KULARATNE AND OTHERS
COURT OF APPEAL.
Agrarian Services Act No. 58 of 1979 amended by Act 2 of 1991 – S. 12 (A)(5). – Transfer of Paddy field – Notice of intended sale to Ande Cultivator -Agrarian Services Agricultural Committee – Necessity- Validity- Declarationby Commissioner • Proof- Evidence Ordinance Section 3,95-falsaDemonstratio Non Nocet Cum de Corpora Constat – Prima facie evidence.
The predecessor in title of the Petitioner transferred the paddy field in fa-vour of the Petitioner. The 2nd Respondent was the Ande Cultivator. NoNotice of the intended sale was given either to the Ande Cultivator or to theAgrarian Services Agricultural Committee. The Asst: Commissioner heldthat the aforesaid transfer has not been executed in terms of section 12A -Act 2 of 1991.
It was contended that the Assistant Commissioner has no jurisdiction todeclare that such a transfer is in violation of section 12A and is null andvoid, such a declaration in relation to the proprietory rights of the citizen isa matter falling within the jurisdiction exclusively conferred on the DistrictCourt.
(i) The preamble to the Agrarian Services Act sets out that it is an act toprovide security of tenure for tenant cultivators of paddy lands, to providefor the establishment of Agrarian Services Committees and to confer andimpose powers of supervision to be exercised by the Commissioner oversuch committee, and provide for the determination of tenural and otherdisputes relating to agricultural land by the Commissioner.
Section 12(A) – imposed a duty on the landlord where there is a tenantcultivator to communicate his intention to sell, together with the price to thetenant cultivator.
A copy of such communication is required to be sent to the Agrarian Serv-ices Committee by Registered Post.
Section 12A (2) requires a tenant desirous of purchasing such an extent toindicate his willingness to the Committee; where the price demanded isexcessive.
The Committee in consultation with the landlord is then required to deter-mine a reasonable price and fix a period for the transfer.
Section 12(A) (5) provides that a transfer in contravention of section 12(A) isnull and void.
Having regard to the preamble to the provisions of the Act and with particu-lar reference to section 12A, by necessary implication power and jurisdic-tion to declare that an impugned transfer has been effected in contraven-tion of section 12 is a power and jurisdiction which has been conferred onthe Commissioner and the District Court has no jurisdiction over the opera-tion and application of section 12A.
The provisions of the Agrarian Services Act take away the jurisdiction of thecourts by necessary implication on a parity of reasoning.
AN APPLICATION for a Writ of Certiorari.
Cases referred to :
Gabriel Perera vs Agnes Perera, 43 CLW 82
Yapa vs Dlssanayake Sedara – 1989 – 1 SLR 362
Henderick Appuhamy vs John Appuhamy, 69 NLR 29
Holdsack vs Shore 1950 1 KB 708
C.B. Walgampaya with W.MJayantha for Petitioner.
E.M.Nanayakkara for Respondent.
November 29, 1995.
F.N.D. JAYASURIYA, J.
Learned Counsel for the Petitioner who is seeking the issue of amandate in the nature of a Writ of Certiorari and Prohibition urged thatthere is uncertainty as regards the corpus of the paddy field in respectof which the second Respondent is a tenant cultivator. I reject thatcontention. The evidence of K.P. Gunadasa is quite clear and specificon this issue. He has stated that this paddy field which has a totalextent of 20 lahas consists of three lots. First lot, which is an extent of8 lahas, is cultivated by an ande cultivator by the name of Jayasekera.The second lot, which is an extent of 6 lahas, has been cultivated byN.P. Wilson and the remaining lot which is in extent of 6 lahas, whichhas been cultivated by the second Respondent as the ande cultivator.It is correct that in the evidence of Wadiya Godagedara Dharmacharithe predecessor in title to the present Petitioner, he has referred to thelot cultivated by the ande cultivator of Gunadasa as an extent of 8lahas but thereafter he has corrected himself and said that he hadtransferred the lot cultivated by Gunadasa's Ande cultivator, which isin extent 6 lahas to the present Petitioner. In these circumstances thisCourt applies the principle – falsa demonstratio non nocet cum decorpora constat – which principle is recognized in section 95 of theEvidence Ordinance. Vide the decision in Gabriel Perera v. AgnesPerera(1) and Yapa v. Dissanayake Sedara(2). In the circumstances Ihold that the first point raised is without substance and has necessarilyto be rejected.
