G. P. S. DE SILVA, C.J.
KULATUNGA, J. ANDRAMANATHAN, J.
S.C. APPEAL NO. 124/94C.A. APPEAL NO. 164/83A.T. CASE NO.
FEBRUARY 06, 1995.
Agricultural Tribunal – Jurisdiction of Assistant Commissioner of Agrarian Servicesto hear appeal addressed to Agricultural Tribunal – Agricultural Lands Law, No.42 of 1973, ss. 3(3), 3(4) – Agricultural Productivity Law, No. 2 of 1972, s. 30 -Agrarian Services Act, No. 58 of 1979, ss. 5(3) & (4), 67(1) & (2) (f) – Complaintof eviction by tenant-cultivator – Waiver and acquiescence.
On 5.11.79 one Pattisingho made a complaint of eviction from a paddy field ofwhich he was tenant-cultivator on a cyclostyled form addressed to the Chairman,Agricultural Tribunal which he obtained from the office of the AssistantCommissioner of Agrarian Services.
The alleged eviction occurred on 10.8.79 when the Agricultural Lands Law,No. 42 of 1973 was in force. Section 3(3) of this Law enabled a cultivator to make acomplaint of eviction to the Agricultural Tribunal. Such Agricultural Tribunals wereappointed under s. 30 of the Agricultural Productivity Law, No. 2 of 1972. Under s.3(3) of the Agricultural Lands Law and the complaint had to be made within a year.Before Pattisingho made his complaint, the Agrarian Services Act, No. 58 of 1979was passed by which s.67(1) the Agricultural Productivity Law and AgriculturalLands Law were repealed. Thus Agricultural Tribunals were not in existence whenPattisingho made his complaint. Under the Agrarian Services Act, No. 58 of 1979,s.5(3), a complaint of eviction could be made and that within one year of theeviction provided however that where the eviction had occurred within two yearsprior to the date of the commencement of the Act, the tenant cultivator could makethe complaint within two years of the date of commencement of the Act.
Pattisingho’s complaint was heard by the Assistant Commissioner of AgrarianServices who decided that Pattisingho was the tenant cultivator and had beenevicted. An appeal was preferred and during the pendency of the appeal,Pattisingho died and his wife was substituted as the respondent.
Notwithstanding the commencement of the Agrarian Services Act, complaintsaddressed to the Assistant Commissioner were being accepted on old formsaddressed to the Chairman, Agricultural Tribunal. By this the complaint did notbecome void. It was only an irregularity.
There was no prescribed form for making complaints. The complaint under s.5(3)could be made even orally.
The failure to object to the Assistant Commissioner entertaining the complaintamounts to waiver and acquiescence.
Cases referred to:
Peiris v. The Commissioner of Inland Revenue 65 NLR 457.
Mac Foy v. Africa Company Ltd. (1961) 3 All ER 1169,1172.
APPEAL from judgment of the Court of Appeal.
J. W. Subasinghe, P.C. with J. A. J. Udawatta for appellant.
Rojgan Sahabandu for respondent.
Cur. adv. vult.
The appellant who is the owner of a paddy land calledMarakkalamulla, appealed to the Court of Appeal against an order ofan Assistant Commissioner of Agrarian Services which decided thatone Pattisingho (now dead) was the tenant cultivator of the saidpaddy land and that he had been evicted therefrom. Pattisingho diedduring the pendency of the appeal, whereupon his wife wassubstituted as the respondent.
Before the Court of Appeal, it was argued that the Asst.Commissioner had no jurisdiction to entertain the complaint ofPattisingho for the reason that it had been addressed to theAgricultural Tribunal which had ceased to exist as on the date of thesaid complaint. As such the complaint was a nullity; and that all theproceedings which were held on the basis of that complaint werebad in law. Hence, the impugned order should be set aside.
The Court of Appeal held that the Asst. Commissioner hadjurisdiction to hear the complaint and dismissed the appeal. SpecialLeave to Appeal to this Court was granted on the question whether inthe circumstances of this case, the Assistant Commissioner waswithout jurisdiction to hear the matter, inasmuch as the complaint hadbeen addressed to the Agricultural Tribunal.
The alleged eviction occurred on 10.08.79 on which date thestatute in force was the Agricultural Lands Law No. 42 of 1973.Section 3(3) of the Law enabled the cultivator to make a complaint ofeviction to the Agricultural Tribunal within whose area the paddy landin dispute lies. Such Tribunals were appointed under s.30 of theAgricultural Productivity Law No. 2 of 1972. S.3(4) of the AgriculturalLands Law provides that a complaint shall be made within one yearfrom the date of the eviction.
Before Pattisingho made the complaint, Parliament enacted theAgrarian Services Act, No. 58 of 1979 which came into effect on25.09.79. Under s.5(3) of that Act, a complaint of eviction has to feemade to the Commissioner of Agrarian Services. S.5(4) requires thecomplaint to be made within one year of the eviction provided thatwhere the eviction, had occurred within two years prior to the date ofthe commencement of the Act, the tenant cultivator shall make thecomplaint within two years of the date of commencement of the Act.
