MADDUMA BANDA v. ASSISTANT COMMISSIONER OF AGRARIAN SERVICES AND ANOTHER

009-SLLR-SLLR-2003-V-2-MADDUMA-BANDA-v.-ASSISTANT-COMMISSIONER-OF-AGRARIAN-SERVICES-AND-ANOTHER.pdf


80
Sri Lanka Law Reports
[2003] 2 Sri L.R
MADDUMA BANDAV
ASSISTANT COMMISSIONER OF AGRARIAN SERVICES AND
ANOTHER
SUPREME COURTS.N. SILVA, C.J.
BANDARANAYAKE, J„ ANDYAPA, J.
S.C. APPEAL NO. 111/97
CA NO. 61/94 (H.C.) AND 74/94 (H.C.) 4 OF 1991.
H.C. NO. 28/92
16TH JULY, 30TH SEPTEMBER AND 30TH OCTOBER, 2002AND 11TH APRIL, 2003
Writ of certiorari – Jurisdiction of the High Court of a Province to issue writagainst an order under section 18 of the Agrarian Services Act – Constitution,Article 154P(4) – Ambiguous statute – Interpretation according to purpose ofenactment and to advance the remedy.
The appellant, a tenant cultivator sought a writ of certiorari from the High Courtof the Province to quash an order made by the Assistant Commissioner ofAgrarian Services (1st respondent) under section 18 of the Agrarian ServicesAct as amended by Act, No. 4 of 1991.
Under Article 154P(4) of the Constitution, the High Court has jurisdiction toissue a writ against any person exercising any power under a law or statute inrespect of any matter set out in the Provincial Council List. “Agriculture andAgrarian Services” are found in section 9 of the list with an inclusive definitionof “Agriculture”. The impugned order related to the failure of the appellant topay rent due to the landlord of the paddy land.
However, in view of certain limitations provided by section 3 of the ProvincialCouncils (Special Provisions) Act, No. 19 of 1990 regarding appeals under theAgrarian Services Act, and certain dicta contained in the determination of theSupreme Court on the constitutionality of the Bill for the amending Act, No. 4of 1991 the High Court opined that the impugned order was not a matter setout in the Provincial Council List and refused the writ.
sc
Madduma Banda v Assistant Commissioner of Agrarian Sen/ices
and Another (Bandaranavake. J.)
81
Held :
The word “agrarian” in section 9 of the Provincial Council List relates tolanded property and such property could no doubt attract paddy landsand tenant cultivators of such land and hence the impugned order wouldbe covered by the said section 9 in the Provincial Council List.
In case of ambiguity, the enactment should be interpreted so as to giveeffect to its purpose. The purpose of the 13th Amendment is to give aright to an aggrieved party to have recourse to the Provincial High Courtinstead of having to seek relief from the Court of Appeal in Colombo. Assuch the High Court is deemed to have jurisdiction to grant writ soughtunder Article 154P(4).
Per Bandaranayake, J.
“It would not be correct to say (as stated in the S.C. determination on the Billfor amendment No 4 of 1991) that the matters that were dealt with in the Billare all matters of National Policy that falls within list II”
Cases referred to:
in re An Act to amend the Agrarian Services Act, No. 58 of 1979.HANSARD 19.02.1991 Column 1184.
Fothergill v Monarch Airlines Ltd (1981) AC 251 at 272
AG of New Zealand v Oritz (1982) Q B 349 at 361
APPEAL from the judgment of the Court of Appeal.
Dr. Jayampathi Wickramaratne, P.C. with Pubudini Wickramaratne for appel-lant
Nizam Kariappar with M.C.M. Nawaz, A. W. Ramzoon, Keerthi Weerasekeraand M.I.M. lynullah for 2nd respondent.
Cur.adv.vult
July 17, 2003
BANDARANAYAKE, J.
