033-SLLR-SLLR-2002-V-1-CASSIM-v.-WEERAWARDENE-COMMISSIONER-FOR-NATIONAL-HOUSING-AND-ANO.pdf
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CASSIM
v.WEERAWARDENE, COMMISSIONER FORNATIONAL HOUSING AND ANOTHER
SUPREME COURTFERNANDO, J.,
WADUGODAPITIYA, J. ANDISMAIL, J.
SC APPEAL NO. 72/2002CA APPLICATION NO. 897/2000FEBRUARY 25, 2002
Ceiling on Housing Property – Application for purchase of house – Section 13of Law, No. 1 of 1973 – Death of applicant tenant after the vesting order forthe sale of the house is Gazetted – The right of the tenant's widow to purchasethe house – Vested right.
The late Shah Mihilar was the tenant of the premises in suit since 1954 andoccupied it from that year with his wife the 2nd respondent. On 21. 06. 1968Mohideen Cassim purchased the premises with Mihilar in occupation whocontinued as the tenant of Mohideen Cassim. Appellant, the widow of MohideenCassim is the present owner in terms of the Last Will of said Mohideen.
On 20. 10. 1971 Mihilar applied to the Commissioner for National Housing topurchase the house in terms of section 13 of the Ceiling on Housing PropertyLaw, No. 01 of 1973. On 09. 04. 1996 the Commissioner recommended to theMinister that the house be vested in him for the purpose of sale to the tenant.The decision was affirmed by the Board of Review in appeal by an order dated22. 08. 1997. Thereafter, acting under section 17 (1) of the Law by a Gazettenotice the house was vested with effect from 22. 04. 1988 in the Commissioner.Mihilar the tenant died on 27. 04. 2000 leaving his wife the 2nd respondent asthe tenant in occupation of the house. In the meantime the Valuation Board underthe law had determined the value of the premises as Rs. 76,728 and notifiedthe parties by letter dated 08. 05. 2000. The 2nd respondent having receivedthe said notification informed the Commissioner that as her husband had diedshe was willing as the lawful heir of her deceased husband to make paymentand purchase the house.
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Cassim v. Weerawardene, Commissioner for
National Housing and Another (Ismail, J.)
317
The Commissioner informed the 2nd respondent that in view of the Supreme Courtdecision in Leelawathie v. Ratnayake she was not entitled to purchase the houseand that steps will be taken to divest the house.
Held:
In the circumstances of this case, in which the Minister had at the time of theapplicant-tenant's death made a vesting order in terms of the law, the right topurchase the house was a proprietary right which on the death of the applicantdevolved on his widow. It was a vested right which devolved on the applicant'sheirs.
Cases referred to :
Leelawathie v. Ratnayake – (1998) 3 Sri LR 349 (distinguished).
Atapattu v. People's Bank – (1997) 1 Sri LR 208 at 218-219.
APPEAL from the judgment of the Court of Appeal.
A. A. M. Marleen, PC with Miss R. Jayatilleke for appellant.
Anil Gooneratne, Deputy Solicitor-General with Ms. Shaheeda Barrie, State Counselfor 1st respondent.
Ms. Priyanthi Gunaratne for 2nd respondent.
Cur. adv. vult.
May 14, 2002
ISMAIL, J.
The 2nd respondent is the widow of Shah Mihilar who was the tenant, 1until his death on 27th April, 2000, of the residential premises bearingassessment No. 14, 9th Lane, Kollupitiya. The premises, as depictedin plan No. 731 dated 07. 07. 1965 made by A. F. Sameer, LicensedSurveyor, is in extent 9.4 perches.
The appellant, the present owner of the premises in terms of theLast Will, is the widow of Mohamed Mohideen Cassim, who purchasedthe same by deed No. 812 dated 21. 06. 1968 attested by Felix J.
P. Perera, Notary Public. The deceased husband of the 2nd respond-
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ent who was then in occupation of the premises continued as the 10tenant of the purchaser. The 2nd respondent and her deceasedhusband have occupied the premises since their marriage in 1954.
The 2nd respondent's husband made an application as the tenanton 20. 10. 1975 to the Commissioner for National Housing for thepurchase of the said premises in terms of section 13 of the Ceilingon Housing Property Law, No. 1 of 1973. The Commissioner on beingsatisfied after an inquiry of the conditions enumerated in section 17(1) (a) (b) (c) of the said Law recommended to the Minister on09. 04. 1996 that the house be vested in him for the purpose of saleto the tenant.20
The appellant appealed against the said decision of the Commis-sioner to the Board of Review, which by its order dated 22. 08. 1997,affirmed the decision of the Commissioner and dismissed the appealafter consideration without costs. The appellant did not seek to havethis decision varied in any appropriate proceedings.
