Land Bill, 1930—Committee (Resumed).

Amendments 34, 35, 36 and 37 not moved.

I move amendment 38:—

To add at the end of the section a new sub-section as follows:—

"(3) Every successful applicant under the foregoing sub-section shall enjoy the like benefits as if his holding had been included by the landlord in the list of particulars furnished under sub-section (1) of Section 40 of the Land Act, 1923."

The object of the amendment is that a tenant who succeeds in proving that his land should have been embraced in the vesting orders and has not been placed therein, shall get the benefits from 1923 which he would have received if originally his case had been entered on the list. Under Section 13 provision is made for the landlord if a farm is wrongly included. I want to take the other side of the case and place the tenant in the same position as the landlord is placed in Section 13.

I respectfully submit that this amendment deserves the support of the Seanad.

It is unnecessary.

It is absolutely and entirely necessary. We desire to be fair to the landlords, and it is only right that we should be fair to the tenants also. We decided yesterday that where a landlord puts a tenant's holding on a list, and where, in the course of the proceedings, the application is dismissed the landlord and the tenant are to be put back on their original rights. The result of that is that the landlord can sue the tenant for the 25 per cent. abatement over a number of years. Here is a case where the tenant has not been put on the list, and on his own application he succeeds in getting his holding put on the list. It may be a case where the tenant never got the 25 per cent. reduction. As I understand the amendment, it means that if the tenant was omitted from the list and if after a number of years have passed he succeeds in getting his name on the list, he should be entitled to all the benefits as if his name was put on originally. I think that is only fair.

Every tenant who succeeds in getting his holding placed on the list will get all the benefits to which he is entitled under the Act of 1923.

Automatically.

Yes, automatically, and for that reason the amendment is unnecessary.

That answer I hope is accurate, but I cannot find from reading the Acts of Parliament that there is any provision whereby a tenant who succeeds in getting his name put on the list is entitled to get a refund of the excessive payments for the eight years since the Act of 1923 was passed. If the Parliamentary Secretary assures the House it is so, I will consider myself corrected, but so far as I can find out it is not so.

There is no doubt about it.

I have to take the Parliamentary Secretary's word for it, but if it was necessary in the case of the landlord that a provision should be inserted in this Bill giving him the right to get the benefits that he lost by reason of the farm being wrongly placed on the list, and the tenant getting the 25 per cent. reduction for eight years, as a layman I cannot see why there should be any objection to inserting a provision in the next section giving the tenant the same rights. If it already exists, it will not do any harm to put it in definitely, so that there will be no mistake about it.

There is always a danger, as the Senator knows, in putting words into a Bill which are not wanted. Apart altogether from this Bill, the Senator is probably aware that in the Act of 1927 there was provision made for tenants of this kind. If the Senator looks up Section 12 of the Act of 1927 he will find that it is expressly provided that a tenant whose holding is brought into the list of holdings coming under the Act of 1923 is entitled to all the benefits which a tenant ordinarily coming under the Act is entitled to. Even without this Bill there is provision made for such tenants.

I should like to mention to the House that what was in that section mentioned by the Parliamentary Secretary does not at all mean what he believes it means, namely, that the tenant would be in the same position as the landlord. It does not mean that he shall be entitled to recover from the landlord the difference between the old rent and the abated rent. I would recommend the Committee to pass the amendment moved by Senator Wilson.

It does absolutely mean that. Several tenants have already been dealt with under that section and they have got all the benefits to which they were entitled under the Act of 1923.

If the Parliamentary Secretary will read the section he will see that it is not so.

I ask the Senator to read the section.

Cathaoirleach

Does Senator Wilson wish to press his amendment?

I see that the provision here in this section is, I think, sufficient. It says: "Provided that the rent payable by the tenant from the gale day next preceding the passing of the Land Act, 1923, shall be reduced by 25 per cent. and that nothing in this section shall alter the mutual rights and liabilities of landlord and tenant under Section 19 of the said Act." Is not that the provision referred to by the Parliamentary Secretary?

Then I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.
Section 14 agreed to.
SECTION 15.
(1) Where the whole or part of a holding which is included in a list of vested holdings is at the date of publication of such list sublet otherwise than for the purpose of temporary depasturage, agistment, or conacre, or for temporary convenience, or to meet a temporary necessity, the following provisions shall have effect, that is to say:—
(a) the Land Commission shall (save as is hereinafter otherwise authorised) declare that the sub-tenants on such holding are to be deemed to be the tenants of the respective portions of such holding in their several and separate occupations and that the said respective portions (hereinafter referred to as separate holdings) of such holding are to be deemed to be separate holdings;
(b) each of the said sub-tenants shall be deemed to have entered on the date of the said declaration into a subsequent purchase agreement for the purchase of the said separate holding in his separate occupation;
(c) the standard purchase annuities for the said separate holdings shall be ascertained in the like manner as standard purchase annuities for tenancies are ascertained under the Land Act, 1923, as amended by the Land Act, 1929;
(d) where the portion or any part of the portion of such holding which is so sublet is, in the opinion of the Land Commission, of such a character that it ought not to be declared under this section to be a separate holding, the Land Commission may notwithstanding anything contained in this section treat the said holding as if the said portion or the said part of the said portion (as the case may be) of such holding were in the occupation of the tenant of the said holding and were not sublet;
(e) the subsequent purchase agreement which the tenant of such holding was, on the publication of the said list of vested holdings, deemed to have entered into shall be withdrawn as from the date of the said declaration under this section;
(f) the Land Commission shall redeem the interests (hereinafter referred to as intervening interests) intervening between the owner of the estate and the said sub-tenants;
(g) if portion only of the said holding is sublet as aforesaid, the Land Commission shall declare that the tenant of such holding is to be deemed to be the tenant of so much only of such holding as is not so sublet, and thereupon such tenant shall be deemed to have entered on the date of the said declaration into a subsequent purchase agreement for the purchase of so much as aforesaid of such holding, and the standard purchase annuity for so much as aforesaid of such holding shall be such proportion as the Land Commission shall determine of the standard purchase annuity which would have been payable in respect of the whole of such holding if no part of it had been sublet.
(2) When the Land Commission make a declaration under this section deeming sub-tenants on a holding to be tenants of separate portions of such holding, then—
(a) if the total of the standard purchase annuities for such separate portions of such holding and the standard purchase annuity for the remainder (if any) of such holding exceeds the standard purchase annuity which would have been payable in respect of such holding if no part of it had been sublet, land bonds proportionate to the amount of such excess shall be lodged to the credit of the estate as representing the value of the intervening interests; and
(b) if the said total of standard purchase annuities is equal to or less than the said standard purchase annuity which would have been payable as aforesaid, the intervening interests shall be deemed to be of no value; and
(c) if the said total of standard purchase annuities is less than the said standard purchase annuity which would have been payable as aforesaid, the Land Commission shall pay into the land bond fund such sum as will be sufficient to redeem the land bonds issued in excess of the total advances to be made for the purchase of the said separate portions and the said remainder (if any) of such holding, including so much of the contribution by the State to the standard price as is proportionate to the amount of such excess; and
(d) where land bonds are redeemed under the foregoing paragraph of this sub-section and some or all of such land bonds represent compounded arrears of rent, the landlord of such holding shall be entitled to be paid by and to recover from the tenant of such holding the amount of compounded arrears of rent represented by such land bonds.
(3) The Land Commission shall give to all parties concerned an opportunity of objecting to any declaration proposed to be made under this section and every objection duly made to any such proposed declaration shall be considered and decided by the Land Commissioners other than the Judicial Commissioner and there shall be a right of appeal to the Judicial Commissioner from every decision of the other Land Commissioners on any such objection and the decision of the Judicial Commissioner on any such appeal shall be final, save that an appeal shall lie on questions of law only from such decision of the Judicial Commissioner to the Supreme Court.

I move amendment 39:

Section 15, sub-section (1). After the word "necessity" in line 18 to insert the words "and where the portion so sublet is land to which sub-section (1) of Section 24 of the Land Act, 1923, as amended and extended by the Land Act, 1927, and this Act, applies."

This is a section which will create a certain amount of heart-burning. It deals with sub-tenancies. If Senators read sub-section (1) of Section 15, they will see that the word "necessity" occurs in the second last line. I propose to put in after the word "necessity" the words contained in my amendment, the meaning of which would be this: The section proposes to enable the Land Commission to make advances in respect of sub-tenancies and to treat the sub-tenant of a holding as if he were a direct tenant to the owner in fee simple and to cut out the middleman altogether. In many cases, the middleman is a small farmer and in many cases his sub-tenant is a rather rich official of one kind or another. My object in this amendment is to preserve the rights of the tenant farmer as against his sub-tenant who is an official, or who has simply a residence and to give the rights only to such sub-tenants as are farmers under Section 24 (1) of the Land Act of 1923. If they are farmers or farm labourers or cottiers that are sub-tenants with an acre or two or three of land then certainly let the sale be made to them, but if there is a sub-tenant who has a salary and has merely a house and pleasure ground or anything like that I would expressly exclude him under the section. If they are tenant farmers they should be treated as ordinary sub-tenants; if not, the Act should not apply to them at all.

There was a similar amendment moved in the Dáil by Deputy Derrig, but it was withdrawn when it was pointed out to the Deputy that the point is fully covered in paragraph (d), sub-section (1) of this Section 15. That covers the Senator's point completely.

I am sure the Parliamentary Secretary did not intend that his word should be taken as absolutely accurate. The point is not covered by paragraph (d) and for this reason that paragraph (d) enables the Land Commission if they like to make a sale to those gentlemen sub-tenants. I want to prevent the Land Commission from being able to make a sale to sub-tenants of that character and I want to preserve the rights of the farming community.

I would like to have my mind cleared upon this point. The Senator spoke of certain small sub-tenants, and he put up against them the wealthier sub-tenants. Is there to be no discretion left in either case? The Senator says he does not want to leave the word "may" in because of the fear he has that that discretion will be applied in favour of the richer sub-tenants. But if there is no discretion, then how is it to be applied to the poorer sub-tenants whom the Senator desires to favour or do justice to. It seems to me that the discretion makes it possible for the two cases to be dealt with differently, but if there is no discretion then the others must be treated as the rich man is treated.

In answer to Senator Johnson, I would point out that Section 24 (1) of the Act of 1923 sufficiently protects the small man. If the Parliamentary Secretary looks at Section 24 (1) of the Act of 1923 he will see that the only holdings that are excluded are holdings that are not agricultural or pastoral, or things like that, so that the small man is protected. The only case in which the Land Commission can exercise this discretion which they are now taking would be in favour of what Senator Johnson described as the big man. I am against giving any discretion in that matter to the Land Commission, or to any other body, as against the ordinary small farmer in this country.

The Senator seems to have missed the whole point, which is that if the Land Commission were to give the benefits of land purchase to non-agricultural holdings they would be acting ultra vires. It is absolutely essential, in dealing with this question of sub-tenancies, that the Land Commission should continue to exercise discretion. If the Land Commission did not do so it might well be that, in twenty years' time, we would have another land problem. In the absence of such a discretion sub-tenancies would be created all over the country at such a rate that a big uneconomic problem would have to be faced at the end of another two decades. The Land Commission must have a discretion in matters of this kind, and if not the Land Commission, then some other statutory body. I must insist that the Land Commission shall continue to retain the discretion they have in matters of this kind. As I understand the amendment, it does not contemplate removing from the Land Commission the discretion they have at the moment.

The Parliamentary Secretary seems to think that the Land Commission is to go on for ever, and that it is to have control of all the land of Ireland for ever. I do not agree with that at all. I think that the sooner the Land Commission shuts up the better for this country. The Land Commission is necessary at present for the immediate disposal of land, but as soon as that work is finished let us have a little free trade in land, and not the constant war that those expensive officials want to keep going on.

The only discretion that the Land Commission claim to exercise in this case is a discretion to sell to a sub-tenant who has a holding that is a residential holding. If the Parliamentary Secretary thinks that he is going to settle the land problem and that there will not be congestion so long as this country is an island, then I venture to tell him he is making a great mistake.

Amendment put and declared lost.

I move amendment 40:—

Section 15, sub-section (1). After the word "sublet" in line 46 to insert the words "but this sub-section shall not apply to a sub-tenancy the rent of which is a judicial fixture."

This amendment seeks to remove from the Land Commission any discretion in vesting a sub-tenant who, before the passing of the Act of 1923, had his rent judicially fixed. At present under paragraph (d) of the section a sub-tenant may be ruled out on the ground that his holding is not an economic one or because of some other objection. I agree that there should be a discretion in the hands of the Land Commission or some other statutory body, but I submit that in the case of a man who was a sub-tenant, a man who under the old Land Acts got a judicial rent fixed every fifteen years, that he has a statutory holding and ought to be removed from the discretion of the Land Commission and be vested without any further difficulty. When the Act of 1923 was passed it removed all judicial fixtures. There was no more fixing of rents. That man's judicial rent came up for revision after fifteen years, but now it cannot come up. His tenancy now becomes a yearly tenancy, and he loses, so to speak, his fixity of tenure. I think it is only fair that a man with a statutory title should be able to get his holding vested, whether it is small, economic or not. That man has something there which has been recognised by statute, and it ought to be retained for him. I am not now dealing with anything in the nature of golf courses. I am speaking of small men in possession of statutory holdings.

I am afraid I do not quite clearly understand the purport of the amendment. It appears to me that no judicial tenant would be excluded from this Bill if his holding still retained an agricultural or pastoral character, no matter how small it was. There are small holdings, of course, which are subject to judicial rent which are used, as some Senators know, as part of a golf course, or which may have been used as building ground. That naturally places them outside the scope of the Bill altogether. It would be very unfair to bring such tenancies under an Act of this kind, and to ask the State to accept responsibility for that class of tenant.

As I understand it, a head landlord may have a tenant, and that tenant may have a judicial rent fixed. There may be a small subletting on that tenancy. The sub-tenant may have a judicial rent fixed. I have seen cases of that kind myself. The object of the amendment, as I understand it, is that the small judicial tenant, who is a judicial tenant to the middleman, should get his land vested in him without any discretion being given to the Land Commission to stop him from doing so.

I rise to support the amendment. I think it would be very unfair to exclude a judicial tenant, no matter how small his holding is, from the benefits of land purchase, and simply leave it to the discretion of the Land Commission to say whether such a man should or should not be included in the sale. I think the amendment is a desirable one, and that it would not be fair to give the Land Commission power to exclude, if they wished, a man from the benefits of land purchase.

