077-NLR-NLR-V-47-VANDER-POORTEN-et-al-Appellants-and-THE-SETTLEMENT-OFFICER-Respondent.pdf
LORD DU PARCQ.—Vander Poorten v. The Settlement Officer
217
[In the Privy Council.]
1946 Present: Lord Macmillan, Lord da Pareq and Sir John Beaumont.
VANDER POORTEN et al., Appellants, and THE SETTLEMENTOFFICER, Respondent
Privy Council Appeal No. 78 of 1944.
jS. C. 120 Inly—D. C. Ralnapura, 6,940.
Ordinance relating to claims to Forest, Ghena, Waste and Unoccupied LandsNo. 1 of 1897—Petition under section 20—Dismissal by District Judge—•Right of appeal to Supreme Court.
An appeal lies to the Supreme Court against the dismissal by aDistrict Judge of a petition made under section 20 of the Ordinancerelating to Forest, Chen a, Waste and Unoccupied Lands, No. 1 of 1897.
A
PPEAL from a judgment and decree of the Supreme Court.
The judgment of the Supreme Court is reported in (1942)
43 N. L. R. 230. As the appellants could not appeal to His Majestyin Council as of right—Vide (1942) 43 N. L. R. 436—they obtainedspecial leave.
C. 18. Rewcastle, K.C., and R. K. Handoo, for the appellants.
C. T. Le Quesne, K.C., and Sydney PoCock for the respondent.
March 13, 1946. [Delivered by Lord du Pabcq]—
The only question for determination in this appeal is whether theSupreme Court of Ceylon was right in holding that no appeal lay to thatCourt against the dismissal by a District Judge of a petition which, forthe purpose of dealing with the preliminary objection that the appealcould not be entertained, the Court treated as a “ claim ” made undersection 20 of the Waste Lands Ordinance, No. 1 of 1897.
The facts relevant to this single question are few, and may be shortlystated. The Ordinance of 1897 empowered the Government agent todeclare by a notice duly published that any lands which appeared to himto be waste lands should be deemed the property of the Crown unless aclaim was made to them within three months from a date specified inthe notice and further enacted that if no such claim were made the landsshould be declared to be the property of the Crown. On September 21,1928, such a notice was published in respect of the lands which are thesubject of the present suit. No claim was made within the period ofthree months, which began to run on the date of the notice, but beforethe lands had been declared to be Crown lands the Ordinance of 1897had been repealed by the Land Settlement Ordinance of 1931 whichprovided for the appointment of Settlement Officers, and in termsauthorised any such officer “ to continue or to complete any action orproceeding taken or commenced under Ordinance No. 1 of 1897 ”
10—XLVII.
IJ. N. A 61159-558 (4/46)
218 LORD DU PARCQ.—Vander Poorten v. The Settlement Officer.
On April 5, 1940, an Assistant Settlement Officer published a noticeunder the Land Settlement Ordinance by which he ordered that thelands in question should be settled as therein specified, thus dealingwith them as Crown property.
Meanwhile one A, J. Vander Poorten, since deceased, whose executorsare the present appellants, had written to the Land Settlement Officeron January 30, 1931, saying that he held the lands in question “ in trustfor ” one Meedeniya and that the same might be settled on him in spiteof the writer “ being nominal owner ”, and, later, namely on February 26,1937, by which date Meedeniya had died, he is said by the appellantsto have intimated to the Settlement Officer that he withdrew the earlierletter, and to have set up his own claim to the lands. A. J. VanderPoorten died on or about December 28, 1937.
On December 5, 1940, the appellants, purporting to proceed underthe Land Settlement Ordinance, presented a petition to the DistrictCourt of Ratnapura praying that the lands now in questionshould be transferred to them as executors of A. J. Vander Poorten.It was conceded by counsel for the appellants before the Supreme Courtthat, by reason of the terms of section 6 (3) (c) of the InterpretationOrdinance (Chapter 2), they had erred in proceeding under the LandSettlement Ordinance, and that any claim which they may have shouldhave been brought under the Waste Lands Ordinance of 1897. Thelearned District Judge dismissed the petition on the ground that thepetitioners were not entitled to relief under the Land SettlementOrdinance.In the course of his judgment he said : “ Even if it could be said thatthe remedy provided for by section 20 of the Waste Lands Ordinancewas available to the petitioners in spite of this Ordinance having beenrepealed the petitioners seem to be out of time now ”.
