100-NLR-NLR-V-71-S.-D.-KULATUNGA-Petitioner-and-CULTIVATION-COMMITTEE-and-2-others-Respondent.pdf
474
WEERAMANTRY, J.—KvlcUunga v. Cultivation Committee
1968 Present: Samerawlckrame, J., and Weeramantry, J.S. D. KULATUNGA,’ Petitioner, and CULTIVATION
COMMITTEE and 2 others, Respondents
• *»
S. C. 409/67—In the matter of an Application for the issue of aMandate in the nature of Writ of Certiorari and Mandamus
.Paddy Lands Register—Insertion of new names (hereon as tenant-cultivators—Right ofowner-cultivator to be heard in opposition—Natural justice—Right of appeal—Circumstances when it may be superseded by remedy of Certiorari—Right ofinspection of Paddy Lands Register—Paddy Lands Act, No. 1 of 1958, asamended by Acts Noa. 30 of 1958, 61 of 1961 and 11 of 1964, s. 35—PaddyLands (No. 3) Regulations'26, 27, 28, 29, 32, 35.
Before a person’s name oan be inserted for the first time in the Paddy LandsRegister as a tenant-cultivator of a paddy field under the Paddy Lands Act,the person whose name appears as the owner-cultivator oh the Register isentitled to be heard in opposition after due and sufficient notice, such asRegulations 26 and 35 of the Paddy Lands (No. 3) Regulations of 1964contemplate, is given to him by the Cultivation Committee that a name in thecolumn provided for tenant-cultivators would be considered.
Where a person’s name is inserted as tenant-cultivator without due notice tothe owner-cultivator, the remedy of Certiorari is available to the owner-cultivator. In such a case, the appellate procedure provided by Regulation 32is inapplicable.
According to Regulation 27 the Paddy Lands Register is available. forinspection by any person free of oharge.
Application for a writ of certiorari.
Nimal Senanayake, for the petitioner.
Hannan Ismail, for the 1st respondent.
B. Vannitamby, for the 2nd and 3rd respondents.
Cur. ado. null.
-October 14, 1968. Weeramantry, J.—
The petitioner is the owner of a paddy field known as Pathana AluthkeleKumbura about 10 acres in extent. From the time the Paddy Lands Actcame into operation in the area in which this field is situate, that is from1958, the petitioner has been the owner-cultivator of this field and hasbeen registered as such for the years 1964, 1965 and 1966.
The 1st respondent is the Cultivation Committee of the area and the2nd and 3rd respondents are persons whose names have now beeninserted in the Paddy Lands Register of the 1st respondent committee for
WKEBAMANlttY, J.—Kulaiunga v. Cultivation Committee475
the year 1967 as tenant-cultivators of this field. This Register is requiredto be maintained in terms of section 35 of the Paddy Lands Act, No. 1of 1958, as amended by Acts No. 30 of 1958, 61 of 1961 and 11 of 1964.The duty of maintaining this Register lies upon the cultivation committeefor the area and the manner, of preparation and revision of this Registeris laid down by Regulations made under the Paddy Lands Act andappearing in Government Gazette No. 14,230 of 20th November 1964.
The petitioner contends that -any alteration or amendment to thePaddy Lands Register is a judicial or quasi-judicial act which thecommittee can perform only in good faith and in conformity with thestatutory provisions relating thereto and with the rules of natural justice.In the circumstances of this case it is the petitioner’s position thatthe insertion by the 1st respondent committee of the names of the 2ndand 3rd respondents has been effected otherwise than in conformity withthe statutory provisions governing the procedure for alteration oramendment of the register, without due notice to the petitioner andmala fide. On the basis of these contentions the petitioner seeks amandate in the nature of a Writ of Certiorart quashing the decision ofthe Committee to insert the names of the 2nd and 3rd respondents astenant-cultivators for the year 1967.
The petitioner also sought in his petition a Writ of Mandamus directingthe 1st respondent committee to enter the name of the petitioner asowner-cultivator of the field for the year 1967. This latter prayer wasbased on an assumption, since found to be incorrect, that the name ofthe petitioner as owner-cultivator had been omitted from the Registerfor 1967. It would appear, however, that the name of the petitioner hasnot been so omitted, and it will not therefore be necessary to considerfurther the petitioner’s request for a Writ of Mandamus.
