1. The Crown possesses the rights of a private owner; statutory power to sell by auction does not inherently preclude restricted auctions or policy-based restrictions. (Para 10 )
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1931 Supreme(SC) 22
Privy Council At Eastern Africa
Sir Lancelot Sanderson, Atkin , Justice Lords Blanesburgh, JJ.
Commissioner for Local Government Lands and Settlement -Appellant
Versus
Abdulhusein Kaderbhai -Resopndent
Privy Council Appeal No. 8 of 1930
Decided On : 27-02-1931
Advocates Appeared:
C.J. Colombos, Inskip , Sir Thos., Solicitor General , A. Lavington
C.J. Colombos, Inskip , Sir Thos., Solicitor General , A. Lavington
The statutory requirement to sell land by auction does not inherently prohibit restricting the class of bidders. Such restrictions, including those based on race or user, are matters of administrative policy and are permissible unless expressly forbidden by statute.
Headnote:(A) Crown Lands Ordinance - Sections 18 and 26 - Disposal of Crown lands by auction - Power to restrict bidders - The power to sell by auction does not inherently preclude the power to restrict the class of bidders unless expressly prohibited by statute. The duty to sell by auction involves a duty to sell by public auction, but the administrator retains discretion over the terms and conditions of the auction, including the eligibility of bidders, to serve the interests of the Crown. (Paras 13-15)
(B) Statutory Interpretation - Comparison of provisions - Where identical empowering words ("sold by auction") are used in different parts of an ordinance, they are presumed to convey the same power. A specific requirement to give notice of a restriction in one part of the statute does not imply that the power to restrict is absent in another part where such a notice requirement is omitted; the notice clause merely calls attention to an existing power. (Paras 17-18)
(C) Administrative Law - Policy vs. Law - The determination of whether a restriction on bidding should be based on racial distinctions is a matter of policy for the appropriate constitutional authority and not a question of law for the court. (Para 14)
(D) Restrictive Covenants - Power to restrict the user of land includes the power to limit bidders to those capable of complying with such restricted user. (Para 14)
Facts of the case:
An application for a mandamus was filed to compel an official to allow a specific individual to bid for town plots and to cancel a condition restricting the residence of certain racial groups in the dwelling houses. The official had notified an auction sale restricted to a specific racial group. The lower appellate court had ruled that the requirement to sell by auction implied an unrestricted sale.
Findings of Court:
The official had the legal power under the ordinance to conduct a restricted auction and to impose restrictive conditions on the use of the land.
Issues: Whether the statutory requirement to sell town plots by auction precludes the imposition of restrictions on the class of persons permitted to bid, and whether restrictive conditions regarding the use of the plots are permissible.
Ratio Decidendi: The phrase "sold by auction" grants the power to conduct both restricted and unrestricted auctions. The absence of a specific notice requirement for restrictions in the section concerning town plots, as compared to agricultural land, does not negate the power to restrict; rather, the power is derived from the empowering section itself. Restrictions on bidders and users are matters of administrative policy within the discretion of the Crown's servants, provided they act in the interests of the Crown.
Result: Appeal allowed.
Legal Category Hierarchy
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administrative law
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statutory interpretation
- construction of empowering provisions
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practice and procedure
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prerogative writs
- mandamus
-
prerogative writs
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statutory interpretation
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property law
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crown lands
-
disposal of land
- auction sales
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disposal of land
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crown lands
-
constitutional law
-
separation of powers
- law versus policy
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separation of powers
Table of Contents
2. Does a statutory requirement to sell land by auction automatically mean it must be an unrestricted public auction?
No. A statutory duty to sell by auction does not necessarily limit the discretion of the officer regarding the terms and conditions of the auction, including the power to restrict bidders to certain classes, provided the officer acts honestly in the interests of the Crown. (Para 10 )
Lord Atkin.—
This is an appeal from an order of the Court of Appeal for Eastern Africa, varying an order of the Supreme Court of Kenya, which dismissed a motion by the applicant Abdulhusein Kaderbhai for a mandamus addressed to the appellant, the Commissioner for Local Government Lands and Settlement in Kenya. The Commissioner had given notice of an auction sale of town plots at Mombasa at which Europeans only were to be allowed to bid and purchase. The notice contained the further special condition, that during the terms of the grant the grantee should not permit the dwelling house or outbuildings which had to be erected upon it to be used as a place of residence for any Asistic or African not a domestic servant employed by him. The applicant, who is an Indian subject of His Majesty resident in Mombasa on 10th August 1928, by notice of motion dated 9th August, moved the Court for a mandamus commanding the Commissioner to allow the applicant to bid for and purchase at the auction sale the plots on Mombasa Island, notified to be held on 11th August, and also commanding the respondent to cancel or annul the condition No. 5 of the special conditions, being the condition above referred to, restricting the use of the dwelling-house. The learned Judge before whom the application came ex parte made an order postponing the sale and ordered that
"a notice to show cause do issue to the respondent upon the above mentioned motion for a mandamus."
returnable in a month. Eventually, in December, counsel for the applicant and the Commissioner were heard on that order, and the learned Judge dismissed the motion. On appeal to the Court of Appeal for East Africa the Court allowed the appeal as to the right to bid and purchase, but dismissed it as to the restrictive condition. The decree reads :
"It is ordered that the appeal be allowed . . . to the extent that the rule in regard to the first prayer is made absolute, viz., the appellant is allowed to bid for and purchase certain Crown land proposed to be sold by auction in Mombasa Island."
No objection appears to have been taken at any time to the form of the proceedings, counsel for the Commissioner in the Supreme Court stating that he was instructed not to take any technical points, but to argue the case on its merits. Their Lordships will proceed therefore to dispose of the legal question involved, and will reserve any comments on the procedure.
The disposal of Crown lands in Kenya is regulated by the Crown Lands Ordinance No. 12 of 1915. The case made by the applicant is that under the provisions of the ordinance the Commissioner is bound to permit all members of the public or, alternatively, all subjects of the Crown, to bid and purchase at an auction of town plots, and is equally bound not to insert in the lease of any such plots restrictive conditions adversely affecting the Asiatic or African population of Kenya, at any rate, to such an extent as to make a purchase by them of no practical value. The case of the Commissioner is that the terms of the ordinance do not prevent him from imposing the restrictions of which complaint is made. It is desirable to point out that the Courts are concerned only with the bare question of law, viz., the powers of the Commissioner under the ordinance. Questions of policy, or, in other words, how the legal powers shall be exercised, are not matters for the legal tribunal, but have to be determined by the appropriate constitutional authority. Approaching thus the construction of the ordinance it is found that it is divided into twelve parts. Those with which this controversy is concerned are Part 2, Administration; Part 3, Disposal of Land within Townships; Part 4, Disposal of Agricultural Land. By S. 6, the first section falling under Part 2, the Governor is given power to grant lease or otherwise alienate on His Majesty's behalf, any Crown lands for any purpose and on any terms and conditions as he may think fit. He is further given power to remit covenants an
