Chand v Kumar [2021] FJAGT 1; WD007.2021 (1 October 2021)

IN THE STATUTORY TRIBUNAL, FIJI ISLANDS
SITTING AS THE AGRICULTURAL TRIBUNAL
WESTERN DIVISION AT LAUTOKA

Reference No. WD No. 007 & WD No.008 of 2021

BETWEEN: Ashok Chand of Waiwai, Ba, Farmer.

Applicant

AND: Rohit Kumar of Waiwai, Ba, Farmer.

1^st Respondent

AND: iTaukei Land Trust Board a body corporate duly constituted under the iTaukei
Land Trust Act, Cap 134 of Fiji, Lot 431 Victoria Parade, Suva.

2^nd Respondent

Before: the Resident Magistrate – Mr. Jeremaia N. Lewaravu
Date of Hearing: 26^th August, 2021
Date of Judgment: 1^st October, 2021

Appearance
Messers Niudamu Lawyers for the Applicant
Samuel K Ram Lawyers for the 1^st Respondent
ITLTB Legal Division for 2^nd Respondent

Judgment

1. There are two interlocutory applications before the Tribunal. The Applicant filed an application for maintaining the status quo along with a supporting affidavit on the 15^th of June, 2021. The 1^st Respondent is opposing the application and has filed an Affidavit in Opposition to that effect. Subsequently, the 1^st Respondent filed a motion along with a supporting affidavit on the 23^rd of July, 2021 to strike out the substantive matter. The Applicant is opposing the strike out application and has also filed an affidavit in opposition dated 9^th August, 2021.
   
2. It is important to note that the Applicant filed two substantive applications in this Tribunal for a declaration of tenancy and to fix boundaries in iTaukei Lease No. 25920. This being the Applicant’s own itaukei lease. Despite being served, the 2^nd Respondent has not taken an active role in these proceedings. The non-attendance and non-participation of the 2^nd Respondent is disturbing given its statutory duty.
   

Legal Matrix

WD No. 007

3. The application by the Applicant for a declaration of tenancy is confusing. I have considered all the legal documents filed. Essentially, the Applicant is applying for a declaration of tenancy over his own iTaukei Lease No. 25920. In the case of Bhadur v Autar & Others WD No. 48 of 1978, this Tribunal held that:
   

‘It is absurd to suggest that a person can be both a landlord and his own tenant’.

4. I agree with the 1^st Respondent that the principles espoused in the above stated case is applicable herein.
   

WD No.008

5. The Applicant has also filed an application to fix the boundaries of his subject land. The Applicant is aggrieved that his house site is not included in his iTaukei Lease No. 25920. He is seeking the addition of his house site to his lease.
   
6. The 1^st Respondent is opposing the application. He said that the Applicant’s land is based on the distribution of property (that being iTaukei Lease No. 6452) under the Estate of Somai and the rest of the siblings under iTaukei Lease No. 14995. I note that both of these itaukei leases have expired.
   
7. On this point, the law is clear, that upon the expiry of any valid lease and there being no provision for extension, the subject land will revert back to the landlord absolutely. The landlord at that point has the discretion to deal with the subject land in any manner it may see fit. In essence, any reference to iTaukei Lease No. 14995 and iTaukei Lease No. 6452 herein is irrelevant and immaterial under the circumstances. The legal principles espoused in the case of Gounder v Gounder [2012] FJHC 866 is applicable.
   
8. The 1^st Respondent concedes that the Applicant’s house site is within his iTaukei Lease. There has been a settlement discussion between the parties that was unsuccessful. The 1^st Respondent was advised to surrender his lease for the 2^nd Respondent to do the needful. However, the 1^st Respondent refused and asked for compensation. The question of compensation was relevant under the circumstances, however, it seems to me that the 1^st Respondent was seeking compensation from the wrong party. The 2^nd Respondent has not taken any active role in these proceedings, I am therefore unaware of its stand on the issues raised herein.
   
9. The bottom line is that, both parties agree that there is a dispute as to the boundaries of the two lease holdings. Both parties have subsequently invited this Tribunal for a determination of the same.
   
10. The full orders of the Court is as follows:
    
    1. The application to strike out WD No.007 by the 1^st Respondent is hereby granted.
    2. The application to strike out WD No.008 by the 1^st Respondent is hereby denied.
    100. The application for maintaining the status quo by the Applicant is hereby granted.
    4. The 2^nd Respondent is hereby ordered to conduct a survey of the boundaries of the two lease holdings by the 31^st of October, 2021.
    5. The 2^nd Respondent is further ordered to file the relevant survey report in this Tribunal by the 5^th of November, 2021
    6. Appeal within 28 days.
    7. WD No. 008 is adjourned to the 12^th of November, 2021 for further direction.
       

Ordered Accordingly,

............................................................

Jeremaia N. Lewaravu [Mr.]

RESIDENT MAGISTRATE

1^st October, 2021