LADAMUTTU PILLAI, Appellant, and THE ATTORNEY-GENERAL and others, Respondents

075-NLR-NLR-V-59-LADAMUTTU-PILLAI-Appellant-and-THE-ATTORNEY-GENERAL-and-others-Respondents.pdf

Ladamuttu Pillai v. The Attorney-General
313
1957 Present:Basnayake, C.J., Pulle, J., and K. D. de Silva, J.LADAISIUTTU PILLAI, Appellant, and THE ATTORNEY-GENERAL‘ and others, RespondentsS.G. 457—D. G. Colombo, 2S8{Z
Interpretation of statutes—Statute which encroaches on property rights of the subject—Strict construction necessary—Decision of a 'public functionary—Provisionin statute that it should be "final ”—Effect of expression "final" or "finaland conclusive” on jurisdiction of Courts—Words in the singular numberinclude the plural—Interpretation Ordinance, s. 2 (x).
Land Redemption Ordinance, iVo. 61 of 1942—Sections 2, 3 (1) (b), 3 (4), 3 (<5)—Land Commissioner—Liability to be sued in his official capacity for acquiringland illegally—His status as a corporation—Injunction may be issued againsthim—Quasi-jiulicial functions vested in hi/ti—Control of minister—CivilLaw Ordinance, s. 3—Land Development Ordinance, ss. 2, 3^-Crown LandsOrdinance, s. 90—Civil Procedure Code, ss. S, 0, 8, 217 (2), Chapter 31—Courts Ordinance, ss. 42, 86—Certiorari—Does not exclude other remedies—Joint and several creditors—Effect of institution of action by one of them.
■ Where a statuto encroaches upon the property rights of the subject and itslanguage admits of moro than ono construction, that which is in favour ofthe subject and not ono against him must be preferred.■
A statutory functionary like the Land Commissioner may be sued nomineofficii.■
When a statuto provides that a decision made by a statutory functionaryshall bo “final” or “final and conclusive ”, tho words “final” and “finaland conclusivo ” do not havo tho effect of ousting the jurisdiction of tho Courtsto declare in appropriate proceedings that tho decision of tho public functionary,when ho has acted contrary to tho statute, is illegal.
When ono of joint and several creditors institutes an action to recover adebt, payment to tho other co-creditors does not extinguish the debt.
Certiorari does not exclude a regular action when both the remedies areavailable.
Subsections 1 and 4 of section 3 of tho Land Redemption Ordinance, hTo. 61of 1942, read ns follows :—.
3. (1) Tho Land Commissioner is hereby authorised to acquire on behalfof Government tho wholo or any part of any agricultural land, iftho Land Commissioner is satisfied that that land was, at any timebefore or after tho dato appointed under section 1, but not earlierthan the first day of January 1929, either—‘
(а)sold in execution of a mortgage decree, or
(б)transferred by the owner of tho land to any other person in
satisfaction or part satisfaction of a debt .which was duo fromtho owner to such other person and which was, immediatelyprior to such transfer, scoured by a mortgage of tho land.
(4) Tho question whether any land which the Land Commissioner isauthorised to acquire under subsection (1) should or should not beacquired shall, subject to any regulations made in' that behalf, bodetermined by the Land Commissioner in tho exercise of liis individualjudgment; and every such determination of the Land Coinmissioner•'shall bo final.
14 S& 15LIX
2J. X. B 32J2—5,503 (3/5S)
311 -BASNAYAKE,C.J.—T^adamuihi JPillai v'. The Attorney-General
Held -(K. D. de Silva, j., di 6scnting), that, tinder section 2 (x) of thoInterpretation Ordinance, -words in the singular number includo the plural!Accordingly, section 3 (!) (b) of the Band Redemption Ordinance applies onlyto a transfer of the entire land whero only one land is mortgaged or to a.transfer
of all the lands where more than one land is mortgaged, 1 Micro several landsare mortgaged as security. for a'debt, the section would not apply to .atransfer of undivided shares in a land or lands. Inasmuch as the Band
’ Redemption Ordinance constitutes a serious intrusion on the property rightstho subject, it should be strictly construed and its scope should, be strictlyconGned by preferring a construction in favour of tho subject and against theacquiring authority…'’
Held further (per Basnavake, C.J., and Puli e, J.), (i) that whero there arejoint and several mortgagees and one of them institutes action on the mortgagebond, a subsequent transfer of the mortgaged property by the mortgagor infavour of any of tho other co-mortgagees cannot come within the ambit of• section 3(1) (l>).
that the Band Commissioner may bo sued nomine ojfficii. Section 2 oftho Band Redemption Ordinance,. section 90. of the Crown Bands Ordinanceand section 2 of tho Bond Development Ordinance make it clear that tho BandCommissioner is regarded ns a corporation in regard to his statutory dutiesand functions. Tho fact that tho Minister has “ general direction and control ”
doos not absolve the Band Commissioner in the performance of his duties.
that section 3 (4) of the Band Redemption Ordinance does not preclude
a person from challenging in a regular action the legality of the determinationof the Bond Commissioner to acquire a land.-"
that an injunction under section S6 of tho Courts Ordinance can boissued against the Band Commissioner restraining him from taking steps toacquire a land unlawfully.
that the right to institute a regular action to obtain a declaratory decreo
and an injunction is not excluded by the fact that a writ of certiorari also maybe available.•-
A PPEAL from a judgment of the District Court, Colombo. Thefacts appear from the judgment of Basnayake, C.J..
II. V. Perera, Q.C., with Tf. Waniggtunga and S. L. D. Betndaranayalee,for Substituted-Plaintiff, Appellant.
• Walter Jayawardena, with V. Tennekoon, Senior Crown Counsel, andA. Mahendrarajah, – Crown Counsel, for 1st and 2nd Defendants,Respondents.
II. TV. Jayaicardene, Q.G., with G. E. Bodrtgo and IV. G. N. Weeratne,for Added-Defendant, Respondent. . _ .’
–:.i-• Cur. adv. vull. .
January 31, 195S. Basnayake, C.J.—-
Many questions of great public importance arise on this appeal whichhas been very ably argued by learned counsel." t- ;.
' . The facts are not in dispute. Briefly they are as followsWarnakulaAditha Arsanifaitta Don ^ Elaris Perera, the 3rd added defendant-respondent (hereinafter referred to ns Elaris Perera), was,the owner of.four lands known as (a) Keeriyankalliya Estate, (6) Dangahawatta aliasThalgahawatta, (c) Siyambalagahawatta Mukalana and . Thalawewa. .*
BASJTAYAKJR, C.J.— Ladamultu Pillai v. The Attorney General313
Mukalana, Siyambalagahawatta, and (d) Angunuwila Estate situated iuthe Chi Fa w and Puttalam Districts. They are 42 acres, 6 acres, 9 acres,and 65 acres respectively.'.
By Bond No. 391 of 30tli September 1925 (P 1) Elaris Pererarnortgaged as security for a loan of Rs. 50,000 the eleven allotmentsof land referred to in the schedule thereof of a total extent of about150 acres to M. S. V. S. Sockalingam Chettiar, M. S. U. SubramaniamChcttiar and A. R. M. Iv. Arunasalam Chettiar. The condition of thebond was that money was repayable to any one of the mortgagees ortheir attornej's or heirs. By Bond No. 533 of Stli April 1930 (P 2) ElarisPerera executed a secondary mortgage of the same lands for Rs. 25,000in favour of AT. S. O. Muttiah Chettiar, SI. S. O. Velayuthan Chettiar,M. S. O. Suppramaniam Chettiar, M. S. O. Sockalingam Chettiar andS. Iv. N. S. »Sekapj>a Chettiar. Tliis loan also was repayable to anj’- oneof the mortgagees or their attorneys or heirs. .
On Sth March 1931 Elaris Perera executed tertiary Bond No. 2339(P 3) for Rs. 20,000 in favour of Warnakulasui^a Elaris DabareraAppuhamy of Marawila over the same and other lands.
Sockalingam Chettiar put Bond P 2 in suit in D. C. Negombo caseNo. 73G5 and added the tertian mortgagee as a party to the action.Decree was entered on 22nd June 1933 in favour of Sockalingam Chettiarfor a sum of Rs. 32,625 with further interest on Rs. 25,000 at 15 percent, per annum from 7th February 1933 till the date of decree withfurther interest on the aggregate amount of the decree at 9 per cent,per annum till payment in full with costs of the action within four monthsof decree. Bjr deed No. 4010 of 4th May 1935 (P 5) Elaris Pereratransferred to Sockalingam Chettiar and Sekappa Chettiar for a sumof Rs. 75,000 undivided shares in the lands mortgaged on P 1 and P 2in the proportion of 5- share to Sockalingam and the remaining J toSekappa Chettiar. It would appear from the attestation clause in thedeed that the full consideration was set off in full satisfaction of theclaim and costs due in case No. 73G5 D. C. Negombo and the principaland interest due on Bond P 1. Elaris Perera also appears to have under-taken to release the lands from Tertiary Bond P 3. Sockalingam Chettiar ■by. deed No. 1375 of 10th October 1940 (P 6) transferred an undivided£ share of the lands to Velayuthan Chettiar and b}r deed No. 13S7 of13th October 1940 (P 7) he transferred his remaining £ share to KaFyaniAtclii, administratrix of the Estate of Muttiah Chettiar, and to MeyappaChettiar, the son of Muttiah. By deed No. 761 of 24tli February 1945(P 8) Sekappa Chettiar, Velayuthan Chettiar, Kalyani Atchi andMeyappa Chettiar transferred to the plaintiff, Muthuwairen SittambalamPillai, also known as Muthuwairen Ladamuttu Pillai, for a sum ofRs. 75,000 the lands undivided shares of which were transferred byElaris Perera on P 5. The plaintiff thereafter entered into possessionof them..''