The appellant had come before the Court of Appeal challeng-ing the order of the High Court of the Central Province dated29.06.1994. The Court of Appeal, by its order dated 10.06.1997,
01
82
Sri Lanka Law Reports
[2003} 2 Sri L.R
while dismissing the appeal before that Court, granted leave toappeal to the Supreme Court under Rule 4(12) of the Court ofAppeal Appellate Procedure Rules of 1990, on the following ques-tions:
Is an order made under section 18 of the Agrarian ServicesAct, No. 58 of 1979, a matter set out in the Provincial CouncilList in the 9th schedule to the Constituion?
Did the learned High Court Judge err in holding that he hadno jurisdiction to hear and determine the appellant’s applica-tion for a writ of certiorari to quash an order made under sec-tion 18 of the Agrarian Services Act, No. 58 of 1979?
The facts in this case, albeit brief, are as follows :
The appellant was a tenant cultivator and the 1st respondentmade order against him under section 18 of the Agrarian ServicesAct, No.58 of 1979. In order to quash the said order, the appellantinvoked the writ jurisdiction of the High Court of the CentralProvince in terms of Article 154(P) (4) of the Constitution. Therespondents took up a preliminary objection at the High Court thatthe matter in question, did not fall under Article 154 P, as the writjurisdiction of the High Court of the Provinces is restricted to mat-ters set out in the Provincial Council List. The learned Judge of theHigh Court, by his order dated 29.06.1994, upheld the preliminaryobjections and dismissed the application, stating inter alia that theHigh Court of the Provinces has no jurisdiction to issue a writ of cer-tiorari quashing the decision of the 1st respondent as the questionin issue does not come within the subject area specified under theProvincial Council List in terms of the 9th Schedule of the 13thAmendment to the Constitution.
Learned counsel for the 2nd respondent took up the positionthat the purported order challenged by the appellant is made by the1st respondent, in terms of sections 18 and 26 of the AgrarianServices Act. The 1st respondent, according to learned counsel,excercises his powers in terms of the Agrarian Services Act, to giveeffect to the common law principle that the contractual relationshipbetween the landlord and the tenant cultivator will be terminated ifthe latter refuses to pay the rentals to the former. Learned counselfor the 2nd respondent contended that section 18 of the Agrarian
10
20
30
40
sc
Madduma Banda v Assistant Commissioner of Agrarian Services
and Another (Bandaranavake. J.)
83
Services Act is merely for the purpose of conferring the jurisdictionto the Agrarian Service Commission to terminate the tenancy rightof the tenant cultivator when he fails or refuses to pay the rentaland therefore the subject matter does not come within clause 9 ofthe Provincial Council List.
Learned President’s Counsel for the appellant argued that thesubject matter based on the Agrarian Services Act, falls within theparameters of the Provincial Council List and therefore the 1strespondent’s decision is amenable to the writ jurisdiction exercisedin terms of Article 154P (4) b of the Constitution.so
The 13th Amendment to the Constitution, which came intoeffect in November 1987, was chiefly introduced for the purpose ofdevolving power from the Central Government to the ProvincialCouncils. In addition to the legislative and executive power that wasdevolved to the Provincial centers, High Courts of the Provinceswere established and empowered to exercise the original criminaljurisdiction, appellate and revisionary jurisdiction in respect of anyconvictions, sentences and orders entered or imposed byMagistrate’s Courts and Primary Courts within the province andsuch other jurisdiction and powers as Parliament may by law pro- 60vide. Furthermore, in terms of Article 154(P) (4), High Courts of theProvinces shall have the jurisdiction to issue according to laworders in the nature of habeas corpus, in respect of persons ille-gally detained within the province; and orders in the nature of writsof certiorari, prohibition, procedendo, mandamus and quo warran-to. The jurisdiction of the High Court of the Provinces, to issue suchorders however is restricted as the Article specifies that this powercould be used only against any person exercising within theProvince any power under any law or any statute, made by theProvincial Council established for that Province in respect of any 70matter set out in the Provincial Council List. It is therefore abun-dantly clear that for the High Court to issue a writ quashing theorder made by the 1st respondent, it is necessary that the subjectmatter should belong to one of the subjects listed out in theProvincial Council List.
