Pratap v Lal [2005] FJHC 633; HBJ0012.2004 (29 July 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
JUDICIAL REVIEW

ACTION NO. HBJ0012 OF 2004

BETWEEN:

RANA PRATAP
1ST RESPONDENT

CENTRAL AGRICULTURAL TRIBUNAL
2ND RESPONDENT

AND:

VIJAY KUMAR LAL
APPLICANT

Mr S K Ram for the Applicant
Mr M S Sahu Khan for the 1st Respondent

Date of Hearing: 30 June 2005
Date of Judgment: 29 July 2005

JUDGMENT OF FINNIGAN J

This is an application for leave to seek Judicial Review of a decision of the Central Agricultural Tribunal dated 13 April 2004. It has been heard with, and is decided with, an application for Judicial Review made by the 1^st Respondent covering the same subject matter.

In that other matter, HBJ0013 of 2004 the applicants sought an order quashing the decision, and substituting a decision to the same effect but excluding a finding about the termination date of the tenancy concerned.

The present application seeks leave to have the whole decision quashed so that the lower tribunal finding that there is no tenancy will be reinstated. Counsel submits that not only could the Central Agricultural Tribunal not grant the extension of 20 years from 1989 to 2009, but it exceeded its jurisdiction, overlooked some matters and took into consideration irrelevant matters and purported to extend a tenancy without declaring a tenancy which was the issue to be decided.

Decision

I first remind myself that the Central Agricultural Tribunal is a specialist tribunal that operates in its own specialized area of law. Its deliberations are not lightly to be disturbed by this Court. I accept however from the authorities cited to me, as must the tribunal, that its determinations are reviewable for error of law in the exercise of its jurisdiction as well as for error of law going to jurisdiction.

To master what has happened here I have considered the evidence that was given before the inferior tribunal, the Agricultural Tribunal, the decision of the Agricultural Tribunal, the submissions made to me by both Counsel in both this application and the related application HBJ0013 of 2004 and the authorities that were put before me by Counsel. The following are my findings.

Rana Pratap and Ram Narayan applied to the Agricultural Tribunal under Section 5 of the ALTA as claiming tenants against a purported landlord who refused to accept them. Section 5[1] required that they come to the tribunal as claiming tenants i.e. as persons who had made a claim that they were tenants. So far as the evidence reveals they had not made that claim before they made it in the tribunal.

Section 23 [1] [b] of ALTA required them to come to the Agricultural Tribunal as persons who had previously sought a written tenancy agreement from their purported landlord and to come to the tribunal only if they had failed to get one. In their application to the Agricultural Tribunal they said that they had done so but before the tribunal they gave no evidence to turn that claim into a fact. From the tenor of the evidence I think they had not done so and for this second reason their application in the Agricultural Tribunal was premature.

All of this has significance against the backdrop of the evidence. They had been acting as tenants and had been doing so since 1986, the lease holder had allowed them to be there as if they were tenants and the time had come when the lease holder made it clear that he wanted them to leave. The evidence shows their there predecessor [Ram Garib] had a 20 year tenancy under the original landlord [Brij Lal] from 30 June 1969 until the 29 June 1989. The 2 claimants had been in actual occupation of that land since 1986, but had not obtained a new tenancy agreement. In 1993 Vijay Kumar Lal, son of Brij Lal had his father prepare a notice to evict the claimants which gave them 3 more seasons after which they had to leave the land. Whether this notice was delivered to them or not is left moot by the evidence. 2 years later in 1995 Vijay Kumar Lal became the lease holder by transfer from his father. The following year 1996 he tried to evict the claimants pursuant to the 3 years’ notice which he had asked his father to give them in 1993. The claimants prevented him by injunction and filed their application in the Agricultural Tribunal for a declaration of a tenancy.

It is a relevant fact that for 10 years since 1986 neither he nor his father had picked up any rents although the claimants say they were paying it for that period to a firm of solicitors.

Those being the relevant factors both factual and legal as I see them, the Agricultural Tribunal seems to have reached the right conclusion in refusing to grant or declare a tenancy. That however is not a reason by itself to overturn the decision of the Central Agricultural Tribunal. I think that the latter tribunal issued a careful and reasoned decision but one that on its face was in error of law in the exercise of its jurisdiction.

I think it made an error (1) in not establishing that the applicants had previously claimed before coming to the Agricultural Tribunal that they were tenants pursuant to Section 5 (1) of ALTA, and (2) in proceeding without evidence of a request by the claimants to the purported landlord for a written tenancy agreement pursuant to Section 23 (1) (b) and (3) in overlooking that Vijay Kumar Lal had not consented to their remaining but had in fact tried to remove them [regardless of whether they received the 1993 notice], pursuant to Section 4(1).

The consequences of this may be serious for the claimants but I am bound by my findings to grant the application of Vijay Kumar Lal. The decision of the Central Agricultural Tribunal is quashed and I declare that the decision of the Agricultural Tribunal is reinstated and becomes the judgment of this Court.

Costs are allowed to the successful applicant which I summarily assess at $500.00.

D.D. Finnigan
JUDGE

At Lautoka
29 July 2005