106-NLR-NLR-V-21-HAMID-et-al.-v.-SPECIAL-OFFICER.pdf
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Present: Bertram C.J. and De Sampayo J.
TTAMTD etal.v. SPECIAL OFFICER.
71—D. C. (Inty.) Kurunegala, 6,737/7,197.
Chena land, fit for coconut cultivation—Land which can be only cultivatedafter intervals ■ of several years—Presumption' *» favour of Crown—Ordinance No. 12 of 1840, s. 8—Waste Lands Ordinance, No. 1 of1897, s. 24—Partition decree—Crown not bound.
The presumption that chenas within the Kandyan Provincesbelongtothe Crownis notlimited tosuch chenas as can only
be cultivated after intervals of several years.The presumption
was held to apply to a chena land which was capable of continuouscultivation with coconuts.
BertramC.J.—“ Thewords‘which canonly be cultivated after
intervals of several years ’ are not so much words – of definition aswordsofdescription.The intention wasneither to define chenas,
nor to select a supposed particular type of chenas.
Whenthe Ordinancereferredto chenasas being, only cultivable
after intervals of several years, it meant cultivable as chenas. "
A decree in a partition case to which the Crown is not a partydoes not bind the Crown.
rJ1HE facts are set out in the judgment.
A. St. V. Jgyawardene, for defendants, appellants.—The lands indispute are not chena lands as defined in the Waste Lands Ordinance.It has been proved that these lands have been regularly cultivateddining the last ten years with coconut, .and they ceased to bechenas.
[Bertram C.J.—By Ordinance No. 12 of 1840, section 6, andthe Waste Lands Ordinance, No. 1 of 1897, section 24, chenalands are presumed to be the property of the Crown.]
In order to bring it under this presumption, the Crown mustprove that it is chena land, or other land which is, in the same senseas chena is, incapable of being cultivated otherwise than afterinterval of. severed years. The Queen’s Advocate v. Appuhamy etal.,1 Corea v. Anderala,2 Amerasekara v. Baiyya.3 A land does notbecome chena by the mere fact that it is cultivated only afterintervals of several years. Kirihamy v. Appuhamy *
The burden of proving that the land is chena or other landwhich can only be cultivated after intervals of several'years is onthe Crown. The Attorney-General v. Samarasinghe.*
im
1 (1878) 1 8. C. O. 26.* (1900) 3 Br. 169.
* (1900) 1 Br. 220.
(1900) 3 Br. 161.
(1879) 2 8. C. C. 88.
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There must be actual evidence that it is chena. The Proclamationby the Government Agent under section 1 of Ordinance No. 1 of1897 is not evidence in the case. Evidence has been given bythe appellants that there is a tank with its bund indicating thatthe land was regularly cultivated at one time.'’ Now it is notcultivated as chena.
The appellants have a partition decree in their favour, and the.Crown is bound by that decree. Section 14 of the InterpretationOrdinance, No. 21 of 1901, which says that the Crown is not boundby any enactment where it is not mentioned, has no retrospectiveeffect. Whenever the rights of the Crown may be affected, theyare expressly reserved in Ordinances passed before 1901, e.g.,Prescription Ordinance. The Crown is bound by the decree inthe Partition Ordinance, as its rights are1 not specially reserved.Under the Boman-Dutch law the Crown is bound by statutes, andif i4 claims exemption, it must be proved by the Crown. Underthe English law the Crown is bound by an Act made for thepublic good and for the prevention of injury to the public (27 Hals.,p. 165). The Partition Ordinance has been enacted for the publicgood.
The Solicitor-General, for the Crown.—Under the correspondingsection of the old Wills Ordinance, No. 21 of 1844, it has beendecided by the Collective Court that the Crown is not bound bythe provisions relating to the partition of land, though it may availitself of the provisions therein. BuUer v. Koelman et'al,1 It washeld even before the passing of the Interpretation Ordinance thatthe Grown is not bound by any statute if it be not expressly so.stated. Horsfall v. The Queen’s Advocate.2
The Crown is not bound by the provisions of the InsolvencyOrdinance, as it is not expressly named therein. The Queen’s Advo-cate v. Silva; 8 Selby v. Fernando*
The words “ chenas and other lands which can be only cultivatedafter intervals of several years ” in section 6 of Ordinance No. 12of 1840 mean lands which were so cultivated at the date of thepassing of the Ordinance, and may include lands fit for the culti-vation of tea and coconut. Corea Mudaliyar v. Punchirala.5
When it is shown that the land in dispute is subjected to “ chenacultivation,” it is not necessary to show that it is such land ascan be cultivated only after intervals of several years. Cooke v.Freeman,*
A. St. V. Jayawardene, in reply.
Cur. adv. vult.
