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Dáil Éireann díospóireacht -
Tuesday, 4 Jul 1939

Vol. 76 No. 14

Supplementary Estimates. - Land Bill, 1938—Report.

As amendment No. 1 is an amendment of the Title it will be taken in Committee and last. Amendments Nos. 13, 14 and 15 would increase the net cost to the State and must therefore be taken in Committee.

Will amendment No. 2 be postponed with amendment No. 1?

No. The section is already in the Bill.

But this is a new section.

That does not affect the matter.

I move amendment No. 2:—

In page 3, to delete Section 5 and substitute a new section as follows:—

Where the Land Commission is (whether before, at, or after the passing of this Act) the landlord of a dwelling-house, the Increase of Rent and Mortgage Interest (Restrictions) Acts, 1923 to 1930, shall not apply or be deemed ever to have applied to such dwelling-house at any time while the Land Commission is or was the landlord thereof.

At the conclusion of the Committee Stage Deputy Cosgrave raised a question, which was raised earlier, as to whether the Title was right, seeing that this Bill sought to amend an Act retrospectively in some respects, and I undertook to look into it. I propose to delete the section and substitute a new section. In that case it will preserve, for any person who may have got them, some rights under the Rent Restrictions Act before the Land Commission got the house, and will ensure that if the Land Commission has become the owner or the landlord this Act will not apply. I think this amendment is better than what Deputy McMenamin suggested previously.

This is in better shape, but I think the Minister might have been more generous. In some respects the new section is just as bad as the old one. There is no qualifying provision. It is very well for the Minister to tell the House that nothing drastic will be done to a tenant occupying such premises, but that is merely verbal and does not bind anyone once the Bill becomes law. I feel that it is very drastic to allow the section to remain in its present form.

Amendment put and declared carried.

Mr. Boland

May I intervene at this stage to say that on Section 6 I left the House under the impression, on the last occasion, that charges under the Church Temporalities Fund were not allowed to have priority as well as sums due to the Land Commission. That was wrong. What is provided is that they would not be retrospective— that priority would not apply retrospectively. In future, we are claiming priority for moneys due under the Church Temporalities Fund as well as other moneys due to the Land Commission. We claimed that right in the past in respect of other moneys, but not in the case of money due under the Church Temporalities Fund.

Does the section operate to alter the existing hierarchy regarding debts?

Mr. Boland

It does, for the future, in respect of tithe rent charges where we did not claim priority. From this on, they will be a charge just as other moneys that are due. It alters the position in that respect.

I take it we will have it in Committee.

The Minister asked permission to correct a statement he made which might have misled the House, when Section 6 was being discussed in Committee.

If the section passed on the Minister's representation, there must be some clarification.

On the point mentioned by the Minister, yes.

All I want is to be clear about it. Supposing a citizen of Eire has a charge upon a property which is also charged with a Land Commission annuity and a loan due to the Church Temporalities Fund, heretofore the priorities were the Land Commission, then the first mortgage granted to any citizen and then the Church Temporalities Fund. Is it proposed now in respect of persons who were mortgagees by statute to deprive them of the priority hitherto enjoyed, or is it proposed to fix all future mortgagees with notice that, if they take a mortgage on land which is charged with a loan from the Church Temporalities Fund, their first mortgage will not take precedence of that loan any more than it ever took precedence of moneys charged in favour of the Land Commission?

Mr. Boland

I do not think these mortgages had priority—the Church Temporalities had not priority over them. It was a matter for someone else to decide which of them had priority. It would be an open question. The point was that up to this the moneys due under the Church Temporalities had not priority. Other sums due to the Land Commission had, but I do not think it would follow from that, that other mortgages would have priority over Church Temporalities.

Mr. Lynch

Prior registration?

Mr. Boland

It would be for the judge or someone else to decide. I could not say. In future Church Temporalities will have the same priority as Land Commission annuities.

Are you saying to the existing mortgagees: "That priority which you have enjoyed to date, we are going to take from you," or are you saying to future mortgagees: "Be warned that if you choose to make a mortgage in future your mortgage will be postponed to a Church Temporalities loan which is now being invested with all the privileges of a Crown debt?" It is an important point. It is quite unprecedented by statute to walk in on top of a mortgage in respect of which a person has lent money and take from that mortgagee by statute the bargain he made. Take the case of some person who has advanced money on a Land Commission holding. He may, for one reason or another, have advanced, by way of a first mortgage, the balance of the capital value of that land, after deducting the redemption price of the land annuity. There is a Church Temporalities loan annexed to that land. He suddenly discovers that, as from to-day, what is a valuable mortgage no longer has any value at all.

Take the case in which a farmer is charged with nothing but the church loan. A mortgagee comes in and taking priority, as he believes, over the mortgage connected with the other loan, he advances the full value of the land. He is now informed by statute that we are taking from him the security he got in accordance with the statute law of this country, the security the State itself registered; that we are simply sweeping that away and are passing over to the State the assets he held. It is well to bear in mind that a mortgagee—I think I am right, but I speak subject to correction—is the owner of the property. The mortgage is an instrument of conveyance. The property is conveyed by the mortgagor to the mortgagee with an equitable provision recognised by the law of equity and in the event of the mortgagor paying his debt the mortgagee will be constrained to reconvey the property back to him.

Section 6 here purports to go to the mortgagee and take from him property that has been actually conveyed to him and transfer by seizure that property to the Church Temporalities Fund. That is an entirely revolutionary principle. I cannot think of any statute that has been brought before this House which has enshrined a principle of that kind. In the strict theory of the law, this is barefaced expropriation of property in favour of the State. The State is walking in and taking from a man a material asset that he now has and appropriating it to the State without any compensation, good, bad or indifferent. The Minister should indicate if there is any statutory precedent for that procedure. Has he adverted to the fact that this is the expropriation of property from its present owner and its vesting in the Government? It is not only, to my mind, bad in itself, because it is unjust, but it creates a most dangerous precedent. I think the Minister ought to tell us whether he can point to any anterior precedent and whether he proposes to stand over the establishment of such a precedent as Section 6 appears to enshrine.

