The Attorney-General v. Wijesuriya.
1946Present: Soertez A.C. J. and Cannon J.THE ATTORNEY-GENERAL, Appellant, and WIJESURIYA,
205—D. (7, Colombo, 26,380•
Crown land—Lease of—Must conform to Land Sales Regulations—LandCommissioner's right to bind Croton.
The plaintiff pleaded that by a contract between him and an agent ofthe Land Commissioner the Land Commissioner was bound to lease tohim for a period of four years and two and a half months the right tooccupy certain allotments of Crown land and tap and take the produce ofall the plantations on them. There Were no plantations other thanrubber on the allotments.
Held, (i.) that the transaction contemplated in the contract was alease of land ;
(2.) that, whether the transaction be regarded as a lease orsomething less than a lease, the Land Commissioner had not thepower, under the Regulations relating to dispositions of Crown lands,to render the Crown liable by entering into that contract.
PPEAL from a judgment and decree of the District Court of Colombo.
The plaintiff sought, in this notion, to recover from the Crown the
sum of Rs. 75,000 as damages alleging that the Government' Agent ofUva had failed to fulfil a contract which that officer had entered intowith him on March 4/5, 1943, undertaking to “ lease to him for a periodof four years and two and a half months the right to tap and take theproduce of the rubber trees on certain allotments of land ….referred to as the Keonapitiya Crown rubber lands …. and toplace the plaintiff in possession of the said allotments of land on March15, 1943
H. H. Basnayake, Acting Attorney-General (with him H. W. Jt. Weera-aooriya, C.C.), for the Crown, appellant.—There was no concluded leaseto the plaintiff, Wijesuriya. It was only an agreement to give a leaseif Sabapathipillai vacated the land. There was no obligation on the partof the Crown to give a lease to Wijesuriya.
Further, neither the Government Agent nor the Assistant GovernmentAgent had an authority to give a lease. The officer who purported to acton behalf of the Crown had no authority to act in that way and thereforethe Crown is not bound. The whole transaction is not according to theLand Sales Regulations. See Collector of Masulapatam v. Cavaly VencataNarainappah1 ; Prosunno Coomer Roy v. The Secretary of State for India2 .Been v. Attorney-General *; Ekanayake Mudiyanselagedere KcerateArachchiUe v. GalkaduUegedere Kira *. The distinction between a licenceand a lease is dealt with in Coder Lebbe v. Punchi Naides; Bootha v.SoocherB.
H. V. Perera, K.G. (with him F. G. W. Van Geyzel), for the plaintiff,respondent.—The right to tap is analogous to a licence together with a
1 (1860) 8 Moore's J. A. 500 at p. 554.*(1884) 6 S. C. C. 22.
* (1899) 26 I-LM., Calcutta, 792 at p. 807.5(1917) 4 C. W. R. 140.
» (1923) 25 N. L. R. 334.•S. A. L. R. (1941) T. P. D. 245.
-K. A 63531-688 (8/46'
SOEKTSZ A.C.J.—The Attorney-General v. Wijesuriya.
grant to remove the latex. It is submitted that the decision in Coder Lebbev. Punchi Naide is incorrect. The agreement in the present case createdan interest in land not amounting to a lease or a disposition of land. TheLand Sales Regulations are therefore inapplicable. Further, the instructionsregarding procedure in sales and leases of Crown land are only directive.If the rules are not obeyed the act is not necessarily “ ultra vires ”. Atthe most there is an irregularity, but the act itself is not void. The issueof the permit is not the essence of the contract. There was a completedcontract and the parties contemplated putting it into a certain form.See Rossither v. Miller». Departmental instructions cannot limit thescope of the Government Agent’s authority.
H. H. Basnayake, in reply.—The parties contemplated a lease of land.All the essentials of a lease are presentin the transaction—Wille: Landlordand Tenant, 3rd. Ed., p. 1.
Cur. adv. milt.
