In the Matter of the Forest Settlement Inquiry regarding the Land called Chett

049-nlr-nlr-v-02-in-the-matter-of-the-forest-settlement-inquiry-regarding-the-land-called-chett

( 129 )
In the Matter of the Forest Settlement Inquiry regarding the Land 1886.
called Chetty Chena at Puttalam. Jj^i’ll.’
SEGO N A T N A et al., Claimants.
” The Forest Ordinance, 1885 ”—Inquiry by forest settlement officer—How
far his decision binds Grown or claimants—Question of title—Land
at the disposal of the Crown—Meaning of “try and determine ”
as used in s. 5 of Ordinance No. 1 of 1892.
In an inquiry under section 9 of Ordinance No . 1 0 of 1 8 8 5 into
claims made to certain lands proposed to be constituted a reserved
forest, it appeared that for a quarter of a century there had been
disputes between one set of claimants and the Crown as to the
greater part, if not the whole, of such lands ; that in contest with
persons claiming title under the Crown, the claimants had obtained
decrees in their favour from a competent court of justice for areas
within the limits of such lands; that for some years there were
negotiations for the settlement of disputes as to the whole area
between the claimants and the Crown; and that at one time the
Crown granted allotments within the limits of such lands to persons
who, on complaint that they were not allowed to enter on those
allotments by the claimants, had their payments of the price
restored to them—
Held by B O N S E B , C.J., and W I T H E R S , J., that in these circumstances it *as not a proper use of the Ordinance to apply it to the
settlement of the disputes aforesaid between the Crown and the
claimants, inasmuch as it was? not intended by the Ordinance that
an inquiry should be held under it into a claim to title which could
only be effectively settled by .action in a-court of justice.
L A W R I E , J., while having no doubt that, in the circumstances,
the best course would have been to have had the question of title
decided in an action in the District Court, could not say that the
course adopted by the Crown was illegal.
Per W I T H E R S , J.—If a forest settlement officer decides to reject a
claim to any parcel of land, his decision is not binding on the
claimant so as to conclude him from establishing his right of property in a court of law. If, on the other hand, the forest settlementofficer decides that an area of the land is not at the disposal of the
Crown, the Crown is not prevented from establishing its title in a
court of law.
Per L A W R I E , J.—The words ” try and determine,” as used in
section 5 of Ordinance No. 1 of 1892, do not mean a regular trial
interpartes. They mean an inquiry at the close of which the forest
settlement officer shall give a decision on the question of title, only
for the purpose of the Ordinance, leaving to the claimant, if unsuccessful, his common law rights.
/ ^ \ N the 24th April, 1893, a notice was published by order of
the Governor in the Government Gazette, under section 6 of –
Ordinance No. 10 of 1885, declaring that Government proposed to
constitute certain lands in the District of Puttalam, described in
the notice, a reserved forest, and naming Mr. H. L. Moysey Forest
V O L . II. 12(55)21)( 130 )
1896. Settlement Officer to mquire into claims. On the 31st May, 1693,
June 24, 25, Mr. Moysey, as such officer, published a notification as required by
August ii. * n e Ordinance calling upon claimants to present written statements
—— Of claim before- the 15th September following, or to appear before
him at a place named in the notice on the 20th September and
make personally statements of claim to him. On the 15th September Mr. Moysey received a written statement of claim from
the claimants referred to above. He had already received a formal
statement of claim on behalf of the Crown signed by the Assistant
Government Agent of Puttalam. On the 20th September, 1893,
he opened the inquiry, when the claimants appeared by counsel
and took certain objections to the proceedings. The order on those
objections was appealed from by the claimants, and after the return
of the record from the Supreme Court the claims were on the 3rd
October, 1894, inquired into in the presence of counsel for the
claimants and the Crown, the issue formulated for trial being,
whether the land specified in the notice of the 24th April, 1893,
was at that date at the disposal of the Crown. The evidence led
showed that this very question had arisen some forty years before
the notice published in the Gazette, and that for many years there
had been disputes, and negotiations to settle such disputes, between
the claimants and the Crown, and litigation between the claimants
and persons claiming title under the Crown, in respect of large areas
of the land in question. The Forest Settlement Officer found that
the entire land, save as to certain rights of way over it acquired by
the public, was land at the disposal of the Crown. The claimants
appealed.
Dornhorst and Van Langenberg, for-claimants, appellants.
Templer, Acting S.-G., for the Crown.
Cur. adv. vult.
11th August, 1896. W I T H E R S , J.—
I have been singularly embarrassed all through this appeal by
there being no exact evidence of the distinctive character of the
land which it was originally proposed to constitute a reserved
forest under the provisions of the Forest Ordinance, 1885.
