In Committee on Finance. - Land Bill, 1938—Committee.

Question proposed: "That Section 1 stand part of the Bill."

Sub-section (2) of this section states: "This Act shall be construed as one with the Land Purchase Acts and may be cited with those Acts." I want to draw the attention of the Minister to cases under the 1881 Act which do not seem to be covered by previous Acts or to be covered by this Bill. Under the Act of 1881 the Land Commission advanced two-thirds of the purchase money to the purchasers, the tenants, and the landlord executed a mortgage in perpetuity for the other third. A case has come before the courts from my constituency, namely the case of the Wilson estate, situated in the south of Westmeath. The annuities were very high under the 1881 Act and, even with the reduction, they are comparatively high in relation to other annuities. The tenants found the payment of the interest on the mortgage very severe. Eight or nine years ago they ceased to pay the interest on the mortgage. One of them was brought into the High Court recently, and sale of the farm was ordered. It is the intention, I understand, to bring other people into the Circuit Court. Of course, the sale proved abortive. I have been already with the Land Commission in reference to this particular case. I beg to draw your attention to the fact that I mentioned to the Ceann Comhairle before you, Sir, came in, that I would raise this point on this section.

I do not think the Deputy's remarks are in order on this section. It is more a matter for a Second Reading speech. I do not see how it could be made relevant to this section. The Deputy must remember that we are dealing with the Committee Stage of the Bill.

I beg to point out that the only way I could relate it to the Bill is to mention it in connection with this reference to previous Land Purchase Acts. I ask your indulgence in allowing me to bring this matter up now because there are a number of evictions pending. It is not one farmer who is affected but dozens of farmers. Without exaggeration I could say that there must be 40 or 50 tenants on that estate and that is only one of the estates in the county. I understand that there are odd cases of a similar nature in every other county. It is a matter, I suggest, for the Minister to deal with on the Report Stage and I would ask him to deal with it then. I have done my duty by drawing attention to the facts now.

On that point, I believe there is provision in Section 39 of the Act of 1923 to deal with the case which Deputy Kennedy has mentioned here. I think that is the reason why it is felt there is no necessity to provide for it here, that there is provision made for it in the 1923 Act.

I beg to point out to the Minister that the landlord applied to come under the 1923 Act——

The sub-section which the Deputy has quoted merely states that this Act may be construed as one with the Land Purchase Acts. It does not give any power to deal with the matter which the Deputy has raised. It simply means that the Act can be dealt with correlatively with the other Acts.

Could we get an undertaking that, if Section 39 of the 1923 Act does not deal with these particular cases, some amendment will be introduced on the Report Stage which will enable them to be dealt with?

I should like to support Deputy Kennedy's appeal. A grave injustice has been done to these people by having to pay the interest on this mortgage. It seems that they cannot get out under the 1923 Act. If some provision could be inserted in this Bill to help them, it would be very desirable. It seems that under the 1881 Act only two-thirds of the purchase money was advanced and the tenants had to get the other third with the result that they are still paying interest on the mortgage.

Mr. Boland

I am advised that these cases can be dealt with under the section I have mentioned. If that is not so, I shall examine the matter but I am not committing myself to bring in an amendment. I shall have to look into the matter to see what can be done.

Mr. Lynch

If the Minister would accept my amendment to Section 46 it would enable him to deal with those cases.

Mr. Boland

It would and with many more cases, too.

One matter at a time. The present discussion is out of order.

I should like to make one observation which I think is quite in order on this section. Sub-section (2) provides that this Act shall be construed as one with the Land Purchase Acts and may be cited with those Acts. I do not think any power on earth could construe any Land Act by itself, much less with the other Land Purchase Acts. The position is becoming so hopeless, from the point of view of the ordinary practitioner, with all the various Land Acts and the various Amending Land Acts, that I think the only remedy is to wipe them all out and give to the Land Commission power to do what they please, anywhere they please, when they please and how they please. Then we would know where we were; but to put a provision in the Bill that this Land Purchase Act is to be construed with anything is quite a hopeless proposition. It would be utterly impossible to relate it to any of the Land Purchase Acts. I suggest that the Minister should codify all the laws relating to land purchase or put one guillotine section through to provide that the Land Commission may do what they wish.

I think full publicity should be given to the Minister's statement that these cases can be dealt with under Section 39 of the Land Act of 1923, so that the lawyers outside who sought counsel's opinion will know that they are wrong and that the opinion which counsel gave them is wrong.

I think it is much more likely that the Minister is wrong than that counsel is wrong.

I am afraid the discussion is quite irrelevant at this stage. The matter might be raised on the amendment to Section 46, and the Deputy might wait until we come to that.

Will the Minister codify the law of land purchase?

Mr. Boland

That is another day's work.

Question put and agreed to.
Sections 2 to 4, inclusive, ordered to stand part of the Bill.
SECTION 5.
The Increase of Rent and Mortgage Interest (Restrictions) Acts, 1923 to 1930, shall not apply and shall be deemed never to have applied to a dwelling house of which the Land Commission is the landlord.

I move amendment No. 1:—

After the word "landlord" in line 35, to add the words "provided that alternative dwelling accommodation is available in the neighbourhood".

The object of this amendment is to secure that the Land Commission shall be obliged to provide alternative accommodation when they are dispossessing a tenant of a dwelling house. In many of the cases in which the Land Commission acquired land up to the present the dwelling house on the land was a very substantial building and was the residence of the landlord, generally speaking. In this Bill, however, compulsory powers are being taken to take tenanted land and it follows that much smaller houses will be involved. I think that it would not be fair, when the Land Commission compulsorily acquire tenanted land of that kind, that they should have power to throw a man out of his dwelling and leave him without anywhere to go. It seems logical, of course, to say that when the Land Commission exercise this power of acquiring the land, they should have the right to get possession of the house also because they cannot allot the land without getting possession of the house. That is all right but a man may do his utmost and yet fail to get alternative accommodation. It may be that at the time he was thinking of getting a house as alternative accommodation, something occurs to that house and he cannot get it. Then the Land Commission may proceed with the allotment of the land and forcibly put him out. I think that this section should be so amended that the Land Commission will have to show to the court that alternative accommodation is available for the tenant who is being dispossed of his holding and his dwelling.

I should like to raise a point of order on this section. This is an Act to amend and extend the Land Purchase Acts in divers respects. Now, the Increase of Rent and Mortgage Interest (Restrictions) Acts, 1923 to 1930, have nothing whatever to do with land purchase.

I would like to know whether, in view of the fact that the Long Title gives no power to do this, it is in order to have a section like this included in the Bill. Why should an Act that was passed to deal with another matter, with rent restriction, be roped into a Bill of this kind. The Rent Restrictions Act was passed into law to give protection to persons in occupation of houses: to prevent their being evicted and thrown out by process of ordinary law at a time when there was a shortage of house accommodation. I submit, on a point of order, that this particular clause is out of order in a measure which purports "to amend and extend the Land Purchase Acts in divers respects". Such an extension as this would mean that there is scarcely an Act passed either by this Parliament, or that was on the Statute Book at the time that we took over in 1922, that could not be included, by amendment, to suit this purpose. In my submission, this particular clause is clearly out of order in this Bill.

In view of the fact that this section was in the Bill when it got a Second Reading by the House, it must now be accepted as part of the Bill.

May I point out that, on Second Reading, members are only entitled to deal with the general principles in a Bill. On Second Reading it would be out of order for a Deputy to urge the deletion of a particular clause. That work is reserved for Committee Stage.

May I quote a precedent in support of what Deputy Cosgrave has said. Deputy Esmonde had an amendment down for the Committee Stage of the Tourist Traffic Bill, with a view to providing that the Conditions of Employment Act should not apply to hotel premises and businesses. That amendment was ruled out of order on the ground that he could not do what this Bill endeavours to do, namely, to do something that was not within the scope of the Long Title.

The cases are not quite parallel, because this section was in the Bill as originally introduced and when it got a Second Reading. Deputy Esmonde's amendment was not in the Tourist Traffic Bill originally but was introduced on a subsequent stage of it.

Does it follow from that, no matter how the Preamble of a Bill is drawn, that if some extraneous or irrelevant matter is introduced into it, we must take whatever is in it notwithstanding the irrelevancy or the extraneous character of the matter concerned?

I had some responsibility for the amendment moved to the Tourist Traffic Bill, and I did not think that in attempting to apply the Conditions of Employment Act to that measure I was going beyond the scope of it. But take this Bill: An Act "to amend and extend the Land Purchase Act in divers repects". There is not a word about the Increase of Rent and Mortgage Interest (Restrictions) Acts in the Title of this Bill, and yet Section 5 purports to deal with these Acts.

Mr. Boland

I do not know what the ruling of the Chair will be. I simply intervene for the purpose of pointing out that houses are part of farms. Deputy Cosgrave is right in saying that this Bill has nothing to do with rents. It ought not to have, but if the Rent Restrictions Acts are to be used to prevent the Land Commission from doing its work, then I think power ought to be taken to deal with that. Surely these Rent Restrictions Acts were never intended to be used for the purpose of preventing division of land taking place, but people might attempt that, and the purpose of this section is to see that they cannot do it.

I take it that the object of the section is to see that the provisions of the Rent Restrictions Acts will not apply in cases where the fiat of the Land Commission has been obtained. I submit to the Minister that the method he has adopted of doing that is irregular and irrelevant. I believe it is absolutely appalling.

My ruling is, that as this section was in the Bill when it got a Second Reading by the House, it now comes before the Committee and must be accepted by the Committee.

But on the Second Reading of a Bill you only deal with general principles. You do not deal with what is in the Bill at all.

The principle, if there be any principle, in this measure is to amend the Land Acts, and not to amend the Rent Restrictions Acts.

Mr. Boland

The Land Acts deal with houses which are part of farm holdings.

It has been held now for 16 long and weary years that the Rent Restrictions Act had its full force and effect in respect of dwellings and not of holdings. Now, instead of having before us a measure to deal with those dwellings, we are told that we are to do so under a Land Bill. Nobody but the Minister would have the courage to attempt such a thing.

Mr. Boland

I do not know how the Deputy got the brainwave to raise this point at all.

The main object of this Bill is to facilitate the taking over of holdings.

Where is that?

The object is to deal with the loopholes which were found in former Acts by certain lawyers.

Hear, hear!

We intend to block every loophole. Deputy McMenamin and some of the lawyers perhaps think that under one of these loopholes they can still hold up the taking over of land in this country. Section 5 is one of the ways to prevent them doing that.

The matter under discussion is Deputy McMenamin's amendment to Section 5. My ruling is that the section is quite in order. If it is not, then the matter should have been raised on the Second Reading of the Bill.

Mr. Boland

I am not accepting the Deputy's amendment. When estates are taken over by the Land Commission you may have houses on them occupied by people who are not to be allotted land. You may have cases of this kind: that when people learn that their land is about to be taken over, if they have houses on the land they may put people into them so as to prevent the Land Commission going ahead with its work. Such cases have actually happened. What we are providing for here is that people who take up that attitude will not be able to shelter behind Acts which were never intended for such a purpose.

Everyone recognises that in order to carry out a proper scheme of land division it is necessary to get possession of houses on estates. We want to make sure that there is no legal barrier in the way to our doing that. That is what we are providing for in this section, and, therefore, I cannot accept the amendment.

