THE ATTONEY-GENERAL , Appellant, and R. B. HERATH and another, Respondent

034-NLR-NLR-V-62-THE-ATTONEY-GENERAL-Appellant-and-R.-B.-HERATH-and-another-Respondent.pdf


The Attorney-General v. Herath
145
[In' thlb PurvY Cotjnch»]
1960 Present: Lord Tucker, Lord Keith of Avonholm, Lord Jenkins,Lord Morris of Borth-y-Gest, Mr. L. M. D. de SilvaTHE ATTORNEY-GENERAL, AppeDant, and R. B. HERATHand another, RespondentsPrivy Council Appeal No. 20 of 1959S. G. 152—JD. C. Colombo, 7,184
Ownership—Meaning of term—Paraveni nilakaraya—His right to be regarded as anowner—Land Redemption Ordinance, No. 61 of 1942, s. 3—-Meaning of word“ owner ” therein—Buddhist Temporalities Ordinance, s. 27—Service TenuresOrdinance, No. 4 of1870, ss. 2, 24, 25—Land Acquisition Act, No. 9 of 1950,s. 5 (1) (3)—Evidence Ordinance, s. 114.
The rights of an owner under the general law of Ceylon are comprised underthree heads, namely, (1) the right of possession and the right to recoverpossession ; (2) the right of use and enjoyment ; and (3) the right to alienate.These three factors are all essential to the idea of ownership but need notall be present in an equal degree at one and the same time. w
A -paraveni nilakaraya is an “ owner ” within the meaning of the term'in section 3 of the Land .Redemption Ordinance. The word “ owner ” in theLand Redemption Ordinance means a person possessing the attributes ofownership under the general law.
Sub-section 4 of section 3 of the Land Redemption Ordinance does not makefinal any decision made by the Land Commissioner in excess of the powersconferred by sub-section (1).
Under section 5 (1) of the Land Acquisition Act No. 9 of 1950 the declarationof the Minister’s decision to acquire a land need only be in one language, althoughthe publication of the declaration has to be in three languages. Further, thepresumption that “ official acts have been regularly performed ” (section 114of the Evidence Ordinance) is applicable as to due direction by the Minister ordue publication in the Gazette,
_^jPPEAIi from a judgment of the Supreme Court reported in(1958) 60 N.L.R. 193.
– E. F. N. Gratiaen, Q.C., with. Walter Jayawardena, for the .appellant(1st defendant).
Sirimevan Amerasinghe, for the 1st respondent (plaintiff).
Cur. adv. vult.
Lxn
J. N. B, 1162S—1,995 (9/60)
146
MR. L. M. D. DE SIXTY A—The Attorney-General v. Herath
July 25, 1960. [Delivered by Mb. de Silva]— .
Tlie first respondent instituted this action in the District Court ofColombo against the Attorney-General of Ceylon (the appellant on thisappeal) and the second respondent for a declaration of title to, andpossession of, two parcels of land which had belonged to the first res-pondent and which had been acquired by the Crown under the provisionsof the Land Redemption Ordinance No. 61 of 1942, while in his possessionand ownership. After acquisition the Crown had placed the second res-pondent in possession. The first respondent’s contention was" that theacquisition had been in excess of the powers conferred by the LandRedemption Ordinance. The Attorney-General denied the contentionand also raised certain other defences.
The District Court dismissed the action. This decision was reversedon appeal by the Supreme Court (the principal judgment was delivered byBasnayake, C.J.) which upheld the first respondent’s contention, rejectedthe other defences and directed that a decree be entered in the firstrespondent’s favour. "From that order the Attorney-General now appeals.
The scheme of the Land Redemption Ordinance, broadly stated, wasto empower the Crown compulsorily to acquire agricultural land whichhad been lost on or after the first day of January, 1929, by a mortgagorin circumstances stated in the Ordinance and thereafter to place him (orcertain other persons in a defined category) in possession of the saidland under the provisions of another Ordinance namely the Land Develop-ment Ordinance.
