Jayawardena vs. Chairman, Ceiling on Housing Property Board of
Review and others371
application in Rs. 1050/- to 1 – 7 respondents and Rs. 525/- to 8threspondent.
SENANAYAKE J. – I agree.
Order set aside.
CHAIRMAN, CEILING ON HOUSING PROPERTY BOARD OFREVIEW AND OTHERS
COURT OF APPEALK. VIKNARAJAHC.A. tO. 1523/8222 SEPTEMBER 1988.
Landlord and tenant – Ceiling on Housing Property Law, No.1 of 1973 sections 13,17, 17 A, 39 (1) – Vesting Order – Purchase by tenant – Divesting – Right of appealand review. – Writ of Certioari
Under Section 17(1) of the Ceiling on Housing Property Law the vesting in theCommissioner takes place after the Commissioner is satisfied that it is an appropriatecase for vesting after considering the equities of the case. In fact under Section 17(1) there has to be an application for the purchase of the house. For instance undersection 13, a tenant can make an application to purchase a house let to him, providedthe conditions set out in the section are satisfied. Under section 17(1) theCommissioner after holding an inquiry at which the landlord and tenant are presentand after hearing both parties, makes a determination whether he would recommendto the Minister to vest the house. This determination is notified to the parties andthe party dissatisfied with the determination can appeal to the Board of Review. Theparty dissatisfied with decision of the Board of Review can seek his remedy by writ
The Minister on being notified by the Commissioner that it is a fit case for vesting,may by order published in the Gazette vest such house in the Commissioner.Thereafter under subsection (2) the Commissioner shall enter into an agreement withthe applicant for the sale of such house subject to the conditions set out therein.
There are several provisions under which houses are vested namely Section 8(4),11(4), 14(3) and 17(1). The power to divest was given to the Commissioner by theamendment introduced by Law No. 34 of 1974.
Properties are vested under section 17 for the purpose of conveying them to thetenant and this is obligatory under the Law if the conditions mentioned in theagreement are complied with (Section 17(3) (a)). The power to dvest under section17(A) would generally be in respect of houses vested under provisions other thansection 17(1) unless there are exceptional circumstances, eg. if the tenant after
Sri Lanka Law Reports
(1991) 1 Sri LR.
entering into an agreement for sale commits a breach of any of the conditions andfails to complete the sale or where the procedure followed before the vesting showsthat the aggrieved party has been deprived of the right to appeal to the Board ofReview because the determination of the Commissioner had not been notified andthere are serious irregularities which would warrant the Commissioner reviewing thematter as in the instant case where the owner had no opportunity to appeal to theBoard of Review because the Commissioner's determination was not communicatedto him.
In such exceptional circumstances the Commissioner can act under section 17(A) (1)and make a divesting order though the vesting was under section 17. Otherwise theCommissioner's power to divest under section 17 A (1) does not extend to a vestingorder made under section 17 because the applicant has a vested right and theaggrieved party has always a right of appeal to the Board of Review and the orderof the Board of Review can itself be reviewed in a Court of Law.
Cases referred to:
1. Arsonal Football Club vs. Ende 1977 QB 100.
APPLICATION for writ of certiorari to quash order of Commissioner of NationalHousing.
H.L. de Silva, P.C. with D.S. Wijesinghe for petitioner.
K.C. Kamalasabayson, S.S.C. for 4th respondent.
Dr. H.W. Jayewardene, Q.C. with P.A.D. Samarasekera P.C., Upali Almeida andH. Amarasekera for 5th respondent.
11 November 1988
Cur. adv. vult.
