Legal Services and Laws of Sri Lanka


SLR-1990 Vol.2-P199

SLR - 1990 Vol.2, Page No - 199

ISMALEBBE

v.

JAYAWARDENA, ASSISTANT COMMISSIONER OF AGRARIAN

SERVICES AND OTHERS
COURT OF APPEAL,

S. N. SILVA, J.,

C. A. APPLICATION No. 978/83,

OCTOBER 08, 1990.

Interpretation - Whether application of a Proviso of a section isrestrictedtothesectionimmediatelyproceedingit-
Agrarian Services Act, No. 58 of 1979, Sections 4(1) and (2)-Need for interpretation of any provision to beconsistentwith
the provisions of the Constitution. Constitution -Article 12(1).

The 2 to 5 respondents are owners of a land, 28 acres in extent-of which 22 acres are in paddy.Thepetitionerbecamethe
tenant cultivator of the land in 1984. On 18.11 .1982 the 2 to 5 respondents filed an application against thepetitionerto
the Commissioner of Agrarian Services seeking a declaration in terms of the proviso to Section 4(2) of the AgrarianServices
Act, No. 58 of 1979 that he is not entitled to the rights of a tenant cultivator, on the basis thatheisalsotheowner
cultivator of paddy land of not less than 5 acres in extent. The 2 to 5 respondentsclaimedthatthepetitionerwasthe
owner cultivator of more than 20 acres of paddy land. The 1st respondent (Assistant Commissioner) held the inquiry andfound
that the petitioner was the owner cultivator of paddy land of not less than 5 acres in extent and not entitled to therights
of a tenant cultivator in terms of the proviso to S. 4 (2) of the Agrarian Services Act. The petitioner moved for aWritof
Certiorari to quash this decision.

Held :
(1) The proviso to Sub-section 4(2) of the Agrarian Services Act deals with a specific class of cases namely thatoftenant
cultivators who are also owner cultivators of paddy land of not less than 5 acres in extent. The operationofthisproviso
is not restricted to districts in respect of which the Minister has made an order in terms of Subsection
(2). It will apply to every tenant cultivator who is also an owner cultivator of paddy land ofnotlessthan5acresin
extent. In other words the proviso will apply to situations covered by both subsections (1) and(2)ofSection4(2)If
Section 4 is interpreted to mean that the proviso to Subsection (2) of section 4 islimitedinapplicationtoSubsection
(,2) and does not extend to Subsection (1), it would result in a irrational classification of persons and wouldviolatethe
right to equality before the law, which right is guaranteed to everypersonbyArticle12(1)oftheConstitution.Any
provision of law should be interpreted so that it would apply in a manner consistentwiththeConstitutionwhichisthe
Supreme Law of the land.
(3) Even as a general rule of interpretation it isnotpermissibletorestricttheoperationoftheprovisotothe
subsection which immediately precedes it A proviso should be construed in relation to the entire section and wherenecessary
in the context of even the other sections.

Cases referred to -
(1) Karunadasa v. Wijesinghe (1986) Sri LR 368.
(2) R. V. Newark Inhabitants 38 & C 7 1.
(3) Saradambal v. Seethalakshmi AIR 1962 Madras 108
APPLICATION for Writ of Certiorari to quash decision of Assistant Commissioner of Agrarian Services.
S. C. Crosette Thambiah with .K. Thevarajah for the petitioner
Faiz Musthapha, P.C. with N M. Shaherd for respondents.

October 26, 1990
S. N. SILVA, J.,
The 2nd to 5th Respondents to this application are the owners-of a land called "Vaddukaduveli" in extent about28acresof
which 22 acres are under paddy, situated in the Ampara District. The Petitioner became the tenant cultivatorofthispaddy
land in 1964. In 1968 the 2nd to 5th Respondents filed case No. D.C. Batticaloa 2441/L for the recovery ofarrearsofrent
and for the eviction of the Petitioner. The basis of the claim forevictionwasthatthePetitionerwasnotatenant
cultivator within the meaning of the operative law since he cultivated the paddy land with hired labour. TheDistrictCourt
gave judgment in favour of the 2nd to 5th Respondents and the Petitioner was evicted pending an appeal filed byhimagainst
the judgment. The appeal filed by the Petitioner, C.A. 233/ 73(F) was allowed bythisCourtandtheorderforeviction
entered by the District Judge was set aside. The judgment of this Court was affirmed by the Supreme Court on 22-10.1982.

