Legal Services and Laws of Sri Lanka


SLR - 2000 Vol.3, Page No - 184

SLR - 2000 Vol.3, Page No - 184
184
NIMALARATNE

v.

ASST: COMMISSIONER OF

AGRARIAN SERVICES
COURT OF APPEAL

JAYASINGHE, J.

JAYAWICKREMA, J.,

CA 111/95 (PHC)

PHC KEGALLE NO. 229 11-

JANUARY, 2000

05TH MAY, 2000
Constitution Article 154P(4), 154G(1)(5)a, (G)(7) 13th Amendment - Provincial List - Agrarian Services Act 58 of 1979, S.5,
9 - Eviction - Does the Provincial High Court have] jurisdiction - Devolved subjects - High Court of the Provinces (Special
Provisions) Act 19 of 1990 - S.3, S.4, S.5
The High Court held that inquiries with regard to Agrarian Services fell out side the writ jurisdiction of the Provincial
High Court as it is not provided for in the Provincial Council List.
On appeal
Held:
(1) Legislative Authority of the Provincial Councils are provided for in the 13th Amendment.
(2) Agriculture and Agrarian Services is a devolved subject - (Item 9 - Provincial Councils List). However there is no
reference to inquiries under the Agrarian Services in the Provincial Council List.
(3) At the time the promulgamation of the 13th Amendment, Agrarian Services Act 58 of 1979 was operative. S.5 provided for
inquiries by the Commissioner where there was eviction and S.9 provided for deciding disputes regarding devolution of rights
of tenant cultivators, Appeals were to the Board of Review - S.42(b) of the Agrarian Services Act 4 of 1997 (Amendment).
(4) The legislature when enacting Act 19 of 1990 was aware of the composition of the Provincial High Court List and the
concurrent list. It was contemplated that inquiries under Act 58 of 1979, are to be dealt
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with under the concurrent list, then it would not have given the High Court power to deal with Orders under S.5 and 9 by Act
19 of 1990.
(5) If the view that inquiries under the Agrarian Services Act are not amenable to writ jurisdiction of the High Court of
the Provinces is supportable, then Art. 154P(4) would be without any meaning.
(6) Agrarian Services is devolved on the Provincial Councils and mechanism for adjudication of disputes arising therefrom is
provided for in the Agrarian Services Act and the appellate procedure is provided for in Act 19 of 1990.
(7) Creation of the High Court of the Provinces was to give effect to the devolution of power that arose with the 13th
Amendment.
APPEAL from the order of the Provincial High Court of Kegalle.
S.C.B. Walgampaya with W.A.N. Jayanath and S.A.I.S. Suraweera for Petitioner - appellant.
Nimal Jayasinghe with P.P. Gunasena for 2nd Respondent - Respondent.
Cur. adv. vult.
July 28, 2000.
JAYASINGHE, J.
The Petitioner-Appellant filed this appeal against the order of the learned High Court Judge of the Provincial High Court of
Kegalle dated 28. 07. 1995 refusing to issue a writ of certiorari to set aside the orders "P14" and "P17".
The Petitioner-Appellant averred that the 2nd Respondent-Respondent who was the tenant cultivator sold his ande rights to
the Appellant in the year 1975that upon a complaint made by the 2nd Respondent-Respondent that he has been unlawfully
dispossessed by the Appellant, the Magistrate after inquiry made under Section 66 of the Primary Courts Procedure Act placed
the Appellant in possession (P3). Thereafter the 2nd Respondent made an application under Section 5(3) of the Agrarian
Services Act against the Appellant to the Assistant Commissioner and the Assistant Commissioner made an exparte order
against the Petitioner-Appellant for non appearance (P4). The Petitioner-Appellant then. filed affidavit
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explaining his default and the exparte order "P4" was set aside by the order "P7". Thereafter the Commissioner again sought
to evict the Appellant from the land in question by an application filed in the Magistrate's Court. However upon the
Appellant explaining to the Commissioner that "P4" had been set aside by the order "P7", the Commissioner withdrew his
application in the Magistrate's Court.
Thereafter on an application made by the 2nd Respondent, the 1st Respondent made order (P14) evicting the Appellant in terms
of "P4" which had already been withdrawn. Thereafter the Petitioner made an application to the 3rd Respondent to have "P 14"
set aside which was refused by order "P 17".
The Appellant preferred an application to the Provincial High Court for a writ of certiorari to have "P 14" and "P 17" set
aside.
