ISMALEBBE V. ASSISTANT COMMISSIONER OF AGRARIAN SERVICES

027-SLLR-SLLR-1991-V2-ISMALEBBE-V.-ASSISTANT-COMMISSIONER-OF-AGRARIAN-SERVICES.pdf


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Sri Lanka Law Reports
[1991] 2 Sri L.R.
±.
ISMALEBBE
V.
ASSISTANT COMMISSIONER OFAGRARIAN SERVICES
SUPREME COURT.
BANDARANAYAKE, J., AMERASINGHE, J. AND DHEERARATNE, J.
S. C. APPEAL NO. 23/91.
S. C. L. A. 154 OF 90C. A. 978/83.
AUGUST 19,1991.
Tenant Cultivator – Agrarian Services Act, No. 58 of 1979, proviso tosection 4 – Statutory interpreation – Discretion of Commissioner to preventowner cultivator who owned paddy land in excess of five acres from cultivat-ing paddy land as tenant cultivator – Ultra vires – Lack of Jurisdiction – Cer-tiorari.
The Commissioner of Agrarian Services made Order declaring that theAppellant was not entitled to the rights of a tenant cultivator in terms of theproviso to section 4(2) of the Agrarian Services Act. The proviso gives a dis-cretion to the Commissioner to declare that a tenant cultivator who is alsoan owner cultivator of not less than live acres of paddy land is not entitledto his rights under the Act. The Appellant sought to quash the Order on theground that'the Commissioner had acted ultra vires and without jurisdiction,since the proviso applied only where the Minister determines the extent ofpaddy land cultivable by a tenant cultivator under sub-section (2) of section4 of the Act.
SC Ismalebbe v. Assistant Commissioner of Agrarian Services (Bandaranayake, J.) 333
Held:
The proviso to section 4 is intended to govern the contents of bothsub-sections (1) and (2).
Legislative intent should be gathered by reading the section in itsentirety in the context of the object and purpose the legislature had inmind in enacting the provision. An intention to produce an unreaso-nable result is not to be imputed to a statute if some other construc-tion is available.
The Commissioner of Agrarian Services acted within his rights todeclare the tenant cultivator who owned paddy land in excess of fiveacres as not being entitled to cultivate any further land as a tenant cul-tivator.
Case referred to: Artcmioa v. Procopioa 1966 (1) Q.B.D. 878.
APPEAL from a judgement of the Court of Appeal.
Kadirgammar with K. Thevarajah and Miss Lalitha Senaratne forAppellant.
R. K. W. Gooncsekera with S. Mahcntbiran for 2nd to Sth Respond-ents.
Cur.adv.vult.
November 08, 1991 -BANDARANAYAKE, J.
The arguments b this case have centered around the inter-pretation of s.4 of the Agrarian Services Act. Much time hasbeen spent on examining j the Section, in particular, the pro-viso, and as to whether the proviso applies to sub-section 2only having regard to the fact that it is placed immediatelyafter sub-section 2 or whether the proviso applied to sub-section 1 as well.
It seems to me that on a plain reading of the Section it canbe considered that the proviso stands by itself regardless of itsposition.
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Sub-section 1 absolutely limits to five acres, the extent ofland that any tenant cultivator can cultivate. By Sub-section 2the Minister is given the power to further limit the extent ofpaddy land that a tenant cultivator may cultivate. In addition,the proviso permits the Commissioner of Agrarian Services,after due inquiry, to make order that, if a tenant cultivator isalso the owner cultivator of not less than five acres of paddyland, he shall not be entitled to his rights as a tenant cultivatorunder the provisions of the Agrarian Services Act; that is tosay that the Commissioner is given a discretionary power ofpreventing an owner cultivator of 5 or more acres of paddyland from cultivating any paddy land as a tenant cultivator aswell. It seems that as a matter of policy, recognising the pres-sure on the availability of paddy land in certain areas the legis-lature is seeking to make available as much land as possible totenant farmers who otherwise would have no access to culti-vating paddy land. The proviso empowers the Commissionerto give effect to that intention. In respect of any such excess,the provisions of Sections 4(3), 4(4), 4(5) and 4(6) will apply asfollows: with regard to the tenant's rights of choice of land tobe cultivated (section 4 (3); the tenant’s obligation to vacate theexcess land (section 4(3); the remedies in the event of a failureof a tenant to observe his duty to vacate excess land (section4(3) and the utilization of the excess land vacated by a tenantcultivator after the exercise of his choice (section 4(5) and sec-tion 4(6).
