Jeyasingham v. Jeyasingham (Atukorale, J.)
URBAN COUNCIL, HORANA
COURT OF APPEAL.
RATWATTE, P. AND SENEVIRATNE, J.C. A. APPLICATION 200/800.DECEMBER 9, 1980.
Writ of Certiorari – Application to quash decision of local authority cancelling lease ofstall in public market— Violation of conditions of tease by lessee—Cancellation on thisground— Relationship between lessee and Council contractual—Whether writ lies.
Where the petitioner sought a Writ of Certiorari to quash a decision’ of the localauthority cancelling a lease in her favour of a stall at the public market, Horana,—
(1) On the material before Court the petitioner hart acted in violation of clause 4 of herlease bond and clause VI of a circular issued by the Commissioner of Local Governmentwhich had been communicated to her and had sublet the said stall. The Council hadaccordingly terminated her lease.
Sri Lanka Law Reports
(2) Inasmuch as the relationship between the parties was contractual the petitioner wasnot entitled to the remedy by way of certiorari. Another remedy was open to her.
APPLICATION fora Writ of Certiorari and/or Mandamus and Prohibition.
W. P. Gunatilleke, for the petitioner.
R. C. Gooneratn'e, for the respondent. ■
Cur. adv, vult.
January 16, 1981.
This is an application for a writ of certiorari to quash the decision
of the respondent-council cancelling the lease in favour of thepetitioner of a stall in the Public Market at Horana. The petitionerhas also asked for writs of mandamus and prohibition.
According to the original application filed in this Court on21.02.1980, the petitioner's case is as follows: The petitioner tookon lease from the respondent, stall No. 10 of the Public Market,Horana, fui a period of one year from January 1979 on LeaseBond No. 1001 dated 16.01.1979, which has been produced,marked A. During the course of the year 1979 a person calledGunawathie Weerasinghe, who had been the lessee of stall No. 10for the year 1978, sought employment under the petitioner andthe petitioner engaged her in terms Of CiuuSC 5 of the said Rond AThe respondent informed the petitioner and the other lessees ofthe other stalls that, in terms of a circular issued by the Commissionerof Local Government, the persons who were lessees of stalls in1979 may continue as lessees for the year 1980. The letter sent tothe petitioner has been marked 8. Accordingly the petitionerdeposited with the respondent the monies called for by the letterB, and Lease Bond No. 85 dated 01.02.1980 marked C, wasexecuted. The petitioner in September 1979 gave three monthsnotice of termination of employment to Gunawathie Weerasinghe.As the said Gunawathie continued to remain in the premises thepetitioner's husband, Podisingbo, made a complaint to the Police.At the inquiry Gunawathie is stated to have agreed to vacate thepremises within a month's time. As Gunawathie did not leave thepremises on 01.02.1980, the petitioner's husband, Podisinghomade another complaint to the Police. On the advice of the Policethe petitioner informed the respondent and consequent to thatinformation, officials of the respondent counsel inspected thepremises and are said to have caused Gunawathie to vacate the
CAPadi Nona v. Urban Council, Homta (Rttwitta, P.)143
stall. Gunawathie thereafter petitioned the respondent. Thepetitioner received a letter dated 13.02.1980, produced masked D,from the respondent stating that on investigations carried out bythe respondent and on representations made by GunawathieWeerasinghe, it has been proved that the petitioner had permittedGunawathie Weerasinghe to conduct business in the stall leased tothe petitioner. The petitioner further was informed that as thisamounted to a violation of Clause No. 4 of the lease bond, therespondent was terminating the tease given in favour of thepetitioner. The respondent had thereafter called for tenders forthe lease of stall No. 10, operative from 01.03.1980. The petitionerpleaded that the termination of the lease bond in his favour andthe calling for new tenders for stall No. 10 were in excess of thepowers of the respondent-council.
The respondent in its statement of objections admitted that thepetitioner was the lessee of stall No. 10 for the year 1979. Therespondent went on to state that Gunawathie Weerasinghe was thelessee of stall No. 10 for the year 1977 and her son Anura was thelessee for the year 1978. The respondent pleaded that in breach ofthe condition of the lease bond, the petitioner had sub-let stallNo. 10 to Gunawathie Weerasinghe. In proof of the sub-letting,Gunawathie had handed over to the respondent the rent receiptsand electricity bills for the year 1S7S, which were in Gunawathie'scustody. These documents have been produced marked R1 toR10. According to Gunawathie, she had paid the rents and theelectricity bills in the name of the petitioner. As the respondentwas satisfied on investigations made by it that Gunawathie hadcarried on business in these premises for a long period of time, therespondent had terminated the lease, as tire petitioner hadviolated Clause 4 of the Lease Bond.
