Biso Menkika Vs. Cyril de Alwis and Others

036-SLLR-SLLR-1982-1-Biso-Menkika-Vs.-Cyril-de-Alwis-and-Others.pdf


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SUPREME COURT
Biso MenikaVs.
Cyril de Alwis and Others
S.C. No 59/8J — C.A. Application No. 1123180
Certiorari – Landlord and Tenant – Ceiling on Housing Property Law No l of1979s.9,13,17-Rent Act s. 22(7) — delay — excuse — other legal remedies
Biso Menika had been a servant of one Mrs. Mabel Peiris since 1952.By Deed of No. 4396 of 31.12.73 Mabel Peiris gifted Premises No. 88,Horana Road to Biso Menika. The 7th Respondent was in occupation ofthe premises at time of the gift having been a tenant of the donor MabelPeiris since 1963. The 7th Respondent refused to attorn to Biso Menika.Biso Menika filed action for vindication of title and ejectment of 7th R.But the action was dismissed on the ground that premises No. 88. HoranaRoad had vested in the Commissioner on National Housing on 19.2.76under Section 17(1) of the Ceiling on Housing Property Law. This vestingwas consequent to an application by the 7th Respondent to purchase thepremises under Sections 9 of the Ceiling on Housing Property Law allegingthat Mabel Peiris owned houses in excess of the permitted number. Thisallegation was proved to be wrong as Mabel Peiris owned only two houses.
7th Respondent also made an application to purchase premises underSection 13 of the C.H.P. on 12.2.73. Petitioner moved Court to quashthe vesting order made by the Minister of Housing.
It was also contended on behalf of the 7th Respondent that no Writ ofCertiorari should apply as there was undue delay on the part of thepetitioner to seek relief and that the petitioner had misrepresented facts.
Held I) that 7th Respondent had no right to purchase premises underSection 9 of the CHP Law because Mabel Peiris did not own anyhouses in excess of the permitted number.
That 7th Respondent had no right to purchase the house underSection 13 of the CHP Law because at the time of makingapplication Mabel Peiris was not debarred by Section 22(7) of theRent Act from instituting action for ejectment of 7th Respondent.
That the 7th Respondent had ceased to be a tenant on hisrefusal to attorn to the Appellant and therefore he was not qualifiedto assert the right of purchase under Section 13 of the CHP Law.
That the Commissioner of National Housing acted ultra viresin taking action under section 17 the CHP Law and the Ministeracted ultra vires in making the vesting order because the applicationof the 7th Respondent under Sections 9 and 13 was not valid.
Bistt Meniku r. Cyril de Alwis (Sharvananda. J.)
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That Writ of Certiorari lies at the discretion of Court and willnot be denied if the proceedings were a nullity; even if there isdelay, especially where denial of the Writ is likely to cause greatinjustice, it will be issued.
That the disposition of parties to explore other lawful avenueswhich hold out reasonable expectation of obtaining relief withoutincurring expenses of coming into Court do constitute circumstancesjustifying delay in coming to Court.
That there was no attempt on the part of the Petitioner todeceive Court by suppressing or misstating any material fact.
Appeal from judgment of Court of Appeal.
Before:
Counsel:
Argued on:Decided on:
Sharvananda. J, Wanasundcra. J & Ratwatte, J.l.Q.N. de S. Scneviratne with C. de SWijeyeratne for the Petitioner.
D. Premaratne, S.S.C.. with K.C. Kamalasabayson,S.C., for the 6th & 8th Respondents.
Miss M.Seneviratne with H. Sencviratncfor the 7th Respondent.
16th, 17th &'19th March. 1982.
Cur. adv. vult.
11.5.1982
SHARVANANDA, J.,
By her petition filed on 19.1.80.. the petitioner appellant movedthe Court of Appeal for the issue of a Writ of Certiorari quashingthe Vesting Order dated 13th August 1976. made by the Ministerof Housing, under the provisions of Section 17(1) of the Ceiling onHousing Property Law No. 1 of 1979 (hereinafter referred to as the“Property Law’’) in respect of premises No. 88 Horana Road.Panadura belonging to her.