Section 3 of the Land Redemption Ordinance is to the followingeffect:—
“ 3.(1) The Land.Commissioner is hereby authorised to acquire
on behalf of Government the whole or any part of any agriculturalland, if the Land Commissioner is satisfied that that land was, at anytime before or after the date appointed under section 1, but notearlier than the first day of January, 1929, either—
sold in execution of a mortgage decree, or
transferred by the owner of the land to any other person insatisfaction or part satisfaction of a debt which was due from theowner to such other person and which was, immediately prior to suchtransfer, secured by a mortgage of the land. ”
Sub-sections 2 and 3 have no bearing on the present appeal.
<c (4) The question whether any land which the Land Commissioneris authorised to acquire under sub-section (1) should or should notbe acquired shall, subject to any regulations made in that behalf,be determined by the Land Commissioner in the exercise of hisindividual judgment; and every such determination of the LandCommissioner shall be final. ”
]VLR. L. M. D. D35 SILVA—The Attorney-General v. Tlerath.
147
A part of sub-section 5 is
“ (5) Where the Land Commissioner has determined that any landshall be acquired for the purposes of this Ordinance, the provisionsof the Land Acquisition Ordinance, subject to the exceptions, modifi-cations and amendments set out in the First schedule, shall applyfor the purposes of the acquisition of that land. ”
The rest of sub-section 5 has no bearing on the present appeal.
The Land Commissioner was the officer entrusted with theadministration of the Land Redemption Ordinance.
The first respondent bad derived title in the following manner from thesecond respondent who had held the lands as a “ paraveni nilakaraya ”under a system of tenure prevalent in the Kandyan Provinces of Ceylonwhere they were situate. The second respondent had on the 26th May,1926, mortgaged the lands to one Allis. Thereafter the second respondentin satisfaction of the debt secured by the mortgage transferred theproperty to Allis. Title passed from Allis to the first respondent under anundisputed chain of title. The first respondent contends that a “ paraveninilakaraya ” is not an “ owner ” within the meaning of the term insection 3 (vide preceding paragraph) of the ordinance and that therefore,the terms of that section not being satisfied, the Land Commissionerhad no authority to acquire the land. The appellant contends that aparaveni nilakaraya is an “ owner ” within the meaning of that wordin the ordinance. This is the main point in dispute between the parties.
The word “ owner ” in the Land Redemption Ordinance, in the absenceof definition in the Ordinance itself, must mean a person possessing theattributes of ownership under the general law at the time the Ordinancewas passed subject to such modification, if any, as may be imposed uponit by the context.
Lee (Introduction to Roman Dutch Law 5th edition p. 121) in a chapterheaded “ The Meaning of Ownership ” reflecting the views of Van derLinden says :—
“ Dominion or Ownership is the relation protected by law in whicha man stands to a thing which he may : (a) possess, (b) use and enjoy,
alienate. The right to possess implies the right to vindicate, thatis, to recover possession from a person who possesses "without titleto possess derived from the owner. ”
Grotius in Rook 2 chapter 3 of his Introduction to the Jurisprudenceof Holland says :—
“ Ownership is the property in a thing whereby a person who hasnot the possession may acquire the same by legal process. ”
Commenting on this Lee says (p. 121) “ Grotius selects this right as themost signal quality of ownership
148MB. L. M. 3D. X>33 SILVA—-2*he Attorney-General v. Sterath
Maasdorp (Volume 2 p. 27) says the rights of an o^ner are “ comprisedunder three heads, namely, (1) the right of possession and the right torecover possession ; (2) the right of use and enjoyment; and (3) the rightof disposition He goes on to say “ these three factors are all essentia]to the idea of ownership but need not all be present in an equal degreeat one and the same time
Their Lordships are of opinion that the possession of the rights men-tioned are generally sufficient to constitute a person an owner under thelaw of Ceylon. They also think there is nothing in the context of theLand Redemption Ordinance which requires a modification of the generalmeaning.