The learned High Court Judge after inquiry held that even though Agriculture and Agrarian Services are set out in the
Provincial Council List, inquiries in respect of any of the matters referred to in the Provincial Council List and the
matters referred to in the Concurrent List are not determinable by the Provincial High Court and that inquiries with regard
to Agrarian Services fell out side the writ jurisdiction of the Provincial High Court as it is not provided for in the
Provincial Council List.
According to Article 154 P (4)
Every High Court shall have jurisdiction to issue, according to law -
(a) orders in the nature of habeas corpus, in respect of persons illegally detained within the Provinceand
(b) order in the nature of writs of Certiorari, Prohibition, Procedendo, Mandamus and Quo warranto against any person
exercising, within the Province, any power under
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(i) any lawor
(ii) any statutes made by the Provincial
Council established for that Province, in respect of any matter set out in the Provincial Council List.
Any law referred to above is referable to all matters set out in the List 1.
Legislative authority of the Provincial Councils are provided for in the 13th Amendment.
Article 154G (1) provides that
Every Provincial Council may, subject to the provisions of the Constitution, make statutes applicable to the Province for
which it is established, with respect to any matter set out in List I of the Ninth Schedule.
Article 154G (5) (a) provides that
Parliament may make laws with respect to any matter set out in List III of the Ninth Schedule after such consultation with
all Provincial Councils as Parliament may consider appropriate in the circumstances of each case.
(b) Every Provincial Council may, subject to the provisions of the Constitution, make statutes applicable to the Province
for which it is established, with respect to any matter on the Concurrent List, after such consultation with Parliament as
it may consider appropriate in the circumstances of each case.
Article 154G (6) provides that
If any provisions of any statute made by the Provincial Council is inconsistent with the provisions of any law made in
accordance with the preceding provisions of this article, the provisions of such law shall prevail and the provisions of the
statute shall, to the extent of such inconsistency be void.
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Therefore the power to enact statutes is found in Section 154G (1) subject to the qualifications found in Articles 154G (5)
(a), (b) and 154G (6).
There was no argument presented before Court that item 29 on the Concurrent List fell within any of the articles set out
above.
Article 154G (7) provides that
A Provincial Council shall have no power to make statutes on any matter set out in List 11 of the Ninth Schedule of the
Reserved List.
The question for determination before this Court is whether the High Court of the Provinces has the jurisdiction to issue
orders in the nature of writs of certiorari and prohibition against an order made by the Board of Review under Agrarian
Services Act. Mr. Jayasinghe argued that the order of the High Court Judge was supportable on the ground that the Provincial
High Court lacks jurisdiction to issue writs to quash the orders or prohibiting the exercise of powers pertaining to the
subjects set out in the Concurrent List of the 13th Amendment. He submitted that even though the subject of Agriculture and
Agrarian Services are set out in the Provincial Council List inquiries in respect of these matters are set out in the
Concurrent List and that the Provincial High Courts assume jurisdiction to issue writs only in respect of subjects set out
in the Provincial Council List.
Section 3 of the High Court of the Provinces (Special Provisions) Act No. 19 of 1990 provides that
A High Court established by Article 154P of the Constitution for a Province shall, subject to any law, exercise appellate
and revisionary jurisdiction in respect of orders made by Labour Tribunals within that Province and orders made under
section 5 or section 9 of the Agrarian Services Act,
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No. 58 of 1979, in respect of any land situated within that Province.
Section 4 provides that
A party aggrieved by any conviction, sentence or order, entered or imposed, by a Magistrate's Court, a Primary Court, a
Labour Tribunal or by an order made under section 5 or section 9 of the Agrarian Services Act, No. 58 of 1979 may, subject
