037-NLR-NLR-V-76-S.-A.-KIRIMUDUYANSE-Appellant-and-ASSISTANT-COMMISSIONER-OF-AGRARIAN-SERVICE.pdf
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Kirimudiyanae v. Assistant Commissioner of Agrarian Services
1972Present: Pathirana, J.S. A. KIRIMUDIYANSE, Appellant, and ASSISTANT COMMIS-SIONER OF AGRARIAN SERVICES, RespondentS. G. 954171—M. G. KegaUe, 91132
Paddy Lands Act No. 1 of 1958, as amended by Act No. 11 of 1966—Sections 4(1 A),21, 51(1)(3)—Eviction of tenant cultivator—Inquiry held by Commissioner—•Eviction order made by Commissioner thereafter—Persons against whom suchorder may be made.
PATHIRANA, J.—Kirimudiyanse v. Assistant Commissioner oj ■ 187
Agrarian Services
Where, at an inquiry held under section 4(1 A)(a> of the Paddy Lancia Act, itis proved to the satisfaction of the Commissioner that a tenant cultivator hasbeen wrongfully evicted, and the finding of the Commissioner has not beenreversed by the Board of Review upon an . appeal, the Commissioner isempowered by section 4 (1) (d) (ii) to order any person in occupation of theland on the owner’s behalf to vacate it, although there was no finding-at theinquiry held under section 4 (1A) (a) (6) that it was that same person who hadevicted the tenant cultivator.
App:
EAL from a judgment of the Magistrate’s Court, KegaUe.
Aloy Batnayake, with C. MotilaX Nehru, for the accused-appellant.
M. W. Amerasinghe, State Counsel, for the Attorney-General.
Cur. adv. wit.
December 5, 1972. Pathibana, J.-—
The appellant appeals under Section 21(3) of the Paddy Lands ActNo. 1 of 1958 amended by the Paddy Lands (Amendment) Act No. 11 of1964 against the order of the Magistrate made in terms of Section 21(2)that the appellant and all others in occupation of the paddy land calledDunukepota be evicted forthwith from such extent. This order wasmade consequent to'an application to the Magistrate’s Court by the Assist-ant Commissioner of Agrarian Services asking for the eviction of theappellant and all other persons in occupation of the said land and thedelivery of possession thereof to be given to one P. Podiappuhamy whohad been evicted from the said land. . The appellant had failed to complywith the order of the Assistant Commissioner to vacate the paddy landand give possession thereof to the said Podiappuhamy. There was noappeal against the order of the Assistant Commissioner of Agrarian Ser-vices by the landlady, as such the decision of the Assistant Commissionerwas final and conclusive and could not be questioned in any legal proceed-ings in any Court. Counsel appearing in the case concede that therewas no right of appeal on the points raised in the petition of appeal inview of the Divisional Bench judgment in Bosalin Nona v. AssistantCommissioner of Agrarian Services ', Vavuniya1.
The learned State Counsel, however, submitted that the order of theAssistant Commissioner of Agrarian Services in this case needed rectifi-cation as the proper person had not been made a respondent to the appli-cation that was made to Court. He desired, therefore, that the case besent back, so that the proper party may be substituted. His positionwas that, according to para. 6 of the affidavit filed by the Assistant Com-missioner of Agrarian Services in the Magistrate’s Court in his applica-tion for an order under Section 21(1) of the Paddy Lands Act/he hadstated that it was proved to his satisfactionthat P. Podiappuhamy
1 (1972) 75 N.L.B. 443.
188
PATHIRANA, J.—Kirimudiycm.se v. Assistant Commissioner of
Agrarian Services
(the tenant cultivator) had been evicted and that such eviction had beenmade by or at the instance of J. M. Babynona of Kumbukgama, Dewale-gama In para. 10 of the same affidavit he has, however, stated that bywriting dated 23.8.67 sent by registered post to the appellant, S. A.Kirimudiyanse, he had ordered him to vacate the land on or before30.9.67 and that he had failed to obey the aforesaid order and that
P.Podiappuhamy was still out of occupation and use of the said land.Babynona is the owner of the paddy land and therefore is the landlady.His contention was that in view of the facts stated in paras. 6 and 10 ofthe affidavit, the eviction was by or at the instance of Babynona, there-fore Babynona should be made a respondent to the application instead ofthe appellant Kirimudiyanse. He cited for this proposition the case ofPodiappu v. Assistant Commissioner of Agrarian Services1, 73 N.L.R. 225which is a judgment of a Bench of three judges of this Court. The casewas referred to a Bench of three judges to decide the important questionwhether the inquiry held by the Assistant Commissioner of AgrarianServices was ultra vires and without jurisdiction, in that he had not beenappointed by the Judicial Service Commission and could not thereforeexercise judicial power. The Court held that it was not necessary todecide this question as it was of the view that the matter could be dis-posed of on another point. In that case the cultivators Nandias andJayasena had been evicted by one Jayawickreme who was also the personwho entered into occupation immediately after the eviction of the culti-vators. In terms of Section 4(7)(&) the Commissioner had in writing toorder Jayawickreme that he and all other persons in occupation of thefield should vacate it and if Jayawickreme failed to comply with thatorder, the Commissioner was empowered under Section 21(1) to instituteproceedings against Jayawickreme for an order of eviction. The noticeunder Section 4(7)(6) had been made not on Jayawickreme but on Podi-appu, the appellant, and the proceedings had also been instituted notagainst Jayawickreme who was in occupation of the field, but againstthe appellant. It was rightly held that the proceedings against theappellant and order for eviction made therein were not in accordancewith the provisions of the Act and were therefore not warranted by thelaw.