I agree with the three Senators who have spoken, that no matter how small a holding is, so long as it retains an agricultural character, it should not be excluded by the Land Commission. It is not, as far as I know, the intention of the Land Acts that such a holding should be excluded. If the Senator will agree to leave the amendment over for the Report Stage, I will examine the question fully in the meantime.

I agree.

Amendment to be considered on Report.

I move amendment 41:—

Section 15, sub-section (2). To add at the end of the sub-section a new paragraph as follows:—

"(e) where the value of the intervening interests be less than ten times the profit rent (being the difference between the rent payable by the sub-tenant to the owner of the intervening interest and an apportioned part of the payment in lieu of rent payable in respect of the holding) the Land Commission shall make such addition to the value of the intervening interest as will make it equal to ten times such profit rent."

This is an amendment which I would ask the Seanad to consider carefully, and if I speak at some length upon it I hope I will be forgiven. It deals with the case of sub-tenancies in vested holdings. I ask the Seanad to take it from me that the meaning of Section 15, which is a very long section, and which deals with tenancies and sub-tenancies, is this: The Land Commission have taken power to treat a sub-tenant as a direct tenant. The sub-tenant may have been paying a fairly substantial profit rent to a small farmer, a man with 30 or 40 acres, who is his immediate landlord. The effect of this section will be to squeeze out in many cases the middleman altogether, and to confiscate the £10, the £15 or £20 yearly of profit rent that he was making out of the sub-tenant, who may be a man of the class I have indicated already, a man with a salary, a house and four or five acres of land. It would be a sort of a residential place, but could not be regarded as a gentleman's place. The person residing there would be a sub-tenant in respect of which a farmer in the country, and particularly near towns, might be getting £10 or £15 yearly of a profit rent. That is my reading of the section, and I will show that it is the true reading, because it goes on to determine the value. "When the Land Commission make a declaration under this section deeming sub-tenants on a holding to be tenants of separate portions of such holdings," the following conditions apply:

(a) If the total of the standard purchase annuities for such separate portions of such holding and the standard purchase annuity for the remainder (if any) of such holding exceeds the standard purchase annuity which would have been payable in respect of such holding if no part of it had been sub-let, land bonds proportionate to the amount of such excess shall be lodged to the credit of the estate as representing the value of the intervening interest.

The value of the intervening interests is what the middleman is to get. When the purchase price of the bit of land he has in his own hands, and the bits he has let to sub-tenants are all added together, if they are more than the purchase price would be if he had no sub-tenant on the holding, in that case he is to get something. Senators who understand conditions in the country know that the purchase price of fifty acres of land with no sub-tenants is always more than the purchase price of fifty acres on which there are two or three sub-tenants. The total of the sub-tenancies and the remainder is never up to what it would be if the land was let and sold in bulk, as one holding. That is the fee-simple value—what the landlord gets. Therefore, there is the hope held out to the middleman that he will get something. It is only a hope.

Take the second paragraph of sub-section (2):—

(b) if the said total of standard purchase annuities is equal to or less than the said standard purchase annuity which would have been payable as aforesaid, the intervening interests shall be deemed to be of no value;...

This is a case that has always happened. Take the case of a man with a holding on which the judicial rent is £40. He has a sub-tenant who may be a clerk in the county council, occupying one or two acres of land and a good house. He has another sub-tenant who is, perhaps, a superintendent in the police, with a couple of acres of land and a house. I am only giving examples that occur to my mind, if £40 is the fair rent, the purchase price in land stock would be about £600, and if you tot up the purchase price of the two sub-tenancies and of the remainder of the holding the value would be less than £600. Therefore the middleman tenant farmer will get nothing at all for the value of his intervening interest, and the £10, £15 or £20 on which he may be relying to pull through, will be gone at one sweep. Perhaps in the carrying out of the Act some injustices are inevitable; make the injustices as little as you can. Here is the way I work it out, and I submit this amendment to the Seanad confidently, as one intended to make this Act as fair as it can be humanly made between all parties. The amendment is in legal phraseology, and I think it is accurate. Its meaning is this: that if you are going to squeeze out the tenant—the middleman, give him at least ten years' purchase of his profit rent. It has been stated in the course of the debate that owners in fee have been generously treated. We have made no real objection to that. The Parliamentary Secretary has bowed them out very politely and very generously. We are dealing now with people who have to remain, people who have sub-tenants, that you are going to crush out.

The new landlords.

The Senator is so accustomed to supporting the old landlords that he will have nothing to do with the new landlord. I am not talking of new landlords. I am talking of the tenant farmers of the country who are being crushed out by this sub-section I say that ten years' purchase of their profit rent is only fair. The Minister may think it is too much. I put down ten years' purchase of what they are entitled to. Some Senators may think that it should be 7 years or 12 years. I put in the figure ten, and I think they are entitled to that much consideration.

I would like a little further explanation of this amendment. I had a kind of vague notion that the whole of the land code was intended to protect the agriculturist as a farmer and not as a landlord. I take it that the argument used by the Parliamentary Secretary on the last amendment is applicable to the case made by Senator Comyn. I want to say that I hope when Senator Wilson's amendment is being reconsidered the Parliamentary Secretary will stand by his insistence that the land must be agricultural land. In this case, it seems to me, we ought not to be dealing with the problem of the tenant farmer in his capacity as landlord, but we should continue to treat him as an agriculturist, and only give him favours as an agriculturist.

You are dealing with this man in a character other than his character as a tenant farmer, because you are treating him as the owner of the holding, portion of which is sub-let to other people. Therefore you are legislating for him in other relations beside the relation as tenant farmer, and all I ask is that you should be fair to him in all relations, as we desire to be fair to every class.

Quite obviously the Senator misunderstands the purport of the section, and perhaps I may be pardoned for a moment if I endeavour to explain it to him. The amendment the Senator has proposed seeks to introduce an entirely new principle in fixing compensation for intervening interests. If the entire holding is sub-let the purchase price of the tenant's rent, and that of the sub-tenant's rent, are arrived at under the existing Acts of 1923 and 1929. It depends on whether they are judicial or nonjudicial rents. To give ten years' purchase of a profit rent to the middleman would entail in very many cases an additional advance in land bonds for which no annuities could possibly be set up.

Why should the sub-tenants be asked to pay these additional annuities? How would the Land Commission be justified in asking them to pay these additional annuities, and if the sub-tenants are not to be called on to pay them, obviously the State will have to pay them. If that is the Senator's proposal I submit that the amendment is out of order.

The Parliamentary Secretary knows very well that is not my proposal.

If the holding is partly sublet then the amendment, in addition to the objection which I have stated, is open to the further objection that it does not fit in with the scheme proposed in the Bill. In Section 15 (1) (g) the Land Commission are empowered to apportion the tenants' rents between the parts that are sub-let and those that are not sublet in such a way that the total purchase annuities resulting therefrom will equal the annuity which would have been fixed on the entire holding if it had not been sublet. In this way the tenant gets the value of his intervening interest in the form of reduced annuities, and not in the form of compensation price. The tenants themselves consider that this is the most satisfactory way to deal with the question of compensation for intervening interests. If I quote a simple example it will, perhaps, illustrate the procedure that will be followed in fixing the compensation in these cases. Suppose that a tenant of a holding at a rent of, say, £10, sublets half of it at £7. If the rent were apportioned on the value of the land £5 would be put on each portion, and the tenant would purchase at a £5 rent, and the sub-tenants on rents amounting to £7, with the result that the annuities would be set up for rents of £12. The landlord would get bonds representing the price of a £10 rent, and the middleman bonds representing the price of a £2 rent. Instead of that, what will be done is that the total advance will be for the purchase of a £10 rent only. The sub-tenants will pay the annuities as before on a £7 rent, and the middleman on a rent of £3 only, and he will get no land bonds. This is a much better bargain for the middleman, and puts no further burden on the State. I ask Senator Comyn to bear in mind the fact that this advantage will extend to the tenant for the full annuity period under the Act of and the net result will be a definite gain to him.

I have got an explanation now. I thought that the Parliamentary Secretary was very hard, but I know now that he has only been misled. Let us take the £10 case. A man has a £10 holding and sublets half of it for £7. We are told that the £150 advance will be divided between the two, that the £7 man, the sub-tenant, will have to pay seventenths and the tenant for the other half will only have to pay three-tenths. Does the Parliamentary Secretary ask the Seanad to believe that sub-tenants will be asked to pay more than the value of the holding, that one man will purchase presumably at the value of £3 a year and the other at £7 a year? That cannot be, either under this Act or any other and it is not the law. Therefore, the Parliamentary Secretary has been absolutely misled.

I commend to the House what I have suggested, namely, that if you sell to a sub-tenant you are bound to sell to him at the economic value of his holding. You cannot do that and be fair to the middleman. In order to be fair to the middleman let the Land Commission see that at least he gets seven or eight or ten times the value of one year's profit rent. The Parliamentary Secretary asks how is he to get it. The Parliamentary Secretary yesterday took money which the Minister for Finance was not entitled to get. He took the Congested Districts Board's money, and he refused to accept the amendment of Senator Colonel Moore, who said that the profits which they are getting to-day from the sale of Congested District Board lands which were purchased by the British Government, should go into a Land Bond Fund to assist in the settlement of Irish land and to meet cases of this description. I think the Minister has not fairly met the amendment. He knows very well that he is doing an injustice to the tenant farmers of the country.

Amendment put.
The Committee divided: Tá, 6; Níl, 28.

  • Caitlín Bean Uí Chléirigh.
  • Michael Comyn, K.C.
  • Joseph Connolly.
  • Thomas Linehan.
  • Seán E. MacEllin.
  • Colonel Moore.

Níl

  • John Bagwell.
  • Samuel L. Brown, K.C.
  • Miss Kathleen Browne.
  • R.A. Butler.
  • Mrs. Costello.
  • John C. Counihan.
  • James G. Douglas.
  • J.C. Dowdall.
  • Michael Duffy.
  • Michael Fanning.
  • Thomas Farren.
  • Dr. O. St. J. Gogarty.
  • The Earl of Granard.
  • Sir John Purser Griffith.
  • Henry S. Guinness.
  • P.J. Hooper.
  • Right Hon. Andrew Jameson.
  • Thomas Johnson.
  • James MacKean.
  • John MacLoughlin.
  • William John Molloy.
  • Sir Walter Nugent.
  • Joseph O'Connor.
  • Bernard O'Rourke.
  • Dr. William O'Sullivan.
  • Siobhán Bean an Phaoraigh.
  • Michael Staines.
  • Richard Wilson.
Tellers:—Tá: Senators Linehan and Comyn. Níl: Senators Wilson and Molloy.
Amendment declared lost.

The principle of the next three amendments, Nos. 42, 43, and 44, has already been ruled upon by the Seanad. I therefore beg leave to withdraw them.

Amendments, by leave, withdrawn.
Sections 15, 16 and 17 ordered to stand part of the Bill.
SECTION 18.

I move to delete the section. I put down this amendment in order to ascertain what the section really means, because I find it states: "Where the Land Commission make an order increasing the standard purchase annuity of the holding," etc. I want to know under what circumstances would it be possible for them to increase the standard purchase annuity of a holding, and whether it means that after the addition of the compounded arrears of rent have been added, it will be necessary to make a change in the standard purchase annuity, or whether it is intended to have the standard purchase annuity increased for any other reason.

The whole object of this Bill, as I explained on Second Reading, is to short-circuit the procedure in relation to the vesting of land. It is proposed to accept the schedule of particulars supplied by the landlord or the vendor as a working basis, and the lists of vested holdings will be compiled from these schedules of particulars. It may happen in some cases, on account of the fact that it is necessary to have these lists published in a very short space of time after the passing of the Act, that the wrong annuities may be set up. In some cases the annuities may be too high and in other cases they may be too low. In Section 18, and in the following Section 19, the Land Commission is taking power so that when an annuity is too low they will be able to recover from the tenant the difference between the annuity which he was paying, the annuity fixed in the first list and the correct annuity. Likewise in the following Section 19 if the annuity is reduced the tenant will get the benefit of the reduced annuity from the date of publication of the first list. These annuities will naturally comprise compounded arrears of rent as well.

In view of the Minister's explanation, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.
Sections 18 to 20 ordered to stand part of the Bill.
SECTION 21.
(1) Where the purchase money of an estate is distributed before the vesting orders in respect of all the holdings comprised in such estate have been made, the Judicial Commissioner may, on the application of the Land Commission made on such distribution retain in land bonds out of such purchase money such sum (in this Act referred to as the guarantee deposit) as the Judicial Commissioner shall think proper but not exceeding in any case one-tenth of such purchase money.
(2) Every guarantee deposit shall be applicable for the purposes hereinafter mentioned and, subject to such application, shall be retained until an order is made under this section for the release thereof and upon such order being made such guarantee deposit or so much thereof as has not been so applied shall be paid out to the person found to be entitled thereto.
(3) The dividends on land bonds for the time being retained as a guarantee deposit shall be paid out as they accrue to the person found to be entitled thereto.
(4) The following moneys, if or so far as they are not otherwise paid, shall be payable to the Land Commission in money out of the appropriate guarantee deposit so far as that deposit will extend, that is to say:—
(a) moneys payable under this Act to the Land Commission in repayment of moneys paid into the land bond fund by the Land Commission to redeem land bonds; and
(b) moneys payable under this Act to the Land Commission in repayment of moneys paid by the Land Commission to a tenant by way of refund of excess payments by such tenant; and
(c) moneys payable under this Act to the Land Commission in repayment of moneys paid by the Land Commission for interest and sinking fund on so much of the land bonds redeemed as were issued for the contribution of the State to the standard price of a holding; and
(d) so much of moneys expended by the Land Commission on or to be retained by the Land Commission for the repair or maintenance of embankments or other works as the Judicial Commissioner shall under this Act order to be repayable to the Land Commission by a person to whom the purchase-money on any part thereof has been paid.
(5) The Judicial Commissioner, on being satisfied that all moneys for the payment of which a guarantee deposit may be resorted to under this section, have been duly paid out of such guarantee deposit or otherwise, may make an order releasing (as the case may require) such guarantee deposit or so much thereof as has not been applied in or towards making such payments.