In this view of the matter, the Commissioner was within hisrights to declare the tenant cultivator who owned paddy landin excess of five acress as not being entitled to cultivate anyfurther land as a tenant cultivator. I therefore dismiss theappeal with costs.
Amerasinghe, J. — I I agree.
SC Ismalebbe v. Assistant Commissioner of Agrarian Services (Dbeeraratne, J.) 335
November 09, 1991.
DHEERARATNE, J.
This is an appeal from the judgment of the Court ofAppeal refusing to quash by way of a writ of certiorari theorder made by the Commissioner of Agrarian Services declar-ing that the appellant was not entitled to the rights of a tenantcultivator in terms of the proviso to section 4(2) of the Agrar-ian Services Act, No. 58 of 1979. The foundation for theapplication by way of the writ was that the Commissioner hadacted ultra vires and without jurisdiction.
In order to appreciate the point of law urged on behalf ofthe appellant, it would be useful at this stage to set out in fullsection 4 of the relevant Act.
“4 (I) The maximum extent of paddy land that could becultivated by a tenant cultivator shall be five acres.
The Minister may subject to the provisions of sub-section (1) by Order published in the Gazette deter-mine the extent of paddy land that may be cultivatedby a tenant cultivator in any district to which suchOrder relates:
Provided, however, that where the Commissioner issatisfied after due inquiry that a tenant cultivator isalso an owner cultivator of any paddy land of not lessthan five acres in extent, the Commissioner maydeclare that such tenant cultivator shall not beentitled to his rights as a tenant cultivator under theprovisions of this Act, and accordingly the provisionsof subsections (3), (4), (5) and (6) of this section shallapply to such tenant cultivator,
The tenant cultivator shall, if he is in occupationof an extent of paddy land in excess of the extentspecified in an Order under sub-section (2), subject to
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the approval of the Commissioner, be entitled toselect the extent of paddy land which he is entitled tocultivate, and shall vacate the balance extent on beingordered to do so by the Commissioner.
Where a tenant cultivator fails to comply with theprovisions of sub-section (3) he shall be evicted fromthe extent of paddy land in excess of the extent speci-fied in the Order under sub-section (2) and the provi-sions of section (6) shall apply to any such eviction.
On vacation of such extent by the tenant cultiva-tor, the landlord shall, with the approval of theCommissioner,
be entitled to cultivate such extent on such con-ditions as may be prescribed; or
appoint one or more tenant cultivators for suchextent within such period as may be prescribed.
On failure of the landlord to take action under theprovisions of paragraph (a) or paragraph (b) of sub-section (S) within the prescribed period the Commis-sioner shall be entitled to appoint a suitable person tocultivate that extent of paddy land”.
It is common ground that no order has been made by theMinister so far in terms of sub-section (2) applicable to theparticular district in which the disputed paddy land is situatedand for that matter my own inquiries reveal that no such orderhas been made in respect of any district in the island. The con-tention advanced on behalf of the appellant is that the provisogoverns only sub-section (2) and it springs into life solelyupon the Minister making an Order in terms of that sub-sec-tion. If that contention is correct clearly the Commissioner hasacted ultra vires and without jurisdiction.