On 7th February 1949 tho Band Commissioner informed the plaintiffthat he was taking steps to acquire under the Land Redemption OrdinanceNo. 61 of 1942 four of tho lands purchased'by him. finder P8. Theplaintiff challenged the Land Commissioner’s right :to acquire thelands and instituted this action against the Attorney-General as the
316
– BASNAV^KB, O.J.— Ladamultu Filial v. The Attorney-General
1st defendant. and the Land Commissioner as'tho 2nd defendant inwhich he prays for an injunction restraining the defendants jointly or inther alternative from taking steps under'Ordinanco No. 61 of 1942 to.acquire the lands described in the schedule to the plaint. '-
The plaintiff died on 8th April 1951 and Ladamuttu Pillai Kathir-kamara Pillai, his eldest son and administrator of his Estate, wassubstituted as party plaintiff.-
The Attorney-General and tho Land Commissioner in their jointanswer filed oh 2nd March 1950 stated that on 16th May 1945 ElarisPerera applied to the Land Commissioner for the redemption of the landsdescribed in tho schedule to the plaint and that on 12th May 1947 thoLand Commissioner acting under section 3 (4) of tho Land RedemptionOrdinance No. 61 of 1942 made his determination that KeeriyankalliyaEstate bo acquired and that notification of his determination was con-voyed to the plaintiff, on 7th February 1949. The defendants furtherasserted—.
that the land is land of the description contained in section 3 (1) (b)
-of the Ordinance, –
that the Land Commissioner’s determination to acquire Keeriyan-
kalliya -Estate under tho provisions of tho Land Redemption
Ordinance was final and conclusive and could not be questioned
in this action and that the District Court had no jurisdiction. to entertain it.
Elaris Perera petitioned the Court that his presence before it wasnecessary in order that it may effectively and completely adjudicate onall matters arising in the trial, and was added as the 3rd defendant.In his answer he raised substantially the same objections of law aa theAttorney-General and the Land Commissioner.
Tho following issues were framed at the trial :—
Is the land in question capable of acquisition under section 3 of
.the Land Redemption Ordinance No. 61 of 1942 ?
Did tho Land Commissioner on or about 12.5.47 make a determina-
tion under section 3 (4) of tho Land Redemption Ordinanco
No. 61 of 1942 that Keeriyankalliya Estate be acquired ?
Was the said Estate on or about 12.5.47 a land of the description
.contained in section 3 (1) (b) of the Land Redemption Ordinance
No. 61 of 1942 ?
Is tho Land Commissi oner’s determination with regard to the
acquisition of Keeriyankalliya Estate final ?
If so can the correctness of the said determination be questioned
in these proceedings ?.
Is the plaintiff entitled to proceed against the 1st defendant as
representing the Crown to obtain an order of injunction against
the Crown ?.. -'’ –
Can plaintiff maintain this action against the 2nd defendant as
the Land Commissioner without suing, tho officer who made.tho order in question byname?-.
Is tho plaintiff a bona fide purchaser for value from tho original
transferees of the said lands from the 3rd defendant ?' ‘.
.9. If so, is the 2nd defendant empowered to acquire lands from him ?
BASYAYAKE, C.J.— Loaamuttu PiUai v. The Attorney-General
317
The learned District: Judge dismissed the plaintiff’s action. Hoanswered the first, second, third, seventh, eighth, and ninth issues in theaffirmative, the sixth issue in the nogativo. In answer to the fourth andfifth issues lie held that the Land Commissioner’s decision on facts isfinal and that the question of law whether he had authority to acquire aparticular land is subject to review by the Court.
Ho held that—
the Land Commissioner can be sued nonane ojjicii,
the Court was entitled.to consider whether he had acted within the
powers granted by thesection,
the action taken by the Land Commissioner was covered bysections 3 (1) (A) and (4) of tho Ordinance.
It appears from the judgment of the learned District Judge that inthe course of tho final addresses of counsel for the plaintiff it was concededthat the Attorney-General could not bo sued, and that tho action asagainst him should be dismissed.
Learned counsel for the appellant challenged the findings of the learnedtrial Judge on those issues which were decided against him. He submittedthat the Land Commissioner's construction of section 3 of the Ordinancewas wrong and that upon a wrong construction of the statute he hadarrogated to himself a jurisdiction which he did not har e. ’
Section 3 of tho Ordinance in the form in which it stood on 12th May1947 reads as follows :—
(1) Tho Land Commissioner is hereby authorised to acquire
on behalf of Government the whole or any part of any agriculturalland, if tho Land Commissioner is satisfied that that land was, at any-time before or after the date appointed mider section 1, but not earlierthan the first day' of January 1929, either—•
(a) sold in execution of a mortgage decree, or
(A) transferred by tho owner of the land to any other person insatisfaction or part satisfaction of a debt which was due fromthe owner to such other person and which -was, immediatelyprior to such transfer, secured by a mortgage of tho land.
Every' acquisition of laud under sub-section (1) shall bo effectedin accordance with the provisions of sub-section (5) and shall bo paidfor out of funds provided for tho purposes of this Ordinance undersoction 4.
INTo land shall bo acquired under sub-section (1) until tho funds
necessary for the purpose of such acquisition have been providedunder section 4..
Tho question whether any land which the Land Commissioner
is authorised to acqiiiro under sub-section (1) should or should notbo acquired shall, subject to any regulations made in that behalf, bodetermined by tho Land Commissioner hi tho exercise of his individualjudgment ; and every such determination of tho Land Commissionershall bo final.v..
Where the Land Commissioner has determined that any landshall bo acquired for tho purposes of this Ordinance, tho provisionsof tho Land Acquisition Ordinance, subjeot to tho exceptions,
318" BASNAY AJCE, C.J.—'Ladamultu Pillai v. The Attorney-General
modifications and amendments set out in the First Schedule, shall apply
for‘the purposes of the acquisition of that land ; and any sum of money
which, may, under such provisions be required to be paid or deposited’
. by the Land Commissioner or by Government by way of compen-
cation; costs or otherwise, shall bo paid out of funds provided for the
purposes of this Ordinance under section 4. —-'
The lands which the Land Commissioner is seeking to acquire in theinstant case are admittedly agricultural lands. It is common groundthat they are not lands sold in execution of a mortgage decree. Thequestion then is —Are they lands “ transferred by the owner of the landsto any other person in satisfaction or part satisfaction of a debt which'was due from the owner to such other person and which was, immediatelyprior to such transfer, secured by a mortgage of the lands ” ?. Learnedcounsel for the Land Commissioner contended that they were, whilelearned counsel for the appellant contended that they were not. Thelatter submitted that section 3 (1) (&) applies only to a case where thelands transferred by the owner are the very lands which were securityfor the debt due from the owner. He submitted that the section doesnot apply to a ease in which the lands transferred are, as in this case,some only of the lands secured by the mortgage. Where several landsare given as security for a debt, the section would not apply unless allthe lands are transferred. He further submitted that in a case whereonly one land is given as security for a debt clue from its owner the section
would apply only if the entirety of that land was transferred by theowner in satisfaction or part satisfaction of his debt, and not if only apart of tho land was transferred. He submitted that in applying therule of interpretation in section 2 (x) of tho Interpretation Ordinancewords in the singular number shall include the plural whero the pluralis read and in the instant case the word “ land ” should be read as“ lands ” throughout. According to that view he submitted that thesection should be rendered “ that the lands were transferred by theowner of the lands so transferred to any other person in satisfaction orpart satisfaction of a debt which was due from the owner to such otherperson and which was, immediately prior to such transfer, secured by amortgage of fall) the lands transferred He also submitted thatstatutes such as the Land Redemption Ordinance which encroach on therights of the subject, should he strictly construed. I am in entire agree-ment with the view submitted by learned counsel. .
Doubtless all statutes must be construed with due regard to theirlanguage and if the words of a statute are precise and unambiguousthey must be expounded in their natural and ordinary sense. Butwhere a statute encroaches on tho rights of tho subject and its languageadmits of more than one construction, that which is in favour of thosubject and not against him must bo preferred. In a statuto whichinterferes with the person or property of the subject the Court shouldnot supply tho defects of languago or eko out against the subject by astrained construction tho meaning of an obscqre,passage. The rule of -strict construction also requires that the benefit of a doubt created by -any equivocal words or ambiguous sentence should bo given to thesubject..'.v.
B ASX AY A K K, C.J.—Ladamutlu Pillai v. The Attorney-General
310
It must bo presumed that tbo Legislature docs not intend to encroachupon tho rights of tJio subject except where it soj-s so plainly and thatwhere it intends to do so it will manifest its intention, if not in expresswords, at least by tho clearest implication and beyond all doubt. ThoLand Redemption Ordinance is an enactment which constitutes a seriousintrusion on tho property rights of the subject. It should therefore bestrictly construed and its scope should be strictly confined by preferring- a construction in favour of the subject and against the acquiring autho-rity.
Learned counsel bases his contention that the transfer P5 does notfall within the ambit of section 3(1) (b) on tho following considerations :—
(а)What was transferred was not the lands themselves but undivided
shares in tho lands. The transfer of a land and of an undividedshare in a land is not the same. The section contemplatestransfer of a land or lands and not undivided shares in a landor lands..
(б)The transfer to Sekappa was not in satisfaction or part satisfaction
of a debt which was due from Elaris Percra to Sekappa. It wasin satisfaction of tho debt due on bond PI in favour ofSocknlingam, Subramaniam and Arunasalam.
The submission that the section applies only to the transfer of tho landsecuring the debt and not to the transfer of an undivided share in it,is sound. The sect ion refers to land and not to undivided shares inland.An undivided share in a land is not the same as the land itself and thetransfer of an undivided share in a land is not a transfer of the land.Learned counsel for the Crown did not seriously resist this argument.
