Legal Services and Laws of Sri Lanka
SLR - 1999 Vol.2, Page No - 110
P. R. P. PERERA AND OTHERS
GUNAWARDANA, J. AND
S.C. SPECIAL (WRIT)
APPLICATION NO. 2/98
C.A. APPLICATION NO. 545/98
MARCH 4 AND 11 1999
Writ of Certiorari - Findings and recommendations of the Special Presidential Commissions of inquiry Law, No. 7of1978as
amended - Sections 9 (1), (2) and 18A of the Law - Want or excess of jurisdiction - Breach of natural justiceanderrorof
law on the face of the record - Unreasonability - Article 140 of the Constitution.
The Special Presidential Commission of Inquiry whose finding and recommendation were challenged by thepetitionersheldan
inquiry and found the petitioner guilty of misuse or abuse of power on the ground that when hewasaCabinetMinisterhe
used undue influence and acting collusively with a fellowMinister,arrangedwiththerelevantMinisters,governmental
authorities and the Land Reform Commission to exchange an extent of 76 acres of land allowed to him and his daughterbythe
Land Reform Commission for a more valuablelandbeingapartitionofSiringapathaEstate.Itwasallegedthatthe
alternative land which the petitioner obtained by way of exchange under section 22 of the Land Reform Law had been valuedby
the Land Reform Commission with the approval of the Chief Valuer at Rs. 15,000 per acre in 1982 when in fact thelandought
to have been valued at rates ranging from Rs. 30,000 to Rs. 50,000 an acre.Itwasfurtherallegedthatthepetitioner
forcibly appropriated the 76 acres of alternative land from the southern endofMawattaDivisionofSiringapathaEstate
whilst the authorities were only agreeable to releasing land from the Northern end ofthatDivision.TheCommissionheld
that the petitioner thereby caused wrongful loss to the Governmentand recommended, under section 9(1)oftheSPCLaw,
that the petitioner be made subject to civic disability. The findingoftheCommissionwasgazettedon26.5.1997.The
petitioner filed his application on 12.6.1998.
1. The fact that consequent upon the recommendation of the Commission a notice of a Resolution for theimpositionofcivic
disability on the petitioner under Article 81 of the Constitution had been placed on the Order Paper and that the matterwas
pending before Parliament did not constitute a bar to the grant of certiorari.
(Bandaranaike v. Weeraratne (1981) 1 Sri LR 10 distinguished)
2. The application was not time barred by delay.
Per Fernando, J.
"Delay is never an absolute bar, particularly where the challenge is to jurisdiction. In any event, a plea of delaymustbe
considered on equitable groundsas for instance, whether the conduct of the petitioner indicates acquiescenceorawaiver
of his rights and whether any appreciable prejudice had been caused to the adverse party by that delay. Nothing of thatkind
has been alleged."
3. The jurisdiction which the court exercises under Article 140 of the Constitution is unfettered. It isnotrestrictedby
the provisions of sections 9 (2) and 1 8A of the SPC Law.
4. The findings and the recommendation of the Commission were vitiated for want or excess of jurisdiction in that -
(a) the report of the inquiry had been made with the participation of only two out of the three members whoconstitutedthe
Commission (Paskaralingarn v. Perera (1998) 2 Sri LR 169 followed).
(b) The inquiry against the petitioner for an alleged 'exchange'oflandbelongingtotheLRCwasinexcessofthe
Presidential Warrant. The relevant part of that Warrant specified only 'sales and leases of land" as being amenabletosuch
(c) The attempt by the Commission to settle the matter by suggesting to the parties thattheMawattalandforwhichthe
petitioner had still not been granted site may by consent be returned to the LRC showed that the Commissioners believedthat
there was nothing to report: the Commission thereby ceased to have jurisdiction to proceed with the matter.
5. The findings were in breach of natural justice in that -
(a) the Commission failed to call material witnesses including Minister Thondaman who had given approvalfortheimpugned
'exchange of the Mawatta landfor the demarcation of .land by theNationalLivestockDevelopmentBoardwhichwasthen
managing that landand for the retention by the petitioner of the portion of land which he had actually taken over.
(b) only two of the Commissioners (the 1st and 2nd respondents) made the decision. The other member who participatedatthe
inquiry at the hearing did not consider the evidence and the submissions. There was no justification for thisomission.The
decision was also made in haste and no reasons were given on some important issues.
Per Fernando, J.
"Natural justice is fairness in action. The inquiry against the petitioner failedtoreachminimumstandardoffairness
demanded of a judicial or quasi-judicial inquiry."
6. There were serious errors of law on the face of the record in respect of the manner inwhichtheCommissionconsidered
the evidence relating to the approval of the 'exchange', the identification of the portion of the land tobegiventothe
petitioner, the alleged forcible taking over of a different portion,theexistenceofaseedpaddyfarmontheland
surrendered by the petitioner and the valuation of the two lands. Some vital documents, many material items of oralevidence
were ignored and others were misconstrued.
Per Fernando, J.
"Considered in isolation each of these is a serious error of lawtaken cumulatively, they are so extensive and sograveas
to amount to a denial of a fair inquiry."
7. The Commissioners acted on the assumption that the automatic consequence of a finding that there was a misuse or abuseof
power must be the recommendation for the impositionofcivicdisability.Theyhadwronglyassumedthattheyhadno
discretion in the matter. The impugned recommendations are arbitrary and unreasonable.
8. The findings of the 1st and 2nd respondents cannot stand and the recommendations are necessarily null and void.
Cases referred to:
1. Cooray v. Bandaranaike SC Special (Writ) No. 1/98 SC Minutes 5th February, 1999.
2. Paskaralingam v. Perera (1998) 2 Sri LR 10.
3. Bandaranaike v. Weeraratne (1981) 1 Sri LR 10.
4. Sabapathy v. Dunlop (1935) 37 NLR 113 129.
5. Senanayake v. de Silva (1972) 75 NLR 409, 432-433.
APPLICATION for a writ of certiorari against the Special Presidential Commission of Inquiry.
E. D. Wickremanayake with Gomin Dayasiri, J. Kulathileke and Ms. Priyanthi Gunaratne for the petitioner.
K. C. Kamalasabayson, PC, SG, with Shavindra Fernando, SSC and V. Corea, SC for the respondents.
April 27, 1999
This is an application by the petitioner for Certiorari to quash the findings and the recommendations made against himbya
Special Presidential Commission of Inquiry.
Pursuant to section 2 of the Special Presidential Commissions of Inquiry Law, No. 7 of 1978 (as amended),byWarrantdated
2.2.95 HE the President established a three-member Special Presidential Commission of Inquiry ("the Commission"),consisting
of the 1st to 3rd respondents, namely Justice P. R. P. Perera, Judge of the Supreme Court,Chairman,JusticeH.S.Yapa,
Judge of the Court of Appeal, and Justice F. N. D. Jayasuriya, Judge of the CourtofAppeal(thenaJudgeoftheHigh
Court). That Warrant authorised the Commissioners:
"to inquire into and obtain information in respect of the management, administration and conduct ofaffairsofthepublic
bodies referred to in the Schedule hereto during the period commencing on July 24, 1977 and ending on August16,1994,and
more specifically in respect of the transactions, activities and matters relating to such public bodies referred tointhat
Schedule or the Government, and
(a) whether there has been any malpractice or irregularity, or non-compliance with ordisregardoftheproperprocedures
applicable in relation to, such management, administration and conduct of affairs or to any such transaction oractivityof
such public body or the Government, resulting in loss, damage or detriment to such public body or the Government
(b) whether any contractual obligations relating to anysuchtransactionoractivityorofsuchpublicbodyorthe
Government, have been entered into or carried out, fraudulently,recklessly,negligentlyorirresponsibly,resultingin
loss, damage or detriment to such public body or the Government
(c) whether there has been non-compliance with, or disregard of, the proper procedure applicable to thecallingoftenders
or the entering into of agreements or contracts, by such public body or the Government
(d) whether such non-compliance with, or disregard of proper procedures has resulted in -
(i) ' the improper or irregular or discriminatory award of any such tender for the purchase orsaleofpropertyincluding
shares by such public bodies or the Government, or the provisionsofanyservice,toorbysuchpublicbodyorthe
(ii) loss, damage or detriment to such public body or the Government, or the incurring of anyunjustified,unreasonableor
unwarranted expenditure on any transaction or activity
(e) whether proper independent valuations had been obtained, where relevant, in respect of any such transaction
(f) whether proper procedures and adequate safeguards have been adopted to ensure that such publicbodyortheGovernment
obtained the optimum price or benefit for the purchase or acquisition or sale of property includingsharesbysuchpublic
body or the Government, or the provision of any service to or by such public body or the Government
(g) whether terms of payment which have been agreed, with the purchaser or seller or owner of such property includingshares
by such public body or the Government for the provision of any service to or by such publicbodyortheGovernment,have
been detrimental or disadvantageous to such public body or the Government
(h) the person or persons responsible for the act, omission, or conduct, which has resulted in such loss ordamagetosuch
public body or the Government in respect of any such transaction or activity
(i) whether any inquiry or probe into any of the aforesaid matters had been obstructed or prevented in any manner,resulting
in loss or damage to such public body or the Government and person or persons responsible for such obstruction
(j) the procedure which should be adopted by such public bodiesortheGovernmentinthefuturetoensurethatsuch
transactions or activities are carried out with transparency and with proper accountabilitywithaviewtosecuringthe
optimum price or benefit for such public body or the Government
(k) whether there has been -
(i) misuse or abuse of power, influence, interference, fraud, corruption and nepotism in relation to any such transactionor
activity or matter
(ii) non-compliance with or contravention of, any law written or otherwise on the part of anyPrimeMinister,Ministeror
other public officer or other person or persons as defined in Law No. 7 of 1978,asamendedbytheSpecialPresidential
Commissions of Inquiry (Special Provisions) Act No. 4 of 1978, and Act No. 38 of 1986, or other person orpersons,andthe
extent to which such Prime Minister, Minister or other public officer, or person or persons is or areresponsibleforsuch
non-compliance or contravention
And to make recommendations with reference to any of the matters that havebeeninquiredintounderthetermsofthis
warrant." [emphasis added]
The Warrant required the Commissioners to transmit to the President within six months reports or interim reports settingout
the findings of their inquiries and their recommendations.
