LAND REFORM COMMISSION v. HUSSAIN AND OTHERS

014-SLLR-SLLR-1997-2-LAND-REFORM-COMMISSION-v.-HUSSAIN-AND-OTHERS.pdf


C.A
Land Reform Commssiun v Hussain and Others
173
LAND REFORM COMMISSION
v.
HUSSAIN AND OTHERS
COURT OF AFPEAL.
WIGNESWARAN, J.
A.N'O. 174/36 (F).
C. COLOMBO NO. 4632/ZL.
AUGUST 26, 1936.
Land Reform Law – Section 21 of the Land Reform (. racial Provisions) Act.No. 39 of 1981.
Grukande alias Orakande alias Oorakando Estate of 991 acres 2 roods 8 percheswhich belonged to the plaintiff-respondents vested in the Land ReformCommission with the coming into operation of the Land Reform Law. No. 1 of1972 on 26.8 72 and the plaintiff-respondents then became statutory lessees ofthe said Estate. A notice under section 2 of the said Acquisition Act that theauthorities intended to acquit e the said estate for a public purpose was served onSeptember 30, 1972 on the plaintiff-respondents i.e. 35 days after the LandReform Law came into operation. Possession was taken over from the statutorylessees under the pioviso to section 38 of the Land Acquisition Act by theGovernment Agent on 9.8.1973.
Held:
Section 21 of Act, No. 39 of 1981 must be interpreted to mean that lands whichvested in some other authority in terms of the Land Acquisition must be deemedto have vested in the Land Reform Commission. Since lands acquired before26 08.72 but after 29.05.71 were not lands vested in the Land ReformCommission, such lands only were vested in the Land Reform Commissionprovided no compensation had been paid as on 03.06.1981.
Statutory declarations could be made more than once.
Act, No. 14 cf 1986 which amended section 21 has no retrospective effect. Itcame into operation from 20.08.1986. The plaint in the instant case was filed on13.02.1934 and judgment was delivered on 27.03.1986 before Act, No. 14 of1986 came into operation.
APPEAL from judgment of the District Court of Colombo.
P. G. Dep, Deputy Solicitor-Genera! for defendant-appellant.
P Nagendra, PC. with Miss S. M. Senaratne and A. J. M. Thahir for plaintiff-respondents.
Cur. adv. vult.
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January 24,1997.
WIGNESWARAN, J.
This case depends on the interpretation of section 21 of the LandReform (Special Provisions) Act, No. 39 of 1981.
It has been admitted that Orukande alias Orakande aliasDorakande Estate in extent of 991 Acres 2 Roods 8 Perches in theKegalle District Sabaragamuwa Province, which belonged to theplaintiff-respondents vested in the Land Reform Commission with thecoming into operation of Land Reform Law, No. 1 of 1972 on 26.8.72.In terms of the law the plaintiff-respondents then became statutorylessees of the abovesaid Estate.
It has been further admitted that a notice under section 2 of theLand Acquisition Act which declared the intention of the authorities toacquire the said Estate for a public purpose was served on 30thSeptember 1972, thirty-five days after the Land Reform Law cameinto operation and possession was taken over from the statutorylessees under proviso to section 38 of the Land Acquisition Act on9.8.1973 by the Government Agent, Kegalle (vide D2).
The purpose of the Land Reform Law was to establish a LandReform Commission to ensure that no person shall own agriculturalland in excess of a ceiling placed by the said law and to take overagricultural land owned by any person in excess of the ceiling, toutilize such land in a manner which will result in an increase in itsproductivity and employment generated from such land (vide section2 of the Land Reform Law).
Section 13 of the said Law inter alia provided for the invalidation ofany alienation of agricultural land in excess of the ceiling on or after29.5.1971 which were in the opinion of the Land Reform Commissioncalculated to defeat the purposes of the Land Reform Law. Lindersection 13(6) of the' Land Reform Law if an alienation was declared tobe null and void, no right, title nor interest would pass to the alieneeunder the instrument of such alienation but such land shall vest in theCommission and the alienee was deemed to hold such land under astatutory lease from the Commission. Thus even though the relevant
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date with regard to the Land Reform Law was 26.8.1972, section 13extended the effect of the law to a period anterior to 26.8.1972.
