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BANDIYA v. THE LAND COMMISSIONER
NLR52V95
1950 Present :
Gunasekara J.
BANDIYA, Petitioner, and THE LAND COMMISSIONER,
Respondent
S. C. 259-Application for Writs of Certiorari and Prohibition
Writs of Certiorari and
Prohibition-Land Redemption Ordinance, No. 61 of 1942- Section 3 (1) as amended
by section 2 of Ordinance No. 62 of 1947-Land Commissioner's powers of
acquisition of land-Acquisition is executive and not judicial act.
The Land Commissioner's authority under the Land Redemption Ordinance to acquire
an agricultural land depends not on its having been sold or transferred in the
circumstances specified in section 3 (1) but upon his being satisfied that it
has been so sold or transferred. If he is so satisfied, his acquisition of the
land would be an executive and not a judicial act and therefore cannot be the
subject of a writ of certiorari or of prohibition.
APPLICATION
for writs of certiorari and prohibition in respect of a decision made by the
Land Commissioner under the Land Redemption Ordinance.
R. S. Wanasundera in support.
Cur. adv. vult.
July 19, 1950. GUNASEKARA J.-
The petitioner alleges that the Land Commissioner, purporting to act under the
Land Redemption Ordinance, No. 61 of 1942, has decided to acquire on behalf of
the Government a land of which the petitioner is the owner, and he seeks to have
the decision quashed and the Land Commissioner prohibited from proceeding with
the acquisition on the ground that the "acquisition proceedings are illegal,
without jurisdiction and void".
The Land Commissioner's powers of acquisition under the Ordinance are derived
from section 3 (1) as amended by section 2 of Ordinance No. 62 of 1947. He is
authorised to acquire any agricultural land if he is satisfied that that land
was at any time, but not earlier than January 1, 1929-
(a) sold in execution of a mortgage decree, or
(b) transferred by its owner to any other person in satisfaction or part
satisfaction of a debt which was due from him to that other person and which was
secured by a mortgage of that land subsisting immediately prior to the transfer,
or
(c) transferred by its owner to any other person, at the request of a mortgagee
of that land, in satisfaction or part satisfaction of a debt which was due from
that owner to that mortgagee and which was secured by a mortgage of that land
subsisting immediately prior to the transfer.
The petitioner's account of his title to the land in question is as follows: -
On March 11, 1920, the original owner, Esandu, created a usufructuary mortgage
in favour of one Sinchie to secure a loan of Rs. 150 and on April 25, 1928,
Sinchie assigned her rights to the petitioner. Thereafter, on February 27, 1940,
Esandu transferred the land to the petitioner for a consideration of Rs. 400,
but reserving a right to obtain a re-transfer on payment of a sum of Rs. 435
within a period of one month. Out of the consideration a sum of Rs. 250 was paid
in the presence of the notary and Rs. 150 was set off against the sum due on the
bond.
It was contended for the petitioner that his land cannot be regarded as a land
that was sold or transferred in the circumstances specified in (a), (b) or (c)
of section 3 (1) and that therefore the acquisition is not authorised by that
provision. The Land Commissioner's authority to acquire a land depends, however,
not on its having been sold or transferred in the circumstances specified in
section 3 (1) but upon his being satisfied that it has been so sold or
transferred. If he is so satisfied he is authorised to acquire the land and, in
terms of section 3 (4), the question whether it should or should not be acquired
"shall, subject to any regulations made in that behalf, be determined by the
Land Commissioner in the excise of his individual judgment; and every such
determination of the Land Commissioner shall be final". The acquisition would be
an executive and not a judicial act and therefore cannot be the
