X’qalet il-Qorti Kostituzzjonali f’din is-sentenza?
Inizjalment, il-Prim’Awla tal-Qorti Ċivili fil-kompetenza kostituzzjonali kienet sabet li d-disposizzjonijiet tal-Art. 3, 4 u 14 tal-Att dwar it-Tiġdid ta’ Kiri ta’ Raba’ [Kap. 199] jiksru l-jeddijiet tal-atturi mħarsa taħt l-Art. 39 tal-Kostituzzjoni ta’ Malta, l-Art. 6 tal-Konvenzjoni Ewropea għall-Protezzjoni tad-Drittijiet tal-Bniedem u tal-Libertajiet Fundamentali [il-Konvenzjoni], u l-Art. 1 tal-Ewwel Protokoll tal-Konvenzjoni [l-Ewwel Protokoll], u tat rimedju għal dak il-ksur. Is-sid ingħata wkoll kumpens ta’ €100,000.
Dawn id-dispozizzjonijiet jghidu dan (se nirriproduċihom bil-verzjoni Ingliża):
L-Artikolu 3 tal-Kap 199 jgħid dan:
“3.(1) Subject to the provisions of this Act, where a lessor desires to make any change in the conditions of a lease on the expiration of its term, unless an agreement in writing is reached with the tenant, he shall apply to the Board by means of an application containing in detail the proposed changes, filed not later than three months before the date on which the term expires
(2) The Board shall not approve any new conditions contained in any application if it is proved that -
(a) such new conditions would be justified only in view of improvements of a permanent character carried out in the agricultural land, during the period of eight years immediately preceding the date of termination, by the tenant himself or by a member of the family, without their having been under any obligation to effect those improvements; or
(b) such new conditions would be justified only in view of improvements of a permanent character carried out in the agricultural land by the use of funds provided by the Government or on behalf of the Government in the form of a grant or in any other form which, subject to compliance with the conditions governing the provision of such funds, does not involve repayment; or
(c) such new conditions would not be equitable by comparison with conditions of lease prevailing incomparable fields in the same part of the Island,having regard principally to the average quality and depth of the soil, the nature of the subsoil, the direction in which sloping agricultural land is facing,the accessibility to the road and its distance from the closest village.
(3) The Board may, instead of rejecting the new conditions proposed by the lessor, modify and approve them to the extent justified by the application of the provisions contained in paragraphs (a), (b)and(c) of the last preceding sub-article:
Provided that in no case shall such conditions be less favourable to the lessor than those of the last preceding lease.”
L-Artikolu 4 tal-Kap 199 jgħid dan:
“4.(1) Subject to the provisions of this Act, where a lessor desires to resume possession of any agricultural land, unless the tenant has agreed in writing both as regards the termination and as regards the compensation due, he shall apply to the Board by means of an application containing –
(a) detailed grounds for such termination, and
(b) a demand for the liquidation of any compensation payable under the provisions of this article,and filed not later than three months before the date on which the current lease terminates:
Provided that, where any such lease does not terminate on the 15th day of August of any year, no decision approving such resumption of possession shall be carried into effect before the 15thday of August following the date of the termination of the lease then current.
(2) The Board shall allow the lessor’s application if the lessor proves that –
(a) he requires the agricultural land to be used for agricultural purposes by himself personally or by any member of the family personally for a period of not less than four consecutive years starting immediatelyf ollowing the date of termination; or
(b) he requires the agricultural land, provided it is not irrigable land, for the construction thereon of buildings for dwelling, business or industrial purposes; or
(c) the agricultural land was sublet or the lease thereof transferred without the consent of the lessor to any person other than a co-tenant thereof or a member of the family; or
(d) during the two years immediately preceding the date of termination, the field was allowed to lie fallow for at least twelve consecutive calendar months; or
(e) during the two years immediately preceding the date of termination, the tenant has failed, in respect of two or more terms, to pay the rent, on each occasion, within fifteen days from the day on which the lessor has called upon him in writing for payment; or
(f) during the two years immediately preceding the date of termination, the tenant, being bound to repair and maintain the walls of the agricultural land, failed to fulfil such obligation or habitually disregarded any other conditions of the lease or deliberately or through negligence caused or allowed to be caused damage,other than damage of small importance, to any fruit-trees in the agricultural land:Provided that the circumstance mentioned under paragraph (a) shall not be a sufficient reason to allow the lessor’s application,if the tenant proves that the agricultural land in question is an important source of his and his family’s livelihood and if the Board is satisfied that the tenant would suffer a greater hardship than the lessor were the application to be allowed:
Provided further that, where the agricultural land includes a farmhouse which is used by the tenant as his and his family’s sole place of residence, the circumstance mentioned under paragraph (b) shall not be a sufficient reason to allow the lessor’s application unless the tenant is allowed to retain possession of such farmhouse at the rent and under conditions to be established by the Board or is provided by the lessor alternative accommodation reasonably suitable to his means and the means of his family and to their needs as regards extent.