Will the Minister say if this is to be retrospective or not? Will it date from the passing of the Act or be retrospective?

Mr. Boland

It is not retrospective, not as far as Church Temporalities are concerned; but as far as mortgagees are concerned the position would be that they would have to take second place. This whole business arose out of the case of Gilligan and the Minister for Industry and Commerce and the Minister for Defence. It was a case in which there was doubt as to whether money due to the Crown had priority, whether we had the same right as the Crown in a former instance. It was just in case a matter of that kind might again arise, where the Land Commission would claim priority, that we brought in this section in order to safeguard the position. Up to this the Church Temporalities did not get priority. As they are State charges and the money is to go into the Exchequer, I cannot see why they should not have the same priority as any money due to the Land Commission.

There is no objection in principle, whatever objection there may be in general, but an important point arises if the Minister is to say to future mortgagees: "Mortgage here at your peril". Another aspect to be considered is that you may go behind an already registered mortgagee and alter the security. I think the Minister's legal advisers will tell him that that is, in law, the expropriation of the mortgagee without compensation. The mortgagee is the owner of the hereditament subject to his equitable obligation to return it to the mortgagor in the event of the payment of the debt. You now propose to expropriate it, and I put it to the Minister that there is no precedent for such a procedure. There is ample precedent for saying hereafter: "Mortgage at your peril". There is no precedent that I know of for the procedure suggested in the section. If there is, I would be glad if the Minister would quote it for me.

Mr. Boland

The only thing that I can say is that I do not know of any mortgage which would have priority. Deputy Dillon is assuming that some private mortgage would have priority over a charge like that. I do not think there would be any such thing. A judge might decide to give priority to one person's mortgage over Church Temporalities.

Is the Church Temporalities registered as a mortgage at all?

Mr. Boland

It is a tithe rent; it is State revenue, and I imagine it would at least have as much chance of getting priority as any other mortgage would have on land.

But the question that arises there is that when the land is sold or disposed of, there comes the question of marshalling the various charges that must be discharged out of the proceeds of the sale. When that happens, the first debts to be discharged, I take it, are the Crown debts, now transferred to the Minister. Then the question arises as to whether the first mortgage on the Church Temporalities Fund takes priority. As I understand it, there has been a judgment in the courts depriving the Church Temporalities Fund of what they had enjoyed hitherto. It seems that certain prudent people have taken first mortgages on such land, saying to themselves that the first mortgage gave them an equality with the Church Temporalities Fund. If that is so, you could not set that forth by statute, although, I admit, that it would be legitimate to say that, henceforward, the Crown debts will come first and that, amongst them, will come debts for the redemption of tithe rent charges.

I may say that I am prepared to give the Minister powers in this Bill to act retrospectively with regard to certain matters, but surely the Minister will agree that it will be a wrong thing to take away the rights of citizens, particularly where, perhaps, the sum of money concerned is small, and where, although the amount concerned is small, people are solely dependent upon it. I do not think the Minister intends that. The Minister seeks to put in this sweeping amendment in this Bill, but I think that this is a bad time of the day to come in with such an amendment.

Mr. Boland

With regard to the point the Deputy has mentioned, perhaps I left the House under a wrong impression when this section was being dealt with. Otherwise, I am sure, the Deputy is aware that we would have put in a different thing. I am not putting in anything new, and I do not want the Deputy to go off on the wrong track in that regard.

If the Minister had mentioned this matter on the Committee Stage of the Bill, we might have had a different impression.

This whole question was raised on the Committee Stage.

Mr. Boland

Yes, I am aware of that, but this happens to be a rather complicated matter.

I agree that it is complicated, but surely the Minister will admit that the amount of money involved here is not worth while sacrificing the section for.

The section is not before the House.

Mr. Boland

I think that this whole discussion would not have arisen if I had not tried to meet the points put forward.

Well, Sir, since, by your indulgence, we have been allowed to put our views, and since the Minister has tried to meet them, might I suggest that the Minister might put these views to the Seanad, either on the Second Reading or on the Committee Stage of this Bill when it comes before the Seanad? I do not know any other way of dealing with it at the moment.

Mr. Boland

Well, I am advised that it is almost inconceivable that any other charge would have priority to a tithe charge. I wanted to meet the various points, but I am advised that it is most unlikely and, in fact, almost inconceivable, that any charge would have priority to a tithe charge, and the tithe charges have existed from the Sixties.

Yes, but is there not a judicial decision to the effect that the tithe rent charge, for purposes of redemption, is not chargeable in the same way as the land annuities for purposes of redemption; and is it not ambiguous whether, in the event of the redemption of several charges on a holding of land, the tithe rent redemption would take precedence of the redemption of a first mortgagee's interest?

Mr. Boland

I am told that they always have got priority vis-a-vis private mortgagees.

But was not this, or a similar case, raised in the courts recently?

Mr. Boland

I understand that a decision was given in one particular case—I think it was in the House of Lords—where there was a question of a debt being statute-barred; and it was held there that they had not got priority. That, however, was another case. The actual fact, and the actual practice, has been that they always got priority, and that is what we are providing for in the Bill now.

Was there not a decision given some time ago by Mr. Justice Gavan Duffy, in a case at the suit of, I think, the Department of Defence and the Department of Industry and Commerce, in which it was set forth that certain categories of debts were to be treated as Crown debts, and so on? Now, so far as I am aware, where the debts are Crown debts, their Crown quality, so to speak, gives them unquestioned precedence, but if the tithe rent charges have not got that Crown quality, their precedence over other mortgagees' charges is not so clear, and it may well be that it may be determined that the fact is that their priority is regulated like other charges by the order of their registration. In that event, I suggest that it is wrong to alter that order retrospectively, whatever you may desire to do henceforward.

