049-NLR-NLR-V-48-VERNON-RAJAPAKSE-Petitioner-and-THE-TRIBUNAL-OF-APPEAL-et-al.-Respondents.pdf
Vernon Rajapakse v. The Tribunal of Appeal.
145
1947Present: Wijeyewardene 3.
VERNON RAJAPAKSE, Petitioner, and THE TRIBUNALOF APPEAL, et al., Respondents
In the Matter of an Application for a Mandate in the Nature of aWrit of Prohibition on the Tribunal of Appeal constituted underthe Provisions of Regulation 8 (2) of the Defence (Compensation)Regulations, 1941. Application No. 505/194S.
Defence (Compensation) Regulations, 1941—Validity of—Requisition of land—Right of owner to claim compensation in ordinary Civil Courts—Emer-gency Powers (Colonial Defence) Orders in Council, 1939 and 1940—Right of a Court of Law to canvass the power of the Governor to makeRegulations thereunder—Governor’s Order made under Emergency Laws(Transitional Powers) (Colonies, &c.) Order in Council, 1946, andpublished in Gazette of February 22, 1946—Effect of that Order—Writ of Prohibition.
The competent authority appointed under the Defence (Miscellaneous)Regulations took possession of an estate of the petitioner under Regula-tion 34 of those Regulations. The competent authority could not reachan agreement with the petitioner regarding the latter’s claim for compen-sation in respect of the requisition of the estate and, acting under Regula-tion 7 of the Defence (Compensation) Regulations, 1941, referred thedispute to a Tribunal appointed under Regulation 8 (2) of those Regula-tions. In an application made by the petitioner for a mandate in thenature of a Writ of Prohibition against the Tribunal—
Held, that the Defence (Compensation) Regulations, 1941, wereintra vires of the powers conferred on the Governor by the EmergencyPowers (Colonial Defence) Order in Council, 1939, and the EmergencyPowers (Colonial Defence) (Amendment) Order in Council, 1940, anddeprived the petitioner of his right to make his claim for compensationin the ordinary Civil Courts. A court of law is not competent to canvassthe power of the Governor to make a particular Regulation under theOrders in Council, 1939 and 1940, once it appears to His Excellency thatsuch Regulation is necessary for any of the specified purposes.
Held, further, that the Tribunal had jurisdiction to assess the compensa-tion due in respect of the possession of the estate not only prior toFebruary 24, 1946, but also subsequent to that date.
A
PPLICATION for the issue of a Writ of Prohibition on the tribunalcf appeal constituted under the provisions of Regulation 8 (2) oi
the Defence (Compensation) Regulations, 1941.
V. Perera, K.C. (with him D. W. Fernando), for the petitioner.—There are two points on which the petitioner relies in support of hisapplication for a Writ of Prohibition against the tribunal, viz., (1) TheDefence (Compensation) Regulations, 1941, are ultra vires of the powersconferred on the Governor by section 1 of the Emergency Powers (Defence)Acts of 1939 and 1940 as adapted, modified and extended to Ceylonby the Emergency Powers (Colonial Defence) Orders in Council of 1939and 1940.(2) Even if the Compensation Regulations are intra vires
of such powers they ceased to be operative on February 24, 1946.
Goluwapokuna Estate was taken possession of under Regulation 34 (1)of the Defence (Miscellaneous) Regulations made by the Governor under
146
Vernon Rojapakse v. The Tribunal of Appeal.
powers conferred on him by the Emergency Powers (Defence) Acts of1939 and 1940 as adapted, modified and extended to Ceylon by EmergencyPowers (Colonial Defence) Orders in Council of 1939 and 1940. Underthe same powers the Defence (Compensation) Regulations, 1941, weremade. The Compensation Regulations are, it is submitted, ultra vires.In England an Act of Parliament, i.e., Requisitioned Land and WorksAct, was considered necessary where the rights of subjects were curtailedin that particular way. It is difficult to understand why an Act involvingrather cumbersome procedure was resorted to if the simpler way,oflegislating by Order in Council was possible.
