Mowjood v. Pussadentya
PUSSADENIYA AND ANOTHER
SHARVANANDA. C. J.. ATUKORALE. J. AND SENEVIRATNE J.
S.C. NOS. 57/86. 58/86. 59/86. 62/86. 72/86.
C.A. NOS. 73/86. 77/86. 127/86, 81/86. and 48/86.
D C. MT. LAVINIA NOS. 1008/RE. 1286/RE. 1513/RE. 616/RE. 1368/RE.
AUGUST 25. 26 and 27. 1987
Writs of certiorari, mandamus. prohibition-Abuse of power- Unreasonable use ofdiscretion-Right-Legitimate expectation.
Landlord and tenant-Premises whose standard rent does not exceed Rs.100/— Ejectment on ground of reasonable requirement-Execution-Notice-S. 347CPC-Alternative accommodation-Notification by Commissioner of NationalHousing-Requisites to which alternative accommodations offered by Commissioner ofNational Housing should conform-Alternative accomodation onhire-purchase-alternative accommodation not belonging to Commissioner of NationalHousing-Interpretation-Section 22(1). 22(1) (bb). (22(1A). 22(1C). 22(1E) of RentAct No. 7 of 1972 (amended by Act No. 10 of 1977 and Act No. 55 of1980) – Restoration to possession of evicted tenant.
The Legislature has made it its special concern to protect tenants in occupation ofpremises whose standard rent does not exceed Rs. 100/-. Hence a purposiveinterpretation of the statute to give effect to the intention of the legislature should beadopted.
Where judgment for ejectment of the tenant had been entered in respect of premiseswhose standard rent did not exceed Rs. 100/- on the ground that the premises arereasonably required for occupation as a residence of the landlord or a member of hisfamily writ to issue only after the Commissioner of National Housing has notified the_ Court that he is able to provide alternative aqccommodation to the tenant, thealternative accommodation should, in view of the social objective of the Act, have somerelevance to the needs and circumstances of the tenant so as not to render the offer ofalternative accommodation illusory and unmeaningful: the-accommodation offeredmust be habitable and appropriate to the tenant and the members of his family. It mustbe roughly comparable with the existing accommodation in basic amenities, rental andsuited to the mode of life he is leading in the premises from which he is to be rejected.The alternative accommodation must not be located in a far off area where because ofhis religion, race or caste etc. it is unsafe for the tenant to dwell. The nature of theenvironment is a relevant consideration.
The tenant cannot expect a better house than the one being occupied by him.
The Commissioner need not be' the owner of the alternative accommodation but insuch case his statutory obligation is fulfilled only if he arranges the alternativeaccommodation on terms finalised by him and upon his obligation and responsibility toensure the tenure of the accommodation.
Sri Lanka Law Reports
 2 Sri LR
The alternative accommodation should be on a tenancy basis only and not on a rentpurchase basis. It is not in keeping with the statute to oblige the tenant to purchase thealternative accommodation. The alternative accommodation provided must be foroccupation in the character of a tenant.
In all the appeals the Commissioner of National Housing has provided alternativeaccommodation on the basis of hire purchase with attendant risk of cancellation of suchagreements and forfeiture of instalments paid in case of default. The Commissioner indoing so has not exercised his discretion reasonably but in abuse of his powers. Thenotification is not in terms of the Section. What he has offered is not in law alternativeaccommodation Although Section 22(1E) bars the Court from inquiring into theadequacy or the suitability of the alternative accommodation it does not bar the Courtfrom inquiring or ascertaining whether what is offered is alternative accommodation interms of the law.
Hence certiorari must go but not mandamus. Mandamus will not issue where it would' be futile or not possible to obey.
Before execution was issued -the Court should have issued notice on the tenantjudgment debtor as provided for by section 347 of the Civil Procedure Code. In twocases the tenants have been already evicted. The Court has acted without jurisdiction inissuing these writs of execution and hence the evicted tenants should be restored topossession.
Cases referred to:
Associated Provincial Picture House Ltd. v. Wednesbury Corporation [1.947] 2 All, ER 680; 1948 1 KB 223.
Sirinivasa Thero v. Suddasi Thero  63 NLR 31.
