| Fiji Islands - The State v The Director of Lands, Ex parte Charan - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
JUDICIAL REVIEW NO. 0001 OF 1997
The State
v.
The Director of Lands and
Labasa Blue Metal Supplies Limited
ex-parte
1. Ram Charan s/o Sampat
2. Shiu Ram s/o Ram Dass
3. Mukesh Chand s/o Balram
4. Mahend Kumar s/o Balram
5. Mahesh Kumar s/o Ram Charan
6. Amrika Prasad s/o Ram Dass
7. Rajend s/o Shanti Lal
8. Mata Prasad s/o Dharam Raj
Mr. H. Nagin and Mr. A. Kohli for the Applicants
Ms. N. Basawaiya and Mr. A. Parshu Ram for The Director of Lands
Mr. A. Sen for Labasa Blue Metal Supplies Limited
RULING
This is an application filed on 29th October 1997 for leave to issue judicial review proceedings challenging the grant of an Approval Notice of Lease by the Director of Lands ('the Director') to Labasa Blue Metal Supplies Limited ('the respondent company') in April 1997 over Crown land occupied by the applicants and their families. The expressed purpose of the Approval Notice granted was to enable the respondent company to establish and operate a 'Quarry' over the land.
The grounds on which the grant is challenged are two-fold, namely, that the Director acted unfairly in not first giving the applicants an opportunity to be heard before granting the Approval Notice, and secondly, it is alleged that the Director abused his discretion in failing to consider relevant matters.
The application is opposed by both the Director and the respondent company on the basis of inordinate delay causing prejudice to the good administration of the Department of Lands; failure to exhaust alternative remedies; abuse of process; and absence of an arguable case. All of these grounds of opposition are
well-taken but I propose in this ruling to deal mainly with the last of the grounds.
In this regard it is common ground and the applicants themselves admit that they are all 'squatters' on the land albeit, they claim, with the knowledge and concurrence of named officers of the Lands Department. They also claim to have received verbal assurances at various times, that their occupation of the land would be formally recognised
and regularised by the grant of leases once the land was subdivided.
In A.G. v. Hardeo Shandil 20 F.L.R. 93 Tuivaga J. (as he then was) in rejecting a not dissimilar claim to occupation of Crown lands by the defendant in that case said at p.94:
"The defendant claims that he occupied the land because of certain oral representations made to him by a staff of the Lands Department.
He did not specify the nature of those alleged representations. They have been unequivocally denied by the Director of Lands. They
appear too nebulous for this Court to attach any weight to them ...
The defendant also claims somewhat vaguely that there are triable issues involved in this case which ought not to be dealt with summarily
... I do not doubt this but I am afraid this Court can take no cognizance of matters such as this (viz.: a Hindu priest serving a useful purpose) in the present application which must be decided on legal grounds.
I am satisfied on the material before me that the defendant is a squatter on the land in question."
There is in this case not a shred of documentation produced to support any of the applicants claims. No official letters, no copy
applications for Crown leases, no receipts evidencing any payment of fees or rental, nor were the verbal assurances alleged to have been given personally by the
Director.
Section 59 of the Indemnity Guarantee and Bailment Act (Cap. 232) provides that:
"No action shall be brought -
(d) upon any contract or sale of land ... or any interest in or connecting them; unless the agreement upon which the action is to
be brought or some memorandum or note thereof is in writing and signed by the party to be charged therewith or by some other person
thereunto by him lawfully authorised."
This general statutory requirement is further reinforced in the case of Crown lands by the mandatory requirement in Section 12 & 14 of the Crown Lands Act (Cap. 132) that leases and licences of Crown land 'shall be in such form ... as may be prescribed' and Regulations 25 & 31 of the Crown Lands Regulations prescribes the relevant Forms in Schedules 1 & 2.
Needless to say in the case of Crown Lands it is only written leases or licences that comply with such prescribed forms that the Director is empowered to grant pursuant to his powers under Section 10 of the Crown Lands Act (Cap. 132).
