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Kumar v Central Agricultural Tribunal [2022] FJHC 95; HBJ02.2021 (9 March 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

HBJ 02 of 2021

BETWEEN:

KAMLESH KUMAR (SOLE ADMINISTRATOR OF THE ESTATE OF KHEDU)
PETITIONER

A N D:

CENTRAL AGRICULTURAL TRIBUNAL

1^ST RESPONDENT

AIREEN LATA and SAHIREEN SHALESHNI LATA of Navo Nadi.

2^ND RESPONDENT

THE DIRECTOR OF LANDS

3^RD RESPONDENT

THE ATTORNEY GENERAL OF FIJI

4^TH DEFENDANT

Counsel
Mr. Nandan: for the Applicant
Ms Raman J: for the first named second Respondent
Mr. Mohammed Z: for the second named second Respondent
Mr. Chauhan V: for the third and fourth Respondent

Date of Hearing: 26 January 2022
Date of Ruling: 09 March 2022

R U L I N G

INTRODUCTION

1. This is an application for leave to issue judicial review. Order 53 Rule 3 of the High Court Rules 1998 provides:
   

3(1) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.

2. The Court will grant leave if:
   
   • (i) The applicant has sufficient interest in the matter to which the application relates (Order 53 Rule 3 (5))
   • (ii) The applicant has an arguable case
   • (iii) There is no other alternative remedy.
     
3. It is also important that the application for leave is filed within time.
   

BACKGROUND

4. The applicant had applied to the Agricultural Tribunal in Lautoka seeking a declaration of Tenancy. However, the Tribunal dismissed the application under Regulation 33.
   
5. Regulation 33 of the Agricultural Landlord and Tenant (Tribunal Procedure) Regulations provides:

33. Where, in the opinion of autribunal, the reference discloses no bona fide right to the tribunal's intervention, the tribunal may, for reasons to be promulgated, after hearing the applicant, proceed directly to a final determination:

Provided that such decision shall be served by the tribunal on all the parties.

6. It appears that the Tribunal’s decision was premised on the fact that the head lease in question had expired in 2013 and that the applicant had only lodged his application for a declaration of tenancy under section 5 of the Act in 2018.
   
7. Following the Tribunal’s decision, the applicant then appealed the decision to the Central Agricultural Tribunal. However, the Central Agricultural Tribunal simply upheld the Tribunal’s decision.
   

GROUNDS UPON WHICH THE APPLICANT SEEKS LEAVE

8. The grounds that the applicant relies on are:
   • (1) The Central Agricultural Tribunal (the Tribunal) failed to take into account relevant considerations specifically that:
     
     1. The case reference WD No: 8 of 2019 (the Reference) was filed on Form No. 6 seeking a declaration of tenancy and/or to secure an instrument of tenancy under Section 5 (1) and 23 of Agricultural Landlord and Tenants Act (ALTA).
        
     2. Section 5 91) of ALTA provides that a person who maintains that he is a tenant can apply for a declaration of tenancy if the landlord refuses to accept him as such.
        
     100. A presumption arises under Section 4 of ALTA if the person applying is in occupation of and is cultivating an agricultural holding for a period of not less than three years and that Section 4 (2) provides that payment of money in absence of proof to the contrary may be presumed to be rent.
          
     4. There was not sufficient evidence before the Tribunal for the Tribunal to make finding on the matters raised by the Reference such as:
        
        • (i) Whether the Applicant was in occupation of and was cultivating the agricultural holding in question for a period of not less than three years.
        • (ii) Whether the Applicant was paying rent to the Director of Land at material times.
        • (iii) Whether the Applicant was entitled to a declaration of tenancy under Section 5 (1) of ALTA.
          
     5. The Applicant claimed in the Form 6 filed in the Reference that the Applicant had been in occupation and had been cultivating the agricultural holding in question for not less than three years and had been paying rent to the Director of Lands.
        
   • (2) The Tribunal took into account irrelevant considerations specifically:
     
     1. The Tribunal took into account the fact that the Agricultural Tribunal sitting in the Western Division at Lautoka had relied on the principle enunciated in Gounder v Gounder [2010] FJHC 866 and failed to note that the said principle had no relevance in the application before the Agricultural Tribunal sitting in the Western Division at Lautoka or to the Reference;
        
     2. The Tribunal took into account the principle enunciated in Gounder v Gounder [2012] FJHC 866 which has no relevance in the application before the Agricultural Tribunal sitting in the Western Division at Lautoka or to the Reference.
        
   • (3) The Tribunal erred the law and/or exceeded its jurisdiction in finding that the Agricultural Tribunal sitting in the Western Division in Lautoka had before it sufficient material to decide the question whether the Applicant was entitled to an extension of lease and or a declaration of tenancy.
     
   • (4) The Tribunal failed to consider that the Agricultural Tribunal sitting in the Western Division in Lautoka wrongly summarily dismissed the Reference by relying on the Regulation 33 of the Agricultural Landlord and Tenants (Tribunal Procedure) Regulation and thereby deprived the Applicant of its legitimate expectations of due process and full and proper hearing of the Reference.
     
