040-SLLR-SLLR-2003-1-INDRANI-v.-PATHIRANA-AND-OTHERS.pdf
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INDRANI
v.PATHIRANA AND OTHERS
COURT OF APPEAL
TILAKAWARDENA, J. AND(
WIJAYARATNE, J.
CA 1011/98AUGUST 2, 2002
Agrarian Services Act, sections 9, 16A and S17(5)~ Rent not paid – Inquiry -Cultivator dies – Substitution – Inquiry officer biased? – Legal provision as toliability – Tenant cultivator – Suceeding tenant.
The 3rd respondent commenced inquiries into a complaint made againstone ‘M’ the tenant cultivator on the ground that ‘M’ had not paid rent fortwo seasons. Upon the death of ‘M‘ the petitioner was substituted in terms ofsection 9.
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The petitioner sought that inquiry be held by an officer other than the 3rdrespondent, alleging bias. This was not allowed. The petitioner thereafter hav-ing protested over the 3rd respondent continuing with the inquiry walked awayfrom the inquiry. The matter thereafter was taken ex-parte and findings weremade against the petitioner.
The petitioner sought to challenge the order on the ground of bias, illegalityand proceedings being ultra vires the powers of the 3rd respondent.
Held*
Perusal of the proceedings and findings, reveals a clear manifestationof bias on the part of the Inquiring Officer. What is apparent from suchcomments is that the Inquiring Officer has considered the generalconduct and the character of the substituted respondent rather thanthe act in issue, namely, the default or neglect on the part of the ten-ant cultivator.
The 3rd respondent has not made any finding or determinationwhether the tenant cultivator ‘M’, neglected the cultivation as toreduce the yield, but had merely gone on the complaints. There is nofinding of the extent cultivated and the yield obtained, nor is there acomparison of the yield with the yield of other fields in the area. Thisamounts to failure to comply with the requirements of the law.
The alleged default and neglect is on the part of ‘M’ who died severalyears before the impugned decision was made. There is a rationalbasis, justification or legal provision empowering the respondents toterminate the tenancy of a cultivator even on proved default andneglect of another cultivator, whatever the relationship. There is nolegal provision extending the liability to be terminated as the tenantcultivator to a succeeding tenant cultivator determined under section9.
APPLICATION for writs in the nature of certiorari and prohibition.Cases referred to:
Martin Singho v Kularatne – CA 248/95
Karavita v Abeyratne – (1983) 2 Sri LR 306
Ananda Kasthuriarachchi with Udenika Abeysiriwardena for petitioner.Lakshman Perera with Anusha Fernando for 1 st and 2nd respondents.A. Gnanadasan Deputy Solicitor-General for 3rd and 4th respondents.
Cur. adv. vult.
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September 24, 2002WIJAYARATNE, J.
This application seeks to quash the findings and the decisionmade by the 3rd respondent marked A2 and the order marked Gmade by the 4th respondent upon the strength of the said decision.The petitioner also seeks a mandate in the nature of a writ of pro-hibition on the 3rd respondent from holding inquiries into the com-plaint respecting the paddy field, the subject matter of this applica-tion.
The basis of the present application to this court is that the3rd respondent commenced inquiries into a complaint madeagainst one Marthelis admittedly the tenant cultivator of the paddyfield in issue. Upon death of the said Marthelis, the tenant cultiva-tor, the petitioner was substituted in his place by an order of the 4threspondent who in terms of section 9 of the Agrarian Services Act(ASA) determined the succession of the tenant cultivator. The com-plaint inquired into is made in terms of section 16A of the AgrarianServices Act on the ground that Marthelis as tenant cultivator hadnot paid rent for two seasons of 1992 Yala and 1993 Maha. Theapplication sought to terminate tenancy on ground of non-paymentof rent.
The petitioner upon being substituted as respondent, wascalled upon to participate at the continued inquiry. Alleging unwar-ranted and adverse utterances by the 3rd respondent in the courseof the inquiry, the petitioner sought that inquiry No. 16/3/24A beheld by an officer other than the 3rd respondent. Such applicationswere made to both 4th respondent as well as to the Judical ServiceCommission without success. At the next date of inquiry, the peti-tioner having protested over the 3rd respondent continuing with theinquiry, walked away from the inquiry and did not take part therein.The petitioner concedes that the proceedings contain a statementattributed to her as consenting to the inquiry proceeding ex parte,though she denies having so given her consent. However, theinquiry having proceeded with ex parte in her absence, findingsand decision marked A2 is made against her. Consequent to suchdecision, the 4th respondent issued the the impugned order of
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vacation of the paddy field in issue and the same is presentedmarked G.
