DOMINIC vs. MINISTER OF LANDS AND OTHERS

027-SLLR-SLLR-2010-V-2-DOMINIC-vs.-MINISTER-OF-LANDS-AND-OTHERS.pdf


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DOMINIC VS. MINISTER OF LANDS AND OTHERSCOURT OF APPEALSRI SKANDARAJAH, J.CA 918/2005OCTOBER 17, 2007
Writ of Certiorari • Who are necessary parties? Failure – Is it
fatal? At what point of time could an application to add a party
be made? Proper party • Necessary Party – Difference?
Held
Where an order would affect adversely a party who is not beforeCourt, that party must be deemed to be a necessary party andconsequently the failure to make the necessary party a respondentmust be regarded fatal to the application.
A necessary party is one without whom no order can be effectivelymade. A proper party is one in whose absence an effective ordercan be made but whose presence is necessary to a complete andfinal decision on the question involved in the proceedings.
An application for addition will be allowed only if the application isnot yet ready for disposal by Court.
APPLICATION for a writ of certiorari – on a preliminary objection
raised.
Cases referred to:
Perera us. National Housing Authority – 2001 – 3 Sri LR 50
Abayadura and 162 others vs. Dr. Stanley Wijesundara – ViceChancellor, University of Colombo and another- 1983 2 Sri LR 268.
In Re vs. John Neil keerthi – 3 SCC 12.
Carron vs. Government Agent, Western Province – 46 NLR 237
Goonetilaka vs. Government Agent, Galle – 47 NLR 190
James Perera vs. Godwin Perera – 48 NLR 190
Rawaya Publisher and other vs. Wijedasa Rajapakse, Chairman,Sri Lanka Press Council and others – 2001- 3 Sri LR 213
CA
Dominic Vs. Minister of Lands and others
(Sriskandarujah, J.)
399
Udit Nanayan Singh vs. Board of Revenue – AIR 1963 – SC 768
Prabodh Derma vs. State of Uttara Pradesh – AIR 1985 – SC 167
Vinna Sithamby vs. Joseph- 1961 65 NLR 359
Jamila Umma vs. Mohamed – 50 NLR 15, 17
Dharmaratne vs. Commissioner of Elections – 1950 – 52 NLR 429,432
Ramasamy vs. Ceylon State Mortgage Bank (1967) 78 NLR at 516.
Geoffrey Alagaratnam with M. Sithambaram for petitioner.
Ms. G. Wakista Arachchi SC for 1- 3 respondents.
Nimal Jayawardene with M. A. P. Bandara for 4°* respondents.
S. L. Gunasekera with Rukshini Senaratne and Anuraddha Dharmaratnefor 5th Respondent.
Cur.adv.vult
December 03rd 2007SRISKANDARAJAH, J.
The Petitioner in this application has sought a writ ofcertiorari to quash the cancellation of the divesting order asset out in government Gazette No. 1349/17 of 15.07.2004marked P28(a) and a writ of mandamus against the 1st and /or 2nd and/or 3rd and /or 4th Respondents and/or their agentsand/or servants for transfer of condominium Unit 1 D, TowerBuilding, Station Road, Colombo 4 on a valuation and/or asper terms agreed.
The 5th Respondent raised a preliminary objection andsubmitted that the I.C.C. Housing Private Limited has putup a building in the said land spending over one billionrupees and it is nearly in completion and out of the apartmentssome of the apartments are sold to private parties. Thereforethe 5th Respondent submitted that the I.C.C. HousingPrivate Limited is a necessaiy party to this application. Hefurther submitted that if the above prayers are granted to thePetitioner the rights of the I.C.C. Housing Private Limited willbe adversely affected.
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The 4th Respondent also raises a similar preliminaryobjection that the necessary parties namely: National HousingDevelopmentAuthorityand Ocean ViewDevelopmentCompanyPrivate Limited who are the owners of the building in relationto which the Petitioner is seeking a mandamus are not madeparties. They are necessary parties to the effectual adjudicationof the question in issue.
The Petitioner submitted that he was the owner of acondominium unit on the subject premises. This premiseswas acquired under the Land Acquisition Act under Proviso(a) of section 38 and the relevant Section 5 and Section 7notices were also published in the Government Gazette. ThePetitioner submitted that he was called upon to vacate hiscondominium unit on the subject premises and to reside atthe condominium unit in the Tower Building of Colombo 4.The residential condominium unit on the subject premiseswas demolished. The Petitioner was not paid his compen-sation. A divesting order of the said property was made on23.07.1991 under Section 39A of the Land Acquisition Act.In view of the divesting of the said land and the demolitionof the residential condominium which stood on the saidland, the Petitioner together with another person becameco-owner of the bare land. However on 15th July 2004 the saiddivesting was cancelled by a Government Gazette notificationpublished in Gazette No. 1349/17ofl5.07.2004.The Petitioner 1challenges the said cancellation of the divesting order on thebasis that it is ultra vires, in breach of natural justice, for anulterior purpose and mala fide.
