PREMARATNE AND OTHERS
G.P.S. DE SILVA, C.J.
KULATUNGA, J. ANDRAMANATHAN, J.
S.C. APPEAL NO. 53/95C.A. APPLICATION NO. 241/9123RD JANUARY, 1996.
Certiorari – Ceiling on Housing Property Law – Sections 8(4) and 39(3) • Act,No.4 of 1988 – Board of Review decision – Finality-Ex facie lack of power asa ground of review – Interpretation Ordinance, Section 22 – Computation oftime for appeal-Rule 7 of the Supreme Court Rules.
The Appellant a daughter of the late Wijesekera who died in 1987 appealedto the Board of Review under the Ceiling on Housing Property Law No. 1 of1973 against an order made in 1989 by the Commissioner for NationalHousing vesting a house under Section 8(4) of the Law on the ground thatthe said Wijesekera as the owner thereof failed without reasonable causeto disclose it in his statutory declaration. In 1974 Wijesekera declared 10houses in the capacity of a co-owner thereof along with his children beingthe heirs of his deceased wife. In a subsequent affidavit he said that thehouses totalled 11 but in giving the house numbers he mentioned only 10.The Commissioner accepted the declaration and determined the excesshouses which vested in him and concluded all action including the paymentof compensation. The impugned vesting was effected after an inquiry in1989 to which the appellant was summoned and after the abolition of the
Ceiling on Housing Property by Act No. 4 of 1988. The Board of Reviewaffirmed the decision of the Commissioner.
The appeal is not time barred. In computing the six weeks (42 days)within which the application for special leave to appeal has to be made thedate of the judgment should be excluded.
The liability if any for making an incorrect declaration of houses waspersonal to Wijesekera. His heirs cannot be penalised for the alleged lapse.
The decision of the Commissioner is patently invalid, null and void orvitiated by a total lack of jurisdiction. The Board of Review decision affirm-ing the Commissioner's decision is also void and not protected by the final-ity clause in section 39(3) of the Ceiling on Housing Property Law. It isreviewable on the ground of ex facie lack of power provided by Section 22of the Interpretation Ordinance.
Cases referred to :
Tea Small Factories Ltd., v. Weragoda (1994) 3 Sri L.R. 353.
Shah v. Presiding Officer Labour Court Coimbatore1978 AIR SC 12 at 16
Kailayar v. Kandiah 59 NLR 117
Mac Foy v. Africa Company Ltd., ("1961) ALL E.R. 1169, 1172.
AN APPEAL from a judgment of the Court of Appeal.
N.R.M. Daluwatte, P.C. with B. Koswatte for Appellant.
A.K. Premadasa, P.C. with C.E. de Silva for Respondent.
Cur. adv. vult.
6th February, 1996.
This is an appeal against the judgment of the Court of Appealdismissing an application to quash, by way of Certiorari, a decision ofthe 2nd Respondent (Commissioner for National Housing) to vest ahouse No. 31/6A(1) (now No. 31/6B) under S. 8(4) of the Ceiling onHousing Property Law No. 1 of 1973 and an order made by the Boardof Review under the said law, affirming the said decision.The Court of
Appeal dismissed the application primarily on the ground that in viewof the finality provision contained in S 39 (3) of the Law, it had nopower to quash the order of the Board, in the absence of a groundpermitted by S. 22 of the Interpretation Ordinance.
Special leave to appeal was granted, subject to the question whetherthe appeal is time barred. Mr. A.K. Premadasa P.C. for the Respondentdid not seriously argue that question but said that he would rely on theobjection. It was submitted that the appeal has not been filed withinsix weeks of the judgment appealed from, as required by Rule 7 of theSupreme Court Rules 1990.
The judgment appealed from was delivered on 27.01.95. It wassubmitted that “six weeks" not being the equivalent of 42 days, thedate of the judgment should be included in computing time; if so, thelast appealable date was 09.03.95 but the appeal has been filed on10.03.95.
Mr. N.R.M. Daluwatte P.C. for the Appellant submitted that "sixweeks" means 42 days; if so, the date of the judgment should beexcluded in computing time; on that basis the appeal has been filed onthe 42nd day, within time.