The 2nd and 3rd respondents do not in their affidavits deny that inthe years 1964,1965 and 1966 the petitioner was registered as the owner-cultivator of the land in question nor is there a denial of this averment inthe affidavit filed by the Hony. Secretary of the Cultivation Committee.Indeed in the application of the 2nd and 3rd respondents to the Cultiva-tion Committee it is significant that there is reference time and again tothe land as belonging to the petitioner. Furthermore it would appearfrom the evidence of the 2nd respondent at an inquiry on 23rd April1967 held by the Assistant Commissioner of Agrarian Services, that atractor, fertilisers, weedicide and cash had been obtained from thepetitioner for the purpose of cultivating this field in December 1966.
It is, however, the position of the 2nd and 3rd respondents that theirnames were properly entered as tenant-cultivators for the year 1967 andthat this registration was bona fide and regularly effected upon anapplication made by them on 4th January 1967.
The affidavit of the secretary of the 1st respondent committee statesthat as required by Regulation 26 of the Paddy Lands (No. 3) Regulations,1964, due notice was given on or about 11th December 1966 that the
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WEERAMANTRY, J.—Kulatunga v. Cultivation Committee
register for the year 1967 had been prepared and was open for inspectionand that any person may between 12th December 1966 and 12th January1967 apply in writing for any amendment in the register. The affidavitstates further that on 1st January 1967 the 1st respondent committee bybeat of tom tom and by affixing written notifications at prominent placeswithin its area of authority duly gave notice that a meeting of the1st respondent would be held at 9.00 a.m. on 14th January 1967 andrequested all cultivators and owners to be present at this meeting atwhich all applications and objections regarding amendments in theRogister would bo considered and dealt with.
The application of the 2nd and 3rd respondents to have their namesentered as tenant-cultivators was considered at this meeting and in theabsence of any objections the committee decided to insert the names of• these respondents as tenant-cultivators.
In the circumstances referred to in his affidavit the Secretary of the1st respondent committee affirmed that the committee’s decision wasbona fide and mado without bias or fraud.
It is clear that the rights of the petitioner, admittedly anowner-cultivator in 1964, 1965 and 1966, would be substantially affectedby the inclusion of the names of the 2nd and 3rd respondents astenant-cultivators for that year. This was thereforo a matter on whichhe was ontitled to due notice and entitled to be heard before anyalteration, detrimental to his interests, was made.
The simple question before us thereforo is whether in regard to thisalteration due notice was given to the petitioner such as the regulationscontemplate and such as was sufficient to enable him to appear at themeeting and register his objections.
What would appear from the affidavit of the Secretary of the 1strespondent committee is merely that on 1st January 1967 the meetingscheduled for 14th January was proclaimed by beat of tom tom and byaffixing written notifications at prominent places, to the effect that allapplications and objections regarding amendments would be consideredand dealt with at that meeting.
It should further be observed that notice of this meeting, a copy ofwhich has been produced marked 1R1, merely states in general termsthat one of the objects of the meeting is to see whether the Registershould be amended for the year 1967 but makes no mention of anyapplication by the 2nd and 3rd respondents in respect of this field.
Such a notification could not constitute an intimation to thepetitioner that an application of the 2nd and 3rd respondents dated 4thJanuary, which in fact had not yet been received at the time of suchintimation, would be considered in regard to the particular field inquestion or that such an application would be one to have their namesregistered as tenant-cultivators.
WfcERAMANTRY, «fr.—Ktiiatvnga v. Cultivation Committee4ft
There was an attempt by the Secretary in his evidence before theAssistant Commissioner of Agrarian Services at the inquiry of 23rd April1067, to make out that the petitioner had been given special notice ofthis meeting, for he stated that the petitioner’s gambarakaraya had beeninformed verbally of the meeting. This position is not borne out, how-ever by any averments in the counter affidavits filed by the respondents,and constitutes no basis on which this court can take the view that any *special intimation of this meeting was given to the petitioner.
Even, therefore, if one were to assume that the proclamation of themeeting by beat of tom tom and by the affixing of notices must bedeemed sufficient notice to the petitioner of the holding of the meeting,there is still a total failure on the part of the Cultivation Committee toinform the petitioner that an application to insert names in the column .provided for tenant-cultivators would be considered.
The petitioner may well in these circumstances have absented himselffrom the meeting, for the register which had been prepared and was openfor inspection could not possibly have contained the names of the 2ndand 3rd respondents in the column provided for tenant-cultivators, theirapplication to have their names so inserted having been as alreadyobserved, subsequent in point of time to the proclamation by beat oftom tom and by affixing of notices.
