MOHAMED SAHIBU AND OTHERS
ARIVARATNE AND OTHERS
COURT OF APPEAL.
SENEV1RATNE. J. (PRESIDENT) AND B. £ DE SILVA, J.
C A 611/82OCT08ER2, 1984.
Wit of Mandamus – Irrigation Ordinance – Rules 1. 7 and 8 made under IrrigationOrdinance – Duty of Government Agent – Irrigation (Amendment) ActNo. 48 of 1968 (section 23 (1) (a)) – Agrarian Services Act No. 58 of 1979(section 55 (2) (b)) – Maintenance of minor irrigation works and tanks.
The petitioners and many others were owners and cultivators of fields served by fourvillage tanks. In 1976 a number of persons damaged the tank bunds drained out thewater and started unauthorised cultivations. Under the rules made under the IrrigationOrdinance the tanks were state property but the duty to maintain the tanks was'cast onthe proprietors and cultivators of the lands fed by these tanks. The Government Agent(1st respondent) had undertaken to have the squatters evicted and irrigation facilitiesrestored to the petitioners but not taken action. The petitioners alleged that in terms ofthe Irrigation Ordinance and regulations and practice for more than a century the 1 strespondent had a public duty to ensure that the said four tanks were maintained andmade available to the petitioners and others for their cultivation. On this basispetitioners moved for a Writ of Mandamus on the Government Ageni and otherofficials.
There is no duty cast on the Government Agent now to maintain minor irrigation worksknown as village tanks in view of the Irrigation (Amendment) Act No. 48 of 1968. BySection 23 (1) (a) of this Act the duty is now cast on the Cultivation Committee.
At Land Kachcheries held, permits had been issued to a number of those who were nowcultivating the fields fed by these tanks. The petitioners had not made any applicationsfor allotments at these Land Kachcheries. The petitioners were therefore guilty of
Further there was no practical way of complying with the Writ of Mandamus if issued asthe present occupiers held permits.
In these circumstances Mandamus will not issue
' APPLICATION for Writ of Mandamus.
K. Shanmugalingam for petitioners.
K. Siriparan. S.C. for 1st respondent.
Cur. adv. vult.
December 14, 1984.
SENEVIRATNE, J. (President)
The petitioners in this Application have stated that they and m^riyothers are the owners and cultivators of several acres of irrigablepaddy lands fed by the village tanks called (1) Pirvaikulam, (2)Thamaraikulam, (3) Karungoditivu Kulam, (4) Sakkarathar Kulamsituated in Akkaraipattu Central A.G.A.'s Division. These village tankswere governed by the Irrigation Ordinance and the rules madethereunder, and published in Gazette No. 7707 of May 3rd 1929 (P 2)Under the said rules these tanks were state property but the duty tomaintain the said tanks is cast on the proprietors and cultivators of thelands fed by these tanks – Rules 1, 7 and 8 of (P 2).
The petitioners allege that in 1976 a number of unauthorisedpersons damaged the tank bunds, drained out the water and startedcultivating the Tank Bed without any authority The petitioners maderepresentations to the respondents particularly the 1st respondent.The respondents undertook to expel the squatters from the Tank Bedand restore the irrigation facilities to the petitioners. The petitionershave filed copies of correspondence from 1980 onwards.
The petitioners state that in spite of the undertaking given by the 1 strespondent and other public officers arid more recently by theAgricultural Development Authority, the squatters and encroachers onthe tank bed have not been evicted and irrigation facilities from thesaid tanks have not been provided to the petitioners The petitionershave filed a letter dated 19.6.80 (P 6) from the AssistantCommissioner of Agrarian Services. Amparai to the AgriculturalDevelopment Authority. Pottuvil which states that tenders have beencalled to repair the tanks in question (subject matter of this,Application) but repairs cannot be done due to illegal encroachers andif they are evicted repairs can be done. By letter dated 21.9.81 (P 7)the D.L.O., Amparai has requested the A.G.A.. Akkaraipattu to takeaction to evict the encroachers to enable the restoration of thesetanks. By letter dated 14.7.81 (P 8). the D.L.O , Amparai lor G AAmparai has written to the A.G.A., Akkaraipattu calling for a reportregarding the restoration of these tanks.
