133-NLR-NLR-V-58-M.-SIVANATHAN-Assistant-Government-Agent-Appellant-and-J.-V.-VANDERPOORTEN-.pdf
Present: Weerasooriya, J., and Sansotil, J.
SIVANATHAN (Assistant Government Agent), Appellant,and J. V. VANDERPOORTEET cl al., Respondents
S. C. 09—D. C. (Inly.) BatlicaJoa, SljL. A.
Land acquisition—Decision oj Land Commissioner to acquire a land under LandJfedemption Ordinance—Jurisdiction of District Court to question its validity—Land Redemption Ordinance, -Vo. til of 1012. s. 3 (1) ( J) (5)—Land AcquisitioniVo. 9 of 1950, ss. 5, 10.
Having regard to the limited and special jurisdiction' of a District Court inlaud acquisition proceedings under the Land Acquisition Act, a District Courtis not the proper forum to adjudicate on the validity of a determination madeby the Land Commissioner that a particular land which is sought to ho acquiredby him is of the description contained in section 3 (1) of the Land RedemptionOrdinance.
.A.PPEAL from an order of the District Court, Batticaloa.
.1 /. Tiruchelvam, Deputy Solicitor-General, with V. Tennekoon and./. W. Suba-sinyhe, Crown Counsel, for the plain tiff-appellant.
T. P. P. Goonetilleke, for the 1st defendant-respondent.
Walter Jayau-ardene, with J/. Shanmuganathan, for the 2nd defendant-respondent..
Cur. adv. vult.
June IS, 1957. Weerasooriya, J.—
This is an appeal by the plaintiff, as the acquiring officer, from apreliminary order of the District Judge in the course of proceedingsinitiated on a reference made to the District Court of Batticaloa undersection 10 (2) of the Land Acquisition Act, !No. 9 of 1950 (hereinafterreferred to as “ the Act”).
The reference carue to be made as one of the steps taken under the Act fox'the acquisition of certain portions of a land called Mankai MariammanEstate situated in the Batticaloa District. The plaint constitutingtho reference recites that at the inquiry held by the acquiringofficer (under section 9 of the Act) the 1st and 2nd defendants, who arethe onty respondents who were represented at the hearing before us,between them claimed the entirety of the extent sought to be acquiredwhile the 3rd and 4th defendants claimed 3/20 and 1/20 shares respect-ively and the 5th and 6th defendants by their attorney the 7th defendant,together claimed 2/20 shares ; that the acquiring officer at the conclusionof the said inquiry made a decision in regard to these claims, and that the1st and 2nd defendants applied in terms of section 10 (2) of the Act for areference to Court of the dispute between them and the other, claimants,
2 4Lviii'
.2J. X. B 678X3—1,593 (SJ57)
It would appear from the document P 10, which is the statutory noticeof the decision^ made by the plaintiff, that lie allowed in full the res-pective claims of the 3rd, 4th, 5th and 6tli defendants amounting to 6/20shares, and that the balance shares were allotted among the 1st and 2nddefendants in the proportion of 9/20 to the 1st defendant and 5/20 to the2nd defendant. The only matter, therefore, that arose for the determina-tion of the Court on the reference before it was whether the 1st and 2nddefendants were between them entitled to the entirety of the land soughtto be acquired to the exclusion of the other claimants.
While appropriate issues relating to this dispute were raised at thetrial, counsel appearing for the 1st and 2nd defendants also raised certainother issues the effect of which was to question the validity of the decla-ration made by the Minister under section 5 of the Act, the steps taken63' the acquiring onicer under the Act pursuant to that declaration and. also the jurisdiction of the Court to entertain the reference. Theseissues are numbered (1) to (4), and it was in view of them that counselfor the plaintiff framed the additional issues numbered (16) to (IS)relating to the competency of the Court to go into those matters.
It is common ground that the acquisition proceedings commencedas a result of a determination made by the Land Commissioner, pur-porting to act under the provisions of the Land Redemption Ordinance,No. 61 of 1942, that the land should be acquired for the purposes of thatOrdinance. Prom the terms of issue No. 1 it may be gathered that the:declaration of the Minister under section 5 of the Act is being challengedon the ground that the purported determination made by the LandCommissioner under the Land Redemption Ordinance is invalid for thereason that the land to which that determination relates does not fallwithin paragraphs (a) and (b) of section 3 (1) of that Ordinance. In theorder appealed from the learned District Judge held that while the Courtwas precluded from reviewing the merits of the investigation made bythe Land Commissioner in arriving at his determination it could, neverthe-less, ascertain, by hearing evidence if any is adduced, whether the land isof the description contained in section 3 (1) as a matter affecting thejurisdiction of the Court to take cognizance of the reference.
