Mansoor and Another V. O.I.C. Avisaawetla Police and Another
MANSOOR AND ANOTHER
O.I.C. AVISSAWELLAPOLICE AND ANOTHER
COURT OF APPEAL.
S. N. SILVA, J.
A. APPLICATION NO. 04/85.
M.C. AVISSAWELLA NO. 38240.
May 06, June 03, July 15, and August 26, 1991.
Tenant cultivator – Eviction – Proceedings under section 62 (t) (h) of theAdministration of Justice Law and section 77 of the Primary Courts Proce-dure Act -Jurisdiction – Rights as tenant cultivator under Agricultural LandsLaw, No. 42 of 1973 and succeeding law under Agrarian Services Act, No.58 of 1979 – Can relief be also claimed under the Administration of JusticeLaw and Primary Courts Procedure Act No. 44 of 19791
Where a statute creates a right and, in plain language, gives a specificremedy or appoints a specific tribunal for its enforcement, a party seeking toenforce the right must r&ort to that tribunal and not to others.
The machinery under the Agricultural Lands Law and the Agrarian Ser-vices Act is the only one available to a tenant cultivator of paddy land tosecure and vindicate his tenurial rights. The general procedure obtaining inPart VII of the Primary Courts Procedure Act with regard to disputes affect-ing land where a breach of the peace is threatened or likely, is not applicablein such a situation.
Cases referred to:
Hendrick Appuhamy vs John Appufiamy, 69 N.L.R. 289.
Wilkinson vs Barking Corporation (1948) 1 K.B.D. 721, 724.
Pasmore vs Oswaldwistle, U.D. (3) (1898) A.C. 387, 394.
Argosam Finance Co., Ltd. vs Oxby (1964) 3 All E.R. 561.
Bempy Singho vs Davith Singho, (1978 – 79) 2 Sri L.R. 215.
Application in revision of the order of the Magistrate of Avissawclla.
N.R. M. Daluwatta, P.C. with Miss S. Abeyjeewa for Petitioners.
S. Wijesinghe, P. C. with Miss A, B. D. Dharmadasa for Respondents.
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October 04, 1991.
S. N. SILVA, J.
The Petitioner has filed this application in revision againstthe Order made by learned Magistrate on 26-09-1984, in theabove case. The proceedings in the case commenced upon aninformation filed by the Officer-in-charge of the AvissawellaPolice on 20-02-1979 under section 62(l)(b) of the Administra-tion of Justice Law, No. 44 of 1973, which was then in opera-tion. The proceedings were continued under the PrimaryCourts Procedure Act, No. 44 of 1979 in terms of section 77 ofthat Act.
The information states that there is a dispute as to the“ande” rights to the paddy land called “Honiton deniya”. The1st Petitioner claims to have been the owner of the paddyland. He gifted his rights to his son who is residing abroadand was not a party to the proceedings in the Magistrate’sCourt. The claim of the 1st and 2nd Petitioners to this applica-tion (being the 1st and 3rd Respondents in the Magistrate’sCourt) is that the 2nd Petitioner is the lawful tenant cultivatorof the paddy land under the 1st Petitioner and was evictedfrom the paddy land on 03-02-1979 by the 2nd Respondent tothis application.
The 2nd Respondent filed an affidavit in the Magistrate’sCourt claiming that he purchased the paddy land on25-07-1976 from a sister of the 1st Petitioner. It is also statedthat the 1st Petitioner was a witness to that deed of transfer.The 2nd Respondent further claims that he has cultivated thepaddy land from the date of purchase.
Learned Magistrate by his order held that the 2nd Peti-tioner was the tenant cultivator of the paddy land till he wasevicted on 05-02-'1979. It appears from this finding that thelearned Magistrate did not accept the affidavit of the 2ndRespondent. Learned Magistrate held that the Court had nojurisdiction to order relief since it is a matter of an eviction ofa tenant cultivator of a paddy land and dismissed the informa-tion.