Mr. Boland

In this particular case to which I have referred, it was not a matter concerned with the Land Commission, but a case of liquidation in which the Department of Industry and Commerce was concerned. In that particular case the Department of Industry and Commerce claimed priority over others, and the judge held that the Revenue Commissioners, and only they, had the privilege of the Crown in this matter. It is because of that, that we want to have assured to the Land Commission what they always had. In the case to which I have referred, the judge held that it was only the Revenue Commissioners who had the right in this case. It had nothing to do with the Land Commission, but was a case of liquidation in connection with the Department of Industry and Commerce, and the question there arose as to priority of claim.

In view of the difficulty that has arisen, and seeing that there does not seem to be any other way of dealing with it at the moment, I would ask the Minister if he would be good enough to be as explicit, either on the Second Stage or the Committee Stage of this Bill, when it comes before the Seanad, as he has been here, in case it might be desired by any interested parties to introduce an amendment, in case of any oversight.

Mr. Boland

I shall do that.

Very good.

Mr. Boland

I move amendment No. 3:—

In page 8, line 60, section 14 (2), before the word "the" where it firstly occurs, to insert the words "Subject to the restrictions imposed by the next following sub-section of this section".

Amendment agreed to.

Mr. Boland

I move amendment No. 4:—

In page 9, before section 14 (3), to insert a new sub-section as follows:—

(3) The powers imposed by the next preceding sub-section of this section on the Minister shall be subject to the overriding restriction that the concurrence of at least two Lay Commissioners shall be necessary for the doing of any thing which is an excepted matter for the purposes of Section 6 of the Land Act, 1933.

This amendment meets the point raised by Deputy Cosgrave.

Mr. Boland

I undertook, on the Committee Stage, to set out the matters in connection with which there would not be less than two Lay Commissioners. This amendment represents what I undertook to do on Committee Stage and I think it will be accepted.

It is an improvement, but it is not all that we want.

Mr. Boland

I do not know what more could be expected in a matter of this kind.

At first glance it appears to meet the objections that were raised. Is this not the case where it was determined in the High Court that the concurrence of the six Lay Commissioners was necessary to do certain things?

Mr. Boland

Yes.

The Minister thought to meet that situation by making one Lay Commissioner adequate for the purpose. Deputy Cosgrave objected that there should be more than one.

Mr. Boland

One was intended to deal only with routine matters. I am laying it down definitely now that the concurrence of at least two Lay Commissioners shall be required for certain purposes.

We now require the concurrence of two Lay Commissioners for certain specific purposes other than ordinary routine matters?

Mr. Boland

Yes.

Amendment put and agreed to.

Mr. Boland

I move amendment No. 5:—

In page 9, line 9, Section 14 (3), before the word "so" to insert the word "lawfully".

Amendment put and agreed to.

Mr. Boland

I move amendment No. 6:—

In page 9, before Section 15 (b) to insert a new paragraph as follows:—

(b) an appeal shall lie to the Supreme Court from the decision of the Appeal Tribunal on an appeal under the next preceding paragraph of this section.

There is a complementary right of appeal now given to the citizen to that given to the Lay Commissioners?

Mr. Boland

Yes, upon a point of law.

Question put and agreed to.

Mr. Boland

I move amendment No. 7:—

In page 22, before Section 39 (1), to insert a new sub-section as follows:—

(1) It is hereby declared and enacted that the Land Commission have and shall have power to resume, in whole or in part, for any one or more of the following purposes, any holding vested under the Land Purchase Acts in them or in the late Congested Districts Board for Ireland, that is to say:—

(a) for the purpose of relieving congestion as defined in sub-section (4) of Section 73 of the Land Act, 1923;

(b) for the purpose of the provision of land for resale to any of the persons or bodies mentioned in Section 31 of the Land Act, 1923, as amended by sub-section (2) of Section 33 of the Land Act, 1933;

(c) for the purpose of increasing the food supply of the country;

(d) for the purpose of improving or rearranging the holding.

This amendment goes much too far and, in my opinion, paragraphs (c) and (d) should be deleted. Paragraph (c) gives the right of resumption "for the purpose of increasing the food supply of the country" and (d) "for the purpose of improving or rearranging the holding." In my opinion, a provision such as (c) should not be inserted in a Land Bill. There should be some other machinery for dealing with matters of that kind. With regard to paragraph (d), I think the duty should not be thrown upon the Land Commission of fixing up fields and cutting off corners. We have one Department of the State for cutting off corners and putting them on again. That should be sufficient. These farms have been there for centuries, marked out as they are at present. I do not, of course, object to the Land Commission marking out new holdings on big estates which they take over, but I think this paragraph is inserted to deal with farms that have been already demarcated. I do not know what can have inspired these paragraphs or what is the justification for them. In particular, I do not see how the Land Commission is going to take steps to improve the food supply of the country.

Mr. Lynch

I do not agree with Deputy McMenamin as far as paragraph (d) is concerned. I consider that paragraph (d) is absolutely necessary. There are very many cases of holdings throughout the country where a certain amount of "striping" is necessary. The boundaries of some farms are ridiculous as they stand and I think the Land Commission should be given this power. I think, however, that paragraph (c) is pure eyewash. It is a matter for the Minister for Agriculture and not at all for the Minister for Lands. I think the Minister should not try to insert provisions like that which have no meaning in fact and which deal with powers of a rather unusual kind.

I shall vote against this amendment. It is perfectly true that conditions exist in many parts of the country which would appear to justify paragraph (d). I have had the experience myself that when the railway company were making their line through my land they cut off half a rood from the remainder of the holding. It would be a great source of relief to me if the Land Commission would come along and acquire that half rood because it costs me much more to keep the half rood fenced than the land is worth. It would be worth something to the man whose land adjoins but he will not buy it because he thinks his donkeys will graze on it in any case. On the other hand, I am extremely reluctant to widen the scope of the Land Commission's authority to acquire land which has become vested in the tenant purchaser for the simple reason that every such widening of the

Land Commission's power further confuses the public mind in rural Ireland on the question of security of tenure. I shall vote against this amendment, and challenge a division on it, on account of paragraph (c), because it is a pernicious, poisonous kind of paragraph which is pregnant with every danger. If you adopt a paragraph such as this—and to many people it may appear a perfectly innocuous clause—the security of every man's tenure in this country becomes the plaything of political Parties. I may take one view as to what type of husbandry is best calculated to increase the food supply of the country, but the Minister for Agriculture may take a wholly different view. Deputy Norton, if he were Minister for Agriculture, might take yet another view and my security of tenure in my farm would depend exclusively on what the passing view of the existing Minister for Agriculture might be as to what is the best way to increase the food supply of the country. If he happened to disagree with my view on that matter, he could turn me into a cobbler, take my land from me and do what he pleased with it. The Minister must see himself that to make that the excuse for taking back a person's land, in respect to which he believes he has absolute security of tenure, is recklessly irresponsible.