The petitioner who was the tenant of premises No. 237Thimbirigasyaya Road, Colombo 5 made an application under section13 of the Ceiling on Housing Property Law No. 1 of 1973 asamended by Law No. 34 of 1974 and Law No. 18 of 1976 to theCommissioner of National Housing the 4th respondent for the.purchase of the said premises tenanted by her. In consequence ofthe petitioner’s application an inquiry was held and a vesting orderwas published in the Gazette of 4.2.1977. The vesting order wasmade under section 17(1) of the said Law. Under this section theMinister on being notified by the Commissioner by order publishedin the Gazette vests such house in the Commissioner with effect fromsuch date as may be specified, therein. By letter dated 20.1.77 thisvesting order was communicated by the 4th respondent to thepetitioner and petitioner was requested to deposit one fourth of the
CAJayawardena vs. Chairman, Ceiling on Housing Property Board of
Review and others (Viknarajah, J)373
purchase price of the premises. In compliance with the said letterthe petitioner paid on or about 20.1.77 a sum of Rs. 3,833/- beingone fourth of the purchase price. Thereafter certain monthly paymentswere paid by the petitioner. The petitioner also entered into a salesagreement with the 4th respondent. This vesting order was made byMr. Peter Keuneman the then Minister.
Subsequently the 5th respondent who was the former owner of thesaid premises made representations to the new Minister of HousingMr. Chelliah Kumarasuriar in the new Cabinet and as a result thenew Minister directed the 4th respondent to divest the said premises,in consequence of such directive the 4th respondent divested thesaid premises under section 17A(1) of the said law.
This divesting order under section 17A(1) was the subject of anapplication for writ of certiorari No. 849/77 made by the presentpetitioner. The then Supreme Court delivered judgment on 25.7.1978quashing the divesting order and Sharvananda J in the course ofthe judgment observed as follows:-
“Further, the report of the Secretary, Ministry of Housing andConstruction dated 24.5.77 refers to a number of irregularitiesconnected with the original vesting and makes certain disclosuresrespecting the circumstances of the vesting which call for aninvestigation into the genesis and property of the vesting order.
It is desirable that the Commissioner should inquire into thehistory of the vesting order and also satisfy himself as to thevalidity of the Secretary's criticism and decide whethercircumstances justify that an order should be made by himunder section 17A of the law. Before he makes any order underthe Section which will affect the petitioner, the petitioner shouldbe heard on her objections, if any to the order of divestment.Though the present order, purporting to be made under section17A and referred to in the Gazette notification P9 is set asidefor the reasons set out, the quashing of same will not bare the1st respondent Commissioner from looking into the whole matterafresh*.
The reason for quashing the divesting order was because thedivesting order had been made by the Commissioner of NationalHousing on a directive in writing by the Minister. The Supreme Courtdealing with section 17A(1) stated as follows:-
374Sri Lanka Law Reports(1991) 1 Sri LR.
"The section gives no guidance whatsoever as to the basis onwhich the discretion to make a divestment is to .be exercised andimposes no limit as regards the grounds on which the discretionis to be exercised, but it definitely postulates that the properauthority for exercising the discretion to make a divesting orderis the Commissioner for National Housing. The prior approval ofthe Minister is only necessary to give legal efficacy to thediscretion for the Commissioner to divest the ownership. TheMinister superimposes his sanction on the determination madeby the Commissioner. Before reaching that discretion theCommissioner has to direct his mind to this matter and bring anindependent judgment of his own to bear on the issue. It ismanifest from the tenor of the Gazette notification P9 dated20.6.77 referred to above that the Commissioner made his orderof divestment upon being directed in writing by the Minister ofHousing and Construction".
Consequence to this judgment of the Supreme Court theCommissioner held inquiry commencing on 6.10.1981 at which inquirythe petitioner and 6th respondent were present and represented byAttorneys at Law. No objection to jurisdiction was token at the inquirybut evidence was led on 6.101981, 30.10.81, 11.11.81, 30.11.81,91.12.81, 21.12.81, 24.12.81, 12.1.82, 20.1.82, 22.1.82, 23.1.82 andwritten submissions were tendered thereafter.
