ISMALEBBE v. JAYAWARDENA, ASSISTANT COMMISSIONER OF AGRARIAN SERVICES AND OT

021-SLLR-SLLR-1990-2-ISMALEBBE-v.-JAYAWARDENA-ASSISTANT-COMMISSIONER-OF-AGRARIAN-SERVICES-AND-OT.pdf


ISMALEBBE
v.
JAYAWARDENA, ASSISTANT COMMISSIONER OF AGRARIANSERVICES AND OTHERS
COURT OF APPEAL.
S. N. SILVA. J.,
C. A. APPLICATION No. 978/83.
OCTOBER 08, 1990.
Interpretation – Whether application of a Proviso of a section is restricted to the sectionimmediately proceeding it-Agrarian Services Act. No. 58 of 1979. Sections 4(1) and(2) – Need for interpretation of any provision to be consistent with the provisions of theConstitution. Constitution – Article 12(1).
The 2 to 5- respondents are owners of a land. 28 acres in extent of which 22 acresare in paijdy. The petitioner became the tenant cultivator of the land in 1984. 'On18.11.1982 the 2 to 5 respondents filed an application against the petitioner to theCommissioner of Agrarian Services seeking a declaration in terms of the proviso toSection4(2) of the Agrarian Services Act. No. 58 of 1979 that he is not entitled to the rights of atenant cultivator, on the basis that he is also the owner cultivator of paddy land of not lessthan 5 acres in extent. The 2 to 5 respondents claimed that the petitioner was the ownercultivator of more than 20 acres of paddy land. The 1st respondent (AssistantCommissioner) held the inquiry and found that the petitioner was the owner cultivator of
paddy land of not less than 5 acres in extent and not entitled to the rights of a tenantcultivator in terms of the proviso to S. 4(2) of the Agrarian Services Act. The petitionermoved for a Writ of Certioran to quash this decisio'n.
Held :
The proviso to Sub-section 4(2) of the Agrarian Services Act deals with a specific class
of cases namely that of tenant cultivators whp are also owner cultivators of paddy land ofnot less than 5 acres in extent. The operation of this proviso is not restricted to.districts inrespect of which the Minister has made an order in terms of Subsection (2). It will apply toevery tenant cultivator who is also an owner cultivator of paddy land of not less than 5acres in extent. In other words the proviso will apply to situations covered by bothsubsections (1) and (2) of Section 4.'
If Section 4 is interpreted to mean that the proviso to Subsection (2) of section 4 islimited in application to Subsection (2) and does not extend to Subsection (1). it wouldresult in a irrational classification of persons and would violate the right to equality beforethe law. which right is guaranteed to every person by Article 12(1) of the Constitution.
Any provision of law should be interpreted so that it would apply in a manner consistent• with the Constitution which is the Supreme Law of the land.
Even as a general rule of interpretation it is not permissible to restrict the operation ofthe proviso to the subsection which immediately precedes it. A proviso should beconstrued in relation to.the entire section and where necessary in the context of even theother sections.
«
Cases referred to –
Karunadasa v. Wijesinghe (1986) Sri LR 368.
fl. V. Newark Inhabitants 38 & C 71.
Saradambal v. Seethalakshmi AIR 1962 Mardras 108.
■APPLICATION for Writ of Certiorari to quash decision of Assistant Commissioner ofAgrarian Services.
S. C. Crosette Thambiah with K. Thevarajah for the petitioner.
Faiz Mustha'pha, P.C. with N. M. Shaheid for respondents.
Cur. adv. vult.
