LAND REFORM COMMISSION v. REV, GANEGAMA SANGARAKKITA THERO

031-SLLR-SLLR-1987-2-LAND-REFORM-COMMISSION-v.-REV-GANEGAMA-SANGARAKKITA-THERO.pdf


CA
L.R.C. v. Rev. Ganegama Sangaralddta Them
411
LAND REFORM COMMISSION
v.REV. GANEGAMA SANGARAKKITA THERO
/
COURT OF APPEAL.
DHEERARATNE J. AND VIKNARAJAH J.
A. 401/79 (F).
C. COLOMBO 3094/ZL.
JUNE 1,1987.
Land Reform – State Land Possessed by a public company as lessee – Vlharagam landor land held in trust under the Buddhist Temporalities Ordinance – Ownership -Possession – Deemed ownership – Agricultural land – SS. 42 A(1), 42 M, 66 of theLand Reform Law.
The question was whether state land which is viharagam land or land held in trust underthe Buddhist Temporalities Ordinance possessed by a Public Company on a notariallease vests in the Land Reform Commission in terms of the ceiling imposed by the LandReform Law.
An owner in relation to land may be defined as a person who possesses the threefoldattributes of ownership; firstly the right of possession, secondly the right of use and' enjoyment and thirdly the right of alienation. Apart from those possessing theseattributes of ownership is the class of persons who are ‘deemed owners' entitled topossession of land by virtue of certain alienations made by the state. They are lessees ofland from the Republic, permit holders under the Land Development Ordinance andalienees on grants under the Land Development Ordinance. The word ‘possessed’ inthe term 'owned or possessed* in section 42A carries the same meaning attached to itin section 66 and refers to the possession of a deemed owner. Viharagam' ordevalagam land owned or possessed by a religious institution, charitable trust asdefined in the Trusts Ordinance or a Muslim charitable trust or wakf so long as it ispossessed by such trust, land held in trust under the Buddhist Temporalities Ordinance'for so long as such land is held in trust under that Ordinance – all as at May 29.1971 -. are excluded from the definition of agricultural land in s.66. The introduction of a newconcept‘of estate land in s.42 M did not operate to bring the excluded categoriesreferred-to above but only to bring in excess land owned or possessed by a publiccompany.
The disputed land is part of the temporalities of the Budulena Temple and is excludedfrom the operation of the Land Reform Law by virtue of the exclusions contained inclauses (b) to (e) in s. 66.
412Sri Lanka Law Reports[1987] 2 SriLR.'
Cates referred to:
Isaac Perera v. Baba Appu-t1897), 3 NLR 48.
Goonewardene v. Rajapakse et al-(1895) 1 NLR 217.
Canon v. Fernando-(1939) 36 NLR 352.
UkkuAmmaetalv. Jemaetal-(1949) 51 NLR2B4.
Colqutoun v. Brooks-(1889) 14 App. Cases 492, 506.
Canada Sugar Refining Co. v. R. -(1898] AC 735, 741.
Attorney-General v. R. 8. Herath-]1960) 62 NLR 145,147, 148.
APPEAL from judgment of the District Court of Colombo.
Dr. H. W. Jayewardene Q.C. with L. C. Seneviratna P. C. with Miss P. Guneratne for^ defendant-appellant.
C. R. Guneratne P.C. with Miss I. R. do Silva lor plaintiff-respondent.
Cur. adv. vult.
August 31, 1987.
DHEERARATNE, J.
On 14.8.1978 the plaintiff as Trustee of Budulena Raja Maha Vihara,Pelmadulla, filed this action against the defendant, the Land Reform ’Commission (hereinafter referred to as LRC), seeking a declaration of:title to the land called Lellopitiya Estate, in extent 213 acres 1 rood 21perches, which the Budulena Temple had leased out to a Public’Company, to wit, L.L.P. Estates Co. Ltd. for a period of fifty years from1.1.1934. The plaintiff, alleging that the LRC took possession of thisland on 1.11.1975 illegally and unlawfully, also prayed for damagesand ejectment of the LRC. The LRC admitted that it took overpossession of the land in dispute, but resisted the action on the basisthat in terms of the Land Reform (Amendment) Law No. 39 of 1975,.the land in dispute which formed a part of a larger estate of 1882acres, 1 rood and 29 perches, possessed partly as owner and partlyas a lessee by the L.L.P. Estates Co. Ltd., vested with the LRC. Thelearned District Judge gave judgment for the plaintiff and the LRC hasnow appealed.