I would be prepared, reluctantly, to pass over paragraph (d). It is not the kind of land law that I like at all but it is generally in the spirit of the land code as established by the 1933 Land Act and I do not believe in heel-tapping of principles. Pro tem, for the present, we have been beaten on the issue of the principle involved in the 1933 Land Act. That being so, we have got to accept it and I do not think that sub-paragraph (d) goes beyond that principle. I think paragraph (c) most clearly does and adds a wholly new and immeasurable reason for compulsorily acquiring land. If the Minister indicates his readiness to withdraw that paragraph (c) then I will not vote against this amendment, much as I dislike it. I direct the Minister's attention to the wording of it. If he will turn to the first page of the amendment paper he will see that the amendment reads as follows:—

It is hereby declared and enacted that the Land Commission have and shall have power to resume, in whole or in part, for any one or more of the following purposes, any holding vested under the Land Purchase Acts in them or in the late Congested Districts Board for Ireland...

Does that mean that these powers of acquisition relate only to land that has not yet been vested in the tenant purchaser? This only relates to that land held for the period while the tenant purchaser is paying rent in lieu of annuity? I would like to have that point clarified.

Mr. Boland

This whole Section 39 deals with resumption cases. There was an outcry from the Opposition during the Committee Stage because it appeared from the original drafting of the Bill that we were not going to state the authority under which we were acting or the purposes for which we were acquiring land. The objection I had to that was that I objected to specifically mentioning the precise section and the precise purpose for which these lands were to be used. We are now proposing that this is to be the section which will be quoted. In that respect, we are codifying the law anyhow, taking all the different sections under which land could be acquired and instead of referring any Deputy to several other Acts that have been passed, this is the authority now under which we are proceeding and the purposes are set down. These two clauses which are objected to are taken out of existing legislation, not out of the 1933 Land Act but the 1923 Land Act. I will read it for Deputy Dillon.

It astonishes me.

Mr. Boland

Deputy Lynch must have forgotten it too. Section 29 (1) of the 1923 Land Act reads as follows:—

The Land Commission shall have, and may exercise all or any of the powers exercisable by them as respects holdings on estates vested in them, including powers of resumption of the whole or part of the holding, whether the holding is or is not part of an estate or subject to a judicial rent; and in exercising the powers aforesaid shall have regard to the necessity of relieving congestion, the desirability of increasing the food supply of the country, and the manner in which the holdings have been used.

I did not think we would have had any objection from the opposite side if we quoted the very phraseology of the 1923 Act. I thought we were on fairly safe ground in doing that.

I am happy to think that I had neither hand, act or part in passing the 1923 Land Act.

Neither had I. Even if I had, a man that never admitted a mistake never did anything. I think the Minister might cut this short by excluding (c) and (d) from this section. They are not relevant to this Land Bill. The Land Commission is not the Department for dealing with this matter. I think the Minister will admit that. The Department of Agriculture can take power to do it. We have gone very far in including the Increase of Rent and Mortgage Interest (Restrictions) Acts, in the Title of a Land Act. Let us not make ourselves absolutely ridiculous. Talk about an Irish stew, this Bill will surely be an Irish stew. This is entirely a matter for the Department of Agriculture, and I take it, in cases of emergency, it will be dealt with by the Department of Agriculture, not by the Land Commission. Why should we do things like that? One job is given to you to do, that is, to complete land purchase in this country. You have extended that to relieving congestion and dividing up land. Surely that is enough. The rest should be left to the Department of Agriculture. I think paragraph (c) should be deleted immediately. I think the Minister should agree to that and not waste time talking about it. Deputy Lynch supports (d). I do not mind if everybody in this country supported (d) and agreed to it; I think it is wrong. I consider that it would create confusion. It looks quite simple on its face. You are dealing with land that has already been taken, in respect of which vesting proceedings have taken place and the maps set forth, and are you going, for the sake of one little corner of a place to create disorder throughout the country in every acre of land where a patch of that kind exists? That should have been attended to at the time. If the railway company went through Deputy Dillon's field Deputy Dillon should have seen to it at the time.

Mr. Brennan

But they did not.

This is not the time to come along. Everybody in this country will need a Bill. That is what we are coming to. In to-day's paper there was an account of a meeting down in Meath last night at which it was stated that the local Fianna Fáil club had submitted a list of applicants for land to the Land Commission.

The Committee is dealing at the moment with amendment No. 7. We are not in Committee, and the Chair has been lenient to the Deputy who has spoken twice on this amendment.

I know we are not in Committee.

Neither to-day's paper nor the opinions of a Fianna Fáil club in Meath are relevant to this amendment.

They think they are.

But the Chair does not.

And they have, apparently, been waiting for this Bill and said so. I think the Minister should delete sub-paragraph (d) also. There are enough uncertainties with regard to land in this country without introducing this. I think there ought to be an end to all this chopping and changing.