Learned counsel also submitted that once Socknlingam institutedaction for tho recovery of tho money due on bond P 2, Sekappa, whowas i^arty to that bond lost his right to proceed against Elaris Percra,the obligation created thereby being joint and several.
It is correct that when one of joint and several creditors institutesan action to recover a debt, payment to the other co-creditors does notextinguish the debt. The moment Sockalingam instituted the actionon tho bond Elaris Per era’s light to choose the co-creditor to whom hewould pay the debt, ceased and his debt becamepayable to Sockalingamalone..
There is no presumption that where there arc a number of creditorsthe obligation is joint and several. The obligation must, as in Bonds.
P 1 & P 2, be expressly created {Voet Bk XLV, Tit. 2, See. 2—Ganc',Vol. 6, p. 057).
On this tojiie of the rights of joint and several creditors Voet states :—Voet Bk XLV, Tit. 2, See. 1—Ganc, Vo). 6, p. 655) ;
There are two parties to a stipulation or" credit-when two or morepersons stipulate as principals each in whole for the same thing at -one and tho same time, with the intention of each indeed collectingthe 'whole thing, yet all of them collecting only one such thing.
Where a correal obligation has been created—
. It is in the power of the stipulator to say which of a number ofpromisors of the same thing lie prefers to sue for the whole. Likewise
320
' BASNAYAKE, C..T.—Lada'multu Pillai v. The 'Attorney-General
on the other hand it is in the discretion of the debtor to say whioh ofa number of joint and several creditors he prefers to pay and to favourin Such’wise that ho is himself freed from all of them. This ho cando until one of a number of parties to the stipulating has started tosue and to safeguard his interests, for after that time a promisor effectsnothing by tendering the money to another. (Voet Bk XLV, Tit. 2,
Sec. 3—Gano G, p. 059)…'- '
Again Voet says—‘*
But -whatever.one of the parties to a stipulation has collected, heis not held liable to treat it proportionally as common with anothor,unless there was partnership between them. Surely the one who hasobtained his due in full holds nothing beyond what was duo to him.Hence it comes about that a promisor, when already sued by onecreditor, effects nothing by tendering the money to another. ' (Voet,Bk XLV, Tit. 2, Sec. 7—Gale 6, p. GG3).•
In support of his contention that after judgment was entered in favourof Sockalingam, no debt was due to Sekappa on P 2, learned counselcited paragraphs 25S and 260 of Pothier on Obligations (Vol. I, p. 144—Evan’s translation). The former paragraph (25S) reads :•
Regularly, when a person contracts the obligation of one and thesame thing in favour of several others, each of these.is only creditorfor his own share, but he may contract with each of them for thewhole when such is the intention of the parties, so that each of thepersons in whose favour the obligation is contracted is creditor for. the .whole, but that a payment made to any one liberates the debtoragainst them all. This is called Solidity of Obligation. The creditorsare called correi credendi, correi slipulandi.*
and the latter paragraph (260) reads :
The effects of this solidity amongst creditors arc, 1st. That eachof the creditors being creditors for the whole, may consequently de-mand the whole, and, if the obligation is. executor, constrain thedebtor for tlib whole. The acknowledgment of the debt made toany one of the creditors, interrupts the prescription as to the wholeof the debt, and consequently enures to the benefit of the othercreditors, 1. 'fin. cod. cle duobus reis. 3rd. The payment made to anyono of the creditors extinguishes tho debt, for the creditor being suchfor the whole, the paj-ment of the whole is effectually made to him,and this payment liberates the debtor as against all, for although therearo several creditors, there is but one debt, which ought to beextinguished by the entiro paj-meht made to one of the creditors. .
It is at the choice of the debtor to pay which of the creditors howill, as long as the matter is entire ; but, if one of them has instituteda. process against him, ho cannot make an effectual payment, exceptto that ono; Ex duobus reis slipulandi, si semel unus egerit, alteripromissor offerendo pecuniam nihil agit. 1, 16 ff de duob. reis. 4. Eachof the creditors being such for the wholo may, before a process insti-tuted by any of the others, mako a release to tho debtor, and liberatehim, as against them all.
BASNAYAItE, O.J.—Ladamutlu PiUai v. The Attorney-General321
For in tho same manner as a payment of the whole, to any on© ofthe creditors, liberates the debtor against all, a release by one, whichis equivalent to a payment, ought to have the same effect,A cceplilalione unius lolliiur obhgalio, 1. 2 ff de duob. rets.
Tho- foregoing citations support learned counsel’s contention that.' Sekappa’s right to claim the debt from Elaris Perera ceased on the insti-tution of tho mortgage action by Sockalingam and that the transfer toSekappa was not therefore a transfer in satisfaction or part satisfactionof a debt due from Elaris Perera to Sekappa. Clearly then the trans-fer, apart from it being a transfer of undivided shares, does not for thisadditional reason, come within the ambit of section 3 (1) (b).
The Land Commissioner had therefore no authority in law to acquirethe land and tho plaintiff's prayer that he should be restrained fromdoing so must be granted..
The other questions which arise for decision on this appeal areas follows :—
"(a) that the plaintiff is not entitled to ask for the relief he has sought
in this action against either the Attorney-General or the LandCommissioner,
(6) that as sub-section (4) of section 3 declares that every determination‘ of the Land Commissioner under sub-section (1) is final hisdetermination cannot be questioned in an action of tlii3 nature,
that in any event the action is bad as it had been brought against
the Land Commissioner nomine officii and not in his personal!name against the officer who made the determination in question,
that an injunction cannot be granted against the Crown or the
officers or servants of the Crown, i
. that as the Land Commissioner exercises under section 3 (1) a
. quasi-judicial function his determination can be "canvassedonly by certiorari and not by a regular action.
I shall now proceed to deal with the points as far as is convenientin their order as set out above.-..
Points (a) and (c) are best dealt with together. Learned Crown Counsel’scontention is that an action can be brought against a person natural ofjuristic and that as there is no juristic person known as the Land Com-missioner an action cannot be brought against the Land Commissionerby that name.. It can only be brought against the natural personappointed to that office…‘ .
The office of Land Commissioner was created by the Land DevelopmentOrdinance. Section 2 of the Ordinance defines the expression LandCommissioner thus :—.-‘.
“ Land Commissioner ” means the officer appointed under section 3of this Ordinance, and includes any officer of his Department authorisedby him in writing in respect of any particular matter or provision orthis Ordinance. . '''.
2*J. 3T. D. 3212 (3/5S)
. 322' ',BASN AYAKE, C.J.—Badatnutlu jPiltai v. The Attorney-.General
_ – _ " ■ 2 ' ! ~
Section 3 of the Ordinance -provides :—.••.
..(1) There' may be appointed a Land Commissioner who shall be
responsible—— – -.. .
(a) for the due performance of the duties and.functions assigned. to him as Land Commissioner under this Ordinance ; …
'(6) for the general supervision and control of all Government
Agents and Land Officers in the administration of Crown land and. in the exercise and discharge of the powers and duties conferred and.imposed upon them by this Ordinance… –
In the exercise of his powers and in the discharge of his dutiesunder this Ordinance, the Land Commissioner shall be subject to thegeneral direction and control of the Minister. .-■
The Ordinance vested in the Land Commissioner a number of statutoryfunctions to be performed by the person for the time being holding theoffice. Other statutory functions are vested in the Land Commissionerby the Land Redemption Ordinance and the Crown Lands Ordinance.The former Ordinance (section 2) provides :—
The Land Commissioner shall be the officer of Government res-ponsible for and charged with the administration of this Ordinanceand shall in the exercise, performance or discharge of any power, dutyor function conferred or imposed upon or assigned to him by or underthis Ordinance be subject to the general direction and control of theMinister.-
The latter Ordinance provides (section 90)—
The Land Commissioner shall be the officer of Government res-ponsible for and charged with the administration of this Ordinance.
In the exercise of his powers and in the discharge of his duties
under this Ordinance, the’Land Commissioner shall be subject to thegeneral direction and control of the Minister.?
The Ordinances I have referred to above make it clear that the LandCommissioner, as regards his functions under them, is a statutoryfunctionary who while the Ordinances are in force has a continued exis-tence, though the holders of the office may change from time to time.Statutory functions commenced during the tenure of the office by oneofficer are continued by his successor or successors as if the functionaryhad a continued and uninterrupted existence despite the change of in-dividuals holding the office. The enactment under which the office iscreated and the other enactments under which he has functions and dut iesto perform indicate that the Land Commissioner is regarded as a cor-poration in regard to his statutory duties and functions. It is true thatnone of the Ordinances referred to above declare him in so many wordsto. be a corporation sole. But no particular words are necessary in .thecreation of a corporation {Sutton's Hospital case1, Tone Conservators v.Ash2). The intention to incorporate though not established, by expresswords of creation can be gathered from' the statute having regard to thenature of the functions 'and duties'entrusted to the functionary.! – Suchcorporations are corporations by implication.. ..-5–
.1 (1912J 10 Rep. 32 b. – .* {182$) 10 B. tO C. 349 at 384■ . —
BASJfAYAKE, U.J.—LadamvUlu, Piltai v. The Attorney-General
323
• Our law on the subject of corporations is the English law. It is sodeclared by section 3 of the Civil Law Ordinance. The material portionof it reads as follows :—■
In all questions or issues which may hereafter arise or which may haveto be decided in this Island with respect to the law of .'…
corporations …. the law to be administered shall be the same
as would be administered in England in the like case, at the corres-ponding period, if such question or issue had arisen or had to be decidedin England, unless in any case other provision is or shall be made byany Ordinance now in force in this Island or hereafter to be enacted.
