Dr. Ranjit Fernando v Sri Lanka Medical Council
COMMISSIONER OF NATIONAL HOUSINGCOURT OF APPEALSRIPAVAN, J.
CA 87/1995MARCH 14, 25, 1996JULY 1,2003
Ceiling on Housing Property Law – Section 8 (4) – Special Povisions Act,No. 4 of 1988 – Section 4 – Limit removed – Surplus houses vested there-after – Question regarding surplus houses not pending – Applicability ofSection 4 – Delay – Nullity.
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Act, No. 4 of 1988 came into operation with effect from 24.3.88. Interms of the said Act, there is no limit from or after 1.1. 1987 as to themaximum number of houses which may be owned by an individual etc.,
Atenant shall not be entitled from or after 1.1.1987 to make an appli-cation for the purchase of such house.
In terms of section 4, the provisions of the Act, shall not affect anyaction, preceding or thing commenced under- the principal act andpending or incompleted on 1.1 1987.
When the petitioner received the document dated 1.10.74 calling uponthe petitioner to explain as to why the premises in question were notdeclared the 1st respondent acted ultra vires as the question whetherthe house was a surplus house was not pending or completed as at1.1.87;.
The vesting therefore was without jurisdiction and is a nullity;
It would be wrong to so construe section 8 (4) as to make a prosecu-tion mandatory, a prosecution is not a condition precedent to a vesting.
Question of delay does not apply where the proceedings are a nullity.
APPLICATION for a writ of certiorari.
Cases referred to:
Sithamparanathan v Premaratne and others 1992 2 SRI LR 202
MacFoyy United Africa Co. Ltd., – 1961 3 All ER 1169 at 1172.
Schmidt v Secretary of State for Home Affairs 1969 2 Ch. 149 at 170.
flv Commission for Racial Equality – 1982 AC 779
Maginona v Commissioner for National Housing and other – 1997 3SRI LR 131 at 135
Biso Menike v Cyril de Alwis – 1982 1 SRI LR 368 at 379
A.K. Premadasa P.C., with Kushan de Alwis for the petitioner.PAD. Samarasekera, P.C. with C'.W. Pannila for 3rd respondent.A. Gnanathasan D.S.G., for 4th respondent.
Cur. adv. vuit
Ashokan v Commissioner of National Housing
August 25, 2003SRIPAVAN, J
All Counsel agreed on 29th July 2003 that, this application 01should be disposed of on written submissions already filed on thepreliminary objections by the parties. The petitioner is theAdministrator of the estate of the late Eliyathamby Subramaniamappointed in Testamentary Proceedings No. 47/92 in the DistrictCourt of Mount Lavinia. The second respondent is the Administratorof the estate of the late Eliyathamby Shanmugam appointed inTestamentary Proceedings No. 33388/T in the District Court ofColombo. Both Eliyathamby Subramaniam and EliyathambyShanmugam were the owners in equal shares of the land and 10premises bearing No. 188, New Chetty Street, Colombo -13 andNo. 166, Jampettah Street, Colombo -13 by virtue of deed No. 445dated 27.11.1951 marked A3. The petitioner alleges that the thirdrespondent was permitted by the late Eliyathamby Subramaniam tooccupy a portion of the premises bought on document A3. As evi-denced by the document marked A4, D.C.. Colombo case No.
16617/L was instituted on 3rd March 1994 to have the third respon-dent ejected from the said premises. After the institution of D.C.Colombo case No. 16617/L the petitioner and the second respon-dent received letters dated 1 st October 1994 from the first respon- 20dent calling upon the petitioner to explain as to why premises bear-ing assessment Nos. 166 Jumpettah Street and No. 188 NewChetty Street were not declared under the provisions of the Ceilingon Housing Property Law. The second respondent through hisAttorney at Law replied to the said letter A5 by a letter dated 20thOctober 1994 (A6) informing the first respondent that the saidpremises were not excess houses and as such the provisions of theCeiling on Housing Property Law would not apply. However as evi-denced by A8, the third respondent requested the first respondentto vest the said houses under the Ceiling on Housing Property Law. 30The first respondent by letter dated 22nd December 1994 markedA9 informed the petitioner that the said premises vested underSec. 8 (4) of the Ceiling on Housing Property Law in the firstrespondent. The petitioner seeks to quash the first respondent’sorder dated 22nd December 1994 marked A9 on the basis that the
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vesting of the premises was made without an inquiry, withoutobserving the principles of natural justice and in any event the saidpremises were not excess houses in the hands of the lateEliyathamby Subramaniam and Eliyathamby Shanmugam.