CA Maaaoor A Another V. O.I.C, Avissawella Police A Another (S. N. Silva, J.) 77
Learned President’s Counsel appearing for the Petitionersubmitted that the Magistrate was in error when he refused togrant relief to the 2nd Petitioner. Whilst conceding that the2nd Petitioner’s rights as tenant cultivator were secured by theAgricultural Lands Law, No. 42 of 1973 which was then inoperation, it was submitted that the existence of a specialremedy under the said law and under the succeeding AgrarianServices Act, No. 58 of 1979 did not remove the jurisdiction ofthe Primary Court, in the matter of granting relief.
Learned President’s Counsel for the 2nd Respondent urgedcertain matters of a preliminary nature. It was submitted thatthe 2nd Petitioner in whose favour relief is sought in thisapplication has not filed an affidavit and that in any eventthere is a failure to comply with the provisions of Rule 46 ofthe Supreme Court Rules. It was further submitted that the 1stPetitioner who is neither the owner nor the person entitled topossession Of the paddy land, has no locus standi in this mat-ter. In any event it was submitted that the complaint of thePetitioners is of an unlawful eviction of a tenant cultivator andthat such a matter has to be redressed through the specialmeans provided for in the Agricultural Lands Law and theAgrarian Services Act.
The 1st Petitioner has specifically stated in his affidavitdated 30-04-1979 that the 2nd Petitioner being the tenant cul-tivator was evicted by the 2nd Respondent and certain otherson 05-02-1979. The 2nd Petitioner has also made the samecomplaint in his affidavit addressed to the Assistant Superin-tendant of Police (IRS). Hence, the complaint of the Petition-ers is of an unlawful eviction of a tenant cultivator.
The Paddy Lands Act, No. 1 of 1958 was enacted for thespecific purpose of providing security of tenure to tenant culti-vators of paddy land. The Act was succeeded by the Agricul-tural Lands Law, No. 42 of 1973 which has the same objective.The Law was succeeded by the Agrarian Services Act, now inoperation, which has the same objective. These Laws grant
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special recognition to tenant cultivators of paddy lands andprotection to their tenurial rights. Section 3(1) of the Agricul-tural Lands Law and section 3(1) of the Agrarian Services Actspecifically provide that a tenant cultivator of any extent ofpaddy land has the right to occupy and use such extent inaccordance with the provisions of the respective Laws andshall not be evicted from such paddy land notwithstandinganything to the contrary in any oral or written agreement. It isfurther provided that no person shall interfere with the occu-pation and use of such paddy land by the tenant cultivator.Therefore the right of a tenant cultivator to use and occupythe paddy land of which he is tenant, is protected not only vis-a-vis his landlord but also as against any other person.
Section 3(3) of the Agricultural Lands Law and section 5(3)of the Agrarian Services Act give a right to a tenant cultivatorwho is evicted to make a complaint of such eviction to theAgricultural Tribunal or the Commissioner of Agrarian Servi-ces, as the case may be. If such complaint of eviction is estab-lished a tenant cultivator is restored to possession by an orderissued to the Fiscal by the Magistrate. It is thus seen that theapplicable law provides an extensive protection to the tenurialrights of cultivators of paddy lands. The law also containsprovisions for the vindication of such rights and for redressagainst any breach of these rights by any person.
In a proceeding instituted under section 62 of the Adminis-tration of Justice Law or the corresponding section 66 of thePrimary Courts Procedure Act, the Magistrate’s Court or thePrimary Court, as the case may be, is empowered to inquireinto disputes affecting land where a breach of the peace isthreatened or likely. The phrase “dispute affecting land” isinterpreted in section 75 of the Primary Courts Procedure Actto include “any dispute as to the right to the possession of any
landor as to the right to cultivate any land or a part
of a land…..”. Therefore, ordinarily, the right of a
tenant cultivator to occupy and cultivate a paddy land wouldcome within the meaning of a “dispute affecting land”. How-
CA Mansoor St Another V. O.T.C. Avissawella Police St Another (S. JV. Silva, J.) 79
ever, as noted above, the status and rights of tenant cultivatorsof paddy lands is the subject matter of specific statutory provi-sions. In contrast the procedure in the Primary Courts Proce-dure Act is in the nature of a general provision which appliesin relation to every dispute affecting land where a breach ofthe peace is threatened or likely.
