Land Expropriation – Public Purpose

1. Introduction

In most countries, the government may acquire private land with the aim of promoting public welfare, infrastructure development, and equitable land use. Land acquisition is, therefore, meant to strike a balance between individual property rights and broader public interests. In Sri Lanka, land acquisition is often carried out for projects such as roads, schools, or other public facilities. Land may also be acquired for environmental reasons. E.g., to preserve natural habitats or address ecological issues. In 2022, the Ministry of Land commenced the acquisition of 325 lots of land for projects concerning highways, irrigation, defence, village expansion and other public purposes.

Land acquisition in Sri Lanka is primarily governed by the Land Acquisition Act, No. 9 of 1950 (LAA). This Act sets out the procedures for land acquisition, the basis for compensation, and the rights of affected landowners. Regulations may be issued under the LAA setting out the basis for assessing the market value of land. Such regulations also form part of the legal framework.

The process set out in the LAA includes notifying affected landowners, assessing the value of the land, and providing compensation. However, this process has encountered various challenges. Such challenges concern the precise meaning of the words ‘public purpose’, urgent acquisitions, fair compensation, procedural delays in granting compensation, and displacement of communities. According to one account, the minimum time-period for the completion of a land acquisition process in Sri Lanka is 72 weeks.

The institutional framework pertaining to land acquisition features a number of state institutions. The Ministry of Land, or ‘state lands’ (MOL) is responsible for acquiring land on behalf of the government and handing over the land to the relevant government agency. For example, in the case of highway construction, the land would be handed over to the Road Development Authority. The MOL will carry out the acquisition by issuing instructions to the relevant divisional secretary (DS) to acquire the identified land. The DS must coordinate with the Valuation Department, Survey Department, Attorney General’s Department, the Department of Government Printing and the relevant grama niladharis. These entities play a role in overseeing the process, ensuring adherence to legal requirements, and addressing disputes. Meanwhile, the Sri Lankan judiciary has played an important role in interpreting the law and ensuring that land acquisition is just, transparent, and complies with constitutional principles.

Land acquisition for industrial development and public welfare continues today, especially in districts such as Kandy, Matara, Jaffna, and Kurunegala. The extent of the acquired land in these areas is often substantial.

2. A Legal Analysis of Land Acquisition in Sri Lanka

The term ‘public purpose’ in the context of acquisition refers to the reasons that justify the government’s acquisition of private property for the benefit of the public. Public purposes typically encompass objectives such as infrastructure development, urban planning, environmental conservation, economic development, and the provision of public services. It reflects the idea that there are certain societal needs and goals that take precedence over individual property rights in specific circumstances.

Section 2(1) of the LAA provides that where the Minister decides that land in any area is needed for any public purpose, he may direct the acquiring officer of the district to display a notice in the specific area in begin the acquisition process. Therefore, the Act appears to afford the Minister authority to determine what constitutes a public purpose. According to section 65 of the LAA, a ‘public purpose’ includes a purpose which, under this Act or any other written law, is deemed to be a public purpose. The Act, therefore, does not offer a precise definition for ‘public purpose’.

Despite the lack of a precise definition for ‘public purpose’ in the LAA, the case law on land acquisition offers important principles applicable to a public purpose. Four key principles emerge from the case law.

First, courts have held that a public purpose must be transparent. A notice of acquisition under section 2 of the LAA is, therefore, invalid if it fails to specify a public purpose. This principle is upheld in cases such as Manel Fernando and another v D.M Jayarathne, Minister of Agriculture and Lands, and De Silva v Atukorale, Minister of Lands, Irrigation and Mahaweli Development and another. Thus, an undisclosed purpose cannot constitute a ‘public purpose’.

Second, courts have held that a public purpose cannot be a purpose that serves only a few persons. In Sugathapala Mendis v Chandrika Kumaratunga (The Water’s Edge Case), the Supreme Court held that the purpose for which the land was acquired could not be considered ‘public’, as it was in fact for a private golf resort. It asserted that the public purpose must primarily benefit the community. Accordingly, the acquisition was deemed a breach of public trust and held to be unlawful.

Similarly, in Horana Plantation Ltd v Hon. Anura Kumara Dissanayake & Others, the Supreme Court held that a ‘collateral purpose’ behind the land acquisition, accompanied by a lack of urgency in the process would place the acquisition outside the ambit of ‘public purpose’. In this case, the government claimed that the acquisition was for the purpose of distributing land to flood victims. However, the documentation demonstrated that the extent of the land acquired exceeded the extent required for the nine families that were affected by the floods, and that the land was in fact acquired for an undisclosed collateral purpose.

