030-NLR-NLR-V-79-1-J.-K.-ALPENIS-SINGHO-Petitioner-and-K.-D.-PILOCHCHIYA-FERNANDO-and-ANOTHER-R.pdf
Alpenia Singho v. Ftrnundo
275
1976Present: Pathirana, J., Ratwatte, J. andWanasundera, J.
J.K. ALPENIS SINGHO, Petitionerand
K.D. PILOCHCHIYA FERNANDO and ANOTHER, Respondents.
S. C. Application No. 520/75
Faddy Lands Act, No. 1 of 1958, sections 4 (J), 21—-Complaint of evictionby tenant cultivator—Requirement that landlord be given anopportunity of being heard at inquiry—Effect of non-compliancewith this requirement—Agricultural Lands Law, No. 42 of1973, section 53 (4).
276
PATHIRANA, J.—Alpenis Singho v. Fernando
Writ of Certiorari—Application in 1975 to quash order made underPaddy Lands Act in 1964—Objection on ground of delay in seekingremedy—Petitioner’s contention that he was unaware of anyproceedings until Order under section 21 of Paddy Lands Act byMagistrate in 1973—Delay excused.
Held : (1) That where in an inquiry held by thv Assistant Com-missioner of Agrarian Services under the Paddy Lands Act on acomplaint of eviction made by a tenant cultivator, there is a findingof eviction against a person who was not present at the inquiry,such a finding could not stand. The landlord of such extent of paddyland and the person evicted must be given an opportunity of beingheard in person or through a representative at such inquiry.
(2) That the petitioner who contended that he was unaware ofany such proceedings under the Paddy Lands Act until theMagistrate’s Court of Gampaha issued notice on him on 31stJanuary, 1973 under section 21(1) of the Paddy Lands Act shouldnot be denied relief by way of Certiorari on the ground that hisapplication was belated even though the order of the AssistantCommissioner of Agrarian Services had been that he vacate thesaid extent of paddy land on or before 10th June, 1964.
June 22, 1976. Pathihana, J.
This is an application dated 22nd July, 1975, by the petitionerwho claims to be the owner-cultivator of an extent of paddyland called Devatagahakumbura for a Writ of Certiorari to quashthe order of the 2nd respondent, the Assistant Commissioner ofAgrarian Services, ordering the petitioner in terms of section4(1) (b) of the Paddy Lands Act to vacate on or before the 10thof June, 1964 the paddy land in question. The main ground onwhich the petitioner seeks to quash the said order is that he hadno notice of the inquiry that was held by the 2nd respondentin respect of the complaint made by the 1st respondent whoclaimed to be the evicted ande cultivator of the said field, norwas he given any opportunity of being heard before theimpugned order was made against him.
According to the 1st respondent who claimed to be the andecultivator of the field in question, the field was cultivated byhim from 1925 till September 1958. In 1925 the owner was oneIssan Appu under whom he was the ande cultivator. Issan Appusold the field to Abeywardene but the 1st respondent continuedto deliver the ande share to Issan Appu who managed the fieldfor the new owner Abeywardene. After Abeyawardene’s deathhis heirs sold the field to D. A. Charles Perera but the 1st res-pondent continued to cultivate the field and he gave the ground
APPLICATION for a Writ of Certiorari.
Prins Gunasekera, for the petitioner.
P. Goonesekera, State Counsel, for the respondents.
Cur. adv. vult.
PATH1RANA, J.—Alpenis Singlto v. Fernando
277
share to Alpenis, the manager of Charles Perera. Alpenis sinceSeptember 1958 prevented the 1st respondent from cultivatingthe said field.
The 1st respondent originally made a complaint in Case No.1069 to the Assistant Commissioner of Agrarian Services makingIssan Appu the respondent. Issan Appu, however, stated that hewas not the owner of the field and the application was thereforedismissed. He thereafter filed the present application makingCharles Perera the respondent alleging that he was the ownerof the land at the time of eviction by Alpenis. Charles Pererawas not present at the inquiry on 20.1. 69 before the 2nd res-pondent. At the ex-parte inquiry on the evidence led by the 1strespondent, the 2nd respondent held that the 1st respondent hadcultivated an extent of one acre from 1925 till September 1958,as tenant-cultivator. He had given the ande share to Alpenis,the manager of Charles Perera. Alpenis had evicted the 1st res-pondent in September 1958 and thereafter Alpenis as themanager of Charles Perera was cultivating the said field. Bynotice under section 4(1) (c) of the Paddy Lands Act dated25. 8. 62 (2R4) Charles Perera was informed of the decision ofthe 2nd respondent that the 1st respondent had been evictedfrom the field in question. Thereafter the 2nd respondent interms of section 4(1) (d) by notice dated 19th May, 1964 orderedthe petitioner and every person in occupation of the paddy landin question to vacate the same on or before the 10th of June, 1964.On 31. 1. 73 the Magistrate, Gampaha, in Case No. 65652/Aissued notice on the petitioner in terms of section 21 (1) of thePaddy Lands Act directing the petitioner and all persons inoccupation of the extent of paddy land to vacate forthwith theextent of the paddy land. It is the petitioner’s contention thatthis was the first time he became aware of any proceedingsunder the Paddy Lands Act in respect of the paddy field inquestion or any dispute relating thereto.
