013-NLR-NLR-V-55-SUFFRAGAM-RUBBER-AND-TEA-CO.-LTD-.-Petitioner-and-M.-J.-M.-MUHSIN-A.G.-A.-.pdf
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Suffragam Rubber and Tea Co., Ltd. v. JUvhsin
1953Present: Gratiaen J.SUFFRAGAM RUBBER AND TEA CO., LTD., Petitioner, andM. J. M. MUD-SIN (A. G. A., Ratnapura), Respondent
S. C. 169—In the matter of an Application for a Mandate in thenature of a Writ of Prohibition under section 42 of theCourts Ordinance (Cap. 6).
Writ of Prohibition—Land Acquisition Act, No. 9 of 1950 — Order for taking immediatepossession of a land■—Effect of—Claim for compensation—Scope of acquiringofficer’s inquiiy—Sections 4, 5, 9, 10, 16, 36, 37, 41—Construction ofstatute—Power of Court to fill in gaps.
Where, by virtue of the special powers vested in him under proviso (a) to section36 of the Land Acquisition Act, the Minister of Agriculture and Lands makesorder directing an “ acquiring officer ” to take immediate possession of a land on.the ground of urgency, the property vests absolutely in the Crown from the dateof the publication of the order in the Gazette, and the “ acquiring officer ” has nojurisdiction thereafter to commence or continue (once commenced) an inquiryinto claims for compensation under section 9 or to make an award under section'16. In such cases, the common law jurisdiction of the regular Courts of Justiceto determine disputes between the private individual (whose property has beencompulsorily acquired) and the Crown has not been superseded by the Act eitherexpressly or by necessary implication.
“ In the construction of a statute ‘ the duty of the Court5.—and a fortiori the dutyof a tribunal created by the sf atute—‘is limited to interpreting the words usedby the Legislature, and it has no power to fill in any gaps disclosed. To do so-would be to‘usurp the function of the Legislature.’”
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QRA^piAEJf J.—&uffrag am Rubber and Tea Co., Ltd. v. Muhsin
P PLICATION for a Writ of Prohibition.
V. Perera, Q.C., with D. S. Jayawickreme, for the petitioner.
Walter Jayavxirdene, Crown Counsel, with G. F. Sethuk-avaler, CrownCounsel, for the respondent.
July 17, 1953. Gkatiaek J.—
The petitioner is a company with limited liability and was the owner inthe Ratnapura District of an estate a portion of which was known asGalkaduwa Division. The respondent is the Assistant GovernmentAgent of the District and, by virtue of his office, is an “ acquiring officer ”wjthin the meaning of the Land Acquisition Act No. 9 of 1950.
On 28th May, 1951, the Minister of Agriculture and Lands, exercisingthe special powers vested in him under proviso (a) to sec. 36 of the Act,had made an order directing the respondent to take possession of Galka-duwa Division on behalf of the Crown. This order was duly published inthe Gazette on 30th May, 1951, and the property accordingly vestedabsolutely in the Grown with effect from that date (sec. 37). In the resultthe Company was automatically and by operation of law divested of itsformer title to this extent of land (hereinafter referred to for convenienceas “ the property ”.)
It is necessary to record in this connection that, prior to 28th May 1951,the respondent had, on the Minister’s direction, already initiated stepswith a view to the acquisition of the property in accordance with the morenormal procedure commencing with sec. 4 of the Act. Had that procedurebeen continued to its logical conclusion, the company would have enjoyedthe opportunity, if so advised, of making representations against the pro-posed compulsory acquisition of its property for a public purpose. Thisvaluable right was however lost when the Minister later decided, on theground of urgency, that it had become necessary to vest the propertyforthwith in the Crown, thereby depriving the Company of the opportunityof showing cause why the proposed acquisition should not take place.
Notwithstanding the effect of the Minister’s statutory order to whichI have previously referred, the respondent purported to proceed, in re-spect of the property, with the various steps prescribed in the Act for theultimate vesting of private land in the Crown under sec. 37 on the basisthat it “ should be ” {vide sec. 5) and was “ to be acquired ” {vide secs. 9,10and 16)—whereas in truth and by operation of law the acquisition of thisparticular property had already been complete on 30th May, 1951. Onthis fictitious hypothesis he fixed a date for the holding of an inquiryunder sec. 9 at which he proposed inter alia to make a .purported award forcompensation under sec. 16 (1) (c) in accordance with the statutory basisof computation laid down by sec. 41 of the Act.