August 22, 1946. Soebtsz A.C.J.—
The plaintiff brought this action against the Attorney-General, invirtue of section 456 of the Civil Procedure Code, to recover from theCrown two sums of money, Rs. 75,000 and Rs. 6,000, with interest on thelatter sum. He claimed the first sum as damages the Crown was liableto pay to him in consequence of the failure of the Government Agentof Uva, who, he averred, was “ acting for and on behalf of the Crown ”to fulfil a contract which that officer had entered into with him on March4/5, 1943, undertaking to “ lease to him for a period of four years andtwo and a half months the right to tap and take the produce of therubber trees on certain allotments of land …. referred to asthe Keenapitiya Crown Rubber lands …. and to place the plain-tiff in possession of the said allotments of land on March 15,1943 ”. Theseallotments comprised an area of about 280 acres. The second sum theplaintiff claimed as due to be refunded to him with interest becausehe had deposited the Rs. 6,000 at the request of the Government Agent,as part of the consideration for the lease, and the lease failed owing tothe default of the Government Agent.
The question now is whether the Crown was so involved in all thattook place between the plaintiff on the one side and the Land Com-missioner and the Government Agent on the other as to he liable to makeamends to the plaintiff by paying him the damages he claimed or anydamages at all, and refunding the deposit the plaintiff had made togetherwith interest. The Attorney-General, in the answer he filed on behalfof the Crown, repudiated the claim fpr damages on the ground that therewas “ no agreement whether oral or otherwise ” as alleged in paragraph 3of the plaint. In regard to the Rs. 6,000 claimed, his answer was that theplaintiff deposited that sum “ in anticipation of his obtaining a leaseof the lands referred to …. if and when they were vacated byone Sabapathipillai who had been given notice …. to quit thelands on March 15, 1943 ”, but that when that notice was cancelled andthe contemplated lease fell through, the plaintiff could have withdrawnthis sum at any time but did not choose to do so. The Crown was not,
* (1878) 3 A. C. 1134.
SOERTSZ A.C.J.—The Attorney-General v. Wijtsuriya.
therefore, liable to pay interest and he accordingly brought the sum ofRs. 6,000 into Court. The Attorney-General further pleaded that,even assuming such a contract, in faot, as the plaintiff set up, the plaintiffcould not maintain his action upon it, in law, by reason of the provisionsof the Land Sales Regulations, and of the Frauds and Perjuries Ordinance.
In regard to the question of fact, that is to say whether there was suchan agreement as is pleaded in paragraph 3 of the plaint, with which Ipropose to deal first, a brief statement of the facts from which thislitigation arose is necessary. In January, 1942, the Land Commissioneradvertised that he would, on March 7,1942, put up to auction “ the leaseof the right to tap and take the produce of the rubber trees ” on theCrown lands referred to in the advertisement for a period of five years.At the sale, the plaintiff and one Sabapathipillai were the final bidders,and the latter was declared the purchaser on his bid of Rs. 44,000 asagainst the plaintiff’s bid of Rs. 43,960, and a “ permit ” was issuedto him. Sabapathipillai, however, found himself in difficulties in regardto the payment of the first annual instalment of rent, and in conse-quence of negotiations between the Government Agent and the LandCommissioner on the one side, and the plaintiff on the other, the plaintiffoffered to take the lease for Rs. 30,000 if Sabapathipillai made default.This offer did not materialise, because these Government officers cameto some arrangement with Sabapathipillai in regard to the first instalment.But, Sabapathipillai was soon involved in other difficulties. Heviolated, or it was said that he had violated another term of his contractby entering into an agreement with a third party, one Karunatileke,concerning the subject matter of his lease, and the Land Commissionerand the Government Agent in consultation with each other, decided tocancel his permit. The Land Commissioner wrote letter P9 of January28, 1943, to the Government Agent, saying—
“ The conditions of the Permit dated August 10, 1942, have beenflagrantly violated. You should cancel the Permit forthwith and takepossession of the land on behalf of the Crown. You may, thereafter,issue a Permit to Mr. H. E. Wijesuriya to take the produce of theplantations on the land for the balance period of five years at therental approved by my letter …. of April 25, 1942 ”.
Accordingly, on March 2, 1943, the Assistant Government Agent wroteP10 informing Sabapathipillai that his lease was cancelled and requestinghim “ to deliver peaceful possession to the Divisional Revenue Officeron March 15, 1943, and to vacate the land immediately thereafter ”.