I think the Minister not alone ought to eliminate sub-paragraph (d) from the amendment but should send the whole amendment to the Seanad. My objection to the amendment is much the same as the objection I had to the original intention of the Bill, that was, to make the resumption of bona fide purchased tenant land easier. This certainly puts other difficulties in the way of a tenant defending himself against the resumption of his land than there were in the previous Act. We objected to the Land Commission having power to say that they would take land without giving any particular reason. The Minister said he would rectify that to some extent by bringing in an amendment on the Report Stage. He has brought it in and to me it is almost as objectionable as the original section. If the Land Commission resumes land now, they do not give any reason, beyond the reasons set out here—a conglomeration of reasons, two of which, since the Committee Stage the Minister and his officials have had to ramble through the various Land Acts to find—or invent. Whoever heard of land being taken for the purposes of (c) or (d)? I do not know whether Deputy Lynch did or not, but I never heard of land being taken or resumed for those particular purposes. The objection that I have is that it leads the way to resumption and puts greater difficulties in the way of the tenant. The Minister takes land to relieve congestion, and when a defence is made, if the Minister or the Land Commission find that they have a bad case on that particular point, all they have to do is to say: “We proceed under (b)”, and if (b) makes a particularly bad case they say: “We are going to take it for the purpose of increasing the food supply of the State”, and, in the possible event of all three failing, they will say that they are going to square the holding. The poor unfortunate tenant is in a quandary and does not know how he should defend himself.

It is not easy to understand—

The Deputy is intervening a second time.

It is to ask a question. I am still somewhat puzzled regarding the form of the amendment. It refers to a holding vested under the Land Purchase Acts in the Land Commission or in the late Congested Districts Board for Ireland. I understand that the procedure is, that the Land Commission acquire land, they then divide it up and establish tenants on the land who pay rent in lieu of annuity. After ten years these tenants have their holdings vested in them, with retrospective benefit regarding land annuity, and with the annuity fixed to be paid annually thereafter in reduction of the capital sum outstanding. Are we to understand that this section applies only to tenants of land who are paying the Land Commission rent in lieu of annuity, or does it apply also to persons whose land has been vested in them subject to a land annuity?

Mr. Boland

It is called "acquisition" when it is vested land not subject to an annuity. This is land for which one may be paying a purchase annuity but which has not yet been vested; unvested land is what is provided for in this section.

And any tenant whose holding is vested in him subject to a land annuity—that is acquired land?

Mr. Boland

When it is unvested it is resumed.

It is much the same procedure as that of acquisition from a landlord.

Mr. Boland

Where it has not yet been vested.

I understand perfectly. This section applies to the unvested tenant?

Mr. Boland

Yes.

Question put and declared carried.

Mr. Boland

I move amendment No. 8:—

In page 22, line 37, Section 39 (1) (a), after the word "resume" to insert the words "under the first sub-section of this section".

This amendment means that the authority will now be quoted. As I have already pointed out, dealing with two points that were raised, two amendments were withdrawn on Committee Stage. I undertook to reconsider those two amendments—one was No. 17 and the other was No. 19—in order to see how I could mention the powers and the purposes. This will give the power under which we are proceeding.

Amendment agreed to.

Mr. Boland

I move amendment No. 9:—

In page 22, Section 39 (1), to delete paragraph (b).

This amendment proposes to delete the paragraph to which objection was raised.

Amendment agreed to.

How far does Deputy Finian Lynch consider that amendment No. 10 is met by amendment No. 12?

I will formally move the amendment, at any rate. I move amendment No. 10:—

In page 22, Section 39 (1), after paragraph (c), to insert two new paragraphs as follows:—

(d) if, on consideration of such petition by the Lay Commissioners under the immediately preceding paragraph of this sub-section, it is shown that the person appearing to be in occupation of the holding occupies and uses it in the same manner as an ordinary farm in accordance with proper methods of husbandry, the Lay Commissioners shall order that such holding be not resumed;

(e) where, prior to the passing of this Act, the Land Commission have applied for and been granted permission to resume such a holding as is referred to in the immediately preceding paragraph of this sub-section, and such holding has not yet been taken over from the owner thereof by the Land Commission, then the Land Commission shall not proceed with the resumption thereof.

I think the Minister has gone quite a long part of the road to meet me and I will go quite a distance of the road to meet him, too. I think that his amendment would be perfectly satisfactory if he made a small amendment in it. It says in amendment No. 12 that "where the Lay Commissioners are satisfied" and so on, that the holding is being worked, "notwithstanding anything contained in the foregoing provisions, the Land Commission shall not resume such holding or any part thereof for any purpose other than the relief of congestion in the locality"—I have no fault to find with that—"or the provision of sportsfields, parks, pleasure-grounds, or playgrounds for the inhabitants of villages, towns or cities"—I have fault to find with that—"or for schools, or the provision of gardens for schools"—I have no objection to that. If the Minister would say that he would not take any well-worked holding that is giving a good deal of employment except for the purposes of the relief of congestion or the provision of schools or school gardens, I would accept his amendment instead of my own.

My own amendment was based on the fact that the Minister said that it was not the practice nor the intention of the Land Commission to resume any holding which was properly worked. I told him in the Committee Stage that that was no use to us. The mere saying of it was of no use, and it was because of that that I put in this amendment. My amendment goes very far—quite much further than his as it is. It does not allow any resumption where the land is well-worked. I am prepared to meet the Minister if there is a general case of congestion in a locality or land is required for the purpose of providing schools or school gardens; I will be quite prepared to agree with him that no matter how well worked the whole thing was it should be liable to be resumed. Of course the second portion of my amendment was following the Minister's bad example, and that of another Minister, by giving retrospective effect to the first portion of my amendment. I wanted to secure that, where certain holdings have been undoubtedly well worked, in spite of the fact that they had been resumed but not yet taken over, the Land Commission would withdraw any further proceedings for their resumption. With regard to that portion of my amendment I am going to withdraw it entirely, because there is no provision for that at all in the Minister's amendment; but, since the Minister has gone so far to meet me I am prepared to go a good distance to meet him, and, if he would consider wiping out those provisions for sportsfields, parks, and so on, as a ground on which well-worked farms could be resumed, I am prepared to withdraw my amendment entirely.

Mr. Boland

I will look into that. As the law stands at present in the case of acquired holdings that can be done. The Deputy knows that?

Mr. Lynch

I do.

Mr. Boland

I do not want to get the Deputy to withdraw his amendment under any misapprehension, but I would like to look into the matter myself. I am not promising, however, that I will agree to make that amendment.

Mr. Lynch

If the Minister would look into the matter between this and the time when the Bill will come up for discussion in the Seanad, that would be suitable.

