Home | Databases | WorldLII | Search | Feedback High Court of Fiji

State v Director of Lands & Surveyor General, Ex parte Mohammed [2000] FJHC 80; HBJ0031J.1998S (28 June 2000)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO: HBJ 13 OF 1998

STATE

V

THE DIRECTOR OF LANDS & SURVEYOR GENERAL

EX PARTE:

JABBAR MOHAMMED

Counsel: Mr H. Nagin for Applicant
: Mr S. Karavaki for Respondent
: Mr D. Sharma for Interested Party

Hearing: 12th May 2000
Judgment: 28th June 2000

JUDGMENT

On 25th June 1998, leave was granted by Pathik J, to the Applicant to judicially review a decision of the Director of Lands made on 2nd June 1998 to terminate the Applicant’s tenancy-at-will over taxi bases on Lot 75 Plan DP 5086 at Kalabo Industrial Subdivision.

The grounds on which leave was granted were breach of natural justice, failure to take into account relevant considerations, taking into account irrelevant considerations, unreasonableness, excess of jurisdiction and acting contrary to the Applicant’s legitimate expectations.

The application was supported by the affidavit of Jabbar Mohammed sworn on 10th June 1998.

Although leave was granted, stay was refused. However on 13th August, stay was granted by consent.

There was then some exchange between counsel for the Applicants and the Attorney-General’s Chambers in respect of discovery. A formal application for discovery was filed by the Applicants on 6th October 1998. Pathik J delivered his decision on discovery on 7th November 1998. He ordered discovery in relation to some items requested.

On 13th July 1999, Rajendra Prasad Ltd. (the Interested Party) filed an application to be heard in opposition to the Applicant’s motion.

The matter was then listed before this court. Leave to join the Interested Party was granted on 26th November.

After several adjournments to enable discovery to be made, the matter was finally heard on 12th May. Counsel made both oral and written submissions.

The parties relied on the affidavit of Jabbar Mohammed sworn on 10th June 1998, the affidavit of Mohammed Jaffar Director of Lands, sworn on 27th August 1998, Rudra Prasad (Director of Rajendra Prasad) sworn on 7th July 1999, and the affidavit in reply of Jabbar Mohammed sworn on 6th April 2000.

The facts of the case are as follows: Jabbar Mohammed (the Applicant) is the Executor and Trustee of the Estate of Atha Mohammed. The Applicant and Atha Mohammed were operating a taxi business in partnership under the name of “Nasinu Central Taxis.”

In 1986, the Director of Lands approved a tenancy to the Applicant and Atha Mohammed on Lot 75 DP 5086 Kalabo Industrial Sub-Division, over an area of 516 square metres. The tenants then improved the area and built a taxi base on the land.

On 4th January 1990, the Permanent Secretary for Works and Transport wrote to Atha Mohammed approving the request to operate a taxi base on the land, on the condition that the land could be taken by the Government if it was required for road improvements.

On 31st January 1991 the Applicant and his partner requested a lease of the taxi base site. On 14th October 1991, a tenancy was issued of the site.

That tenancy, issued in the form of a letter to Atha Mohammed and Jabbar Mohammed reads:

“I am directed to inform you that you are hereby authorised to occupy the described land as a tenant-at-will on the following terms and conditions:-

Land: Lot 75 on Plan DP 586 Kalabo Industrial Sub-division.

Area: 516m².

Rent: $1.50 per day payable at the end of each month or $547.50 pm with effect from January 1991.

Tikina: Naitasiri.

Ownership: Crown Freehold Land.

Purpose: Taxi base.

TAW Conditions

1. The right to occupy and to use the land is not transferable.
   
2. The land described may be used solely as a taxi base and no building whatsoever may be erected thereon after the date hereof, except for a shelter which may be erected on the site with the approval of the Suva Rural Local Authority after prior approval in writing for erection of the shelter is first obtained from the Director of Lands.
   
3. In the event of failure on your part to pay the rental as aforesaid punctually this authority may be cancelled without further notice and you will be required immediately to vacate the land.
   
4. This letter shall not operate to create a tenancy in respect of the said land.
   
5. The hours of operation are restricted from 6 am to 11 pm daily (Monday to Sunday).
   
6. The lease shall erect to the satisfaction of the lessor and the Suva Rural Local Authority a wooden post fence around the site with an entrance on to Daniva Road.
   