Section 20 of the Waste Lands Ordinance of 1897 is as follows :—
“ No claim to any land or to compensation or damages in respectof any land declared to be the property of the Crown under the pro-visions of this Ordinance shall be received after the expiration of oneyear from the date on which such declaration shall have been made.If within such year any claimant shall prefer a claim to such land orto compensation or damages in respect thereof before the commis-sioner appointed under this Ordinance for the province in which suchland is situated, or in the event of no commissioner being appointed,before the district judge of the district in which such land is situated,and shall show good and sufficient reason for not having preferredhis claim to the government agfent or assistant government agent asaforesaid within the period limited under section 1 of this Ordinance,such commissioner or judge shall file the claim, making the claimantplaintiff and the government agent or assistant government agent asaforesaid defendant on behalf of the Crown in the action, and theforegoing provisions of this Ordinance shall be applicable to theinvestigation and trial thereof. ”
The petitioners appealed to the Supreme Court, who dismissed then-appeal without going into the merits of the case. Keuneman J., withwhose judgment Heame J. concurred, after holding that the appellants
LORD DU PARCQ.—Vunder Poorten v. The Settlement Officer.
218
(as their counsel had. admitted) could not avail themselves of the LandSettlement Ordinance, stated the question which now arises for decisionas follows:—
f< Counsel for the appellants, however, contends that this petitionconstitutes a good and sufficient claim under section 20 of the WasteLands Ordinance, and that the District Judge should have so treatedit. He is met by the objection that no appeal lies from an ordermade under this section, but counters this by arguing that the wordsin section 20 ‘ the foregoing provisions of this Ordinance shall beapplicable to the investigation and trial thereof ’ bring in the rightof appeal under section 18. ”
The learned judge rejected this interpretation of section 20 and theCourt adjudged that the appeal should be dismissed by reason of thepreliminary objection, and decreed accordingly. The present appealis brought against this decree by leave of Tlis "Majesty in Council.
The question now in issue ultimately depends on the construction ofthe words “ the investigation and trial thereof ” in section 20. Theprovisions of section 18, which give a right of appeal to a person whohas lodged a petition within thirty days from the date of the order of acommissioner or district judge, are among “ the foregoing provisions ”of the Ordinance. If the words “ investigation and trial ” are to beread as including the decision which is the end and object of the trial,it must follow that the decision, to which the provisions of section 18are thus made applicable, is rendered appealable. In their Lordships'opinion the word “ trial ” in this context must be read as including thedecision, which it is not improper to regard as an important part of thetrial, and the expression “ investigation and trial ” is to be understoodas descriptive of the whole proceedings. It is true that in some contexts(e.g., in the Code of Civil Procedure) the word “ trial ” is at times usedin contradistinction to “ judgment ” or “ appeal ”, but there is nothingin the material sections of the Waste Lands Ordinance which suggeststhat the word is there being used with this limited meaning. On thecontrary, the intention of the legislature, so far as it can be gatheredfrom the terms of the Ordinance, seems to have been to put a personwho, though his claim was made out of time, could show “ good andsufficient reason ” for his delay, in the same position as one who hadlodged his petition within the time limited by section 18. It wassubmitted by counsel for the respondents that it was reasonable toattribute to the legislature an intention to grant only a qualifiedindulgence to those persons whose claims were made at a late date, andthat the right of appeal had been withheld from them deliberately.As to this submission their Lordships would observe, first, that if it hadbeen the intention of the legislature to penalise those whose claims weremade at a late date, it is difficult to believe that the draftsman of theOrdinance would not have expressed that intention in plain words, and,secondly, that, inasmuch as a claimant whose delay is due to some“ good and sufficient reason ” is no less meritorious than one who hasbeen able to act promptly, there is no ground for imputing the suggested•ntention to the legislature.
220
Rawanna <k Co. v. Aru-nachapiltai.
For these reasons their Lordships are of opinion that the learned judgesof the Supreme Court were wrong in holding that the words “ investigationand trial ” had " a limiting effect ”, and referred only to the inquirybefore the Commissioner or District Judge in the narrower sense ofthat word.
It was submitted by counsel for the appellants that, even if there wereno right of appeal under section 20 of the Waste Lands Ordinance, anappeal was competent by reason of the provisions of section 73 of theCourts Ordinance. In consequence of the view which their Lordshipshave formed as to the construction of the former section it is unnecessarythat they should express any opinion with regard to this submissionand they refrain from doing so.
Their Lordships will humbly advise His Majesty that the appealshould be allowed, and that the case should be remitted to the SupremeCourt with a direction that an appeal lies to that Court under section 20of the Ordinance No. 1 of 1897 from the order of the District Judgedated October 30, 1941. Their Lordships have designedly abstainedfrom expressing any opinion as to any of the other questions raised bythe appeal, which it will be for the Supreme Court to determine. Therespondent should pay the appellants’ costs of this appeal, and alsotheir costs of the hearing before the Supreme Court which has provedabortive. It will be for the Supreme Court to make such order as itmay think right both as to the costs of the proceedings before theDistrict Judge and as to any of the costs hitherto incurred in respectof the appeal to the Supreme Court which have not been thrown away.
Appeal allowed.