Wlckremanayaka and Another v. Jayasekera & Another
WICKREMANAYAKA AND ANOTHER
v.JAYASEKERA & ANOTHER
COURT OF APPEALAMARATUNGA, J.
CA NO. 1299/2000JUNE 21. 2001
Agrarian Services Act, No. 52 of 1979 – Amended by Act No. 4 of 1991 -S. 16, 16 A (1), 17 (6), 18, 18 (2), 18 (3) – Cultivator wilfully neglecting to cultivate- Inquiry – Liability to pay rent – Consequences of failure to pay? Forfeiture -Deeming provisions.
The 2nd petitioner made a complaint under section 16A of the AmendingAct No. 4 of 1991, alleging that the tenant cultivator had neglected to cultivatethe paddy-field in question. After inquiry the tenant cultivator was directed by theInquiring Officer as he has wilfully neglected to cultivate the field, to pay 12 bushelsof paddy valued at Rs. 2,400 as arrears of rent. The Inquiring Officer had alsoin his directive has stated that, if he failed to pay the said sum his tenancy rightswould be forfeited. In response to this directive, the tenant cultivator made a partpayment and failed to pay the full sum ordered.
Thereafter, the Inquiring Officer cancelled that part of the order, which stated thatif the sum is not paid the tenancy would be forfeited.
The petitioner sought a writ of Certiorari to quash that directive.
Although section 16A (1) makes the cultivator liable to pay rent in respectof a season in which he wilfully neglects to cultivate, the section has notset out the consequences of failure to pay the rent payable under the Orderunder section 16A (1). Accordingly, one has to turn to section 18 of theAct, which sets out the consequences of failure to pay arrears of rent.
Section 18 (1) is applicable only to a situation where the tenant cultivatorhas failed to pay arrears of rent under that section.
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 2 Sri L.R.
It has no application to a situation where the cultivator has failed to payarrears of rent payable under section 16A (1) for wilfully neglecting tocultivate the field.
Failure to pay arrears of rent payable under section 16 (1) will attractconsequences set out in section 18 (2), while section 18 (1) is limited inits application to the specific situation set out in the section itself. Section18 (2) has no such limitation and is therefore applicable to a situation wherethe cultivator has failed to pay arrears of rent under s. 16 (A).
Per Amaratunga, J.
“Under section 18 (1) the Commissioner shall give notice in writing tothe tenant cultivator that his tenancy, would be terminated but under section18 (2) A tenant cultivator who fails to pay the arrears shall be deemed tohave forfeited his tenancy.
When the tenant cultivator fails to pay arrears of rent, before the specifieddate, by virtue of the use of the word ‘deemed’ in section 18 (2) he becomesa person who has forfeited his tenancy.
The Commissioner has no power or jurisdiction to cancel, vary or alterthe legal position. An act or an order by the Commissioner is not requiredto complete forfeiture as it has already taken place by operation of law.
APPLICATION for a Writ of Certiorari / Mandamus.
Case referred to :
Jinawathie v. Emalin – 1986 2 Sri LR 121 at 130-131.
Douglas Premaratne, PC with Ms. Priyadharashani Dias for the petitioner.
Respondents absent and unrepresented.
Cur. adv. vult.
October 26, 2001
GAMINI AMARATUNGA, J.
The 1st petitioner (the landlord) is the owner of a paddy land calledThalgahawila lhala Kumbura, one acre and two roods in extent situatedin lhala Millawa in the District of Kalutara. The 3rd respondent wasthe tenant cultivator of the said paddy land. The 2nd petitioner who
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is the son of the landlord is the person authorised by the landlordto act on his behalf in all matters connected with the said paddy-field. Till about June, 1998, the landlord received his share of paddyfrom the field cultivated by the tenant cultivator.
The 2nd petitioner by letter dated 17. 06. 1999 has made acomplaint in terms of section 16A of the Agrarian Services Act,No. 52 of 1979 as amended by Act No. 4 of 1991 to the 1strespondent Deputy Commissioner of Agrarian Services alleging thatthe tenant cultivator had failed and neglected to cultivate the saidThalgahawila lhala Kumbura during the yala season in 1998.The 1st respondent has caused an inquiry to be made by the2nd respondent about the complaint of the 2nd petitioner. The2nd respondent had held an inquiry on 30. 10. 1999, bearingNo. K/IC/142/99. The tenant cultivator has attended the inquiry andhas given evidence on his own behalf.