Section 14 of the Land Reform Law made provision for inter-familytransfers with regard to lands vested.
Section 18 required statutory declarations to be made in respect ofagricultural land which became subject to a statutory lease under theprovisions of the Land Reform Law.
Section 19 provided inter alia for statutory determination to bemade by the Land Reform Commission specifying portion or portionsof agricultural land owned by the statutory lessee which were to beallowed to be retained by such statutory lessee.
On 3.6.1981 Land Reform (Special Provisions) Act, No. 39 of 1981was brought into operation amending the Land Reform Law, No. 1 of1972 and making special provisions with regard to certain orders anddeterminations made under sections 13, 14 and 19 of the LandReform Law. This Act also provided for matters connected therewithor incidental thereto.
Section 21 of the said Act reads as follows:-
21. (1) Where lands have been acquired under the LandAcquisition Act on or after May 29, 1971 and no compensation hasbeen paid in respect of such lands, on the date of commencement ofthis Act notwithstanding anything in this Act or any other law, suchlands shall be deemed to have been vested in the Commission underthe Land Reform Law and accordingly, the owners of such lands shallbe entitled to the rights of a statutory lessee under section 14 andsection 18 of that law and may, within three months of the date ofcommencement of this Act, make a statutory declaration to theCommission.
(2) Where it is not practicable for the Commission to make astatutory determination under section 19 of the Land Reform Law inrespect of any land vested in the Commission by virtue of subsection(1), specifying the portion of portions of the agricultural land owned
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by the statutory lessee which he shall be allowed to retain, theCommission shall alienate to such statutory lessee, the maximumextent of agricultural land which may be owned by any person underthe Land Reform Law or the extent of the land acquired from suchstatutory lessee under the Land Acquisition Act, whichever is less.
Where it is not practicable for the Commission to grantapproval for the transfer by the statutory lessee of any agriculturalland under subsection (2) of section 14 of the Land Reform Law, theCommission shall alienate land to the extent of the land acquiredfrom such statutory lessee under the Land Acquisition Act, to anychild or to a parent of such statutory lessee.
Where no compensation has been paid for the landsacquired under the Land Acquisition Act deemed to be vested in theCommission under subsection (1) and where no determination ismade under subsection (2) or where no approval is granted undersubsection (3), the statutory lessee shall be entitled to receivecompensation for such lands under this Act.
It is the abovesaid section which comes into focus in relation to thefacts of this case.
The Deputy Solicitor-General appearing for the defendant-appellant (Land Reform Commission) has argued that in view of theacquisition subsequent to the vesting the plaintiff-respondents areonly entitled to compensation under the provisions of the LandAcquisition Act. It is his contention that the provisions of section 21 ofAct No. 39 of 1981 above referred to, does not apply to the facts ofthis case and therefore there is no obligation on the part of the LandReform Commission to act in terms of the provisions of the LandReform Law as set out in section 21 abovesaid.
The learned President’s Counsel appearing for the plaintiff-respondents has argued that in view of section 21 abovesaid theplaintiff-respondents are entitled to statutory determination andpayment of compensation in respect of the excess land by the LandReform Commission.
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The learned Additional District Judge, Colombo by his judgmentdated 27.03.1986 held in favour of the plaintiff-respondents.
When this case came up before my predecessors on 02.06.1995 itwas journalised in the docket as follows:-
“02.06.95
BEFORE : WEERASEKERA, J. &
: DR. A. GRERO, J.
K.Paul, SC for Defendant-Appellant.