Mr. Boland

If I do it in this case I will have to do it in the case of acquired land also.

I would like the Minister to consider that this provision is likely to be abused. We are a very imitative people. Whenever a local villager does a certain thing everyone else imitates him.

I assume that amendments Nos. 10 and 12 are being discussed together.

This is likely to be abused. Claims are likely to be made and a great deal of annoyance caused. I doubt if there is any great necessity for additions to the playgrounds we already have. They have always been able to find sufficient ground, so far, with little trouble, and now you have parks pretty well everywhere. We are a very imitative people and when a claim is made in one place, claims will also be made in other places, and it will lead to a lot of unnecessary agitation. You will have a boom to-day and some land will perhaps be taken, and then the thing will die down as it has died down before. I think it is an unnecessary provision.

Mr. Boland

I will look into it.

Mr. Brennan

Is this the position, that we are dealing with resumptions only?

Mr. Boland

Yes, with resumptions only.

Mr. Brennan

That is, with non-vested land, but if the lands happen to be vested, they can be acquired for any of these purposes.

Mr. Lynch

That is the existing law.

Mr. Brennan

We are taking certain precautions so that lands over which the Land Commission have certain rights, much closer rights than they have over vested lands, cannot be resumed or taken, but we are taking no precautions whatever in respect of a tenant who is vested in his holding.

Mr. Boland

What we are really doing is putting them on the same footing and giving these the same protection as that which vested holdings have.

Mr. Brennan

My point is: are we giving them the same protection? There is no similar amendment relating to acquisition.

Mr. Boland

That is the exact position with regard to acquisition. We are making it the same for resumption and giving the same protection.

Amendment No. 10, by leave, withdrawn.

Mr. Boland

I move amendment No. 11:—

In page 23, Section 39 (1), (d), to delete all from the word "a" in line 4, to the end of the paragraph and substitute the words "such one or more of the purposes mentioned in sub-section (1) of this section as shall be specified in that behalf in such certificate."

This follows from amendments Nos. 7, 8 and 9.

Amendment agreed to.

Mr. Boland

I move amendment No. 12.

In page 23, before Section 39 (4), to insert a new sub-section as follows:—

(4) Where the Lay Commissioners (other than the members of the Appeal Tribunal) are satisfied in respect of a holding that, having regard to the area, situation, and character of such holding, the amount of congestion and of unemployment existing in the district in which such holding is situate and in the country generally, and the desirability of increasing the production of food supplies, an adequate amount of agricultural products is being produced on such holding and an adequate amount of employment (including in such amount the employment of any relatives of the tenant of such holding who are permanently employed thereon) is being provided on such holding, then and in such case the following provisions shall apply and have effect, that is to say:—

(a) notwithstanding anything contained in the foregoing provisions of this section, the Land Commission shall not resume such holding or any part thereof for any purpose other than the relief of congestion in the locality in which such holding is situate, or the provision of sportsfields, parks, pleasure-grounds, or playgrounds for the inhabitants of villages, towns or cities or for schools, or the provision of gardens for schools;

(b) if—

(i) the Land Commission resumes such holding or part thereof, and (ii) the tenant of such holding or the wife or husband of such tenant resides on such holding or in the immediate neighbourhood thereof, and

(iii) neither such tenant nor such wife or husband is the owner of land (other than such holding or the part thereof resumed) the market value of which exceeds £2,000, and

(iv) such tenant, within the prescribed time and in the prescribed manner, requires the Land Commission, if part only of such holding has been resumed, to resume the whole of such holding and (whether such holding is resumed in whole or in part) to acquire all (if any) other land held or belonging to him in the neighbourhood of such holding and, in any case, requires the Land Commission to provide him with a new holding.

then and in such case the Land Commission shall comply with such requisition and shall provide such tenant with a new holding which the Lay Commissioners (other than the members of the Appeal Tribunal) consider to be suitable for him and also consider (subject to a right of appeal to the Appeal Tribunal whose decision shall be final) to be of not less market value than the market value of such holding and the other land (if any) acquired in pursuance of such requisition or the sum of £2,000, whichever is the lesser;

(c) where the Land Commission provide such tenant with a new holding in pursuance of the next preceding paragraph of this sub-section, the amount (if any) by which the resumption price of such holding together with the price of the other land (if any) acquired from such tenant in pursuance of the said paragraphs exceeds the market value of the said new holding so provided shall be payable in land bonds.

Amendment agreed to.

In Committee for amendment No. 13, as it would increase the net cost to the State.

Mr. Boland

I move amendment No. 13:

In page 25, before Section 45, to insert a new section as follows:—

(1) Where, in the case of a holding purchased under the Land Purchase Acts by the tenant thereof, part only of the purchase price was advanced by the Land Commission or, in the case of a purchase under the Landlord and Tenant (Ireland) Act, 1870, by the Commissioners of Public Works in Ireland and the residue of the purchase price was secured by a mortgage or charge given by the purchaser, and such holding was vested in the purchaser subject to such mortgage or charge, such mortgage or charge shall be, and be deemed always to have been, a charge to which Section 39 of the Land Act, 1923, applies, and accordingly application may be made under the said Section 39 for the redemption and fixing of the redemption price of such mortgage or charge and the provisions of the said Section 39 shall apply to such application and to the redemption price fixed in pursuance of such application.

(2) An application may be made after the passing of this Act under the said Section 39 of the Land Act, 1923, in respect of any such mortgage or charge as is mentioned in the foregoing sub-section of this section notwithstanding that an application under the said Section 39 in respect of such mortgage or charge was made and refused before the passing of this Act.

Mr. Lynch

This is Deputy Kennedy's case in Castlepollard?

Mr. Boland

The case where only part of the purchase money was advanced. Deputy Kennedy mentioned it at the beginning of the Committee Stage, as well as Deputies on the opposite side.

Amendment agreed to and reported.

