019-NLR-NLR-V-52-BANDIYA-Petitioner-and-THE-LAND-COMMISSIONER-Respondent.pdf
1930Present Gunasekara J.BAXDIYA, Petitioner, and TJIE LAND COMAIISSIONER,
Respondent.
S. C. 259—Application for Writs of Certiorari and Prohibition
Writs of Certiorari and Prohibiition—Land Redemption Ordinance, No. 61 of 1942—Section 3 (1) as amended by section 2 of Ordinance No. 62 of 1947—LandCommissioner's powers of acquisition of land—Acquisition is executive andnot judicial act.
The Land Commissioner's authority under the Land Redemption Ordinanceto acquire an agricultural land depends not on its having been sold or trans-ferred in the circumstances specified in section 3 (1) but upon his being satisfiedthat it has been so sold or transferred. If he is so satisfied, his acquisition ofthe land would be an executive and not a judicial act and therefore cannotbe the subject of a writ of certiorari or of prohibition.
PPLICATION for writs of certiorari and prohibition in respect of
a decision made by the Land Commissioner under the Land.Redemption Ordinance.
R. S. Wanasundera in support.
Our. adv. vult.
-July 19, 1950. Gcnasekaba J.—-
"The petitioner alleges that the Land Commissioner, purporting to actunder the Land Redemption Ordinance, No. 61 of 1942, has decided to-acquire on behalf of the Government a land of which the petitioner is theowner, and he seeks to have the decision quashed and the Land Com-missioner prohibited from proceeding with the acquisition on the groundthat the “acquisition proceedings are illegal, without jurisdiction andvoid”.
The Land Commissioner’s powers of acquisition under the Ordinanceare derived from section 3 (1) as amended by section 2 of OrdinanceNo. 62 of 1947. He is authorised to acquire any agricultural land if heis satisfied that that land was at any time, but not earlier than January1, 1929—
sold in execution of a mortgage decree, or
transferred by its owner to any other person in satisfaction 'or
part satisfaction of a debt which was due from him to thatother person and which was secured by a mortgage of thatland subsisting immediately prior to the transfer, or
(o) transferred by its owner to any other person, at the request of amortgagee ofthat land, in satisfaction orpaa*tsatisfaction of
a debtwhichwas due from that owner tothatmortgagee and
which was secured by a mortgage of that land subsistingimmediately prior to the transfer.
The petitioner’s account of his title to the land in question is asfollows : —
On March 11, 1920, the original ownfer, Esandu, created a usufructuarymortgage in favour of one Sinchie to secure a loan of Bs. 150 and onApril 25, 1928, Sinchie assigned her, rights to the petitioner. Thereafter,on February 27, 1940, Esandu transferred the land to the petitioner foraconsiderationof Es.400, but reserving a right toobtain a re-transfer
onpayment ofa sumof Es. 435 within a period ofonemonth. Out of
the consideration a sum of Es. 250 was paid in the presence of the notaryand Es. 150 was set off against the sum due on the bond.
It was contended for the petitioner that his land cannot be regardedas a land that was sold or transferred in the circumstances specified in(a), (b) or (c) of section 3 (1) and that therefore the acquisition is notauthorised by that provision. The Land Commissioner’s authority to-acquire a land depends, however, not on its having been sold or trans-ferred in the circumstances specified in section 3 (1) but upon his beingsatisfied that it has been so sold or transferred.. If he is so satisfied he isauthorised to acquire the land and, in terms of section 3 (4), the questionwhether it should or should not be acquired “shall, subject to anyregulations made in that behalf, be determined by the Land Commissionerin the excise of his individual judgment; and every such determinationof the Land Commissioner shall be final”. The acquisition would be anexecutive and not a judicial act and therefore cannot be the subject of.a writ of certiorari or of prohibition. If the decision that the land isone that is liable to be acquired is a judicial act the Land Commissionerhas acted within his jurisdiction when he made that decision. Theapplication is refused.
Application refused.