095-NLR-NLR-V-71-KASSIM-HAMEEDU-LEBBE-Appellant-and-M.-SULTAN-SAMOON-Respondent.pdf
452
SfRlMANE, J.—Samuel v. Mohideen
1968Present: Alles, J.
KASSIM HAMEEDU LEBBE Appellant and M. SULTAN SAMOON,
Respondent
8. C. 16j1965—C. R. Trincomcdee 3236
Croton land—Issue oj permit for occupation of a Crown allotment—Eviction of allotteeon ground of non-residence on the land—Permissibility—Procedure to be followedfar issue of permits and grants—Land Development Ordinance (Cap. 464),ss. 20 to 26,156 (k).
Where a person is given an implied undertaking by the Crown that he wouldbe issued a permit within a reasonable time in respect of an allotment of Crownland under the Land Development Ordinance, there is no legal obligation onhim to take up residence on the allotment before he is issued a permit layingdown a condition that he should reside on the land ,within a specified period.Accordingly, if he has made improvements on the land in consequence of theimplied undertaking, his prospective permit is not liable to be cancelled infavour of another person merely on the ground of non-reeidenoe on the land.
ALLES, j.—Kasaim Hameedu Lebbe v. Samoon
453
Ap
PEAL from a judgment of the Court of Requests, Trincomalee.
C. Ranganaihan,Q.C., with S. Sharvananda, for the defendant-appellant.
Siva Rajaratnam, for the plaintiff-respondent.
Cur. adv. vult.
February 23, 1968. Alles, J.—
The plaintiff, a Revenue Overseer, instituted this action against thedefendant, a labourer, for a.declaration that he was the lawful, allottee ofthe Crown land described as lot 30 in Final Village Plan No. 29 of onerood extent and situated at Love Lane, Uppuveli, Trincomalee ; forejectment of the defendant whom he alleged was in forcible possession ofthe said Lot and for damages. After trial, the learned Commissioner gave.judgment in favour of the plaintiff as prayed for with costs. The presentappeal of the defendant is from the Commissioner’s order.
This allotment was alienated under the provisions of the Land Develop-ment Ordinance and the Regulations made thereunder. The Ordinancesets out the procedure that has to be followed for the issue of permits andgrants for occupation of Crown allotments. Chapter III deals with thealienation of Crown land. Under section 20 no alienation by grant ispossible except at a Land Kachcheri ; sections 21 and 22 relate to thepublicity that has to be given in regard to the holding of a LandKachcheri and the manner in which applications for land are receivedand considered ; section 23 enumerates the powers of the GovernmentAgent in regard to the issue of permits—-he may in his discretion—
(а)select an applicant to receive a permit or grant, either
immediately or on some future date ;
(б)postpone consideration of any application ;
(c) reject any application. %
In selecting an applicant the Government Agent shall have specialregard to applications received from persons resident in the neighbour-hood of the land proposed to be alienated (section 23 (2)) and an appeallies to the Land Commissioner from any decision of the GovernmentAgent, who can vary the decision of the Government Agent, .if in -hisopinion the justice of the case so requires (section 23 (3)). Under section23 (1) the date of selection ‘ shall be the material date for the purpose ofascertaining whether such person is duly qualified to receive such permitor grant.’ Chapter TV deals with the issue of Permits and Grants. Apermit is in a prescribed form and is personal to the permit holder(sections 26 and 26). The prescribed form of the permit is set out in theRegulations and is found in Volume VII of the Subsidiary Legislation
4s4ALLES, j.—Kasaim Hameedu Lebbe u. iSamoori
published in 1956 {vide page 678). The permit shall contain certainconditions and may contain other conditions which the GovernmentAgent is authorised to include under the provisions of the law—videRegulation 3 made under section 25 (p. 580 of the Subsidiary Legislation,Vol. VII). The permit Pi issued to the plaintiff in this case contains anexhaustive list of conditipns—essential and optional—and among theseconditions is one that the permit holder shall within 12 months of theissue of the permit erect a dwelling house and reside on the land.
Under section 156 (11 or k) of the Ordinance regulations have beenmade in relation to the authentication of permits and endorsements andRegulation (1) under the section reads as follows :—
** All permits issued under this Ordinance shall be signed b.y theGovernment Agent: Provided that the Government Agent may withthe express permission of the Land Commissioner authorise in writinghis Office Assistant by name to sign permits on his behalf/'
This Regulation was obviously meant to ensure that on the importantquestion of the alienation of Crown land, the Government Agent or hisduly authorised Office Assistant should be the only persons competent toissue permits. The more important matter relating to the issue of grantscan only be done under the hand of the Governor-General—vide theprescribed Form of the Grant published at p. 580 of Vol. VII of theSubsidiary Legislation.
The facts of this case reveal that the authorities concerned have shownscant regard to the provisions of the law and in issuing the permit PI tothe plaintiff in this case the authorities do not appear to have followedthe normal procedure. Indeed, in my view, the permit that the plaintiffhas successfully obtained in this case is nothing less than a worthlesspiece of paper.