It was in this state of things that the plaintiff says he saw the LandClerk, Attanayake, and the Assistant Government Agent on March 4,1943. The plaintiff’s version of what happened on March 4 is thaton that day he first saw the Land Clerk, Attanayake, who told him thatif he deposited Rs. 6,000 he would be placed in possession on March 15,and that he then went and saw the Assistant Government Agent in hisoffice room and that the Assistant Government Agent repeated orconfirmed what the Land Clerk had told him. The Assistant Govern-ment Agent denies that the plaintiff saw him on that day in his officeroom or elsewhere in regard to this matter and he denies that he told
SOERTSZ A.OJ.—The Attorney-General v. Wijtsuriya.
the plaintiff that if he deposited Rs. 6,000 he would be placed inpossession on Match 15. Attanayake admits that the plaintiff saw himon that date but he says that what he told the plaintiff was that therewere instructions from the hand Commissioner to issue notice of cancella-tion to Sabapathipillai and to offer the lease to him and that notice ofcancellation had been issued to Sabapathipillai, and that if the plaintiffwould agree to deposit the first year’s rent he would be put in possessionof the land in the event of Sabapathipillai vacating the land. He sayshe told the plaintiff that the money would be placed in deposit and itwould be refunded to him if he is not put in possession of the land. Atta-nayake says that he pointed out to the plaintiff that according to a ruleof the Government such a deposit is necessary before possession could begiven. The plaintiff, on his part, would, I suppose, agree gladly to makethe deposit in order to consolidate his position. He feared, for instance,that one Weerasekere was endeavouring to get the lease as Sabapathi-pillai’s nominee.
In this conflict of evidence the questions that arise are whether theplaintiff saw the Assistant Government Agent on that day or only Atta-nayake, and whether the plaintiff was given an assurance amounting to awarranty that if he deposited the full year’s rent he would be givenpossession on March 15, or only a promise dependent on the resumptionof possession of these lands. I would say at once that, after carefulconsideration, I prefer the evidence of the Assistant Government Agentand of Attanayake to that of the plaintiff. I feel the less deterred fromexpressing disagreement with the trial Judge’s findings on facts because,as he says, his findings are not based on matters like the demeanour andreliability of these witnesses but on their testimony, “ viewed in the lightof the circumstances of the case.” It is precisely in that way that Imyself have examined their evidence and reached the conclusions towhich I have come. As far as the Assistant Government Agent isconcerned his denial that he met the plaintiff or spoke to him in his officeon March 4, is, in my opinion, strongly supported by the terms of thedocument HI. Attanayake after his meeting with the plaintiff put upto the Assistant Government Agent as follows:—
“ We may accept a year’s rent and place it in deposit until Mr. W.is put in possession of the land. When he is put in possession themoney can be credited to revenue ”.and the Assistant Government Agent’s minute is—
“ Please request Mr. W. to let me know whether he will agree ’*.
This document, I regard as clinching the point in dispute. If, as theplaintiff says, Attanayake had told him definitely that if he paid thefirst year’s rent he would be placed in possession on March 15 and, ifagain as the plaintiff says the Assistant Government Agent had repeatedor confirmed what Attanayake had already told him, it is difficult tounderstand why the Assistant Government Agent should want to knowwhether the plaintiff agrees to his money being placed in deposit, theAssistant Government Agent himself having already told him if hedeposited the first year’s rent, he would be placed in possession on March
80KRTSZ A.CJ.—r/l« Attorney-Oeneral o. Wijeeuriya.