On 18.1 1.1982 the 2nd to 5th Respondents made anapplicationagainstthePetitionertotheCommissionerofAgrarian
Services for a declaration in terms of the proviso to Section 4(2) of the Agrarian Services Act, No. 58 of 1979thatheis
not entitled to the rights of a tenant cultivator, on the basis that he is also the owner cultivator ofpaddylandofnot
less than 5 acres in extent. The 2nd to 5th Respondents claimed that the Petitioner was the owner cultivator of more than20
acres of paddy land. It was contended by the Petitioner that he gifted some of his paddy lands to his children priortothe
Agrarian Services Act. The 1st Respondent being the Assistant Commissioner who held the inquiryintothesaidapplication
arrived at a finding that there was sample evidence to establish that the Petitioner was the owner cultivator ofpaddyland
not less than 5 acres in extent. On this basis the 1st Respondent held that the Petitioner is not entitled to therightsof
a tenant cultivator in terms of the proviso to Section 4(2) of. the Act. Thereupon the Petitioner filed this applicationfor
a Writ of Certiorari to quash the declaration made by the 1st Respondent.

Learned Counsel appearing for the Petitioner sought to challenge the said declaration only on the groundthatitisultra
vires. It was the submission of Counsel that a declaration could not be made under the proviso to Section 4(2)althoughthe
Petitioner was an owner cultivator of an extent, not less than 5 acres, because the Minister has not made an orderinterms
of Section 4(2) of the Act in respect of the Ampara District where the paddy land islocated.Itwassubmittedthatthe
proviso to Section 4(2) will apply only in respect of a district where the Minister has made an order in terms ofSection4
(2). The submission of learned President's Counsel appearing for the 2nd to 5th Respondents was that the provisowillapply
to every instance where a tenant cultivator is also an owner cultivator of paddy land not less than 5 acres in extent.

In other words, that the proviso will apply to situations covered by both sub-sections -(1) and (2)ofSection4:Learned
President's Counsel further submitted that the interpretation contended for by Counsel for the Petitioner would result inan
absurdity.
Submissions of Counsel relate only to the interpretation of Section 4 of the Agrarian Services Act which enacts as follows
4. (1) The maximum extent of paddy land that could be cultivated by a tenant cultivator shall be five acres.
(2) The Minister may subject to the provisions of subsection . (1) by Order published in the Gazette determine the extentof
paddy land that may be cultivated by a tenant cultivator in any district to which such Order relates Provided, however,that
where the Commissioner is satisfied after due inquiry that a tenant cultivator is also an owner cultivator of any paddyland
of not less than five acres in extent, the. Commissioner may declare that such tenant cultivator shallnotbeentitledto
his rights as a tenant cultivator under the provisions of this, Act, and accordingly the provisions of subsections (3),(4),
(5) and (6) of this section shall apply to such tenant cultivator.
(3)The tenant cultivator shall, if he is in occupation of an extent of paddy land in excess of theextentspecifiedinan
Order under subsection (2), subject 'to the approval of the. Commissioner, be entitled to select theextentofpaddyland
which he is entitled to cultivate, and shall vacate the balance extent on being ordered to do so by the Commissioner.
(4) Where a tenant cultivator fails to comply with the provisions of subsection (3) he shall be evicted fromtheextentof
paddy land in excess of the extent specified in the Order under subsection (2) and the provisions of Section6shallapply
to any such eviction.
Subsections (5) and (6) are applicable only upon a vacation of the paddy land by the tenant cultivator and arenotrelevant
to the submissions.