The Company’s contention is that an “ acquiring officer ” has nojurisdiction to hold an inquiry under sec. 9 or to make an award undersec. 16 in cases where property has already been vested in the Crown undersec. 37 by virtue of the publication of an emergency order made by the
■46 GRATIAEN J.—Suffragan Rubber and Tea Go., Ltd. v. ftfy hsin
Minister under sec. 36 proviso (a). It accordingly asked for a mandatein the nature of a writ of prohibition prohibiting the respondent fromholding an inquiry under sec. 9 of the Act or from resuming the inquirywhich he had purported to commence to hold under that section. Theapplication came up ex parte in the first instance before my brotherPulle who entered a rule nisi in favour of the Company. On 8th July,1953, I made the rule absolute with costs after hearing Counsel for bothsides. I now proceed to pronounce the reasons for my decision.
Before the passing of the Land Acquisition Act No. 9 of 1950, theregular Courts of Justice were alone vested with jurisdiction to fix theamount payable to private parties as compensation for the compulsoryacquisition of their property by the Crown. This jurisdiction has nowbeen substantially, but only to the extent laid down by the relevantlegislation, been transferred to statutory tribunals. It is apparent thatthe scope of the jurisdiction of these new tribunals must be found withinthe four comers of the Act itself. If one examines the limits of therespondent’s jurisdiction upon this footing, one finds that, as conditionsprecedent to the commencement or the continuation (once commenced)of an inquiry under sec. 9, the following steps are essential :
The appropriate Minister must have issued a direction under sec. 4 (1)
and must, after the prescribed procedure has been followed,have decided under sec. 4 (5) that the property “ should be…. acquired under (the) Act ”. (The words of futurity are
important).
The Minister must, following upon his decision under sec. 4 (5),
have issued a further direction to the acquiring officer undersec. 5 (1).
The Minister’s direction under sec. 5 (1) must have been carried out.
The provisions of sec. 7 must have been complied with.
It is quite evident from this analysis that whenever, before the conclusionof an inquiry under sec. 9, the publication of a Minister’s order under _sec. 36 proviso (a) has had the automatic effect of vesting the property inthe Crown, the acquiring officer’s jurisdiction under sec. 9 is forthwithterminated. The Act does not confer upon him any statutory jurisdictionto determine issues of fact or law arising after the property previouslybelonging to a private individual has vested in the Crown. Once that hasoccurred, the Minister himself is powerless to confer any further juris-diction on the acquiring officer by purporting to give him further directions(under sec. 5) which have no relation to reality. Indeed, it is implicitin the provisions of secs. 5, 7, and 9 that the property concerned has notyet vested in the Crown.
The Act is silent upon the question as to who should determine theamount, if any, of compensation payable to a person whos^ property hascompulsorily been acquired by virtue of the publication of the Minister’sorder under sec. 36 proviso (a). It follows that an acquiring officer whopurports to exercise judicial functions in respect of any dispute arisingin that context would be usurping a jurisdiction which the Legislature hasnot conferred upon him.
Vyramuttu v. Idylvaganam
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In the construction of a statute “ the duty of the court ”—and a fortiorithe duty of 2 tribunal created by the statute—“ is limited to interpretingthe words used by the Legislature, and it has no power to fill in any gapsdisclosed. To do so would be to usurp the function of the Legislature ”—Magor and St. Mellons Rural District Council v. Newport Gorp.1 Applyingthis principle, I am satisfied that the clear and unambiguous words by theLegislature which passed the Act do not extend an acquiring officer’sjurisdiction under sec. 9 to cases where the Minister’s special powersunder sec. 36 proviso (a) have been exercised and have already resulted ina vesting of the property under sec. 37. 3h such cases the common lawjurisdiction of the regular Courts of Justice to determine disputes betweenthe private individual (whose property has been compulsorily acquired)has not been superseded either expressly or by necessary implication.To take any other view would be to “ twist the words and phrases (of theAct) into a sense that they cannot fairly and reasonably bear ”—Mohindar Singh v. The King a. It is quite improper to assume that thisresidual jurisdiction of the Courts has survived the impact of the statuteonly through some inadvertence on the part of Parliament. Indeed,even if that could be assumed, it is not for this Court to indulge in“ guesswork with what material the legislature would, if it had discoveredthe (alleged) gap, have filled it in.If a gap is disclosed the remedy lies in
an amending Act ”—per Lord Simonds in Magor's case (supra).
Rule made absolute.