The Minister must know quite well that in cases such as he mentioned, if he does come up against a refractory occupier of a house all he has to do is to take him to court and show that there is alternative accommodation available. Is not that a simple thing to do?

Mr. Boland

It might not be.

But under this the man must be put out on the roadside and there is no place for him at all. The Land Commission inspectors are in every area and they know the amount of housing accommodation available. In spite of that the Minister wants to take power to put a man out on the roadside even if there is no alternative accommodation available. Is that what the Minister wants to do?

Mr. Boland

We want to have no legal barriers in the way if we find it necessary to get possession of houses on estates, and if it is necessary that we should do so. We do not want to have people taking shelter behind an Act which was never intended to meet such cases.

As a layman I have the gravest doubt that the Rent Restrictions Acts would ever be pleaded in a case such as the Minister has mentioned—that is, that in order to prevent the Land Commission functioning, or getting possession of a house, a person who got temporary accommodation in that house would, for the purpose of thwarting the Land Commission, be able to establish his case in court by pleading the Rent Restrictions Act. What Deputy McMenamin desires to get, what he is entitled to get, is what the Minister himself would seek to get if he were placed in the position of one of those persons, in occupation of a holding for perhaps 50 or 100 years, and that is that before he is evicted there should be alternative accommodation for him in the neighbourhood. That is not by any means unreasonable. We are not standing for persons endeavouring to secure a temporary grip, as it were, upon a dwelling. We are not interested in that. We feel, so far as the Rent Restrictions Act is concerned, taking simply the commonsense point of view, that in any court in the country the district justice or the circuit judge would see at once it was an attempt to evade the law. It is altogether a different proposition where the Land Commission comes along, and, in the case of a person occupying tenanted land, having paid a land purchase annuity for a certain number of years, tells him that on a given date he must get out whether there is alternative accommodation or not.

Mr. Boland

That would not happen.

There is absolutely no difference between that and the action of the landlords in the past. So far as the eviction of that man and his family is concerned, there is no difference. There are parts of the country where it is not easy to get that alternative accommodation. If it is not there the man might as well be exiled, because he must leave the neighbourhood and perhaps make for one of the towns. What we are putting up in this amendment is a fair proposition. If the Minister thinks that there is a loophole in it in respect of cases such as he has mentioned, let him undertake to consider the matter and bring in an amendment on the Report Stage. We are endeavouring to ensure that we will not legalise an injustice by allowing this clause to go through as it is at the present moment.

The Minister is under a complete misapprehension if he thinks the Increase of Rents Acts were never intended to apply to the cottages or small tenancies which he apparently has in mind when he wishes to have this section inserted. The Increase of Rents Acts have applied for the last 20 years or more to those particular tenancies. They have applied since 1915. They have applied in this country, under an Act of our own Parliament, since 1923, and several amending Acts have been passed to that particular Act by our own Parliament, specifically allowing holdings of the type that will be caught by this section to be given the benefit of the provisions of the Increase of Rents Acts. It is a bit late in the day for the Minister to get up here and, in tones of indignation, say it was never intended that the Acts should apply to tenancies of this kind. It has, in my opinion—and I think it is incontrovertible—always been intended. In fact the Acts have been applied in a widespread fashion to small cottages and gate-lodges throughout the country. No later than last March I myself appeared in Deputy Corry's constituency in County Cork for a tenant who was seeking the benefit of the Increase of Rents Act— this very Act—against the landlord in the case of a gate lodge. That tenant got the benefit of the Act, in regard to a gate lodge on the estate, against the landlord, and got the rent fixed in reference to the rent of 1914. In many respects that was a hardship on the landlord. I say that quite candidly although I was appearing for the tenant. Why should the Land Commission, who are nothing more than landlords, in reference to tenancies in gate lodges and cottages on an estate, have power to do away with what, in fact, is a vested right in the tenancies, given by Acts not merely of the British Parliament but of our own Parliament successively since 1923?

It is idle to say it was not intended that the Act should apply. Deliberately and specifically, tenancies of gate lodges and tenancies of small cottages in the country were allowed to be brought within and to remain within the ambit of the Increase of Rents Acts. Why should the Land Commission have a privilege, merely because they want to make the way clear for themselves, merely because they want to be the modern juggernaut amongst Government Departments, sweeping everything out of their way? On sub-section (2) of Section 1 of the Act we had a reference to the fact that what the Land Commission really wanted was a one-clause Act enabling them to do anything they like, where they like, whenever they like, at whatever price they like, and at no price if necessary. They did that under the guise of effecting a social service. They did it, in fact, by doing the greatest injustice throughout the length and breadth of the country, and the sooner they realise that the better.

Mr. Boland

I should like to have one instance of that.

This very section here is an instance of injustice. Take the case of a person in a gate lodge on an estate taken over by the Land Commission. He has been in that gate lodge for years, having the benefits of the Increase of Rents Act. Out he goes under this section. If that is not an injustice, I do not know what is. The Minister does not require me to produce instances of the injustices that have been perpetrated by the operation of the Land Purchase Act. They are too numerous to mention.

Mr. Boland

I should like even one specific case quoted by the Deputy——

The Minister will not draw me on that.

Mr. Boland

——or by anybody else in the House. It is an open challenge. In the case of people of the type Deputy Cosgrave has mentioned, not alone would they be left in their houses but they would be entitled to be given consideration for their land in addition to the houses.

The Minister is rather butting in on the few observations I wanted to make. He has again displayed his ignorance of this particular Act. The Increase of Rents Acts apply to weekly tenancies. I suppose it will be levelled against me that I do not represent an agricultural constituency. I do not, but I do happen to know something about the country, and I do know that there are weekly tenancies of cottages—in fact, it is within my own professional experience—where those Rents Acts apply, and where the tenants have got the benefit of them. What this section is going to achieve is that the juggernaut of the Minister's Department will crush them under its chariot wheels. That is what the Minister wants. This section and the following section are on a par. I had intended to make a few observations on the next section. The Minister, under the following section, wants to have certain privileges which previously attached to the Crown. What he is doing in this case is trying to get away from, I think, a court decision of our own that State Departments were not entitled to the privileges of the Crown in reference to this particular Act. Whether there was an actual decision on that I do not know, but it did arise several times in my own professional experience. The Minister's Department, in this and the following section, is trying to get back to the position where Government Departments were Departments of the Crown, and, as the Crown, were not bound by an Act of Parliament unless specifically mentioned in it. The Crown would not have been bound by the Increase of Rents Acts, but the Minister is afraid to go into court and say: "The Land Commission now being the successors of a Department of the Crown has the same privileges as a Department of the Crown," and, therefore, he wants to shove in an innocent-looking section for the benefit of his Department; in other words, to give them the same privileges which the Land Commission had when it was a Crown Department. They want to get the benefit of being the successors of the Crown. That is what this and the following section purport to do. The Crown could have put out their tenants, and the Minister now wants to deal in the same way with weekly tenancies of 1/- or 2/-, because he is in precisely the same position as the Crown in the old days.

Is the Minister going to persist in standing on the strict form of the section?

Mr. Boland

I will insist on that. The things which the Deputies have mentioned will not arise at all, so they need not excite themselves about them.

The Minister, I suppose, is a man of law?

Mr. Boland

Do not rub it in.

The Minister might take the advice of persons experienced in law. What we are asking is that in this case the same responsibility should be put upon a layman functioning in the Land Commission as there is on a court presided over by a person qualified to administer the law. Why should we seek to give greater powers to lay people than we give to our judges? We restrict our judges by reason of the Rent and Mortgage Interest Restriction Acts. They are lawyers experienced in the administration of the law, and they have some conception of the responsibility that attaches to a person in that position. It is now proposed to take certain powers and hand them over to be exercised by laymen. The Minister ought to have a little more sense than to ask for such powers.

There is one other point to which I should draw the attention of the House, and that is, that even in cases where the Increase of Rent Acts apply, the courts have jurisdiction and discretion to give a decree for possession and put out the tenant where the circumstances require it. The usual shorthand expression for the circumstances in which the courts exercise that discretion is, where there is greater hardship in refusing to give possession than in allowing the tenant to remain. If the Land Commission have a case, and it can be proved that the staying in possession of some unfortunate person in a gate lodge at 1/- or 1/6 a week is going to prevent the division of an estate, all they have to do is to get the local State solicitor to go into the district court and say to the district justice that this man is holding up the division of the estate by staying in the gate lodge.

If there is any truth, or any reality, or any justice in that case, he can get his order from the district justice without the necessity of having an Act of Parliament. I submit that there is no reason why the Land Commission should be in any better position in reference to the Increase of Rent Acts than any landlord in my constituency in the City of Dublin. There are many landlords who, before the War, put money into house property. They are suffering very severe hardship as a result of the continuation of the Increase of Rent Acts in the case of small houses in my constituency, and there has been nothing done to alleviate that hardship. All their overhead expenses have been increased in every way, and they are getting no corresponding relief by way of being enabled to increase the rent. Why should the Land Commission be in a more privileged position than the ordinary person suffering from the effects of the Increase of Rent Acts, which were designed to meet a situation brought about by the War? There is no reason why, if the Land Commission have a case, they should not make that case in the place where every citizen has to make his case, namely, in our own courts.

The Opposition are in the happy position that each one of them can speak in a different voice. Deputy Cosgrave based his case on the ground that this did not apply to land at all.

He did not.

We will know that when the Official Report comes out. Deputy Costello takes a different line. He says it is an injustice. I admit that it is an injustice, but to whom? It is an injustice to the lawyers. They are the only people who are going to suffer by this section.

That is so absurd that nobody need bother about it.

We found, during the past few years at any rate, that the division of thousands of acres of land has been held up by the loopholes picked by lawyers in former Acts and cases brought into court. It is going to be made watertight now. You will have the devil of a job to find another loophole.

It will not be so watertight. You may be quite sure of that.

Amendment put.
The Committee divided: Tá, 28; Níl, 57.

  • Belton, Patrick.
  • Bennett, George C.
  • Brasier, Brooke.
  • Browne, Patrick.
  • Cogan, Patrick.
  • Cosgrave, William T.
  • Costello, John A.
  • Curran, Richard.
  • Dillon, James M.
  • Doyle, Peadar S.
  • Esmonde, John L.
  • Fagan, Charles.
  • Fitzgerald-Kenney, James.
  • Giles, Patrick.
  • Gorey, Denis J.
  • Hughes, James.
  • Keating, John.
  • Lynch, Finian.
  • McGovern, Patrick.
  • McMenamin, Daniel.
  • Mongan, Joseph W.
  • Mulcahy, Richard.
  • Nally, Martin.
  • O'Higgins, Thomas F.
  • O'Neill, Eamonn.
  • O'Sullivan, John M.
  • Rogers, Patrick J.
  • Ryan, Jeremiah.