The Court of Appeal held that there was no .inquiry under section17 before the Vesting was made, but, in the exercise of its discretion,refused the petitioner's application on the ground of delay andmisrepresentation of facts. The petitioner has, with leave granted bythis Court, preferred this appeal to this Court.
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-.The petitioner had been in the employment of one Mrs. MabelPeiris since 1952. The latter, by Deed of Gift No. 4396 dated 31.12.73donated the aforesaid premises i.e. 88 Horana Road, to the petitionerwhen it was in the occupation of the 7th respondent who had beenher tenant thereof from 1963. Though the 7th respondent was notifiedof the above Deed of Gift 4396, and was requested to attorn to thepetitioner, he had refused to attorn to her and has continued toremain in the premises. The petitioner thereupon instituted actionNo. 14426 in the District .Court of Panadura on 7.5.75 against the7th respondent for vindication of her title and ejectment of the 7threspondent from the said premises. The District Court by its judgmentdated 9.8.77 accepted the petitioner’s title to the said premises andheld that in view of the 7th respondent’s refusal to attorn to thepetitioner he was a trespasser and had forfeited his rights andprivileges as a tenant. The Court however dismissed the petitioner’saction on the ground that the said premises had become vested inthe Commissioner of National Housing consequent to Vesting Orderdated 19.2.76, and published in Government Gazette of 13.8.1976,made under section 17(1) of the Property Law.
By application dated 12.2.73 the 7th respondent purported to applyunder sections 9 & 13 of the Property Law to the Commissioner ofNational Housing for the purchase of the said house No.88 HoranaRoad let to him. In this application he stated that Mrs. Mabel Peirisof No.86 Horana Road, was the owner of the premises. He furtherstated that the rent per month paid by him was Rs.50/-. It was hiscase that Mrs. Mabel Peiris was the owner of 3 houses situated atPanadura i.e. 86 Horana Road, 88 Horana Road (occupied by him)and No. 1 Kaviraja Mawatha. Under the provisions of the PropertyLaw the maximum number of houses which could be owned by anindividual was two. (“permitted number of houses”). Any houseowned on the date of the commencement of the Property Law, bya person who was not a member of a family, in excess of thatnumber constituted a surplus house for the purpose of the PropertyLaw. That Law did not bar the alienation of any house that comeswithin the category of “permitted number of houses”. But suchalienation to a stranger entitled the tenant of such house to makean application for the purchase of the house from the newowner/landlord (Section 13).
If there was no transfer to a stranger the tenant could not applyto purchase any of the permitted number of houses. On the oth- r
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hand a tenant of a surplus house could make application within 4months of the commencement of the Law for the purchase of suchhouse, even though there was no transfer of ownership of such house(section 9).
Further an owner of a surplus house had to notify a tenant ofsuch house the ownership of which such person did not propose toretain. And if the ownership of the surplus house is transferredwithout such intimation, the tenant could apply to purchase thathouse (sections 8 & 10). The difference in the measure of the rightsof the tenant of the respective category of houses has to be appreciatedin determining the pre-emptive rights of the 7th respondent topurchase the house let tp him.
In providing for involuntary divesting of houses the Law encroacheson the right of persons and hence is subject to strict construction.The presumption is that existing legal rights are not to be takenaway or eroded except by clear words in the statute.
Mrs. Mabel Peiris had no children: hence, under provisions of theProperty Law she could own only two houses. It was the contentionof the 7th respondent that Mrs. Mabel Peiris had a “surplus house”within the meaning of the Property Law and that as Mrs. Peiris hadnot made any declaration under section 8 of the Property Law andhad failed to indicate which of the houses she proposed to retain,the premises No.88 of which he was the tenant should be treatedas a surplus house in respect of which he could make an applicationunder section 9 of the Property Law.
