DIAS v. THE ASSISTANT GOVERNMENT AGENT OF MATARA.

DIAS v. THE ASSISTANT GOVERNMENT

AGENT OF MATARA.

D. C, Matara, 9,302.

Ordinance No. 1 of 1897-Notice calling for claims-Irregularity in publication-Reference to Court-Appearance of claimant in Court and filing of statement of claim-Jurisdiction of Court-Waiver of irregularities.

Where the notice calling for claims under section 1 of the Ordinance No. 1 of 1897, dated 15th June, was not published in the Government Gazette until 9th July, so that instead of the full period of three months being given for claimants to come in, the period of three months less twenty-four days was given, and the Government Agent referred to Court a claim made to him and not admitted by him, and the claimant duly made in Court his statement of claim,-

Held, per Bonser, C.J.-In view of the stringent provisions of the Ordinance and the perilous consequences which follow on the publication of a notice under it, no irregularity can be waived or condoned by the fact of the claimant appearing in Court and making his statement of claim.

Per Withers, J.-The time for which the notice is to run is of the very essence of the notice, and non-observance of the requirements regarding it renders subsequent proceedings of no effect.

THE proceedings in this case were based on a reference made under section 5 of the Ordinance No. 1 of 1897. It was as follows: -

" In the matter of the land commonly known as Munupurehena, &c., situate in the village of Talahagama in the Matara-Gangaboda pattu, in the Southern Province.

" The notice required by section 1 of the Ordinance No. 1 of " 1897 having been duly given on the 15th June, 1897, and " published in the Government Gazette of the 9th July, 1897, in " respect of the land commonly called Munupurehena, &c., as " described in the annexed plan 4,727/J 504, and containing in extent " 35 acres and 23 perches, and a claim having been made thereto by "Messrs. E. Dias and C. J. de Le Mesurier, and due inquiry " having been made by me, J. P. Lewis, Special Officer appointed " under Ordinance No. i of 1897, of the Matara District of the " Southern Province, into the said claim; and whereas I do not " admit the said claim of the said E. Dias and C. J. R. Le Mesurier, " and I have failed to enter into any agreement with the said E. Dias " and C. J. R. Le Mesurier in respect thereof, such claim is there-" fore referred by me, under the powers vested in me by sections S " and 6 of the said Ordinance, to the District Judge of Matara.

"J. P. Lewis,

"Matara, December 30, 1897.

"Special Officer,"

Thereupon, on the 2nd day of March, 1898, E. Dias filed his statement of claim, and prayed that he may be declared owner of the said lands, and that his title be upheld as against the Crown, &c.

The case came on for hearing before Mr, J. Casie Chitty, District Judge, and it was contended for plaintiff that the reference was not made by the Special Officer contemplated by section 28 as the Special Officer " for the whole Island," but by a Special Officer for the Matara District; that the land in question was not stated in the reference to be forest, chena, waste, or unoccupied land; that the notice published in the Gazette of 9th July, 1897, setting forth the 15th of June, 1897, as the date of the notice, was irregular, as it curtailed the three months' notice by twenty-four days; and that on the face of the reference there appeared only one publication of the notice in the Gazette, instead of six publications.

The District Judge ruled that three of the foregoing objections were amendable, but that the objection relating to the short notice in the Gazette was fatal. He therefore dismissed the reference as irregular and invalid, and ordered that each party bear his own costs.

The Assistant Government Agent appealed.

Ramanathan, S.-G., a

ppeared for him

The end and aim of the Ordinance No. 1 of 1897 is " speedy " adjudication " of

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