Learned President’s Counsel for the third respondent raised apreliminary objection that the petitioner has a remedy in terms ofSec. 39 (1) of the said Law in that, if he is aggrieved by any deci-sion of the first respondent he has a right of appeal to the Board ofReview within one month of such determination. It was the submis-sion of the Counsel that since the petitioner has an alternative rem-edy before the Board of Review, his application for certiorari mustbe refused.
The second respondent by his affidavit dated 6th March 1995informed cpurt that he has no objections to the grant of the reliefsought by the petitioner. As the first respondent retired from serviceon or about 31st December 1994, a motion was filed on 14thAugust 1995 by the fourth respondent informing that no objectionswould be filed on his behalf and that he would abide by any orderthe court may make.
The Ceiling on Housing Property (Special Provisions) Act, No.4 of 1988 came into operation with effect from 24th March 1988. Interms of the said Act, there is no limit from or after 1st January1987, as to the maximum number of houses, which may be ownedby an individual, or a member of a family. A tenant of a house or anyperson succeeding to the tenancy shall not be entitled from orafter 1st January 1987 to make an application, under the provi-sions of the principal enactment for the purchase of such house.For the avoidance of doubt, section 4 of the said Act declared thatthe provisions of Act, No. 4 of 1988 shall not affect any action, pro-ceeding or thing commenced under the principal enactmentand pending or incompleted on 1st January 1987. Accordingly, Act,No. 4 of 1988 removed the ceiling on housing property with effectfrom 1st January. 1987. When the petitioner received the docu-ment marked A5, dated 1st October 1994 from the first respondentcalling upon the petitioner to explain as to why the premises inquestion were not declared under the Ceiling on Housing PropertyLaw, the first respondent acted ultra vires as the question regard-ing ownership of the said premises and/or whether the said premis-
Ashokan v Commissioner of National Housing
es were surplus houses were not pending or incompleted as at 1stJanuary 1987. [Vide Sithamparanathan v Premaratna and oth-ersJ1) In the circumstances, the vesting of the said premises by thefirst respondent as evidenced by A9 was without jurisdiction and isa nullity. When a person has acted without jurisdiction the vestingorder marked A9 had no consequence in law. If an act is a nullity, itis automatically null and void and there is no need for an .order ofthe court to set it aside though it is sometimes convenient or pru-dent to have the court declare it to be so. “You. cannot put some-thing on nothing and expect it to stay there, it will collapse” -Lord Denning in Mcfoy v United Africa Co LtdS2) Therefore, thequestion of preferring an appeal against the decision of the firstrespondent does not arise.
Assuming (without conceding) for the purposes of argumentthat Act, No. 4 of 1988 does not apply to the respective parties,then the first respondent should have held an inquiry before hemade the vesting order marked A9. Schmidt v Secretary of Statefor Home Affairs <3>. Lord Denning M.R. suggested that the ambit ofnatural justice extended not merely to protect rights but any legiti-mate expectation of which it would not be fair to deprive a personwithout hearing what he has to say. As Lord Diplock stated in thecase of R v Commission for Racial Equality“where an act ofParliament confers upon an administrative body functionswhich involve its making decisions which affect to their detri-ment the rights of other persons or curtail their liberty to doso as they please, there is a presumption that Parliamentintended that the administrative body should act fairlytowards those persons who will be affected by their deci-sions.” The first respondent has failed to comply with the require-ment that a decision must be made in accordance with the princi-ples of natural justice and good faith.
I do not agree with the learned President’s Counsel for thepetitioner that a prosecution for an offence under Sec. 8 (4) of theCeiling on Housing Property Law is a condition precedent to apenal vesting under that section. In the case of Maginona vCommissioner for National Housing and OthersS5> G.P.S. de Silva,C.J. observed that “it would be wrong to so construe the sec-tion [Sec. 8 (4)] as to make a prosecution mandatory; a pros-
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ecution is not a condition precedent to a vesting.” In any eventSec. 8 (4) is a penal provision which operated against the lateEliyathamby Subramaniam and Eliyathamby Shanmugam, if theyhad made incorrect declarations of houses owned by them. Thepetitioner could not be penalised for the alleged lapses of others.
The question of delay does not apply where the proceedingsare a nullity. Writ of certiorari would lie in cases where the pro-ceedings are considered to be manifestly erroneous or withoutjurisdiction. The court would be reluctant to allow the mischief of the 120order to continue and reject the application simply on the ground ofdelay, unless there are very extra-ordinary reasons to justify suchrejection. [Vide Biso Menika v Cyril de AlwisS6) at 379], For the rea-sons stated, certiorari is issued to quash the decision of the firstrespondent dated 22nd December 1994 marked A9. There will beno costs.
ASHOKAN v. COMMISSIONER OF NATIONAL HOUSING