YAPA AND OTHERS
SHARVANANDA, C.J.. ATUKORALE, J. AND L H. DE ALWIS. J.
S.C. APPEAL No. 2/86.
C.A. APPLICATION No. 1070/82.
NOVEMBER 19. 1986.
Writ of Certiorari-Devolution of tenancy-Right of deceased tenantcultivator-Succession-Jurisdiction-Agrarian Services Act No. 58 of 1979. ss. 8(1)and (2) and 9(1).
The dispute was whether the paddy land was cultivated as two distinct and separatelots by the appellant's father and the 1st respondent's father or whether it wascultivated as one land jointly by them. The devolution of the tenancy right of theappellant's father who died in 1974 depended on the resolution of this dispute. If theappellant's father had cultivated distinct lots then his tenancy rights would devolve onhis son the appellant, (s.8(1) of the Agrarian Services Act). But if the two lotsconstituted one paddy land and the appellant's father and the 1st respondent's fathercultivated it jointly then on the death of the appellant's father his rights would devolveon the other cultivator. (S.8(2) of the Agrarian Services Act). The dispute being inregard to the devolution of the deceased tenant cultivator’s right, it must under s.9 ofthe Agrarian Servics Act be referred for determination to the Commissioner of AgrarianServices.
The question of the consequent amendment of the Agricultural Lands Register isincidental to the decision on the question of the devolution.
Therefore the reference to the Agrarian Services Committee was wrong and theCommittee had acted without jurisdiction as also did the Assistant Commissioner ofAgrarian Services in entertaining and deciding the appeal. This want of jurisdiction is notcured by the fact that the appellant preferred the appeal to the Commissioner. Wherethere is a patent want of jurisdiction a party cannot by acquiescence or waiver conferjurisdiction.
Case refered to:
Beatrice Perera v. Commissioner of National Housing – (1974) 77 NLR 361.
APPEAL from judgment of the Court of Appeal.
Faiz Mustapha with K. Balapatabendi for appellant.
J. Wilson Fernando with M. J. Hussen for the 1st respondent.
Cur. adv. vult.
January 13, 1987.
L. H. DE ALWIS, J.
The appellant made an application to the Court of Appeal for the issueof Writs of Certiorari to quash the decision of the Agrarian ServicesCommittee dated 31.6.1981 and the decision of the 7th respondent,the Assistant Commissioner of Agrarian Services, dated 30.11.1981.The Court of Appeal affirmed the two aforementioned Orders anddismissed the application. The appellant now appeals from thejudgment of the Court of Appeal with the special leave of this Court.
According to the appellant, his father Charles and the 1strespondent's father Francis Yapa cultivated as tenant cultivators, twodistinct and separate lots of paddy field called Irikonda in extent 1 acre2 roods and 2 perches. Each of their lots was 2 roods and 10perches. He relied on the certificate of tenancy (P1) issued in 1964 tohis father Charles, the extracts of the Paddy Lands Register for theyears 1964 to 1970 (P2 to P4) and the receipts for the payment ofacreage tax made by his father from years 1962 to 1974 (P5 to P15).Upon the death of his father Charles in 1974, the appellant cultivatedhis father's lot and his name was entered in the Paddy Lands Registerin 1975 (P16) as the tenant cultivator of that lot.
In 1979 the appellant alleged that an amendment was falsely andwrongfully made in the Agricultural Lands Register converting the twoseparate allotments of paddy field into one paddy field and his narrieconsequently was deleted from the Register as the tenant cultivator of.the field. He protested against this alteration to the Agrarian ServicesCommittee and after several communications and postponements hewas eventually noticed to appear at an inquiry on 11.8.81.
The 1st respondent's case is that Charles and his own fatherFrancis Yapa cultivated an undivided paddy field in extent 1 acre 1rood as joint tenant culivators. On the death of the petitioner's fatherCharles, his rights as tenant cultivator devolved on his own father,Francis Yapa. Francis Yapa then died in 1976 and the extract or theAgricultural Lands Register 1R6 shows that his eldest son SiripalaYapa was registered as the tenant cultivator of the entire field for thatyear, and in 1978 the 1st respondent's name was entered in theRegister in place of his brother, Siripala (1R7). The 1st respondent
thereafter on 6.1.81 made an application to the Agrarian ServicesCommittee, himself making the allegation that the appellant had gothis name falsely inserted in the Paddy Lands Register.
