P. M. WALTER LEO et al , Petitioners, and THE LAND COMMISSIONER, Respondent

044-NLR-NLR-V-57-P.-M.-WALTER-LEO-et-al-Petitioners-and-THE-LAND-COMMISSIONER-Respondent.pdf

1955Present : Gratiaen, J., and Swan, J.
P.M. WALTER LEO cl al., Petitioners, and THE LANDCOMMISSIONER, Respondent.S. C. 141—Application for a Writ of Certiorari to quash tjiic.
DECISION MADE BY THE LAND COMMISSIONER UNDER L. R. O.
Application No. 3076.
Certiorari—Judicial act ”—Excess of jurisdiction—Burden of proof—Land lic-demption Ordinance, No. 61 of 1012 (as amended by Ordinance No. 62 of1017)—Sections 3 (1) and (1), S—“ If the Land Commissioner is satisfied ”—“ Agricultural land”.'.
If an inferior tribunal making a judicial decision has to bo " satisfied ”that a certain stato of facts exists beforo adopting a permitted courso of actionthat stato of facts must in fact exist, and tho burden is on tho tribunal, whose-jurisdiction has been challenged, to provo tho facts which givo it jurisdiction.If upon tho facts tho excess of jurisdiction is manifest, or if the material placedbeforo the superior Court is plainly insufficient to justify a conclusion that-tho limited jurisdiction has not been exceeded, certiorari will lie.
A writ of certiorari is available against tho Land Commissioner if, purportingto act under tho Land Redemption Ordinance, he orders tho compulsory acqui-sition of property that is not “ agricultural land’’within the meaning of"sections 3 (1) and 8 or that Ordinance.
Tho mero existence of coconut trees and plantain bushes on residentialproperty does not automatically convert it into " agricultural land ” within,tlio meaning of tho T.and Redemption Ordinance.
Jltavliya v. The T.and Commissioner (19-30) 52 2s. L. R. 95, not followed.
Application for a writ of certiorari on the Land Commissioner.
If. V. 2’crcra, Q.C., with A”. B. Weerasoorict, Q.C., and .S'. P. 21. Raja-dram, for the petitioners.
Walter Jayaicardcnc, with //. !■■■ de Silva, Crown Counsel, for the-respondent.
Car. adv. vult.
November 25, 1955. Gratiaen, J.—
This is an application fora mandate in the nature of a writ of certiorari'quashing an order dated 9th January 1953 made by the Land Com-missioner for the acquisition of a land, together with the buildings standingon it, under the Land Redemption Ordinance No. 61 of 1942 (as amendedby Ordinance No. 62 of 1947). The petitioners are the owners of thonropertv (24 acres in extent), and the purported acquisition is resisted onthefundamental ground that it is not :c agricultural land.” within llie–meaning of the Ordinance.
The first question which arises is whether certiorari can ever lie in casesof this kind. This depends on the validity of Sir. Walter Jaya vardene’ssubmission that the Commissioner’s functions under the Ordinance arepurely administrative in character. The Commissioner is admittedlyempowered “ to determine questions affecting the rights of subjects ” butit is denied that in the process of determining those questions he is under" a duty to act judicially ” ; accordingly, (so the argument proceeds) thisCourt cannot control his administrative acts by way of certiorari orprohibition.
The Land Redemption Ordinance certainly empowers the Commissionerto make decisions which interfere with rights of private property, resultingin the owner being divested compulsorily of his title. The initial test ofamenability to certiorari is therefore satisfied. R v. The ElectricityCommissioners l. The question is whether the exercise of administrativepowers resulting in an order for acquisition docs involve, at leastat the preliminary stages, the performance of a judicial function. Letus therefore examine tho process by which t ho Commissioner’sultimate decision is reached.
The first limitation placed on the Commissioner’s statutory powers isthat no property other than " agricultural land ”, as defined in sectionS of the Ordinance, is liable to bo acquired. That is to say, the Com-missioner cannot take over on behalf of the Crown any property which,at the time of the acquisition, is not " used or capable of being usedwholly or mainly for the purpose of agriculture … ” (I have omitted
the other words of definition asthey have no bearing on the present case).