Section 3 (5) of the Land RedemiJtion Ordinance provides that when theLand Commissioner makes a determination for the acquisition of anyland which he isem powered toaequire under that Ordinance, the provisionsof the Act subject to certain exceptions, substitutions and modi-fications, shall apply for the purposes of the acquisition of that land.One of the exceptions is that sections 2, 3 and 4 of the Act, which providefor the taking of certain preliminary steps before the Minister makes adeclaration under section 5, shall not apply. Section 5 (as modified)jDrovides in sub-scction (1), inter alia, that where the Land Commissionerdetermines that any land shall be acquired for the purposes of the LandRedemption Ordinance the Minister shall make a written declarationthat such land is needed for a purpose which is deemed to be a publicpurpose and will be acquired under the Act, and in sub-section (2) thatsuch declaration shall be conclusive evidence that the land referred toin it is needed for that purpose.
Tlii' greatt r part of t lie arguments addressed to us in appeal on bothshies revolved on the quest inn as to the exact significance of the conclusivee/fec-f given to the Minister’s declaration under section 5 (2) of the Act.but in the view that I have taken of this case, as will presently appear,it is not necessary that I should discuss the numerous authorities thatwere cited to us in that connection.
Immediately prior to the coming into operation of the Act the lawrelating to the compulsory acquisition of land by the Crown was containedin the hand Acquisition Ordinance (Cap. 203). That Ordinance providedfor the Surveyor-General or an officer authorised by him making apreliminary report as regards the suitability of the land for the purposefor which it was sought to be acquired and on receipt of the report,whatever may have been its terms, the Governor was empowered, if heconsidered it fi- to do, to direct the Government Agent to take stepsfor the acquisition of (he land. Then follow the provisions relating to1 he giving of public notice of the proposed acquisition, the preferring off-laims by persons having interests in the- land, the holding of an inquiryinto the value *>f the land and the* compensation to be paid therefor, andthe reference for determination by a District Court or Court of Requestsof disputes as to the amount of compensation or questions respecting thetitle to the land or any rights thereto or interests therein arising between .or among two or more persons.
Jii theeaseof The Assistant Government Ayent, Kalutara v. Wijeysekere1,in dealing with the question whether it was open to a defendant on areference to Court under that Ordinance to question the statement in theGovernor’s mandate that the land was needed for a public purpose, deiSampayo, J., observed that the na t lire and purpose of the reference to Court-precluded the raising of such question. The Court’s jurisdiction ”, hesaid,is limited by the Ordinance : it- is cither to make an award of compensa-tion where the claimants and the Government Agent are disagreed onthat point or to decide the question of title to the land where there is anydispute among the claimants or where all the parties interested have notappeared before the Government- Agent”. Accordingly he held thatthe Court has no right to decide that the Governor had exercised a wrongdiscretion in considering that the land was needed for a- public purposeand on that ground to decline jurisdiction on a reference made to it bythe Government Agent. He also rejected the argument that because thecorresponding Indian Act contained a provision giving conclusive effectto the statement in the statutory declaration that the land was neededfor a public purpose therefore under the C'cyhm Ordinance, which con-tained no such provision, it was open to a party to question the decisionof the Governor that it- was needed for such a purpose and to lead evidenceto the contrary. An appeal was unsuccessfully taken before the JudicialCommittee of the Privy Council from the decision of this Court in thatease. In dismissing the appeal their Lordships observed2 that the“ nature of the objection raised is such that it would be obviouslyunsuitable for the District Court, which is concerned with the question ofcompensation which would arise if the land is to be taken They also
' (1917) 4 C. W. R. 251.* (1919) A. C. C40 of 619.
approved an earlier decision of this Court on the same point in the case ofThe Government Agent v. Ter era. 1•
Ever since the decision of these cases the question whether on a refer-ence under the Land Acquisition Ordinance the Court can go behind theGovernor’s mandate that the land was needed for a public purpose anddecline jurisdiction on the ground that it was not so needed has beenregarded as effectively settled. It seems to me that the same questionis now sought to be raised under the guise of the provisions of the Act,which replaced that Ordinance only comparatively recently. Beforethe Act came into operation the procedure for the acquisition of land hirespect of which the Land Commissioner had made a determinationunder the Land Redemption Ordinance was that contained in the LandAcquisition Ordinance. We were referred to the case of Perera v.Unantenna et al.- where, on a determination having been made by theLand Commissioner, proceedings were taken for the acquisition of theland and areference made to Court under the Land Acquisition Ordinance.'While the judgment in that case docs appear to contain certain observa-tions which suggest that on a reference so made it was competent for theCourt to entertain an objection to the validity of the reference on theground that the Land Commissioner had acted in excess of jurisdictionin making his determination, there is nothing in the judgment to indicatethat the effect of the earlier decisions to which I have referred had beenconsidered. I do not think, therefore, that the last mentioned casecan be regarded as in any way affecting the authority of the earlierdecisions, one of which is a decision of the Privy Council.