The question to be decided in this application is whether atenant cultivator who is evicted from a paddy land can availhimself of an order made by the Primary Court in a proceed-ing under Part VII of the Primary Courts Procedure Act not-withstanding the remedy provided to him under the provisionsof the Agricultural Lands Law and later the Agrarian ServicesAct. Learned President’s Counsel for the Petitioner submittedthat such a course of action is possible and contended that thePrimary Courts Procedure Act in fact gives additional protec-tion to a tenant cultivator.
The submission of learned President’s Counsel for the 2ndRespndent is that the remedy under Agricultural Lands Lawand the Agrarian Services Act given to a tenant cultivator tocomplain of eviction and to secure restoration of possession isa special remedy which excludes any remedy that may beobtained from the exercise of the ordinary jurisdiction of thePrimary Court.
As noted in Halsbury’s Law of England (4th Edition) atparagraph 946, the question whether a special statutoryremedy excludes the ordinary jurisdiction of a Court has to bedecided by an examination of the scope and the wording of thestatute providing such special remedy.
In the case of Hendrick Appuhamy vs John Appuhamy (1),Sansoni/CJ examined the provisions of the Paddy Lands Act(then in operation) to consider whether those provisionsexclude the right of a landlord to institute an action in theDistrict Court for the ejectment of his tenant and for damages,on the ground that the tenant has failed to maintain the paddyland diligently. The District Judge held with the landlord on
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the basis that there was no section in the Paddy Lands Actousting the jurisdiction of the District Court. After an exami-nation of the provisions of the Paddy Lands Act and certainleading authorities in England, Sansoni CJ concluded that hecannot agree with the decision of the District Judge. It washeld that the action was not maintainable in view of the spe-cial provisions contained in the Paddy Lands Act.
Sansoni CJ followed the dicta of Asquith LJ, in the case ofWilkinson vs Barking Corporation (2). At page 724 AsquithLJ stated as follows:
“It is undoubtedly good law that where a statute createsa right and, in plain language, gives a specific remedyor appoints a specific tribunal for its enforcement, aparty seeking to enforce the right must resort to thattribunal and not to others.”
The authority for that statement of Asquith LJ is traced tothe dictum of Lord Halsbury in the case of Pasmore vsOswaldwistle, U.D. (3) (1898) A.C. 387. At page 394 LordHalsbury stated as follows:
“The principle that where a specific remedy is given by astatute, it thereby deprives the person who insists upona remedy of any other form of remedy than that givenby the statute, is one which is very familiar and runsthrough the law.”
It is apparent on an examination of the later case law inEngland that this principle stated by Lord Halsbury andAsquith LJ is now accepted without contest. In a later case,Argosam Finance Co. Ltd. vs Oxby (4) Lord Denning, andDiplock LJ stated as a firm proposition of law, that where amatter has been vested by Parliament within the jurisdiction ofthe Commissioner of Inland Revenue, there was clearly nojurisdiction on the part of a Court to answer such a matter inan action begun by an originating summons.
