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Two Judge Bench of Appeal Court After Ex-parte Proceedings Upholds Petition Filed By Gotabhaya Rajapaksa and Issues Interim Order Effective Until Dec 6th Preventing Police From Acting Under Public Property Act

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By

Lakmal Sooriyagoda

The Court of Appeal (CA) yesterday upheld the petition filed by former Defence Secretary Gotabhaya Rajapaksa, with an Interim Order preventing police from acting under the Public Property Act.

The Interim Order will be effective until December 6.

The CA issued this Interim Order preventing police from acting under the Public Property Act against Rajapaksa, on a Magistrate’s court inquiry over a complaint that the D.A. Rajapaksa Museum and Memorial in Medamulana was built using public funds amounting to Rs.90 million.

The Interim Order was issued on the basis of an ex parte proceeding by a two-judge-bench comprising Court of Appeal (President) Justice L.T.B. Dehideniya and Justice Shiran Gunaratne. This is pursuant to a writ petition filed by Gotabhaya Rajapaksa.

The Court upheld Rajapaksa’s version that the certificate issued under section 8(1) of the offences against the Public Property Act is ultra vires or violative of his legitimate expectations. Additional Solicitor General Dilrukshi Dias Wickremasinghe stated that the Attorney General is expecting to file limited objections against the Interim Order.

Rajapaksa cited IGP Pujith Jayasundara, CID Director Shani Abeysekara, FCID Director Ravi Waidyalankara and the Attorney General as respondents.

Gotabhaya Rajapaksa also seeks an order in the nature of a writ of prohibition preventing the respondents from proceeding or relying upon the certificate filed under and in terms of section 8(1) of the offences against the Public Property Act against him.

Rajapaksa maintained that the offences against the Public Property Act contains a provision in section 8(1) as amended where, upon the certification by a Police Officer that the value of the matter exceeds Rs. 25,000, it will not be competent for the magistrate’s court unless in exceptional circumstances to release such a person on bail after recording reasons.

Rajapaksa stated that one such method was to say that there was a criminal offence committed by Rajapaksa regarding monies belonging to the Sri Lanka Land Reclamation and Development Board (SLLRDC).

Rajapaksa stated that recently he was informed that he is to be arrested. He further said that originally the proceedings reflect a possible charge of money laundering. He stated that there is no offence whatever in respect of the said matter.

He states that the D.A Rajapaksa Foundation, a statutory body, entered into a contract with the Sri Lanka Land Reclamation Department for the construction of a monument at Madamulana in Weerakatiya. Rajapaksa states that there was no written contract.

He stated that, at all times the petitioner, the foundation and SLLRDC acted on the basis that there was a contract between the SLLRDC and the foundation and that the foundation would pay to the SLLRDC lawfully due for the construction of the monument.

He states that the monument was unveiled on or about November 6, 2014 though not complete because that was the death anniversary of the late D.A. Rajapakse.

The petitioner states that the government changed in January 2015 and the Sri Lanka Land Reclamation Board came under the Megalopolis Ministry, under Minister Patali Champaka Ranawaka.

In August of 2015, the Foundation received a request for a part payment which the foundation paid. The petitioner pleads that thereafter he received a letter of demand. The petitioner states that the said Attorney, who sent the letter has on several occasions acted for and on behalf of the Minister Patali Champaka Ranawaka.

The petitioner states that at no time has the foundation denied the liability to pay the money but has only queried the quantum. When the Petitioner’s statement was recorded by the FCID Petitioner requested for a government valuation to be obtained.

The Petitioner said the Government Valuer has in fact valued the construction at Rs. 33 million but the Foundation has not been provided a copy of the Government valuation. The Petitioner pleads that at all times the SLLRDC accepted the said monies as payments made in terms of the contract between the foundation and SLLRDC.

The Petitioner said he was informed upon the government valuation had been made known to the foundation; the foundation had on or about July 13, 2017 paid the balance sum of Rs. 33 million and thus paid SLLRDC the entire sum of government valuation.

Rajapaksa states that the foundation will be agreeable to have an arbitration to cause a fresh valuation of the construction if the SLLRDC is not agreeable to act upon the government valuation already obtained. The petitioner states he is aware that the Foundation would contest the action contemplated in the said letter of demand only to the extent of determining the actual value due.

Rajapaksa states that a court of competent jurisdiction will inquire into the said matter and will determine the cost of construction and the balance payment due which the Foundation will have to pay. The petitioner states that, in terms of the papers filed in the magistrate court, ex-facie there is no offence disclosed under and in terms of the imperative provisions of Offences Against Public Property Act.

President’s Counsel Romesh de Silva with Ali Sabry PC, counsel Sugath Caldera and Ruwantha Cooray under the instruction of counsel Sanath Wijewardane appeared for the petitioner.

Courtesy;Daily News

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