038-NLR-NLR-V-73-K.-PODIAPPU-Appellant-and-THE-ASSISTANT-COMMISSIONER-OF-AGRARIAN-SERVICES-R.pdf
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Podiappu v. Assistant Commissioner oj Agrarian Services
1970 Present : H. N. G. Fernando, C.J., Siriraane, J., andSamerawickrame, J.
K. PODIAPPU, Appellant, and THE ASSISTANT COMMISSIONEROF AGRARIAN SERVICES. Respondent
S. C. 1026/66—.M. C. Calls, 17635
Paddy Lands Act Ho. 1 of 1058—Eviction order thereunder—Requirement that itshould be made against the right person—Sections 4 (7) (b), 81—Questions ofcons'itutional law—Circumstances when Court will not decide them.
Where n tenant-cultivator or a paddy land makes an allegation and provesthat ho lias been wrongfully dispossessed by ft person X, proceedings againstanother person Y and an order mode therein for eviction aro not in accordancewith tho provisions of the 1'uddy Lands Act and nr- not warranted by them,even though Y, as a person in occupation, may be liable to bo evicted if orieviction order has been duly obtained against X.
It is the practice for n court not to decide questions relating to constitutionaltaw unless absolutely necessary to ft decision of a case. Accordingly, it is notnecessary to decide in the present case whether tho appointment of an AssistantCommissioner of Agrarian Services is valid if it lias not been nuulo by theJudicial Service Commission.
A1 *-PPEAL from a judgment of the Magistrate’s Court, Galle.
No appearance for the accused-appellant.
S. S. Easnayake, as amicus curiae.
11. Dehcragoda, Deputy Solicitor-General, with N. Sinnetamby,
Crown Counsel, for the complainant-respondent.
Cur. adv. rtill.
226SAMERAWICKRAMR, J.—Poiinppu v. Assistant Commissioner oj
:Agrarian Services
January 20, 1970. Samerawickkamb, J.—
The appellant appeals from an order for his eviction from a field unders. 21 (5) of the Paddy Lands Act. Nandias and Jayasena had made acomplaint that they were the andc-cnltivators of the field and had beenwrongfu ly dispossessed. After inquiry into the complaint, the AssistantCommissioner of Agrarian Services made order that the eviction ofNandias and Jayasena had not been made bona fide for any such causeas has been prescribed. An appeal against the order of the AssistantCommissioner had been dismissed by the Board of Review. Thereafternotice had been served on the appellant to vacate the field anti on hisfailure to do so, proceedings were instituted in the Magistrate’s Court,Galle, under s. 21 of the Paddy Lands Act and in those proceedingsthe order appealed from was made.
One of the grounds of appeal raised in his petition of appeal was thatthe inquiry held by the Assistant Commissioner of Agrarian Serviceswas ultra vires and without jurisdiction in that he had not been appointedby the Judicial Services Commission and could not therefore exercisejudicial power. As this ground of appeal raised a question of impoitancethe decision of which would affect the operation of the Paddy LandsAct this matter was referred to the present Bench for decision.
There was no appearance for the appellant but Mr. Advocate SinhaBasnayake at the request of Court appeared as amicus curiaeand ably and lucidly placed before this Court the matters that may beurged on behalf of the appellant.
The eviction of which the cultivators Nandias and Jayasena complainedand which was found at the inquiry not to have been made bona fidefor cause was alleged and found to have been made by one Jayawickramewho was also the person who entered into occupation immediately afterthe eviction of the cultivators. In terms of s. 4 (7) (b) the Commissionerhad in writing to order Jayawickrame that he and all other persons inoccupation of the field should vacate it and if Ja3Tawickrame failed tocomply with that order the Commissioner is empowered under s. 21 (1)to institute proceedings against Jayawickrame for an order of eviction.The notice under s. 4 (7) (b) has been made not on Jayawickrame buton the appellant and the proceedings have also been instituted notagainst Jayawickrame but against the appellant. The proceedingsagainst the appellant and the order for eviction made therein are notin accordance with the provisions of the Act and are not warranted bythem.
It is true that if notice had been served on Jayawickrame andproceedings had and an eviction order obtained against him, the appellantas a person in occupation was liable to be evicted. Is the defect then oneof form and not of substance ? I am unable to take the view that it isonly a matter of form. The person who is found to be in occupationimmediately after the eviction may be taken to be the person who eitherdid the eviction or caused it to be done or in whose interest it was done.
Catrim v. Officer -in-Charge, Police Station, Moratuwa
227
There is justification therefore that an order should issue to him thatboth he and all persons in occupation should vacate the field. Theothers in occupation are cither persons under him or at least personslet into occupation by reason of the eviction done by him or in his interest.There is therefore reason and substance underh*ing the provision thatnotice shall be issued to that jjerson. On the other hand it is againstprinciple that on an allegation made and proved against one personan order should issue on another.
It appears to me therefore that the proceedings had against theappellant and the eviction order made therein unwarranted by theprovisions of the Paddy Lands Act are bad in law. The learned DeputySolicitor-General did.not contend that the order was in the circumstaucesjustified by Jaw.
This matter may therefore be decided without a decision on the pointtouching the validity of the inquiry held by the Assistant Commissionerwithout an appointment by the Judicial Service Commission. It isthe practice for a court not to decide questions of a constitutional natureunless absolutely necessary to a decision of a case—vide observationsof H. N. G. Fernando, C.J., in The Attorney-General v. Kodeswaran *.I, therefore, refrain from addressing myself to the question of the validityof the inquiry held by the Assistant Commissioner of Agrarian Services.
The appeal is allowed and the order made by the learned magistrateunder Section 21 (5) of the Paddy Lands Act is set aside.
N. G. Fernando, C.J.—I agree.
Sibimane, J.—I agree.
Appeal allowed.