Mr. Boland

I move amendment No. 14:

In page 26, before Section 45 (2), to insert a new sub-section as follows:—

(2) Where—

(a) a purchase annuity is set up (whether before or after the passing of this Act) in consequence of the granting of an application made under Section 44 of the Land Act, 1931 (as amended by subsequent enactments) before the passing of this Act solely by virtue of paragraph (c) of Section 43 of the Land Act, 1936, and

(b) the applicant on such application was the proprietor of the holding to which such application related, and

(c) such holding had been vested in a purchaser under the Land Purchase Acts subject to a superior interest,

then and in every such case, the purchase annuity so set up shall, notwithstanding anything to the contrary contained in the said paragraph (c), be revised under Part III of the Land Act, 1933, as from the appointed day.

Mr. Lynch

This deals with the case I raised, I think?

Mr. Boland

Yes.

Mr. Lynch

It is a case in Deputy MacEoin's constituency. The Deputy asked me to raise the matter and also to express his gratitude to the Minister for the very generous way in which the point has been met.

Mr. Boland

These people were lucky because they are getting it both ways. They are getting two benefits.

Mr. Lynch

I agree, they are.

Amendment agreed to and reported.

Mr. Boland

I move amendment No. 15:—

In page 27, before Section 48, to insert a new section as follows:—

(1) Where, on an application under Section 44 of the Land Act, 1931, as amended by subsequent enactments (including this Act) the Land Commission is satisfied that the parcel of land to which such application relates is held by the applicant subject to a perpetual yearly rent-charge which was created by a grant or conveyance in fee simple of such parcel of land and was, by such grant or conveyance, charged on such parcel of land in favour of the person who was the grantor in such grant or conveyance, the said Section 44 as so amended shall apply in relation to such parcel of land as if such grant or conveyance were a fee farm grant under which such parcel of land is held and such perpetual yearly rent-charge were a fee farm rent reserved by such fee farm grant.

(2) An application under Section 44 of the Land Act, 1931, as amended by subsequent enactments (including this Act), may, after the passing of this Act, be made and granted under and by virtue of the foregoing sub-section of this section notwithstanding that the parcel of land to which such application relates was the subject of an application under the said Section 44, as so amended, which was made before the passing of this Act and was refused on the ground that such parcel of land was not held under a fee farm grant or any such lease as is mentioned in paragraph (a) of sub-section (1) of the said Section 44.

Mr. Lynch

This amendment is in respect of the amendment I withdrew and deals with the case of the rent-charge on fee simple land?

Mr. Boland

Yes.

Mr. Lynch

This meets my point entirely, and I am very much obliged to the Minister for his good offices in the matter.

Amendment agreed to and reported.

Mr. Boland

I move amendment No. 16:—

In page 28, line 48, Section 51 (1), after the word "landlord" to insert the words "or the tenant".

Mr. Lynch

This is explanatory. I raised the question as to whether "landlord" meant "immediate landlord".

Mr. Boland

Yes. We are putting in the words to make it clear.

Amendment agreed to.

On the new Section 49, the Minister promised to look into a matter which I raised, that is, the redemption of drainage maintenance charges, and, as the Minister has not put down any amendment, I presume he has forgotten all about it. The Minister did candidly confess that he had not considered the section, but said that he would look into the question before Report Stage.

Mr. Boland

I have looked into it since. The position was that these drainage maintenance charges were held to be redeemable only subsequent to 1936, and it was intended that that should be the case in all cases. To make that clear, we brought in this section. I have looked into the matter since and I think it only right that, where a drainage system got out of repair and a sum of money had to be advanced to put it right, that money should be redeemed in regard to land on which there is a drainage charge— not a drainage rate, which will be kept on, I suppose, as long as a drainage system has to be kept going. When land is taken over, that is a charge on it. Other charges have to be redeemed and I think a drainage charge is a proper charge, which should also be redeemed. I did not see that there was any necessity to amend the section. The position was that I could not very well raise the matter myself unless some Deputy——

Reminded you.

Mr. Boland

Yes, reminded me. If I had decided to do anything, there would have been an amendment from me, but, as I say, I have looked into it and I do not see any necessity to amend the section.

Mr. Brennan

I do not think the Minister is reasonable. Take the case of a river in the vicinity of Roscommon, which the Minister will know. A drainage scheme in connection with the Hind river had to be restored under the 1924 Act away back in 1927. A certain sum of money was spent at that time as a kind of capital charge for the benefit of the land. The repayment was fixed over a certain number of years which was supposed to cover the annual benefit to the occupier. That annual benefit was over a certain number of years and was fixed at a very small sum per annum, because that is what the benefit was worth. Take the case of some of the tenants along that river. Suppose you were resuming one of the holdings to-morrow. The tenant has had only six years' benefit out of the drained land, whereas, in the opinion of experts, it would run for 35 years before he would have his own back from it. Is it fair to ask that man to redeem the charge? He has not had the benefit, but you say to this man, for whose benefit the work was done, but who has not yet reaped the benefit: "This is a liability which you must discharge and you must redeem the whole annuity, even though you have not got the benefits."

Mr. Boland

Does Deputy Bennett not see that the land is more valuable and that he will get a bigger price than he would if the work were not done?

I think the Minister did not appreciate my point. My point, as to the maintenance charges pure and simple with which this section deals, has not been realised by the Minister. Outside of paying back the capital there is such a thing as maintenance charges, that is for completing the work year by year. In the future say I am paying maintenance charges year by year. Is it fair if the Land Commission resumes my land to-morrow that they should make me redeem the charge for work that is to be done in the next 50 years?

Mr. Boland

I am afraid the Deputy is confusing two things. One is the maintenance charge rate and the other is the repayment of the capital sum advanced to put the drainage systems which have got out of repair into repair. We will have to go on all the time keeping the drainage area or system right. Anyway the land after it has been drained is of more value and will fetch a higher price than it would fetch before the drainage. Theoretically the enhanced value of the land is greater than the amount that has been spent on the drainage. That is generally the case. In valuing the land this value will be added to the added increment that is accruing to that land because of the drainage.

