DAYANANDA v. SUJATHA JANAKI AND OTHERS

010-SLLR-SLLR-1992-2-DAYANANDA-v.-SUJATHA-JANAKI-AND-OTHERS.pdf


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DAYANANDA
v.SUJATHA JANAKI AND OTHERS
COURT OF APPEALS. N. SILVA, J.
C.A. APPLICATION NO. 1197/8830 JANUARY AND 13 MARCH , 1992.
Writs – Certiorari – Order of Commissioner of National Housing under s. 20A(1) ofthe Rent Act No. 7 of 1972 as amended by Act No. 55 of 1980 – Landlord andtenant – Business premises – Application to construct building for residentialpurposes on a 10 perch block land appurtenant to premises that had beenrented out which was an extent of 34 perches – Can, the Commissioner act on areport of a delegate? – Requirement that order should be made only by theCommissioner.
Where an application is made by a landlord in terms of section 20A of the RentAct No. 7 of 1972 as amended by Act No. 55 of 1980 for authorisation toconstruct buildings or extensions to existing buildings on appurtenant land (whichshould exceed 8 perches) of tenanted premises, an order thereon should bemade by the Commissioner of National Housing or by a Government Agent or anassistant Government Agent to whom a delegation is made in terms of section44A. An order cannot be made by a Deputy Commissioner or an AssistantCommissioner nor can the exercise of that power be delegated to such an officer.But, in view of the matters that have to be considered prior to making an order thefunction of carrying out necessary investigations or inquiries and submitting areport thereon, may be assigned by the Commissioner to a subordinate officersuch as a Deputy or an Assistant Commissioner. In such event it is lawful for theCommissioner to make an order on a consideration of the proceedings had andthe report that is submitted without re-hearing evidence or calling for furtherrepresentations. Therefore the fact that the Commissioner agreed with therecommendations of the Asst. Commissioner cannot be the basis of asubmission, that the Commissioner failed to exercise his discretion in the matter.
Cases referred to:
Osgood v. Nelson (1872) The Law Reports p.636.
Allingham v. Minister of Agriculture (1948) 1 All ER 780.
Jeffs v. New Zealand Dairy Production and Marketing Board (1967)1 WLR 136.
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APPLICATION for writ of certiorari to quash the order of the Commissioner ofNational Housing.
Faiz Mustapha. P.C. with H. Withanachchi for Petitioner.
T. B. DillimuniwiVn Mr. Malalasekera for 2nd Respondent.
K. Siripavan, S.S.C. for 2nd and 4th Respondents.
Cur. adv. vult.
15th June. 1992.
S.N. SILVA, J.
The Petitioner has filed this application for a Writ of Certiorari toquash the order dated 29.09.1988 (P5) made by the Commissioner ofNational Housing. The order was made by the Commissionerpursuant to an application of the 1st Respondent in terms of section20 A(1) of the Rent Act No. 7 of 1972 as amended by Act No. 55 of1980.
The Petitioner is a tenant of premises No. 19, High Level Road,Kirulapona where he is carrying on the business of a bakery. Thepremises were leased to the Petitioner’s father by the grandmother ofthe 1st Respondent, the original Owner. There were two leases forperiods of five years each, commencing from 02.08.1968. After theexpiry of the leases the Petitioner continued as a monthly tenant ofthe premises paying a rental of Rs. 188/- per month.
The original owner gifted half share of the premises to the 1stRespondent on 03.05.1971. The balance half share was gifted to thebrother of the 1st Respondent. Subsequently, on 03.01.1982 the 1stRespondent purchased the balance half share from her brother. In1988 the 1st Respondent made an application to the Commissionerin terms of section 20 A(1) of the Rent Act as amended by Act No.55 of 1980, for an order authorising her as landlord to construct abuilding for residential purposes on the appurtenant land of thepremises that had been rented out. It is common ground that thepremises are 34 perches in extent and that the application has beenmade in respect of an extent of 10 perches situated behind thebuilding in which the Petitioner is carrying on his business. An inquirywas held into that application by the 4th Respondent being anAssistant Commissioner of National Housing. Notes of that inquiry
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have been produced marked ‘P4 Both parties were represented byCounsel and the 1st Respondent and the Petitioner gave evidence atthe inquiry. They also produced several documents. At theconclusion of the inquiry the 4th Respondent recorded that she willvisit the premises and the order would be communicated thereafter.By the order ‘P5‘ the Commissioner has authorised the constructionof a building for residential purposes on the extent of 10 perchesreferred to in the application of the Petitioner. The order is subject totwo conditions. They are
that in lieu of the well, presently used by the Petitioner andlocated in the area coming within the 10 perches, the 1stRespondent should construct another well, at her expense inthe area that will continue to be tenanted;
that the 1 st Respondent will erect a wall to separate theextent of 10 perches from the area that will continue to betenanted.