The subject matter concerned as pointed out earlier, is relatedto Agriculture and Agrarian Services. The subject heading of“Agriculture and Agrarian Services” is listed under the Provincial
84
Sri Lanka Law Reports
[2003] 2 Sri L.R
Council List (item No.9) as well as in the Concurrent List (itemNo.8).
The subjects that come within the Provincial Council List,under the heading “Agriculture and Agrarian Services”, refer to thefollowing:
Agriculture, including agricultural extension, promotionand education for provincial purposes and agriculturalservices (other than in inter-provincial irrigation and landsettlement schemes, state land and plantation agricul-ture)
The Concurrent List on the other hand refers to the following sub-ject matters :
Establishment and promotion of agro-linked industries,the establishment and maintenance of farms and super-vision of private nurseries;
Soil conservation;
Plant pests.
The Agrarian Services Act, No. 58 of 1979 was enacted to pro-vide security of tenure to tenant cultivators of paddy lands; to spec-ify the rent payable by tenant cultivators to landlords; to provide formaximum productivity of paddy and other agricultural lands throughthe proper use and management of agricultural crops and live-stock; to provide for the establishment of Agrarian ServicesCommittees; to provide for the determination of tenurial and otherdisputes relating to agricultural land by the Commissioner ofAgrarian Services; to confer and impose certain powers and dutieson the Commissioner; to provide for the appointment of cultivationofficers; to provide for the repeal of the Agricultural ProductivityLaw, No. 2 of 1972, and the Agricultural Lands Law, No. 42 of 1973;and to provide for matters connected therewith or incidental there-to.
This enabled the Commissioner of Agrarian Services to inquireand consider various disputes arising out of the duties and liabili-ties of the cultivatiors and paddy land owners within the jurisdiction.
80
90
100
110
sc
Madduma Banda v Assistant Commissioner of Agrarian Services
and Another (Bandaranavake, J.)
85
The learned High Court Judge took the view that a High Courtestablished by Article 154P of the Constitution for a Province couldexercise appellate and revisionary jurisdiction only in respect oforders made under sections 5 and 9 of the Agrarian Services Act,
No. 58 of 1979. This was based on section 3 of the High Court ofthe Provinces (Special Provisions) Act, No. 19 of 1990, which readsas follows:
“A High Court established by Article 154P of the Constitution 120for a Province shall, subject to any law, exercise appellate andrevisionary jurisdiction in respect of orders made by LabourTribunals within that Province and orders made under section5 or section 9 of the Agrarian Services Act, No. 58 of 1979, inrespect of any land situated within that Province.”
Admittedly section 3 of the aforementioned Act refers only tosections 5 and 9 of the Agrarian Services Act. However, Article154P(4) provides that the High Court shall have jurisdiction to issueorders in the nature of writs against any person exercising withinthe Province any power under any law in respect of any matter set 130out in the Provincial Councils List.
The Provincial Council List as pointed out earlier refers to theword Agriculture. The Agrarian Services Act defines the wordAgriculture in the following manner:
“Agriculture includes –
the growing of rice, field crops, spices and condi-ments, industrial crops, vegetables, fruits, flowers,pasture and fodder;
dairy farming, livestock rearing and breeding;
plant and fruit nurseries;140
The Agrarian Services Act mainly deals with paddy lands, ten-ant cultivators who grow rice and the landlords of the paddy fields.
The learned Judge of the High Court in deciding that the mat-ters relating to Agriculture and Agrarian Services do not comeunder the Provincial Council List, based it on the determination ofthe Supreme Court in In re An Act to amend the Agrarian ServicesAct, No. 58 of 7979.M) Learned President’s Counsel for the appel-
86
Sri Lanka Law Reports
[2003] 2 Sri L.R
lant, however submitted that the view taken by the learned Judgeof the High Court is incorrect, as the Supreme Court, in Party V ofits determination under the title “inconsistency with Article 154G” 150referred to the various items in the Provincial, Reserved and theConcurrent List and that the Court did not hold that “Agriculture andAgrarian Services” do not come under the Provincial Council List.