P. Nagendra, PC. with Miss S. M. Senaratne for plaintiff-respondent.
Mr. Paul, SC states that the Land Reform Commission would beliable to pay compensation in terms of Section 3(2) of the LandReform (Special Provisions) Act, No. 39 of 1981 to an extent of 741Acres, 2 Roods and 8 Perches which is the excess land that wouldhave been vested in the Commission less the amount that wouldhave to be given to each of the plaintiffs under sections 18 and 3(1)of the Land Reform Law No. 1 of 1972.
In regard to the balance Mr. Paul, SC. undertakes to explore thepossibility of the plaintiffs being divested this extent in terms ofsections 3 and 18 of the Land Reform Law., if it is out of this land orout of the other lands.
Mention on 15.07.95.
Signed’’
Despite efforts made by the State Counsel to honour thesettlement reached on 02.06.95 it appeared that the Land ReformCommission was reluctant to go with him. Hence this Court issuednotice on the Directors of the Land Reform Commission on 18.01.96.Since a settlement was not favoured by the Commission the matterwas fixed for argument.
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"26.08.96
Before: Wigneswaran, J.
P. G. Dep. DSG with A. Gnanathasan SSC for defendant-appellant.
P. Nagendra PC. with Miss. S. M. Senaratne and A. J. M. Thahir forplaintiff-respondent.
Parties are heard. Since there are various details which arenecessary both on law as well as facts. Court calls upon Counsel totender written submissions. Meanwhile Court also calls upon theState Counsel to explore the possibility of giving statutory allotmentsunder the Land Reform Law to the plaintiff from some other area otherthan the land acquired by the State. Mr. Dep DSG states that he willexplore the possibility. He also states that he will give the details ofthe money deposited by the Government Agent.
Written submissions of the State for 30.09.96.
Written submissions of the respondent for 14.10.96.
Mention on 30.09.96.
sgd /"
No details of money deposited by the Government Agent hasbeen made available to Court nor any settlement been possible. Thisjudgment therefore seeks to determine the matter in issue.
The arguments put forward by the Deputy Solicitor-General is asfollows:-
Section 21 of Act No. 39 of 1981 applies only to lands acquiredafter 29.05.1971 up to 26.08.1972 and where no compensation inrespect of such lands had been paid before 03.06.1981.
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In the instant case the acquisition took place after 26.08.1972and the owner/owners became statutory lessees who tenderedstatutory declarations in terms of the law. No such declarationswere necessary where the acquisitions were between 29.05.71and 26.08.72 since the lands were not vested under the LandReform Law. But declarations were needed in respect of suchlands after the coming into operation of Act No. 39 of 1981 thereason being that lands acquired between 29.05.71 and 26.08.72were in terms of the provisions of Act No. 39 of 1981 deemed tohave been vested with the Land Reform Commission. Such adeclaration was not necessary in respect of the case in handbecause the acquisition was after 26.08.72.
Doubts were cleared by the passing of Act, No. 14 of 1986 whichconfirmed (i) said above.
Even if section 21 of Act No. 39 of 1981 were to apply to the casein hand under the provisions of section 21(4) the land acquiredwas handed over to National Agricultural Diversification andSettlement Authority (NADSA) and therefore only compensationunder the provisions of the Land Reform Law would now becomepayable.
These submissions would now be examined.
(1) Does section 21(1) of Act No. 39 of 1981 apply toacquisitions that took place after 29.05.1971 but only upto 26.08.1972?
The purpose for which the amending Act, No. 39 of 1981 to theLand Reform Law was brought in was enumerated earlier in thisjudgment and section 21 was reproduced.
There is nothing in the said section that limits acquisitions that tookplace under the Land Acquisition Act to a period anterior to26.08.1972. The only relevant factors stated are:
Acquisition should have been under the Land Acquisition Act.
It should have been after 29.05.1971.
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Compensation regarding such acquired lands had remainedunpaid on 03.06.1981 (the date of commencement of the Act).
Notwithstanding anything in Act No. 39 of 1981 or any otherAct or Law No. 1 of 1972 or any other Law, lands so acquiredshould be deemed to have vested in the Commission underthe Land Reform Law.
