Sri Lanka Law Reports
 2 Sri L.R.
PETER ATAPATTU AND OTHERS
PEOPLE'S BANK AND OTHERS
COURT OF APPEAL.
NOVEMBER 22, 1994JANUARY 13,1995AUGUST 23,1995SEPTEMBER 25,1995.
Writ of Certiorari – Finance and Ceylon State Mortgage Bank (Amendment) LawNo. 16 of 1973 – S. 71(1), S. 71(2), S. 71(2)(c). S. 91 – Conditional Transfer byThree Co-owners – Application for Redemption to People's Bank – Two diedpending inquiry- Is substitution possible?
The three co-owners Hendrick, Abraham and Rosalin conditionally transferred theland to one S, who transferred same to the 3rd Respondent. Rosalin died leavingbehind her husband the 1st Petitioner and her two children. The other Co-ownersalong with the 1st Petitioner made an application for Redemption to the People'sBank. While the inquiry into the application was pending before the People'sBank, the other two Co-owners died.
An application was made to Substitute the 2nd and 3rd Petitioners as applicantsin their place, which was refused by the Bank.
There is no provision in the Act for substitution in place of a deceasedapplicant in an application made to the Bank under S. 71(2) of Law No. 16 of1973.
The scheme of the Act does not envisage the affecting of the Substitution inplace of the original applicant in a pending application as the Bank isobliged to process an application having regard to particulars only of theperson making the application before it is entertained – S. 71(2) (a).
APPLICATION for Writ of Certiorari.
Cases referred to:
Kanagasabapathy v. People's Bank-S.C. 124/75 S.C. Minutes 27.8.76.
Perera v. People's Bank Land Redemption Dept. 1985 1 SLR 39 (CA) 19871 SLR 181 (S.C.).
CA Peter Atapattu and Others v. People's Bank and Others (Ismail, J.)
G. S. Marapone, P. C. with Raja Peeris and N. Ranamuka Aratchi forPetitioners.
N. R. M. Daluwatte, P.C. with Ms. Samantha Abeyjeewa for the 1stRespondent.
Manohara de Silva for 3rd Respondent.
The facts relevant to this application are not in dispute. DonHendrick, Don Abraham and Dona Rosalin all of Bambaranda,Ratmale being the owners of the land described in the Schedule tothe Deed bearing No. 40 dated 11.01.72 (P1) sold the same subjectto the conditions set out therein to W. K. Sisiliyana. The said Sisiliyanathereafter by Deed No. 9530 dated 30.06.83 (P2) sold and conveyedher rights to the above named 3rd respondent.
Dona Rosalin, one of the three original co-owners of the said landdied leaving as her heirs, her husband Don Peter Atapattu, the 1stpetitioner, and her two children.
The co-owners Don Hendrick and Don Abraham along with the 1stpetitioner Don Peter Atapattu, the husband of the deceased third co-owner Dona Rosalin, made an application dated 30.6.83 to the 1strespondent People’s Bank to have the said land acquired in terms ofSection 71 of the Finance Act No. 11 of 1963, as amended by theFinance and Ceylon State Mortgage Bank (Amendment) Law, No. 16of 1973 and the Finance (Amendment) Act No. 19 of 1984.
The 3rd respondent in the meanwhile had instituted a partitionaction bearing No. 11829/P in the District Court, Matara, to which thethree applicants before the People’s Bank for the redemption of theproperty were made the 3rd, 4th and 5th defendants. It was decidedin this action that any rights accruing to the plaintiff, the 3rdrespondent to this application, shall devolve on him without prejudiceto the rights of the 3rd, 4th and 5th defendants who have made theaforesaid application to the People’s Bank.
Sri Lanka Law Reports
 2 Sri L.R.
While the inquiry into the application was pending before thePeople’s Bank, the two co-owners Don Hendrick and Don Abraham,who were two of the three joint applicants died and it was sought tohave the 2nd and 3rd Petitioners substituted as applicants in theirplace.
By an order dated 25.6.92 (P7) the 2nd Respondent, the InquiringOfficer, refused the application made on behalf of the 2nd and 3rdpetitioners to have themselves substituted. It was held that there wasno provision in the relevant Act for substitution in place of the originalapplicants and that the original application made by the twodeceased co-owners for redemption of the property is personal tothem and is therefore deemed to have lapsed on their death.Consequently a decision was taken not to recommend the pendingapplication of the surviving joint applicant, the 1st petitioner, as hisclaim was a right to an undivided one-third share of the land.