In determining the consistency or the inconsistency of the provi-sions of the Bill in question, and especially referring to the submis-sions on whether the land rights or land tenure is a provincial sub-ject, the Supreme Court stated that,
“However, without the benefit of a full [argument] it is not
desirable that we should decide the question now. It is suffi-cient for present purposes that the matters dealt with in the Bill 160are all matters of national policy in regard to the rights and lia-bilities of owners and tenant-cultivators, and thus fall withinList II.”
Learned President’s Counsel for the appellant contended thatthe determination of the Supreme Court was to the effect that theprovisions of the Amending Bill laid down National Policy. His posi-tion is that under item 1 of the Reserved List, National Policy on allsubjects and functions is a matter for Parliament, where it would bepermissible for Parliament to lay down National Policy even withregard to a matter listed in the Provincial Council List. By this, 170learned President’s Counsel claimed, that the subject matter is notshifted to the Reserved List. In his words what it means is that thematter continues to be in the Provincial Council List, but allProvinces are required to conform to the National Policy laid downby the Parliament.
An illustration is given in order to clarify this position further.
Item 2 of the Appendix III to the Provincial Council List refers to thesupervision of the management of all pre-schools. The Parliamentmay pass a law limiting the maximum number of students in a classto be below 30 and setting down the minimum qualifications a pre- isoschool teacher should possess. Although the subject matter is with-in the Provincial Council List, all Provincial Councils would have toadhere to the policy laid down by the Parliament. However, this willnot shift the subject areas from the Provincial Councils List to theReserved List. While the subject remains as an area within the
sc
Madduma Banda v Assistant Commissioner of Agrarian Services
and Another (Bandaranavake. J.)
87
purview of the Provincial Councils, the administration of the subjectwill have to be carried out in conformity with the National Policy laiddown by the Parliament.
Section 3 of the High Court of the Provinces (SpecialProvisions) Act, No. 19 of 1990 deals with the jurisdiction of theHigh Court to hear appeals from orders under the AgrarianServices Act. According to this provision, a High Court of a Provinceshall have the power to exercise appellate and revisionary jurisdic-tion in respect of orders made under section 5' or section 9 of theAgrarian Services Act, No. 58 of 1979, in respect of any land situ-ated within that Province. Sections 5 and 9 of the Agrarian ServicesAct are in Part I which consists of 25 sections (from section 2 tosection 26) and deals with the tenant cultivators of paddy lands.
The question in the instant case as referred to earlier, aroseover a decision the Commissioner for Agrarian Services had takenin terms of section 18 of the Agrarian Services Act, No. 58 of 1979.This section, which is in Part I of the Act, deals with the conse-quence of failure by a tenant cultivator to pay rent. Section 5 of theAct on the other hand deals with the rights of tenant cultivators, pro-vision in regard to certain evicted tenants of paddy lands andrestriction of eviction of tenants of paddy lands whereas section 9provides for the Commissioner to decide disputes regarding devo-lution of rights to a tenant cultivator.
On a comparison of the provisions in sections 5, 9 and 18 ofthe Act, it is difficult to assess as to how appellate or revisionaryjurisdiction on the Agrarian Services Act, could be restricted to onlysections 5 and 9 of the Act. Furthermore, in terms of the provisionsin section 3 of the High Court of the Provinces (Special Provisions)Act, No. 19 of 1990, it is clear that sections 5 and 9 of the AgrarianServices Act are treated as matters which fall under the category ofList I to the 9th Schedule to the Constitution, which is, as referredto earlier, commonly known as the Provincial Council List. If thesetwo sections are within the Provincial Council List, it would not befeasible to separate section 18 of the Agrarian Services Act fromthem, as this too belongs to Part I of the said Act, which, as referredto earlier, deals with the tenant cultivators of paddy lands.
