THYAGARATNE

Vs.

ASSISTANT COMMISSIONER OF AGRARIAN DEVELOPMENT AND ANOTHER

COURT OF APPEAL
WICKREMASINGHE, J.
SAMAYAWARDHENA, J.
CA (PHC) 188/2013
HC KALUTARA 55/2011/REV
MC KALUTARA 84601

Agrarian Development Act, No. 46 of 2000, sections 28, 33(1), 33(3), 33(4), 33(5), 33(7), 33(8), 101-Restraining order-Filling of paddy lands-Scope of the inquiry before the Magistrate's Court-Defences

The Commissioner General of Agrarian Development instituted proceedings against the appellant in the Magistrate's Court under section 33(3) of the Agrarian Development Act, No. 46 of 2000, as amended, praying for the issue of an order restraining the appellant from filling the paddy land. The appellant took up the position that (a) the subject land is not a paddy land and (b) he never filled the land, and therefore the application is misconceived in law. After inquiry, the Magistrate's Court issued the restraining order. The revision application filed against this order was dismissed by the High Court. The appellant appealed to the Court of Appeal.

Held:

1. The appellant cannot take up new defences which are questions law for the first time in appeal. The identification of the land was not put in issue before.

2. When the Commissioner of Agrarian Development states that the land described in the schedule to the application is a paddy land, section 33(7) of the Act debars the Magistrate's Court from questioning the validity of the contents of the application. The appellant can challenge the decision of the Commissioner in a properly constituted writ application.

3. Section 33(8) of the Act states that the only possible defence is to produce the lawful authority to fill the paddy land, which, according to section 33(1), is the written permission of the Commissioner' General of Agrarian Development. The appellant does not have such an authority given by the Commissioner General of Agrarian Development.

APPEAL from the Judgment of the High Court of Kalutara.

Shyamal A. Collure with A.P. Jayaweera for the Appellant.

Sabrina Ahmed, S.C., for the Respondents.

cur. adv. vult.

August 5, 2019

SAMAYAWARDHENA, J.

The Commissioner General of Agrarian Development (hereinafter "respondent") instituted these proceedings against the respondent (hereinafter "appellant") in the Magistrate's Court of Kalutara under section 33(3) of the Agrarian Development Act, No. 46 of 2000, as amended, (hereinafter "Act") praying for the issue of an order restraining the appellant from filling the paddy land by the name of Madangahawatta Paula in extent of 3 roods and 10 perches out of a larger land of 1 acre, which is morefully described in the schedule to the application. In terms of section 33(4) of the Act, a supporting affidavit of the Commissioner of Agrarian Development was tendered with the application.

Upon being satisfied with the complaint, the learned Magistrate has, in terms of section 33(5) of the Act, made an interim order ex parte

restraining the appellant from continuing with the offensive act and issued summons on the appellant to show cause why he should not be restrained as prayed for in the application.

The appellant by way of an affidavit with supporting documents stated to Court that (a) the subject land is not a paddy land and (b) he never filled the land, and therefore the application is misconceived in law.

The respondent fried a counter affidavit together with supporting documents and stated that it is a paddy land.

Thereafter, the learned Magistrate, in terms of section 33(8) of the Act, has made the restraining order, which is also the final order, against the appellant.

Being dissatisfied with that order, the appellant has filed a revision application in the High Court. The High Court, by Judgment dated 31.10.2013, has affirmed the order of the Magistrate's Court and dismissed the application of the appellant. It is against this Judgment of the High Court that the appellant has c