Dreher v Irish Land Commission

JurisdictionIreland
CourtSupreme Court
JudgeWalsh J.,Henchy J.,GRIFFIN J.
Judgment Date01 January 1984
Neutral Citation1983 WJSC-SC 2469
Date01 January 1984

1983 WJSC-SC 2469

THE SUPREME COURT

Chief Justice

Walsh J.

Henchy J.

Griffin J.

Hederman J.

123/79
DREHER v. IRISH LAND COMMISSION

BETWEEN

JORG DREHER
Appellant

and

THE IRISH LAND COMMISSION, IRELAND AND THE ATTORNEYGENERAL
Respondents

Subject Headings:

COMPULSORY ACQUISITION: land acts

CONSTITUTION: personal rights

CONSTITUTION: statute

1

JUDGMENT delivered the 1st July 1983by Walsh J.(O'Higgins C.J and Hederman J. concurring)

2

In 1963 the appellant purchased lands comprised in Folio 148 of the Register of Freeholders for the County of Waterford for the sum of£9,450 and the plaintiff was registered as full owner of the lands on 8 January 1965.

3

In 1966 the Irish Land Commission commenced proceedings for the compulsory acquisition of these lands pursuant to the provisions of the Land Acts, and on 15 March 1967 the Lay Commissioners of the Land Commission made an order for the acquisition of the said lands. This order was confirmed by order of the Appeal Tribunal on 23 October1970.

4

By a notice published in the Iris Oifigiuil on 30 December 1969 the Land Commission fixed the price of the lands at the sum of £24,000 to be payable in 8% Land Bonds equal in nominal amount to £24,000.The appellant appealed against this order and on 23 October 1970 theJudicial Commissioner fixed the price of the land at £30,000payable in 9 3/4% Land Bonds equal in nominal value to £30,000.The amount of £30,000 so fixed by the Judicial Commissioner was the amount which in his opinion was equal to the market value of the land as is required by section 25 of the Land Act 1923as amended by section 5(1) of the Land Act 1950. The appointed day was 6 August 1971 and on that date £30,000worth in nominal value of 9 3/4% Bonds were put to the credit of the applicant. The appellant would have been entitled to dispose of the Bonds as from the moment he made title to the lands or within three weeks or so of making title. In fact the appellant did not want to take the Land Bonds and wanted cash instead and in the result he refused to give up possession and litigation was undertaken on behalf of the Land Commission which eventually came to this Court and finally resulted in possession being given to the Land Commission. The Land Commission is only empowered to purchase for cash where the land is offered to them for sale under section 27 of the Land Act 1950when there is right to vacant possession and the Land Commission requires the land for the provision of new holdings for migrants or to facilitate the re-arrangement of lands held in rundale or intermixed plots. The acquisition in this case did not fall within the terms of section 27 so the Land Commission had no power to pay cash for the appellant's interest. On 6 August 1971 the Bonds stood at 98 or inother words the sale value of the bonds was £29,400.

5

The appellant has contended that he was entitled either to £30,000in cash or to sufficient Land Bonds to realise £30,000 instead of£29,400. He seeks an order that the statutory provisions which enable the price to be paid by the Land Commission in Land Bonds equal in nominal value to the sum fixed by the Judicial Commissioner is unconstitutional for being repugnant to or inconsistent with the provisions of Article 40 and the provisions of Article 43 of the Constitution which the appellant claims protect him against having his property acquired by the Land Commission save at a just price which in this case he says is the market price fixed by the JudicialCommissioner.

6

Section 3 of the Land Act 1923provided that the price of all lands compulsorily acquired under the Land Acts should be paid by means of Land Bonds of equal nominal value to the price determined. Under that section the Land Bonds were fixed at 40%. As a result of various amendments made to section 3 of the Act of 1923 the statutory provision relevant to this case is section 2 of the Land Bond Act 1934which provides that all purchase money paid by the Land Commission after the passing of the Act of 1934 shall be paid by means of an issue under that Act of Land Bonds created under that Act equal in nominal amount to such purchase money. It there providesthat such Land Bonds "shall, as between the vendor to whom they are issued and the Land Commission, be accepted by such vendor as the equivalent of the corresponding amount of purchase money ...." The net question in the present case is whether or not section 2 of the Land Bond Act 1934was carried over by Article 50 of the Constitution or whether it ceased to be part of the law of the State on the coming into force of the Constitution on the grounds that its provisions were inconsistent with Articles 40 or 43 of the Constitution. The statutory provision does not attract the presumption of constitutionality which applies to all Acts of the Oireachtas.

7

The Land Purchase Acts had as their object the creation of what has been referred to as "the peasant proprietorship of a certain standard" and the Acts constitute an important branch of our social legislation. See Foley v The Irish Land Commission[1952] I.R. per O'Byrne J. at page 153. Acquisition carried out in accordance with the provisions of these Acts and for the purpose of the Acts is in accord with Article 43 of the...

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