v.THAMBIPILLAY AND OTHERS –
COURT OF APPEALPALAKIDNAR, J. &
A. NO. 694/85
C. MT. LAVINIA CASE NO. 667/RE9 AND 11 JULY
Writ of Certiorari – Ceiling on Housing Property Law, No. 1 of 1973 as amendedby Ceiling on Housing Property (Amendment) Law, . No. 18 of 1976, section 13A -Purchase by tenant – Continuous residence abroad – Notice – Fair hearing -Natural justice.
The continuity of residence abroad is not broken by occasional visits to Sri Lankaon holiday or for personal exigencies.
The notice required by section 13A of the Ceiling on Housing Property Law is onlyconstructive notice and not actual notice. Publication in the newspapers satisfiesthe requirement.
The report (under section 13A(5)) submitted by the 2nd respondent to 3rdrespondent though not made available to the petitioner was made after inquiryand hence the petitioner was aware of the substance of the report. Hence therewas no violation of natural justice.
Cases referred to:
Ridge v. Baldwin (1964) A.C. 40 (H.L.).
Cooperv. Wandsworth Board of Works (1863) 14C.B.N.S. 180.
Chief Constable of North Wales Police v. Evans (1962) 2 Q.B. 677
R. v. Deputy Industrial Injuries Commissioner, ex parte Jones (1962) 2 Q.B.677.
APPLICATION for writ of certiorari.
J. W. SubaSingfid,'PC. with D. .J. C. Nilanduwa for petitioner.
H. L. de Silva, P.C. with P A■ D. Samarasekera, PC. and A, Pj-Niles for 1strespondent.
Eva Wanasundera, S.C. for 2nd and 3rd respondents.
Cur adv vult.
27th September, 1990,
The application is made by the petitioner for a Writ of Certiorari toquash the order purporting to have been made by the 3rdrespondent under section 13(A) subsection 6 of the Ceiling onHousing Property Law No. 1 of 1973 as amended.
The petitioner averred, that the 1st respondent had on 02.12.83made an application to the 2nd Respondent under section 13A of theCeiling on Housing Property Law No. 1 of 1973 as amended by theCeiling on Housing Property (Amendment) Law of 18 of 1976.
The petitioner averred that the statements in the said applicationP3 were false, untrue, misleading and are misrepresentations madedeceitfully and fradulently and that the 2nd respondent acted on thefalse, untrue and misleading statements contained in the applicationP3 and published the notice in terms of the provisions of Section13A(2) of the Ceiling on Housing Property Law without checking onthe said statement and not affording an opportunity to the petitionerto affirm or deny the said statements and or without ascertainingwhether the 1st respondent could lawfully and properly make anapplication in terms of the provisions of section 13A(1) of the saidLaw.
The learned Counsel for the petitioner submitted that theapplication of the 1st respondent did not fulfil the imperativerequirements of Section 13A(1) of the said law. Section 13A( 1) readsas follows:
'Whether the owner of a house”.
has left Sri Lanka and has either renounced citizenship of SriLanka or has ceased to be a citizen of Sri Lanka under thecitizenship Act.
has been residing abroad for a continuous period of tenyears otherwise than as an employee of the Government ofSri Lanka or any foreign Government or of-any internationalinstitution.
has left Sri Lanka for the purpose of settling abroad.
is not in existence or is.not known or cannot be traced.
"The tenant of such house may apply to the Commissioner for thepurchase of such house”.
His position was these provisions were not fully adhered to andtherefore the application of the 1st Respondent was defective.
His second submission was that the 2nd respondent hadpublished the notice in the Gazette but failed to publish it in theNewspapers as required in terms of Section 13A(2) and he furthersubmitted that the notice sent by post to the address of the petitionerwas returned undelivered and that the petitioner therefore wasunaware of the notice.
His third submission was that the 2nd respondent had to submit areport in terms of Section 13A subsection 5 to the 3rd respondentand his position was that there was a failure of natural justice and thatthere was no fair hearing given and that the petitioner should havebeen given an opportunity to make his objections before the vestingorder. He submitted that he had a right to be made aware of theopposing case.
He finally submitted that the 1st respondent did not represent thetrue position and he was lacking in uberrima tides and therefore theCourt should grant relief to the petitioner.
The petitioner’s learned Counsel’s first submission was that theabsence of the petitioner for a period of 10 years was not continuousand he was not a resident abroad for a continuous period of 10years. His contention was that the petitioner had visited Sri Lanka onnine occasions and the last visit was in January 1984. It is apparentthat when the 1st respondent made his application P3 on 02.12.1983,the petitioner had been residing in the United States since28.03.1969.. He was a resident for a period over 14 years. It is myview that the term “continuous period of ten years" in section 13A(1)means that residence abroad should be for a continuous period of 10years. This position in no way would be altered by coming to SriLanka for a holiday. The petitioner has admitted in paragraph 8(b) ofthe petition that during a period of 14 years she had come on nineoccasions. This establishes that her permanent residence was UnitedStates and that she was coming here,for holidays either to escapethe rigours of winter of the host country or for some personalexigencies in visiting this country. Therefore it is clear that she wasresiding in the United States for a period over 10 years. I am unableto accept the submission of the learned Counsel that the petitioner’snine visits to Sri Lanka has in any way affected the “continuity” ascontemplated in the section. Therefore the first submission of thelearned Counsel fails.
