017-SLLR-SLLR-1987-1-EMALIYANA-PERERA-v.-PEOPLES-BANK-LAND-REDEMPTION-DEPARTMENT-AND-OTHERS.pdf
EMALIYANA PERERA
v.
PEOPLE S BANK LAND REDEMPTION DEPARTMENT AND
OTHERS
SUPREME COURT.
WANASUNDERA. J , L.H. DE ALWIS, J. AND H. A. G. DE SILVA, J.
S.C No 12/85.
S.C. SPECIAL LA/1 31/84.
C A. APPLICATION No. 463/82.
OCTOBER 24, 1986.
Land Redemption – Acquisition of land under Finance Act /V> 11 of 1963 – People'sBank – Finance Act, s.71 – Writs of Certiorari and Mandamus.
Where the People's Bank declined to acquire land which a party wanted acquired forpurpose of redemption (under s. 71 (1) of the Finance Act. No. 11 of 1963 as amendedby Law No. 16 of 1973) as it was really an undivided land though purported to bedivided on a plan to which however the other co-owners had not consented and theclaimant was now in possession of the balance portion rendering handing over ofpossession by the Bank in the event of acquisition inexpedient, the Court will notinterfere with the decision of the Bank.
Cases referred to:
Kanagasabapathy and Another v. The People's Bank and Two Others – S.CApplication No. 124/75, S.C. Minutes of 27.8.1976.
Chandralatha Wijewardene v. The People's Bank and Two Others – S.C.No. 3/80-S.C. Minutes of 20.5.1981.
APPEAL from the decision of the Court of Appeal.
H. M. P. Herath for petitioner-appellant.
Dr. J. A. L. Cooray with M. B. Peramune for the 1st respondent.
Fatz Musthapa for 3rd respondent.
Cur. adv. vult.
December 19. 1986.
A. G. DE SILVA, J.
The petitioner's late husband, one Madanayake Arachchige DonPediris was the owner of a land called Kongahawatta, Wewelduwa ondeed No. 4572 of 16.04.1931. He by deed No. 6652 dated10.07.1954 transferred the said property to the 2nd respondentsubject to the condition that on payment of Rs. 2,000 within 2 yearsfrom the execution of the latter deed, the vendee shall retransfer it tothe vendor. The vendor failed to redeem the land within the stipulatedperiod and on 10.7.1956 the 2nd respondent purported to lease thesame land to the vendor for one year. Further leases of this land weregiven to the vendor for one year to 2 years on 10 2.1958,15.6.1962 and 24.09.1965. The vendor died on 3.1.1966 .J the2nd Respondent instituted action No. 12295/21 in the District Courtof Colombo for a declaration of title and ejectment of the petitioner,the widow of the deceased vendor. Judgment was entered for theplaintiff and unsuccessful attempts were made by the petitioner toappeal from the said judgment to the Court of Appeal and to thisCourt.
The petitioner then applied to the 1 st respondent to have the landacquired under the provisions of the Finance Act No. 11 of 1963 on14.07.1980. The 1 st respondent entertained the said application andthe notice of acquisition (A) was registered with the Registrar of Landson 6th August 1 980. The petitioner filed the caveat (B) with theRegistrar of Lands. Thereafter the parties were summoned for aninquiry. Meanwhile the 2nd respondent transferred the land to the 3rdrespondent by deed of transfer No. 1216 of 22nd August 1 980 andthe 3rd respondent purchased the land with notice of the applicationfor acquisition made by the petitioner. At the inquiry only the petitionerwas present. Thereafter the 1st respondent by its letter of27.1 1.1981 (C) informed the Petitioner that its Board of Directors haddecided not to acquire the said land for the petitioner.
The petitioner thereupon filed an application in the Court of Appealseeking a Writ of Certiorari to quash the said decision of the 1strespondent and also a Writ of Mandamus on the 1 st respondent toacquire the said land for her. The Court of Appeal by its judgment of08.10.1984 dismissed the petitioner's application and it is from thisjudgment that the petitioner has appealed to this Court.
The Court of Appeal following the decision of the Supreme Court inKanagasabapathy and Another v. The People's Bank and Two Others
and the views of Sharvananda, J. (as he then was) in ChandralathaWijewardene v. The People's Bank and Two Others (2) held that thedecision not to acquire premises, which it is authorized by section71 (1) of the Finance Act to acquire is to be determined by the Bankand every such determination shall be final and conclusive and shallnot be questioned in any court and accordingly dismissed theapplication of the petitioner.
