NANDASENA v. SENANAYAKE AND ANOTHER

023-SLLR-SLLR-1981-1-NANDASENA-v.-SENANAYAKE-AND-ANOTHER.pdf


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NANDASENA
v.SENANAYAKE AND ANOTHER
SUPREME COURT
ISMAIL, J., WEERARATNE, J. AND SHARVANANDA, J.
S.C. APPEAL NO. 36/80CA/LA NO. 103/79 (SC)
S.C. APPLICATION NO. 885/78C.A. Appeal Nos. 261 – 262/77M.C. Kurunegala No. 20748June 16 and 18,1981.
Agricultural Lands Law No. 42 of 1973 (S. 53(4)) — Paddy Lands Act — Eviction— Interpretation — Appeal and application in Revision — The use of the word "way" inlegislation — Sections 4 1A (d), 21 of Paddy Lands Act — Sections 53 !4)(c) and 4 of Agri-cultural Lands Law.
The use of the word 'may' in S. 21 of the Paddy Lands Act postulates an imperative.In interpreting statutes a purposive approach should be adopted where offerwise futilitywill result.
The object of the legislature in enacting sections 53(4) (b) and (c) providing forproceedings pending under the Paddy Lands Act at the time of its repeal was to ensurethat they could be proceeded with to consummation by the eviction of the landlord.The legislature intended that inquiries which had commenced but had not been concludedbefore the Commissioner or the Board of Review should be heard and concluded underS. 4(1 A) (d) of the repealed Act and that the provisions of the law should mu taf/s mutan-dis apply to eviction by process of court in all oases of unexecuted or unsatisfied determi-nations made under section 4(1 A)(d) of the Act whether prior to its repeal or subsequentthereto, except those in respect of which action under section 21 of the Act was alreadypending in the Magistrate's Court.
The vacation order by the Commissioner is a mandatory ministerial act complementaryto the decision under S. 4(1 A)(cf) of the Act. Section 53(4)(c) which make section 4 ofthe Law applicable mutatis mutandis relates to the stage when action for eviction is to becommenced in the Magistrate's Court. All steps preliminary to the commencement of such'action, such as a vacation order under Section 4(1 A)(d)(ii) of the Act, will therefore haveto be taken under the Act. Hence eviction proceedings under S. 4 of the Law for theeviction of the landlord and his nominees who do not comply with the vacation orderissued by the Commissioner in terms of S. 4(1 A)(d)(ii) of the Act are warranted.
Cases referred to:
Rosalin Nona v. Assistant Commissioner of Agrarian Services, Vavuniya 75 NLR 443.
R v. Bishop of Oxford (1850) 5 AC 214,244-
Whitney v. Inland Revenue Commissioner 11925) AC 27, 52.
Nokes v. Doncaster Amalgamated Collieries Ltd., [1940] AC 1014, 1023~
Luke v. Inland Revenue Commissioner [ 1963] 1- All ER 655,664
Magor and St Mellons Rural District Council v. New Portborrough Council [1962]A.C. 189
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Nar.dias Silva v. Somapala S.C. appeal27/79 —S.C. Minutes of 3.7.1981.
Appeal from jud&nent of the Court of Appeal.
Nimal Senanayake with Kithssri P. Gunaratne, Miss S. M. Senaratne and Saliya Mathew for-Petitioner-appellant
Douglas Premaratne SCC with N. Y. Casie Chetty S. C. for 1st respondent A. 3.1.Tillaka-wardene with S. C. Javanath for 2nd respondent
August 14,1981
SHARVANANDA, J.
This appeal involves the question of the impact of the Agri-cultural Lands Law, No. 42 of 1973, on proceedings pendingunder the Paddy Lands Act that was repealed by that Law.
The 2nd respondent on 1.8.71 complained under Section 4(1 A)of the Paddy Lands Act, No. 1 of 1958 as amended, to the Com-missioner of Agrarian Services that he, a tenant-cultivator, hadbeen evicted from the paddy land called "Madalanda", in extent31/2 acres, by the petitioner-appellant and the 3rd respondentThe Assistant Commissioner held an inquiry in terms of Section4(1 A) of the Paddy Lands Act as amended, and by his order dated19.12.72, held that the 2nd respondent had been so evicted.