The Agrarian Services Committee held an inquiry on 11.8.81 and byits order which was conveyed to the 1 st respondent and the appellantby letter dated 31.8.81 (P27/1R2) amended the Agricultural LandsRegister by the deletion of the appellant's name as tenant cultivator ofthe paddy field and by the substitution of the name of the 1strespondent in its place..The order was made on the basis that where afield is cultivated jointly the rights of a cultivator who dies, devolves onthe other cultivator in terms of section 8(2) of the Agrarian ServicesAct No. 58 of 1979.
The appellant appealed from this decision to the AssistantCommissioner of Agrarian Services on 19.10.81. By letter dated30.11.81 (P35/1R3) his appeal was dismissed. He then made anapplication to the Court of Appeal for Writs of Certiorari to quash thedecisions P27 and P35 but his application was dismissed and theorders affirmed. The present appeal is from the judgment of the Courtof Appeal.
The only matter argued before us by learned counsel for theappellant was that the dispute between the appellant and the 1strespondent related to tenancy rights and should have been referred tothe Commissioner for determination in terms of section 9(1) of theAgrarian Services Act, and not to the Agrarian Services Committeewho had no jurisdiction to entertain it. It was therefore submitted thatthe decision of the Agrarian Services Committee, P27, was madewithout jurisdiction and was a nullity. Further it was submitted that theCommissioner of Agrarian Services to whom the appeal was madehad no jurisdiction as an appellate tribunal to hear it and consequentlythe Order P35 made by him was without jurisdiction and void.
It is manifest that the inquiry of 11.8.81 was held into theapplication made by the 1 st respondent on 6.1.81 for the amendmentof the Register of Agricultural Lands. The letter of 31.8.81 (P27)conveying the decision of the Agrarian Services Committee to theparties refers to this application and is captioned "Reasons given at theinquiry into the amendment of the Register of Names". The allegationof the 1 st respondent was that the petitioner had falsely had his name
inserted in the Register as tenant cultivator. The appellant himselfstates that he complained to the Agrarian Services Committee that the1 st respondent had got the two separate lots of paddy land entered asone paddy land in the register and wrongfully had the appellant'sname deleted from the register as tenant cultivator. According to theappellant the inquiry held on 11.8.81 was into his protests regardingthe amendment of the Paddy Lands Register, although P27 clearlyshows that it was held into the applications of the 1 st respondent. Bethat as it may, the parties are nonetheless agreed that the inquiry of11.8.81 was held into an appliction for the amendment of theAgricultural Lands Register.
, The procedure for the amendment of the Agricultural Lands Registeris set out in the regulations made in accordance with section 45(1) ofthe Agrarian Services Act. This section provides for the preparation,revision and maintenance of a register of agricultural lands and■entrusts the Agrarian Services Committee of the area where the lands■are situated, with the task of doing this. Section 45(2) states thatthere shall be specified in the register the name and extent of eachagricultural land, the name of the landlord and tenant cultivator orowner cultivator and such other particulars as may be required by theCommissioner. Section 45(3) makes such an entry in the registerprima facie evidence of the facts stated therein. Section 45(4)
■ provides for the making of regulations in respect of the procedure to| be followed in the preparation and revision of the register and for a(person who claims to be entitled under this Act, to have his nameentered in the register and for a person whose name is entered in the! register to apply to the Agrarian Services Committee to have the name* of any other person removed from the register.
Regulations have been made by the Is/linister of AgriculturalDevelopment and Research under section 66 of the Agrarian ServicesAct and are published in Government Gazette No. 66/14 of'14.12.1979 (p. 36).
Every application for the amendment of the register must be madeto the Agrarian Services Committee under regulation 11(1). TheCommittee after inquiry allows or disallows the application under.regulation 12(1). An aggrieved party may within 30 days of the orderappeal to the Commissioner whose decision, subject to an appeal to-the Court of Appeal on a question of law, is final.
An application to amend the Agricultural Lands Register therefore.must be made to the Agrarian Services Commitee.
• Section 8 of the Agrarian Services Act, on the other hand, providesfor the devaluation of rights of a tenant cultivator. Subsection (1)applies to a tenant cultivator who does not cultivate a paddy landjointly or in rotation with any other tenant cultivator and specifies thepersons who succeed to his rights on his death, where no nominationof a successor has been made. Subsection (2) relates to a tenantjcgltivator who cultivates a paddy [and jointly or in rotation with anyother tenant cultivator and provides that on his death, his rights shalldevolve on the other tenant cultivator or cultivators.
Section 9(1) provides that a dispute as to the person on whom therights of the tenant cultivator shall devolve on his death shall bereferred for determination to the Commissioner within whosejurisdiction the land is situated.