The petitioners rest their Application on the rules framed under theIrrigation Ordinance and published in Gazette No. 7707 of May 3rd,,1929 pertaining to Irrigation Districts inter alia Akkaraipattu. Thefollowing rules framed are of importance
Rule 1 -'The tank is the property of Government; but so long as
the tract of fields attached to it is occupied, it shall foragricultural purposes be considered to be the jointproperty of the proprietors of the fields in proportion tothe share held by them*.
Rule 3 – 'No person other than a proprietor or lessee of thelands under the tank shall be entitled to the use of water. from the tank for agricultural purposes'
Rule 7 – 'Tanks, dams, minor channels, water-courses, or otherminor works shall be repaired or improved by theproprietors whenever the Government Agent shallconsider it necessary. The work to be performed by eachproprietor shall be in proportion to the extent of his landlikely to be benefited by the work in question'.
As such the petitioners have stated that in terms of the IrrigationOrdinance and regulations and practice for more than a century the1 st respondent has a public duty to ensure that the said four villagetanks among others are maintained and available for cultivation of thelow-tying paddy lands of the petitioners by providing irrigation facilitiesfrom the said tanks. The petitioners move for a Writ of"Mandamus asfollows'
Directing the respondents to maintain the Village Tanks, knownas Pirvaikulam. Thamaraikulam, Karungoditivu Kulam andSakkarathar Kulam situated in the Akkaraipattu A.G.A. *s Divisionand depicted in the plan marked (PI) as Minor Irrigation Tanks interms of the Irrigation Ordinance and the rules thereunder tosupply water to irrigate the paddy fields of the petitioners andother irrigable paddy lands of the others in the area.
. The 1 st respondent Government Agent in his objections dated 27thOctober. 1982 has taken two vital objections among others :
.(1) that no duty was cast on him now to maintain minor irrigationworks known as village tanks in view of the Irrigation(Amendment) Act. No. 48 of 1968 ;
that the encroachments in Akkaraipattu have been regularisedby granting permits. The 1st respondent has stated that by theprovisions of section 23 (1) (a) of the Irrigation (Amendment)Act, No. 48 of 1968 the duty has been cast on the CultivationCommittee of the area (under the Paddy Lands Act, No. 1 of1958) 'to attend to aHmatters connected with the irrigation'and cultivation of land and the. preservation of rights and'maintenance of irrigation works connected therewith."
I must add that section 23 (1) (b) is also relevant – 'to prevent,as far as practicable, any.act or omission.which is contrary to therules or regulations in force under this Ordinance or to established. customs relating to irrigation or cultivation. …..*.
The regulations in the Gazette of 30th. April 1929 (P2) relied on by:the petitioners are rules made by the proprietors under Section TV ofirrigation Ordinance No. 45 of 1917 as amended by. IrrigationOrdinance No. 17 of 1927. The irrigation Ordinance that prevaitenowis 'Ah Ordinance to amend and consolidate the law relating toIrrigation – No. 32 of 1946*, and'Act, No. 1 of 1951 ; Vo» ■ XIIO L E. as amended by irrigation (Amendment).Act, No. 48 of 1868.However Section 119 of the Irrigation Ordinance No. 32 of 1946 haskept alive 'every rule, made under any previous Irrigation Ordinance bythe proprietorswithin any Irrigation District. . . ‘ so far as it is notinconsistent with the provisions of this Ordinance*. (The emphasis ismine) The law pertaining to the maintenance of minor irrigationworks – village tanks has since been changed by several subsequentenactments. The 1st respondent's main defence is based on theIrrigation (Amendment) Act, No. 48 of 1968 Section 23 (1) (a) which.is as follows : –
‘A Cultivation Committee shall within the area of its jurisdiction –
attend to all matters connected with the irrigation andcultivation of land and the preservation of rights and themaintenance of irrigation works therewith".
