Aheysckera.v. Wijentnge and Others
WUETUNGE AND OTHERS
SAMARAKOQN, C.J., COLIN THOME. J.. AND SOZ,A-SC NO. 12/82;
SC SPL. LA 10/81;
CA 1578/79OCTOBER 25, 1982
Ceiling on Housing Property Law No. 1 of 197J. Sections 2(1). II. 16. 47.-^Vesting of surplus house – Test to determine what a house is.'
Appeal to Board of Review – Absence of'iihttermination or decision of Commis-sioner – Does appeal tie to Board of Review?V .sv'
The respondent owned six houses on Udupila-Road and 5other premises hearingthe following assessment Nos. .viz, C 280/1. C 280/2. C 280/3 and C 280/4. Makoln *South, .stated to, Jje business premises.. …• ..jSi
The respondents family was made up of the respondent, his wife and 5'minor1children and therefore the permitted number of houses was, seven in terms of;,.-Section 5(1) of the Ceiling on Housing Property Law.
The respondent did not make any declaration under Section 8 as he-owned-only6 houses as permitted under the law. The Commissioner of National Housing. (CNH.) informed the respondent that one house No. 294, Kchelpandura, vestcj,!.in him on 13.1.73 in terms of Sections 11 and 16.'•■■ ■
On appeal to the Board of Review it was held that the respondent owned only,othe permitted number of houses and that CNH should divest (he said premises.The CNH divested the- house on .11.1.80; -The petitioner-tenant applicd"tb’the"Court of Appeal praying for a. .Writ of Certiorari quashing- the order-of the :Board. The Court ..quashed the. order and divesting order.
An objective test whether No. 294,.Kehelpandura junction was an independent.,living unit constructed mainly or solely for residential purposes must be applied.On this test the premises were a wayside boutique constructed for the purpose1’ :of business. It was not, a house within the meaning of Section 47.,
2. In the absence of- a decision or determination by the Commissioner, thc'rc’ •was no right pf appeal,to the Board of Review and consequently the.Board.hadi ;
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no jurisdiction to entertain an appeal. Thus the proceedings of the Board werevoid and the vesting order had no consequence in law.
APPEAL from the judgment of the Court of 'Appeal'.
J.W. Subasinghe, S.A., with K. Thevarajah and Miss E.M.S. Edirisinghe for the4th defendant-appellant.
J.C.T. Kotalawela for the 1st substituted-respondcrit.
November II, 1982SAMARAKOON, C.J.
The Ceiling on Housing Property Law, No. 1 of 1973 came intooperation on the 13th January, 1973. On this date the 4th res-pondent-appellant owned eleven buildings. They comprised of sixhouses bearing assessment Nos. 242/6 and 242/4. Udupila Road andC 280/1, C 280/2, C 280/3, and C 280/4 Makola South. The otherfive premises are stated to be business premises bearing assessmentNos. 242Z-2, 242/3 and 242/1, Udupila Road and C 280/5, MakolaSouth and 294, Kehelpandura Junction, Udupila Road. The appellantwas the father of five minor children and the family was thereforeentitled to seven houses in terms of section 2(1) of the said PropertyLaw. He states that he did not make a declaration in terms of section, 8 of the said Law for the reason that he owned only six houses and.therefore owned no house in excess of the Law. He was, he states,not obliged to make a declaration in terms of section 8. By letterdated 30.6.1975 (marked £4) the 5th respondent informed the appellantthat premises No.294, Kehelpandura Junction vested in him on the13th January 1973 in terms of section 11 and section 16 of the Law.This letter refers to a declaration sent by the Appellant to the 5threspondent. There was in fact no such declaration and that is thereason why the space provided in the letter for the date of thedeclaration is left blank. The 5th respondent appears to have usedand adapted a printed form meant for a different set of circumstances.The appellant appealed to the Board of Review in terms of section39 of the Law against this contention of the 5th respondent. TheBoard held that the premises in question was a “house” within theLaw and that it was not owned in excess of the permitted numberof houses in view of the fact that the appellant and his family wereentiteld to seven houses. The Board therefore ordered the 5threspondent to divest the said premises No. 294, Kehelpandura Junction.This he purported to do by Order dated 11.01.1980 (marked X7).The petitioner-respondent who claimed to be the tenant of the
Abeysekeru i' Wifeln/u;r nm! fV/im (S:i»uir,ikiHm. C.Ji
premises, then came into the picture. He filed an application in theCourt of Appeal praying for a Writ of Certiorari quashing the Orderof the Board of Review. The Court of Appeal by its Order deliveredon 6.2.1981 quashed both the Order of the Board and'the divestingOrder X7 of the 5th Respondent. Hence this appetif tb' this Court.
