Adikaram v. Ratnawathie Bandara and Another
v.RATNAWATHIE BANDARA AND ANOTHER
COURT OF APPEAL
A. DE Z. GUNAWARDANA. J.
DECEMBER 5. 1989, FEBRUARY 20. 1990 AND MARCH 20. 1990
Agricultural Lands Law. section 54. – Definition of owner cultivator — Cultivation not arequirement as in the amended Paddy Lands Act or Agrarian Services Act — Effect ofdeeming provisions — Rule against interpreting statutes retrospectively to affect acquiredrights.
The Complainant — Appellant made a complaint to the Assistant Commissioner ofAgrarian Services Kandy, stating that he had been evicted from the field called GalpoththeKumbura by the respondents on 21.3.1974. The Agricultural Tribunal after inquiry, heldthat the provisions of the Land Development Ordinance do not permit, a permit holder toallow another person to work as an Ande Cultivator, in the allotted land. The said Tribunalfurther held that the definition of "owner cultivator" in the Agricultural Lands Law does notenvisage the existence of an Ande cultivator and therefore dismissed the application of thecomplainant-appellant.
That the definition of "owner cultivator" in the Agricultural Lands Law is different to thedefinition of “owner cultivator" in the amended Paddy Lands Act and the Agrarian Services
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Act. That the status of ‘owner cultivator" under the Agricultural Lands Law has beenconferred on a person to whom the land has been alienated under the Land DevelopmentOrdinance and does not require that he should cultivate the said land.
That the fiction created by a deeming provision must be given effect to by the Courtsin the form and in the manner contemplated by the relevant statute.
That the doctrine of respect for ‘acquired rights" has been given recognition as ageneral principle of law not only in Municipal Law but also under International Law. and thata statute should not be interpreted retrospectively, to affect acquired rights.
Case referred to:
Re Athlumney (1898) 2 OB 551, 552.
APPEAL from order of Agricultural Tribunal.
A. P. Cuneratne with Miss S. M. Senaratne for Complainant – Appellant.
L. C. Seneviratne P.C. for Respondent-Respondents.
June 1. 1990.
A. DE Z. GUNAWARDANA, J.
This is an appeal from an Order made by the Agricultural Tribunal otKandy dated 28.10.1975, dismissing the application made by theComplainant-Appellant regarding his eviction from the field calledGalpoththe Kumbura.
The Complainant-Appellant made a complaint to the AssistantCommissioner of Agrarian Services, Kandy on 9.5.74 stating that he hadbeen evicted from the said field by the Respondents on 21.3.74. Inconsequence of the said complaint the Agricultural Tribunal of Kandyheld an inquiry, at which the Complainant-Appellant gave evidence on hisown behalf. The Complainant-Appellant in his evidence has stated thathis father worked the said field as an ande cultivator and after his father'sdeath he continued to cultivate the said field as an ande cultivator till hewas evicted by the Respondents on 21.3.74. The Complainant-Appellantcalled one A. M. Heennilame, Secretary of the Cultivation Committee, toprove that according to the entries in the Agricultural Lands Register hisname has been entered as the ande cultivator for the said field for theyears 1972/74. The Complainant-Appellant also called one PunchibandaEkanayake, the ex-President of the Urapola Cultivation Committee, whostated that to his knowledge, the Complainant-Appellant worked in thisfield as the ande cultivator.
CA Adikaram v. Ratnawathie Bandara and Another (A. de. Z. Gunawardana, J.) 131
On behalf of the Respondents, the 2nd Respondent Robert Bandaragave evidence and stated that, this field was allotted to his father undera permit granted under the Land Development Ordinance, and after hisdeath, it devolved on his mother Maraya Loku Kumarihamy. In 1969, thesaid paddy field was gifted to him by his mother by a deed, which wasproduced marked V(1). He produced the receipts for the payment of rentsto the Kachcheri, from 1974, marked V(2) to V(5). Witness SiriweeraGamage, a clerk, attached to the Kandy Kachcheri, has producedrelevant documents in regard to the permit issued to the 2nd respondent'sfather, in respect of this field. This permit has been-issued in 1955. Thewitness Wilson Bandara Diyakelinaweia who gave evidence on behalf ofthe Respondents has stated that he worked his field from 1956 to 1962.Thereafter he had gone away to a place called Sirimalwatta, havinghanded over the field to his mother. After he left, his mother had workedthis field with the assistance of the Complainant-Appellant, Ukkubanda,Ekanayake andothers as hired labourers. There was no ande rights givento anybody in respect of this field. After his father's death in 1959 hismother managed the field and he cultivated the field on behalf of hismother. Thereafter his brother took over the cultivation of the said field.
