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Friday, March 1, 2024

Supreme Court determines land is a devolved subject coming under provincial councils

Namini Wijedasa
The government last week withdrew an amendment to the Town and Country Planning Ordinance that if passed would have given the Minister of Buddha Sasana and Religious Affairs vast powers over any private property in the country.

The Town and Country Planning (Amendment), a copy of which was obtained by LAKBIMAnEWS, consists of just eight clauses. Legal practitioners described the bill as ‘bizarre.’

It was presented to parliament close on the heels of another controversial law–the Revival of Underperforming andUnderutilized Assets bill–under which the government acquired overnight the assets of 37 private sector companies.

But while those properties were owned by the state and divested in the private sector, the latest amendment, by its interpretation, would have given the Minister of Buddha Sasana and Religious Affairs near absolute power over non-state lands. (The terms of the Town and Country Planning Ordinance only apply to private property).

The bill was taken off the order paper after the Supreme Court determined that land was a Provincial Council, and therefore devolved, subject. The determination was made subsequent to the Centre for Policy Alternatives and its director Paikiasothy Saravanamuttu challenging the Town and Country Planning (Amendment) before the Supreme Court. Sudharshana Gunawardena was intervenient petitioner.

The three-judge bench headed by Chief Justice Shirani Bandranayake and comprising Justices K. Sripavan and Chandra Ekanayake held with the petitioners that the bill shall not become law unless it has been referred by the president to every Provincial Council as required by the Constitution.

The third clause of the amendment states that the objectives of the Act shall be to “promote, preserve, conserve and regulate a system of integrated planning and development for securing proper infrastructure, amenities and conveniences in relation to the economic, social, historic, environmental, physical and religious aspects of land in Sri Lanka (whether or not there are buildings therein)”

It allows for the declaration of ‘Protection Areas,’ ‘Conservation Areas,’ ‘Architectural or Historic Areas’ and ‘Sacred Areas.’ The Minister of Buddha Sasana and Religious Affairs-who is also the Prime Minister–may gazette any area of land within any municipal, urban development or trunk road development area under one of these categories.

The amendment, therefore, expands the scope of a minister’s powers from declaring just urban development areas to other categories. But while ‘Protection Area,’ ‘Conservation Area’ and ‘Architectural or Historic Area’ are defined in the bill (albeit shoddily), the term ‘Sacred Area’ is not. This effectively means that if the Minister of Buddha Sasana and Religious Affairs declares an area to be ‘Sacred,’ anybody disputing this in court will not have recourse to a legal definition.

Shut out of their property
Thus, if a person’s private property (regardless of whether or not there is a building on it) is gazetted as a ‘Sacred Area’ and that person seeks legal redress, even a reasonable judge would be constrained to point out that nothing could be done in the absence of a definition.

How would one argue that one’s property is not ‘sacred’ if the law does not explain what ‘sacred’ means?

‘Protection Area’ is defined as “for the protection of natural amenities;” ‘Conservation Area’ is described as “for the conservation of the natural environment and the protection of places of natural beauty within the environment;” and ‘Architectural or Historic Area’ is deemed to be “for the conservation of building (sic) of architectural and historical value.”

After areas are gazetted under any of these categories, the minister is authorized to make orders for interim development of the land pending the drawing up of planning schemes. The owners of the land could find themselves shut out of their property for months and years until this happens.

The principal law prohibits any person (unless he holds a permit) from erecting, re-erecting, demolishing, altering or repairing any structure in that area; laying out, constructing, widening, extending or closing, attempting to lay out, construct, widen, extend or close any road in that area; or developing any land in that area, subdividing, conveying, assigning or otherwise disposing of or dealing with any such land in such a manner as to constitute any part of the land into a separate holding. By interpretation, this includes the person that owns the land.

