010-SLLR-SLLR-1997-V3-JAYAWARDENA-v.-MEGASURIYA-AND-OTHERS.pdf
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Jayawardena v. Megasuriya and Others
101
JAYAWARDENA
v.
MEGASURIYA AND OTHERS
SUPREME COURT.
G. P. S. DE SILVA, C.J.,
RAMANATHAN, J. ANDPERERA, J.
S.C. APPEAL NO. 47/96C.A. APPLICATION NO. 280/94.
JUNE 6, 1997,
Writ of Certiorari – Paddy Lands – Agricultural Lands Law No. 42 of 1973 -Magistrate's power to make an eviction order – Section 4(2) of the Law – Ordermade without jurisdiction – Right of cultivator evicted by such order.
The original petitioner sought a writ of certiorari to quash a notice dated 9.1.84issued by an Assistant Commissioner of Agrarian Services directing him to vacatethe paddy land called Inimage Kumbura and to hand over possession toMegasuriya, The petitioner claimed that at an inquiry held by an AssistantCommissioner in 1962, he was declared to be the tenant cultivator of two paddylands, Lindagawa Kumbura and Inimage Kumbura. But he was not restored topossession of these lands. In the meantime it was reported that Inimage Kumburawas being cultivated by one Megasuriya. Consequently, on a report made underthe Agricultural Lands law No. 42 of 1973 the Magistrate made order undersection 4(2) of the Law directing the Fiscal to restore the petitioner to thepossession of Inimage Kumbura which was done on 3.2.76. WhereuponMegasuriya made a complaint of eviction from Inimage Kumbura. On 23.09.61 anAssistant Commissioner held an inquiry into that complaint. This was followed bythe impugned notice.
Held:
1. The order of eviction made by the Magistrate under section 4(2) of theAgricultural Lands Law was void ab initio as there was a total want of jurisdictionin the Court in that having regard to the proceedings had before the AssistantCommissioner in 1962, the order which was sought to be enforced through theMagistrate could not possibly relate to an eviction from Inimage Kumbura. Noevidence whatsoever had been lead in regard to alleged eviction from InimageKumbura. The entirety of the evidence related to eviction from LindagawaKumbura.
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2. Since the 'Order" of eviction made by Court was a nullity, the AssistantCommissioner had the authority to issue the impugned notice.
APPEAL from judgment of the Court of Appeal.
R. K. W. Goonesekera with Rohan Sahabandu for the substituted – petitioner-appellant.
N. R. M. Daluwatta, PC. with Ms. Samantha Abeyjeewa for the 1st respondent.
Cur. adv. vult.
July 24, 1997.
G. P. S. DE SILVA, C.J.
The original petitioner made an application for a writ of certiorari toquash the notice dated 9.1.84 issued by the Assistant Commissionerof Agrarian Services (4th respondent) directing him to vacate thepaddy field called Inimage Kumbura and hand over possession tothe 1st respondent on or before 10.2.84 (P7). In his petition heaverred: that he was the tenant cultivator of two paddy lands knownas Lindagawa Kumbura and Inimage Kumbura; that on or about17.4.62 he was evicted from these paddy lands; that he made acomplaint of eviction to the Assistant Commissioner of AgrarianServices; that an inquiry was held on 14.9.62; at the inquiry theAssistant Commissioner of Agrarian Services determined that he wasthe lawful tenant cultivator of both Lindagawa Kumbura and tnimageKumbura; that an order for restoration of possession was made; thathe was not restored to possession of these paddy lands and it wasreported by the Cultivation Committee that the paddy land calledInimage Kumbura was being cultivated by the 1st respondent (A. G.Megasuriya); that the Assistant Commissioner of Agrarian Servicesnoticed the 1st respondent to vacate Inimage Kumbura; that on thefailure of the 1st respondent to vacate Inimage Kumbura steps weretaken under the provisions of the Agricultural Lands Law No. 42 of1973 to file a written report in the Magistrate’s Court; that pursuant tothe report to the Magistrate's Court an order was made by theMagistrate restoring the petitioner to the possession of InimageKumbura. The date of delivery of possession of Inimage Kumburawas 3.2.76; that on or about 23.9.81 the petitioner was summoned by
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Jayawardena v. Megasuriya and Others (G. P.S.De Silva, C.J.)
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the 3rd respondent (Assistant Commissioner of Agrarian Services,Matale) and was questioned about the eviction of the 1st respondent(Megasuriya) from Inimage Kumbura on 3.2.76; that an inquiry washeld into the 1st respondent's complaint of eviction from InimageKumbura on 3.2.76; that the petitioner had explained that it was on acomplaint of eviction made by him in 1962 that he was restored topossession of Inimage Kumbura pursuant to an order made by theMagistrate’s court; that thereafter he received the notice P7 directinghim to vacate Inimage Kumbura.