It is necessary to reproduce to some parts of that Schedule:
" 1. Air Lanka Ltd. Purchase of Airbus Aircraft.
2. Hotel Developers (Lanka) Ltd.Matters relating to the Hilton
Hotel Project and acts of
commission and omission by.
. . . . .
. . . . . . . . . . . . .
6. Urban Development AuthorityMajor sales and leases of property.
7. Sri Lanka Ports AuthorityAcquisition of lands, their valuations
. . . and transactions of
ten million rupees and over.
8. Ceylon Electricity Board Transactions of ten million
rupees and over . . .
. . . . . . . . . . . . .
17. Land Reform CommissionSales and leases of land.
18. Government Contracts and tenders of ten million [emphasis added]
rupees and over, and sales and leases of land by the
The Commission held several ex parte "preliminary hearings" commencing on 11.9.95, and then issued aNoticedated13.11.95
under section 9 of the Law requiring the petitioner to show cause why he should not be found guilty ofmisuseorabuseof
power. After inquiry, an interim report (the "interim report") dated 2.3.97 was submitted to thePresidentsignedonlyby
the 1st and 2nd respondents, and not by the 3rd respondent although he continued to be a member of the Commission. Therewas
then published in the Gazette of 26.5.97 a brief summaryofthatreportofwhichthefollowingisrelevanttothis
"The following contents of the report dated 2nd March, 1997,oftheSpecialPresidentialCommissionofInquiry,1995,
appointed to inquire into alleged malpractices . . . are published as directed by Her Excellency the President inaccordance
with section 9 of the [Law] . . .
ALLEGATION RELATING TO WRONGFUL EXCHANGE OF76ACRESOFPANIKANKULAMINTHEANURADHAPURADISTRICTBELONGINGTOTHE
[PETITIONER] IN EXCHANGE FOR 76 ACRES OF LAND AT MAWATTA DIVISION OF SIRINGAPATHA ESTATE, DANKOTUWA, BELONGINGTOTHELAND
The respondent in this case Tenahandi Wijayapala Mendis was required to show cause why heshouldnotbefoundguiltyof
misuse or abuse of power, in that "he did whilst holding office as a Cabinet Minister of the Government of Sri Lankabetween
the period 1.10.1980 and 26.2.1990 directly or indirectly induce Hon. E. L. Senanayake, thethenMinisterofAgricultural
Development and Research, Hon. S. Thondaman, the then MinisterofRuralIndustrialDevelopment,Mr.K.D.M.Chandra
Bandara, Member of Parliament, officers of the said Ministries, officers of theLandReformCommissionandtheNational
Livestock Development Board, to permit him to surrender an extent of about 76 acres of land called Panikankulamsituatedin
the Anuradhapura District belonging to him and his daughter Manouri Mendis and obtaining in exchange an extentof76acres
of land from the Mawatta division of Siringapatha Estate situated at Dankotuwa inthePuttalamDistrict,therebycausing
wrongful loss to the Government of Sri Lanka and/ ortheNationalLivestockDevelopmentBoardand/ortheLandReform
The Findings :
Upon a careful consideration of the evidence adduced before this Commission we are satisfied that therequestmadetothe
Chairman, LRC by Mr. Chandra Bandara in his capacity as MP Anuradhapura West to recover the land called Panikankulam forthe
purpose of converting it into a Seed Paddy Farm (vide P5A), was not a genuine request, but asham.Wearealsosatisfied
that in the context of the relationship which existed between the respondent and Mr.ChandraBandarawhoheldofficeas
Cabinet Minister and Deputy Minister, respectively, in theGovernmentthattheyhadactedincollusiontoachievea
different objective in recommending to the LRC the take-over of the land at Panikankulam belonging to the respondent.Itis
clear on the evidence before us that when Mr. Bandara made this request for the ostensible purposeofsettingupaPaddy
Seed Farm on Panikankulam, he was acting in collusion with the respondent who had initiated this courseofactionandwas
determined to achieve his real objective of procuring a portion of Siringapatha estate for himself and his daughter whichon
the evidence before the Commission was much morevaluablethanPanikankulamwhichtherespondentofferedinexchange
Having regard to the totality of the evidence of this case, we are firmly of the view that had it not been forthisdubious
and highly questionable exchange of land under section 22 of the Land Reform CommissionLawmootedbytherespondentin
collusion with Mr. Chandra Bandara, the then MP for Anuradhapura West, 76 acres of Mawatta estate would well havebeensold
for a sum of over Rs. 2,665,000 in the open market.
We hold, therefore, that wrongful loss has indeed been caused to the LRC and the Government of Sri Lanka,byalienatingan
extent of 76 acres from Mawatta division, Dankotuwa, belonging to the LRC in exchange for 76 acres of Panikankulam whichhas
been valued at Rs. 998,500 by the then Chief Valuer as the commercial value of this property.
We hold that the allegation set out in the Show Cause Notice has been established.
In view of our finding in respect of the allegation set out in the Show CauseNotice,weholdtherespondentguiltyof
misuse or abuse of power under the provisions of section 9 (1) of the Special Presidential Commissions of Inquiry Law, No.7
of 1978, as amended by the Special Presidential Commissions of Inquiry (Special Provisions)Act,No.4of1978andthe
Special Presidential Commissions of Inquiry (Amendment) Act, No. 38 of 1986.
We, accordingly, recommend that the respondent Tenahandi Wijayapala Hector Mendis be made subject to CivicDisabilityunder
the provisions of section 9 (1) of the aforesaid Special Presidential Commissions of Inquiry Law, No. 7 of 1978,asamended
by the Special Presidential Commissions of Inquiry (Special Provisions) Act, No. 4of1978andtheSpecialPresidential
Commissions of Inquiry (Amendment) Act No. 38 of 1986."
The petitioner filed an application dated 12.6.98 in the Court of Appeal praying for Certiorari to quash thosefindingsand
recommendationson 16.6.98 that Court made order transferring the application to this Court in accordance with section18A
and on 22.6.98 this Court issued notice on the respondents.
The respondents did not plead, and Mr. Kamalasabayson on their behalf did not contend, that our jurisdictionwasinanyway
restricted by the provisions of sections 9 (2) and 18A of the Law.IrespectfullyagreewithDheeraratne,J.thatthe
jurisdiction which this Court exercises under Article 140 is unfettered (Cooray v. Bandaranayake(1)).
The Facts :
It is necessary to state briefly the facts relating tofivemattersinparticular:theapprovalinprincipleofthe
"exchange", the identification of the portion of land to be given to the petitioner, the forcible taking over of adifferent
portion by the petitioner, the existence or establishment of a seedpaddyfarmonthelandtobesurrenderedbythe
petitioner, and the basis of valuation, as well as the valuation, of the two lands sought to be exchanged.
The following summary of the facts is based on theinterimreport,supplementedbyotherrelevantitemsoforaland
documentary evidence which, though led in the course of the proceedings before the Commission, have not been referredtoin
the interim reportthe latter evidence is italicized (and references are given to the documentsand/orthepagesofthe
When the Land Reform Law, No. 1 of 1972, came into operation the petitioner declared ownership of 250 acres of a landcalled
Panikankulam, of which he was entitled to retain only 50 acresand he was permitted to effect an "inter-family transfer"of
26 acres to his daughter. This was the 76 acres (the "Panikankulam land") which was sought to be exchanged for 76 acres(the
"Mawatta land") from Mawatta division of Siringapathaestate.However,thestatutorydeterminationinrespectofthe
petitioner's 50 acres was Gazetted by the LRC only on 10.7.90. ft is not known whether and when thepetitionerexecutedan
inter-family transfer in favour of his daughter, and there seems to have beennosurveyplanidentifyingtheparticular
allotment for such inter-family transfer (proceedings of 3.10.95, page 17, and page 11850).