Learned Counsel for the Petitioner relied on two grounds in support of his contention that the proviso will only applywhere
the Minister has made an order in terms of subsection (2). They are
(i) that the proviso appears immediately beneath subsection (2) and as such should qualify. only that subsection
(ii) that the concluding words in the proviso, "and accordingly the provisions of subsection(3),(4),(5)and(6)ofthis
section shall apply to such tenant cultivator", clearly indicate that the proviso isintendedtoqualifyonlysubsection
(2).
The submission is that subsection (3) and the consequential provisions canapplyonlywherethereisanorderbythe
Minister in terms of subsection (2).

Section 4 of the Agrarian Services Act is a new provision, in that the preceding legislation on the subject namely thePaddy
Lands Act, No. 1 of 1958, the Agricultural Lands Law, No, 42 of 1973 and the Agricultural Productivity Law,No.2of1972
did not have a provision of similar import. Under these laws a limit was not placed as to the extent of paddy landofwhich
a person could be a tenant cultivator. Whereas, Section 4 (1) of the Agrarian Services Act directly imposesalimitasto
the extent of paddy land in respect of which a person could be a tenantcultivator.Itisstatedspecificallythatthe
maximum extent of paddy land that could be cultivated by atenantcultivatorshallbe5acres.Theopeningwordsof
subsection (2) "the Minister may subject to the provisions of subsection (1)", imply that the limit that maybeimposedby
the Minister in respect of any district, in terms of the subsection, has to be less than the extent of 5 acresspecifiedin
subsection (1). Therefore subsection (1) could be considered as laying down a maximum of 5 acresapplicabletotheentire
Island whereas an exception could be made in respect of any particular district by the Minister by reducing ittoalesser
extent. Subsection (2) does not contain any guidelines astotheexerciseofthediscretionvestedintheMinister.
Considering that the limit that may be imposed by the Minister should be less than 5 acres,itmaybegatheredthatthe
Minister will be guided by considerations such as the extent of cultivable paddy land in the district,thedensityofthe
agricultural population and the availability of irrigated water.
The proviso to subsection (2) does not seek to impose directly or indirectly a limitation as totheextentofpaddyland
that may be cultivated by a tenant cultivator. It empowers the Commissioner to declare that a person is "not entitled tohis
rights as a tenant cultivator". Thus the extent of paddy land to be cultivated by a tenant cultivator whichisfixedata
maximum of 5 acres in subsection (1), and may be reduced to a lesser extent by subsection (2) is brought down to zero bythe
proviso. The criteria, on the basis of which the proviso operates, is not the same as that of subsections(1)and(2).In
these subsections the criteria is the extent of paddy land cultivated by the tenant cultivator. In the proviso, thecriteria
is the extent of paddy land of which the tenant cultivator isanownercultivator.Therefore,theprovisooperateson
criteria that is distinct from that of subsections (1) and (2) and also its consequence is more farreachingthanwhatis
provided for in the two subsections.
I have to now consider whether the proviso operates only where the Minister has made an order in terms of subsection (2),as
contended by learned Counsel for the Petitioner.