The Agricultural Tribunal having considered the above evidence hasheld that the said paddy land had been given to the father of the 2ndRespondent, Tiklri Banda Diyakelinaweia on a permit issued in 1955 andthat the Complainant-Appellant had worked as an ande cultivator underthe said Robert Bandara Diyakelinaweia. However the Tribunal has heldthat the provisions of the Land Development Ordinance does not permita permit holder to allow another person to work or improve a land givenunder the said Ordinance. The T ribunal has further held that in view of thedefinition of “owner cultivator” under section 54 of the Agricultural LandsLaw, No. 42 of 1973, there cannot be an ande cultivator in respect of thisfield and therefore had dismissed the application of the Complainant-Appellant.
The Counsel for the Complainant-Appellant argued that the saidTribunal has misdirected itself in holding that section 54 of the AgriculturalLands Law does not envisage the existence of an ande cultivator. TheCounsel for the Complainant-Appellant in support of his contention citedtwo judgments of unreported casesof the Supreme Court viz: S.C. Appln.No. 957/73 — M.C. Kurunegala 78995 and S.C. Appln. No. 217/77 —M.C. Hambantota 81213. It has to be pointed out at the out set itself, that
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the said two judgments were cases decided under the Paddy Lands Act,No. 1 of 1958, and therefore have no application to the instant case as thedefinition of owner cultivator under the Agricultural Lands Law, No. 42 of1973 (which is the law applicable to the case) is different.
In this context it would be appropriate to refer to the definition of ownercultivator in the Paddy Lands Act and its subsequent amendments andvariations in the subsequent acts. The Paddy Lands Act, No. 1 of 1958,which came into force on 1.2.58 defines owner cultivator as follows:—
“ ‘owner cultivator' with reference to any extent of paddy land,means the person who is the owner or usufructuary mortgagee of suchextent and who is the cultivator of the entirety of such extent.”
However the definition of “owner cultivator” contained in the PaddyLands Act, No. 1 of 1958, as amended up to 31.12.1965, is as follows:—
" ‘owner cultivator’ with reference to any extent of paddy land,means the person who is the owner or usufructary mortgagee of suchextent and who is the cultivator of the entirety of such extent, and in thecase of an extent of paddy land which has been alienated under theLand Development Ordinance, the person who derives title to suchextent from or under that Ordinance and who is the cultivator of theentirety of such extent, shall be deemed to be the owner cultivator ofthat extent:"
It is seen that the words italicized in the above definition have beenadded to the original definition of “owner cultivator" contained in thePaddy Lands Act No. 1 of 1958, by subsequent amendment. The saidamendment has brought in the Land Development Ordinance with a viewof excluding the land alienated under the Land Development Ordinancefrom the operation of the Paddy Lands Act. However two requirementsare necessary for such exclusion, viz:—
the person who derives title to such extent should have obtainedthat title under the Ordinance.
Such person should cultivate the entirety of such extent. When thesaid two requirements are fulfilled such a person would bedeemed to be the “owner cultivator".
It is significant to note that the said definition in the Paddy Lands Act,as amended upto 31.12.65, has not been adopted in the Agricultural
CA Adikaram v. Ratnawathie Bandara and Another (A. de. Z. Gunawardana, J.) 133
Lands Law No. 42 of 73 which replaced the Paddy Lands Act, and whichAct came into torce on 17.10.1973. According to the Agricultural LandsLaw an “owner cultivator” has been defined as:—
“ ‘owner cultivator’, with reference to any extent of paddy landmeans the person who is the owner or usufructuary mortgagee of suchextent and who is the cultivator of the entirety of such extent and in thecase of an extent of paddy land which has been alienated under theLand Development Ordinance, the person who derives title to suchextent shall be deemed to be the owner cultivator of that extent.”