By letter dated 28.10.80, Chandra Bandana, MP Anuradhapura West, requested the Chairman, LandReformCommission(LRC),to
"recover" the Panikankulam land situated in his electorate for conversion into a paddy seed farm. Thepetitionerbyletter
dated 30.10.80 informed the then Minister of Agriculture, under whom the LRC was, that he had no objection tothatrequest,
provided alternative land was given from Siringapatha estatenothing seems to have happened for over twomonths,untilon
23.1.81 the Minister referred that letter to the Chairman, LRC, with the endorsement "I approve".Thatestatewasinthe
possession of the National Livestock Development Board (NLDB) which was managing it on behalfoftheLRC theNLDBcame
under the Ministry of Rural Industrial Development (RID)and the Chairman,LRC,byletterdated29.1.81requestedthe
Secretary, Ministry of RID, to ascertain from the Chairman,NLDB,whether76acresfromSiringapathaestatecouldbe
The interim report does not refer to any action taken by the LRC thereafter, between February, 1981 and January, 1982.
On 31.3.81 the petitioner handed over possession of the Panikankulam land to the District Authority of the LRC(R1andR13
Thereafter, the petitioner wrote P6B dated 23.9.81 to the Minister, RID, referring to the request made bytheLRCtohand
over 76 acres to him, and asked him to expedite thematter.ByP6Cdated1.10.81,thelatter'sCo-ordinatingOfficer
forwarded P6B to the Chairman, NLDB.
The Chairman, NLDB, wrote on 28.10.81 to the Secretary, RID, stating that Siringapatha estate was oneofthebestcoconut
lands, and that releasing 76 acres from that estate would be detrimental to the NLDB. That reply wasgivenbyhimwithout
any investigation into the feasibility of releasing the land requested (27.2.96, pages7351-2).Accordingtotheinterim
"after he despatched [that] letter he was summoned for a meeting attheMinistryofRIDwhereMinisterThondaman,the
[petitioner] and Festus Perera were present. Subsequent to [that] letter [the Chairman] hadmetthe[petitioner]andhad
discussions . . . and as [the petitioner] had expressed his willingness to accept 76 acresfromMawattadivision,hehad
reluctantly agreed to release 76 acres from that division and informed the Secretary, RID, accordingly byhisletterdated
That letter dated 11.1.82 does not manifest any "reluctance', but merely states that the petitioner agreed to take76acres
from Mawatta division. By another letter dated 25.1.81 the Chairman informed the Secretary,RID,thatthepetitionerhad
agreed to take that extent from the northern end.
The Secretary, RID, testified that, some time before 20.1.82, he was summoned to attend another meeting,atwhichMinister
Thondaman, the petitioner, the Chairman, NLDB, and Festus Perera were presentand that "theMinisteragreedtogive[76
acres from Mawatta] subject to the decision of the Chairman, NLDB, whowoulddetermineaportionoflandfromMawatta
division which was not essential for his development work". The Secretary, RID, wrote on 20.1.82 to the Chairman,LRC,that
they were agreeable to release 76 acres from Mawatta, the location and boundaries to be decided by theNLDBsoasnotto
interfere with its activities.
On 24.1.82 the petitioner had visited Mawatta division, and he had agreed to take 76 acres from the northernpart thatis
confirmed in a letter dated 25.1.82 from the Chairman, NLDB, to theSecretary,RID.Therewasalsotheevidenceofa
Director, LRC, that he had informed the petitioner by letter dated 3.2.82 that the demarcation of the boundariesofthe76
acre block would be done by the NLDB.
The interim report states the conclusion that the NLDB and its Chairman:
"have from the very outset been opposed to the proposal to release any land from Mawatta division tothe[petitioner].The
evidence discloses that it was with a great degree of reluctance that the Chairman ultimately agreed to release a portionof
land from Mawatta division, on the specific condition that the [petitioner] agreed to theNLDBdemarcatingtheboundaries
starting from the northern end."
However, the interim report made no reference to the Chairman's letter R5 dated 29.10.81 totheSriLankaLibya-Livestock
Development Co. Ltd. (SLLLDC), regarding a request for the release to that Company ofthatportionoflandfromMawatta
division which contained the existing poultry unit. in that letter theChairmanstatedthatthatsectioncouldnotbe
released (because it contained buildings, etc.), but offered "equally suitablelandoflesserproductivityavailablein
close proximity", namely, a portion of Field No. 4 comprising 130 acres which consisted entirely of old coconutwhichwould
soon require replanting. What the petitioner later took seems also to have been from Field No 4. (page 7440).
That omission is all the more significant because the interim report did mention in another context - thevaluationofthe
Mawatta land - that the balance portion of Mawatta estate [Division ?] had in fact been sold by the LRCatRs.30,000per
acre to that Company in 1983. The interim report failed to consider why the Chairman had been willing torelease130acres
to SLLLDC on 29.10.81, although just the day beforehehaddeclined,withoutanyinvestigation,toreleaseanyland
whatsoever from Siringapatha estate to the petitioner. The 1st respondent asked him:
"So without any type of investigation your first reaction was to inform him that it cannot be released?
A: Yes, because we depend on the income of coconut to run the farm." (27.2.96, page 7352).
According to the Manager of Siringapatha estate, in February, 1982, the NLDB had instructedhimtoassistasurveyorto
demarcate the 76 acres from the northern endhe met the surveyor in the company of thepetitioner,andclearlyindicated
the relevant areahowever, he was not present at the surveybut he had given his Assistant Manager specificdirectionsto
instruct the surveyor to demarcate from the northern end. (The Assistant Manager did not giveevidence.)Whenhewentto
Mawatta division to hand over, he found that, contrary to instructions, land had been demarcated from the southernend,and
the petitioner's men had already started fencing that portion with barbed wire and railway sleepers.Thesubstanceofhis
evidence was that it was due to the pressure exerted upon him by the petitioner that he handed over that portion totheLRC
officials (who in turn must have handed over possession to the petitioner).
The surveyor testified that he had been instructed by the Assistant General Manager, NLDB, to demarcate76acresfromthe
northern endthat he found that he could not carve out one contiguous block of 76 acres thatheinformedtheAssistant
Manager, who told him to get instructions from the NLDBand that he then met the Assistant General Manager, NLDB, whoasked
him to carve out one contiguous block of 76 acres starting from the western end. (The Assistant GeneralManager,NLDB,was
not called to give evidence.) It was also his evidence that soon thereafter the Chairman, NLDB, entrusted to himthesurvey
of the rest of Mawatta division as well - an indication that the Chairman was not dissatisfied with him (pages11869,12069).
The 1st and 2nd respondents did not accept his evidence.
The Chairman, NLDB, wrote on 18.2.82 to the Chairman, LRC, recording what had happened, and"disassociatingourselveswith
this release". He said he had already brought this to the notice of his Minister, who summoned him foryetanothermeeting
on 3.3.82 at which the petitioner was present, and directedhimforthwith"toinspecttheportionoflandwhichthe
[petitioner] preferred to take and consider whether [that land] could be released to him":
"He had accordingly visited Mawatta [on 4.3.82 and] . . . saw to his utter surprise that an extentofabout76acreshad
already been fenced with railway sleepers and barbed wire. This was not theportionoflandwhichthe[petitioner]had
agreed to take from the northern end. He had on this day seen the [petitioner] also . . . [whohadrequestedhim]notto
take any action against the Assistant Manager [who had permitted the land to be fenced]."
He returned the same day, and reported to Minister Thondaman who appeared to be very surprised. Thereafter, he hadaddressed
a letter dated 12.3.82 to the Minister:
". . . stating that a major portion of the 76 acres earmarked had already been barb wired and any adjustments atthisstage
would require relocating these fences, and also having regard to certain other matters in the context of this demarcationhe
had allowed the status quo to remain as proposed by the [petitioner] since the advantagesthatwouldaccruetotheFarm
would far outweigh the disadvantages resulting from the readjustment.
In summarizing that letter, the interim report fails to mention that the purpose of that visit, as disclosed by thatletter,
was only to see whether some minor adjustment could be made. I will refer to that matter later.
The assessment of the evidence of the Chairman, NLDB :
The interim report states that the gist of the Chairman's testimony was:
". . . to the effect that if the finaldecisioninregardtotheallocationoflandfromMawattadivisiontothe
[petitioner] lay with him, he would undoubtedly have refused this request. He had consistently objectedtothiscourseof
action. He was compelled to succumb to the pressures exerted on him both by Minister Thondaman and the[petitioner]andto
quote his own words, he ultimately 'surrendered'. In the circumstances, he had no other alternative."