Aggrieved by that decision of the Assistant Commissioner, thepetitioner-appellant and the 3rd respondent appealed to the Boardof Review against that order. The Board of Review heard the appealon 10.8.73. The decision of the Board of Review confirming thedecision of the Assistant Commissioner and dismissing the appealwas communicated to the appellants by letter dated 6.11.73.
The Paddy Lands Act, No. 1 of 1958, as amended (hereinafterreferred to as ' the Act ' ) was repealed by section 53(1) of theAgricultural Lands Law, No. 42 of 1973 (hereinafter referredto as 'the Law'). The Law came into operation on 17th October1973. Section 53(4) of the Law however provided that:
"Notwithstanding the repeal of the Paddy Lands Act, No. 1of 1958: .
(b) all proceedings which are pending and in respect of whichinquiries have commenced before the date of commencementof this Law, before the Commissioner of Agrarian Services orthe Board of Review shall oe heard and concluded beforesuch Comissioner or Board of Review in all respects as thoughthat Act had not been repealed.
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all proceedings which have been commenced and completedbefore the Commissioner of Agrarian Services and the Boardof Review in respect of which action has not been commen-ced in the Magistrate's Court under Section 21 of the PaddyLands Act shall be proceeded with under the provision ofthis Law.
all proceedings which are pending in respect of which in-quiries have not commenced on the date of commencementof this Law before the Commissioner of Agrarian Servicesor the Board of Review shall be heard and concluded underthe provisions of this Law.
By writing dated 4.3.74 the Assistant Commissioner purporting’to act under section 4(1A)(d)(ii) of the repealed Act, ordered theappellant and the 3rd respondent to vacate the said paddy land andhand over its possession to the 2nd respondent (the complainant)on or before 19.3.74. On the failure of the petitioner-appellantand the 3rd respondent to comply with the vacation order, theAuthorised Officer of the Agricultural Tribunal, Kurunegala Dis-trict, by application dated 26th March 1976, instituted procee-dings in the Magistrate's Court of Kurunegala for their eviction.The application was made under section 53(4)(c) read with section4(1) of the Law. The application stated that ''the Assistant Com-missioner, Agrarian Services, Kurunegala District, under section4(1A)(c)(ii) of the Paddy Lands(Special Provisions) Act, No. 2of 1970, read with the Paddy Lands Act, No. 1 of 1958, as amen-ded by Act No. 30 of 1958, No. 61 of 1961, No. 11 of 1964 andNo. 25 of 1968 issued an eviction order to leave the field called'Madalandakumbura'. The respondents (viz. the appellant and the3rd respondents) have defaulted the said order and failed to leaveand hand over possession". It prayed that the Court be pleasedto issue order on the said respondents under section 4(2) of theAgricultural Lands Law to evict the said respondents and all otherswho were occupying the said paddy land and to hand over posses-sion of the said paddy land to the 2nd respondent.
In terms of the said application/report, the Magistrate issued aneviction order on 31.3.76. This order was carried out by the Fis-cal on 27.4.76 by the eviction of the appellant and of the 3rdrespondent from the field and the placing of the 2nd respondentin possession thereof. The appellant and the 3rd respondent there-upon filed appeal on 3. 5. 76 to the Supreme Court from the orderof the Magistrate. The petitioner-appellant also filed on 1. 8. 76an application for revision.
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The appeals and the revision application have been dismissed bythe Court of Appeal. The petitioner-appellant has preferred thisappeal from the judgment of the Court of Appeal dated 23rdNovember 1979. The ground of appeal is that the orders madeunder the Paddy Lands Act cannot be enforced under the Agri-cultural Lands Law, No. 42 of 1973. It is contended for the appel-lant that the Authorised Officer, Agricultural Tribunal, had nopower to take steps to enforce orders made by the Commissionerof Agrarian Services under the Act and that the Assistant Com-missioner of Agrarian Services had, after the repeal of the Act,no authority to issue the vacation order dated 4th March 1974.
It was urged by Counsel for'the appellant that no step could betaken under the Act after the date of repeal of the Act, viz.17.10.73, except as specifically provided for by section 53(4) (b),
and (d) of the law. It was farther contended that the procedureset out in section 4 of the Law applied only to orders made undersection 3(8)01) of the Law by the Agricultural Lands Tribunal andthat it could not be invoked to enforce vacation orders made by theCommissioner of Agrarian Services under the Act. He submittedthat there was a lacuna in the Law and that this Court cannot fillthe gap.