I move amendment 46:

Section 21, sub-section (1). To delete all after the word "exceeding" in line 1 down to the end of the sub-section and to substitute therefor the words "one-fifth in the case of an estate on which there are rivers or sea embankments and one-tenth in any other case of such purchase money."

I am proposing to make an alteration in the proportion of the purchase money to be held as a guarantee deposit in the case of estates on which there are rivers or sea embankments. I am not proposing to make any change in the case of other estates.

I would call attention to the fact that under the amendment it will be in the discretion of the Judicial Commissioner to fix the guarantee deposit, but he cannot exceed one-tenth in the case of ordinary estates and one-fifth in the case of estates in which there are river or sea embankments. Anybody knowing anything about the working of land purchase must be aware that such embankments are very dangerous and it is right to take every precaution that there will be a sufficient sum available to put them in repair, in the first place, and to maintain them afterwards. If that is not done and if a breach occurs in an embankment not alone will it affect one holding, but perhaps 40 or 50 holdings. I do not think the amount which I suggest here is unreasonable. One-tenth of the purchase money is as high as the Judicial Commissioner can go, but he can reduce it as much as he likes. All I am providing for in the amendment is that if the Judicial Commissioner thought it necessary to go as high as one-fifth of the purchase money he could do so. There is nothing in the amendment to force him to do so. I think it is better to be on the safe side when dealing with this matter and for that reason, I submit the amendment for the consideration of the Seanad.

I think this is a very reasonable amendment. I know several cases of sea-wall embankments —I am sure some Senators from Munster know them also—where the cost of keeping them up was very much more than ten per cent. of the entire purchase money. In the case of the Fenit sea wall, which is not yet settled, the cost was almost equal to the cost of the estate. There are embankments on the Fergus where the cost of maintaining them in perpetuity will be very much more than 20 per cent. of the purchase money of the estate. There are holdings now at the bottom of the sea or mudbanks, owing to the breaking down of embankments. I think the amendment is very reasonable. Where there are sea walls or river banks to be maintained, a really good sum ought to be kept.

I wish to support the amendment. I think it is quite a reasonable one, and is only providing for emergencies that might place the Land Commission in a really difficult position. Quite unexpected expenses may arise, and it would only be in keeping with the sensible arrangements of the Land Commission to adopt the amendment.

I quite agree with Senator Linehan that it is necessary that the Land Commission should exercise special care to see that there is sufficient money retained to carry out repairs to embankments and to provide for their future maintenance. In the Bill, it is provided that a guarantee deposit will be retained in respect of every estate. The maximum amount of the purchase money which can be retained in any case is 10 per cent. The Land Commission at the moment have a list of all embankments on the '23 Act estates, and they will see that the purchase money is not distributed until full provision is made for the repair and future maintenance of these embankments. In the ordinary course, the Land Commission, quite apart from their power under this Bill to retain 10 per cent., can apply to the Judicial Commissioner to have money retained specially for the purpose of repairing embankments or for their future maintenance. The Land Commission will still go on applying to the Judicial Commissioner to retain money sufficient to repair embankments and to provide for their future maintenance. I do not consider that the amendment is necessary. I am reasonably certain—I do not say absolutely certain—that a guarantee deposit of 10 per cent. will be adequate in almost every case for our purpose.

I explained in the Second Reading debate that an estimate was made in the Land Commission as to the amount of the purchase money which it would be necessary to retain in order to provide for emergencies which may arise in consequence of errors being made in the vesting orders and claims that may be made subsequently in respect of embankments and so on. The average was about 4 per cent. In this Bill we provide for 10 per cent. being retained. I think the Senators can be satisfied that we have allowed ourselves a wide margin, and I do not consider that there is any occasion for an amendment of this kind.

The Parliamentary Secretary states that provision was made under previous Acts for the maintenance of embankments. If it is necessary in this Bill to provide a guarantee deposit, why not have an adequate deposit? Surely the amount of deposit in the case of an ordinary estate, where there are no embankments, would be entirely insufficient in the case of an estate where there was a danger of a breach of an embankment? The landlord while this deposit is being held will be in receipt of the interest on his land bonds, and it will lie with the Judicial Commissioner to say what the amount of the guarantee deposit will be. Allow him if necessary to go as high as 20 per cent. in the case of estates having embankments, and let it be 10 per cent. in ordinary cases where there is very little danger of loss.

As one who is anxious to facilitate the Parliamentary Secretary in getting this Bill through as rapidly as possible, I would ask him, without committing himself, to allow this amendment to be withdrawn, with a view to considering between now and the Report Stage if it is necessary to do something to meet the point of view put forward by Senator Linehan. I really think that there is a good deal to be said in many cases for this amendment. There is erosion and flooding from time to time, and the consequences are only revealed in time. If Senator Linehan would withdraw his amendment I would ask the Parliamentary Secretary to consider between now and the Report Stage if it is necessary to meet it in some way.

I would suggest that as the Judicial Commissioner has the ultimate discretion as to the amount of Land Bonds that are to be held, the case could be very readily met by deleting the last four or five words. If the words "but not exceeding in any case one-tenth of such purchase money" were left out, it would meet the case. There is no necessity for them. The Judicial Commissioner will adjudicate on every case and send his assessor out. The assessor will advise him as to what is the right thing to do. I do not see that there is any necessity for binding the Judicial Commissioner in this way. If the last few words were excluded, Senator Linehan's amendment would be met, and no harm would be done the Land Commission.

Cathaoirleach

It might do the owner some harm.

The discretion would be with the Judicial Commissioner.

I was under the impression that I had made the position quite clear. The Judicial Commissioner, undoubtedly, has power under Section 21 of this Bill to retain a guarantee deposit up to 10 per cent. of the purchase money of an estate. Quite apart from the powers given to the Judicial Commissioner in this Bill, the Land Commission has power, under the existing law, to apply to the Judicial Commissioner to retain 100 per cent. of the purchase money, if necessary, for the purpose of carrying out repairs to embankments or for the purpose of providing for their future maintenance. As I have said already, the Land Commission has got a list of the embankments on every 1923 Act estate in the country. Before these estates are vested, before there is a penny piece of the purchase money distributed to the vendors, the Land Commission will see that application is made to the Judicial Commissioner, so that an adequate amount of money will be retained for the purpose of the repair and maintenance of these embankments.

I still maintain that a 10 per cent. deposit is quite adequate. There may be an extreme case—it will be rare— in which it will be necessary to retain more than 10 per cent. for the purpose of repair of embankments or to provide for their future maintenance, but the Land Commission has already got power to apply to the Judicial Commissioner to retain a larger percentage, if required, for the purpose of doing this necessary work. No purchase money will be distributed in respect of any estate on which there is any embankment until the Land Commission is satisfied that adequate provision is made for the repair and future maintenance of these embankments. This amendment is not necessary. Senators should remember, when they speak of landlords, that they are speaking of men who are not all wealthy. There are poor landlords as well as rich landlords, and by withholding more than 10 per cent. of the purchase money you would be doing some of them an injustice. I know one landlord who has an estate in the Land Commission for many years. At the present moment he has an income of considerably less than £100 a year. I wonder how Senators would fare on an income of that amount. You must be fair to these people. As I explained a moment ago, in arriving at the 10 per cent., we allowed ourselves a very wide margin. The average is 4 per cent. The difference between 4 per cent. and 10 per cent. allows the Land Commission a very wide discretion in matters of this kind.

The case of the Parliamentary Secretary about the poverty of the landlords kills his case regarding the power of the Commissioner to retain any sum he likes.

There are no embankments on these estates. I was only dealing with the 10 per cent. deposit.

It seems to me that on the case made there is a balance in favour of the amendment. It does not seem to me that there is any case for postponing consideration of the amendment, as Senator Dowdall has suggested. After all, it is not a matter for further consideration. I can see no harm accruing if discretion is left to the Judicial Commissioner. The Parliamentary Secretary has suggested in other matters that the Judicial Commissioner ought to have discretion, and I think he ought to have in this matter discretion of a wider kind, such as Senator Linehan has indicated. It seems to me that all the argument is in favour of the amendment.

I do not know whether Senator Johnson understood my explanation quite clearly or not. I endeavoured to explain that, quite apart from this Bill, the Land Commission has, under the existing law—under the Acts of 1923 and 1927—power to apply to the Judicial Commissioner to retain any portion of the purchase money for the purpose of carrying out repairs to embankments or for the purpose of maintaining them. They will do that in every case before the purchase money is distributed, so that this amendment is unnecessary.

It will do no harm.

In view of what the Parliamentary Secretary states, why is it necessary to bring in in this clause the fixed amount of one-tenth? If the Land Commission are to instruct the Judicial Commissioner as to the amount of money they want retained, why is it necessary to specify one-tenth of the purchase money?

The Senator probably has not read the section. Mistakes may be made in distribution of the purchase money. The vendor or landlord may be paid too much or too little. The 10 per cent. is retained for the purpose of covering errors of that kind. The whole object of the Bill is to expedite the vesting of land. Naturally, when you are scrapping old procedure and adopting new procedure, you must take certain risks. That applies even to the distribution of the purchase money. To provide for emergencies of that kind, where the purchase money is distributed, we are retaining 10 per cent. of the deposit so that the Land Commission will not suffer any loss.

Cathaoirleach

Does it specifically make provision for embankments and such things?

It seems that Senator Linehan does not trust the evidence which is before us as to the opinion of the Land Commission in all the estates they know of. We are told that the Land Commission believes that a reserve of one-tenth covers all the cases that occur. He wants to alter that and to raise it to one-fifth. What happens is that when these things are on paper they are acted on. It would be found that in a great many cases where one-tenth would be sufficient, if "one-fifth" was inserted, then one-fifth would be retained. Accepting that amendment would mean that the Seanad is declaring that the opinion of the Land Commission is not right in this matter, and that we here in this Seanad know more about it than the Land Commission, who tell us that one-tenth is sufficient. It will be a great hardship on those people if their Land Bonds are cut down.

I doubt very much if the Seanad has a right to disregard the opinion of the Land Commission and all the evidence that the Land Commission has. The effect of passing the amendment would be that while the Land Commission says that one-tenth is enough, the Seanad would say, "It is not sufficient, one-fifth is required." Putting that burden on any individual who is to be paid in these Land Bonds would seem to me to be a great injustice, and we would be erring greatly in voting in favour of such an amendment. I doubt very much if Senator Linehan understands the effect of it, because he is disregarding the opinion of those who framed the Bill, and framed it on the opinion of the Land Commission, who have years of experience behind them, who know all the estates, and who have told us that one-tenth is sufficient. In effect, by voting for this amendment, Senators are telling the Land Commission that they know nothing about it, and that one-fifth should be allowed. That would seem to me to be taking a very wrong and severe step against people without any justification.

Senator Jameson's argument comes to this:—"The Land Commission people are experts. They have drawn this Bill; you know very little about it." If that is to pass, what is the necessity at all for debating any Bill here? If the Land Commission tell us that four per cent. is sufficient, that does not alter the matter when we know ourselves that in some cases 50 per cent. is not sufficient to repair sea-walls and embankments. The amendment refers only to estates which are subject to inundation from the sea or from the rivers. In the case of holdings in such a dangerous position the amount of the deposit should be at the discretion of the proper person, that is the Land Judge, and it should be for him to say whether it would be one-fifth or one-tenth.

If anybody will do an injustice to the landlords in this matter it is the Judicial Commissioner, because he has full discretion to fix the amount of the guarantee deposit in each estate. From what I know, I do not think he is likely to do anything that would be unfair. Senators must remember that in the meantime the guarantee deposit will be yielding 4½ per cent. of a dividend to the landlord. This matter is so important, and I have had so much experience of embankments, I think it is absolutely necessary that the amount of money to be retained for that class of estates—that is to say, estates on which there are embankments—should be far in excess of the amount that should be retained in the case of ordinary estates.

Amendment put.
The Committee divided:—Tá, 13; Níl, 17.

  • R. A. Butler.
  • Caitlín Bean Uí Chléirigh.
  • Michael Comyn, K.C.
  • Joseph Connolly.
  • J. C. Dowdall.
  • Michael Duffy.
  • Thomas Farren.
  • Sir John Purser Griffith.
  • Thomas Johnson.
  • Thomas Linehan.
  • Seán E. MacEllin.
  • Colonel Moore.
  • Joseph O'Connor.

Níl

  • John Bagwell.
  • Samuel L. Brown, K.C.
  • Miss Kathleen Browne.
  • Mrs. Costello.
  • John C. Counihan.
  • James G. Douglas.
  • Michael Fanning.
  • Henry S. Guinness.
  • Right Hon. Andrew Jameson.
  • James MacKean.
  • John MacLoughlin.
  • William John Molloy.
  • Sir Walter Nugent.
  • Bernard O'Rourke.
  • Siobhán Bean an Phaoraigh.
  • Michael Staines.
  • Richard Wilson.
Tellers:—Tá: Senators Comyn and Linehan. Níl: Senators Jameson and Bagwell.
Amendment declared lost.

I beg to move amendment 47:

Section 21, sub-section (4). After the word "maintenance" in line 32 insert the words "in perpetuity."

There are two matters here connected with embankments; one is the repair of embankments and the other is the maintenance. It is comparatively easy to estimate what it will cost to do the repair work. Even if there is no estimate, when the work is completed a bill could be made out and the cost could be fully ascertained. In the case of maintenance it means continuous upkeep of the works. Nobody can tell definitely what great storms or other occurrences of that sort might affect embankments and cause a breach that would be a very difficult thing to repair. That may not occur very often. Enbankments may remain safe for years, but provision should be made to ensure that maintenance work would be kept up. A certain sum could be laid aside, the interest of which would be sufficient to maintain the embankments in perpetuity.

I do not know whether it is intended by the Land Commission to estimate for the maintenance of the works during the period of the repayment of the loan or whether they will estimate for a sum that will keep up maintenance work for ever. I imagine that after the sum retained by the Land Commission has been expended the work will devolve on the tenants whose holdings adjoin the embankments and there will be no definite person in charge. It is possible that the tenant of one holding will neglect his part of the work and a breach will occur that will affect them all. I think it is desirable when the Land Commission are estimating for maintenance that they should estimate not merely for the period of the repayment of the advance, but for maintenance in perpetuity.

I do not consider that it is necessary to insert the words "in perpetuity." I am advised by legal gentlemen that the word "maintenance" in the sense in which it is used in the section means maintenance in perpetuity and, consequently, the words are not necessary. The same applies to amendment 48.