190
200
210
220
88
Sri Lanka Law Reports
[2003} 2 Sri L.R
In the determination of the Supreme Court in the AgrarianServices (Amendment) Bill, the Court considered and examined thethree Lists in the 9th Schedule to the Constitution as a whole inorder to interpret them consistently and was of the view that,
‘The Bill quite clearly does not deal with any of the mattersreferred to in List I, items 9.2 and 9.3 or List III, items 8.1 to8.3. Turning to List I, items9.1 the Bill does not deal with ‘agri-culture, including agricultural extension, promotion and educa-tion for provincial purposes’ or ‘agricultural services’. It deals 230with the rights of tenant cultivators, the determination of dis-putes, the devolution of the rights of the tenant, the transfer ofthe rights of the landlord, the liability of tenants to eviction, thepayment of rent, loans, surveys, information and statistics,farmer organisations and the like.”
It is a well known principle that when the meaning of the statu-tory words is plain and unambiguous there is no necessity for aCourt to attempt to interpret the meaning of such words. On theother hand when there are ambiguities in a statute, it becomes nec-essary to obtain an interpretation to clarify such ambiguities. As 240pointed out by Lord Wilberforce in Fothergill v Monarch AirlinesLtdS2) “consideration of the purpose of an enactment is always alegitimate part of the process of interpretation” and “considerationof the purpose of an enactment” would clarify any ambiguities thatwould have arisen. In AG of New Zealand v OritZz) Staughton, J.referred to 'the power of the Courts to disregard the literal meaningof an Act and to give it a purposive construction’. When a strainedmeaning is given where the literal meaning is not in accordancewith the legislative pupose of an enactment it would become nec-essary to examine the purpose of Parliament in passing the Act in 250question. As Bennion, suggests (Statutory Interpretation, 3rd edi-tion, pg. 731), the “purpose or object of Parliament in passing anAct is to provide an appropriate remedy to serve as a cure for themischief with which the Act deals”. The legislative purpose of anenactment would have to be arrived at accordingly.
By the 13th Amendment to the Constitution as referred to ear-lier, the High Courts of the Provinces were empowered to exerciseoriginal criminal jurisdiction, revisionary jurisdiction as well as thewrit jurisdiction. Section 3 of the High Court of the Provinces
sc
Madduma Banda v Assistant Commissioner of Agrarian Services
and Another (Bandaranavake. J.)
89
(Special Provisions) Act, No. 19 of 1990 provided for the High Courtto exercise appellate and revisionary jurisdiction in respect oforders made under sections 5 or 9 of the Agrarian Services Act, No.58 of 1979 in respect of any land situated within that province.
According to Salmond (Jurisprudence, 10th edition, pp. 170-173):
“The essence of the law lies on its spirit, not in its letter, forthe letter is significant only as being the external manifestationof the intention that underlies it. Nevertheless in all ordinarycases the Courts must be content to accept the (litera legis’ asthe exclusive and conclusive evidence of the‘sententia legis'.They must in general take it absolutely for granted that theLegislature has said what it meant, and meant what it hassaid. Ita scriptumest is the first principle of interpretation,judges are not at liberty to add to or take from or modify theletter of law, simply because they have reason to believe thatthe true in ‘sententia legis’ are not completely or correctlyexpressed by it. That is to say, in all ordinary cases grammat-ical interpretation is the sole form allowable. To this generalprinciple there are two exceptions. There are two cases inwhich the ‘litera legis' need not be taken as conclusive, and inwhich the ‘sententia legis’ may be sought from other indica-tions. The first of these cases is that in which the letter of thelaw is logically defective, that is to say, when it fails to expresssome single, definite, coherent and complete idea …. Thesecond is that in which the text leads to a result so unreason-able that it is self-evident that the Legislature could not havemeant what it has said …. To correct the ‘sententia legis' onlogical grounds is a true process of interpretation; it fulfils theultimate or dormant, if not the immediate or conscious inten-tion of the Legislature (emphasis added).”