APPEALS from the judgment of the Court of Appeal reported at  1 Sri LR 63
Faiz Mustapha with M. M. Saheed, M. S. M. Suhaid and M. Withanachi for appellants inS. C. 57/86. S. C 58/86.
.Faiz Musthapha with M. S. Yogendra. M. M. Saheed, M. S. M Suhaid and M.Withanachi lor appellant in S. C 59/86.
S. Mahenthiran for appellant in S. C. No. 62/86.
H. D. A. de Andrado for substituted defendant petitioner in S. C. No. 72/86.
A. S. M. Perera for 1st respondent in S. C. 57/86 S. C. 57/86 and S. C. 62/86 and for2nd respondent in S. C. 59/86.
N R. M. Daluwatte P. C. with Rohan Sahabandu, for 2nd respondent in S C. 57/86Ikram Mohamed for 2nd respondent in S. C. 58/86.
H. L. de Silva P. C. with P. A. D. Samarasekera P. C. and A. L- M. de Silva and Miss L.N. A. de Silva for 1st respondent S. C 59/86
N. R. M. Daluwatte P. C. with Nimal Kuruwita Bandara for respondent in S. C 72/86.
Cur. adv. vult
September 30. 1987
SHARVANANDA, C J.
Appeals S. C. Nos. 57/86, 58/86, 59/86, 62/86 and 72/86 weretaken up together for hearing as the question of law involved in theappeals was common to all. These appeals originated as applicationsfor the issue of writs in the nature of certiorari and/or mandamusand/or prohibition on the Commissioner of National Housing(hereinafter referred to as Commissioner) to quash the notificationsmade by him under section 22( 1C) of the Rent Act No. 7 of 1972 asamended by Act No. 10 of 1977 and 55 of 1980, to the DistrictCourt, that he 'is able to provide alternative accommodation" for thetenant in each case. The notifications were impugned on the groundthat the premises, offered in each case by the Commissioner, did notconstitute "alternative accommodation" within the meaning of the saidterm in section 22( 1C) of the Rent Act and that the Commissioner hadby misdirecting himself in law misconceived the nature of alternativeaccommodation and acted unreasonably in the Wednesbury sense(Associated Provincial Picture Houses Ltd., v. WednesburyCorporation (1).)
The Rent Restriction Ordinance No. 60 of 1942 and its successorthe Rent Restriction Act No. 29 of 1948 (Cap. 274) countenancedthe right of the landlord to institute proceedings for ejectment of histenant from premises governed by the Ordinance or Act, on theground that the premmses were in the opinion of the court, reasonablyrequired for occupation as a residence for the landlord or any memberof the family of the landlord, or for the purpose of the trade or businessof the landlord. The Amending Act No. 12 of 1966, however tookaway this right of the landlord "to institute proceedings for ejectmentof the tenant on the ground that he reasonably required the saidpremises for his occupation as a residence or for business, in the caseof premises, the standard rent of which for a month did not exceedone hundred rupees." This amendment thus differentiated betweenpremises, the standard rent of which did not exceed one hundredrupees and premises the standard rent of which exceeded thatamount. Consequent to the amendment the landlord of premiseswhose standard rent did not exceed one hundred rupees could nolonger institute an action for ejectment of the tenant on the groundthat he or his family reasonably required the premises for occupationas residence or for his business. The distinction is referable to theimperatives of social justice-greater concern for the protection of