(3) Where only part of the agricultural land is required for any of the purposes mentioned in subarticle (2)(a)or (b) and the area of the remaining part of such land exceeds 1124 square metres, the tenant may ask the Board and the Board shall order that the lease be renewed in respect of such remaining part of the agricultural land, under such conditions as the Board, having regard to the conditions of the last preceding lease, may deem fair to establish.
(4) Where the lessor resumes possession of agricultural land or a part thereof by virtue of a decision of the Board based on subarticle (2(a)), he shall pay to the tenant a fair compensation in respect of any agricultural improvement carried out by the tenant or by a member of the family in the said agricultural land or part thereof during the period of eight consecutive years immediately preceding the date of termination.
(5) Where the lessor resumes possession of the agricultural land or a part thereof by virtue of a decision of the Board based on subarticle (2)(b), he shall pay to the tenant a fair compensation as provided in the last preceding subarticle and, in addition, an amount equal to the value of the products gathered by the tenant or by a member of the family from the said agricultural land or part thereof, after deduction of the expenses incurred towards its cultivation, in the last four years immediately preceding the date of termination:
Provided that there shall not be deducted as part of such expenses the cost of the tenant’s own labour or of the labour of any member of the family in the agricultural land or part thereof.
(6) The amount payable under the provision of subarticle (4) or(5) shall be determined by the Board, subject to an appeal as is provided under article 10. Such amount shall be paid to the tenant within one month from the date on which the decision awarding resumption of possession becomes final in all its parts. In default of such payment within such time the said decision shall be of no effect whatsoever.
(7) If the tenant retakes possession of any agricultural land or apart thereof by virtue of a decision of the Board under article 13, he shall pay back to the lessor any amount received in respect of the agricultural land or part thereof in terms of subarticle (4) or (5)."
L-Artikolu 14 tal-Kap 199 jgħid dan:
"14.Any clause or condition depriving the tenant of any benefitconferred by this Act, whether such clause or condition has beenstipulated prior to the commencement of this Act or after suchcommencement, shall be null and void."
B’rejazzjoni għas-sentenza tal-Prim’Awla, l-Avukat ta’ l-Istat intavola appell. L-istess għamlu is-sidien tal-art, permezz ta’ appell inċidentali.
F’dak li jirrigwardja t-talbiet ta’ l-Avukat ta’ l-Istat, il-Qorti ta’ l-Appell xorta waħda ikkonfermat sa fejn kien jikkonċerna l-‘ksur’ tal-imsemmija disposti iżda mbagħad iddeċidiet illi kumpens ta’ għoxrin elf ewro (€20,000) għad-danni materjali u elfejn ewro (€2,000) għad-danni materjali, b’kollox tnejn u għoxrin elf ewro (€22,000), ikun tajjeb u biżżejjed fiċ-ċirkostanzi ta’ dan il-każ. [Kif ingħad, l-ewwel Qorti illikwidat I-ammont ta’ €100,000].
Madankollu, dak li naħseb li huwa ferm aktar interessanti kien l-appell inċidentali tas- sidien. Dan għaliex filwaqt li l-Qorti kkonkludiet li ‘kwistjonijiet dwar jekk il-kerrej għandux titolu biex ikompli jżomm ir-raba’ jew, jekk għandu jiġi żgumbrat, jistħoqqlux jew le kumpens, huma materja fil-kompetenza tal-qrati jew tribunali ordinarji’, żiedet tgħid li l-Art. 3, 4 u 14 tal-Kap. 199 ma jagħtux jedd ta’ rilokazzjoni obbligatorja lill-inkwilin (bħalma dejjem fhimna sal-lum). B’din il-frazi, l-Art. 3, 4 u 14 tal-Kap. 199 gew reżi ineffikaċi.
F’dan l-istadju huwa nteressanti kif se jirrejaġixxi l-Parlament għal din is-sentenza.
Dr Robert Musumeci huwa perit, avukat u ottjena PhD fil-Liġi ta’ l-Ippjanar u Żvilupp. Huwa jgħallem dan is-suġġett fil-Fakulta tal-Liġi fl-Universita’ ta’ Malta.
