084-NLR-NLR-V-65-P.-LOKU-BANDA-Appellant-and-THE-ASSISTANT-COMMISSIONER-OF-AGRARIAN-SERVICES-K.pdf
Lohu Banda v. The Assistant Commissioner of Agrarian Services, Kandy 401
1963Present: Abeyes under e, J.
P.LOKU BANDA, Appellant, and THE ASSISTANTCOMMISSIONER OF AGRARIAN SERVICES, KANDY,
Respondent
8. 0. 236 of 1963—M. G. Kandy, 27850Paddy Lands Act, No, 1 of 1958—Sections 3 (2), 3 (3) (6), 21 (1)—Eviction order—Execution—Procedure—Legality of Commissioner's decision—Burden of proof.
Where an Order that is not made by a Court is sought to be enforced by aCourt under any written law, the Court must be satisfied that such order isvalid and the party affected by such order is entitled to attack its validity»
Accordingly, where the Commissioner presents to a Magistrate’s Court areport under section 21 (1) of the Paddy Lands Act praying for on order toevict a person from a paddy land, it is the duty of the Magistrate to satisfyhimself, before ordering eviction, that an order under section 3 (3) (6) of theAct had been legally made after proper assumption of jurisdiction by theCommissioner.
402ABEYBSTJNDERB, J—£-o*u Btmda v. The Asuietanl Ootmnittioner oj
Agrarian Servian, Kandy
«•
Appeal from a judgment of the Magistrate’s Court, Kandy.
H. W. Jayewardene, Q.G., with G. T. Sameratoickreme, for the respondent-appellant.
R. S. Wanasundere, Crown Counsel, for the applicant-respondent.
Cur. adv. vull.
October 1, 1963. Abeyesundkrjs, J.—
The Assistant Commissioner of Agrarian Services of the KandyDistrict, hereafter in this judgment referred to as the applicant-respondent,presented to the Magistrate’s Court of Kandy a report undersection 21 (1) of the Paddy Lands Act, No. 1 of 1958, hereafter in thisjudgment referred to as the Act, stating—
that after an inquiry held under section 3 (2) of the Act, it was
decided that the person who was the tenant and cultivator ofthe paddy land called Elamullapathakotasa was evicted afterApril 12, 1956, otherwise than for a prescribed cause,
that the said decision was communicated in writing to the land*
lord of the paddy land and the landlord did not appeal there*from to the Board of Review,
that order was made under section 3 (3) (6) of the Act that Pitawela
Gedera Loku Banda and all other persons in occupation of thepaddy land shall vacate it on or before November 5, 1961,and
that Pitawela Gedera Loku Banda had failed to vacate the paddy
land as required by the said order.
He prayed for an order of the Court to evict Pitawela Gedera LokuBanda from the paddy land and mentioned H. A. William Singho as theperson to whom delivery of possession of the paddy land should be made.
Summons was issued to Pitawela Gedera Loku Banda to show causewhy he should not be evicted from the paddy land. He appeared inCourt and stated that he had cause to show. The matter was fixed forinquiry. After inquiry the Magistrate made order on January 18, 1963,stating that he was “ satisfied that the complainant has taken all therequisite steps under the Act ” and “is, therefore, entitled to an evictionorder against the respondent as the respondent has failed to show thathe is entitled to occupy the extent of paddy land mentioned in thewritten report filed in Court” and requiring “that the respondentand all other persons in occupation of the field in question be evicted^om such extent.” Pitawela Gedera Loku Banda, hereafter in thisjudgment referred to as the respondent-appellant, has appealed to thisCourt from the order of the Magistrate.