Níl

  • Aiken, Frank.
  • Allen, Denis.
  • Bartley, Gerald.
  • Beegan, Patrick.
  • Boland, Gerald.
  • Bourke, Dan.
  • Brady, Brian.
  • Brady, Seán.
  • Breathnach, Cormac.
  • Breen, Daniel.
  • Breslin, Cormac.
  • Briscoe, Robert.
  • Carty, Frank.
  • Childers, Erskine H.
  • Cooney, Eamonn.
  • Corry, Martin J.
  • Crowley, Tadhg.
  • Derrig, Thomas.
  • Everett, James.
  • Flynn, Stephen.
  • Fogarty, Andrew.
  • Fogarty, Patrick J.
  • Friel, John.
  • Gorry, Patrick J.
  • Harris, Thomas.
  • Hogan, Daniel.
  • Humphreys, Francis.
  • Kelly, James P.
  • Kennedy, Michael J.
  • Keyes, Michael.
  • Killilea, Mark.
  • Kissane, Eamon.
  • Lemass, Seán F.
  • Little, Patrick J.
  • Loughman, Francis.
  • McCann, John.
  • McDevitt, Henry A.
  • Meaney, Cornelius.
  • Moore, Séamus.
  • Morrissey, Michael.
  • Moylan, Seán.
  • Munnelly, John.
  • O Briain, Donnchadh.
  • O'Grady, Seán.
  • O'Loghlen, Peter J.
  • Pattison, James P.
  • Rice, Brigid M.
  • Ruttledge, Patrick J.
  • Ryan, James.
  • Ryan, Martin.
  • Ryan, Robert.
  • Sheridan, Michael.
  • Smith, Patrick.
  • Traynor, Oscar.
  • Victory, James.
  • Walsh, Richard.
  • Ward, Conn.
Tellers:—Tá: Deputies Doyle and Bennett; Níl: Deputies Little and Smith.
Amendment declared lost.
Question proposed: "That Section 5 stand part of the Bill."

I should like to call the Minister's attention to another serious aspect of this matter. There is a provision bringing our old friend, the retrospective effect of legislation into full force in this section. Not content with the Increase of Rent Act in future not applying to holdings to which the Minister does not want it to apply, there is a provision that it is deemed never to have applied. In other words, if a tenant of a gate lodge, to which that Act applied, had a standard rent fixed by the court on this particular gate lodge, he having in his submission to the court been charged too much rent by the landlord, then had the rent fixed in accordance with the provisions of the Act. At present if this section is carried, everything that the court has done will be undone, and he will find himself in the position of reverting to the old rent he had to pay, and that was extracted by the landlord contrary to the provisions of the Increase of Rent Act. That does not bother the Minister. The Minister wants me to give particulars of injustice. Here is one. Leave out the ones that have been done. We are going to provide that the Act shall be deemed never to have applied to property which the Land Commission have bought. In other words, we are going to take away rights which tenants, perhaps, have enjoyed for the last 20 years under a court order, and in the teeth, perhaps, of written agreements with landlords. We are going to make this position, that the Increase of Rent Act is deemed never to have applied, the court orders are accordingly void, and landlords can recover at least 12 years of the full rents that they were able to extract. The Minister, I take it, does not want me to give any more examples of injustice if he persists in this.

Mr. Boland

I think the Deputy ought not try to get away with the suggestion that the Land Commission can take the place of landlords. What the Land Commission is trying to do is to settle people on the land, and it is only where they require houses of this kind for purposes of land division that they will move. If they find the occupant of a gate lodge is, as in the case mentioned by Deputy Cosgrave, a person whose people have been on the land, not alone will he get the house he is living in or a better one, but the land in addition. Where we find people there who are simply holding on to houses and obstructing the Land Commission, especially people who would not be eligible for land at all, who may be engaged in business in towns, and who are not agriculturists, if we allowed them to rely on the Increase of Rent (Restrictions) Act they might prevent us proceeding with the very useful social work of land division. It is to prevent that that we are making this provision.

I am really surprised at the indignation of the Minister.

Mr. Boland

There is no indignation at all. Do not have any idea like that.

If the Minister does not want me to think he is indignant, then I admire the irrelevancy of his observations. His remarks have not in one single respect, in one single word, anything to do with the point I made. The Minister started by telling me, in tones which I would have thought were tones of indignation, but which he repudiates as such, that I should not think that the Land Commission are to be in the place of the landlords. If they are not, the Increase of Rent Acts do not apply to them at all. It is only, in fact, because they are in the place of the landlords that the Increase of Rent Acts would be inclined to worry them. The point I raised was not whether or not the Minister is to be hampered in this great social work of land division. I made all the remarks I intend to make in that respect. I confined my observations to one point, and that was that if you do want this section to prevent the Increase of Rent Acts being raised as a defence, why do you want the retrospective portion of it when it will carry with it the implication of injustice to which I have referred?

The Minister did not answer that, and no spate of words will get the Minister away from that. I am going to sit here as long as I can to bring the Minister to answer that. There is no use in the Minister saying that he is engaged in a tremendous social work. Perhaps he is and perhaps he is not— there is room to differ on that point. But assuming every single thing that the Minister said is true, why does he still want to provide that the Increase of Rents Acts are to be deemed never to have applied to the particular houses in question? Putting in that provision will not have anything to say to the question whether or not the Minister will get possession. If he provides now that the Increase of Rents Acts, from the passing of this measure, will not apply, there is no defence to the action if he brings ejectment proceedings. Why does he want to have it retrospectively operative from 1914? I would like to have a specific and clear answer to that. Perhaps, 1914 is not the exact year. The Increase of Rents Act was passed first in 1915. But this is to have retrospective action to 1915. The Minister does not know, and I am quite sure he does not know, and he takes advantage of the fact that he is ignorant of a lot of things and then benevolently puts forward the view that he ought not to be worried because he does not know.

Mr. Boland

The Minister never did put forward that view.

Whether he does know it or not, the Minister can take it that there have been numerous instances of the type that will come within the scope of this section where applications have been made to the court to fix a rent against the landlord of the gate-lodges or cottages on the land. No such application would come before the court unless the case of the tenant was that the rent he was being charged by the landlord was outside the increase allowed by the Acts, and the courts have so held and fixed the proper rent at an amount less than that fixed by the landlord, and the landlord was made recoup the tenant over a period of 20 years, in accordance with the court decision, the amount he had overpaid him on the premises. What is going to be the effect of this? The Act is deemed never to have applied. All the orders of the court are to be wiped out. What is the position of the tenant to be in respect of the landlord who has disappeared, not to speak of his position in reference to the Land Commission? I want to know from the Minister why he wants this drastic retrospective operation of this section, and I do not want to hear any more on the question of the Minister's social work or the powers or objects of the Land Commission. I only want to know this. Assuming the Minister gets everything that this section purports to give him, with the exception of the retrospective operation, how will the operations of the Land Commission be hampered?

Mr. Boland

I am not aware of how many cases there may be or whether there are any, but it may happen that people may be able to obstruct the Land Commission work by reason of the fact that they are occupying houses, and this will prevent the proper division of an estate. Deputy Costello is aware that we are taking a similar power in respect of other rights, grazing and turbary, where we are being prevented from doing our work properly. We are taking these powers in order that the Land Commission will not be unreasonably hampered by people holding rights such as grazing or turbary.

I am not raising that point.

Mr. Boland

It is a parallel thing that we are doing.

It is the retrospective part of it that we are dealing with.

Mr. Boland

There may be cases, but I am not aware of them, where a person may have got an order under that Act which may debar us from going properly into our work of land distribution. Where there are such orders we want to have retrospective effect. That is my case.

The Minister has made no case for this.

Mr. Boland

The House can decide that.

The Minister has not brought these hypothetical cases within the scope of the section which gives retrospective power. If the section without the retrospective operation is passed into law, that will be sufficient to enable the Minister to get possession of any premises to which the In-Increase of Rents Acts apply.

Mr. Boland

That may be.

I want to know why it will not. The Minister says it may be. If the Minister does not give any reason, I intend to press this to a division.

That is the quickest way out of it.

But the Minister has not given any reason.

Mr. Boland

I am not trying to satisfy Deputy Costello, and I am not going to try. The Deputy has used plenty of verbiage.

Is the Minister not satisfied to get this without the retrospective effect?

Mr. Boland

I am not.

The Minister has not given any reason.

Mr. Boland

I have given sufficient reason, and the majority of the House will decide that very soon.

The Minister has the majority to decide it all right.

Question put.
The Committee divided:—Tá, 57; Níl, 30.

  • Aiken, Frank.
  • Allen, Denis.
  • Bartley, Gerald.
  • Beegan, Patrick.
  • Boland, Gerald.
  • Bourke, Dan.
  • Brady, Brian.
  • Brady, Seán.
  • Breathnach, Cormac.
  • Breen, Daniel.
  • Breslin, Cormac.
  • Briscoe, Robert.
  • Carty, Frank.
  • Childers, Erskine H.
  • Cooney, Eamonn.
  • Corry, Martin J.
  • Crowley, Tadhg.
  • Derrig, Thomas.
  • Everett, James.
  • Flynn, Stephen.
  • Fogarty, Andrew.
  • Fogarty, Patrick J.
  • Friel, John.
  • Gorry, Patrick J.
  • Harris, Thomas.
  • Hogan, Daniel.
  • Humphreys, Francis.
  • Kelly, James P.
  • Kennedy, Michael J.
  • Keyes, Michael.
  • Killilea, Mark.
  • Kissane, Eamon.
  • Lemass, Seán F.
  • Little, Patrick J.
  • Loughman, Francis.
  • McCann, John.
  • McDevitt, Henry A.
  • Meaney, Cornelius.
  • Moore, Séamus.
  • Morrissey, Michael.
  • Moylan, Seán.
  • Munnelly, John.
  • O Briain, Donnchadh.
  • O'Grady, Seán.
  • O'Loghlen, Peter J.
  • Pattison, James P.
  • Rice, Brigid M.
  • Ruttledge, Patrick J.
  • Ryan, James.
  • Ryan, Martin.
  • Ryan, Robert.
  • Sheridan, Michael.
  • Smith, Patrick.
  • Traynor, Oscar.
  • Victory, James.
  • Walsh, Richard.
  • Ward, Richard.

Níl

  • Belton, Patrick.
  • Bennett, George C.
  • Brasier, Brooke.
  • Browne, Patrick.
  • Cogan, Patrick.
  • Cosgrave, William T.
  • Costello, John A.
  • Curran, Richard.
  • Dillon, James M.
  • Doyle, Peadar S.
  • McMenamin, Daniel.
  • Mongan, Joseph W.
  • Mulcahy, Richard.
  • Nally, Martin.
  • O'Higgins, Thomas F.
  • Esmonde, John L.
  • Fagan, Charles.
  • Fitzgerald-Kenney, James.
  • Giles, Patrick.
  • Gorey, Denis J.
  • Hughes, James.
  • Keating, John.
  • Lynch, Finian.
  • McFadden, Michael Og.
  • McGovern, Patrick.
  • O'Neill, Eamonn.
  • O'Sullivan, John M.
  • Reynolds, Mary.
  • Rogers, Patrick J.
  • Ryan, Jeremiah.
Tellers:—Tá: Deputies Little and Smith; Níl: Deputies Doyle and Bennett.
Question declared carried.
Section ordered to stand part of the Bill.
SECTION 6.
Moneys due or payable to the Land Commission shall have and, save as regards moneys due or payable to the Land Commission as successors to the Commissioners of Church Temporalities in Ireland, shall be deemed always to have had the like rights, privileges, and priorities as are conferred by sub-section (2) of Section 38 of the Finance Act, 1924 (No. 27 of 1924), on the moneys to which that sub-section applies.

I move amendment No. 2:—

To delete all the words in lines 37, 38 and 39, save the word "the", in line 39.