Thus the interpretation to the phrase “deemed to have beenvested in the Commission under the Land Reform Law” must meanthat even though the authority on whom the lands vested under theprovisions of the Land Acquisition Act were different, according tosection 21 such lands must be deemed to have vested in the LandReform Commission under the Land Reform Law. The learnedDeputy Solicitor-General has sought to give the interpretation to theword “deemed" in relation to the land acquired and not the institutionin which the vesting was reposed on. His position is that lands couldhave vested in the Land Reform Commission only after 26.08.72(date of commencement of Law No. 1 of 1972) and therefore sincelands acquired before 26.08.72 but after 29.05.71 were not landsvested in the Land Reform Commission such lands only were vestedin the Land Reform Commission provided however that nocompensation had been paid as at 03.06.1981.
This meaning though favourable to the Land Reform Commissionis unduly restricted. A reading of section 21(1) gives the impressionthat the term “deemed" related to the Authofity of vesting rather thanthe nature of land vested. If the Legislature intended to curtail theapplication of section 21 to lands acquired before coming intooperation of Land Reform Law No. 1 of 1972 it would have soprovided in Act No. 39 of 1981. In the absence of any such restrictivephraseology the words “deemed to have been vested in theCommission under the Land Reform Law” must be understood torefer to the Land Reform Commission as opposed to any otherAuthority in whom the Lands had vested. What it means is that interms of section 21 lands which vested in some other authority interms of the Land Acquisition Act must be deemed to have vested in
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the Land Reform Commission. No restriction with regard to the landsso vested seems to have been contemplated in section 21.
Further section 19 of Act No. 39 of 1981 refers to determinationsmade after the coming into operation of the Land Reform Law. Theamending Act No. 39 of 1981 itself was an act to amend Law No. 1 of1972 to make special provisions with regard to certain orders anddeterminations made under sections 13, 14 and 19 of Law No. 1 of1972 and matters connected therewith. Since section 19 refers todeterminations made after the coming into operation of Land ReformLaw No. 1 of 1972, in the absence of any restrictions placed insection 21 it would be improper to give a time limit until 26.08.1972 ininterpreting section 21.
There is no doubt that the Legislature intended by the passing ofAct No. 39 of 1981 to rectify injustices and anomalies that had creptin during the course of the implementation of Land Reform Law, No. 1of 1972. The instrument or institution used by the Legislature toremedy the situation was the Land Reform Commission. If landsacquired under the Land Acquisition Act prior to the coming intooperation of the Land Reform Law could be brought under the over-lordship of the Land Reform Commission it would be churlish toargue that Act, No. 39 of 1981 did not intend the Land ReformCommission to concern itself with lands vested in it and subsequentlyacquired under the Land Acquisition Act.
Thus the acquisition referred to in section 21(1) of Act, No. 39 of1981 should not be interpreted to be limited to the period 29.05.1971to 26.08.1972.
(2) Would section 21 of Act, No. 39 of 1981 refer toacquisitions of lands between 29.08.1971 and 26.08.1972only, since declarations were not contemplated in respectof these lands under the Land Reform Law while section21 of Act, No. 39 of 1981 refers to a statutory declarationhaving to be made in respect of them?
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This again is a weak argument. The declarations contemplatedunder sections 18 and 19 of the Land Reform Law specifies whatparticulars inter alia are to be given (vide section 18(2) of the LandReform Law). It relates to particulars as at the day immediately priorto the date of commencement of the Land Reform Law. If theacquisition took place long prior to such date (25.06.1972) but after
those particulars referred to in section 18(2) may not beavailable with the former owner since the Acquisition authorities mayhave taken over possession. If the acquisition took place after
as in the present case, again the particulars stated insection 18(2) may not be available with the statutory lessees sincethe Acquisition Authorities may have taken over possession after thedeclaration was made under section 18 of the Land Reform Law.Thus the statutory declarations contemplated in section 18(2) andsection 21 of Act, 39 of 1981 are in effect different and therefore thereis no sense in saying that a statutory declaration under section 18(2)having been made, a statutory declaration again under section 21 ofAct, No. 39 of 1981 was not contemplated in law. There is nothingwrong in calling upon parties to make statutory declarations morethan once depending on the circumstances for which thedeclarations have become necessary.