There has thus been a failure of natural justice in this matter and adenial to the petitioner of an opportunity of being heard in opposition tothe proposed alteration which alteration would necessarily result in adiminution of his rights. The petitioner must therefore be restored tothe position he enjoyed prior to the insertion of the names of the 2nd and3rd respondents.
It is urged on behalf of the respondents that a procedure forobtaining redress is available to the petitioner namely, an appeal to the-Commissioner in terms of Regulation 32, against the decision of theCultivation Committee.
However, it would appear from a perusal of this Regulation that theprocedure provided therein is, not available to a person placed in theposition of the petitioner in this case. Regulation 32 is confined toappeals from decisions on applications under Regulations 28 and 29.Regulation 28 deals with applications for amendment .of the Register and. is therefore applicable only to a person seeking amendment. Regulation29 provides that a person whose name appears in the Register may objectto thd name of any other person appearing therein within a period of onemonth from the date of the notice given by the Cultivation Committeeunder Regulation 26. The notice given by the Cultivation Committeeunder Regulation 26 was, as hereinbefore observed, a notice given prior tothe application by. the 2nd and 3rd respondents to have their namesinserted, and there was at that stage no name appearing in that Registerto which the petitioner had any objection: The petitioner was thus nota person who could have ma^le an application under Regulation 29.
4^8WEERAMANTRY, J.—Kulatunga v. Cultivation Committed
Moreover the appellate procedure provided by Regulation 32 wouldappear to be inapplicable in any event in a case where there has been afailure of natural justice and an omission to give a person notice of aninquiry* affecting his rights. A person may in the circumstances beunaware for a considerable period that an order has been made againsthim. A requirement of compliance with Regulation 32 which specifiesa time limit of 10 days for appeal would appear to be wholljrunreasonable where there is a lapse of time between the decision andthe aggrieved party’s knowledge thereof.
It is thus clear that even if an appeal to the Commissioner should inthe generality of cases be a pre-requisite to an application to this Court,Regulation 32 becomes inapplicable to the petitioner in the circumstancesof this case, and the existence of such an appellate procedure does notstand in the way of the petitioner’s application to this Court forredress.
Much material has been placed before us in the affidavit of the peti-tioner in support of his contention that the alteration of the Register wasfraudulently and collusively effected by the 2nd and 3rd respondents andthe Cultivation Committee. It is not necessary for the purpose of thisapplication for us to express an opinion on these allegations, for in thelight of our earlier observations the alterations made by the CultivationCommittee cannot be permitted to stand. It will suffice for presentpurposes to observe that if in fact there is truth in the petitioner’scontention (and we have no reason to think otherwise in view of the painsto which he has apparently been put in obtaining a copy of the relevantextract) that the officials of the Cultivation Committee have notpermitted him access to the Register, this is conduct of which we stronglydisapprove. No secrecy attaches to these Registers and there can be nojustification for withholding them from an owner who desires theirperusal. We would also draw attention in this connection to Regulation27 which expressly states that the Register shall bejvvailable for inspectionby any person free of charge.
A Writ of Certiorari will therefore issue quashing the decision of the1st respondent to insert the names of the 2nd and 3rd respondents astenant-cultivators.
The decision we now make must not be regarded as being in any way adetermination upon the respective rights of the petitioner or the 2nd or3rd respondents in regard to this land for our decision merely restores theposition in existence, prior to the alteration which is the subject ofcomplaint.
In order to preserve the rights of parties anterior to these alterationswe also make order that the 2nd and 3rd respondents will have thebenefit of the application they have already made to the Cultivation Com-mittee and that despite the time that has elapsed since their applicationthey may proceed upon the basis thereof. It will not be open at suchproceedings for the petitioner to urge against them that they are out of.
DE KRET8ER, J.—Kaluwa v. Silva
479
time in making or prosecuting their application. All other positions inlaw or in fact which would have been available to the parties upon theoriginal application will continue to be available to them at the resumed
proceedings.
/
We make this order now even though it relates to the Register for theyear 1967 for the reason that the entries in the Register for 1967 will notbe without efifeot on the legal position and rights of parties in respect ofsubsequent years.’
Wo make no order as to the costs of these proceedings.Samebawiokrame, J.—I agree.
Sent back for further proceedings.