The powers conferred on His Majesty and on the Governor by theseActs are very wide but they cannot be unlimited. They are limitedbecause they are powers of legislation delegated to His Majesty by theParliament which alone has unlimited power to legislate. If there is alimit one must be able to say that a particular case falls within the limitor not though it may be difficult in so many words to define the exactlimits. The test seems to be whether the particular compensationregulations bear any relation to the objects contemplated in the Acts.The question whether there is such a relation must be judged objectively.One can concede without hesitation that taking possession of certainlands may bear a relation to one or several objects of the Acts of 1939and 1940, but rc deprive the subject of his right to full compensation canhave no conceivable relation to any of the objects of these Acts. TheRegulations therefore which enable the taking possession of land areintra vires, but regulations which make compensation payable to theowner much less than what he would be entitled to under the ordinarylaw, and regulations which enable constitution of tribunals for that purpose,may well be ultra vires. The submission is not that the opinion of Courtsshould be substituted for the view of the Governor. If there is anyrelation at all between the regulations and the objects no authoritycan say that the regulations are ultra vires. If, therefore, powers given tothe Governor are limited and there is no relation at all between thecompensation regulations and the expressed objects for which suchpowers were given, then, the compensation regulations are clearlyultra vires. See De Keyser’s Royal Hotel case1; New Castle BreweriesLimited v. The King
On the second point. The taking of possession and the retentionof property by the competent authority is referable to regulation34 (1) of the Defence (Miscellaneous) Regulations and to that alone.The emergency powers as defined by 17 (1) of the Compensation Regula-tions mean powers conferred by the Acts of 1939 and 1940 as adapted,modified and extended to Ceylon under the Orders in Council of 1939and 1940. The power to retain possession after February 24, 1946, wasgiven under the Emergency Law (Transitional Provisions) Act, 1946,and not under the Acts of 1939 and 1940.
H. H. Basnayake, K.C., Acting Attorney-General (with him WalterJayewardene, Crown Counsel, and H. Deheregodu, Crown Counsel), for thefourth respondent.—On the first point, that the Compensation Regula-tions are ultra vires of section 1 of Defence Acts of 1939 and 1940, certaiu
> (J919) 88 L. J. JR. (Chancery) 415 at 421.* L. R. (1920) 1 K. B. 854 at 865.
Vernon Rajapakse v. The Tribunal of Appeal.
147
limitations are provided in the Statute itself. Apart from that, powersconferred are subject to no limitation. The sole test is whether such,regulations appeared to His Majesty or the Governor, as the case may be,to be necessary or expedient for the various objects mentioned in theStatute and not whether such regulations are in fact necessary orexpedient. No Court or other authority can review His Majesty’s or theGovernor’s powers once His Majesty or the Governor has made theregulations. The cases cited for the petitioner were cases interpretingpowers given for similar purposes under Statutes enacted during theWar of 1914. Statutes of 1939 and 1940 have been specially framed,giving powers wider than those given under Acts enacted for the 1914emergency. See Rex v. Comptroller of General Patents Ex Parte BeyerProducts Limited1; Liversidge v. Anderson, et al ‘; Robinson v. Corporationof Sunderland.'; Wijesekera v. Festing *.
On the second point—The Emergency Acts and with them theOrders in Council of 1939 and 1940 expired on February 24, 1946.But under the Emergency Laws (Transitional Powers) Act of 1946an Order in Council empowering the Governor to make an Order to keepin force such regulations as the Governor considers necessary for certainpurposes was made. The Governor has made such an Order on February22, 1946. By that Order the Governor made provision for the continua-tion of certain regulations including regulation 34 (1) of the Defence(Miscellaneous) Regulations in a modified form and also for the continua-tion of the Compensation Regulations. These regulations, continuedin force under the Governor’s Order, are therefore regulations madeunder powers conferred by the Defence Acts of 1939 and 1940. SeeMaxwell on Interpretation of Statutes, 8th Edition, p. 349; Beale onCardinal Rules of Legal Interpretation, 3rd Edition, p. 510 ; Shipmanv. Henbest'; Wallace v. Clench “.
Counsel also cited Yoxford and Darsham Farmers Association Limitedv. Llewellyn'.
H. V. Perera, K.C., in reply.—/The cases cited by the Attorney-Generaldo not show that His Majesty or the Governor has unlimited powers tolegislate. The question does arise whether it appeared to His Majestyor the Governor necessary or expedient. If the question arises a negativeanswer is possible.