The petitioner seeks the several mandates of writ of certiorariand prohibition on the grounds of:
bias on the part of 3rd respondent as inquiry officer;
illegality of the decision; and^
whole proceedings being ultra vires the powers of 3rdrespondent.
The first and second respondents, the owner (minor) and thelandlord respectively of the subject matter, of the application refutethe allegations and plead propriety and lawfulness of the proceed-ings and the order impugned.
The following are common grounds between the parties:
The application under section 16A was made againstMarthelis the tenant cultivator,
Marthelis passed away on 28.4.1994 pending inquiry intothe application,
The present petitioner was substituted in place of thedeceased tenant cultavator,
The petitioner was determined as successor to tenant culti-vator on 28.5.1997 in terms of section 9 of AgrarianServices Act by order of 4th respodent,
The application under section 16A concerned neglect anddefault on the part of Marthelis in cultivating the two sea-sons referred to above.
Relying on such commonly admitted grounds, the petitionerattributed bias to 3rd respondent based upon unwarranted and undu-ly made comment in the course of finding marked A2. Legality of thedecision is challenged on the basis,that the 3rd respondent could nothave concluded that the respondent was negligent without first deter-mining the yield in relation to the extent of land cultivated. The peti-tioner also challenged the vires, of the order to evict her on allegeddefault and neglect of the previous tenant cultivator.
Perusal of the proceedings and findings A2 containing somuch of unwarranted comments by the 3rd respondent reveals a
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clear manifestation of bias on the part of the inquiry officer, thoughhe is at pains to declare otherwise. What is apparent from suchcomments is that the inquiry officer has considered the generalconduct and the character of the substituted respondent rather thanthe act in issue, namely the default or neglect on the part of the ten-ant cultivator in the years 1992 and 1993. Vide Martin Singho vs.KularatndV.
•
The act in issue at the inquiry into the application under sec-tion 16A is the conduct of Marthelis as tenant cultivator and not thatof the substituted respondent who is the present petitioner in thisapplication. The failure on the part of 3rd respondent to appreciatethis aspect is clearly attributable to his having paid more attentionto the character and conduct of the substituted respondent ratherthan to the matter in issue, the default and neglect on the part ofMarthelis. This position is uncontroverted in the light of his ownfindings and comments made prior to the concluding decision.
In Kara vita vs Abeyratne (2) it was held:
“In the circumstances the allegation stands uncontrovertedand whether or not the particular member of the tribunal wasactually biased or not against the applicant is immaterial.Reasonable and right minded people would think that he wasbiased.”
This rule eminently fits the facts of the present application.
Examining the legality of the decision, what this courtobserves is that the 3rd respondent has not made any finding ordetermination whether the tenant cultivator, Marthelis againstwhom the complaint is made, “so neglected the cultivation” as toreduce the yield but merely gone by the complaints P6, P9, P10and P12 (referred to in A2). Section 17(5) of Agrarian Services Actclearly lays down that ‘computation of yield’ should be done in rela-tion to the ‘extent cultivated’. There is no finding by the 3rd respon-dent of the extent cultivated and the yield obtained. Nor is there acomparison of the yield with the yield of other fields in the area. Thisamounts to failure to comply with the requirements of the law or fail-ure to consider material facts relating to the matter in issue by the3rd respondent. He should have determined the average yieldexpected of the extent cultivated and the actual yield obtained.Failure to determine the same is a clear error in law.
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Examining the vires of the decision A2 and the order G, thiscourt observes the scheme of Agrarian Services Act stated in sec-tion 16 is to ensure efficient cultivation of paddy fields and to pun-ish only the wrong doer. The alleged default and neglect is on thepart of Marthelis who departed his life several years before theimpugned decision was made. The present petitioner is determinedto succeed to tenancy only in the year 1997 at least five years afteithe alleged default and neglect. There is no rational basis, justifica-tion or legal provision empowering the 3rd and 4th respondents tcterminate the tenancy of a cultivator even on proved default andneglect of another tenant cultivator, whatever the relationshipbetween them may be. There is no legal provision extending the lia-bility to be terminated as the tenant cultivator to a succeeding ten-ant cultivator determined under section 9 of Agraraian Services Act.Accordingly the decision of the 3rd respondent marked A2 and theorder of the 4th respondent marked G are quashed. This court alsosees that interests of justice will suffer if the 3rd respondent is per-mitted to proceed with inquiries into the disputes between the peti-tioner and the 1 st and 2nd respondents relating to the paddy fieldin suit. In the result the application for writ of prohibition is allowed.
Issue mandate in the nature of writ of certiorari quashing thedecision marked A2 and the order of eviction marked G. Also issuethe mandate of writ of prohibition prayed for in prayer C of thepetition.
Application is allowed with costs.
TILAKAWARDENA, J. – I agree.
Application allowed.