ABEYSIRI v. PREMARATNE

032-SLLR-SLLR-2000-V-3-ABEYSIRI-v.-PREMARATNE.pdf


ABEYSIRI
v.
PREMARATNE
COURT OF APPEALJAYASINGHE, J.
JAYAWICKRAMA, J.
CA(PHC) 67/96HC NEGOMBO 2/9520th OCTOBER, 2000
Agrarian Services Act 58ofl 979 – Order under S.57(l) – High Court of theProvinces (Special Provisions) Act 19ofl990-S.3, S.4 – Constitution Article154 P(4) – 13th Amendment • Appellate/Revisionary Jurisdiction of TheHigh Court – Orders under S.57(ll) – Irrigation work – Cultivation Rights -Power of Commissioner to Inquire S.34, S.35.
The Appellant complained to the Commissioner of Agrarian Services thatthe Respondent had constructed a wall across the irrigation channelwhich fed his paddy field. An Inquiry was held under S.56(l) theCommissioner was of the view that, a wall had been constructed, and adirection was given to demolish the said wall.
The High Court reversed the said Order on the ground thatCommissioner has no power to make any Order, in respect of anobstruction to a irrigation work.
Held :
In terms of S.3 and S.4 of Act 19 of 1990, High Court has Appellate/Revisionary jurisdiction only in respect of orders made under S.5 & S.9of the Agrarian Services Act.
According to Article 154 P(4) of the 13lh Amendment, the HighCourt has jurisdiction to issue writs of ‘Certiorari' against any personexercising within the province any power under any law or any statutemade by a Provincial Council, established for that province in respect ofany matter set out in the Provincial Council list.
An inquiry in respect of an obstruction upon any channel or watercourse comprised in any minor irrigation work is not a matter set out inthe Provincial List.
The Order of the High Court Judge is void ab-initio as there was totalwant of jurisdiction.
In terms of the Provisions of Act 58 of 1979 the Commissioner has thepower to inquire into any obstruction to irrigation work and prosecute
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persons who are guilty. The provision take away the jurisdiction of theCourts by necessary implication on a parity of reasoning.
AN APPEAL from the Order of the High Court of Negombo.
Case referred to :
1. Premathilaka v. Kularatne (1996) 2 SLR 257
Rohan Sahabandu with Athula Perera for 2nd Respondent-Appellant.
W. Dayaratne for Petitioner-Respondent.
Cur. adv. vult.
November 14, 2000.
JAYAWICKRAMA, J.. This is an appeal to set aside the order of the learned HighCourt Judge of Negombo dated 23. 01. 1996 and to confirm theorder of the Assistant Commissioner of the Agrarian Sendees.Gampaha dated 24. 04. 1995.
The 2nd Respondent-Appellant and some other cultivatorsmade a complaint to the Additional Divisional Secretary ofDivulapitiya and the Assistant Commissioner of AgrarianServices, Gampaha that the Plaintiff-Respondent hasconstructed a wall across the irrigation channel which fedthe paddy field cultivated by the Appellant and the othercultivators. The 1st Respondent-Respondent inquired into thematter and by his order dated 24. 04. 1995 held that thePetitioner-Respondent had constructed a wall across thechannel and obstructed the irrigation channel and directedthat the said wall be demolished on or before 30. 04. 1995.
Against this order the petitioner filed a writ applicationbefore the High Court of Negombo and the learned High CourtJudge by his judgment dated 23. 1. 1996 held that Section57(1) of the Agrarian Services Act does not empower theCommissioner to inquire into and make orders as “the sectiondoes not include irrigation works within the scope of suchinquiry”. The learned High Court Judge further held that the“purported inquiry held by the 1st Respondent on thecomplaint of obstruction to a irrigation channel by the
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petitioner, at the instance of the 2nd Respondent, is bothcontrary to law and without any authority of law; and theimpugned order made by the lsl respondent on thoseproceedings therefore has no force or effect in law”.