This section is like the last one, of course, and is going very far. I am prepared to give the Minister power from now on, or from the time of the passing of the Act, for the recovery of these debts, but I am not prepared to agree that this should be made retrospective. It seems to me that there is considerable doubt about the legality of this section. Surely, it is going very far. The words of the section are: "Moneys due or payable to the Land Commission shall have and, save as regards moneys due or payable to the Land Commission as successors to the Commissioners of Church Temporalities in Ireland, shall be deemed always to have had the like rights" and so on. Why does the Minister take that right?

Mr. Boland

This amendment seems to me to be a queer amendment, because, in one part of it the Deputy is giving us some power that we are not asking for—where he seeks to give us a right to priority in the case of moneys due to the Church Temporalities Fund—and then, on the other hand, he leaves it open to propose claims for money that has been paid under, what we consider always to have been our right—that is that the Land Commission always believed that it had the right to priority in certain claims, and we are making it retrospective in case actions may be taken in respect of cases in which that right has been asserted. That is the reason for the retrospective provision. We do not ask for the power the Deputy proposes to give us by including the Church Temporalities Fund. Therefore, he seems to be contradictory in offering us something we are not looking for and then restricting us in something which we do feel is very necessary.

The Minister cannot have read the amendment. The Minister describes the Deputy's amendment as a queer amendment. Certainly, if the amendment read the way the Minister has read it it would be a queer amendment. If the amendment is accepted, the section would read: "Moneys due or payable to the Land Commission shall have the like rights, privileges, and priorities as are conferred by sub-section (2) of Section 38 of the Finance Act, 1924 (No. 27 of 1924), on the moneys to which that sub-section applies." What is queer about that? The Minister has not read the amendment, or he has not appreciated the effect of it. It is merely to leave the first words of the section—"Moneys due or payable to the Land Commission shall have" and delete every one of the other words down to "the like rights," etc.

Mr. Boland

Will the Deputy read the words that are being deleted?

I have read the section when the words are deleted. Putting it shortly, it means moneys due or payable to the Land Commission shall have the same rights as are conferred by sub-section (2) of Section 38 of the Finance Act.

Mr. Boland

The section as it stands would not include the debts due to the Church Temporalities Fund. We are providing here: "Moneys due or payable to the Land Commission shall have, and, save as regards moneys due or payable to the Land Commission as successors to the Commissioners of Church Temporalities in Ireland," etc. We do not propose to include those as having the right of priority. I am advised, anyway, by a pretty competent lawyer that if we do not include those words the Church Temporalities Fund would then have a priority as well as the other debts due to the Land Commission.

I am not interested in the least in the Church Temporalities Fund.

Mr. Boland

We are not asking for it. Deputy McMenamin is proposing that by deleting these words moneys due to the Church Temporalities Fund will be included in the same category as the land annuities, and then, on the other hand, by deleting the other words, he is leaving us open to an action for recovery in cases where we have acted as having the right of priority.

I would suggest that there is a way in which the Minister and Deputy McMenamin can come together, that is to say, that the Minister can have in the words "save as regards money due or payable to the Land Commission as successors to the Commissioners of Church Temporalities in Ireland"—let him have those words in, and let him strike out the words, "shall be deemed always to have had." Will the Minister take that line?

Mr. Boland

I will not take that line for the reason I have mentioned. I would have no objection to taking the particular power that has been given to us. We are offered that, but in proposing the change suggested in the amendment we would be leaving the field open to people who might think they have a claim against us. If it is only to date from the passing of this Bill the field might be open for people to claim.

Is it not only fair that people should know where they stand with regard to an Act passed with all the solemnity of an Oireachtas sitting and considering it? We lay down the law. People assume that is the law. They exercise their rights. They go to court to exercise them, and then they find that those are only rights for the term in which they ran. In other words, they were only there, to use the language of Deputy Corry, for the purpose of getting legal practitioners something to do. Directly it is found that it means the exercise of a right by a citizen the Parliament is asked to correct that. There is no finality in that and no respect for the status of this House or this Parliament as long as that continues. What we are against in connection with this particular Bill and the clauses which we seek to amend is that it is deemed always to have been that case. It was not that case and, in the exercise of the Minister's jurisdiction, he must have some regard for justice, common ordinary justice, for the individuals who comprise this State. Yesterday, six months ago, 12 months ago, citizens had those rights. Directly they exercised them a Bill is introduced here to take them away. Does the Minister think there is going to be any respect for either this House or the Oireachtas, or for the whole of this country if that is going to be the position in the future?

If, perhaps, it may have happened that in the short time at our disposal in dealing with this Bill a mistake was made in the drafting of an amendment, some consideration is due to members. We have had four or five Bills fired at us—this one, the Tourist Bill, a Bill dealing with Waterford, and two or three others that escape my memory for the moment, including the Finance Bill and the Appropriation Act. The Minister asked for permission to introduce this Bill in December. He circulated it on the 27th May. We had a Second Reading on the 6th June. This is the 15th June. Amendments had to be put up in those four, five or six days, as the case may be, although the Minister had six months.

What the Minister is doing in this particular section is taking some power which he had not got before this Bill was introduced. It is a power which he seeks to antedate. I submit that it is not just to the citizens of this State to be presented with a situation like that; that there ought to be some finality about our law; that there ought to be some regard for citizens' rights. While the Land Commission may claim by reason of this clause to enter into possession of certain moneys, certain individual citizens believe they had that right and may have balanced their budget in accordance with the exercise of that right. If suddenly, at a moment's notice, that right is going to be taken away, it is not good business. It may suit the administration of the Land Commission but it is not just and it is not good.

Mr. Boland

It was believed until a recent decision that that right was there. The Land Commission have always acted—and I am sure in the Deputy's own time, when his Government was in office, under Deputy Costello as Attorney-General—as if they had priority in this case. In a recent decision it was held that they had not and it is to ensure that we will not have actions occurring in respect of things that happened long ago that we are taking this right. If the Deputy casts his mind back I think he will remember that he had to do similar things himself in order to make sure that cases of that kind would not arise.

Is this House merely for the purpose of upsetting judgments given for people when they went to the courts and asserted their rights and secured them, who probably paid income-tax on this particular part of their budget? Is it right that when a decision is given against the Land Commission all the Land Commision has to do is to walk in here and get a Bill passed and upset the whole thing? It is about time we stopped that. Government Departments have no more rights than any ordinary citizen and if a decision goes against them they should take the consequences and foot the bill. The ordinary citizen does it outside and should not every Government Department do it?

Mr. Boland

May I say that I was wrong in stating that a decision had been given against us. The Land Commission has always acted as if it had priority, but there is a doubt which, I understand, has not been decided, as to whether the Land Commission has priority and this is to ensure that it has in case it has not, so that if there were actions brought we would not have to come in here for legislation.

Is not that very bad. Here are people who get legal opinions and come into court and are advised and then we come along here before the court has decided and lay down the law. Is there no provision for the payment of the costs in which these people have been involved? We are getting powers for the Land Commission and surely to goodness, common justice ought to govern our actions in cases of this sort. Where we are going to take away a right from a man that he had we should at least make compensation for any loss that he may suffer in bringing the action.

The Minister says the Land Commission always thought this, but does the Minister say that the other people did not think quite differently and that the Land Commission may be thinking wrongly?

Mr. Boland

The Minister's cure for that is to come in and make it perfectly clear and definite that the State has the priority.

That is not a cure. Could I put just one question to the Minister? The Minister has conferred on him all the rights and privileges deemed to exist under the Land Acts and under the Finance Act of 1924. Supposing, when this section becomes law a court of justice decides—as I am telling the Minister it may very well decide and may properly decide—that the privileges conferred by the Act of 1924 have been rendered completely nugatory by the passing of the Constitution, will the Minister then walk into this House again and say they intended to obtain the privileges of Crown debts but unfortunately used the wrong phrasing?

Mr. Boland

Quite positively. The Deputy when he was Attorney-General acted in the same manner. If we find that we have not covered the points we wish to cover and if we find that the courts so decide we certainly will come in and obtain legislation through the Oireachtas.

But will there be no provision for the payment of the experts' expenses?

Mr. Boland

That is a small matter compared with the fundamental matter as to whether the courts are going to make the law or the Oireachtas is going to make it.

The Oireachtas makes the law and the courts interpret it.

Mr. Boland

The question has been raised here where we may act on what clearly was the intention of the Oireachtas and where the State Department may act on the assumption, unchallenged, that it has certain rights, and where somebody may then raise a point and get a decision otherwise. Surely, the Oireachtas has the right to decide whether or not that shall be the case, that whatever they say cannot be mistaken by the court which has the interpreting of the statute that we pass. I say that if we find that some law has been passed through the Oireachtas and is held not to cover the points that we wished here that it should cover then we must bring in further legislation to make that perfectly clear.

If that principle is carried out to any great extent it means that the ordinary citizen will have no legal rights at all eventually, so far as proceeding against a Government Department is concerned. If a plucky citizen takes an action on what he thinks is a proper interpretation of an Act and proceeds against the Government, and then if the Government passes a new measure ante-dating the provisions of the Act in order to prevent this particular person taking advantage of any legal decision, it has practically abolished any legal rights that the ordinary citizen can have. I, for one, have always been against this practice of retrospective legislation.

The Minister staggered me with his last speech, because he has laid down this extraordinary proposition now that, if a Minister meant something and expressed something else and people acted upon that something else and the courts decided upon that something else, and upon the plain interpretation of the wording, then the Minister is to come along and say: "I meant something else, and I am going to set aside retrospectively the transactions which other persons have entered into on the ground that I myself may have expressed myself imperfectly."

How is anybody to know what is in the mind of the Minister except from what the Minister says? There came into my mind just now, when I heard the Minister speaking, those very familiar words used by an old judge that I am sure stuck in your memory, Sir, when reading the Law, and they were these: "It is trite learning that the thought of man is not triable, for the devil himself knows not what is in the heart of man." I believe that is very good theology also, but the devil himself does not know what is in the mind of the Minister at the present moment.

A Deputy

He does.

It is not what the Minister puts on paper in any of his Acts that the courts of the future are to rely on, but on that unknown thing which is in the Minister's mind. The Minister's doctrine takes one's breath away.

We know very well what is in the minds of the Front Bench of the Opposition.

It is a great thing to have a mind—which some people have not.

Does the Deputy press the amendment?

Deputy Corry says he knows more than the devil.

Amendment, by leave, withdrawn.
Question put: "That Section 6 stand part of the Bill."
The Committee divided: Tá, 56; Níl, 30.

  • Aiken, Frank.
  • Allen, Denis.
  • Bartley, Gerald.
  • Beegan, Patrick.
  • Boland, Gerald.
  • Bourke, Dan.
  • Brady, Brian.
  • Brady, Seán.
  • Breathnach, Cormac.
  • Breen, Daniel.
  • Breslin, Cormac.
  • Briscoe, Robert.
  • Carty, Frank.
  • Childers, Erskine H.
  • Cooney, Eamonn.
  • Corry, Martin J.
  • Crowley, Tadhg.
  • Derrig, Thomas.
  • Flynn, Stephen.
  • Fogarty, Andrew.
  • Fogarty, Patrick J.
  • Friel, John.
  • Gorry, Patrick J.
  • Harris, Thomas.
  • Hogan, Daniel.
  • Humphreys, Francis.
  • Kelly, James P.
  • Kennedy, Michael J.
  • Keyes, Michael.
  • Killilea, Mark.
  • Kissane, Eamon.
  • Lemass, Seán F.
  • Little, Patrick J.
  • Loughman, Francis.
  • McCann, John.
  • McDevitt, Henry A.
  • Meaney, Cornelius.
  • Moore, Séamus.
  • Morrissey, Michael.
  • Moylan, Seán.
  • Munnelly, John.
  • O Briain, Donnchadh.
  • O'Grady, Seán.
  • O'Loghlen, Peter J.
  • Pattison, James P.
  • Rice, Brigid M.
  • Ruttledge, Patrick J.
  • Ryan, James.
  • Ryan, Martin.
  • Ryan, Robert.
  • Sheridan, Michael.
  • Smith, Patrick.
  • Traynor, Oscar.
  • Victory, James.
  • Walsh, Richard.
  • Ward, Conn.