Amendment 48 is in my name. As the Parliamentary Secretary has stated, that amendment in substance is really the same as amendment 47.

Amendments 47 and 48, by leave, withdrawn.

I ask leave of the House to allow amendment 49 to remain over until Section 34 is being considered.

Leave granted.

In connection with Section 22, I have down an amendment—amendment 50. It has been ruled by the Seanad, however, that a Court letting shall not be regarded as a tenancy, and I ask leave to withdraw the amendment.

Amendment 50, by leave, withdrawn.
Sections 22, 23 and 24 agreed to.

Section 25 sets out that an appeal shall lie on questions of law only from a decision of the Judicial Commissioner to the Supreme Court. I have said all I wanted to say on the question of appeals, and I do not propose to go over the ground again.

Amendments 51, 52 and 53, by leave, withdrawn.
Sections 25, 26 and 27 put and agreed to.
SECTION 28.
Amendments 54, 55 and 56 not moved.
Sections 28 and 29 put and agreed to.
SECTION 30.

I move amendment 57:

Before sub-section (7) to insert a new sub-section as follows:—

(7) There shall be a right of appeal to the Supreme Court from any order made by the Judicial Commissioner under this section.

This relates to an appeal also, but it is an appeal of a different character. Senators will see that the section refers to the amendment of vesting orders. The amendment of vesting orders may govern the title to a holding, may govern the rights of parties, and that is a question of title that I think the ordinary citizen ought to be allowed to bring to the highest court in the land. The meaning of my amendment is that in such a case there ought to be an appeal to the Supreme Court.

There is.

I do not see it in the Bill. The reason I put in this amendment is that Section 30 introduces a number of changes in this system of amendment of vesting orders, registration, and other things. I am not clear that there is a right of appeal. Suppose it can be construed that there is a right of appeal, what harm is it to have it expressly stated that in a case of this character, where the title of people is concerned, there shall be in express terms a right of appeal? After all, a lawyer may be wrong. Sometimes lawyers go wrong. If they had not gone wrong, there would not be so much litigation. Even the advice the Parliamentary Secretary is receiving may be inaccurate, and unless he considers it a point of honour that no part of his Bill is to be amended in this Seanad he should accept the amendment. Unless people are in such abject terror that by means of any change in this Bill the Bill may be lost, the amendment ought to be accepted.

This section was really put in because the Court of Appeal gave two different decisions on the very same point. There is no occasion, as a matter of fact, to state specifically in this section that there should be a right of appeal to the Supreme Court on a question of law, because that right of appeal already exists in the Local Registration of Title Act, a number of the Land Registration Acts and in the Land Acts as well.

There was a right of appeal to the Supreme Court in disputes relating to vesting orders and registration under the Registration Act of 1891 and under other statutes, but the Parliamentary Secretary has now informed the House that our Supreme Court gave two contrary decisions in two cases on the same point. New legislation is now being enacted and new rules governing this question, and the right of appeal under the old section will not necessarily apply to disputes that arise under this new section. Therefore, I urge the House to accept the amendment, giving an express right of appeal in a really obscure case, because the case must have been obscure, seeing that the Parliamentary Secretary has been able to inform the House that the Court of Appeal have given contrary decisions on the same point in two different cases. If that is so, the thing ought to be made, for the Court of Appeal and every other court, as precise and clear as possible. These disputes affect the rights of parties. These disputes relating to vesting orders, boundaries, etc., are very important, and we now ought to say in express terms that in case of a dispute under this section there shall be a right of appeal to the Supreme Court. Unless the Parliamentary Secretary regards it as a point of honour not to allow the Seanad to amend the Bill in any respect, he ought to accept that.

I feel in a position when discussing a Bill of this sort that I am bound to act upon the arguments that are adduced. Where we have a skilled lawyer explaining matters of law we are bound to give credence to what he states. I should like to be quite sure on the point which Senator Comyn has made, that in a Bill that amends previous Acts amendment is to be presumed of a previous Act, even though nothing of that kind is stated in the amending Bill. That seems to me to open up a vast vista of chaos. If it is possible to assume that the right of appeal which it is admitted has hitherto existed is, by virtue of an amending Bill abolished, even though nothing is said in regard to that in the amending Bill, I feel in a very great difficulty. I do not know where we are if that is the possible reading of the law or the practice of the courts, and I certainly would like some enlightenment.

I certainly would not like Senator Johnson to misunderstand me as saying that if there is a right of appeal under a former Act of Parliament, and if there is an amendment of the Act, the right of appeal is taken away. I would have to see the Act of Parliament. On the construction of the statutes the only principle is this, that the repeal of a section in an Act of Parliament will not prevent the effect of the proviso in that Act. These are questions that are so involved that they can go as far as the highest court in the land, and before the Free State came into operation a question like that went as far as the Privy Council. I appeared in an appeal from New Zealand on that very point. Let nobody take me as saying positively that when the rules are altered by this new Bill the right of appeal under the old Act is taken away. I do not know, but in order to be sure about it, I think it is only fair that this amendment should be inserted to see that the right of appeal is preserved.

What harm will there be in putting this in? I think the Parliamentary Secretary is right, but what harm will this do? The case made by the Parliamentary Secretary is that it is not necessary, because the right of appeal is given by a previous Act. I think he is right. But if there is any doubt about it, what harm can this do?

I object to putting in something which is not necessary, as it seems to be a foolish procedure.

Can Senator Brown say from his experience that there is any doubt in this matter?

I have no doubt myself, but other people may have.

Perhaps I might explain the reason for the introduction of this particular section. Recently the Court of Appeal, in the case of O'Connor and Bowler, amended two folios and awarded compensation where two purchase agreements included undivided shares of certain lands in wrong shares. Subsequently, however, to this decision the Court of Appeal, in the case of Dooley and Haugh, refused to amend an error in two other purchase agreements where a plot of land was in fact inserted in the wrong agreement, holding that the power to correct errors did not extend to errors other than those made by the Land Commission or the Registering Authority. These decisions appearing to conflict, render it necessary that the law should be made clear, and the suggested clause gives a cheap and expeditious means of setting matters right between the contending parties. But it does not do away with any existing right of appeal, or affect it in any way.

I agree.

It does away with the existing law. But I do not want to waste the time of the Seanad. I ask would the Minister consider this amendment between now and the Report Stage?

Amendment, by leave, withdrawn.
Section agreed to.
Amendment 58 not moved.
Sections 31, 32 and 33 agreed to.
SECTION 34.
(1) Notwithstanding anything contained in the Land Purchase Acts, the following provisions shall have effect in relation to the distribution of purchase money, that is to say:—
(a) the Court may after publication by advertisement or otherwise of such notice as the Court shall consider sufficient direct payment of a claim in respect of which the Court is of opinion that the title of the claimant, though imperfect, is nevertheless such as to make it improbable that any claim adverse to such first-mentioned claim could be sustained;
(b) the Court shall be entitled to act on the evidence of title submitted by a claimant and it shall not be obligatory on the Court to inquire as to the existence or nonexistence of any adverse estate, right, claim, or interest which is not disclosed by such evidence;
(c) where a person, within the time (hereinafter referred to as the time for claiming compensation) allowed in that behalf by this section, proves to the satisfaction of the Court that he or a person from whom he derives title was entitled to participate in the distribution of purchase money, and that his or such person's right so to participate was not disclosed at the time of such distribution and that such non-disclosure was not caused or substantially contributed to by such first-mentioned person or his solicitor or agent or by any person from or through whom he derives title or the solicitor or agent of any such person, such first-mentioned person shall be entitled to claim from and be paid by the Land Commission by way of compensation such sum as the Court shall fix having regard to all the circumstances of the case.
(2) The time for claiming compensation under this section shall be whichever of the following times is applicable, that is to say:—
(a) where the person claiming compensation was under the age of twenty-one years on the day on which the purchase money was distributed, within six years after such person attains the age of twenty-one years;
(b) where the compensation is claimed in respect of a mortgage, charge, or other incumbrance, within whichever of the following periods is the shorter, that is to say, six years from the day on which the last payment in respect of the principal of or the interest on such incumbrance was made before the making of the claim for compensation or thirty years from the day on which the purchase money was distributed;
(c) where the compensation is claimed in respect of a superior interest, within whichever of the following periods is the shorter, that is to say, six years from the day on which the last payment of rent, interest, or other income from such superior interest was made before the making of the claim for compensation or thirty years from the day on which the purchase money was distributed;
(d) in any case to which none of the foregoing paragraphs applies, within six years from whichever of the following days is the later, that is to say, the day on which the purchase money was distributed or the day on which the person claiming compensation or some person from or through whom he derives title first knew or might with reasonable diligence have ascertained the existence of the right to such compensation.
(3) In the foregoing sub-section of this section references to the day on which the purchase money of an estate is distributed shall be construed as referring to the day on which that portion of the purchase money of such estate in relation to the distribution of which compensation is claimed is distributed.
(4) All compensation payable by the Land Commission under this section shall be paid out of moneys provided by the Oireachtas.
(5) The amount of any compensation paid by the Land Commission under this section shall be repaid to the Land Commission by such person as shall be declared by the Court to have received that portion of the purchase money which would have been applied in discharging the claim in respect of which such compensation was paid if such claim had been disclosed at the time of the distribution of the purchase money, and the amount so repayable by such person shall be recoverable from him by the Land Commission as a debt due to the State.
(6) Any sum which might be paid to an agent under sub-section (8) of Section 40 of the Land Act, 1923, on his ceasing to act as such agent, may, in the event of the allocation of the purchase money occurring before he has ceased to act as such agent, be retained by the Judicial Commissioner out of the purchase money and paid to such agent at such time or times as the Judicial Commissioner shall direct.

I move amendment 59:

Section 34, sub-section (1). To delete in line 37 the words "make it improbable that any" and to substitute therefor the words "raise a judicial presumption that no."

This section makes provision in relation to the distribution of the purchase money and allows the landlords to get their purchase money without a very close scrutiny as to their title in some cases. On the Second Reading of the Bill the Parliamentary Secretary explained that provision. I have no objection at all to the owners of estates getting their money when they show a reasonable title, but my objection to these words is that I have never seen them in an Act of Parliament before. I do not object to their paying out money although the title seems imperfect, but what I do object to are the words "make it improbable." I want the applicant for money in every case to raise a judicial presumption.

What do you mean by that?

I mean a definite legal thing. I put it to Senator Brown, with his long experience of the law, whether he has ever seen in an Act of Parliament a section such as that to which I object, "make it improbable that any claim adverse to such first-mentioned claim could be sustained." Does the judge legally decide what is probable and what is improbable? The only phrase known to the law in that connection is that the judge makes a presumption. It may be a legal presumption, it may be a rebuttable presumption, or it may be an irrebuttable presumption. I only ask that if the facts are such as to raise a presumption of law in the mind of the judge, the man who claims the money has a right to the money, and is to get the money. I do not say it should be an irrebuttable presumption, but a presumption of law, and I want, by my amendment, to provide that the words "make it improbable," which have no legal meaning, should be excluded, and that a proper legal phrase should be used instead.

The Senator asked me if I had ever seen the words which are in this sub-section in an Act of Parliament before. I have not; but they are perfectly understandable words and quite easily understood. Section 34 (a) says:—"(1) Notwithstanding anything contained in the Land Purchase Acts, the following provision shall have effect in relation to the distribution of the purchase money, that is to say:—(a) the Court may after publication by advertisement or otherwise of such notice as the Court shall consider sufficient direct payment of a claim in respect of which the Court is of opinion that the title of the claimant, though imperfect, is nevertheless such as to make it improbable that any claim adverse to such first-mentioned claim could be sustained."

That is a perfectly easily understood thing, and is a question more or less of fact. What I do not understand is what the Senator means by a presumption of law. A presumption of law is wholly inapplicable to a case like this. The judge has to be satisfied on investigating the title to this claim, that although it is imperfect, it is most improbable in fact that any claim could be sustained against it. That is the meaning of it, and it is quite clear, whereas if we adopt the suggestion of Senator Comyn we would make it anything but clear, so that no lawyer could understand it.

I am glad to hear a lawyer like Senator Brown talk like that. It shows one can really get stale on things. But he admits that he never saw a phrase like the phrase, "make it improbable that." Now he says it is perfectly clear, but it has not been in any Act of Parliament before. Therefore it must receive judicial decision some time or other, and the confusion will be just as bad as it was in the case of the interpretation of the last section where the Supreme Court gave two contrary decisions. Senator Brown says he does not understand what the meaning of my amendment would be. My amendment is to raise a judicial presumption that no other claim could be sustained. There are two kinds of presumptions. There is a rebuttable presumption which is the kind of presumption I want applied here, and there is an irrebuttable presumption, and Senator Brown knows there is the legal phrase for it, presumptio juris et de jure. That is an irrebuttable presumption. I do not want that. I do not want to put the vendor to that trouble, but simply to produce such evidence as will enable the judge to say: “Very well, I presume this man is entitled to his payment,” just the same as a judge is entitled to presume the death of a man who is absent, say, for seven years. The judge will not say it is highly improbable the man is alive. That is not what is said in a Court of Justice. A judge ought not be asked to say what is probable or improbable. He ought to be asked to presume a thing or not to presume it. I submit in point of law and draftsmanship the amendment is preferable to the section, and I leave it at that.

Again, as a layman, I am curious to know how the section would read if the amendment were adopted, "is nevertheless such as to raise a judicial presumption that no claim adverse to such first-mentioned claim could be sustained." A judicial presumption that a claim cannot be sustained seems to me to be a contradiction.

Not at all.

I could understand a presumption——

Then it would be better for the Senator not to interfere at all in this.

But we are here in the position of jurymen. Advocates have to convince the jury, and we are in the position that we have to vote on this. Again, I say this is a case of not proven. As we have no not-proven lobby, I am afraid I must vote against the amendment.

Amendment, by leave, withdrawn.

I move amendment 60:—

Section 34, sub-section (1). To delete all after the word "as" in line 58 down to the end of the sub-section and to substitute therefor the words "he would have been entitled to receive on the distribution of the purchase money without interest and after deducting such costs and expenses as in the judgment of the Court were occasioned by his delay in making his claim."