to the provisions of any written law applicable to the procedure and manner for appealing and the time for preferring such
appeals, appeal therefrom to the High Court established by Article 154P of the Constitution for the Province within which
such court or tribunals is situated or within which the land which is the subject of the order made under the Agrarian
Services Act, is situated.
Section 5 provides that
The Provisions of written law applicable to appeals to the Court of Appeal, from convictions, sentences or orders entered or
imposed by a Magistrate's Court, and to applications made to the Court of Appeal for revision of any such conviction,
sentence or order shall, mutatis mutandis, apply to appeals to the High Court established by Article 154P of the
Constitution for a Province, from convictions, sentences or orders entered or imposed by Magistrate's Courts, Primary Courts
and Labour Tribunals within that Province and from orders made under section 5 or section 9 of the Agrarian Services Act,
No. 58 of 1979, in respect of land situated within that Province and to applications made to such High Court, for revision
of any such conviction, sentence or order.
Agriculture and Agrarian Services is a devolved subject. Item 9 of the Provincial Council List provides that Agricultural
and Agrarian Services -
9:1 Agriculture, including agricultural extension, promotion and education for provincial purposes and
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agricultural services (other than in inter-provincial irrigation and land settlement schemes, State land and plantation
agriculture)
9:2 Rehabilitation and maintenance of minor irrigation works
9:3 Agricultural research, save and except institutions designated as national agricultural research institutions.
Significantly there is no reference to inquiries under the Agrarian Services in the Provincial Council List. It is for this
reason that the High Court Judge has come to a finding that the High Court has no jurisdiction to issue writs of certiorari
in respect of matters provided for in the Agrarian Services Act.
At the time of the promulgation of the 13th Amendment Agrarian Services Act 58 of 1979 was operative. Section 5 provided for
inquiries by the Commissioner where there was eviction and Section 9 provided for deciding disputes regarding devolution of
rights of tenant cultivators. Appeals to the Board of Review was provided for under Section 42 (b) of the agrarian Services
Act 4 of 1991. Therefore there was the mechanism provided in the Agrarian Services Act to deal with disputes that arose out
of matters related to Agrarian Services.
The legislature when enacting High Court of the Provinces (Special Provisions) Act No. 19 of 1990 was aware of the
composition of the Provincial Council List and the Concurrent List. If it was in the contemplation of the legislature that
inquiries under Agrarian Services Act are to be dealt with under the Concurrent List, then it would not have given the High
Court power to deal with orders under Section 5 and 9 by Act No. 19 of 1990.
The learned High Court Judge was in error when he held that inquiries referred to as at item 29 in the Concurrent List
included inquires under Section 5 and 9 of the Agrarian Services Act.
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A prerogative writ lies against an Administrative Authority acting under statute or against an order made by an
Administrative Tribunal. If the view of the learned High Court Judge that inquiries under Agrarian Services Act is not
amenable to writ jurisdiction of the High Court of the Provinces is supportable, then Article 154P (4) would be without
meaning. Agrarian Services is devolved on the Provincial Councils and mechanism for adjudication of disputes arising
therefrom is provided for in the Agrarian Services Act and the Appellate Procedure is provided for in the High Court of the
Provinces Special Provisions Law. The argument that the High Court of the Provinces is devoid of writ jurisdiction is
therefore in-congruous. The creation of the High Court of the Provinces was to give effect to the devolution of power that
arose with the 13th Amendment.
We hold that the learned High Court Judge was in error when he held that a prerogative writ to quash the proceedings made
under the Agrarian Services Act is out side the jurisdiction of the High Court. Preliminary objection is overruled.
JAYAWICKRAMA, J. - I agree.
Preliminary Objection Overruled High Court has jurisdiction.


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