Níl

  • Belton, Patrick.
  • Bennett, George C.
  • Brasier, Brooke.
  • Browne, Patrick.
  • Byrne, Alfred (Junior).
  • Cogan, Patrick.
  • Cosgrave, William T.
  • Costello, John A.
  • Dillon, James M.
  • Doyle, Peadar S.
  • Esmonde, John L.
  • Fagan, Charles.
  • Fitzgerald-Kenney, James.
  • Giles, Patrick.
  • Gorey, Denis J.
  • Hughes, James.
  • Keating, John.
  • Lynch, Finian.
  • McFadden, Michael Og.
  • McGovern, Patrick.
  • McMenamin, Daniel.
  • Mongan, Joseph W.
  • Mulcahy, Richard.
  • Nally, Martin.
  • O'Higgins, Thomas F.
  • O'Neill, Eamonn.
  • O'Sullivan, John M.
  • Reynolds, Mary.
  • Rogers, Patrick J.
  • Ryan, Jeremiah.
Tellers: Tá, Deputies Little and Smith; Níl, Deputies Doyle and Bennett.
Question declared carried.
Section 7 agreed to.
SECTION 8.
Question proposed: "That Section 8 stand part of the Bill."

Could the Minister say what sphere of social service is going to be benefited by this section?

Mr. Boland

I cannot say whether it will be a social service or not. The Land Commission has the right to incur a loss on the resale of land, but it is not clear that it has the right to do so on the resale of sporting rights. No loss has been incurred yet, but in case it might turn out that rights should have to be sold, it is desirable to have the power to sell them even at a loss. I do not know if the killing of game is a social service, but it is a point which I do not propose to discuss.

There are spheres of activity in the Land Commission which are not social services. Might I ask the Minister whether due attention is being given to the employment afforded by persons at present in possession of sporting rights, and whether, in the new dispensation, similar employment will also be afforded?

Mr. Boland

I do not think that arises at all, but I am sure all these things are being given consideration. I am sure they are, but I do not think the question arises on this.

It arises to this extent, that if we do not get some benefit we should not pass the section.

Question put and agreed to.
Section 9 agreed to.
SECTION 10.
(1) Sub-section (3) of Section 21 of the Land Act, 1931, is hereby repealed and in lieu thereof it is hereby enacted as follows, that is to say:—
(b) notwithstanding anything contained in the foregoing paragraph of this sub-section, the Judicial Commissioner may, on the application to him in the prescribed manner of any person claiming to be entitled to the dividends on any land bonds so retained, make such order as to the payment of the said dividends or otherwise as the justice of the case may require;

I move amendment No. 3:—

To delete sub-section (1) (b) and substitute a new paragraph as follows:—

(b) notwithstanding anything contained in the foregoing paragraph of this sub-section, the Judicial Commissioner shall, on the application to him in the prescribed manner of any person claiming to be entitled to the dividends on any land bonds so retained, make an order for the payment of the said dividends unless the justice of the case shall not merit the making of such an order.

This section purports to amend section 21 of the Land Act of 1931. I think it will be agreed that when people are entitled to dividends, they are entitled to them of right and they should not have to go to any expense of any kind in order to have these dividends given to them. It was for that reason that I put down this amendment. Sub-section (b) of (1) of this section says "notwithstanding anything contained in the foregoing paragraph of this sub-section, the Judicial Commissioner may, on application to him in the prescribed manner of any person claiming to be entitled to the dividends on any land bonds so retained, make such order as to the payment of the said dividends or other wise as the justice of the case may require." In other words, application will have to be made to the Judicial Commissioner to get the dividends. My view is that they are entitled to them of right or not at all.

The original clause in the Land Act dealing with this had in mind the segregation of ten per cent. of these land bonds for a particular purpose. That was deemed to be sufficient at the time. If it is now proposed to take in addition the percentage that formerly accrued without reference to the Judicial Commissioner it is certainly taking something which was formerly given. The purpose of the amendment is to ensure that the Judicial Commissioner would have power to award the persons this ten per cent. which is held at present in a sort of Limbo.

Mr. Boland

The difference between the amendment and the section as it stands is to make it mandatory on the Commissioner. We propose here to leave it to the Judicial Commissioner's discretion. It is not fair that that ten per cent. should be treated as the amendment suggests. That ten per cent. is held there in case there should be some adjustments and it is not clear whether the person is entitled to it or not. If it is considered that the ten per cent. retained is sufficient to meet any adjustments made, the interest will not be held but, where it is held, if the Judicial Commissioner is satisfied that there would be a hardship on the person he may make an order for payment. We are in the same position as that suggested by the amendment except that what Deputy Cosgrave suggested is provided by us whereas the amendment makes it mandatory.

No. Read the last two lines of the amendment—"unless the justice of the case shall not merit the making of such an order." It is mandatory to this extent, that if the justice of the case requires payment, then it shall be done. This is not an arbitrary discretion on the part of the Judicial Commissioner. It is simply to carry out the law in the case.

Mr. Boland

I think our provision is better. It reads here:—

Notwithstanding anything contained in the foregoing paragraph ...the Judicial Commissioner may, on application to him in the prescribed manner of any person claiming to be entitled to the dividends on said land bonds so retained, make such order as to the payment of the said dividends or otherwise as the justice of the case may require.

I prefer that to the amendment.

Has he not a voluntary discretion there?

Mr. Boland

He has.

All we are asking to do is that, if the justice of the case should require it, he shall make an order. Surely that is not unreasonable.

Mr. Boland

Except in this case. It is the Opposition who are throwing doubts on the judge. He will have to decide anyway whether the justice of the case requires that the money shall be paid. In any case, it is left to him. Who is to decide the justice of the case only the judge?

Precisely, and what we are asking for is, if the justice of the case requires it, that he shall do it. We are making the law, and we say to the judge, "if the justice of the case requires it," in other words, the section as it stands leaves a doubt. Does the Judicial Commissioner ask for that discretion? He does not. The judge would rather have the law laid down. What we are asking in this case is that if the justice of the case requires it the judge shall order the paying out of the dividend. There is not much in that.

Mr. Boland

Anyway, I am advised that the section, as it is, is better.

Amendment No. 3, by leave, withdrawn.

Mr. Boland

I move amendment No. 4:—

In sub-section (3), page 6 to delete all words from the word "together", line 51, to the word "thereon", line 53.

Should the deletion in amendment No. 4 not be from the word "bonds" to the word "shall"? As it is, the provision, if the amendment be made, will be ridiculous.

Mr. Boland

That is right. The words "together" and "thereon" should be included in the deletion.

Amendment amended accordingly.

Amendment, as amended, agreed to.

Mr. Boland

I move amendment No. 5:—

Before sub-section (4), page 6, to insert two new sub-sections as follows:—

(4) Where the vendor or other person is required by this section to pay to the Land Commission in money the nominal value or amount of any land bonds, such vendor or other person shall, with the said money, pay to the Land Commission in money a sum equal to the interest on the said land bonds from the date of the issue thereof to the date of the payment of the said money into the land bond fund in pursuance of the next following sub-section of this section.

(5) Money payable to the Land Commission under paragraph (b) of sub-section (2) or sub-section (3) or sub-section (4) of this section (exclusive of so much of such money as represents interest on land bonds from the date of issue thereof to the last day for the payment of dividends thereon) shall be paid into the land bond fund and shall be disposed of as if it were money paid by a tenant-purchaser in redemption of a purchase annuity payable in respect of an advance made by the issue of land bonds, and thereupon the advance and the State contribution corresponding to the land bonds in respect of which the said money was so payable to the Land Commission shall be written off and cancelled by the Land Commission.

This is to provide for cases where the vendor is required to pay money into the fund and there are not bonds in the guarantee fund to meet it.

Would the Minister give us an example of that?

Mr. Boland

The land bonds bear interest up to the last dividend day. If the person is to be paid in cash, interest will be due and the money will not be bearing interest. If it were land bonds they would be bearing interest during that period. The interest has to be paid during the period between the last dividend date and the day payment is made.

There is a vendor in this case and he is a person who is selling something. That person is to pay to the Land Commission in money the nominal value of any land bonds. How does the vendor become liable to pay? The vendor usually is the person who receives.

Mr. Boland

In cases where too much money was paid out and the deposit did not cover the excess paid, then the vendors are required to pay in cash.

Is that fair? I understood there was a bargain struck between two individuals and that, in connection with that bargain, one party said: "Whatever price is fixed, you are going to get 90 per cent. in bonds and we are going to retain 10 per cent." In this new section, you are not only going to get the 10 per cent. but you are going to ask him to pay interest as well. That seems to be straining the original bargain.

Mr. Boland

If the judge agrees, up to 25 per cent. can be retained. If it is found that only 10 per cent. has been retained and that it has not been sufficient, then the vendor may be required to pay the difference in cash.

Is not that straining the original bargain?

Mr. Boland

I do not think so.

Amendment No. 5 is consequential on amendment No. 4.

I shall not challenge a division, but I want to be recorded as opposing it and as opposing the section.

Amendment put and declared carried.

On the section, does the Minister not think it unfair that a person who is entitled to get interest on the retained bonds and who has been receiving it up to the present should be put to the expense of making an application to the judge? These applications are not made free of charge, and it seems to be unfair to put a person to that cost.

Mr. Boland

He has to apply to get his interest even at present, and I do not think it would cost him anything to apply in the same way in this case.

Surely he does not have to apply for his dividends at present? My recollection is that, under Section 21 of the Act of 1931, the dividends are paid to him without any application.

Mr. Boland

Not in respect of these particular bonds. I am advised that, in respect of this 10 per cent., he must make application.

Question—"That Section 10, as amended, stand part of the Bill"—put and declared carried, Deputy Cosgrave dissenting.
SECTION 11.
Question proposed: "That Section 11 stand part of the Bill."

Mr. Lynch

I should like to know whether the Minister thinks this section meets what, in my view, has created a difficulty in connection with applications under Section 39 of the Act of 1923. Four and a half per cent. land bonds ceased to be issued some years ago. Section 39 of the Act of 1923 sets out that the redemption price, when fixed, shall be advanced and paid by means of 4½ per cent. land bonds and distributed by the Judicial Commissioner. I take it that, once the last issue of 4½ per cent. land bonds was exhausted and when no more 4½ per cent. bonds were being issued, that held up any redemptions under Section 39 of the Act of 1923. I cannot see how the Land Commission could allow any redemptions under that section when it appears to be mandatory that the redemption should be payable in 4½ per cent. land bonds and when no such land bonds, in fact, existed. I should like to know whether this section removes that difficulty with regard to applications under Section 39 of the Act of 1923.