The petitioner refuted the respondent’s statement and stated thatMrs. Peiris owned only two houses. Nos. 86 and 88 on the date ofthe commencement of the Property Law and that though she ownedpremises No. 1, Kaviraja Mawatha, there, was no house on the saidland, it being a bare land only. To qualify himself to make anapplication under section 9 of the Law the 7th respondent had tosatisfy Court of the existence of a house in premises No. 1, KavirajaMawatha, in order to establish that Mrs. Peiris owned three houses.For that purpose he produced deed No. 4324 dated 29.1.73 by whichMrs. Peiris transferred premises No.l, Kaviraja Mawatha to one
T.M.M Banda. He rested the proof of his case on that deed. Thereis however ex facie no reference to any house on that deed ofI6-4) conveyance. According to that deed what was conveyed was only
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bare land. No other evidence was adduced to establish that therewas in fact a house in the premises. There is no reference to anyhouse as being the subject matter of conveyance by that deed.Counsel for the 7th respondent strenuously submitted that since theoperative clause recited that the transferee was “to have and to holdthe said land and premises which are of the value of Rs. 6000/-”,and since one land alone was set out in the schedule to the deed,the mention of “land and premises” connoted something beside thesaid land and that something was a house. This ingenious contentionoverlooks the language and style of conveyancing and is insubstantial.If there was a house in existence, that fact could have been provedby positive evidence – by production of assessment registers,house-holder lists etc.. I agree with the finding of the Court ofAppeal that the 7th respondent had failed to establish the existenceof a house in premises No. 1, Kaviraja Mawatha, Panadura. In viewof this conclusion the 7th respondent's assertion that Mrs. Peiris wason the relevant date, owner of three houses is untenable and argumentbased on such assumption therefore .fails. Mrs. Peiris had no surplushouse to entitle 7th respondent to make an application under section9 of the Property Law. This section applies only to a surplus houseowned by a landlord. The house in question was therefore not asurplus house that could be applied for under section 9 of theProperty l.aw. Hence it was not competent for the 7th respondentto have made an application under section 9 for the purchase of thepremises' No.XX Horana- Road. The application could not have beenentertained by the Commissioner.
The question next arises whether the 7th respondent . is entitled tomaintain his application under section 13 of the Property Law forthe purchase of the house occupied by him.
Section 13 of the Law reads as follows – “Any tenant maymake an application to the Commissioner for the purchase ofthe house let to him where no action or proceedings may underRent Act No.7 of 1972 he instituted for the ejectment of thetenant of such a house on the ground that such a house isreasonably required for occupation as a residence for the landlord-of such a house or for any member of his family."
The provision of the Rent Act No. 7 of 1972 which positively barsthe institution of an action for the ejectment .of the tenant , on tjte ,
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ground referred to in section 13 of the Property Law is' section 22
of the Rent Act. This section provides as follows:
“notwithstanding anything* in the preceding provisions of thisAct, no action or proceedings for the ejetnVVent ol the tenantof any premises referred to in sub-section ‘(l) or subsection(2)(l) shall be instituted on thV grc’n'md'that such premises arcreasonably required for occupation as a residence tor thelandlord or any member of the family of the landlord, or for
the purpose of the trade, business of the landlord.
where the ownership of such premises was acquired by thelandlord on a date subsequent to the specified date, bv'purchaseor inhcritencc or gift, other than from a parent or spouse whohad acquired ownership of such premises, on a date prior to
the specified date" In this sub-section • specified
date" means “the date on which the tenant tor the time beingof the premises came into occupation.”