The petitioner’s case is that he became the owner of theextent of the paddy land by Deed No. 667 of 14.7.54 by purchasefrom one S. A. Gunawardene and from that date he had culti-vated the said paddy field as owner-cultivator and that therewas no tenant-cultivator in respect of the said paddy land at anytime. He has also produced a certificate dated 28.7.7 from theCultivation Committee (P4) to the effect that he had cultivatedthe said paddy field for 19 years as owner-cultivator and thatthere was no tenant cultivator at any time in respect of the saidpaddy land.
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PATHIRANA, J.—Alpenis Singho v. Fernando
The finding of the 2nd respondent is that it was the petitionerwho evicted the 1st respondent but that the petitioner did so asmanager of Charles Perera who was the respondent at the inquirybefore him. If this is factually correct then the presumptionunder section 4(b) that unless the contrary is proved theeviction had been made by or at the instance of, the landlordof such extent is not rebutted.
Mr. Prins Gunasekera for the petitioner submitted that inthis case the complaint has been made naming CharlesPerera as the respondent who did not at any timeappear at the inquiry. The finding of the 2nd respondentwas that it was not Charles Perera who evicted the1st respondent, but that it was the petitioner as Manager ofCharles Perera. On Deed No. 667 of 14.7.54 the petitioner claimedto be the owner of the said paddy field. The date of eviction was9. 6. 1960 and the reason for eviction was that there was a newowner. There was no documentary proof adduced by the 1strespondent that Charles Perera was the owner of this paddyland. There was only the oral evidence of the 1st respondentat the inquiry before the 2nd respondent that Charles Pererawas the owner of the field in question.
Mr. Gunasekara therefore submitted that the 1st respondenthad in order to obtain the use and occupation of the paddy landmade an application naming a person called Charles Perera asthe landlord who was not the landlord of the paddy land and bythus obtaining an order for eviction against a fictitious landlordsought to vacate a bona fide owner-cultivator namely the peti-tioner from the paddy land in question.
When an evicted tenant-cultivator makes an application tothe Commissioner of Agrarian Services for the purpose of deci-ding the question whether or not such person had been evictedunder section 4(1)(c), the landlord of such extent and the
person evicted shall be given an opportunity of being heard inperson or through a representative at such inquiry. If in factthe petitioner was the owner-cultivtaor of the field in questionthen there being no tenant-cultivator, no question of evictionwill arise under section 4(1A) of the Paddy Lands Act for thepurpose of deciding the question whether or not the 1st res-pondent had been evicted. There would, in addition, have beenno landlord in terms of the Paddy Lands Act in respect of thispaddy land for the reason that section 63 (1) defines the term“landlord” as follows:
PATHIRANA, J.—Alpeniv Hinylto v■ Fernanuo
279
“Landlord”, with reference to any extent of paddy land,means the person, other than an owner cultivator, who willfor the time being be entitled to the rent in respect of suchextent if it were let on rent to any person, and includes anytenant of such extent who lets it to any subtenant: ”
In these circumstance we agree wih the contention put for-ward by Mr. Gunasekera that the petitioner should be given anopportunity to present his case before the Commissioner inorder to establish that he was the owner-cultivator of the paddyland in question, for the reason that if the contention of thepetitioner is correct then the 1st respondent had obtained theorder in his favour on the misrepresentation that Charles Pererawas the landlord of the said paddy land. We are not inclinedto agree in the circumstances of this case with the contention ofthe learned State Counsel who appeared for the 2nd respondentthat this applictaion having been belatedly made the remedyby way of certiorari was not available to the petitioner.
We, therefore quash the order of the 2nd respondent orderingthat the 1st respondent be restored to the use and occupationof the paddy land in question and the consequential order madeby the Magistrate’s Court under section 21 of the Paddy LandsAct against the petitioner to vacate the said paddy land.
We direct the Commissioner of Agrarian Services to takesteps to continue the proceedings which have already com-menced on the application of the 1st respondent under therepealed Paddy Lands Act as proceedings which are pendingand in respect of which inquiry has commenced within themeaning of Section 53(4) (b) of the Agricultural Lands Law,No. 42 of 1973. The Commissioner, after noticing the petitionerin order to give him an opportunity of proving that he is theowner-cultivator of the said paddy land, will hear and concludethe inquiry and thereafter take action, if necessary, undersection 53 (4) (c) .
Ratwatte, J.—I agree.Wanasundara, J.—I agree.
Applicatoin allowed.