Foley v The Irish Land Commission and Attorney General

• Jurisdiction: Ireland
• Judgment Date: 19 December 1952
• Date: 19 December 1952
• Court: Supreme Court

Foley v. The Irish Land Commission and Another.

PATRICK FOLEY

Plaintiff

and

THE IRISH LAND COMMISSION and THE ATTORNEY GENERAL

Defendants.

Supreme Court.

Constitution - Land Act - Validity - Interference with rights to private property - Direction by Land Commission to purchaser of lands to reside continuously to their satisfaction in a dwellinghouse - Whether direction an abolition or delimitation of the right of private ownership - Certificate that purchaser has failed to comply with direction - Whether Land Commission in making certificate bound to act judicially - Land Act, 1946 (No. 12 of1946), s. 2 - Constitution of Ireland, Articles 6, 34, 40, 43.

On the 3rd November, 1937, the plaintiff signed an agreement with the Land Commission for the purchase of certain lands, and, under the provisions of s. 31, sub-s. 1 (d), of the Land Act, 1923, applied to the Land Commission for an advance of the purchase money. The plaintiff was put into possession of the lands and a dwelling-house was built on the lands in the year, 1939. In the year, 1946, the Land Commission, having learned that the plaintiff had not taken up permanent residence in the dwelling-house, notified him that unless he took up permanent residence within three months they would consider the question of taking up the land from him. On the 11th June, 1947, the Land Commission, purporting to act under the provisions of s. 2 of the Land Act, 1946, served on the plaintiff a notice directing him to reside continuously to their satisfaction in the said dwelling-house as from the 1st November, 1947, until the lands were vested in him. In fact, the lands were never vested in the plaintiff. On the 4th October, 1948, the Land Commission notified the plaintiff that he had failed to comply with the direction of the 11th June, 1947, and demanded possession of the lands. On the 22nd July, 1949, the Land Commission instituted ejectment proceedings in the Circuit Court and, on the hearing, relied upon a certificate under their common seal, dated the 17th August, 1948, purporting to have been made under the provisions of s. 2 of the Land Act, 1946, certifying the making of the direction of the 11th June, 1947, that the said direction had not been revoked, and that the plaintiff had failed to comply therewith. The proceedings in the Circuit Court were stayed in order that the plaintiff might bring proceedings in the High Court to test the validity of s. 2 of the Land Act, 1946, having regard to the provisions of the Constitution; to challenge the certificate of the 17th August, 1948, and the proceedings of the Land Commission in issuing the certificate. Dixon J. having dismissed the action, the plaintiff appealed. On the hearing of the appeal it was

Held by the Supreme Court (Maguire C.J., Murnaghan, O'Byrne, Lavery, and Kingsmill Moore JJ.) 1, that, s. 2 of the Land Act, 1946, is not repugnant to the provisions of the Constitution;

2, that the imposition of the condition as to residence in s. 2 (i) of the Land Act, 1946, is not an abolition of the rights of private ownership within the meaning of Article 43, 1, 2 of the Constitution, but a delimitation of these rights "with a view to reconciling their exercise with the exigencies of the common good" and in accordance with the principles of social justice, within the meaning of Article 43, 2, of the Constitution;

3, that the expression, "reside continuously to their satisfaction" in s. 2 (i) of the Land Act, 1946, means that the Land Commission are to be satisfied that there has been residence and that it has been continuous;

4, that in making the determination evidenced by the certificate of the 17th August, 1948, the Land Commission were bound to act judicially;

5, that in making the said certificate the Land Commission had failed to act judicially, in that they failed to comply with the requirements of natural justice and that they made the certificate under a misconception as to the true construction of the said section and that the certificate was void and of no effect.

The State (Crowley) v. The Irish Land Commission and Others, [1951] I. R. 250 applied. Buckley and Others (Sinn Féin) v. Attorney General and Another, [1950] I. R. 67 distinguished.

Plenary Summons.