On the second point—The question is whether the possession of Goluwa-pokuna Estate after February 24, 1946, is under powers conferred by theDefence Acts of 1939 and 1940 or under Emergency Laws (TransitionalPowers) Acts of 1946. When an Act is kept alive by a subsequentAct, if the subsequent Act did nothing more than keep the old Act alive,then the old Act can be said to be operative. But the position isdifferent once a repeal or amendment is made and substitution of otherprovisions enacted by the subsequent Act. The substitutions and amend-ments are in force not by virtue of the old Act but by the new Act.The matter may be looked at in another way:The taking of possession
L. B. (1941) 2 K. 3. 306 at 311.*£. B. (1919) A. C. 646.
L. B. (1942) A. C. 206.6 {1190) 100 B. B. 921.
» L. B. (1899) 1 Q. B. D. 751 at 757.4 (1947) 1 A. E. B. 175.
’ (1946) 2 A. E. B. 38 al 40.
148 WIJEYEWAJRDENE J.—Vernon Rajapakse v. Tribunal of Appeal.
authorised by Defence (Miscellaneous) Regulations 34 (1) has, as itsnecessary corollary, authority to enter and retain or keep possession.Though the physical acts of entry, taking possession and keeping orretaining possession may be distinct acts, the legal right is one andcannot be separated. Or again entry, taking possession and keepingpossession may be considered as several aspects of the same thing. Theright to take possession was taken away on February 24, 1946, and allits corollaries and consequences were also taken away on that date.
Cur. adv. vult.
March 31, 1947. Wijeyewabdene J.—
This is an application for a Mandate in the nature of a Writ of Prohibi-tion against a Tribunal, consisting of the first, second and third respon-dents, appointed under Regulation 8 (2) of the Defence (Compensation)Regulations, 1941 (hereinafter referred to as the Compensation Regula-tions) . The fourth respondent is the competent authority under theCompensation Regulations. The petitioner states that the fourth res-pondent is made a party to these proceedings in order to give him noticeof this application.
The petitioner is the owner of Goluwapokuna Estate of the extent ofnearly 1,076 acres. The competent authority appointed under theDefence (Miscellaneous) Regulations (hereinafter referred to as theMiscellaneous Regulations) took possession of the estate under Regulation34 of those Regulations on January 15, 1944. A portion of that estate,of the extent of about 270 acres, was derequisitioned on August 15, 1946.
The competent authority could not reach an agreement with thepetitioner regarding the petitioner’s claim for compensation in respectof the requisition of the estate, and the competent authority purportingto act under Regulation 7 of the Compensation Regulations referred thedispute to the Tribunal in question.
The petitioner urges the following reasons in support of hisapplication—
The Tribunal has no jurisdiction to act in this matter, as the Com-
pensation Regulations are ultra vires of the powers conferredon the Governor by section 1 of the Emergency Powers (Defence!Acts, 1939 and 1940, (hereinafter referred to as the DefenceActs, 1939 and 1940) as adapted, modified and extended toCeylon by the Emergency Powers (Colonial Defence) Order inCouncil, 1939, (hereinafter referred to as the Order in Council,1939), and the Emergency Powers (Colonial Defence) (Amend-ment) Order in Council, 1940 (hereinafter referred to as theOrder in Council, 1940).
Even if the Compensation Regulations are intra vires, the Tribunal
in question has no jurisdiction to determine any matter regardingcompensation in respect of the possession of the estate fromFebruary 24, 1946, as that possession is under the Regulations“ modified and continued in force ” by an Order of the Governormade under the Emergency Laws (Transitional Powers) (Colonies,&c.) Order in Council, 1946, (hereinafter referred to as theOrder in Council, 1946).