The Assistant Commissioner of Agrarian Services by P6dated 24. 04. 1995 purported to make his order under Section57(1) of the Agrarian Services Act. The AssistantCommissioner in his affidavit filed in this Court states that theinquiiy was held under Section 56(1) of the Agrarian ServicesAct and that due to a typographical error, it was stated in P6that the order was being conveyed under Section 57(1) of theAct. This fact is correct as the proceedings dated 29. 03. 1995clearly states that the inquiiy was held under Section 56(1) ofthe Act.
According to Sections 3 and 4 of the High Court of theProvinces (Special provisions) Act No. 19 of 1990 “a High Courtshall exercise appellate and revisionary jurisdiction in respectof orders made under Section 5 or Section 9 of the AgrarianServices Act No. 58 of 1979, in respect of any land situatedwithin that province".
According to Article 154 P(4) of the 13 amendment to theConstitution, a High Court shall have jurisdiction to issueaccording to law, writs of certiorari etc against any personexercising, within the province, any power under any law; orany statute made by the Provincial Council established for thatProvince, in respect of any matter set out in the ProvincialCouncil list. An inquiry in respect of an obstruction upon anychannel or watercourse comprised in any minor irrigationwork is not a matter set out in the Provincial list.
In view of the above provisions of law a High Court ofthe province has appellate and revisionary jurisdictiononly in respect of orders made under Section 5 and Section9 of the Agrarian Services Act. Therefore the High Cov rt has
no appellate and revisionary jurisdiction in respect of ordersmade under the other Sections of the Agrarian Services Act. Asfar as the Agrarian Services Act is concerned the only appellate
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and revisionaiy jurisdiction which a High Court has is inregard to orders made under Section 5 or Section 9 of theAgrarian Services Act. In the instant case the AssistantCommissioner of the Agrarian Sendees has made his orderunder Section 56(1) of the Agrarian Services Act. Against suchan order a provincial High Court has no appellate, revisionaryor writ jurisdiction.
Therefore the judgment in the instant case by the learnedHigh Court Judge is void ab initio as there was a total want ofjurisdiction in the Court. Therefore I hold that the learned HighCourt Judge has erred in law by entertaining and deciding onthe writ application made to the High Court.
The learned Counsel for the Petitioner-Respondentsubmitted that the Assistant Commissioner has nojurisdiction to inquire into in respect of an obstruction toirrigation works. He contended that provisions of the Act arevery clear and the Act has always described ‘irrigation work’and ‘cultivation rights’ as two distinct elements of the AgrarianServices Act and therefore the authority under Section 57cannot empower the Commissioner to inquire into anycomplaint on an alleged obstruction to a irrigation work.
The preamble to the Agrarian Services Act set out amongother things to provide for maximum productivity of paddyand other agricultural lands through the proper use andmanagement of agricultural crops and to confer and imposecertain powers and duties on the Commissioner. Accordingto section 39(5) of the Act every Deputy and AssistantCommissioner appointed under this Section shall in theexercise of the powers and the performance of his dutiesunder this Act be subject to the direction and control of theCommissioner.
Under Section 42(l)(d), the Commissioner or any otherperson generally or specially authorized by him in that behalfmay summon a meeting of the owner cultivators and occupiersof agricultural land within such area as may determined by
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him for the purpose of making rules among other thingsrelating to the efficient management of irrigation water.
Under Section 42(10) there is provision to select personsto assist the Cultivation Officer in matters relating to theprotection of irrigation works and for the conservation of watersupplied therefrom.
Under Section 42(11) any person so selected shall have,subject to the control and direction of the Commissioner or anyperson authorized in that behalf by the Commissioner, thepower to order any owner or occupier of agricultural land totake steps as he may deem necessary regarding the collectiveresponsibilities of such owners or occupiers in regard toirrigation and cultivation practices and in respect of theprotection of minor irrigation works and the conservation ofwater supplied therefrom.
