SENDIRIS v. ASSISTANT COMMISSIONER OF AGRARIAN SERVICES AND ANOTHER

016-SLLR-SLLR-1991-V-1-SENDIRIS-v.-ASSISTANT-COMMISSIONER-OF-AGRARIAN-SERVICES-AND-ANOTHER.pdf


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of the opinion that it would not be in the interests of justice to givesuch a technical interpretation to the words “used in carrying" insection 54 (2). I find support for this view in the decision of theHouse of Lords in Renton and Co Ltd. vs. Palmyrah Trading Co. ofPanama 1987 A.C. 149 where a ship was held “to carry" goods fromthe moment they are loaded on board. Their Lordships in this caserejected the contention that there must be some evidence oftransportation of motion, for a Court to arrive at a finding that thegoods were being carried (Vide per Lord Morton at page 171).
Having regard to the provisions of the Excise Ordinance, and themischief this Statute sought to prevent, I am of the opinion that thewords “used in carrying" must necessarily be given a widerinterpretation. In the instant case the vehicle in question was stackedwith 1,200 bottles containing illicit liquor at the time of detection, andit would be inappropriate to give such a restricted meaning to thephrase “used in carrying" as contended for by Counsel in interpretingthe provisions of section 54 (2) of the Excise Ordinance.
I therefore affirm the order of the learned Magistrate, dated 10thMarch 1989, confiscating lorry bearing Registered No.41 Sri 1113,and hold that such order was validly made under the provisions ofsection 54 (2) of the Excise Ordinance. The application of thepetitioner is accordingly dismissed.
ISMAIL, J – I agree
Application dismissed.
SENDIRIS
V.
ASSISTANT COMMISSIONER OF AGRARIAN SERVICES AND
ANOTHER
COURT OF APPEAL,
S.N. SILVA, J.
C.A. APPLICATION NO. 1081/83
JULY 6, SEPTEMBER 26, AND DECEMBER 12, 1990.
Wrif of Certiorari – Agrarian Services Act No. 58 of 1979, Section 18(1) – Arrears ofrent- Prescription – Prescription Ordinance, Section 7 – Estoppel – Presumption againstretrospective operation.
CA Sendiris v. Assistant Commissioner Of Agrarian Services and another
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The landlord (2nd respondent) of a paddy land complained to the Assistant
Commissioner of Agrarian Services (1st respondent) that his tenant cultivator (the
petitioner) had failed to pay rents for 14 seasons amounting to 240 bushels of paddy.
After inquiry, the 1st respondent decided that the petitioner should pay 216 bushels
as arrears of rent for 14 seasons to the 2nd respondent. It was argued that:
the complaint made to the Assistant Commissioner is null and void as it wasnot addressed to the Commissioner;
the claim for arrears was prescribed;
since the 2nd respondent accepted 18 bushels of paddy, he was estopped inlaw from making a claim for the balance;
the amounts ordered to be paid by the 1st respondent are in excess of theamounts stipulated by law and are arbitrary and the rents have been increasedwithout notice to the petitioner.
the procedure in section 18 of the Agrarian Services Act could not be invokedretrospectively in relation to arrears of rent that accrued under the AgriculturalLands law and the consequences of failure to pay rent are punitive.
Held:
Under Section 29(4) of the Agrarian Services Act every Assistant Commissionermay exercise all or any of the powers of the Commissioner within the areas towhich he is appointed. The Assistant Commissioner had been duly appointedby the Judicial Service Commission. The 1st respondent was thereforeempowered to exercise the powers of the Commissioner in respect of thecomplaint made by the 2nd respondent. The complaint containing the informationhas been addressed to the person who had jurisdiction to entertain it and hencevalid.
The Prescription Ordinance regulates the prescription of actions before a civilcourt and does not apply to proceedings under the Agrarian Services Act.
Since the rent payable is fixed by law, the 2nd respondent has no legal duty tospeak or act with regard to the quantum of rent and his lack of protest can inno way give rise to an estoppel.
The failure to issue receipts would have been material only if there was a disputewith regard to the amount given by the petitioner as rent.
The presumption against retrospective operation has no application to enactmentswhich effect only the procedure and practice of the Commissioner. There is nopresumption that a change in procedure is intended to be prospective and notretrospective,. Alterations in the form of procedure are always retrospectiveunless there is some good reason why they should not be. A tenant cultivatorhas no vested right in any particular form of procedure. Arrears are not restrictedto arrears that occured after the Act came into force.
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Cases referred to:
Maclaine vs. Gatty (1921) 1 AC 376, 386 (H.L.)