Sri Lanka Law Reports
 2 Sri L.R.
tenants of premises whose standard rent per month did not exceedone hundred rupees than for the tenants of premises whose standardrent exceeded one hundred rupees began' to be exhibited on theassumption that tenants of the former category were economicallydisadvantaged and would find it almost impossible to securealternative accommodation if they were ejected. Provided they fulfilledtheir contractual obligations and did not default in payment of theirrents or sublet the premises etc., they were secured in possession andcould not be evicted from the premises even though their landlordsreasonably required the premises for their own occupation. They thusacquired a status of irremovability. This policy of preferential treatmentto that category of tenants was, in a certain measure, continued bythe Rent Act No. 7 of 1972. If the tenancy commenced prior to thecoming into operation of the Act viz: 1st March 1972, the landlordcould not institute action for ejectment of the tenant of that class onthe ground of his reasonable requirement for occupation as aresidence or for business. Section 22(1) of the Rent .Act. whichprovided for the ejectment of the tenant of premises whose standardrent did not exceed one hundred rupees, was applicable only to caseswhere the tenancy commenced on or after the date ofcommencement of the Act. This legal position continued untilSeptember 1977 when the new Government by Act No. 10 of 1977amended section 22 of the Rent Act, by adding the followingprovisions-
Notwithstanding anything in any other law, no action orproceedings for the ejectment of the tenant of any premises the ,standard rent. . . .of which for a month does not exceed onehundred rupees, shall be instituted in or entertained by any court,unless where-
Section 22(1) (bb)
Such premises, being premises which have been let to the tenantprior to the date of commencement of this Act, are, in the opinion ofthe court, resonably required for occupation as a residence for thelandlord or any member of the family of the landlord ;
Section 22(1 A)
Notwithstanding anything in section (1), the landlord of anypremises referred to in paragraph (bb) of that subsection shall notbe entitled to institute any action or proceedings for the ejectment
Mowjood v. Pussadenrya (Sharvananda, C.J.) –
of the tenant of such premises on the ground that such premises arerequired for occupation as a residence for himself or any member ofhis family, if such landlord is the owner of more than one residentialpremises and unless such landlord has caused notice of such actionor proceedings to be served on the Commissioner of NationalHousing.
Section 22(1 B)
Section 22(1 C)
Where a decree for the ejectment of the tenant of any premises. referred to in paragraph (bb) of subsection (1) is entered by anycourt on the ground that such premises are reasonably required foroccupation as a residence for the landlord or any member of thefamily of such landlord, no writ in execution of such decree shall beissued by such court until after the Commissioner of NationalHousing has notified to such court that he is able to providealternative accommodation for such tenant.
Section 22(1 D) '
This section was further amended by Act No. 55 of 1980 by theaddition of the following sub-section numbered as S. 22(1E):-
~ln any proceeding under sub-section (1C) the court shall notinquire into the adequacy or suitability of the alternativeaccommodation offered by the Commissioner of National Housing."
It is against the above backdrop of legislative history That one has toview the question that arises for determination in these appeals.
Except in Appeal No. 58/86 where judgment was given by the courtafter a contest in favour of the landlord-in all the otherappeals-judgment was entered in favour of the landlord of consent. Inall cases order was made that writ of execution should not issue untilthe Commissioner notified the court in terms of section 22(1C) thatalternative accommodation had been found for the tenant. In all thecases the Commissioner has notified the court and the tenant thatalternate accommodation has been found. It is these notifications, thevalidity of which is being called in question.
Sri Lanka Law Reports
 2 SriL.R.
The alternative -accommodation that has been found by theCommissioner in each of the cases is a house belonging to theNational Housing Development Authority (hereinafter referred to asthe Authority). In every case the landlord had deposited large sums ofmoney with the Authority in order to reserve premises for the tenant.The Authority has reserved premises at the Ranpokunawatte HousingScheme in Nittambuwa upon a deposit of Rs. 20,000 being made bythe landlord and at the Mattegoda Housing Scheme upon a deposit ofRs. 32,000 being made by the landlord. The Authority has informedthe Commissioner, with copies to the landlord and tenant, of thereservation so made. The Commissioner had thereupon requested theappellants (tenants) in writing to attend and finalise matters with theAuthority and also notified the court that he is able to provide"alternative accommodation" in the shape of the house served by theAuthority at the Mattegoda Housing Soheme/RanpokunawattaHousing Scheme to the tenants.
The appellants then applied to the Court of Appeal for a writ ofcertiorari to quash the aforesaid notification made by theCommissioner. The Court of Appeal has refused their-application. Theappellants have preferred these appeals to this Court against thejudgment of the Court of Appeal.
