Leo Et Al., V. The Land Commissioner

1955 Present : Gratiaen, J., and Swan, J.

P. M. WALTER LEO el al., Petitioners, and THE LAND
COMMISSIONER, Respondent.

S. C. 141-APPLICATION FOR A WRIT OF CERTIORARI TO QUASH
THE DECISION MADE BY THE LAND COMMISSIONER
UNDER L. R. O. APPLICATION NO. 3076.

Certiorari-"Judicial act"-Excess of jurisdiction-Burden of proof-Land Redemption Ordinance, No. 61 of 1942 (as amended by Ordinance No. 62 of 1947)-Sections 3 (1) and (4), 8-" If the Land Commissioner is satisfied "- " Agricultural land ".

If an inferior tribunal making a judicial decision has to be " satisfied " that a certain state of facts exists before adopting a permitted course of action, that state of facts must in fact exist, and the burden is on the tribunal, whose jurisdiction has been challenged, to prove the facts which give it jurisdiction. If upon the facts the excess of jurisdiction is manifest, or if the material placed before the superior Court is plainly insufficient to justify a conclusion that the limited jurisdiction has not been exceeded, certiorari will lie.

A writ of certiorari is available against the Land Commissioner if, purporting to act under the Land Redemption Ordinance, he orders the compulsory acquisition of property that is not " agricultural land " within the meaning of sections 3 (1) and 8 of that Ordinance.

The mere existence of coconut trees and plantain bushes on residential property does not automatically convert it into " agricultural land " within the meaning of the Land Redemption Ordinance.
Bandiya v. The Land Commissioner (1950) 52 N. L. R. 95, not followed.

APPLICATION for a writ of certiorari on the Land Commissioner.

H. V. Perera, Q.C., with N. E. Weerasooria, Q.C., and S. P. M. Rajendram, for the petitioners.

Walter Jayawardene, with H. L. de Silva, Crown Counsel, for the respondent.

Cur. adv. vult.

November 25, 1955. GRATIAEN, J.-

This is an application for a mandate in the nature of a writ of certiorari quashing an order dated 9th January 1953 made by the Land Commissioner for the acquisition of a land, together with the buildings standing on it, under the Land Redemption Ordinance No. 61 of 1942 (as amended by Ordinance No. 62 of 1947). The petitioners are the owners of the property (2.5 acres in extent), and the purported acquisition is resisted on the fundamental ground that it is not " agricultural land " within the meaning of the Ordinance.

The first question which arises is whether certiorari can ever lie in cases of this kind. This depends on the validity of Mr. Walter Jayawardene's submission that the Commissioner's functions under the Ordinance are purely administrative in character. The Commissioner is admittedly empowered " to determine questions affecting the rights of subjects " but it is denied that in the process of determining those questions he is under " a duty to act judicially " ; accordingly, (so the argument proceeds) this Court cannot control his administrative acts by way of certiorari or prohibition.

The Land Redemption Ordinance certainly empowers the Commissioner to make decisions which interfere with rights of private property, resulting in the owner being divested compulsorily of his title. The initial test of amenability to certiorari is therefore satisfied. B v. The Electricity Commissioners 1[(1924) 1 K. B. 171 at 204.]. The question is whether the exercise of administrative powers resulting in an order for acquisition does involve, at least at the preliminary stages, the performance of a judicial function. Let us therefore examine the process by which the Commissioner's ultimate decision is reached.

The first limitation placed on the Commissioner's statutory powers is that no property other than " agricultural land ", as defined in section 8 of the Ordinance, is liable to be acquired. That is to say, the Commissioner cannot take over on behalf of the Crown any property which, at the time of the

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