Thereafter, the Minister of Housing and Urban Development byvirtue of the powers vested in him by section 17 (1) of the Ceilingon Housing Property Law, as amended, vested the house No. 14,
19th Lane, Kollupitiya, with effect from 22. 04. 1998 in the Commis-sioner for National Housing by publication in the Gazette.30
The Valuation Board constituted under the Ceiling on HousingProperty Law determined the value of the said premises as beingRs. 76,728.00 and notified the parties by letter dated 08. 05. 2000.
The 2nd respondent who received the letter addressed to her husbandinformed the Commissioner of the death of her husband and indicatedher willingness as the lawful heir of her deceased husband to makethe payment and purchase the house.
The Commissioner informed the 2nd respondent by his letter dated24. 07. 2000 that in view of the decision of the Supreme Court inLeelawathie v. Ratnayake<1> that she was not entitled to a transfer 40of the premises in her favour and that steps would be taken by himto divest the premises.
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Cassim v. Weerawardene, Commissioner for
National Housing and Another (Ismail, J.)
319
The 2nd respondent then moved the Court of Appeal by way ofa Writ of Certiorari to quash the aforesaid decision and to restrainor prohibit the Commissioner from divesting himself of the ownershipof the house. The Court of Appeal by its judgment delivered on
06. 2001 allowed the application and directed the Commissionerto accept the money and to transfer the house to the 2nd respondent.The present appeal is against the judgment of the Court of Appeal.
Learned President's Counsel for the appellant relying on the judg- soment in Leelawathie v. Ratnayake submitted that the right of a tenantto make an application for the purchase of a house let to him undersection 13 of the Ceiling on Housing Property Law was personal tohim and that it ceased upon his death. He pointed out that theCommissioner had not entered into an agreement with the tenant forthe sale of the house to him after the vesting as required by section17 (2) of the Law and that the tenant had not paid the purchase pricebefore his death.
The facts in Leelawathie v. Ratnayake were that pursuant to theapplication of the tenant under section 13 of the Ceiling on Housing 60Property Law to purchase the house let to her, the Commissionerdecided to recommend to the Minister the vesting of the house inhim for the purpose of sale to her. On an appeal by the owner ofthe house under section 39 of the Law, the Board of Review set asidethe decision of the Commissioner. The tenant then moved the Courtof Appeal by way of a Writ of Certiorari to quash the order of theBoard of Review. The tenant died pending the hearing of the appli-cation and her daughter was substituted after which the Court ofAppeal restored the order of the Board of Review. On appeal to theSupreme Court it was held that the right conferred by section 13 is ?opersonal to the tenant making the application and that as her rightceased upon her death, the daughter was not entitled to proceed withthe application made by her mother. It was noted that the tenant whomade the application died before an order was made vesting the housein the Commissioner and that there was not even a notification bythe Minister under section 17 (1) of the Law. It was held that in the
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circumstances the deceased tenant had no proprietary rights in respectof the house which could pass to the heirs on her death.
The facts of the present case are not similar and the judgmentin Leelawathie v. Ratnayake would, therefore, not be applicable. The 80house was vested in the Commissioner for the purpose of sale tothe tenant before his death. The order of vesting was made by theMinister by a publication in the Gazette dated 15. 05. 1998 in termsof section 17 (1) of the Law and the only outstanding step requiredof him to effect a formal transfer of the premises was the paymentof the purchase price. The tenant died on 27. 04. 2000 less thantwo weeks before the valuation of the house was communicated tothe parties. Upon receipt of the said letter dated 08. 05. 2000, the2nd respondent wife as the lawful heir indicated- her willingness topay the purchase price of Rs. 76,728 for the formal transfer of the «>house to her.
Even though the right of the tenant to make an application topurchase the house was a personal right, once that right was exercisedand a vesting order made, the character of that right changed. It wasa vested right which on the death of the applicant devolved on hisheirs. See the cases cited in Atapattu v. People's Bank.®
The Court of Appeal has correctly held that in the circumstancesof this case that the tenant had acquired a proprietary right in respectof the house which could be passed upon his death to his widow,the 2nd respondent.100
Accordingly, the judgment of the Court of Appeal is affirmed andthe appeal is dismissed without costs.
FERNANDO, J. – I agree.
WADUGODAPITIYA, J. – I agree.
Appeal dismissed.