Section 67(1) of Act No. 58 of 1979 repealed the AgriculturalProductivity Law and the Agricultural Lands Law subject, however, tocertain transitional provisions which inter alia, empower theCommissioner to continue and conclude proceedings which, on thedate of commencement of the Act, were pending before anAgricultural Tribunal.
Pattisingho made his complaint on 05.11.79. The complaint hasbeen made on a cyclostyled form PL/EV/1, which is addressed to theChairman, Agricultural Tribunal, Hambantota. According to the datestamp on the complaint, it appears to have been submitted to theoffice of the Agricultural Productivity Committee, Hambantota. Thisshows that notwithstanding the commencement of Agrarian ServicesAct, which established a new authority and new machinery to decide
agrarian disputes, the old machinery was still being used; and thateven complaints which had to be addressed to the Commissionerwere being accepted on old forms addressed to the Chairman,Agricultural Tribunal.
The said complaint was inquired into by an AssistantCommissioner of Agrarian Services. The correspondence in theAssistant Commissioner’s file shows that the matter had been treatedas a proceeding which, on the date of commencement of the Act,had been pending before an Agricultural Tribunal. Accordingly, it wasproceeded with by the Commissioner under s.5(3) of the Act, readwith s.67(2)(f). Learned President’s Counsel for the appellant rightlysubmitted that as the complaint had not been made to an AgriculturalTribunal which was legally functional, there was no proceedingpending before such a Tribunal, which could have been continued bythe Commissioner in terms of the said provisions.
The Court of Appeal was of the opinion that had the complaintb^n made to the Commissioner, he was admittedly competent todecide it; and that on the authority of the decision in Pieris v. TheCommissioner of Inland Revenue <1), the Commissioner had thejurisdiction to hear the dispute even though the complaint had beenaddressed to a non-existing Agricultural Tribunal. The Court cited thedicta of Sansoni, J. –
“It is well settled law that an exercise of a power will bereferable to a jurisdiction that confers validity upon it and not toa jurisdiction under which it would be nugatory".
In his written submissions, Counsel for the appellant submits thatthe above case is distinguishable as the Assistant Commissioner ofInland Revenue therein was empowered by an existing statute to act,but purported to act under a wrong section. In the instant case theAssistant Commissioner had no jurisdiction, authority or power toinquire into a complaint made to a non-existing tribunal.
Counsel argues that the complaint is a nullity; if so, all steps takenthereafter are nullities. He cited Lord Denning in Mac Foy v. AfricaCompany Ltd™.
“You cannot put something on nothing and expect it to staythere. It will collapse.”
Learned Counsel for the respondent in his counter submissionssubmits that the making of a complaint to a non-existing tribunal is amere irregularity and not a nullity. In support of this proposition, theattention of the Court is drawn to the fact that firstly, the complaintwas made on a cyclostyled form addressed to the AgriculturalTribunal and supplied by the authorities. Secondly, no objection wastaken at the inquiry before the Assistant Commissioner. Thirdly, theerror, if any, was induced by the authorities who issued a wrong formto the cultivator. He argues that in these circumstances, and in viewof the fact that the Commissioner was otherwise possessed ofjurisdiction to hear the complaint, it is merely a question of irregularityof procedure which the parties are competent to waive; and that thedefect is not fatal.
If the complaint to the wrong tribunal was a nullity and denudedthe Assistant Commissioner of jurisdiction, then of course, the partiescould not by consent have given him jurisdiction. But the question iswhether the proceedings taken by the Assistant Commissioner arenull and void. In discussing the so-called distinction between ‘void’ or'voidable’, Wade Administrative Law 6th Edt. p. 349 says:
“Action which is ultra vires is unauthorised by law, outsidejurisdiction, null and void, and of no legal effect.”
At pp. 353-353 he considers the necessary qualifications to this ruleand concludes:
“ 'Void’ is therefore meaningless in any absolute sense. Itsmeaning is relative, depending upon the Court’s willingness togrant relief in any particular situation”.
I am of the view that the proceedings before the AssistantCommissioner did not become void by reason of the fact that theinitial complaint had been made to a non-existing tribunal. Thatcomplaint was a mere irregularity. There is no prescribed form formaking a complaint. It appears that the notification contemplated bys.5(3) of the Act may even be made orally. The cyclostyled formwhich was issued by the authorities to the cultivator is one preparedfor administrative convenience; the form itself was addressed to theAgricultural Tribunal. Hence, the failure of the appellant to object tothe Assistant Commissioner entertaining the complaint amounts towaiver or acquiescence. Consequently, even the said irregularity wascured.
I hold that the proceedings had before the Assistant Commissionerwere valid. Accordingly, I dismiss the appeal and affirm the judgmentof the Court of Appeal. The respondent will be entitled to costs in asum of Rs. 750/-.
P. S. DE SILVA, C.J. -1 agree.RAMANATHAN, J. -1 agree.
MANATUNGA v. BARONCHIHAMY