The premises referred to in sub-section 22(1) and sub-section22(2)(1) of the Rent Act and alluded to in section 13 of the Laware respectively residential premises.' the standard rent of which fora month does not exceed Rs. 100/- and premises the standard rentof which exceed Rs. 100/-. The rent bfTTie premises, the subjectmatter of the 7th respondent's application', is Rs. 24/02 per month.Hence they are premises in respect of which, by the terms of section22(7) of the Rent Act an action for ejectment of the tenant fromthe premises could not be instituted on the ground of reasonablerequirement by the transferee from the original landlord. If suchpremises are transferred over the head of the tenant, though thetransfer is not invalid, yet it attracts section 13 of the Property Lawand entitles the tenant to apply for the purchase of the house fromthe new owner-landlord. The integration of section 22(7) of the RentAct into the scheme of the Property Law via section 13 of the Lawhas the following effect:- the pre-emptive right of purchase underthat section of the Law (a) accrues only in the event of there beinga transfer or devolution of the premises from tire original landlordto a new owner, such as is referred to in sect ion 22(7) of the Act.subsequent to the date when the tenant 'clinic into occupation of thepremises and (b) is available only to the person who was the tenantof the premises prior to such transfer or devolution and who continuesto be tenant under the new owner. Section 22(7) of the Rent Act
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postulates the existence of the relationship of landlord and tenantbetween the new owner and the person who was the tenant of thepremises at the time of the transfer of the premises. It is essentialfor the competency of an application under section 13 of the PropertyLaw that the applicant should have become the tenant of the premisesunder the new owner. The relationship of landlord and tenant isconstituted by the tenant recognising the new owner as his landlordby attorning to him. If he refuses to attorn he forfeits the tenancyand becomes a trespasser and is not entitled to make or maintainany application under section 13 of the Law.
It may be argued that in respect of the house in question thatMrs: Peiris could not have, under section 22(1) of the Rent Actejected the 7th respondent on the ground of her reasonable requirementfor occupation as residence, since that sub-section did not empowerthe Court to entertain an action for the ejectment of the tenant onthat ground where the standard rent of the premises was under Rs.100/- per month and the tenancy had commenced prior to the dateof the commencement of the Rent Act of 1972. But the languageof section 13 for this Property Law indicates that what was incorporatedby reference in that section was the relevant provision of the RentAct which absolutely bars the institution of such action in respectof all categories of premises governed by the Rent Act and not thesection of the Rent Act which fails to recognise reasonable requirementas a ground for the institution of an action for ejectment. The clausein section 13 of the Law “Where no action or proceedings mayunder the Rent Act No. 7 of 1972 be instituted” has the import of“where no action or proceedings under Rent Act shall be instituted.”The word “may” in the context must be construed that way. It isclear that the reference is to section 22(7) of the Rent Act. Hencethe above argument is not available to the 7th Respondent on theconsideration of his application under section 13 of the Law.
On the date of the 7th respondent’s application under section 13of the Property Law i.e. 12.2.73 Mrs. Peiris was the owner andlandlady of the premises. She had been his landlady and the ownerof the premises from the date he became a tenant. No transfer ofthe premises as postulated by section 22(7) of the Rent Act had yettaken place. Hence section 22(7) has no application to the premises,during the tenure of Mrs. Peiris’s ownership. It was not competentfor the 7th respondent to have made this application under section
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13 of the Property Law against Mrs. Peiris. The application waspremature and the Commissioner could not have entertained the 7threspondent’s application for the purchase of the house from Mrs.Peiris under section 13 of the Property Law.
Mrs. Peiris gifted the premises to the petitioner and the petitioneracquired ownership thereof only on 31.12.73 long after the 7threspondent’s application. In view of the fact that the 7th respondenthad refused to attorn to the petitioner on the latter acquiring ownershipof the premises in December 1973. he ceased to be a tenant of thepremises and hence did not have the status to make or maintain theapplication against the petitioner under section 13 of the PropertyLaw. It is fundamental that the relationship of tenant and landlordshould subsist between the applicant under section 13 of the Lawand the respondent from whom the house is sought to be purchased.Proceedings under section 17 of the Law can be taken only on anapplication warranted by the provisions of the Property Law. If theapplication is not sanctioned by any provision of that Law it wasnot competent either for the Commissioner of National Housing orthe Minister to have taken proceedings under section 17 and noVesting Order under section 17 could have been made by the Ministerunder that section. In view of the fact that the 7th respondent’sapplication is not sanctioned by section 9 or 13 of the Property Law.the Commissioner acted ultra vires in taking action under section 17and the Minister ultra vires in making the Vesting Order under thatsection. The proceedings and the Vesting Order were hence nullitiesand void in Law. Where a statutory authority has acted ultra vires,any person who would be affected by its act, if it was valid, isnormally entitled ex debito justitiae to have it set aside if he proceedsby way of Certiorari. The Court may however exercise its discretionto refuse the remedy on the grounds of laches, delay or acquiescence.
