031-NLR-NLR-V-73-D.-E.-L.-SURIYABANDARA-Appellant-and-PEARL-DE-FRANSZ-and-others-Respondents.pdf
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Suri’jabatvicira v. De Fransz
1970. Present: Weeramantry, J., and de Kretser, J.E. L= SURIYABANDARA, Appellant, and PEARL DEFRANSZ and others, RespondentsS. G. 517167 {F)—D. G. Colombo, 3640{L.A.
Compulsory acquisition of land.—Requirement of proper inquiry by the-Acquiring-Officer—Claim based on prescriptive title—Requirement of evidence onprescription—Reference to District Court without proper inquiry—Effect then-On jurisdiction of the Court—Land Acquisition Act (Cap. 4G0), as. 9, 10(1) (a),10(t!(b).
Before notice is issued in terms of section 10 (1) (a) of tho Land AcquisitionAct it is tho duty of the Acquiring Officer to bold an inquiry and, aflor holdingthat inquiry, to record his decision on every claim made before him. In such,a cose, a question such as tbat of prescriptive possession must bo determinedupon the basis of evidonco rather than upon a bnre.stotcment of CoudsoI.
Just as much as a proper inquiry is a necessary pro-requisite to a decisionunder section 10 (1) (a) so also is it a pre-requisite to a valid reference undorsection 10(1) (6). Accordingly, a District Court has no jurisdiction to dotormino-a dispute which has boon referred to it without propor inquiry by tho AcquiringOfficer.; ;
Where the Acquiring Officer has already made a decision in terms of section10 (1) (a) of the Land Acquisition Act, he has no power to make a reference-thereafter in terras of section 10 (1) (6) of the Act.
WEERA-MANTRY, J.—Suriyabandara v. Dc Frantz
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-A-PPEAL from an order of the District Court, Colombo.
Ranqanathan, Q.C. with Miss Suriya Wickremasinghe, for the 1stdefendant-appellant.
11. A. Koallegoda, with Miss A. P. Abeyratne, for the 3rd to 5th and 10thdefendants- respondents.
Cur. adv. vuli.
May 2, 1970. Weer-lmantry, J.—
This appeal arises from an order made by the District Court pursuantto a reference to Court by an Acquiring Officer under Section 10(1) (6) ofthe Land Acquisition Act, Cap. 4G0.
At the inquiry held before the Acquiring Officer, the 1st defendant-appellant laid claim to the entirety of the land sought to be acquired.His counsel stated at this inquiry that he claimed the land partly byvirtue of prescriptive title and partly by deed of transfer. Prescriptiverights were claimed on the basis that the appellant had lived on thepremises since 1934.
The only other appearance entered at the inquiry was by one Piyasirion behalf of the Public Trustee. Piyasiri stated to the Acquiring Officerthat the land sought to bo acquired constituted part of the assetsof a trust administered by the Public Trustee in terms of a last will.The Public Trustee was released from his trust when he handed overthe estate to certain parties consequent on a Court Order of 17th May19-48.
It was not the position of the Public Trustee that he claimed an}1- right,title or interest to, in or over the land. His appearance was apparentlyentered in order to safeguard his position as, to use the words of hisrepresentative, certain items of expenditure had still to bo accounted for.What precisely this meant is not altogether clear but on this basis apostponement was obtained to enable the Public Trustee to produceproof to tliis effect.
On the next date of inquiry the only parties present were, as before, tho1st defendant -appellant and his – lawyer and tho Public Trustee’srepresentative.
On that occasion the Inquiring Officer made the following order** Issue 10 (1) (a) notice in favour of Mr. D. E. L. Suriyabandara (the 1stdefendant-appellant) on receipt of Public Trustee’s further observationsthat his department has no claim or titlo to tho land. Issue awardaccordingly ”.
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WEERAMAXTRY, J.—Suriyulandara r. Dc Franiz
A week later it would appear that the inquiry was reopened despiteobjections raised by Counsel appearing for (lie 1st defendant-appellant.On this occasion the Public Trustee’s representative stated that the"premises had been rented out to the 1st defendant-appellant upon atenancy agreement of 1930 and this representative stated once more thatthe land was handed over to the beneficiaries in May 194S.