This is a matter on which Senator Johnson would be a better judge than I am. If Senators read the section they will find that it contemplates the case of purchase money having been distributed to the wrong man. It also contemplates the case of the right man turning up and of paying him compensation. The sum that he shall be entitled "to claim from and be paid by the Land Commission by way of compensation, shall be such sum as the Court shall fix having regard to all the circumstances of the case." What I propose is that the compensation that he ought to get is the money to which he would have been entitled if he had turned up in time— the value of his estate. I would either give him the value of his estate, after deducting costs and expenses, or nothing. That is all I say about it.

That might be fair or it might be very unfair. As the sub-section stands the court is to decide, in all the circumstances of the case, what he is to get. If the default or the delay was his own, then Senators may be perfectly certain that the court will not give him all his money and costs. They will give him what is fair in the circumstances.

I am afraid Senator Brown has not looked at the section.

I think I have.

This section contemplates the case of a man who, within the time allowed by statute, comes in and makes his claim. Is he to get the value of his estate or is he not? That is a matter for the Seanad, Senator Johnson and others to decide.

I would like to hear what the Parliamentary Secretary has to say. I do not think this is a case of giving all the discretion to the Court. I think there is something to be said for the amendment, and unless I hear something to the contrary I shall vote for it.

A similar amendment was moved in the Dáil by Deputy Derrig, which was subsequently withdrawn by him on my explaining to him the real meaning of the amendment. The Senator's amendment is really designed to take away from the court any discretion with regard to the payment of these claims. Its object is to make it obligatory on the court to pay the full amount of the claims in every case.

Certainly, no discretion.

In the section, as drafted, the court is given a certain amount of discretion. In the exercise of that discretion the court may decide that, in certain cases, it would not be just to pay the full amount of the claim. In any event, it is essentially a matter for the court to decide, and it seems to me that it would be very unfair to deprive the court of that discretion.

I understand that if a man has proved to the satisfaction of the court that he was entitled to participate in the distribution—that is to say, has proved his case to the court— he should have a certain sum of money. To give the court discretion to say whether or not he should have it seems to me a contradiction. If he has proved to the court that he was entitled to this money but for certain circumstances which were outside his control, then it seems to be obvious that he should have it, and that there should not be discretion left to any court.

What he proves to the court is that he was entitled to participate in the purchase money.

That he was entitled to a share—either to the whole or to an undivided share.

The Senator's amendment means that the court will pay him the full amount.

No, what he would be entitled to. If there were two sisters, each would be entitled to fifty per cent. of the money, and if there were three sons each would be entitled to one-third share. What a person proves to be entitled to from the estate he should get.

That is the whole point. It is really for the Court to decide what amount of money a person is entitled to. There may be circumstances where a person would not be entitled to the full amount. Surely the Court should have discretion in such a case to pay only such portion as the person was legally entitled to?

That is the meaning of my amendment.

No, your amendment makes it obligatory on the Court to pay the full amount that a person claims.

I quite understand now why the Parliamentary Secretary is opposing my amendment. Surely if a man proves his claim to an estate, or part of an estate, the measure of what he is entitled to is the value of that interest, and not compensation at the discretion of the Court, the Judge or any other person?

Amendment put.
The Committee divided:—Tá, 10; Níl, 18.

  • Caitlín Bean Uí Chléirigh.
  • Michael Comyn, K.C.
  • Joseph Connolly.
  • Michael Duffy.
  • Thomas Farren.
  • Thomas Johnson.
  • Thomas Linehan.
  • Seán E. MacEllin.
  • Joseph O'Connor.
  • Siobhán Bean an Phaoraigh.

Níl

  • John Bagwell.
  • William Barrington.
  • Samuel L. Brown, K.C.
  • Miss Kathleen Browne.
  • R.A. Butler.
  • Mrs. Costello.
  • James G. Douglas.
  • Michael Fanning.
  • Sir John Purser Griffith.
  • P.J. Hooper.
  • Right Hon. Andrew Jameson.
  • Sir John Keane.
  • James MacKean.
  • John MacLoughlin.
  • William John Molloy.
  • M.F. O'Hanlon.
  • Bernard O'Rourke.
  • Richard Wilson.
Tellers: Tá, Senators Comyn and Connolly; Níl, Senators Brown and Barrington.
Amendment declared lost.

Cathaoirleach

You will remember, Senator Comyn, that amendment 49 was held up to be argued with amendment 61.

I move amendments 49 and 61.

Section 21, sub-section (4). To add at the end of the sub-section a new paragraph as follows:—

"(e) a sum not exceeding twenty per cent. of the guarantee deposit to be paid into a fund to be called the Title Compensation Fund to meet compensation payable under section 34 of this Act."

Section 34, sub-section (4). After the word "shall" in line 31 to insert the words "so far as it cannot be met out of the Title Compensation Fund provided under paragraph (e) of sub-section (4) of section 21 of this Act."

These amendments are consequential and hang together. On reading through Section 34 Senators will observe that provision is made for the distribution of the purchase money in cases where there may not be time to have a strict investigation of title, and in their wisdom the Seanad have now decided that the judge may pay out the purchase money on some theory of probability in his own mind that, although the title is bad, and he thinks that an adverse claim may be made, he may pay the money. The Bill also contemplates that money will be paid out to people who are not entitled to it. It also contemplates that persons who are entitled will, within the period of time allowed by the Bill, turn up and claim their money.

You have just decided also that such persons are to be paid compensation, and you have decided that they are not to be paid the value of the estate or the interest they possessed, but that they are to get compensation according to the discretion of the judge. The Bill also provides that the amount of this compensation can be recovered from those to whom the purchase money has been paid. Of course, Senators will understand that a man who has got his money, if he is wise—whether he is wise or not—in the ordinary course of events, will probably go outside the jurisdiction. That is a position for which I want to provide. If compensation awarded by a judge to the rightful owner has to be paid, there is no fund out of which it can come except the public Exchequer. I want to provide a fund. I have no objection to the owners of estates, as a class, getting facilities and getting the distribution of the purchase money at once, especially when money is cheap and while the state of the money market is favourable, but I think that any losses incurred should be borne by the body of fee-simple owners, the body of vendors, and not by the taxpayers.

Section 21 deals with the guarantee deposit of ten per cent., and out of that deposit a number of payments are to be made. For instance, money has to be paid for the redemption of bonds, for the keeping up of embankments and so forth, and I propose that there should also be paid a sum not exceeding twenty per cent. of the guarantee deposit, and it should be devoted to a fund to be called the Title Compensation Fund to meet compensation under Section 34. The landlords, as a body, are getting facilities, and the Parliamentary Secretary and the Land Commission are anxious to pay them off and let them go. There will be losses. There will probably be bad titles accepted. My proposal is that these losses should be borne by the general body of vendors and should be met by appropriating twenty per cent. of the guarantee deposit to a special fund to be called the Title Compensation Fund. In that way the body of landowners or vendors would be assured of a quick method of getting paid their money, and the State would not lose. Let them pay that two per cent. of the purchase money into that fund, and everybody will be satisfied. If that is done these sections will work smoothly.

I warn the Parliamentary Secretary that unless it is done and unless the owners in fee are to put the money into a Title Compensation Fund the sections providing for the speedy vesting and payment will not work. They will be a dead letter, because no public servant, whether in the Land Commission or any other department, will run the risk of paying out money to any man unless that man shows good title, and he will not leave himself in the power of superior officials or Parliament to criticise him for paying out money wrongfully. Unless my proposal is adopted this part of the Bill will be a complete failure. It is only fair that if the landlords are to benefit by speedy distribution they should pay into a compensation fund to cover losses.

Let us see what the amendment means. The number of cases in which money will be paid out in what is called imperfect title cases will be very small. There will probably be not more than one or two of the estates to which this amendment would apply. Senator Comyn wants to form a fund contributed to by all the landlords with good title to cover the cases which will not number more than one or two landlords with imperfect title. I never heard of anything so absurd.

I never heard of anything so simple as the way we are told from time to time, whenever the Parliamentary Secretary or Senator Brown comes up against anything really difficult, that such things could not happen, but if you are not going to have cases of this kind happening, what is the use of such legislation at all? If this section is to be availed of, it will be for the purpose of simplifying the proof of titles, and will apply in every case if the section has any substance. Senator Brown will, I think, agree that the cost of proving title in the case of large estates is about two per cent. of their value. I mention two per cent. of the purchase money in my amendment merely as an arbitrary figure. Senators can make it one per cent. if they like, but it is the principle of the amendment in which I am interested. I am not wedded to the figure in the amendment. I do not care whether it is accepted or not, but I say that, if there are to be facilities for a certain class, that class should put a certain amount into a compensation fund in order to prevent the State being robbed by certain people.

It appears to me that the question before the House is whether under Section 34 the compensation shall be paid out of monies provided by the Oireachtas or out of monies provided for the payment of the owners. Senator Brown protested against making all owners pay something into the insurance fund. I might in the same way protest against the citizens having to pay an amount into that fund. I think that the burden ought to be borne by the people who are getting paid quickly rather than having it thrown on the common exchequer. On these grounds I favour the principle in the amendment. Apart from whether the figure is 1 or 2 per cent., I think the principle in the amendment is sound.

I would like to know what is going to happen if this two per cent. that has to be lodged proves to be insufficient. Where is the balance to come from then? Supposing, on the other hand, it proves to be too much, what is going to be done with it? It is obvious that in these circumstances a great injustice will be done to the people from whom this money would be withheld.

Cathaoirleach

This Section 21 only provides for specific estates. It would not be a general contribution. It is only in particular estates that the deduction would be made.

As stated in the Bill, the money is provided by the State, and the succeeding clause gives the State the right to recover from the people who have received the money if it transpires that they are not entitled to it. As far as possible the State will get that money back, but Senator Comyn has not told us how the owners of property who are to provide this compensation fund are going to get it back. They have no right of action. The State has a right of action, and can proceed to recover the money. The unfortunate people who would have to provide this money under Senator Comyn's amendment, would have no right of action whatever. It seems to me that this amendment would absolutely block the working of the Bill. The Bill says that the State provides the money, and wherever possible the State will recover that money. The Senator, however, is going to make people provide this money who have no right of action whatever.

May I suggest that Senator Jameson is discussing the wrong section? My proposal is that the owners in fee, the vendors, get the standard price, that is the value of their land. They get in addition ten per cent. more from the State. They got that under the Act of 1923. They are getting under this Act other facilities, namely, that the purchase money is to be paid out without that rigorous investigation of title which occurs in the case of the sale of a small farm in the country. They are going to get their money paid out without a rigorous investigation of title, and it is contemplated that there will be losses. All I say is that one-fifth of the guarantee deposit, that is two per cent. of the purchase money, one-fifth of the sum over and above the value of the land, should go into an insurance fund to provide for losses by the State. I think I have made it perfectly clear, and let Senators vote on the proposal as they wish.

Arising out of what Senator Brown stated, I would like to ask him if he objects to the retention of any percentage at all, or is it the method of retention to which he objects? I cannot believe that he thinks that the State should be responsible for compensation which may have to be paid a second time owing to payments having been made in the initial cases on faulty titles. He admits that it is possible that two or three per cent. of the amounts to be paid——

Two or three per cent. of the cases in which it might happen. In every hundred cases there might be two.

I want to ask Senator Brown is it his contention that the State ought to lose that money or that those who are benefiting by rapid payment of the money by the Government should be the persons who ought to bear it? If his objection is merely to a common fund I think the Parliamentary Secretary might find a way, such as retaining the difference to the credit of the individual account, and after a certain period, if the title were not contested, that money could be paid out to the original payee. I cannot believe that Senator Brown intends to convey that 2 or 3 per cent. of landlords with faulty titles may be paid, and that the State may have to bear the loss.

It is not 2 per cent. of the purchase money.

I did not suggest that.

It is 2 per cent. of the cases. It is not the title of the estate that is imperfect. This refers to claims against the purchase money. The title to the estates will have to be established. What this section deals with, it seems to me, are claims against the purchase money. My contention is that it should be paid by the State, with the right to proceed against the person who had received the money. These are matters in which title might sometimes be questioned. The money should not come out of the pockets of the owners whose title is clear.

Will the Senator be content with having it retained to the individual account?

No. That would take away the whole benefit of the section. The whole meaning of the section is that the purchase money has to be paid out without any amount being retained.

Even to a reduced percentage.

You are not going to benefit the landlord if you retain the money.

Even if you retain only one-half per cent.

Senator Brown stated that it does not apply to the purchase money. If he looks up Section 34 he will see there, in the marginal note, "provisions in relation to the distribution of purchase money."

Does not the fact that this retained fund is designated a title compensation fund clearly indicate the specific purpose for which it would be ultimately used?

In the amendment it does.

And in the section.

It seems to me that Senator Brown merely argues that the State should bear the cost irrespective of any mistake that may be made, and that the vendor, irrespective of any mistake in title, should get away with the money.

The vendor, or whoever gets away with the money, can be sued under the section as it stands.

Assume that we will have, as we shall have, an absentee landlord turned into an absentee vendor. How is the State to proceed against him? We know that in a great many cases he will never turn up in this country again.

You can sue him in whatever country he is in.

In Monte Carlo, I suppose.

It is easier to find the estate than to find the landlord.

Amendment put.

Are we to take it that the Parliamentary Secretary has no view to express on the amendment?

Cathaoirleach

He says not.

I see. That is interesting.

The Committee divided: Tá, 7; Níl, 21.

  • Caitlín Bean Uí Chléirigh.
  • Michael Comyn, K.C.
  • Joseph Connolly.
  • Michael Duffy.
  • Thomas Farren.
  • Thomas Johnson.
  • Thomas Linehan.

Níl

  • John Bagwell.
  • William Barrington.
  • Samuel L. Brown, K.C.
  • Miss Kathleen Browne.
  • R.A. Butler.
  • Mrs. Costello.
  • James G. Douglas.
  • Michael Fanning.
  • P.J. Hooper.
  • Right Hon. Andrew Jameson.
  • Sir John Keane.
  • Cornelius Kennedy.
  • James MacKean.
  • John MacLoughlin.
  • William John Molloy.
  • Joseph O'Connor.
  • M.F. O'Hanlon.
  • Bernard O'Rourke.
  • Siobhán Bean an Phaoraigh.
  • Michael Staines.
  • Richard Wilson.
Tellers:—Tá, Senators Comyn and Connolly; Níl, Senators Barrington and Brown.
Amendment declared lost.

Cathaoirleach

Amendments 61 and 63 are consequential.

I move amendment 62:—

Section 34, sub-section (5). After the word "Compensation" in line 33, to insert the words "and all costs and expenses."

