Legal Services and Laws of Sri Lanka


SLR-2000 Vol.3-P184

SLR - 2000 Vol.3, Page No - 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 of1979,S.5,
9 - Eviction - Does the Provincial High Court have] jurisdiction - Devolved subjects - High Court of theProvinces(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 writjurisdictionoftheProvincial
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 -ProvincialCouncilsList).Howeverthereisno
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.5providedfor
inquiries by the Commissioner where there was eviction and S.9 provided for deciding disputes regarding devolution ofrights
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 theProvincialHighCourtListandthe
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 byAct
19 of 1990.

(5) If the view that inquiries under the Agrarian Services Act are not amenable to writ jurisdiction oftheHighCourtof
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 therefromis
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 devolutionofpowerthatarosewiththe13th
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 Courtof
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 soldhisanderightsto
the Appellant in the year 1975that upon a complaint made by the 2ndRespondent-Respondentthathehasbeenunlawfully
dispossessed by the Appellant, the Magistrate after inquiry made under Section 66 of the Primary Courts Procedure Actplaced
the Appellant in possession (P3). Thereafter the 2nd Respondent made anapplicationunderSection5(3)oftheAgrarian
Services Act against the Appellant to the Assistant CommissionerandtheAssistantCommissionermadeanexparteorder
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 Commissioneragainsought
to evict the Appellant from the land in question by anapplicationfiledintheMagistrate'sCourt.Howeveruponthe
Appellant explaining to the Commissioner that "P4" had been set aside bytheorder"P7",theCommissionerwithdrewhis
application in the Magistrate's Court.

Thereafter on an application made by the 2nd Respondent, the 1st Respondent made order (P14) evicting the Appellant interms
of "P4" which had already been withdrawn. Thereafter the Petitioner made an application to the 3rd Respondent to have "P14"
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"P17"set
aside.

The learned High Court Judge after inquiry held that even though AgricultureandAgrarianServicesaresetoutinthe
Provincial Council List, inquiries in respect of any of the matters referred tointheProvincialCouncilListandthe
matters referred to in the Concurrent List are not determinable by the Provincial High Court and that inquirieswithregard
to Agrarian Services fell out side the writ jurisdiction of the Provincial High Court asitisnotprovidedforinthe
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,MandamusandQuowarrantoagainstanyperson
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 aftersuchconsultationwith
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 statutesapplicabletotheProvince
for which it is established, with respect to any matter on the Concurrent List, after such consultationwithParliamentas
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 withtheprovisionsofanylawmadein
accordance with the preceding provisions of this article, the provisions of such law shall prevail and the provisions ofthe
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 hasthejurisdictiontoissue
orders in the nature of writs of certiorari and prohibition against an order made bytheBoardofReviewunderAgrarian
Services Act. Mr. Jayasinghe argued that the order of the High Court Judge was supportable on the ground that theProvincial
High Court lacks jurisdiction to issue writs to quash the orders or prohibiting the exerciseofpowerspertainingtothe
subjects set out in the Concurrent List of the 13th Amendment. He submitted that even though the subject ofAgricultureand
Agrarian Services are set out in the Provincial Council List inquiries in respectofthesemattersaresetoutinthe
Concurrent List and that the Provincial High Courts assume jurisdiction to issue writs only in respect ofsubjectssetout
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 toanylaw,exerciseappellate
and revisionary jurisdiction in respect of orders made by LabourTribunalswithinthatProvinceandordersmadeunder
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 aMagistrate'sCourt,aPrimaryCourt,a
Labour Tribunal or by an order made under section 5 or section 9 of the Agrarian Services Act, No. 58 of1979may,subject
to the provisions of any written law applicable to the procedure and manner for appealing and the timeforpreferringsuch
appeals, appeal therefrom to the High Court established by Article 154P of the Constitution fortheProvincewithinwhich
such court or tribunals is situated or within which the land which is the subjectoftheordermadeundertheAgrarian
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 enteredor
imposed by a Magistrate's Court, and to applications made to the CourtofAppealforrevisionofanysuchconviction,
sentence or order shall, mutatis mutandis,applytoappealstotheHighCourtestablishedbyArticle154Pofthe
Constitution for a Province, from convictions, sentences or orders entered or imposed by Magistrate's Courts, PrimaryCourts
and Labour Tribunals within that Province and from orders made under section 5 or section 9 oftheAgrarianServicesAct,
No. 58 of 1979, in respect of land situated within that Province and to applications made to such HighCourt,forrevision
of any such conviction, sentence or order.

Agriculture and Agrarian Services is a devolved subject. Item 9 of the Provincial CouncilListprovidesthatAgricultural
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 isforthis
reason that the High Court Judge has come to a finding that the High Court has no jurisdiction to issue writsofcertiorari
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 providedfor
inquiries by the Commissioner where there was eviction and Section 9 provided for deciding disputes regardingdevolutionof
rights of tenant cultivators. Appeals to the Board of Review was provided for under Section 42 (b) of theagrarianServices
Act 4 of 1991. Therefore there was the mechanism provided in the Agrarian Services Act to deal with disputes thataroseout
of matters related to Agrarian Services.

The legislature when enacting High Court of the Provinces(SpecialProvisions)ActNo.19of1990wasawareofthe
composition of the Provincial Council List and the Concurrent List. If it was in the contemplation ofthelegislaturethat
inquiries under Agrarian Services Act are to be dealt with under the Concurrent List, then it would not have giventheHigh
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 asatitem29intheConcurrentList
included inquires under Section 5 and 9 of the Agrarian Services Act.
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A prerogative writ liesagainstanAdministrativeAuthorityactingunderstatuteoragainstanordermadebyan
Administrative Tribunal. If the view of the learned High Court Judge thatinquiriesunderAgrarianServicesActisnot
amenable to writ jurisdiction of the High Court of the Provinces is supportable, thenArticle154P(4)wouldbewithout
meaning. Agrarian Services is devolved on theProvincialCouncilsandmechanismforadjudicationofdisputesarising
therefrom is provided for in the Agrarian Services Act and the Appellate Procedure is provided for in the High Courtofthe
Provinces Special Provisions Law. The argument that the High Court oftheProvincesisdevoidofwritjurisdictionis
therefore in-congruous. The creation of the High Court of the Provinces was to give effect to the devolutionofpowerthat
arose with the 13th Amendment.

We hold that the learned High Court Judge was in error when he held that a prerogative writ toquashtheproceedingsmade
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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