State v Pandey, Ex parte Chandra [2004] FJHC 435; HBJ0016.2003L (15 July 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBJ0016 OF 2003L

BETWEEN:

THE STATE

AND:

CHANDRIKA PRASAD PANDEY
1st Respondent

AND:

THE AGRICULTURAL TRIBUNAL
2nd Respondent

AND:

THE CENTRAL AGRICULTURAL TRIBUNAL
3rd Respondent

EX-PARTE: SUBHAG CHANDRA
Applicant

Counsel for the Applicant: Dr. S. Khan
Counsel for the Respondents: Mr. V. Mishra

Date of Hearing: 28 June 2004
Date of Judgment: 15 July 2004

JUDGMENT

The Application

The applicant seeks Judicial Review of the decision of the Agricultural Tribunal (“Tribunal”) dated 21 March 2001 and the decision of the Central Agricultural Tribunal (“CAT”) dated 15 September 2003.

Background

The 1^st respondent is the registered proprietor of the land in DP 5930 being part of CT 17630 at Natovi Sector, Nadi.

The applicant’s mother leased 10 acres of land from the 1^st respondent for 10 years from 1 January 1965. Upon the death of the applicant’s mother, the applicant was the sole beneficiary of her estate and his father, Narpat Singh, was the executor and trustee of her estate.

The applicant and Narpat Singh made an application to the Tribunal on 16 August 1979 to secure an instrument of tenancy of the land leased by the deceased.

Before the Tribunal, the parties reached agreement and the terms of settlement were made an order of the Tribunal on 17 August 1979.

The terms of the settlement relevantly were: -

“(1) The applicant is agreed to give up possession of 4 acres out of 10 acres to the respondents so that the remaining 6 acres shall extend from the boundary between Lot 3 and Lot 4 DP 4497 to align parallel to such boundary.

(2) The respondent shall extend the existing contract of tenancy subject to the variation as set down in paragraph 1 to the late tenant’s successor in title, Subhag Chandra, for a term of 20 years from 1^st day of January 1979 in terms of section 13 of the Agricultural Landlord and Tenant Act at a yearly rental of $200.00 payable in advance by two half yearly installment of $100.00 each, on 1^st January and 1^st July in each year in respect to possess 6 acres.”

The lease expired on 31 December 1998 and the applicant applied to the Tribunal for a further 20 years extension of the lease pursuant to section 13(1) of the Agricultural Landlord and Tenant Act (“ALTA”) which application was dismissed by the Tribunal on 21 March 2001.

The applicant then appealed the decision of the Tribunal to the CAT. The appeal was dismissed by the CAT on 11 September 2003.

The Tribunal and the CAT held the applicant had no right to any further extension of the tenancy pursuant to section 13 of ALTA, as the extension of 20 years pursuant to the terms of settlement of 17 October 1979, extinguished the entitlement of the applicant to extensions under section 13 of ALTA.

The Right to Judicial Review

The relief sought by the applicant is set forth in the statement filed pursuant to Order 53 Rule 3 of the High Court Rules and is there stated to be: -

“....an order of certiorari to quash the purported decisions and/or orders of the Agricultural Tribunal dated 21^st day of March, 2001 and of the Central Agricultural Tribunal dated 15^th day of September, 2003..........as such decisions were made ultra vires the powers and/or jurisdiction of the Tribunal and CAT and arbitrary and/or capricious and/or unreasonable and being contrary to the provisions of the Agricultural Landlord and Tenant Act and the orders and/or decisions of the Tribunal dated 17 October 1979 and from order prohibiting the respondents from implementing the said decisions of the Tribunal and the CAT until further order of the Honourable Court.”

The Tribunal and CAT are both established under ALTA. Part IV of ALTA sets out the powers and the duties of the Tribunal and Part VI provides for the CAT and gives to it all the powers of the Tribunal where it is hearing and determining an appeal from the Tribunal.

The application to the Tribunal by the applicant was pursuant to section 5(1) and section 23 of ALTA. Section 5(1) provides for the Tribunal to make a declaration that the applicant is a tenant and section 23 enables the Tribunal to order that an instrument of tenancy be executed and to specify the existing terms of the contract of tenancy. Section 23 is within Part IV of ALTA.

The issue for determination was the interpretation of Clause 2 of the terms of settlement and section 13(1) of ALTA and this is what both the Tribunal and CAT have done. Clearly such an adjudication is within the powers contained in Part IV and Part V of ALTA.

Order 53 Rule 4(2) of the High Court Rules requires an application for Judicial Review, when the relief sought is certiorari, to be made within 3 months after the date of the proceedings. The determination of the Tribunal was made on 21 March 2001 and the judicial review application was filed on 3 December 2003. Clearly there has been undue delay in the making of the application. Where an appeal is available, such as the appeal from the Tribunal to the CAT, Order 53 Rule 3(6) enables the application to be adjourned pending the determination of the appeal.

The function of this court with respect to this application is not to consider the merits of the determination of the Tribunal and the Cat but is limited to a determination as to whether the Tribunal and the CAT acted within their powers in reaching the decision that they did.

Conclusion

The evidence before the court does not disclose that the CAT has acted ultra vires in dismissing the appeal from the decision of the Tribunal.

There has been an undue delay in making application to this court for judicial review of the decision of the Tribunal and accordingly I refuse to grant any relief. In any event I am of the opinion that the Tribunal, on the evidence before the court, acted within its powers in making the determination that it did.

Orders

1. Application dismissed.

2. Applicant to pay the 1^st respondent’s costs.

JOHN CONNORS
JUDGE

AT LAUTOKA
15 JULY 2004