The object of this amendment is where money is paid out to a person who is not entitled to it, and an action is brought against him to recover the amount of the compensation which is payable to the rightful owner, the State should be entitled to recover from the person who has got the purchase money of the estate not merely the compensation but all costs and expenses paid by the Land Commission.

There was a similar amendment moved in the Dáil, and I explained on that occasion that it was really unnecessary, as compensation will naturally include costs and expenses.

If that is the explanation given in the Dáil, I suppose it will be regarded as good enough here.

I do not suggest that, but the compensation does really include costs and expenses.

How could compensation include costs and expenses? If the Parliamentary Secretary will look at the Debates of the Dáil—of course he is to be excused for not remembering everything he has said in the Dáil and in the Seanad—he will see that that is not the reason he gave.

Cathaoirleach

We are debating it now, Senator, not the Dáil.

My submission is that if the Land Commission are to be entitled to sue for compensation that they gave to the rightful owner, they ought to be entitled to sue for the costs as well.

Perhaps the Senator would explain what costs he is thinking of. I want to be quite fair to the Senator.

Perhaps the Parliamentary Secretary would read sub-section (5)—"the amount of any compensation paid by the Land Commission." The compensation referred to and paid by the Land Commission under this section is the compensation which we have already been speaking of and which is to be paid to the rightful owner under Section 34 (1) (c)—"where a person within the time (hereinafter referred to as the time for claiming compensation allowed in that behalf in this section), proves to the satisfaction of the court that he was entitled to the money" he shall be paid compensation referred to in Section 34. Here is sub-section (4) of that section: "All compensation payable by the Land Commission under this section shall be paid out of moneys provided by the Oireachtas." Sub-section (5) reads:

"The amount of any compensation paid by the Land Commission under this section shall be repaid to the Land Commission by such person as shall be declared by the Court to have received that portion of the purchase money which would have been applied in discharging the claim in respect of which such compensation was paid if such claim had been disclosed at the time of the distribution of the purchase money, and the amount so repayable by such person shall be recoverable from him by the Land Commission as a debt due to the State."

It is perfectly obvious what compensation is there referred to. My submission is that if the Land Commission are entitled to the compensation they are also entitled to the costs and expenses.

Cathaoirleach

You maintain that compensation does not include costs and expenses.

Of course it does not.

My contention is that it does include costs and expenses. If the Senator is keen on that point, I am prepared to leave the matter over until the Report Stage.

Cathaoirleach

Adjourned to Report Stage.

I would like to say another word.

Cathaoirleach

The amendment is adjourned to Report Stage.

If the Parliamentary Secretary is to consider this matter, he has a right to consider what is said on behalf of it.

Cathaoirleach

That will be considered on Report.

The decision of the Parliamentary Secretary will then have been come to and we will have pre-judged the question.

Cathaoirleach

No, we have adjourned consideration of the amendment to the Report Stage. It cannot be decided before then. It will be redebated on Report, and the Senator will have an opportunity of saying what he likes about it.

We know how these things are done.

Cathaoirleach

I hope they will be done as I suggest.

Amendment adjourned to Report Stage.

I move Amendment 64:

Section 34, sub-section (5). After the word "received" in line 36 to insert the words "for his own benefit, or to have retained under his control as a trustee."

I think these words have been omitted accidentally. If money has been paid to the wrong person and compensation has been paid to the right person, the Land Commission can recover from the person who got the money wrongfully the amount of the compensation. That is to be recovered from the person who has received the money wrongfully. It may happen that the person who has received the money wrongfully is a trustee who received it not for his own benefit but for the benefit of people entitled under whatever instrument he is trustee of. It would be unjust to make a trustee pay out of his own pocket money which he has received as trustee, and which he has been obliged to pay over to the persons entitled absolutely. The proper person to be sued in a case like that is the person to whom the money actually goes for his own benefit. That is the effect of my amendment. There are two other sections in the Bill in which those words have been inserted. In this instance, I think, they were left out more or less accidentally.

This is a verbal amendment which I am prepared to accept. I agree that these words appear in two other sections of the Bill. It was by an oversight they were omitted here.

Amendment agreed to.

I move amendment 65:

Section 34, sub-section (6). To delete all after the word "agent" in line 45 down to the end of the sub-section and to substitute therefor the words "be paid by the Judicial Commissioner in whole or in part on such allocation, or in so far as the same shall not be so paid may be retained out of such purchase money and be paid to the agent in whole or in part at such time or times as to the Judicial Commissioner may seem just."

This sub-section deals with the compensation payable to the agent of an estate out of the purchase money. That is originally payable under Section 40 of the Act of 1923, and it is payable under that section only when the agent has ceased to act as agent. It is quite possible that there will be allocations of purchase money before the agent has ceased to act as agent. He may still be acting as agent of the estate, and there is a certain amount of doubt as to whether this sub-section, in its present form, would entitle the Judicial Commissioner, if he were allocating and the agent was still to remain an agent of the estate, to pay him compensation, on the allocation, or whether he would have to wait. Personally, I think there is not much doubt about the matter, but it would make it quite clear if the sub-section were altered to the form I suggest.

I do not think that there is any doubt about the meaning of the section. I think it is very clear and that the amendment is unnecessary. However, I will undertake to consider it between now and Report Stage.

Amendment adjourned to Report Stage.

I move amendment 66:

Section 34. To add at the end of the section a new sub-section as follows:—

"(7) All orders made by the court under this section shall be subject to appeal to the Supreme Court."

The Seanad, having heard so much discussion about compensation and paying out to persons who are not entitled, and paying subsequently to persons who prove themselves to be entitled, will be quite convinced that a great many intricate questions of law are likely to arise on the construction of this section. I think it ought to be perfectly explicit that all these questions are to be subject to appeal to the Supreme Court. I do not think it can be said that this is unnecessary, because there is nowhere in the land code legislation of the peculiar character of this section. Therefore, I submit, there ought to be a right of appeal.

This is another case where I consider an amendment of this kind is quite unnecessary, as the right of appeal does exist under the Land Acts. If the Senator will look at Section 24 of the 1923 Act, which relates to the distribution of the purchase money, he will see clearly that such right of appeal exists, and that this right of appeal has been continued down through the Acts.

That is in the case of a regular distribution of purchase money, but here you have legislation of an abnormal kind, and you have principles of law abnormally introduced. The question is, do you want an appeal to the Supreme Court under this section, and if you do, why not put in these two or three words which will enable people to have it if they want to have it? Unless an appeal to the Supreme Court is given in express terms in relation to matters arising under this section, there is no appeal by inference from the Act of 1923.

I have looked at Section 24 of the Act of 1923——

I meant the Land Act of 1903.

We have not got that before us.

Does that Act affect this?

Yes. This section relates to the distribution of the purchase money and the section of the Act of 1903 also relates to the distribution of the purchase money. As such right of appeal already exists, there is no need to provide for it in this Bill. I have got expert legal advice in this particular matter, and I tell the Seanad that that expert legal advice is against repeating things in this Bill which are already in previous Acts, and which are continued.

I protest against having this Seanad bludgeoned by expert opinion or by statements that expert opinions have been received.

Cathaoirleach

The Senator is giving his own opinion as an expert.

As an elected Senator, I am making submissions to the House.

Cathaoirleach

Quite so.

I am speaking as an elected representative of the people. I ask the Parliamentary Secretary to consider this—suppose the Judge under Section 24 says that the title in a particular case is imperfect, but nevertheless it is improbable that any adverse claim will be made; suppose the Judge under that section makes a decision does the Parliamentary Secretary say that there is an appeal from such a decision under the Act of 1903? Of course there is not an appeal under the Act of 1903. It is not provided for under that Act. It does not provide for an appeal from the Judge's opinion as to the probability whether a claim will be made or not. It must be clear to the Parliamentary Secretary that the right of appeal under the Act of 1903 does not cover these cases because there is a new vista of legal propositions arising out of this section. It is a very curious thing that this amendment, which simply says that there shall be a right of appeal to the Supreme Court, is not accepted. The only reason given is that it is unnecessary and that the Parliamentary Secretary has expert opinion on that point.

I do not know whether my friend Senator Comyn looked at Section 54 of the present Bill, which states that: "This Act shall be construed as one with the Land Purchase Acts and may be cited with those Acts." The whole thing is really a code and there can be no doubt that the right of appeal is continued.

I would like to say that it seems to me an extraordinary thing that the Parliamentary Secretary refuses to accept this amendment. I am speaking now with a nonlegal mind. If this right of appeal to the Supreme Court is inherent in the Bill why is the Parliamentary Secretary so decidedly adverse to putting in this simple amendment? Are we to assume that it is because Senator Comyn has moved this amendment that it is opposed by the Parliamentary Secretary? Amendments have come from other sections of the House and have been welcomed and gracefully received. I see no justification for the hard-boiled attitude taken up by the Parliamentary Secretary against this simple amendment.

I do not think that Senator Connolly is in any way justified in making that statement. It is my recollection that one or more amendments that Senator Comyn put up have been reserved for consideration on Report. That does not suggest any hard-boiled prejudice on the part of the Parliamentary Secretary to any section in this House.

There was only one such case. I again say that I see no justification for the Parliamentary Secretary refusing to accept a simple phrase which would clarify to the ordinary layman what is not stated in any portion of this Bill.

Will the Parliamentary Secretary make clear to me that when he speaks of the right of appeal by reference that he meant compensation under this Section 24 of the Act of 1903?

Anything arising within the Bill itself.

The question of the amount may go to the Supreme Court?

The question of compensation is a matter arising out of Section 24, and may go to the Supreme Court. It is not that I am taking up a hard-boiled attitude in connection with Senator Comyn's amendment. So far as the purely legal sections of the Bill are concerned, I must act on the expert advice which I have received. That advice is to this effect, that it is positively dangerous to introduce amendments of this character, as the mere fact of introducing them may conceivably raise certain presumptions. These amendments are unnecessary, and, as I have said, they may conceivably raise presumptions which would subsequently be dangerous in the interpretation of the law. I want to keep the sections of the Bill as clear as possible, so that there will be no possibility of danger in their interpretation subsequently.

That makes the matter still more obscure to me. I may be very dense, but it seems to me the Parliamentary Secretary wants to keep out the phrase for fear there would be any suggestion or temptation to go to law just because those particular words would be included. He has not given any satisfactory explanation of his attitude.

As a layman perhaps I will be permitted to explain to Senator Connolly the position, as submitted by the Parliamentary Secretary. If you state specifically in one section that there is an appeal you then raise the presumption that there is no appeal under other sections. By the inclusion of the words set out in the amendment you at once raise the presumption that under other sections there would be no appeal.

I do not see why Senator Keane should describe himself as a layman, because he has argued this matter very skilfully. Will the Parliamentary Secretary tell me, when there is a new principle of law coming into this section, where an appeal could have been given in respect of that new principle under the Act of 1903, as he said, or the Act of 1923, as Senator Brown said? It is perfectly clear there is no appeal under this section, unless you give an appeal, and I would like to cross-examine the experts whom the Parliamentary Secretary prefers to the Seanad of this country.

Amendment put and negatived.

Sections 34 and 35 agreed to.

I ask leave to withdraw amendment 67, and also amendments 68 and 69, which are consequential. I may say that the object I had in view was to try to prevent the necessity for an order of the Judicial Commissioner before the interest in the land bonds was dealt with. I thought it could be dealt with without an order in the same way as interest in lieu of rent was being dealt with, but I am told, and I am sure I am correctly informed, that that might create confusion, and it is better that there should be an order by the Judicial Commissioner. I am assured it will not be a matter of much cost; it will be done ex parte in his chamber, and without affidavit being necessary as to how the income of the estate was being dealt with by the Commission.

Amendments 67, 68 and 69, by leave, withdrawn.
Sections 36 and 37 agreed to.
SECTION 38.
(1) Where there is on any land sold or agreed to be sold under the Land Purchase Acts a well, stream, pond, lake, or other water (hereinafter referred to as a water-source) the Land Commission may, if in their opinion it is necessary or expedient so to do for the benefit of other lands so sold or agreed to be sold, make orders—

I beg to move amendment 70:

Section 38, sub-section (1). After the word "may" in line 37, to insert the words "on the application of any person interested."

This section refers to estates that are being sold now or that have been sold under previous Land Acts on which there are wells, streams, ponds, lakes, and where it is necessary to give other tenants rights. The section is a very useful one, but unless there is some limit put to the action of the Land Commission, we will be giving them a sort of roving commission over all the estates in the country, not alone those under process of purchase, but all estates dealt with under previous Acts. I think it is desirable that the Land Commission should not act unless upon the application of some interested person.

It appears to me that this amendment is unnecessary as, according to the section, there is nothing to prevent any interested person from applying to the Land Commission to grant water-rights. It seems to me there is no need to give them statutory power to do so. I have discussed the same point as that raised by Senator Linehan with other people, and they are quite satisfied the section covers the point adequately.

Cathaoirleach

The point is that the Land Commission might take too much upon themselves—take on jobs that are not necessary.

Some interested person must apply to them.

[Mr. Dowdall took the Chair.]

Amendment put and declared lost.
Sections 38 and 39 put and agreed to.
SECTION 40.
(1) Where the tenant of a holding to which the Land Act, 1923, applies openly enjoys any grazing or turbary on the lands of his landlord and has so enjoyed such grazing or turbary without lawful interruption since a date prior to the passing of the said Act, the Land Commission may, on the application of such tenant and if it thinks proper so to do having regard to all the circumstances of the case, declare the enjoyment of such grazing or turbary (as the case may be) to be a right appurtenant to such holding subject to such (if any) conditions and limitations as the Land Commission shall think fit to impose and shall specify in such declaration.

Acting-Chairman

Senator Brown has asked that amendment 71, in his name, should be slightly altered.

I move amendment 71 in its altered form:—

Sub-section (1). After the word "interruption" in line 42, to insert the words "or objection made."

The object is to insert words which will prevent an owner from losing his chance of contesting the question whether a tenant had practically usurped grazing rights or rights of that kind by simply enjoying them for a certain number of years without interruption. "Lawful interruption" might be a very difficult thing for a landlord to establish since 1923. He ought to be protected by simply making a real objection. As my amendment was originally drafted I simply asked to insert the word "objection," and that I saw might be open to objection, so that I have altered it to read "or objection made." I think the Parliamentary Secretary does not see any objection to that.

