THE LAND COMMISSIONER, Appellant, and V. P. JAYAWARDENE et al., Respondents

064-NLR-NLR-V-60-THE-LAND-COMMISSIONER-Appellant-and-V.-P.-JAYAWARDENE-et-al.-Respondents.pdf


PULLE, J.—hand Commissioner v. Jayawardene
m
1958 Present: Basnayake, C.J., Pulle, J., and K. D. do Silva, J.THE LAND COMMISSIONER, Appellant, and V. P. JAYA-WARDENE et dl., Respondents
S. C. 191—D. C. Colombo, 6499/L
Land Redemption Ordinance, No. 61 of 1612—Unlawful acquisition of land there-under—Land Commissioner—Liability to be sued nomine officii—Liability tobe restrained by injunction—Scope of Sections 3 (7) (6) and 3 {4).
Where the Land Commissioner, purporting to act under section 3 {]) (b)of the Land Redemption Ordinance, sought to acquire certain lands unlaw-fully—
ldeld (by Basnayake, C.J., and Pulle, J.), (i) that an action was maintainableagainst the Land Commissioner nomine officii.
(ii) that the provision in section 3 (4) of the Land Redemption Ordinancewas not a bar to the Court granting an injunction to restrain the LandCommissioner from taking steps to acquire the lands.
(iij) that a voluntary transfer of the mortgaged land by the mortgagorin favour of the mortgagee in satisfaction of a hypothecary decree enteredby Court is nevertheless a transfer within the meaning of section 3 (1) (6)of the Land Redemption Ordinance.
(iv) (K. D. de Silva, J., dissenting), that where several lands are mortgaged,section 3 (1) (6) of the Land Redemption Ordinance does not apply to a caseof a transfer of a few only of those lands.
Ladamuttu Pillai v. Attorney-General (1957) 59 N. L. R. 313 and Perera v.Unatenna (1953) 54 N. L. R. 457, followed.
AkPPEAL from a judgment of the District Court, Colombo.
Walter Jayaioardene, with F. Tennekoon, Senior Crown Counsel, and
J.W. Svbasinghe, Crown Counsel, for the defendant-appellant.
B. Wikramanayake, Q.C., with 6. T. Samerawicbrente andLyn Wirasekera, for the plaintiffs-respondents.
Cur. adv. VuU.
February 7, 1958. Pulle, J.—
The defendant in this aotion, who is the appellant, is the Land Com-missioner. He appeals from a deoree dated 6th November, 1953, whichdeclared that the two plaintiffs who are the intestate heirs of one CyrilPinto Jayawardene were entitled to a permanent injunction restraininghim (the Land Commissioner) from acquiring two lands called Nagaha-landewatta and Mahagahalande, described in the schedule to the decree,under section 3 of the Land Redemption Ordinance, No. 61 of 1942.
The appeal raises broadly the questions:
whether the action is properly constituted against the LandCommissioner who is sued by only his official name,
12LX
2J.S. B 12371—1,594 (3/69) .
266
PTTLLE, J.—Land Commissioner v. Jayatnardene
whether the provision in section 3 (4) is a bar to the court grantingan injunction, and
whether the conditions laid down in section 3 (1) (6) subject towhich the Land Commissioner was empowered to acquire thelands in question were satisfied.
The answer to the last question depends on the facts special to thiscase and the true interpretation oi section 3 (1) (6) of the Land RedemptionOrdinance, No. 61 of 1942, which has been amended by the LandRedemption (Amendment) Ordinance, No. 62 of 1947, and the LandAcquisition Act, No. 9 of 1950. It is not necessary to have recourseto either of the amending statutes to solve the problems arising on theapplication of section 3 (1) (6) to the facts of the case.
Whether an action like the present one against the Land Commissionernomine officii can be maintained was argued at length in the case ofLadamvttu PiUai v. Attorney-General and others.1 My Lord, the ChiefJustice, has in his judgment stated the reasons for answering the questionin the affirmative. I agree with those reasons and have nothing to addto them.
The answer to the second question does not, in my opinion, admitof a doubt. Sub-section 4 of section 3 answers itself: It reads—
“ The question whether any land which the Land Commissioneris authorized to acquire under sub-section (1) sho dd or should not beacquired shall, subject to any regulations made in that behalf, bedetermined by the Land Commissioner in the exercise of his individualjudgment and every such determination of the Land Commissionershall be final. ”
Before any finality can be claimed for a determination by the Land Com-missioner to acquire a land it is essential to establish that the land comeswithin the provisions of section 3 (1). The plaintiffs asserted that thelands “ do not fall within the description in section 3 of the LandRedemption Ordinance, No. 61 of 1942, and are not therefore subjectto acquisition by the defendant under the said Ordinance”.
If that be the fact the provision in sub-section 4 cannot defeat theirclaim to have the Land Commissioner restrained from acquiring the lands.
. I come now to the last and important question, namely, whether thecontention on behalf of the Land Commissioner is correct that the landshe sought to acquire fall within the description in section 3 (1) (6).
One Francis Suriyaperuma by a bond dated the 30th January, 1932,mortgaged the two lands sought to be acquired and three others toCyril Pinto Jayawardene, as security for a loan of Rs. 5,500. Thebond was put in suit on 3rd May, 1934, and on the 18th July, 1934, a-decree was entered ordering the mortgagor to pay Rs. 7,170*62, withinterest and costs of suit. The properties were declared specially boundand executable for the payment of this sum. The decree provided thatthe order to sell would be stayed if certain payments indicated in thedecree were made. The decree was not executed.