' ,4 c •
The first question to be decided is whether premises No. 294.Kehelpandura Junction, Udupila Road, is a house within the meaningof section 47 of the Property Law. It defines “House" thus –
– “house” means an independent living unit, whether assessedor not for the purpose of levying rates/ constructed mainly orsolely*' for residential purposes, and having a separate a'cCess,and through ‘which unit access cannot be had to any otherliving accommodation, and includes a flat or tenement, butshall not include –
sub-divisions of, or extensions to. a house which wasfirst occupied as a single unit of residence; and
a house used mainly or solely for a purpose otherthan a residential purpose for an uninterrupted periodof ten years prior to March l, 1972;"
The test is whether this is an “independent living unit", ■constructedmainly or solely for residential purposes". The petitioner-respondentstates that for very many years prior to the 13th January, 1973..•these premises had been occupied as' a residence by Him and beforehim by his parents and grand parents. The test must be an objectiveone and not, as contended by the petitioner-respondent (now represented■ by the 1st substituted respondent) a subjective' One. Its constructionand the purpose of the construction is what matters.
. A description of the building has Been given by witness K.J.y,Perera,Private Assessor, before the Board of Review. His dcscript jp.q, ofthe building is as follows:
“The front doors of the premises were plank doors about 6"broad. There were about 27 such planks which made up thefront door. In the middle there was a pillar. There were twodoor frames about I2’x 10’ and 12’x 6’. There'SVeVe'nSsif6orsfixed with hinges. The front door was a. boutique- type^dddf'.On entering the premises there is a hall about 6' broad and26’ long. About 3 planks of the front door . wore*i(f*pffni:fMdthe other planks were closed at the time 1 went for the
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inspection. There were no rooms inside the. premises but therewas a wooden partition partitioning the hall into two portions.
• The walls are of brick masonry. There is no lavatory to thepremises. It was an attached temporary kitchen built out ofwood and the roof was of cadjan. There were two smallwindows near the roof. These two windows were about 14’high quite near the roof and these windows had no panes.”
T|)is building has no rooms, no lavatory, and no doors, the entrancewas provided with 27 planks each 6” in width, which type is commonto wayside boutiques in this country. It is situated at the junctionIt is clear to my mind that this was a typical wayside boutiqueconstructed for the purpose of business. It is not a house within themeaning of section 47 of the Property Law, and therefore did notvest in the Sth respondent. The existence or absence of a declarationunder the provisions of section 8 has little bearing on the questionof vesting.
The events that followed unnecessarily complicated matters. Thewhole matter flew off at a tangent. The 5th respondent claimed itas vested property. He had no right to it. But there appears to havebeen some sort of inquiry by him followed by communciations dated26.06.1975 and 30.06.1975 (X4). The appellant then appealed to theBoard of Review in terms of the provisions of section 39 of theProperty Law. There was no “decision or detemination made by theCommissioner” under, the provisions of the Law. Hence there wasno right of appeal to the "Board , of Review. In the absence of suchdecision or determination the Board could not have entertained suchappeal and therefore its proceedings and order were devoid ofjurisdiction. The entire exercise from beginning to end was a futileone. I would therefore quash the Order of the Board and declarethat the contention of the 5th respondent that it was vested property(X4) has no legal consequences whatsoever. Premises No. 294,Kehelpandura Junction, Udupila Road, did not vest .in., the 5threspondent in terms of the Ceiling on Housing Property Law.
The appellant will be entitled to costs of this appeal and the.proceedings before the Court of. Appeal.
COLIN-THOMf:, J. – I agree.
SOZA, J. – I agree.
ABEYSEKERA v. WIJETUNGE AND OTHERS