Third, courts have found that, if the acquired land is not in fact used for a public purpose, the acquisition becomes unlawful. In Kapugeekiyana v Hon. Janaka Bandara Tennakone & Others, the Supreme Court held that when the acquired land is not utilised for the relevant public purpose at the time of acquisition the legitimacy of the acquisition can be challenged.

Similarly, in Joseph Fernando v Minister of Lands, the Court of Appeal held that if the land is not used for any apparent public purpose despite several years passing since the acquisition, the acquisition becomes unlawful. In this case, thirteen years had passed since the acquisition for the stated purpose of ‘fisheries activities’, but there was no evidence of development or public use of the land. The Court noted that no material, such as project plans or development sketches, actually demonstrated a valid public purpose. It accordingly quashed the Minister’s vesting order for urgent acquisition under section 38 (see below) of the LAA.

Fourth, courts have given the government latitude in terms of changing the public purpose for which a land is acquired. Although the government is required to be transparent about the public purpose for which the land is acquired, courts have permitted the government to pursue an alternative public purpose than the original public purpose. The Court of Appeal in Kingsley Fernando v Dayaratne & Others found that, although the original public purpose did not include divesting land to the Urban Development Authority (UDA), the government is entitled to divest a portion of the land to the UDA, provided it was for some other public purpose.

During a KII, a former official from the Ministry of Land highlighted that the ministry encounters technical challenges in the process of land acquisition. The key informant pointed out that the absence of a clear definition for the term ‘public purpose’ contributes to these difficulties. The key informant further emphasized the importance of implementing an administrative system such as a monitoring mechanism. Such a system would serve to assess and ensure that lands are utilised in accordance with their designated public purpose. In another KII, a party who received a section 2 notice stated that after being notified of the land acquisition in 2022, no communication or status updates were provided to them. In this case too, the specifics of the public purpose were not disclosed, although it was understood that the acquisition would be for road construction.

3. International Best Practices

The concept of ‘public purpose’ is well defined in a number of other jurisdictions. For example, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act of 2013 in India offers a comprehensive and unambiguous interpretation of ‘public purpose’. This definition stands in stark contrast to Sri Lanka’s LAA. Section 2 of the Indian Act explains the term ‘public purpose’ in detail, and includes within its purview, strategic purposes relating to national security and public safety, infrastructure projects, housing projects, and public-private partnerships.

One of the crucial principles found in the Indian Act is the principle of prior consent. In the case of acquisitions for private companies for a public purpose, the consent of the affected families is obtained prior to the acquisition.

Although the Town and Country Planning Act of 1990 of the United Kingdom does not directly define ‘public purpose’, section 226 of the Act elaborates on the power of compulsory purchase. It grants authorities the power of compulsory purchase only for reasons such as development, redevelopment, or improvement of the land. These purposes can include projects related to infrastructure, housing, regeneration, or other development initiatives.

The Housing and Planning Act of 2016 of the United Kingdom also envisages acquisition for housing and planning purposes. Part 5 of the Act deals with compulsory purchase powers. It affords authorities the power to compulsorily acquire land only for defined purposes such as new housing, addressing housing shortages, and supporting urban regeneration projects.

Endnotes

(1) For the purposes of this brief, the term ‘land acquisition’ will be used instead of ‘expropriation’ as the former is the term that is widely used in Sri Lanka. (2) Ministry of Tourism and Lands, Performance Report 2022, at https://www.landmin.gov.lk/web/wp-content/uploads/2023/09/Performance-Report-2022-English.pdf. (3) S.H.U. de Silva (Road Development Authority), ‘Public lecture: Land Acquisition Procedure for National Development’, hosted by Institute of Engineers Sri Lanka (IESL), at: https://www.youtube.com/watch?v=Yr_O1LwQP9I. (4) [1999] 1 Sri.L.R 112. (5) [1993] 1 Sri.L.R 283. (6) [2008] 2 Sri.L.R 339. (7) [2012] 1 Sri.L.R 327. (8) [2013] 1 Sri.L.R 192. (9) [2003] 2 Sri.L.R 294. (10) [1991] 2 Sri.L.R 129.