LAND REFORM COMMISSION AND ANOTHER
COURT OF APPEAL.
C.A. 210/90JULY 31, 1996.
Land Reform Commission – Possession handed over – Ejectment – RomanDutch Law – Monthly leases – locatio conductio – Tacit Relocation (TacitRenewalj – State lands Recovery of Possession Act No. 7 of 1979, S.5-Ultra Vires – Wednesbury’s Rule.
The Petitioner is in possession of the land in question, after havingenteredinto a lawful transaction with one N.R.R. the previous owner and tl e fatherof R.R. At the request of the LRC, the Petitioner formally handed ever pos-
session of the land to the LRC, and LRC on that day itself handed backpossession to the Petitioner on the basis of a lease. That lease transactionhas been acquiesced in and adopted by the LRC, as it has accepted andreceived rents from the Petitioner. On 23.9.87 the Legal Director LRC (P22)has written to the Petitioner stating that the Petitioner had agreed to acceptthe return of a sum of Rs. 100,000/- which had earlier been paid by thePetitioner to the said N.R.R. who is the father of R.R. and that on payment ofthe said sum he had agreed to handover possession of the said land to theLRC. As the Petitioner did not vacate the said land, steps were taken underthe provisions of the State Lands (Recovery of possession) Act to recoverpossession of the land.
Held:The document (P22) is not operative and effective in law to terminate themonthly contract of lease existing between the Petitioner and the LRC.
In Roman Dutch law, there is nothing called a "Temporary lease*. Therecould be monthly lease or leases for a greater period of time over agricul-tural lands. The lease, which is a contract would generally create Rights inpersonam and would only have the effect of creating rights in Rem and aninterest in land if the lease is executed for a period over one month even anoral contract of locatio – conductio, if proved would be sufficient to constitutea monthly lease in respect of agricultural land. Thereafter on the applicationof the doctrine of Tacit Relocation (Tacit – Renewal), the contract of monthlylease over agricultural land would be extended from month to month until itis terminated by a legal and proper notice.
The LRC has issued receipts and accepted payment of lease rent inrespect of this land. In these circumstances the affidavit filed by the Chair-man, LRC is false and fraudulent.
Per Jayasuriya, J."A Court of law is the only bastion and forum to which a humble and innocentlitigant could resort to obtain redress against tyrannical officialdom of thisnature which is actuated by improper motives generated by persons havingat their disposal political influence*.
The Petitioner was in lawful and authorised occupation and possessionof the said land as a monthly lessee of the said land under the LRC and inthe circumstances the Notice (X) issued by the 2nd Respondent is UltraVires, the powers of the said 2nd Respondent vested in him by the provi-sions of Act No. 7 of 1979; further this Notice (X) has also been issued with-out jurisdiction, mala fide- for an indirect and collateral purpose.
The said Notice issued by the 2nd Respondent in terms of S.3 of Act No. 7 of1979 as amended, is grossly unreasonable and therefore liable to be setaside.
AN APPLICATION for writ of Certiorari/Mandamus,
Cases referred to:
Carron v. Fernando 35 NLR 352
UkkuAmma v. Jeina 51 NLR 254
Faiz Musthapa P.C. with Sanjeeva Jayawardene for Petitioner.
P.G. Dep. D.S.G. for 1 and 2 Respondents.
N.D. JAYASURIYA, J.
In regard to the position of the Petitioner's occupation of the landwhich is the subject matter of this application, the issue at discussionsand the issue reflected in the entirety of the correspondence whichhas been produced, was whether the Petitioner had a permanent leaseover the said land, or whether he was given a temporary lease. TheLand Reform Commission has demanded rents from the Petitionerand the Petitioner has paid a sum of Rs. 26,961/- as lease rent forthe said land. The documents annexed and produced clearly disclosethat the payment has been received as lease rent. The documentsproduced before this Court establish that the Petitioner is inpossession of this land, after having entered into a lawful transactionwith Mr. Nalin Rajendra Ratnayake, the previous owner of the saidland and the father of Ravindra Ratnayake. At the request of the LandReform Commission, Petitioner formally handed over the possessionof the said land to the Land Reform Commission and on that dayitself, the Director of the Land Reform Commission handed backpossession of the said land to the Petitioner on the basis of a lease.That lease transaction has been clearly acquiesced in and adoptedby the Land Reform Commission which has accepted and receivedrents from the Petitioner by way of lease rent as is evidenced by theproduced documents. After such payment and receipt of a sum of Rs.26,961/- the Land Reform Commission had thereafter failed to take
any meaningful steps in regard to the occupation of the Petitioner tiltthe despatch of the letter dated 23rd of September, 1987 which hasbeen marked as P22. In P22, the Legal Director of the Land ReformCommission has written to the Petitioner stating that the Petitionerhad agreed to accept the return of a sum of Rs. 100,000/- which hadearlier been paid by the Petitioner to the said Nalin Ratnayake who isthe father of Ravindra Ratnayake and that on payment of the saidsum that he had agreed to hand over the possession of the said landto the Land Reform Commission. This assertion contained in P22 isvehemently denied and controverted by the Petitioner who has fileda counter-affidavit. P22 further sets out that if the Petitioner is notagreeable to accept the said sum of Rs.100,000/- and leave the estatevoluntarily that legal steps will be taken by the Land ReformCommission to eject the Petitioner from this land. This documentmarked P22 is not operative and effective in law to terminate themonthly contract of lease existing between the Petitioner and the LandReform Commission.