I do not think that the Assistant Commissioner of Agrarian Services inthe case before me has acted otherwise than in accordance with theprinciples set out in the case cited. Under Section 4(l)(lA)(a), where atenant cultivator of a paddy land notifies the Commissioner that he hadbeen evicted from such extent the Commissioner has to hold an inquiry.An Assistant Commissioner of Agrarian Services by virtue of Section61(1)(3) can exercise all or any other powers of the Commissioner underthe Act within the area to which he is appointed. Under Section 4(1 A)
the landlord and the person evicted should be given an opportunityof being heard in person or through a representative at such inquiry.This has been complied with in this case.
‘ {1970) 73 N. L. A. 325.
PATHXRAN A, J.—Kirimudiyanse v. Assistant Commissioner of 163
Agrarian Services
When the Commissioner holds an inquiry under Section 4(lA)(o) themain question for decision is whether or not the tenant cultivator hadbeen evicted. Section 4(1)(6) states that if it is proved to the satisfactionof the Commissioner that the tenant cultivator had been evicted, then itshall be presumed, until the contrary is proved, that such eviction hadbeen made by or at the instance of the landlord of such extent. Thenext stage is when the Commissioner having decided that eviction hadbeen made and no appeal is made from the decision or if there was anappeal the Board of Review had confirmed the decision, then underSection 4(d)(ii) the person evicted shall be entitled to have the use andoccupation of the land restored to him. It will, therefore, be seen thatSection 4(1)(6) of the Act is silent as to what consequences follow againstthe person or persons who evicted the tenant cultivator whether it is thelandlord by virtue of the presumption under the Section or some otherperson or persons.
The Act thereafter provides the machinery for restoring the tenantcultivator to the use and occupation of the land. . For this purposethe Commissioner is empowered under Section 4 (d) (ii) in writing toorder every person in occupation of the extent to vacate it on or beforesuch date as shall be-specified in such order and if he failed to complywith such order, he shall be evicted under Section 21 which is the Sectiondealing with the procedure'for the eviction in the Magistrate’s Courtwithin whose local jurisdiction the extent of the paddy land wholly ormainly lies.-…
It becomes apparent, therefore,: under the Act, the person or personsin occupation under Section 4 (d) (ii) who had been ordered to vacatesuch extent by the order of the Commissioner need not necessarily be theperson or. persons who had evicted the tenant cultivator under Section4 (1). (b) of the Act. In my opinion, the legislature very advisedly enactedSection 4 (d) (ii) in this manner, namely, that the eviction order shouldbe in respect of every person in occupation of the land and not necessari-ly the. person or persons who had evicted the tenant cultivator, for it ispossible that if it were otherwise and the eviction order under Section4 (d) (ii) is made against the person or persons who had evicted thetenant cultivator, the purpose of achieving the objects of the Act willbe defeated, namely, to provide security of tenure to the tenant cultivatorand restore the tenant cultivator to have the use and occupation of theextent. It will also leave the door open to a designing landlord to getthe tenant cultivator evicted by some person or persons and after theinquiry by the Commissioner put another person or persons into occupation’of the land and in consequence raise technical objections that the ordercannot be enforced against the persons in occupation of the land becausethere had been mo findings of the Commissioner that it was these samepersons who had evicted the tenant cultivator at the inquiry underSection 4 (1) (a) and (6).
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RA.TAHATjSTAM, J.—Jalaldeen v. .tayawardena
The appellant in this case admits in his petition of appeal that at alltimes he was in occupation of the land for and on behalf of the landladyBabynona.
In my opinion, the Assistant Commissioner of Agrarian Services wasright in ordering the appellant under Section 4 (d) (ii) as the personin occupation to vacate the extent of the paddy land and thereaftertaken proceedings against him in the Magistrate’s Court under Section 21of the Act. I hold that the proper party has been made a respondentin the Magistrate’s Court proceedings. I therefore affirm the order ofeviction and dismiss the appeal.
Appeal dismissed.