VELUPILLAI AND OTHERS v. SIVANATHAN

012-SLLR-SLLR-1993-1-VELUPILLAI-AND-OTHERS-v.-SIVANATHAN.pdf


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Velupillai and others v. Sivanathan
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VELUPILLAI AND OTHERS
v.SIVANATHAN
COURT OF APPEALISMAIL J.
CA APPLICATION NO. 909/85.
PRIMARY COURT, KILINOCHCHI NO. 2817.
NOVEMBER 13 AND DECEMBER 16, 1992.
Primary Courts Procedure Act – Section 66 Application – Dispute affecting landunder s. 66 (1)(a), 66 (1)(b) and 66 (2) of the Primary Courts Procedure Act- Jurisdiction.
Under section 66 (1)(a) of the Primary Courts Procedure Act, the formation ofthe opinion as to whether a breach of the peace is threatened or likely is leftto the police officer inquiring into the dispute. The police officer is empoweredto file the information if there is a dispute affecting land and a breach of thepeace is threatened or likely. The Magistrate is not put on inquiry as to whethera breach of the peace is threatened or likely. In terms of section 66 (2) theCourt is vested with jurisdiction to inquire into and make a determination on thedispute regarding which information is filed either under section 66 (1)(a) or 66(1)(b).
However when an information is filed under section 66 (1)(b) the only materialthat the Magistrate would have before him is the affidavit information of aninterested person and in such a situation without the benefit of further assistancefrom a police report, the Magistrate should proceed cautiously and ascertain forhimself whether there is a dispute affecting land and whether a breach of thepeace is threatened or likely.
The scope of the inquiry under this special jurisdiction is of a purely preventiveand provisional nature pending the final adjudication of the rights of the partiesin a civil court. The Magistrate is not involved in the investigation into title orright to possession which is the function of a civil court.
The expression “dispute affecting land" as interpreted in section 75 of the PrimaryCourts Procedure Act, includes “any dispute as to the right to possession of anyland or as to the right to cultivate any land’.
The Magistrate would have been slow to find that there was a dispute affectingland owing to which a breach of the peace was threatened or likely if hehad focussed his attention on the substance of the mere complaint and viewedit in the background of the attempt to obtain title.
The complaint of being prevented from tending the crops in the lands claimedto have been cultivated by the complainant, is not a dispute as to the “right tocultivate1 the land within the meaning of section 75 of the Primary Courts
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Procedure Act. This was a complaint relating to interference with cultivation rightswhich could have resulted in damage or loss of crop in regard to which theCommissioner of Agrarian Services is vested with jurisdiction under section 57of the Agrarian Services Act.
The information did not disclose a dispute affecting land upon which theMagistrate's Court could have made a determination under Part VII of the PrimaryCourts Procedure Act.
Cases referred to :
Kanagasabai v. Mylvaganam (1976) 78 NLR. 280, 283.
Ramalingam v. Thangarajah (1982) 2 Sri LR 693, 700.
APPLICATION to revise the order of the Primary Court Judge of Kilinochchi.S. Mahenthiran for petitioners.
C. V. Vivekananthan with V. Pavitharan for respondent.
Cur. adv. vult.
February 24, 1993.
ISMAIL, J.
The 1st petitioner who is the father of the respondent was granted2 acres 3 roods and 34 perches of high land for residential purposesand 4 acres and 39 perches of land for paddy cultivation on a permitdated 06.02.1985 under the Land Development Ordinance. Thesetwo extents of land were surveyed and subdivided each into twoportions on or about 05. 09. 1984 and were each allotted newnumbers. A permit dated 07.11.1984 for a divided extent of the highland bearing lot No. 74, in extent 1 acre 1 rood and 27 perches,and a divided extent of paddy land bearing lot No. 310, in extent2 acres 19.5 perches, was granted to the respondent. These twoextents were set out in the two schedules to her affidavit dated11.01.1985 filed as information in terms of section 66 (1)(b) of thePrimary Courts' Procedure Act, No. 44 of 1979.
The respondent's complaint was that the petitioners had on
01.1985 fenced up that portion which served as the entrance totheir land and had instead opened up another portion of the fencewhich separated the two divided extents of the high land and had
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created a pathway to gain access to their portion of the land. Thepetitioners had threatened her husband with bodily harm and hadalso threatened her family that they would be forcibly ejected if theydid not vacate the land by the end of January 1985. In regard tothe paddy land she complained that she had sown the land for the1984 maha season but that the petitioners were preventing her fromtending the crop. She attempted to make a complaint regarding thison the same day to the Kilinochchi police station but it was notentertained.