1 (1848) Ram. 1843-55,141.* (1853) Ram. 1843-55, 47.
* (1883) 6 8. O. C. 101.‘ (1899) 4 N. L. R. 135.
» (1890) 9 8. O. C. 78.6 (1905) 8 N. L. R. 265.
1980.
Hamid v.SpecialOfficer
February 8, 1920. Bertram O.J.—
Despite the formidable argument of Mr. Jayawardene, it _ isimpossible to feel that there is any substance whatever in eitherthe facts or the law of this appeal.
The facts are as follows. In 1910 Mr. J. Marambe, now aKorala, and son of the then Batemahatmaya of the district, . andat the time a young man of nineteen years of age, purported topurchase (by P 5) from three villagers bearing the ge name ofAratchilage for Ns. 800 a tract of land, which on survey turnsout to comprise no less than 278 acres. No title was producedby these villagers. There was no evidence in the way of sales,mortgages, or leases. The lands were said to belong to the villagers,partly by paternal, partly by maternal inheritance. So great wasthe extent of the land purported to be sold, and so little did theparties understand what they were doing, that on the occasion ofthe sale the Batemahatmaya executed a document (D 2), in whichhe recited that he had paid a sum of Bs. 120 on behalf of his sonfor the land bought by him from the three -villagers, and that“ after a survey of the whole land is made by a surveyor, anextent of 60 acres will be considered as having been purchasedfor the sum of Bs. 120, and for whatever extent that is over andabove 60 acres, I promise to pay to the vendors of the land atthe rate of Bs. 2 per acre for such excess of acreage found on behalfof the purchaser.’’ After he had purchased the lan.d in this wayhe waited a short time. Various other villagers then came forwardwith shadowy claims. Mr. Marambe bought them out, paying tothem sums of Bs. 20, Bs. 80, and so on, taking no deeds from anyof them. Mr. Marambe, having thus purchased this large areaof coconut land for a little more than Be. 1 an acre, sold one-thirdof it five months later, and the balance of two-thirds some eighteen.months after that to the plaintiffs for a total of Bs. 450.
The next step was that the purchasers commenced a partitionaction No. 6,103 in the District Court of Kurunegala, not with anyreal view of dividing the lands, but rather with a view to obtainthe absolute title which is given by a partition decree, and thusto dear out any claims that might subsequently be made by otherprivate parties. The. land itself, with the exception of two tanks,from which certain fields are watered, was undoubtedly waste land,but extensive chena cultivation appears to have taken place withoutany hindrance. There were certain inconsiderable traces of ordinarycultivation. There was at one point a depression in the groundwith a ridge at one end, and the learned District Judge is of opinion,and no doubt rightly, that this was a small tank with its bund. But,however, that may be, the surrounding area is now undoubtedlychena. At the trial the plaintiffs did not produce a scrap of titleother than the deed of the three villagers, and they did not call any
of the three villagers. The only excuse was that one of the threehad obtained a settlement of a small piece of land from the Crownin an adjoining area, and it was alleged that pressure had beenbrought upon him not to give evidence.
Nor is the law of the case more impressive. Practically theonly point raised is as to the meaning of the expression “ chenaaand other lands, &c.,” as used in section 6 of Ordinance N6. 12-of 1840 and section 24 of the Waste Lands Ordinance of 1897.Both these enactments establish a presumption in favour of theownership of the Crown as to these categories of lands. Mr. Jaya-wardene contends that a chena is not a chena within the applicabilityof the presumption, unless it is positively proved that it can onlybe cultivated after intervals of several years. The lands foundto be chenas in this case are admittedly excellent coconut landscapable of continuous cultivation in that character. He claims,therefore, that they are not within the presumption.