According to the memorandum to the Board of the 1st respondentsubmitted by the Manager of the Land Redemption Department "theland in question is an undivided 1 /3rd of a sixteenth .mare of the landcalled Kongahawatta although the applicant has tenderd a plan whichhas been made on 25th July 1 980 and bears No. 1 5 I. As the land isundivided we are of the view that plan No. 1 51 cannot divide a landwithout the consent of all the parties who own the land in question.Although the Prohibitory Notice was sent describing this land as a ,divided land, on perusing the documents we note that the land isundivided. The Bank on principle does not acquire lands which areundivided when the balance portion is now owned by the claimant.Further the possession of this land is with the claimant. Therefore inview of the above we recommend that a determination be made not toacquire the land".
Learned counsel submits that both reasons given for the decisionnot to acquire the land are untenable and are bad in law. He submittedthat the first reason given, viz. that the land is undivided has been heldby this Court not to be a bar to an acquisition. In the case ofChandralatha Wijewardene v. The People's Bank and Two Others(supra) (2) Sharvananda, J. has stated on pane 5 of the judgment-
"In my view, authority to acquire the who! j or any part of premisesin section 71 (1) (of the Finance Act No. I 1 of 1963 as amended byLaw No. 16 of 1973) included authority to acquire an undividedshare of land in circumstances provided by that section."
In that case one of the submissions made was that the Bank had madeorder to acquire the whole land referred to in the Schedule whereasthe premises sold in execution of the mortgage decree andpurchased by the petitioner-appellant was only 11/12 share and assuch the Bank had no jurisdiction to acquire an undivided share of aland.
In the instant case in addition to the ground that the land isundivided there is the further ground that the balance portion of theland is now owned by the 3rd respondent and he is in possession ofthe land.
In the judgment which is being appealed from, Thambiah, J. citesfrom the judgment of Vythialingam, J. in Kanagasabapathy andAnother v. The People's Bank and Two Others (supra) (1) whereinVythialingam, J. says that—
"Basically there are three questions for the decision of the Bank inthe case of an application for redemption, viz.-
Is the land one which the Bank is authorised by s. 71 (1) toacquire?
If so, does section 71 (2) restrict the right of the Bank toacquire the land? and
If not, should the land be acquired?"
He further held:
"While the decision on the third question whether the propertyshould or should not be acquired and the consequent determinationby the Bank to acquire the property may be a purely administrativedecision guided at the final stage by considerations of policy andexpediency and cannot be questioned by a Court of Law (vide s.71 (3) of Finance Act No. 11 of 1963), nevertheless, the Bank'sdecisions on the preliminary issues on which the final determinationis based have to be arrived at solely on the facts of the case, by anassessment and evaluation of the evidence and is a quasi-judicialprocess or a process closely analogous to the judicial and affectsthe rights of subjects and is therefore subject to review by theCourts". Similar views were expressed by Sharvananda, J. in thecase referred to above.
Learned counsel for the 1 st respondent submitted that if the Bankacquired the land, it would have to give possession to the petitionerand since the land itself is in the possession of the 3rd respondent,who was the claimant, and he held the balance extent of the land,there was the practical difficulty with which the Bank would be faced inimplementing its own order and in these circumstances the policyadopted by the Bank was the most expedient and this decision wasfinal and conclusive. It was not a decision taken capriciously. I tend toagree with this submission that it is not possible for us to gainsay thedecision arrived at which has been dictated by grounds of expediency.
As further pointed out by learned counsel for the 3rd respondent,though the prohibitory notice registered with the Registrar of Landsstated that it was a divided land, in truth and in fact, as the <Bankfound, it was undivided. Plan No. 151 submitted by the petitioner tothe Bank showed a division of the land which had not been consentedto by the co-owners.
I would therfore affirm the judgment of the Court of Appeal anddismiss this appeal with costs fixed at Rs. 1,050.00 payable to eachof the 1 st and 3rd respondents.
WANASUNDERA, J.-l agree.L. H. DE ALWIS, J.-l agree.
Appeal dismissed.