033-NLR-NLR-V-23-HAMID-et-al.-v.-THE-SPECIAL-OFFICER-APPOINTED-UNDER-THE-WASTE-LANDS-ORDINANCE.pdf
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1921.[Privy Counoil.]
Present; Lord Buckmaster, Lord Atkinson, and Lord Carson*
HAMID et al. v. THE SPECIAL .OFFICERAPPOINTED UNDER THE WASTE LANDSORDINANCE.
Waste Lands Ordinance* No* 1 of 1897* s. 24—“ Ohenae and other landswhich can only be cultivated after the interval of several years.”
Section 24 of Ordinance No. 1 of 1807 provides—
ML forest, waste, unoccupied, or uncultivated lands, and allchenas and other lands which can be only cultivated after intervalsof several years, shall be presumed to be the property of the Grownuntil the contrary thereof be proved.
Heldt that the expression “ which can only be cultivated afterthe interval of several years ” has no application to ” chenas.”
The character and quality of the chena lands must be determinedby the actual use of the land itself, and not by its potential possi-bilities. Land that is chena land cannot be taken out of the categorymerely by evidence to show that by another method of cultivation,by the application of other processes in other hands* it might becultivated in a different way.
A decree under the Partition Ordinance does not bind the Crown.
T
HE judgment of the Supreme Court is reported in 21 N. L. R.al p. 355.
October 24,1921. Delivered by Lord Buckmastsb :—
This is an appeal from a decree of the Supreme Court of theIsland of Ceylon affirming the decision of the Judge of the DistrictCourt ,of Kurunegala on a claim put forward by the appellants tocertain lands in the district to the extent of some 278 acres. Thematter came before the District Judge oh a reference under section 5of the Waste Lands Ordinance of 1897, and the question which itinvolved was whether or no the Crown were entitled to the landin dispute by virtue of the provisions of the Ordinance No. 12 of1840 or the Ordinance of 1897. The later amending Ordinancesof 1899,1900, and 1903 are not involved in the dispute.
The facts were these. The appellants in 1914 and 1915 acquiredtheir alleged rights in the lands by purchase from one JamesMarambe, who had acquired the same in 1913 for Rs. 300 from thevillagers, who claimed by right of inheritance. On November 29,1916, one of the appellants obtained against the other a partitiondecree awarding part of the land to one and part to the other, and
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armed' with this authority they sought to establish their titleagainst the Gown. The short answer put forward by the Crown wasthdfc the land in question was chena land, and that, consequently,it was the property of the Crown by virtue of seotion 24 of theOrdinance of 1897.
The ieal question that arises upon this appeal is whether or nothat defence oan be maintained. (Siena lands are well known,and their description is clearly understood. They are jungle landssubjected to periodic cultivation by means of burning down thejungle and then growing some grain crop upon the site; Afterthis crop has been grown, the land relapses hack once more intojungle, until the period has come when it oan again be profitably. burned and the process of cultivation resumed. It is unnecessaryto discuss the quality of this system of agriculture. It seems bycommon agreement to be an extremely extravagant and wastefuluse of the land, and one adapted to people who are not devoted tothe arduous process of regular husbandry.
The Ordinance of 1897, following on an earlier Ordinance of 1840,expressly dealt with these lands. It began with a recital that itwas expedient “ to make special provision for the speedy adjudi-cation of claims to forest, chena, waste, and unoccupied lands ” ;and then by seotion 1 it provided that—
“ Whenever it shall appear to the Government Agent of a provinceor to the Assistant Government Agent of a district that any land orlands situated within his province or district is or are forest, chena,waste, or unoccupied,”
Nt shall be lawful for him to declare the same by a notice, and thencertain procedure results. By section 24, which is the criticalsection in the present dispute, it is provided that—
41 All forest, waste, unoccupied, or uncultivated lands, and all ohenasand other lands which can be only cultivated after intervals of severalyears, shall be presumed to be the property of the Grown until thecontrary thereof be proved.”
The appellants contend that the qualification to be found in that* section as to lands, which can only be cultivated after intervalsof several years, is a qualification which attaches to the chenas,and that it must, therefore, be read as meaning that it is only suchparts of the chena land as are incapable of cultivation by anyother method than by chena cultivation that are subject to theoperation of the section.