October 26, 1990
S. N. SILVA, J„
The 2nd to 5th Respondents to this application are the owners*of a landcalled ."Vaddukaduveli" in extent about 28 acres of which 22 acres areunder paddy, situated in the Ampara District. The Petitioner became thetenant cultivator of this paddy land in 1964. In 1968 the 2nd to 5thRespondents filed case No. D.C. Batticaloa 2441/L for the recovery of
arrears of rent and for the eviction of the Petitioner. The basis of the claimfor eviction was that the Petitioner was not a tenant cultivator within themeaning of the operative law since he cultivated the paddy land withhired labour. The District Court gave judgment infavourof the 2nd to 5thRespondents and the Petitioner was evicted pending an appeal fil$d byhim against the judgment. The appeal filed by the Petitioner, C.A. 233/73(F) was allowed by this Court and the order for eviction entered by theDistrict Judge was set'aside. The judgment of this Court was affirmed bythe Supreme Court on 22.10.1982..
On 18.11.1982 the 2nd to 5th Respondents made an applicationagainst the Petitioner to the Commissioner of Agrarian Services for adeclaration in terms of the proviso to Section 4(2) of the AgrarianServices Act, No. 58 of 1979 that he is not entitled to the rights of atenant cultivator, on the basis that he is also the owner cultivator ofpaddy land of not less than 5 acres in extent. The 2nd to 5thRespondents claimed that the Petitioner was the owner cultivator ofmore than 20 acres of paddy land. It was contended by the Petitionerthat he gifted some of his paddy lands to his children prior to the AgrarianServices Act. The.1st Respondent being the.Assistant Commissionerwho held the inquiry into the said application arrived at a finding thatthere wasample evidence to establish that the Petitioner was the ownercultivator of paddy land not less than 5 acres in extent. On this basis the1 st Respondent held that the Petitioner is not entitled to the rights of atenant cultivator in terms of the proviso to Section 4(2) of. the Act.Thereupon the Petitioner filed this application for a Writ of Certiorari toquash the declaration made by the 1 st Respondent.
Learned Counsel appearing for the Petitioner sought to challenge thesaid declaration only on the ground that it is ultra vires. It was thesubmission of Counsel that a declaration could not be made under theproviso to Section 4(2) although the Petitioner was an owner cultivatorof an extent, not less than 5 acres, because the Minister has not madean order in terms of Section 4(2) of the Act in respect of the AmparaDistrict where the paddy land is located. It was submitted that theproviso to Section 4(2) will apply only in respect of a district where theMinister has made an order in terms of Section4(2). The submission oflearned President's Counsel appearing for the 2nd to 5th Respondentswas that the proviso will apply to every instance where a tenant cultivatoris also ah owner cultivator of paddy land not less than 5 acres in extent.
In other words, that the proviso will apply to situations covered by bothsub-sections (1) and (2) of Section 4. Learned President's Counselfurther submitted that the interpretation contended for by Counsel forthe Petitioner would result in an absurdity.
Submissions of Counsel relate only to the interpretation of Section 4of the Agrarian Services Act which enacts as follows :
A. (1) The maximum extent of paddy land that could be cultivatedby a tenant cultivator shall be five acres.
The Minister may subject to the provisions of sub-section
by Order published in the-Gazette determine the extentof paddy land that may be cultivated by a tenant cultivatorin any district to which such Order relates :
Provided, however, that where the Commissioner issatisfied after due inquiry that a tenant cultivator is alsoan owner cultivator of any paddy land of not less thanfive acres in extent,, the. Commissioner may declarethat such tenant cultivator shall not be erftitled to hisrights as a tenant cultivator under the provisions of this’Act, and accordingly the provisions of subsections (3),
, (5) and (6) of this section shall apply to such tenant• cultivator.
The tenant cultivator shall, if he is in occupation of an extent
of paddy land in excess of the extent specified in an Order„ under subsection (2), subject to the approval of the.;
Commissioner, be entitled to select the extent of paddy' land which he is entitled to cultivate, and shall vacate thebalance extent on being ordered to do so by theCommissioner.
Where a tenant cultivator fails to comply with the provisions
of subsection (3) he shall be evicted from the extent ofpaddy land in excess of the .extent specified in the Orderunder subsection (2) and the provisions of Section 6 shallapply to any such eviction.
