Singho Mahatmaya V. The Land Commissioner

1964 Present: H. N. G. Fernando, J., and G. P. A. Silva, J.

M. R. SINGHO MAHATMAYA, Appellant, and THE LAND COMMISSIONER, Respondent

S. C. 148/1961-D. C. Colombo, 7621

Land Redemption Ordinance-Section 3-Acquisition of land thereunder-Remedy of owner-Land Commissioner not a corporation sole-Immunity from being sued nomine officii-Certiorari.

      In an action instituted against the Land Commissioner for the purpose of obtaining from the Court a declaration that a certain land Was not liable to be acquired in terms of the Land Redemption Ordinance-

     Held, (i) that the Land Commissioner cannot be regarded as a corporation sole and, therefore, cannot be sued nomine officii.

            (ii) that the appropriate remedy of the plaintiff was by Way of an application for Certiorari.

    Observations on the procedural difficulties which Would arise in practice if the Land Commissioner is sued in any case eo nomine.

APPEAL from a judgment of the District Court, Colombo.

                 H. V. Perera, Q.C., with Nimal Senanayake and Bala Nadarajah, for the Plaintiff-Appellant.

                Mervyn Fernando, Crown Counsel, for the Defendant-Respondent.

Cur. adv. vult.

March 17, 1964. G. P. A. SILVA, J.-

     The plaintiff-appellant in this case brought an action against the defendant-respondent, the Land Commissioner, for the purpose of obtaining from the Court a declaration that a certain land in Plan No. 86, dated 14th July, 1946, was not liable to be acquired in terms of the Land Redemption Ordinance. The respondent took up the position, inter alia, that the action could not be maintained against him, as it had been instituted against the Land Commissioner, nomine officii. When the case was taken up for trial, the learned District Judge, as a preliminary issue considered the question, whether the above plea put forward by the respondent was sound, and gave his judgment, answering this issue in the negative, and dismissed the appellant's action with costs. The present appeal is from this order.

    In dismissing the plaintiff's action, the learned District Judge was guided by the Privy Council decision in the case of The Land Commissioner v. Ladamuttu Pillai 1[ 1 (1960) 62 N.L.R. 169.] in which Their Lordships of the Privy Council took the view, disagreeing with the decision of a Divisional Bench of this Court, that the Land Commissioner cannot be regarded as a corporation sole, and that therefore be could not be sued nomine officii. In the Divisional Bench judgment of this Court, my Lord the Chief Justice raised a number of cogent difficulties which would arise in practice, if the Land Commissioner is sued in any case eo nomine. Their Lordships in the Privy Council unfortunately refrained from pronouncing upon these procedural difficulties in view of the absence of the Attorney- General as a party. If I may say so with respect, the difficulties enumerated by my Lord the Chief Justice are very real difficulties, which either party would have to face in a litigation of this nature. On the one hand, the successful party will not be able to enforce a decree against the Land Commissioner in line event of the holder of the office changing, retiring or dying. On the other hand, if a successful Land Commissioner who is sued eo nomine and who obtains, for instance, a decree for costs after the dismissal of any action brought against him, should, die after the decree, his death will leave the Government Department without any means of enforcing the decree for costs. For, there would be something inherently wrong in the legal representative of the deceased Land Commissioner recovering costs on behalf of a Government Department. If their Lordships of the Privy Council found it possible to pronounce some judgment in regard to these obvious and real difficulties, it would have been most helpful to this Court which is obliged to follow th

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