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State v Central Agricultural Tribunal, ex parte Singh [2015] FJHC 991; HBJ34.2007 (4 December 2015)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Judicial Review No: HBJ 34 of 2007

BETWEEN :

STATE -v- CENTRAL AGRICULTURAL TRIBUNAL

AND :

PARWATI daughter of Varada Rajan also known
as Ward Raju Also known as Warda Raju son of
Ramaiya.
RESPONDENT

AND :

DIRECTOR OF LANDS
INTERESTED PARTY

EX-PARTE :

UDAY VIR SINGH
APPLICANT

COUNSEL : Mr. V. Mishra for the Applicant.
Ms. V. Lidise for the Respondent.
Ms. S. Ali for the Interested Party.

Date of Hearing : 21st October, 2015
Date of Judgment : 4th December, 2015

JUDGMENT

[1] The subject matter of this application for judicial review is the land described in Crown Lease No. 11775 being Lot 1 in Plan BA 2439, part of Tavarau containing 13 acres 01 rood and 1 perches.

[2] Mr. Warda Raju who died on 19th January 2003 was given this land on a lease initially for ten years effective from 01st April 1973 and later extended it for another period of 16 years 10 months 15 days. The first respondent is the daughter of the said Warda Raju and the applicant is the son of the de facto wife of Warda Raju by another person.

[3] There had been a dispute between Warda Raju and one Perumal which was later settled before the Agricultural Tribunal by agreeing to give one acre out of this land to the said Perumal.

[4] When an application was made by Warda Raju for the extension of the lease the officers have inspected the land and found that the land had not been cultivated and sent the letter dated 20th September 2003 requiring the lessee to rectify the breach before the application was processed. The officers also surveyed one acre land with a house which was later given to Perumal aforesaid.

[5] The applicant, after the death of Warda Raju made an application for a lease in respect of this land which was opposed by the 1st respondent who obtained probate from the High Court to administer the estate of late Warda Raju. After hearing the parties the Agricultural Tribunal refused the application of the applicant but awarded him compensation and costs.

[6] Being aggrieved by the decision of the Agricultural Tribunal the applicant preferred an appeal to the Central Agricultural Tribunal which was also dismissed.

[7] The applicant then made this application for judicial review against the dismissal of the Central Agricultural Tribunal seeking inter alia the following orders;

1. An order of certiorari to remove into this Court the order or decision of the Central Agricultural Tribunal made or given on or about the 12th day of September 2007 for the purpose of quashing the decision of the Central Agricultural Tribunal whereby it refused to allow the appeal and refused to declare a tenancy in favour of the applicant against the respondents in respect of State Lease No. 11775.
   
2. A declaration that the Central Agricultural Tribunal was wrong in law and went beyond its jurisdiction in holding that the Central Agricultural Tribunal in holding that the Agricultural Tribunal had correctly awarded compensation under section 18 of the Agricultural Landlord and Tenant Act [Cap 270] and refusing to declare a tenancy in favor of the applicant.
   
3. An order that the Central Agricultural Tribunal was wrong in law and went beyond its jurisdiction in holding that the Agricultural Tribunal in refusing to hold that the tenancy was presumed under section 4 the Agricultural Landlord and Tenant Act and refusing to declare a tenancy under sections 5 and 22 of the said Act.
   

[8] From the reliefs prayed for by the applicant it appears that he is seeking by this application to challenge the findings of the Agricultural Tribunal and the decision in appeal of the Central Agricultural Tribunal. Before going into the merits of the application it is important to consider the scope of an application for judicial review. At the hearing of this application the learned counsel for the Interested Party informed Court that they had no submissions to make and would abide by the decision of the Court.

[9] The learned counsel for the respondent citing various authorities submitted that judicial review concerns not the decision but the manner of reaching it.

[10] In Chief Constable v Evans[1] it was held;

Judicial review is concerned, not with the decision, but with the decision making process. Unless that restriction on the power of the Court is observed, the Court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power.

[11] In Regina v The Secretary of State ex-parte Anderson Strathclyde PLC[2] it was held;

Proceedings for judicial review are not designed for detailed inquiry into contested facts. It is for the applicants to take all proper steps to put the facts on which they rely in support of the relief claimed before the court at the first opportunity.

[12] In the case of Council of Civil Service Unions and others v Minister of Civil Service[3] the House of Lords held;

Administrative action is subject to control by judicial review under three heads:

(1) Illegality, where the decision making authority has been guilty of an error of law, e.g. by purporting to exercise power it does not possess;

(2) Irrationality, where the decision-making authority has acted so unreasonably that no reasonable authority would have made the decision;

(3) Procedural impropriety, where the decision making authority has failed in its duty to act fairly.

[13] The quashing order (certiorari) is used to bring up into the High Court the decision of some inferior tribunal or authority in order that it may be investigated. If the decision does not pass the test, it is quashed – that is to say, it is declared completely invalid, so that no one need respect it. The underline policy is that all inferior courts and authorities have only limited jurisdiction or powers and must be kept within their legal bounds. This is the concern of the Crown, for the sake of orderly administration of justice, but it is a private complaint which sets the Crown in motion.[4]

[14] On a careful consideration of the reliefs prayed for by the applicant it appears that he is seeking by way of judicial review to challenge the decision of the Central Agricultural Tribunal on the basis that it has exceeded its powers in refusing to set aside the decision of the Agricultural Tribunal and to make the declarations sought by the applicant. Although it is alleged that the Central Agricultural Tribunal has acted ultra vires in dismissing the appeal of the applicant it has not been stated in his summons or at least in the submissions tendered on his behalf the manner in which the Central Agricultural Tribunal exceeded the powers conferred upon it by the statute.