Minister Thondaman was not called to give evidence.
The 1st and 2nd respondents had little hesitation in accepting the Chairman's evidence, for the reason that:
"We were impressed with the frank and forthright manner in which [he] testified ...Hewasatruthfulwitnesswhose
evidence we accept without reservation. He was 82 years old at the time he testified and although hisrecollectionmaynot
have been perfectly accurate in certain instances due to his age, we had no reason to doubt his integrityorhistestimony
at any stage in spite of the very severe cross-examination . . . Besides his evidence hasbeencorroboratedbyboth[the
Secretary, RID, and the Director, LRC] and the documentary evidence produced in this connection."
However, even a cursory examination shows not only that his evidence was vague anduncertain,andevencontradictory,on
important aspects, but also that it was inconsistent with letters contemporaneously written by himindeed, the recordshows
that the Commissioners themselves realised these infirmities even while he was giving evidence. None ofthesemattershave
even been referred to in the interim report.
The 1st and 2nd respondents glossed over the defects in his evidence, attributing them to his being82yearsofage.Mr.
Wickremanayake complained that even that was incorrect, because twice - and both times in answer to the 1st respondent -the
witness had given his age, as 75 (on 12.9.95) and 76 (on 29.2.96). While there was no reason to doubt theintegrityofthe
witness, there were serious shortcomings both in his evidence, and in its assessment, and to that I must now turn.
In his ex parte evidence-in-chief,theChairman,NLDB,madevariousassertions(whichwerelaterprobedincross-
examination). He described Siringapatha estate:
"That was prime coconut land well-fertilized and yielding about 4,000 - 5,000 nuts per acre. ItwasadjoiningtheCoconut
Research Board land more or less.
Chairman : So this is about the best land?
A : Best land." (12.9.95, page 11) [emphasis added throughout]
A Ittle later counsel asked:
"Was the area that was fenced the best area in the Mawatta division or. . .?
A : The entire division was a good estate. So I cant say it is the best portion.' (12.9.95, page 16)
But the witness quickly reversed himself: "I was surprised when he had taken from the bestand a fewminuteslateragreed
with the 3rd respondent:
"Q : 76 acres of Mawatta from the middle which was the best part of Mawatta ? A: Yes . . ." (12.9.95 page 21)
Twice the 1st respondent asked him, "Left to yourself you would not have given any part of Mawatta?'(12.9.95,pages21-
22), and the witness agreed, explaining on the second occasion:
". . . I would never have given. [On another occasion a late Minister] wanted some [forty acres of prime] land and Irefused
to give. So then he said that he will break my legs when I come to [his electorate] . . .Ireportedthematterto[my]
Minister, and then he reported to [the then President]. Then he denied . . . thenameetingwassummonedand[thelate
Minister] was asked to apologize to me."
It is not surprising that the witness asserted (page 21) that he would not have been influenced by the petitioner.
The Chairman, NLDB, repeatedly claimed that he had not beenaware,evenaslateasthemeetingof3.3.82,thatthe
petitioner had taken over 76 acres otherwise than from the northern end ofMawattadivision(aspreviouslyagreed) and
persisted in that position despite being shown his own letter of 18.2.82 by which he had protested to the Chairman, LRC:
"That means [the petitioner] had taken over in February?
A : I wasn't aware of this even at the meeting on the 3rd of March . . ."
". . . Q : On 10.2.82 [18.2.82] you have written to the Chairman, LRC . . . protesting . . .
Chairman : There is a little controversy [sic] in that. Now by the letter of 10.2.82 [18.2.82 the witness] hasprotestedto
the Chairman, LRC. Then [his] evidence was that at the meeting of the10th[3rd]ofMarchhewasnotawarethatthe
[petitioner] had taken over the land.
Hon Jayasuriya: Only when he went on inspection [4.3.82] he discovered it . . . .
Q: How did you write a letter on the 10th [18th] February protesting against this?
A : The LRC people had come to this land.
Q : You were aware that possession had been taken over on 5th February, apparently, you knew at that time?
A : I cant recollect, it is a little complicating.
Q : Why did you go on the 4th of March?
A : That I can remember because the Minister asked me to go and see whether we can give some land from Mawatta.
Q : So this is the other portion that had been taken over?
Chairman : The other portion is?
Mr. Premaratne: The best portion of the land which is fenced.
Chairman : On the 10th [18th] of February, 1982 [the witness] protested to the Chairman, LRC . . . therefore [he]wasaware
that the [petitioner] had taken over a certain portion of the land. l cant reconcile that with his evidenceonthe3rdof
March 1982, when he was directed to go there on the 4th he was surprised that [the petitioner] had already taken possession.
Hon. Jayasuriya: The two positions are inconsistent." (12.9.95 pages 25, 28-29).
The 1st respondent then intervened with a series of leading questions, forcefully putting a position to the witness:
"Anyway, what you say is by 10th of February, 1982, you were aware that [the petitioner] had taken some portion of the land?
A : Some portion of the land. Yes.
Q : When you went there in March you found that he had taken the best portion of the landwhichhadalreadybeenfenced,
that is what you are saying?
A : Yes.
Q : That is what surprised you, not the fact that he had taken possession. Is that your position?
A : Yes." (12.9.95, pages 29-30).
Almost immediately thereafter the 1st respondent turned to the letter dated 12.3.82 which the witness had written to the
Minister after his visit to Mawatta on 4.3.82 :
"Q : To get back to your letter of 12.3.82, you wrote to the Minister a strong protest informing the Minister thatthebest
portion of the estate had been taken over and had been fenced with sleepers, barbed wire and so on ?
A : Yes.
(Mr Premaratne marks the letter dated 12.3.82 as P21)"
There were three questions rolled up: that his letter was a protest, that it referred to the bestlandhavingbeentaken,
and that it had been fenced. Was the answer "Yes" a reply to all three questions, or only to the last?
"Q : To this letter to the Minister did you get a reply?
A : No.
Q : What was the reaction of the Minister to that letter?
A : He did not reply that letter nor did the Secretary, but after that he would have given me verbal instructions.
Q : To fall in line?
A : I think so. I can't say something of which I am not very sure. That is what must have happened thereafter.
Q : Anyway, after your protest of the 12th of March, 1982, you ceased to protest any further?
A : Yes, there was no point in protesting." (12.9.95, pages 31-32)
Naturally, those matters were probed in cross-examination. On many matters, the Chairman's recollectionwaspoor.Thushe
could only remember meeting the petitioner once, on 3.3.82 (27.2.96, pages 7363-4, 7366).WhenshownhisownletterP16
dated 11.1.82 which referred to discussions with the petitioner, he said: "I am very sorry. I cant remember whatdiscussions
I had after so many years" (page 7365). Nevertheless, the interim report baldly records that he testified to three meetings.
He was asked whether the northern portion of Mawatta was more or less the same as the portion which the petitionertook,in
regard to the fertility and the age of the plantation. Before he could answer, the 3rd respondent intervened:
Q : In the same condition?
A : Same condition. But this land is very close to the Assistant Manager's quarters, office and other buildings. That was
one of the objections . . .
Q : That is the only unsatisfactory feature about it?
A : Yes.
Q : In other respects you have have nothing to say?
A : And there is a water course going in the centre where the cattle [go for] water." (page 7443).
Turning to his evidence-in-chief of an annual yield of 4,000 to 5,000 nuts per acre, he was shown the relevant annualreport
of the NLDB, and was forced to concede that the average yield per acrefortheentiretyofSiringapathaestateatthe
relevant time was only 3,064 nuts per acre. He also admitted that no part of Mawattadivision"moreorlessadjoinsthe
Coconut Reseach Board land" (page 7537).
The witness had previously fallen into line with the leading questions put to him(on12.9.95,pages29-30)bythe1st
respondent, as to when he became aware that the petitioner had taken possession: that by10thofFebruary,1982,hewas
aware of this, and that his surprise was only because the petitioner had taken the best portion. But on 29.2.96, under cross-
examination, he again reverted to the position that until 4.3.82 he was not aware that thepetitionerhadtakenoverany
land from Mawatta. The 1st respondent himself then pointed out the contradiction to him - but to no avail:
"Q : How do you reconcile your evidence . . . ?
A : On the 3rd of March if I was aware of this whole situation that the land actually is physically taken over, then Iwould
have told my Minister at that time that there is no point in my visting Mawatta to select land . . .
Hon. Yapa : But it is difficult to reconcile. You say there was a meeting on 3rd March and you were asked to goandearmark
the land to be given to [the petitioner]?
A : Yes.
Q : By then you have already written this letter . . . that already land has been ear-marked. How do you reconcile thesetwo
A : (Witness silent)." (pages 7541-4).