Effect of Act, No. 14 of 1986The learned Deputy Solicitor-General has referred to section 13 ofAct No. 14 of 1986 which reads as follows:-
13. Section 21 of the principal enactment is hereby amended bythe repeal of subsection (1) of that section, and the substitution ofthe following subsection therefor:-
“(1) Where any lands have been acquired under the LandAcquisition Act on or after May 29, 1971 but prior to August 26,1972, being lands which had they not been so acquired, wouldhave vested in the Commission under the Land Reform LawNo. 1 of 1972 and in respect of which no award had been madeon the date of commencement of this Act under section 17 of
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the Land Acquisition Act, such lands shall, notwithstandinganything in this Act or any other law be deemed to have vestedin the commission under the Land Reform Law and accordingly,the owners of such lands shall be entitled to the rights of astatutory lessee under section 14 or section 19 of that Law andmay within three months of the commencement of this Act makean application to the Commission under section 14 of the LandReform Law and under section 18 of the Land Reform Law astatutory declaration to the Commission.”
This section came into operation from 20.08.1986. The plaint in thiscase was filed on 13.02.1984. The judgment was delivered on27.03.1986. This section did not make itself applicableretrospectively. Under section 6(3) of the Interpretation Ordinanceany repeal in the absence of any express provision to that effectwould not affect the past operation of such Act and also would notaffect any action or proceeding pending or incompleted when therepealing written law came into operation. Thus the restriction toobtain a statutory determination and compensation only to thoselands acquired between the period 29.05.1971 and 26.08.1972 wasmade effective only from 20.06.1986.
The very fact that Act, No. 14 of 1986 was enacted shows thecorrectness of the interpretation given earlier to the provisions ofsection 21 of Act, No. 39 of 1981. The preamble to Act, No. 14 of1986 does not refer to any clarification found necessary ininterpreting any provisions of Act, No. 39 of 1981.
It is to be noted that the restrictive interpretation placed by. thelearned Deputy Solicitor-General was ostensibly never in thecontemplation of the Legislature when Act, No. 39 of 1981 waspassed. If the Legislature had any such reservations it would have soenacted.
Therefore one must conclude that the Legislature preferred torestrict the rights of persons to obtain a statutory determination andcompensation to those whose lands were acquired on or after
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29.05.1971 and before 26.06.1972 only at a later point of time. That isprobably why the Legislature did not make section 21 retrospective. Ifit was its intention to give retrospective effect to the section it wouldhave done so clarifying the intention of the Legislature at the time ofenactment of Act, No. 39 of 1981.
Since land had been handed over to NADSA afteracquisition, would only compensation under LandReform Law become payable?
The learned District Judge in his judgment (vide pages 199-200 ofthe Brief) has stated that the defendant’s position that subsequent tothe acquisition the land was handed over to NADSA has not beenestablished. He further referred to witness K. Weerasinghe who hadstated that the Government Agent acquired the estate and later itwas managed by a co-operative up to 1975 and thereafter by theJanawasama and only on 01.10.1978 it was taken over by NADSAand then subsequently the land was distributed among the villagersin lots. The judge goes on to say about witness Weerasinghe thus:-
“This witness’s evidence in my view is unsatisfactory. Not a single
document has been marked in evidence to support his story”.
There is no reason for this court to dispute the finding of thelearned Additional District Judge.
The learned Additional District Judge had granted the reliefsprayed for in paragraphs (a), (b), (c) and (d) of the prayer to theplaint.
This court affirms his order and dismisses the appeal with taxedcosts payable by the defendant-appellant to the plaintiff-respondent.
Appeal dismissed.