Land Expropriation – Urgent Acquisitions

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 LAA permits the government to expedite an acquisition of land if there is a particular urgent need for acquisition. Sections 38(a) and 38A of the LAA provides for acquisition of land on an urgent basis. These sections describe the procedures for urgently acquiring land and permit the immediate possession of the land in such cases. However, the Act does not set out the precise criteria for urgency and appears to afford the Minister discretion in determining what constitutes an urgency.

Despite the apparent gap in the LAA, the case law pertaining to the Act sets out certain principles applicable to urgent acquisitions.

In the case of Marie Indira Fernandopulle and Another v E. L. Senanayake, Minister of Land and Agriculture, it was held that the burden of proving and justifying urgency was on the government. Meanwhile, in the Horana Plantations Ltd case, the Supreme Court emphasised that the burden of establishing urgency rests on the acquiring authority, and unfettered discretion in such matters is not permitted. Although a precise threshold for ‘urgency’ was not outlined by Court, it cited the Indian Supreme Court judgment in the case of Ram Dhari Jindal Memorial Trust v Union of India & Others, which held that the urgency clause can be invoked by the government only in exceptional cases after ‘applying its mind’. This standard suggests that urgency must be genuinely assessed by the acquiring officer.

In the case of De Silva v. Atukorale, the Supreme Court ruled that the power of urgent acquisition should be utilised for public good and not for personal benefit. Therefore, it is apparent that the general principle applicable to a public purpose, i.e., that it must be in reality a purpose that serves the broader community, and not personal interests, is also applicable for urgent acquisitions.

Nevertheless, the term ‘urgent’ found in the LAA remains ambiguous, making it difficult to establish what qualifies as a genuine need for urgent acquisition. The serious challenges concerning urgent acquisition are reflected in ongoing cases such as Arunasalam Kunabalasingham & Others v A. Sivasamy, where the judiciary is called upon to determine whether an urgent action can include largescale defence projects. This case involves the urgent acquisition of 6,381 acres of land in the Northern Province for a ‘Defence Battalion Headquarters’. Several affected landowners challenged the acquisition on the basis that the government has failed to demonstrate the urgency of the acquisition.

A number of key informants pointed to the challenges associated with urgent acquisitions. A senior attorney-at-law who has appeared in land acquisition cases specifically highlighted the challenges faced by landowners in the context of urgent acquisitions. According to the key informant, when land is acquired under section 38A LAA, the landowner is immediately deprived of their property after the publication of the Gazette notification. However, compensation is often delayed, leaving landowners in a precarious financial situation. The key informant also argued that urgent acquisitions disproportionately impact the rights of individuals, as the acquisition process is often inequitable. It was, therefore, suggested that the use of urgent acquisitions should be minimised.

Developmental projects typically involve years of planning, allowing for timely communication with landowners about future acquisitions. This approach enables landowners to make informed decisions, invest appropriately, and secure alternative accommodation in a timely manner.

An official from the Ceylon Electricity Board (CEB) highlighted challenges encountered from the state’s perspective. The official explained that, when acquiring land under section 38A of the LAA, issues can arise with respect to the ownership of the land due to unclear titles held by the involved parties. This lack of clarity in land title often results in a time-consuming process of ascertaining ownership. Additionally, the key informant emphasised that the land acquisition process itself can extend over a long duration, and, in certain cases, the acquisition is eventually unsuccessful. For example, projects such as the installation of grids in areas such as Raththanapitiya remain incomplete solely due to the non-completion of the land acquisition process.

3. International Best Practices

International best practices with respect to urgent acquisitions require the specification of strict criteria and timelines. For example, in Australia, the Land Acquisition Act of 1969, includes provisions for expedited acquisition, but sets out strict criteria and timelines to balance urgency with fairness.

Under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA) of the United States, measures are in place to ensure that landowners are not unfairly disadvantaged, despite the expedited nature of the acquisition process. The URA includes provisions that emphasise fair treatment, just compensation, and assistance for affected property owners. Landowners must receive prompt written notice from the acquiring agency informing them of the intent to take possession of the property urgently. This notice should explain the urgency of the situation, the agency’s actions, and the owner's rights. Property owners displaced by urgent acquisitions are entitled to relocation assistance. The URA also provides for advisory services and financial assistance to help affected individuals and businesses relocate. Meanwhile, if property owners believe they have been unfairly disadvantaged or if disputes arise, they have the right to seek legal remedies and challenge the acquisition.

The Land Acquisition Act of Singapore allows for a declaration of urgency when an acquisition is deemed necessary for a public purpose. This declaration expedites the process, allowing authorities to take possession of the land more swiftly. Landowners affected by compulsory acquisition are generally served with a notice of acquisition, providing details of the acquisition and the compensation offered. In urgent cases, the notice period may be shorter. However, the Act requires transparency in terms of the details of the acquisition and the quantum of compensation offered.

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) [1979] 2 NLR 115. (5) C.A. No. 3813 of 2007. (6) [1993] 1 Sri.L.R 283. (7) C.A. (Writ) 125/2013. See Bhavani Fonseka, Legal and Policy Implications of Recent Land Acquisitions, Evictions, and related Issues in Sri Lanka (Centre for Policy Alternatives), 25.