7. The site is to be opened for use by other taxi owners who are to negotiate charges directly with the tenant, and such charges shall require the prior approval of the lessor.
   
8. This tenancy may be terminated on receipt of a month’s notice from the landlord.
   
9. No compensation will be payable for improvements on the demised land on termination of this tenancy.
   
10. Any breach of any of the conditions as stated herein will render the tenancy to automatic cancellation.”
    

The letter is signed by K.P. Sharma for the Director of Lands and Surveyor-General. Atha Mohammed and Jabbar Mohammed accepted the tenancy with all the above terms and conditions, and signed the letter on the 14th of October 1991.

On 19th October 1994 the Applicants again requested a lease but this was never granted. Thereafter, Rajendra Prasad Supermarket opened in the adjacent land. On 29th August 1995 the Applicant and Atha Mohammed wrote to the Director expressing concern that the Supermarket had applied for the land for development. There was no reply. Nor was there any reply to two subsequent letters. However on 10th October 1996, the Director of Town and Country Planning approved six further taxi bases to operate from the site.

On 18th July 1997, the Divisional Surveyor Central Eastern refused a lease over the site. His letter stated:

“I regret to advise that your application has been refused. The subject lot is zoned ‘Planting Reserves’ and it is therefore a public amenity which cannot be leased out on a long term basis to an individual, or a company.

The Department of Town and Country Planning is also not keen to re-zone the subject to commercial or etc., for reasons based on sound town planning principles.

However the Tenancy-at-will for taxi base that was issued to you w.e.f. 1st January 1991 is presently being reviewed with the view of re-assessing rental to reflect present use of the site.”

In May 1998, the Applicant heard that their tenancy was going to be revoked and that a new tenancy was to be issued to Rajendra Prasad Supermarket, on the instructions of the then Minister for Lands. They instructed Messrs. Sherani & Company to write to the Minister on 29th May 1998. This letter made the following representations to the Minister:

1. That the Applicant had used considerable resources to upgrade the area.
   
2. The total number of bases had been increased to 11.
   
3. The proprietors would face great hardship if the tenancy were to be revoked.
   
4. The Food for Less Supermarket had its own car-park which it had let out to market vendors.
   
5. The Nasinu Central Taxis provided good service and employment to the people of the area including customers of the Food for Less Supermarket.
   

On 2nd June 1998, the Director of Lands terminated the tenancy “on grounds that the subject area is required for redevelopment in conjunction with further development to be carried out on adjoining commercial property and also the development of the site is being pursued to ease traffic in front of Rajendra Supermarket. You are further advised that on completion of the development, you may apply direct to the Supermarket for taxi bases at rental to be approved by Director of Lands and Surveyor-General.”

The Nasinu Central Taxis were given 30 days to vacate. The Respondents say that the Applicants had a tenancy-at-will which was determinable at the discretion of the lessor. The Interested Party Rajendra Prasad Ltd., say that its initial application for a lease over the land was refused by the Director of Lands. On 12th August 1997, the Supermarket appealed to the Minister of Lands, but the application was refused by the Ministry. On 30th September 1997, the Supermarket wrote to the Respondent saying that the Applicant could continue to operate his taxis from the land, even after a tenancy was granted to the Supermarket.

Finally, on 1st September 1998 the Director of Lands issued a tenancy-at-will over the land to the Interested Party. The terms of the tenancy are similar to the tenancy previously granted to the Applicant and Atha Mohammed. Rudra Prasad, director of Rajendra Prasad Ltd. alleges in his affidavit of 7th July 1999, that the real reason the Applicant did not want the tenancy to be terminated was that he was hiring out the property to illegal taxi and van operators.

Natural Justice

The Applicant says that the tenancy-at-will was terminated without a hearing.

The Director of Lands derives his/her power to lease crown land, from section 11 of the Crown Lands Act Cap. 132.

That section provides:

“Any lease or licence in respect of land under the provisions of this Act shall be made out from and in the name of the Director of Lands for and on behalf of the Crown, and such lease or licence shall be executed by the person then holding the office of Director of Lands as lessor or licensor, and the person for the time being holding the office of Director of Lands shall, while he holds such office, be deemed the lessor or licensor of such lease or licence.”

