( 175 )
DIAS v. THE ASSISTANT GOVERNMENTi898.
AGENT OF MATARA.September 2.
D. C., Matara, 9,302.
Ordinance No. 1 of 1897—Notice calling for claims—Irregularity inpub lication—Reference to Court—Appearance of claimant in Courtand filing of statement of claim—Jurisdiction of Court—Waiver ofirregularities.
Where the notice calling for claims under section 1 of the Ordi-nance No. 1 of 1897, dated 15th June, was not published in theGovernment Gazette until 9th July, so that instead of the full periodof three months being given for claimants to come in, the period ofthree months less twenty-four days was given, and the GovernmentAgent referred to Court a claim made to him and not admitted byhim, and the claimant duly made in Court his statement of claim,—
Held, per Bonser, C.J.—In view of the stringent provisions ofthe Ordinance and the perilous consequences which follow on thepublication of a notice under it, no irregularity can be waived orcondoned by the fact of the claimant appearing in Court andmaking his statement of claim.
Per Withers, J.—The time for which the notice is to run is ofthe very essence of the notice, and non-observance of the require-ments regarding it renders subsequent proceedings of no effect.
r 1TH W proceedings in this case were based on a reference made-1- under section 5 of the Ordinance No. 1 of 1897.
It was as follows :—
“ In the matter of the land commonly known as Munupure-hena, &c., situate in the village of Talahagama in theMatara-Gangaboda pattu, in the Southern Province.
“ The notice required by section 1 of the Ordinance No. 1 of“ 1897 having been duly given on the 15th June, 1897, and“ published in the Government Gazette of the 9th July, 1897, in“ respect of the land commonly called Munupurehena, &c., as“ described in the annexed plan 4,727/ J 504, and containing in extent“ 35 acres and 23 perches, and a claim having been made thereto by“ Messrs. E. Dias and C. J. Le Mesurier, and due inquiry“ having been made by me, J. P. Lewis, Special Officer appointed“ under Ordinance No. 1 of 1897, of the Matara District of the“ Southern Province, into the said claim; and whereas I do not“ admit the said claim of the said E. Dias and G. J. R. Le Mesurier,
“ and I have failed to enter into any agreement with the said E. Dias“ and C. J. R. Le Mesurier in respect thereof, such claim is there-“ fore referred by me, under the powers vested in me by sections 5“ and 6 of the said Ordinance, to the District Judge of Matara.
“ J. P. Lewis,
“ Matara, December 30, 1897.“ Special Officer.”
( 176 )
Thereupon, on the 2nd day of March, 1898, E. Dias filed hisstatement of claim, and prayed that he may be declared ownerof the said lands, and that his title be upheld as against theGrown, &c.
The case came on for hearing before Mr. J. Casie Chitty,District Judge, and it was contended for plaintiff that thereference was not made by the Special Officer contemplated bysection 28 as the Special Officer “ for the whole Island,” but by aSpecial Officer for the Matara District; that the land in questionwas not stated in the reference to be forest, chena, waste, orunoccupied land; that the notice published in the Gazette of9th July, 1897, setting forth the 15th of June, 1897, as the date ofthe notice, was irregular, as it curtailed the three months’ noticeby twenty-four days ; and that on the face of the reference thereappeared only one publication of the notice in the Gazette insteadof six publications.
The District Judge ruled that three of the foregoing objectionswere amendable, but that the objection relating to the shortnotice in the Gazette was fatal. He therefore dismissed thereference as irregular and invalid, and ordered that each partybear his own costs.
The Assistant Government Agent appealed.
Ramanathan, S.-G., appeared for him.
