075-NLR-NLR-V-61-THA-LAND-COMMISSIONER-Petitioner-and-KATHIRKAMAN-PILLAI-and-another-Responden.pdf
298K. D, DB SILVA, J.—Land Commissioner v. itathirTcaman Pittai
Present: X. D. de Silva, J., and Sansoni, J.
THE HAND COMMISSIONER, Petitioner, and KATHIR-IK AM AN PILLAI and another, Respondents
S. C. 72—Application for Conditional Leave to Appeal to the PrivyCouncil in S. C. 457}D. C. Colombo 2882
Privy Council—Application for conditional leave to appeal—Acquisition of land byLand Commissioner under section 3 {1) (b) of Land Redemption Ordinance,No. 61 of 1942—Valuation of matter in dispute—“ Great general or publicimportance ”—Appeals (Privy Council) Ordinance [Cap. 83), Schedule,Ride 1 [a) (6).
In an application made by the Land Commissioner for conditional leaveto appeal to the Privy Council in an action in which he seeks to justifyacquisition of land by him under section 3 (1) (b) of the Land RedemptionOrdinance, he is entitled to avail himself of the latter part of rule 1 (a) of theSchedule to the Appeals (Privy Council) Ordinance. In such a case, thedetermining factor is the value of the land in question. The fact that theLand Commissioner has to pay compensation to the owner is immaterial indeciding whether or not he is entitled to appeal to the Privy Council as ofright.
Leave to appeal granted also on the ground that the question involved inthe appeal was one of great general or public importance within the meaningof rule 1 (b).
PPLICATION for conditional leave to appeal to the Privy Council.
Tennekoon, Crown Counsel, with H. L. de Silva, Crown Counsel,for the Defendant Respondent-Appellant.
H. V. Perera, Q.C., with H. Wanigatunga, for the substituted Plaintiff-Respondent.
Cur. adv. mdt.
August, 8,1958. K. D. de Silva, J.—
This is an application by the Land Commissioner who is the 2nddefendant respondent for conditional leave to appeal to Her Majestythe Queen in Council against the judgment of this Court dated January31, 1958, in the District Court Colombo case No.288/Z. The substitutedplaintiff objects to the application being granted firstly on the groundthat no appeal lies as of right in that (a) the matter in dispute on theappeal does not amount to and/or is not of the value of Rs. 5,000 or more(6) the appeal does not involve directly or indirectly a claim or questionto or respecting property or any civil right of the value of Rs. 5,000 ormore. Secondly, it is contended on his behalf that no appeal lies at thediscretion of the Court in that the question involved in the appeal is notone which by reason of its general or public importaoxce or otherwiseought to be submitted to Her Majesty in Council for decision.
K D. DE SILVA, J".—hand Commissioner v. Kathirkaman Pittai
299
Before proceeding to consider these objections it is necessary to referconcisely to the relevant facts in the case. One Elaris Perera the 3rdadded defendant respondent by bond No. 391 dated September 30,1925 (PI) hypothecated a number of lands one of which is calledKeeriyankalliya Estate, to secure a sum of Rs. 50,000 which he borrowedfrom three Chettiars, namely, Sockalingam,Subramaniamand Arunasalam.He executed a secondary mortgage of the same lands to secure anotherloan of Rs. 25,000 which he obtained from five Chettiars two of whomwere Sockalingam one of the mortagagees on Pi and Sekappa Chettiar.Elaris Perera then executed the tertiary bond No.'2339 dated March 8,1931 (P3) for Rs. 20,000 in favour of one Elaris Dabrera. According tothe terms of bonds PI and P2 the loans due on them were repayable toany one or more of the mortgagees. Sockalingam put the bond P2 insuit and obtained the decree Pd on June 22, 1933. Thereafter ElarisPerera by deed No. 4010 of May, 1935 (P5) transferred ELeeriyankalliyaEstate and some of the- other lands mortgaged on PI and P2 to twoof the mortgagees namely Sockalingam and Sekappa in the proportionof 2/3 to the former and 1/3 to the latter and their interests passed tothe original plaintiff by right of purchase. The substituted plaintiff isthe administrator of the estate of the original plaintiff. The considerationappearing on deed P5 is Rs. 75,000 and this amount was set off in fullsatisfaction of the claim and costs due on the decree P4 and the principaland interest due on bond PI. Thereafter the Land Commissioner atthe request of Elaris Perera made his determination under section 3 (4)of the Land Redemption Ordinance No. 61 of 1942 that EeeriyankalliyaEstate be acquired. The plaintiff then instituted this action againstthe Attorney-General and the Land Commissioner praying for aninjunction restraining them from acquiring the land, on the ground thatthe Land Commissioner had no right to acquire it under the provisions ofthe Land Redemption Ordinance, The Attorney-General and the LandCommissioner filed a joint answer stating, inter alia, that (a) the land inquestion came within the description contained in section 3 (1) (6) ofthe Land Redemption Ordinance and (6) that the Land Commissioner’sdetermination to acquire the property could not be questioned in thisaction and that the District Court had no jurisdiction to entertain it.The learned District Judge dismissed the action whereupon the plaintiffappealed to this Court. The appeal was argued before a Bench of threeJudges one of whom was My Lord the Chief Justice. The majorityof the Court held in favour of the plaintiff and allowed the appeal. TheLand Commissioner now seeks to appeal from that decision to HerMajesty the Queen in Council. The right to appeal to the Privy Councilis governed by rule 1 in the schedule to the Privy Council AppealsOrdinance (Chapter 85).