The cross-examination moved on to the letter dated 12.3.82 which the Chairman wrote to the MinisteraftervisitingMawatta
on 4.3.82. Although he had readily agreed (on 12.9.95) in answer to a leading question put tohimbythe1strespondent,
that he wrote a strong protest to the Minister that the best portion had been taken over, he was askedtoreadtheletter
and identify the protesthe could not. It was then put to him that the only purpose of his visit was toironoutaminor
aspect of the demarcation (ie to provide a corridor to connect two portions of the land which then remained withtheNLDB).
Before he could answer, the 1st respondent told him to read the letter, and asked him:
". . . You were asked to visit the place and to resolve that problem [relating to the corridor]. Isn't that what the letter
A : Yes.
Q : So is that correct?
A : Yes. I have written it. It should be correct." (page 7548).
It then became clear that by that letter the Chairman had not protested at all, but on the contrary hadgivenfivereasons
why the status quo should not be disturbed. The 1st respondent then told the witness: "this is theimpressionwegetfrom
your letter". The witness, weakly, suggested that he had intended to convey a protest, but did not do so directly becausehe
could not go against a Minister (page 7550). Nobody reminded him how firmly he had stood up to that otherMinisterwhohad
even threatened to break his legs.
Finally, he gave up the position that he had protested because the best land had been taken: he agreed (page7552)thatas
far as the land was concerned whether it was from the northern end or from the place where the petitioneractuallygotit,
it was the same type of land. Both as to his reluctance to part with the land, and as to how good the landreallywas,the
most relevant contemporaneous documentary evidence was his letterR5dated29.10.81(referredtoearlier),whichtoo,
somehow, escaped the attention of the 1st and 2nd respondents.
The valuation :
The lands sought to be exchanged had been valued at the relevant time byavaluer,Somathilleke,whowasthenDirector
(Valuation and Compensation), LRC. His valuation was on the basis of the agricultural value of thetwolands,becausehis
view was that a valuation for the purpose of alienation by way of exchange under section 22 of the Land Reform Law shouldbe
on that basis. His position was that land alienated under that section could only be used for the limitedpurposessetout
therein. According to him, on that basis, the Mawatta land was worth Rs. 99,000 more: and that sumthepetitionerpaidto
the LRC. He also stated that his valuation had been approved by the Chief Valuer (page 4077).
However, in June, 1995, the Commission had requested the Chief Valuer to value the lands as at 1982. He assessedthemarket
values: the Mawatta land at Rs. 2,665,000 (four blocks at rates ranging from Rs. 30,000 to Rs. 50,000 per acre) and 65acres
of the Panikankulam land at Rs. 660,000. The latter valuation had been made although he had notbeenabletoidentify26
acres of the Panikankulam land correctlyand he subsequently made a hypothetical valuation of its open market value, atRs.
The interim report does not mention that during the ex parte stage the 1st respondent had told the Solicitor-General, who
was assistingthe Commission, that it may be useful to call somebody from the LRC, either the Chairman or someone else,
"particularly to clarify this position in regard to exchanges which fall outside the ambit of the Law"and that in fact R.
S. Ramanayake, who had been the Chairman from 1978 to 1982, was called by the Solicitor-General for that purpose. Reference
was made to his evidence only in quite a different context, namely the existence of the seed paddy farm.
In his evidence, Ramanayake stated that "when property was alienatedbytheCommission,foragriculturalpurposes,the
valuation was always on an agricultural basis"that although valuations were done byanofficeroftheLRC,theywere
reviewed by the Chief Valuerand that the maximum price at which land was alienated from Siringapatha estate was Rs.15,000
per acre, and that was for a 15 acre block abutting the main road. (pages 10841, 10859 and 10871)
It is without considering that evidence as to the practice of the LRC during the period 1978 to 1982 thatthe1stand2nd
respondents proceeded on the basis that it was market value which was relevantthe evidence of the valuer and ofRamanayake
as to approval by the Chief Valuer was not evenmentioned andwithoneminorexception,thepricesatwhichother
allotments from Siringapatha estate had previously beenalienatedwerenotconsidered.Theinterimreportmentionsa
subsequent alienation, of "the balance portion of Mawatta estate [which] was sold by the LRC at Rs. 30,000 peracretothe
SLLLDC in 1983", but fails to refer to and consider the fact that the Chief Valuer took rates as high as Ps. 50,000 peracre
in determining the 1982 value of the 76 acres given to the petitioner.
The interim report cited an amendment to section 22 of the Land Reform Law effected by Act No. 39 of 1981 (which came into
force on 3.6.81), adding a new provision enabling "alienation by way of sale, with Ministerial approval, for non-
agricultural purposes", and added:
"Thus the limitation placed upon alienation of land vested in the LRC in regard to the purposes for whichagriculturalland
vested in that Commission may be used has in fact been eliminated. This amendment permits the outright sale of lands...
with the approval of the Minister and has come into effect on a date very much anterior to [5.2.82 when] 76 acres ofMawatta
was handed over to the [petitioner] by the LRC."
This amendment the 1st and 2nd respondents seem to have regarded as justification for valuationonamarketvaluebasis.
However, the interim report itself discloses that the only approval given by the MinisterofAgriculturewason23.1.81,
long before the amendment, and therefore could not have been treated as an approval ofanalienationfornon-agricultural
purposes in terms of the amending Act of 1981.
The Seed Paddy Farm
Finally, the 1st and 2nd respondents concluded that the request made by Chandra Bandara to establish a seed paddy farm wasa
sham, and that his request had been made in collusion with the petitioner to enable the petitioner to obtain landwhichwas
much more valuable than the Panikankulam landthat no steps had been taken by Chandra Bandara topursuetheproject and
that his subsequent conduct was inexplicable. Those observations were made without havingrequiredhimtoexplainorto
testify. The interim report discusses the evidence of several witnesses includingRamanayakeandNimalGunaratne,Deputy
Director (Revenue), LRC:
"The uncontradicted testimony of [Gunaratne] was that no seed paddy farm was started on Panikankulam . ..Hevouchedfor
the fact that there was no seed paddy farm on this land during the entire period he managed this project."
"Mr. Marapana also sought to rely on the evidence of Ramanayake . . . to establish the existence of the seed paddy farm..
. According to Ramanayake the LRC was running a seed paddy farm on this land for some time andhewasawareofthefact
because one of his Directors [Madawela] was in charge of the Division which managedthisProject.Apartfromthisvague
answer he did not claim to have any personal knowledge of this fact. It issignificantthatMadawelawasnotcalledto
testify . . . . . . we have no hesitation in rejecting Ramanayake's evidence in view of the very definite evidencegivenby
Gunaratne . . . "
That gives the impression that Ramanayake wasthepetitioner'switness,althoughinfacthewascalledbecausethe
Commission wanted the Solicitor-General to call him. While he was under cross-examination, itwasthe3rdrespondentwho
raised the issue:
"Hon. Jayasuriya: Q. Was the seed paddy station ever set up?
A. Yes . . .
Chairman: Q. How do you know that?
A. One of my directors : . . . Madawela was in charge of it."
Thereafter the 1st and the 3rd respondents, alternately, questioned Ramanayake five times about thematter.Theyexpressed
no doubt about his answers, nor did they treat him as hostile.
The report does not refer to important aspects of Gunaratne's evidence as to his knowledge of thefacts.Hisevidencewas
that he had been working in the Estate Management Services Division from 1981 to 1984that he came to knowofPanikankulam
only in about 1982, and left in 1984and he had visited thelandthreetimes.Theimpressionhecreatedonthe1st
respondent when he gave evidence appears from the following:
"Chairman: Mr. Marapana, you see the calibre of this witness: he says he's DeputyDirector youasked.whetherhe'sthe
subject clerk and he says yes.
Q : . . . You cant give a suitable answer to any of the questions asked of you without referring to the files.
A. Yes. Without any files l am unable to give evidence.
Q : Then why did you give evidence all this time?
A : It was under my . . .
Chairman: That is not the question you were asked Mr Gunaratne. You were asked by Mr Premaratnewhethertherewasaseed
A : No Sir.
Chairman: You said no, now you say you can't say anything without a file, what is the correct position? Is it thatyoucant
say anything without a file or are you in a position to say that there was no seed paddy farm?
A : There was no seed paddy farm.
Chairman: Mr. Gunaratne, the truth is that you are coming here to say that there is no seed paddy farm because you havebeen
asked to say so?
A : As l served in that division the Chairman asked me to say anything I know." (page 11856)
Certainly, the 1st and 2nd respondents couldhavedisbelievedRamanayakeandbelievedGunaratne.Buttocharacterize
Gunaratne's evidence as "uncontradicted" (when Ramanayake and at least one witness testified to the contrary)andas"very
definite" (despite the 1st respondent's own contemporaneous observations as to its credibility)requiredsomeexplanation,
and the interimreportcontainsnone.Incontrast,todescribeas"vague"Ramanayake'sanswersinreplytothe
Commissioners, although they had then made no adverse remark whatsoever about his evidence, requiredevenmoreexplanation
and reasons. Again, there was none. And in the circumstances the comment that it wassignificantthatthepetitionerhad
failed to call Madawela seems unfair, since Ramanayake was called because theCommissionwantedhimcalled andifthe
Commission had then any unexpressed doubt about the replies he gave to them, it wastheCommissionwhichshould,inthe
interests of justice, have directed that Madawela be called and the relevant files produced.
