The Attorney General V. Wijesuriya

1946 Present: Soertsz A.C.J. and Cannon J.

THE ATTORNEY-GENERAL, Appellant, and WIJESURIYA,
Respondent.

205-D. C. Colombo, 15,380.

Crown land-Lease of-Must conform to Land Sales Regulations-Land Commissioner?s right to bind Crown.

The plaintiff pleaded that by a contract between him and an agent of the land Commissioner the Land Commissioner was bound to lease to him for a period of four years and two and a half months the right to occupy certain allotments of Crown land and tap and take the produce of all the plantations on them. There were no plantations other than rubber on the allotments.

Held, (I.) that the transaction contemplated in the contract was a lease of land ;

(ii.) that, whether the transaction be regarded as a lease or something less than a lease, the Land Commissioner had not the power, under the Regulations regulating to dispositions of Crown lands, to render the Crown liable by entering into that contract.

APPEAL from a judgment and decree of the District Court of Colombo. The plaintiff sought, in this action, to recover from the Crown the sum of Rs. 75,000 as damages alleging that the Government Agent of Uva had failed to fulfill a contract which that officer had entered into with him on March 4/5, 1943, undertaking to ?lease to him for a period of four years and two and a half months the right to tap and take the produce of the rubber trees on certain allotments of land. . . . . referred to as the Keenapitiya Crown rubber lands . . . . . and to place the plaintiff in possession of the said allotments of land on March 15, 1943?.

H. H. Basnayake, Acting Attorney-General (with him H. W. R. Weerasooriya, C.C.), for the Crown, appellant.-There was no concluded lease to the plaintiff, Wijesuriya. It was only an agreement to give a lease if Sabapathipillai vacated the land. There was no obligation on the part of the Crown to give a lease to Wijesuriya.

Further, neither the Government Agent nor the Assistant Government Agent had an authority to give a lease. The officer who purported to act on behalf of the Crown had no authority to act in that way and therefore the Crown is not bound. The whole transaction is not according to the Land Sales Regulations. See Collector of Masulapatam v. Cavaly Vencata Narainappah 1; Prosunno Coomer Roy v. The secretary of State of India 2. Deen v. Attorney-General 3; Ekanayake Mudiyanselagedere Keerale Arachchille v. Galkadullegedere Kira 4. The distinction between a licence and a lease is dealt with in Cader Lebbe v. Punchi Naide 5; Bootha v. Soocher  6.

H. V. Perera, K.C. (with him F. C. W. Van Geyzel ), for the plaintiff, respondent.-The right to tap is analogous to a licence together with a

Foot notes

    1 (1860) 8 Moore?s I. A. 500 at p. 554                                                                  4 (1884) 6 S. C. C. 22.
    2 (1899) 26 I. L. R., Calcutta, 792 at p. 807                                                          5 (1917) 4 C. W. R. 140.
    3 (1923) 25 N. L. R. 334.                                                                                     6 S. A. L. R. (1941) T. P. D. 245.

grant to remove the latex. It is submitted that the decision in Cader Lebbe v. Punchi Naide is incorrect. The agreement in the present case created an interest in land not amounting to a lease or a disposition of land. The Land Sales Regulations are therefore inapplicable. Further, the instructions regarding procedure in sales and leases of Crown land are only directive. If the rules are not obeyed the act is not necessarily ?ultra vires?. At the most there is an irregularity. But the act itself is not void. The issue of the permit is not the essence of the contract. There was a completed contract and the parties contemplated putting it into a certain form. See Rossither v. Miller 1.[1(1878) 3 A. A. 1124] Departmental instructions cannot limit the scope of the government

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