019-SLLR-SLLR-2000-V-3-NIMALARATNE-v.-ASST-COMMISSIONER-OF-AGRARIAN-SERVICES.pdf
NIMALARATNE
v.
ASST: COMMISSIONER OFAGRARIAN SERVICES
COURT OF APPEALJAYASINGHE. J.
JAYAWICKREMA. J..
CA 111 /95 (PHC)
PHC KEGALLE NO. 22911™ JANUARY. 200005th MAY. 2000
Constitution Article 154P(4). 154G(l)(5)a. (G)(7) )3,h Amendment -Provincial List – Agrarian Services Act 58 of 1979, S.5. 9 – Eviction – Doesthe Provincial High Court havejurisdiction – Devolved subjects – High Courtof the Provinces (Special Provisions) Act 19 of 1990 – S.3. S.4. S.5
The High Court held that inquiries with regard to Agrarian Services fellout side the writ jurisdiction of the Provincial High Court as it is notprovided for in the Provincial Council List.
On appeal
Held :
Legislative Authority of the Provincial Councils are provided for in the13Ul Amendment.
Agriculture and Agrarian Services is a devolved subject – (Item 9 -Provincial Councils List). However there is no reference to inquiriesunder the Agrarian Services in the Provincial Council List.
At the time the promulgamation of the 13th Amendment. AgrarianServices Act 58 of 1979 was operative. S.5 provided for inquiries by theCommissioner where there was eviction and S.9 provided for decidingdisputes regarding devolution of rights of tenant cultivators. Appealswere to the Board of Review – S.42(b) of the Agrarian Services Act 4 of1997 (Amendment). 4
(4)The legislature when enacting Act 19 of 1990 was aware of thecomposition of the Provincial High Court List and the concurrent list, itwas contemplated that inquiries under Act 58 of 1979. are to be dealt
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Ntmalnratne v. Asst: Commissioner of Agrarian Services
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with under the concurrent list, then it would not have given the HighCourt power to deal with Orders under S.5 and 9 by Act 19 of 1990.
If the view that inquiries under the Agrarian Services Act are notamenable to writ jurisdiction of the High Court of the Provinces issupportable, then Art. 154P(4) would be without any meaning.
Agrarian Services is devolved on the Provincial Councils andmechanism for adjudication of disputes arising therefrom is provided forin the Agrarian Services Act and the appellate procedure is provided forin Act 19 of 1990.
Creation of the High Court of the Provinces was to give effect to thedevolution of power that arose with the 13°’ Amendment.
APPEAL from the order of the Provincial High Court of Kegalle.
S.C.B. Walgampaya with W.A.N. Jayanath and S.A.I.S. Suraweera forPetitioner – appellant.
Nimal Jayasinghe with P.P. Gunasenafor 2nd Respondent – Respondent.
Cur. ado. vult.
July 28, 2000.
JAYASINGHE. J.The Petitioner-Appellant filed this appeal against theorder of the learned High Court Judge of the Provincial HighCourt of Kegalle dated 28. 07. 1995 refusing to issue a writ ofcertiorari to set aside the orders “P14" and “P17”.
The Petitioner-Appellant averred that the 2nd Respondent-Respondent who was the tenant cultivator sold his ande rightsto the Appellant in the year 1975; that upon a complaint madeby the 2nd Respondent-Respondent that he has beenunlawfully dispossessed by the Appellant, the Magistrate afterinquiry made under Section 66 of the Primary CourtsProcedure Act placed the Appellant in possession (P3). There-after the 2nd Respondent made an application under Section5(3) of the Agrarian Services Act against the Appellant to theAssistant Commissioner and the Assistant Commissionermade an exparte order against the Petitioner-Appellant for nonappearance (P4). The Petitioner-Appellant then filed affidavit
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explaining his default and the exparte order "P4” was set asideby the order “P7". Thereafter the Commissioner again soughtto evict the Appellant from the land in question by anapplication filed in the Magistrate's Court. However upon theAppellant explaining to the Commissioner that “P4" had beenset aside by the order “P7". the Commissioner withdrew hisapplication in the Magistrate's Court.
