Sri Lanka Law Reports
[1989j 2 Sri LR
BABANIS AND ANOTHER
COURT OF APPEAL
S. B. GOONEWARDENA, J. (PRESIDENT C/A)
C.A. No. 3/81KPL 4355
SEPTEMBER 25, 1989 .
Agrarian Services Act, No. 58 of 1979, sections 5(6) and 5(4) – Agricultural Tribunal- Question of law – time limit for complaint to Commissioner of Agrarian Services.
A tenant cultivator who complains ot eviction trom the field he was cultivating mustmake his notification to the Commissioner within one year from the date of eviction.The determination of the date of eviction is a question of fact and so long as the.
Babanis and Another v. Jema (S.B. Goonewardene, J.)
decision is neither irrational nor perverse having regard to the evidence it is not subjectto review by the Court of Appeal.
Questions of fact as decided by the Commissioner of- Agrarian Services are clothedwith finality and'shut out from the purview of the appellate jurisdiction of the Court ofAppeal. The Court of Appeal will exercise its powers of review only if it is shown thatthe Commissioner of Agrarian Services has erred in law or reached a conclusion onthe facts which is not supported by any evidence or if it is unreasonable or perverse.
Cases referred to:
Weerawardena v. The Associated Newspapers of Ceylon Ltd. S.C. Appeal No.16/83 – Minutes of'12.6.1984 '
Danapala v. Premaratne de Silva C.A. No. 291/83 -'Minutes of 14.2.1989
Naidu & Co. v. Commissioner of Income Tax AIR 1959 S.C. 1959
Mahavithane v. Commissioner of Inland Revenue 64 NLR 17, 222-
Subasinghe v. Jayalath 69 NLR 121, 126
Kalawana Election Petition Appeals Nos. 1 and 2 of 1983 S.C. Minutes of 16.5.84
APPEAL from Order of Commissioner of Agrarian Servicess
G.G. Mendis for respondents-appellants
Faiz Musthapha, P.C.- with M. Withanachchi for complainant-respondent.
Cur. adv. vult.
November 02, 1989
S. B. GOONEWARDENE, J. (P/CA)
This was an application made to the Agricultural Tribunal by theComplainant-Respondent in this appeal complaining of eviction fromthe' paddy field in question. After inquiry the Assistant Commissionerheld with him that he was the tenant cultivator of the extent of paddyland in question and that he had been unlawfully evicted. This appealis taken against that finding.
It is convenient initially to set put here the scope of an appeal froman order of the Commissioner to whom a notification has been givenby one claiming to be a tenant cultivator that he has been evictedfrom the extent of paddy land in question. The Agrarian Services ActNo. 58 of 1979 in Section 5(6) gives a right of appeal to the landlordor the person evicted as the case may be against the decision of the
Sri Lanka Law Reports
Commissioner on a question of law. A like provision is to be found inthe Industrial Disputes Act (Cap 131) at section 31D(2) which gives arestricted right of appeal again with respect to a question of law. Thatprovision came up for interpretation in the case of Weerawardene v.The Associated Newspapers of Ceylon Lfcf.(1) and as I pointed outin my judgment in Danapala v. Premaratne de Silva(2) what is statedthere although with respect to a provision relating to the powers ofthe Court of Appeal under the Industrial Disputes Act, must applyequally to a like provision in the Agrarian Services Act. Wimalaratne,
J.there, that is in S.C.Appeal No. 16/83 (with Sharvananda, J andWanasundera, J, agreeing) stated thus:-
“Section 31D(2) of the Industrial Disputes Act (Cap 131)provides for an appeal to the Court of Appeal only on a questionof law ….
Upon an appeal from a judgment where both facts and laware open to appeal, the Appeal Court is bound to pronouncesuch judgment as in its view ought to have been pronounced bythe Court from which the appeal'proceeds. In the exercise of theappellate jurisidiction an appellate Court may not be disposed totake a different conclusion on questions of fact unless it issatisfied that any advantage enjoyed by the trial Judge .byreason of having seen and heard the witnesses could not besufficient to explain or justify the trial Judge's conclusion.
On the other hand the scope of the powers of an appellateCourt where a right of . appeal to the Court lies only a questionof law, is much more restricted. It is bound by the findings offact unless the conclusion of fact drawn by the tribunal appealedfrom is not supported by any legal evidence or is not rationallypossible. If such plea is established the Court may considerwhether the conclusion in question is not perverse and shouldnot therefore be set aside. Vide the judgment of GajendragadkarJ in Naidu & Co. v. Commissioner of Income Tax (3), cited withapproval by our Supreme Court in Mahavithane v.Commissioner of Inland Revenue (4) and Subasinghe v.Jayalath(5). This principle has been reiterated and applied by usin the judgment recently delivered in the Kalawana. ElectionPetition Appeals Nos. 1 and 2 of 1983(6).
Babanis and Another v. Jama (S.B.Goonewardene, J.)
– When the legislature has restricted the power of the Court ofAppeal to review the decisions of the Labour Tribunal toquestions of law, if obviously intended to shut out questions offact from the purview of its appellate jurisdiction and to clothethem with finality. The Court of Appeal is bound by andtherefore cannot question the' correctness of a finding of factunless it is not supported by any evidence or if it isunreasonable or perverse. Where there is evidence to supportthe findings of fact the decision of the Labour Tribunal is finaleven though the Court of Appeal might, not, on the materials,have come to the same conclusion, had an appeal on the factsbeen competent and the Court had the power to substitute itsown judgment. That Court may on an appeal under section 31Dof the Industrial Disputes Act interefere with the. conclusion offacts only if it was shown either that the Tribunal had erred inlaw or reached a conclusion on the facts which it finds that noreasonable person applying the law could have reached”.
