Vanderpoorten v. The Settlement Officer.
1942Present : Hearne and Keuneman JJ.
VANDERPOORTEN et al. v. THE SETTLEMENTOFFICER.120—D. C. Ratnapura, 6,940-
Land Settlement Ordinance, s. 24 (Cap. 319)—Land settled under the WasteLands Ordinance—Proceedings under Land Settlement Ordinance—Waste Lands Ordinance, s. 20—Right of Appeal.
Proceedings under section 24 of the land Settlement Ordinancecannot be taken in respect of land settled under the repealed WasteLands Ordinance, No. 1 of 1897.
An appeal does not lie from a decision under section 20 of the WasteLands Ordinance, No. 1 of 1897.
^I^PPEAL from an order of the District Judge of Ratnapura.
H. H. Basnayake, C.C., for respondent (on a preliminary objection).—The appellant has no right of appeal because the Land -SettlementOrdinance, which is a special enactment which confers jurisdiction on the
1 IS N. L. R. 334.
KEUNEMAN J.—Vanderpoorten v. The Settlement Officer.
District Court to entertain claims, does not confer a right of appeal froma decision under section 24 of the Ordinance. Appeal does not lieunless it is expressly given. The words “ The presentation of and theproceeding in relation to every such petition ” are not sufficient tocreate such right of appeal—Kanagasunderam v. Bodihame.1 TheKing v. Joseph Hanson3; The Queen v. Stock *; Attorney-General v.Siltem *.
H. V. Perera, K.C. (with him N. E. Weerasooria, K.C., and E. G.Wickremanayaka), for appellant.—Section 24 does give a right of appeal.The appeal is provided by sub-section (2) which provides that the“ presentation and the proceedings in relation to every petition ”shall be subject to the provisions of Chapter 24' of the Civil ProcedureCode. This application is really an application under section 20 ofOrdinance No. 1 of 1897, which is now repealed. The words “ the fore-going provisions of this Ordinance shall be applicable to the investigationand trial thereof ” are wide enough to confer the right of appeal.The mere fact that the wrong section is mentioned in the petition shouldnot prevent the action to be treated as if the proper section had beenmentioned. Later Counsel urged that the proceedings were under section20 of Ordinance No. 1 of 1897, and that the right of appeal was conferredby that section. Although Ordinance No. 1 of 1897 had been repealed,section 6 (3) (c) of the Interpretation Ordinance kept the. remedy aliveunder section 20. The proceedings were begun under Ordinance No. 1of 1897 and concluded under that Ordinance. The remedy in section 20was a step in these proceedings.
H. H. Basnayake, C.C., in reply.—Section 20 of Ordinance No. 1 of1897 is a special remedy and not a step in Waste Lands Ordinanceproceedings. The proceedings are concluded with the final order underthat Ordinance now made in the form of a Settlement Order. The repealof Ordinance No. 1 of 1897 has taken away this remedy, and with it theremedy under section 20 has gone. The Courts cannot legislate byproviding a remedy where the legislature has provided none.
March 4, 1942. Keuneman J.—
In this case, proceedings had been commenced in respect of thepremises in question under the Waste Lands Ordinance. No. 1 of 1897.During the course of the proceedings, the Waste Lands Ordinance wasrepealed by the Land Settlement Ordinance in 1931 (now Chapter 319).The proceedings were continued under the Waste Lands Ordinance,and Final Order was made under that Ordinance as amplified by section3 (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 with costs, and thepresent appeal is from that order.
It is clear, and was in fact eventually conceded by appellant’s counsel,that the appellants cannot avail themselves of section 24 of the Land
> 19 C. L. W. S3.3 112 E. It. .S92.
* 106 E. R. 1027.3 11 E. R. 1200.
232KEUNEMAN J.—Vanderpoorten v. The Settlement Officer.
Settlement Ordinance. The law applicable is contained in section 6 (3) (c)of the Interpretation Ordinance (Chapter 2) and is as follows : —
“ Whenever any written law repeals …. a former writtenlaw, such repeal shall not, in the absence of any express provision tothat effect, affect or be deemed to have affected—
(c) any action, proceeding, or thing pending or incompleted whenthe repealing written law comes into operation, but everysuch action, proceeding, or thing may be carried on and. completed as if there had been no such repeal. ”
The only sections of the Land Settlement Ordinance which have anyconnection with this matter are sections 3 (3) and 32, but it is clear, on areading of these sections; that the proceedings begun under the WasteLands Ordinance are not after the repeal converted into proceedingsunder the Land Settlement Ordinance and that the Final Order madethereafter is not by virtue of section 32 converted into an order undersection 3 of the Land Settlement Ordinance. Section 24 of the LandSettlement Ordinance has therefore no application to this case.
ItT follows that the petition so far as it relates to section 24 of the LandSettlement Ordinance is misconceived, and it is not necessary to considerfurther the effect of this section.
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 treated it.He is met by the objection that no appeal lies from an order made underthis section, but counters this by arguing that the words in section 20“ the foregoing provisions of this Ordinance shall be applicable to theinvestigation and trial thereof ” bring in the right of appeal undersection 18.
It has been laid down in The King v. Joseph Hanson1 that “the ruleof law is that though a certiorari lies, unless expressly taken away, yetan appeal does not lie ”, and this dictum was affirmed in The Queen v.Stock“ A right of appeal cannot be implied, but must be given by. express words See also Attorney-General v. Sillem These caseshave, been recently considered and followed in Kanagasunderam v. PodiHamine '.*
• Has the powet of appeal been given by express words in respect ofsection 20 of the Wlaste Lands. Ordinance? Undoubtedly one of the“ foregoing provisions ” is section 18, which confers a right of appealin respect of a reference under sections 5 and 6. But the foregoingsections are made applicable to “ the investigation and trial.” Havethese words a limiting effect ?
I think they have. Under section 16, the duty of the Commissioneror District Judge is to examine the claimant or his agent, and the witnessesof the parties, to inspect the documents of the parties and to make anyfurther inquiry that may be necessary, and thereafter to pass suchorder as he may consider just and proper. Under section 17, wheneverthe Commissioner or District Judge is of opinion that a fresh survey is
1 IOC E. R. 1021.3 11 E. R. 1200.
* 112 E. R. 892.* 19 C. L. H 53.
KEUNEMAN J.—Mohamed v. Sinnemuttu.
necessary “ for the purposes of the investigation and trial ” of the claim,he may cause the land to be surveyed.
I am inclined to think that the words “ investigation and trial ” havereference to the inquiry before the Commissioner or District Judge, andthat the right to appeal is distinct and separate, and does not relate tothe “ investigation and trial. ”.
I do not think section 23, which has been referred to, throws any lighton this matter, and it is not possible to interpret that section as con-ferring a right of appeal from an order under section 20.
I think the preliminary objection is a good one, and that there is noright of appeal in this case.
The appeal is dismissed with costs.
Hearne J.—I agree.
VANDERPOORTEN et al. v. THE SETTLEMENT OFFICER