The learned Magistrate having considered the affidavits and thedocuments filed by the parties and having inspected the land deliveredhis order on 16.07.1985, holding that the respondent was entitled tocultivate the paddy land without any interference from the petitionersand that she was entitled to reside in the house situated on the highland and to possess the same jointly with the 1st and 2nd petitioners.The 3rd petitioner was warned against interfering with the respondentand the 4th to 8th petitioners were held not to have any right ortitle to any of the said lands. The petitioners in this application seekto have the said order of the learned Magistrate revised.
Learned Counsel for the petitioners submitted that the respondentwas the daughter of the 1st and 2nd petitioners who had initiatedproceedings in the Magistrate's Court, without the intervention of thepolice, under section 66 (1)(b) of the Primary Courts Procedure Act,and that in the circumstances the failure of the Magistrate to arriveat a specific finding initially that the dispute was likely to cause abreach of the peace vitiated the subsequent proceedings. LearnedCounsel for the respondent while conceding that such a finding bythe Magistrate had been necessary to clothe himself with jurisdictionunder the corresponding repealed section 62 of the Administrationof Justice Law submitted that such a condition precedent was notnecessary under section 66 of the present law.
The corresponding repealed section 62 of the Administration ofJustice Law vested jurisdiction in him only after the Magistrate formedan opinion that the dispute was likely to cause a breach of the peace.It provided as follows : 62 (1) "Whenever a Magistrate on informationfurnished by a police officer or otherwise has reason to believe thatthe existence of a dispute affecting land situated within his jurisdictionis likely to cause a breach of the peace, he may issue notice“.
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In Kanagasabai v. MylvaganamP> Sharvananda, J. observed :“Section 62 of the Administration of Justice Law confers specialjurisdiction on a Magistrate to make orders to prevent a dispute
affecting land escalating and causing a breach of the peaceThe
section requires that the Magistrate should be satisfied, beforeinitiating the proceedings, that a dispute affecting land exists and thatsuch a dispute is likely to cause a breach of the peace".
Under section 66 (1)(a) of the Primary Courts Procedure Act, theformation of the opinion as to whether a breach of the peace isthreatened or likely is left to the police officer inquiring into thedispute. The police officer is empowered to file the information if thereis a dispute affecting land and a breach of the peace is threatenedor likely. The Magistrate is not put on inquiry as to whether a breachof the peace is threatened or likely. In terms of section 66 (2) theCourt is vested with jurisdiction to inquire into and make adetermination on the dispute regarding which information is filed eitherunder section 66 (1) (a) or 66 (1) (b).
However when an information is filed under section 66 (1) (b) theonly material that the Magistrate would have before him is the affidavitinformation of an interested person and in such a situation withoutthe benefit of further assistance from a police report, the Magistrateshould proceed cautiously and ascertain for himself whether thereis a dispute affecting land and whether a breach of the peace isthreatened or likely.
The respondent has in her affidavit filed under section 66 (1) (b)traced the history of the dispute with her parents since 1980 relatingto her right or title to the high land and the paddy land originallyheld by the 1st petitioner on a permit under the Land DevelopmentOrdinance. She stated that pursuant to an agreement dated 21.05.1980she was placed in possession of the entirety of the two lands andthat her parents had promised to donate one half of the two landswhile the other half was to be given to her and her husband for aconsideration of Rs. 20,000 (PI). They continued to be in undisturbedpossession of the entirety of the two lands for a period of about eightmonths, but later in January 1981 the 1st petitioner resiled from theagreement and had required her to settle the loan outstanding onthis property to the Multi-Purpose Co-operative Society as a conditionprecedent to agreeing to transfer only half the portions of the two
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lands and to obtain a permit in respect of them. Yet the 1st petitionerhad failed to transfer half the portions of the two lands as promiseddespite the said loan having been settled by the respondent. Shehad then in this connection lodged a complaint to the police on16.05.1984.
The 1st petitioner along with the other petitioners had thereaftersigned an agreement on 24.05.81 (P6) agreeing to transfer to herone half of each of the two lands. Pursuant to this the 1st petitionerhad written to the District Land Officer on 27.07.1984 requesting himto subdivide the two lands in such a way that 1 1/2 acres of theportion the high land with the house situated on it, and 2 acresout of the paddy land could be transferred to the respondent.Accordingly it appears that a subdivision as requested by the 1stpetitioner had been done, and on 3.11.1981 the District Land Officerinformed the respondent that the two extents of lands had beensubdivided and that two lots of each had been transferred in her name(P9). She further averred that it was in these circumstances that shewas granted a permit (P28) dated 7.11.1984 for the subdivided extentsof the high land and the paddy land fully described in the1st and 2nd schedules to her affidavit.