The important and interesting point for our consideration is whetherthe land in dispute, admittedly owned by the Budulena Temple, ofwhich the plaintiff is trustee, and possessed by L.L.P. Estates Co. Ltd.,a public company as a lessee from the temple, vested yvith the LRC byoperation of the Land Reform (Amendment) Law No. 39 of 1975.This Amending law which came into operation on 17.10.1975,inserted a new part numbered IIIA, consisting of sections 42A to42M, to the Principal Law. The heading to this new part reads.
CA L.R.C. v. Rev. Ganegama Sangarakkita Them (Dheeraratne, J.)413
'Special provisions Relating to State Lands owned By PublicCompanies'. Lest I should be misunderstood. I may mention that Imake no attempt at this juncture to attach any special significance tothe use of the word 'owned1 in this heading. For the sake of clarity, Imay also mention here, briefly that the Land Reform Law No. 1 of1972 which came into operation on 26.8.1972, imposed a ceiling onownership of agricultural land, but land owned or possessed by apublic company was exempted from the operation of that law.Similarly among other categories, Viharagam land, and land held intrust under the Buddhist Temporalities Ordinance, were exemptedfrom its operation. The portion of the new section 42A(1) material tothis case reads
'Every estate land owned or possessed by a public company onthe date of which this Part of this Law comes into operation, shall,with effect from such date-
^ (a) be deemed to vest in and be possessed by theCommission'
The term 'estate land' which found no place in the Principal Lawcame to be defined in the new section 42M as follows
"In-this part of this Law. unless the context otherwise requires'estate land' means any land of which an extent exceeding fiftyacres, is under cultivation in tea, rubber, coconut or .any otheragricultural crop, or is used for any purpose of husbandry andincludes unsold produce of that land and all buildings, fixtures,machinery, implements, vehicles and things movable andimmovable, and all other assets belonging to the owner of such landand used for the purposes of such land".
Arguments presented to us on behalf of the plaintiff on the one handand the LRC on the other, centre around two major questions, viz. (i)
(i)Whether the word 'possessed' in section 42A in the AmendingLaw is wide enough to include within its ambit possession of theland in dispute by the L.L.P. Estates Co. Ltd., as a lessee.
Whether the exemption afforded to Viharagam land or land heldin trust under the Buddhist Temporalities Ordinance from theceiling on lands in the Principal Law, remains_unaffected, inconsequence of the concept of .'estate land’ brought in bysection 42M of the Arnending Law.
414
Sri Lanka Law Reports
[1987] 2 Sri LR,
It is contended on behalf of the plaintiff, that the word possessedhas been used synonymously with the word owned. To buttress this.argument our attention is drawn to the Sinhala version of theAmending Law, which uses the word aetoescj for the wordpossess and then we are referred to the gamut of Sinhalawords • ace otste&ts. dxi atdtssD.askaes. tfaS otsJow) alh too
familiar: to us, which connote proprietorship. We are also referredto the Carter's English-Sinhala Dictionary which states estoo means'belongingto'. However.it appears tome that the word odatain the popularusage, also bearsthe meaning of
possess as evidenced by'the Sinhala version of the GovernmentQuarters (Recovery of Possession) Act No. 7 of 1969 which readsdtSsd &&X3 (ckSbmso cpog Qeb c^fixs®). otssts. Besides, in the Carter'sDictionary itself, the .word oateara also . carries the meaning .'in the possession of' and as • pointed out bylearned counsel for the LRC, the word tjaa in the Sinhalaversion of the Law would be rendered superfluous, if the wordosJoex carries i the' same meaning. For the LRC it is arguedthat the words owned or possessed in section 42A should be readdisjunctively, and the word possessed should mean incontradistinction to owned, so as to include the possesson of alessee. It is contended on behalf of the plaintiff that the wordpossession here means possession animus domini. It is submitted thatthe legal possession of the land, in dispute is with the owner and not'with the lessee-the L.L.P. Estates Co. Ltd. Although this lastproposition appears to be correct under the Roman Law, it is clear thatunder the Roman Dutch Law, that concept was discarded and anotarial lease was considered a pro tanto alienation, a lessee duringthe subsistence of the lease having legal possession even to the extent ’of vindicating his right of possession. This position is amply covered by ;judicial authority that it hardly requires any labouring at my hands.,Vide-/ssac Perera v. Baba Appu (1); Gunawardene v. Hajapaksa etal, (2); Carron v. Fernando et at, (3); and Ukku Amma et al v. Jemaefa/(4).