The plaintiff, Patrick Foley, was a labourer who by reason of the sale of certain lands under the provisions of the Land Purchase Acts had been deprived of his employment on the said lands, and was, therefore, a person to whom an advance could be made under s. 31, sub.-s. 1 (d), of the Land Act, 1923. On the 3rd November, 1937, he entered into an agreement with the Irish Land Commission for the purchase of a parcel of land, in the Townland of Drumrahan, containing 26 acres 3 roods 14 perches, statute measure, for the sum of £269. The said agreement provided inter alia for an application by the plaintiff for an advance of the purchase money and that the lands should, subject as therein mentioned and as provided in the Land Purchase Acts, be vested in the plaintiff in fee simple. The plaintiff entered into possession of the lands under the agreement, and, subsequently, the Land Commission built a dwelling-house on the lands, which was completed in the year 1939. On the 19th July, 1946, the Land Commission notified the plaintiff that they had been informed that he had not taken up permanent residence in the dwelling-house and informed him that unless he took up permanent residence therein, within three months, the Land Commission would have to consider the question of taking up the land from him. The plaintiff did not reply to the letter. On the 11th June, 1947, the Land Commission served on the plaintiff a notice, dated the 7th May, 1947, in purported pursuance of s. 2 of the Land Act, 1946 (1), directing the plaintiff to reside

continuously to their satisfaction in the dwelling-house situate on the said land as on and from the 1st November, 1947, until the parcel was vested in him. The relevant provisions of s. 2 (iv) of the Land, Act, 1946, were set out in the notice. On the 4th October, 1948, the Land Commission demanded possession of the lands, and by their demand informed him that he had failed to comply with the notice of the 11th June, 1947, and authorised a Land Commission Inspector to take possession of the lands. In July, 1949, the Land Commission issued an ejectment civil bill on the title claiming recovery of possession of the land from him. At the hearing before the Circuit Court the Land Commission put in evidence and relied upon the certificate dated the 17th August, 1948, under their corporate seal, which purported to be made under s. 2 of the Land Act, 1946, and in which it was certified that the direction under the said s. 2 was given on the 11th June, 1947, to the plaintiff to reside continuously to their satisfaction in the dwelling-house situate on the land, that the direction had not been revoked, and that the plaintiff had failed to comply therewith. The plaintiff thereupon submitted that the provisions of s. 2 of the Land Act, 1946, were unconstitutional and null and void. The Circuit Court Judge having adjourned the hearing of the action to enable the appellant to have the question of the constitutionality of s. 2 (b) (v) of the Land Act, 1946, determined by the High Court, the plaintiff instituted proceedings in the High Court by plenary summons for the determination of the said question. The action was heard by Dixon J., who dismissed the claim.

From the above judgment the plaintiff appealed to the Supreme Court (2).

Cur. adv. vult.

Dixon J. :—

This action is concerned with the validity, having regard to the provisions of the Constitution and of s. 2 (v) of the Land Act, 1946, and also with the validity, apart from the Constitution, of a certificate of the defendants, the Land Commission, made for the purpose of that provision. The defendant, the Attorney General, is only concerned with the Constitutional issue.

The plaintiff is a person who came within one of the classes of person to whom, under s. 31 of the Land Act, 1923, an advance may be made for the purchase from the Land Commission of a parcel of land. According to the agreement made the 3rd November, 1937, between the Land Commission and him, he came within class (d) of sub-s. 1 of that section. This agreement, so far as material, provided that the Land Commission agreed to sell, and the plaintiff agreed to purchase, the parcel of land described in the schedule to the agreement for the sum of £269, that the plaintiff thereby applied to the Land Commission for an advance of the sum of £269 for the purpose of such purchase, to be repaid by an annuity of £12 5s. 8d., and that the said parcel should, subject as thereinafter mentioned and as provided by the Land Purchase Acts, be vested in the plaintiff in fee simple. Neither the agreement nor the Land Acts prescribe any definite date for such vesting nor any period within which such vesting should take place. Vesting has not taken place and the plaintiff has remained for over thirteen years in the vague and indefinite position, intermediate between tenant and purchaser, in which this type of agreement places him. The Land Commission now seek to put an end to that agreement and to dispossess him under the provisions of the Land Act, 1946, on the ground that he has broken what may be described as a statutory condition added to the agreement by that Act.

The agreement itself already contained several conditions to be observed by the plaintiff in the interim period before vesting, breach of any one of which might entail loss of the lands and of any right under the agreement. The matters to which these provisions related were, briefly, as follows:— payment of interest on the purchase money until vesting and of rates and taxes; allowing the Land Commission, in certain circumstances, to take certain materials from the lands; allowing the Land Commission, in certain circumstances, to...