Gunatilake vs. Walker Sons & Co. Ltd 1979(2) NLR 563, 571
Hadjiar vs. Marzook & Co. Ltd. 1979(2) N.LR 253, 256
APPLICATION for writ of certiorari to quash the decision of the AssistantCommissioner of Agrarian Services.
Sanath Jayatilleke for petitioner.
N.R.M. Daluwatta, P.C. for 2nd respondent
Cur. adv. vult.
January 11, 1991S. N. SILVA, J.
The Petitioner has filed this appplication for Writs of Certiorari andProhibition with regard to the proceedings had against him in termsof section 18(1) of the Agrarian Services Act No. 58 of 1979. Acertified copy of the proceedings and the decision made by the 1stRespondent have been produced marked "A”. The facts relevant tothis application are briefly as follows:
The 2nd Respondent is the owner of the paddy land called "TangalleKumbura" situated at Miniekiliya, in extent about 3 acres. ThePetitioner who is a close relative of the 2nd Respondent has beenfor a long time the tenant cultivator of this paddy land. On 2-6-1982the 2nd Respondent made a complaint to the AssistantCommissioner of Agrarian Services, Hambantota, that the Petitionerhas failed to pay certain amounts as rent in respect of the paddyland. The complaint relates to 14 seasons from 1974 Yala to 1981/82 Maha. The total claimed is 240 bushels of paddy. On receipt ofthe said complaint, the 1st Respondent being the AssistantCommissioner of Agrarian Services (Inquiries) issued notice on theparties and held an inquiry. The Petitioner and the 2nd Respondentwere represented at the said inquiry and they gave evidence in thesource of which they were subject to cross examination. No otherwitnesses were called by the parties and the 1st Respondent madethe decision dated 11.10.1982 notifying the Petitioner that he shouldpay the value of 216 bushels of paddy that was found to be inarrears in respect of the 14 seasons. The value of this quantity ofpaddy was computed at Rs. 8,220/-. The notice directs the Petitionerto pay the arrears in four instalments.
The 1st Respondent made the said decision on an estimate that theyield of the paddy land is 40 bushels per acre. On that basis it was
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computed that 30 bushels of paddy should be given as rent for eachseason. The amounts that the Petitioner had admittedly given wereset off from this figure and the arrears were computed in a tabulatedform in the decision. The value of the paddy has been computed atRs. 50/- per bushel.
Counsel appearing for the Petitioner urged several grounds in supportof the application. His submission was that the order of the 1stRespondent is ultra vires and null and void on the basis of thegrounds urged by him. After oral submissions were made byCounsel, written submissions were tendered on the several groundsthat arose from the submissions of Counsel for the Petitioner. I willnow consider each ground raised by Counsel for the Petitionerseparately.
The first ground urged by Counsel for the Petitioner is that thecomplaint is ab initio void since it has -been made to the AssistantCommissioner of Agrarian Services, Hambantota. It is the submissionof Counsel that the complaint should be made to the Commissionerof Agrarian Services. Learned President's Counsel appearing for the2nd Respondent submitted that the 1st Respondent being theAssistant Commissioner of Agrarian Services (Inquiries) appointed bythe Judicial Service Commission had jurisdiction to entertain thecomplaint and make an order thereon.
It has not been disputed that the 1st Respondent has been dulyappointed an Assistant Commissioner of Agrarian Services (Inquiries)by the Judicial Service Commission for the area within which thepaddy land referred to above is situated. No objection has beenraised before the 1st Respondent as to his jurisdiction to entertainthe complaint and to make the decision that has been challenged.
It appears that the objection of Counsel for the Petitioner relates tothe manner in which the complaint is addressed. Section 18 of theAgrarian Services Act empowers the Commissioner to inquire intoany information given by a landlord with regard to arrears of rent inrespect of a paddy land. Although, the section vests this power inthe Commissioner, in terms of section 29(4) of the Act everyAssistant Commissioner may exercise all or any of the powers ofthe Commissioner under the Act, within the area to which suchAssistant Commissioner is appointed. Therefore the 1st Respondentbeing the Assistant Commissioner for the area within which the paddyland is situated, by the appointment of the Judicial Service
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Commission, was empowered to exercise the powers of theCommissioner in respect of the information given by the 2ndRespondent. Section 18 does not provide for information to be givenin any prescribed form. In these circumstances the submission oflearned Counsel for the Petitioner that it should necessarily beaddressed to the Commissioner is without any basis. The complaintcontaining the information has been addressed to the person whohad jurisdiction to entertain it and I am of the view that it is in order.