Apart from several points of criticism of the judgment ofthe Court of Appeal which I need not enumerate here, two
SC Ismalebbe v. Assistant Commissioner of Agrarian Services (Dhecraratne, .137
principal grounds were urged on behalf*of the appellant insupport of the contention seeking to restrict the operation ofthe proviso to the contents of sub-section (2) only, and theyare:—
The punctuation used in section 4 namely that a fullstop appears at the end of sub-section (1) whereas acolon appears in sub-section (2) before the proviso beg-ins.
To enable the proviso to be extended to sub-section (1)of section 4, that section should be rewritten as
follows:—
In the proviso the words “and accordingly the provi-sions of subsections (3), (4), (5) and (6) of this sectionshall apply to such tenant cultivator” would have tobe deleted In toto; and/or
(a) in sub-section (3) the words “in excess of such
extent specified in the Order under sub-section (2)”
will have to be deleted and words such as eg. “in
excess of five acres as specified in sub-section (1) or
in excess of the extent specified in an Order under
sub-section (2)” would have to be substituted.
»
(b) In sub-section (4) the words “in excess of theextent specified in the Order under sub-section (2)”would have to be deleted and words as at (a) abovehave similarly to be substituted.
(The above formulation of this submission takenverbatim from the petition of appeal, was adoptedby learned counsel for the appellant in the course ofhis argument.)
Bindra’s Interpretation of Statutes (7th Edition) after anexhaustive dissertation on the use of punctuations as an aid to
Sri. I ;jiiA:j law Rr/nW
I IWIf J Sri I..R.
.US
interpretation, at page 68 sums the position in the followingwords:—
“To summarize, while marks of punctuation contained in astatute will not generally be wholly ignored by the Court ininterpreting a statutory provision, it may not always be safeto rely on punctuation as a delivering factor. Great importance
will be attached by the Court to the(sic) employed by the
legislative and if it is found that the word (sic) used in the sec-tion when read as a whole, clearly furnish a clue to the legisla-tive intent underlying the section and they admit of an inter-pretation consistent with the said legislative intent, anypunctuation work which is inconsistent with such constructionwill be disregarded and the punctuation will not be allowed tocontrol rite plain meaning of the text”.
Thus it appears that the punctuation cannot be consideredto be a decisive and a safe guide for discovering the legislativeintent. In any event the comma appearing at the end of thatvery proviso in the original Act which cannot be justifiedunder any circumstances and rightly substituted by a fullstopin the Revised Enactments of 1980. fortifies me in the view Ihave taken that punctuation cannot be considered that sacro-sanct.
Th e second argument of learned counsel for the appellantthat section 4 has to be rewritten as suggested, “if the provisois meant to be annexed to sub-scction (I) as well” docs notappear to me to bear scrutiny at all. I sec no necessity todelete from the proviso the words “and accordingly the provi-sions of sub-scctions(3). (4), (5) and (6) of this section shallapply to such tenant cultivator,” to enable the proviso to bemade applicable to sub-scction (1) as well. The proviso con-templates the case of a tenant cultivator, who, by virtue of thefact that he is also an owner cultivator of an extent of paddywhich is not less than five acres, becoming disentitled to hisrights of a tenant cultivator upon a declaration made by theCommissioner after inquiry. So, even if the proviso applies
SC Ismalehhe v. Asi(s(anr Commissioner of Agrarian Services (Dheer^ratne, J.) .W
only to the case of a tenant cultivator in a district to which anOrder made by the Minister relates as contemplated in sub-section (2), the words suggested to be deleted from the provisomust necessarily remain. The submission made regarding thenecessity to delete the words “in excess of the extent specifiedin the Order under sub-section (2)” in both sub-sections (3)and (4) and the substitution therefor the words “in excess offive acres as specified in sub-section (1) or in excess of theextent specified in an Order made by subsection (2), in order toenable the proviso to be annexed to subsection (1), appears to bemanifestly fallacious, because it concedes the necessity of suchamendment even if the proviso is annexed to sub-section (2)only.
In my view the legislative intent should be gathered byreading section 4 in its entirety in the context of the object andpurpose the legislature had in mind in enacting the provision.It will be perhaps useful to bear in mind the legal character ofa “cultivator” in attempting to do so.
