M. L. P. LAISAHAMY, Appellant, and G. S. DE SILVA (Assistant Commissioner of Agr

061-NLR-NLR-V-77-M.-L.-P.-LAISAHAMY-Appellant-and-G.-S.-DE-SILVA-Assistant-Commissioner-of-Agr.pdf


PATHIRANA, J.—Laisahamy v. De Silva
297
1974Present: Pathirana, J., and Ismail, J.
M.L. P. LAISAHAMY, Appellant, and G. S. DE SILVA(Assistant Commissioner of Agrarian Services), Respondent
S. C. 23/73—M. C. Hambantota, 69378
Paddy Lands Act—Sections 4 (1) (c),21,51 (3)—Procedure in eviction—
Evidence Ordinance, s. 114.
A written report to the Magistrate’s Court under Section 21 (1)of the Paddy Lands Act may be presented by an Assistant Commis-sioner other than the Assistant Commissioner who made the orderfor eviction.
When a Magistrate makes an order under Section 21 (2) of thePaddy Lands Act, he does not act judicially but is only making aministerial order. He is not obliged to give to the person againstwhom the order is made an opportunity to show cause against suchorder.
.ApPEAL from an order of the Magistrate’s Court,Hambantota.
J. W. Subasinghe, for the respondent-appellant.
Gamini A. L. Abeyratne, State Counsel, for the petitioner-respondent.
February 7, 1974. Pathirana, J.—
In view of the judgment of Rosalin Nona v. The AssistantCommissioner of Agrarian Services, Vavuniya1 75 N.L.R. 443,there is no right of appeal in this case.
Mr. Subasinghe, learned Attorney-at-law for the appellant,raises two matters which according to him are outside the scopeof the above judgment.
He submits, firstly, that the learned Magistrate did not havejurisdiction to entertain the application as the proper party didnot make the application under Section 21 (1) of the PaddyLands Act No. 1 of 1958 before the Magistrate. Secondly, thatthere was a violation of the principle of natural justice, namely,the rule of Audi alteram partem, in that the learned Magistratedid not under Section 21 (2) give the appellant an opportunityof being heard before he made the order under it.
{1972) 75 N. L. B. 443.
298
PATHIRANA, J.—Laisahamy v. De Silva
Mr. Subasinghe submits that the Assistant Commissioner ofAgrarian Services, who made the order against the appellant wasM. B. Thambillimulla, while the Assistant Commissioner ofAgrarian Services who filed the written report in terms ofSection 21 (1) was a different person, namely, G. S. de Silva. Herelies on Section 21 (1) and states that only the Commissioneror “ any person authorised on that behalf by such Commissioner ”may present to the Magistrate’s Court a written report specifiedin the Section. He submits that Mr. G. S. de Silva is not theperson authorised in that behalf by the Commissioner to makethis report. An affidavit, the contents of which areuncontroverted, has been filed in this case by the respondent tothe effect that Mr. G. S. de Silva is the Assistant Commissionerof Agrarian Services.
There are answers to this contention. Firstly, the presumption,under Section 114 of the Evidence Ordinance is that all officialacts have been regularly performed. Secondly, Section 51 of theAct is an answer to the contention raised by Mr. Subasinghe.Section 51 (3) states that an Assistant Commissioner of AgrarianServices may exercise all or any of the powers of the Commis-sioner under this Act within the area to which such AssistantCommissioner is appointed. For these reasons we hold that theproper person under Section 21 (1) has made the written reportto the Magistrate’s Court.
The next submission is that the rule of audi alteram partemhas not been observed by the learned Magistrate before he issuedan order under Section 21 (2). In our view the Magistrate whenmaking an order under Section 21 (2), is not acting judicially,but is only making a ministerial order.
Under Section 21 (1) of the Act where a written report is-presented to the Magistrate’s Court, it becomes mandatory forthe Court to issue an order directing the persons specified in suchreport and all other persons in occupation of the extent of theland specified in the order to be evicted forthwith from suchextent. The Sub-Section next states that after making such orderthe Court shall give notice of such order through the Fiscal orPeace officer to the person against whom the order has beenmade. At this stage it may be noted that Section 21 (2) does notsay that the order should be executed and delivery of possessiongiven to the person mentioned in the report.
The next step contemplated in the Act is set down inSection 21 (3), which gives a right to any person aggrieved byan order made by the Magistrate under Sub-Section 2 to appealtherefrom to the Supreme Court. The only remedy therefore
PATHERANA, J.—Laisahamy v. De Silva
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available to any aggrieved person is to appeal to the SupremeCourt. Section 21 (4) states that if no appeal is preferred or if anappeal has been preferred, after the final decision of the SupremeCourt affirming the order of the eviction had been duly certifiedto the Magistrate’s Court, the Magistrate shall, on the applicationof the person by whom the written report under Sub-section (1)was presented, direct the Fiscal or the Peace officer to evict fromthe extent of paddy land to which the order of eviction relates,all persons bound by the order of the eviction and deliverpossession of such extent to the person mentioned in suchreport.
It will thus be seen that although the Magistrate’s Court willissue an order under Section 21 (2) and also give notice of suchorder to the person against whom such order is made, that orderis not executed till an appeal, if any, is taken from such order tothe Supreme Court. Section 21 therefore nowhere contemplatesthat before the Magistrate’s Court makes an order underSection 21 (2) any opportunity should be given to the personagainst whom the order is made to show cause against such order.This person is not without his remedy at this stage as he isentitled to under Section 21 (3) to appeal to the Supreme Courtfrom the order of the Magistrate under Section 21 (2).
Section 21 (2) is not open to the construction that before theCourt issues an order an opportunity should be given to showcause why the order should not be issued. We fail to see whatother reasons could be urged by the appellant even if she hadreasons to show cause because she is presumed to have urgedall her claims at the inquiry before the Assistant Commissioner.This order according to Section 4 (1) (c) is final and conclusiveand shall not be called in question in any legal proceedings inany Court. The appellant had a right of appeal to the Board ofReview which she had not exercised. She had been a party to theproceedings before the Assistant Commissioner of AgrarianServices, and she very well knew that an order has been madeagainst her.
The second contention raised by Mr. Subasinghe, therefore, alsofails.
We dismiss the appeal.
Ismail, J.—I agree.
Appeal dismissed.