It is therefore necessary that we should turn for assistance to authori-tative English treatises on the subject. I have consulted Grant onCorporations, a treatise which is well recognised. On this topic Grantsays (p. S)—'•
It has been held, that a body will be taken to be a corporation whenit is constituted by an Act of Parliament in such a way and for suchpurposes as show that the meaning of the legislature was that the bodyshould have a perpetual duration, although no express words are used" constituting it a corporation. (Ex parte Newport Marsh Trustee,IS Law J. (2>T. S.) Chanc. 19, S. C. 16, Sim 316). This is called a cor-poration by implication. And this agrees with the old law, that ifthe Crown grant land to the men of Islington, without saying to themand their successors, rendermg rent, this ineoiporates them "for ever 'for the purpose of. the farm ; for without such incorporation theintention of the grant could not be fully carried into effect.
A number of persons is not necessary for creating a corporation. To
quote Grant again (p. 4S)—‘
With respect to the number of persons in whom a corporation maybe vested, it is to be observed that a corporation may reside in a singleperson, as the king, archbishops, bishops, deans, canons, archdeacons,parsons, who arc all said to be corporations sole at common law. Thechamberlain of London is also a corporation sole for some purposes,and is said to be a corporation by custom (4 Rep. 65 a) ; that is, the■ earliest known origin of the rights exercised by that officer is usage.
. Grant also speaks of quasi corporations having corporate rights andcapacities in a limited and imperfect degree only, and for certain pur-poses only (p. 4S). A corporation by implication may sue for an injury-to its real property (Grant, p. 53—Tone Conservators v. Ash, 10 B. & C.349). .-.
■ ■ There is .no doubt that in England at common Jaw many aggregatebodies, as counties, hundreds, wapentakes, forests, cities and boroughs,•though not incorporated, were treated as . though .they 'were-bodies corporate, and could take in perpetual succession, and have acommon seal (Grant 5S). Some of the professorships in the Universitiesof Oxford and Cambridge have been at times treated as though the severalprofessors were respectively bodies corporate (Grant 196). Lands are
324
BASNAYAPCE, C.J.—Ixidamullu Pillai v. The Attorney-General '
• held by many bodies in the nature of a corporation, who nevertheless arenot in such possession of the lands as to be the objects of an action in-ejectment. Thus the Board of officers of Her Majesty’s OrdnanceDepartment are in the nature of a corporation for the management ofordnance property, by virtue of the statutes 1 & 2 Geo. 4, c. 69, 3 Geo. 4,c. 108, 2 Will. 4, c. 25 (Grant p. 279)..
Speaking of quasi corporations, Grant (p. 661) says—
Some instances of – quasi corporations sole remain. These are• generally officers of the Crown, as the Lord Chancellor, the Lord HighTreasurer, or the Chief Justices, who, for certain purposes, are in the. nature of corporations sole respectively.•.
The English Law concept of quasi corporations sole and of officesregarded as corporations is in accord with the concepts of such.bodiesin Roman Law and in systems of Law which spring from it. Savignyin his treatise on Jural Relations (translation by Rattigan) observes
(p. 2)—
A jural capacity may, for instance, in the first place, be either whollyor partially denied to many individual men ; it may in the second place,be transferred to something external to the individual man, and thus aJuristical Person may by this means be artificially created.
A Juristical Person, Savigny-says, is a person who is assumed to he sofor purely juristical purposes. In it we find a Bearer of Jural Relationsas well as the individual man. Among the'Juristical Persons enumeratedby him are the State or the Fiscus, Subordinate Officials, who wereappointed by the Authorities for the management of different affairs,such as Librarii, Pis cal eg, and Censuales. Savigny also expresses theview that Juristical Persons come into existence not only by the expresssanction of the Sovereign “ but also tacitly, by a conscious tolerationor by an actual recognition ”..
In this country the Attorney-General, the Fiscal, the Collector of Cus-toms, the Postmaster-General, the Director of Public Works, and a whole’host of Government functionaries act and are regarded as if they werecorporations sole in the matter of contracts on behalf of the Governmentand in legal proceedings. All contracts are entered into by these function-aries binding them and their successors as if they were corporations soleacting for and on behalf of the Crown. This practice has been in exis-tence to my personal knowledge for well over .thirty years. It wouldappear that the Crown and the subject have both acted on that footingfor quite a long time…
It is not contended that the person holding the office of Land Com mis- .sioner at the" time the determination was made (Sir. A. G. Ranasinha,now Sir Arthur), purported to act in his private capacity. At the timethis action was instituted the person holding the office of Land Comma- .sioner was Mr. S. F. Amarasinghe. ’ It is his proxy that has been filed inthese proceedings. It is admitted that Mr. Amarasinghe no longer holdsthe office and his successor too has been transferred. If as contended by
325
BASXAYAKJB, C.J-— Ladamullu. PiUai v. Th e Attorney-General
counsel for the Crown the individual holding the office of Land Commis-sioner must be sued, difficult questions for which he has not provided asatisfactory answer arise. They are—
(а)Who is the person to be sued ? Is it the person holding the office—-
at the.time proceedings are commenced under section 3 of.the Land Redemption Ordinance, or
at the time the determination under that section is made, or
at the time of the institution of the action ?
(б)What is to happen on the transfer of the person holding the office
of Land Commissioner to another department of Governmentafter legal proceedings have been instituted against him ? Is' the action to continue against the original defendant regardlessof whether he holds the office of Land Commissioner or not,or is his successor to be substituted ? If the action is to con-tinue against the original defendant how is he to obey the orderof the Court if it is made against him when he is not the holderof the office of Land Commissioner ? His successor not beingbound by the decree would have no authority in law to carryit out. If his successor is to be substituted under whatprovision of the Civil Procedure Code may it be done ?
What is to happen on the ietirement from the service of the Govern-ment of the person against whom the action is brought whileit is pending ? Is the action to proceed against him notwith-standing his retirement ? If so how it he going to implementthe decision of the Court if it is against him ? His successornot being bound by the decree ivould bo under no legal duty toobey it, nor can he be substituted as there is no provision of■the Civil Procedure Code under which it can be done.
What is to happen on the death of the officer against whom theaction is brought f Is the action to continue against his•successor in office, or his legal representative ? There is no
provision in the Civil Procedure Code for substituting hissuccessor in office. Section 30S provides for the substitution ofthe legal representative of the deceased defendant. If the legal •representative carries on the action and it is lost or does notchoose to carry it on and decree is entered against him, ineither case, the holder of the office of Land Commissioner atthe time the decree is entered is in law not bound by it andwould have no power to give effect to the decree of the Court.
For the purposes of the Civil Procedure Code the expression “ legalrepresentative ” means (section 391 (2) ) an executor or administratoror the next of kin who have adiated the inheritance in the case of anestate below the. value of Rs. 2,500. It will, therefore be seen that thecourse suggested by learned Crown Counsel is impractical and willresult in profitless legal proceedings" and in a denial of justice. It is notcontended that in an.action against the Crown, which the law requires,should be instituted against the Attorney-General, the name of theperson holding that office should be mentioned. Nor is it contendedthat on any change in the holder of that office or on his death there
326
~R A A~V A TCK, C.-J.—Ladamullu Pillai t. The Attorney-General .
should be a substitution of the new holder or that even the proxy of thenew holder of the office should be filed. It would appear thereforethat for the purposes of legal proceedings the Attorney-General also mustbe regarded as a corporation sole.. In regard to proceedings at lawthe legal position of other public functionaries such as the GovernmentAgents and other officers who have a multitude of statutory functionsto perform is the same..
In my opinion the action has been properly instituted against theLand Commissioner nomine officii. That an injunction can be issuedagainst a public functionary such as the Land Commissioner or thePostmaster-General was recognised by this Court so long ago as 1S3Sin the case of In re William Clark1, and later in the case of GovernmentAgent, ir. P ■ v. Kanaga sunder am 2.
The. next question is whether the determination of the LandCommissioner can be questioned in these proceedings. The provisionsof the Civil Procedure Code are wide enough to permit an action of this -nature. Learned Counsel for the Crown emphasized the fact that the.plaintiff had sought an injunction instead of asking for a declaration.In the instant case the plaintiff was seeking to prevent a wrong andhe was entitled to ask the Court to enjoin the defendant “ not to do aspecified act, or to abstain from specified conduct or behaviour ” (section217 (2) Civil Procedure Code). Hence his prayer that “ the defendantsjointly or in the alternative” be restrained “ from taking steps underOrdinance Ho. 61 of 1042 to acquire the lands described in the Schedule. ”Learned counsel also argued that although the Land Commissionerwas authorised by section 3 to acquire lands of the descript ion referred totherein, under the Land Acquisition Act, though not under the repealedOrdinance, the acquiring authority was in fact the Minister and that theaction against the Land Commissioner was misconceived. He bases thisargument on the fact that sub-section (5) of section 3 of the Land Re-demption Ordinance provides that the Land Acquisition Act, with theprescribed modifications, shall apply for the purposes of the acquisitionof land which the Land Commissioner under sub-section (4) determinesshould beacquired. I am unable to uphold that contention. Although' the Land Redemption Ordinance makes use of the machinery in theenactment for the|iJompulsory acquisition of land it is the Land Com-missioner who is iapthorised to set that machinery in motion and thedetermination thaF any land should be acquired for the purpose of theLand Redemptiorf Ordinance is his and not the Minister’s. The words ofthe section are—
The Land Commissioner is hereby authorised to acquire on behalf ofGovernment the whole or any part of any agricultural land, if the LandCommissioner is satisfied, etc.
Sub-section (5) of the section prescribes that the provisions' of the LandAcquisition Act shall apply‘‘where theLand Commissioner has determinedthat any land shall be acquired for the purposes of this Ordinance.”Once the Land Commissioner has made his determination, the Ministerhas no option under section 5 of the Land Acquisition Act as modified forthe purposes of the Land Redemption Ordinance but to make the unit ten1 jMorgan's Digest, j>. 249..1 31 -ft. L. It. 115.