The Petitioner challenged the order on the following grounds
that the 4th Respondent did not inspect the premises asstated at the conclusion of the proceedings;
that the order is unreasonable since the Petitioner uses theextent of 10 perches to stack firewood and to dump therefuse ash of the bakery;
that the inquiry has been held by an Assistant Commissionerwho was not vested with power to make an order in terms ofsection 20 A and in any event the Commissioner has blindly“rubber stamped" the recommendations of the 4thRespondent, without effectively exercising his own discretion.
In view of the submissions that were made by learned Counsel forthe Petitioner, the departmental file of the Commissioner wasproduced in Court by learned Senior State Counsel. It was clear fromthe entries in the file that the 4th Respondent visited the premisesand made notes of the inspection carried out by her. In these
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circumstances learned Counsel for the Petitioner did not pursue thefirst ground referred to above. It is common ground that there are nobuildings in the area in respect of which the application has beenmade. According to the averments of the petition, the Petitioner isusing this land only to stack firewood and to dump ash. In thesecircumstances learned Counsel for the Petitioner indicated that he isnot pursuing the second ground as well. Submissions were made bylearned Counsel and written submissions were tendered only on thelast ground stated above.
Section 20 A(1) introduced by the amendment of 1980 reads asfollows
"The Commissioner of National Housing may on, applicationmade in that behalf and notwithstanding anything in this or anyother law, make order authorizing the landlord of any premiseswhere there is within the boundaries of such premisesappurtenant land exceeding eight perches in extent, toconstruct any building for residential purposes on such land orto make such extensions to existing buildings as are capable ofbeing used for residential purposes :
Provided that no such order shall be made by the Commissionerunless he is satisfied :
that the applicant has the financial capacity to construct thenumber of residential units within such period or periods asmay be determined by the Commissioner; and
that the building or extension proposed to be constructed ormade will not unduly interfere with the amenities and facilitiesenjoyed by the tenant, or where such amenities or facilitiesmay be interfered with, that the landlord will, before he takespossession of such land, provide to the tenant freshadequate amenities and facilities.
Every order made under this subsection shall becommunicated to the tenant of such premises and it shall be theduty of such tenant to permit the landlord of such premises to
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construct such building or to make such extensions as is or arereferred to in such order.”
The phrase “Commissioner of National Housing" appearing in thesection is not defined in the Act. Section 44 A of the Act permits theCommissioner to delegate any power, duty or function assigned tohim by the Act to a Government Agent or an Assistant GovernmentAgent. In the course of the submissions attention was drawn to otherstatutes in which reference is made to the Commissioner of NationalHousing. Section 47 of the Ceiling on Housing Property Law No. 1 of1973 defines the term “Commissioner” to mean a DeputyCommissioner or an Assistant Commissioner. Similarly, the NationalHousing Act No. 37 of 1954 which originally provided for the office ofa Commissioner for National Housing (section 8 (1) states in section100 that Commissioner means the Commissioner for NationalHousing and includes a Deputy Commissioner or an AssistantCommissioner. In the absence of a similar provision in the Rent Actand the limited delegation provided for in section 44 A, it is clear thatthe power vested in the Commissioner to make an order in terms ofsection 20 A cannot be exercised by an Assistant Commissioner norcan it be delegated to an Assistant Commissioner. The order ‘P5’ is inthe name of the Commissioner and is per se consistent with therequirements of section 20 A. The question that arises forconsideration is whether the Commissioner should directly engage inall the processes that precede the making of a decision.
An examination of the provisions of section 20 A reveals that theCommissioner must satisfy himself as to several matters beforegranting authority to a landlord to construct a building for residentialpurposes on the appurtenant land. The matters that have to beconsidered include the following
whether there is appurtenant land exceeding 8 percheswithin the boundaries of the tenanted premises;
whether the applicant landlord has the financial capacity toconstruct the given number of residential units within periodor periods as may be determined by the Commissioner;
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whether the building or the extension proposed to beconstructed will unduly interfere with the amenities andfacilities enjoyed by the tenant and if so whether the landlordshould provide alternative amenities and facilities before hetakes possession of the appurtenant land. ,
These provisions postulate an inquiry being held at which theapplicant landlord and the tenant are afforded an opportunity toadduce material in relation to the matters that have to be consideredby the Commissioner. The legislature would not have intended asingle individual in the form of the Commissioner of National Housing,to hold such inquiries in every instance. Hence I am of the view that itis consistent with the requirements of section 20A for theCommissioner to assign the function of holding necessary inquiriesand making a report thereon to a subordinate officer. This view issupported by a clear line of authority in England that dates back onehundred and twenty years.