Mr. Boland

That difficulty has been removed by the Land Bond Act of 1933.

Mr. Lynch

Then, what is the purpose of this section?

Mr. Boland

It adopts the provisions of Section 36 of the Act of 1931 which directs that payment of interest on claims against purchase money shall be at the rate of 4½ per cent. pending distribution of the purchase money. Where the purchase money is payable in 4 per cent. bonds, the interest payable shall be at the same rate as the relevant bonds bear—4 per cent. While land bonds are awaiting distribution, the Judicial Commissioner may, under Section 36 of the Act of 1931, order the dividends to be paid to the vendor or other person entitled to receive them and if there are any mortgages, charges, or other interest-bearing incumbrances affecting the purchase money, the interest payable shall be at the rate of 4½ per cent. pending distribution of the purchase money, notwithstanding anything in the instrument creating the incumbrance. Since 1931 the rate of interest on new land bonds has been altered to 4 per cent. and this clause provides that the rate of interest on mortgages, etc., affecting purchase moneys shall correspond to the rate of interest on the land bonds constituting the purchase moneys.

Question put and agreed to.
SECTION 12.
Question proposed: "That Section 12 stand part of the Bill."

Would the Minister explain to the House what is the intention with regard to paragraph (b)? The price of land bonds varies. There are times when they are at a discount and there are times when they are at a premium. The Land Commission is unable to regulate the price so that it would be always par but it does appear strange to introduce a cash payment when the regular procedure or practice has been to issue bonds. At the moment, it is possible that these land bonds are slightly over par and, presumably, the fact that that is so was in mind when this particular sub-section was introduced. Now, they have got to take the rough with the smooth. Some people may have been at a serious disadvantage by the fact that land bonds issued at even 4½ per cent. were as low as 88 at one time. Even now 4 per cent. bonds may be slightly over par.

They are not now.

Can the Minister tell us what is the idea of bringing in cash payments? It appears that in this case there is a discretion given to the Judicial Commissioner to issue cash if he so desires. Where does he get the cash? Does he sell land bonds in order to get it, or is the Minister going to bring in a Vote for it?

Mr. Boland

He gets cash by selling bonds.

It is unlikely if the bonds are under par that he is going to sell bonds. On the other hand, it would scarcely do if he sold bonds at 101 and paid out only £100. I should like to know the reason for this. Why not give him bonds and let everybody be on the same level? Perhaps the Minister would look into this before the Report Stage.

Mr. Boland

It is a matter which is left to the Commissioner's discretion. He does what he thinks is equitable in the matter. I shall look into this question again before the Report Stage.

Question put and agreed to.
SECTION 13.
(1) Whenever the purchase money of lands, sporting rights (including fisheries and fishing rights), grazing rights, rights of turbary, or other rights resumed, purchased or acquired by the Land Commission or the compensation for tenancies, easements, or rights extinguished by the Land Commission has been or is lodged (whether before or after the passing of this Act) to the credit of the relevant matter before the Land Commission has got or gets possession or user of the land, tenancy, easement, or right in respect of which the said purchase money or compensation was or is so lodged, the Land Commission shall, on the allocation of the said purchase money or compensation, be entitled to be paid out of the land bonds representing the said purchase money or compensation and the interest to credit on such land bonds the following moneys, that is to say:
(a) all sums paid or payable by the Land Commission into the land bond fund in respect of the said land bonds during or in respect of the period from the issue of the said land bonds to the date on which the Land Commission got or gets possession or user of the land, tenancy, easement or right;
(b) all sums which have, before allocation, been paid by the Land Commission or which the Land Commission is, at the time of such allocation, or becomes thereafter liable to pay on foot of rates in respect of the said land, tenancy, easement, or right for the period from the date of the said lodgment of the said purchase money or compensation to the date on which the Land Commission got or gets possession or user of the said land, tenancy, easement, or right, such rates being deemed for this purpose to accrue from day to day, and
(c) all costs and expenses incurred by the Land Commission in getting possession or user (whether before or after the date of the said lodgment) of the said land, tenancy, easement, or right.

I move amendment No. 6:

Before sub-section (2) to insert a new sub-section as follows:

(2) The foregoing sub-section shall apply and be of force and effect only where the Land Commission shall offer to take such possession on the day originally agreed upon or fixed by them.

This section authorises the Land Commission, where they do not get possession on the day fixed, to be paid out of the land bonds for the time they are kept out of possession. My amendment is merely to make the section apply mutually—to give the same rights to the tenant or the person from whom they are taking the land if the Land Commission is not in a position to take the land on the day that has been fixed. The Land Commission takes power to re-imburse itself for any payments in respect of rates or other liabilities during the period it is kept out of possession. When the Land Commission takes that power, I want to make the section mutual.

Cases have occurred in which the Land Commission say "we will take possession of these lands on the 1st July." On the 24th or 25th June, the person in occupation sells his cattle. Then the Land Commission comes along on the 26th or 27th June and says: "we will not be able to take possession until the 1st August or 1st September." It is not an economic proposition for a person who has sold his cattle to purchase cattle again for the sake of grazing the land for a month or two. The land is not used for that period but the person who is in possession is liable to rent, rates and other charges. The Minister in this case has taken precautions to ensure that the Land Commission will only discharge its obligations from the date on which it gets possession. Deputy McMenamin is endeavouring to ensure that the same rights will be conferred upon individuals who are informed that the land will be taken over as from a certain date. Then, having cleared the land so as to give possession, they are informed subsequently that the Land Commission will not be able to take possession until a later date. Meanwhile, they have to meet rates, rents and other charges. I think it is a reasonable amendment.

Mr. Boland

When a case like that arises the Land Commission arranges to pay any costs that a person placed in that position may incur. We are making provision here for cases where the Land Commission may be involved in costs for a period during which they are not in possession of the land. Where something arises to prevent the Land Commission from taking possession on the date arranged, the Land Commission will re-imburse the person in possession for any extra expense in which he may have been involved.

My information from a person who has been aggrieved is that that is not so.

If that is the practice, what is the harm in having it put in the statute?

Mr. Boland

I am told that it has been done time and again where it has occurred.

I have been informed to the contrary by the legal representatives of persons aggrieved.

It is only right that when you are taking these powers for yourself they should be applied mutually. Why should we give absolute powers of this kind to you if you are not prepared to extend the same rights to persons who may be affected by failure on your part to fulfil your bargain on the day arranged? We are not dealing with the fractious man who does not want to go out at all. There may be such cases, and it may be that it is with those cases you intend to deal. You are taking powers to cover every transaction that you have. There are no exceptions. As Deputy Cosgrave pointed out, a perfectly innocent man whose land you are taking over may have sold his cattle before the day upon which you have agreed to take possession. He may have to sell them at a loss or in the middle of the season, and thereby is losing money, and then you may fail to take possession on the day on which you had arranged.

Would the Minister undertake to look into the matter before the Report Stage?

Mr. Boland

I should like to have an opportunity of examining some of these cases, but I am not committing myself in any way. I shall look into the matter.

Amendment, by leave, withdrawn.
Section 13 ordered to stand part of the Bill.
SECTION 14.
(2) The powers conferred on the Minister by sub-sections (2) and (3) of Section 6 of the Land Act, 1933, shall include power to direct the number of lay commissioners whose concurrence is necessary for the exercise or performance of any such power or duty as is mentioned in the said sub-sections or for the doing of any other thing and, in particular, power to direct that any such power or duty may be exercised or performed or any such thing may be done by one lay commissioner acting alone.

Amendments Nos. 7 and 8 may be taken together.

I move amendments Nos. 7 and 8:—

In sub-section (2), page 9, line 2, to delete the words "one Lay Commissioner acting alone" and substitute therefor the words "not less than two Lay Commissioners."

In sub-section (3), line 10, to delete the words "one Lay Commissioner acting alone" and substitute therefor the words "not less than two Lay Commissioners."

This section has been apparently drafted as a result of a decision of the courts. The Land Commission appears to be terribly afraid of the courts but they appear to be altogether too much alarmed about this matter. In this section the Minister provides that one lay commissioner may be sufficient to carry out serious acts relating to property whereas, if I remember aright, there are five or six such commissioners. I was originally disposed, when drafting the amendment, to suggest that the concurrence of not less than three lay commissioners should be necessary to carry out these duties but I thought the Minister would think that I was too reactionary. I have therefore suggested two instead of three. Of course, in case of a dispute between two, there would be no decision at all: I thought perhaps the Minister would not take it in that light, and therefore I put down "two" instead of "one" in order to show that there was at least agreement between two persons on anything that was done.

It was decided that all the commissioners would have to join in any of those acts. The Minister says that was not the intention. What matters is not what the intention was, but what this House says. In the particular section referred to the word "commissioners" obviously meant all the commissioners. That may not be what the Minister in charge of the Bill at the time meant, but that is what he said, and I do not see why there should be any grouse about it. There is no use in getting into the jitters about it. We are dealing with land, which is the most valuable asset that we have, and every care and precaution should be taken to see that every act done in connection with it would have at least the appearance of authority and con sideration.

The Minister said on the Second Reading of the Bill that the courts had decided that where the word "commissioners" was mentioned it meant all the commissioners. Now, we are going as far as the intention that was expressed in the 1933 Act, namely, that where the word "commissioners" is mentioned that at least two are in mind. What is proposed in the amendment is that, when the Minister appoints commissioners to do certain work, at least two will be appointed. I think if that is done it will give perfect security with regard to any matter of this kind; that is, where there is a question of the acquisition and distribution of property or anything of that sort. It is no great burden to place a responsibility such as that upon two individuals. They are laymen, and they are being given extraordinary powers under this Bill as well as under the other when this one has been passed. It is not unreasonable, I think, to ask that not less than two should undertake the very serious and onerous responsibilities which this Bill places upon them.

I suppose we may take it that this Bill has been introduced to correct the omission in the 1933 Act—that where the word "commissioners" was mentioned, at least two were involved. In substance that is what we are asking in this amendment. It may be that before the Report Stage is reached the Minister may think it necessary to introduce a special clause giving to a single commissioner a particular responsibility, but normally, where the commissioners are dealing with the acquisition and distribution of land or exercising the other wide powers given under the 1933 Act, then we think that at least two ought to have the responsibility.

Mr. Boland

As far as the acquisition and allocation of land is concerned and the fixing of price, two commissioners act. As regards many routine acts performed by the commissioners, I think it would be hardly necessary to have two. I can give the Deputy some examples, and I am sure he will agree that in dealing with these matters it would scarcely be necessary to have two commissioners: the signing of vesting orders, routine amendments to list of vested holdings, routine fixation of appointed day, routine business arising out of management of property and things of that sórt.

We are quite prepared to accept that.

We are quite willing to agree that one commissioner would be sufficient to discharge the particular duties read out by the Minister. While saying that, we think it is unwise that the position should be such that it would be open to the Minister for any purpose to appoint a single lay commissioner.

Mr. Boland

Is the Deputy prepared to meet me on this on the Report Stage: that there will be certain cases where not less than two commissioners shall act, but that as regards the others, one will be sufficient for dealing with such matters as I have mentioned?

Certainly.

Amendment, by leave, withdrawn.
Amendment No. 8 not moved.
Question proposed: "That Section 14 stand part of the Bill."