.BASNAVAKE, C-.J." —Laclarnuttu Pillni v. The Attorney-General327
<Ieclaration prescribed therein. It is the Land Commissioner’s determina-tion that should be challenged if it is illegal and it is the LandCommissioner who'should be restrained from acting illegally.
I have no doubt that under our law the present action is well foundedand that it lies both against the Attorney-General and the Land Com-missioner nomine ojjicii. It is clear from the general provisions of thoCivil Procedure Code governing the institution of actions (sections 5, 6, 8,217), and those special provisions regulating the institution of actionsagainst the Crown and Public Officers (Chapter XXXI), that an actionsuch as this can be maintained…
' In England, unlike in this country, the subject had no right to sue thoCrown till the enactment of the Crown Proceedings Act in 1947. For thatreason in that country parties dissatisfied with the proceedings ofstatutory functionaries had to resort to the declaratory action in order totest their legality..
In the case of Dyson.v. Attorney-General1 the validity of notices issuedT>y the Commissioners of Inland Revenue under the Finance Act 1910was tested by asking for a declaratory judgment against the Attorney-.General. The Court of Appeal held that such an action lay. Theplaintiff prayed in aid the decision of Hodge v. Attorney-General2, whichwas followed by the Court of Appeal. Reference was made in the courseof the judgments of the Judges to Paivletl v.. Attorney-General3 in whichwas stated an important principle which we should bear in mind whenhearing actions against the Crown in whatever form they are brought.Baron Atkyns said in that case—
The party ought in this case to be relieved against the King ; becausethe King is the fountain and head of justice and equity, and it shall notbe presumed that he will be defective in either, it would derogate fromthe King’s honour to imagine that what is equity against a commonperson should not be equity against him..
The case of Dyson, v. Attorney-General (supra) is one of great importanceespecially as it contains some very valuable "observations by Farwell L. J.'on actions against Government departments in respect of their illegalacts. They are important enough to be repeated here in exlenso. He .said—’•.-
Bub the Court is not bound to make declaratory orders and wouldrefuse to do so unless in proper cases, and would punish with costspersons who might bring unnecessary actions : There is no substance'in the apprehension, but if inconvenience is a legitimate consideration ’
, at all, the convenience in the public interest is all in favour of providinga speedy and easy access to the Courts for any of His Majesty’s subjects' who have any-real cause of complaint against the exercise of statutorypowers by Government Departments and Government officials, having,regard to their growing tendency to claim tho right to act. withoutregard to legal principles and without appeal to any Court. Withinthe present year in this Court alone there have been no less than threesuch cases. In Hex. v. Board of Education, (1910) 2 K. B.* 165, the . ’Board, while abandoning by their counsel all argument that the
1 (1911) 1 K. B. 410.’■ . * (1339) 3 Y. cfc C. Ex. 342.
'3 (1C67) Hardres’ Rep. 465 at p. 469. ‘'
328
BASNAYAKE, C.J.—XjudamuUu Pillai v.'The Aliornet,-General
Education Act, 1902, gave them power to pursue the course adopted bythem, insisted that this Court could not interfere with them, but thatthey could act as they pleased. In In re Weir Hospital (1910 ) 2 Ch.124, the Charity Commissioners were unable to find any excuse orjustification for the misapplication of £ 5,000 of the trust fundscommitted to their care. In In re hardy's Crown Brewery {1910) 2
K.13. 257 the Commissioners of Inland Revenue, who are entrusted bysection 2, sub-section 1, of the licensing Act, 1904, with the judicialdutj* of fixing the amount of compensation under the Act, fixed thesum mero molu without any’inquiry or evidence and without givingthe parties any opportunity of meeting objections, and claimed theright so to act without interference by any Court. ' Bray J. and theCourt of Appeal held that they had acted unreasonably and orderedthem to pay costs. In all these cases the defendants were represented'by the law officers of the Crown at the public expense, and in the presentcase we find the law officers taking a preliminary objection in orderto prevent the trial of a case which, treating the allegations as true (aswe must on such an application), is of the greatest importance tohundreds of thousands of His Majesty’s subjects. I will quote theLord Chief Baron in Deare v. Attorney-General (1 Y. & C. Ex. atp. 2PS).“ It has been the practice, which I hope never will be dis-
continued, for the officers of the Crown to throw' no difficulty in theway of proceedings for the purpose of bringing matters before a Court ofJustice when any real point of difficulty that requires judicial decisionhas occurred. ” I venture to hope that the former salutary practicemay be resumed. If ministerial responsibility were more than themere shadow of a name, the matter would be less important, but asit is, the Courts are the only defence of the liberty of the subjectagainst departmental aggression.■
The declaratory action is being resorted to more and more in Englandwith the increase of statutory functionaries and the Courts have beenever ready to exercise their jurisdiction to prevent injustice. It isunnecessary to cite other English cases as Dyson's is a leading case. Itis sufficient to say that the words of Farwell L. J. lay down what shouldbe the attitude of the Courts towards the subject when he seeks relieffrom the illegal acts of Government Departments..
I now' come to point (6). Does the provision in section 3 (4) that thedetermination of the Land Commissioner shall be final preclude theplaintiff from questioning it by way of a regular action ?
In the first place it is necessary to consider what it is that the sub-section declares shall be final. It is the determination that any land ’which the Land Commissioner is authorised to acquire under sub-section -(1) should or should not be acquired.' Therefore if the Land Com-,missioner determines that lie should acquire any land which ho is notauthorised to acquire under sub-section (I) the requirements of the sub-section (4) are not satisfied and the determination will not be final. Thisis precisely what the appellant’s counsel submits. He contends that bya wrong interpretation of sub-section (1) the Land Commissioner hasgiven himself a jurisdiction which he does not have. Without authority .under the sub-section (1) to acquire the lands in question he has
329
BASXAYAKE, C.J.—Ladan-.utlu Pillai v. The. Attorney-General
determined that they should bo acquired. Clearly lu's determination does not. fall within the ambit of sub-section (4). Learned counsel for the Crowncontended that finality attached to the Land Commissioner’s decisionwhether he was or was not authorised by sub-section (1) to acquire thelands. That is an astounding proposition to which I cannot assentsIfow, when an Ordinance or an Act provides that a decision made By S'-statutory functionary to whom the task of making a decision under the-enactment is entrusted shall be final, the Legislature assumes that t-he!functionary will arrive'at his decision in accordance with law and therules of natural justice and after all the prescribed conditions precedentto the making of his decision have been fulfilled, and that where hisjurisdiction depends on a true construction of an enactment he willconstrue it correct^. The Legislature also assumes that the functionarywill keep to the limits of the authority committed to him and will not actin bad faith or from corrupt motives or exercise his powers for purposesother than those specified in the statute or be influenced by groundsalien or irrelevant to the powers taken by the statute or act unreasonably–To say that the word “final ” has the effect of giving statutory sanction toa decision however wrong, however contrary to the statute, howeverunreasonable or influenced by bad faith or corrupt motives, is to give theword a meaning which it is incapable of bearing and which the Legis-laturo could never have contemplated. The Legislature entrusts to. responsible officers the task of carrying out important functions whichaffect the subject in the faith that the officers to whom such functions areentrusted will scrupulously observe all the requirements of the statutewhich authorises them to act. It is inconceivable that by using such aword as “final ” the Legislature in effect said, whatever determination the-Land Commissioner may make, bo it within the statute or be it not, be itin accordance with it or be it not, it is final, in the sense that the legalityof it cannot be agitated in the Courts. No case in which such a meaninghas been given to the word “final ” was cited to us. The word “final ” isnot a cure for all the sins of commission and omission of a statutoryfunctionary and does not render legal all his illegal acts and place thembeyond challenge in the Courts. The word “final” and the words “finaland conclusive” are familiar in enactments which seek to limit the rightof appeal; but no decision of cither this Court or any other Court hasbeen cited to us in which those expressions have been construed asousting the jurisdiction of the Courts to declare in appropriate pro-ceedings that tho action of a public functionary who has acted contraryto the statute is illegal. •
To read the word “final ” iii the sense which the learned counsel for the-Crown seeks to place upon it would amount to giving the public function- ]ary authority to act as he pleases. It is untlunkable that the Legislature |would give such a blank authority to a functionary however highly jplaced. Such powers are rarely given even when the country is at war or is facing a crisis. It must be presumed that the Legislature does notsanctioJi illegal acts on tho part of functionaries. If it intends to sanctionunauthorised and illegal acts it should say so in plain and unmistakableterms and not use a word of such doubtful import as “final That thesubjeot should not be harassed by unauthorised action on tho part of
2**—J. N. B 3212 (3/5S)
•330BASNAYATCE, C.J.—Badamullu Pillai r. The Attorney-General
statutory functionaries is as much the concern of the Legislature as of the‘Courts and once a piece of legislation has been put on the statute book4he Legislature as ■well as the public looks to the Courts to exercise their<controlling authority against illegal and unjust use of the powers con-ferred thereby, and the Courts will bo failing in their legitimate duty ifthey denied relief against illegal action on the part of statutory func-tionaries. It was urged by counsel that the word “ final ” ousted thejurisdiction of the Courts to consider and decide the legality of the LandCommissioner’s determination and that it could be challenged only inParliament. That would impose on Parliament the obligation of con-struing-the statutes it enacts, an obligation which is outside its properscope and which it is not qualified to discharge. The juridsiction con-ferred by the Courts Ordinance on our Courts cannot be taken awayexcept by express and clear language. I know of no -formula by whichthe undoubted right of the Courts, where their jurisdiction is invoked byappropriate proceedings, to construe an enactment and declare itsmeaning can be taken away.'
