Kamalaratne v. Samaratunge
COURT OF APPEALJAYASURIYA, J.
CA NO. 65/89
A.T. GAMPAHA AS/5/3/732
JANUARY 30, 1997.
Paddy Lands Act, No. 1 of 1956 – Agricultural Lands Law No. 42 of 1973 Whois an Ande Cultivator – Forfeiture of Ande Rights – S. 68 Agrarian ServicesAct, No. 58 of 1979 – Nomination – S. 7 (8) – Prescribed Form – Registration
The Assistant Commissioner of Agrarian Services has arrived at the conclusionthat since the applicant reaped the paddy jointly with the assistance of hiredagricultural labourers that there has been a violation of the prohibition laid downby the law and consequently there results a forfeiture of his Ande Rights.
Under the provisions of the Paddy Lands Act and the Agricultural LandsLaw, the engagement of agricultural labour even jointly with the AndeCultivator resulted in a forfeiture of Ande Rights.
The provisions of the Agrarian Services Act has effected a departure fromsuch an exposition of law. S. 68 in defining a cultivator, sets out that 'anyperson who by himself or by any member of his family or jointly with anyother person carries out two or more of the operations of ploughing, sowingand reaping and the operations of tending or watching over the crop duringthe seasons when paddy is cultivated on such paddy field, is a tenantcultivator'.
The effect of a failure to duly register the document of nomination in theregisters prescribed by the Regulations renders such document invalid interms of s. 7 (6) of the Agrarian Services Act.
Sri Lanka Law Reports
(1998) 2 Sri L R.
The document of nomination should be substantially in the prescribed formas provided for in s. 7 (3).
APPEAL under s. 5 (6) of the Agrarian Services Act.
tV. Dayaratne with Nimal Ranaweera and Ms. Ranjika Jayawardene for applicant-appellant.
Manohara R. de Silva with David Weeraratne for respondent-respondent.
Cur. adv. vult.
January 30, 1997JAYASURIYA, J.
I have heard both the lerned Counsel for the appellant and the learnedCounsel for the respondent. The Assistant Commissioner of AgrarianServices, Gampaha District, has arrived at the conclusion that sincethe applicant reaped the paddy jointly with the assistance of hiredagricultural labourers that there has been a violation of the prohibitionlaid down by the law and, consequently, there results a forfeiture ofhis ande rights. I hold that this finding is due to a misdirection bothin regard to the law and in regard to the facts established at the inquiry.Under the provisions of the Paddy Lands Act and under the provisionsof the Agricultural Lands Law, one came across a stringent definitionof the term "cultivator". The engagement of agricultural labour, evenjointly with the ande cultivator, resulted in a forfeiture of ande rights.The provisions of the Agrarian Services Act has effected a departurefrom such an exposition of the law. Section 68 of the Agrarian ServicesAct in defining the expression "cultivator" sets out that any personwho by himself or by any member of his family or jointly with anyother person, carries out two or more of the operations of ploughing,sowing and reaping and the operations of tending or watching overthe crop during the seasons when paddy is cultivated on such paddyfield, is a tenant cultivator. The change in the law has been effectedby the enactment of the expression “or jointly with any other person".Thus, a tenant cultivator who himself takes part in two of theseoperations jointly with hired agricultural labourers, by engaging such* agricultural labour on hire, does not violate any prohibition enactedby the law and, consequently, there would be no forfeiture of his rights.
Kamalaratne v. Samaratunge (Jayasuriya, J.)
The unchallenged evidence in this case establishes the fact thatthe applicant himself jointly with hired agricultural labourers took partin the operation of reaping the paddy. It is in evidence that he solelyengaged himself in the process of sowing. Thus, these aspects relatingto the law and the factual position established by the attendantcircumstances have been lost sight of by the Inquiring Officer. Thisamounts to a non-direction and a misdirection both on the law andon the facts and thereby there is a consequent error of law embodiedin the order dated 15.11.1989.
In regard to the nomination of a successor in terms of section 7of the Agrarian Services Act, the Assistant Commissioner has con-cluded that the nomination impugned upon in the application wasproved to be a valid nomination. The material on the record disclosesthat certain documents and an encumbrance sheet had not beenmarked in the course of the inquiry, but had been tendered subsequentto the inquiry with the written submissions of Counsel. If that wasthe manner in which these documents were placed before theAssistant Commissioner, the adversary would not have had theopportunity and the right to cross-examine a witness on the contentsof these documents. Such tender constitutes a grievous defect ofprocedure. Further, a perusal of document P1, which is a deed oftransfer and its concomitant two annexes which are said to be thedocuments relating to the registration of the nomination, do not ontheir examination disclose that these documents have been registeredby the Registrar of Lands of the District in which the land to whichthat document refers is situated. The effect of a failure to duly registersuch document in the registers prescribed by the regulations renderssuch document invalid in terms of section 7 (6) of the Agrarian ServicesAct.
Another issue that arises is whether this document is substantiallyin the prescribed form as provided for in subsidiary legislation asspelt out in section 7 (3). The Assistant Commissioner has not givenhis mind to these aspects before he concluded that the nominationwas valid in law. In this respect too his order is tainted with error.
In the circumstances, I set aside the order of the AssistantCommissioner of Agrarian Services, Gampaha, dated 15.11.89 andI direct that a fresh de novo inquiry be held on the applicationpreferred by the complainant-applicant dated 5.6.89 and at that inquiryboth parties would be entitled to lead fresh evidence and also legally
Sri Lanka Law Reports
(1998) 2 Sri L.R.
admissible evidence which would be relevant to establish the due andproper registration of the nomination document relating to thesuccessor tenant cultivator in terms of section 7 (8) of the AgrarianServices Act. In the result, I allow the appeal without costs and proceedto set aside and vacate the order of the Assistant Commissioner ofAgrarian Services (Inquiries), Gampaha, dated 15.11.1989.
KAMALARATNE v. SAMARATUNGE