The quashing of the said cancellation of the divesting orderwould have a bearing on the co-owner of the Petitioner as wellbut the Petitioner has not made him a party to this application.
If a writ of certiorari is issued to quash the cancellationof the divesting order the persons who have constructed the
CA
Pushpakumara vs. Lieutenant Commander Wijesuriya and others(Sriskandarajah, J.)
401
building on the said land as submitted by the 5th Respondentwill be adversely affected. The co-owner of the said land is alsoa necessary party for the proper adjudication of the questionin issue.
In relation to the prayer of mandamus the Petitioner is'seeking an order to transfer the Tower Building condominiumunit to him. If the said unit has to be transferred to thePetitioner only the owner of the said building could do so. Asdisclosed by the 4th Respondent the owner of the said buildingis the Ocean View Development Company (Pvt) Ltd which wasnot made party to this application.
In Perera v. National Housing Authority the court held:
“Another objection raised by the respondents was thatnecessary parties have not been brought before Court.The Chairman of the National Housing DevelopmentAuthority in his affidavit had disclosed that what everthe action that was done was on a direction givenby the cabinet. The land was 1st transferred to UDAand then to the Church Authorities by UDA. I amof view that when these matters were disclosed thepetitioner should have moved this Court to add theCabinet of Ministers UDA and the Church Authorities asparties to this application. This was not done. These arenecessary parties to the effectual adjudication of thequestion in issue. I uphold this objection that necessaryparties have not been made respondents.”
In the instant application also the Respondents namelythe 4th and the 5th Respondents in their objections haddisclosed that the 4th Respondent after having obtained theapproval of the 3rd Respondent handed over the said land toICC Housing Private Limited a duly incorporated companyfor development. The said company has constructed over 70
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residential apartments in the said land with a project cost ofapproximately Rs. 1,205,000,000.00.
The 4th Respondent in his objection disclosed thatthe said Tower Building is being managed by Ocean ViewDevelopment Company (Private) Ltd which is a jointventure company between the 4th Respondent Authorityand the National Housing Development Authority.
The Petitioner would have come to know that the ICCHousing Private Limited, Ocean View Development Company(Private) Ltd and the National Housing Development Authorityare necessary parties to this application at least after theRespondent filed their objection but the Petitioner hasnot taken any steps to add them as parties other than thePetitioners attempt to amend the Petition and it was refusedby this court.
The law regarding necessary parties and the conse-quence; if parties who ought to be joined, are not madeparties to an application is dealt with extensively inAbayadeera and 162 Others v. Dr. Stanley Wijesundera, ViceChancellor, University of Colombo and Another121 the Courtobserved:
In the matter of the application of John Neil KeitH3) for aWrit Mandamus on the Government Agent, Western Provincethe applicant applied for the issue of a Mandamus on theGovernment Agent, Western Province, requiring him torecognise the due election of Mr. Leechman as Councilor forthe Slave Island Ward of the Colombo Municipality, and topermit him to exercise the said office. Neither Mr. Leechmannot the rival candidates were made parties to the writproceedings. Caylay, C.J. said –
“Now, before considering the nature and object of themandamus applied for, it appears to us that there is at the
CA
Dominic Vs. Minister of Lands and others
(Sriskandarajah, J.)
403
outset a fatal objection to granting it. In effect we are askedto pronounce an opinion upon a disputed election, and tocompel the Government Agent to espouse the said of aparticular candidate, without either of the candidates them-selves being parties to the proceedings or having had anynotice of them. This we cannot do. Even if we granted themandamus, neither of the candidates would be bound in anyway by these proceedings or prevented from.hereafter takingsuch steps, as may be lawful, either for the ratification of hiselection or the annulment of the election of his rival.”
In Catron v. Government Agent, Western ProvinceMr. Carron, the unsuccessful candidate, applied for a Writof Mandamus to set aside the election of the successfulcandidate alleging irregularities committed by the ReturningOfficer with regard to the nomination of candidates and to thepermission granted to one candidate to withdraw from theelection. It was admitted that Mr. Jayasinghe had acceptedand acted in the office of a member of the Urban Council. Hewas not made a party to the proceedings. Wijeyewardene, J.said (p. 239) –
“Even if a Writ of Mandamus could issue in the presentcase there is a serious objection to the present application.The petitioner wants to have the election declared void buthas failed to make Mr. Jayasinghe a party respondent. Thepetitioner’s Counsel did not at any stage move to have himadded as a party. The application must fail on that groundalso.”
In GoonetiUeke v. Government Agent, Galle^S) a writof Certiorari of Mandamus was applied for to set aside anelection, in connection with a Village Committee, and forholding of a fresh election in respect of the Ward. Thesuccessful candidate was not made a party. Keuneman,S.P. J. Said (p.550) –
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“The objection has been taken in the first instance thatno order such as is claimed by the petitioner can be madewhen the successful candidate has not been made a party.This was held in the case of Carron v. Government Agent,W. P. (supra), I think the objection on the part of the Govern-ment Agent is a good one.”