The appellants object to the notification in issue on the followinggrounds:
that the Commissioner of National Housing is not offering ahouse from his housing stock. The alternative accommodation isnot offered by him, but by the National Housing DevelopmentAuthority' who is an independent statutory authority and not adelegate or agent of the Commissioner; the premises belong to
rthe Authority; ex facie, the Commissioner is not able to providealternative accommodation;
that what has been offered has been offered not on acontractual tenancy basis, but upon a rent-purchaseagreement. The alternative accommodation should be on arental basis and not on a Hire Purchase basis, attended with therisk of cancellation of the agreement and forfeiture of allinstalments paid in default of regular payment of any instalment;
Mowfood v. Pussadeniya (Sharvananda, C-.J.)
that the offer by the National Housing Development Authority iscontingent and conditional. Unless the tenant entered into thehire-purchase agreement the alternative accommodation willnot be available to him.
while the standard rent for the premises from which theappellants are to be ejected does not exceed one hundredrupees, the monthly instalments of the rent-purchase schemeof the National Housing Development Authority is very much inexcess;
the alternative accommodation that is offered does not takeaccount of the circumstances of the tenant and is notappropriate accommodation to the tenant. Accommodation,miles from the present location, in areas which are not safe forthe defendants to reside does not constitute alternativeaccommodation;
• (/) the Commissioner's determination that the accommodation,referred to in his notification, constituted 'alternativeaccommodation” in terms of section 22( 1C) was unreasonable,arbitrary and capricious.
There is nothing in section 22( 1C) which defines "alternativeaccommodation". There is nothing in that section which relate to thequality or suitability of the accommodation. Counsel for the landlordsubmitted that the court should not add any qualification such as'suitable' or 'adequate' to the words 'alternative accommodation'.According to his submission, so long as there is a roof over the headof the tenant and his family, and no doubt four walls to support thatroof, it does not matter how unsuitable that accommodation is; theCommissioner of National Housing discharges his duty under section22(1C) by making available by himself or by a third partyaccommodation, no matter what the terms are; it would be analternative accommodation to the tenant if what is offered isaccommodation even in a far off area with which the tenant has noconnection; beggars cannot be choosers, the requirements andcircumstances of the tenant need not be given any consideration indetermining the appropriateness of the alternative accommodation:that was the tenor of his contention.
Sri Lanka Law Reports
 2 Sri LR.
To treat the words 'alternative accommodation' as being totallyunqualified does not, in my view give effect to the intention of thelegislature. The solicitude shown by Parliament to tenants of premiseswhose standard rent does not exceed one hundred rupees is manifest.In the case of a tenant of premises whose standard rent exceeds Onehundred rupees, the landlord may institute action for the ejectment ofthe tenant on the ground of his reasonable requirement and onobtaining a decree for ejectment can have him evicted and thrown onthe streets, regardless of whether any alternative accommodation isavailable to him to shift to or not. Parliament, in the case of tenants ofpremises of the other category has taken them under its protectivewings, may be in view of their economic circumstances and enjoinedthat such tenants should not be rendered homeless, for no fault oftheirs but should be offered shelter by making available to themalternative accommodation before writ of execution is issued.
In view of this social objective, the needs and circumstances of thetenant ought to have some relevance if the offer of alternativeaccommodation is to be meaningful and not be illusory. Theaccommodation offered to him must be habitable and appropriate tohim and the members of his family. It must be appropriate for a familyof his size and must have the elementary amenities enjoyed by him inthe house occupied by him. It must not be located in a far off area withwhich he has no local connection, an area where, because of hisreligion, race or caste etc , it is unsafe for him to dwell. The nature ofthe environment where the proposed accommodation is located is arelevant consideration in determining whether the newaccommodation can fairly be described as 'alternative'. Thealternative accommodation must be roughly comparable with theexisting accommodation in the matter of basic amenities, rental, andappropriateness so that the tenant could continue to lead the mode oflife which he had led in the premises from which he is to be ejected.The tenant however should not expect a better dwelling house thanthat from which he is to be ejected. The facts disclosed show thatthe Commissioner had not addressed his mind to these relevantconsiderations in deciding on the alternative accommodation that hewas offering. He has exercised his power unreasonably.