15, and tho plaintiff not having demurred to that in any way at all.If the plaintiff’s version is the true one, the answer one would haveexpected from the Assistant Government Agent to Attanayake’s querywould have been either “ Yes ” or ** the lease having now been given toMr. W., let the deposit be oredited to revenue,” depending on the viewthe Assistant Government Agent took of the transaction that is to saywhether a lease had been warranted, or a conditional one promised.Likewise, so far as Attanayake is concerned, if, as the plaintiff states,the lease was given him on March 4 to take effect on March 15 and he wasrequested to pay the first year’s rent, it is as difficult to understand whyAttanayake should suggest a temporary deposit in .the Kachoheri and acrediting to revenue after possession has been given. The trial Judgesays that on March 4, Mr. Chandrasoma (that is the Assistant GovernmentAgent) “ believed that on March 15, 1943, that land would be vacatedby Sabapathipillai and his Manager, Karunatileko. The idea thatKarunatileke would not leave the land never for an instant crossedMr. Chandrasoma’s mind ”, but if the Assistant Government Agententertained such a sanguine expectation that everything would goaccording to plan, that would be precisely the case in which I should havethought he would have regarded the lease as good as given, and wouldhave directed the Rs. 6,000 to be credited to revenue without being heldin suspense at all. It appears to me to be abundantly dear that theGovernment Officers were by no means certain that they would be ableto deliver possession on March 15 and it was quite natural that Atta-nayake fully aware as he was of the Land Commissioner’s instructionsin P9 written a fortnight earlier would have explained to the plaintiff,as he says he did, that the money would lie in deposit and would becredited to revenue or refunded to him according as he was put in possession or not. Attanayake’s evidence receives support from the qualifiedterms of the receipt P2 given to the plaintiff by the Kachcheri Shroff,acknowledging the receipt of rent ** pending issue of lease ”. Muchimportance cannot be attached to the Assistant Government Agent’sstatement in P13 that “ the lease is now given to Mr. E. Wijesuriya ”,especially as that is followed by the statement “ You should put himin possession as soon as the present lessee vacates ”. On a proper inter-pretation in its true context this statement means that the Land Com-missioner had decided to put the plaintiff in possession on Sabapathi-pillai vacating the land, and not that he had agreed unconditionallyto do so. Not only do the documents bear out the Assistant GovernmentAgent’s and Attanayake’s evidence but also, in my view, their evidencegives what I think is the more probable version. The plaintiff – saysthat it was well known that Sabapathipillai and Karunatilleke hadfallen out and it was. quite a serious question whether even if Sabapathi-pillai vacated the lands, Karunatilleke would not create trouble, andit was most improbable that, in those circumstances, the AssistantGovernment Agent or Attanayake would give the plaintiff an uncondi-tional undertaking. If these findings of mine are correct, the plaintiff’saction fails for the reason that there was no contract between the Govern-ment Agent and him as alleged in paragraph 3. But. the trial Judge,for reasons which are not too dear to me, preferred the plaintiff’s evidence
. 1*—J.N. A 63531 (8/46)
SOERTSZ A.C.J.—The Attorney-General v. Wijeauriya.
and he held that the plaintiff saw the Assistant Government Agentand that that officer confirmed what Attanayake had told the plaintiff,according to the plaintiff’s version, namely, that if he paid the first year’srent, he would be given the lease of these lands on March 15. I would,therefore, examine this case to see how it stands on the finding of thetrial Judge.
On that finding, we have an agreement hy the Assistant GovernmentAgent with the plaintiff, by which the Assistant Government Agentoffered to give him a lease and to put him in possession on March 15,if he paid down a year’s rent, and an acceptance of that offer by theplaintiff when he paid in the year’s rent. It might have been necessaryto consider whether, in the circumstances of the case, this contract,although apparently unconditional, should not be construed as contain-ing an implied condition that its fulfilment would depend on the Govern-ment officers concerned being able to recover possession of the landsleased. That question might have arisen if those officers had persistedwith the proposed cancellation of Sabapathipillai’s lease, and found itimpossible to recover possession, for in that event, the question of frustra-tion of the contract would have arisen. But as things turned out, beforeMarch 15, the Land Commissioner decided to cancel the notice to quitgiven to Sabapathipillai and there was no attempt made to recoverpossession from him and to deliver it to the plaintiff. The question offrustration does not, therefore, arise. The question that does arise inthese circumstances is whether the Assistant Government Agent wascompetent by entering into