Subsections (5) and (6) are applicable only upon a vacation of the paddyland by the tenant cultivator and are not relevant to the submissions.
Learned Counsel for the Petitioner relied on two grounds irisupport ofhis contention that the proviso will only apply where the Minister hasmade an order in terms of subsection (2). They are : • •
that the proviso appears immediately beneath subsection (2)and as such should qualify only that subsection ;
that the concluding words in the proviso, “and accordingly theprovisions of subsection (3),(4),(5) and (6) of this section shall -apply to such tenant cultivator'. clearly indicate that the proviso isintended to qualify only subsection (2).
The submission is- that subsection (3) and the consequentialprovisions can apply only where there is an order by the Minister •in terms of subsection (2).
. Section 4 of the Agrarian Services Act is a new provision, in that thepreceding legislation on the subject namely the Paddy Lands Act. No. 1of -1958, the Agricultural Lands Law, No. 42 of 1973 and theAgricultural Productivity Law, No. 2 of 1972 did not have a provision ofsimilar import. Under these laws a limit was not placed as to the extent of.paddy land of which a person could be a .tenant cultivator. Whereas.Section 4 (T) of the Agrarian Services Act directly imposes a limit as tothe extent of paddyoland in respect of which a person could be a tenantcultivator. It is stated"specifically that the maximum extent of paddy land •that could be cultivated by a tenant cultivator shall be 5 acres. Theopening words of subsection (2) 'the- Minister may subject to theprovisions of subsection (1)"; imply that the limit that may be imposed bythe Minister in respect of any district, in terms of the subsection, has tobe less than the extent of 5 acres specified in subsection (1). Thereforesubsection (1) could be considered as laying down a maximum "of 5acres applicable to the entire Island whereas an exception could be'made in respect of any particular district by the Minister by reducing it toa lesser extent. Subsection (2) does not contain any guidelines as to theexercise of the discretion vested in the Minister. Considering that thelimit that may be imposed by the Minister should be less than 5 acres, itmay be gathered that the Minister will be guided by considerations suchas the extent of cultivable paddy land in the district, the density of the-.agricultural population and.the availability of irrigated water.
The proviso to subsection (2) does not seek to impose directly or'indirectly a (imitation as to the extent of paddy land that may becultivated- by a tenant cultivator. It' empowers the Commissioner to
declare that a person is "not entitled to his rights as a tenant cultivator".Thus the extent of paddy land to be cultivated by a tenant cultivatorwhich is fixed at a maximum of 5 acres in subsection (1), and may bereduced to a lesser extent by subsection (2) is brought down to zero bythe proviso. The criteria, on .the basis of which the proviso operates, isnot the same as that of subsections (1) and (2). In these subsections thecriteria is the extent of paddy land cultivated by the tenant cultivator. Inthe proviso, the, criteria is the extent of paddy land of which the tenant 'cultivator is an owner cultivator. Therefore, the proviso operates oncriteria that is distinct from thatxrf subsections (1) and-(2) and also itsconsequence is more far reaching than what is provided for in the twosubsections. '. •
I have to now consider whether the proviso operates only where theMinister has made an order in terms of subsection (2)., as contended bylearned Counsel for the Petitioner.