The interpretation of statutes is the proper function of the Courts and •I once legislation has been enacted the Legislature looks to the Courts to: declare its true meaning and upon that meaning to determine whether' the powers entrusted to the creatures of statute have been exceeded or* not. The principles governing the exercise of their functions by statutoryfunctionaries have been deleared by the Courts in England and other■ Commonwealth countries and are now well established and in my viewafford valuable guidance in the consideration of the questions arising onthis appeal. I set them out below :—
A discretion does not empower a statutory body or functionaryto do what lie likes merely because he is minded to do so—he must inthe exercise of his dissection do, not what he likes, but what he ought.
(Roberts v. IJcpuood 1).
.. A statutory body or functionary who has to exercise a public
duty by exercising his discretion is not to be regarded in the eye of thelaw' as having exercised his discretion—•
if he takes into account matters which the Courts consider not
to bs proper for the guidance of his discretion (2?. v. Vestryof Si Pancras 2).
if he takes extraneous matter into account and allows them to
influence him (22. v. Brighton Corporation 3)..
if ho misunderstands the law or misconstrues the statute or the
section on which he purports to act—2?. v. Mayor and Corpo-ration of Newcastle-on-Tyne 4 and R. v. Ormesby Local Board 522. v. Board of Education®, Board of Education v. Rice 7.
■(d) if he acts on an error of fact or is prompted by a mistaken belief
in the existence of seme circumstance of fact. Smith v.Macnally8.•
1 (1925) A. C. 578 at 613. ' '* [1801) 43 W. R. 96.
(1890) 24 Q. B. D. 371 at 375-376.* (1910) 2 K. B. 165 at 170.
(1916) 85 B. J. K. B 1552. 1555.7 (1911) A. G. 179.
« (1889) 60 B. T. 963.* (1912) 1 Ch. 816. 825.
BASXAYAKE, C. J.—Ladamutlu Pillai v. The A Korney- General
331
if lio acts in bad. faith or from corrupt motives (Short v. Poole
Corporation x).
if he exercises power given by the legislature for one purpose for
another or different purpose whether it be fraudulently ordishonestly or not (Westminster Corporation v. London <£>North- Western Ply.2, Municipal Council of Sydney v.Campbell 3, The King v. Minister of Health Ex p. Davis 4,Hanson v.Padcliffe,U. D. O.*, Martin v. Eccles
Corporation6)..
if the act, though performed in good faith and without the taint
of corruption, is so clearly founded on alien and irrelevantgrounds as to be outside the authority conferred upon him.(Short v. Poole Corporation 7).
if he exceeds or abuses his powers or does not keep to the limits
of the authority committed to him…
if he is unreasonable though acting honestly and in good faith.
(R.v. Robert exp. Scurr dt others,8 Short v. Poole Corporation 9).
It was also pointed out in the course of argument that the Land■Commissioner in the exercise, performance or discharge of any power,duty or fuAction conferred or imposed upon or assigned to him “ by orunder ” the Ordinance was subject to the general direction and controlof the Minister. The fact that the Minister has “ general direction andcontrol ” does not absolve the Land Commissioner in the performance ofhis duties. It should be noted that section 3 (I) provides that questionsarising under sub-section (1) should be. determined by the LandCommissioner ,f in the exercise of his individual judgment ”. In theexercise of a quasi-judicial function the Minister’s direction and controlhave no place. It was so held in the case of Simms Motor Units, Lid. v.Minister of Labour and National Service 10 11. Private.instructions given toa specially designated officer or tribunal as to how quasi-judicial functionsshould be performed are bad. The object of establisliing an independenttribunal is to remove the power of decision from the executive and this'is clearly defeated if the tribunal acts to order. In the case of Roncarelliv. Duplessis J1 the Prime Minister and Attorney-General of Quebec whoissued an order on the manager of the Quebec Liquor Commission to ]cancel the licence of Roncarelli a restaurant operator was held liable indamages for issuing an order which he had no power under the Alcoholic 'Liquor Act, or the Act defining his powers, to issue. In that casereference was made to a number of decisions on the subject of the exercise■of discretion by a statutory body having quasi-judicial functions.Among them is the following passage from the judgment of Lord EsherM.R. in the case of Peg. v. Vestry of St. Pancras 12—,
If people who have to exercise a public duty by exercising theirdiscretion take into account matters which the Courts consider not to
1 (1926) 1 Ch: 66, 90-91.
(1905) A. C. 426, 42S.
(1925) A. C. 333, 343.
(1929) 1 K. S. 619.
(1922) 2 Ch. 490, 500.
(1919) 1 Ch. 3S7.
7 (1926) 1 Ch. 66, 91.
* (1924) 2 K. B. 695.
*• (1926) 1 Ch. 66, 90."
10(1946) 2 All E. R. 201.
11(1952) 1 D. L. R. 6S0. –
18 (1890) 24 Q. B. D. 371 at 375
332 , BASNAYAXJ5, C.J.—Ladamutlu ~Pillai v. The Attorney-General .
. be proper for the guidance of their- discretion, then in the eye of the '
law they have not exercised their discretion. -•-
In the instant ease the Land Commissioner, as stated above, mis-construed section 3 (1) (6) and gave himself a jurisdiction he did nothave. The action taken by him in excess of his jurisdiction to acquirethe plaintiff’s lands which he is in law. not entitled, to do is illegal and'theplaintiff is entitled to the order he seeks.'.•
. I shall now deal with point (d). It was argued that a mandamus doesnot lie against the officers and servants of the Crown and that the issueof an injunction is governed by the same consideration. But the correctform of the English rule on this aspect of the law of mandamus is thatmandamus does not lie against the servants of the Crown as such.Servants of the Crown when discharging statutory functions which theyhave no authority to discharge except under the statute cannot be saidto be discharging those functions qua servants of the Crown. Wherethey derive their powers from the statute and the statute alone the factthat they are servants of the Crown is no bar to a mandamus in respectof their statutory functions. Again where government officers havebeen constituted agents for carrying out particular duties in relation to-the subject, even where those duties are not statutory, if they are undera legal obligation towards the subject, an order of mandamus will liefor the enforcement of those duties (11 Hal. 99). But .we were notreferred to any case in which it has been so held. The English lawgoverning injunctions against public officers after 1947 is to be found insection 21 of the Crown Proceedings Act which expressly forbids thegrant of injunctions against an officer of the Crown only if the effect ofgranting the injunction would be to give any relief against the Crownwhich could not have been obtained in proceedings against the Crown.That section reads— '.
(1) In any civil proceedings by or against the Crown the Court shall,subject to the provisions of this Act, have power to make all suchorders as it has power to make in proceedings between subjects, and .otherwise to give such appropriate relief as the case may require :
Provided that—–
where in any proceedings against the Crown any such relief is –
sought as might in proceedings between subjects be grantedby way of injunction or specific performance, the court shallnot grant an injunction or make an order for, specific perfor-mance, but may in lieu thereof make an order declaratory ofthe rights of the parties ; and.
in any proceedings against the Crown for the recovery of land
– or other property the court shall not make an order for therecovery of the land or the delivery of the property, but mayin lieu thereof make an order declaring that the plaintiff is .. entitledjas against the Crown to the land or property or to.’
– the possession thereof.'.
(2) The court shall not in any civil proceedings grant any injunctionor make any order against an officer of the Crown if the effect of granting
. BASNAVAKJ3, C.J.—Ladamullu BMai v. The Attorney-General
333
the injunction or making the order would be to give any relief againstthe Crown which could not have been obtained in proceedings againstthe Crown..
Neither our Civil Procedure Code nor any other enactment imposes aprohibition such as is contained in sub-section (2) above. Our Courtsare free to entertain any action against the Crown or its officers andthere are no fetters imposed by statute on suing the Crown or its officers.In actions to which the Crown or a public officer is a party our Courtsare therefore free to make any order it may make between subject andsubject. Similarly in the grant of injunctions the Courts are free to actunder section 86 of the Courts Ordinance whether the defendant be theCrown or a servant of the Crown or a subject. There is no fetter on theirfreedom of action as in England.
It was also submitted on behalf of the Crown that the functions ofthe Band Commissioner under section 3 of the Ordinance are quasi-judicial and that any action in excess of his powers should be challengedby way of certiorari and not by action. I am unable to accept thissubmission either. Certiorari is a remedy which does not exclude otherremedies. A similar argument was unsuccessfully advanced in the case■of Cooper v. Wilson1. At page 733 Greer E.J. said—
Nor do I think that the power which he undoubtedly possessed ofobtaining a writ of certiorari to quash the order for his dismissalprevents his application to the Court for a declaration, as to theInvalidity of the order of dismissal.
"It was observed in the same case that the power of the Court to.grant a declaration has been greatly extended in recent years. Suchactions are increasing iii this country too. With the growth of legislationwhich affects the rights of the subject and his freedom of action, suitsin which the subject seeks redress against illegal acts on the part ofstatutory-functionaries are bound to increase. The courts should notbe slow to grant relief when their jurisdiction is properly invoked, andthe existence of other remedies is not a sound reason for refusing toadjudicate on a matter rightly brought before them.
The remedy of a regular action is under our law available regardless ofwhether the illegal action against which relief is claimed is administrativeor quasi-judicial. It is therefore unnecessary to discuss at length the-distinction between administrative and quasi-judicial acts.- It is-sufficient for the purposes of this judgment to quote the following passagewhich has been judicially approved from page SI of the 5fillisters’ PowersJReport (Cmd. 4060) :—-•'
But even a large number of administrative decisions may and doinvolve, in greater or less degree, at some stage in the procedure whicheventuates in executive action, certain of the attributes of a judicialdecision. Indeed generally speaking a quasi-judicial decision is onlyan administrative decision, some stage or some element of whichpossesses judicial characteristics. -*
.An action such as the one brought in this case undoubtedly lies to-^prevent a functionary vested with statutory powers from acting in'.