By section 68, Act, No. 58 of 1979 defines a cultivator asfollows:—
“Cultivator with reference to an extent of paddy landmeans any person other than an Agrarian ServicesCommittee, who by himself or by any member of hisfamily or jointly with any other person, carries out onsuch extent:
two or more operations of ploughing, sowing andreaping; and
the operation of tending or watching the crop ineach season during which paddy is cultivated on suchextent”.
The above definition contained in the Act, except for someinsignificant modifications, substantially corresponds to thedefinition of a cultivator given in its legislative predecessor the
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Law No. 42 of 1973.»It is significant to observe that whether acultivator is an owner cultivator or a tenant cultivator such aperson must necessarily possess the attributes of a cultivator asdefined above. The law apears to have been consistent infrowning upon both absentee landlordism and absentee tenan-try and ensuring the personal attendance of a cultivator incertain major operations of cultivating paddy. This principleaccords with one of the purposes of the Act as evidenced fromits preamble namely, “ to provide for maximum produc-tivity of paddy lands through the proper use and manage-
ment of Agricultural crops”.
In this legislative background it is not surprising that thelaw endeavoured to ensure that no tenant cultivator shouldbite off more than he could chew. Thus the Act, No. 58 of1979 brought in a new feature by enacting section 4(1) whichwas absent in any of its legislative predecessors in limiting themaximum extent of paddy land that could be cultivated by atenant cultivator. With the birth of this new concept of a ceil-ing, two other questions naturally arose. Firstly, should theceiling be uniformly applied to all parts of the country irres-pective of the possible differing conditions like the availabilityof paddy lands? Secondly, should an owner cultivator of notless than five acres of paddy land whose personal attendance isrequired for such cultivation be permitted to be a tenant culti-vator of any extent of paddy land which in turn demands hispersonal attendance? The law appears to have provided theanswers in enacting sub-section (2) with its proviso, the pro-viso thus manifestly intended to govern the contents of bothsub-sections (I) and (2). Had the legislature intended the pro-viso to govern only sub-section (2) I would have expected it tohave used the words “such a tenant cultivator” instead of theunrestricted words “a tenant cultivator” in the 2nd line of theproviso.
If the interpretation sought to be placed on the proviso tosub-section (2) on behalf of the appellant is correct, an owner
SC Ismalebbe v. Assistant Commissioner of Agrarian Services (Dheetaratnc, J.) Ml
cultivator of not less than five acres of paddy is liable to losehis rights as a tenant cultivator in an area covered by theOrder of the Minister, whereas his counterpart in the area out-side would not be so liable. We have not been persuaded toaccept a rationale emanating from within the four comers ofthe Act justifying such differential treatment. As stated byDankwert L.J, in Artemion v. Procopioa, “An intention toproduce an unreasonable result is not to be imputed to a sta-tute if some other construction is available”.
Although the foregoing reasons are sufficient to dispose ofthis appeal I am constrained to make a few observations onsection 4 before I part with this judgment. While the sectionmakes provision for ejectment of a tenant cultivator who is inoccupation of an extent of paddy land in excess of the extentspecified in an order made by the Minister under sub-section(2), it has failed to make parallel provision for ejectment of atenant cultivator who is in occupation of an extent of paddyland in excess of a maximum paddy land stipulated in sub-sec-tion (l). The words of the proviso of the subsection (2) “andaccordingly the provisions of sub-sections (3), (4), (5) and (6)of this section shall apply to such tenant cultivator" would besenseless and would remain unworkable, unless having regardto the obvious legislative intent, they are construed to meanthat those sub-sections shall apply “mutatis mutandis”. Forthe above reasons I am unable to commend the wording ofsection 4 as a thoughtful exercise in model draftmanship.However, these infirmities in the section in no way help tobuttress the contention of the appellant.
The appeal is dismissed with costs.
Appeal dismissed.