On Counsel's construction of the provisions of section 53(4)(b)and (c) of the Law, they are ineffectual and futile. According tohim, after the repeal of the Act, vacation orders under that Actcould not be validly issued and recourse could neither be had to themachinery of section 21 of the Act nor to that of section 4 of theLaw for the eviction of the person in wrongful occupation. Hepointed to the opening words of section 4(1A)(d)(1) of the Law,"Where any person who has been ordered under this Law by the
Tribunal to vacate any extent of paddyfails to comply
with such order, the Tribunal or any person authorised in thatbehalf may present to the Magistrate a written report", and sub-mitted that it is a condition precedent for the invocation of theprocedure under section 4 of the Law that the order sought to beenforced should be an order by the Agricultural Lands Tribunal. Hissubmission is founded on the litteral approach to the constructionof the relevant provisions of the Law.
The scheme of the Act provides for the following steps for therestoration of a tenant-cultivator who has been wrongfully evictedfrom thefield:
On the complaint of such tenant-cultivator that he has beenevicted from any extent of paddy land, the Commissioner holds
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an inquiry at which the landlord is given an opportunity of beingheard. The Commissioner's decision is communicated to theparties but it is open to the landlord who is aggrieved by suchdecision to prefer an appeal from such decision to the Board ofReview (section 4(1 A) (a) (b).
When the Commissioner decides that the eviction has beenmade and no appeal is made from such decision, or the Boardof Review on any such appeal confirms the dec-ision of the Com-missioner, the person evicted becomes entitled to have the useand occupation of the paddy land restored to him (Section4(1A) (d)(1).
The decision of the Commissioner or the decision of the Boardof Review on appeal, as the case may be. is final and conclusiveand cannot be called in question in any Court (Section 4 (1A) (c)as amended by Act No. 25 of 1966 and section 59(3) of the Act).Following on that decision, the Commissioner is enjoined toorder in writing that every person in occupation of the landshould vacate it on or before a date specified in the order. Suchordering is mandatory. If that person fails to comply with thevacation order, section 4(1A) (d) (ii) requires that "he shall beevicted from such extent in accordance with the provisions ofsection 21". Section 21 of the Act provides that if any personwho has been ordered by the Commissioner to vacate any extentof any paddy land and deliver possession thereof to any specifiedperson fails to comply with such order, the Commissioner maypresent in the Magistrate's Court a written report of such default,and on such written report the Magistrate shall issue an orderdirecting the eviction of the persons specified in such report:an appeal lies to the Supreme Court from the order of the Magis-trate. Thus, the machinery for the enforcement of the statutoryright of the tenant-cultivator to be restored to the use and occupa-tion of his paddy land by the eviction of the landlord and hisnominee by Court process is set in motion. The obligation toinitiate this process under section *21 for the restoration of thetenant-cultivator to the use and occupation of his land arisesonly if the landlord does not comply with the vacation orderissued by the Commissioner in pursuance of the decision undersection 4(1A) (d). In view of the conclusive nature of the deci-sion of the Commissioner or of the Board of Review, the validityof same cannot be canvassed before the Magistrate or the Sup-reme Court, except in regard to the particulars furnished by theCommissioner. Rosalin Nona v. Assistant Commissioner of Agra-rian Services, Vavuniya.(1 * As was held in that case, the purposeof section 21 was to make available to the Commissioner theservices of the Fiscal to enforce his order.