Under Sections 34, and 35 of the Act there are provisionsfor the efficient management of irrigation water under theCommissioner’s supervision. For that purpose theCommissioner has the power to allocate duties to ownercultivators or occupiers. Under Section 35 of this Act for thepurpose of cultivating agricultural lands in accordance withthe provisions of this Act, the Commissioner by a supervisionorder place the owner cultivator or occupier under theCommissioner’s supervision.
Under Sections 43 and 46 of the Act the Commissioner hasthe power to appoint Agrarian Services Committees to functionunder his direction and supervision. Such Agrarian ServicesCommittee shall co-ordinate the agricultural activitiesand implement the agricultural policies of the governmentand shall be subject to the control and direction ofthe Commissioner.
Under Section 48 of the Act where an Agrarian SendeesCommittee after being directed by the Commissioner toexercise, perform or discharge any power, duty or functionconferred or imposed on or assigned to such committee by or
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under this Act or by any regulations made thereunder, failsto do so within the time specified in the direction, theCommissioner may exercise, perform or discharge such power,duty or function and any act so done by the Commissionerunder the provisions of this Section shall be deemed to havebeen done by such committee.
Under Section 55 of the Act there may be appointed byname or by office such number of Cultivation officers as maybe necessary for the purpose of this Act, and the officers soappointed shall be subject to the general control and directionof the Commissioner and such officers as directed by theCommissioner prosecute any person who commit any offencereferred to in Section 56.
Under Section 56 of the Act, every person who wilfully andmischievously blocks up, obstructs or encroaches upon orcauses to be in any way blocked up, obstructed or encroachedupon any channel or watercourse comprised in any minorirrigation work; or wilfully and mischievously cuts the bund,bank, or any part of any minor irrigation work; or wilfully andmischievously causes waste of water conserved by any minorirrigation work; or wilfully and wrongfully draws off or convertsto his own use any such water, shall be guilty of an offenceunder this Act.
Every person who without lawful cause resist or obstructthe Commissioner or any person authorized in that behalfby the Commissioner in/the lawful discharge of any dutyimposed upon him by this Act shall be guilty of an offence[Section 56(2)].
Under Section 57 the Commissioner has power on acomplaint made to him to inquire into any interference withthe cultivation right of such owner cultivator or occupier. Thisprovisions is applicable only to cultivation rights and notinterference with regard to irrigation work.
Every person who is guilty of an offence under this Act maybe prosecuted before a Magistrate and on conviction after trialbe liable to imprisonment and or/fine. (Section 58).
Abeysiri v. Premaratne (Jayawickrama, J.)
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When one takes into consideration the above provisionsit is abundantly clear that the Commissioner or any otherofficer or person under the supervision and direction of theCommissioner has the power to inquire into in respect ofobstruction to irrigation work and to prosecute persons whoare found guilty. In view of the above provisions the contentionof the learned counsel for the petitioner-respondent, that theCommissioner has no jurisdiction to inquire into a complaintof obstruction in respect of irrigation work is without anymerit.
The preamble to the Agrarian Services Act sets out that itis an Act to provide security of tenure for tenant cultivator ofpaddy lands, to provide for the establishment of AgrarianServices Committees and to confer and impose powers ofsupervision to be exercised by the Commissioner over suchcommittee, and provide for the determination of tenurialand other disputes relating to agricultural land by theCommissioner of Agrarian Services. The provisions of theAgrarian Services Act take away the jurisdiction of the Courtsby necessary implication on a parity of reasoning. (Vide;Premathilake v. Kularatne and others"1}.
In view of the above reasons I set aside the above judgmentof the learned High Court Judge dated 24. 01. 1996 andconfirm the order made by the Assistant Commissioner ofAgrarian Services of Negombo dated 24. 04. 1995 which ismarked ‘P6’
The appeal is allowed with cost fixed at Rs. 10,000/-payable by the Petitioner-Respondent to the 2nd Respondent-Appellant.
JAYASEVGHE, J. I agree.
Appeal allowed.
Note by Eklitor : The Supreme Court in S.C.Spl LA 256/2000.on 12. 01. 2001 refused Special Leave to the Supreme Court.