The learned Counsel though he commenced his secondsubmission on the high ground that there was no publication of thenotice as envisaged in the provisions of Section 13A(2), abandonedthis position once he was made aware by the learned Counsel of the2nd & 3rd respondents that there was publication in the Newspapersas contemplated by this section. The publication had been in theNewspapers on 28.02.84. The petitioner was in Sri Lanka as she hadarrived here on 6th January 1984 and was in Sri Lanka at the relevanttime and she had signed the District Court Record on 08.03.84.Therefore I do not think that the learned Counsel could be heard tosay that the petitioner had no notice.
The learned Counsel for the petitioners submitted that the noticesent to the petitioner’s address abroad had been returnedundelivered. The statute does not envisage that notice be sent bypost. There was no obligation cast on the 2nd respondent to verifythe petitioner’s correct address and direct the said notice. If at all the2nd respondent’s action was laudable but he was not duty-bound tosend any notice by post. In the circumstances I am of the view thatthe learned Counsel’s submission is not tenable in view of the plain,unambiguous language of the section. It is my view that what iscontemplated in this section is only a constructive notice and notactual notice. The petitioner was in Sri Lanka when the notice waspublished in the Newspapers. The petitioner who had the opportunityhad failed to tender her written objections if any. Therefore I am of theview that she cannot take up the position that she was unaware of thepublication in the circumstances. I am unable to accept the secondsubmission of the learned petitioner’s Counsel.
The third submission of learned petitioner’s Counsel was that thereport in terms of section 13A subsection 5 submitted by the 2ndrespondent to the 3rd respondent should have been made availableto the petitioner. He submitted that he should have been made awareof the opposing case and therefore he contended that there was nofair hearing given to him and there was a failure of natural justice. Headmitted that there was no statutory requirement but he submittedthat the trend of decisions was that a copy of the report should bemade available to the party especially as this deals with propertyrights. There is force in this submission if the report was submitted bya third party and such report led to the ultimate decision. He relied onthe authority Ridge v. Baldwin™ page 40 where the right to be heardwas held to be imperative but the facts had no application to theinstant case.
He relied on Cooper v. Wandsworth Board of Works™ where anowner had failed to give proper notice to the Board, under an Act of1855 where there was authority to demolish any building he haderected and recover the cost from him. This action was broughtagainst the Board. The Board maintained that their discretion to orderdemolition was not a judicial discretion and that any appeal shouldhave been to the Metropolitan Board of Works. But the Court decidedunanimously in favour of the owner.
He relied on the principle “a proper hearing must always include afair opportunity to those who are parties in the controversy forcorrecting or contradicting anything prejudicial to their view". He reliedon the authority Chief Constable of the North Wales Police v. Evans™
where a Chief Constable required a.s-oik^ m v-.-uicqer ;o resignaccount of allegation about his- private life but he was given no fairopportunity to rebut. The House of Lords granted him the romed'es ofunlawful dismissal'.
He relied"on R. voDeputy Industrial Injuries Commissioner ex parteJones.w Hence the Court quashed by certiorari a decision of anIndustrial Injuries Commission as the Commissioner obtained a reportfrom an independent medical expert but the parties were not notifiedand were therefore unable to comment on the report.
There is a wealth of authorities which shows that natural justiceoften requires the disclosure of reports and evidence in thepossession of the deciding authority.
In the instant case the petitioner was aware of the-2ndrespondent's report because his report has to fall exclusively withinthe provisions of section 13A subsection (5) (a), (b), (c) & (d) of thesaid case.
The subsection reads as follows:
After considering the written objections if any made undersubsection (3) the Commissioner shall make a report to theMinister on the application and shall inter alia state as towhether –
“Such house is situated in an area which in his opinion willnot be required for some clearance, development, or forany other public purpose;
It is feasible to alienate such house as a separate entity;
The applicant is in a position to make the purchase; and
the owner of such house had a spouse or dependent childresiding in Sri Lanka on the date when such applicationwas made".
Therefore the petitioner would be aware of the exclusive nature ofthe report even though in fact she was not given or made aware ofthe report submitted by the 2nd respondent to the 3rd respondent.
The Court has to consider whether substantial fairness had takenplace to the petitioner, and it is my view this has been adequatelyachieved in terms of the provisions of section 13A subsection 5, (a),(b), (c) & (d) as the petitioner would be aware of the substance of thecase the petitioner has to face even without disclosing the report ofthe 2nd respondent.
I am in complete agreement with Lord Denning, M.R. that the rulesof natural justice must not be stretched too far, if the partiesunderstand the issues that have to be met. I am of the view thepetitioner was aware as. to what the report would contain. In thecircumstances I am of the view that there was a fair hearing and therewas no violation of natural justice. I am unable to accept the thirdsubmission of the learned Counsel of the petitioner.
The learned Counsel submitted that the Court should not exerciseits discretion as there is a lack of uberrima tides. I am unable toaccept this submission. The non-disclosure of the settlement arrivedin Court in the rent case would not have materially affected thisapplication P3, since P3 was made prior to the settlement in theDistrict Court. The non-disclosure of the case pending in the DistrictCourt in P3 cannot be treated as a breach of uberrima tides.
In the above circumstances I dismiss the petition with costs.
PALAKIDNAR, J. – / agree.
WIGNESWARAN v. THAMBIPILUY AND OTHERS