THE ATTEMPTED "SETTLEMENT"
I have referred to the facts, and the approach of the 1st and 2nd respondents to the facts, not only because they are
relevant to the question whether the findings are vitiated by errors of law (by the failure to take into consideration,
and/or by the misconstruction of relevant oral and documentary evidence), but also because of rather unusual attempts which
the Commissioners made to "settle" the dispute.
On 3.6.96, while the Chief Valuer was being re-examined, the Commissioners realised that there had been no transfers of
title, inter se. It is necessary to refer in some detail to what happened:
"Hon. Jayasuriya : . . . the witness is seeking to assert that there is no transfer.
Mr. Marapana : Yes.
Hon Jayasuriya : Without a transfer there cannot be a restrictive user?
Mr. Marapana : Without a transfer I do not get any title at all . . . . I have paid very good money and got nothing in
Hon. Jayasuriya : So you return it back to get your own land?
Hon. Jayasuriya : . . . If you give this back and take that everything will end.
Mr. Marapana : I do not mind.
Hon. Jayasuriya : Are you prepared to do that?
Mr. Marapana : Of course . . .
Chairman : Why do you not consider this proposition?
Mr. Marapana : Yes, My Lord, I will certainly . . .
Hon. Jayasuriya : You have not got title yet?
Mr. Marapana : Yes
Hon. Jayasuriya : If you give back and take your land everything ends. . . .
Hon. Jayasuriya : Then we need not go into this any further, Mr. Premaratne?
Mr. Premaratne : It is a matter for the Commission . . .
Hon. Jayasuriya : If he is prepared to give it back and put the status quo then everything is all right. Then we need not go
into this matter any further. Why do you not consider that?
Mr. Premaratne : I have no stakes hereI am only assisting the Commission . . . .
Chairman : Shall we call this on some other day so that we can consider this . . .
Hon. Jayasuriya : Consider this seriously without wasting our time going into this . . . " (pages 8834-6)
On 4.7.96 Mr. Marapana filed a document manifesting the petitioner's consent to restoring the status quo, andinquiredwhat
the next step would be. The 1st respondent said "then we will make an order giving directions to the LRC togiveeffectto
this" (page 9264).
The staff of the Commission delayed for six weeks to communicate that order to the LRC. On 17.9.96 the Chairman, LRC, was
present, on summons. The 1st respondent expressed serious concern about the delay, and added: "We have made an order to
communicate our order to the LRC for implementation. It is very unsatisfactory".
Later, the LRC seems to have reported that it would not be able to restore possession of the Panikankulan land to the
petitioner. The "settlement" was not pursued any further, and the inquiry proceeded.
THE CHARGES AGAINST THE PETITIONER
The "allegation" set out at the commencement of the interim report and the "charges" contained in thesummarypublishedin
the Gazette are similar. However, they differ from the showcausenoticeinsubtle,thoughsignificant,respects.The
interim report and the summary state that the petitioner was asked to show cause why he should not be found guilty ofmisuse
or abuse of power, in that, in substance, "the petitioner did directly or indirectly induce [identifiedpersons]topermit
him to surrender the Panikankulam land and obtaining in exchange [sic] the Mawatta land, therebycausingwrongfullossto
(named institutions]". The show cause notice alleges that he committed or omitted to do one or more of the acts specifiedin
six subparagraphs of the notice, "which [acts] directly or indirectly induced [the same identifiedpersons]topermitthe
exchange of the Panikankulam land with the Mawatta land, with the intention of causing wrongful gain to himself . . .and/or
wrongful loss to [the same named institutions]".
Straightaway, it is manifest that the show cause notice alleged a dishonest intention, as defined in the Penal Code,onthe
part of the petitionerit was not enough therefore to establish that he did induce theidentifiedpersonstopermitthe
exchangeit had also to be proved that he had induced them to do so with a dishonest intention.Thefactthatavaluer,
acting independently of the petitioner, might have made an erroneous valuation was insufficient: for thatwouldonlyprove
the fact of wrongful loss, but would be quite inadequate to prove a dishonest intention.Nevertheless,theinterimreport
incorrectly suggests that the "allegation" set out therein was the same as that which the petitioner was required to meetin
the show cause notice, and the 1st and 2nd respondents held "that the Allegation set out in the Show CauseNoticehasbeen
In order to clarify this matter, we called for written submissions after judgment was reserved, andcounselonbothsides
have submitted that the show cause notice was never amended. On behalf of the respondents, it was submitted that "theNotice
itself is wide enough to contemplate wrongful loss as well as wrongful gain although the allegation relates to onlywrongful
loss . . . since both these are elements of dishonesty, no prejudice would becausedtothepetitionerasthereisno
reference to the element of wrongful gain in the allegation. In the circumstances. . . the Commission's finding isbasedon
the charge contained in the Notice . . . and the allegation which is couched in general terms is merely anarrativeofthe
gist of the said Notice".
That submission fails to justify the total absence in the interim report of either afindingthattherewasadishonest
intention as alleged in the notice, or an explanation as to how the charge was held proved despitetheabsenceofsucha
finding. The finding that the petitioner took over a different portion of land - even a better portion - didnotbyitself
prove a loss, for whether there was a loss or not depended on the subsequent valuationiftherewasapropervaluation,
there would have been no lossand even if there was an undervaluation, that would only prove the fact of loss,butnotan
intention of causing a loss (unless, of course, there was evidence of impropriety on the part of thepetitionerincausing
or procuring such undervaluation).
It is unnecessary, in the circumstances, to consider the further unexplained difference, namely, that the showcausenotice
alleges inducement to permit the exchange of the two lands, whiletheinterimreportallegesinducementtopermitthe
surrender of one land and obtaining in exchange the other land.
Several distinct questions of jurisdiction arise:
(1) Did the 1st and 2nd respondents have jurisdiction - after 12.11.96 when the 3rd respondent ceased to participateinthe
proceedings - to proceed with the inquiry and/or to make findings and recommendations?
(2) Did the Warrant establishing the Commission authorise the Commission to inquire onlyintosalesandleases(andnot
exchanges) of land belonging to the LRC?
(3) Did the conduct of the Commissioners in regardtotheattempted"settlement"constituteanacknowledgementand/or
representation by them that the evidence disclosed neither misuse or abuse of powernorjustificationforsubjectingthe
petitioner to civic disability, with the consequence that they were precluded from proceeding any further?
1. Non-participation of the 3rd respondent
Findings and recommendations had been made in the same interim report in an inquiry relating to another person,whoapplied
for Certiorari, on the ground that the report had not been signed by the 3rd respondent(Paskaralingamv.Perera(2)).The
following question was considered:
"Does the non-participation of Justice F. N. D. Jayasuriya render the interim report one made without jurisdiction?"
This Court, by a majority decision, answered that question in the affirmative, and quashed the findingsandrecommendations
made by the 1st and 2nd respondents. Mr. Wickremanayake, on behalf of the petitioner, relied on that decision.
Mr. Kamalasabayson, PC, SG, stated that he was not seeking to canvass its correctness, and I seenoreasontodeclineto
follow that decision. However, in his counter-affidavit the 1st respondent pleaded that thisapplicationwasbelated,and
that because the subject-matter of this application was before Parliament the petitioner was not entitled to any relief.Mr.
Kamalasabayson submitted that we should take into consideration the fact that the petitioner was guiltyofdelayexceeding
12 months. He pointed out that the Order Paper of Parliament for 7.10.97 contained notice of a resolution for theimposition
of civic disability on the petitioner under Article 81 of the Constitution consequent upon the interim report,sothatthe
matter was now before Parliamentand therefore this Court should decline to entertain, hear ordeterminethepetitioner's
application. He drew our attention to Bandaranaike v. Weeraratne(3) where thisCourtupheldapreliminaryobjectionand
dismissed a similar applicationquite properly, he indicated that there was a distinguishing feature, for in that -case,by
the time the application was taken up for hearing Parliament had already passed the resolution.
Delay is never an absolute bar, particularly where the challenge is to jurisdiction. In any event, a plea ofdelaymustbe
considered on equitable grounds: as for instance, whether the conduct of the petitioner indicates acquiescenceorawaiver
of his rights, and whether any appreciable prejudice had been caused to the adverse party bythatdelay.Nothingofthat
kind has even been alleged.