At the conclusion of the inquiry the 2nd respondent has decidedthat the tenant cultivator had wilfully failed and neglected to cultivatethe said paddy-field during the yala season of 1998 when cultivationwas in fact possible. Accordingly, he has held that the tenant cultivatorwas liable to pay 12 bushels of paddy, valued at Rs. 2,400 to thelandlord as arrears of rent for the yala season, 1998. On thefindings of the Inquiry Officer the 1st respondent, by letter dated 29.11.1999 (P5), has ordered the tenant cultivator to pay Rs. 2,400 tothe landlord on or before 31. 12. 1999. By paragraph 4 of thesame letter the 1st respondent has informed the tenant cultivatorthat if he failed to pay the said sum on or before the specifieddate his tenanacy rights in the relevant paddy-field would beforfeited. In response to the direction of the 1st respondent thetenant cultivator has paid Rs. 1,200 to the Kananvila AgrarianServices Committee on 17. 12. 1999 as part payment of the rentpayable by him to the landlord but he has failed to pay the balancesum of Rs. 1,200 on or before 31. 12. 1999.
Sri Lanka Law Reports
[2002) 2 Sri L.R.
Thereafter, the 1st respondent by his letter dated 01. 08. 2000(P9) addressed to the tenant cultivator with a copy to the landlord,has cancelled paragraph 4 of his earlier letter dated 29. 11. 1999.
The said paragraph 4 was the paragraph which referred to the 40forfeiture of tenancy rights on failure to pay arrears of rent. The
landlord by letter dated 15. 08. 2000, sent through his Attorney-at-Law, has protested against the cancellation of the contents of thesaid paragraph 4. In response to this letter, the 1st respondent byletter 23. 08. 2000 has informed the Attorney-at-Law that he hadsought instructions from the Head Office regarding this matter andonce instructions are received he would communicate with him.Thereafter, there was no communication from the 1st respondent uptothe time of filing this application on 24. 11. 2000.
By this application the petitioners seek a writ of Certiorari to quashthe decision (cancelling paragraph 4 of the letter dated 29. 11. 1999(P5)) contained in letter marked P9 dated 01. 08. 2000 and for aWrit of Mandamus compelling the first respondent to take steps toevict the tenant cultivator from the relevent paddy land.
After notice was issued on the respondents counsel appearing for1st and 2nd respondents obtained time from this Court to file objections,but no objections were filed thereafter. The 3rd respondent neverappeared in this Court.
In terms of section 16A of the Agrarian Services Act, inserted byAgrarian Services (Amendment) Act No. 4 of 1991, where the landlord 60of any extent of paddy land informs the Commissioner in writing thatthe tenant cultivator of such paddy land has wilfully neglected tocultivate such extent with any crop during any paddy cultivating seasonin which cultivation is possible, the Commissioner has to cause aninquiry to be made by an Inquiry Officer on the complaint of thelandlord. If the Inquiry Officer, after inquiry, holds that the tenantcultivator has wilfully neglected to cultivate the paddy land, the tenant
Wickremanayaka and Another v. Jayasekera & Another
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cultivator is liable to pay the landlord rent for such extent for therelevant season determined in terms of section 17 (6) of the AgrarianServices Act. The Inquiry Officer has determined the rent payable in 70paddy to the landlord by the tenant cultivator and has computed itsmoney value as stipulated in section 17 (6) of the Agrarian ServicesAct. The Inquiry Officer has ordered the tenant cultivator to payRs. 2,400 to the landlord as arrears of rent payable for the yalaseason of 1998. Although section 16A (1) makes-the. tenant cultivatorliable to pay rent in respect of a season in which he has wilfullyneglected to cultivate the land, the section does not set out theconsequences of failure to pay the rent payable upon the ordermade under section 16A (1).
Accordingly, one has to turn to section 18 of the Agrarian Services soAct which sets out the consequences of failure to pay arrears ofrent by the tenant cultivator.
Section 18 (1) of the Agrarian Services Act as amended byAct No. 4 of 1991 is applicable only to a situation where the tenantcultivator has failed to pay arrears of rent payable upon an order madein terms of that section upon a complaint made by the landlordthat the tenant cultivator was in arrears of rent. It has no applicationto a situation where the tenant cultivator has failed to pay the arrearsof rent payable by him under section 16A (1) for wilfully neglectingto cultivate the land. The failure to pay arrears of rent payable sounder section 16A (1) therefore will attract the consquences setout in section 18 (2) of the Agrarian Services Act which reads asfollows :
“A tenant cultivator who fails to pay arrears of rent whithinthe time specified therefor shall be deemed to have forfeited histenancy and shall vacate such extent on being ordered to do soby the Commissioner.”
Sri Lanka Law Reports
(2002] 2 Sri L.R.
