MARTIN AND ANOTHER VS. ASSISTANT COMMISSIONER OF AGRARIAN SERVICES AND 2 OTHERS

MARTIN AND ANOTHER VS. ASSISTANT COMMISSIONER OF AGRARIAN SERVICES AND 2 OTHERS

COURT OF APPEAL
SISIRA DE BREW, J.
GOONERATNE, J.
CA (PHC) 42/99
HC HAMBANTOTA 93/97
AUGUST 29,31,2010

Agrarian Services Act - Section 26 - Writ of Mandamus - Could it be issued against the Assistant Commissioner of Agrarian Services ordering him to Issue a certificate under Section 26?

The 1st respondent made an application to the Assistant Commissioner of Agrarian Services to issue a certificate under Section 26. This was refused. The High Court issued a Writ of Mandamus on the Assistant Commissioner of Agrarian Services directing him to issue a Section 26 certificate. On appeal,

Held:

A Writ of Mandamus can only issue against a natural person who holds public office. Relief can only be obtained against a natural person and High Court could not have issued a Writ of Mandamus directing the Assistant Commissioner of Agrarian Services to issue a Section 26 certificate.

APPEAL from an order of the High Court of Hambantota.

Cases referred to:-

1. Haniffa us. Chairman, Urban Council, Vawalapitiya - 66 NLR 48

2. P.B.D. Dayarathne us. 'Dr. Rajitha Senaratne - CA 1790/2003 - CAM 2004

        Daya Gumge for respondent-appellant

        Sarath Weerahon for 1st respondent

        Yuresha de Silua S.C. for 2nd and 3rd respondent.

Cur.adv. vult

November 04th 2010
SISIRA DE ABREW J.

    The 1st respondent in this case made an application to the 2nd respondent to issue a certificate under Section 26 of the Agrarian Services Act against the two appellants as they have, as ande cultivators of the 1st respondent's paddy field, failed to give their praveniya (due share) to him (the 1st respondent). The 3rd respondent, appointed by the 2nd  respondent, took up the position that as the appellants have ceased to be the ande cultivators in 1973, the 1st respondent was not entitled to get a certificate under Section 26 of the Agrarian Services Act. The 2nd respondent, therefore, refused to issue the said certificate. The 1st respondent challenged the said decision of the 2nd respondent in the High Court by way of a writ application. The learned High Court Judge (HCJ), by his judgment dated 23.2.99, set aside the said decision of the 2nd respondent and directed to issue a certificate under Section 26 of the Agrarian Services Act. Being aggrieved by the said judgment the appellants have appealed to this court.

    It is undisputed that the appellants were the ande cultivators of the 1st respondent's paddy field during the period commencing from yala season in 1982 to maha season in 19911 1992. The inquiring officer Agrarian Services, on 30.3.93, has decided that the appellants should give praveniya to the 1st respondent for the said period. The application by the 1st respondent to the 2nd respondent under Section 26 of the Agrarian Services Act was in respect of the said period. Therefore it is incorrect to decide that the appellants were not entitled to give praveniya on the basis that they ceased to be the tenant cultivators. One should not forget the fact that they were the tenant cultivators during the relevant

period. Therefore the decision of the learned High Court Judge on the facts appears to be correct. But the learned counsel for the appellant took up a legal objection before us and contended that the writ issued against the 2nd and the 3rd respondents could not have been issued as they were not natural persons. I now advert to this contention. The 2nd and the 3rd respondents are Assistant Commissioner of Agrarian Services and the Inquiring Officer Agrarian Services. They are not natural persons. In Hamfla vs. Chainnan Urban Council Nawalapitiya(1)  Thambiah J held: " A mandamus can only issue against a natural person who holds a public office. Accordingly in an application for a writ of mandamus against th

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