HON. CHELLIAH KUMARASURIAR, MINISTER OFNATIONAL HOUSING AND CONSTRUCTION AND OTHERS
COURT OF APPEAL.
C.A. APPLICATION NO. 169/77
SEPTEMBER 08, OCTOBER 17 AND NOVEMBER 03, 1994.
Landlord and Tenant – Application to purchase house under Ceiling on HousingProperty Law No. 1 of 1973 – Vesting order – Sections 13 and 17 of Ceiling onHousing Property Law.
The tenant was sued for ejectment on the ground of subletting and judgment forthe eviction of the tenant was entered. An appeal was preferred and is pending.Thereafter the tenant made an application to purchase the premises underSection 13 of the Ceiling on Housing Property Law No. 1 of 1973. TheCommissioner had laid by the inquiry until the appeal was decided.
There was no material to show that the Commissioner had at any stage actedupon the application by the “tenant” to purchase the house or that he had notifiedthe Minister of his decision in respect of the matters specified in Section 17(1)(a),(b) and (c) of the Ceiling on Housing Property Law. Assuming he had done so.the parties do not appear to have been informed of the determination or decision.
Evidently the Minister has proceeded to make the vesting order under Section17(1) before the Commissioner could have decided on the precedent conditionsset out in Section 13 in relation to the application and before he could havecomplied with the procedural requirements specified in Section 17 of the Ceilingon Housing Property Law. The Minister has therefore acted ultra vires and inexcess of his jurisdiction in making the vesting order under Section 17(1) of thesaid Law. The vesting order is therefore a nullity and all subsequent steps takenby the Commissioner on the basis of the said vesting order are void in law.
Cases referred to:
Mariam Teyabally v. Minister of Local Governmenr, Housing and Construction -SC 69/92 – SC Minutes of 5.11.93.
Caderamanpulle v. Keuneman and Others S.C. No. 15/79 – S.C. Minutes of
APPLICATION for a writ of certiorari to quash vesting order made by the Ministerof National Housing and Construction.
H. L. de Silva*PC. with Gomin Dayasiri for petitioner.
Faisz Mustapha P.C. with Sanjeewa Jayawardena for substituted 3rd respondent.
Cur. adv. vult.
January 10, 1995.
The petitioner in this application dated 10.03.1977 has sought awrit of certiorari to quash the order vesting the premises bearingNo. 105, Piyadasa Sirisena Mawatha, Colombo 10, with effect from30th June 1976 by then Minister under section 17(1) of the Ceiling onHousing Property Law, No. 1 of 1973. The vesting order waspublished in the Government Gazette Extraordinary No. 233/10 dated8/10/76 (P6).
The petitioner purchased premises bearing No. 105 PiyadasaSirisena Mawatha of Colombo 10 in about February 1967 and the 3rdrespondent who was occupying the premises since September 1942as a tenant then attorned to him as his landlord. The petitionerterminated his tenancy at the end of February 1971 and instituted anaction, No. 2391/ED, against him in the Court of Requests forejectment on the ground of subletting. One H. P. D. Gnanawathie towhom the petitioner had sublet a portion of the premises was addedas a defendant to this action. The trial in this case was finallyconcluded in the District Court and judgment was entered on 22ndSeptember 1975 in favour of the petitioner for the ejectment of the 3rdrespondent and for damages at Rs. 62/75 per month from 1.9.73 untilthe petitioner was restored to possession (P5).
The 3rd respondent has preferred an appeal, No. CA 452/75,against the said judgment and this appeal is still pending.
During the pendency of the action in the Court of Requests/DistrictCourt the 3rd respondent made an application on 5.2.73 to theCommissioner for National Housing to purchase the said premisesunder section 13 of the Ceiling on Housing Property Law. An inquiryinto this application was held on 14.12.75. The petitioner produced acertified copy of the judgment dated 22.9.75 in case No. 2391/EDand objected to the premises being vested in the Commissioner asthe 3rd respondent had in terms of the said judgment ceased to behis tenant and was not qualified to maintain the application topurchase the premises. The petitioner has stated that the 2ndrespondent who held the inquiry made an order laying by theapplication until the disposal of the appeal No. 452/75 (F). However,the Minister has by his order dated 30.6.76 proceeded to vest thepremises and the said vesting order was published in the GazetteNo. 233/10 dated 8.10.76 (P6).