Thereupon the Acquiring Officer made order cancelling his earlier orderand referred the matter to Court under Section 10 (1) (b), in view of theevidence of the Public Trustee’s representative.
At the proceedings before the learned District Judge certain preliminaryobjections were taken. Among these were the objection that theAcquiring Officer had already made a decision in terms of Section 10 (1) (a) ■of the Ordinance, and could not therefore have made a reference there-after in terms of Section 10(1) (b). It was further submitted that as thodefendants other than the 1st defendant had failed to make a claimbefore the Acquiring Officer, they were not entitled to make any claim inthe proceedings before the District Judge. The objections based on thiscontention were overruled and the case proceeded to inquiry with otherparties as well participating and laying claim to interests in the land.Tire learned District Judge thereafter made order declaring the 1stdefendant-appellant entitled to a 1 /20th share only of the compensation.Fiom this order the 1st defendant-appellant appeals.
A perusal of the procedure followed by the Acquiring Officer wouldappear to indicate that scant regard has been paid to the provisions ofthe Statute under which this officer was acting. It is elementary thatpublic officers entrusted with public duties raider a Statute should studycarefully the terms of the statutory provisions under which they act andcomply as far as possible with the procedure and the steps thereinindicated. We regret very much that due attention does not seemto have been paid to this obvious duty with the result that muchinconvenience and trouble have resulted to the parties concerned.
It seems quite clear upon a perusal of section 10 (I) (a) that theAcquiring Officer was under a duty to hold an inquiry and after holdingthat inquiry to make a decision on every claim made by any person toany right, title or interest to in or over the land which is to be acquired.Having made that decision he is required to give notice of his decision to- the claimant or to each of the parties to the dispute.
In the first place the Acquiring Officer has failed to record any decisionat all but has only stated that a 10 (1) (a) notice is to issue. The allimportant decision under the section remains unexpressed and one is leftto infer that a decision had been made in favour of the first defendact-!appellant on the claim preferred by him.
WEE RASIANTRV, J.—Suriyabandara v. De Fransz
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Secondly, although at inquiries of this nature it is not laid down as anessential requirement that evidence should be given on behalf of a party,it seems to us that a question such as that of prescriptive possession isessentially a matter to be determined upon the basis of evidence ratherthan upon a bare statement of counsel. The mere circumstance thatthere arc no rival claimants docs not absolve the Acquiring Officer of hisduty to give a considered decision on every claim made and we do not seehow there can be such a decision in the absence of the basic material onwhich such a decision can be founded. We may observe, moreover, thatsection 0 expressly contemplates evidenco being placed before theInquiring Officer and in fact the reception and consideration of evidenceare treated as being of such importance that the Acquiring Officer isgiven the power of summoning witnesses and is required to make asummary of the evidence given by each witness. The assistance ofthese provisions meant essentially for aiding the Acquiring Officer inreaching decisions on questions of fact-, has not been sought by theAcquiring Officer in a case eminently suited for their application.
Moreover, it is essential to a proper decision upon an inquiry that it bebased on material placed before the Inquiring Officer. Where there issuch material this Court would not ordinarily pronounce on its adequacyor otherwise for that would be a matter in the discretion of tho AcquiringOfficer. Where however, as in the present instance, there is, asI shall indicate, a total lack of material on which such a decision can bebased, it cannot bo said that the decision so reached is a valid decision interms of the section.
It is essential that when a public officer is required to make a deter-mination involving such legal questions as those of prescriptive title, hemust at least familiarise himself with the fundamentals of tho concept onwhich the privilege and responsibility of making a decision have beencommitted to him by tho Legislature. AM the material that tho AcquiringOfficer had before him in regard to the tide of tho 1st defendant-appellantwas the submission made by his counsel that ho had proscriptive rights ashe had lived on the land since 1031. To state only that a person hasJived on a land for upwards of 10 years is surely to fail to state thefundamental requisites on which a decision on prescriptive title can boreached crcn by a lay tribunal. The child of an occupant, a tenant underthe owner or even a servant of a tenant arc all persons who live uponand without in any way refusing to acknowledge title in another. Uponthis material it would be just as impossible to arrive at a decisionthat prescriptive right has been acquired as would be the case where,for example, a party claims prescriptive title on the basis pf S j'cars’exclusive possession. In the illustration just given tho essential timeelement on which a finding of prescription can be based is lacking. Inthe case before us the essential clement, of exclusive possession is lacking.No officer investigating such claims can afford to lose sight of the factthat both the clement of time and the element- of exclusive possession
I3S1VEERAMANTRY, J.—Suriyabandara v. Dc Fraivsz
must co-exist to found a claim by prescription. Where one or the otherof these elements is totally lacking we are not in the field of inadequacyof evidence but of a total lack of the essential basic material on which adecision regarding prescriptive title can bo founded. In this connectionI would repeat that there was not even evidence of “ living ” on the landbut only counsel’s assertion to this effect.