It was contended by counsel for the appellants that what theCommissioner has offered is not a house from his stock, but a housebelonging to the National Housing Development Authority which is an
Mowjood v. Pussadeniya (Sharvananda, C.J.)
independent statutory Authority. It was submitted that theCommissioner has himself not provided alternative accommodationand that hence his notification does not satisfy the requirement of lawthat he should be able to provide alternative accommodation to thetenant (section 22(1 C). I do not agree with this submission that theCommissioner should be the owner of the proposed alternativeaccommodation.
The Commissioner can provide alternative accommodation not onlywhen he is the proprietor of same, but also when he is able to arrangesuch accommodation from some other source, the obligation andresponsibility for making such arrangement and warranting the tenureof the accommodation to the tenant however resting with him. TheCommissioner does not discharge his statutory obligation by puttingthe tenant and the other party who owns such accommodation intouch with each other and requesting the tenant to negotiate with theother party the terms on which accommodation will be available tohim. It is only after he had finalised the terms and got the other partybound to provide the accommodation for the tenant that theCommissioner can truthfully notify that he is able to provide alternativeaccommodation to the tenant.
' I agree with counsel for the appellants that section 22( 1C) of the RentAct provides for the alternative accommodation to the tenant on atenancy basis only and not on a rent-purchase basis. This section hasto be construed in the background of the special concern shown byParliament to tenants of premises whose standard rent does notexceed one hundred rupees. Parliament was alive to the fact thatcurrent market conditions do not conduce to such tenants findingalternative accommodation easily and that they would be renderedhomeless if ejected from the premises they were occupying. This stateof affairs prompted legitimate concern on the part of the. State toprovide alternative accommodation to that class of tenants who aregenerally impecunious; this concern cannot be satisfied by theCommissioner informing the tenants that they could have alternativeaccommodation if they are ready and willing to purchase suchaccommodation. This special concern which is reflected in section22(1 C) would be rendered illusory,, if the alternative accommodationensured by the State can be had only on such onerous terms. Havingregard to the social purpose of the legislation, a purposive approachhas to be adopted in construing section 22( 1C). In my view the words'provide alternative accommodation for such tenant "must be liberally
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construed to mean 'alternative accommodation for such tenant in thecharacter of tenant'. To interpret these words literally to mean'alternative accommodation' for such tenant as owner or quasi-ownerwill be to defeat the obvious intention of the legislature and to producewholly unreasonable results. In such circumstances it is legitimate toadopt a construction which will accord with the intention ofParliament, even at the cost of restricting the wide scope which thewords of the statute may lend themselves to otherwise. In all theseappeals what the Commissioner has offered are premises belonging tothe National Housing Development Authority on terms of HirePurchase and not on tenancy basis. True the landlords have depositedsubstantial sums with the National Housing Development Authority tothe credit of the appellants, as initial payments. But that circumstancecannot constrain the tenants to enter into Hire Purchase Agreementswhich involve the tenants paying as monthly instalments a muchhigher amount than the monthly rental which they were paying.
A Hire Purchase Agreement is always attended with the risk ofcancellation of the agreement and forfeiture of the instalments paidon default of regular payment of any instalment. Further theAgreement, will result in the tenant being compelled to invest hismoney which he can ill afford in the acquisition of premises in an area,not of his choice.
The alternative accommodation stipulated by section 22(1C) of theRent Act is accommodation as tenant and not in any other capacity.The accommodation offered on a Hire Purchase Agreement, is not thealternative accommodation provided for by section 22(1 G). In these' cases the appellants have not been offered alternativeaccommodation in terms of section 22(1 C) by the Commissioner.Hence his notifications were not in terms of the section, and areinoperative to authorise the District court to issue writ of execution ofthe decree'for ejectment of the tenants. In my view principles offairness and natural justice require the District Court, before it issueswrit of execution, following on a notification purported to be made bythe Commissioner in terms of section 22(1 C) of the Rent Act, whichhas the potentiality of affecting the plaintiff and the defendant, tohear them on the question whether the accommodation specified inthe Commissioner's notification is, fn the circumstances of the case,alternative accommodation as contemplated by that section.Sub-section 22(1 E) contemplates such procedure The court shouldnot allow writ of execution automatically on receipt of a notification
Mowjoodv. Pussadeniya (Sharvananda. C J )
from the Commissioner. The court gets jurisdiction to issue writ ofexecution only after being satisfied that what is offered by theCommissioner is alternative accommodation, meaningful to theparticular tenant in the case-meaningful does not mean that it shouldbe adequate or suitable to the tenant. In fact the court is prohibited bysection 22(1 E) from inquiring in any proceeding under subsection (1C)into the adequacy or suitability of the alternative accommodationoffered by the Commissioner. This prohibition does not howeverrender irrelevant the determination of the question, whether what isoffered is basically alternative accommodation to the tenant or not,the circumstances of the tenant, as stated earlier.