The 3rd respondent has thereafter on 17.2.1977 signed anagreement in connection with the purchase of the house withCommissioner for National Housing in terms of section 17(1) of theCeiling on Housing Property Law.
When the present application was taken up for hearing before thiscourt on 16.3.87 and 17.3.87, a preliminary objection to it was takenby the 3rd respondent that the Minister who made the vesting orderwas not a party to this application. The Court of Appeal upheld thepreliminary objection and on 28.4.77 the application was dismissed.This order was set aside by the Supreme Court in SC No. 39/87 on
26.3.91, and an order was made that this case be remitted back tothe Court of Appeal for a determination of the application for theissue of a writ of certiorari.
The original 3rd respondent to this application died on 13.2.82 andhis widow Beatrice Hewage who was substituted in his place alsodied on 31.8.86. One of her daughters named M. NandakanthieHewage has now been added as a Respondent.
Learned Counsel for the petitioner has submitted that the aforesaidvesting order (p.6) has been made in excess or without jurisdiction asthe 3rd respondent had ceased to be tenant at the relevant time,judgment having been entered against him for ejectment in themeanwhile, and consequently that his application for the purchase ofthe said premises could not have been thereafter maintained. He hasrelied on the following observation made by His Lordship the ChiefJustice in Mariam Teyabally v. Minister of Local Government, Housingand Construction.(,).
“The relevant point of time at which the validity of the claim has tobe determined is the stage at which the Commissioner of NationalHousing holds the inquiry, “notifies” the Minister and the Ministermakes the “vesting order” under section 17 of Law No. 1 of 1973.This is the decisive point of time at which the right of the parties areaffected … if on the other hand, at that point of time, the applicanthas ceased to be "tenant” or if the premises in respect of which theapplication was made is no longer a “house” within the meaning ofthe Law, then the application cannot be entertained."
The Commissioner for National Housing at the time has in hisaffidavit filed dated 10.10.80 stated that his predecessor in officeheld an inquiry on 14.12.75 into the application of the tenant for thepurchase of the house. He has however not denied the fact that thepetitioner who was the owner had produced before him the judgmentof the District Court dated 22.9.75 entered in his favour for theejectment of the tenant. It has also not been denied that theCommissioner then made an order laying by the inquiry until theappeal taken by the tenant against this judgment was decided inappeal. The inquiry purported to have been held by theCommissioner into the application of the 3rd respondent for thepurchase of the house has not been concluded. He has notdetermined whether the 3rd respondent had the status as a tenant on
14.12.75 to maintain his application for the purchase of the house inview of the said judgment having been entered against him forejectment in the meanwhile. The Commissioner has refrained fromdeciding this question. He appears to have postponed taking adecision until the appeal from this judgment was decided.
There is also no material to show that the Commissioner has at anystage acted upon the application made by the 3rd respondent topurchase the house under section 13 of the Ceiling on HousingProperty Law and that he has notified the Minister of his decision inrespect of the matters specified in section 17(1) (a),(b), and (c) of thesaid Law. Assuming that he has done so it does not appear that theparties have been informed of his determirfation or decision. “Beforegoing into the questions raised at a, b, and c of section 17 he mustdecide whether he is going to accept an application under section 13and notify the Minister that an application has been made under thisLaw … There is a duty cast on the commissioner to act fairly. Thefailure therefore to inform the landlord of the Commissioner’s decisionor determination under section 17 before the order of vesting wasmade deprives the landlord of his right under section 39 to appeal tothe Board of Review.” Caderamanpulle v. Keuneman and Others™.
Evidently the Minister has proceeded to make the vesting orderunder section 17(1) before the Commissioner could have decided onthe precedent conditions set out in section 13 in relation to theapplication and before he could have complied with the proceduralrequirements specified in section 17 of the Ceiling on HousingProperty law. There has thus been a procedural failing and theMinister has therefore acted ultra vires and in excess of hisjurisdiction in making the vesting order under section 17(1) of thesaid Law. The vesting order is a therefore a nullity and all subsequentsteps taken by the Commissioner on the basis of the said vestingorder are void in law.
I therefore direct the issue of a writ of certiorari to quash thevesting order made by the 1st respondent and published in theGovernment Gazette Extraordinary No. 233/10 dated 8.10.76 (p.6).
The application is allowed with costs.
Writ of Certiorari issued.
SIRIWARDENA v. HON. CHELLIAH KUMARASURIAR, MINISTER OF NATIONAL HOUSI