On the section, I would like to know if there is any place where one can get these determinations by the Minister. This section is being related back to Section 6 of the 1933 Act. I think that in matters of this kind it would be far better if these things were prescribed by the rules rather than made administrative acts of the Minister. Under this the Minister has power to make rules. Therefore, I think these things should be prescribed in the rules. If that is done a person will be able to find out the proper number of commissioners, and so on, that have actually dealt with a particular matter which has been before them. The certification business is a case in point. It made this section necessary. If something had been prescribed in the rules that matter would not have arisen at all.

Mr. Boland

These are domestic matters, and are not to be got in the library.

Mr. Lynch

Why should they not be made available for the information of everybody? That is what I want to know.

This is a section which gives me a great deal of difficulty. Under sub-section (2) the Minister can appoint a certain number of commissioners to do certain work. Suppose the Minister appoints three commissioners, and that the three are necessary to carry out such-and-such work, but suppose one commissioner takes it upon himself to do the work. That is, a less number than the Minister has specified. What is the remedy open to the individual concerned? His remedy as regards going to court seems to be taken away. According to my reading of it, sub-section (3) does not safeguard him either. I would like to know what is going to happen if a less number than the number in the Minister's order purport to make a decision.

Mr. Boland

If the Minister, under the powers given to him in Section 6 of the Act of 1933, prescribes that certain work must be done by three commissioners, then it must be done by the three commissioners, and will be of no effect unless it is done by the three.

But suppose it turns out that only one did it?

Mr. Boland

But one cannot do it.

Of course he can; and if he does, how is it to be questioned? His right to take the matter to court is taken away from him. An order is made against an individual. The order is ultra vires, and then you take away his right of appeal to the courts. I want the Minister to explain to us what he really does mean by this very curious section. Especially I should like to ascertain what he means by sub-section (3) thereof.

Mr. Boland

The Minister has power to prescribe that a certain number of commissioners must perform a certain act, whatever it is.

Mr. Boland

If the signatures of that number of commissioners are not appended to the decision, it will not be acted upon.

But suppose it has been acted upon?

Mr. Boland

But it cannot. There is no use in supposing things which cannot happen.

Why can it not happen? Suppose two commissioners make an order and that order goes down to the officials of the Land Commission in, let us say, the Minister's own county, Roscommon. The Land Commission officials in Roscommon act upon the order made by two commissioners, where it ought to have been made by three. What remedy has the person aggrieved?

Mr. Boland

Any administrative official who would attempt to do a thing like that—something in conflict with the Minister's order—would have to be suitably dealt with. It would not be a legal act.

But that is just the point. What is the remedy if they act illegally? That is just what I want to know. The Minister says nobody will act against his orders. Is there any such thing in the Land Commission as inadvertence? Is everybody in the Land Commission so absolutely perfect that never will any person act inadvertently?

If they do, they can be shifted.

Mr. Boland

Surely, the Deputy is not serious on this matter?

I am so serious that I will go over it again in order to try to get it into the Minister's head, because it is quite obvious that the Minister has not understood. Three commissioners, let me say, are necessary to do such and such a work. Through inadvertence, let me say, two of them act. Two of them send down an order to the local official. The local official does not take it upon himself to refuse to obey the order. He does not take it upon himself to send the order back saying: "I will not obey this, because, in my opinion, it is ultra vires.” The Minister might indicate what remedy has the person aggrieved.

Mr. Boland

The thing cannot be done. It is laid down that three commissioners, or two commissioners, must perform a certain act, and no officer in any Department would give effect to a decision which was given otherwise.

The Minister, I know, is looking for support, but might I ask the Minister whether all those orders that he makes are going to be circulated to every official in the Land Commission?

The officials used to get away with illegalities, but that does not happen now.

Deputy Corry had better keep himself in reserve until something he understands comes up for discussion.

The Deputy has better experience of illegalities than any man in this House.

The kicking cow for instance.

Question put and agreed to.
SECTION 15.
(b) the Lay Commissioners may, if and whenever they so think proper, state a case for the decision of the Judicial Commissioner in respect of any question of law arising in any proceedings before them under the Land Purchase Acts.

I move amendment No. 9:—

Before paragraph (b) to insert a new paragraph as follows:—

(b) a person aggrieved by a decision of the Appeal Tribunal may appeal to the Supreme Court.

If this amendment is accepted it might cover Deputy Fitzgerald-Kenney's objection to Section 14. I must say that I do not like this section at all. The section says:—

Every provision of the Land Purchase Acts whereby a right to require the Lay Commissioners to state a case in respect of a question of law is conferred is hereby repealed, and in lieu thereof it is hereby enacted as follows, that is to say:—

(a) whenever a question of law arises in any proceedings under the Land Purchase Acts before the Lay Commissioners, any person aggrieved by the decision of the Lay Commissioners on that question may appeal from such decision to the Appeal Tribunal;

There is no trouble at all about a question of law. What I am concerned about is an appeal on the question of fact, because there are cases on record where serious mistakes were made. They were perfectly bona fide. Cases arise, for example, where one inspector did one part of the thing, and later on a new inspector went out and, not appreciating what had already been arranged, did something contrary to it. Then the two tenants would be vested, and the rights as pointed out by the respective inspectors registered on the folio. As a result, on the facts, a grievous wrong might be done. I think it is vital in those cases that there should be an appeal on the question of fact.

There is one case which covers a lot of those matters—the case of Chambers and Beatty. I think it happened about 1910. It went before the late Mr. Justice J.O. Wylie. The facts were as follows: The Land Commission got some substantial portion of land in the County of Dublin. They divided it into two holdings. One of the holdings abutted on a road and on a canal. The other holding was inside and was landlocked. Chambers had been allotted the farm of land which abutted on the road. Beatty had the one that was inside and was landlocked. The inspector who allocated the land to Beatty told him there was a right of way over Chamber's land. The inspector who mapped out Chambers's land indicated to him that there was no right of way over his lands. The two holdings were registered. Beatty's land was registered with a right of way over Chambers's land, while Chambers's land was registered without any right of way over it. It was perhaps a small matter which might have been arranged quite easily, but you will meet people who want to assert their rights.

I take it, it would not have been a very serious matter for Chambers to give Beatty a right of way over his land, but he would not do so. The then Judicial Commissioner decided, I think, that Beatty had the right of way. They went to the Chancery Court and were told there that the only way to assert this right was to start a suit. A suit was started before the Rolls Court, and the Master of the Rolls ordered that the folios be amended by giving the right of way. He held that a bona fide mistake had been made. Chambers then brought the case to the Court of Appeal. The Court of Appeal reversed that decision, and said that the charges on the folios were binding and that Beatty had no remedy. The case then went to the House of Lords. It came out in the discussion in the House of Lords that after the then Judicial Commissioner had heard the case he had sent an inspector down to inspect the lands; that the inspector made an affidavit for him, and on the inspector's affidavit made after the hearing before the Judicial Commissioner he then decided the case. Lord Buckmaster, who presided in the House of Lords, asked Serjeant Sullivan, who was appearing for Beatty: “Are you suggesting that the Judicial Commissioner received the affidavit and gave a decision thereon after the case was heard before him?” and Serjeant Sullivan replied, “Yes, that is what I am suggesting.” Then Lord Buckmaster asked Mr. Jellett, who appeared for the Land Commission, “What are you going to do about this? A mistake has been made.” He asked him if he would pay damages, and Mr. Jellett said that so far as he knew there was not any money to pay damages. Then Lord Buckmaster said, “Very well; I will go to the Treasury myself, and see that the money is provided.” They adjourned the case, and they appointed the late Mr. Denis Henry to act as arbitrator to award the amount of damages, and they agreed upon a sum of £400.

On a point of order. I should like to ask your ruling, Sir, as to whether this is relevant to the matter under discussion?

Certainly it is. I want to give a practical case to show that there should be an appeal on fact as well as on law. The Deputy does not know what he is talking about. He does not know what is in the section.

It is for the Leas-Cheann Comhairle to interpret a point of order, not for the Deputy.

I take it it is in order, because he is giving a legal precedent and relating it to his amendment.

There was a genuine mistake in that case—a bona fide mistake. That serious mistake occurred and involved all that enormous cost. I am giving that case to show that bona fide mistakes can occur and why, in my opinion, there should be a right of appeal on fact as well as on law. I quite admit that if these people went to the Land Commission and said that a mistake had been made and we will have to put it right, the Land Commission would say that there was a mistake, that there was to be a right of way.

Who got the right of way, anyway?

Apparently this House does not appreciate the gravity of what it is doing. I think the Minister will agree that cases of that kind will arise. We cannot foresee or make provision for them, and I think the door should be left open in order to deal with cases of that kind. People like that would claim that they have rights and they will insist on standing on their rights. I say that this Bill is quite arbitrary enough without a thing like that happening. I am sure that if the Land Commission was given an opportunity they would be quite accommodating in these matters. The Land Commission will not be considered when you meet with cantankerous people who have rights conferred on them and will not give way. I ask the Minister to accept the amendment. My only object is to make provision for cases that may arise and where a great injustice may be done.

I wonder whether Deputy McMenamin wants to put every case into the same position as that famous right of way. It must have been a very valuable right of way. I wonder when the case was finished how much the unfortunate man had to pay to the lawyers? I suggest that Deputy McMenamin's amendment is just going to mean the same thing. Here is a case that is going to be decided first by the lay commissioners. It is going to go from them to the Appeal Court——

Not the Appeal Court, to the Tribunal.

To the Appeal Tribunal and then the Deputy wants it to go to the Supreme Court.

They have the right to go to the Supreme Court already.

When the three courts have finished with it I wonder who is going to have the estate? Those for whom the Deputy speaks are going to have the estate. The person who owned it will have nothing left when the estate has been parcelled out to the lawyers but a mortgage on the shirt on his back for the balance of the costs. The Deputy is not going to get away with this kind of ridiculous amendment. If a person feels aggrieved and wishes to appeal, he has an appeal to the President of the High Court and to two commissioners, and that ought to be sufficient without having a further appeal to the Supreme Court.

Does the Deputy suggest that there is an appeal on fact to the President of the High Court and to two commissioners at present?

I say that you will get a lot more common sense from the President of the High Court and the two lay commissioners than from any Supreme Court.

Does the Deputy suggest that there is an appeal on fact to the President of the High Court and two commissioners?

An appeal on law.

Is there one on fact? The Deputy does not know the first thing about what he is talking about.

What are the facts?

The fact is that the Deputy does not know what he is talking about.

You have here that, when requested, the lay commissioners shall give the authority on which any decision of theirs is founded and in (b) "the lay commissioners may, if and whenever they so think proper, state a case for the decision of the Judicial Commissioner in respect of any question of law arising in any proceedings before them under the Land Purchase Acts." I think that that covers the legal side of it and that the commissioners have common sense enough to know their job. What happens is that you have these people bandied from one court to another, and dragged into legal proceedings for the lawyers to fatten on them, while, as I pointed out on the Second Reading, the ordinary people are paying the piper, in the shape of unpaid rates and unpaid annuities. Unfortunate people living on 20 or 30 acres of land have to pay the annuities and rates due by other people, while the lawyers fatten on proceedings that go on in the courts. That is what is causing the opposition and the amendments to this Bill. All the goal posts that were put up, and that the lawyers were fattening on, are gone now and they will have no further opportunities in that respect.

The lawyers made well out of the 1923 Act.

