026-SLLR-SLLR-1989-V-2-GAMHEWA-v.-MAGGIE-NONA-AND-ANOTHER.pdf
250
Sri Lanka Law Reports
(1989)2SnLR
GAMHEWA
v.
MAGGIE NONA AND ANOTHER
COURT OF APPEALPALAKIDNAR, J. & WIJEYARATNE. J.
C.A. No. 148/87A.T. 42/A/15/3/87JULY 27, 1989.
Agrarian Services – Regulation 73 of the Regulations made by the Minister under s.66 of the Agrarian Services Act, No. 58 of 1979 – Is Regulation 13(3) ultra vires? -Section 45 of Act No. 58 of 1979 – Minister's power to regulate for appeals.
Gamhewa owned the field called Malambagaha Kumbura and was registered as ownercultivator. Maggie Nona applied for registration as cultivator. The Agrarian ServicesCommittee deleted the name of Gamhewa and inserted the name of Maggie Nona.Gamhewa appealed to the Commissioner of Agrarian Services after the lapse of 30days of receiving the order – the time limit provided lor appeals by Regulation 13(1)of the Regulations made by the Minister of Agricultural Development and Researchunder s. 66 of the Agrarian Services Act No. 58 of 1979. Gamhewa appealed to theCourt of Appeal under Regulation 13(3) and objection was taken that the Regulation13(3) is ultra vires.
Held –
Section 66(1) of Act No. 58 of.. 1979 in its generality empowers the Minister tomake regulations in respect of all matters which are stated or required by the Act
…to be prescribed or tor which regulations are required by the Act to be made.
From a decision of the Agrarian Services Committee, the Minister is empoweredto make rules providing for appeals to the Commissioner. The rules grant anappeal to the Commissioner from a decision of the Agrarian Services Committeeunder s. 45(4)(e) in regard to entries in the Register for Agricultural Lands asrequired by s. 45(1) of the Act.
There is no further power granted to the Minister to regulate for an appeal to theAppeal Court.
A right of appeal to the Court of Appeal is contained in s. 5(6) and 9(2) only.Those are not matters pertaining to the Register of Agricultural Lands and entriestherein. These appeals are provided by statute, that is, a right under Article 130of the Constitution whereby the appellate jurisdiction of the Appeal Court isexercised in terms of the provision of any law.
An appeal is a statutory right and must be expressly created and granted bystatute. It cannot be implied. Regulation 13(3) is ultra vires the enabling powersof the Minister.
CA
Gamhewa v. Maggie Nona and Another (Palakidnar, J.j
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Cases referred to:
v (1) Martin v. Wijewardena S.C. 1/89 – CA 43/86(2) A.G. v. Sellim 11 ER 1200
APPEAL from decision of the Commissioner of Agrarian Services.
S. Mahenthiran with D.F.C. Nilanduwa for appellantK. Balapatabendi with Miss. P.N. Ranawaka for respondentAsoka da Silva, D.S.G. with Indika Demuni, S.C. as amicus.
Cur. adv. vult.
September 22, 1989.
PALAKIDNAR, J.
Gamhewa owned the paddy field called Malambagaha Kumbufaand was duly registered as an owner cultivator in the records of theAmbalantota Agrarian Services Committee,.from 1975. Maggie Nonaapplied for registration as cultivator for the said field for the yearVJ!986. The Agrarian Services Committee deleted the name ofGamhewa and inserted the name of Maggie Nona.
The appellant. Gamhewa appealed to the Commissioner of AgrarianServices after 30 days of the order – the time limit provided, for byRegulation 13(1) made by the Minister of Agricultural Developmentand Research under section 66 of the Agrarian Services Act 58 of1979. The Commissioner rejected the appeal as being out of time.The appellant has appealed, to this Court under Regulation 13(3) ofthe said Regulation.
Regulation 13(3) reads thus:
“The Commissioner shall give notice in w'riting of the date ofhearing of the appeal to the parties concerned and his decisionon the appeal subject to an appeal to the Court of Appeal on aquestion of law shall be final.”
