005-SLLR-SLLR-1985-V1-PERERA-v.-PEOPLE-‘-S-BANK-LAN-REDEMPTION-DEPARTMENT-AND-OTHERS.pdf
PERERA
v.PEOPLE'S BANK LAND REDEMPTION DEPARTMENTAND OTHERS
COURT OF APPEAL. '
TAMBIAH, J. AND MOONEMALLE, J.
C. A. APPLICATION No. 463/82.
SEPTEMBER 20. 1984. '
Writs of Certiorari and Mandamus – Conditional transfer of undivided share ofland – Application for acquisition of land by People 's Bank under section 71 of theFinance Act No. 11 of 1963 – Decision of People's Bank to acquire — Will certiorariand mandamus lie 7
The petitioner having failed to obtain a re-transfer of an undivided share of landconveyed by her late husband on a deed of conditional transfer to the 2nd rejpondentwithin the pqjiod stipulated in the deed, made an application fa the People's Bank iohave the said undivided share of the land acquired for her under the provisions of s. 71of the Finance Act. In the meantime the 2nd respondent sold the land to the 3rdrespondent. After an inquiry at which petitioner was present the Bank informed her thatit had decided not to acquire the land. The reason for this decision was that as a matterof policy the Bank does not proceed to acquisition where the interests to be acquiredare undivided and the applicant is not in possession.
On an application for certiorari and mandamus attacking the validity of the decision notto acquire and also alleging bias on the part of the Bank –
Held-
jl) In arriving at its decision under s. 71 of the Finance Act No. 11 of 1963 the Bankhas to address itself to three questions : . , .
Is the land one which the Bank is authorized to acquire 7
Does s. 71 (2) restrict the right of. the Bank to acquire 7.
Will the Bank in the exercise of its discretion acquire the land 7-
Section 71 (3) of the Finance Act provides that the determination of the Bank shall befinal and conclusive and shall not be called in question in any court but this immunityattaches only to decisions on the third question and not on the 1 st and 2nd questionswhich involve a quasi-judicial process or a process closely analogous to the judicial and•affect the rights of subjects and are accordingly subject to judicial review.
»
The determination not to acquire involved the third question and was decided inaccordance with the policy of the Bank not to proceed to acquisition where the interestsinvolved are undivided shares in lands and the applicant is not in possession. This is apurely administrative decision guided by considerations of policy and not subject toreview by way of certiorari and mandamus. Moreover the decision not to acquire hadbeen made within jurisdiction and in terms of s. 71 (3) read with s. 22 of theInterpretation Ordinance and is final and conclusive and cannot be questioned in anycourt.
' (3) The allegation of bias is based on the single circumstance that the 3rd respondentis an employee of the 1st respondent. This is insufficient to establish bias.
Cases referred to:
. Kanagasabapathy and Another v. The People's Bank and Two Others. S.C.Application No. 124/75 – S.C. Minutes of 27.8.1976.
Chandralatha Wijewardena v. The People's Bank and Two Others. S.C. Appeal No.3/80 C.A. Application No. 597/76.
Simonv. Commissioner of National Housing (1972) 75NLR471.
APPLICATION for writs of certiorari and mandamus.
H. M. P. Herath for the petitioner.
•i •
Dr. J. A. L. Coorey with M. 8. Peramuna tor the 1 st respondent.
, . Fan Mustapha for the 3rd respondent
Cur. adv. vult.
Octobers, 1984.
, TAMBIAH, J.
The petitioner's late husband was the owner of the land calledKongahawatta and by deed No. 6652 of 10.7.1954 transferred theland to the 2nd respondent subject to the condition that on paymentof Rs. 2,000 within two years from the date of execution of the saiddeed, the vendee shall transfer the land to the vendor. The land wasnot redeemed within the said period of two years. The petitioner madean application on 14.7.1980 to the 1st respondent to acquire the
said land. The petitioner and the 2nd respondent were noticed by the1 st respondent to attend an inquiry. Meanwhile, the 2nd respondentsold the land by deed No. 1.216 of 22.8.1980 to the 3rd respondent.At the inquiry, only the petitioner was present. The 3rd respondentinformed the 1 st respondent by letter that what he bought on deecCNo. 1216 is an undivided share of the land.. By letter dated27.11.1981, the 1st respondent informed the petitioner that theBoard of Directors have decided not to acquire the land. It is thisdecision not to acquire the land that the petitioner seeks to quash oncertiorari. The petitioner also wants this court to issue a writ ofmandamus ordering the 1 st respondent to acquire the said land.
The 1 st respondent has annexed to its statement of objections the'document {R 1) which gives the reason why the 1st respondent*decided not to acquire the said land – 'the Bank on principle does notacquire lands which are undivided when the balance portion is nowowned by the claimant (2nd respondent). Further the possession ofthis land is with the claimants.” In short, on principle, the Bank doesnot acquire land which is undivided and where possession is not withthe applicant.
S. 71 (1) of the Finance Act No. 11 of 1963 as amended by LawNo. 16 of 1973 authorises the Bank to acquire premises which weresold or transferred in circumstances set out in sub-paragraphs (a) to(d). Deed No. 6652 was a conditional transfer and the transactionfalls within the scope of sub-paragraph (d). s. 71 (2) limits theauthority of the Bank to acquire the premises which under s. 71 (1) ithas authority to acquire, s. 71 (3) provides that 'the questioo whetherany premises which the Bank is authorised to acquire should or shouldnot be acquired shall be determined by the Bank and every suchdetermination of the Bank shall be final and conclusive and shall not b»called in question in any court'.