The Asst Commissioner who held the inquiry made his report dated26.1.82 to the Deputy Commissioner of National Housing in whichhe states as follows:*
"Attorney-General has advised us that the power given to theCommissioner to divest under section 17A would not extend toan order under section 17. In view of this advice may I informthe owner with copy to tenant, that it is not possible to considerto review the order made by the Hon. Minister under section17(1) as the law does not permit us to do so"
Thereafter the owner viz the 5th respondent was informed by letterdated 28th January 1982 that 'it is not possible to consider to reviewthe order made by the Hon Minister under section 17(1) of theCeiling on Housing Property Law No. 1 of 1973 as the tew doesnot permit me to do so".
CAJayawardena vs. Chairman, Ceiling on Housing Property Board of
Review and others (Viknarajah, J)375
From this decision of the Commissioner the 5th respondent appealedto the Board of Review. By order dated 6th October 1982 the Boardof Review set aside the decision by the Commissioner, contained inhis letter of 28.1.82 and directed the Commissioner to take stepsunder section 17A as indicated by the Supreme Court in its judgmentin S.C. Application No. 849/77 on the findings he has made afterthe inquiry in his report of 26.1.82.
The present application before this Court is by the petitioner (tenant)to quash this order of the Board of Review.
Learned Counsel for the petitioner submitted that the 5th respondenthas no right of appeal to the Board of Review from the decision ofthe Commissioner set out in his letter of 28.1.82 but that the 5threspondent should have moved this Court by way of a writ to reviewthe order made by the Commissioner. He therefore submitted thatthe order of the Board of Review was made without jurisdiction andshould be quashed. Counsel for petitioner further submitted that theCommissioner had no power under section 17A to divest after anorder of vesting had been made under section 17.
Under section 39(1) of the Ceiling on Housing Property Law anyperson aggrieved by any decision or determination made by theCommissioner under this Law may within one month of the date onwhich such determination is communicated to such person appealagainst such decision or determination to the Board stating thegrounds of such appeal.
The determination of the Board on any appeal made undersubsection (1) shall be final and shall not be called in question inany Court (Section 39(3)).
It was in pursuance of section 39(1) the 5th respondent appealedto the Board of Review from the decision of the Commissionercontained in his letter of 28.1.82.
When a statute provides a right of appeal, any matter concerningjurisdiction can be decided in the appeal. The Appellate Tribunal isnot limited to consider the appeal only on the merits. Thediscretionary remedy by way of writ of certiorari on the ground ofviolation of natural justice or objection to tribunal's jurisdiction is analternative remedy.
Sri Lanka Law Reports
(1991) 1 Sri L.R.
"There is abundant authority to the effect that jurisdictionalquestions can be raised by way of appeal" – Wade -Administrative Law 5th Edition page 823.
In the case of Arsenal Football Club v. Ende (1) Lord Denning setsout the facts as follows:-
"The Arsenal Football Club Ltd has their grounds and stands ata stadium in Avenell Road, lollngton. Up till 1973 the rateablevalue of it was £9250. But their peace was then disturbed by aMr. Ende who lives about half a mile away. He does not objectto football but he objects to people who pay too little rates. Hethought that the property of the football club was assessed attoo low a rateable value. So he himself made a proposal thatthe rateable value should be increased from £9250 to $60,000.The football club took strong objection to this proposal. They saidthat Mr. Ende has no locus standi to make such a proposal. Hewas a busy body interfering in things that did not concern him.The matter went before the local Valuation Court. That Court heldthat he was a 'person. . .aggrieved' who could make a proposal.They heard evidence and held that there should be an increasein the rateable value. It was nowhere near the £60,000suggested by Mr. Ende. But it was 50 per cent increase. Theyincreased the rateable value from £9250 to £13,900. The footballclub appealed to the Lands Tribunal. The Tribunal considered,as a preliminary point whether Mr. Ende has any locus standi.They held that he had none with the result that his proposal fellto the ground".