WUEYEWARDENE J.—Vernon Rajapakse v. Tribunal of Appeal. 149
The preamble of the Defence Act, 1939, describes it as an Act passed“ to confer on His Majesty certain powers which it is expedient that HisMajesty should be enabled to exercise in the present emergency ; andto make further provisions for purposes connected with the defence ofthe Realm Section 1 (1) of the Act reads—
“ Subject to the provisions of +his section, His Majesty may byOrder in Council make such Regulations …. as appear to himto be necessary or expedient for securing the public -safety, the defenceof the Realm, the maintenance of public order and the efficient prosecu-tion of the war in which His Majesty may be engaged, and for main-taining supplies and services essential to the life of the community ”.Sub-section (2) enacts that “without prejudice to the generality ofthe powers conferred by the preceding sub-section ” ; the Regulationsmay authorise “ the taking possession or control, on behalf of His Majesty,of any property ….” Sub-section (5) places a certain restriction
on the very wide powers given in the earlier sub-sections by excluding anyRegulations dealing with conscription or extending the powers of CourtsMartial. Section 8 of the Act requires every Order in Council containingRegulations to be laid before Parliament and provides that withintwenty-eight days of such an Order being laid before it, the Parliamentmay annul the Order by a resolution of the House.
Acting under section 4 (1) of the Defence Act, 1939, His Majesty inCouncil made the Order in Council, 1939, extending to this Island someof the provisions of the Act including section 1 but excluding section 8•and some other sections, subject to the adaptations and modificationsin the First Schedule of the Order.
The Defence Act, 1940, was passed partly for removing some of therestrictions created by sub-section 5 of section 1 of the Defence Act, _1939. That provision of the Act of 1940 was extended to Ceylon by theOrder in Council, 1940.
It will thus be seen that the power of the Governor to make Regulationsfor Ceylon under the Orders in Council, 1939 and 1940, was, so far as itis relevant to this application, same as the power of His Majesty to makeRegulations for the Realm under the Defence Acts, 1939 and 1940,subject, however, to the difference that while a Regulation made byHis Majesty could be annulled by a resolution of the Parliament, aRegulation made by the Governor was not liable to be annulled by aresolution of the State Council.
The Miscellaneous Regulations and the Compensation Regulationswere made by the Governor by virtue of the powers vested in him by theOrders in Council, 1939 and 1940.
Dealing with the first point of his argument the petitioner’s Counselcontended that it was open to this Court to investigate whether thepurpose, for which the Compensation Regulations were made, was anyof the purposes referred to in section 1 of the Defence Acts, 1939 and 1940.He wa3 prepared to concede that once that, identity of purpose wasestablished, it was not within the powers of this Court to make the furtherinvestigation whether the Compensation Regulations were reasonably■necessary or expedient for that purpose. He contended that, while a
150 WIJEYEWARDENE J.—Vernon Rajapakse v. Tribunal of Appeal.
Regulation providing for the competent authority taking possession ofthe property of a subject was warranted by section 1 of the DefenceActs, it could not be said that it was necessary or expedient for anyof the purposes Set out in that section that the subject should be deprivedof his right to make his claim for compensation in ordinary Civil Courts,especially after the cessation of hostilities. In support of his argument,he referred to certain passages in Newcastle Breweries, Limited v. TheKing1 and The Attorney-General v. De Keyser’s Royal Hotel, Limited3.In the former case Salter J., who was considering the validity of Regula-tion 2b of the Defence of the Realm Regulations made under Section 1of the Defence of the Realm Consolidation Act, 1914, said—
“I do not think that a Regulation which takes away the subject’sright to a judicial decision, or transfers the adjudication of his claim,without his consent, from a Court of law to named arbitrators, couldfairly be held to be a Regulation for securing.the public safety and thedefence of the Realm, or a Regulation designed to prevent the success-ful prosecution of the war being endangered, within the meaning ofthese words in the Defence of the Realm Consolidation Act, 1914
In The Attorney-General v. De Keyser’s Royal Hotel, Limited (supra)the House of Lords considered the right of a person to claim compensationex lege in respect of a property which was found to have been requisitionedunder the Defence of the Realm Consolidation Act, 1914. In thatcase Lord Dunedin said—
“ It is clear that under these sub-sections (i.e., sub-sections 1 and 2of section 1 of the Defence of the Realm Consolidation Act, 1914)the taking possession of De Keyser’s Hotel was warranted, but therewas no necessity for the public safety or the defence of the Realmthat payment should not be made ”.