In the first place, their Lordships think it right to say, especiallyhaving regard to an earlier decision (Queen's Advocate v.'Appuhamy)reported in 1 Supreme Court Circulars at p. 20, that in their viewthe character and quality of the chena lands must be determinedby the actual Use of the land itsdf, and not by its potential possi-bilities. Land that is chena land cannot be taken out of the
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Hamid v.The SpecialOfficerappointedWider TheWaste LandsOrdinance
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1921.
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Shmid v.The SpecialOfficerappointedwider TheWaste LandsOrdinance
category merely by evidence to show that by another method ofcultivation, by the application of other processes in other handerit might be cultivated in a different way. That, of course, doesnot dispose of the appellants’ contention, because it may even yetbe that the Ordinance was only intended to cover this limited andparticular section of the chena property; but having given carefulconsideration to the very full argument that was advanced by theappellants upon this point, their Lordships are unable to accept it.They do not think that the expression “ which can be only cultivatedafter intervals of several years ” has any application to chenas.They think that the section means that each enumerated headstands alone and unqualified, and the last of these is the “ otherlands which can only be cultivated after intervals of several years.”What those other lands- may be which can be the subject only ofsuch cultivation no one before their Lordships has been able tosuggest, but they are general words intended to gather up and tosweep into the ambit of this section such lands as might not bewithin the description of the preceding words. The introductionof the word “ and ” before chenas lends some support to theappellants’ contention, but their Lordships regard this conjunctionas knitting together the specified classes mentioned by name, andto these the other lands are added. It was urged on behalf of theappellants that this view did not do full justice to the history ofthe legislation, and that the earlier Ordinance which was passedin 1840 showed that a different meaning should be given to theclause. In the Ordinance of 1840 the critical section was section 6,the earlier part of which ran in much the same language as thatof section 24 of the later Ordinance, but it continued by providingthat—
" in all other districts in this Colony such chena and other lands whichcan only be cultivated after intervals of several years Bhall be deemedto be forest or waste lands within the meaning of this clause
and it is said that there “chena ” must be subject to the qualifica-tion as to the possibility of cultivation, because it is used in theform of an adjective, and not in the form of an independent noun.Their Lordships are not greatly impressed with that argument.Even assuming that that were the true construction of section 6,it would not throw any great light upon the interpretation of thelater Ordinance, but even in that section they do not regard thesuggested interpretation as accurate. In their Lordships’ viewthe words “ such chena and other lands ” are properly construedas meaning such chena lands and the other lands which can onlybe cultivated in the manner described, and there iB no reasonwhy the chena lands should be subject to the limitation suggested.This is, in their Lordships’ view, the fair interpretation of somerather ambiguous language, and it is the only interpretation whichcan give both sense and justice in the operation of the clause.
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It would be impossible to know for certain what were the inherentcapacities of the soil that was subject to jungle growth, and ifany other method of determination were selected than that of theactual user, there would be the possibility of great difficulties inconnection with conflicting evidence given, not as to facts, butas to remote and hypothetical possibilities.
Their Lordships have only to add that the other questionargued, as to whether the operation of the. Ordinance is to datefrom the date of the Ordinance or from the time when the claimis made, is one that does not arise for determination in the presentcase, for here admittedly these lands retained their existing qualifyat the moment when the dispute arose.
Their Lordships are glad to find that the view that they haveexpressed appears to be in agreement, both with the judgmentin Corea Mudaliyar v. Punchirala reported n 4 N. L. R. at p. 135,and the case of Cooke v. Freeman reported in 8 N. L. R. at p. 265.
The argument with regard to the title given by the partitiondecree is one which cannot be maintained. It arises under section 0of the Ordinance No. 10 of 1863, which provides that a decree forpartition or sale under the Statute shall be good and conclusiveagainst all persons whomsoever.
It is unnecessary to consider whether this section establishestitle to the land as against strangers, or only title to the sharesas against interested parties; it is sufficient to say there is nothingin the Ordinance to bind the Crown, and it would, indeed, be aremarkable thing if a partition decree effected between two orthree parties, it might be by arrangement among themselves,should have the effect of depriving the Grown of the importantrights conferred under the Ordinance in question.
For these reasons their Lordships think that this appeal shouldbe dismissed, with costs, and they will humbly advise His Majestyaccordingly.
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Hamtd v.The SpecialOfficerappointedunder TheWaste LandsOrdinance
Appeal dismissed.