Mr. Brennan

I admit there is something in that point but I think that the word "maintenance" used here is the cause of the confusion. In ordinary administration the words "maintenance charges" are not used down the country. Maintenance is always regarded as what is accruing from year to year. It is no wonder therefore that Deputy Bennett would see confusion in the section.

What is the point in this case? Reconstruction and restoration would be one thing where a drainage scheme was in existence, but where the system needed reconstruction and restoration that is quite a different thing from maintenance. Maintenance would mean restoration to keep it in proper order. If it needed restoration the fault was due to the Land Commission originally. This was property of the State and the Land Commission should have seen that the security of the State was being deteriorated. They should have asked for powers, but they did not ask for powers to deal with that matter. This should now be a State liability. The trouble generally arose in this way:— there is a water-way going through three or four or a half dozen holdings. Any one of these holders who is careless enough can dam the drainage at any particular point. I mean dam not damn. Any one careless man amongst these holders can ruin that particular system if he chooses. Neglect at any one particular point will ruin the whole system back of it. This is all due to the fact that provision was not made for this by the Land Commission. When the landlords' supervision was lost then the Land Commission became the guardian of the property. The Land Commission did not ask for the measures required to keep that drainage in a proper condition of maintenance. Therefore I say that anything that is needed now is a responsibility of the State because it is due to their neglect. There is no question at all about that because the individual farmer who had land in such a drainage area could not help himself. He had no power to go into his neighbour's land and force his neighbour to keep the drainage system as it should be kept. If that thing is traced back to its source it will be found that the Land Commission and not the farmer is to blame.

Better leave the last word to Deputy Gorey. There is no basis for discussion before the House just now.

Mr. Boland

The term "maintenance charge" is a statutory term, but it is undoubtedly misleading. I was mislead myself.

I move amendment No. 17:—

In page 30, before Section 53 (2), to insert a new sub-section as follows:—

(2) In making an order under sub-section (1) of this section the Lay Commissioners shall not empower the Land Commission to interfere with the water sources of, or supplying, a canal or other navigable waterway.

The effect of Section 53 of the Bill is to empower the Land Commission "to make such water courses or such drains as may be specified in such order," and so on. There seems to be some apprehension that if this section is passed it will empower the Land Commissioners to make orders which might affect the waters of the Grand Canal or other waterways. The Grand Canal is one of a number of water courses in the country. If the Minister can see his way to accept this amendment it will remove any apprehensions there may be as to the powers given under the Bill to the Commissioners.

Mr. Boland

There is no necessity for apprehension because of this section. The Land Commission only deal with very small waterways and there is no necessity whatever for this amendment. Section 53 deals with only such cases of very necessary work that may arise. I could not accept the amendment. I can assure the Deputy that there is no fear of the Grand Canal being interfered with. If I were to accept the amendment we would find ourselves tied up.

Is there any way in which the Minister could make it more satisfactory to those interested?

Mr. Boland

They have legal rights and if we interfere with them they can proceed against us.

Mr. Brennan

Would they have these legal rights when that section is passed?

Mr. Boland

I imagine they will. It is most unlikely that we are going to interfere with them so far as the main arteries are concerned. Anything the Land Commission does is more likely to send more water into the main arteries than to take it out of them.

Mr. Brennan

Or they may send too much.

There is room enough in the sea for all the water.

In sub-section (3) of this section reference is made to the amount of the compensation. As I read it, I take it that sub-section (3) envisages the appointment of an arbitrator to determine the amount of compensation which the injured party will be entitled to recover from the Land Commission if improper steps are taken to alter the waterways.

Sub-section (3) of Section 53 is not referred to in Deputy Doyle's amendment.

The point was made by Deputy Doyle that the section may affect the waters of the Grand Canal or other waters, and the Minister replied that the owners had their remedy in law and they could proceed for damages. The question now arises does that right or remedy in law survive the passage of Section 53? Would the Minister reassure us that Section 53 does preserve the right to apply for damages and does preserve the arbitration machinery whereby the amount of damages can be ascertained?

Mr. Boland

They can apply to the Appeal Tribunal. The next sub-section (4) provides for that appeal.

Is the amendment being withdrawn?

Is the Judicial Commissioner sitting with the Lay Commissioners?

Mr. Boland

Yes.

Is the Minister afraid if he gave this concession that it would apply to other parts of the country— to some small drainage works?

Mr. Boland

We do not know where it would apply.

Having regard to the importance of the Grand Canal, which is one of the biggest waterways in the country, I submit it is only right that we should get some protection from whatever Commissioners may follow in the years to come. It is right enough to listen to the Minister now saying that under his jurisdiction nothing can happen. When the Minister passes this over to his successor, what is the result going to be? Another interpretation of it, I suppose.

Mr. Boland

I do not think so. They will still have their ordinary common law rights.

In legislation, we should avoid as much as possible leaving loopholes that would encourage people to go to law.

Amendment, by leave, withdrawn.

Mr. Boland

I move amendment No. 1 to the Title:—

In page 3, line 7, Long Title, after the word "respects" to add the words "and to amend the law in relation to the application of the Increase of Rent and Mortgage Interest (Restrictions) Acts, 1923 to 1930, to dwelling-houses of which the Land Commission is the landlord."

Is the Minister satisfied, as a result of his consultations with his advisers, that the Title, as amended will be all right?

Mr. Boland

I am quite satisfied. Other people may not be.

Well, this will be a very curious Title to a Land Bill:

"An Act to amend and extend the Land Purchase Acts in divers respects, and to amend the law in relation to the application of the Increase of Rent and Mortgage Interest (Restrictions) Acts, 1923 to 1930, to dwelling-houses of which the Land Commission is the landlord."

Certainly, that will be a novel Title to a Land Bill.

Mr. Boland

The fact that I have gone so far to amend the Title shows the length that I was prepared to go to satisfy the Opposition.

It is well for the Minister that he got the Title amended, because otherwise both the Bill and himself would be thrown out of the Seanad by the Cathaoirleach.

Amendment agreed to.
Question proposed: "That the Bill, as amended, be received for final consideration," put and agreed to.
Fifth Stage ordered for Thursday, 6th July, 1939.
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