The notification of the Commissioner is clearly susceptible to judicialreview as it affects the legal tights of the appellants to continue in theoccupation of the premises until evicted by writ of execution on aproper notification by the Commissioner. Further the appellants have alegitimate expectation that they would not be evicted from theirpresent premises except on a writ of execution allowed by court afterthe issue by the Commissioner of a proper notification in terms ofsection 22(1 C). This right and expectation provide them withsufficient interest to challenge the legality arid propriety of thenotification made by the Commissioner. The ground on which thecourt reviews the exercise of administrative discretion by publicofficers is abuse of power. The Commissioner has in these casesabused the power vested in him my misconstruing the conditions andlimits imposed on him by section 22( 1C) of the Rent Act and byexercising his discretion unreasonably. His notification is vitiated bythe fact that what he purported to offer as alternative accommodationto the tenants was, not, in law alternative accommodation in terms ofthat section. Counsel for the respondents referred to the prohibitioncontained in section 22(1 E) and submitted that the court cannotinquire into the adequacy or the suitability of the alternativeaccommodation offered by the Commissioner. But that section doesnot bar the court from inquiring or ascertaining whether what isoffered is "alternative accommodation" in terms of the law. Since thenotification made by the Commissioner is bad in law, the District Courtin each of these appeals, would have no jurisdiction to issue writ ofexecution in terms of section 22( 1C) of the Rent Act.
Sri Lanka Law Reports
 2 SnL.R.
I allow the application of the appellants for the issue of writs in thenature of Writs of Certiorari and quash the notification made by theCommissioner of National Housing (the 2nd respondent) in each caseunder section 22( 1C) of the Rent Act.
The Appellants are not entitled to a Writ of Mandamus directing theCommissioner to provide alternative accommodation in terms ofsection 22(1C). A Mandamus will not issue when it would be futile inits result and where there is no practical possibility of enforcingobedience to the order. Further it may not be possible for theCommissioner to comply with the order.
I allow the appeals and' set aside the judgment of the Court-ofAppeal. In the circumstances, parties will bear their own costs.
In appeal No. 62/86, C.A.AppIn. 81/86. this court was informedthat, acting on the impugned notification, the District Court has issuedwrit of execution, of the Decree and the appellant had been ejectedfrom the premises in suit. Though the application for issue of writ wasmade after one year of the date of the decree, the District Court, inbreach of the mandatory provisions of section 347 of the CivilProcedure Code requiring notice of the application for execution to beserved on the judgment-debtor and he be heard, allowed exparte theapplication for execution and the appellant was ejected. The court, inissuing writ, acted without jurisdiction in breach of section 22(1 C) ofthe Rent Act and of section 347 of the Civil Procedure Code.Inasmuch as the court dcted without jurisdiction in issuing the writ, theappellant who was dispossessed of the premises in suit inconsequence of the execution of the writ is entitled to be restored topossession (Srinivasa Thero v. Suddasi Them, (2). Hence I direct theDistrict Court to restore the appellant to vacant possession of thepremises in suit viz: No. 5, Vaverset Place, Colombo 6.
It has been brought to our notice that the term “alternateaccommodation" is used in section 22( 1C) of the Rent Act. In my viewthe word "alternative" has been erroneously used for 'alternative'. Theword 'alternative' should be substituted for 'alternate' in that section.
ATUKORALE, J.-1 agreeSENEVIRATNE. J.-l agree.
Certiorari to go.
Parties evicted to be restored to possession.
MOWJOOD v. PUSSADENIYA AND ANOTHER