118-NLR-NLR-V-48-VANDER-POORTEN-et-al.-Appellant-and-THE-SETTLEMENT-OFFICER-Respondent.pdf
Vunder Poorten v. The Settlement Officer.
361
1947Present: Keuneman A.C.J. and Jayetileke J.
VANDER POORTEN et at., Appellants, and THESETTLEMENT OFFICER, Respondent..
•S. C. 120—D. C. (Inty.) Ratnapura, 6,940.
Waste Lands Ordinance—Commencement of proceedings—Repeal of Ordinanceby Land Settlement Ordinance—Petition under section 24—May betreated as petition under section 20, Waste Lands Ordinance—Interpreta-tion Ordinance, section 6 (3) (b).
Proceedings were commenced under the Waste Lands Ordinance,No. 1 of 1897. During the course of the proceedings the Waste LandsOrdinance was repealed by the Land Settlement Ordinance. Proceedingswere continued under the Waste Lands Ordinance and Final Order wasmade. Thereafter the appellants presented a petition under section 24of the Land Settlement Ordinance claiming the land.
Held, that no application lay under section ?4 of the Land SettlementOrdinance since that section applied only where land had been declaredto be the property of the Crown under section 5 of that Ordinance.
Held, further, that the petition could be treated as one under section 20of the Waste Lands Ordinance. A claim under that section would be acontinuation of the earlier proceedings and by virtue of section 6 (3) (b)of the Interpretation Ordinance would not be affected by the repealof the Waste Lands Ordinance.
^^PPEAL from an order of the District Judge of Ratnapura.
H. V. Perera, K.C. (with him L. G. Weeramantry), for the petitioners,appellants.—The petition was properly constituted under the WasteLands Ordinance. The mere fact that it was stated to be an applicationunder section 24 of the Land Settlement Ordinance cannot prevent itsbeing treated as an application under section 20 of the Waste LandsOrdinance provided it complies with the requirements of that Ordinance.By holding that an appeal lies to the Supreme Court from an order of theDistrict Judge under the Waste Lands Ordinance the Privy Councilhas by implication regarded the petition as one properly constitutedunder the Waste Lands Ordinance. Vide 47 N. L. R. 217. Proceedingscommenced under the Waste Lands Ordinance are kept alive inspite of the repeal of the Ordinance. See section 6 (3) (b) of theInterpretation Ordinance. The various steps that are part of thesame “ action, proceeding, or thing ” can be continued until a finalresult is reached. Any other interpretation would result in hardship.In any event the petition is also one that is properly constitutedunder section 24 of the Land Settlement Ordinance. Section 32provides for orders in respect of proceedings under the Waste LandsOrdinance pending at the date of the commencement of this Ordinancebeing made in a new form. Sub-section (2) says that every such ordershall have the same force as an order made in consequence of proceedingsunder the Land Settlement Ordinance. “ Same force ” means nothingmore or less than “ same legal effect ”. This petition can therefore beregarded as one under section 24 of the Land Settlement Ordinance.
362 KEUNEMAN A.C.J.—Vernier Poorten v. The Settlement Officer.
When order was entered a right was acquired by any person who had aclaim to make it under section 20. This right could not be taken awayby a repeal of the Ordinance. This case comes within the rule ofHamilton Gell v. White.' It is to be distinguished from the rule inAbbot v. The Minister of Lands’.
H. H. Basnayake, K.C., Acting Attorney-General (with him WalterJayawardene, C.C.), for the Settlement Officer, respondent.—The PrivyCouncil merely decided a purely academic question whether an appeal layto the Supreme Court from an order of the District Judge in respect of apetition under section 20 of the Waste Lands Ordinance. It did notdecide whether the petition was in fact a petition under that section. Thepetition cannot be one under section 20 of the Waste Lands Ordinancebecause that section has been repealed. Even if section 20 is available tothe petitioner the application is out of time. It should have been madewithin 12 months of publication and not of publication in the Gazette. Inregard to the appeal itself this is neither an appeal from an order undersection 20 nor an appeal from an order under section 24. Under section 24of the Land Settlement Ordinance no right of appeal is given.
H. V. Perera, K.C., in reply.—The Privy Council has by implicationtreated the petition as one properly constituted under section 20 of theWaste Lands Ordinance. The application is within time since timeruns from date of publication in the Gazette.
Cur. adv. vult.
July 9, 1947. Keuneman A.C.J.—
The proceedings in this case were commenced under the Waste LandsOrdinance, No. 1 of 1897. During the course of the proceedings theWaste Lands Ordinance was repealed in 1931 by the Land SettlementOrdinance (now Chapter 319). By virtue of section 6 (3)(c) of the
Interpretation Ordinance (Chapter 2), the proceedings were continuedunder the Waste Lands Ordinance and Final Order was made under thatOrdinance as amplified by section 3(3) and section 32 of the Land
Settlement Ordinance.
Thereafter the appellants, purporting to act under section 24 of theLand Settlement Ordinance, presented a petition to the District Judgeclaiming the premises. This petition was dismissed and the present appealis from that order.
At the first hearing of the appeal, the Supreme Court held that thepetition so far as it related to section 24 of the Land Settlement Ordinancewas misconceived, and this was eventually conceded by appellants’Counsel. Their Lordships of the Privy Council have not commentedupon this finding. Some argument was addressed to us at the presenthearing on this point, based upon section 32 (2) of the Land SettlementOrdinance which states that “ Every Order made under this section shallhave the same force as an order made in consequence of proceedings underthis Ordinance ”, and it was claimed that the claimant was entitled toinvoke the aid of section 24. But section 24 specifically refers to theright of claimants, where the land has been declared under section 5 to bethe property of the Crown. It follows therefore that the declaration had1 (1922) 2 K. B. 422.* (1895) A. G. 425.