A second limitation is imposed by section .3 (1) (as amended). TheCommissioner must be ” satisfied ” that the *‘ agricultural land ” soughtto be acquired had been :
either {a) ” sold in execution of a mortgage decree whether or not thatland was subject to the mortgage enforced by the decree ;
or (b) ‘‘ transferred by its owner or bis executors or administratorsto any other person, or to the heirs, executors, or adminis-trators of any other person in satisfaction or part satis-faction of a debt which was duo from (hat ow ner or hispredecessor in title to that person and which was securedby a mortgage of that land subsisting immediately priorto the transfer;
or (c) “ transferred by its owner or his executors or administrators toany other person at the request of-a mortgagee of t hat-land, in satisfaction or part satisfaction of a debt whicl.was due from that owner or the predecessor in title t<that mortgagee and which was secured by a mortgageof that land subsisting immediately prior to the transfer. ”
(N.B.—There follows a provision exempting ” undividedshares ” unless they had been converted subsequently intodivided allotments.)
1 11924) 3 K.B. 171 at 294.
It. is only after the Commissioiier has satisfied himself that any• " agricultural land " answers one or other of the descriptions specifiedin section 3 (1) that lie is empowered to decide whether such land “ shouldor should not be acquired Section 3 (4) declares that, " subject to anyregulation made in that behalf”, the last of these vital questions “ shallbe determined by (him) in the exercise'of his individual judgment, andevery such determination shall.be final. ” .One observes that, by wavof contrast, no statutory sanctity, attaches to his preliminary decisionthat the property is of a kind which lie has authority to acquire.
It is apparent from this analysis that the Commissioner’s final decisionunder section 3 (4) is purely administrative in character, and does notinvolve the excrcise.of judicial ov even “ quasi-judicial ” functions. He isguided at that stage solely by considerations of policy and expediency andby his “individual judgment”, so-that- the Courts'have no power tointerfere with that discretion by certiorari. This has been made clear bythe House of Lords in Franklin v. The Minister of Town and CountryPlanning l, and by the Privy Council in a recent ease from Ceylon.Kakkuda All’s case 2.
The Commissioner’s immunity from certiorari in respect of that part ofhis statutory powers does not, however, conclude the question before us.The notable judgment of Parker J. in R r. Manchester Legal AidCommittee 3 establishes that the- writ docs lie in cases where a personvested with statutory authority to determine “ questions affecting therights of subjects ” was under “ a-duly to act judicially in the course ofreaching a final decision which-is itself-purely administrative”. Thepreliminary issues on which the Commissioner must satisfy himself undersection 3 (1) have to be decided “ solely on the facts of the particular case,solely on the evidence before (him) and apart from any extraneousconsiderations. In other words, (lie) must act judicially, not judiciously.”(page 431). Parker J. has also explained, by reference to the earlierauthorities, that the judicial'proqeSs,t wheii invoked for the purpose ofreaching a consequential administrative decision, does not necessarilyrequire that there should even be a'lis (in tlie strict sense of the term) ora “ duty to hear two sides In some eontexts.tlie tribunal has authorityto act only on its own knowledge, and information ; in others it maj' actex parte. The true test is whether, as Sir Hartley Shawcross argued,(see page 422), the tribunal n'uistVE apply’a legal mind” in reaching a
decision “ based solely on the facts; of tfie particular'case. ”
* '
One lias only to examine thc.prqyisions of sec tion 3 (1) (a), (b) and (c) toappreciate that the .issue whether; any “ agricultural land ” is in factqualified to be made. tlie.subject of an order for acquisition can never beanswered correctly except by' application of the judicial process, and■without regard to 'questions of arlininisfrative policy or expediency.Sometimes the problem js simple enough, but on other occasions itssolution may present formidable difficulties even to persons trained in thelaw. Consider, for instance,-the. question-under section 3 (1) (b) which
' (101S) A. C. S7., ..
– {1950) 51 X. L. /?. 457, also reported in (it/51) A. C.'GG.
3 (4952) 2 K. B. 413.