Thereafter on an application made by the 2™' Respondent,the 1st Respondent made order (PI4) evicting the Appellant interms of “P4” which had already been withdrawn. Thereafterthe Petitioner made an application to the 3rd Respondent tohave “P14” set aside which was refused by order "PI7".
The Appellant preferred an application to the ProvincialHigh Court for a writ of certiorari to have “PI 4" and “PI 7" setaside.
The learned High Court Judge after inquiry held that eventhough Agriculture and Agrarian Services are set out in theProvincial Council List, inquiries in respect of any of thematters referred to in the Provincial Council List and thematters referred to in the Concurrent List are not determinableby the Provincial High Court and that inquiries with regard toAgrarian Services fell out side the writ jurisdiction of theProvincial High Court as it is not provided for in the ProvincialCouncil List.
According to Article 154 P (4)
Every High Court shall have jurisdiction to issue,according to law –
orders in the nature of habeas corpus, in respect ofpersons illegally detained within the Province; and
order in the nature of writs of Certiorari, Prohibition,Procedendo, Mandamus and Quo warranto against anyperson exercising, within the Province, any power under
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Nimalaratne v. Asst: Commissioner of Agrarian Services
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any law; or
any statutes made by the Provincial
Council established for that Province, in respect of anymatter set out in the Provincial Council List.
Any law referred to above is referable to all matters set outin the List I.
Legislative authority of the Provincial Councils areprovided for in the 13lh Amendment.
Article 154G (1) provides that;
Eveiy Provincial Council may, subject to the provisions ofthe Constitution, make statutes applicable to the Province forwhich it is established, with respect to any matter set out inList I of the Ninth Schedule.
Article 154G (5) (a) provides that;
Parliament may make laws with respect to any matter setout in List III of the Ninth Schedule alter such consultationwith all Provincial Councils as Parliament may considerappropriate in the circumstances of each case.
(b) Every Provincial Council may, subject to theprovisions of the Constitution, make statutes applicable to theProvince for which it is established, with respect to any matteron the Concurrent List, after such consultation withParliament as it may consider appropriate in thecircumstances of each case.
Article 154G (6) provides that;
If any provisions of any statute made by the ProvincialCouncil is inconsistant with the provisions of any law made inaccordance with the preceding provisions of this article, theprovisions of such law shall prevail and the provisions of thestatute shall, to the extent of such inconsistancy be void.
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Therefore the power to enact statutes is found in Section154G (1) subject to the qualifications found in Articles 154G
(a), (b) and 154G (6).
There was no argument presented before Court that item29 on the Concurrent List fell within any of the articles set outabove.
Article 154G (7) provides that;
A Provincial Council shall have no power to make statutesoh any matter set out in List II of the Ninth Schedule of theReserved List.
The question for determination before this Court is whetherthe High Court of the Provinces has the jurisdiction to issueorders in the nature of writs of certiorari and prohibitionagainst an order made by the Board of Review under AgrarianServices Act. Mr. Jayasinghe argued that the order of the HighCourt Judge was supportable on the ground that theProvincial High Court lacks jurisdiction to issue writs to quashthe orders or prohibiting the exercise of powers pertaining tothe subjects set out in the Concurrent List of the 13thAmendment. He submitted that even though the subject ofAgriculture and Agrarian Services are set out in the ProvincialCouncil List inquiries in respect of these matters are set out inthe Concurrent List and that the Provincial High Courtsassume jurisdiction to issue writs only in respect of subjectsset out in the Provincial Council List.
Section 3 of the High Court of the Provinces (SpecialProvisions) Act No. 19 of 1990 provides that;A High Court established by Article 154P of theConstitution for a Province shall, subject to any law, exerciseappellate and revisionary jurisdiction in respect of ordersmade by Labour Tribunals within that Province and ordersmade under section 5 or section 9 of the Agrarian Services Act.
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No. 58 of 1979, in respect of any land situated within thatProvince.
