KANDIAH V. LAND REFORM COMMISSOJN AND TWO OTHERS

010-SLLR-1988-V2-KANDIAH-V.-LAND-REFORM-COMMISSOJN-AND-TWO-OTHERS.pdf


KANDIAHV.
LAND REFORM COMMISSIONAND TWO OTHERSCOURT OF APPEALS.N, DE SILVA J..
C A APPLICATION NO. 1152/83,dUNE 30: 1988. •
Land Reform — Land Reform (Special ProvisionsJ Act No. 39 of 1981. section21 — When does owner of vested land become statutory lessee — Duty toalienate land to statutory lessee — Writ of Mandamus.
Certain estates (including Orwell Estate and Sevanakawatta Estate) in extent over400 acres of which petitioner was co-owner whose share worked out to only 30acres were acquired under the Land Acquisition Act In tertns of section 21 ofthe Lancj Reform (Special Provisions) Act No. 38 of'1981 such acquired landswere deemed to have vested in the Land Reform Commission (1st respondent).There being no objection from any quarter on 30.06.1982 the 1 st respondent. decided to alienate/release 23 acres of Sanquhar Estate to the petitioner andthis decision was communicated to the petitioner by letter of 12.07.1982 (P8)as-land icould not be released from Orwell and Seyariak Estates. The decisionhowever was not implemented by the 1st respondent Petitioner was asked ifhe would accept land from Nayapanna Estate but petitioner declined to accept this.
The reason for 1 st respondent s failure to implement his decision was stated tobe because the M.P. for Gampola objected to the release of land from Sanquhar..Estate.
The Chairman of the 1st respondent filed affidavit stating that the petitioner is >only entitled to receive compensation for the land in terms of section 21(4) ofthe Act of .1981, as his ownership was of an extent less than 60 acres.
The Estates'bf which the petitioner was co-owner having been acquired on21.08.1972 and no compensation having been paid as at 03.06.1981 thecriteria specified in s.21 (1) are satisfied and the petitioner becomes a statutorylessee under the Land Reform Law irrespective of the extent owned by him andtherefore entitiled to the rights of a . statutory lessee to make a statutorydeclaration undef s. 18 of the Land Reform Law and make an inter-familytransfer in. respect of such land in terms of s. 14.
Section 21 (2) casts a duty on the 1 st respondent to alienate to a statutorylessee the maximum extent of agricultural land which may be owned by anyperson under the principal enactment (Land Reform Law) or the extent in fact .acquired from such statutory lessee whichever isJess.
The petitioner being a statutoiy lessee has a right to demand theperformance of this duty and to have a writ of mandamus issued to secureperformance of this duty by the 1 st respondent.
Per S. N. Silva, J "In dealing with the facts I found that the 1st Respondentdid not implement the decision in document P8 and later purported to vary thedecision acting under dictation by the Member of Parliament. The 1st.Respondent is a statutory functionary and it cannot abdicate its duty or exerciseits discretionary power under ‘dictation by the Member of Parliament or anyother person."
APPLICATION for writ of mandamus to issue to the Land Reform Commission,Faiz Musthapha PC. with Mahahama da Silva and Zenul Latheef for petitioner.H.M. P. Herath for-lst respondent.
Y. L M. Mansoor for added respondent.
Curadvvuft
August 25.19.88
S.N.8ILVA.J.
The Petitioner has . filed This application for a Writ ofMandamus to issue directing the Land Reform Commission (1stRespondent) to give, effect to the determination evidenced bydocument marked P8 and to place the Petitioner in possession ofan-extent of 23 Acres of the land called 'Sanquhar Estate'situated in the Kaody District..
The Petitioner.was a co-owner of two estates called 'Orwell'and 'Sevanakwatta' containing in extent oyer 400 Acres, in the£andy District. His share is.computed at only 30 Acres. On21,-8-1972 the said- estates were acquired under theprovisions of the land Acquisition Act and were handed .overto the National Agricultural Diversification and Settlement.Authority (N,A. D. S. A.)., It is alleged that the estates-were .acquired as-an act of political victimization by. the formerregime because another co-owner. S. V. Anamalai of theCeylon Workers Congress was a strong: supporter of theUnited.National Party. After the.present regime assumed officeSO Acres of the Orwell Estate was divested to Anamalai. It iscommon ground as . between the. Petitioner and' the 1stRespondent that the Petitioner did-not receive compensationfor his share of the co-owned property that was acquired andthe remaining portions of the Estates continued to vest in thegovernment.
