Maginona v. Commissioner for National Housing and Others
COMMISSIONER FOR NATIONAL HOUSINGAND OTHERS
P. S. DE SILVA, C.J.,
RAMANATHAN, J AND
DR. SHIRAN I A. BANDARANAYAKE, J.
S.C. APPEAL 60/96.
C.A. NO. 1081/87
CHP BOARD OF REVIEW NO. 1285JULY 7, 1997.
Writ of Certiorari – Ceiling on Housing Property Law – Sections 8(4), 39(3) and47 of the Law – Finality of the Decision of the Board of Review – Locus Standi -Pre-requisites of a vesting order under Section 8(4).
On an allegation made by the original appellant (the tenant) that the houseoccupied by him was an excess house, the Commissioner for National Housingheld an inquiry and decided to vest the house. On an appeal by the owner of thehouse, the Board of Review under the Ceiling on Housing Property Law decidedthat it was not a “house" within the meaning of Section 47 of the Law and setaside the Commissioner's decision.
The evidence led before the Commissioner and the Board of Review showedthat the premises in question fell clearly within the definition of “house”; thedecision of the Board of Review was plainly invalid, and one which no tribunalcould possibly have reached. The decision therefore is not protected by section39(3) of the Ceiling on Housing Property Law.
The original appellant who admittedly was in occupation of the premises withhis family since 1958 had “sufficient interest" to apply for certiorari.
A prosecution for an offence under Section 8(4) of the Ceiling on HousingProperty Law is not a condition precedent to a penal vesting under that section.
Cases referred to:
Sitamparanathan v. Premaratne and Others (1996) 2 SLR 202 at 208.
Perera v. Karunaratne 1997 – 1 SLR 148.
APPEAL from the judgment of the Court of Appeal.
E. D. Wickremanayake for the substituted petitioners-appellants.
A. Kodikara for 5th and 6th respondents.
Cur. adv. vult.
Sri Lanka Law Reports
 3 Sri L.R.
P.S.DE SILVA, CJ.
The original appellant moved the Court of Appeal by way of a writof certiorari to quash the determination of the Board of Review (P5)established under the provisions of the Ceiling on Housing PropertyLaw. He resided at premises No. 21 Norris Canal Road, Colombo 10and he claimed that he was a tenant under the Sth respondent. Headdressed a letter dated 21.3.97(P1) to the Commissioner of NationalHousing (1st respondent) stating that the 5th respondent ownedother houses; that the premises occupied by him was a house inexcess of the “permitted number of houses" and requested the 1strespondent to take steps to “vest" the premises. Thereupon the 1strespondent held an inquiry. The original appellant and the 5threspondent gave evidence before the 1st respondent. The 5threspondent admitted that he was the owner of houses in excess ofthe “permitted number” but he did not “declare" the premisesoccupied by the appellant as it was not separately assessed andwas a part of the main house bearing assessment No. 104, SriVipulasena Mawatha. In other words the contention of the 5threspondent was that the appellant was in occupation of the “outhouse * which was a part of the premises No. 104 Sri VipulasenaMawatha and not a "house" within the definition in the Ceiling onHousing Property Law. On the other hand, the appellant in hisevidence stated that he was in occupation of the premises since1958 and it consisted of a verandah, a sitting room and one bedroom; that there was a separate latrine and a bath room; that he paidrent for his occupation; that there was no access to any otherpremises; that it is a building separate from premises No. 104, SriVipulasena Mawatha.
At the conclusion of the Inquiry the 1st respondent informed the5th respondent of his decision to “vest” the premises which were thesubject matter of the proceedings. The 5th respondent preferred anappeal to the Board of Review. The Board of Review permittedevidence to be led before it. On a consideration of the evidence theBoard took the view that the premises occupied by the appellant“had been originally a part of the main house bearing assessmentNo. 104 Sri Vipulasena Mawatha and had been occupied as one unitof residence." The Board was of the opinion that the appellant is in
Maginona v. Commissioner for National Housing
and Others (G. P. S. cte Silva, C. J.)
occupation of a 'out house' and that ‘‘any sub division madesubsequently cannot bring this 'out house’ within the meaning of theword 'house' in section 47 of the Ceiling on Housing Property Law” -The Board accordingly set aside the decision of the 1st respondent“to vest the out house of premises No. 104, Sri Vipulasena Mawatha,Colombo." The appellant's application for certiorari to quash thedecision of the Board was refused by the Court of Appeal and hencethe present appeal to this court.
The original appellant died and his widow and children were“substituted” and they are presently in occupation of the premises.The principal question which arises for decision in this appeal iswhether the premises constitute a “house" as defined in section 47 ofthe Ceiling on Housing Property Law.
The definition reads thus:
"house means an independent living unit, whether assessed or notfor the purpose of levying rates, constructed mainly or solely forresidential purposes, and having a separate access, and throughwhich unit access cannot be had to any other living accommodation,and includes a flat or tenement, but shall not include –
sub-divisions of, or extensions to, a house which was firstoccupied as a single unit of residence; and
a house used mainly or solely for a purpose other than aresidential purpose for an uninterrupted period of ten yearsprior to March 1,1972."