1 (1937) 2 All E. B.' 726.-'
334
BASXAYAJvE, C.J.—Ladatnultu Pillai e. The Attorney-General. "
' excess of those powers and taking a step he is not authorised by the statuteto take. This principle is firmly established in other parts"of the Common-wealth such as Australia and New Zealand.,;-
It is sufficient for the purpose of this judgment to refer to the cases ofAttorney-General (N.S. W.) v. Trethoican,1 and Nireaha Tamaki v. Baker*-In the former case an injunction was granted restraining the Presidentof the Legislative Council, the Attorney-General for the State of NewSouth Wales, the Premier and the other Ministers of the Crown for theState of New South Wales, from presenting to the Governor for royalassent a bill to abolish the Legislative Council passed by both Houses-of the New South Wales Legislature without submitting the matter to a.referendum as required by section 7a of the Constitution Act (1920-29).In the latter case the Commissioner of Crown Lands of New Zealandwas sued for a declaration that a block of land about 5,184 acres inextent which-was along with some other lands which the Governor hadnotified in the Gazette under section 136 of the Land Act 1892 open forsale or selection still remained land owned by natives under their custom,and usage and for an injunction against selling or advertising the same.The following among other issues were tried—••
Can the interest of the Crown in the subject matter of this suit,be attacked by this proceeding ?.
.(4) Has the Court jurisdiction to inquire whether as a matter of
fact the land in dispute herein has been ceded by the native owners-to the Crown ?-
In deciding the appeal in the plaintiff’s favour the Privy Council said—Their Lordships think that the learned judges have misapprehendedthe true object and scope of the action, and that the fallacy of their-judgment is to treat the respondent as if he were the Crown, or actingunder the.authority of the Crown for the purpose of this action. The-object of the action is to restrain the respondent from infringing theappellant’s rights by selling property on which he alleges an interestin assumed pursuance of a statutorj' authority the conditions ofwhich, it is alleged, have not been complied with. The respondent’sauthority to sell on behalf of the Crown is derived solely from thestatutes, .and is confined within the four corners of the statutes. The-Governor, in notifying that the lands were rural land open for sale,was acting, and stated himself to be acting, in pursuance of the 136thsection of the Land Act, 1892, and the respondent in lu's notice of salepurports to sell in terms of s. 137 of the same Act. If the land werenot within the powers of those sections, as is alleged by the appellant,the respondent had no .power to sell the lands, and his threat to do sowas an unauthorized invasion of the appellant’s alleged rights.
In England the prerogative writ of mandamus is no longer issued.Instead the High Court is empowered by statute to make an order re-quiring an act to be done. Section 7 of the Administration of Justice(Miscellaneous) Provisions Act, 1938, provides—-,
(1) The prerogative writs of mandamus, prohibition and certiorari -shall no longer be issued by the High Court. -1 (1930-31) 41. Commonwealth Law Reports 394.-! (1901) A. C. SCI.
PCJL.LE, J. —LaJamullu PUlai v. The Attorney-General
33r
In any case where the High Court would, but for the provisionsof the last foregoing sub-section, have had jurisdiction to orderthe issue of a writ of mandamus requiring any act to be done,or a writ of prohibition prohibiting any proceedings or matter,or a writ of certiorari removing any proceedings or matter into
.the High Court or any division thereof for any purpose, the
Court may make an order requiring the act to be -done, orproliibiting or removing the proceedings or matter, as the casemay be.*
The said orders shall be called respectively an order of mandamus,
an order of prohibition and an order of certiorari.
No return shall be made to any such order and no pleadings in
prohibition shall be allowed, but the order shall be final, subject-to any right of appeal therefrom.
In any enactment references to any writ of mandamus, prohibition!
or certiorari shall be construed as references to the correspondingorder and references to the issue or award of any such writshall be construed as references to the making of the corres-ponding order.
In m37 opinion there is no justification in our country for extendingto injunctions the considerations governing the prerogative writ ofmandamus. In Ceylon, as in England since 193S, mandamus is astatutoiy remcd37 (s. 42, Courts Ordinance), and hi our country it wasalwa3rs a mandate in the nature of a writ of mandamus and never aprerogative writ.
Eor the reasons I have given I would allow the ap£>eal with costs bothhere and below. I direct that judgment be entered for the plaintiff as-pra3’ed for.
POLLE, J.
This appeal raises difficult points of interpretation of section 3 of the-Land Redemption Ordinance, No. 01 of 1942. I am inclined to theopinion that the draftsman had in view the simplest of mortgage-transactions by which an owner who has mortgaged a land which is asingle pli3'sieal ontit3r ultimatelj- loses titlo thereto because it is soldin execution of a mortgage decree or is compelled to transfer it to themortgagee in satisfaction or part satisfaction of the debt duo to himunder the mortgage. This case shews that some mortgage transactionscan bo of a very complex character. Tho question which has to bedetermined is whether the language of section 3 can be so made to applyto the facts of the case under appeal as to enable one to say that the-2nd defendant, the Land Commissioner, acted intra vires in taking stepsto acquire the four allotments of land described in the schedule to theplaint.'-
The facts are full^y stated In the judgment of my Lord, the ChiefJustice, and I need not recapitulate them. The broad feature is thatthe mortgagor, the 3rd defendant, transferred by deed Po not the entiretyof the lands 113'pothecated by the bonds PI and P2 but only a portion
336'PULLE, J.—Isodamullu. Pillai t>. The Attorney-General .- -_
in satisfaction of the mortgage decree entered on P2. There were fivemortgagees on the bond P2 which had been put in suit by one onlyof the mortgagees named . Sockalingain Chettiar in whose favour thehypothecary decree P4 in the usual form had been entered. The transferPo was made out to operate as a conveyance of 2/3rds undivided shareof the lauds scheduled in P5 to Sockalingam Chettiar and as a conveyanceof the balance -l/3rd to one Sekappa Chettiar who was one ofthe mortgagees on the bond P2. The final result of the transactionwas that the 3rd defendant saved for himsolf a portion of the landsmortgaged by PI and P2 by satisfying the decree in favour of SockalingamChettiar and also by obtaining a discharge of the earlier bond PI.*
Two arguments of learned counsel for tho appellant to the effectthat the conditions prescribed bj' section 3 (1) (b) of the Ordinancehave not been satisfied ought, in my opinion, to be accejitecl. Thefirst is that after the decree on the mortgage bond was entered in favourof Sockalingam Chettiar alone there was no debt due by the mortgagorto Sekappa Chettiar on the bond P2 although Sekappa Chettiar was aparty to it, or on tho bond PI for the obvious reason that Sekappa wasnot a party to PI. Then in satisfaction of the debt due to Sockalingam■Chettiar, represented by the money decree entered in his favour in themortgage suit, what was transferred to him was an undivided share-of the several lands described in tho schedule to Po. It seems to me. to be clear that section 3 of the Ordinance contemplates neither themortgage of an undivided share of a land nor the transfer to a mortgage-creditor of anything less than a single land or several lands as ph3'sical•entities. The reasons are elaborated hi the judgment of my Lord andI do not think I can usefully add anything to it. The legal effect of theconveyances to Sockalingam Chettiar and Sekappa Chettiar is to placethe transfer P5 outside the ambit of section 3 (1) (6) from which itresults that the Land Commissioner exceeded his j>owers when he tooksteps to acquire the’ lands. This renders it unnecessary for me to dealwith the other arguments directed to shew that other conditions in para-graph 3 (1) (b) have not been satisfied. I would liko, however, to add thatI am attracted by the second argument that, as all the lands mortgagedby P2 were not transferred by Po, the debt which was satisfied by Pocould not be said, within the meaning of section 3 (1) fb), to havo beensecured by a mortgage of the lands conveyed by Po when, in fact, thodebt was secured by mortgage of those lands and others. I readilyaccede to tho argument that provisions such as those contained in theLand Redemption Ordinance, which aro aimed at taking away landslawfully vested in a subject because of the accidental circumstance-that the title thereto was derived through a person who having mortgagedit did not have the money to pay off tho debt, must be strictly construed.That the lands transferred by Po wero liablo on tho bond P2 for tho.whole of tho debt does not admit of a doubt. But in applying section3 (1) (b) tho proper question that the acquiring authority should ask■himself is not whether the lands in Po were security for the debt on P2ibut-whether the debt was secured by a mortgage of the lands in Po. ..'Tho latter question cannot, in my opinion, be answered in tho affirmative -af .the debt was secured not only by a mortgage of the lands in Po but
K. D. DE SILVA, J.—Ladamultu Pillai v. The Attorney-General
337
also by a mortgage of other lands. This rendering of section 3 (1) (6)would not violate any canon of construction but rather satisfy the firstrule that words must be given thoir literal meaning.
An examination of section 3 (1) (a) reveals that steps can be takento acquire a single land sold in execution of a mortgage decree, eventhough not one of the remaining lands has been sold.. It is, therefore,argued that if the debt was satisfied, otherwise than by execution byonly one of the lands mortgaged being sold by the debtor to the creditor,the same result ought to follow. The question is asked as to why thelegislature should make a distinction between a land sold hi executionof a mortgage decree and a land which is the subject of a voluntary salo.It was suggested at the argument that ono is a forced sale and tho otheris not. Tho reason may not be a good one but would it conclude thequestion in favour of the acquiring authority ? Whether the legislaturesought to draw a distinction or not must be gathered by tho languageused in the statute and if upon a plain reading of the section there issuch a distinction the court is not free to refuse to give effect to it. Thointention of the legislature can only be ascertained by tho languageused by it..