It is not disputed that in terminating this tenancy the Director did give the Applicant 30 days notice, as he was required to do by virtue of Clause 8 of the Tenancy Agreement.

However, it is now trite to say that whenever any public body makes a decision which affects any individual adversely, it must give to that individual a right to be heard. I note that the Respondent did not formally inform the Applicant of its intention to terminate the tenancy. However, the Applicant heard about the possibility and made submissions on the 29th of August 1995, 3rd of October and the 6th of November 1995. The submissions they made were clearly considered by the Respondent. Indeed a minute to the Permanent Secretary for Lands by the Minister shows that he considered the letter by Messrs. Sherani & Company.

A right to be heard is not necessarily a right to an oral hearing. The representations of the Applicant were full and clearly expressed. They were considered by the Respondent, and indeed by several Government Ministers, all of whom appear to have been involved in the controversy.

In all the circumstances I am of the view that the Respondent was not unfair in the procedures adopted before the tenancy was terminated.

Substantive Ultra Vires

The Applicant says that the Director failed to take relevant factors into account, and took into account irrelevant matters.

However the material disclosed shows that the Respondent was very conscious of the matters the Applicant says are relevant. Their file at the Ministry shows a detailed inspection report prepared by the Ministry, which documents the resources spent by the Applicants on improvement, the rental paid and the intended use by the Interested Party. At Annexure E to the affidavit in reply of Jabbar Mohammed, an internal minute reads:

“Both applications have merits, but in normal circumstances we would tend to agree to the amalgamation with the adjoining commercial lot. However, in doing that we would in this case be depriving the other party of his only source of income.”

The correspondence on this file shows that the Respondent was very conscious of all relevant considerations. Indeed, it is clear from the affidavit of Rudra Prasad that the Applicant would be able to continue with its operations but that charges would be paid to the new tenant instead of the Respondent.

It is now well-settled, that whilst the courts can rule on what relevant considerations are, they should not interfere with the balancing of those considerations (per Lord Scarman in United Kingdom Association of Professional Engineers -v- Advisory, Conciliation and Arbitration Services (1981) AC 242).

As such in deciding to terminate the Applicant’s tenancy and in granting a new tenancy to the Supermarket, on the ground that it was necessary to ease traffic congestion in front of the Supermarket, the Respondent decided to give greater weight to one consideration over others. At Annexure R of Mohammed Jabbar’s further affidavit, it is evident that the need to maintain the Applicant’s taxi bases was also considered relevant. In these circumstances, I do not consider that there are any grounds for holding that the Respondent took into account irrelevant considerations or failed to consider relevant considerations. The fact that the Respondent’s officers may have come to a different conclusion (for instance issuing licences to both the Supermarket and the Applicant) is irrelevant.

In Anuradha Charan -v- Public Service Commission Civil Appeal No. 2 of 1992, the Fiji Court of Appeal said, in relation to a review of an appointment on promotion:

“Clearly the Commission must observe the proper rules and procedures in seeking and considering applications for vacancies. In so doing they must evaluate evidence of all aspects of the candidates’ abilities, qualifications and attitudes. Having done so, they are left with discretion to decide the suitability of the candidate for the post under consideration.”

The Applicant also submits that the Respondent acted on the illegal directive of the Minister, particularly when the Minister had formerly refused the Supermarket’s application for a licence.

It is not in dispute that the Respondent acted on the Minister’s directives in this matter. In August 1997, when a tenancy to the Supermarket had been refused, Rudra Prasad wrote to the Minister appealing against this refusal. That letter suggests that Rudra Prasad had discussed the matter with the previous Minister who had made assurances that half the land would be leased to the Supermarket.

The Respondent again submitted to the Minister’s directive on 3rd November 1997, when Rudra Prasad suggested an equal division of the land (Annexure N to Jabbar Mohammed’s further affidavit). Finally, (Annexure S) the Minister decided in a meeting with the Permanent Secretary and the Acting Director of Lands, that the Applicant’s tenancy should be terminated. Indeed it is clear from the minute of 20th May 1998, that the decision to terminate was the Minister’s, and that it was made “to rationalise development of the site with the view to improving and enhancing the general look of the land ... and the traffic along Nasinu Road is quite congested and needs to be addressed.”