This rule reads as follows :—
1. Subject to the provisions of these rules, an appeal shall lie—<
(a) as of right, from any final judgment of the Court where thematter in dispute on the appeal amounts to or is of thevalue of five thousand rupees or upwards, or where the
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K. D. DE SELVA, J.—Land Commissioner v. KaiJnrhaman Pitta*
appeal involves directly or indirectly some claim or questionto or respecting property or some civil right amounting toor of the value of five thousand rupees or upwards; and
(6) at the discretion of the Court from any other judgment of theCourt whether final or interlocutory, if, in the opinion of theCourt, the question involved in the appeal is one which, byreason of its great general or public importance or other-wise, ought to be submitted to His Majesty in Council fordecision.
Mr. H. V. Perera, Q.C., who appeared for the substituted plaintiffsubmitted that the value of the matter in dispute must be looked atfrom the point of view of what it is worth to the appellant. He arguedthat the Land Commissioner does not derive any pecuniary benefit ifhe is permitted to acquire this land as he has to pay compensation to theowner at the market value. He further submitted that the object ofthe Land Commissioner in acquiring this land was to give it over toElaris Perera the original owner. In regard to that argument it mustbe observed that the Land Commissioner in the event of acquiring theland is not legally bound to give it over to Elaris Perera although in allprobability he would do so.
Mr. Tennekoon, C.C., who appeared for the Land Commissioner statedthat he relied on the second limb of rule 1 (a). He submitted that theappeal involved directly or indirectly a question respecting propertyof the value of Hs. 5,000 or upwards. Admittedly the original plaintiffvalued Keeriyankalliya Estate in his plaint at Hs. 75,000. The factthat the Land Commissioner has to pay compensation he submitted wasimmaterial in considering the applicability of the latter part of rule 1 (a).In support of his argument he relied on the judgment of the Privy Councilin Meghji Lakhamshi db Brothers v. Furniture Workshop1. That was anaction brought by certain landlords to eject their tenants from the leasedpremises situate in East Africa. The action was dismissed whereuponthe plaintiffs appealed to the Privy Council. The respondents raisedthe preliminary objection that no appeal lay as of right because thematter in dispute on appeal was less than £500 sterling in value. Thecorresponding rule regarding appeals as of right to the Privy Councilfrom East Africa is substantially the same as our rule 1 (a). In that casethe respondents contended that the true test as to how much the matterm dispute was worth to the appellants if they succeeded in the appealwas to be measured by deducting from the value of the land with vacantpossession its value to the owners subject to the statutory tenancy. TheirLordships agreed that the “ value ” must he looked at from the pointof view of the appellant and that therefore an appeal might sometimeslie where the landlord was the appellant although there would he noappeal by the tenant or vice versa. Then they proceeded to observe** "Whatever the result might be in the present appeal if the words‘ where the matter in dispute on the appeal amounts to or is of the value
1 {1954) 1 A. E.B. 273.
K. D. DE SILVA, J.—Land Commissioner «. Kathnrleoman Pitlai
361
of £500 or upwards * stood alone, their Lordships are of the opinionthat the case falls within the latter part of the article which deals with‘ some claim or question to or respecting property • … of the saidvalue or upwards, and that, on the true construction it is the value ofthe property, not the value of the claim or question, which is thedetermining factor. The presence of the word ‘ indirectly ’ seems torequire this construction. ” Mr. H. V. Perera, too, relied on this decisionbut in my view it lends support to Mr. Tennekoon’s contention thathe is entitled to avail himself of the latter part of rule 1 {a). The factthat the Land Commissioner has to pay compensation to the owneris immaterial in deciding whether or not he is entitled to appeal to thePrivy Council as of right, in this case. If the Land Commissioner soughtto acquire a limited right over this property the position would bedifferent. The point in issue is whether or not the Land Commissioneris entitled to acquire the full ownership of this estate which admittedlyis worth Rs. 75,000. Therefore the proposed appeal involves directlyor indirectly a question respecting property of the value of over Rs. 5,000.Hence, rule 1 (a) applies and the Land Commissioner is entitled to appealto the Privy Council as of right.
Mr. Tennekoon also contended that the question involved in thisappeal is one of great general or public importance and that therefore hewas entitled to ask the Court in terms of rule 1 (J) to exercise itsdiscretion in his favour. He stands on very sure ground in relation torule 1 (b). Not one but, several questions of law came up for decision whenthe appeal was argued before this Court. Those are questions whichwould readily fall within the description of “ great general or publicimportance or otherwise”. One such matter was the interpretationof section 3 (1) (5) of the Land Redemption Ordinance but it was notpossible to reach a unanimous decision on it. Another question wasin regard to the legal effect of the Land Commissioner’s determinationmade under section 3 (4) of that Ordinance. It is not necessary toenumerate here all the matters of importance which came up for decision.My Lord the Chief Justice opened his judgment with the words “ Manyquestions of great public importance arise on this appeal ”. I respectfullyagree with that observation. I would therefore exercise the discretionin favour of the Land Commissioner under rule 1 (6).
Accordingly I grant conditional leave to appeal to Her Majesty theQueen in Council on condition that the appellant complies with thenecessary requirements set out in rule 3 within one month of this date.The substituted plaintiff will pay the costs of th-is inquiry to the LandCommissioner.
Sansont, J.—I agree.
Application allowed.