That is what is wrong. I notice that the number of Deputies on the opposite benches is lessening now. I consider that this amendment is put forward for the purpose of preventing the Act functioning and for no other purpose. I see no justification for it, except the case that the Deputy quoted, and if there was ever a case to show what was going to happen that shows it, as a question about a right of way would be going from one court to another; until the unfortunate people concerned would not only lose the right of way but everything they had in order to pay the lawyers.

Mr. Boland

This section deals with appeals on questions of law and the Deputy proposes to insert a new paragraph:—"a person aggrieved by a decision of the Appeal Tribunal may appeal to the Supreme Court". On a question of law, with which this section is concerned, I am prepared to have a suitable amendment submitted.

Amendment, by leave, withdrawn.

Seeing that the Minister is going to consider this amendment I will not proceed with the next one.

Amendment No. 10 not moved.
Question proposed: "That Section 15 stand part of the Bill."

I strongly object to this section. It takes away the automatic right of a person who feels himself aggrieved on a question of law to appeal to the tribunal which, after all, is a tribunal of three laymen and one lawyer. If he thinks there has been a wrong interpretation of the law he may ask the tribunal to state a case, and he may ask the Land Commission to state a case but they may refuse. His advisers may tell him that he is perfectly right in law but his remedy is nil. If there is a mistake made in law by the Land Commission, apart from the one right that is now taken away, there is no way in which he can appeal. It is all very well to say he has an appeal on law, but he cannot appeal on law unless he gets a statement of fact from the Land Commission. The Court of Appeal cannot understand or decide what the law is until they know the facts to which the law has to be applied. Supposing a man wishes to go to the Appeal Tribunal to have a question of law decided he cannot go unless the facts are found for him. Take a case like this, where an interpretation of that section is wanted, as to whether land has been correctly farmed or not. If correctly farmed it can be taken for the relief of congestion in the immediate neighbourhood by the Land Commission simply saying: "We are going to take that." When asked to state the facts, and to say if the land was found to be properly farmed, and if they have found they had power to take it, even though there is no congestion in the immediate neighbourhood, they simply say, "We will not tell what our reasons are".

It is perfectly obvious what is in mind, and it is perfectly obvious, even on the uncontradicted evidence that the land has been properly farmed, that there is no way of going to the Appeal Tribunal because there are no facts. Therefore, for all practical purposes the appeal in law can, in a great number of cases, be made completely useless. I put that point to the Minister in the previous Land Bill, and I put in an amendment to alter that position, but it was rejected. I have not put in an amendment to this Bill, but I am going to oppose the entire section, which takes away the one way in which a man can get a question of law determined, whether the Land Commission like it or not. Whether the Land Commission like to have the law determined by the court or whether they do not, persons who go before the Land Commission ought to have the right to have the law interpreted by a court of justice.

Question put: "That Section 15 stand part of the Bill."
The Committee divided: Tá, 54: Níl, 29.

Tellers:—Tá, Deputies Little and Smith; Níl, Deputies Doyle and Bennett.

    Question declared carried.

    Aiken, Frank.Allen, Denis.Bartley, Gerald.Beegan, Patrick.Boland, Gerald.Bourke, Dan.Brady, Brian. Corry, Martin J.Crowley, Tadhg.Derrig, Thomas.Flynn, Stephen.Fogarty, Andrew.Fogarty, Patrick J.Friel, John.Gorry, Patrick J.Harris, Thomas.Hogan, Daniel.Humphreys, Francis.Kennedy, Michael J.Keyes, Michael.Killilea, Mark.Kissane, Eamon.Lemass, Seán F.Little, Patrick J.Loughman, Francis.McCann, John.McDevitt, Henry A.

    Brady, Seán.Breen, Daniel.Breslin, Cormac.Briscoe, Robert.Carty, Frank.Childers, Erskine H.Cooney, Eamonn. Meaney, Cornelius.Moore, Séamus.Morrissey, Michael.Moylan, Seán.Munnelly, John.O Briain, Donnchadh.O'Grady, Seán.O'Loghlen, Peter J.Pattison, James P.Rice, Brigid M.Ruttledge, Patrick J.Ryan, James.Ryan, Martin.Ryan, Robert.Sheridan, Michael.Smith, Patrick.Traynor, Oscar.Victory, James.Walsh, Richard.Ward, Conn.

    Belton, Patrick.Bennett, George C.Brasier, Brooke.Broderick, William J.Browne, Patrick.Cogan, Patrick.Cosgrave, William T.Costello, John A.Curran, Richard.Dillon, James M.Doyle, Peadar S.Esmonde, John L.Fagan, Charles.Fitzgerald-Kenney, James.Giles, Patrick.

    Gorey, Denis J.Hughes, James.Keating, John.McFadden, Michael Og.McGovern, Patrick.McMenamin, Daniel.Mongan, Joseph W.Mulcahy, Richard.Nally, Martin.O'Higgins, Thomas F.O'Neill, Eamonn.O'Sullivan, John M.Reynolds, Mary.Rogers, Patrick J.

    Sections 16 and 17 agreed to.
    SECTION 18.

    I move amendment No. 11:—

    At the end of the section, to add a new sub-section as follows:—

    (3) Notwithstanding anything contained in the preceding sub-sections of this section, the Land Commission shall only be exempted from giving the notice required by sub-section (2) of Section 10 of the Land Act, 1931, where the amendment made as contemplated by sub-section (1) of this section is on its face and in fact a correct rendering and interpretation of the order contemplated by the said sub-section (1) hereof.

    The section provides that where the Land Commission propose to make, in a list of vested holdings, an amendment required by an order of the lay commissioners, they need not give the notice required. If the party concerned has any complaint, he can enter it when the vesting order is being made. My objection to the section is that when a party is served with a list of vested holdings he accepts that and thinks it is correct. He considers that that list is quite all right and quite in order. The next thing is that he gets notice of the vesting, and, having assumed originally, when he looked up the list, that everything was all right, he also assumes that everything that happens in between is equally all right, whereas in fact the position may have altered. The whole thing is over and done with before he discovers it.

    There may be cases where cantankerous people would object to everything, but I am not concerned with those. I am only concerned with the type of case that I have outlined. In that type of case the man would make no mistake on his own, but, having got the list of vested holdings, he would assume that everything was in order, and subsequent to that the commissioners, the tribunal, or a Court of Justice, might after the list and the person concerned has no notice of that. The list of vested holdings with which he had been served might be changed in the meantime and he would receive no notice of the alteration. He would be in the position of saying to himself "I will not have to bother about that, because the list is quite in order." In fact, however, that list that he originally got has been changed, and there is a danger there that an injustice could be done. I do not suppose that the giving of these notices would be a very difficult matter, and I think it should be done. My view is that, when there is any transaction in connection with land, the parties interested in it should get notice of what is being done. Of course, I know you will get people who, when they get notices of one kind or another, will object to everything. Such people exist and, I am afraid, they will always exist, but I am speaking of the perfectly innocent and bona fide people to whom, in my opinion, an injustice could be done in this matter, and I would ask the Minister to consider that point seriously.

    Mr. Boland

    I think that this amendment is not necessary. It is only when an amendment of this list is made by order of the Land Commission that appeals are made to the court, and that is done in public. It cannot be done to the detriment of a person, as has been suggested by Deputy McMenamin, without his knowledge. What we want to guard against is that, when the amendment is made, the person concerned, if he has already objected, cannot object again on the new list that is made out. There is reserved to him that final stage before the vesting order is made on which he can object. Actually he has two points on which he can object, and this will provide him with a third. It will be done as a result of an order of the Land Commission or of the Appeal Tribunal, and therefore it will be done publicly, and no right of objection is taken from him except an amendment of the list. There may be some item on the list that may be amended as a result of some of these things that are set out here, but I think there is really nothing in the point made in the Deputy's amendment.

    Amendment, by leave, withdrawn.
    Section 18 agreed to.
    SECTION 19.

    On Section 19, I suppose that these notices will not operate until after the passing of this Act—I am referring to the notices to take up possession.

    Mr. Boland

    Oh, no.

    Section 19 agreed to.
    SECTION 20.

    Amendment No. 12, which is down to this section, is out of order as being outside the scope of this measure.

    Question proposed: "That Section 20 stand part of the Bill."

    There are two points in connection with Section 20. One is that it may happen that an allottee who has been in possession for some years may have improved the land although he may be in default in connection with the payment of annuities. As a result of his improvements, he has put some value into the land and probably has improved the place generally. Is there any provision for affording that person compensation in respect of such improvements as he may have effected, say, by manuring, or otherwise adding to the value of the holding? The second point has reference to where the Land Commission write off as irrecoverable certain moneys that were due. Could the Minister tell the House what actually happens in that case? Does the Land Commission bear the loss or does it fall to the Land Commission to make good, out of the Guarantee Fund, sums which are due and owing to the Land Commission?

    Mr. Boland

    There is no statutory provision for giving compensation to defaulters whose holdings are sold, but in certain circumstances the commissioners do give some compensation, but not as a right.

    My second point dealt with arrears that are written off.

    Mr. Boland

    They are written off, but they are not taken out of the Guarantee Fund.

    Will the Minister tell us exactly what is meant here by the phrase: "The Land Commission may, with the consent of the Minister for Finance, re-sell such holding?" Does that mean, demand a price or get consideration for putting a person in as an allottee? There is a distinction drawn here. It says that the Land Commission may re-sell such holding or re-allot such parcel. Presumably; these are not equivalent terms?

    Mr. Boland

    The point is that, in the case of re-sale, that would apply to a vested holding, and the re-allotting would apply to an unvested holding.

    But that is my point. What is meant by "resale"? Does the person coming into possession pay a fine, or what exactly is meant by "resale"?

    Mr. Boland

    It is sold by public auction.

    Assuming that it is, what becomes of the proceeds, after the outgoings have been discharged, if there is a balance at all?

    Mr. Boland

    The judge allocates anything that is left over. I suppose these are cases where provision would be made for improvements.

    There is nothing in that in connection with the allocation.

    Mr. Boland

    Anything that is left over is allocated by the judge—that is, over and above the debt that is due.

    There is one point on which I should like some information. What precisely is meant by the word "holding" in this section? It seems to me that a holding is something which is held by one person from another, and a holding here would probably mean something in which the landlord is the Land Commission and the person in possession is the tenant, and he is paying interest in lieu of rent, or something of that kind. The words used here are: "Where there is any money owing to the Land Commission in respect of such holding or parcel on account of any purchase or other annuity". How can there be an annuity payable out of a holding? What precisely is the definition of a holding? It seems to me that there cannot be an annuity payable out of a holding; it can only be payable out of land which is held in fee simple, and land which is held in fee simple—that is, registered land—is not a holding.

    Mr. Boland

    I think the word "holding" is used in all the Land Acts. It refers to a farm of tenanted land.

    My difficulty is this: How can an annuity ever be payable out of a holding? It can only be payable out of registered land, and that is not a holding.

    Mr. Boland

    But it is payable out of holdings.

    Surely, if I am a registered owner of land, that is not a holding? I do not hold it from anybody.

    Mr. Boland

    Well, at this hour of night. I think we should not be going into fine points like that.

    Well, it may lead to confusion. I think that the Minister should look into the matter and see whether or not the word "annuity," should be deleted. I move to report progress.

    Progress reported; the Committee to sit again to-morrow.
    The Dáil adjourned at 10.30 p.m., until Friday, 16th June, 1939, at 10.30 a.m.