It appears that section 21 of the Land Reform (SpecialProvisions) Act No. 39 of- 1981 was enacted to provide ameasure of'relief to persons whose lands were acquired on'orafter .29-5-197,1 (being the date on which land reform wasannounced and the operative date in several provisions of theLand Reform- Law . No. 1 of 1.972) and to whom, nocompensation had been paid at the commencement of the Act.to,wiL 3-6-1981.
0lt is,common ground that in terms of section 21 (1) of the Actthe said estates that were hitherto vested in the .Governmentunder the Land Acquisition Act were deemed to have vested inthe-1stRespondent under the Land. Reform Law. The Petitionersought an alienation in his favour of the extent that had been
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owned by him. from Orwell Estate. His application wasrecommended by the Member of Parliament for Gampola by hisletter dated 9*1-1982 marked ^1. The Chairman of the 1stRespondent informed the Petitioner that land could not bealienated to him from Orwell Estate and thereupbn the Petitionerrequested an alienation of a lesser extent; 23 Acres, fromSanquhar Estate: By document marked P2 dated 3-2-1982 theChairman of the 1st Respondent sought the views of the sameMember of Parliament regarding theprop’osed alienation and byletter dated 8-2-1982 marked P3 the Member of Parliamentstated that he had no objection to it. It is clear from thedocuments dated 19-1-1982 marked X. 31-5-1982 marked P4,and 2-6-1982 marked P5 that the 1st Respondent sought theobservations of the N. A. O S. A. and the District Land ReformAuthority regarding the ….. proposed alienation. There beingno objection from any quarter, on 30-6-1982. the • 1stRespondent decided to alienate/release 23 Acres of SanquharEstate to the Petitioner. The Petitioner had planned not only togrow tea on the said land but also to'set up a dairy and poultryfarm. Therefore, immediately upon the said decision being madeby the 1 st Respondent, he tendered his letter of resignationdated 1-7-1982 marked P6 to the Janatha Estates DevelopmentBoard No. 1, where he held the post of Assistant Manager. Thetetter specifically states that he- is. resigning to divert his fullattention to the,development of the land obtained from the 1stRespondent. By letter marked P7 ,the’J. E. D. B. .accepted theresignation:
The.decision of the 1st Respondent made onr30-6-1982'wascommunicated to the Petitioner by letter dated 12-7-1982marked P8: The title of the , letter states that it relates to therelease of land in terms of the Land Reform (Special Provisions)Act No. 39 of 1.981. In paragraph. 2 it states that the extent ofland owned by the Petitioner canhqtbe released from the Orwelland Sevanek Estates. Paragraph 3 states; that in lieu of the landowned by him in the said estates an extent of 23 Acres isreleased to him from the Sanquhar Estate and that he shouldtake over possession of the land from the Director of the LandReform Authority, Kandy District. The conditions governing therelease are marked P9. '
Although by P8 the 1st Respondent requested-the Petitioner totake over possession of the said extent from Sanquhar Estate, the
decision itself was not implemented by the tst respondent Afterabout six months the Petitioner sent letter marked P11 to theChairman of the 1st respondent stating that he should not be''harassed" further and that the land should be handed over.without further delay. Thereafter the petitioner received letterdated.22*2-1983 stating that it is not possible to release 23Acres from Sanquhar Estate and inquiring whether he would,accept land from the ‘Nayapana Estate'. The Petitioner objectedto the fresh, proposal on the ground that Nayapane Estate is aneglected steep land covered with jungle and unsuited for tKeproject envisaged by him.
The cause for .the decision of the 1st Respondent being variedas aforesaid is revealed in the several documents and affidavitsfiled by the parties. In affidavit dated 11-5-1984. the Chairmanof the 1st respondent has admitted that the Member ofParliament who had previously recommended the application ofthe Petitioner by documents marked PI and P3 subsequentlyrequested the 1 st Respondent at different times to sell the land inquestion to three other persons. Firstly, to one H. K. 6. K.Bandafa. secondly to. one Prasad. Dissanayake and finally, to oneA. G. M.' Maharoof being the added. Respondent to thisapplication. Prasad Dissanayake referred to above is the son of the.Member of Parliament. The Petitioner has alleged that theMember of Parliament manouvered to get the land for his sonand that Maharoof was introduced as a mere front because thePetitioner addressed a complaint through the Ceylon WorkersCongress to. the President regarding the failure of the 1 stRespondent to implement the decision in his favour. Be that asitmay, letter dated 9-5-1983 marked P.17. sent by the AdditionalSecretary to,the President states as follows:,
'The LRC has reported that the M.P. for Gampoia has. objected to the release of land from Sanquhar Estate. TheM.P. has suggested that alternate land. be given fromNayapana Estate. Mr. Kandiah has been accordinglyinformed and a reply from Him is being awaited."