This suggestion, which implies that the Crown must in everycase when it claims a chena on the basis of the presumptiongive evidence as to the qualities of the soil or the peculiarities oftiie local climate, admittedly renders the presumption an illusoryone, but Mr. Jayawardene says, nevertheless, that effect must begiven to what he maintains is the only possible interpretation ofthe. words of the Ordinances. If, however, there are two possibleinterpretations, one literal but illusory and the other natural andeffectual, the latter is to be preferred.
The construction imputed to this formula by Mr. Jayawardenewas, in fact, imputed to it by Browne J., sitting as a single Judge,in three decisions reported in 1 Browne 220, 3 Browne 159, 3 Browne161 (two of them in the course of the same week). But no Court,and, indeed, no other Judge, has followed Browne J. in this view.
Withers J., in Corea Muddliyar v. Punchirala,1 has expressedthe opinion that the formula contains a .definition of -the word“ chena.” Pereira J., on the other hand, with the tacit concurrenceoi Wendt J., has apparently expressed the opinion that it does not.In expressing this opinion, Pereira J. observes that he “ has alreadyshown ” this, but an examination of his judgment discloses thefact that this statement is an oversight, and that he had not.
How, then, is the formula ” chenas and other lands, &c.,” to beinterpreted?. For myself I was at first disposed to think that thewords in section 6 of Ordinance No. 12 of 1840, " which can beonly cultivated after intervals of several years,” were grammati-cally dependent only on the word ” lands,” and not also on theword ” chenas,” and that the effect of these words upon the interpre-tation of the word ” chenas ” was consequently only indirect andsecondary. I now see, however, that this is erroneous. What
1 (1899) * N. L. B. 136.
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has convinced me is the fact that later in the section, towards theend, the word “ chena ” in the same combination is by a capriceof drafting used adjectivally. The phrase is there “ chena andother lands 'which can only be cultivated after intervals of severalyears. ” The relative clause, therefore, was intended to apply toboth “ chenas ” and “ lands
What, therefore, is its meaning? The words are, in my opinion,not so much words of definition as words of description. Theintention was neither to define “ chenas,” nor to select a supposedparticular type of chenas. It was to indicate by a reference to themost characteristic feature of chena cultivation what was the natureof the ” other lands ” which were classed under the same head.When the Ordinance referred to chenas as being only cultivable afterintervals of several years, it meant “ cultivable as chenas,” andin this sense the description is an exact one. It is an essentialof chena cultivation that it should take place with the aid of theash of the burnt-down growth, and this can only happen aftdrintervals of several years, because such intervals are necessary toenable the growth to arise. Similarly, with regard to the ” otherlands ” (if, indeed, there are any “ other lands ” for no one in thewhole history of the subject has been able to make a suggestionas to what “ other lands ” were intended), the phrase means“ other lands, ” which in their special character (whatever thatspecial character may be) can only be cultivated after intervalsof several years.
This is not a form, either of definition or of description whichany one would now adopt for the purpose of explaining thecharacteristics of a chena, but the formula has to be read in the lightof contemporary conceptions at a time when the modem develop-ments of agriculture were not contemplated. At that time itwould not have occurred to any one that lands in the situation ofchena lands could be cultivated by any other method than that ofintermittent crops, or that they could be converted into perma-nent plantations; it was, therefore, appropriate to describe themby reference not so much to the actual method of their cultivationas to their supposed capabilities of cultivation. (See the argumentof the Solicitor-General in the case of Corea Mudaliyar v. Punchirala.1
The above explanation, viz., that the word “ cultivated ” usedin reference to chenas.means “cultivated as chenas,” seems tome what was intended by Phear J., when in The Queen’s Advocatev. Appuhamy 2 he said that the Crown must prove that the landin question was “ either chena or land which is, in the. same sense. as chena is, incapable of being cultivated otherwise than after an in-terval of several years.” I prefer this explanation to that suggestedby Lawrie J. in Corea Mudaliyar v. Punchirala, 1 that “ which
1980.
Bertram^
C.J,
Hamid w.Special.Officer
1 (1899) 4N.L.B. 135.
* (1878) 1 S. O. O. 26.
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1980.
Braastux
O.J.