In such circumstances where the party to the dispute had initiatedproceedings it was incumbent on the Magistrate to have ascertainedfor himself on the affidavit tendered by the respondent whether therewas a dispute affecting either or both the extents of land describedin the two schedules. The scope of the inquiry under this specialjurisdiction is of a purely preventive and provisional nature pendingthe final adjudication of the rights of the parties in a civil Court. TheMagistrate is not involved in the investigation into title or rightto possession which is the function of a civil court-Kanagasabaiv. Mylvaganam (1), Ramalingam v. Thangarajah (2).
The expression "dispute affecting land" as interpreted in section75 of the Primary Courts' Procedure Act, includes “any dispute as
to the right to possession of any landor as to the right to cultivate
any land".
The respondent resided in that portion of the high land describedin the 1st schedule at the time of filing the information, and she ‘jrtherclaimed to have resided therein even before she was granted the
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permit dated 7. 11. 1984. Her complaint was that the petitioners whoresided in the adjacent land threatened her husband with bodily harmand threatened the family with forcible eviction if they did not vacatethe land by the end of that month. Her husband had not filed anaffidavit in this connection nor had she specified as to which of thepetitioners made the threats referred to. She further complained thatthe petitioners had created an alternate access to their land byremoving a portion of the common fence having closed up anotherportion that served as the entrance to their land. No further materialwas placed before Court from which it could have been ascertainedthat this act on the part of the petitioners affected her right topossession and that a threat to peace was imminent.
The learned Magistrate would have been slow to find that therewas a dispute affecting land owing to which a breach of the peacewas threatened or likely if he had focused his attention on thesubstance of the mere complaint of the respondent and had viewedit in the background of her dispute with her parents since 1980 inattempting to obtain title in her name to the said lands.
Considering next her complaint in regard to the paddy land thatthe petitioners were preventing her from tending to the paddy cropcultivated by her in the maha season of 1984, this appears to bea complaint that could have been appropriately made to the Com-missioner under the Agrarian Services Act, No. 58 of 1979. Thissection provides that where a complaint is made to the Commissionerby any owner, cultivator or occupier of agricultural land that anyperson is interfering with or attempting to interfere with the cultivationrights of such person and if he is satisfied that such interference orattempted interference will result in damage or loss of crop, he mayissue an order requiring him to comply with such direction as maybe necessary for the protection of such rights. The Commissioneris permitted to seek the assistance of a peace officer within the areato ensure compliance with such an order and the peace officer isobliged to render such assistance. Such an order is binding on thepersons in respect of whom it is made until set aside by a Court.
The respondent had in fact made a complaint to the AssistantCommissioner in regard to the interference to her cultivation rightsby the 3rd petitioner during the maha season of 1983. The AssistantCommissioner held an inquiry into her complaint and had by his
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letter (P19) dated 19. 09.1984 warned the 3rd petitioner againstinterfering with the respondent's cultivation rights. The AssistantCommissioner had in this regard drawn the attention of the 3rdpetitioner to the provisions of section 57 of the Agrarian ServicesAct.
I am of the view that the respondent's complaint that she wasprevented from tending the crops in the land claimed to have beencultivated by her, is not a dispute as to the “right to cultivate” theland within the meaning of section 75 of the Primary Courts' ProcedureAct. This was a complaint relating to interference with cultivationrights which could have resulted in damage or loss of crop inregard to which the Commissioner of Agrarian Services is vestedwith jurisdiction under section 57 of the Agrarian Services Act.
The learned Magistrate has, therefore, for these reasons erred inlaw in entertaining the respondent's complaint as a "dispute affectingland" and proceeding to exercise jurisdiction under Part VII of thePrimary Courts' Procedure Act. I therefore set aside the order of thelearned Magistrate dated 16.07.1985 made by him after an inquiryand an inspection of the land.
Learned Counsel for the petitioner took up further objectionsrelating firstly to the validity of the affidavit filed by the respondenton the ground that the jurat did not disclose that the deponentaffirmed to the contents of the affidavit and secondly that therespondent being governed by the law of Thesawalamai could nothave invoked the jurisdiction of the Court by herself. Learned Counselfor the respondent contended that such objections could not betaken for the first time at the stage of appeal. In view of my findingthat the information filed by affidavit by the respondent did not disclosea dispute affecting land upon which the learned Magistrate couldhave made a determination under part VII of the Primary Courts'Procedure Act, it does not appear to me to be necessary to cometo a finding on these objections.
I make no order as to costs.
Order set aside.