Police misled President into ordering forfeiture of Wellawatte building

Other than to say the Centre was run by the LTTE, the respondents did not challenge documents filed by the petitioners to establish themselves as the property’s owners when the incident occurred. But the President, in his capacity as Defence Minister, then made an order forfeiting the premises.

The Supreme Court has quashed a 2009 order made under Emergency Regulations to seize a private property in Colombo 6, saying the then President, in his capacity as Defence Minister, was misled by police in ordering the forfeiture.

The court ordered the premises— which was occupied by the Police Terrorist Investigation Department even up to the date of the ruling on July 27, 2017—to be returned to the rightful owners within eight weeks from the judgment.

“All attended facts and circumstances considered, I hold that the forfeiture of the petitioners’ property by the order (P10E) made by His Excellency the President in his capacity as the Minister of Defence has infringed the petitioner’s fundamental right under Article 12(1) of the Constitution, and the said order forfeiting the premises bearing assessment no. 18/1 Chapel Lane Wellawatte, Colombo 6, in terms of Regulation 7(1) of the Emergency (proscription of the Liberation Tigers of Tamil Elam) Regulations 2009, is null and void and is hereby quashed,” Justice B P Aluwihare ruled, with Justices Priyasath Dep and Anil Gooneratne agreeing.

The petitioners—Shanmugam Sivarajah and Sivarajah Sarojini Devi, residents of Belp in Switzerland—were awarded Rs 500,000 as compensation and costs. They were represented by Saliya Pieris with Asthika Devendra and Thanuka Nandasiri. Deputy Solicitor General Shanaka Wijesinghe appeared for the respondents who include the IGP, TID officers, the Secretary and the Additional Secretary to the Ministry of Defence. Leave to proceed was granted in April 2010.

The petitioners bought the prop- erty in August 2005. The following year, a cousin of Ms Sivarajah leased out the first floor to the ‘Centre for Health Care’. After he migrated, Valarmathy Suntharalingam, a cousin of Mr Sivarajah, occupied the ground floor and collected rent from other tenants.

In June 2009, several TID officers came to the Centre for Health Care and arrested three Tamil persons working there. They also took the building’s caretaker who was employed at the Centre.

TID reports claimed the Centre— an NGO—was allegedly an LTTE front. In July, Ms Suntharalingam (who had already lodged a complaint at the Wellawatte police station) protested to the OIC TID that the premises were unlawfully occupied. But, despite her holding power-of-attorney, the OIC refused to register her complaint saying she had no right or authority over the premises.

Other than to say the Centre was run by the LTTE, the respondents did not challenge documents filed by the petitioners to establish themselves as the property’s owners when the incident occurred. But the President, in his capacity as Defence Minister, then made an order forfeiting the premises.

“Before an order for forfeiture can be made, however, it is imperative to establish that the property concerned should belong to a proscribed organisation, in the instant case, the LTTE,” Justice Aluwihare states. “It is a further requirement that the minister should hold such inquiry as he thinks fit before the decision is made. The petitioners complain that no such inquiry had been held and, as they have title to the property which could have been easily established through title deeds, they were not given an opportunity to make representations.”

“The issue that this court has to answer is, did the minister hold the inquiry as required by the regulations and, if so, did the minister go into the ownership of the premises 18/1, 1 Chapel Road Wellawatte before making the order of forfeiture,” the judgment states.

The OIC TID maintained that the basis for the initial seizure was “suspicion that the property was being used for committing offences and for illegal activities” and “since it came to light that the property was being used for committing offences and for illegal activities”. But these offences were never defined; nor was it stated whether any person who had any association with the Centre for Health Care had been charged in a court of law.

“The Emergency Regulation, no doubt impinges on the property rights of the citizens and an order of forfeiture of property is purely an exercise of administrative discretion,” the judgment states. “Therefore, the minister is required to hold an inquiry in to the matter before a decision is taken in terms of the applicable Regulation.”

A nexus between the petitioners and the Centre for Healthcare was not established. “…it appears that the Minister (His Excellency the President) had acted on the unverified reports of the police and, abdicating his authority, had proceeded to make an order of forfeiture that is nothing more than mechanical,” the judgment states.

“It also appears that His Excellency the President (in his capacity as Defence Minister) was misled by the 6th respondent [IGP] in issuing an order to seize the premises by convincing that 18/1 Chapel lane Wellawatte was owned by the Center for Health Care,” it asserts. “It was not disclosed to the President that the premises in question was owned by the petitioners and that there are no allegations against the petitioners of any involvement with the LTTE.”

Regulation 7(1) specifically states “where the Minister is satisfied, after such inquiry as it thinks fit…” “The legal definition of the term inquiry means the examination or investigation of facts or principles,” Justice Aluwihare notes. “There is no established degree of inquiry required by the Gazette. Also, the term ‘as it thinks fit’ gives the discretion to the Minister to decide as to the extent of the inquiry that should be conducted and that could be varied from case to case.”

“In the material placed before this court there is nothing to say that the minister has arrived at such specific finding, hence in my view, there had been an error in the exercise of power by the minister in this instance,” the judgment holds.