One would have thought there would be little difficulty in
doing so, when one bears in mind what land can by that Ordinance
be constituted a reserved forest. It is land at the disposal of the
Crown and that is denned as all land ” which under Ordinance
” No. 12 of 1840 is presumed to be the property of the Crown
” until the contrary be proved,” saving certain rights under that( 131 )
‘Ordinance and No. 1 of 1844, the acquisition of rights under duly 1898.
registered grants or leases made by British, Dutch, or Native ^Sl^^f’
Governments, and lands registered as temple lands under Ordinance August n.
No. 10 of 1856. As the Chief Justice observed in the course of W I T H E B S , J .
argument, for the earlier words, ” which under Ordinance No. 12 of
” 1840,” &c, might wellhavebeen substituted the words, ” all forest,
” waste, unoccupied or uncultivated lands.” One witness spoke
of the land as being partly forest and partly open land; but
the word ” open ” is so inexact as to be useless.
The whole body of the evidence, however, seems to disclose the
fact that, not a little of this land is occupied and cultivated. In
the southern part is a church; along the winding creeks which
break up the land into three parts and constitute barriers across
the land are occupied sites of ground. In the upper portion of the
” land ” there are extensive areas under cultivation. Such being
the apparent character of the entire land, I find it difficult to understand how it could have been proposed to constitute the land a
reserved forest. Further, the discussion of the case left me in
some little doubt as to what are the duties and powers of the forest
settlement officer who is appointed to conduct an inquiry into
claims of right put forward in respect of ” the land,” and what is
the nature of the inquiry, and who, if any, rnay be said to be the
parties to that inquiry.
By section 6 of Ordinance No. 10 of 1885 the forest settlement
officer is appointed ” to inquire into and determine the existence,
” nature, and extent of any rights claimed by or alleged to exist
” in favour of any -person in or over any land comprised within
” the limits ” specified in the published notice. I leave claims to
chena practice out of account. By section 7 three months are to
be fixed by the notiee as from the date of publication, and within
that time persons claiming any right are to present to the forest
settlement officer a statement in writing specifying their claims,
or to appear before him and state the nature of such right. By
section 9 such statements are to be recorded in writing by the
forest settlement officer who is to inquire into claims not made
as well as to claims so made, and he is further to consider, and
record any objection which a forest officer may make to such claims
or the existence of such rights. By section 10 the forest settlement officer has to make up in a separate file a. record of all the
evidence, oral or documentary, ahd his finding or decision as to each
claim and his reason therefor and his orders thereon are to be
duly entered of record. By section 11 and Ordinance No. 1
of 1892, section 4, the forest settlement officer, for the purpose of( 132 )
• 1898. such inquiry; decision, and orders, has the powers of Commissioners
om^lyand’ a P P o m t e d under Ordinance No. 9 of 1872 to compel the attendance
August 11.
WlTHBBSj’ 3.
of witnesses and the production of documents and to adininister
oaths. By section 13 in the case of a claim to a right in or over any
land other than the following rights—i.e., right of way, to use of
water, of pasture or forest produce—the forest settlement officer
is to pass an order specifying the particulars of such claim and
admitting or rejecting such claim, wholly or in part. If he admits
the claim, he can treat for its surrender or exclude it from the
limits, or the claim—if one to part of the land itself—may be
acquired in the manner provided by the Land Acquisition
Ordinances, 1876, and No. 6 of 1877.
Thus, according, to Ordinance No. 10 of 1885 as unamended
there was nothing in the nature of a suit about a forest settlement
officer’s inquiry. He was to entertain claims, indeed to call for
them, and he was to listen to a forest officer’s objections to any
claim put forward, and in the end he was to include or exclude
parcels claimed, allow or disallow rights, as the case might be.
The ” person ” aggrieved might appeal. But Ordinance No. 1 of
1892 seems to have enlarged the scope of the inquiry and given
to it the semblance of a trial; for by that the forest settlement –
officer is ” to try ” a ” question of title,” and the liberty to appeal
is given to any ” party to the proceeding.”
I refer to the clause added to section 13, which is thus expressed :
” If in any inquiry by a forest settlement officer any question shall
“arise as to whether the land proposed to be constituted a reserved
” forest is land at the disposal of the Crown, the forest settlement
” officer shall have jurisdiction to try any such question of title for
” the purposes of the Ordinance,” and to section 9 of the later one
which begins, ” Any party to the proceedings who is dissatisfied •
” with the decision or order of a forest settlement officer in respect of
” any claim made under section 13 or 14 may appeal to the Supreme
” Court agaih3t such decision or order.”
Now, the Government is solely concerned with the ” question
” of title ” involved in the question whether land is or is not at the
disposal of the Crown ; but unless the Government intervenes in
the inquiry it can hardly be regarded as a party to the proceeding if it desire to appeal from an adverse decision. But no provision
has been pointed out to me for the due representation of Government
at the inquiry.