It is contended on behalf of the plaintiff, that the land in dispute,admittedly belonging to the temple, being Viharagam land or land heldin trust under the Buddhist Temporalities Ordinance, is excluded fromthe definition of agricultural land within the meaning of section 66 ofthe Principal Law and continues to be exempted from the operation ofthe Land Reform Law. For the LRC it is argued that the Amending Lawdeals with estate land that is owned or possessed by a public
CAL.R.C. v. Rev. Ganegama Sangarakkita Them (Dheeraratne, J.)415
company and that it does not deal with agricultural land. Since thecategories of land excluded from the definition of agricultural land arenot excluded from the definition of estate land, it is contended thateven if the land possessed by a public company is Viharagam land ortrust land, by virtue of section 42 A such land would vest with the LRC.It is pointed out in support of this argument, that the Amending Law isa special piece of legislation, designed to take over estate land ownedor possessed by a pub'ic company lock stock and barrel, as a goingconcern and as an economically viable unit, without any fragmentationand loss to the economy of the country. However, as estate landsought to be vested with the LRC by section 42A, is that which isowned or possesed by a public company, we are again thrown backto the main question, as to whether the disputed land, which ispossessed by a public company by virtue of a notarial lease, is caughtup within the ambit of the word possessed in that section.
From the very submissions presented to us by either side, it wouldseem right to say that the meaning of the word possessed in Section42A is not free from ambiguity because it is capable of having morethan one meaning. I am of the view that any attempt at construing thecorrect meaning of the word possessed in section 42A could hardlybe expected to succeed by looking at that section in isolation and that’ the whole Land Reform Law should be examined to discover .thelegislative intent in using that word. Craies on Statute Law (7th<Edition) at page 100 states:-
'In Colquhoun v. Brooks (5) Lord Herschel said, ‘It is beyond• dispute; too, that we are entitled and indeed bound, whenconstruing the term of any provision found in a statute, to considerany other parts of the act which throw light on the intention of thelegislature and which may serve to show that the particular provision,ought not to be construed as it would be alone and apart from the.rest of the Act’. And Lord Davey in Canada Sugar Refining Co. v. „R(6) said.' 'Every clause of a statute. shouItTbe construedwith_ reference to the context and other clauses in the Act, so as,*aslar as i possible, to make a consistent enactment of the whole*or series of statutes relating to the subject matter."
416Sri Lanka Law Reports[1987] 2 Sri LR.
Bindra’s Interpretation of Statutes (7the Edition) gives expression tothe same view at page 303 in the following words
'It is a fundamental principle in the construction of statutes thatthe whole and every part of the statute must be considered in thedetermination of the meaning of any of its parts. In construing astatute as a whole the Courts seek to achieve two principalresults-to clear up obscurities and ambiguities in the law and tomake the whole of the law and every part of it harmonious andeffective. It is presumed that the legislature intended that the wholeof the statute should be significant and effective. Different sections,amendments and provisions relating to the same subject must beconstrued together and read in the light of each other'.