[15] Every wrong or incorrect order made by a tribunal or a court is not an order given in excess of the jurisdiction conferred upon it. The Central Agricultural Tribunal has been conferred upon the power to entertain and determine appeals from the orders made by the Agricultural Tribunal, by section 48(1) of the Agricultural Landlord and Tenant Act [Cap 270].

[16] Section 48(4) of the said Act provides that the Central Agricultural Tribunal hearing the appeal may order evidence to be adduced before it on a day to be fixed for that purpose and may–

(a) refer the matter back to the Tribunal to make a fresh investigation subject to such direction of law, if any, as the Central Tribunal may think fit;

(b) affirm vary or reverse the award, order or decision of the tribunal, or where a certificate of maximum rent has been issued, affirm, decrease or increase such maximum rent;

(c) summarily dismiss any appeal which, in the opinion of the central Agricultural Tribunal, is without merit or is otherwise scandalous, frivolous or vexatious.

[17] In the instant case the Central Agricultural Tribunal after hearing the parties and considering the respective case of each party dismissed the appeal without costs.

[18] The main ground urged by the applicant in his application for an order of certiorari is that the Central Agricultural Tribunal has misinterpreted section 4 of the Agricultural Landlord and Tenant Act [Cap 270] which I will deal with later in this judgment.

[19] Section 4(1) of the Agricultural Landlord and Tenant Act [Cap 270] reads as follows;

Where a person is in occupation of, and is cultivating, an agricultural holding and such occupation and cultivation has continued before or after 29 December 1967 for a period of not less than 3 years and the landlord has taken no steps to evict him, the onus shall be on the landlord to prove that such occupation was without his consent and if the landlord fails to satisfy such onus of proof, tenancy shall be presumed to exist under the provisions of this act.

[20] In terms of section 2 of the said Act "landlord" means the Government, the Native Land Trusts Board, or any person for the time being entitled to receive the rents and profits of any agricultural land, and includes the personal representatives, executors, administrators and assigns of a land.

[21] The issue for determination here is whether the applicant's occupation of the land and the circumstances under which he cultivated it satisfy the requirements of section 4(1) of the Agricultural Landlord and Tenant Act [Cap 270].

[22] Occupation of a land is the action of entering upon and taking control over it. Under section 4(1) of the Agricultural Landlord and Tenant Act mere cultivation is not sufficient. To draw a presumption under the said section the person who relies on these provisions must cultivate the land while being in occupation of it. In the instant case the applicant came to the land with her mother and lived there with Warda Raju. It is not a disputed fact that the applicant's mother lived on this land with Warda Raju in a de facto relationship. Although the applicant was not a biological child of Warda Raju they were living on the land as members of one family. Therefore, Warda Raju could not have had any reason to evict the applicant from the land. It is also evident that the applicant was not cultivating the land all by himself. There is no material on record that he spent his own money to cultivate and develop this land. The only ground in favour of the applicant is that he has cultivated the land with the concurrence of his mother's de facto husband who was the lessee. There is no evidence that Warda Raju lost control over the land during the continuance of the lease.

[23] It is also important to note that Warda Raju's lease expired in April 2002 and the time between the expiration of the lease and the making of the application to the Agricultural Tribunal is less than three years.

[24] The learned counsel for the applicant relied on the decision of the Supreme Court in the case of Ponsami v Dharam Lingam Reddy[5]. In that case the respondent entered into a share farming agreement with one Ponia Kutti to cultivate the land for three years. Kutti died before the period of three years expired and respondent continued to cultivate the land. Kutti's administrators served on the respondent notice to quit and the respondent applied to the Agricultural Tribunal seeking inter alia, for an assignment of one half of native lease under section 18(2) of the Agricultural Landlord and Tenant Act [Cap 270].

[25] The circumstances under which the respondent in that case entered upon and cultivated the land are different to that of the applicant in this case.

[26] In the instant case the cultivation of the land in question by the applicant does not come within the purview of section 4(1) of the Agricultural Landlord and Tenant Act [Cap 270] and therefore he is not entitled to a lease as claimed by him.

[27] In the circumstances I hold that the allegation that the Central Agricultural Tribunal has misinterpreted section 4 of the Agricultural Landlord and Tenant Act [Cap 270] is without merit.

[28] The learned counsel for the applicant submitted that the learned counsel for the respondent has no status to appear on the basis that the respondent has no interest in the land. By making her a party the applicant had admitted that she had some interest in the property in question and also after making her a party to this application the applicant cannot be heard to say that she had no right to be heard.

[29] For the reasons given above I make the following orders.

ORDERS

1. The Application for judicial review and the other reliefs prayed for by the applicant are refused.
   
2. The applicant will pay the respondent $ 1000.00 as (summarily assessed) costs.
   

....................................
Lyone Seneviratne
JUDGE

^[1] [1982] UKHL 10; [1982] 3 All E.R. 141 at page 154
^[2] [1983] 2 All E.R. 233 at 239
^[3] [1983] UKHL 6; [1984] 3 All E.R. 935
^[4] Administrative Law by Wade and Forsyth –Tenth Edition, at page 510.
^[5] Civil Appeal No. CBV 0001 of 1996; FCA Civil Appeal No. ABU0023 of 95S