the agreement found by the trial Judge,to bind the Crown, or perhaps I should say, to bind the Land Com-missioner and through him the Crown. The plaintiff’s case is that it wascompetent for the Land Commissioner to lease the right to take theproduce of the plantations on these lands for the period for which and inthe manner in which it was proposed to lease that right, and that theLand Commissioner constituted the Government Agent and AssistantGovernment Agent his agents for that purpose. Assuming that to beso, P9 shows the scope of the authority the Land Commissioner entrustedto his agent was “ To take possession of the land on behalf of the Crown ” ;and “ thereafter, issue a permit to Mr. Wijesuriya to take the produceof the plantations …. for the balance period of five years….” It is clear from theseterms that theresumption ofpossession
on behalf of the Crown was made a condition precedent to the issue of apermit. I imagine that it would have been quite open to the LandCommissioner at any time before the permit was issued to the plaintiffto repent of the decision to issue it and to direct that no such permitshall issue, for the Land Commissioner made no promise to the plaintiffto issue a permit to him nor did he authorise his agent to make such apromise. He was only instructing his agent in regard to the course ofaction he should take. But, it is contended that the plaintiff was notaware of this limitation of the agent’s authority and that the agentwho had been held out to the plaintiff as the Land Commissioner’s agentbound the Land Commissioner although he acted in excess of his authority.As I have already observed, I have no doubt myself that the plaintiff wasfully aware of the true state of things, but here again I will assume that,
SOERTSZ A.C.J.—The Atlomey-Oeneral v. Wijeauriya.
as found by the trial Judge, the plaintiff was not aware of any limitationof authority imposed on the Government Agent or Assistant Govern-ment Agent and I will examine the case on that footing. The plaintiff’scase then stands at this : he is able to plead a contract between himand the Land Commissioner’s agent by which the Land Commissionerwas bound, in fact, to give him a lease and to put him in possession onMarch 15, and a -default by the Land Commissioner in that he did noteven make an attempt to fulfil the contract. The question then ariseswhether the Land Commissioner was himself competent to involve theCrown in liability by entering into that contract. To answer thatquestion it is necessary to ascertain what in reality this contract amountedto in law. In my view, it was a lease of land for four years and twoand a half months. It was in vain that the officers concerned sought,by a play upon words and by describing the transaction as a “ permit ”or “ a licence ” to take the produce of the plantations on these lands or“ a lease of the right ” to tap and take the produce of the plantations,to pret nd that the resulting transaction was what they called it and notwhat, in essence, it was. Exhibit PI read with P6 discloses a lease ofland and nothing but a lease of land. Occupation of the lands iB to begiven along with the right to tap and take the produce of all the planta-tions on them for there were no plantations other than rubber. Thatoccupation and that right are to be in force and to continue for the periodof four years and two and a half months provided, of course, the otherparty performed his covenants. On the expiry of the period or theearlier determination of the contract, he is to surrender possession ofthe lands. Pending the expiry or determination of the right of occupa-tion, any unauthorised person going on the land would undoubtedlybe liable, at the instance of the occupier, as a trespasser. What doesall this connote but a lease ? It is true that the party who is to haveoccupation is prohibited from doing certain things on these lands, butprohibitions like those are very familiar features in deeds of lease. I,therefore, hold that the transaction contemplated in the contract pleadedby the plaintiff was a lease of land. If I am right, as I venture to thinkI am, then by regulation 2 of the “ Regulations relating to sales andleases of Crown lands approved by the Secretary of State’s despatch ofJune 5, 1926 ” it is laid down that—
“ every grant and every lease of land shall be under the signatureof the Governor and the public seal of the Colony, except (a) leases ofsmall lots leased annually, which may be signed by the RevenueOfficer ; and (6) leases of road reservations which may be signed by theController of Revenue
The transaction cannot be brought within exception (a) and the RevenueOfficer, the Land Commissioner in this case, was not competent to enterinto this contract or to bind the Crown by issuing such a permit as wasadmittedly contemplated. The regulation I have referred to reappearsin the Letters Patent dated April 22, 1931, with the word “ disposition ”substituted for the word “ lease ”. Paragraph 6 says—
“ The Governor in Our name or on Our behalf may make andexecute, under the public seal of the Island, grants and dispositions of
SOERTSZ A.C.J.—The Attorney-General v. Wijesuriya.
