Naidu v Divisional Surveyor Western [2011] FJHC 161; HBJ4.2010L (11 March 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBJ 4 of 2010L

BETWEEN

PARWATI NAIDU
father's name Warda Raju
Applicant

AND

DIVISIONAL SURVEYOR WESTERN,
Ministry of Lands and Mineral Resources, Tavewa Avenue, Lautoka
Respondent

AND

SUBARMANI father's name Dur Sami
Interested Party

INTERLOCUTORY JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr D Gordon for the Applicant.
Mr R Green & Ms Prasad for the Respondent.

Solicitors: Gordon & Co for the Applicant.
AG's Chambers for the Respondent.

Date of Hearing: 3 March 2011
Date of Judgment: 11 March 2011

INTRODUCTION

[1] This is an application for leave for Judicial Review by Parwati Naidu (Applicant/Plaintiff) against the Divisional Surveyor Western (Respondent).

[2] The background to this case is that a dispute arose between Parwati Naidu and Subramani (Original First Defendant) over a Crown lease that is occupied by them. The dispute has been going on since 2000, initiated by Parwati Naidu's father who is now deceased and now taken over by Parwati Naidu. The matter came before me in 2009 and I delivered a judgment on 9 September 2009 in which I ordered that the Divisional Surveyor Western conduct a survey of the land and allocate a 1 acre house site to Subramani. That judgment is reported in Naidu v Subramani [2009] FJHC 195; HBC310.2005L (9 September 2009).

[3] Parwati Naidu is not happy with the way the Divisional Surveyor is conducting the survey and now brings this judicial review. The application was filed ex-parte but when it was first called on 24 January 2011, Mr Green appeared on behalf of the Divisional Surveyor Western. There appears to be no objection on counsel's appearance on the Court file. I gave directions for the filing of affidavits in reply and set the application down for hearing inter-partes on 3 March 2011. This is my judgment after that hearing.

THE JUDGMENT OF 9/9/2010 IN HBC 310/2010L

[4] The Orders which I made in the preceding civil action on 9 September 2009 so far as relevant to this application were as follows:

• (a) The injunction granted on 25 October 2005 by Connors J restraining the Director of Lands is dissolved.
  
• (b) The First Defendant shall have the right to occupy one acre out of the land previously known as Crown Lease No 11775 as a house site area and the said area shall include his present house site area.
  
• (c) The First Defendant shall be entitled to have the subject one acre house site subdivided out of the said land and apply for issue of a separate lease in respect of the same. The First Defendant shall be responsible for all costs of subdivision survey and issue of a separate lease to him.
  
• (d) The Plaintiff and the First Defendant shall both have the benefit and use of water for human consumption from an existing well which is situated on the said land but which does not form part of the First Defendant's house site area.
• (e) The Plaintiff, the First Defendant and their agents shall not cause any interference or annoyance with each other nor shall they use any abusive words towards each other.
  
• (f) The First Defendant and his agents shall have the use of the existing access to the subject house site area and well and the First Defendant, the Plaintiff and their agents shall not cause any interference with each other in the use of the subject access and/or well.
  
• (g) The First Defendant shall not assign and/or sublet the subject house site area for the unexpired period of the new lease to be issued.
  

(h) The Surveyor General or someone authorised by him shall carry out a survey of the subject house site area and produce a survey plan that meets the above terms of this Order. His decision is final and binding on the parties.

[5] The Divisional Surveyor Western has been tasked with the carrying out of the survey. It was my intention that he would have the final say on the matter. Mr Gordon does not dispute that, but nevertheless, he says the Surveyor's decision is still open for judicial review.

THE APPLICATION FOR LEAVE FOR JUDICIAL REVIEW

[6] The Summons for leave was filed on 15 November 2010 supported by the affidavit of the applicant, Parwati Naidu. This application was brought about because of a letter written by the Divisional Surveyor Western to the solicitors for the applicant which the applicant took exception to and which she says should be reviewed by this Court. I set out the full content of the letter:

PHONE: [phone]	FILE: 4/7/1731
FAX: [phone]	DATE: 18/08/2010

Gordon & Co

Barristers and Solicitors

P. O. Box 600

Lautoka

Dear Sir

Re : HBC 310 of 2005 – Par Wati Naidu-v- Subermani and D. O. L

This is to inform you that the department is now prepared to carry out the survey of Lot 1 SO 5072 AND THE BALANCE OF Lot 1 BA 2439, previously held in lease No 11775. The survey would be carried out as per the High Court order dated 24/09/2009.