In Tea Small Factories Ltd. v. Weragoda (1) this Court held thatunder Rule 7, "six weeks* means 42 days. The Court relied on Shah v.Presiding Officer Labour Court Coimbatore<z) Stroud's Judicial Dictionary(3rd Edt.); Kailayarv. KandiahP> and Maxwell (Interpretation of Statutes)12th Edt. p. 309 where the author states :
"A 'week' may according to context, be a calendar week begin-ning on Sunday and ending on Saturday or any period of sevendays.
Where a statutory period runs from a named date to another, orthe statute prescribes some period of days or weeks or monthsor years within which some act has to be done, although the com-putation of the period must in every case depend on the intentionof Parliament as gathered from the statute, generally the first dayof the period will be excluded from the reckoning, and conse-quently the last day will be included".
For the foregoing reasons, I reject the objection that the appeal istime barred and proceed to consider the appeal on the merits.
The impugned order was made by the 2nd Respondent on 21.12.89.The Appellant's position before the Court of Appeal was that on thefacts of the case and particularly in view of the abolition of the Ceilingon Housing Property and the right of tenants to purchase houses bythe Ceiling on Housing Property Act No. 4 of 1988, the order made bythe 2nd Respondent was plainly ultra vires; hence the decision of theBoard of Review which affirmed such order was one which was exfacie not within its power to make.
The judgment of the Court of Appeal does not show that the aboveobjection was considered before dismissing the Appellant's applica-tion. Before considering the correctness of that judgment, it is neces-sary to set out the background facts and events which led to the mak-ing of the impugned orders.
The Appellant is a daughter (one of five children) of the late Mr. S.de S. Wijesekera who died in 1987. On 08.02.88 the said five childrenfiled D.C. Colombo case No. 5710/ZL (X1) against the 1st Respondentfor ejectment from premises No. 31/6B situated on a land calledMillagahawatte, Wellampitiya.The Plaintiffs claimed to have inheritedthe said land from their late mother B.A. Anula de Silva. They add that8 houses situated thereon had vested in the Commissioner for Na-tional Housing, under the Ceiling on Housing Property Law; that thelate Mr. Wijesekera had permitted the 1 st Respondent to occupy thesaid premises; but he has since constructed several unauthorised antinsanitary huts and leased the same. Hence, they sought the ejectmenof the 1 st Respondent.
In his answer dated 24.01.89, the 1 st Respondent claimed to be atenant of the said premises from 1971 under the late Wijesekera andthereafter under the Appellant. By then he had also made representa-tions to the Commissioner requesting that steps be taken to vest thesaid premises to enable him to purchase it under the Law. Conse-quently, the Commissioner, by his letter dated 20.02.89 (X5) summonedS. Dias (Wijesekera) a sister of the Appellant “for a discussion" re-garding the said premises. Thereafter, the Commissioner by his letter
dated 21.12.89 informed her that he had decided to vest the sameunder S. 8(4) of the Law. The Appellant appealed to the Board of Re-view against the said decision but the Board held that the said decisionwas justified as the Appellant's father had without reasonable causefailed to disclose the said house in his declaration.
At every stage of these proceedings including in the Court of Ap-peal it has been assumed, without scrutiny, that as per the declarationof the late Mr. Wijesekera dated 31.10.74 (X13), the Commissioner'sletter dated 06.05.76 to Mr. Wijesekera (P6(a)), the affidavit of Mr.Wijesekera dated 08.12.80 (X8), the survey plan 5719 dated 08.01.82(X10) and the Gazette notification under S.20 of the law published on29.07.83 (X12), Mr. Wijesekera owned a number of excess houseswhich vested in the Commissioner and that he had failed to declarehouse No. 31/6 A1 (now No. 31B).
The declaration X13 and the affidavit XB refer to houses atWellampitiya. In X13 Mr. Wijesekera said that these houses belongedto late B. A. Anulawathie (his wife) and that he was only a shareholder.X3 states that the said houses totalled 11, but when he set out thehouse numbers he had mentioned only 10 namely, Nos. 31/1,31/2,31/3, 31/4, 31/5, 31/6, 31/7, 31/6A, 31/7A and 31/7B. X9, X 10 and X12show that in all, 8 houses at Wellampitiya and 3 houses at Oematagodahad vested.