This letter taken together wittv-the other documentaryevidence produced by the Petitioner and the admissions made.by the Chairman of the 1 st Respondent clearly establish that the
1st Respondent was acting under dictation by. the Member ofParliament in not implementing the: decision contained indocument marked P8 and later in purporting to vary,the decisionby document marked P14.
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Counsel for the Petitioner submitted that in terms-of section21(2) .of the Land Reform (Special Provisions) Act No. 39 of1981 his client is entitled to an alienation in his favour of the'extent of land acquired from him under the Land Acquisition Act.He further submitted that the obligation cast on the. 1stRespondent t>y section 21(2) is in the nature of a public dutyand that mandamus will lie to secure its performance. Counselfor the 1st and the.'added respondents contended that thePetitioner owned, less than ‘50 Acres and as Such is not astatutory lessee entitled to an alienation in his favour in terms ofsection 21 (2). the Chairman of the 1st Respondent in paragraph25 of his'affidavit'dated 25-11-1983 has ^stated that thePetitioner is only entitled to receive compensation f£r the land interms of section 21 (4) of the said Act.
Section 21 of the Land Acquisition (Special Provisions) Act No.59 of : 1981 enacts as follows:
"21. (1) Where lands have, been acquired under the LandAcquisition Act on or Rafter May 29, 1971 and nocompensation has been paid in respect of such lands, onthe date of commencement of this Act notwithstandinganything in this Act or any other law, such lands shall bedeemed to have been vested in the Commission unde? theLand Reform Law and accordingly, the owners of suchlands shall be entitled to the rights of a statutory lesseeunder section 14 and section 18 of that law and may, withinthree months of the date of commencement of this Act,make a statutory declaration to the Commission.
Where it is . not practicable for the Commission tomake a statutory determination under section 19 of theLand Reform Law in respect of. any land vested in theCommission by virtue of subsection (1), specifying theportion or portions of the agricultural land owned^by the
statutory lessee which he shall be allowed to retain, theCommission shall alienate to such statutory lessee, themaximum extent of agricultural land which may be ownedby any person under the Land Reform Law or the extent ofthe land acquired from such statutory lessee under the LandAcquisition Act, Whichever'is less.
Where it is not practicable for the Commission togrant approval for the transfer by the statutory lessee of anyagricultural land under subsection (2) of section 14 of theLand Reform Law. the Commission shall alienate land to the
. extent of the land acquired from such statutory lessee underthe Land Acquisition Act, to any child or to a parent of suchstatutory lessee.
Where no compensation has been paid for the landsacquired under the Land Acquisition Act deemed to bevested in the Commission under subsection (1) and whereno determination is made under subsection (2) or where noapproval is granted under subsection (3). the statutorylessee be entitled to receive compensation for such landsunder this Act.
As noted above, this section appears to have been enacted asa measure of relief to persons whose lands were acquired aifter29-5-1971 but in respect of which no compensation had beenpaid as at 3-6-1981. The.draftsman may have had in mind alimited category of persons. However, subsection (1) asappearing above is open-ended and would encompass allacquisitions made during the 10 year period where nocompensation was paid as at the terminal date. Considering theusual delay attending the payment of compensation, this wouldcover a wide category of acquisitions far removed from thecontemplation of the draftsman. The amendment enacted insection 13 of the Land Reform (special Provisions) Act No. 14 of.1986 substituted.section 21(1) with a new provision containingadditional criteria that limit the operation of the provision to aspecific category of acquisitions. The amendment, however, isnot retrospective in operation and applying section 6.(3) (c) of theInterpretation Ordinance, this proceeding has to be determinedas if there had been no repeal of section 21(1).
As statedabove it is common ground that Estates of which thePetitioner was a co-owner vested in the 1st Respondent by theoperation-of section 21 (1). The estates were acquired on 21-8-1972and no compensation had been paid as at 3-6-1981. Thereforethe criteria specified in section 21(1) are satisfied. Counsel forRespondents submit that the Petitioner does not become astatutory lessee because his ownership is of an extent less than'50 Acres. They support this submission on the basis that astatutory lease is created in terms of section 3(2) of the LandReform Law only-where a person owns land in excess of theceiling which is 50 Acres where the Petitioner is concerned.