The end and aim of the Ordinance No. 1 of 1897 is “ speedy“ adjudication ” of claims, as expressed ih the preamble of thatOrdinance. If, after publication of notice under section 1, aclaimant appeared and an inquiry followed, and his claim wasnot admitted by the Government Agent, but a reference was madeto the District Judge under section 5, and thereafter the DistrictJudge served notice on the claimant to appear and make a writtenstatement as against the Government Agent under section 7, andthe claimant came into Court in pursuance of such notice, it wasno longer permissible for him to take exception to any irregularityin the proceedings had before the Government Agent, as section16 casts an imperative duty on the District Judge of examining theclaimant and his witnesses on the day fixed for the hearing of thereference. The precise words of section 16 are: “ on the day
“ fixed for the hearing of the referencethe District Judge
“shall proceed to examine the claimant or his agent
“ and the witnesses of the parties, and upon such examination
“shall proceed to pass such Order on the case as he may
“ consider just and proper.” These words clearly show that, after
( 177 )
appearing before the District Judge in response to his notice, time igg8.should not be wasted in the discussion of technical objections Septembers.or irregularities of procedure, but the Court should proceed atonce to consider the merits of the case. The imperative words ofsection 16 were not to be found in the Land Acquisition Ordinance,
No. 3 of 1876. In the latter Ordinance, section 32 providesthat the proceedings before the District Court “ shall be subject,
“ so far as the same can be made applicable, to the rules, practice,
“ and procedure provided for or observed at the time of such“ proceeding in ordinary civil suitswhereas in section 13 of theOrdinance No. 1 of 1897 it is provided that the Civil ProcedureCode should regulate the proceedings, “ except as in this Ordinance“ provided.” These last-quoted words in Ordinance No. 1 of 1897necessitate a rigid interpretation of section 16 that “ on the“ day fixed for the hearing of the reference the District Judge“ shall proceed to hear the claimants.” Even in the case of theLand Acquisition Ordinance, which did not contemplate speedyadjudication of claims, and which was more elastic in its terms,
Bubnside, Chief Justice, was not prepared to say whether theDistrict Court could exercise jurisdiction under that Ordinancebefore allegation and proof that everything required to be donepreliminary to the reference had been done, and he decided onlythat, if it appeared on the face of the libel of reference that amaterial ingredient of procedure was not followed, the referenceshould be considered bad, on the principle that what was .allegedmust be proved (5 S. C. C. 188). As the Ordinance No. 1 of1897 was designed to bring the claimant into Court as plaintiff,the proceedings before the Court must be taken to commencefrom his statement of claim and not from the reference, which ismerely auxiliary to the main scheme of the Ordinance that themerits of the claim should be speedily considered and settledupon the allegations made in the statement of claim ; and clause2 of section 1 of the Ordinance No. 1 of 1897 nowhere enjoins thatthe publication in the Gazette should be on or before the dateof the notice, but only that there should be six publications.
Clause 1 of that section provides that the Government Agentshould declare by a notice that, if no claim was made within threemonths from the date of such notice, the land would be deemedthe property of the Crown. There is ample proof that theGovernment Agent made such a declaration, because the noticebore on its face its date, namely, the 15th of- June, 1897. Theexact words of the notice were : “ Take notice, that unless within“ three months from the 15th day of June, 1897, being the date“ of this notice, the persons who claim,” &c. The GovernmentVol. IQ.12(56)29
( 178 )
1893. Agent haying made his declaration by such notice, in his ownSeptember 2. offioe, to those present there, was obliged by clause 2 of section 2to “ advertise ” the notice in the neighbourhood of the land bybeat of drum, and to “ publish ” the notice in three languages sixtimes at least in the Gazette and once at least in any two of thenewspapers of the Island. Such advertisement and publishingneed not be contemporaneous or antecedent to the “ declaration ”referred to in clause 1. The declaration, advertisement by drum,and publishing in the Gazette and newspapers were three formsof publication, and the Ordinance provided that the production ofthe Gazette containing the notice should be reckoned as “ proof“ of the date and proper publication of such notice.” Therespondent had not shown that he had been in any way preju-diced by any of the so-called irregularities. If he wanted timeto prove his claim, he should have applied for a postponementof the hearing, but it is not permissible to discuss questions ofform and procedure so as to evade trial of the case on the merits.
Dornhorst (with Rudra), for respondent. As the OrdinanceNo. 1 of 1897 is an innovation on the existing law and gave theCrown extraordinary rights, the Crown should be put to the proofof every ingredient which the Ordinance enjoined, irrespectiveof the question whether the person forced into the position ofplaintiff had been prejudiced or not by irregularities of procedurebefore the reference.
The Chief Justice, after conferring with his learned brother,affirmed the order of the Court below, as follows :—
2nd September, 1898. Bonser, C.J.—
This is an appeal from an order of Mr. Casie Chitty, ActingDistrict Judge of Matara, who has held that he had no juris- ■.diction to deal with the reference which had been made tohim by the Special Commissioner appointed under OrdinanceNo. 1 of 1897. Now, that Ordinance is an Ordinance of anextraordinary nature. It provides that when it appears to theGovernment Agent of a province or to the Assistant GovernmentAgent of a district that any land within his province or districtis forest, chena, waste, or unoccupied land, it shall be lawful forhim to declare by a notice that, if no claim to such land is madeto him within three months from the date of such notice, suchland shall be deemed the property of the Crown. And it isfurther provided that, if no claim is made within three months,the Government Agent or Assistant Government Agent shall makeorder declaring such land to be the property of the Crown, thatsuch order shall be final, and when published in the GovernmentGazette shall be received in all Courts as conclusive proof that
( 179 )
the land is the property of the Crown. It further provides that 1808.if any person appears within the period of three months from the September 2date of the notice and makes a claim to the land, the Govern- Bonsbb, C.J.ment Agent or Assistant Government Agent is to hold an inquiryinto the claim. If he rejects the claim, he must refer the matterto the District Court, and that on that reference the claimant isto be deemed the plaintiff and the Government Agent or Assist-ant Government Agent to be deemed the defendant. The result,therefore, of a notice under this Ordinance is that the claimantis either altogether shut out without the power of -appeal to anyCourt, or is forced into the position of a plaintiff instead of beingin the more favourable position of a defendant. It is clear thatan Ordinance of this nature giving this extraordinary remedy tothe Crown must be construed strictly.