The Lands Tribunal decided the preliminary issue in favour of theclub. The effect of their decision was that Mr. Ende’s proposal wasinvalid that the local Valuation Court has no jurisdiction in the matterand the Tribunal allowed the appeal and confirmed the assessmentof £9250 originally entered in the valuation list.
Mr. Ende appealed to the Court of Appeal against the LandsTribunal's decision on the grounds that he was a person aggrievedand he also submitted to the Court of Appeal that on the point oflocus standi, the Arsonal Football Club ought not to have appealedto the Lands Tribunal. The only proper course was to the DivisionalCourt for prohibition or certiorari.
CAJayawardena vs. Chairman, Ceiling on Housing Property Board oi
Review and others (Viknarajah, J)377
Lord Denning dealing with this submission at page 116 stated asfollows:-
"I cannot accept this suggestion. It is plain to me that theValuation Court itself had jurisdiction to decide whether or notMr. Ende was a 'person aggrieved' and that the Lands Tribunalon appeal equally had jurisdiction to determine it. Whenever apoint is raised as to the jurisdiction of an inferior tribunal, thetribunal can itself determine it and on appeal the appellate Courtcan likewise determine it".
The Court of Appeal allowed the appeal holding that Mr. Ende is a'person . . .aggrieved' by the under assessment of the ArsonalFootball Grounds and that Mr. Ende was entitled to bring hisgrievance before the Valuation Court and to get the assessmentincreased to a correct level.
The House of Lords affirmed this judgment of the Court of Appeal(vide 1977 2 A.E.R. 267)
Thus in the instant case the Board of Review had the power inappeal to decide whether the Commissioner's jurisdiction to divestunder section 17.A extends to vesting orders made under section17.
The other submission of learned Counsel for petitioners is that theCommissioner had no power to divest under section 17A after anorder of vesting is made under section 17.
The Asst Commissioner who held the inquiry following the judgmentof the Supreme Court in S.C.AppIn 849/77 which I have referred toearlier in my judgment had after several dates of inquiry chosen tofollow the advice of the Attorney-General that the powers given tothe Commissioner to divest under section 17A would not extend toan order under section 17.
Senior State Counsel who appeared for the 4th respondent statedthat the Attorney-General did not give any advice in this case to theCommissioner but a general advice was given some months earlierin another case.
378Sri Lanka Law Reports(1991) 1 Sri L.R.
Section 17A(1) provides as follows:-
"Notwithstanding that any house is vested in the Commissionerunder this Law, the Commissioner may with the prior approvalin writing of the Minister, by order published in Gazette divesthimself of the ownership of such house and on publication inthe Gazette of such order such house shall be deemed neverto have vested in the Commissioner".
Under section 17(1) the vesting takes place after the Commissioneris satisfied that it is an appropriate case for vesting after consideringthe equities of the case. In fact under section 17(1) there has to bean application for the purchase of the house. For instance undersection 13 a tenant can make an application to purchase a houselet to him provided the conditions set out in the section are satisfied.Under section 17(1) the Commissioner after holding an inquiry atwhich the landlord and tenant are present and after hearing bothparties makes a determination whether he would recommend to theMinister to vest the house. This determination is notified to the partiesand the party dissatisfied with the determination can appeal to theBoard of Review.
The Minister on being notified by the Commissioner that it is a fitcase for vesting, may by order published in the Gazette vest suchhouse in the Commissioner.
Thereafter under sub-section (2) the Commissioner shall enter intoan agreement with the applicant for the sale of such house subjectto the conditions set out therein.
Senior State Counsel submitted that there is a vested right in theapplicant after the vesting order is made under section 17 andtherefore the Commissioner cannot under section 17A(1) take awaythat vested right by making a divesting order. I am inclined to agreewith this submission.