The Minister is empowered in terms of subsection (2) to lower thelimit of paddy land in respect of which a person could be a tenantcultivator in a particular district. If the proviso is to operate only in such aninstance, a person who is a tenant cultivator of paddy land situated in adistrict in respect of which the Minister has not made an order undersubsection (2) can be the tenant cultivator of b acres of paddy land andalso the owner cultivator of any extent of paddy land. On the other hand,in a district in which the Minister has made an order in terms ofsubsection (2) reducing the extent of paddy land tn respect of which aperson could be a tenant cultivator, from 5 acres to a lesser extent, if thetenant cultivator is also an-owner cultivator of not less than'5 acres, thatperson could cease to be the tenant cultivator of- even the reducedextent as ordered by the Minister. This consequence could be describedas absurd, as submitted by learned President's Counsel for the.Respondents,-Certainly, it would result in an irrational classification ofpersons being tenant cultivators who are also owner cultivators of paddyland of no.t less than 5 acres in extent. Such an interpretation: woulddiscriminate against this category of tenant and owner cultivators, in a.district in respect of which the Minister has made an order in terms ofsubsection (2) and be favourable to similar persons in districts in whichthe Minister has not made an Order in terms of subsection (2).Therefore, the interpretation contended for by Counsel for the Petitionerwould result in a violation of the right to equality before the law that isguranteed to every person by Article 12(1) of the Constitution. Anyprovision of law should be interpreted so that it would apply in a mannerconsistent with the Constitution being the Supreme Law of the land. Aninterpretation that may result in a provision being applied in a mannerinconsistent with the Constitution has to be avoided. In this regard it isstated as follows in Bindra's Interpretation of Statutes .(198.7, 7thEdition at page 161) :
"It.is well settled that if certain provisions of law construedin one way would make them consistent with the Constitution, andanother interpretation would render them unconstitutional, the Courtwould lean in favour of the former construction".
• An examination of case law shows that a proviso is a fertile area fromwhich arguments of varied dimensions could be thrown up. It has beenargued that the contents of a proviso limit the ambit of operation of themain section and at times in the reverse, that the ambit of the proviso isrestricted by the main section. In the case of Karunadasa v. Wijesinghd"it was argued that the 2nd proviso to Section 765 of the CivilProcedure Code limits the ambit of the main section. The SupremeCourt held against this submission “upon a. reading of the provisions ofboth the main enactment of section 765.and of the two provisos" (page364).
In this case the submission of Counsel for the Petitioner is the reverseof the submission advanced in Wijesinghe'scase. Here the submissionis that the ambit of the proviso is limited by the provisions of the-subsection that immediately precedes it. In my view the correctapproach to the construction of a proviso is to read it in the entire contextin which it appears. As observed by Holroyd, J. in the case of R v. NewarkInhabitants(2) such a matter has to be decided upon the words and theirimport and "not upon the division into sections that may be made for theconvenience of reference in the printed copies of the Statutex".
As a matter of interpretation, the submission of learned Counsel for.the Petitoner that the proviso should be' considered as qualifying onlysubsection (2) is untenable- In the case of Saradambal vSeethalakshmi3' Pillai, J. observed as follows :
"Unless there are special indications to show that a proviso to asection is limited to one part of it, normally the proviso governs'theentire section, secondly, it is not necessary for the purpose of makinga proviso applicable to the entire section to repeat it after each clauseof that section. The proviso is really in the nature of an exceptionwhich takes a class of cases out of the operation of the main section."
The foregoing passage of the judgement of Pillai, J., has beenreproduced verbatim in Bindra's Interpretation of Statutes (7th Edition,at page 80). Therefore, even as a general rule of interpretation it is notpermissible to restrict the operation of the proviso to the subsectionwhich immediately precedes it. A proviso should be construed inrelation to the entire section and, where necessary in the context of eventhe other sections. It should be considered a legislative measure toremove a certain class of cases from the operation of the main sectionand where necessary the other sections of .the Act. The proviso toSection 4(2) deals with a specific class of cases namely of tenantcultivators who are also owner cultivators of paddy land not less than 5 .acres in extent. In respect of this class of cases the proviso vests apower in thevCommissioner to make a declaration that a person comingwithin the class is not entitled to his rights as a tenant cultivator underthe provisions of the Act. The words, 'The Commissioner may declarethat such tenant cultivator shall not be entitled to his rights as a tenantcultivator under the provisions of this Act," appearing in the proviso are aclear indication that the proviso is intended to operate as an exceptionnot only to subsections (1) and (2) of Section 4 but also to the other •sections of the Act that grant a tenant cultivator an extensive security oftenure. In this regard, I wish to cit'e the following passage from Maxwellon the Interpretation of Statutes (1 2th Edition, Tripathi Publication p.190).