The 1st section makes provision for the publication andadvertisement of the notice which is to have such very seriousresults. It provides that the notice is to be published in theEnglish, Sinhalese, and Tamil languages, six times at least, in theGovernment Gazette. There is no provision there as to the dateon which the first publication is to be made, or as to the intervals’between these publications. The copies of the notice are to beposted on the land and also affixed to the walls of the severalKachcheries and Courts of the province within which such forest,chena, waste, or unoccupied land is situated, and in such otherlocalities as may secure the greatest possible publicity thereto, andthe said notice is likewise to be advertised by beat of tom-tom atsuch places on or near the land, and at such times as the Gover. •ment Agent or Assistant Government Agent may direct and order ;and then we have a clause which is very difficult to construe,which provides that every such notice shall be, as near as ismaterial, in the form in the schedule, and that the publication ofthe notice in the Government Gazette shall be proof of the dateand proper publication of such notice. It is almost impossibleto put any reasonable interpretation upon that last clause—thepublication of the notice is to be proof of the date, and of theproper publication itself. Does that mean that the production ofone Gazette in which the notice was first published is to be proofthat it was six times published ? Various other difficultiesmight be suggested as arising out of this clause. I do not thinkthat it is necessary for us now to attempt to solve this problemwhich has been propounded by the Legislature. It is not saidthat publication in the Gazette is Jo be conclusive proof : at most-it is proof which is liable to be rebutted by other evidence, andif, as in the present case, it should appear on the face of the libel
( 180 )
1898. of reference that there was no proper publication of the notice,September 2. then this clause becomes immaterial. In the present case, the noticeBonsbr.C.J. was dated the 15th of June, 1897. It was not published in the
Government Gazette until the 9th of July, 1897, so that instead
of the full period of three months being given for claimants tocome in, the period of three months less twenty-four days onlywas given. It seems clear that in the present case the noticewas not properly published, and I doubt whether a notice can beregular if its date is antecedent to the date of its publication inthe Government Gazette so as not to give the full three monthsto possible claimants.
Then, it was contended by the Solicitor-General that theclaimant had waived all objection to this irregularity by appearingand putting in a claim, but I am not prepared to hold that hisappearance under the circumstances of the case amounted to awaiver of the irregularity. As I said before, I am of opinionthat this Ordinance must be strictly construed in view of thestringent nature of its provisions and the perilous consequenceswhich follow on the publication of a notice under it. Besidesthe consequence to which I have referred, there are others of astill more serious nature : for section 22 of the Ordinance providesthat, whenever the Government Agent or Assistant GovernmentAgent has issued the notice prescribed by this Ordinance, it shallnot be lawful for any person thereafter to acquire any right in orover such land, or to enter therein or thereon, or (to cut the mattershort) to exercise any proprietory right over the land, and hisdoing so is made an offence punishable with rigorous imprison-ment for a term of three months. It is quite clear to my mindthat an act of a Government officer, which is to have so serious aresult as this, must be strictly performed, and that no irregularityought to be condoned.
For these reasons I am of opinion that the order of the DistrictJudge is right, and that the appeal should be dismissed.
I agree entirely with the judgment of the Chief Justice, and Iwill only add a few words. Government Agents and AssistantGovernment Agents are empowered by Ordinance No. 1 of 1897to initiate proceedings relating to claims to chena, forest,. waste,and unoccupied lands, which may end in a reference to acompetent Court to decide those claims, or may end, if no claimsare preferred, in a decision by one of those officers that the landbelongs to the Crown, a decision which is conclusive proof of thetitle of the Crown.
( 181 )
That being the case, it seems to me that due observance of therequirement of notice qua publication in all its forms, and quathe period of time during which the notice is to ran, is a conditionprecedent to the right of jurisdiction given by the Ordinance tothose officers. The time for which the notice is to run is of thevery essence of the notice, and non-observance of the require-ments regarding the notice, in my opinion, renders subsequentproceedings of no effect.
September 2.Withers, J.
DIAS v. THE ASSISTANT GOVERNMENT AGENT OF MATARA