SUBASHINI VS. OIC, POLICE STATION TISSAMAHARAMA AND ANOTHER

SUBASHINI VS. OIC, POLICE STATION TISSAMAHARAMA
AND ANOTHER

COURT OF APPEAL
ABDUL SALAM, J. (P/CA)
RAJAPAKSE, J.
CA PHC 128/2011
PHC HAMBANTOTA 7/2010
MC TISSAMAHARAMA 99595/09
FEBRUARY 18, 2014
SEPTEMBER 2, 2014

Primary Courts Procedure Act No. 44 of 1979 Section 66(1) (a) - Agricultural Development Act Section 90 - interference with Cultivation Rights of owner cultivator or occupier - Could the jurisdiction conferred under Section 66 be exercised? - Special Tribunal created to give specific remedy - Resort to that Tribunal?

Held:

(1) Where a statute created a right and in plain language gives a specific remedy or appoints a specific tribunal for its enforcement a party seeking to enforce the right must resort to that tribunal and not to others.

APPEAL from the Judgment of the provincial High Court (Hambantota)

Cases referred to:-

1. Mansoor vs. OIC Avissawella 1991 2 SLR 75

Anuruddha Dammika with Indika Jayaweera for 1st party petitioner - Appellant

Gamini Premathilake with Ranjith Henri for 2nd party respondent

02nd October 2014

A.W.A. SALAM, J (P/CA)

This is an appeal preferred against the judgment of the learned High Court Judge of Hambantota. The learned High Court Judge in turn delivered his judgment, when the 1st party respondent petitioner Appellant sought a writ against the order of the learned Magistrate refusing to exercise jurisdiction over a dispute relating to paddy land with regard to right to cultivation and dispossession.

The learned Magistrate relying on Section 90 of the Agricultural Development Act has rejected the report filed under Section 66(1)(a) of Act No 44 of 1979, on the basis that the jurisdiction conferred under the said Section 66 cannot be exercised, when the legislature has conferred a particular relief over such disputes.

The learned Judge of the High Court has affirmed the decision of the learned Magistrate on the same premise relied upon by the Magistrate.

Section 90 of the Agrarian Development Act reads as follows. . .

"INTERFERENCE WITH CULTIVATION RIGHTS OF OWNER CULTIVATOR OR OCCUPIER.

90.(1) Where a complaint is made to the Commissioner general by any owner cultivator or occupier of agricultural land that any person is interfering with or attempting to interfere with the cultivation rights, threshing rights, rights of using a threshing floor, the right of removing agricultural produce or the right to the use of an agricultural road of such owner cultivator or occupier,

the Commissioner General after inquiry may if he is satisfied that such interference or attempted interference will result in damage or loss of crop or livestock, issue an order on such person, cultivator or occupier requiring him to comply with such directions as may be specified in such order necessary for the protection of such rights:

Provided that an order under this section shall not be made for the eviction of any person from such agricultural land:

Provided further that an order issued under subsection(1)

shall not prejudice the right, title or interest of such person, cultivator or occupier to such land, crop or livestock in respect of which such order is made.

[2] For the purpose of ensuring compliance with the provisions of an order under subsection (1) the Commissioner - General may seek the assistance of a peace officer within whose area of authority such agricultural land in respect of which such order is made lies, and it shall be the duty of such Peace Officer to render such assistance as is sought and the Peace Officer may for such purpose use such force as may be necessary to ensure compliance with such order.

[3] An order under subsection (1) shall be binding on the person in respect of whom it is made until set aside by a court of competent jurisdiction.

[4] Any person who fails to comply with an order made under subsection (1) shall be guilty of an offence under this Act.

[5] A certificate in writing issued b

Click Here to Read the rest of this document