The Court of Appeal misdirected itself in holding that the housein question could in the circumstances have been vested in theCommissioner on the application of the 7th respondent.
In view of the above conclusion it is not necessary to deal withthe contention of the Counsel for the petitioner which fouRd favourwith the Court of Appeal that the procedural requirements of section17 of the Property Law had not been complied with
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The ground .for rejection of petitioner’s application for Writ bythe Court of Appeal is that there had been undue delay andmisrepresentation of facts on the part of the petitioner in makingher application for Writ. Counsel for the petitioner-appellant hassubmitted that the conclusions of that Court arc not warranted inlaw and have to be reviewed.
The Minister’s Vesting Order complained of though made on the19th February 1976, was gazetted on 13th August 1976 and theapplication for Writ was made about 3 1/2 years later on 19.1.80.The petitioner became aware of the said Order only on the 7th ofSeptember 1976 when her action No. 14424 in the District Court ofPanadura was called for delivery of judgment. On that'day the 7threspondent produced a copy of the Government Gazette dated 13thAugust 1976 which showed that the premises in question had beenvested in the Commissioner of National Housing. The petitionerthereupon appealed to the Board of Review constituted under section29 of the Property Law, His appeal was inquired into on 18.3.78.One Mr. Peiris. husband of Mrs. Mabel Peiris appeared for thepetitioner at the inquiry. The record of the proceedings of the Boardof Review of that date reads as follows:-
“Mr. Peiris states that the appellant received communicationdated 3.11.76. stating that the premises had been vested andit has been published. in the Gazette and that payments arebeing made to the Commissioner. Wc have heard Mr. Peiriswho has set out the,:fpcts very clearly but he concedes that ir.view of the fact that.ithe Minister had made the Order andvesting has been gazetted, he has no right of appeal. Furtherthe appeal made by the appellant is made prior to the intimationby the Commissioner* of the Minister’s Order. We thereforemake Order dismissing this appeal. Mr. Peiris has indicatedto us that he had already made representations to the Committeeof Inquiry which is now being held to inquire into injusticescaused by the Orders of the Commissioner and has stated thathe will pursue that appeal.”
The’petitioner had on or about 24.9.77 made application to the'Committee of Inquiry appointed by the present Minister of Housingto'investigat'. hardships and injustices caused by the administrationof the Property Law. That application was inquired into on 23rdOctober, 1978. According to her thereafter she had addressed numerous
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letters to the Committee and had waited for the .Committee's reporton her complaint, and as she had not reecivcd any reply she filedthe present application in Court on 19.1.80. The respondents havenot denied this averment.
The Court of Appeal had considered the proceedings of the Boardof Review dated 18.3.78 and has concluded that the petitioner hadabandoned her appeal to the Board. This conclusion cannot besupported. What happened before the Board that day was that whenthe petitioner’s representative was told that since the Minister hadmade the Vesting Order under section 17 of the Property Law. theappeal was futile, the representative, being a laym;jn, accepted theuntenability of the appeal to the Board. Such acceptance does notamount to an abandonment of the appeal. From an admission ofLaw that went to the root of the appeal an abandonment of heappeal cannot be spelt. The Board of Review however dismissed'the1appeal on the ground that the appeal had been preferred prior tothe intimation by the Commissioner on 3.11.76 of the MinistersOrder. The proceedings before the Board of Review arc relevant toshow that the petitioner was pursuing a legal remedy that was opento her and that she was not guilty of unreasonable delay in seekingthe Writ.