The next question is whether a paraveni nilakaraya can properly beregarded as an owner. It is common ground that a “ nilakaraya ** holdsan allotment of land (known as a “ pangu ”) subject to the performanceof services for, or payment of dues to (where the performance of serviceshad been commuted for the payment of dues) an “overlord ” (referred tovery appropriately by the learned Chief Justice in his judgment andhereafter by their Lordships as the “ ninda lord ”). Sometimes (as in thepresent case) a temple was the ninda lord. It is also common groundthat the type of nilakaraya known as a “ maruwena nilakaraya ” holds theland as a tenant at will and the type known as a “ paraveni nilakaraya ’’(second respondent belonged to this type) holds the landin perpetuity. Itwas, as stated by the learned Chief Justice, a “ hereditary holding ”. Thelearned Chief Justice makes a forceful point in support of the view thata “ paraveni nilakaraya ” must be regarded as a terfant and not as anowner when he points out that in certain legislation language is used whichseems to imply that a “ paraveni nilakaraya ” must be regarded as atenant and not as an owner. For instance, in Section 27 of the BuddhistTemporalities Ordinance (Volume V Ceylon Legislative Enactments p.655) the words “ a paraveni pangu tenant’s interest ” are used. TheService Tenures Ordinance 4 of 1870 (Volume VI Ceylon LegislativeEnactments p. 657) uses the words “ nindagama proprietor ” to designatea ninda lord :—
“ “ nindagama proprietor ” shall mean any proprietor of ninda-gama entitled to demand services from any praveni nilakaraya ormaruwena nilakaraya, for and in respect of a praveni pangu ormaruwena pangu held by him ;
This languagej*ermally, in the absence of other relevant material, wouldafford strong reason for the conclusion that a paraveni nilakaraya doesnot occupy the status of an owner. But ultimately the question whethera person is an owner or not must be determined by the rights andattributes he possesses in law. If those attributes clearly establish hisposition as owner the considerations which arise from the languagereferred to above must give way.
The “ rights of a paraveni nilakaraya in respect of his holding becameenlarged in the course of time ” as stated by the learned Chief Justice
MR. L. M. D. DE SII/VA—The. Attorney-General v. Uerath
149
and this fact with its accompanying uncertaintj' as to what those rightswere at any particular time probably led to some confusion particularlyin the language by which they were sometimes described.
Poliowing on a report by a commission called the Service Tenures Com-mission an ordinance, The Service Tenures Ordinance 4 of 1870 waspassed. It was, as stated by de Sampayo, J. in the case of Appuhanmyv. Menike 1, on most points declaratory. Whatever the position wasbefore the ordinance was passed, after its passage its provisions must beaccepted to the exclusion of all contending views that may previouslyhave existed. And, though historical research into those contendingviews may be interesting, it cannot njodify the.clear provisions of thoordinance. In Section 2 a paraveni nilakaraya is said to be “ the holderof a praveni pangu in perpetuity, subject to the performance of certainservices to the temple or nindagama proprietor ” ; a “ paraveni pangu ”is said to be “ an allotment or share of land in a temple or nindagamavillage held in perpetuity by one or more holders, subject to theperformance of certain services to the temple or nindagama proprietor ”.Section 24 is to the following effect :—
“24. Arrears of personal services in cases where the praveninilakaraya shall not have commuted shall not be recoverable forany period beyond a year ; arrears of commuted dues, where thepraveni nilakaraya shall have commuted, shall not be recoverablefor any period beyond two years. If no services shall have beenrendered, and no commuted dues be paid for ten years, and noaction shall have been brought therefor, the right to claim servicesor commuted dues shall be deemed to have been lost for ever andthe pangu shall be deemed free thereafter from any liability on thepart of the nilakarayas to render services or pay commuted duestherefor : **.
A proviso to the section has no bearing on this case.
