Podisingho v. Chandradasa
COURT OF APPEAL.
COLIN THOME, J. AND ATUKORALE, J.
C.A. (S.C.) 89/78—M.C. HORANA 26498.
OCTOBER 10, 1978.
Administration cf Justice Law, No. 44 of 1973, sections 62, 63—Disputeaffecting land—Duty of Magistrate himself to enquire and determinequestion of possession—Agreement to refer matters to third party forsettlement—Need for an order by Magistrate under section 63 (8) eventhereafter.
Under sections 62 and 63 of the Administration of Justice Law,No-, 44 of 1973, it is clear that it is the duty of the Magistrate himselfto inquire into and find out as to who was in actual possession of theland in dispute at the relevant time and there is no provision for him todelegate the decision of this question to anyone else.
However, although such requirement had not been observed in thepresent case, both parties had agreed not only to the procedure adoptedto settle their dispute but also to the manner of settlement by a thirdparty to whom it was referred and neither party should in these circums-tances therefore be permitted to resile therefrom. Nevertheless it wasincumbent on the Magistrate himself even after the reference for settle-ment in this manner to make an order in terms of section 63 (8) inaccordance with the terms of settlement agreed oil
APPLICATION to revise an order of ,the Magistrate’s Court, Horana.
N. S. A. Goonetilleke, for the petitioner.
W. P. Gunatilleke, for the 1st respondent.
Cur. adv. vult.
Sri Lanka Law Reports
(1978-79) 2 S.L.R.
October 31, 1978.
ATUKORALE, J.This is an application to set aside all orders made by thelearned Magistrate after 20.10.1977 in proceedings which com-menced under section 62 of the Administration of Justice Law,No. 44 of 1973. The 2nd respondent who was the officer in chargeof Ingiriya Police Station made an application to court under sec-tion 62 of the above Law making the 1st respondent as complai-nant and the petitioner as respondent in relation to a dispute overthe right to possess a paddy field called Udakumbura Pitakattiya.The learned Magistrate ordered notice to issue as prescribedunder section 62 and fixed the inquiry for 23.11.1977 and directedthe parties to furnish their written statements of claim on orbefore that date. On 23.11.1977 parties were present and theywere represented by Counsel. On that day parties agreed thattheir respective rights should be settled by the officer of theAgrarian Services Department. The officer was to devise a modeof possession by the parties who were to possess in accordancetherewith. On the same day the learned Magistrate also madean order prohibiting parties from acting contrary to the saidmode of possession. Thereafter on 1.12.1977 the officer inquiredinto this matter and submitted a report to the court. Accordingto the report, the 1st respondent had complained to the AssistantCommissioner of Agrarian Services that he was the ande goviyaof the paddy field and that he had been evicted by the petitioner.After inquiry an order had been made by the Assistant Commis-sioner directing that the petitioner should vacate the field andhand over possession of the same to the 1st respondent. As thepetitioner failed to do so, he had been prosecuted in Case No. 755of the Magistrate’s Court of Horana. On an order of court in thatcase possession was reported to have been handed over to the1st respondent on 29.7.1971. But as the field had been sown withpaddy at the time, the 1st respondent had not entered in toimmediate possession. After the paddy was harvested when the1st respondent attempted to work the field the petitioner hadrefused to allow him to do so. Thereafter the 1st respondent hadmade several complaints to various officers but no action hadbeen taken. On 26.3.1975 the 1st respondent had made a complaintunder the Agricultural Lands Law, No. 42 of 1973, but it hadbeen dismissed on the ground that the complaint had been mademore than a year after the date of eviction. After setting outthese facts in his report the officer expressed his belief that the1st respondent had a present right to possess the field in viewof the order made by the Magistrate’s Court on 29.7.1971 ana
Podisingho v. Chandradasa (Atukorale, J.)
and as such he took the view that the petitioner should reap thestanding crop and he should on or before 1.3.1978 hand overpossession of the field to the 1st respondent. After the officersent his report to court, the case was called on 18.1.1978. On thatday a motion signed by Counsel for both parties was tenderedto court stating that the parties are agreeable to implementingthe decision of the officer subject to the provisions of section 65of the Administration of Justice Law. The learned Magistrateordered this motion to be filed of record. Thereafter on 10.2.1978the present application for revision was made by the petitioner.
Learned Counsel for the petitioner submitted that the inquiryunder section 62 has to be held by the Magistrate and no otherTribunal or person and that the Magistrate cannot delegate thatpower even with the consent of parties. He submitted thattherefore the order of the officer embodied in his report is invalidand/or of no force or avail in Law. Learned Counsel for the 1strespondent on the other hand strongly urged before us that bothparties agreed that the dispute should be settled by the officerof the Agrarian Services Department and that they appearedbefore him and took part in the inquiry and later tendered ajoint motion agreeing that the decision of the said officer shouldtake effect subject however to the provisions of section 65. Inview of these facts he maintained that this application shouldbe dismissed.
The object of section 62 of the Administration of Justice Lawis to prevent breaches of the peace arising out of land disputes.On a perusal of sections 62 and 63 it is clear that it is the dutyof the Magistrate himself to inquire into and find out as to whowas in actual possession of the land in dispute at the relevanttime. There is no provision for a Magistrate to delegate thedecision of this question to anyone else. But under section 63 (8)parties concerned in the dispute can agree on the terms uponwhich they will resolve their dispute. It is apparently underthis sub-section that the parties in this case requested this disputerelating to their possession be referred to the officer of theAgrarian Services Department for a settlement. But the settle-ment decided upon by the officer goes far beyond the scope ofsection 63. He reported that the first respondent should berestored to possession of the field for all time. But when thereport of the officer was sent to court the parties filed a jointmotion in which they stated that they were agreeable to imple-menting the officer’s recommendation subject to the provisionsof section 65 that is to say without prejudice to their respectiverights in a civil action. It thus became incumbent on the
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Magistrate to consider making an order in terms of section 63 (8)in accordance with the terms of settlement the parties had agreedupon.
This the learned Magistrate has failed to do. His order madeon 23.11.1977 prohibiting parties from acting contrary to themode of possession that the officer would make is not an orderwhich is contemplated under section 63. The provisions of thatsection make it quite clear that the order should contain adeclaration and a prohibition and, if necessary, a direction andshould name the persons entitled to the benefit thereof.
In view of the fact that both parties had agreed not only tothe procedure adopted to settle their dispute but also to themanner of its settlement we do not think that either party shouldnow be permitted to resile therefrom. We, however, direct thatthe record be sent back to the learned Magistrate to enable himto make an appropriate order in terms of section 63 (8) of thesaid Law, on the report sent to court by the officer after hearingthe parties. This order will no doubt be of a temporary naturewithout prejudice to the rights of parties until they are finallyadjudged by a court or Tribunal of competent jurisdiction.
COLIN THOME, J.—I agree.
Podisingho v. Chandradasa