There are several provisions under which houses are vested viz 8(4),11(4), 14(3) and 17(1). The power to divest was given to theCommissioner by an amendment introduced by Law No. 34 of 1974.The position under section 17 is different. The properties are vestedunder section 17 for the purpose of conveying them to the tenant
CAJayawardena vs. Chairman, Ceiling on Housing Property Board of
Review and others (Viknarajah, J)379
and this is obligatory under the law if the conditions mentioned inthe agreement are complied with (see. 17(3A). The power to divestunder section 17A would generally be in respect of houses vestedunder provisions other than section 17(1). If the landlord or tenantis not satisfied with the determination made by the Commissionerunder section 17(1) he could appeal to the Board of Review, and itis open to the party dissatisfied with the decision of the Board ofReview to seek his remedy in a Court of Law by way of writ.
But under certain exceptional circumstances the Commissioner canmake a divesting order under section 17A in respect of a vestingorder made under section 17. For example if the tenant after enteringinto an agreement for sale committed breach of any of the conditionsand fails to complete the sale, the Commissioner can under section17A divest the property.
Another example would be where the procedure followed before thevesting shows that the aggrieved party has been deprived of the rightto appeal to the Board of Review because the determination of theCommissioner had not been notified to the aggrieved party and thereare serious irregularities which would warrant the Commissioner toreview the matter then the Commissioner can act under section17A(1) and make a divesting order after hearing the party who isgoing to be affected by the divesting order. These are exceptionalsituations where the Commissioner can act under section 17A(1) butgenerally the Commissioner's power to divest under section 17(A)(1)does not extend to a vesting order made under section 17 becausethe applicant has a vested right and the aggrieved party has alwaysa right of appeal to the Board of Review, and toe order of toe Boardof Review can still be reviewed by a Court of Law in appropriateproceedings.
In the instant case before me toe 5th respondent who is the ownerand landlord had no opportunity to appeal to the Board of Reviewbecause the determination of toe Commissioner to vest had not beencommunicated to the 5th respondent. "Further the report of theSecretary, Ministry of Housing and Construction dated 24.5.77 refersto a number of irregularities connected with toe original vesting andmakes certain disclosures respecting the circumstances of the vestingwhich calls for an investigation into the genesis and property of thevesting order". This was the view of the Supreme Court in the
Sri Lanka Law Reports
earlier application No. 849/77 and that is why the Supreme Courtdirected "the Commissioner to inquire into the history of the vestingorder and also satisfy himself as to the validity of the Secretary’scriticism and decide whether circumstances justify that an ordershould be made by him under section 17A".
On the facts of this case the Commissioner has the power to actunder section 17A(1) and review the vesting order made undersection 17.
For the above reasons I affirm the order made by the 1st to 3rdrespondents dated 6.10.82 marked P4 and direct the Commissionerto take appropriate steps.
The application of the petitioner is dismissed with costs.
SUPERINTENDENT, ABBOTSLEIGH GROUP AND OTHERS
ESTATE SERVICES UNION
COURT OF APPEAL,
A. DE Z. GUNAWARDANA, J„
L.T. HATTON 10/4515/83
(WRITTEN SUBMISSIONS TENDERED ON
JUNE 1991 AND 02 AUGUST 1991)
Industrial Disputes Act – Suspension of service – Interdiction – Constructive termination.
The workman's services were suspended when he did not comply with the order givenby the Superintendent, to act in terms of the settlement entered into in a LabourTribunal case, and vacate the quarters given to the workman in one division of theestate and occupy quarters in another division. The workman refused to occupy thequarters allocated to him in the other division, as he alleged that some of thenecessary repairs were not effected, as undertaken by the employer.
That the two grounds urged by the workman to assert that his services havebeen constructively terminated, do not directly relate to the duties he has toperform as Plucking Kanakapullai, or to his salary and emoluments. What is
JAYAWARDENA vs. CHAIRMAN CEILING ON HOUSING PROPERTY BOARD OF REVIEW AN