ABEYESUNEERE, J.—Loltu Banda v. The Assistant Commissioner of 403
Agrarian Services ^.Kandy
The order under section 3 (3) (6) of the Act requiring the respondent-appellant to vacate the paddy land was made on October 13, 1961,by the then Assistant Commissioner of Agrarian Services of the KandyDistrict, hereafter in this judgment referred to as the Assistant Com-missioner. The counsel for the respondent-appellant submitted that the-^Magistrate should have satisfied himself before he ordered the evictionof the respondent-appellant from the paddy land, that the aforesaidorder of the Assistant Commissioner was valid. He also argued that theburden was on the applicant-respondent to prove the validity of theAssistant Commissioner’s order. The Crown Counsel who appeared forthe applicant-respondent submitted that the brnden was on the respondent-appellant to show that he was entitled to occupy the paddy land andcontended that there was no burden on the applicant-respondent toprove the validity of the Assistant Commissioner’s order. The decisionof this Court in the case of Bandahamy v. Senanayalce1 was cited insupport of the submission made on behalf of the respondent-appellant.That case was decided by seven judges of this Court. The majority ofthem held that where the powers of a Court were invoked for the enforce-ment of an award of an arbitrator as a decree of such Court in terms ofrule 58 (13) of the rules made under section 46 of the Co-operativeSocieties Ordinance, the party against whom the award was sought tobe enforced should be noticed and given an opportunity of showing theexistence of defects, even though the award did not bear any fatalflaws on its face. The view of the majority of the aforesaid judges is con-sistent with the following view expressed by Gratiaen, J. in the case ofW. Barnes de Silva v. Galkissa Wattarappola Co-operative Stores Society2:—
“ …. it is the clear duty of a Court of law whose machinery as aCourt of execution is invoked to satisfy itself, before allowing writto issue, that the purported decision or award is prima facie a valid• decision or award made by a person duly authorised under theOrdinance to determine a dispute which has properly arisen for the. decision of an extra-judicial tribunal under the Ordinance. In thatevent alone would the Court be justified in holding that the decision oraward is-entitled to recognition and capable, under the appropriaterule, of enforcement as if it were a decree of Court.”
The judgment delivered by Sansoni, J. on January 20, 1959, on theappeal from the order of the Magistrate in M. C. Matugama CaseHo. 26654 (S. C. Case No. 84 A-B of 1958) was cited in support of thesubmission made on behalf of the applicant-respondent. In that casethe Government Agent of Kalutara, acting under section 120 of theBand Development Ordinance, through the Divisional Revenue Officer,filed a report in the Magistrate’s Court stating that the permit grantedunder that Ordinance to the appellant for a certain allotment of land wasduly cancelled and that the appellant was in unlawful occupation of the1 {i960) 62 N, L. R. 313.* {1953) 5i N. L. R. 326.
404 ABBYBSTOrDEBJD, J.— Lokti Banda V- 2%e Assistant Commissioner of
Agrarian Smvioee, Kandy
allotment of land and had faded to vacate it though served with a noticeto do so. In dismissing the appeal the judge held that the appellantcould not be heard to say that these should have been proof that he was
served with a notice to vacate the land, that the burden throughoutwas on the person summoned to appear before the Magistrate, that itwas the duty of such parson to show cause why he should not be ejected,and that the Magistrate was bound to make an order of ejectment if hewas not satisfied that the person showing cause was entitled to thepossession or occupation of the land.
The view of Gratiaen, J., quoted above is unexceptionable. It wasadopted with approval by a bench of three judges of this Court in thecase of Jayasinghe v. BoragodawaUe Co-operative Stores '. Sansoni, J.agreed with the decision in that case in his judgment in the aforesaidcase of Bandahamy v. Senanayake. The principle that may be deducedfrom the decisions in the aforesaid three reported cases is that where anorder that is not made by a Court is sought to be enforced by a Courtunder any written law, the Court must be satisfied that such order isvalid and the party affected by such order is entitled to attack itsvalidity. I shall apply that principle in determining the appeal beforeme.
As the powers of the Magistrate’s Court were invoked by the applicant-respondent to secure the execution of the Assistant Commissioner’s orderunder section 3 (3) (b) of the Act, it was the duty of the Magistrate to havesatisfied himself, before ordering the eviction of the respondent-appellantfrom the paddy land, that the order of the Assistant Commissioner hadbeen legally made. The Magistrate has stated in his order that he was“ satisfied that the complainant has taken all the requisite steps underthe Act”. The officer who presented to the Court the report undersection 21 (1) of the Act and who is referred to by the Magistrate in hisorder as the 11 complainant ” is not the Assistant Commissioner who madethe order under section 3 (3) (6) of the Act. The Magistrate should havesatisfied himself that the Assistant Commissioner who made the orderunder section 3 (3) (6) of the Act had jurisdiction to make such order. Insub-sections (2) and (3) of section 3 of the Act there are specified the factswhich enable the assumption of jursidiction to make an order undersection 3(3) (&) of the Act. Such order, if made in the absence of any ofthose facts, would be invalid.