I should have thought that atf inquiry of the kind was on the
presumption that the land was land at the disposal of the Crown.
But even if the Government is represented at the inquiry_and
trial and they are thus parties to the proceedings, there is no( 133 )
relation between them as between contending parties in a court of 1896
justice which makes a decision binding on both of them so as to ^ t”* 8-^>
determine the issue once and for all. August
If a forest settlement officer decides to reject a claim to any W I T B B B S
parcel of land, his decision is not binding on that party so as to
conclude hm> from establishing his right of property in a court
of law. If, on the other hand, the forest settlement officer decides
that an area of the land is not at the disposal of the Crown, the Crown
is not prevented from establishing its title in a court of law.
Such seems to me to be the position and attributes of the forest
settlement officer. Of course, if his decision and orders stand,
undisturbed in appeal, they bind the parties for all the legitimate
purposes of the Ordinance.
Indirectly, the rejection of a claim to a land by a forest settlement
officer drives the claimant into a civil court as a plaintiff; whereas
if he is in the bona fide occupation or possesion of the land, he ought
in fairness to be on the defensive and his rights of occupation and
possession protected.
His plot once constituted a part of a reserved forest, he cannot
use it without constant risk of incurring the pains and penalties
of fine and imprisonment. The result points to the manifest intention of the Ordinance that an inquiry into a claim of title is purely
incidental to the principal object of constituting a land a reserved
forest.
No land, I take it, would be published as one fit for constituting
a reserved forest, unless as a whole it was prima facie distinctly
characteristic as a forest, waste, unoccupied, or uncultivated land.
The principal object and one of great benefit to the public is
the reservation of suitable land for forest purposes and supplying
local demands for large and small timber, fuel, grass, and other
forest produce. Incidental to that is the mquiry into claims of
private rights conflicting with public needs.
The present case illustrates the use of the machinery of the
Forest Ordinance for a purpose for which it was never intended,
and for which it is not efficacious. What is clear from the
evidence of this record and incontestable, is, that for the last
quarter of a century there has been a notorious dispute between
one set of claimants and the Government as to the greater part,
if not the whole, of the large area of land sought to be • constituted
as a reserve forest. Their claim dates from a purchase from the
Fiscal in 1833. Forty years after that, in contest with persons
claiming title from Government, the claimant won decisions from
a- competent court of justice for areas within the limits specified( 134 )
1806.
June 24, 26,
and 26, and
August U.
WITHERS, J.
in the notice published of the land in question, at least the*tiorthern,
western, and eastern limits and at some point on the sea coast on
the south.
For some years in the seventies there were negotiations for the
settlement of disputes as to the whole area between the claimants’
agent, a proctor, and the agent for Government for the district.
Those negotiations, at one time trembling on a settlement, eventually came to nothing. Again, in the year 1885, the Government
granted blocks of land within the limits of the land in the official
notice and in the claimants’ transfer, which were returned on its
hands by the grantees, who, on the complaint that they were not
allowed to enter on those blocks by the present claimants or those
whom they represent, had their payment restored to them.
Was it intended by the Ordinance that in such circumstances
an inquiry should be launched under an act for the constitution
of a reserved forest, into a claim to title which could only be settled
once and for all by a court of justice between actual parties, the
claimants on one side and the Crown on the other ? I say emphatically, No.
The moment we find that from inadvertence an Ordinance is
being put to a purpose for which it was never intended, I think
it becomes our duty, if we have the power, to arrest and stay the
proceedings taken to effect an illegitimate object of the kind.
The 9th section of the Ordinance No. 1 of 1892 permits us, in
dealing with an appeal from a decision and Order of a forest settlement officer, to make such order as the justice of the case may
require.
I think the justice of this case peremptorily requires that the
decision and order of the forest settlement officer in this case should
be quashed ; and I would have such order made accordingly.
L A W B T E , J.—
The Governor of Ceylon (presumably for good reasons) decided
that it was for the public advantage that these lands should be
made a reserved forest.
One object of appointing and sending out a forest settlement
officer in the ordinary case is to ascertain whether there be claimants
to the whole, or any part, of the land which the Governor had been
advised would make a good reserve forest.
In the present case it was known to Government, from _pro-
, ceedings before Mr. Lee, a former forest settlement officer for( 135 )
If the proceedings were of the nature of a trial- inter partes
between the claimants and the Crown, the claimants would be
the same forest, that the whole land was claimed as their own by 180.8.
these claimants. I am decidedly of opinion that, under these circumstances, the best course would have been to have had that question August ll.
of title decided in an action in the District Court; but I cannot say L a w ^ ^ j
that the course adopted by Government was illegal. The amending
Ordinance No. 1 of 1892 enacted : ” If in any inquiry by a forest
” settlement officer any question shall rise as to whether the land
” proposed to be constituted a reserved forest is land at the disposal
” of the Crown, the forest settlement officer shall have jurisdiction
” to try and determine any such question of title for the purpose of
” this Ordinance.”