KEUNEMAN A.C.J.—Vander Poorten v. The Settlement Officer. 363
to be made under that special section of the Land Settlement Ordinance.In this case the declaration was made not under section 5 of the LandSettlement Ordinance, but under the Waste Lands Ordinance. I do notthink the argument of the appellants can be accepted.
At the former hearing of the appeal, it was also argued that the petitionconstituted a good and sufficient claim under section 20 of the WasteLands Ordinance, and that the District Judge should have so treated it.But the objection was raised that no appeal lay from an order under thatsection. The Supreme Court held that this objection was sound, anddismissed the appeal. In the appeal to their Lordships of the PrivyCouncil, it was held that an appeal lay from an order under that section.Their Lordships abstained from expressing any opinion as to any of theother questions raised by the appeal, which it was for the Supreme Courtto determine.
One of the questions which we have to determine is whether thepetition in question can be treated as a claim under section 20 of theWaste Lands Ordinance. No argument has been addressed to us that thepetition is deficient in form or content. At a stage after the argumentwas concluded, it was urged by the respondent that the petition of appealwas not accompanied by an affidavit of the value of the land, as requiredby section 18. This objection has been raised at a very late stage, and Ido not think there is substance in it. There was already in the recordat the time an affidavit setting out the value of the land which was filedwith the earlier papers, and I do not think we should accept this particularobjection as valid.
The main argument on the part of the respondent was that the repealof the Waste Lands Ordinance in 1931 precluded the petitioner frommaking a claim under section 20 of that Ordinance. It was urged thatthe terms of the Interpretation Ordinance only conserved the proceedingsup to the stage of the order declaring that the land was the property ofthe Crown, and that the provisions of section 20 were not available to thepetitioner, in consequence of the repeal. The appellant on the contraryargued that he came within the terms of section 6 (3) (b) and (c) of theInterpretation Ordinance.
This section 6 (3) runs as follows :—
“ Whenever any written law repeals …. a former writtenlaw, such repeals shall not …. affect or be deemed to haveaffected ….
…. any right …. acquired … under
the repealed written law ;
any action, proceeding, or thing pending or incompleted whenthe repealing written law comes into operation, but every such action,proceeding, or thing may be carried on and completed as if therehad been no such repeal. ”
It was argued for the appellants that under section 6 (3) (b) the earlierproceedings under the Waste Lands Ordinance had been kept in beingnot only up to the date of the order declaring the land to be the property
364 KEUNEMAN A.C.J.—Vander Poorten v. The Settlement Officer.
of the Crown, but also on the entering of this order, the right was acquiredby any person who had a claim to make the claim under section 20, andthat this right was hot taken away by virtue of the repeal. Counselcited the case of Hamilton Gell v. White.1 In my opinion the facts in thepresent case go beyond the facts in Hamilton Gell v. White {supra), butat the same time, I am inclined to accept the argument of Counsel for theappellants.
It was further argued that the appellants could take advantage ofsection 6 (3) (c) of the Interpretation Ordinance, and that the claim undersection 20 of the Waste Lands Ordinance was part of the “ action,proceeding, or thing” which resulted earlier in the order declaring thatthe land was the property of the Crown. I am inclined to take theview that the claim under section 20 is a continuation of the earlierproceedings.
Under section 1 of the Waste Lands Ordinance the Government Agenthas to publish a notice calling for claims. Under section 2, where noclaim is made within 3 months the Government Agent makes an orderdeclaring the land to be the property of the Crown. Under sections 3and 4 provision is made for inquiry into claims made within the prescribedperiod, and the making of an appropriate order. Section 20 permitsclaims to be made within one year of any order declaring the land to bethe property of the Crown, and sets out the procedure to be adopted.All these various steps appear to me to be part of the same “ action,proceeding, or thing ”, and the repealing Ordinance did not prevent allthese various steps being proceeded with until a final result is achieved.I think any other interpretation would result in hardship, which was notcontemplated by the Legislature.
The further argument was pressed on us by Counsel for the respondent,that the District Judge had held that under section 20 of the Waste LandsOrdinance the petitioners “ seem to be out of time now. ” All we needsay is that no material has been shown to us in the record which supportsthe opinion of the District Judge, but it is not necessary for us to decidethe point, which may be developed in the course of the further proceed-ings before the District Judge. It was also urged that the SettlementOfficer is not the proper party to be made respondent. But section 20requires the claimant to make his claim before the District Judge, who isrequired to make certain inquiries, and thereafter, if so advised, to filethe claim, making the proper parties plaintiff and defendant.
In the result then I set aside the order of the District Judge and sendthis matter back to the District Judge with a direction that he will regardthe petition of the appellants as a claim preferred under section 20 of theWaste Lands Ordinance, and that he will make all necessary inquiriesand take all necessary steps in this matter, It is desirable in thecircumstances of this case that all questions of law and fact be heard anddetermined by the District Judge, so that if the matter comes before usin appeal in the future we may be in a position to determine all thesematters. *
* L. R. (1922) 2 K. B. 422.
KEDNEMAN A.CJ.—Dtnffiri Appu v. PuncM Appuhamy.
369
In my opinion the appellants are entitled to half the costs of the presenthearing of the appeal before us. As the appellants at the hearing beforethe District Judge depended upon an argument which was misconceivedthere will be no order for costs of the hearing before the District Judge.
Jayetiuke J.—I agree.
Order set aside.