The Respondent's .submission is correct in so far.as .it appliesto the provisions of the principal enactment. However'21( 1)deems certain iand to have vested in–the 1st Respondentnotwithstanding the provisions 'of -any other law.. Thereforeirrespective of the extent owned by the. Petitioner .the land isdeemed to have so vested. The concommitant of the vesting thuscreated is that the Petitioner becomes.entitled to the rights of astatutory lessee. The Respondent s contention that the owner ofthe vested land becomes a statutory lessee only , if his .totalownership is in excess of the ceiling is not supported on a plainreading of the section. Since the words of the section are clearand unambiguous it is not permissible to import concepts from.the principal enactment to restrict the plain meaning of thesection.
The Respondents' submission is untenable due to the following'reasons as well:
(i) Section -21(2) provides that "the Commission shall alienateto such statutory lessee the maximum extent of agriculturalland which may be owned by any person under the LandReform Law or the extent of the land acquired from suchstatutory lessee under, the Land Acquisition Act, which everis less". The second alternative would apply to a person(like the Petitioner) who owned land below the ceiling. If ascontended by the Petitioner a person became a statutorylessee under section 21(1) only where he owned land abovethe ceiling the second alternative would be redundant. –
■CA Kandiah v. Land Reform Commission and Two OthersJS. N. Silva. J.)127
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(ii) The Chairman of the 1st ■ Respondent, has stated in.'paragraph 25 of his affidavit dated 29-11-1983 that thePetitioner is entitled only to receive compensation in termsOf section 21(4). A reading of section 21(4) reveals, thatonly a statutory lessee is entitled to receive compensation.It cogld never be contended that the phrase “statutorylessee"- has one meaning-under subsection (4) but adifferent meaning under subsectibn (2) and (3). On theother hand .if the. phrase "statutory lessee" , appearing insubsection (4). is also'restricted to a person whoownedland above the ceiling, a person (like the Petitioner) whoowned land below the ceiling and whose, land: is deemedto.have vested in the Commission under subsection (1) willreceive neither land nor compensation. A result obviouslyfar removed from the intention of the legislature.
For the reasons stated above, I hold.that the Petitioner whoseland vested in the 1st Respondent in terms of sections 21(1 )* hasto be [considered, a statutory lessee for the purposes..of section21(1)..(2), (3) and (4). The Petitioner is thus entitled to make astatutory declaration as provided for in section 18 of the.principal enactment specifying inter alia his preference to retainany portion or portions of the vested land and to make an inter-famiiy transfer in respect of such land in terms of section 14.
The document nparked P1 (which is admittedly contained in thefiles of the 1st Respondent) support the. contention of the.Petitioner that he applied for a release of the extent owned byhim. from Orwell. Estate. Even assuming that the Petitioner failedto make a statutory declaration in proper form, that by itself, doesnot deprive the Petitioner of the status of a statutory lessee. •
Section 21(2) casts a duty on the 1st Respondent to alienateto a statutory lessee the maximum extent of agricultural landwhich ’may be ovyned by any person under the principalenactment or the extent in fact acquired from such statutorylesse.e. whichever is less. The Petitioner being a statutory lesseehas a right to demand the performance of this duty. Theprecondition for the performance of this duty as contained iri thesubsection is'that, it is not practicable for the 1 $t Respondent to
make a statutory determination specifying the portion of lahdowned by the statutory lessee that may be retained by him. Inother words the duty cast on ttjp 1 st Respondent by Subsection(2) has to be performed in every instance where the 1stRespondent cannot permit the statutory lessee to retain a portionof the land owned by him prior to the acquisition. In documentmarked P8 the 1st Respondent has stated that it is not possibleto alienate a portion of Orwell or Sevanak Estate to the Petitioner.This tantamounts to an admission by the 1st Respondent that theprecondition referred above is satisfied. Indeed, the 1stRespondent sought to perform the duty by deciding to alienate23 Acres of Sanquhar Estate to the Petitioner. The argument nowraised that the word used in document P8 is "release" and not"alienate", is a mere play on words and does not meritconsideration by-Court.
In dealing with the facts I found that the 1st Respondent didnot implement the decision in document P8 and later purportedto vary the decision acting under dictation-by the Member ofParliament The 1st Respondent js a statutory functionary and itcannot abdicate its duty or exercise its discretionary power underdictation by the Member of Parliament or any other person.Document P14 which was sent by the 1st Respondent underdictation by the 1st Respondent is accordingly of no force ofavail in law.
The 1 st Respondent has made' a decision in document P8 toperform the duty cast upon it by section 21(2)! However thisdecision has not been implemented. Therefore the Petitioner isentitled in law to a Writ of Mandamus to secure the performanceof the duty. Accordingly I allow the application and direct theissue of a Writ of Mandamus as prayed for in paragraph (a) ofthe prayer to the petition. I order the 1st Respondent to pay asum of Rs. .1500/- as costs to the Petitioner.
Mandamus' issued