It is important to note here that the words”and who is the
cultivator of the entirety of such extent” have been omitted from thisdefinition. This would mean that the requirement under the AmendedPaddy Lands Act that the permit holder under the Land DevelopmentOrdinance should also be the cultivator of the entirety of such extent hasbeen done away with under the Agricultural Lands Law. This change issignificant to this case because according to the evidence, the respondentshave not cultivated this field by themselves. The Agricultural Tribunal hasheld that the Complainant – Appellant has worked this field as an andecultivator. However, in view of the fact that the Agricultural Lands Lawdoes not require the permit holder to cultivate the said field in order to beconsidered the “owner cultivator”, the permit holder would be deemed tobe the owner cultivator in terms of the Agricultural Lands Law. It must bepointed out here that the law applicable to this case is the AgriculturalLands Law, No. 42 of 1973, which was the law in force at the time thepresent dispute arose on 21st March, 1974.
When one looks at the Agrarian Services Act, No. 58 of 1979, whichcame into force subsequently, on the 25th September, 1979, it appearsthat omission of the said words I have referred to above in the AgriculturalLands Law, No. 42 of 1973, by the legislature, is deliberate. The definitionof "owner cultivator” in the Agrarian Services Act, No. 58 of 1979, is asfollows:-
“ ‘owner cultivator’ with reference to any extent of paddy land meansthe person who is the owner or usufructuary mortgagee of such extentand who is the cultivator of the entirety of such extent and in the caseof an extent of paddy land which has been alienated under the LandDevelopment Ordinance, the person who derives title to such extent
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and who is the cultivator of the entirety of such extent shall be deemedto be the owner cultivator of such extent:"
Thus we see that the words”and who is the cultivator of the
entirety of such extent", have been reintroduced into the definition of theowner cultivator in the Agrarian Services Act, No. 58 of 1979.
Hence the argument of the Counsel for the Complainant-Appellant thatthe Respondents having not cultivated the said field were not entitled tobe considered owner cultivators of the said field, would fail, because aspointed out earlier under the definition of owner cultivator in the AgriculturalLands Law, No. 42 of 1973, the requirement cf cultivation by the permitholder had been omitted, to qualify to be an owner cultivator.
The definition of "owner cultivator" in the said Acts are deemingprovisions. Bindra on Interpretation of Statutes (7th Edition) at page 1114states:-
“The phrase 'shall be deemed' is frequently used in statutes whena legislature wants to confer a status or an attribute to a person or thingwhich is not intrinsically possessed by that person or thing on whomthis conferment is made. This phrase is commonly used in statute toextend the application of a provision of law to a class not otherwiseamenable to it. It implies that the Legislature alter due considerationexercised its judgment in conferring that status or attribute to a personor thing. It is not open to a Court to sit in judgment over the judgmentof the Legislature and ignore the express direction contained in thestatute on the ground that the person on whom a status in conferredby statutory fiction is not the real person and so it cannot refuse torecognise him as such person. The important thing is not the meaningof the word 'deemed' but the effect of its use in the statute.”
Thus it is to be seen that the status of owner cultivator under theAgricultural Lands Law has been conferred on a person to whom the landhas been alienated underthe Land Development Ordinance and does notrequire that he should cultivate the said land. Therefore the fictioncreated by the said Law must be given effect to by the Courts in the formand in the manner contemplated by the said Law. Accordingly on thefacts proved in this case the Respondents are deemed to be the ownercultivators of the said field. The resulting position is that when there is anowner cultivator to a certain field there is no possibility of there being anande cultivator. It was on that basis that the Agricultural Tribunal has held
CA Adikaram v. Ratnawathie Bandara and Another (A. da. Z. Gunawardana, J.) 135
that the Complainant – Appellant could not be an ande cultivator of thesaid field. Therefore in my view the said Order of the Agricultural T ribunalis justified in law.