-■arose for decision'in Perera v. Unantenne rand the ever-recurring issue asrto" whether a purported conveyance by way of sale conStitutcs in truth.a mortgage or a trust. Sethuica v. Ukku, 2. X am perfectly satisfied, that,-at the preliminary stages of the proceedings under the Land Redemption-Ordinance, the Commissioner’s functions (so far' from being' purely.administrative)' are' exclusively of a'judicial character. 'Whenever' hemakes a wrong decision under section 3 (1) with a view to making a-consequential order under section 3 (4) he oversteps the limits "of his-.statutory jurisdiction.
Mr. Walter Jayawardcne quite properly invited us to consider whether-a decision under section 3 (1) can bo quashed by certiorari if the Com-missioner himself was “ satisfied ” (even erroneously) that the property■fell within one of the descriptions specified in paragraph (a), (6) or (c) of^section 3. I am awaro that Gunasekara J., sitting alone, was inclinedto take tliis view in Bandiya v. The Land Commissioner 3, but, withrespect, he' could not have had the benefit of as complete an argument aswe have enjoyed in tho present case. As Lord RadclifFe remarked inNakkada Ali’s case (supra, at page 492), it would bo a very unfortunatething if tho decision of Licersidge's case * camo to be regarded as laying-down any general rule as to the construction of such phrases Indeed,Lord Wright conceded in Liversidge’s case that, if a person must besatisfied ” on any point (even for the purposes of an administrative• decision) the word at least means “ reasonablj’- satisfied ”, and “ cannotimport an arbitrary' or irrational state of being satisfied. ” A fortiori, if.an inferior tribunal making a judicial decision has to be “ satisfied” that.a certain state of facts exists before adopting a permitted course of action,that state of facts must in fact exist. Tho objective test is especiallynecessary in a context where a public officer (not required to possess a legal-training) purports to give a decision which, through misdirection, would-defeat the intention of the legislature by extending the .categories ofprivate property liable -to compulsory acquisition….
The petitioners do not challenge the Commissioner’s decision that thoproperty sought to bo acquired had at an earlier stage been purchased bytheir vendors “ in execution of a mortgage decree ” within the meaning• of section 3 (1) (a). But they protest in limine that, at tho time of thepurported acquisition, tho property was not “ agricultural land ” as-defined in section S ; in other words, an essential condition precedent tothe Commissioner’s power to assume'jurisdiction under section 3(1) does:not exist.‘.
The scheme of the Ordinance has alrpady been explained : (1) a certain.state of facts (namely, tho “ agricultural’ ” character of the land) must existBefore (2) tho Commissioner can' enter upon his jurisdiction to docido■whether such land falls within o’no of tho alternative categories so as to•qualify it for acquisition. Not until then’is ho empowered (3) to decide'that the land so qualified ought to bo acquired.' 'If conditions (I) and (2)-aro objectively satisfied, his'administrativedecision at stage (3)isun-
.assailable. But, if condition(1) .doeshotexist-,he has acted inexcess
1 (J9S3) 54 Ar. L. R. 457.'* (1950) 52 _V. L. R.95.’
* (1955)'5527. L. R. 337..* (1942) A. C. 2C6.k, .
of jurisdiction and his decision becomes amonablo to certiorari -so also if condition (1) is satisfied, but if ho has reached a wrong decision'as to condition (2)..
Tho present case is concerned only with tho question whether condition.(1), namely, tho " agricultural ” character of tho land, is objectivelysatisfied. “ I'fo tribunal of limited jurisdiction can give itself jurisdiction,by a wrong decision on a point collateral to tho merits of tho case upon-which tho limits to its jurisdiction depends.” Banbury v. Fuller1 ;Jl v. Commissioner of Income Tax This principle was recently re-affirmed by Lord Goddard C.J. in his principal judgment in R v. Fulham,.Hammersmith and Kensington Rent Tribunal3 :
“ If a certain state of facts lias to exist before an inferior tribunalhas jurisdiction, they can inquire into the facts in order to decide-whether or not they have jurisdiction but cannot give themselves juris-diction by a wrong decision ztpon them ; and this Court may, by mcans-of proceedings for certiorari, inquire into tho correctness of the-decision. ”
For these reasons, it is our duty to be satisfied that the property to be-affected by the order for acquisition was in fact “ agricultural land ”at the relevant point of time.