Of the many arguments addressed to us with great persuasive forceby Mr. Jaycwardene who'ajipcared for the 2nd defendant-respondent onewas that a valid determination by the Land Commissioner is a conditionprecedent to the Minister’s exercise of his powers under section 5 (1) ofthe Act to make a declaration t hat the land to which that determinationrelates is needed for a purpose deemed to be a public purpose, and thatit is only in such a case that conclusive effect given in section 5 (2) appliesto the declaration. But- conceding that to be so, I do not think that itis competent to the Court to which a dispute is referred for determinationunder the Act to decline jurisdiction on some ground affecting the validityof the Land Commissioner’s determination. Xo doubt, when a questionis raised as to the jurisdiction of a Court or other tribunal, it has al waysthe power to decide it, but the authority of the Court- or tribunal todecide that question must necessarily be circumscribed b}1, the verynature of the jurisdiction conferred on it in regard to the particularmatter submitted to it for adjudication. The limits of this jurisdictionare to be looked for in the statute under which the Court or tribunal isconstituted, and may be cither as to the kind and nature of the action orproceeding of which the Court so constituted has cognizance or as to thearea over which its jurisdiction shall extend. A comparison of theprovisions of the Land Acquisition Ordinance relating to the steps to betaken subsequent to the Governor’s mandate and leading up to thereference to Court, with the corresponding provisions in the Actconsequent on the Minister’s declaration under section 5 (2), would show1 (1.903) 7 X. R. R. 313.* (1933) 34 X. T>. R. 437.
that the provisions in the two enactments are not substantially different.Furthermore, it would appear that where the Land Commissioner, in thepurported exercise of his powers under the Land Redemption Ordinance,makes a determination that a land should be acquired for the purposesof the Ordinance and that determination is communicated to the Minister,the latter is called upon under section 5 (1) of the Act (as modified)to make his written declaration that the land is needed for a purposedeemed to be a public purpose and will be acquired ; and the conclusiveeffect referred to in section 5 (2) would apply to that declaration. Thecommunication of the Land Commissioner’s determination to theMinister is a purely administrative act and no authority is conferred onthe Minister to inquire into the validity of the determination before hemakes his declaration.
Section 10 of the Act provides what matters may be referred by theacquiring officer to the determination of a Court, namely, every claimmade by any person to any light, title or interest to, in or over theland which is to be acquired or over which a servitude is to be acquired,and every dispute that may have arisen between any claimants as toany such right, title or interest. The acquiring officer may in the firstinstance refer such claim or dispute to Court without making his decisionthereon. Or where he has made his decision, any party to the dispute ora claimant whose claim is wholly or partly disallowed may apply to himfor the reference of the claim or dispute to Court. The section also con-tains provision that the reference shall be to the District Court or theCourt of Requests having jurisdiction over the place where the land whichis to be acquired is situated according as the total amount of the claimsfor compensation for the acquisition of the land exceeds or does notexceed three hundred rupees.
It would undoubtedly be open to a Court before which a reference ispending to inquire into and decide objections to its jurisdiction on theground that the reference has not been made by the proper authority orthat by reason of the situation of the land which is to be acquired orover which a servitude is to be acquired, or of the total amount of theclaims for compensation for the acquisition of the Zand or servitude, theCourt is not the appropriate Court to which the reference should be made.
But a consideration of section 10 and the preceding provisions of the Actlead me to the conclusion that it is not open to the Court to considerobjections to the reference on the ground of the invalidity of either theMinister’s declaration or the Land Commissioner’s determination anddecline jurisdiction on that ground. I am fortified in this view by thedecisions to which I have already referred. Especially do I considerthat the observations quoted earlier from the judgment of de Sampayo,
J., in The Assistant Government Agent, Kalulara v. TVijeyesekera {supra)are equally applicable to a reference to. Court under the Act as they areto a reference under.the Land Acquisition Ordinance.
– If the view thafil^ave taken is right a question may arise as to whafclegal remedy isywailable to a party against the determination of theLand Commissiomir that a land should be acquired for the purposes of
2*J. X. B 67843 (3/57)
the Land Redemption Ordinance. The Ordinance itself does not providefor an appeal from the Land Commissioner’s determination, and it maywell be that no remedy is available. Where, however, the Land Commis-sioner has acted in excess of his jurisdiction in making the determinationI do not see that the remedy of certiorari would not be available to quashit even in a ease where the Minister has in pursuance of the determinationmade his declaration under section 5 (1) of the Act . It is well establishedthat the conclusive effect given in a statute to an act or declaration,whether of an administrative, judicial or quasi-judicial body, will notby itself exclude the remedy of certiorari. As; however, the questiondid not directly arise in this appeal and was not fully argued before us,it is not necessary that I should express a definite opinion on it.