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It was contended by Counsel for the appellant that it is left tothe discretion of the Commissioner to take or not to take stepsin the Magistrate's Court under section 21 of the Act against aperson who fails to comply with the vacation order issued by him.He based his argument on the clause, "The Commissioner may
present to the Magistrate's Court a written report
When this clause is read in isolation, it may appear that the
Commissioner has a discretion: but this clause in section 21 hasto be read with section 4(1 A) (d), which vests the tenant-cultiva-tor with entitlement to have the use and occupation of the paddyfield and enjoins that the person who defaults in complying withthe vacation order issued by the Commissioner "shall be evictedfrom such extent of paddy land in accordance with the provisionsof section 21." Although the word 'may' generally imports adiscretion, it is, in some circumstances, construed as not discre-tionary but imperative. The word 'may' nearly always gives apower, but the further question whether, given the power, there isa duty to exercise it must depend on the words creating the power.If the donee has nobody's interest to consult but his own, thepower is permissive merely, but if a duty to others is at the sametime created, the exercise of the power will be imperative. "If theobject for which power is conferred is for the purpose of enforcinga right, there may be a duty cast on the donee of the power toexercise it for the benefit of those who have that right when
required on their behalfThe enabling words are
construed as compulsory whenever the object of the power is toeffectuate a legal right: and if the object of the power is to enablethe donee to effectuate a legal right, then it is the duty of the doneeof the power to exercise the power when those who have the rightcall upon him to do so ". -per Lord Blackburn in R. v. Bishop ofOxford ^ In the context, "the Commissioner may present to theMagistrate's Court a written report" in section 21 means "theCommissioner shall present to the Magistrate's Court a writtenreport." Section 21 casts on the Commissioner a positive andabsolute duty to take Court action to have a defaulting landlordagainst whom a decision had been made under section 4(1A) (d)and who does not comply with the vacation order issued by theCommissioner evicted. (Sections 3(8) and 4(1) of the law are also ofthe same tenor.)
When the Agricultural Lands Law was enacted on 17. 10. 71 toreplace the Paddy Lands Act, 4 categories of proceedings under theAct w^e pending, in the sense that rent-cultivators who had com-plained c/'eviction by the landlord had not been restored to posse-ssion in teV.K ^f the provisions of the Act They were:
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Proceedings in respect of which inquiry undensection 4(1A)
had not comenced on 17. 10. 73
Proceedings in respect of which inquiry had commencedprior to 17. 10. 73 but in respect of which no final orderhas been made by the Commissioner of Agrarian Sevicesor the Board of Review;
Proceedings in respect of which a final decision has beenmade by the Commissioner or the Board of Review but inrespect of which vacation order has or has not been issued,and proceedings have not commenced under section 21 ofthe Paddy Lands Act; and
Proceedings in respect of which action has been commencedin the Magistrate's Court under section 21 of the PaddyLands Act.
Since the Paddy Lands Act was being repealed by the Agricul-tural Lands Law, provision for the aforesaid categories of caseswhich were pending at the time of the repeal had to be made.Section 53(4) (a), (b) and (c) of the Law was designed to meet theexigencies of the first 3 categories of cases. The purpose of thissection is manifest.
Section 6(3) (c) of the Interpretation Ordinance applies to thelast class of proceedings pending in Court at the time of the repeal.It enables those proceedings to be carried on under section 21 ofthe Act as if the Act had not been repealed. It cannot be appliedor be invoked in the case of the other aforesaid categories (a), (b),and (c), as proceedings referred to therein were not pending inCourt The words "action, proceeding or thing pending" in section6(3) (c) of the Interpretation Ordinance connote, in my view,
' action, or proceeding, or thing of a judicial nature pending in aCourt of Law when the repealing law came into operation.
Section 53(4) (d) of the Law provides that complaints in res-pect of which inquiries under section 4(1A) of the Act have notcommenced should be heard and concluded under the provisionsof the new Law.
Section 53(4) (b) of the Law seeks to provide for proceedingsin respect of which inquiries had commenced under the Act beforethe Commissioner of Agrarian Services or the Board of Review, butnot completed. It states that the Commissioner or the Board ofReview, as the case may be, shall hear and determine them under
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Section 4(1) (a). It does not expressly state how such a decisionof the Commissioner or the Board of Review is to be executed.
Section 53(4C) seeks to provide for those cases where a finalorder had been made by the Commissioner or the Board of Reviewbut in respect of which action under section 21 had not beencommenced. It states that such proceedings shall be proceededwith u nder the provisions of the Law.