These passages have to be construed with reference to the Acts andRegulations discussed in those cases. Both those cases dealt with Regula-tions made under the Defence of the Realm Consolidation Act, 1914,and the Courts were considering the scope of that Act in the light ofsome previous Acts which were in force and were connected with thematters arising in those cases. The language of section 1 of the Defenceof the Realm Consolidation Act of 1914 differs from the language ofsection 1 of the Defence Act, 1939. The power given by the former Actto His Majesty in Council was merely the power “ to issue Regulationsfor securing the public safety and the defence of the Realm ” and notthe power as given by the latter Act “ to make such Regulations ….as appear to him to be necessary or expedient for securing the publicsafety ….”. Those cases do not, therefore, afford much help
in construing the scope of section 1 of the Defence Act, 1939.
If the contention of the petitioner’s Counsel with regard to the Governor’spowers is sound it must be equally sound with regard to the powers ofHis Majesty in Council to make Regulations under the Defence Act,1939. The words in the Defence Act that have to be considered are: —“ His Majesty may …. make such Regulations ….as appear to him to be necessary or expedient for securing the public
, {1920) 1 King's Bench 854.* {1926) Appeal Cases 508.
WUEYE WARDENE J.—Vernon Rajapakse v. Tribunal of Appeal. 151safety, &c. Do these words mean that it is sufficient for the validityof a Regulation if it should so appear to His Majesty, or do they meanthat there should be in existence some circumstances which a Court ofLaw would hold sufficient to make it appear to the Court that the Regula-tion is necessary or expedient for the specified purposes ? If the conten-tion of the petitioner’s Counsel is correct, it will involve the substitutionof the opinion of the Court for the view of His Majesty. I think thewords show clearly that once it appears to His Majesty that a particularRegulation is necessary or expedient he has the power to make theRegulation and that power cannot be canvassed directly or indirectlyin a Court of Law. His Majesty is given the power to make a Regulationif it appears to him to be necessary for any of. the specified purposes.The decision has to be taken by him. It was stated in Liversidge v.Sir John Anderson et al1 in considering a Regulation made by the HomeSecretary that, on a question of interpreting the scope of a power, it wasobvious that a wide discretionary power would more readily be inferredto have been confided to one who had high authority and grave responsi-bility. That observation would apply with much greater force where thepower is conferred by the Imperial Parliament on His Majesty. I thinkthe words make it clear that it is beyond the competence of a Courtof Law to decide whether a Regulation should have been made by HisMajesty. If that is the correct position with regard to a Regulation in. England, that would equally be the position regarding a Regulationmade in Ceylon by His Excellency the Governor acting under the Ordersin Council, 1939 and 1940.
I would refer to Wijeyesekere v. Festing' where the Privy Councilconsidered the powers of the Governor* under sections 3 and 5 of theLand Acquisition Ordinance. Section 3 says that “ whenever it shallappear to the Governor that land in any locality is likely to be neededfor any public purpose, it shall be lawful for the Governor to directthe Surveyor-General to examine …. such land and reporc…. whether the same is fitted for such purpose ”. Section 5
says that “ upon the receipt of such report it shall be lawful for theGovernor to direct the Government Agent to take Order for. the Acquisi-tion of the land ”. The Privy Council held that under these provisionsthe decision of the Governor was conclusive on the point that the landwas wanted for a public purpose and that it was not open to the personwhose land was affected to challenge the decision of the Governor uponthis point (see also The Government Agent v. Perera3.)
The Acting Attorney-General has invited my attention to the caseof Rex v. Comptroller General of Patents, Ex Parte Bayer Products, Limited*where the Court of Appeal considered the validity of a certain Regulationin England made under section 1 of the Defence Act, 1939. Dealing withan argument analogous to the argument submitted to me by the peti-tioner’s Counsel, Scott L.J. said—
“ The effect of the words ‘ as appear to him to be necessary orexpedient ’ is to give to His Majesty in Council a complete discretionto decide what Regulations are necessary for the purposes named in
1 (1942) Appeal Cases 20S.3 (1903) 7 New Law Reports. 313.
3 (1919) Appeal Cases 646.* (1941) 2 Kind's Bench. 306.
152 WUEYEWARDENE J.—Vernon Rajapakse v. Tribunal of Appeal.
the sub-section. That being so, it is not open to His Majesty’s Courtsto investigate the question whether or not the making of any particularRegulation was in fact necessary or expedient for the specified pur-poses. The principle on which delegated legislation must rest underour constitution is that legislative discretion which is left in plainlanguage by Parliament is to be final and not subject to control bythe Courts. In my view, the sub-section clearly conferred on HisMajesty in Council that ultimate discretion ”.