As for pending Parliamentary proceedings, it is enough to say that Parliament and the judiciaryhavedistinctanddefined
roles. Article 4 of the Constitution does not permit Parliament directlytoexercisethejudicialpowerofthepeople
"except in regard to matters relating to the privileges, immunities and powers of Parliament wherein thejudicialpowerof
the people may be exercised directly by Parliament". Apart from that single exception in respect of what may beregardedas
an internal jurisdiction intimately connected with its legislative function,ifParliamentdesirestoexercisejudicial
power in any other case, it cannot do so directlyit must do so only through courts, tribunals and institutions createdand
established by the Constitution or by law. While it is undoubtedly true that Parliament can refuse toactonthefindings
and recommendations of a Commission, nevertheless Parliament cannot subject them to judicial review or quash them - forwant
of jurisdiction, or breach of natural justice, or otherwiseit is only the judiciary which can do so.
The application now before us is a legitimate invocation of the jurisdictionofthisCourttoreviewthefindingsand
recommendations of the Commissionit seeks relief only in an area in which Parliament has no jurisdiction, and itseeksno
order or relief in respect of what Parliament has done or may do. In Bandaranaikev.Weeraratne,thisCourtdeclinedto
inquire into the validity of a resolution in view of the preclusive clause contained in Article 81(3).Wedonothaveto
decide this case in the shadow of such a resolution. It is true that in that case this Courtalsodeclinedtoreviewthe
findings of the Commission, because it was of the view that to do so would indirectly affect the resolution.Assuming,with
respect, that that view is right, nevertheless that would not affect in any way the exercise of our jurisdictioninacase
where no resolution had been passed.
I, therefore, hold that neither delay nor pending Parliamentary proceedings constitute a bartothegrantofCertiorari,
which must therefore issue to quash the findings and recommendations of the 1st and 2nd respondents onthegroundofnon-
participation by the 3rd respondent.
2. Jurisdiction regarding exchange of LRC land
Mr. Wickremanayake referred to the second limb of the firstparagraphoftheWarrant,andsubmittedthattheWarrant
confines the jurisdiction of the Commission: "more specifically inrespectofthetransactions,activitiesandmatters
relating to such public bodies referred to in [the] Schedule", and that it is item 17 which applies in the case oftheLRC:
"sales and leases of land", and nothing else.
Mr. Kamalasabayson relied on the first limb of that paragraph: "the management, administration and conduct of affairs ofthe
public bodies referred to in the schedule hereto", and submitted that an exchange of landbelongingtotheLRCcouldbe
inquired into under that limb.
I agree that it is a possible interpretation that the second limb does not restrict the amplitudeofthefirst andthat
accordingly the Commission did have jurisdiction to inquire into the management (etc) of the LRCand that in thecourseof
such inquiry it could have made findings and recommendations in regard to either any aspect of such management (etc), orany
"transactions, activities and matters" referred to in item 17. But the question is whether thisparticularinquirybythe
Commission was into such management (etc), or into one particular transaction.
The starting point of the inquiry was the show cause notice, andthatestablishesthattheinquirywasintoasingle
transaction, and not into the management (etc) of the LRC. Further, theinterimreportitself(page228)describestwo
inquiries as "Malpractices in the NationalHousingDevelopmentFinanceCorporation"and"MalpracticesintheCustoms
Department", thereby indicating that the Commission wasactingunderthefirstlimb,whereasthisinquiryistitled
"Exchange of NLDB/LRC Land Inquiry against Mr. Wijayapala Mendis".
This was, therefore, an inquiry into one transaction, and although the alleged exchange involved land belonging totheLRC,
and even involved some aspects of the procedures and practices of the LRC, that did not convert the inquiryintooneunder
the first limb.
An inquiry under the first limb would have involved direct and detailed scrutiny - in general, and notjustinrespectof
one transaction - of matters such as the policy and practice of theLRCinregardtodecisionstoalienateland,the
selection of land for alienation, the basis and procedures for valuation, etc. Indeed, if this inquiryberegardedasone
under the first limb, it would have been invidious discrimination to have singledoutonlythepetitioner'stransaction,
ignoring all othersat least the other transactions falling into the same relevant class -whetherMinisters,Membersof
Parliament, or politicians - should have been included if it were an inquiry held under the first limb.
Upon a scrutiny of the second limb and the schedule, it is clear that the warrant has carefully specified and restrictedthe
matters which could be inquired into. It said "transactions" insomeinstances(evenspecifyingamonetarylimit) it
specified particular types of transactions in other cases - such as "purchase", "contracts", "tenders"andinstillother
cases, it referred to "activities". Oneformof"alienation"whichtheLandReformLawcontemplatesis"exchange".
Nevertheless, in the case of transactions involving the LRC, the warrant specified only "sales and leases of land',although
it would have been easy either to have expressly included 'exchange",ortohavespecified"alienations"instead.This
careful choice of words must be presumed to be deliberate.
I hold that the Commission had embarked upon an inquiry into an alleged exchangeoflandbelongingtotheLRC,thereby
exceeding the jurisdiction which the Presidential warrant had conferred.
3. Loss of jurisdiction resulting from attempted "settlement"
It was the Presidential warrant alone which gave the Commission jurisdiction. It authorised the Commissiontoinquireinto
and obtain information about various matters, including the misuse orabuseofpowerinrelationtoany"transaction,
activity or matter"and required the Commission to report its findings and recommendations tothePresident.Itdidnot
authorise the Commission to make orders or to take other action designed to remedy any misuse or abuse of power, ortomake
good the loss caused thereby. If the evidence before the Commission disclosed a misuseorabuseofpower,allthatthe
Commissioners could lawfully and properly do was to report their findings and recommendationsindeed, they were bound todo
On 3.6.96 the 3rd respondent expressed the view (affirmed by the 1st respondent and acquiescedinbythe2ndrespondent)
that if the petitioner restored possession of the Mawatta land to the LRC "everything will end", "withoutwastingourtime
going into this". If the evidence then disclosed to the Commissioners that the Petitioner was probably guilty of a misuseor
abuse of power, they would have been acting contrary to the Presidential warrant in deciding to refrainfromreportingthe
petitioner for misuse or abuse of power (and, instead, "settling" the matter by procuring aretransferofpossession):no
amount of "restitution" or "reparation" at that point of time could have retrospectively wiped out any misconductwhichhad
actually taken place or procured amnesty for it. Although the Commissioners have not said so, itistheoreticallypossible
that they had not assessed the evidence, and therefore had not formed an opinion as to whether or not therewasmisconduct.
But even then they had before them an allegation in respect of which theythemselveshadissuedashowcausenotice-
suggesting a prima facie case. Their duty was to inquire and reportnot to mediate, conciliate orsettlethedispute.It
was only if the evidence disclosed that the petitioner was not guilty of misuse or abuse of power thatitwouldhavebeen
lawful and proper for the Commissioners to have refrained from reporting the petitioner.
The respondents did not explain their conduct in relation to the attempted "settlement", either in the interim reportorin
the affidavits filed in this Court.
It becomes necessary to determine on what basis the Commissioners acted in attempting this "settlement".ShouldthisCourt
presume that the evidence disclosed to the Commissioners a misuse or abuse of power, but that nevertheless (a)theydecided
that they would not report the petitioner to HE the President(b) the 3rd respondentconsidereditawasteoftimeto
inquire any further into such misuse or abuse of power, despite the provisions of the warrantand(c)the1strespondent
considered it proper to order the LRC, in effect, to "cover up" such misuse or abuse of power? Or, on the other hand,should
this court presume that the Commissioners acted properly in indicatingtothepetitionerthattheywouldrefrainfrom
reporting because they honestly believed that the evidence didnotdisclosea"reportable"misuseorabuseofpower?
Especially in the absence of any allegation by anyone that the Commissionerswereactingcontrarytothetermsofthe
warrant, I hold that at that stage the Commissioners did believe that there was nothing to report.Inanyevent,whatever
the Commissioners may have thought, what they actually did say would reasonably have conveyedtothepetitionerthatthe
Commissioners were of the view that there was nothing to report. Nothing that transpired thereafterchangedthatposition.
The attempts which the Commissioners made to "settle" the dispute do nothavetheslightestresemblancetoattemptsby
Judges to settle civil disputes. It is well to remember the caution administered in Sabapathy v. Dunlop(4):
"This case conspicuously manifests the danger of Judges participating in the discussion of termsofsettlementandtaking
too active a part in seeking to bring about a compromise. The terms of settlement should be left entirely to the partiesand
their legal advisers who know best, or else there will always remain the possibility of remarks or observationscomingfrom
the Judge in the course of discussion being misunderstood and wrong interpretations put thereon."
Judges dealing with civil and criminal disputes have a jurisdiction, albeit limited, to sanction compromise theCourtsin
which they function have general jurisdictions, as well as inherent jurisdictions.CommissionsofInquirydonot their
jurisdiction is statutorily limited. If there is a misuse or abuse of power, they cannot initiate or sanction a"settlement"
or "compound" misconduct, by refraining to report it in obedience to the Law and the Presidential Warrant.