Section 42A is not the only section of the Land Reform Law in whichthe expression owned or possessed is used. In section 66 (to which Ishall refer in detail later) at several places these words appear. It isreasonable to presume that the legislature intended to give theidentical meaning to those words wherever that expression appears inthe Land Reform Law. I shall now refer to certain provisions of thePrincipal Law which throw light in discovering the legislative intent ofthe use of the word possessed. I think, I should commence byreferring to the preamble which reads as follows
'A law to establish a Land Reform Commission to fix a ceiling onthe extent of agricultural land that may be owned by persons, toprovide for the vesting of. lands owned in excess of such ceiling inthe Land Reform Commission'
By section 3(1) of the Principal Law. the maximum extent ofagricultural land which may be owned by a person was limited by animposition of a ceiling. Subsection (4) of section 3 gave an extendedmeaning to the term owned in the following manner, by creatingcertain classes of 'deemed owners’
'for the purpose of subsection (1) –
(a) where any land is subject to a mortgage, lease, usufruct, orlife interest, the mortgagor, the lessor or any person in whomthe title to the land subject to the usufruct or life interest is;and
417
CAL.R.C. v. Rev. Ganegama Sangaraktota Thero (Dheeraratne, J.)
(b) where any land is held on a permit or grant issued under theLand Development Ordinance, the permit holder, or thealienee on such grant,
shall be deemed to be the owner of such agricultural land;provided, however, that where the lessor of any agriculturalland under para {a) of this subsection is the Republic, thelessee of such agricultural land shall be deemed to be theowner".
I do not think that, there could be any controversy as to who anowner is. An owner in relation to land may be defined as a person whopossesses the threefold attributes of, firstly the right of possession,secondly the right of use and enjoyment and thirdly the right ofalienation. Vide Attorney-General v. R. B. Herath et aL (P.C.) 7. Aclose examination of subsection (4) of section 3 reveals that theextended meaning of the word owner is given to cover two broadclasses of persons. First, is the class of persons vyho have apparentlyheld themselves out as possessing the attributes of ownership. Theyare the mortgagor, the lessor and the title holder including thedominus. The second, is the class of persons who are entitled to the: possession of land, by virtue of certain alienations made by the state,but who do not possess all attributes of ownership. They are-
lessees of land from the Republic;
permit holders under the Land Development Ordinance; and
alienees on grants under the Land Development Ordinance.
It is material to observe here that although alienees on grants are.called owners according to the Land Development Ordinance, theirright of use and enjoyment and right of alienation are fettered by theconditions stipulated in the grants. Vide sections 32 to 38 of the LandDevelopment Ordinance. Perhaps that explains why the deemedownership is extended to them.
Next come the definitions'of 'agriculture' and 'agricultural land' byInterpretation section 66 which I shall set out in full
"Agriculture' includes-
(i) the growing of rice, all field crops, spices and condiments,• industrial crops, vegetables, fruits, flowers, pasture andfodder;
418Sri Lanka Law Reports'[1987] 2 Sri LR.
dairy farming, livestock-rearing and breeding;
plant and fruit nurseries;
Agricultural land' means land used or capable of being used .for agriculture within the meaning given in this Law and shallinclude private lands, lands alienated under the LandDevelopment Ordinance or the Crown Lands Ordinance orany other enactment and includes also things attached to theearth or permanently fastened to anything attached to theearth but shall exclude-
any cultivated agricultural land owned or possessed by a
public company on May 29, 1971, so long and so long only•as such land continues, to be so owned or possessed by .such company;.
any such land which'was viharagam or devalagam land on.May 29, 1971, so long and-so long only as such landcontinues to be so owned or possessed;
any such land which was owned or possessed by a religiousinstitution on May 29, 1971, so long and so long only assuch land continues to be so owned or possessed by such
• religious institution;
any such land which on May 29, 1971, constituted acharitable trust as defined in the Trusts Ordinance or aMuslim charitable trust or wakfs as defined in the MuslimMosques and Charitable Trusts or Wakfs Act No. 51 of1956, so long as and so long only as such land continues tobe owned or possessed as. such trust;
« *■
any such land held in trust on May 29, 1971, under theBuddhist Temporalities Ordinance so long and so long only assuch land is held in trust under that Ordinance.'