1 [1987) 89 N. L. R, 313.
BASNAYAKE, C. J,—Land Commissioner v. Jayawardene
267
By a deed dated 20th July, 1935, the mortgagor conveyed to CyrilPinto Jayawardene in consideration of a sum of Rs. 8,000 the two landssought to be acquired, a third land of the extent of 17A. Rl. 2P. andan undivided half share of a field called Talpediwila Cumbure. Inother words all the lands mortgaged were transferred by the mortgagorexcept his residing land called Meegahawatte and an undivided halfshare of Talpediwila Cumbure.
The learned trial Judge held against the defendant because in hisopinion the consideration for the transfer in favour of the mortgageewas not merely the judgment debt but also the release from the mortgageof the entirety of Meegahawatte and a half share of Talpediwila Cumbureand that, therefore, the transfer could not be said, within the meaningof section 3 (1) (6), to be in satisfaction or part satisfaction of a debtdue from the mortgagor to the transferee. If the learned Judge’sinterpretation of the section is that it is a condition precedent to theexercise of the power of acquisition that all the lands bound by themortgage must be transferred, I am in agreement with him. Can itbe said that the debt in question was secured by a mortgage of the landstransferred ? The question cannot be answered in the affirmativebecause the debt was secured not only by the mortgage of the landstransferred but also by the mortgage of the entirety of Meegahawatteand the remaining half share of Talpediwila Cumbure. The securityfor the debt was a mortgage of all the five lands and not two lands andan undivided share of a third.
The interpretation of section 3 (1) (6) was the subject of a lengthyargument in Ladamuttu Pillai v. Attorney-General and others h I adhereto the view I expressed in that case that unless all the lands mortgagedare transferred in satisfaction or part satisfaction of the debt securedthere is no room for the application of section 3 (1) (6).
It was submitted for the plaintiffs that section 3 (1) (b) had no appli-cation because it could not be said that, immediately prior to the transfer,the debt created by the decree was secured by a mortgage. The cor-rectness of the ruling in M. S. Perera v. Unatenna 2 was questioned beforeus. I concurred in the judgment in that case and, having reconsideredit, I see no, reason for thinking that it was wrongly decided.
In the result the appeal fails and should be dismissed with costs.Basnayake, C.J.—
I have had the advantage of reading the judgment prepared by mybrother Pulle. I am in entire agreement with it and I concur in theorder dismissing the appeal with costs.
I do not propose to discuss the questions of law arising on this appealas my judgment in the case of Ladamuttu Pillai v. Attorney-General andothers1 covers them all. It is sufficient to say that—
(a) Section 3 (1) (6) of the Land Redemption Ordinance applies toa case of a transfer, in satisfaction or.part satisfaction of thedebt, of the entire land where only one land is mortgagedand of all the lands where more than one land is mortgaged.
1 (1957) 591V. L. B. 513. 'a (1953) 54 N. L. B. 457.
S6SK. D. DE SILVA, 3.^—Land Commissioner «. Jayawardene
The Court has power to grant an injunction against the Land
Commissioner restraining him from taking steps to acquirea land under the Land Redemption Ordinance.
The Land Commissioner may be sued nomine officii.
Section 3 (4) of the Land Redemption Ordinance does not preclude
a person from challenging in a regular action the legality of thedetermination of the Land Commissioner to acquire a land.
K. D. de Silva, J.—
I have had the advantage of reading the judgment prepared by mybrother Pulle. The main question which arises on this appeal is whetherthe lands sought to be acquired by the Land Commissioner, in this case,fall within the description of lands set out in section 3 (1) (b) of the LandRedemption Ordinance, No. 61 of 1942. It was argued on behalf ofthe defendant-appellant that they fell within that category of landswhereas Mr. Wickramanayake, Q.C., the counsel for the plaintiffs-respondents supported the contrary view. It was contended on behalfof the respondents that the provisions of section 3 (1) (6) would applyonly to a case where all the lands mortgaged had been transferred bythe owner to the mortgagee in satisfaction of the mortgage debt. Thissame question arose for decision in the case of Ladamuttu Pillai v. Attorney-General and others1 and there I took the view that a transfer of all thelands mortgaged was not a condition precedent to proceedings beingtaken under section 3 (1) (6) and I still adhere to that view. If theLegislature intended to restrict the application of this provision onlyto cases where all the mortgaged lands had been transferred to themortgagee it could have stated so, in clear and unambiguous terms.Without unduly straining the language of section 3 (1) (6), I do not thinkit can be said, that the Legislature contemplated the application of thisprovision only to cases where all the mortgaged lands have been trans-ferred. The object of this Ordinance was to render assistance to aclass of debtors who got into difficulties during an abnormal period offinancial stress. If the view put forward on behalf of the respondentsis to prevail that object would be defeated to a very large extent.According to that view if a person borrowed a sum of Rs. 50,000 byhypothecating ten lands—nine of which were very valuable—as securityfor the loan and he later transferred to the mortgagee the nine valuablelands in satisfaction of the debt he would not be entitled to obtain anyrelief through the intervention of the Land Commissioner even thoughthe 10th land which he did not transfer was worth only Rs. 100. It isdifficult to believe that the Legislature, in passing this Ordinance, intendedto countenance such a situation.
In my view the lands in question come within the purview of section3 (1) (b) and the Land Commissioner was entitled to acquire them. Iwould therefore allow the appeal and dismiss the plaintiffs’ action,with costs in both Courts.
Appeal dismissed.
1 (1957) 59 N. L. R. 313.