The Minister is empowered in terms of subsection (2) to lower the limit of paddy land in respect of which a personcouldbe
a tenant cultivator in a particular district. If the proviso is to operate only in suchaninstance,apersonwhoisa
tenant cultivator of paddy land situated in a district in respectofwhichtheMinisterhasnotmadeanorderunder
subsection (2) can be the tenant cultivator of 5 acres of paddy land and also the owner cultivator ofanyextentofpaddy
land. On the other hand, in a district in which the Minister has made an orderintermsofsubsection(2)reducingthe
extent of paddy land to respect of which a person could be a tenant cultivator, from 5 acrestoalesserextent,ifthe
tenant cultivator is also an owner cultivator of not less than -5 acres, that person could cease to be the tenantcultivator
of even the reduced extent as ordered by the Minister. This consequencecouldbedescribedasabsurd,assubmittedby
learned President's Counsel for the Respondents. Certainly, it would result in an irrational classification of personsbeing
tenant cultivators who are also owner cultivators of paddy land of not less than 5 acres in extent.Suchaninterpretation
would discriminate against this category of tenant and owner cultivators, in a district in respect of which the Ministerhas
made an order in terms of subsection (2) and be favourable to similar persons in districts inwhichtheMinisterhasnot
made an Order in terms of subsection (2). Therefore, the interpretation contended for by CounselforthePetitionerwould
result in a violation of the right to equality before the law that is guaranteed to every personbyArticle12(1)ofthe
Constitution. Any provision of law should be interpreted so that it would apply in a manner consistent with theConstitution
being the Supreme Law of the land. An interpretation that may result in a provision being applied inamannerinconsistent
with the Constitution has to be avoided. In this regard it is stated as followsinBindra"sInterpretationofStatutes
(1987, 7th Edition at page 161)

"It is well settled that if certain provisions of law construed in one way would make them consistent with theConstitution,
and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction".
An examination of case law shows that a proviso is a fertile area from which arguments of varied dimensions couldbethrown
up. It has been argued that the contents of a proviso limit the ambit of operation of the main section and attimesinthe
reverse, that the ambit of the proviso is restricted by the main section. In the case of Karunadasa v. Wijesinghe(1)itwas
argued that the 2nd proviso to Section 765 of. the Civil Procedure Code limits the ambit of themainsection.TheSupreme
Court held against this submission "upon a reading of the provisions of both the main enactment of section765andofthe
two provisos" (page 364).

In this case the submission of Counsel for the Petitioner is the reverse of the submission advanced inWijesinghe"scase.
Here the submission is that the ambit of the proviso islimitedbytheprovisionsofthesubsectionthatimmediately
precedes it. In my view the correct approach to the construction of a proviso is to read it in the entirecontextinwhich
it appears. As observed by Holroyd, J. in the case of R v. Newark Inhabitants"' such a matter hastobedecideduponthe
words and their import and "not upon the division into sections that may be made for theconvenienceofreferenceinthe
printed copies of the Statutex".
As a matter of interpretation, the submission of learned Counsel for the Petitioner that the proviso should be consideredas
qualifying only subsection (2) is untenable. In the case of Saradambal v. Seethalakshmi (3) Pillai, J. observed as follows
"Unless there are special indications to show that a proviso to a section is limited to one part of it, normally theproviso
governs the entire section, secondly, it is not necessary for the purpose ofmakingaprovisoapplicabletotheentire
section to repeat it after each clause of that section. The proviso is really in the nature of anexceptionwhichtakesa
class of cases out of the operation of the main section."

The foregoing passage of the judgement of Pillai, J., has been reproduced verbatim inBindra"sInterpretationofStatutes
(7th Edition, at page 80). Therefore, even as a general ruleofinterpretationitisnotpermissibletorestrictthe
operation of the proviso to the subsection which immediately precedes it. A proviso should be construed inrelationtothe
entire section and, where necessary in the context of even the other sections. It should be considered a legislativemeasure
to remove a certain class of cases from the operation of the main section and where necessary the other sections of theAct.
The proviso to Section 4(2) deals with a specific class of cases namely of tenant cultivators who are also ownercultivators
of paddy land not less than 5 acres in extent. In respectofthisclassofcasestheprovisovestsapowerinthe
Commissioner to make a declaration that a person coming withintheclassisnotentitledtohisrightsasatenant
cultivator under the provisions of the Act. The words, "The Commissioner may declare that such tenantcultivatorshallnot
be entitled to his rights as a tenant cultivator under the provisions of this Act, " appearing in theprovisoareaclear
indication that the proviso is intended to operate as an exception not only to subsections (1) and (2) of Section 4 butalso
to the other sections of the Act that grant a tenant cultivator an extensive security of tenure. In this regard,Iwishto
cite the following passage from Maxwell on the Interpretation of Statutes (12th Edition, Tripathi Publication p. 190).