"If, however, the language Of the proviso makes it plain that it wasintended to have an operation more extensive than that of theprovision which it immediately follows, it must be given such widereffect."
The construction placed by me above to the proviso is also in accordwith the legislative purpose underlying the provisions of Section4. It is. apparent that Section 4 was introduced, as a departure from previouslegislation on the subject, in order to strike a balance between the ■competing interests of the tenant cultivators and that of owners ofpaddy land. It is from this stand point that a limit was placed at 5 acres bysubsection (!) as the maximum extent in respect of which any personcould be a tenant cultivator. Subsection (2) empowers the Minister tolower this limit in respect of any district by Order published 'in. theGazette. The purpose of the proviso is to deal with the class of cases in-which tenant cultivators are also owner cultivators of extent of not lessthan 5 acres. With regard to this class of tenant and owner cultivators.
legislature has thought it fit to vest a power in the Commissioner, to.make a declaration that such a person is not entitled to the rights’of atenant cultivator under the provisions of the Act. Indeed, it would detractfrom .this legislative purpose if the proviso is construed as beingoperative only where the Minister has made an (jrder in .terms ofsubsection (2).
Learned Counsel for the Petitioner also relied on the words; ."andaccordingly the provisions of subsection (3),(4),(5) and (6) of thissection shall apply to such tenant cultivators”, to support his submissionthat the proviso only qualifies subsection (2). It was submitted that theprovisions of subsection (3) in particular cannot'operate unless there isan Order made by the Ministef in terms of subsection (2).
It is clear from the scheme of Section 4 that subsections (3),(4),(5)and (6) would ordinarily operate only where the Minister has'made an .Order in terms of subsection (2) reducing the extent of paddy land thatmay be cultivated by a tenant cultivator in any particular district, from .5acres to a lower extent. In the absence of the words relied upon byCounsel the provisions of the subsections would not apply to aninstance regulated by the proviso. The submission of counsel was thatthe greater portion of subsection (3) would not apply if the proviso isconstrued as qualifying subsection (1) as well. However, it is seen thatthe same portions of subsection (3) will not apply even if theinterpretation con tended for by Counsel is given by limiting the operationof the proviso to subsection (2) only. In my view the words, “andaccordingly the provisions of subsections (4),(5) and (6) shall apply to' such tenant cultivators" should be construed as a legislative measure tomake the provisions of these subsections applicable mutatis mutandisto every instance regulated by the proviso.
For the reasons stated above I am of the view that the proviso tosubsection 4(2) of the Agrarian Services Act deals with a specific classof cases namely that of tenant cultivators who are also owner cultivatorsof paddy land of not less than 5 acres in extent. The operation of thisproviso is not restricted to districts in respect of which the Minister, has •made an Order in terms of subsection (2). It will apply to every tenant. cultivator yvho is also an owner cultivator of paddy land not less than,5.acres in extent. The Commissioner is empowered by this proviso tomake a declaration after due inquiry that^any such person shall not beentitled to his rights as a tenant cultivator under the provisions of the Act.
Thereupon the Commissioner is empowered to make an order in termsof subsection (3) directing the tenant cultivator to vacate the paddy landso cultivated by him. Subsection (4) wili apply where a tenant cultivatorfails to comply with.such an Order and he would be liable to be evicted inaccordance with the procedure provided for in section 6 of the Act. Theprovisions of subsections (5) and (6) will then apply in relation to theparticular land vacated by the tenant cultivator.
Counsel for the Petitioner did not seek to canvass the order made by.the 1 st Respondent on any ground other than what is referred to above. I.am'‘of the view that the ground urged by the Counsel .is untenable and Iacordingly dismiss this application with costs fixed at Rs. 1 ;500 payableby the Petitioner to the 2nd to 5th Respondents.
Application dismissed.