any lands which may lawfully be granted or disposed of within theIsland”
But, in the Ceylon Government Manual of Procedure (1940 Ed.) ispublished a statement of administrative procedure prescribed for trans-actions with which Officers of State are concerned, and in that statementwe find on page 12 that the grant of licences for produce is vested in theExecutive Committee. It is that, probably, that inspired the officersin this case to attempt to grant a lease by calling it a “ licence forproduce But as I have already observed this is much more than alicence. Mr. H. V. Perera for the respondent to this appeal sought tosurmount the difficulty created by regulation 2 quoted above by con-tending that the agreement contemplated by the parties in this instanceat most created an interest in land not amounting to a lease or a dis-position of land and he went on to argue that it was only a grant or alease or a disposition of land that required the Governor’s intervention,and that it was competent for the Land Commissioner to enter into anagreement creating an interest in land other than a lease. I am unableto entertain that contention as I have already ventured to say I findthe contemplated transaction to be, in reality, a lease and as such, adisposition of land and not any lesser interest in land. But even assumingthat what was being created was an “ interest in land ” less than a lease,even so I have not been referred to any rule or regulation empoweringthe Land Commissioner to create such an interest in land in the mannerin which he proposed to act in this instance. The provisions of the LandDevelopment Ordinance in my view have no application whatever here.Another difficulty in the way of the plaintiff is that the Land Com-missioner had no power, in the event of a default such as was alleged onthe part of Sabapathipillai rendering his permit or licence to take theproduce liable to- cancellation, to enter into an agreement, to give thatright to the next highest bidder. He was bound in such an event byregulation 29 of the regulations to offer the right for sale again in opencompetition. D5 shows that the Land Commissioner realised that theaction contemplated by him, that is to say to choose the plaintiff for thegiving of the right to tap, was ultra, vires. He writes to the GovernmentAgent “ an issue of a preferential lease now to the second highest bidderat an auction held an year ago at a reduced rent does not appear to be inorder. If the order of cancellation of the existing permit is not variedafter consideration by me on the representations received, the propercourse would be to sell the right by auction or public tender ”. Theresult is that whether the transaction be regarded as a lease or somethingless than a lease, the Land Commissioner had not the power to renderthe Crown liable by acting as he did. If he had not that power he couldnot, of course, delegate such power to his agent.
As was stated in the opinion delivered in the Privy Council in the case ofthe Collector of Maaulapatam v. Gavaly Vencata Narainappah *.—
“ The acts of a Government Officer bind the Government onlywhen he is acting in the discharge of a duty within the limits of hisauthority, or, if he exceeds that authority, when the Government, infact or in law, directly or by implication ratifies the excess ”.
(I860) 8 Moore’s Indian Appeals 554.
Wijeyeratne v. Mendis Appu.
That is not, at all, the case here.
For these reasons, I hold that the Crown is not liable and I would setaside the decree entered in the Court below and dismiss the plaintiff'saction for damages. In regard to the claim for Rs. 6,000 with interest,logically, that amount having been paid to a Government officer whohad no power, in the circumstances already stated, to bind the Crown,the plaintiff’s proper course would have been to sue that officer, forrecovery of that amount. But, in view of the fact that, in such anaction too, the Attorney-General would have been the nominal defendantI would disregard technicality, and as the Attorney-General has broughtthe money into Court, I would direct that judgment be entered for theplaintiff for Rs. 6,000 with legal interest from * March 10, 1943, tillDecember IS, 1943, the former date being that on which the notice givento Sabapathipillai was ordered to he cancelled, the latter being thedate on which the plaintiff could have, if he had chosen to do so, with-drawn this sum. (See P 30). The plaintiff will pay the costs of thedefendant here and below.
The cross-appeal does not arise. It is dismissed but without costs.
I would add a word to express my regret that this judgment has beendelayed so long, and a wojrd of explanation to say that this delay was,mainly, due to the fact that soon after judgment had been reservedI came to be engaged on other public duties which devolved on me inpursuance of a Commission issued by His Excellency the Governor.
Cankon J.—I agree.
THE ATTONEY -GENERAL , Appellant, and WIJESURIYA, Respondent