9. Mr. Mohammed highlights that after the head lease in question expired, the land was subdivided and the applicant was given a fair share as a sitting tenant. He submits that once the land reverts to the Director of Land, the applicant ceases to have any interest whatsoever over the land.
   

THE FULL BACKGROUND

10. Apparently, the parties in this case have been embroiled in other proceedings in the High Court which I will not go into. It is not clear to me if the Tribunal had the full facts before him.
    
11. It would appear to me that, had the Tribunal not exercised his discretion under Regulation 33, and opted to proceed for s full hearing, he would have reached the same decision based on the full facts.
    
12. At the hearing before me, more facts began to emerge from counsel for the respondents. These facts, I gather, are not in dispute based on the other proceedings between the parties in the High Court. These facts are as follows:
    
    • (i) after the head lease expired in 2013, the Director of Lands then started to take steps to subdivide the land into smaller leases.
    • (ii) notably, as Ms. Raman pointed out, the Director of Lands had indicated to all sitting tenants well before the head lease expired in 2013 that he was going to partition the land and give priority to the sitting tenants.
    • (iii) after partitioning the land, the Director then began to issue Approval Notices on these to the tenants, including the applicants and the respondents in this case.
    • (iv) it was after the Director had issued Approval Notices to the sitting tenants in 2018, including the applicant, the applicant then applied for a declaration of tenancy before the Agricultural Tribunal.
      
13. It appears to be uncontroverted that the head lease in question, which had expired in 2013, was over a large tract of land which was several hectares in size. During the said lease, there were many sub-tenants occupying various parcels of the land. Amongst these, were the applicants and also the respondents? There were others who are not part of these proceedings before me.
    
    14. Ms. Raman points out, which is not disputed, that the applicant’s elderly mother was even allotted a separate plot of land over which she has been given an Approval Notice by the Director of Lands.
        
    15. Hence, what was once a single state lease - which expired in 2013 – is now fragmented into smaller approval notices in 2018 in favour of the sitting tenants which includes the applicant and the respondents?
        
    16. One can only conclude from the full background of the situation that the applicant only filed the application for a declaration of tenancy because he was not satisfied with his allotment from the Director of Lands (even though the elderly mother was given her own separate allotment).
        
    17. I think if all this had been placed before the Tribunal before the hearing, the Tribunal would have been on an even firmer ground to conclude that “the reference discloses no bona fide right to the tribunal's intervention” in terms of Regulation 33.
        

DOES THE APPLICANT HAVE AN ARGUABLE CASE?

18. There are no contentious issues of fact in this case. The pure legal questions which the applicant raises are as follows:
    
    • (i) whether, once an agricultural head lease expires, is it still open to an applicant who was allowed to come into occupation and cultivation of the land, to file an application for a declaration of tenancy?
      
    • (ii) whether, a new lessee who takes over a new lease over the land in question, from the predecessor in title whose lease has expired, takes the new lease subject to any pre-existing ALTA claim under section 5 of ALTA?
      
19. Section 5 of the Agricultural Landlord & Tenant Act provides:
    

5.-(1) A person who maintains that he is a tenant and whose landlord refuses to accept him as such may apply to a tribunal for a declaration that he is a tenant and, if the tribunal makes such a declaration, the tenancy shall be deemed to have commenced when the tenant first occupied the land:

Provided that rent shall only be recoverable where the tribunal is satisfied that it is just and reasonable so to order.

(Substituted by 35 of 1976, s. 3.)

(2) Where an agricultural holding is held by a Fijian according to native custom, he or a person authorised in writing by the Native Land Trust Board may apply to a tribunal for a declaration that a tenancy under the provisions of this Act exist and from a date specified in such declaration, which shall not have retrospective effect, the provisions of this Act shall apply to such holding and such as rent as may be assessed and fixed by the tribunal in respect thereof shall be paid to the Native Land Trust Board.

20. To obtain a declaration of tenancy as such, the applicant must meet the requirements of section 4 of the Act which are as follows:
    

4.-(1) 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:

Provided that any such steps taken between the 20 June 1966 and 29 December 1967, shall be no bar to the operation of this subsection.

(2) Where payment in money or in kind to a landlord by a person occupying any of the land of such landlord is proved, such payment shall, in the absence of proof to the contrary, be presumed to be rent.

21. Mr. Nandan argues as follows:
    

22. In my view, had the reference proceeded to a full hearing, it would have been open to the Director of Lands to argue that the only reason why he took no steps to evict the applicant was because the Director had promised the Applicant as well as other sitting tenants that he would be carving out the land in question into smaller approval notices/leases and that he would be issuing each of them a separate lease. As it turned out, the Director did fulfill this.
    

CONCLUSION

23. I note here the argument by Ms Raman that, although the application was filed within three months, it was not “prompt” in the circumstances of this case. I find that a very strong and persuasive argument but I choose not to comment on it at this time. In my view, when the facts are considered in totality, it is clear that this review would be a pure academic exercise but which would have no bearing on the applicants situation with regards to the land in question.
    
24. Leave refused. Applicant to pay each of the respondents their costs which I summarily assess at $400-00 each.
    

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

Anare Tuilevuka

JUDGE

Lautoka

09 March 2022