It is noteworthy that when the Director of Lands granted the quarry lease to the respondent company there was no competing application for the land filed by any of the applicants
and the lease granted expressly imposed on the respondent company responsibility 'for the costs of relocating the squatters directly affected by the issue of the quarry lease' the applicants.
There is also a suggestion raised by the applicants that the Director is estopped from denying the verbal assurances given to them by officers of the Lands Department. Even accepting that such assurances could be positively proved by the applicants, I cannot accept as a matter of principle, that
the exercise of the Director's unfettered discretion to grant leases or licences over Crown lands could be fettered in such a manner by an officer of the Lands Department wrongfully assuming an authority he did not otherwise possess.
The 'principle' relied upon by the applicants is best stated by Lord Denning L.J. in his judgment in Howell v. Falmouth Boat Construction Co. 83 Lloyds Rep. when he said at p.328:
'Whenever government officers, in their dealings with a subject, take on themselves to assume authority in a matter with which he
is concerned, he is entitled to rely on their having the authority which they assume. He does not know and cannot be expected to
know the limits of their authority and he ought not to suffer if they exceed it. That was the principle I applied in Robertson v. Minister of Pensions (1949) 1 K.B. 227 and it is applicable in this case also.'
In the House of Lords decision reported in (1951) 2 Lloyds Rep. 45, Lord Simonds after setting out the above passage said in rejecting it, at p.50:
"My Lords, I know of no such principle in our law, nor was any authority for it cited. The illegality of an act is the same whether
or not the actor has been misled by an assumption of authority on the part of a government officer however high or low in the hierarchy."
In similar vein Lord Normand said at p.54:
"... it is certain that neither a Minister nor any subordinate officer of the Crown can by any conduct or representation bar
the Crown from enforcing a statutory prohibition or from prosecuting for its breach."
In A.G. for Ceylon v. A.D. Silva (1953) A.C. 461, the Privy Council said in a case of a crown officer who made an unauthorised contract, at p.480:
"It may be said that it causes hardship to a purchaser ... if the burden of ascertaining whether or not the Principal Collector
was authorised to enter into the sale is placed upon him. This undoubtedly is true. But ... to hold otherwise would be to hold that
public officers had dispensing powers because they could by unauthorised acts nullify or extend the provisions of the Ordinance.
Of the two evils this would be the greater one."
Applying those observations to the present case, bearing in mind that the statutory power to grant leases or licences over Crown lands is vested exclusively in the Director to be granted in accordance with a statutory procedure and in a prescribed form, a verbal assurance by a lesser officer albeit of the Lands Department, and, even the Minister of Lands, can not in my opinion, fetter the exercise of the Director's discretionary power relative to such lands.
In my opinion the applicants occupation of the land in question may be categorised, at its heightest, as either 'bare licensees' or 'tenants-at-will'. In both instances the law is clear that both modes of tenure are revocable at any time and, most certainly, where the owner of the
land (in this instance the Director of Lands) has alienated or transferred the land to a third party (in this case by way of lease
to the respondent company) See: Wallis v. Harrison (1838) 51 R.R. 715 at 719 and Hogan v. Hand (1861) 134 R.R. 57.
Given the evidential and legal obstacles in the way of the applicants, I am not at all satisfied that their substantive application
has either any chance of success or raises any arguable claim.
Even if I should be wrong in the above I am more than satisfied that this tardy application tantamounts to an abuse of the Court's
processes in the face of the Writ action filed in the Labasa High Court by the first-named applicant and his pending application before the ALTA tribunal. Both actions are undisposed of and indeed the first applicant has obtained a limited injunction against the respondents
'until further order of the Court' (per Pathik J. in Ram Charan v. Labasa Blue Metal Supplies Limited and The Director of Lands Labasa Civil Action No. 56 of 1997, which latter order renders otiose the applicants present application for a stay.
The application for leave to issue judicial review is accordingly refused.
D.V. Fatiaki
JUDGE
At Labasa,
21st July, 1998.
Hbj0001d.97b
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