The Crown Lands Act clearly intended the decision to grant or terminate a tenancy, to be that of the Director of Lands.

The Applicant submits that the Minister dictated the decision to the Director, and that the Director failed to make the decision on the exercise of his own independent judgment.

The decision to terminate the Applicant’s tenancy was made at a meeting between the Minister, the Permanent Secretary and the Director of Lands. It is clear from the minutes of the meeting that the decision was the Minister’s.

Section 41 of the Crown Lands Act Cap. 132 provide:

“The Minister may make regulations not inconsistent with this Act providing for all or any purposes, whether general or to meet particular cases, that may be convenient for the administration of this Act or that may be necessary or expedient to carry out the objects and purposes of this Act, and, without prejudice to the foregoing powers, providing for all or any of the matters following, that is to say:-

1. controlling the administration, occupation and use of Crown land and prescribing fees for admission thereto;
   
2. regulating the grant and form of grants and leases in respect of Crown land and all matters relating thereto;
   
3. prescribing the form and terms of leases of Crown land and the covenants and conditions upon and subject to which leases may be issued;”
   

Regulation 5 of the Crown Lands (Leases and Licences) Regulations provides:

“The Director may subject to any special or general directions given to him by the Minister approve or refuse an application and any such lease so approved shall be subject to such conditions and covenants as may be prescribed thereon.”

Regulation 30 provides:

“(1) Notwithstanding the other provisions of this Part, the Director may grant a license for any purpose not specified in regulation 29 upon such conditions and terms as he may think fit:

Provided that no licence issued under this regulation shall have effect until approved by the Minister.

(2) The other provisions of this Part shall not apply to a licence issued under this regulation.”

The Regulations clearly accept the directions and intervention of the Minister in the granting of leases and licences.

It appears therefore, that the Minister was entitled to give specific directions to the Director, and that the Director did not therefore act improperly.

In any event, the affidavits filed show that the Applicants and the Interested Party made representations directly to the Minister, and that his intervention was invited by both parties.

The Applicant has failed to show that the decision was made on the basis of irrelevant considerations.

It is also clear that the Applicant has failed to show unreasonableness or bias. The reasons given for the decision are not unreasonable. The fact that the Minister changed his mind (and it is not clear whether the same Minister made both decisions) does not make the decisions unreasonable, provided he/she acted on the basis of relevant considerations on each occasion. As I have already said, the balancing of relevant criteria is a matter for the deciding authority. Clearly the Ministry was receiving submissions from both parties, all of a compelling nature. A change of position after hearing from one party or another is not a ground in itself, for setting aside the decision on the ground of unreasonableness.

Although the Applicant submits that the Respondent failed to give reasons for the change of mind, I note that reasons were given for the refusal to grant the Supermarket a tenancy (Annexure K to Mohammed Jabbar’s further affidavit) and the termination of the Applicant’s licence (Annexure R). The reason for refusal was that there was an existing tenancy. Ten months later, the Applicant’s tenancy was terminated because the area was required for re-development, to ease traffic congestion and because the Applicant could continue to operate his taxis from the existing bases. Although there is evidence that on investigation, the Applicant was operating more taxis then he had approval for, this does not appear to have influenced the Respondent in his decision.

I do not, in the circumstances, and given the time lapse, consider that the change of mind is evidence of unfairness or arbitrariness. Reasons were given on each occasion, and there is no evidence that the change was due to bias or some extraneous matter. This ground for review is also dismissed.

Legitimate Expectations

A legitimate expectation can arise when the Applicant has been given an assurance that certain procedures for a hearing will be followed by a public body, or where the body has followed a regular practice in that regard.

I can find no evidence in this case that any such assurances were given. Nor have I been addressed on procedures followed in other cases of termination of tenancies-at-will by the Director of Lands.

In any event, I have found that the Applicant had ample opportunity to be heard, and that he was heard, personally and through his solicitors.

This ground is also dismissed.

Summary

In summary all grounds for review are dismissed.

The Applicant must pay the costs of the Respondent which I set at $500, and of the Interested Party which I set at $200.

Nazhat Shameem
JUDGE

28th June 2000
At Suva