At the time of the introduction of devolution of power in termsof the provisions of the 13th Amendment to the Constitution, theintention of the legislature was to empower the provincial centres todeal with the specific subjects devolved to such centres whichincluded not only executive and legislative power, but also todevolve judicial functions to be carried out through the newly intro-duced High Courts of the Provinces. As referred to earlier, the HighCourts were empowered to deal with appellate and revisionary
260
270
280
290
90
Sri Lanka Law Reports
[2003} 2 Sri L.R
jurisdiction with regard to orders of Labour Tribunals and orderspertaining to sections 5 and 9 of the Agrarian Services Act, No. 58of 1979. It is to be remembered that sections 5 and 9 also deal with 300tenant tultivators of paddy lands. The subject matter of “Tenant cul-tivators of paddy lands” does not relate directly to land matters suchas transfer, registration, inheritance, partition and the like as set outin item 18 of List I read with the relevant part in Appendix II. Moreimportantly it is to be considered that if a petitioner could comebefore the High Court of the Provinces, regarding a matter in con-nection with tenant cultivation in terms of sections 5 and 9 of theAgrarian Services Act, No. 58 of 1979, it is surprising that such aperson cannot come under the jurisdiction of the High Court of theProvinces with regard to section 18 of the same Act. Such a narrow 310interpretation cannot be given to the provisions laid down in List Ito the 9th Schedule to the Constitution, taking into considerationthe unreasonableness in the application of section 3 of the HighCourt of the Provinces (Special Provision) Act, No. 19 of 1990 readwith Part I of the Agrarian Services Act, No.58 of 1979.
One final point to be made before I part from this judgment.
The learned Judge of the High Court, based his reasoning on thedetermination of the Supreme Court on the Amendment to theAgrarian Services Act, No.58 of 1979, as the Court had stated that“the matters dealt with in the Bill [are] all matters of national policy 320in regard to the rights and liabilities of owners and tenant cultiva-tors, and this fall within List II”. It is to be noted that the amendmentinter alia dealt with section 5(3) of the principal enactment regard-ing inquires in respect of eviction of tenant cultivators. In terms ofsection 3 of the High Court of the Provinces Act, No. 19 of 1990appellate and revisionary jurisdiction orders given under section 5of the Agrarian Services Act is vested in High Courts of theProvinces, If so, it would not be correct to say that the matterswhich were dealt in the Bill are all matters of national policy thatfalls within List II.330
Provincial Councils were established to permit the people todeal with their day to day life within the provinces itself. A tenantcultivator in any area within the country therefore should have theopportunity to challenge an order relating to the payment of agri-cultural rent in the High Court of the Provinces, instead of having to
sc
Madduma Banda v Assistant Commissioner of Agrarian Services
and Another (Bandaranavake. J.)
.91
come to Colombo to invoke the jurisdiction of the Court of Appeal.
If section 3 of the High Court of the Provinces, (Special Provisions)
Act, No. 19 of 1990, in furtherance of the objects of the 13thAmendment provided for the appeals in respect of orders made interms of sections 5 and 9 of the Agrarian Services Act to be made 340to the High Court of the Provinces and not to the Court of Appeal,there is no such justification for excluding applications relating tosection 18 of the Agrarian Services Act.
The word ‘agrarian’ relates to landed property and such prop-erty no doubt would attract paddy lands and tenant cultivators ofsuch land.
In the circumstances, it appears that the subject dealing withpaddy lands falls within the ambit of the Provincial Council List andtherefore the High Courts of the Provinces have the jurisdiction toissue orders in the nature of writs by virtue of the power given to 350them in terms of Article 154P of the Constitution.
For the aforementioned reasons both the questions on whichleave to appeal was granted by the Court of Appeal are answeredin the affirmative. This appeal is accordingly allowed and theProvincial High Court of the Central Province is directed to hearand determine the application made by the appellant.
There will be no costs.
SARATH N. SILVA, C.J.YAPA, J.
-1 agree.-1 agree.
Appeal allowed.