A Writ of Certiorari is issued at the discretion of the Court. Itcannot be held to be a Writ of right or one issued as a matter ofcourse. But exercise of this discretion by Court is governed by certainwell-accepted principles. The Court is bound to issue, a Writ at theinstance of a party aggrieved by the order of an inferior tribunalexcept in cases where he has disentitled himself to the discretionaryrelief by reason of his own conduct, like submitting to .jurisdiction,laches, undue delay or waiver. As Lord Greene M.R.. in Rex- Kv.Stafford justices (1940) 2 K.B 33 at page 43.stated
“Now, in my opinion, the Order, for the i$gye of Writ ofCertiorari is, except in cases where it .goes of course, strictlyin all cases a matter of discretion, It is perfectly true, to saythat if no special circumstance exists,and if all that appears isa clear excess of jurisdiction, then a..person aggrieved.J?,v. thatis. entitled ex .debito justitiae to his Order. That merely meansthis, in my judgment, that the Court in speh circumstanceswill exercise its discretion by granting the relief. In all discretionaryremedies it is well known and settled that in certain circumstances
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I will not say in all of them,but in a great many of them
the Court, although nominallyit has a discretion,if it is to
act according to the ordinary principles upon which judicialdiscretion is exercised, must exercise the discretion in a particularway and if a Judge at a trial refuses to do so then the Courtof Appeal will set the matter right. But • when once it isestablished that in deciding whether or not a particular remedyshall be granted the Court is entitled to inquire into the conductof the applicant, and circumstances of the case, in order toascertain whether it is proper or not proper to grant the remedysought, the case must in my judgment be one of discretion.”
The proposition that the applicationfor Writ must besought as
soonasinjury 'is caused is merely anapplication of theequitable
doctrine that delay defeats equity and the longer the injured personsleeps over his rights without any reasonable excuse the chances ofhis success in a Writ application dwindle and the Court may rejecta Writ application on the ground of unexplained delay.
“Laches is such negligence or omission to assert a right andtaken in conjunction with the lapse of time, more or less great,and other circumstances causing prejudice to an adverse partyoperate as a bar in a Court of equity” Ferris – Extra-OrdinaryLegal Remedies – para 176.
“Where it would be practically unjust to give a remedy eitherbecause the party has, by his conduct done that which mightfairly be regarded as equal to a waiver of it, or where by hisconduct and neglect he has, though perhaps not waiving thatremedy, yet put the other party in a situation in which itwould not be reasonable to place him if the remedy wereafterwards to be asserted, in either of these cases lapse oftime and delay are most material. But in every case, if anargument against rejief, which otherwise would be unjust, isfounded upon mere delay, that delay of course not amountingto a bar by any Statute of Limitation, the validity of thatdefence must be tried upon principles substantially equitable.Two circumstances always important in such cases are thelength of the delay and the nature of the acts done duringthe interval which might affect either party and cause a balanceof justice or injustice in taking the one course or the other,so far as related to the remedy.” Lindsey Petroleum Co., Vi.Hurd (1874) L.R., 5 P.C 221 at 239.
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An application for a Writ of Certiorari should be filed within areasonable time from the date of the Order which the applicantseeks to have quashed. What is reasonable time and what willconstitute undue delay will depend upon the facts of each particularcase. However the time lag that can be explained does not spelllaches or delay. If the delay can be reasonably explained, the Courtwill not decline to interfere. The delay which a Court can excuse isone which is caused by the applicant pursuing a legal remedy andnot a remedy which is extra-legal. One satisfactory way to explainthe delay is for the petitioner to show that he has been seekingrelief elsewhere in a manner provided by the Law.
When the Court has examined the record and is satisfied the Ordercomplained of is manifestly erroneous or without jurisdiction theCourt would be loathe to allow the mischief of the Order to continueand reject the application simply on the ground of delay, unlessthere are very extraordinary reasons to justify such rejection. Wherethe authority concerned has been acting altogether without basicjurisdiction, the Court may grant relief in spite of the delay unlessthe conduct of the party shows that he has approbated the usurpationof jurisdiction. In any such event, the explanation of the delay shouldbe considered sympathetically.
“Recent practice clearly indicates that where the proceedingswere a nullity an award of Certiorari will not readily be denied"- de Smith – Judicial Review – 4th Ed. page 426.
In this connection Professor Wade in his “Administrative Law"4th Ed. at page 561 ,states -…
“the discretion to withhold remedy against unlawful action maymake inroads upon the rule of .Law and must therefore beexercised with the greatest care. In any normal case the remeejvaccompanies the right, but the fact that a person aggrieved,^entitled to Certiorari ex debito justitiac docs not alter the factthat a Court has power to exercise the discretion against turn,as it may in the case of any discretionary remedy."