In the case of Osgood v. Nelson<n, the House of Lords consideredthe validity of a dismissal ordered by a corporate body having thestatutory power to remove an officer from a corporation. Thecorporate body caused an inquiry to be made by a committee whichrecorded evidence and made a report. The inculpated Officer wasafforded an opportunity of being heard only before this committee.The corporate body did not re-hear the evidence and it decided todismiss the officer on the basis of the evidence recorded by thecommittee and the report that was submitted. It was held that the factthat an inquiry was held by the committee did not amount to adelegation of the power of dismissal to that committee and that thedismissal based upon the report of the committee was a due exerciseof the power by the corporate body itself.
In Halsbury's Laws of England (4th edition. Vol. 1 at para 32 it isstated as follows:
"Even where a power to make decisions is exercisable by thedelegate itself, however, considerations of practicalconvenience may justify the entrustment to a committee orofficers of powers to conduct an investigation and to makerecommendations as to the decision to be taken."
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Thus it is well settled in English Law that the authority vested with thepower to make a decision or order need not, carry out by itself, thenecessary investigations or inquiries that precede the making of thedecision or order. The function of carrying out necessaryinvestigations or inquiries and making a report thereon may well beassigned to a subordinate officer or agent of the authority. As notedby Wade (Administration Law, 6th edition (1988) at p.358), the vitalquestion to be determined is whether the statutory discretion remainsin the hands of the proper authority or whether some other personpurports to exercise it.
In the case of Allingham v. Minister of Agriculture™, relied upon bylearned Counsel for the Petitioner a Committee which wasempowered by war-time legislation to direct farmers to growspecified crops on specified fields, left it to its executive officer todecide the particular fields in respect of which such a direction isgiven. A farmer who did not comply with a direction of the executiveofficer was prosecuted for disobedience. It was held that thedirection was void since it was made by the executive officer and notthe committee. It is clear from a perusal of the judgment of LordGoddard, C.J. that the proper procedure would have been for thecommittee to have obtained the officer’s recommendations and tohave decided the matter of giving a direction on a consideration ofthat recommendation. It is thus seen that the judgment does not inany way support the submission of learned Counsel. On the contrary,the judgment supports the proposition that an authority having astatutory power to make a decision or an order can act on arecommendation made by an agent who has inquired into the mattersto be considered in making such decision or order. The case of Jeffsv. New Zealand Dairy Production and Marketing Board™, relied uponby learned Counsel for the Petitioner relates to a situation where adecision made upon a recommendation of a committee thatconducted inquiries, was quashed. However, it is clear on a perusalof the judgment that the decision is based upon certain defects in theprocedure adopted by the committee that carried out the inquiry anddrawbacks in the recommendations that were made by it. Thereforethis judgment too does not support the submission of learnedCounsel.
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On the foregoing analysis I hold that where an application is madeby a landlord in terms of section 20A of the Rent Act No. 7 of 1972as amended by Act No. 55 of 1980 for authorization to construct abuilding or extensions to existing buildings, on appurtenant land oftenanted premises, an order thereon should be made by theCommissioner of National Housing or by a Government Agent or anAssistant Government Agent to whom a delegation is made in termsof section 44A. In the absence of an interpretation clause in theRent Act defining the term “Commissioner” as in the case of theNational Housing Act and in the Ceiling on Housing Property Law or,of any other enabling provision to that effect, an order cannot bemade by a Deputy Commissioner or an Assistant Commissioner norcan the exercise of that power be delegated to such an officer. But, inview of the matters that have to be considered prior to making anorder, the function of carrying out necessary investigations orinquiries and submitting a report thereon, may be assigned by theCommissioner to a subordinate officer such as a Deputy or anAssistant Commissioner. In such event it is lawful for theCommissioner to make an order on a consideration of theproceedings had and the report that is submitted without re-hearingevidence or calling for further representations.
In this case the 4th Respondent who held the inquiry andinspected the premises submitted the record of the proceedings withher report to the Commissioner. At the hearing of this application thereport was made available to learned Counsel. On a perusal of thereport, it is clear that the 4th Respondent dealt with the matters atissue and took into account relevant evidence. Therefore the fact thatthe Commissioner agreed with the recommendations of the 4thRespondent cannot be the basis of a submission that theCommissioner failed to exercise his discretion in the matter.
The application is accordingly dismissed. The Petitioner will pay tothe 1st Respondent a sum of Rs. 2500/- as costs.
Application dismissed.