Counsel contended that the legislature has not provided forthe execution of the decision of the Commissioner or the Boardof Review in cases falling under Section 53(4)' (b) of the Law.He stated that though section 53(4) (c) was designed to providefor the enforcement of decisions of the Commissioner or of theBoard of Review dated prior to the repeal of the Act, viz. 17.10.73,but in respect of which action had not been commenced in theMagistrate's Court under section 21, the object has failed as theprovisions of the Law cannot be applied for the enforcementof orders stemming from them. The burden of his argument wasthat orders referred to in section 53(4) (b) and (c) can for theirenforcement neither attract the procedure set out in section 21of the Act as the Act has been repealed, nor the procedure setout in section 4 of the Law, as section 4 of the Law, applied onlyto orders made under section 3<8)(b) of the Law. This constructionhas the consequence of rendering purposeless the exercise autho-rised by section 53(4) (b) and of rendering nugatory the provi-sions of section 53(4) (b) and (c) of the Law.
Statutes should be construed, as far as possible, to avoid ab-surdity or futility. A statute should be constnied in a mannerto give it validity rather than invalidity — utresmagis valeatquampereat As Lord Dunedin stated in Whitney v. Inland RevenueCommissioner. "A statute is designed to be workable, andthe interpretation thereof should be to secure that object, unlesscrucial omission or dear direction makes that end unattainable."A similar view was expresskl by Lord Simon L. C. in Notes v.Doncaster Amalgamated Collieres Ltd.^ in the words: "If thechoice is between two interpretations, the narrower of whichwould fail to achieve the manifest purpose of the legislation,we should avoid a construction which would reduce the legisla-tion to futility and should rather accept the bolder constructionbased on the view that Parliament would legislate only for thepurpose of bringing about an effective result". Lord Reid enun-ciated the same view in Luke v. Inland Revenue Commissioner.
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"How then are we to resolve this difficulty? To apply the wordliterally is to defeat the obvious intention of the legislature andto produce a wholly unreasonable result To achieve the obviousintention and produce a reasonable result, we must do some vio-lence to the words. This is not a new problemThe general
principle is well settled. It is only where the words are absolutelyincapable of construction which will accord with the apparent in-tention of the provision and avoid a wholly unreasonable resultthat the words of the enactment must prevail." it is thus legitimateand proper to read and rely upon such a principle as this; "Where thelanguage of a statute in its ordinary meaning and grammatical cons-truction leads to manifest contradiction of the apparent purposeof the enactment, or to cause inconvenience or absurdity, hardshipor injustice, presumably not intended, a construction may be putupon it which modifies the meaning of the words and even thestructure of the sentence". (Maxwell 'Interpretation of Statutes',10th Ed. at p. 229) A purposive approach to the construction ofthe relevant section of the Law avoids the futility apprehended by.Counsel and enables the statutory objective to be achieved.
In adopting the purposive construction, one has to bear in mindthe warning contained in Magor and St. Mellons Rural DistrictCouncil v. New Portborrough Council W that the duty of theCourt is limited to interpreting the words used by the legislatureand that it has no power to fill in any gaps disclosed.
The object of the legislature in enacting sections 53(4) (b) and(c) providing for proceedings pending under the Act at the timeof its repeal is clear. The legislature did not count those procee-dings to become abortive with the repeal, but wanted them to beproceeded with to consummation by the eviction of the landlord.It intended that inquiries which had commenced but not beenconcluded before the Commissioner or the Board of Review shouldbe heard and concluded under section 4(1 A) (d) of the repealed Actand that the provisions of the Law should mu rafts mutandis applyto the eviction by process of Court in all cases of unexecuted orunsatisfied determinations made under section 4(1 A) (d), whetherprior to the repeal or subsequent thereto except those in respectof which action under section 21 of the Act was already pendingin the Magistrate's Court
The literal construction of sections 53(4) (c) of the Law urgedby Counsel for the aopellant fails to achieve the manifest purposeof the legislature and reduces the legislation to futility. On thisconstruction, eviction proceedings founded on decisions of theCommissioner or the Board of Review under section 4(1A)(d)
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of the Act. barring those in respect of which action in the Magis-trate's Court had already been commenced under section 21 ofthe Act, can be taken neither under the Act nor under the Lawand those decisions will be rendered nugatory. A Court of Justicewill, in the circumstances, be justified in adopting a purposiveconstruction by even reading into the section words which arenot expressly included in it.
A purposive construction of section 54(4)(c) of the Law milita-tes against the submissions of Cojnsel for the appellant In my viewthis construction of the section enables proceedings in respect ofdecisions of the Commissioner or of the Board of Review undersection 4(1A) (ii) of the Act, where proceedings in the Magis-trate's Court under section 21 of the Act had not been commencedprior to the repeal of the Act, to be taken in the Magistrate'sCourt in terms of section 4 of the Law.