If the Parliamentary Secretary does not see any objection I am not surprised, but we do see considerable objection. We think that the section as drafted by the Parliamentary Secretary as the result of discussions in the Dáil, is a very reasonable one, and that this little addendum sought to be put in by Senator Brown is most unreasonable. In regard to rights of way or profits or easements, twenty years or thirty years' user, as the case may be, is sufficient to create a title, but that user must be open and as of right. There is a perfectly legal way to establish a title to an easement or of resisting the acquisition of a title to an easement. These things are very well known. The section is, I am sure, drawn by the lawyers who advise the Parliamentary Secretary, and is very well and carefully drawn. A man gets a title by user if it is nec vi, nec clam, nec precario—that is, without force, without secrecy, and if it is certain. These are the three essentials of acquiring a right to an easement.

Plus twenty years.

[The Cathaoirleach resumed the Chair.]

These were in the contemplation of the draftsman of this Bill and of Section 40. What Senator Brown wishes to have put in in favour of the landlord, to whom indeed the question of easement is of very little consequence, would alter the whole tenor of the section. I say confidently that there never was a title to an easement or servitude defeated by a mere objection— never until now. Who is to make the objection? That is not stated in the amendment. Is it to be made by the owner, or is it to be made by the agent? Would the objection of the police be sufficient, or of anyone else? There never was a title to an easement defeated by an objection of that character, and if the Parliamentary Secretary accepts it it is another argument to show that he is all in favour of the owners-in-fee and all against the tenants in this case.

There never was a title to an easement created by any statute before in nine years. It took 20 years of open user to create a title to an easement, such as grazing or any of these easements which are intended to be dealt with by the section. Here, nine years—that is since the passing of the 1923 Act—of open user will establish a right. That is a most unusual alteration of the law. It would not be fair, where you are taking away the right of the landlord in nine years instead of twenty years, if you did not make an objection by him sufficient without actually bringing an action and having a legal interruption. Non constat—he did not know his time for stopping a trespass of this kind was going to be docked by eleven years, and he took no action. He may have made an actual objection. He may have told the usurper, at any rate, that he objected to him, but may not have taken action. He had eleven years more to take it. This Bill deprives him of the eleven years. Therefore, I think, it is only very modest justice to say that if he has actually made an objection during the nine years his right is not to be defeated.

Senator Brown admits that up to the present an objection has never been held to be sufficient to defeat an easement or to prevent the time from running.

I do not admit it, and it is not the law.

An objection?

No. It is not the law.

Would the Parliamentary Secretary tell the House what was contemplated by the term lawful interruption?

Lawful interruption, I take it, means the bringing of an action and getting a legal decision.

Lawful interruption would also mean stopping a man.

With the stick?

You could stand on your land and stop a man and that would be lawful interruption and the Senator knows very well that that is true.

I imagine there is some special legal interpretation—any interruption of occupancy which was not unlawful.

At any rate, it means a physical interruption.

There is a big gap between the two ideas, that is between the idea in the Bill as drafted and the amendment, and there must have been some clear purpose in the mind of the draftsman and the Parliamentary Secretary and that of Senator Brown. I would like to hear a case made by the Parliamentary Secretary in defence of his original draft so that we could judge upon the merits of this issue.

Or why the Parliamentary Secretary should accept the amendment.

It seems to me the section really explains itself. There was a good long discussion on this matter on an amendment moved by somebody in the Dáil, I forget who it was. I agreed as a matter of fact on the Committee Stage in the Dáil to consider it, and as a result an amendment was introduced in the form of this new section. Now the Land Commission actually in practice, when they are dealing with the question of easements particularly under the Act of 1923, rarely take into consideration the time which a tenant has been enjoying these particular easements and, in practice, as a matter of fact, they have acted in accordance with the spirit of this section. It seems to me that this amendment "without lawful interruption or objection made," is quite reasonable. It is a matter for the Land Commission to interpret. If the owner or the landlord objects it is a matter for the Land Commission to decide that objection. There is a right provided here that the Land Commission shall decide matters of that kind and there is also right of appeal to the Judicial Commissioner. That brings us into line with other sections of the Act and gives the landlords and the tenants the same right as under other sections of the Bill and the land code generally.

This contemplates the open user of turbary belonging to the landlord. Under the provisions of this Bill will not that particular turbary become State property?

Cathaoirleach

Grazing or turbary.

Not if the tenant has been openly using it for this number of years.

It is going to be made an appurtenance of his holding. I do not see where the landlord is much involved in this particular case, because he is losing the property, and the question of lawful interruption could easily be affected by putting up a fence. He would not want Guards to protect him in putting up a fence. He might shut a gate or send a registered letter. I think the Bill as it stands is more in keeping with the spirit of compulsory purchase.

Is a registered letter a lawful interruption?

If it were there would be no need for this amendment.

Is the Senator's question a lawful interruption?

I will leave out the registered letter. He could put up a gate or a fence.

I doubt very much if a letter, registered or otherwise, would be held to be a lawful interruption. If it would there would be no need for this amendment. If not, then it seems to me that is the case for the amendment.

Would it be an objection?

It would.

Amendment put.
The Committee divided. Tá, 15; Níl, 11.

  • John Bagwell.
  • William Barrington.
  • Samuel L. Browne, K.C.
  • Miss Kathleen Browne.
  • Mrs. Costello.
  • James G. Douglas.
  • Michael Fanning.
  • Right Hon. Andrew Jameson.
  • Sir John Keane.
  • Cornelius Kennedy.
  • James MacKean.
  • John MacLoughlin.
  • Joseph O'Connor.
  • Bernard O'Rourke.
  • Michael Staines.

Níl

  • R.A. Butler.
  • Caitlín Bean Uí Chléirigh.
  • Michael Comyn, K.C.
  • Joseph Connolly.
  • J.C. Dowdall.
  • Thomas Farren.
  • P.J. Hooper.
  • Thomas Johnson.
  • Thomas Linehan.
  • M.F. O'Hanlon.
  • Richard Wilson.
Tellers:—Tá: Senators Brown and Douglas. Níl: Senators Connolly and Comyn.
Amendment declared carried.
Amendments 72 and 73, by leave, withdrawn.
Sections 40 to 42 agreed to.
SECTION 43.
Where, in the opinion of the Court, it would be inequitable that the Land Commission should resume a holding or part of a holding on payment to the tenant of compensation fixed on the basis on which resumption prices have heretofore been fixed, the Court, in fixing the compensation in respect of such resumption, may include therein compensation to the tenant for disturbance, and also may have regard not only to the value of the land to be resumed, but also to the damage, if any, which will be sustained by the tenant by reason of the resumption of the lands as affecting his user of other lands or otherwise causing injury to such other lands.

On behalf of Senator Colonel Moore, I move Amendment 74:—

To delete the section.

Senators will note that the Bill as it passed its First and Second Reading in the Dáil did not contain this section. The section, however, mysteriously appeared in the course of the discussions which took place in the Dáil, or rather pending the adjournments which took place between the various meetings of the Dáil. I am against the section for this reason: Anybody reading it will see that it provides for the payment of compensation on the resumption of holdings. Up to the present, when holdings were resumed, the price paid for them was the value of the holdings, but now this section provides that, in addition to the value of a holding, there may be other items in respect of which compensation is to be fixed.

When this Bill was introduced into the Seanad the main burden of my objection to it concentrated round this section, because my opinion was, and my submission now is, that it provides compensation for disturbance and for loss of amenities in addition to the value of the land. That will put an end to what is called migration or the settlement of uneconomic holders on land. The Parliamentary Secretary answered me on the last occasion, and said that I did not understand the difference between a resumed holding and a retained holding. What I say now is that in the case of a resumed holding—that is a holding which has been vested and is being resumed or acquired for the settlement of smaller people—the Land Commission must pay the value of the holding. They must also pay compensation for disturbance, which is an additional item, and may amount to almost the value of the holding. They must also pay compensation for the loss of amenities. That is what occurs in the case of a resumed holding.

The Parliamentary Secretary says: "that only applies to resumed holdings; you do not understand that it does not apply to retained holdings —that is, holdings which are not yet vested." I want to tell the Seanad that I do understand, and that it would be quite impossible for a Minister to give for any land that he requires after this Act is passed anything less than the value of the land and compensation for disturbance as well. Let me take as an example the case of my holding at one side of the fence. I purchased my land, say, under the Act of 1923. If that land is wanted I can get compensation for the value of it, compensation for disturbance, and compensation for amenities. My brother has land on the other side of the fence. He has not purchased his land yet. His land, the Parliamentary Secretary says, can be retained and he is to get nothing but the value of it. I say the thing is impossible. The Parliamentary Secretary will have to vest and will have to pay resumption prices for all land no matter what he may think. Of course that is only just and fair. If any land in the possession of tenants, whether they have purchased their land under the Acts of 1903 or 1923, or under this Act, is required, it is only fair that the same price should be given for land of the same character.

The section, introduced mysteriously into this Bill, puts an end to the economic resumption of land unless indeed the State is to do it at enormous cost. I also say confidently it puts an end to the retention of land. Let the Parliamentary Secretary not say again that I do not understand this Bill, because I do. I say that you must give the same price for one holding that you give for another, if both holdings are of equal value, no matter whether they were purchased in 1896 or in 1936. The section is wrong and should never have been introduced.

I wish to speak against this amendment. I am in favour of the section being retained, as it provides some slight alleviation of the exercise of the powers of resumption by the Land Commission. I am convinced, and I always have been convinced, that these powers of resumption and acquisition are against the best interests of the country. The main object sought to be gained by land legislation in this country has been that the occupier should become the owner, and so settle the land question. These powers of resumption and acquisition perpetuate unsettlement. They are arbitrary and opposed to the principle of land settlement. For that reason I am strongly against the amendment. The section seems to me to embody the elementary principle of justice. Everything which curtails resumption, in my opinion, is for the good of the country. Qualified ownership, as everyone knows, is very detrimental, and lots of people only realise that their ownership is only qualified when they want to raise money. I think free sale is very largely held up at present as a result of the existence of these powers of resumption and acquisition. The lack of security and continuity that they create is bad for the country. Real ownership is probably the greatest promoter of contentment and good citizenship that you can have. A feeling of insecurity and unsettlement produces precisely the reverse result, and I hope the Parliamentary Secretary will urge the Seanad to allow the section to stand.

I wish to support what Senator Bagwell has said. I do so with perfect consistency, because those who have been in the House since its inception will remember how bitterly I fought this principle of compensation. Now that I have been confiscated, and have been a sufferer, I do not want to see my successors treated in the same unjust manner. I want, at least, to see an end of the wrong-doing, and of the insecurity that has accompanied all land legislation.

Now that we have a chance of making a clear start, and that this malign influence is past and swept away, or this alleged malign influence, let us at least realise that land is security the same as any other property. Where you take urban values you give compensation in the public interest. Why should you not give the same compensation where you take land? For the future let us be decent, and let us recognise that enterprise can alone follow on security. Let us encourage stable conditions, which alone can follow from people believing that they own what they occupy. Senator Comyn talked in an extraordinary way about values, and used the term earlier in the debate with reference to landlords' purchase price. In one case it was purely an arbitrary value fixed by the State, at I say an inadequate value. In the second case you have resumption at market value, a totally different thing. I hope the section will be allowed to stand.

This section was debated at some length on the Second Stage, so that I have very little to add now. I do not think I have succeeded in clearing Senator Comyn's mind yet with regard to the retention and resumption proceedings of the Land Commission, notwithstanding his statement that he understands the distinction as well as I do. I let that pass. The section only refers to tenanted land under the Act of 1923, and does not refer to land acquired under any of the previous Acts. In the section it is proposed to give tenants from whom we resume land, in certain cases, compensation for disturbance or injury. I explained already that in many parts of the country there is no market for land to-day, and it is in those parts, where there is no market for land, that we are obliged to resume a fairly substantial acreage for the purpose of making provision for the big migrants we take out of the West. The landlord under the Act of 1923 is to get approximately fifteen years purchase of the rent. In many cases the tenants from whom we resumed land hitherto, on the basis of the market value alone, received only what approximated to five, six or seven years purchase of the rents. I think it is perfectly clear that these tenants are suffering from a feeling of injustice. They feel that they have not been treated as justly and as fairly as they should have been.

The section has been introduced primarily for the purpose of enabling the Land Commission to proceed more rapidly than has been the case in the past few years with the resumption of land. If any impression at all is to be made on the problem of congestion, particularly in the West, it will be necessary for us to resume a fairly large acreage during the coming years, and for that purpose we want our hands strengthened so that we will be able to remove many of the difficulties which we experience at the moment. I maintain that this section will undoubtedly help the Land Commission considerably, and will remove the difficulties we have experienced hitherto in negotiating with tenants as to compensation for resumed holdings. These are the main reasons why this section has been introduced.

I do not understand why Senator Comyn is opposing this section. Remember that the land which is going to be dealt with now is tenanted land, which could not be purchased under the Land Acts up to the establishment of the Free State. On the Second Reading of the Bill I referred to these tenants as the Cinderellas amongst the tenants of Ireland who were unfortunate enough to have die-hard landlords.

Landlords who would not sell.

In many cases the sales were wrecked by competing solicitors, and the Senator knows that perfectly well.

Whatever the cause these tenants could not buy, and had to remain outside the other Land Acts that were passed by the British Parliament. These tenants are in the grip of the Land Commission to-day, because under the Land Act of 1923, their land can be resumed, while the land of tenants under previous Land Acts cannot be resumed, unless no other land is available in the neighbourhood, or unless they get another holding of equal value. Senators can understand that these tenants are in a particularly bad way under the Land Commission.

I say that it is only right, where you take a man out of his tenancy for the benefit of other people, that he should get something in addition to the market value of his holding. I am surprised at Senator Comyn who advocates lip service to democracy permitting these particular democrats, who may be said to have caused the revolution in this country, to be deprived of their holdings without getting compensation for disturbance. These are people who never could buy their holdings under any Land Acts passed by the British. Their land could be resumed and divided by the Land Commission. They are in a particularly bad way and they are entitled to be allowed not only the market value on their land, but compensation for disturbance.

Might I ask the Parliamentary Secretary to tell the House what was the basis on which resumption prices had heretofore been fixed? He spoke of fifteen years' purchase and the present market value. Is that a statutory thing? His answer would help me very much in judging the measure of the amendment.