Hamid «,SpecialOfficer
can only be cultivated, &e.,” means “ which have hitherto beenso cultivated ” (i.e., as I take it, “ up to action brought,” andnot as stated in the headnote ” at the date of the passing of theOrdinance ”). Pereira J., in the Addipola Saunas Case,1 p. 290,endorses this suggestion, and puts it as follows:” Chena land is
land which, in fact, is so cultivated and reserved as explainedabove to be so cultivated,” but this seems to be hardly justified bythe words of the section.
I may add incidentally that in so far as Pereira J. suggests,if he does suggest, that there is any difference to be made betweenthe interpretation of the word ” chena ” in section 1 of the WasteLands Ordinance of 1897 and its interpretation in section 24 (a)of the same Ordinance, 1 do not feel myself in accord with thatsuggestion. Whether the formula “ which can only be cultivated,&c.,” is to be treated as an incidental definition, or only as anincidental description, it must apply to the word ” chena ” .equallyin section 1 and section 24, and the fact of its not occurring insection 1 appears to me immaterial.
Mr. Jayawardene’s contention on this point therefore fails. Hehas, however, advanced yet another point, already concludedagainst him by authority, viz., that a decree in a partition suitbinds the Crown, in spite of the fact that the Crown is not mentionedin the Partition Ordinance. The authority to the contrary isHorsfall v. The Queen’s Advocate,2 which was a decision of a Benchof two Judges, and which, in the view my brother and myself takeof the effect of the judgment of a Court so constituted is bindingupon us. Mr. Jayawardene sought to re-open this question witha view at least to its reference to a Full Court, and to address tous an argument to show that the principle enacted in section 14of the Interpretation Ordinance, No. 21 of 1901, was a principlenew to the Colony; that it was not recognized by the Roman-Dutchlaw; that its application to Ceylon depended on the extent towhich the Royal Prerogatives of the English Crown were in forcein the Colony, and that the history of the law of prescription in thisColony indicated that the Royal Prerogative in this particular wasnot one of those prerogatives which are brought into effect auto-matically in a ceded country by the mere fact of cession. TlieSolicitor-General, however, whom we heard on this question, drewour attention to a series of cases in which the principle thatthe Crown is not bound by a statute unless therein named hasbeen treated as part of the law of the Colony. These are Selby v.Fernando,* Bullet v. Koelman * Horsfallv. The Queen's Advocate,*The Queen’s Advocate v. Silva.1
1 (1905) 8 N. L. B. 265.» (1853) Bam. 1843-55, 47.
* (1883) 5 S. C. 0.101.4 (1848) Bam. 1843-55,141.
• (1890) 9 S. O. a. 78.
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We decided, therefore, not to hear Mr. Jayawardene on thegeneral question, but only on the question whether, assumingthe principle to be in force, this case came within it. On thatpoint he cited to us nothing substantial, and, indeed, it would bedifficult to imagine a case more in point than the present.
With regard to the merits of the case I should not have said any-thing but for the observations of the learned District Judge. Thelearned Judge says that “ many thousands of other lands of thesame description and held under similar titles have been settled,and there is no conceivable reason why the Waste Lands Depart-ment did not settle the land in the ordinary way when the plaintiffsasked for a settlement. ” If, indeed, it has been the custom tosettle waste lands on claimants of this character, it seems to mea custom which is better honoured in the breach than in the obser-vance. I can understand a strong feeling in favour of villagers,who without any very defined title have been allowed certaincustomary rights of user of waste lands in the past being confirmedin those rights, even though it may not be possible to frame theirclaim in a form nowadays recognized by the law. But I cannotunderstand any sentiment in favour of capitalist speculators, whofor nominal sums buy. from simple villagers shadowy titles tovast areas of waste land, and make this purchase the basis of a claimagainst the Crown. Waste lands in the Colony are held by theCrown in trust for the advantage of the inhabitants of the Colony,and, as it seems to me, should be dealt with from that point of view.To recognize the claim of the plaintiffs in this action would be toput a premium on such proceedings in the future.
In my opinion the appeal should be dismissed, with costs.
De Sampayo J.—I agree.
Appeal dismissed.192&
Bebtbax
O.J.
Hamid v.SpecialOfficer
.21/28