For these reasons we arc compelled to the view that the purporteddecision made by the Acquiring Officer is not a decision such as iscontemplated by the Ordinance, for it is a decision given in the absenceof the essential basis for sucli a finding.
Just as much as a proper inquiry is a necessary pre requisite to a decisionunder Section 10 (1) (a) so also is it a pre-requisite to a valid referenceunder Section 10 (1) (6). It follows therefore that the reference to Courtwhich constitutes the foundation of the Court’s jurisdiction to hear thismatter was itself bad and the proceedings before the District Courtbeing had without jurisdiction, wc quash those proceedings and declarethat there has been no proper inquiry before the Acquiring Officer.
Tho conclusion that the reference to court was invalid may jin fact bereached even upon the footing that there was a valid inquiry, and indeedthis contention was strongly pressed before us by learned counsel for thefirst defendant-appellant. It does not become necessary, in the light ofthe views we have expressed regarding the invalidity of the inquiry, toconsider this argument in much detail. It will suffice to observe howeverthat if the inquiry w7as a valid one, the initial order made by the AcquiringOfficer under Section 10 (1) (a) was an order determining the issues beforehim, and conditional in one respect only, namely that it was dependenton the'Public Trustee making his “ observations ” that his departmenthad no right or title. That was the only matter left open, and those“ observations ” were restricted to the question whether his departmenthad any claim or title to the land. The order did not leave it open to thePublic Trustee to make various submissions ou other matters. We thinkthe Public Trustee was not entitled to reopen the whole inquiry andcanvass other matters, and that the Acquiring Officer should not haveallowed him to do so in view of the order he himself had made earlier..
There having been, as far as the Acquiring Officer was concerned, anorder already made under Section 10 (1 j (a) determining the matter beforehim, and tho position of the Public Trustee being patently clear that hewas not claiming any title or interest in the land, the Acquiring Officerwras not in my view entitled thereafter to make a reference underSection 10 (1) (6). This alternative line.of inquiry would also thus lead tothe conclusion that the District Court was without jurisdiction to inquireinto the matter as it did.
I do not propose however to elaborate on this aspect of the matter inthe light of the view I have already expressed regarding the invalidity ofthe inquiry held by the Acquiring Officer.
Seyed Ahamad v. Fernando
139
In cither view of the matter, then, the proceedings had before theDistrict Judge cannot stand and the order made by him must bequashed.
Wo consider that it would meet the ends of justice if we declare voidthe inquiry had before the Acquiring Officer and require that inquiryproceedings be commenced afresh.
It has been urged by the respondents that prejudice would be caused tothem if this course should be followed, by roason of the long period oftime that has now elapsed sinco acquisition proceedings commenced.However such a procedure is to the advantage of the respondents whoby their default in appearing beforo the Acquiring Officer could in amore technical view of the matter be said to have forfeited their claimaltogether.
In regard to the first defendant-appellant, wo would observo that hispaper title docs not apparently extend beyond a l/20th share of the land.Although he is no doubt anxious to retain the technical advantage of thenon-appearance of other claimants at the original inquiry, we see nohardship to him in requiring him to adduce proper proof of his allegedprescriptive title to the entire land—a proof which ho altogether failedto adduce when ho had an opportunity of doing so.
The proceedings had before the learned District Judge are declared tohave been without jurisdiction and the order of the District Court isquashed. We also invalidate the proceedings had before the AcquiringOfficer, his order under Section 10 (1) (a) and his reference under Section10 (1) (6).
There will be no costs of this appeal.he Kretser, J.—I agree.
Order quashed.