The second submission of learned Counsel for the Petitioner is thatthe claim for arrears of rent is prescribed. In support of this groundCounsel relied on section 7 of the Prescription Ordinance whichprovides no action shall be maintainable for the recovery of rentunless it is commenced within three years from the time the causeof action arose. Learned President's Counsel for the 2nd Respondentsubmitted that the plea of time bar provided for in the PrescriptionOrdinance could be urged only before a civil court or a tribunal whichis trying a cause of action. It was submitted that this provision cannotbe invoked in a proceeding under section 18 of the Agrarian ServicesAct.
It is clear from the long title of the Prescription Ordinance that theprovision contained in the Ordinance regulates "the Prescription ofActions". The words used in section 7 relied upon by Counsel forthe Petitioner clearly show that they are intended to bar themaintainability of an action for rent after the lapes of three years fromthe time the cause of action arose. The words "action" and "causeof action" appearing in section 7 and in other sections of theOrdinance are a clear indication that the provisions are intended toregulate any action before a Civil Court based upon a cause ofaction as defined in the law relating to civil proceedings. The AgrarianServices Act is a special enactment which is intended inter alia, toprovide for the tenure of tenant cultivators of paddy land and for themaximum productivity of paddy and other agricultural land. TheCommissioner of Agrarian Services is empowered to makedeterminations of tenural and other disputes relating to paddy andagricultural land. The provisions of another enactment such as thePrescription Ordinance could be considered as being an enactmentapplicable to proceedings under the Agrarian Services Act only ifthere is specific provision to that effect or the application of suchother enactment is necessarily implied by the provisions of theAgrarian Services Act. Section 5(4) of the Agrarian Services Act
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provides a specific limit of time within which a tenant cultivator whoclaims to be evicted from, a paddy land that he has been cultivating,should notify his complaint. Thus it is seen that the legislature hasnot intended to make the provisions of the Prescription Ordinanceapply to proceedings under the Agrarian Services' Act. Wherenecessary, as evidenced by section 5(4), the legislature hasintroduced specific provisions with regard to time bar in the Act itself.Therefore I hold that the provisions of the Prescription Ordinance arenot applicable to proceedings under the Agrarian Services Act.
The third and fourth grounds urged by learned Counsel for thePetitioner relate to the doctrine of estoppel and the conduct of the2nd Respondent in not issuing receipts for the paddy that had beenadmittedly given by the Petitioner as payment of rent. It was the caseof the 2nd Respondent that except for the three seasons from theYala 1973 to Yala 1976 certain amounts of paddy were given to himby the Petitioner as rent in respect of the paddy land. In evidencethe Petitioner stated that he gave three Amunas (the equivalent of18 bushels) in respect of each season. Counsel for the Petitionersubmitted that since the 2nd Respondent accepted the 18 bushelsof paddy he was estopped in law from making a claim for thebalance. It was also submitted that since the 2nd Respondent failedto issue receipts which is a requirement under section 24 of theAgrarian Services Act and section 26 of the Agricultural Lands Lawhe could not complain of a shortage in the rent that was paid.
The 2nd Respondent in evidence stated that he accepted the amountof paddy that was given to him by the Petitioner. It was further statedthat no receipts were given since the parties are related.
Learned President's Counsel for the 2nd Respondent submitted thatthere is no basis to invoke the doctrine of estoppel in regard toproceedings under the Agrarian Services Act.
It appears that learned Counsel for the Petitioner is relying on thedoctrine of estoppel by representation which forms a part of thecommon law of England. In the case of Maclaine vs. Catty (1), LordBirkenhead succinctly stated the essentials of the doctrine as follows:where 'A' has by his acts or conduct justified 'B' in believing that acertain state of facts exists, and *B' has acted upon on such beliefto his prejudice, 'A1 is not permitted to affirm against 'B' that adifferent state of facts existed at the same time". This definition of
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the doctrine has been cited in the book titled Estoppel byRepresentation by Spencer, Bower and Turner (3rd Edition page 5).It is clear from this definition that the person invoking the doctrineshould establish that there has been some words or conduct of theother party which led him to take some action to his prejudice. Ifthis definition is related to the facts of the application, the Petitionershould establish that there has been some words or conduct of the2nd Respondent which led him to give the equivalent of 18 bushelsof paddy each season as rent. It has also to be established thatthe said payment caused prejudice to the Petitioner.
The doctrine basically forms part of the Law of Evidence although itmay be contended that it contains elements of substantive law aswell. Therefore, I have examined the evidence that has been givenby both parties at the inquiry, to ascertain whether there is any basisfor the Petitioner to invoke this doctrine.