I hold that the Commission had no jurisdiction to proceed any further in thematter.WhetherornottheCommissionhad
jurisdiction, I further hold that in any event the ultimate findings and recommendations of the 1st and 2nd respondentswere
so completely inconsistent with thepreviousobservationsandconductoftheCommissionersthatthosefindingsand
recommendations are perverse and unreasonable. I must add that this illustrates the gravity of the non-participationofthe
3rd respondent who initiated and expressed strong views about the attempted"settlement".TheotherCommissionersshould
have postponed their report to enable him to express his views on that matter. Their failure to considerhisviewsbecomes
all the more serious because they have failed to explain their conduct.
II. NATURAL JUSTICE
As already noted, the 1st and 2nd respondents found the petitioner guilty on a basis significantly different to that setout
in the show cause notice, which they have signally failed to justify, even in written submissions filedafterjudgmentwas
reserved. This is a fundamental breach of natural justice by the 1st and2ndrespondentswhohavefoundthepetitioner
guilty on a charge materially different to that which they asked him to answer.
In other respects too there has been a failure of natural justice. TheproceedingsoftheCommissionwerenotstrictly
adversarial in naturethe Commissioners had a duty to ascertain the facts themselves. In several instances,theCommission
refrained from calling important witnesses: including Madawela, theAssistantGeneralManager,NLDB,andtheAssistant
Manager of Siringapatha estate. Further, the evidence showed that at every stage Minister Thondaman had givenapproval:for
the exchange of the Mawatta land in principle (after 28.10.81), for thedemarcationtobedonebytheNLDB(inearly
January, 1982), and finally for the retention by the petitioner of the portion which he had actually takenover(inMarch,
1982). There was no evidence of pressure orinfluencevis-a-vistheMinisterofAgriculture,MinisterThondaman,the
Chairman, LRC, the Chairman, NLDB, and Chandra Bandara. SinceMinisterThondamanwasdirectlyinvolvedinthosethree
decisions, the question whether any of those decisions had been induced "wrongfully and by undue means" (asallegedinthe
show cause notice) could not have been fully and fairly investigated without the benefit of an explanation or testimonyfrom
Minister Thondaman, but the Commission refrained from asking Minister Thondaman to explain or to testify.
There is yet another unfortunate aspect. By the end of November, 1996, the 1st and 2nd respondents were awarethatthe3rd
respondent's resignation had not taken effect, and that he was therefore still a Commissioner. However,thepetitionerwas
not told at any time thereafter whether or not he would participate in the proceedings: whether the order oftheCommission
would be made by the other two Commissioners, or by all three, aftertheproceedingswerereadbythe3rdrespondent.
Indeed, the record shows a degree of haste which was not seemly. On 21.12.96 the petitioner was told that the Commissionhad
to send its report by the end of January. The judgment in Paskaralingarn v. Perera shows that the period for submittingthat
report was due to expire on 2.2.97that on 31.1.97 it had been extended until 2.3.97and again on28.2.97until30.6.97.
Considering that the sitting on 21.12.96 was the 276th sitting of the Commission, a furthershortpostponement,toenable
the 3rd respondent to participate, was only reasonable. The Commission had to submit reports in eightinquiries ofthese,
three had been concluded as early as September, November and December, 1995, respectively (longbeforethe3rdrespondent
fell ill on 12.11.96). But even those reports were signed only by the 1st and 2nd respondents. The audi alterampartemrule
does not merely entitle a party to a purely formal opportunity of placing his case before a tribunal. Naturaljusticewould
be devalued if the tribunal - and, indeed,everymemberofthetribunal-doesnotconsidertheevidenceandthe
submissionsand evaluate it properly and not in hasteand, in general, give reasons for its conclusions. Here the1stand
2nd respondents failed to take enough time to enable its members to consider the petitioner's case, and,onsomeimportant
issues, to give reasons.
Natural justice is fairness in action. The inquiry against the petitioner failed to reach the minimum standard of fairness
demanded of a judicial or quasi - judicial inquiry.
III. ERRORS OF LAW
I have referred extensively to some portions of the evidence not in any attempttoreviewthefindingsoffactofthe
Commission, but in order to identify serious shortcomings in the proceedings of the Commission, whichamounttoerrorsof
The proceedings began with one charge, an essential ingredient of which was mens rea - an intention to causewrongfulloss
but instead of a finding on that issue the 1st and 2nd respondents concludedonlythatwrongfullosshadinfactbeen
I have already dealt with the unexplained change of front by the Commissioners in regard to the attempted "settlement".
There were two serious errors of law in regard to the proper basis of valuation of the two lands: ignoringthepracticeof
the LRC, of taking agricultural value, and wrongly assuming the 1981 amendment to the Law to be applicable, despite thelack
of Ministerial approval given under that amendment.
It is manifest from the summary of facts that some vital documents, and many material items of oral evidence,wereignored,
and others were misconstrued.
Although findings as to the credibility of witnesses would normally have been outside the scope of review, the1stand2nd
respondents accepted the evidence of some witnesses, and rejected the evidence of others, not onlyignoringvitalevidence
relevant to credibility, but even their own contemporaneous and recorded perceptions as to credibility. In this context,let
me recall the observations of this Court in Senanayake v. de Silva(5)
". . . Even witnesses who are able to stand their ground in the face oftheseverestcross-examinationatthehandsof
opposing counsel are, in view of the deference with which they treat the Court, inclined to treat withthegreatestregard
suggestions of this nature when they come from Court and are couched in compelling language, and it isararewitnesswho
will steadily maintain his version in the face of such questioning by the Court . . .
. . . One of the well-recognised limitations on the powers of Court [to questionwitnesses]isthattheCourtmustnot
question a witness in the spirit of beating him down or encouraging him to give an answer . . .
. . . the concessions which the witness made were concessions under the pressure ofaviewexpressedbyCourtinterms
suggesting that that was the only reasonable view . . . It isremarkablehoweverthatalthoughthisviewhasbeenso
strongly put to the witness in the course of the Court's questions tohim,theCourthasinitsjudgmentexpresseda
diametrically opposite view."
Those observations are applicable to the unexplained change of views by the 1stand2ndrespondentsinrelationtothe
attempted "settlement", as well as to the manner in which they elicited answers from witnesses.
The summary of facts shows how the Chairman, NLDB, so readily fell in line withsuggestionsstronglyputtohimbythe
Commissioners, even to the extent of veering from one position to a diametrically opposite one - allofwhichtheinterim
report failed to mention. Nimal Gunaratne's evidence was accepted without even a passing reference tothe1strespondent's
rebuke that he was merely coming to say what someone else had asked himtosay andRamanayake'sevidencewasrejected
because of "the very definite evidencegivenbyGunaratne",andwascharacterizedas"vague"althoughnoneofthe
Commissioners seem to have thought so at the time.
Considered in isolation, each of these is a serious error of lawtaken cumulatively, they are so extensive and sograveas
to amount to a denial of a fair inquiry.
Since the findings of the 1st and 2nd respondents cannot stand for the several reasons setoutabove,therecommendations
are necessarily null and void. But even if the findings were valid, the recommendations proceed on the assumption -manifest
from the use of the phrase 'we accordingly recommend" - that the automatic consequence of a finding that there wasamisuse
or abuse of power must be a recommendation for the imposition of civicdisability.Theyhaveassumedthattheyhadno
discretion in the matter. They failed to consider, for instance, the fact that there had beennotransferoftitle,that
there was no finding as to a dishonest intention, and that the two lands had been valued inaccordancewiththeprocedure
prevailing at the time, including approval by the Chief Valuer. It can hardly be argued that upon a properconsiderationof
those matters the same recommendations might have been made,especiallybecauseofthestrongviewsexpressedbythe
Commissioners in regard to the "settlement". Cogent reasons would have been necessary to justifyarecommendationforthe
I hold, therefore, that the recommendations were arbitrary and unreasonable.
In view of the concession made, with characteristic fairness, by Mr.Kamalasabayson,whoappearedforthe1stand2nd
respondents, that he was not canvassing the correctness of Paskaralingam v. Perera, Certiorari must necessarily issue onthe
ground that the interim report had not been signed by the 3rd respondent.
I hold, further, for the reasons set out in this judgment,thatthefindingsandrecommendationsofthe1stand2nd
respondents were vitiated, inter alia, by want or excess of jurisdiction, breach of natural justice, and error of law onthe
face of the record.
I direct the issue of a mandate in the nature of a writ of Certiorari to quash the findings and recommendations madebythe
1st and 2nd respondents (set out in their interim report dated 2.3.97, Inquiry No. 5/97) against thepetitioner.Inregard
to costs, I cannot ignore the fact that in the course of theproceedingstheCommissionersthemselvesmadeobservations
which were consistent only with the considered view that findings of guilt and recommendations for theimpositionofcivic
disability were not reasonably possible. Accordingly, I direct the State to pay the petitioner a sum ofRs.20,000towards
his costs before the Commission, and a sum of Rs. 20,000 as costs in this Court.
GUNAWARDANA, J. - I agree.
GUNASEKARA, J. - I agree.
Application allowed, certiorari issued.