In the course of his judgment Clauson L.J. said—
“The applicants have attacked Regulation 60e on the ground thatHis Majesty was not authorised by the Act of 1939 to make it. It wasargued that the Regulation was not necessary or expedient for securingthe public safety, or any of the other purposes mentioned in the Act,but it appears to me, as a matter of construction of the Act to bequite clear that the criterion whether or not His Majesty has power tomake a particular Regulation is not whether that Regulation isnecessary or expedient for the purposes named, but whether it appearsto His Majesty to be necessary or expedient for the purposes named tomake the Regulation. As I construe the Act, Parliament has plainlyplaced it within the power of His Majesty to make any Regulationwhich appears to him to be necessary or expedient for the purposesnamed. Accordingly, the validity of Regulation 60e, or any otherRegulation made under section 1, sub-section 1, of the Act, can be in-vestigated only by inquiring whether or not His Majesty considered itnecessary or expedient, for the purposes named, to make the Regulationand this application for prohibition can succeed only if it is withinthe power of this Court to investigate the action of His Majesty whenhe stated, as I conceive that His Majesty did in making the Order inCouncil, that this Regulation appeared to him to be necessary orexpedient for the named purpose. In my view, this Court has nojurisdiction to investigate the reasons or the advice which moved HisMajesty to reach the conclusion that it was necessary or expedientto make the Regulation. The legislature has left the matter to HisMajesty and this Court has no control over it. I know of no authoritywhich would justify the Court in questioning the decision which HisMajesty must be taken to have stated that he has come to, namely,that this Regulation is necessary or expedient for the specified purposes.If His Majesty once reaches that conclusion with regard to a Regulation,that Regulation, when made, is the law of the land, subject to theprovision in the Act that, if either House of Parliament takes a viewdiffering from that on which His Majesty has acted, the order can beannulled. This being my view on the construction and effect of theAct, it is clearly wholly irrelevant to discuss whether Regulation~60ewas in fact necessary or expedient for securing the public safety, or forany other purposes set out in the sub-section. It is a wholly irrelevantmatter, and we have nothing to do with it. His Majesty formed theview that it was necessary or expedient, for the purposes mentioned,to make the Regulation, and, so far as this Court is concerned, there isan end of the matter.”
WIJEYEWARDENE J.—Vernon Rajapakse v. Tribunal of Appeal. 153
I hold that the Compensation Regulations are intra vires of the powersconferred on the Governor by the Orders in Council, 1939 and 1940.
I shall proceed to consider the second point raised on behalf of thepetitioner.
The Orders in Council, 1939 and 1940, were kept alive till February 24,1946, by various Orders in Council made in pursuance of section 11 (1)of the Defence Act, 1939, as amended by the Defence Act, 1940, and alsoby an Act of 1945, extending the duration of the Defence Acts, 1939 and1940, till February 24, 1946. By the Emergency Laws (TransitionalProvisions) Act, 1946, the Parliament provided for the continuation inforce of certain Defence Regulations until December 31, 1947, subject,however, to the limitations, exceptions and modifications specifiedin Part 1 and Part 2 of the Schedule to the Act. In pursuanceof the powers vested in him by section 18 (1) of that Act, His Majestyin Council passed the Order in Council, 1946, empowering the Governorto make an Order providing for the continuation in force until December31, 1947, of any Defence Regulations having effect in the Island “ whichappear to the Governor to be required for purposes similar to those forwhich the Defence Regulations specified in the First Schedule to the Actof 1946 are required, or for purposes similar to the purposes of any Actof the Parliament of the United Kingdom passed on or after the firstday of September, 1939, and in- force at the date of the passing of the Actof 1946 ”. The requisite Order (hereinafter referred to as the Governor’sOrder) was made by the Governor and published in the GovernmentGazette No. 9,523 of February 22, 1946.