According to the evidence the Petitioner gave 18 bushels of paddynot pursuant to any demand made for such amount by the 2ndRespondent, but on the basis of his own computation as to whatwas due. Evidence is that the 2nd Respondent merely accepted whatwas given by the Petitioner without protest. It is common groundthat there was no representation by the 2nd Respondent that only18 bushels were due as rent for any particular season. The amountdue as rent is fixed by law, as will be seen from the examination ofthe relevant provisions done later in this judgment. Therefore thequestion of any party making a representation as to the amountpayable as rent does not arise at all. Certainly the silence on thepart of the 2nd Respondent in accepting what was given withoutprotest does not constitute a representation by him. In Estoppel byRepresentation by Spencer Bower and Turner (Supra) at page 61 itis stated as follows: "it is firmly established that reticence andpassivity in relation to matter which give rise to no legal duty tospeak or act, whether censurable in foro conscientiae or not, is nota representation of anything, and accordingly creates no estoppel".Since the rent payable is fixed by law the 2nd Respondent had nolegal duty to speak or act with regard to the quantum of rent andhis lack of protest could in no way give rise to an estoppel. In factit is the Petitioner who made the representation that the rent payablewas 18 bushels and he is now seeking the benefit of his ownrepresentation made to his advantage as against the other party.
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Therefore I am of the view that the recourse to the doctrine ofestoppel by the Petitioner is misconceived.
The failure to issue receipts would have been material only if therewas a dispute with regard to the amount given by the Petitioner asrent. Here, I note that the Petitioner himself claimed that he gaveonly 18 bushels. The 1st Respondent has made his decision on thebasis of this evidence of the Petitioner. Therefore the fact that noreceipts were given by the 2nd Respondent does not in any waypreclude him from invoking the procedure under section 18 of theAct to recover the amounts that are in arrears. In the circumstancesI am of the view that the third and fourth grounds urged by Counselfor the Petitioner are without basis.
The fifth and sixth grounds urged by Counsel for the Petitioner arethat the amounts ordered to be paid by the 1st Respondent are inexcess of the amounts stipulated by law and are arbitrary and thatthe rents have been Increased without notice to the Petitioner.
In terms of the Agrarian Services Act power is vested in theCommissioner to determine the rent that is payable by a tenantcultivator of any extent of paddy land. This power is vested in theCommissioner by section 17(1) of the Act. Section 17(2) empowersthe Comissioner to specify an amount not exceeding 15 bushels peracre or a portion not exceeding 1/4 of the total yield, whichever isgreater as rent payable in respect of any region. The correspondingprovision of the Agricultural Lands Law, being section 20, empoweredthe Minister to make such determination. There appear to be asignificant difference in the two provisions although the same criteriais stated in both sections. Whereas under the Agrarian Services Actthe amount payable is whichever is greater of the amounts ascomputed according to the determination, under the AgriculturalLands Law the amount payable was whichever is the least from suchcomputation. The 1st Respondent in his decision fixed the rentpayable at 70 bushels per acre on the basis that the yield per acreis 40 bushels. Learned President’s Counsel for the 2nd Respondentsubmitted with reference to the relevant notifications published in thegazette that during the period the Agricultural Lands Law wasoperative the amount fixed by the Minister, as rent, was 12 bushelsper acre or 1/4 of the total yield. During the period that the AgrarianSevices Act is operative the amount fixed by the Commissioner is
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15 bushels per acre or 1/4 of the total yield. It was submitted bylearned Presidents Counsel that the 1st Respondent erred in law inconsidering the rent payable as 10 bushels per acre for the periodthat the Agrarian Services Act is operative. On the principle that theamount payable is “whichever is greater", the rent had to be fixedat 15 bushels per acre and not at 10 bushels as determined by the1st Respondent, Therefore the illegality, if any, is to the benefit ofthe Petitioner.
As regards the estimated yield of 40 bushels per acre it has to notedthat there was no evidence adduced by the Petitioner that the actualyield of this paddy land was less than this figure. The 1stRespondent who is the Assistant Commissioner of Agrarian Servicesof the relevant area was competent to make an estimate of the yieldbased on the information available to him. In fact, for the Mahaseason of 1981/82 the Petitioner himself gave 30 bushels as rentwhich is in accord with a yield of .40 bushels per acre. Thereforethe yield estimated by the 1st Respondent could not be consideredas being unreasonable. In these circumstance I do not see any meritin the fifth and sixth grounds urged by learned Counsel for thePetitioner.
