<_r. tf. A. SILVA, J.—Singho Mahatmaya v. The Land Commissioner
1984 Present: H. N. G. Fernando, J., and G. P. A. Silva, J.M. E. SINGHO MAHATMAYA, Appellant, and THE LAND COMMIS-SIONER, RespondentS. C. 148/1961—D. G. Colombo, 7621
Land Redemption Ordinance—Section 3—Acquisition of land thereunder—Remedyof owner—Land Commissioner not a corporation sole—Immunity from beingsued nomine officii—Certiorari.
In an action inel.itutod against tho Land Commissioner for the purpose ofobtaining from tho Court a declaration that a certain land was not liable to beacquired in terms of the Land Redemption Ordinance—
Held, (i) that tlio Land Commissioner cannot be regarded as a corporation soleand, therefore, cannot bo suod nomine ojfficii.
(ii) that the appropriate remedy of the plaintiff was by way of an applicationfor Certiorari.
Observations on the procedural difficulties which would arise in practice ifthe Land Commissioner is sued in any case eo nomine.
.^^.PPEAL from a judgment of tho District Court, Colombo.
V. Perera, Q.G., with Nimal Senanayake and Bala Nadarajah, forthe Plain tiff-Appellant.
Mervyn Fernando, Crown Counsel, for the Defendant-Respondent.
Cur. adv. mdt.
March 17, 1964. G. P. A. Silva, J._
Tho plaintiff-appollant in this case brought an aotion against thodofondant-rospondont, tho Land Commissioner, for the purpose of ob-taining from the Court a declaration that a certain land in Plan No. 86,dated 14th July, 1946, was not liable to be aoquired in. terms of the LandRedemption Ordinance. The respondent took up the position, inter alia,that the action could not be maintained against him, as it had been insti-tuted against the Land Commissioner, nomine officii. When the casewas taken up for trial, the learned District Judge, as a preliminary issue*considered the question, whother tho above plea put forward by the res-pondent was sound, and gave his judgment, answering this issue in thenegative, and dismissod tho appellant’s aotion with costs. Tho presentappeal is from this order.
G. P. A. SILVA, J.—Singho Mahahnaya v. The Land Commissioner 95
In dismissing the plaintiff’s action, tho loarned District Judge wasided by the Privy Counoil deoision in the case of The Land CommissionerLadamiUtu Pillai1 in which Their Lordships of the Privy Council tooke view, disagreeing with the decision of a Divisional Bench of this Court,at the Land Commissioner cannot be regarded as a corporation sole,id that therefore be could not be sued nomine officii. In the Divisionalenoh judgment of this Court, my Lord tho Chief Justice raised aumber of cogent difficulties which would arise in practice, if the Landjornmissioner is sued in any case eo nomine. Their Lordships in thejrivy Council unfortunately refrained from pronouncing upon thesejrocodural difficulties in view of tho absence of the Attorney- General as' party. If I may say so with respect, tho difficulties enumerated by myJiOrd the Chief Justice are very roal difficulties, which either parl y wouldjiave to face in a litigation of this nature. On the one hand, the successfulvarty will not be able to enforce a decree against the Land Commissioner■M the event of the holder of the office changing, retiring or dying. OnIhe other hand, if a successful Land Commissioner who is sued eo nominetnd who obtains, for instance, a docroo for costs after thodismissal of anyvetion brought against him, should dio after tho docree, his doath willleave the Government Department without any means of enforcing thodecree for costs. For, there would be something inherently wrong inthe legal representative of the deceased Land Commissioner recoveringcosts on behalf of a Government Department. If their Lordships of thePrivy Council found it possible to pronounce some judgment in regardto these obvious and real difficulties, it would have been most helpfulto this Court which is obliged to follow their decision in regard to theirpronouncement that the Land Commissioner is not a corporation sole.For, these difficulties would equally exist whether the relief sought by alitigant is by way of a regular action or by way of Certiorari which,according to thoir Lordships, would bo tho appropriate romody. I donot wish to say any moro on this aspect of tho mattor, as I soo that thisappeal can be decided without going into that question in viow of thedeoision of the Privy Council that, in a case of this nature, the appropriateprocedure for a person aggrieved by an order for acquisition, would beby way of an application for a writ of Cortiorari, as was done in the caseof Walter Leo v. The Land Commissioner 2. In that case the LandCommissioner purported to aoquire some land under the provisions of theLand Redemption Ordinance No. 61 of 1942 (as amended by OrdinanceNo. 62 of 1947), which empowered him only to aoquire “ agriculturalland ” as defined in seotion 8 of the Ordinance. The acquisition wasresisted on the fundamental ground that it was not “ agricultural land ”within the meaning of the Ordinance. For the purpose of deciding whetherCertiorari would lie, the question that arose was whotber the commis-sioner’s functions wero of a judicial character. It was held that thedecision bad a judicial character and that, therefore, a writ of Certiorarilay. It is to be noted that what their Lordships said in the Privy
» (1955) 57 N. L. R. 178.
O- P. A. SILVA, J.—Sing!ia Mahatmaya v. The Land Oommiaaioner
Council in Ladamuttu’s case was that, if the authority of the Land Com-missioner to make a determination under seotiou^ f the Land Redemp-tion Ordinance (mistakenly called the Land Development Ordinance)is challenged the appropriate procedure was by way of an application forCertiorari. They did not say that Certiorari was the more appropriateremedy. It would therefore seom, in viow of this decision, that theappollant would, in any event, be unable to maintain this action in theDistrict Court for a declaration that tho laud in question is not liable to beacquired under the Land Redemption Ordinance and for the other reme-dies asked.
The appellant oould not therefore have succeeded in the action evenif the preliminary issue, as to whether the Land Commissioner could besued nomine officii, was decided in the appellant’s favour. The appeal istherefore dismissed with costs.
H. N. G. Fernando, J.—I agree.
M. R. SINGHO MAHATMAYA, Appellant, and THE LAND COMMISSIONER, Respondent