The Paddy Lands Act, No. 1 of 1958 has been later replaced by theAgricultural Lands Law No. 42 of 1973. The latter Act has beenrepealed and replaced by the Agrarian Services Act, No. 58 of1979 – date of operation 25th September 1979. This present Act -Part Vl-section 55 (1) (2) has provided that the Cultivation Officers’subject to the general control and direction' of the Commissioner ofAgrarian Services’ and section 55 (2) (b) 'attend to all matters
relating to minor irrigation works and the maintenance of minor
irrigation worksThe Irrigation (Amendment) Act No. 48 of
1968 came into force on December 14, 1968, that is before anyrdf>eaI of the Paddy Lands Act, No. 1 of 1958 by the subsequent Actsof 1973 and 1979. As such this Amendment by its provision section49 keeps the rules framed under the Irrigation Ordinance prior to thisAmendment of 1968 as 'effective rules made by the CultivationCommittee of that irrigable area'. As shown earlier section 119 of theIrrigation Ordinance kept alive the rules framed under any previousOrdinance such as the Rules of 30 April 1929 (P2) – 'so far as it is notinconsistent with the provisions of this Ordinance". It is quite clear thatthese rules (P2) are inconsistent with the provisions of section 23 ofthe (Amendment) Act, No. 48 of 1968. The subsequent law referredto above has now made the rules (P2) further obslete and inoperativeand also in terms of section 119 Irrigation Ordinance" inconsistentwith the provisions'. Due to these reasons the petitioners cannotassert that the 1st respondent Government Agent, Amparai is in dutybound to maintain the village tanks in question. The objection of the1 st respondent in this respect is upheld.
The petitioners have stated that there were encroachers cultivatingthe tank beds in question and that permits have been given to suchencroachers by the 1st respondent. The petitioners aver that the 1strespondent should take steps to evict such encroachers from the tankbeds, and should cancel or not renew the permits issued to suchencroachers and make the tank beds and bunds available for repairand maintenance. The proprietors were ready and willing to do thatwork in terms of the rules (P2).
The 1 st respondent has stated that his predecessor in 1968 madea report (1 Ft2) to the Land Commissioner regarding theseencroachments and sought his directions in terms of section 4(1) ofthe Land Development Ordinance. On the directions of the Land•Commissioner, Land Kachcheries were held in terms of section 23 ofthe Land Development Ordinance, by the A.G.A., Akkaraipattu andpermits were legally issued to the selected applicants. The petitionersdid not make any claims to the land at that stage. This averment thatthe petitioners did not make any claims have not been denied and assuch in this respect the petitioners are seriously guilty of laches forhaving slept over their rights. However the 1st petitioner in a later setof papers filed on 11 th September 1984 states that these permitshave been unlawfully issued to cultivate the tank beds to encroachers
and squatters. Thus, there is a dispute in this application regarding thevalidity of the permits issued which dispute cannot be decided in thisapplication. When the Court questioned the learned counsel for thepetitioners as to how in this situation the 1 st respondent can obey theMandamus applied for if issued, the answer was that the fstrespondent should take steps to evict these permit holders andexecute the Mandamus. If this is going to be a consequence of a Writof Mandamus if issued against the 1st respondent .then the permitholders have to be parties to this application, and have to be heardbefore any order which affects their proprietory rights is made by thisCourt.
I hold that this application is not properly constituted as the permitnolders who appear to be necessary parties are not parties to thisapplication. Further in this context an issue of a Writ of Mandamus willbe a futility as the 1st respondent cannot obey or execute theMandamus of this Court. Where there is no practical possibility ofenforcing obedience to an order to perform a duty a Writ ofMandamus will generally be refused.
For the reasons given above this application is refused. As thepetitioners have had rights to irrigate their fields from these tanks andfor whatever reason have now'lost their rights, no costs are orderedApplication is dismissed without costs.
B. E. DE SILVA, J. – I agree.
-MOHAMED SAHIBU AND OTHERS v. ARIYARATNE AND OTHERS