I
If we now look at the scheme of the Land Reform Law, it could beseen that section 3(1) imposes a ceiling on ownership of agriculturalland. 'Deemed Owners' are created by section 2(4). In the category ofdeemed owners are included persons who are in possession of land as'lessees from the Republic, permit holders and alienees on permits orgrants issued under the Land Development Ordinance. Then comesthe definition of agricultural land in section 66 and this cannot beconfined to private land in view of certain classes of deemed owners.Therefore, the type of land, the possession of which made the
CAL.R.C. v. Rev. Ganegama Sangaraktdta Them (Dheeraratne, J.)419
possessor become a deemed owner by virtue of section 3(4), came tobe matched and mirrored in the definition of agricultural land by theinclusion also within its ambit 'land alienated under the LandDevelopment Ordinance or Crown Lands Ordinance or any other ■enactment.’ The main definition of agricultural land is thenimmediately followed by the categories of land excluded from withinits ambit which are specified in paras (a) to (e). In paras (a) to (d) thewords owned or possessed appear. In my view, the word possessedin those paras has been used to reflect that type of land the.possession of which made the possessor a deemed owner in terms ofsection 3(4). That is to say that possessed in paras (a) to (d) meanspossessed by virtue of-
a lease from the Republic (under the Crown Lands Ordinance orany other enactment) or;
a permit under the Land Development Ordinance ; or
a grant under the Land Development Ordinance.
Let me demonstrate the resulting position, if a wider construction isgiven to the word 'possessed' in paras (a) to (d). If a person whoowned agricultural land in excess of the ceiling at the time the PrincipalLaw came into operation, had leased out all his land to a publiccompany, he would have the unique privilege of continuing to ownsuch extent of land during the continuance of that lease, on theground that his land is possessed by a public company and as such itis excluded from the operation of the Land Reform Law. I do not thinkthat the legislature could ever have intended such an anomalousresult. Clearly in the instant case, it appears that the L.L.P. Estates Co.Ltd., continued to possess the disputed-land, not by reason ofanything contained in the. exception clause (a), but, because thedisputed land as forming part of the temporalities of the Budulenatemple, was excluded from the operation of Land Reform Law byvirtue of the exceptions contained in clauses (b) or (e); but howeverthe position could have been certainly different, if the lessor of thedisputed land was a private person to whom the ceiling on landsapplied.
In my view the word possessed in the term 'owned or possessed' inthe new section 42A must necessarily carry the same meaningattached to it in section 66. Otherwise, it can lead to absurd results,which we must presume the legislature never intended. Take the caseof a private person, who owned agricultural land but not in excess ofthe ceiling and who had leased out ali that land to a public company
420Sri Lanka Law Reports[1987]2SriL.R.
which possessed that land along with a larger extent owned by it as.one estate land. If the interpretation sought to be given on behalf ofthe LRC is correct, such a person would lose all his land, although hedoes not own any land in excess of the ceiling. It must be presumedthat the legislature never intended such outrageous injustice anddiscrimination.
The view I have taken on the meaning of the word possesed insection 42A will be sufficent to dispose of this appeal, but. sincecertain arguments were presented to us on the hew concept of estateland introduced by section 42A, I would detain to make a a fewobservations. By the time the Amending Lavy came into operation, thePrincipal Law had already been operated. As observed, the method ■adopted by the Principal Law to exempt a public company from beingaffected by the ceiling on lands, was to exclude from the definition ofagricultural land, land owned or possessed by a public company. Sothe legislature had already declared that cultivated agricultural landowned or possessed by a public company was not agricultural land,within the meaning of section 66. Besides, within the definition ofagricultural land, no movables were included. It appears to me that theapparent object of the Amending Law is, while subjecting a public,company to the ceiling on land, to provide for vesting the excess landowned and possessed by a public company with the LRC, along with ahost of movables like unsold crops, machinery, implements, vehiclesetc. this object could not have been achieved by the legislature, by anamendment made to the Principal Law, merely deleting from thedefinition of agricultural land the exception clause (a). Hence the newdefinition of estate land in section 42A. I can hardly imagine that thelegislature ever intended to take away indirectly, the exemptionalready granted to Viharagam land or land held in trust under theBuddhist Temporalities Ordinance from being affected by the ceilingon land. The view I have taken on the meaning of.the word possessedin section 42A, would undoubtedly avoid such an inconsistency andinjustice.
For the above reasons I would dismiss the appeal with costs andaffirm the judgment of the learned trial Judge.
VIKNARAJAH, J.-l agree.
Appeal dismissed.
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