It is common ground that the services to be rendered were personal.Section 25 is to the following effect:—
“25. It shall be lawful for any proprietor to recover damages inany competent court against the holder or holders of any pravenipangu who shall not have commuted, and who shall have failed torender the services defined in the registiy hereinbefore referred to.In assessing such damages, it shall be competent for the court toaward not only the sum for which the services shall have been assessedby the. Commissioners for the purpose of perpetual commutation,but such further sum as it shall consider fair and reasonable to coverthe actual damages sustained by the proprietor through the defaultof the nilakaraya or nilakarayas to render such personal servicesat the time when they were due ; but it shall not be lawful for anyproprietor to proceed to ejectment against his praveni nilakaraya fordefault of performing services or paying commuted dues ; the valueof those services or dues shall be recoverable against such nilakaraya
1 (1917) 19 N. L. R. 361 at p. 367.
2*J. N. U 11.C2S (0/00)
150
MR. L. M. D. DB SILVA—The Attorney-General v. Herath
by seizure and sale of the crop or fruits on the pangu, or failing these,by the personal property of such nilakaraya, or failing both, by asale of the pangu, subject to the personal services, or commuted duesin lieu thereof, due' thereon to the proprietor. The proceeds of suchsale are to be applied in payment of the amount due to the proprietor,.and the balanoe, if any, shall be paid to the evicted nilakarayasi' un-less there should be any puisne incumbrance upon the holding, iniwhich case such balance shall be applied to satisfy such incumbrance.”'
This is what the ordinance declared the law to be and was the lawafter the ordinance came into force.
It will be seen that a paraveni*nilakaraya cannot be ejected for non-performance of service or non-payment of dues. This means that he issubject to no liability similar to that of forfeiture. Moreover he isaccorded a right of possession in respect of his holding superior to thegeneral rights of an,owner. The latter in respect of a judgment debt isliable to have any part of his property proceeded against in execution. .But a paraveni nilakaraya’s holding may be proceeded against on ; ajudgment for damages for non-performance of services or for non-paymentof dues only after certain property belonging to him has been exhausted. ’’It was not disputed that he had the right to the use and enjoyment yof the land, the right to dispose of it, and the right to sue for and recoverpossession if he was disturbed. He has therefore all the rights which .entitle him to be regarded as an owner.
Their Lordships are in complete agreement with the view expressed byEnnis, J. in the case of Appuhamy v. Menike1 when he said “In my 'opinion a paraveni nilakaraya holds all the rights which, under Maas dorp’sdefinition, constitute ownership but he nevertheless does not possess fullownership in that the ninda lord holds a perpetual right to service, theobligation to perform which attaches to the land ”. Considering the objectand scope of the Land Redemption Ordinance their Lordships do not thinkthat “ full ownership ” in the sense in which the word is used in the passagequoted is necessary to come within the meaning of the word “ owner ”in that Ordinance.
The case of Appuhqmy v. Menike needs further comment.' Thequestion which arose in that case was whether a paraveni nilakaraya couldbring an action under the Partition Ordinance 10 of 1863 to partition a' holding which he held with others. Two points had to be decided. Thefirst whether a paraveni nilakaraya was an owner, the second was wh etherthe nature of the services to be rendered made the ordinance inapplicable.There had previously been a conflict of authority and the case on appealwas referred for an authoritative decision to a bench of three judgesof the Supreme Court, Ennis, J., de Sampayo, J. and Shaw, J. (normallytwo judges would have decided the appeal). On the question of ownershipEnnis, J. came to the conclusion set out above. He Sampayo, J. said“ I am of opinion that paraveni nilakarayas are the owners of the land ”.Shaw, J. dissented. It will be seen that t-fie majority of the court were
1 {1917) 19 N. L. B. 361 at p. 363.
MR. L. M- D. DE SILVA—The Attorney-General v. JSerath151
of opinion that a paraveni nilakaraya is an owner. With this view theirLordships are in entire agreement.
With all respect to the learned Chief Justice their Lordships cannotagree with the view expressed by him that two of the judges in thatcase held that “ a paraveni nilakaraya is not the owner of his holding ”and that de Sampayo, J. alone dissented from that view.