In the course of the evidence the predecessor in title of the presentPetitioner has given evidence and that evidence is referred to by theAssistant Commissioner in his order. According to that testimony thepredecessor in title of the Petitioner has stated before the AssistantCommissioner that the second Respondent is the Ande cultivator ofthe paddy field in question and that was prior to the transfer of thispaddy field in favour of the Petitioner. The Petitioner's predecessor intitle had not given notice of the intended sale to the Ande cultivatorwith a copy of the notice to the Agrarian Services Agricultural Committeeof the area. That evidence has not been rebutted before the AssistantCommissioner when prima facie evidence was led and in respect ofwhich the other party has not led rebutting evidence contradicting theevidence led by the former. This is an additional feature upon theapplication and is "a matter" falling within the definition of "proof" insection 3 of the Evidence Ordinance and it would have been amisdirection if the Assistant Commissioner had not taken this matterinto account, in view of the failure to rebut the evidence of witnessDharmachari before the Assistant Commissioner. The evidence givenby the witness Dharmachari is an admission against the Petitionerbecause Dhamarchari was the Petitioner's predecessor in title and thePetitioner now is the representative in interest of Dharmachari in theproceedings before the Assistant Commissioner. In view of that findingand upon a perusal of the document which was the transfer in question,the Assistant Commissioner has very correctly held that the aforesaidtransfer has not been executed following the requirements set forth insection 12A of the Agrarian Services Act, as amended by Act No. 2 of1991. Section 12A sub-section 5 sets out that the transfer by a co-owner of an extent of paddy land in contravention of the provisions ofthis section shall be null and void and shall render the person inoccupation of such paddy field liable to be evicted in accordance withthe provisions of section 6 of the Act. Learned Counsel for the Petitionercontends that the Assistant Commissioner has no jurisdiction to declarethat such a transfer is in violation of the provisions of section 12A andthat such a transfer is null and void. Such a declaration and an order inrelation to the proprietary rights of the citizen is a matter falling withinthe jurisdiction exclusively conferred on the Additional District Courtin terms of section 19 of the Judicature Act.
A somewhat similar contention was advanced by Learned Counselfor the Appellant who appeared before Justice Sansoni in HendrickAppuhamy v. John Appuhamy® and on that occasion Justice Sansonivery diligently went through the preamble of the applicable Act andindulged in a careful consideration of the provisions of the Act andconcluded that the preamble by necessary implication ousted thejurisdiction of the District Court by the enactment of the aforesaidprovisions.
The preamble to the Agrarian Services Act contained a statementvery similar to the preamble to the Paddy Lands Act and contained afurther statement of intention on the part of the legislature which is ofassistance to this Court in dealing with the points raised by the Counselfor the Petitioner. The preamble sets out that it is an Act to providesecurity of tenure for tenant cultivators of paddy land, to provide forthe establishment of Agrarian Services Committees and to confer andimpose powers of supervision to be exercised by Commissioner ofAgrarian Services over such Committee and provide for thedetermination of tenurial and other disputes relating to agricultural landby the Commissioner of Agrarian Services.
These statements of objects and intentions set out in the preambleare very helpful to this Court to decide on the tenability of the contentionraised by learned Counsel for the Petitioner. Section 12A of the Actwhich imposed a duty on the landlord where there is a tenant cultivator,to communicate his intention to sell the property together with theprice to the tenant cultivator. In the first instance, a copy of suchcommunication is required to be sent by the landlord by registeredpost to the Agrarian Services Committee in whose area of authoritysuch extent of paddy land is situated. Section 12A(2) required a tenantdesirous of purchasing such an extent of paddy land to indicate hiswillingness to the aforesaid Agrarian Services Committee where theprice demanded by the landlord is alleged to be excessive.The AgrarianServices Committee in consultation with the landlord is then requiredto determine the price which is reasonable and fix a period for thetransfer. Section 12A(4) provides for the issue of the circulars by theAgrarian Services Committee. In this context, the question arises asto who has supervision over alleged acts of misconduct, on the part ofofficers serving on Agrarian Services Committee. Is it the AdditionalDistrict Court in terms of section 19 of the Judicature Act or is it theAssistant Commissioner who is required to exercise supervisory controlover Agrarian Services committees. Section 12A(5) provides that atransfer in contravention of the provisions of section 12A is null andvoid. I hold, having regard to the preamble to the provisions of AgrarianServices Act and with particular reference, to the provisions of section12A, that by necessary implication power and jurisdiction to declarethat an impugned transfer has been effected in contravention of theprovisions of section 12, is a power and jurisdiction which has beenconferred on the Assistant Commissioner of Agrarian Services andthat the District Court has no jurisdiction over the operation andapplication of section 12A. I respectfully reiterate the principles alreadylaid down in the judgment delivered by Justice Sansoni in Hendrick
Appuhamy v. John Appuhamy (supra)and adopt his words andobservations.
I emphasize that traditional jurisdiction of a Court could not beousted by express language which has been referred to in the case ofHoldsack v. Shore.w The provisions of the Agrarian Services Act takeaway the jurisdiction of the Courts by necessary implication on a parityof reasoning. Justice Sansoni remarks that in the case before him thePaddy Lands Act provided the sole machinery to which a landlord mustresort if he wishes to have his tenant cultivator evicted or his paddyfield properly cultivated. There is no other remedy available to him toseek since this Act was passed and it has taken away the jurisdictionof the District Court by necessary implication.
In the circumstances I hold the second contention by learnedCounsel for the Petitioner is unsustainable and untenable in law. I holdthat the Assistant Commissioner has come to a correct finding. Thereis no error of law on the face of the record and no want of jurisdiction infact. I dismiss the application with costs in a sum of Rs. 1050/- payableto the second Respondent.
PREMATILAKA v. KULARATNE AND OTHERS