"If, however, the language of the proviso makes it plain that it was intended to have an operation more extensivethanthat
of the provision which it immediately follows, it must be given such wider effect."
The construction placed by me above to the proviso is also in accord with the legislative purpose underlyingtheprovisions
of Section 4. It is apparent that Section 4 was introduced, as a departure frompreviouslegislationonthesubject,in
order to strike a balance between the competing interests of the tenant cultivators and that of owners of paddy land.Itis
from this stand point that a limit was placed at 5 acres by subsection (1) as the maximum extentinrespectofwhichany
person could be a tenant cultivator. Subsection (2) empowers the Minister to lower this limit in respect of anydistrictby
Order published in the Gazette. The purpose of the proviso is to deal with the class of casesinwhichtenantcultivators
are also owner cultivators of extent of not less than 5 acres. With regard to this class oftenantandownercultivators,
legislature has thought it fit to vest a power in the Commissioner, to.makeadeclarationthatsuchapersonisnot
entitled to the rights of a tenant cultivatorundertheprovisionsoftheAct.Indeed,itwoulddetractfromthis
legislative purpose if the proviso is construed as being operative only where the Minister has madeanOrderintermsof
subsection (2). ,
Learned Counsel for the Petitioner also relied on the words, "and accordingly the provisions ofsubsection(3),(4),(5)and
(6) of this section shall apply to such tenant cultivators", to supporthissubmissionthattheprovisoonlyqualifies
subsection (2). it was submitted that the provisions of subsection (3) in particular cannot operate unless there is anOrder
made by the Minister in terms of subsection (2).

It is clear from the scheme of Section 4 that subsections (3),(4),(5)and(6)wouldordinarilyoperateonlywherethe
Minister has made an Order in terms of subsection (2) reducing the extent of paddy land that may be cultivatedbyatenant
cultivator in any particular district, from 5 acres to a lower extent. In the absence of the wordsrelieduponbyCounsel
the provisions of the subsections would not apply to an instance regulated by the proviso.Thesubmissionofcounselwas
that the greater portion of subsection (3) would not apply if the proviso is construed as qualifying subsection (l) aswell.
However, it is seen that the same portions of subsection (3) will not apply eveniftheinterpretationcontendedforby
Counsel is given by limiting the operation of the proviso to subsection (2) only. In my view the words, "and accordinglythe
provisions of subsections (4),(5) and (6) shall apply to such tenantcultivators"shouldbeconstruedasalegislative
measure to make the provisions of these subsections applicable mutatis mutandis to every instance regulated by the proviso.

For the reasons stated above I am of the view that the proviso to subsection 4(2) of the Agrarian Services Act dealswitha
specific class of cases namely that of tenant cultivators who are also owner cultivators of paddy land ofnotlessthan5
acres in extent. The operation of this proviso is not restricted to districts in respect of which the Ministerhasmadean
Order in terms of subsection (2). It will apply to every tenant cultivator who is also an owner cultivator of paddy landnot
less than, 5 acres in extent. The Commissioner is empowered by this proviso to make a declaration after due inquiry thatany
such person shall not be entitled to his rights as a tenant cultivator under the provisions of the Act.

Thereupon the Commissioner is empowered to make an order in terms ofsubsection(3)directingthetenantcultivatorto
vacate the paddy land so cultivated by him. Subsection (4) will apply where a tenant cultivator fails to comply with suchan
Order and he would be liable to be evicted in accordance with the procedure providedforinsection6oftheAct.The
provisions of subsections (5) and (6) will then apply in relation to the particular land vacated by the tenant cultivator.
Counsel for the Petitioner did not seek to canvass the order made by the 1st Respondent on anygroundotherthanwhatis
referred to above. I am of the view that the ground urged bytheCounselisuntenableandIaccordinglydismissthis
application with costs fixed at Rs. 1, 500 payable by the Petitioner to the 2nd to 5th Respondents.
Application dismissed.

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