Unlike inEnglishLaw or in our Lawthere is no statutory time
limit withinwhich apetition for the issue of a Writ mustbe filed.
But a rule of practice, has grown which insists upon such petitionbeing madewithoutundue delay. Whenno time limit isspecified
for seekiingsuch remedy, the Court hasample power tocdndo'ne
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delays, where denial of Writ to the petitioner is likely to cause greatinjustice. The Court may therefore in its discretion entertain theapplication in spite of the fact that a petitioner comes to Court late,especially where the Order challenged is a nullity for absolute wantof jurisdiction in the authority making the order.
The Court of Appeal has held that it cannot excuse the delaycaused by the petitioner's appeal to the Committee of Inquiry setup by the present Minister in 1977. The question is, did the delayresult from the petitioner pursuing a legal remedy, not a remedywhich is extra legal. If the petitioner has been seeking relief elsewherein a manner provided by the Law he cannot be guilty of culpabledelay. Further the predisposition of parties to explore other lawfulavenues which hold out reasonable expectation of obtaining reliefwithout incurring the expense of coming into Court cannot beoverlooked or censored and any delay caused thereby cannot becharacterized unjustifiable. The Committee of Inquiry referred to bythe petitioner was appointed by the Minister the 8th respondent toinquire into the hardships and injustices caused to persons by thepast administration of the Property Law, and report to the Minister.This report is not intended to be an academic exercise, sterile oflegal purpose. Section 17(a)(1) of the Law provides-
“notwithstanding that any house is vested in the Commissionerunder this Law, the Commissioner may with the prior approvalin writing of the Minister, by Order published in the Gazettedivest himself of the ownership of such house and on publicationin the Gazette of such Order, such house shall be deemednever to have vested in the Commissioner.”
The Court of Appeal has failed to appreciate the legal significanceof the Committee's Report. It is designed to inform the mind of theMinister of instances of injustices to enable relief by way ofdivestment-Orders under section 17(l)(l)-to be rendered. There wascertainly legal warrant for petitioner’s expectatiqn of getting thenecessary relief when she complained to the Committee. Thiscircumstance furnishes reasonable excuse for the delay occasioned bythe petitioner’s application to the Committee of Inquiry for relief.The Court of Appeal erred in regarding that the Law does notrecognise any appeal to any Board unless that Board (and Committee)has the' power to set aside the Order of the “Commission” and
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consequently refusing to take into consideration the petitioner's appealto the Committee to excuse her delay in coming to Court. Theconduct of the petitioner cannot certainly be branded as unreasonableto disentitle her to a Writ especially when the Order challenged wasa nullity.
A person who applies for the extra-ordinary remedy of Writ mustcome with clean hands and must not suppress any relevant factsfrom Court. He must refrain from making any misleading or incorrectstatements to Court.
In Hal.sbury Laws of England – Vol.ll, 3rd Ed. page 71,para 128 it is stated “on an application for relief the utmostgood faith is required and if the applicant in his affidavitsuppress the. material facts the Court will refuse an Orderwithout going into the merits."
In Rex Vs. Kesington Income Commissioners – (1977) 1 K.B.486. Viscount Reading, C.J., observed – “where an ex parteapplication had been made to this Court for a rule Nisi orother process, affidavit in support of the application w'as notcandid, and did not fairly state the facts, but stated them insuch a way as to mislead the Court as to the true facts, theCourt ought for its own protection and to prevent an abuseof its process to refuse to proceed any further with theexamination of its merits. This is a power inherent in theCourt." He however warned that this is a power “which shouldonly be used in cases which bring conviction to the mind ofthe Court that it has been deceived." This power should beexercised only when the statement of facts is calculated tomislead the Court on important relevant matters."