The Counsel for the Respondent raised a preliminary objection tothe hearing of this appeal in this Court on the grounds thatRegulation 13(3) stated above was ultra vires the powers given to theMinister in so far as it provided for an appeal to this Court; althoughonly on a point of law.
Section 66(1) of Act 58 of 1979 in its generality empowers theMinister to make regulations in respect of all matters which are statedor required by this Act to be prescribed or for which regulations are
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required by this Act to be made. The power is clearly defined andvires is given only on matters which are stated or required by this Act-to be prescribed.
An appeal to the Commissioner from a decision of the AgrarianServices Committee is granted by the Act under Section 45(4)(e) inregard to entries in the Register for Agricultural Lands as required bysection 45(1) of the Act. The Minister is empowered to regulate rulesproviding for appeals to the Commissioner from the determination ofthe Agrarian Services Committee on any claims or objection made tosuch committee.
There is no further power granted to the Minister to regulate for anappeal to this Court. The Act does not provide for an appeal to thisCourt on matters referred to in section 45 to the Act. Thus theMinister s rule making power was clearly restricted to regulating forappeals to the Commissioner and no further.
Therefore there is validity in the contention that the Minister hasacted in excess of his powers in providing for an appeal to this Courtunder the regulations 13(3).
The learned Counsel for the State (D.S.G.) conceded it was so anddid not seek to show that the Minister has acted intra vires.
If one were to examine the Agrarian Services Act (58 of 1979) aright of appeal to the Court of Appeal is contained in section 5(6) and9(2) only. Those are not matters pertaining to the Register ofAgricultural Lands and entries therein. These appeals are provided bystatute, that is a right under Article 130 of the Constitution of SriLanka whereby the appellate jurisdiction of this Court is exercised interms of the provision of any law.
Article 130 whereby the appellate powers of this court are providedfor in the Constitution have been examined by Jameel, J. in Martin vsWijeyawardene (1) Rejecting the contention that there is anunfettered and implied right of appeal in Article 130 of theConstitution to this court Jameel, J: said that an appeal is a statutoryright and must be expressly created and granted by statute. It cannotbe implied. Citing Maxwell on Interpretation of Statutes (12 Edn.page159) he quotes “It is also presumed that a statute does not createnew jurisdictions or enlarge existing ones and express language isrequired if an act is to be interpreted as having this effect". Thisobservation was quoted with approval in the case of A.G. v. Sellim
Gamhewa v. Maggie Nona and Another (Palakidnar, J.)
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CA
(2) by Westbury J. who went on to say “The criterion of a new rightof appeal is plainly an act which requires legislative authority. Thecourt from which it is given and the court to which it is given must bebound and that must be the act of some higher power.”
In the light of these views the wording in Article 130 of theConstitution “in terms of the provision of the Constitution or any iaw”clearly limits the enabling provisions of Article 130 to hear appeals bythis court only to such appeals as are granted by the law. Article 170of the Constitution interprets law to mean an Act of Parliament andany law enacted prior to the Constitution. ..
The facts of this case reveal there was a delay of three monthsand two days in communicating the order of the Agrarian ServicesCommittee to this appellant. In considering the objection to thisappeal the Commissioner has considered the delay but upheld theobjection and rejected this appeal. The party who appeals can onlydo so after he has received the copy of the order. The time should becomputed from that date. Vide 74 N.L.R. 99. It is to be observed that.the situation has left the appellant in an unfair position in regard tohis rights. The appellant may if he so choses remedy the situation byresorting to prerogative writ not withstanding the delay as he wouldhave awaited the outcome of the instant appeal.
In the circumstances, we uphold the objection of the Respondentand hold that the Minister has no power given under the law toregulate for an appeal to this Court and has in doing so acted ultravires the powers given to him.
We therefore dismiss the appeal with^osts fixed at Rs.325/-.WIJEYARATNE, J. – I agree.
Appeal dismissed.