Thus even if there was in existence a house No. 31 /6A (1), thestory that the houses in Wellampitiya were owned exclusively by Mr.Wijesekera is a fiction resulting from the failure of the Commissionerto have scrutinised the declaration. The houses appear to have beenowned in undivided shares by Mr. Wijesekera and his 5 children; inwhich event the number of excess houses had to be determined underS.3 of the Law. This has not been done.
In the result, it is possible that houses have been taken over bythe Commissioner incorrectly without applying the provisions of theLaw; but as all action, including payment of compensation has beenconcluded, without legal challenge, it would be too late to review suchaction. In this background and in particular, on facts of this case, I amin agreement with the submission of Mr. Daluwatte that in view of theprovisions of Act No. 4 of 1988, the Commissioner had no power as on21.12.89 to make a vesting order under S. 8(4).
In any event, S. 8(4) is a penal provision which operated againstthe late Mr. Wijesekera, if he had made an incorrect declaration ofhouses owned by him. It provides, inter alia, that a person who withoutreasonable cause makes an incorrect declaration of houses shall beguilty of an offence and any such house as may be specified by theCommissioner by notification published in the Gazette shall vest inthe Commissioner. In the context, the liability , if any, was personal toMr. Wijesekera. He alone could, in the circumstances, have shownreasonable cause for his conduct.
The Appellant or any of the other heirs will not be subject to pro-ceedings under S. 8(4). I cannot agree with the submission of Mr. A.K.Premedasa PC. that, in a case such as this, the heirs could be penal-ised for the alleged lapse of their father. Penal statutes should be con-strued narrowly in favour of the person proceeded against; and if inconstruing the relevant provisions there is any reasonable doubt, it willbe resolved in favour of the person who would be liable to the penaltyMaxwell (Interpretation of Statutes) 12th ed. 238,239.
S. 4 of Act No. 4 of 1988 says:
the past operation of, or anything duly done or suffered underthe principal enactment prior to January 1st, 1987;
any offence committed or penalty incurred under the principalenactment, prior to January 1st, 1987; and
any action proceeding or thing commenced under the princi-pal enactment, and pending or incompleted on January 1st, 1987.
This section has no applicaiton here. Paragraph (a) refers interalia, to the past operation of anything suffered under the principal en-actment. There is no such thing. Paragraph (b) cannot be applied asMr. Wijesekera the alleged offender is dead; and paragraph (c) is plainlyinapplicable, there being no pending proceeding as on January 1st,1987.
The decision of the Commissioner is ultra vires, unauthorised bylaw, outside jurisdiction, null and void and of no legal effect. Vide WadeAdministrative Law 6th ed. 349. The decision of the Board of Reviewaffirming such an order is itself outside jurisdiction. At common lawsuch a determination is not protected by a "no certiorari clause" Wade725. S.22 of the Interpretation Ordinance has merely narrowed downthe review jurisdictionof the Court in such a case when it provided "exfacie" Lack of power as a ground of review. It refers to a case wherethe invalidity of the act is patent or where there is a total lack ofjurisdiction Vide 'Essays on Administrative Law of Sri Lanka 1979' Prof.G.L. Peiris 274-275.This is such a case where both the orders namely,that of the Commissioner and of the Board of Review are void for totallack of jurisdiction and the invalidity of the decison is patent. Hence,the decision of the Board of Review is not protected by S. 39(3).
If the decision of the Commissioner is patently invalid and is anullity, the Board of Review cannot, by affirming it, preclude judicialreview. As Lord Denning said in Mac Foy v. Africa Company Ltd.w
"You cannot put something on nothing and expect it to stay there.
It will collapse".
For the foregoing reasons, I allow the appeal, set aside the judg-ment of the Court of Appeal and issue a writ of Certiorari quashing theorder made by the 2nd Respondent on 21.12.89 and the decision of theBoard of Review dated 11.12.91. Without doubt, the Appellant has bdensubjected to much hardship and expense by the ill considered actionson the part of the 2nd Respondent. I, therefore, direct the 2nd Re-spondent (Commissioner for National Housing) to pay the Appellantcosts in a sum of Rs. 5000/-
G.P.S. DE SILVA, C.J. – I agree.
RAMANATHAN, J. -1 agree.
SITAMPARANATHAN v. PREMARATNE AND OTHERS