As was pointed out by Vythialingam, J. in Kanagasabapathy andAnother v. The People's Bank and Two Others (1), there are threaiquestions for the decision of the Bank, viz., (1) is the land one whichthe Bank is authorised by s. 71 (1) to acquire ? (2) if so. does s. 71(2) restrict the right of the Bank to acquire ? (3) if so. should the landbe acquired ? Vythialingam, J. observed-
'While the decision on the third question whether the propertyshould or should not be acquired and the consequent determinationby the Bank to acquire the property may be a purely administrative
decision guided at that final stage by considerations of policy andexpediency and cannot be questioned by a Court of Law,nevertheless, the Bank’s decisions on the preliminary issues on• which the final determination is based, have to be arrived at solely’ on the facts of the case, by an assessment and evaluation of theevidence and is a quasi-judicial process or a process closelyanalogous to the judicial and affects the rights of subjects and istherefore subject to review by the Courts.'
Sharvananda, J. expressed the same views in ChandralathaWijewardena v. The People's Bank and Two Others (2):
'If the Bank is satisfied that sub-section (1) vests it with authorityto acquire the premises and that the restrictions in sub-section (2)do not prohibit the acquisition, than the third question is whether, inthe exercise of its discretion, the premises should or should not beacquired ; and if the Bank decides to acquire the premises, undersub-section (3) it makes a determination accordingly. It is thatdetermination that the premises which the Bank is authorised toacquire under sub-sections (1) and (2) should or should not beacquired that is final and conclusive and cannot be contested in anyCourt. Therefore, if the Bank determines that it should acquirepremises which it is not authorised to acquire under sub-section (1)which it is inhibited from acquiring by sub-section (2), the conditionsof section 71 (3) are not satisfied and the determination will not befinal and conclusive and no immunity will attach to suchdeterngination. '[he Bank can make a determination which has thestamp of finality only in respect of premises that are covered by theprovisions of sub-sections (1) and (2). The preliminary, question asto whether the Bank is authorised to acquire the premises in termsof section 71 (1), or even when so authorised whether it isprohibited from so acquiring by the provisions of section 71 (2) isnot one for the final decision of the Bank and can properly becanvassed in a Court. Section 22 of the Interpretation Ordinance asamended by Act No. 18 of 1972 does not bar the agitation of thatjurisdictional question.’
The authority of the Bank to acquire premises includes the authorityto acquire an undivided share of the premises (See, ChandralathaWijewardena's case, supra). It is not the petitioner's case that the 1 strespondent Bank had no jurisdiction to acquire the premises inquestion. The petitioner's application is presented on the footing that
the Bank has jurisdiction to acquire and that it must acquire thepremises. The Bank has decided hot to acquire as on principle it doesnot acquire lands which are undivided and v^ucjh are not in possessionof the applicant. This decision was one made under s. 71 (3),*a*decision entirely within the discretion of the Bank, a purelyadministrative decision and a decision guided by considerations, ofpolicy. As such, the decision not to acquire cannot be the subject of awrit of certiorari or of mandamus. Moreover, the decision not toacquire has been made within jurisdiction and in terms of s. 71 (3)read with s. 22 of the Interpretation (Amendment) Act, is final andconclusive and cannot be questioned in any Court.
The petition also seeks to quash the decision of the 1 st respondeatnot to acquire the land on the ground of bias towards the 3rdrespondent. The 3rd respondent, he states, is an employee under the1st respondent.
The 3rd respondent in his affidavit admits that he is employed as aClerk in the Chief Accountant's Department of the 1st respondent,but, states that he was unaware of any application made by thepetitioner to the 1 st respondent until he received a notice from thisCourt. He denies that the 1st respondent was biased towards him.
The 1 st respondent in its statement of objections, and the Manager,Land Redemption Department in his affidavit, have both stated thatthe decision not to acquire the land was made in the exercise of the1st respondent's discretion, as the premises arp undivided and thepossession is not with the petitioner. The 3rd respondent works in theChief Accountant's Department of the Bank while land redemptionmatters are handled by the Land Redemption Department.•
In Simon v. Commissioner of National Housing (3) it was held that adecision of the inquiring officer is not liable to be quashed on theground merely of the reasonable suspicion of the party aggrievedunless it is proved that there was a real likelihood that the inquiryofficer was biased against the party aggreived.
The only material before this Court on which the allegation of bias isbased is a single circumstance, namely, that the 3rd respondent is anemployee under the 1st respondent. The 1st respondent's position isthat it was guided purely by considerations of policy in making thedecision not to acquire. The 3rd respondent’s position is that he was
unaware of the acquisition proceedings until be received notice fromthis Court, and that he works in the Accounts Department which hasnothing to do with land redemption matters. This single circumstance,• viz., that the 3rd respondent is an employee under the 1strespondent. is insufficient to establish the allegation of bias.
The application for writs is refused. However, there will be no costs.
MOONEMALLE, J. – I agree.
Application dismissed.