It is the case for the petitioner that the notice P7 was issuedwithout jurisdiction inasmuch as the petitioner was restored topossession of Inimage Kumbura on 3.2.76 by virtue of an order madeby the Magistrate’s Court. The Fiscal, who is an officer of Court, actedon the directions of the Court and lawfully evicted the 1st respondentwho was in unlawful occupation of Inimage Kumbura. The AssistantCommissioner of Agrarian Services therefore had no authority tooverride an order of court and direct the petitioner to vacate InimageKumbura.
The case for the 1st respondent is that although the originalpetitioner had on 18.6.62 complained of an eviction from bothLindagawa Kumbura and Inimage Kumbura, yet a scrutiny of theproceedings held before the Assistant Commissioner of AgrarianServices (consequent upon the said complaint) makes it manifest thatno evidence whatsoever was lead in regard to the alleged evictionfrom Inimage Kumbura. The proceedings held before the AssistantCommissioner of Agrarian Services are marked as 1R4. The entiretyof the evidence related to the eviction from the paddy field calledLindagawa Kumbura. It is true that a report was filed in the Magistrate’sCourt in respect of an alleged eviction from Inimage Kumbura andupon that report the Court had made order directing the Fiscal todeliver possession of Inimage Kumbura to the original petitioner. It isnot disputed, as stated earlier, that it was consequent upon the orderof court that the 1st respondent was evicted from Inimage Kumburaand possession of Inimage Kumbura was delivered to the petitioneron 3.2.76.
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Mr. R. K. W. Goonesekera for the substituted petitioner-appellant(the original petitioner having died while the application was pendingbefore the Court of Appeal) strenuously contended that in thesecircumstances the Assistant Commissioner of Agrarian Services hadno authority whatever to issue the notice P7 directing the petitioner tovacate Inimage Kumbura. On the other hand Mr. Daluwatte for the 1strespondent strongly urged that the Magistrate's Court in directing theFiscal to evict the 1st respondent from Inimage Kumbura actedwithout jurisdiction for the reason that the proceedings 1R4 wereconfined to the eviction of the petitioner from Lindagawa Kumbura.There was a total absence of evidence in regard to the allegedeviction from Inimage Kumbura at the inquiry before the AssistantCommissioner of Agrarian Services.
At this point it is necessary to refer briefly to the relevant provisionsof the Agricultural Lands Law No. 42 of 1973. Section 3(3) providesfor a tenant-cultivator to notify the Agricultural Tribunal that he hasbeen evicted from the paddy land and the Tribunal is empowered tohold an inquiry. Section 3(4) enacts that where the "tribunal decidesthat the eviction had been made" the person evicted is entitled to berestored to possession of the paddy land and “the Tribunal shall inwriting order that every person in occupation of such extent shallvacate it on or before such date as shall be specified in that order,and if such person fails to comply with such order, he shallbe evicted from such extent in accordance with the provisions ofsection 4…:
Section 4(1) reads thus:
“Where any person who has been ordered under this Law bythe Tribunal to vacate any extent of paddy land and to deliverpossession thereof to any specified person fails to comply withsuch order, the Tribunal or any person authorised in that behalf bythe Tribunal may present to the Magistrate’s Court within whoselocal jurisdiction such extent wholly or mainly lies a written reportspecifying the nature of such order and the person to whom it wasissued, describing the extent of land to which such order relates,
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stating that such person has failed as required by such order tovacate or to vacate and deliver possession of such extent, prayingfor an order to evict such person and all other persons in occupationof such extent from such extent, and mentioning the person to whomdelivery of possession of such extent should be made."
Section 4(2) is as follows:
“Where a written report is presented to a Magistrate's Courtunder subsection (1), such court shall direct the Fiscal or peaceofficer to evict forthwith the person specified in such report and allother persons in occupation of the extent of land specified in theorder and to deliver possession of such extent to the personmentioned in such report as the person to whom delivery ofpossession of such extent should be made."
The “written report to court" is based on the evidence and thefinding reached by the Tribunal after inquiry. The report to court mustspecify “the nature of the order" and describe the “extent of the landto which the order relates." Having regard to the nature of theevidence led at the inquiry, the “order" could not possibly relate to analleged eviction from Inimage Kumbura. I am therefore of the opinionthat there was no foundation for the exercise of jurisdiction bythe Magistrate’s Court in terms of section 4(2) of the AgriculturalLands Law No. 42 of 1973. In other words, there was a total want ofjurisdiction in the court and the purported order of eviction in respectof Inimage Kumbura was void ab initicr, it is an order which could beattacked even collaterally. Since the "order" of eviction made by courtagainst the 1st respondent was a nullity, the Assistant Commissionerhad the authority to issue the notice P7. The application for Certiorarito quash P7 cannot therefore succeed.
For these reasons the appeal fails and is dismissed, but in all thecircumstances, without costs.
RAMANATHAN, J. -1 agree
PERERA, J. -1 agree
Appeal dismissed.