It is not disputed that the defendant was selected for alienation inrespect of this particular allotment somewhere in 1956 and presumablysatisfied the conditions for selection set out in Chapter III. The Govern-ment received payments as annual rents from him in respect of this Lotfrom 1956 to 1961. The defendant stated in evidence that after beingplaced in possession in 1956, he cleared the jungle, fenced it, and put upa house but that he was able to go into occupation only in June 1961owing to certain financial difficulties. His evidence with regard to theimprovement to the land is supported by the evidence of the DistrictRevenue Officer Subramaniam who inspected the land in 1964. Whenthe defendant went to the land in June 1961 one Rehan wife of NoorMohamed obstructed him and he had occasion to make a complaint tothe Police. This complaint has been produced as D4. The defendantstated that he put up a house in 1962 and shifted with his family to theLot in March 1962. The plaintiff had previously been allotted LotNo. 616 but requested the Government Agent to cancel his allocationfor this Lot and be given Lot No. 30 which was in the occupation of the
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ALLES, J.—Kassim Hameedu Lebbe v. Samoori
defendant at the time, because according to him his mother lived closeto Lot No. 30. He appears to have achieved his object with consummateease and was apparently able to impress on the authorities the necessityof living in close proximity to his mother. There was thereafter unusualactivity in the Kachcheri in regard to the issue of the permit to theplaintiff—an activity which had remained dormant since the selectionof the defendant in 1956. On 17.2.62, the Government Agent wrote tothe Land Commissioner informing him that the defendant had not takenup residence and that he proposed to set aside the selection of the defend-ant, and by P3 of 2.4.62, the Land Commissioner agreed with the Govern-ment Agent’s recommendation. It is not known whether P2 was writtenby a person who had the authority of the Government Agent to writeto the Land Commissioner because Gunaratnam, the District Land Officer,merely produced the file containing this letter. On 11.4.62, the permitPI was issued to the plaintiff signed by one Abeywickreme, who has beendescribed by Gunaratnam as his predecessor in office. In view ofRegulation (1) made under section 156 (ii) and referred to earlier, Abey-wickreme had clearly no authority to issue PI and in my view, PI is not avalid permit under the provisions of the law which entitled the plaintiffto make any claim to the Lot.
The learned Commissioner in giving judgment for the plaintiff has beenconsiderably influenced by the fact that the plaintiff was armed withsome document in support of his claim. If he had paused to considerthe permit PI critically he could not have failed to have come to aconclusion that Pi passed no valid title. Ho also states that the defend-ant had not taken up residence on the Lot since 1956. The law doesnot prescribe any conditions in regard to residence on a person selected.Such conditions are only required by law when the permit is issued.Gunaratnam states that in the notice announcing the Land Kachcheri,conditions are laid down and that it was in pursuance of these conditionsthat applications are called for. The law contemplates the issue of thepermit at the time of selection or within a short time thereafter and doesnot envisage a situation where the authorities after making their selec-tion sleep over the issue for nearly six years as has been done in thiscase. The defendant, after being selected, was justified in assumingthat the permit would be issued to him within a reasonable time particu-larly as the Government had accepted rent from him during all theseyears. It is in pursuance of an implied undertaking by the Crown thathe would .be issued the permit within a short time, that the defendantcleared the jungle, fenced the Lot and erected a hut. It seems contraryto all principles of natural justice that after all the work had been done byhim in the reasonable expectation of receiving the permit, that the plain-tiff should be placed in possession of his allotment and that the defendantshould be deprived of the fruits of his labours. If the permit had beenissued to the defendant containing the conditions referred to in PI,it would have been open to the authorities to cancel the permit in view ofthe defendant'tnon-residence, but having failed to issue a permit, I do
456ALLES, J.—Kasaim Hamcedu Lebbe v. Samoon
not think it is open to them to evict the defendant on that ground. TheCommissioner has also stressed the fact that in D4 the defendant, whenhe was obstructed by Rehan, had stated that he was going into residenceof his allotment ‘ tomorrow when in fact he went into residence muchlater. It may well' be that he intended to go into residence soon afterhe was obstructed but was unable to do so owing to extraneous reasons.In any event, I hardly think that this is an adequate reason for making afinding adverse to the defendant, particularly as there was no legal obliga-tion on his part- to go into residence before he obtained his permit. Again, .the Commissioner states that Gunaratnam is an official on whose testi-mony he can act with confidence. It is, however, clear from Gunaratnam’sevidence that he never visited the land and w-as only giving hearsayevidence of the defendant’s activities. The only evidence of any materia-lity given by Gunaratnam is the unorthodox procedure adopted in hisoffice with regard to the issue of permits. Finally the Commissionerobserves that he prefers the evidence of the plaintiff to that of thedefendant. Tho plaintiff relying on his invalid permit went to takepossession of the Lot when he was obstructed by. the defendant. Thisthe defendant admits and claims that he was on the Lot as a matterof right. There is therefore no conflict in the evidence between theplaintiff and the defendant.
I am therefore of the opinion that the Commissioner has misdirectedhimself, both on the law and the facts and was in error in giving judg-ment for the plaintiff. It is difficult to resist the conclusion that theplaintiff, who had no manner of claim to this Lot spared no efforts tooust the defendant unjustifiably from this Lot. There is evidence thatthis allotment has considerably appreciated in value in recent times andthe plaintiff was endeavouring to deprive the defendant of his possessionof the Lot to which he Avas morally and justifiably entitled. In thisendeavour I regret to state the plaintiff found in the authorities aclose collaborator, I trust that, even at this late stage, the authoritieswill issue the permit to the defendant instead of allowing the threat ofan imminent ouster to ever hang over his head. The appeal is allowedwith costs both in this Court and in the Court below.
Appeal allowed.