The basis on how the new boundaries are demarcated are shown on the attached plan. Section 'A' which was previously held in Subermani's entitlement would now be held in Parwati's entitlement. Section 'D' which was part of the balance land would now be held by Subermani. His holding would still be one acre comprising of Section 'B', 'C' and 'D'.

In addition to the above, the Department has also decided to regularize the occupation of Deo Kumar. His occupation would be approximately 1000m². The completion of survey would take sometime because of fresh scheme plans would be lodged to D.T.C.P for their approval. We will inform you once we start the field work.

Please advise your client accordingly.

Yours faithfully

Signed

Walmik

for Divisional Surveyor Western

[7] Also annexed to the affidavit was a report from a private surveyor. The relevant part of the report which Mr Gordon says shows that the Divisional Surveyor is not conducting the survey in accordance with my Court order states:

(The survey by the Divisional Surveyor Western) leaves the Plaintiff at a gross disadvantage due to:

(i) Inaccessibility into Area "A" over a large drain.

(ii) Narrow buildable area on Area "A" with the 18m front yard restriction and 6m rear yard restriction.

(iii) Total land locked status in accessing to the balance land of the Plaintiff along the back of the Areas "C" and "D", when considering the contours and land slopes. The Plaintiff will need to circumvent the deep stormwater drainage causeway and build a bridge to get access to the cane growing area east of Building "A".

[8] Subramani filed an affidavit in opposition to the application but neither he nor his counsel appeared at the hearing and so he did not participate in it.

[9] The Solicitor General on behalf of the Divisional Surveyor Western filed a Notice of Opposition to the Application. Opposition was on two grounds: (a) the application is premature because the survey has not been finalised (b) the consent of the Director of Lands had not been obtained and the Applicant's lease had expired

CONSIDERATION OF THE LEAVE APPLICATION

[10] It became obvious in the course of the hearing that one of the objections was that the Divisional Surveyor has decided to "regularise the occupation of Deo Kumar" on the subject lease. Mr Gordon submitted that this clearly showed that the Surveyor had exceeded his jurisdiction and power. The Surveyor was only entitled to survey Subramani's block pursuant to my orders and do no more.

[11] I do not accept the submission. The allocation of a block to Deo Kumar is the prerogative of the Director of Lands and the Divisional Surveyor, presumable acting on the Director's instructions and authority, does not need to act pursuant to an order of this Court.

[12] The second submission by Mr Gordon was that the extract from the surveyor's report which I have quoted above showed that the survey was being conducted in such a way that the Plaintiff's part of the land was being land locked.

[13] I do not read that extract as submitted. It simply says that the Plaintiff would have to build a bridge and excavate the land and will incur more costs but that is a different thing altogether from being land locked. The submission is not accepted.

[14] Mr Green opposed the application principally on the basis that the work of the Divisional Surveyor Western is not complete. The Surveyor has not come up with a final plan yet. He is still in the process of doing it. There is no decision for this Court to review yet. What Mr Gordon is asking for the Court to do now is to review the "process".

[15] I agree with Mr Green. The Divisional Surveyor's letter of 18 August 2010 and the attached plan make it clear that there has been no final survey. No final decision has been made yet. There is nothing to judicially review at the moment.

[16] Finally, the Applicant does not even have a current lease because the lease has expired and a new lease may be issued pending the outcome of this case. The land has apparently never been cultivated as a sugar cane farm by the Applicant. These are matters for consideration by the Director of Lands and not for this Court.

[17] For the above reasons the application for leave for judicial review fails, together with it these judicial review proceedings.

[18] I do not need to consider Mr Green's objection to the Applicant bringing this application on the grounds that the prior consent of the Director of Lands had not been obtained pursuant to s 13 of the Crown Lands Act.

COSTS

[19] The Respondent, Divisional Surveyor Western, is entitled to his costs which I summarily assess at $300.

ORDERS

[20] The Orders are therefore as follows:

• (a) The Summons for leave for judicial review filed on 15 November 2010 is dismissed and this judicial review is accordingly struck out.
  
• (b) The Applicant Parwati Naidu is to pay the Respondent Divisional Surveyor Western costs of $300 within 28 days.
  

............................................................
Sosefo Inoke
Judge