Majeed Khan v. Government Agent, Eastern Province
1958Present: Sansoni, J.K. MAJEED KHAN, Petitioner, and GOVERNMENT AGENT,EASTERN PROVINCE et al., Respondents
S. 0. 71—In the matter of an Application for a Mandate in thenature of a Writ of Mandamus
Irrigation Ordinance (Cap. 312)—Buies made under Section 11—Dappu—Person in
whose favour dappu should be accepted.
Buie 13 of the rules made under section 11 of the Irrigation Ordinance for theKantalai Irrigation District reads as follows :—
“ In the absence of a legal document showing that another person has beenduly placed and is in actual possession of the land, the dappu should be acceptedin every case from the person who furnished the dappu for the precedingharvest.”
Held, that acceptance of dappu in favour of a person who has already furnishedit for some years should not be refused merely on the ground that the earlierdappus were wrongly accepted without a legal document showing that theapplicant had been duly placed in possession of the field in question.
^APPLICATION for a mandate in the nature of a writ of Mtmdarhus.
II. W. Jayewardene, Q.C., with P. Ranasinghe and A. C. M. Uvais>for petitioner.
V. Tennekoon, Crown Counsel, with Q. F. Aturupana, Crown Counsel, for1st, 2nd and 3rd respondents.
Siva Sajaratnam, for 4th respondent.
Cur- adv. Vutt,
574 SANSONI, J.—Majeed Khan v. Government Agent, Eastern Province
“ November 12,1958. Sahsoui, J.—
The petitioner has applied for a writ of Mandamus compelling the1st, 2nd and 3rd respondents to accept from him the dappu in respect ofthe paddy field called Vanniyanamadu in extent 3 acres 36 perches for theyear 1958.
The petitioner rests his claim on rule 13 of the rules made under Section11 of the Irrigation Ordinance (Cap. 312) for the Kantalai IrrigationDistrict and published in the Government Gazette dated 11th May, 1957.That rule reads: “ In the absence of a legal document showing thatanother person has been duly placed and is in actual possession of theland, the dappu should be accepted in every case from the person whofurnished the dappu for the preceding harvest ”. The terms of the ruleare quite clear and it cannot be denied that for the years 1954, 1955,1956 and 1957 dappus in respect of this field were accepted from thepetitioner. Indeed the first respondent in his affidavit has sworn thatupon representations made to him by the petitioner in August 1954 hedirected the Vaddai Vidanai to accept dappu from the petitioner.
The petitioner has complained that in December 1957 the firstrespondent ordered that future dappu in respect of the field should beaccepted from the 4th respondent, notwithstanding protests lodgedby the petitioner. The first respondent has explained that this orderwas made by him because he was satisfied that dappu had been wronglyaccepted from the petitioner between the years 1954 and 1957, and hisreason for being of that opinion is that the petitioner did not in 1954 orsubsequently have a legal document showing that he had been dulyplaced in possession of the field. Apparently the first defendant hastried in December 1957 to correct what he conceived to be a wrongorder made in 1954 in the petitioner’s favour.
Now I think there are two objections that can be properly raised to thecourse which the first respondent thought he was entitled to follow inDecember 1957. The first objection is that even if the first respondentor his predecessor did make a wrong order in 1954 in the petitioner’sfavour, that is no reason why he should make another wrong order in1957, for it is clearly a wrong order if it contravenes the plain provisionsof rule 13. The second objection is that if it was a wrong order thatwas made in 1954 it was the duty of the 4th respondent, if he thoughthe was prejudiced by that order, to seek his legal remedy then. Itis not open to either the first or the fourth respondent after the lapse ofthree dr four years to put matters back where they should, perhaps, havebeen three or four years ago, by committing a breach of rule 13.
This dispute concerns the ownership and the right to the possessionof the field in dispute between the petitioner and the fourth respondent.It is one that can only be properly decided by a duly constituted actionbrought by one of the parties to the dispute. I therefore do not wishto go into the merits of the dispute in this judgment. There have alreadybeen three actions in the District Court of Trincomalee but there is still, Igather, a good deal of controversy as to who possessed and should possessthis fielH It was urged on behalf of the first respondent that I should
Sunil Hamy v. Wijesekera
not allow the present application in -dew of this dispute, amd I wasreferred to the case of Mahanayake Thorn, Malwatte Vihare v. Registrar-General1. But the writ was refused in that case because Soertsz, J.was not convinced of the propriety of the applicant’s motives, and alsobecause he thought that if he allowed the application he would be placingthe party affected in a position of great disadvantage and even of greatdanger. Those considerations do not apply in this case.
Another argument put forward on behalf of the first respondent wasby analogy from the cases where a mandamus to admit, restore, or electto an office has been refused where the office is full. But I see no re-semblance between those cases and the present one. A fresh dappu isaccepted in respect of each cultivation season, and there will be nodifficulty in accepting dappu for the next season from the person who isentitled, under rule 13, to furnish it.
There has been a clear breach of rule 13 by the first respondent, althoughI have no doubt that the breach was committed with the best of motives.The rule left him no discretion as to whose dappu he should accept.Since the fourth respondent had no legal document showing that hehas been duly placed and was in actual possession of the field subsequentto the years 1954 to 1957, he had no right to furnish dappu for 1958.
I therefore allow the application for a Mandamus and order that the1st, 2nd and 3rd respondents should accept dappu from the petitionerin respect of the next cultivation season. The petitioner is entitled torecover his costs from the 1st and 4th respondents.
K. MAJEED KHAN, Petitioner, and GOVERNMENT AGENT, EASTERN PROVINCE et al., Res