The last ground urged by learned Counsel for the Petitioner is thatthe procedure in section 18 of the Agrarian Services Act could notbe invoked retrospectively in relation to the arrears of rent thataccrued under the Agricultural Lands Law. It was submitted that interms of section 18 unlike the corresponding provision in theAgricultural Lands Law, tenancy rights could be forfeited if a tenantfailed to pay the arrears of rent that was notified by theCommissioner and consequently be evicted from the paddy land. Itwas further submitted, that these consequences are "punitive" andcould not attach restrospectively to arrears that accrued under theformer law. Learned President's Counsel for the 2nd Respondentsubmitted that the Petitioner was obliged to pay the rent. It wassubmitted that the failure to pay the rent as provided for by lawresulted in the tenant being in arrears and that the provisions insection 18 are procedural and that they could be appliedretrospectively in relation to arrears that have accrued.
The basis of the submission of learned Counsel for the Petitioner isthat the provisions in section 18 are adverse to the interests of the
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tenant cultivator and that his rights have therefore been impaired.Under section 28 of the Agricultural Lands Law arrears of rent couldbe recovered as decree entered by a Civil Court. Therefore Counselis correct when he submits that the procedure provided for in section18 of the Agrarian Services Act is adverse to the tenant. However,the question to be decided is whether a tenant cultivator has avested right with regard to any particular form of procedure. In thisregard learned President's Counsel relied on the judgment ofSharvananda, J (as he then was) in the case of Gunatillake vs.Walker Sons & Com. Ltd. (2) His Lordship observed as follows: "Thepresumption against retrospective operation has no application toenactments which affect only the procedure and practice of theCourts. There is no presumption that a change in procedure isintended to be prospective and not retrospective. Alterations in theform of procedure are always retrospective unless there is somegood reason why they should not be, Gardner vs. Lucas Blackburn.No person has a vested right in any course of procedure, and heis bound to follow such modes of seeking redress as the law mayenjoin from time to time. When a new remedy is granted or adefective remedy is rectified . . .it cannot be said that the rights ofany one are injuriously affected by the reforms . . .“. Therefore themere fact that the provisions of the Agricultural Lands Law were notfavourable to a tenant cultivator does not mean that he has a vestedright in the continuance of the former procedure. Indeed, theAgricultural Lands Law and even the Paddy Lands Act No. 1 of1958, which was previously in force, imposed as a requirement onevery tenant cultivator the obligation to pay rent to the landlord asprovided for by law. Hence, a tenant cultivator who fails to pay therent as provided for by law is in the category of a person who hasviolated a duty cast upon him by law and he could not be heard tosay that he has a vested right to continue with his tenancy. Theprovisions of section 28 of the Agricultural Lands Law and section18 of the Agrarian Services Act are procedural in nature. Theyprovide the means for the recovery and enforcement of therequirement imposed by law on a tenant cultivator to pay rent to thelandlord. The provisions of section 18 should thus be applicablewherever a tenant cultivator is in arrears of rent irrespective of thetime when such arrears accrued. In the case of Hadjiar vs Marsookand Co. Ltd (3) the Supreme Court dealt with the question whethera tenant could be ejected from a house he was occupying whichwas subject to the Rent Restriction Act, on the basis of arrears of
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rent that accrued prior to the house being subject to the Act. It wasobserved by Walpita, J (at page 256) as follows: “The obligation onthe part of the tenant was to pay the rent in time. Failure to meetthat obligation would make him be in arrears of rent and thereforeliable to ejectment". It is significant that in this case the SupremeCourt held that the tenant could be ejected on the basis of thearrears which accrued prior to the house coming under the provisionsof the Rent Restriction Act. The word “arrears" as appearing insection 13(1 )(a) of the Rent Restriction Act as amended by Act No.10 of 1961 was interpreted as including arrears which accrued priorto the section becoming applicable to the house. An examination ofthe provisions of section 18 of the Agrarian Services Act reveals thatthere is no provision in that section which suggests that arrears ofrent referred to in subsection (1) are restricted to arrears that securedafter the Act came into force. If such an interpretation is given therewould be no provision to recover the rent that was due under theAgricultural Lands Law which had not been recovered at the timeof the repeal of that law. It is for this reason that a basic principleof interpretation has evolved that provisions that deal with procedurewill ordinarily be considered as being of retrospective operation. Inthe circumstances I hold that a landlord is entitled to invoke theprocedure under Section 18(1) of the Agrarian Services Act in respectof arrears of rent that accrued at any time prior to the coming intoforce of the Act. For the reasons stated above I do not see merit inany of the grounds urged by learned Counsel for the Petitioner. Iaccordingly dismiss the application with costs fixed at Rs. 1050/-.
Application dismissed.