When this application came up for argument in this Court on
counsel for-the petitioner moved to file an amendedpetition and affidavit. This was allowed and she was granted timetill 03.12.1980 to file amended papers. Counsel for the respondentmoved that he be permitted to produce at the hearing a certifiedcopy of the statement made to the Police by the petitioner'shusband, Podisingho. Counsel for the petitioner did not object,and this application too was allowed. The amended petition andaffidavit were filed on 03.12.1980. In the amended petition thecircular of the Commissioner of Local Government referred to inthe letter B produced with the original petition, has been
144Sri Lanka Law Reports(1981) 2 S. L. R.
produced marked B1. in paragraph 8 of the amended petition thepetitioner states that.in January 1980 a dispute arose betweenGUhaVvathife Weerasinghe "who carried on business belonging tothe petitioner temporarily in Room No. 10", with regard to thesaid premises and the said Gunawathie on 03.01.1980 gaveanundertaking to the Horana(l Pplice to. vacate premises on01.0^.198Q. Gunawathie's statement has been produced markedP6. The petitioner complains that the respondent's decision, toterminate‘the lease was taken without any inquiry horn thepetitioner and without granting the, petitioner any opportunity tobe heard on .the matter.
The contention of learned counsel for the petitioner was thatit was in terms of the letter B. and the Circular B1 that thepetitioner was granted the lease for the year 1980. He argued thatin terms of B1, if the rents are paid in due time and no otherconditions are violated the petitioner was entitled to continue asthe lessee of stall No.. 10. He submitted that before the letter Ddated 13.02.1980.terminating the lease was sent to the petitioner,there was a duty cast oh thi? respondent to-hold an inquiry andgive the petitioner an opportunity to show, cause. Learnedcounsel further contended that the respondent merely acted onrepresentations made by Gunawathie. There was no proof that thepetitioner had sub-let the stall to GunawathiR. Counsel arguedthat the mere fact that Gunawathie occupied the premises was notsufficient to establish a sub-letting. The allegation against thepetitioner was that sfcve had violated Clause 4 of the LeaseBond C by sub-letting the stall to Gunawathie. In my view theaverments in paragraph 8 of the amended petition do notsupport the contention pf learned counsel for the petitioner.In this paragraph the-petitioner, states that Gunawathie carriedon the business belonging to the petitioner, temporarily in stallNo. 10. The position taken up by the petitioner in paragraph'8 of the amended ‘ petition is contradictory to the positiontaken up by the petitioner in paragraph 2 of the originalpetition, in which the petitioner stated that Gunawathie wasemplbyed by her in term of Clause 5 of the Lease Bond. Learnedcounsel for the respondent submitted that this change of frontwas due to the fact that he had moved on 26.11.1980 to producea copy of tfie complaint- made by Podisingho to the Police. Inthis‘complaint dated 02.01.1980 the petitioner's husband hadstated to the Police that stall No. 10 had been given by himto Gunawathig. Weerasinghe fpr the purpose uf carrying on
CAPodi Nona v. Urban Council. Horana (Ratmtte. PJ145
therein the business on the undertaking that Gunawathie wouldvacate it on being requested to do so. Podisingho had furtherstated that the stall had been given to Gunawathie about anyear prior to his making the complaint. Podisingho went onto state that he had requested Gunawajthie about two monthsearlier to vacate the stall by .01.01.1980, but that she had notdone so. Podisingho stated in his complaint that he had chargedno rent from Gunawathie. As a result of this complaint, thePolice had recorded a statement from Gunawathie which has beenproduced by the netitioner rr«>rKeg rt>. In P6 Gunawathie statesmat she took stall No. 10 from the petitioner and carried onbusiness therein. She paid to the Urban Council the rent and theelectricity bills in respect of stall No. 10 in the petitioner's name.
Though the petitioner denied that Gunawathie paid the rents,Gunawathie's statement in P6 is supported by the fact that thereceipts R1 to R10 were in her custody and handed over byher to the respondent as stated in paragraph 3 of the statementof objections.
Apart from Clause 4 of the lease bond. Clause VI of theCircular 3 also strictly prohibits sub-letting by a lessee of a stallin the market and states that if such a stall is sub-let the leasewill be cancelled. The petitioner has not explained why sheallowed Gunawathie to occupy the stall and carry on the businesseven though temporarily. I am of the view that there is substancein the submission of learned counsel for the respondent thatthere had been a clear violation of Clause 4 of the lease bondand Clause VI of the Circular B1.
In any event learned counsel for the respondent submittedthat the respondent was not exercising a quasi judicial functionand that there was no necessity to hear the petitioner beforethe respondent took the decision to cancel the lease bond. Hesubmitted that this was purely a contract between the parties.The respondent was the owner of the public market and wasentitled to lease out the stalls in the market by calling for tenders.If the petitioner felt that there was a breach of the contract,she had a remedy in the proper forum for breach of agreement.Counsel further relied on Clause 9 of the lease bond which statesthat the Chairman of the Urban Council has the right to terminatethe lease after giving 7 days notice if the lessee fails to fulfilthe conditions of the lease. I am of the view that the relationship
Sri Lanka Law Rtports
(1981) 2 S.L.R.
between the parties was contractual‘and accordingly that thepetitioner is not entitled to obtain, a writ of certiorari. Anotherremedy was open to her.
For these reasons I am of opinion that the petitioner has notrijade out a case for the relief asked for by her. The applicationdismissed with costs fixed at Rs. 210.
SENEVIRATNE. J.-l agree.Application dismissed.
PODI NONA v. URBAN COUNCIL, HORANA