Any party aggrieved by the determination of the Commissioner maywithin thirty days of the determination, appeal to the Court of Appealon a question of law.
A dispute thus in regard to devolution of a tenant cultivator's right,on his death, must be referred to the Commissioner for determination.
The dispute in the present case is as to whether the paddy land inquestion was cultivated jointly or not, by the father of the appellantand the father of the 1 st respondent. It was referred to the AgrarianServices Committee as requiring the amendment of the AgriculturalLands Register. The question now is whether such a dispute regardingthe character of the cultivation of a paddy land, involves a dispute asto the devolution of the rights of a tenant cultivator. If it does, it mustthen be referred for determination to the Commissioner and not'to theAgrarian Services Committee.
Section 9 (1) of the Act provides that a dispute as to the person towhom the right of such tenant cultivator under this Act devolves, shallbe referred for determination to the Commissioner; "such tenantcultivator under this Act" refers to the two types of tenant cultivatorsdescribed in section 8(1) and 8(2). Section 8(1) refers to a tenantcultivator who does not cultivate a paddy land jointly with any other
tenant cultivator. On his death, in the absence of nomination of asuccessor, his rights devolve in the manner specified in thesubsection. Section 8(2) refers to a tenant cultivator who cultivates apaddy land jointly or in rotation with any other tenant cultivator orcultivators and in that case, on his death, his rights devolve on theother tenant cultivator or cultivators. Subsection (1) and (2) to section'8 specify two different rules of succession, depending on thecharacter of the cultivation of the paddy land by the tenant cultivator.(Hence before the specified rule of succession can be applied, it mustfirst be determined whether the paddy land was cultivated by thetenant cultivator jointly or not. The determination of the character ofthe cultivation is therefore fundamental to the devolution of the tenantcultivator's rights.
In my view, therefore, the question whether a tenant cultivator' cultivates a paddy land jointly or not is involved in a dispute regarding. the devolution of that tenant cultivator's rights. Section 9 which dealswith disputes relating to succession to a tenant cultivator's rights'requires that the dispute shall be referred to the Commissioner fordetermination.
In the present case the dispute centres on the question whether thepaddy land was cultivated as two distinct and separate lots by the.appellant's father and the 1st respondent's father or as one paddy. land cultivated jointly by them. On the determination of this disputedepended the manner of devolution of the tenancy rights of theappellant's father who died in 1974. If he cultivated a distinct.allotment of paddy land, as maintained by the appellant, then histenancy right would devolve on his son the appellant according tosection 8(1). But if the two lots constituted one paddy land and hecultivated it jointly with the 1st respondent's father, as is the 1st' respondent's case, then on his death his rights would devolve on theother cultivator, namely the 1st respondent's father in terms ofsection 8(2).
It is therefore abundantly clear that the dispute as to the characterof the cultivation necessarily involved a dispute as to the devolution of.tenancy rights.
It is true that the determination of the dispute entails theamendment of the register but that is only incidental to thedetermination of the dispute.
In this case P27 in fact shows that the Agrarian Services Committeehad come to a finding that the rights of the appellant's father devolvedon the 1 st respondent's father in terms of section 8(2) of the Act, onthe basis that the paddy land was jointly cultivated. In arriving at thisdecision the committee was clearly deciding the question of thedevolution of tenancy rights, which by section 9(1) is entrusted fordetermination to the Commissioner. The Committee therefore had nojurisdiction to determine the dispute and their decision P27 is void forwant of jurisdiction. Similarly the Assistant Commissioner had nojurisdiction to entertain an appeal from that decision and its order P35is also a nullity.
No doubt the appeal was instituted by the appellant, but wherethere is a patent want of jurisdiction in the matter, a party cannotby acquiescence or waiver of objection confer jurisdiction on abody, which has none. Beatrice Perera v. Commissioner of NationalHousing(1).
I am accordingly of opinion that the order of the Agrarian ServicesCommittee (P27) and the Order made in appeal by the AssistantCommissioner of Agrarian Services (P35) have been made withoutjurisdiction and are void.
I therefore set aside the judgment of the Court of. Appeal and allowthe appeal. Writs of Certiorari will now issue to quash the decision ofthe 2nd to the 6th respondents dated 31.8.1981 (P27) and that ofthe 7th respondent dated 30.11.1981 (P35).
As the appellant was himself responsible for the procedure adopted,I make no order for costs in his favour.
SHARVANANDA, C.J.-I agree.
ATUKORALE, J.-l agree.
Writs of Certiorari issued.