It is convenient therefore to approach the present appeal againstthe formulation adopted by Wimalaratne, J contained in the wordscited above.
Counsel for the appellant contened at the hearing before me thatthere was a serious error of law committed by the AssistantCommissioner and that contention he based upon the provisions ofsection 5(4) of the Agrarian Services Act the relevant part of which .. reads thus:-
"The notification referred to in sub-section 3 (that is the- notification to the Commissioner of Agrarian Services by atenant cultivator complaining of eviction) shall be made withinone year from the date of such eviction….”
Counsel pointed out that there was in the notification with which weare concerned here and which bears the date 24th June 1974 acomplaint that the eviction had taken place in the Maha season of1973. Especially because of the vagueness with which the date ofeviction has been' so expressed, Counsel contended that theevidence of the complainant-respondent had to be examined todetermine with precision the actual point of time at which according•to him he was evicted. He referred to the testimony of thecomplainant-respondent under cross examination which he (Counsel)contended was to the effect that eviction had taken place in
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September 1972. It is possible perhaps to think that this was in factthe effect of at least part of the respondent’s testimony although thematter is not without some doubt if one considers the entirety of histestimony given on that occasion. Assuming however that thecomplainant-respondent had unequivocally on that occasion giventhat testimony that he was evicted in September 1972, what then isthe resulting position?'
Mr. Musthapha, Counsel for the complainant-respondent on theother hand referred me to the evidence given by the latter on the12th May 1977 before a predecessor in office of the AssistantCommissioner whose order is under scrutiny in this appeal (whichevidence by agreement between the parties was adopted by theAssistant Commissioner as reflected in the record of such agreementmade during the proceedings of 7th September 1981.) In the courseof that evidence recorded on that date (12th May 1977) thecomplainant-respondent had stated that on the 18th of September1973 his son who on his behalf had gone to the field to attend tocertain activities connected with the retention of water wasobstructed. Mr. Musthapha contended that this evidence finds supportin some measure as to the time of eviction in document P17 whichwas a letter sent by the Assistant Commissioner of Agrarian Servicesto the present 1 st Appellant in response to a complaint made by thelatter dated 29th June 1973 referring to a dispute between himselfand the complainant respondent relating to this field. Mr. Musthaphaalso referred to the testimony of the present 1st appellant that hecommenced working the field after his wife purchased rights therein(which was on the .'19th February 1972). Mr. Musthapha inendeavouring to meet the position taken by Mr. Mendis, Counsel forthe appellants therefore argued that there was this testimony as wellbefore the Assistant Commissioner and for the reasons given by himthe Assistant Commissioner expressed his, preference, as he wasentitled to do, to act on the evidence favourable to the complainantrespondent rather than that which appeared unfavourable to himassuming that to be the case. One . of the reasons given by theAssistant Commissioner, Mr. Musthapha pointed out, was that after a.passage of time spanning eight years since the eviction and thegiving of his later evidence he preferred to act on the earliertestimony of the complainant respondent rather than his testimonygiven later and Mr. Musthapha contended here that it was well withinthe power and authority of the Assistant Commissioner to make the
CABabanis and Another v.Jema(S.B.Goonewardene,J.)349
election in the manner he did and that in the result there was adecision made by the Assistant Commissioner on a pure question offact which was one within his exclusive jurisdiction.
I am in agreement with the submission of Mr. Musthapha that therewas this earlier testimony of the complainant-respondent which tendsto show that the eviction itself was within a period of one yearcalculated back from the date of the complaint of. eviction made tothe Commissioner. In that State of things it is my view that Mr.Musthapha’s submission is a correct one that the Commissioner hadthe issue befgre him as to the dale of eviction, an issue which heresolved in favour of the complainant-respondent upon what may,giving a description favourable to the appellants, be described asconflicting testimony. In the case of Weerawardene v. TheAssociated Newspapers of Ceylon Ltd,, (1) referred to earlierWimalaratne, J also said thus:-
“It may be that had the Court of Appeal being vested with theplenitudes of appellate jurisdiction both in respect to questionsof law and of fact, it might have on its own perception andevaluation of the evidence come to a different conclusion andreverse the findings of the Labour Tribunal. Hamstrung as it isby the provision that its appellate jurisdiction is limited. toquestions of law only the Court of Appeal cannot substitute itsfindings of fact for that of the Tribunal and reverse it as long asit is neither irrational nor perverse having regard to the evidencebefore him”.
am of the view that the question before the Commissioner on thisaspect of the matter which he resolved in favour of thecomplainant-respondent was one to which the foregoing citation hascomplete application, and that if I were on the basis of thesubmissions made by Counsel for the appellants to reverse thefinding of the Assistant Commissioner, I would be substituting myfindings on a question of fact the decision on which was within theexclusive province of the Assistant Commissioner. This being thequestion urged on behalf of the appellants which I cannot resolve intheir favour, I would affirm the order of the Assistant Commissionercomplained of and dismiss this appeal with costs.
BABANIS AND ANOTHER v. JEMA