The argument of the petitioner’s Counsel on the second point may besummarized as follows. The Compensation. Regulations govern thecompensation payable “ in respect of the taking possession of any land ”in the exercise of emergency powers [vide Regulation 2 (1) ]. The “ takingpossession ” contemplated by these Regulations is not merely the initial“ taking possession ” but also the retention of possession, and com-pensation in respect of the retention of possession is controlled by theRegulations only if the possession- of the land is retained in the exerciseof emergency powers [uide Regulation 2 (1)(a) ]. According to the
definition given in Regulation 17 (omitting what is irrelevant to thisinquiry) “ Emergency Powers ” means “ any power conferred by Regu-lations made under the Emergency Powers (Defence) Acts, 1939 and 1940,as adapted, modified and extended to Ceylon by the Emergency Powers(Colonial Defence) Order in Council, 1939, and the Emergency Powers(Colonial Defence) (Amendment) Order in Council, 1940 ”. The posses-sion of Goluwapokuna Estate was retained from February 24, 1946, notunder the Regulations mentioned under the Defence Acts, 1939 and 1940,but under a Regulation brought into operation by the Governor’s Orderof February 22, 1946. The Tribunal in question, therefore, had nojurisdiction to assess the compensation due for the period commencingfrom February 24, 1946.
Now, among the Regulations which were “ continued in force ” by theGovernor’s Order were (a) the Miscellaneous Regulation 34 subject to thelimitations and modifications as set out in- the second column of Part Iof the Schedule to the Order and (b) the Compensation Regulations
154 WUEYEWARDENE J.—Vernon Rajapakse v. Tribunal of Appeal.
which were made for the Island in 1941 for purposes similar to the purposesof the Compensation Defence Act which was passed on September 1,1939.
As it stood prior to February 24, 1946, the Miscellaneous Regulation34
empowers by paragraph (1) a competent authority, “ to take
possession of any land ” …. “ in the interests of public
safety, &c.” if it appears to him necessary or expedient to do so.
authorises by paragraph (1a) a Police Officer to use such force
as may be necessary in carrying out the directions of the com-petent authority with regard to the taking of possession and
provides by paragraph (2) that “ while any land is in possession
of a competent authority by virtue of this Regulation, that landmay be used by, or under the authority, of the competentauthority for such purpose, and in such manner, as that authoritythinks expedient in the interests of the public safety, &c.”
The limitations and modifications set out in Part I of the Schedule tothe Governor’s Order of 1946 with regard to this Regulation are asfollows : —
In place of paragraph 1 the following paragraph is substituted : —
“ Where possession of any land had at any time prior to thetwenty-fourth day of February, 1946, been taken by a compe-tent authority by virtue of the powers conferred by ary DefenceRegulation in force at such time, and such land was immediatelyprior to that day in the possession of a competent authorityby virtue of such powers, possession of such land may be con-tinued after the aforesaid day if it appears to the authoritythat such continuance is necessary or expedient.”
Paragraph 1a is omitted.
Paragraph 2 is modified to read:—“ while any land is in the
possession of a competent authority by virtue of this Regulationthe land may …. be used by, or under the authority of,the competent authority for the purposes of the public serviceor in any manner in- which the land was being used immediatelyprior to the twenty-fourth day of February, 1946 ”.
As they stood originally, paragraph (1) of the Regulation contemplatedthe initial taking of possession as well as the retention of possession bythe competent authority and paragraph 2 indicated for what purposesthe land could be used during the retention of possession. Under. theGovernor’s Order of 1946 paragraph 1 of the Regulation discontinued theright to take possession of lands after February 24, 1946, but providedfor the continuance of the retention of the possession of some landswhose possession had already been taken and paragraph 2 enabled thecompetent authority inter alia to use the lands, whose possession hadbeen retained, for the purposes “ specified in the enabling Act ”.
It appears to me, therefore, that the Governor’s Order "continued inforce” that part of Regulation 34, as it stood before February 24, 1946,which enabled the competent authority to retain possession of Goluwa-pokuna Estate and to use it in the manner in which it was being used
HOWARD CJ.—Suppramaniam Chettiar v. Saundaranayagam. 155
immediately prior to the twenty-fourth day of February, 1946. Thepossession of the Goluwapokuna Estate from February 24, 1946, wouldthus be under the powers conferred by a Regulation made under theDefence Acts, 1939 and 1940, and would, therefore, be a possessionretained in the exercise of Emergency Powers as defined by Regulation. 17of the Compensation Regulations.
The rule nisi is discharged and the petitioner’s application is refusedwith costs.
Rule discharged.