The petitioners have in the present application sought a writ ofcertiorari to quash the aforesaid order dated 24.6.92 (P7) and a writof mandamus directing the 1st and 2nd respondents to permit thesubstitution of the 2nd and 3rd petitioners in place of the deceasedapplicants.
Section 71(2) of the Finance and Ceylon State Mortgage Bank(Amendment) Law, No. 16 of 1973 provides as follows:
“No premises shall be acquired under subsection (1)-(a) unless an application in that behalf has been made to the Bankby the original owner of such premises or, where such originalowner is dead or is of unsound mind or otherwise incapable ofacting, by the spouse or any descendant of such person, or ifthere is no surviving spouse or descendant of such person, by aparent, brother or sister of such person;…"
This section deals with the person on whose application the Bankis authorised to act. This section was considered by the SupremeCourt in the case of Kanagasabapathy v. The People's Bank (,,and itwas held that the Bank has no authority in terms of this section to
Peter Atapattu and Others v. People's Bank and Others (Ismail, J.)
acquire property on the application made to it by a transferee orassignee, and that it could do so only on the application made by theoriginal owner or such other person as is specified in this section.
Vythialingam, J. stated as follows:
"The prohibition is absolute. The word shall is imperative. No propertyshall be acquired by the Bank under the provisions of Section 71(1)unless an application is made in that behalf by the original owner or ifhe is dead or inacapable of acting by one of the persons who standin the specified relationship to him and in the order of preference setout in the section. The Bank cannot acquire the property on theapplication of any other person. The Bank can act only within thescope of the powers conferred on it by the Act.”
There is no provision in the act for substitution in place of adeceased applicant in an application made to the Bank underSection 71(2) of Law No. 16 of 1973. The scheme of the Act does notenvisage the effecting of a substitution in place of the originalapplicant in a pending application as the Bank is obliged to processan application having regard to particulars only of the person makingthe application before it is "entertained” – Section 71 (2A). In terms ofSection 71(2)(c), for example, the Bank has to satisfy itself that theaverage statutory income of "the person making the application” andhis family for the three years preceding the date of the application didnot exceed a sum of ten thousand rupees, computed under theprovisions of the written law relating to the imposition of income tax. Itis clear that a person to be substituted upon his death cannot inthese circumstances be considered to be “the person making theapplication.” The Bank can only act within the powers conferred on itby the Act and in the absence of any enabling provision the refusalby the 2nd respondent to permit the 2nd and 3rd petitioners to besubstituted in place of the two deceased applicants is thereforejustified.
Learned President's Counsel on behalf of the 1st respondent Bankhas in his written submissions referred to Section 91 and has
Sri Lanka Law Reports
 2 Sri LR.
submitted that it is possible to take the view that its provisions do notnecessarily indicate that a pending application to redeem propertylapses on the death of the applicant. Section 91 deals with thedisposal of the premises after it has vested in the Bank “inconsequence of an application made to the Bank for the acquisitionof such premises by any person entitled to make such application." Itfurther provides that the property vested in the Bank may be let to theapplicant or where such person is dead to the surviving spouse orany descendant on the terms specified therein. This section relates tothe stage after the inquiry into the application for the acquisition ofthe premises is entertained and is completed and the property isvested in the Bank. It provides for the disposal of the premises in theevent of the death of the applicant at this stage. I do not see anythingin this section which entitles the Bank to proceed to deal with theapplication for redemption of property after the death of the originalapplicant by substituting another person in his place.
A decision has been taken by the Bank to reject the application ofthe surviving applicant on the ground that his claim is to an undividedone-third of the property. This is an administrative decision which isnot subject to review by way of certiorari and mandamus. In Perera v.People's Bank Land Redemption Department & Others(2) the People’sBank decided as a matter of policy not to proceed to acquisitionwhere the interests to be acquired were undivided and the applicantwas not in possession. It was held that such a decision was notsubject to review and that the decision not to acquire was madewithin jurisdiction and in terms of Section 71(3) of the Finance Act, asamended, read with Section 22 of the Interpretation Ordinance that itis final and conclusive and cannot be questioned in any court. Forthese reasons the petitioner cannot succeed in this application tohave the order dated 24.6.92 (P7) made by the 2nd respondentquashed.
The application is therefore dismissed with costs.
PETER ATAPATTU AND OTHERS V. PEOPLES BANK AND OTHERS