The alleged misrepresentation of facts which was a ground for theCourt of Appeal exercising its discretion against the petitioner andrejecting her application was that “in paragraph 14 of her affidavitthe petitioner has stated that the Board of Review dismissed theappeal of the petitioner. And in paragraph 19 the petitioner pleadedthat the order of the Board was contrary to law as the Board ofReview does have the power to hear and determine appeals even ifthe said property has been vested in the Commissioner of NationalHousing by the Hon. Minister." The Court construed these averments
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as an attempt on the part of the petitioner to conceal the true stateof affairs in respect of the Order of the Board of Review dated18.3.78 when, according to it, she had abandoned the appeal byconceding that she had no right of appeal. In my view the Courthas fallen into grave error in concluding that the petitioner had triedto mislead that Court in making the said averments. The Court hadmisread the context and had without justification assumed that thepetitioner had abandoned her appeal to the Board of Review, whenher lay-representative agreed with the Board’s proposition of lawthat she had no right of appeal in view of the gazetting of theVesting Order.
Though the.above was the only instance of alleged misrepresentationof facts cited by the Court of Appeal counsel for the 7th respondentdrew our attention to averment 10 of the petitioner’s affidavit whereinshe has stated that on or about 10.11.75 the 7th respondent hadmade an application under the Property Law to purchase the house,when in fact the 7th respondent had made his application on orabout 12.2.73 and had filed an affidavit before the Commissioner on25.10.75 and inquiry into his application took place on 30.11.75. Inmy view this erroneous statment does not amount to misrepresentationof facts.
In my view there is no attempt on the part of the petitioner todeceive the Court by suppressing or misstating any material fact.
Counsel for the 7th respondent stated that the delay on the partof the petitioner in making this application for Writ had causedprejudice to the 7th respondent and that it is not just and reasonablefor the Vesting Order to be nullified and he be deprived of thechances of completing his purchase of the house. According to the7th respondent he had on the faith of the validity of the Vesting Order.-
had deposited with the Commissioner of National Housinga sum of Rs. 2363/- as an advance on the purchase price,
had paid a sum of Rs. 2100/- on account of the rent of thepremises,
had paid a sum of Rs. 750/- as taxes,
had expended a sum of Rs. 7650/- on repairs effected to thepremises.
In my view these payments or expenditure cannot operate as abar to a Writ which ex debito justitiae the petiitoner is entitled to.
sc
liiso Menika v. Cyril de Alwis iShan tmamla. J.)
383
The 7th respondent should be able to get back the advance of Rs.2362/- from the Commissioner of National Housing on this VestingOrder being declared null and void. The 7th respondent has for hisown benefit expended this sum of Rs. 7650/- on repairs to premiseshe was occupying and not on any improvements. The sum of Rs.2100/- was according to the 7th respondent paid on account of therent of-the premises. He has also paid a sum of Rs. 750/- as faxes.He was a trespasser as against the petitioner. He had not paid anydamages for his occupation of the premises from January 1974. Inthe circumstances, the 7th respondent has not sufferned any prejudice;no injustice will be cayspjj to the 7th respondent by the issue of the Writ.
I hold that the^'Cofftrtii'ssioner acted ultra vires in1 entertaining the7th respotfdg'hPs affpji'&iion to purchase the'Jiousb under, section 9and/or; _ 1.3* of. ,the Ceiling on Housing Property Law ,apd ,in makinga determination under section 17 of said Law. 1 also1 hold 'that theMinister of Housing had no jurisdiction to make the Vesting Orderdated 1!9’.2!76'and gazetted on 13th August 1976!"
I set aside all the proceedings before the Commissioner of NationalHousing and the Vesting Order made by the Minister in respect ofthe premises No. 88. Horana Road. .Panadura, I set aside the judgmentof the Court of Appeal and allow, the appeal and the application of.the petitioner-appellant. 1 direct the issue of a Writ of Certiorariquashing the Commissioner s decision ” and' the Minister's VestingOrder, both alleged to have been made under section 17(1) of theCeiling on Housing Property Law.
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The 7th respondent will pay the petitioner-appellant her costs botjiin this Court and the Court of Appeal.
In view of the above Order. I trust that the Commissioner willhand over to the petitioner the aggregate amount paid to him bythe 7th Respondent as rent, towards the reduction of the damagesdue to her from the 7th defendant for his occupation- of her premisesNo.88.
WANASUNDERA, J.. — I agree.
RATWATTE, J.. —I agree.Appeal allowed