The remaining questions argued before us relate to the constitutionof tho action. Tho Attorney-General is the 1st defendant and as againsthim the action was not pressed and it has been dismissed with costs.Whether tho Land Commissioner could bo sued in his official capacitywas debated at length. I find myself on this point in agreement with■tho conclusion reached by my Lord, the Chief Justice, and also withthe conclusion that a statutory functionary like the Land Commissioner•can bo restrained from acting beyond the scope of the powers conferredby a statute. Assuming that the decision to acquire the lands in questioncould have been challenged by a mandate in the nature of a writ ofcertiorari, the plaintiff was not confined to that remedy and he had theright to institute a regular action to obtain a declaratory decree and aninjunction. The provision in section 3 (4) was not a bar to theaction.
I would therefore direct that the decree dismissing the action against-tho 2nd defendant with costs be sot asido and that a decree be enteredfor the substituted plaintiff against the 2nd defendant as prayed forin tho plaint with costs here and below.
K. L. de Suva, J.—I have had tho advantage of reading the judgment prepared by MyLord the Clu’cf Justice which sets out in full tho facts relevant to thodecision of this appeal.
W. A. Lon Elaris Perera, tho 3rd defendant-respondent by bond No. 391-of September 30, 1925, (PI) hypothecated a number of lands, ono of whichis called Kecriyankalliya Estate, to secure a sum of Rs. 50,000 which heborrowed from three Chettiars, namely, Sockalingam, Subramaniam andArunasalam, repayable with interest at 15 per cont. Ho gave a secondary
33S
K. D. DE SILVA, J.—Zxidamuttu Pillai v. The Attorney-General
mortgage of the same lands by bond No. 499 of April 1930 (P2) to secure*a loan of Rs. 25,000/- carrying interest at tho same rate which he obtainedfrom five Chcttiars, namely Sockalingam, Subramaniam, Muttiah,Velayuthan and Sokappa. Tho two first named mortgagees on thisbond are two of tho mortgagees on the earlier bond PI. According to theterms of PI and P2 the amount duo on each bond was payable to themortgagees named therein or to any one of them. On a tertiary mortgageof the same lands Elaris Perera borrowed a sum of Rs. 20,000 fromElaris Dabarera and executed bond No. 2,399 of March S, 1931 (P3).
In tho year 1933 Sockalingam alone put tho bond P2 in suit in D. CkColombo Case No. 7,365 and obtained judgment. The decree (P4).in that case was entered on June 22, 1933.
By deed No. 4,010 of May 4, 1935 (Po) the 3rd defendant transferredKeeriyankalliya Estate and some of the other lands mortgaged on PI andP2 to two of the mortgagees, namely, Sockalingam and Sekappa in theproportion of 2/3 to the former and 1/3 to the latter and their rights-passed to the original plaintiff by right of purchase.
Tho consideration appearing in deed P5 is Rs. 75,000 and this amountwas set off in full satisfaction of the claim and costs duo on tho decreeP4 and the principal and interest duo on tho mortgage bond PI. Byt-hafc deed the 3rd defendant also undertook to discharge the tertiarybond P3..
Thereafter the 3rd defendant wrote to the Land Commissioner requestinghim to take steps under the provisions of the Land Rcdenqption OrdinanceNo. 61 of 1942 to acquire the lands conveyed on deed Po. The LandCommissioner after notice to the plaintiff and having considered theobjections filed by him made his determination on May 12, 1947, undersection 3 (4) of the Land Redemption Ordinance that Kceri3’ankall iy aEstate be acquired. -Thereupon the plaintiff instituted this action againsttho Attorney-General and the Land Commissioner who are the 1st and 2nddefendants respectively praying for an injunction restraining them fromacquiring the land. The 3rd defendant was made a party to the action,on an application made by him.
Tho acquisition was resisted on the following two grounds :— (1)Ivccriyankalliya Estate docs not conic within the category of landsreferred to in section 3 (1) (b) of the Land Redemption Ordinance. .(2) Tho plaintiff was a bona fide purchaser for value and therefore theprovisions of the Land Redemption Ordinance arc not applicable to thisland. The defendants while asserting that this land was liablo to boacquired under section 3 of that Ordinance contended (1) that the deter-mination of the Land Commissioner under section 3 (4) was final andcannot bo questioned in these proceedings, (2) that no injunction layagainst the Attorney-General, and (3) that the 2nd defendant cannot bosued in his official capacity.
It- was conceded by the counsel for the plaintiff during the coursc'of thetrial that an action for an injunction caimot be maintained against tho
' K. D. DE SIX.VA, J.—Ladomutlu JPillai v. The Attorney-General33&
Attorney-General. The learned District Judge held, inter alia, thatthis land came witlun the provisions of section 3 (1) (6) and dismissed the-plaintiff’s action with costs. ■,
Tlio main argument addressed to us by Mr. H. V. Percra, Q.C., whoappeared for the appellant related to the interpretation of section 3 (1) (b).One submission made by him was that as all the lands mortgaged hadnot been conveyed by deed P5 the Land Commissioner was not entitledto acquire this land. Section 3 (1) (a) and (6) reads as follows :—
3. (1) The Land Commissioner is hereby authorised to acquire onbehalf of Government the whole or any part of any agriculturalland, if the Land Commissioner is satisfied that that land was,at any time before or after the date appointed under section•1, but not earlier than the first day of January 1929 either—
(а)sold in execution of a mortgage decree, or
(б)transferred by tlio owner of the land to any other person in
satisfaction or part satisfaction of a debt, which was duefrom the owner to such other person and which was,immediately prior to such transfer, secured by a mortgageof the land.
Where several lands are mortgaged, Mr. Perera argued, that in termsof the rule of interpretation, that words in the singular inchido theplural, the word “lands ” should be substituted for the word “ land ”in clause (6) and that the words “land was ” in section 3 (1) should bereplaced by the words “ lands were”. This argument does not commenditself to me. The word “ land ” in clause (6) refers to the “ agriculturalland ” in section 3 (1). Similarly the words “ land was ” in section 3 (1)have reference to the same “ agricultural land ”. There can be no doubton that point.•'
When the Land Commissioner proceeds to act under section 3(1) (b)he has in mind a particular land which he proposes to acquire. He mustsatisfy himself that that land is an agricultural land. If it is not of thatvariety he cannot proceed to acquire it under this Ordinance. Oncehe is satisfied that it is an agricultural land he must ascertain whetherit had been transferred by its owner during the relevant period to anyother person in satisfaction or part satisfaction of a debt due from the -owner to the transferee. He must further ascertain whether the debtwas, immediately* prior to the transfer, secured by a mortgage of thatland. It is only if all these requirements aro fulfilled that tlio LandCommissioner is entitled to make his determination under section 3 (4)to acquire the land..
Docs this land called Kccriyanka 11 iya Estate satisfy these require-ments ? Admittedly it is an agricultural land. It was also transferreddining tho relevant period on deed P5 by the owner to Soekalingam andSekappa. It is stated in the deed Po itself that the consideration wasset off in full satisfaction of the dccreo P4 and tho principal and interest
• 340K. D. DE SILVA, J.—Ladamuttu Piilai v. The Attorney-General
■due on the bond PI. Mr. Perera, however, argued that at the time of the•execution of the deed P5 no debt was due from the owner to Sekappabecause. Sockalingam alone had sued on the bond P2 and obtainedjudgment. It is true that once Sockalingam put this bond in suit healone was entitled to receive payment of the debt. Before tho institution-of that action the 3rd defendant was entitled to pay the debt to any oneof the mortgagees at liis discretion. This right of selection ho forfeited-once Sockalingam filed the mortgage bond action. But that does notmean that ho ceased to be indebted to the other mortgagees on P2 orthat the mortgagees other than Sockalingam ceased to be his creditors.It is not suggested that in order to obtain the transfer P5 Sekappa paid■any consideration other than the amount due to him on the bond P2.Even after the decree P4 was entered there was nothing to preventSockalingam from associating with Sekappa in accepting the amount dueon that decree Though the decree was entered the mortgage P2 con-tinued to be effective until it was discharged. It was so held in the casoof Perera v. Umantenn-e.1 In the instant case both bonds PI and P2ceased to be effective only on the execution of the deed Po.
Mr. Perera very frankly conceded that if one, of several landsmortgaged, was sold on a mortgage decree during the relevant periodthe Land Commissioner was entitled to acquire it provided it was an-agricultural land. That being so there can be no valid objection to theacquisition of a land under section 3 (1) (b) even if that be the onlyland transferred in satisfaction of the mortgage debt which was securedby the hypothecation of several lands. . It does not make any differencethat in one caso it is a forced sale while in the other it is a voluntaryalienation. It may well be that by the enforced sale of one land thefull amount due on the decree was realised just as the voluntary saleof one land was in full satisfaction of the debt due on the mortgage.’
When several lands are mortgaged each land secures the whole debt.Therefore it caimot be denied that Iveeriyankalliya Estate secured thefull amounts due on PI and P2.
Once the Land Commissioner arrived at a correct decision regardingthe matters contemplated by section 3 (1) (b) his determination to acquiremade ?mder section 3 (4) cannot be challenged. In my judgment hisdecision that Keeriyankalliya Estate is one which satisfies therequirements of section 3 (1) (b) is a correct one.
The othor issue raised at the trial, namely, that the Land Commissionerwas not entitled to acquire this land because the plaintiff was a bonafide purchaser for value has no merit and was not prossed at thehearing of this appeal.-
As the plaintiff has failed to establish that tin's land does not comowithin the provisions of section 3 (1) (b) it is not necessary to deal withthe other issues raised in the case. I would therefore dismiss the appealwith costs.
Appeal allowed.
1 {1953) 54 N. L. R. 4-57.