 report show that alternatives were considered - not only the alternative routesbutthe
railway as well. In the absence of other relevant portions of the report, it is impossible for ustosayeitherthatthe
material was inadequate or that the rejection of the alternativeswasunreasonable.LearnedCounselforthePetitioner
further submitted that one of the alternatives that should have been considered was the "noaction"alternatives-to
leave the status quo unchanged. Our jurisdiction is not to determine whether or not the expressway is necessary, andifso,
which alternative is the most suitable. It is for the Executive,underthelawsenactedbyParliament,tomakethose
decisions. The writ jurisdiction authorises this Court to examine whether jurisdiction has been exceeded,whetherthereis
error of law, and whether there has been procedural due process. Themeritsofadecisioncannotbequestionedmerely
because we consider that some other decision would have been betterwe can interfere only if it is unreasonable.
The available material does not in any way indicate that the decision to build the expressway was unreasonable butonthe
contrary, that it was necessary and urgentand there is nothing whatever to suggest that theselectionoftheparticular
route, or the rejection of the alternative options, was unreasonable.
Any expressway would inevitably cause a certain amount of inconvenience, (or loss or prejudice) to one group ofcitizensor
another, depending on its location. Neither the fact that a particular route causes inconvenience tosomepeople,northe
selection of one route (which causes inconvenience, or inconvenience toagreaternumberofpeople),inpreferenceto
another route, constitutes proof of unreasonableness. In any event, the Petitioners have notevenattemptedtoshowthat
some other route would be better for any reason whatsoever.
The next contention on behalf of the Petitioner was based on Part IV C of the National Environmental Act,No.47of1980,
introduced by amending Act No. 56 of 1988. Section 23AA requires that approval be obtained for the implementationofall"
prescribed projects ", from the appropriate " project approving agencies ┬░.Undersection231313,forthepurposesof
granting such approvalproject approving agencies are requiredtocallforanEnvironmentalImpactAssessmentreport
("EIA"), which is defined in section 33. It was submitted that a section 2 Order could not have been made in respectofthe
expressway before an EIA had been prepared, and that an essential component of an EIA wasan"environmentalcost-benefit
analysis " - something much more than mere financial cost-benefit analysis. This contention cannot succeed. Thoseprovisions
apply only to " project approving agencies " and " prescribed projects ", as determinedbytheMinisterbyOrdersunder
sections 23Y and 23Zno such Orders hadbeenmade.Further,section33makesitclearthatthesubmissionofan
environmental cost-benefit analysis is required only if such an analysis has in fact been prepared.
It was then urged that draft regulations under section 32, covering these matters, have been prepared and that the section2
Order had been made hastily before the regulations could be gazetted, not because of any real urgency, but simply toprevent
the expressway project becoming subject to those regulations. This ishighlyspeculative,andisnotsupportedbyany
evidence. The implementation of the project could reasonably have been considered urgenteven if regulations hadbeenmade
the expressway might not have been declared to be aprescribedproject andfinallytheschemeoftheActdoesnot
contemplate that an EIA should have been prepared and finalised before a section 2 Order in respect of the project.Sections
23AA and 23BBadequatelyprotectthepublicinterestinregardtoenvironmentalconsiderationsbypreventingthe
implementation of a project until an EIA is submitted and approval obtained.
However section 10 (h) does provide certain safeguards, even though the expressway is not a prescribed project.Oneofthe
powers, functions and duties of the Central Environmental Authority ("CEA") is to require thesubmissionofproposalsfor
new projects " for the purpose of evaluation of the beneficial and adverse impacts of such proposals ontheenvironment".
Section 24B authorises the CEA to issue directives in respect of a project " which is causing, or is likely to cause,damage
or detriment to the environment, regarding the measures to be taken to prevent or abate suchdamageordetriment" upon
failure to comply with such directives the CEA may apply to a Magistrate to order the temporary suspensionofsuchproject
until such measures are taken. The Respondents have stated that no action will be taken to obtainpossessionofthelands
required for the project until an EIA, satisfactory to the CEA, had been prepared and made available for public scrutinyfor
30 days. While that would be the appropriate stage at which to consider public representations as toenvironmentalfactors,
I must emphasise that the documents produced indicate that some considerationhasalreadybeengiventothesematters.
Noise, fumes and other forms of air pollution are inevitable with any road or railwaythe " no action "alternative,which
would leave the existing road as it is, will, as traffic increases with time, increase pollution, as well asexpense,delay
and inconvenience to all users of that road and residentswidening that road willentailmuchgreaterexpenseforland
acquisition, and will affect a much larger number of residents, with no appreciable reduction in pollution. Theconstruction
of an alternative road will necessarily reduce traffic, and consequently also pollution, congestion and delay inrespectof
the existing road. While the expressway will inevitably cause some amount of noise pollution, an inconveniencetoresidents
in the- vicinity, yet these will be comparatively very much smaller in numberthe documents produced also show anawareness
of the need to reduce noise and pollution by preventing the construction of buildings immediately adjacent totheroadand
by erecting suitable fences andbarriers.Itappearstomethereforethatenvironmentalfactorshavealreadybeen
considered, and that there will be a further opportunity for all interested persons to raise such matterswhentheamended
EIA is made available for public scrutiny. The section 2 Order cannot therefore be impugned on this ground.
Learned Counsel for the Petitioners focussed attention on one factor in particular - the need forresettlementofalarge
number of persons who would be displaced from their homes by the express way. This has already been considered, andin4R4,
inadequacies have been specifically pinpointed, and a supplementary EIA has been called for in accordance with thetermsof
reference, 4R5A. The Petitioners contend that 2,500 families willbeaffected:inthecontextofpopulationofthe
district, and the areas concerned, that cannot per se be regarded as unduly high,particularlyifsatisfactorystepsare
taken for resettlement.
It is not for this Court to determine whether, upon a consideration of all thesefactors,thedisadvantagesoutweighthe
advantages of the expressway, or whether in its view the expressway meets the just requirements ofthegeneralwelfareof
the People. There is adequate material to show that these factors have been considered, and willbeconsideredfurtherin
accordance with the relevant statutory provisionsthat the public will have an opportunity to express their viewsandthat
it was not unreasonable for the President to have concluded, when he made the section 2 Order, that the expressway is inthe
For these reasons the Petitioners application for CertiorariandProhibitionisrefused.Thequestionsraisedbythe
Petitioners in regard to environmental considerations demonstrate that they have been motivated primarily by concern forthe
public interest, and for that reason I make no order for costs.
The 1st Petitioner has another grievancepersonaltohimself.Itappearsfromhiscorrespondencewithsomeofthe
Respondents that at the time of the 1984 study, surveyors had demarcated the centre line of the proposed highway by meansof
cement pegshis property was not affected. However, a priest who had thereafter been expelled from a nearby temple thenput
up a building upon a land which was affected by the centre linein 1988 the priest planted a Bo-sapling next tothecentre
line pegs upon that land. In February 1992 the surveyors entertained the protests of the priest, and movedthecentreline
on to the 1st Petitioner's land. These matters are not relevant to the questions which arosefordetermination,andquite
properly were not agitated by learned Counsel for the Petitionersthe 1st Petitioner will be free to raise these mattersin
the appropriate proceedings.
GOONAWARDENA, J. - I agree.
PERERA, J. - I agree.