Resumption prices have heretofore and are still being fixed on the basis of market value and in accordance with the Land Act of 1881. As I have already explained, there is no market value for land in some parts of the country at present and I explained that the landlord or vendor is entitled to get a standard price which approximates to a fifteen years' purchase. In many areas the price paid to the tenant from whom we resume land approximates only to six or seven years' purchase. We have most extraordinary experiences in dealing with the resumption of land in many parts of the country. In Kildare, for instance, there are certain parts where there is really no market for land and where we resume at a price approximating to five or six years' purchase. In other parts of the country we find that the resumption price which we have to pay exceeds considerably the price paid to the landlord simply because land is scarce and the competition for it is very keen. The market value is the basis on which resumption prices are fixed.

May I take it that even if this section passes the market value will be the basis plus compensation for loss of amenities plus compensation for which there is no basis except the judgment of the Court?

The market value will still be the basis.

And the amount of compensation will be entirely at the discretion of the Court without any guidance as to how that should be fixed?

That is a matter for the Court.

Senator Wilson asked why I moved this amendment. I moved it at the request of Senator Moore but the arguments were my own and I have not been convinced by the arguments on the other side. I always like to hear Senator Bagwell speak because he says what he thinks, and he told us plainly that he is glad that interference with private property in land is put an end to and that there will be no more humbug in transplanting tenants.

The Senator has admitted my contention that it will be impossible to resume if you pay for the fee simple and in addition pay compensation for disturbance. It will be impossible to carry out the settlement or re-settlement of land on that basis. I think that every speaker has confirmed what I have said. In regard to Senator Wilson's statement I may say that I am in favour of every person, the big tenant, the small tenant, and the landlord, getting fair play, but I say that it would be quite impossible to settle small tenants on grazing holdings if this section is passed unless the State comes in, fairly and frankly, and gives a subvention.

I am glad to hear the Senator say that.

Amendment put and negatived.

Section 43 ordered to stand part of the Bill.

SECTION 44 (1), (3).

(1) Where, on the application of the owner of a parcel of untenanted land, and after notice to all interested parties, the Land Commission is satisfied:—

(a) that such parcel is held by such owner under a fee farm grant, lease for lives or years renewable for ever, or lease for a term of years of which sixty or more were unexpired at the date of the passing of the Land Act, 1923, whether such grant or lease does or does not comprise other land as well as such parcel, and

(b) that such owner is in bona fide occupation of such parcel and occupies and uses it as an ordinary farmer in accordance with proper methods of husbandry, and

(c) that the rent payable by such owner in respect of such parcel is not less than the rent which in the opinion of the Land Commission would have been the fair rent of such parcel at the date of the passing of the Land Act, 1923, if such parcel had then been held by such owner under a statutory tenancy subject to a third term judicial rent, and

(d) that such owner is willing to repurchase such parcel and that it should be resold to him, and

(e) that such parcel is not required for the relief of congestion,

the Land Commission may by order declare that such parcel shall vest in the Land Commission on the appointed day as if it were tenanted land.

(3) Where a parcel of untenanted land becomes vested in the Land Commission by virtue of an order made under this section the following provisions shall have effect, that is to say:—

(a) the owner of such parcel shall be deemed to have entered on the appointed day into a subsequent purchase agreement for the purchase of such parcel as if it were a holding held by such owner at the rent payable by him in respect of such parcel;

(b) arrears of the rent payable by such owner in respect of such parcel which accrued due on or before the first gale day in the year 1928 and are unpaid on the appointed day shall not be payable by such owner;

(c) arrears of the said rent which accrued due after the first gale day in the year 1928 and before the appointed day and are unpaid on the appointed day, together with an apportioned gale of such rent from the last gale day before the appointed day up to the appointed day shall be compounded by the addition of compounded arrears of rent (calculated as hereinafter mentioned) to the purchase money of such parcel;

(d) the amount of the compounded arrears of rent so to be added to such purchase money shall be seventy-five per cent. of the arrears of rent and apportioned gale of rent so to be compounded.

I move:—

In sub-section (1) to delete in line 59 the words "occupies and uses it" and to substitute therefor the words "uses and cultivates the same."

Section 44 is inserted in lieu of Section 11 of the Land Act of 1927. It is a great improvement in many respects on Section 11 of that Act, but in one respect it limits the class of persons who can come under the Land Purchase Acts in this clause. In the Bill it limits the applications to persons who are actually farmers, but in Section 11 of the Act of 1927 it permitted anybody who held land and who qualified otherwise to obtain the benefits of land purchase. I hold that it is the land itself, and not the condition of the occupier, that ought to be taken into account, and that no matter whether he may have other business besides farming, he should not be excluded from the benefits of land purchase. If my amendment is adopted it will restore the paragraph as it appeared in Section 11 of the 1927 Act. I think that that clause worked very well. I do not know what the idea of the Parliamentary Secretary was in making the change. The other change which he made by this section in repealing Section 11 and substituting this Section 44 has been of benefit, except in so far as it affects the portion which I ask to have restored as it originally stood in the 1927 Act.

It appears to me that the amendment suggested by the Senator would not improve the section in any way. In fact, in my opinion, the amendment, if accepted, would really have the effect of weakening the section. The Senator suggests that the words "occupies and uses it" should be deleted, and he would substitute the words "cultivates the same." It seems to me that the word "occupies" is really the vital word in that particular clause, because if the tenant does not occupy his holding, he is in the position of a landlord, and he should not be entitled to get the benefit of the section at all. It appears to me that the word "uses" has a wider meaning than the word "cultivates."

Do not the words in the section "that such owner is in bona fide occupation," mean that he has to occupy the land?

Yes. It seems to me that the wording of the section is stronger than if the amendment were accepted and more effective from the Land Commission point of view. I suggest that the word "occupies" is absolutely vital in this section, because if a person does not occupy the land he is in the position of a landlord. I suggest that the Senator should withdraw this amendment.

I do not think the Parliamentary Secretary has justified the change of phrasing from the 1927 Act to this less precise phrasing in Section 44. There is some reason for removing the word "cultivate," but I think the Parliamentary Secretary ought to tell us the reason. The question of occupation surely is secured by the amendment, which still leaves the wording "that such owner is in bona fide occupation.” That will be still left in if the amendment is carried. Then the section would read “occupies and uses it as an ordinary farm in accordance with proper methods of husbandry.” Senator Linehan pointed out that the words used in the Act of 1927 were “uses and cultivates the same.” One is tempted to raise the query why a word like “cultivate” should be deleted. Until the Parliamentary Secretary is able to justify to my satisfaction the alteration of the word “cultivates” to the weaker word “uses,” the amendment should, I think, from the point of view of those who like to see land cultivated to the fullest extent, be supported.

I think the change is intended to deal with cases of men like publicans and doctors.

A Senator

And Senators.

Not Senators, but say tradesmen in towns who have an outside holding of land which they use as ordinary farmers. They can be said to be in bona fide occupation of it, but they are not residing there. The object of the change is to strengthen the Land Commission in their contention that such persons ought not to be the subjects of State aid in the purchase of their holdings. A doctor, a professor or a lawyer, or anybody living in a city having a farm outside, is in bona fide occupation of the place, and uses and cultivates it as an ordinary farmer. That was the original Act. The Land Commission, in certain cases, up to the present have decided that these men are not ordinary farmers, because their real calling would be the profession or trade they follow. They are not really people to whom the State should give its aid to buy their holdings and, therefore, the change is to strengthen the Land Commission in that contention. That is my view of it.

To a very large extent what Senator Wilson has stated is certainly true. That is the Land Commission point of view. The change has been really introduced because it is felt that the new form of words gives the Land Commission much greater power to deal with the class of tenants who are entitled to be benefited under this section than the original form of words in the Act of 1927. It is purely a matter of drafting. It seems to me that it is necessary to use the word "occupies" in this particular clause, notwithstanding the fact that the word "occupation" is used in the previous line, in order to make the sense of the section absolutely clear, and to prevent possible misinterpretation subsequently when the Land Commission has to deal with objections under this particular section.

Amendment put and negatived.

I move amendment 76:

Section 44, sub-section (1). To delete paragraph (c).

This paragraph relates to one of the conditions which should exist before an applicant can succeed in obtaining the benefit of land purchase—that is as regards the rent payable by him. The paragraph says, "That the rent payable by the owner in respect of such parcel is not less than the rent which, in the opinion of the Land Commission, would have been the fair rent of such parcel at the date of the passing of the Land Act of 1923, if such parcel had then been held by such owner under a statutory tenancy subject to a third term judicial rent." My amendment would leave it optional to the applicant no matter what his rent was, whether it was beneath the standard third term rent or not, to apply to the Land Commission to be allowed to purchase. Even if he got no reduction, the benefit of having a number of years for the payment of an annuity would be much less than in the case of a fee farm grant or a lease for ever. Many cases have occurred where applicants were refused the benefit of land purchase in consequence of their rents being slightly beneath the standard third term rent. I think it would be desirable in order to facilitate these tenants and to have land purchase all round, that the question of the amount of the rent they were paying ought not to enter into consideration at all.

If they have their low rents it is natural to suppose that they will not apply at all, but if they have a substantial rent and are liable to pay it over a long period, I think they should be allowed to apply to get the benefit of land purchase, and at least to get their term of years of payment reduced, as it would be under the Land Purchase Acts. I, therefore, move to delete the paragraph.

Would this be just? If a man who is paying a very small rent takes advantage of the Land Commission terms the landlord will be getting even less than his small rent out of the interest on the bonds, on the basis of land purchase. I think the House should not countenance a transaction of that kind. He is already getting below the third judicial rent.

The annuity might be increased.

Is there machinery for that?

I am not sure.

I do not think it is just at all. You are further reducing a rent which is already below the judicial rent.

In cases where the rent is very low there may be no reduction at all. The annuity may be as high as the rent but the number of years repayment would be considerably lessened.

Surely it would be unfair where, say, the rent was ordinarily five pounds that the landlord should receive less than five pounds when the tenant goes through the land purchase procedure?

These lands come under the category of non-judicial holdings. The tenants are recognised by the Bill as tenants. They are not judicial tenants, and there is machinery for fixing the rent of non-judicial holdings which will apply to this particular class of tenant. If a man has a very low rent I think he would be very foolish to go before the Judicial Commissioner to fix his rent, because he would raise it. The Parliamentary Secretary is helping the tenant in a way. The case will come before the Judicial Commissioner eventually, and he may say the rent is too low and raise it. That is an argument in favour of the retention of the clause.

The point is if tenants whose rents were less than a fair rent were entitled to the benefits of this section they would find themselves purchasing on a fair rent basis fixed by the Land Commission, and they would be obliged in all probability to pay a much higher annuity than the rent. That is the actual position. The amendment, therefore, would do them more harm than good. There are undoubtedly many cases where tenants are paying very low fee farm rents, rents very much lower than a fair rent would be. I think it would be very unfair to extend the benefits of this particular section to that class of tenant; it would be unfair to the tenant because the Land Commission would first of all have to fix a fair rent on the holdings and the fair rent undoubtedly would be very much higher than the fee farm rent. These tenants have a form of redress at the moment by applying to the Land Commission under Section 38 of the Land Act of 1923 to have their fee farm rents redeemed. They would have to make a case before the Judicial Commissioner and if he was satisfied he would fix an annuity on the holdings in place of the fee farm rents they are paying at the moment.

Would it not be better, now that you are dealing with long terms in this comprehensive section, to include all fee farm grants? The class of person for whom Senator Linehan has spoken are people who got leases in the early part of the eighteenth century. They got long leases at rents which were good rents in those days, but which, by reason of the change in the value of money and other things, are below the judicial rent of the present time. There are a number of them just on the line of the third term judicial rent. There are a great many of them just below the third term judicial rent, and some of them are above the judicial rent. When you are making the section so comprehensive—if I may say so, it is a well-thought-out section—why do you not include all of them and make provision so that justice will be done, and so that the person in possession of a long term who is paying less than a judicial rent will not, when he purchases, have to pay more than fifteen years' purchase of the amount he is actually paying?

That is the point.

Let it be twenty years, then. It is not beyond the powers of the Land Commission to determine what is just in such a case. The thing to be desired is that they should all be vested and become tenant purchasers.

The machinery is there for dealing with their cases if they choose to have them dealt with. They can apply under Section 38 of the Act of 1923 to have their head rents redeemed and annuities substituted for fee farm rents.

Amendment put and declared lost.

I move amendment 77:

Section 44, sub-section (3). To delete the figures "1928" in line 33 and to substitute therefor the figures "1929."

This section refers to the amount of arrears that will be payable. Paragraph (b) states that arrears of rent payable by the owner which accrued due on or before the first gale day in the year 1928 and are unpaid on the appointed day, shall not be payable by such owner. That would leave the tenant liable to three years' arrears My amendment is to reduce that by a year by inserting the figures "1929" instead of "1928." I think it is quite sufficient to add two years' arrears to the purchase money.

Three years was the period given in the Act of 1923, and in all the previous Land Acts. The same period is inserted in this Bill to bring it into conformity with the other Acts. I think a period of three years is quite reasonable and I do not propose to alter the section.

Amendment put and declared lost.
Amendment 78 not moved.
Section 44 agreed to.

I move amendment 79:

New section. Before section 45 to insert a new section as follows:—

"45.—(1) The amount to be advanced on a re-sale to any one tenant under this Act shall not exceed £3,000.

(2) Where a tenant to whom an advance is made under this Act is a proprietor of lands for the purchase of which advances have been made under any of the Land Purchase Acts unless redeemed the total amount resulting from the amount obtained by capitalising at the rate of 4¾ per cent. the original annuities payable on such advances shall be taken into account in computing the said limitation of £3,000."

This section deals with the limit of £3,000 as regards advances. The principle of the section has been already debated and I shall not waste the time of the House by debating it further. I merely move the amendment.

I cannot accept the amendment.

Amendment put and declared lost.
Sections 45 and 46 ordered to stand part of the Bill.
Amendments 81 and 82 ruled out.

I ask leave to withdraw amendments 83 and 84.

Amendments withdrawn, by leave of the House.

Sections 47 to 54 inclusive ordered to stand part of the Bill.

Title agreed to.
The Seanad went out of Committee.
Bill reported with amendments.
Report stage fixed for Thursday, 23rd April.
The Seanad adjourned at 7.30 p.m. until Thursday, 23rd April, at 3 o'clock.