It is said that the words ” If in any inquiry by a forest settlement officer any question shall arise ” mean ” if the question shall
” unexpectedly arise.” I am unable so to read the words. I
agree that it would be an abuse of the Ordinance if Government
were to use it for any other purpose than the settlement of claims
in proceedings to settle the area of forest. I am not at liberty to
hold that there was any other purpose in view. As was expected,
the forest settlement officer received a claim to the whole land.
He fixed a day for the inquiry. I do not see how (holding his commission and in view of the provisions of the amending Ordinance)
he could decline jurisdiction.
I am of the opinion that the forest* settlement officer mistook
the nature of the proceedings which he had to conduct. They
should have taken the shape of an inquiry into a claim, not of a
trial inter partes. That was clear with regard to all proceedings
under the original Ordinance; but it is suggested that the words
” try any such question of title ” in the amending Ordinance imply
and involve a regular trial inter partes.
If a regular trial was necessary, then there was no trial in the
strict sense; there were no pleadings and no issues. But in my
opinion the words ” try and determine ” do not here mean a regular
trial inter partes—they mean an inquiry at the close of which the
forest settlement officer shall give a decision on the question of
title, only for the purpose of the Ordinance, leaving to the claimant,
if unsuccessful, his common law rights.
Holding this opinion, I think that the recognition of a proctor
for the Crown was a mistake. The Crown was not a party to the
proceedings. No burden of proof was laid on it. The claimants
had to make out a good case. The burden was thrown on them.
This view of the nature of the proceedings is greatly in favour of
the claimants.( 136 )
1 8 9 6 .
June 24, 26,
and 26, and
August 11,
LAWBTE, J .
met with the presumption in favour of the Crown arising from the
Ordinance No. 12 of 1840, and with difficulties arising from the
Prescriptive Ordinance not affecting Crown rights.
But if the proceedings be regarded as an inquiry ex parte before
a non-judicial officer who is to be guided only by common sense
and by feelings of justice, the claimants would succeed if they made
out such a primd facie case as would lead to success in a litigation
with fellow-subjects. I read the evidence here as given not against
the Crown, but to satisfy the Commissioner that the claimants had
right to the land whether by title or by possession.
That was the footing on which the case was argued by the
claimants appellants ; and I see no good reason why judgment
should not be given on the evidence as it stands.
I hold that the claimants have made out such a primd facie case
of right to the extent of marshy ground along the Puttalam lake
(M 153) as entitles them to have that excluded from the proposed
forest.
The decrees in the several District Court cases produced in my
opinion almost necessarily involve the recognition of their right to
the land M 153.
But as regards the large extent of jungle and open land A 704,
C-I 704, K – 0 704, G-S 704, Y 704, A-C 705, G 705, K 705, M 705,
O 705, P 705,.S 705, W 705, and lot 7,322-1,396 : my opinion is
“that the claimants have not made out such a primd facie right
either by title or by possession as entitles them to have the lands
struck out of the proposed forest.
This question of title may be raised again ; it would, therefore, be
improper to do more than give a verdict as of a jury, without reasons.
If I were to discuss the evidence point to point and were to express
an opinion on the testimony of each witness, it would embarrass
the parties and the Judge in the trial which may still’ take place as
to title.
All I can (with propriety) say is, that I am not satisfied. with
the evidence led by the claimants.
I would sustain the judgment of the settlement officer (with
variation already- noted) on the ground that the claimants have
not shown good cause why the greater part of the lands embraced
in the Governor’s Proclamation of the 24th April, 1893, should not
be reserved as a forest under the Ordinance.
B O N S E R , C.J.—
It is sufficient to dispose of this case to observe that the
question, whether the land proposed to be constituted a reserved
forest was land at the disposal of the Crown, did not arise in the
inquiry, of the forest settlement officer, and that the forest( 137 )
settlement officer had therefore no jurisdiction to try and determine l 8 9 a »
such question of title under section 5 of Ordinance No. 1 of 1892.
That question arose some forty years ago, and it was, it would August n.
appear, for the express purpose of settling that question that LAWKIB J
these proceedings were instituted. ‘
I agree with my brother Withers that this is not a proper use
of the Ordinance. If the Legislature, in its wisdom, is of opinion
that the ordinary courts of justice of this Island are not. competent
to try questions of disputed title to land between the Crown and its
subjects, it is open to it to establish a special court for that purpose
and withdraw the cognizance of such questions from the ordinary
tribunals ; but it has not yet done so. And that being so, I am of
opinion that the order proposed by my brother Withers is the proper
order to make in this case.