CA Maasoor A Another V, O./.C. Avissawflla Police A Another (S. N. Silva, J.) 81
Learned President’s Counsel for the Petitioners relied onthe judgment of this Court in the case of Bempy Singho vsDavith Singho (5). In that case a tenant cultivator who wasunlawfully evicted filed an action in the District Court for res-toration of possession and damages. He restricted his remedyin the District Court only to damages and obtained relief fromthe Commissioner for restoration of possession under theAgrarian Services Act. The learned District Judge granted theclaim for damages. It was argued in this Court that the Dis-trict Judge had no jurisdiction to grant damages in view of the' provisions of the Agrarian Services Act,Atukorale, J. held thatthere is no provision in the Agrarian Services Act whereby atenant who has been unlawfully evicted could secure damagesin respect of such eviction. In the absence of such provision itwas held that a tenant who has been unlawfully evicted has acause of action in the regular Courts to recover damages. Thisdecision does not in any way support the submission oflearned President’s Counsel that a tenant who is unlawfullyevicted is entitled to obtain restoration of possession upon anorder of the Primary Court. The basis of the decision is anabsence of any provision in the Agrarian Services Act wherebythe tenant may obtain damages for unlawful eviction. It has tobe noted that there is specific provision in the AgriculturalLands Law and the Agrarian Services Act which gives a rightto a tenant as against the landlord and any other person to useand occupy the paddy land and to secure restoration of pos-session if he is unlawfully evicted. These provisions in theAgricultural Lands Law and the Agrarian Services Act are inthe nature of a special right and a remedy for the infringementof that right. Therefore, I hold that the machinery under theAgricultural Lands Law and the Agrarian Services Act is theonly one available to a tenant cultivator of paddy land tosecure and vindicate his tenurial rights. The general procedureobtaining in Part VII of the Primary Courts Procedure Actwith regard to disputes affecting land where a breach of thepeace is threatened or likely, is not applicable in such a situa-tion.
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A further reason for the above conclusion is manifest on anexamination of the provisions of Part VII of the PrimaryCourts Procedure Act. In terms of section 67(1) an inquiryunder this Part has to be held in a “summary manner” andhas to be concluded within three months of the commence-ment of the inquiry. Section 74(2) provides that an appeal willnot lie against any determination or order under this Part. Itappears from section 74(1) that the remedy available to a per-son affected by an order after such a summary inquiry is toestablish his right or interest to the land in a civil suit. AJudge of the Primary Court is specially required to explain the xeffect of this provision to the persons concerned in the dispute.Therefore, according to the legislative schemes an order madeby the Primary Court in a proceeding under Part VII will beoperative only till the dispute affecting land is finally resolvedon a “civil suit”. The phrase “civil suit” is clearly referable toan action filed in a regular Court exercising civil jurisdiction.In view of the aforesaid provisions of the Agricultural LandsLaw and the Agrarian Services Act a dispute arising from acomplaint of eviction made by a tenant cultivator of a paddyland cannot be the subject of a civil suit. Such a complaint hasto be the subject of an inquiry by the Tribunal or the Commis-sioner, as the case may be. Therefore, the Judge of the Prim-ary Court cannot comply with the requirements of section74(1) in respect of such a dispute. This by . itself is in my viewgood reason for holding that the Primary Court should notexercise jurisdiction in relation to a dispute arising from acomplaint of eviction of a tenant cultivator of paddy land.Furthermore, if such jurisdiction is exercised it may result inconflicting orders made by the Primary Court on the one handand the Commissioner on the other.
For the reasons stated above I am of the view that thePrimary Court Judge did not err in law when he declined toexercise jurisdiction in this matter.
In view of the foregoing finding it would not be necessaryto consider the other matters urged by learned President’s
CA Silva and AnotherV. O.l.C. Police Station, Tambuttcgama and Another 83
Counsel for the 2nd Respondent. However, I have to note thatthere is merit in the objection based upon an absence of anaffidavit filed by the 2nd Petitioner. The relief sought by thisapplication is for an order directing that the 2nd Petitioner berestored to possession of the paddy land in question. Accord-ing to the certified copy of the proceedings in the Magistrate’sCourt the 2nd Petitioner did not file an affidavit in that Courtclaiming a right to be restored to possession. He has also notfiled an affidavit in this Court claiming such a right. In thecircumstances I am of the view that there is contravention ofthe provisions of Rule 46 of the Supreme Court Rules and thatthe Petitioners are not in any event entitled to the relief soughtin the application. The application is accordingly dismissed.The 1st and 2nd Petitioners will pay a sum of Rs. 1750/- ascosts to the 2nd Respondent.
MANSOOR AND ANOTHER V. O. I. C. AVISSAWELLA POLICE AND ANOTHER