Thus, it is clear that while section 18 (1) is limited in its applicationto the specific situation set out in the section itself, section 18 (2)has no such limitation and is therefore applicable to a situation where 100the tenant cultivator has failed to pay arrears of rent payable undersection 16A (1) of the Agrarian Services Act. When section 18 (1)is compared with section 18 (2) a significant difference between thetwo sections becomes apparent at once. According to section 18 (1),when the Inquiry Officer holds that the rent is in arrears andcommunicates his decision to the Commissioner, the Commissionershall give notice in writing to the tenant cultivator that his tenancyin respect of such extent would be terminated if he fails to pay sucharrears within the time specified in such notice (emphasis added). Onthe other hand section 18 (2) enacts that a tenant cultivator who fails noto pay the arrears of rent within the time specified therefor shall bedeemed to have forfeited his tenancy, (emphasis added).
What is the significance of this difference in terms of legalconsequences? In order to find the answer one has to consider thelegal effect of the words “deemed to have” used in section 18 (2).
The meaning and the effect of the word ‘deemed’ was consideredand explained by Ranasinghe, J. (as he then was) in Jinawathie v.Emalin<1> at 130-131. Ranasinghe, J. stated that : “In statutes theexpression deemed is commonly used for the purpose of creating astatutory function so that a meaning of a term is extended to a subject- 12°tmatter which it properly does not designate . . . Thus, where aperson is “deemed to be something” it only means that whereas heis not in reality that something the Act of Parliament requires himto be treated as if he were". It is thus clear that the word deemedis used to extend the meaning of a word to create an imaginarystate of affairs which in reality does not exist.
Ranasinghe, J. went onto explain the legal effect and theconsequences of such a legal fiction in the following terms : ‘Thus,where in pursuance of a statutory direction a thing has to be treated
Wickremanayaka and Another v. Jayasekera & Another
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as something which in reality it is not or an imaginary state of affairs 130is to be treated as real, then not only will it have to be treated soduring the entire course of the proceeding in which such assumptionis made, but all the attendant consequences and incidents, which ifthe imagined state of affairs had existed would inevitably have flowedfrom it have also to be imagined or treated as real.” (p 130).
From what has been stated above it is clear that although thetenant cultivator has not in reality forfeited his tenancy rights, thelegal fiction created by the use of the word ‘deemed’ in section 18(2) has the effect of treating the tenant cultivator as a person whohas in reality forfeited his tenancy.140
Forfeiture of a right or a thing may take place in one of two ways.
It may happen as a result of a positive act or an order. For instance,if a law says that a thing is liable to be forfeited on an order ofthe convicting Magistrate, a specific order directing the forfeiture ofthe thing is necessary to forfeit the thing. On the other hand forfeiturecan also arise by operation of law. For instance, if the law says that‘upon the conviction of the offender all property he has acquired byhis unlawful acts shall stand forfeited to the State’ no separate actor an order is necessary to bring about forfeiture. Upon the happeningof one event, namely the conviction of the offender, forfeiture will isoautomatically take place by operation of law.
In section 18 (1) of the Agrarian Services Act the words ‘that histenancy . . . would be teminated’ indicate that a separate act or anorder is necessary to terminate tenancy rights.
By contrast under section 18 (2) when the tenant cultivator hasfailed to pay the arrears of rent, he shall be deemed to have forfeitedhis tenancy. This happens by operation of law. When the tenantcultivator fails to pay arrears of rent before the specified date, by virtueof the use of the word ‘deemed’ in section 18 (2), he becomes, forthe purposes of law, a person who has forfeited his tenancy. An 160
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act or an order by the Commissioner is not required to completeforfeiture as it has already taken place by operation law. Once tenancyis forfeited by operation of law, the Commissioner has no power ofjurisdiction to cancel, vary or alter the legal position. Accordingly, the1st respondent’s letter dated 01. 08. 2000 (P9) by which he soughtto cancel paragaraph 4 of his letter dated 29. 11. 1999 (P5) is adocument purporting to convey a decision which he has no poweror jurisdiction make. It is a nullity, and is liable to be quashed bya Writ of Certiorari. Accordingly, I direct that a mandate in the natureof a Writ of Certiorari be issued quashing the decision conveyed by 170the 1st respondent’s letter dated 01. 08. 2000 (P9).
Under section 18 (2), a tenant cultivator who is deemed to haveforfeited his tenancy shall vacate such extent of land on beingordered to do so by the Commissioner.
If the tenant cultivator fails to vacate the land on the order of theCommissioner, the Commissioner has to take action under section18 (3) to evict the tenant cultivator from the relevant paddy land.
Accordingly, I issue a Writ of Mandamus directing the 1st respondentDeputy Commissioner of Agrarain Services to take all steps necessaryunder sections 18 (2) and 18 (3) of the Agrarian Services Act, to isoevict the 3rd respondent S. Nomis Singho from the paddy land calledThalagahawila lhala Kumbura belonging to the 1st petitioner. In thecircumstances of this case I make no order for costs.
WICKREMANAYAKA AND ANOTHER v. JAYASEKERA & ANOTHER