In giving effect to the decision of the Commissioner or of theBoard of Review, coercive action through process of Court becomesnecessary only if the vacation order issued under section 4(1 A) (d)(ii) of the Act by the Commissioner is not complied with. Asstated earlier, vacation order is a mandatory ministerial act com-plementary to the decision under section 4(1A) (d) of the Act.Section 53(4)(c) which makes section 4 of the Law applicablemuta-tis mutandis relates to the stage when action for eviction is to becommenced in the Magistrate's Court. All steps preliminary to thecommencement of such action, such as a vacation order undersection 4(1A) (d) (ii) of the Act, will therefore have to be takenunder the Act. Hence, eviction proceedings under section 4 ofthe Law for the eviction of the landlord and his nominees whodo not comply with the vacation order issued by the Commis-sioner in terms of section 4(1A) (d) (ii) of the Act are warranted.On this view of the matter the procedure adopted for the evictionof the appellant in the instant case is regular and legal. The officerauthorised by the Agricultural tribunal was entitled to initiateproceedings under section 4 of the Law for the eviction of theappellant and the 3rd respondent who had failed to comply withthe vacation order issued by the Commissioner on 6.11.73.
Counsel for the appellant relied on the following judgments ofthe Court of Appeal in support of his submissions:
C. A. No. 738/76 — M. C. Deniyaya 6645 (C. A. minutes of
6.80); '
C. A. No. 246/78 – M. C. Gampaha 44030 (C. A. minutesof 1.8.80);
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C. A. No. 43 6/77 – M. C. Matara 29227 (C. A. minutesof 28.11.79);
C. A. No. 280/76 — Revision in M. C. Matara 24767 (C. A.minutes of 30. 9. 80).
The narrow view of section 53 (4)(c) of the Law taken in theabove judgments cannot be endorsed.
The conclusion that in the cirumstances disclosed in this appeal,vacation order under section 3(8) of the Law should have beenobtained from the Agricultural Tribunal as contended for byCounsel for the Appellant, is not warranted on a proper construc-tion of section 53(4) (b) and (c) of the Law.
I note that the following judgments of the last SupremeCourt which run counter to the submissions of appellant'sCounsel on the effect and scope of section 53(4)(b) and (c)of the Law have not been considered by the Court of Appeal —probably for their reasons that the Court did not have the benefitof their citation:
S. C. Application 473/76 — M. C. Deniyaya 6644 (S. C.minutes of 13.7176);
S. C. Application 179/76 – M. C. Badulla 50567 & 56291(S. C. minutes of 28.6.78);
S. C. Application 727/75 — M. C. Panadura 68874/A (S. C.minutes of 17.1.78 .
S.C. Application 779/76 — M. C. Panadura 73691/A (S. C.minutes of 24.5.77);
Counsel for the appellant referred us to the Judgment of thisCourt in Nandias Silva v. Somapala(/) and submitted that thisjudgment has advisedly held that the issue of 'vacation orderwas part of the function of the Assistant Commissioner evenafter repeal of the Paddy Lands Act and that it followed thathundreds of 'vacation orders' issued by officers authorised by theAgricultural Tribunal under the Law pursuant to orders under'section 4(1A)(d) of the Act, must be illegal. This contention ofillegality cannot be accepted. A vacation order issued under section4(1 A)(d)(ii) of the Act is. as stated by me supra, a ministerialact ancillary to the Commissioner's or Board's decision whichis the foundation for eviction proceedings. The issuing of a vaca-
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tion order is in the nature of a statutory duty cast on the Com-missioner. It is not of jurisdictional importance who performsthat duty. Hence it is not a material irregularity vitiating a vaca-tion order and proceedings thereon that the vacation order un-der section 4(1A) (d) (ii) of the Act is, after the repeal of theAct, issued not by the Assistant Commissioner but by an officerauthorised by the Agricultural Tribunal.
I dismiss the appeal. The appellant will pay each of the 1stand 2nd respondents Rs. 210/= as costs of this appeal.
ISMAIL, J.I agree.
WEERARATNE, J. I agree.
Appeal dismissed