Acquisition Of Private Land For A ‘Public Purpose’ By The State – Should Due Process Requirements Be Met?
Radika Gunaratne
A government’s eminent domain power is its right to take or acquire private property for “a public purpose’ on payment of just compensation. Thus, the requirement of any private property being required for a public purpose andthe payment of “just compensation” operate as conditions precedent to the actual “taking’ of a private land by the government (or State).
The Land Acquisition Act of Sri Lanka confers power on the Minister to set in motion the exercise of acquiring private land for “a public purpose’ by merely declaring that by gazette notification he is empowered to state that, a private land is required for a ‘public purpose”. The Act does not require the minister to state the public purpose for which such private land is required. The Constitution of Sri Lanka does not guarantee the right to property in explicit terms through a provision to that effect.
The absence of any legislative or constitutional provision relating to due process in the context of acquisition of privately owned property fails to address the economic impact of such a ministerial declaration (that, the land is required for a public purpose) on the owner of the affected land and the extent to which such a declaration interferes with investments on the security of his property based on his/her legitimate expectations regarding the future use of his property.
In this regard, one Supreme Court decision in Sri Lanka sought to respond to due process where a private owner’s land was sought to be acquired by the State, wherein it was held (per Justice Mark Fernando) that, where a Minister declares that, a land is required for a public purpose he must disclose what that purpose is(Manel Fernando v. Jayaratne, 2000(1) SLR 112(SC). That decision posed certain vital questions; why should not someone whose land is sought to be taken be told the purpose for which it is being taken? If he is not told how would he be in a position to demonstrate that the purpose for which it is to be taken is not viable? The said decision brought in a welcome element of ministerial accountability into the process of land acquisitions.