In Roman Dutch Law which applies to this issue, there is nothingcalled a "temporary lease" which is known to that law. There could bemonthly leases or leases for a greater period of time over agriculturallands. It was held in Carron v. Fernando (1) that a monthly lease ofland is not required to be notarially executed as it does not create aninterest in land. The ratio decidendi of that case is that the lease,which is a contract and would generally therefore create rights inpersonam, would only have the effect of creating rights in Rem andan interest in land if the lease is executed for a period over one month.Vide also the judgement of Justice Wijeywardena in Ukku Amma v.Jeina.w Thus, I reject, as unsustainable and ill-founded the argumentof learned Deputy Solictor – General that there ought to have been aformal and a notarially executed lease in respect of a monthly leaseof agricultural land. Even an oral contract of locatio-conductio, ifproved, would be sufficient to constitute a monthly lease in respect ofAgricultural land. Thereafter on the application of the doctrine of TACITRELOCATION – (TACIT RENEWAL) the contract of monthly leaseover agricultural land would be extended from month to month until itis lawfully terminated by a legal and proper notice.
The Land Reform Commission has issued receipts and acceptedpayment of lease rent in respect of this particular land from the
Petitioner. The objections filed on behalf of the Land Reform Com-mission by Atukoralage Amarawansa Wijethunga expressly admitsthe averments in the Petition that there was a lease in respect of thesaid land between the Petitioner and the Land Reform Commissionand that the Land Reform Commission had accepted rents from thePetitioner. In these circumstances, the issue arises whether the Chair-man or any other officer of the Land Reform Commission couldtruthfully, conscientiously, with a due sense of responsibility andlegality file an application and an affidavit in the Magistrate's Court ofBandarawela in Case Number 56976 to the following effect.
Mr. Ranjan Wijeratne who was the Chairman of the Land ReformCommission had filed such an affidavit which has been proved to befalse and fraudulent. This Court holds that the aforesaid fraud wouldvitiate all the acts and steps done and taken by Mr. Ranjan Wijeratnein terms of section 5 of State Lands (Recovery of Possession) ActNo. 7 of 1979 as amended. This Court is of the considered view thatthe aforesaid fraud would vitiate the petition and affidavit marked asX3 filed by Mr. Wijeratne and all subsequent acts done in pursuanceof the said fraudulent petition and affidavit. A Court of law is the onlybastion and forum to which a humble and innocent litigant could resortto obtain redress against tyrannical officialdom of this nature which isactuated by improper motives generated by persons having at theirdisposal political influence.
It is crystal clear that the mother of Ravindra Ratnayake did notmake any claim to this land on behalf of her son. The documentswhich have been marked and produced, establishes that the copiesof the letters emanating from the Land Reform Commission have beensent to Percy Perera who happens to be the father-in-law of RavindraRatnayake and who had belatedly set his eyes on getting the saidland for his son-in-law. Due to the representations made by him topersons holding high political office, the Land Reform officials havechanged their proposed course of action and are seeking to raiseissues with regard to the legality of the monthly lease which the LandReform Commission had executed in favour of the petitioner and inrespect of which lease the Land Reform Commission had collectedrents from the Petitioner. In view of the false and fraudulent aver-
merits contained in the said petition and affidavit marked X3, I setaside the petition, affidavit and report filed before the Magistrate inMagistrate's Court case No. 56976, and the statement of objectionsand the affidavit filed before this Court. I restrain the learned Magis-trate from taking any further actions or steps upon the report, petitionand the affidavit which have been filed in Case JMo: M.C. Bandarawela56976.1 uphold the legal submissions of the Petitioner which are setout in the petitioner's petition. I hold that the Petitioner was in lawfuland authorised occupation and possession of the said land as amonthly lessee of the said land under the Land Reform Commissionand in the circumstances the notice (marked 'X') issued by the secondrespondent is ultra vires the powers of the second respondent,vested in him by the aforesaid provision of said Act No. 7 of 1979 asamended. I also hold that the Petitioner was in lawful and authorisedoccupation and possession of the said land, and the aforesaid notice(marked 'X') issued by the second respondent had been issuedwithout Jurisdiction. I further hold that the said notice (marked 'X')had been issued Mala Fide, for an indirect and collateral purpose atthe instance of the said Percy Perera, who is the father-in-law ofRavindra Ratnayake. In conclusion, I hold following the Rule inWednesbury's Case that the said notice and order issued by thesecond respondent in terms of the provisions of section 3 of the StateLands (Recovery of Possession) Act. No: 7 of 1979, as amended, isgrossly unreasonable and therefore liable to be set aside by the Court,in the exercise of its supervisory Jurisdiction over administrativeorders.
I allow the application of the Petitioner with costs in a sum of Rs.1,050/- payable by the 1st Respondent to the Petitioner and grantrelief to the Petitioner only as prayed for in prayer A,C,D of the petition.
I proceed to quash the aforesaid quit notice marked X1 and thepetition, affidavit and report filed by Ranjan Wijeratne in Magistrate'sCourt Bandarawela Case Number 56976 which has been marked asX3. I stay all further proceedings by the Magistrate in Magistrate'scourt Case Number 56976.
Quit Notice, petition, affidavit and report filed in M.C. BandarawelaCase No. 56976 quashed.