In James Perera v. Godwin Pereram, the petitionerapplied for a Writ of Mandamus on the Chairman of aVillage Committee for the issue of a bakeiy licence in hisfavour. The petitioner stated in his petition that the Chairmanissued the licence to one Jayasinghe and has failed to issueit to him. The respondent’s Counsel submitted that the issueof the Writ would affect prejudicially the rights of Jayasinghewho is not before the Court Nagalingam, A.J. said (pgs. 191,192) –
“I find that in two earlier cases a similar objection wassustained. In the case of Carron v. The Government Agent.Western Province, (supra) Wijeyewardene, J. expressedhimself as follows:- “The petitioner wants to have the electiondeclared void but has failed to make Mr. Jayasinghe a partyrespondent. The petitioner’s counsel did not at any stagemove to have him added as a party. The application mustfail on that ground also”. In the case of Goonetilleke v. TheGovernment Agent, Galle (supra), Keuneman J. followed thisauthority in like circumstances.
Counsel for the petitioner contends that principle shouldbe limited to election cases and should not be extended tocases where an application is made to compel the issue of atrade licence by a local authority. If the principle underlyingelection cases is that where an order would affect adversely aparty who is not before the Court that party must be deemedto be a necessary party and consequently the failure to makethe necessary party a respondent to the proceedings must beregarded fatal to the application, it must apply equally even
CA
Dominic Vs. Minister of Lands and others
(Sriskandarajah, J.)
405
in regard to an application for a licence as applied for in thesepresent proceedings. It would manifestly be unsatisfactory tohave two persons licensed to run the business of a baker atone and the same place of business where the two parties areat arm’s length. The issue of a licence to the petitioner mustnecessarily involve the cancelation of the licence issued infavour of Jayasinghe. I am therefore of the view that theobjection is sound and that the failure to make Jayasinghe aparty respondent must be held to be fatal irregularity.”
The Court held in Abayadeera and 162 Others v.Dr. Stanley Wijesundera, Vice Chancellor, University of Colomboand Another: (supra)
“It appears to us that the principle to be discerned fromthese cases is what was stated by Nagalingam, A. J. where anorder would affect adversely a party who is not before Court,that party must be deemed to be a necessary party andconsequently the failure to make the necessary party arespondent to the proceedings must be regarded fatal to theapplication.”
In Rawaya Publishers And Other v. Wijedasa Rajapakshe,Chairman Sri Lanka Press Counsel & Othersi*71 the court madethe following observation when dismissing an application asthe necessary parties are not made parties:
“In the context of writ applications, a necessary party isone without whom no order can be effectively made. A properparty is one in whose absence an effective order can be madebut whose presence is necessary to a complete and finaldecision on the question involved in the proceedings. In thecase of Udit Narayan Singh v. Board of Revenue It has beenheld that where a writ application is filed in respect of anorder of the Board of Revenue not only the Board itself is anecessary party but also the parties in whose favour theBoard has pronounced the impugned decision becausewithout them no effective decision can be made. If they are
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not made parties then the petition can be dismissed in limine.It has also been held that persons vitally affected by the writpetition are all necessary parties. If their number is very large,some of them could be made respondents in a representative‘capacity (vide Prabodh Derma v. State of Uttara Pradesh!9*also see Encyclopedia of Writ Law By P. M. Bakshi)"
In view of the above authorities it is clear that thefailure to name the necessary parties namely: the ICC HousingPrivate Limited, The co-owner of the said land, Ocean ViewDevelopment Company (Private) Ltd and the National HousingDevelopment Authority as parties in this application is fatal.
The Petitioner moved at the stage of argument to addthese respondents as parties. S. F. A. Coorey; ‘Principles ofAdministrative Law in Sri Lanka’ 2nd Edition at page 537under the subheading: Subsequent addition of a Respondentobserved:
“The failure to make a necessary party a respondent isfatal. If the omission is discovered during the pendencyof the application for the writ the Petitioner is well advisedto apply to court to add such party as a respondent.Such an application for addition will be allowed onlyif the application is not yet ready for final disposal bycourt; Vinnasithamby v. Joseph*'0*. Once the final hearingof the application by court commences, such an applicationmade thereafter will be refused; Goonetilleke v.Government Agent, Galle (supra); Jamila Umma v.Mohamed"* Dharmaratne v. Commissioner of Elections.'12'”
In any event the application to add the necessary parties atthis stage is a belated application; Ramasamy v. Ceylon StateMortgage Bank}13* at 516. Therefore I refuse the applicationand uphold the objection that necessary parties have notbeen made respondents and for this reason I dismiss thisapplication without costs.
application dismissed.