Section 4 provides that;
A party aggrieved by any conviction, sentence or order,entered or imposed, by a Magistrate’s Court, a Primary Court,a Labour Tribunal or by an order made under section 5 orsection 9 of the Agrarian Services Act, No,. 58 of 1979 may,subject to the provisions of any written law applicable to theprocedure and manner for appealing and the time forpreferring such appeals, appeal therefrom to the High Courtestablished by Article 154P of the Constitution for the Provincewithin which such court or tribunals is situated or withinwhich the land which is the subject of the order made underthe Agrarian Services Act, is situated.
Section 5 provides that;
The Provisions of written law applicable to appeals to theCourt of Appeal, from convictions, sentences or orders enteredor imposed by a Magistrate’s Court, and to applications madeto the Court of Appeal for revision of any such conviction,sentence or order shall, mutatis mutandis, apply to appeals tothe High Court established by Article 154P (?f the Constitutionfor a Province, from convictions, sentences or orders enteredor imposed by Magistrate’s Courts, Primary Courts andLabour Tribunals within that Province and from orders madeunder section 5 or section 9 of the Agrarian Services Act,No. 58 of 1979, in respect of land situated within that Provinceand to applications made to such High Court, for revision ofany such conviction, sentence or order.
Agriculture and Agrarian Services is a devolved subject.Item 9 of the Provincial Council List provides that Agriculturaland Agrarian Sendees –
9:1 Agriculture, Including agricultural extension.
promotion and education for provincial purposes and
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agricultural services (other than in inter-provincialirrigation and land settlement schemes. State land andplantation agriculture);
9:2 Rehabilitation and maintenance of minor irrigation works;
9:3 Agricultural research, save and except institutionsdesignated as national agricultural research institutions.
Significantly there is no reference to inquiries under theAgrarian Services in the Provincial Council List. It is for thisreason that the High Court Judge has come to a finding thatthe High Court has no jurisdiction to issue writs of certiorariin respect of matters provided for in the Agrarian Services Act.
At the time of the promulgation of the 13“' AmendmentAgrarian Services Act 58 of 1979 was operative. Section 5provided for inquiries by the Commissioner where there waseviction and Section 9 provided for deciding disputesregarding devolution of rights of tenant cultivators. Appeals tothe Board of Review was provided for under Section 42(b) of theagrarian Services Act 4 of 1991. Therefore there was themechanism provided in the Agrarian Services Act to deal withdisputes that arose out of matters related to Agrarian Services.
The legislature when enacting High Court of the Provinces(Special Provisions) Act No. 19 of 1990 was aware of thecomposition of the Provincial Council List and the ConcurrentList. If it was in the contemplation of the legislature thatinquiries under Agrarian Services Act are to be dealt withunder the Concurrent List, then it would not have given theHigh Court power to deal with orders under Section 5 and 9 byAct No. 19 of 1990.
The learned High Court Judge was in error when he heldthat inquiries referred to as at item 29 in the Concurrent Listincluded inquires under Section 5 and 9 of the AgrarianServices Act.
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Nimalaratne v. Asst: Commissioner of Agrarian Services
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A prerogative writ lies against an Administrative Authorityacting under statute or against an order made by anAdministrative Tribunal. If the view of the learned High CourtJudge that inquiries under Agrarian Services Act is notamenable to writ jurisdiction of the High Court of the Provincesis supportable, then Article 154P (4) would be withoutmeaning. Agrarian Services is devolved on the ProvincialCouncils and mechanism for adjudication of disputes arisingtherefrom is provided for in the Agrarian Services Act and theAppellate Procedure is provided for in the High Court of theProvinces Special Provisions Law. The argument that the HighCourt of the Provinces is devoid of writ jurisdiction is thereforein-congruous. The creation of the High Court of the Provinceswas to give effect to the devolution of power that arose with the13th Amendment.
We hold that the learned High Court Judge was in errorwhen he held that a prerogative writ to quash the proceedingsmade under the Agrarian Services Act is out side thejurisdiction of the High Court. Preliminary objection isoverruled.
JAYAWICKRAMA, J. – I agree.
Preliminary Objection Overruled High Court has jurisdiction.