Pandey v Chandra [2001] FJLawRp 24; [2001] 1 FLR 120 (9 March 2001)

CHANDRIKA PRASAD PANDEY v SUBHAG CHANDRA

High Court Civil Jurisdiction

31 August 2000, 9 March 2001

HBC0311/99L

Landlord and tenant – summary eviction – Defendant to show cause why he should not give up possession – whether tenant can obtain an extension of tenancy upon a declaration of tenancy by the Agricultural Tribunal - Land Transfer Act ss169, 172, Agricultural Landlord and Tenant Act s13

By summons, the Plaintiff required the Defendant to show cause why he should not give up possession of a tenancy of 6 acres of land. The Plaintiff claimed indefeasibility of title but following Soma Raju v Bhajan Lal the Court determined that rights to occupation under the amended Agricultural Landlord and Tenant Act are not defeated by indefeasibility provisions of the Land Transfer Act. There appeared clearly a dispute whether a tenant could obtain a 20 year extension of tenancy upon a declaration of tenancy by the Agricultural Tribunal. The Defendant had applied for such an extension. The Court found in the circumstances the Defendant had shown cause.

Held – The right to occupation under the amended Agricultural Landlord and Tenant Act are independent of the indefeasibility provisions of the Land Transfer Act, so where a Defendant has applied to the Agricultural Tribunal for an extension of tenancy under section 13 of the Agricultural Landlord and Tenant Act, he has shown cause why he should not give up possession of a tenancy under s172 of the Land Transfer Act.

Cases referred to in Judgment

Bal Ram Pande and Devendra Kumar Pande v Jai Ram Singh & Anor. [1997] ABU 0032/96
Soma Raju v Bhajan Lal (1976) 22 FLR 163

Ramesh Prakash for the Plaintiff
Dr Sahu Khan for the Defendant

JUDGMENT

Prakash, J

This is an application, via a summons dated 19 August 1999, by the Plaintiff for the Defendant to show cause why he should not give up possession to the Plaintiff of the approximate six acres of land occupied by him. The land in question is part of the Certificate of Title No. 24339 being that piece of land known as "Naisosovu" (part of) containing seven hectares seven thousand eight hundred and seventy six square metres, situated in the District of Ba in the Island of Viti Levu and being lot on deposited plan number 5930. The summons is filed under Section 169 of the Land Transfer Act. Affidavits have been filed by the parties. By consent written submissions were ordered and filed. Under Section 172 of the Land Transfer Act the Defendant has to show cause why he refuses to give possession of such land.

It is clear from the affidavits that the dispute between the parties revolves around an order by the Agricultural Tribunal dated 17/10/79 incorporating the terms of settlement between the parties. This Order is attached to the Affidavit of the Plaintiff, and acknowledged by the Defendant. The essential dispute between the parties is the interpretation of para 2 of the agreement which states:

"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 1st day of January 1979 in terms of section 13 of the Agricultural Landlord and Tenant Act at yearly rental..."

In the Courts view much of the Plaintiff's submissions regarding indefeasibility of title is not relevant to the determination of this application. As was stated by the Fiji Court of Appeal in the case of Soma Raju v Bhajan Lal 22 FLR 163 at p174: "... the rights to occupation of agricultural land under ALTO exist in law independently of the Land Transfer Act and ... prevail against the indefeasibility provisions of the Land Transfer Act." The amendments to ALTO, incoporated in ALTA, did not vary this statutory scheme. The crux of the matter and confusion arising is contained in the Plaintiff's first submissions (dated 14 July 2000). At page 4 the Plaintiff submits: "They (meaning Defendant) applied for a declaration of tenancy. They obtained a declaration of an extension of tenancy for 20 years by consent which was granted pursuant to Section 13 of the Agricultural Landlord and Tenant Act." It further submits at p5 "Section 13 provides for a single extension." Section 13(1) of ALTA provides:

"Subject to the provisions of this Act relating to the termination of a contract of tenancy, a tenant holding under a contract of tenancy created before or extended pursuant to the provisions of this Act in force before the commencement of the Agricultural Landlord and Tenant (Amendment) Act 1976, shall be entitled to be granted a single extension (or a further extension, as the case may be) of his contract of tenancy for a period of twenty years,..."

However, the Defendant argues that what the Tribunal order of 17/10/79 did was to declare the existing contract of tenancy between the parties, which was for 20 years. Further, that under Section 13 of ALTA it was entitled to an extension for 20 years. It is clear from letters between the parties, attached in the affidavits, that this is the bone of contention. The FCA case of Bal Ram Pande and Devendra Kumar Pande v Jai Ram Singh & Anor. supports the Defendant's contention that if the existing contract of tenancy, declared by the Agricultural Tribunal, was for 20 years than he is entitled to an extension of 20 years under Section 13 of ALTA. The Defendant had made an application to the Agricultural Tribunal on 5 January 1999 for a Declaration of Tenancy. It is clear that the parties have a dispute about their tenancy. The matter has been referred to the Agricultural Tribunal. It is best that the Tribunal determine that matter in view of its Order of 17/10/79.

In the Court's view the Defendant has satisfied the requirements of s172 of the Land Transfer Act. The summons is dismissed with costs to the Defendant, to be taxed if not agreed.

Application dismissed.

Marie Chan