All the judges were agreed that in their opinion a partition was in-compatible with the nature of the services to be rendered (their Lordshipsfind it unnecessary in the present case to express an opinion upon thisview) and rejected the appeal on that ground. The most that can beurged is that the case decided that a “ paraveni nilakaraya” is not-an “ owner ” within the special meaning of the term imposed upon it byi;he context of the Partition Ordinance as the services that had to be.rendered were not capable of division but this does not affect the generalmeaning of the word or its meaning in the Land Redemption Ordinance.
As already stated a paraveni nilakaraya possesses all the essentialattributes which a person must possess before he can be regarded as anowner. As for the “ninda lord ” he has not the right of possession. Hecannot even enter into possession for non-fulfilment of services or non-payment of dues. Further the right to possession of the paraveni nila-karaya has the special protection of the law already indicated. The“ ninda lord ” cannot sell or otherwise dispose of the holding of the para-veni nilakaraya. He has no right of use and enjoyment. He has-a bare right to services. Their Lordships do not think he can possiblybe regarded as the owner.
The learned Chief Justice relied on a passage in Salmond on Juris-prudence to the effect that a person could be “the owner of a materialobject who has a right to the general or residuary uses of it, after thededuction of all special and limited rights of use vested by way of encum-brance in other persons ”. Their Lordships are of the view that a nindalord could not properly be regarded as being in that position. He hasno general or residuary rights at all. Ho has as already stated the bareTight to services or dues. Under Section 24 of the Service Tenures Ordi-nance the ninda lord loses his rights to these services (or dues) if theyhave not been rendered (or paid) for ten years and. no action hasbeen brought for them within those ten years. It was held by Howard,-C. J. (Eeuneman, J. agreeing) in the case of JSandara v. MeniJca1 that insuch circumstances a paraveni nilakaraya became the full owner.Howard, C.J. said “ The only clog on the full ownership of the nilakarayais the obligation to perform services. Relief from such obligation wouldtherefore confer full ownership ”.
Their Lordships agree.
It was argued that a ninda lord had a right to minerals and timberon the land which prevented the nilakaraya from being regarded as theowner. Their Lordships are of opinion that such rights, if they exist,Are extremely limited and do not affect the considerations set out above.
1 (1943) 44 N. It. B. 393.
152
MR. L. M. D. DE SILVA—The Attorney-General v. Herath
In the acquisition proceedings the right to the services which had to-be performed by Whoever owned the land for the ninda lord appears tohave' been acquired by the Government on payment of compensation^On this the learned Chief Justice says :—
“ The acquiring officer appears to have acquired the interests ofthe dewale as well. TTi« act is clearly illegal. The praveni nilakaraya-did not, and could not in law, transfer to his creditor the rights ofthe ninda lord, the dewale, nor did he purport to do so. Theauthority granted by section 3 (1) (6) is to acquire land transferred,by the owner in satisfaction or part satisfaction of a debt which wasdue from the owner and which was immediately prior to such,transfer secured by a mortgage of the land. . The ninda lord owed,no debt, his rights were not secured by a mortgage, he did not transferhis rights to the 2nd defendant. Clearly the Land Commissioner hadno authority to acquire the ninda lord’s rights and his determinationto acquire his rights being illegal cannot be final. ”
It has been argued against this view that although a land subject to theperformance of services was transferred by the owner authority is conferredto acquire the land as a total entity free from the performance of services,the person entitled to services being duly compensated. Their Lordshipsfind it unnecessary to decide this question in the present case. Noobjection wets raised by the ninda lord who appears to have acquiescedin the acquisition. If he had objected such action, if any, as wouldhave been necessary, could have been taken. The acquisition of theninda lord’s rights has not affected the first respondent’s rights. TheirLordships are of opinion that even if the act of acquisition of the rightto services was unauthorised it does not vitiate the acquisition of thefirst respondent’s rights.