The Counsel for the Complainant – Appellant further submitted that theprovisions of section 67(2) (i) of the Agrarian Services Act which statesthat-
“All proceedings pending in Court under the provisions of theAgricultural Productivity Law, No. 2 of 1972 or the Agricultural LandsLaw, No. 42 of 1973, on the date prior to the date of commencementof this Act shall be heard and concluded under the provisions of thisAct:”
applies to this case. The said section 67(2)(i) is a repeal and savingsclause in the Agrarian Services Act. Such a provision is made to ensurethe continuity of pending proceedings which have been commencedundera repealed act. Such provisions do not in my view create new rightsor do not affect the acquired rights of the parties concerned.
The doct rine of respect for “acquired rights" has been given recognitionas a general principle of law, not only under the Municipal Law, but alsounder International Law, (See Lord McNair, 33 British Year Book olInternational Law (1957) page 1). Acquired rights have been defined byO' Connel as follows:-
“Acquired rights are any right, coporeal or incoporeal propertyvested under Municipal Law in a natural or juristic person and of anassessable monetary value (See O’ Conner International Law, Vol. 2.(Second Edition, London 1970) page 763.)"
It is a recognised rule of interpretation that the repealing Act would notaffect any right, privilege, or obligation, or liability acquired, or accrued orincurred under any enactment, so repealed. This principle has been giveneffect to under our law by the provision made in section 6 (3) (b) of theInterpretation Ordinance which states:
“6 (3) Whenever any written law repeals either in whole or part aformer written law, such repeal shall not, in the absence ofany express provision to that effect, affect or be deemed tohave affected –
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any offence committed, any right, liberty, or penalty acquired
or incurred under the repealed written law:"
The Counsel for the Respondents argued that the Respondents haveacquired the right under the Agricultural Lands Law to be considered asowner cultivators although they may not have cultivated the full extent ofthe paddy field on their own, because the definition of the owner cultivatorunderthesaid Agricultural Lands Law does not require that they shouldcultivate the land. He submitted that they had proved in the present casethat they are the lawful holders of this said paddy field under a permitgranted by the Land Development Ordinance and therefore in terms ofthe said Agricultural Lands Law they are deemed to be the ownercultivators.
The Counsel for the Respondents also pointed out that it is a wellknown canon of interpretation that statutes should be interpretedprospectively and not retrospectively. Maxwell on Interpretation of Statutes(12th Edition) at page 251, states as follows:-
"Statutes which encroach on rights of the subject, whether asregards a person or property, are subject to a strict construction in thesame way as penal Acts. It is a recognised rule that they should beinterpreted, if possible, so as to respect such rights, and if there is anyambiguity the construction which is in favour of the freedom of theindividual should be adopted. One aspect of this approach to legislationis the presumption that a statute does not retrospectively abrogatevested rights, another is the presumption that proprietory rights are nottaken away without provision being made for compensation."
If a statute is to be given effect to retrospectively, it must be stated so,expressly. The provision in section 67(2)(i) of the Agrarian Services Act,reliedon by Counsel for the Complainant-Appellant, to give a retrospectiveeffect to the provisions of the said Act, in my view, is only intended tomaintain continuity of proceedings pending in any Court. The saidprovision is not intended to take away the vested or acquired rights of anyperson underthe repealed Act, as it has not expressly stated so. Maxwell(see page 216) points out that “one of the most well – known statementsof the rule regarding retrospectivity is contained” in the following passagefrom the judgement of R. S. Wright J. in Re Athlumney (1) :
Samarasekera v. Mudiyanse and Others
"Perhaps no rule of construction is more firmly established thanthis – that a retrospective operation is not to be given to a statute soas to impair an existing right or obligation, otherwise than as regardsmatter of procedure, unless that effect cannot be avoided withoutdoing violence to the language of the enactment. If the enactment isexpressed in language which is fairly capable of either interpretation,it ought to be construed as prospective only.”
Thus it is seen that a well recognised rule of interpretation alsomilitates against attributing a retrospective effect to the provision insection 67(2)(i) of the Agrarian Services Act.
In the circumstances I am of the view that there is no reason to interferewith the said Order of the Agricultural Tribunal. Therefore the said Orderof the Agricultural Tribunal dated 28.10.1975 is hereby affirmed and theappeal is dismissed with costs fixed at Rs. 210/=.