I'1 or the reasons already given the order appealed from is set aside andthe case is i*einit-ted to the Court below so that the trial may be proceededwith on issues (5) to (15) only of the issues already framed and suchfurther issues (if any) as may in terms of this judgment be properly raisedas relating to the particular matter referred to the determination of theCourt.
The plaintiff will be entitled to receive from the 1st and 2nd defendantshis costs of appeal as well as of the proceedings held on the Sfch March,1956. –
Saxsoxi, J.—
I agree and have very little to add.
The Privy Council judgment in Wijeyesckera v. Fesling 1 proceedson two grounds : (1) that the District Court in a proceeding under theLand Acquisition Ordinance No. 3 of 1876 was concerned with the assess-ment of compensation ; and (2) that the decision of the Governor thatthe land was wanted for public purposes was final, and was intended tobe final, and could not be questioned in any Court.
The first ground seems to me to apply to the present case, even thoughthe Land Acquisition Act No. 9 of 1950 has repealed and taken the placeof the Ordinance of 1876. Under both statutes the District Court orCourt of Requests has been empowered to adjudicate on the respectiverights and claims of the parties who claim the compensation, but onlyin order that the compensation may.be correctly apportioned amongthe claimants.
When one examines the provisions of the Land Acquisition Act- relatingto a reference of a claim or dispute by an acquiring officer to the District-Court or the Court of Requests, it seems clear that the particular Courtto which the reference is made has jurisdiction only to decide that claimor dispute and nothing else. Special provisions deal with the conductof the proceedings, the stamp duty leviable, the award of costs, and theright of appeal, on a reference. These provisions indicate that- a reference
1 {1015) A. C. 646..
is not tlic equivalent of a, regular action in a District Court or Court ofRequests. It is therefore not open to a plaintiff or defendant in areference to raise issues which are appropriate only to such an action.
Rut the principle would still apply that “ wherever jurisdiction isgiven to a Court by an Act of Parliament or by a Regulation in India(which has the same effect as an Act of Parliament) and such jurisdictionis onlj' given upon certain specified terms contained in the Regulationitself, it is a universal principle that these terms must be complied with,in order to create and raise the jurisdiction, for if they be not compliedwith the jurisdiction does not arise”—see the judgment of the PrivyCouncil in Nussc.rtca.njee Pestonjce v. Jleer Mynoodeen KJianl. Thisprinciple would enable the District Court to enquire whether thereference is valid or not, by seeing whether the conditions laid down inthe Act governing references have been fulfilled. One such condition isthe time limit of 14 days within which the claimant should apply to theacquiring officer to refer the claim to Court; another condition is thatthe Court must be one having local jurisdiction in respect of the landwhich is to be acquired—section 10 (2).
Rut the 1st and 2nd defendants-respondeuts would go further, and itwas argued on their behalf that the District Court in these proceedingscould and should inquire into the validity of the determination of theLand Commissioner made by that officer under section 3 (4) of the LandRedemption Ordinance ISTo. 61 of 1942. I do not accept this submissionbecause it does not seem to me that a valid determination of the LandCommissioner is a condition governing the exercise of jurisdiction by theCourt. I think we must look in the Land Acquisition Act itself and notoutside it for the terms upon which that jurisdiction can Be exercised.
Let it be assumed that the Land Commissioner has acted without juris-diction in making his determination. It maj' well be that the validityof such a determination could have been questioned in appropriate pro-ceedings. There would be much force in the argument that the deter-mination of the Land Commissioner who acts under a limited jurisdictionconferred on him by the Land Redemption Ordinance has not the samebinding effect as the decision of the Governor made under section 6 ofthe Land Acquisition Act of 1S76. The provisions of the. two statuteson this point arc so dissimilar that the second ground on which thedecision in IVijeyesekera v. Festing 2 went would hardly be applicable tothe determination of the present appeal.
I would therefore rest my decision in this appeal on the ground that,having regard to the limited and special jurisdiction of a District Courtin land acquisition proceedings, it is not the proper forum to adjudicateon the validity of the Land Commissioner’s determination.
I agree with the decision of my brother that the trial should proceedon issues (5) to (15) only, and such further issues as may be properlyraised having regard to our judgments.-
1 (ISoo) G -Moore's I. .4. lot.
■Order set aside.- (1019) .-1. C. GIG.