COMMISSIONER FOR LOCAL GOVERNMENT LANDS Vs. ABDULHUSEIN KADERBHAI

JUDGEMENT

(1.) This is an appeal from an order of the Court of Appeal for Eastern Africa, varying an order of the Supreme Court of Kenya, which dismissed a motion by the applicant Abdulhusein Kaderbhai for a mandamus addressed to the appellant, the Commissioner for Local Government Lands and Settlement in Kenya. The Commissioner had given notice of an auction sale of town plots at Mombasa at which Europeans only were to be allowed to bid and purchase. The notice contained the further special condition, that during the terms of the grant the grantee should not permit the dwelling house or outbuildings which had to be erected upon it to be used as a place of residence for any Asistic or African not a domestic servant employed by him. The applicant, who is an Indian subject of His Majesty resident in Mombasa on 10 August 1928, by notice of motion dated 9th August, moved the Court for a mandamus commanding the Commissioner to allow the applicant to bid for and purchase at the auction sale the plots on Mombasa Island, notified to be held on 11 August, and also commanding the respondent to cancel or annul the condition No. 5 of the special conditions, being the condition above referred to, restricting the use of the dwelling-house. The learned Judge before whom the application came ex parte made an order postponing the sale and ordered that "a notice to show cause do issue to the respondent upon the above mentioned motion for a mandamus." returnable in a month. Eventually, in December, counsel for the applicant and the Commissioner were heard on that order, and the learned Judge dismissed the motion. On appeal to the Court of Appeal for East Africa the Court allowed the appeal as to the right to bid and purchase, but dismissed it as to the restrictive condition. The decree reads : "It is ordered that the appeal be allowed . . . to the extent that the rule in regard to the first prayer is made absolute, viz., the appellant is allowed to bid for and purchase certain Crown land proposed to be sold by auction in Mombasa Island."

(2.) No objection appears to have been taken at any time to the form of the proceedings, counsel for the Commissioner in the Supreme Court stating that he was instructed not to take any technical points, but to argue the case on its merits. Their Lordships will proceed therefore to dispose of the legal question involved, and will reserve any comments on the procedure.

(3.) The disposal of Crown lands in Kenya is regulated by the Crown Lands Ordinance No. 12 of 1915. The case made by the applicant is that under the provisions of the ordinance the Commissioner is bound to permit all members of the public or, alternatively, all subjects of the Crown, to bid and purchase at an auction of town plots, and is equally bound not to insert in the lease of any such plots restrictive conditions adversely affecting the Asiatic or African population of Kenya, at any rate, to such an extent as to make a purchase by them of no practical value. The case of the Commissioner is that the terms of the ordinance do not prevent him from imposing the restrictions of which complaint is made. It is desirable to point out that the Courts are concerned only with the bare question of law, viz., the powers of the Commissioner under the ordinance. Questions of policy, or, in other words, how the legal powers shall be exercised, are not matters for the legal tribunal, but have to be determined by the appropriate constitutional authority. Approaching thus the construction of the ordinance it is found that it is divided into twelve parts. Those with which this controversy is concerned are Part 2, Administration; Part 3, Disposal of Land within Townships ; Part 4, Disposal of Agricultural Land. By S. 6, the first section falling under Part 2, the Governor is given power to grant lease or otherwise alienate on His Majesty's behalf, any Crown lands for any purpose and on any terms and conditions as he may think fit. He is further given power to remit covenants and conditions, extend the time for performing conditions and accept the surrender of any lease or licence. By S. 8 the Governor is to appoint a Commissioner of Lands "who shall have charge of the administration of this ordinance." S. 10 confers on the Commissioner power to do any acts which may be done by the Governor; but as it contains a proviso excluding from the operation of the section the powers conferred, inter alia, by S. 6, we must look elsewhere for powers given to the Commissioner to dispose of any Crown lands. These are to be found in Parts 3 and 4. Part 3 is headed Disposal of Land within Township (1) Offering of Town Plots: "15. The Commissioner of Lands may cause any portion of a township which is not required for public purposes to be divided into plots suitable for the erection of buildings for business or residential purposes, and such plots may from time to time be disposed of in the manner hereinafter prescribed. 10. Leases of town plots may be granted for any term not exceeding 99 years. 17. Before any town plot is disposed of under the next succeeding section the Commissioner of Lands shall determine : (a) The rent which shall be payable in respect of such plot. (b) The upset price at which the lease of such plot will be sold. (c) The building conditions to be inserted in the lease of the plot. (d) The special covenants, if any, which shall be inserted in the lease. 18. Leases of town plots shall, unless the '"Governor shall otherwise order, in any particular case or cases, be sold by auction. 19. The place and time of sale shall be notified in the Gazette not less than four weeks or more than three months prior to the day of sale, and the notice shall state : (a) The number of plots and the situation and area of each plot. (b) The upset price at which the lease of each plot will be sold. (c) The amount of survey fees and the cost of the deeds for each plot; (d) The term of the lease and the rent payable in respect of each plot. (e) The building conditions and the special covenants, if any, to be inserted in the lease to be granted in respect of any plot: Provided however that the lease of any plot may be withdrawn from sale by the Commissioner of Lands at any time prior to the same being offered for sale. 20. The auctioneer shall, before the commencement of the sale, read the terms and conditions of the sale, and all persons bidding at the sale shall be bound by the terms and conditions so read." With these provisions it is necessary to compare the corresponding sections of Part 4, Disposal of Agricultural Land (1) Offering of Land for Agricultural Purposes : "25. The Commissioner of Lands may cause land available for leasing for agricultural purposes to be surveyed and divided into farms which shall not, except with the consent of the Governor, exceed five thousand acres, or except with the consent of the Secretary of State, exceed seven thousand five hundred acres. 26. Leases of farms shall, unless the Governor shall otherwise order in any particular case or cases, be sold by auction. 27. When land available for leasing for agricultural purposes shall have been surveyed and divided into farms and it is proposed that leases thereof shall be sold by auction, the Commissioner of Lands shall give notice in the Gazette of the place and time which shall not be within three months of the date of the publication of such notice at which leases in respect of such farms will be offered for sale by auction.