The learned Chief Justice has held that the provision in sub-section (4)of section 3 of the Land Redemption. Ordinance, namely,
“ (4) The question whether any land which the Land Commissioneris authorised to acquire under sub-section (1) should or should notbe acquired shall, subject to any regulations made in that behalf,be determined by the Land Commissioner in the exercise of hisindividual judgment ; and every such determination of the LandCommissioner shall be final. ”,
does not make final any decision made by the Land Commissioner inexcess of the powers conferred by sub-section (1). With this theirLordships agree. The point was not pressed by the appellant beforetheir Lordships and it is not necessary to discuss it further.
Section 5 (1) of the Land Acquisition Act 9 of 1950 is to the followingeffect :—
“ 5.(1) Where the Minister decides under sub-section (5) of
section 4 that a particular land or servitude should be acquired underthis Act, he shall make a written declaration that such land or servi-tude is needed for a public purpose and will be acquired under this.
MR. L. M. ID. DE SILVA—The Attorney-General v. Herath
153
Act, and shall direct the acquiring officer of the province or districtin •which the land which is to be acquired or over which the servitudeis to be acquired is situated to cause such declaration in the Sinhalese,Tamil and English languages to be published in the Gazette andexhibited in some conspicuous places on or near that land. ”
A copy of the declaration in English alone was produced. The learnedChief Justice says “X am of the view that sub-section (1) of section 5of the Act requires the Minister to make a declaration in each of thethree languages and the requirements of the section are not satisfied ifhe does not do so. ” Their Lordships cannot agree. Publication has tobe in three languages, the declaration need only be in one.
The learned Chief Justice also said “ Sub-section (1) of section 5 furtherrequires the Minister to direct the acquiring officer of the province ordistrict in which the land which is to be acquired is situated to causesuch declaration in the Sinhalese, Tamil and English languages to bepublished in the Gazette and exhibited in some conspicuous places on•or near the land. There is no evidence that such a direction was givennor is there any evidence that the acquiring officer of the province ordistrict in which the land is situated caused the declaration to be publishedin the Gazette in Sinhalese and Tamil. Learned counsel for the Crowntendered at the trial, not the Gazette in which the declaration was pub-lished, but an extract from the Government Gazette certified by anAssistant Land Commissioner 1D2 in which the declaration appears inthe English language alone. ” He went on to say “ Apart from the factthat the declaration is invalid for the reason that the condition precedentto the making of the declaration is absent these other defects I have pointedout above also affect its validity ”. There is a presumption that “ officialacts have been regularly performed ” (section 114 Ceylon Evidence Ordi-nance) that should in proper cases be acted upon. This was such a case.In the Courts in Ceylon the respondent did not raise any question as todue direction by the Minister or due publication in the Gazette. Further,counsel for the first respondent was constrained to admit on an inspection•of the relevant Gazette (produced by the appellant) that publication inthree languages had been made. Sub-section (3) of section 5 says :—
“ (3) The publication of a declaration under sub-section (1) inthe Gazette shall be conclusive evidence of the fact that suchdeclaration was duly made. ”
From what has been said it follows that the Land Commissioner didnot act in excess of his powers under section 3 of the Land RedemptionOrdinance and that the steps taken have vested the lands in the Crownwhich therefore had the right to place the second respondent in possession."Their Lordships consequently find it unnecessary to express an opinionupon the submission made by the appellant that a decision under section3 (1) of the Land Redemption Ordinance is a judicial decision andcan be attacked only by writ of certiorari in proceedings before the"Supreme Court, or to comment on the other defences raised in the case.
154
BASNAYAKE, C.J.—Goonetilleke v. Goonetilleke
TTor the reasons which they have given their Lordships will humbly-advise Her Majesty that the appeal be allowed, the judgment and decreoof the Supreme Court set aside and the decree of the District Courtrestored. The first respondent must pay the costs of this appeal and of*the hearing before the Supreme Court.
Appeal allowed*