The burden was on the respondent-appellant to show cause why heshould not be evicted from the paddy land. He would have shown goodcause if he established that the evidence placed before the Court by theapplicant-respondent did not show that the Assistant Commissioner hadlegally made the order which the respondent-appellant was alleged tohave disobeyed and upon the basis of which his eviction from the paddyland by order of the Court was sought by the applicant-respondent. The
1 {195&) 56 N. L. R. 462.
ABEYESTHSTDERE, J.—Loku Banda, v. The Assistant Commissioner oj 406
Agrarian Services, Kandy
respondent-appellant showed by means of cross-examination of thewitnesses of the applicant-respondent that there was no proof of some ofthe facts which were necessary for the assumption of jurisdiction by theAssistant Commissioner to make the order under section 3 (3) (b) of theAct.
Mr. A. E. A. Heppenstall was the Assistant Commissioner who held theinquiry under section 3(2) of the Act. He stated in his evidence beforethe Magistrate that the paddy land belonged to the Dalada Maiigawa,that after an inquiry he decided that William Singho was the tenantcultivator of the paddy land and was evicted therefrom after April 12,1956, that he could not definitely say whether the Diyawadana Nilame,who was the landlord of the paddy land, was given notice of the inquiry,and that on August 15, 1960, the Diyawadana Nilame was informed ofthe Assistant, Commissioner’s decision. The applicant-respondentMr. P. L. hT. de Silva, who also gave evidence before the Magistrate,stated that the landlord had to be given notice of the inquiry undersection 3(2) of the Act, that there was a particular form of such notice,that the form was Form No. 15, and that such notice was sent in FormNo. 15 to the Diyawadana Nilame. The fact that such notice was givento the Diyawadana Nilame should have been proved by summoning himto produce the notice alleged to have been sent to him and, if after havingbeen summoned to do so, he failed to produce such notice before theMagistrate, secondary evidence of such notice should have been given bythe applicant-respondent by producing a copy of such notice. Theapplicant-respondent failed to lead such evidence as aforesaid in regardto his averment that notice of the inquiry was given to the DiyawadanaNilame. I hold that there was no proof that notice of the inquiry wasgiven to the Diyawadana Nilame and that consequently there was noproof that the landlord was given an opportunity of being heard in personor through a representative at the inquiry held under section 3 (2) of theAct.
The letter marked PI from the Diyawadana Nilame was relied on bythe applicant-respondent to prove that the decision of the AssistantCommissioner after the inquiry was communicated to the DiyawadanaNilame by letter dated August 15, 1960. In the letter marked PI theDiyawadana Nilame refers to four letters of the Assistant Commissionerbearing the aforesaid date and different reference numbers, but thesubject matter of those four letters is not disclosed. It is not possible todraw from the letter marked PI the inference suggested by the applicant-respondent that such letter indicates that the aforesaid decision of theAssistant Commissioner was communicated to the Diyawadana Nilame.I hold that there was no proof of the communication of such decision tothe Diyawadana Nilame.
Mr. Heppenstall’s evidence in regard to the eviction of WilliamSingho from the paddy land was that the eviction was after April 12,1956. There was no evidence that William Singho’s eviction was before
406HERAT, J.—Joseph v. Mariam Pith*
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the Act came into operation in the Administrative District in which thepaddy land wholly or mainly lies. Section 3 (2) of the Act applies onlywhere the citizen of Ceylon alleged to have been a tenant and a cultivatorof a paddy land was evicted therefrom after April 12, 1956, and beforethe coming into operation of the Act in the Administrative District inwhich the paddy land wholly or mainly lies.
The applicant-respondent has failed to prove some of the facts necessaryfor enabling the Assistant Commissioner to assume jurisdiction to makethe order under section 3 (3) (6) of the Act. Such failure constitutes afailure to prove that the Assistant Commissioner had such jurisdiction.I therefore hold that from the evidence placed before the Magistrate bythe applicant-respondent it cannot be held that the applicant-respondentsatisfied the Court that the Assistant Commissioner’s order under section3 (3) (5) of the Act was legally made.
I set aside the order made by the Magistrate on January 18, 1963.
Order set aside.