In tho Fulham Rent Tribunal Case (supra) Devlin J. explained that-,,in a situation of this kind, the burden is on the tribunal whose jurisdic-tion has been challenged “to prove the facts which give it jurisdiction(page 10). The same learned Judge again emphasised in ChristopherBrozcn, Ltd.’s case 6 that the the jurisdiction of “ inferior tribunals ofany sort ”, when challenged, “ has to be proved affirmatively Ifupon the facts, tho excess of jurisdiction is manifest, or if the evidencebefore the superior Court is plainly insufficient to justify a conclusionthat the limited jurisdiction has not been exceeded, certiorari will lie.'On the other hand, the dispute may turn on a question of fact aboutwhich there is a conflict of evidenee : in that event the Court will generallydecline to interfere by way of certiorari leaving it open to tho aggrievedparty to challenge the jurisdiction of an inferior tribunal in a regular-action where the issue can be more conveniently disposed of.
. 3 11951) 2 K.B.l at S.
* (1951) 1 K. B. S at 73.
The Land Commissioner who made the order for acquisition on OthJanuary 1953 sought to justify his assumption of jurisdiction under-the Ordinance by stating very baldly, in his affidavit dated 30th No–vember 1954, that “upon careful consideration of the material before(him) he uas satisfied that the land was agricultural land within thomeaning of the Ordinance.” What that material was, has notbeen disclosed to us ; and I have already explained that themere fact that he was “ satisfied ” (which is conceded) did not vest himwith jurisdiction if in fact the land was not “ agricultural ” in character.The only other evidence relied on by the Commissioner is the affidavit-of the Superintendent of an estate in Lunuwila who described the condi-tion of tho property when he visited it in April 1949—that is to say,
1 (JS53) 9 Ex. L>. 29 at 35.* (1SSS) 21 Q:B. D. 313.
7A niontJis before the petitioners purchased it-, and nearly 4 years before-t-he order for acquisition was made. On that occasion the propertyconsisted of a substantial dwelling house, a brick well, a temporary^'latrine, and a garden containing “ 181 coconut trees of various ages and"severai-plantain bushes.”-*
As against this, there is the uncontradicted evidence of the petitioners -that they purchased the premises on 9th December 1949 for Rs. 15,000 •in order to make it their place of residence. They incurred an additional *expenditure of Rs. 2,000 in improving the house and constructing a.garage for their motor car, and they have lived there ever since.
Can the entire property, in its improved condition, fairly bo de-scribed as “agricultural land ” ? It is common knowledge that people-in Ceylon who reside outside congested urban areas generally preferthe amenities of spacious grounds on which some agricultural and gardenproduce can bo cultivated. The question is always, of course, one of’degree, but it is certainly quite wrong to say that the mere existenceof coconut trees and plantain bushes on a man’s residential propertyautomatically converts it into “ agricultural land ” within the meaningof the Land Redemption Ordinance. The extent so cultivated maywell be regarded as ancillary to the main use of the property for purposes-of residence. It would bo straining the words of definition beyond .reasonable limits to say in the present case that the petitioners use theirplace of residence, which is slightly over 2 acres in extent, “ wholly ormainly ” for the purpose of a business which is “ agricultural AnOrdinance designed to interfere so seriously with the rights of privateproperty should, I think, receive a strict interpretation.
Can it even be said that section S is satisfied because the property,,though mainly residential in character at the relevant date, was at least-“ capable of being used wholly or mainly for the purpose of agriculture ” ?That again is a question of fact. In the present case, at any rate, thesubstantial house and its appurtenances are clearly not of the kindwhich would be economically appropriate for occupation by, shall we say,the watcher in charge of a small agricultural holding consisting of IS1coconut trees and some plantain bushes. Tlie buildings cannot there-fore be regarded as potentially ancillary to “ agricultural land ” of such-modest proportions. In the result, the entire property in its presentcondition is beyond the reach of the Commissioner’s statutory powers.
On the material placed before us, there is manifestly no evidence-from which we can fairly conclude that the Land Commissioner did notexceed the limits of his jurisdiction under section 3 (1).. His consequential'order for the petitioners’ residential property as “ agricultural land”cannot therefore be allowed to stand. The order dated 9th-January1953 must be quashed, and the Commissioner must-pay the costs oilthis application which I would fix at Rs. 525.
Swan*, J.—I agree.
Application allowed.