Meanwhile, clause 7 of the new amendment takes ‘Sacred Areas’ even further. It states that any order made by the relevant minister under Section 6 of the principal enactment (that is, the Town and Country Planning Ordinance) before the coming into operation of the amendment “shall, with effect from the coming into operation of this Act, be deemed to be an Order declaring any defined area to be a ‘Sacred Area’”

Now this truly is bizarre. Under Section 6 of the parent law, towns and municipalities are deemed to be ‘urban development areas.’ It also allows for the minister in charge of the subject to gazette other areas around the country as urban development areas.

Indeed, countless such urban development areas were gazetted since the Town and Country Planning Ordinance came into effect in 1946. Under the new amendment, all of these areas-including Colombo–would now automatically be deemed to be ‘Sacred Areas!’ Section 6 of the principal law enactment is repealed.

“I really don’t understand the rationale for this bill, what they were thinking,” said a lawyer, requesting not to be named. “It is possible that this was a colossal blunder and just bad drafting. If so, it could be the first blunder of this sort ever made. What it does, in essence, is to give the Minister of Buddha Sasana and Religious Affairs vast powers over ‘Sacred Areas,’ the definition of which is not available.”


The discussion over the amendment exposes other weaknesses in governance. Under the Subjects and Functions Gazette of December 2010, the Minister of Buddha Sasana and Religious Affairs, who is Prime Minister D.M. Jayaratne, is tasked with sacred area planning and development. However, the Department of National Physical Planning (NPP), which is authorized to declare ‘Sacred Areas,’ is under the purview of Minister of Construction, Engineering Services, Housing and Common Amenities, Wimal Weerawansa. The NPP succeeds the Department of Town and Country Planning.

It is learnt that Prime Minister Jayaratne wanted the authority transferred to him. There was no other law available under which he could exercise this privilege. However, the amendment his ministry produced (and which went through the Legal Draftsman’s Office) is so riddled with inconsistencies that it might not have been possible to push it through parliament.

In the end, however, it was the president’s failure to refer the bill to Provincial Councils before placing it on the order paper of parliament that sounded its death knell.

The Supreme Court determination

Petitioners contended that the provisions contained in the bill violate the Constitution in seeking to vest in the Minister of Buddha Sasana the power to declare (private) lands as ‘Sacred Areas’ without statutory guidelines which, if carried out, would have a chilling effect on religious rights.

It was submitted that the contents of the bill led to uncertainty and vagueness. The main contention of the petitioners was that the subject matter of the bill-land-comes under Item 18 of the Provincial Council List. Item 18 refers to rights in or over land, land tenure, transfer and alienation of land, land use, land settlement and land improvement.

The Supreme Court determined that it was evident the subject matter referred to in the bill deals with an item that comes within the purview of Provincial Councils. The 13th Amendment states: “No Bill in respect of any matter set out in the Provincial Council List shall become law unless such Bill has been referred by the President, after its publication in the Gazette and before it is placed on the Order Paper of Parliament, to every Provincial Council for the expression of its views thereon, within such period as may be specified in the reference”

After such reference, it may be passed by a simple majority in parliament provided every Provincial Council agrees to it. Where one or two Provincial Councils do not agree, the bill has to be passed by the special majority.

As the president has not referred the bill to the Provincial Councils, it shall not become law unless this provision is complied with.

“We asked for a determination that land is a Provincial Council subject and that the bill related to land,” said M.A. Sumanthiran, counsel for CPA and Member of Parliament. “The court held with us, so we’re satisfied with the outcome. Hopefully, this determination will be a precedent to prevent a government enjoying a two-thirds majority in parliament from further interfering with the land rights of citizens and land administration in general.”

Counsel for the petitioner was Sumanthiran appearing with Niran Anketell, Bhavani Fonseka and J.C. Thambiah. Counsel for the intervenient petitioner was J.C. Weliamuna appearing with Maduranga Rathnayake, Pulasthi Hewamanne, Sudharshana Gunawardane and Senura Abeywardane. Deputy Solicitor General Shavindra Fernando with Deputy Solicitor General Sanjay Rajaratnam, Senior State Counsel Nerin Pulle, State Counsel Yuresha de Silva and State Counsel Suren Gnanaraj appeared for the attorney general. courtesy: LakbimaNews/TC


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