The contention advanced before us on behalf of the substitutedappellants is that the finding of the Board of Review that the premisesin question are an “out house" of the main house bearing assessmentNo. 104 Sri Vipulasena Mawatha, Colombo 10, is wholly unsupportedby the evidence. Our attention has been drawn to the documents X1,X1(a), X2, X3, X4 and X5. X1 is a "building application" dated23.11.61 forwarded to the Municipal Council. Colombo, by the 5threspondent. It is an application “for the alteration of a out house at104 Stafford Place (now Sri Vipulasena Mawatha) Colombo 10, in theproperty No. 21 Norris Canal Road." X1 (a) is a document entitled“Specifications" which states that the application is for “internal
Sri Lanka.Law Reports
 3 Sri LR.
alteration" for a "dwelling". It is also dated 23.11.61. X2 is the reportof the inspector on the application X1. Items 3 and 4 in X2 read asfollows:
Item 3. “Description of existing building: An out house."
Item 4: "Description of proposed building: Dwelling house."
X3 is the building permit granted in respect of the application X1. X4is the Certificate of Conformity issued to the 5th respondent. X5 is theapproved plan which shows that premises No. 104, Stafford Place(now Sri Vipulasena Mawatha) is entirely separate from the premisesin suit.
A perusal of the decision of the Board of Review shows that therehas been no consideration of the contents of the documents X1 to X5- According to the Board of Review these documents show that “…
. . No. 104 Stafford Place (Sri Vipulasena Mawatha) has been subdivided on an application made in 1961." This finding is contradictoryof, and inconsistent with, the documentary evidence on record. X1 toX5 very clearly establish the all-important fact that the “out house atNo. 104 Stafford Place has been converted to a “dwelling house”and this took place as far back as 1961. The finding of the Board ofReview that there was a “sub division” of the premises is in the teethof the documentary evidence. Mr. Kodikara for the respondentsstrongly urged in his written submissions that X1 to X5 refer to analteration made “to another structure situated within No. 21 NorrisCanal Road, Colombo 10, and not to the portion of the out house inissue.” I am afraid I cannot agree, for the evidence is to the contrary.
It is seems to me that the oral and the documentary evidence ledbefore the 1st respondent and the Board of Review shows that thepremises in question fall clearly within the definition of "house" in theCeiling on Housing Property Law,
I hold that the decision of the Board of Review (delivered over2 1/2 years after the conclusion of the inquiry) is plainly invalid,and one which no tribunal could possibly have reached. Thedecision therefore is not protected by section 39(3) of the Ceiling onHousing Property Law. Vide Sitamparanathan v. Premaratne andOthers^ at 208.
Maginona v. Commissioner for National Housing
and Others (G. P. S. de Silva. C. J.)
The next matter is the question of locus standi of the appellant,
Relying on the decision in Perera v. Karunaratne(2 the Courtof Appeal held that the appellant had no locus standi to makethe application for a writ of certiorari, That was a case where,among other matters, Bandaranayake, J. considered the questionof the point of time "when an application for purchase shouldbe made by the tenant" and whether section 8 overrides section9 of the Ceiling on Housing Property Law. The issue of locusstandi was neither raised nor considered. Moreover, as statedby Wade “The prerogative remedies, being of a ‘public’ character…have always had more liberal rules about standing than theremedies of private law … The broad principle which almosteliminates the requirement of standing for these remedies showshow far the law has gone in the direction of admitting an elementof actio popularis on grounds of public interest … By suchmeans, therefore, a remedy may be found for the citizen whois genuinely aggrieved but who has no grievance in the eye ofthe law." (Administrative Law by Wade sixth edition pages 694and 696). I hold that the original appellant who admittedlywas in occupation of the premises with his family since 1958 had"sufficient interest" to apply for certiorari.
Finally, the Court of Appeal has held that the application for awrit of certiorari cannot succeed because there is “no evidencethat the 1st respondent has sought to prosecute either the 5th or6th respondents in terms of section B(4). The 1st respondentcould not have decided to vest the out house under thecircumstances.”
It seems to me. however, that Section 6(4) contemplates twodistinct matters, namely a prosecution for an offence and a penalvesting. It would be wrong to so construe the section as to make aprosecution mandatory; a prosecution is not a condition precedent toa “vesting”.
For these reasons the appeal is allowed, the judgment of the Courtof appeal is set aside and we direct that a Writ of certiorari do issue
Sri Lanka Law Reports
 3 Sri LR.
to quash the determination of the Board of Review (P5). There will beno costs.
RAMANATHAN, J. – l agree.
DR. SHIRANI A. BANDARANAYAKE, J. – I agree
Appeal allowedWrit of certiorari issued.
MAGINONA v. COMMISSIONER FOR NATIONAL HOUSING AND OTHERS