036-SLLR-SLLR-1995-V-1-EDMOND-v.-D.-S.-FERNANDO.pdf
EDMOND
v.
D. S. FERNANDO
SUPREME COURTBANDARANAYAKE, J.
PERERA, J.
WIJETUNGA, J.
' S.C. APPEAL NO. 34/95C.A. SPL. L.A. NO. 404/94C.A. APPLICATION NO. 746/88.
JULY 10, 1995.
Landlord and Tenant – Ceiling on Housing Property Law, Section 13,Section 39(3), Section 14(1) (c) and Section 17 – Interpretation Ordinance,Section 22 – Finality of determination of Board of Review.
The respondent in his capacity as the tenant of the premises in suit made anapplication to purchase the said premises. The Commissioner of NationalHousing after inquiry dismissed the respondent’s application on grounds ofequity. The respondent then filed an appeal to the Board of Review which setaside the order of the Commissioner and allowed the respondent’s appeal.
The Appellant who is the present owner of the premises then sought to have theorder of the Board of Review quashed by way of a Writ of Certiorari in the Court ofAppeal.
The Court of Appeal held that the determination of the Board of Review was finaland that the provisions of Section 39(3) of the Ceiling on Housing Property Lawread with Section 22 of the Interpretation Ordinance as amended constituted abar to the issue of a Writ of Certiorari.
Held:
Section 39(3) of the Ceiling on Housing Property Law specifically providesthat a determination made by the Board of Review “shall not be called in questionin any court."
Therefore the question arises as to whether even if the determination of theBoard of Review contained such an error of law it was open to the Court ofAppeal to act under the first proviso to section 22 of the Interpretation Ordinanceand issue a Writ of certiorari in this case to quash the determination of the Boardof review, for such an error of law.
The Court of Appeal could have granted the Writ only if it was permissible forthat court to act under the first proviso to Section 22 of the InterpretationOrdinance.
On an examination of the statute itself there does not appear to be anymandatory provision of law which is a condition precedent to making thedetermination in question by the Board of Review under Section 39 of the saidLaw.
The Court of Appeal has rightly taken the view that it was barred by theprovisions of section 39(3) of the Ceiling on Housing Property Law read withSection 22 of the Interpretation Ordinance as amended from issuing a Writ ofcertiorari to quash the determination of the Board of Review in the present case.
Cases referred to:
Jamesv. Board of Review (Paddy Lands Act) [1978/79] 2 Sri L.R. 123.
Mohideen v. Gunawardena [1986] (2) Colombo Appellate Law Reports atpage 487.
Appeal from judgment of Court of Appeal.
T. B. Dillimuni with M. Jayawardena for appellant.
Sunil F. A. Cooray with A. K. Mahakumarage and C. Liyanage for respondent.
Cur. adv. vult.
January 17,1995.
PERERA, J.
The appellant respondent/respondent (hereinafter referred to as therespondent), in his capacity as the tenant of premises situated at16th Mile Post, Colombo Road, Seeduwa made an application underS. 13 of the Ceiling on Housing Property Law to the Commissioner ofNational Housing to purchase the said premises. The Commissionerafter inquiry dismissed the respondent’s application on grounds ofequity. The respondent then filed an appeal against this order ofdismissal to the Board of Review constituted under the same statute.The Board of Review by its order dated 31st March 1988 set asidethe order of the Commissioner of National Housing and allowed therespondent’s appeal.
The respondent petitioner/petitioner appellant (hereinafter referredto as the appellant) who is the present owner of the said premisesthen sought to have the order of the Board of Review quashed byway of a Writ of Certiorari in the Court of Appeal.
The Court of Appeal by its order dated 7th November 1994affirmed the Order of the Board of Review and dismissed theappellant’s application with costs. The Court also held that thedetermination of the Board of Review was final and that the provisionsof Section 39(3) of the Ceiling on Housing Property Law read withSection 22 of the Interpretation Ordinance as amended constituted abar to the issue of a Writ of Certiorari.
The present appeal is against this order of the Court of Appealdated 7th November 1994.
The facts of the case are briefly as follows:
On or about the 7th of May 1973 the respondent made anapplication to the Commissioner of National Housing for the purchaseof the house in question of which he claimed he was the tenant. Inthis application he declared the name of the owner of the premises insuit as one Gladys Senanayake.
At the inquiry held into this application by the Commissioner ofNational Housing, Gladys Senanayake stated that she was no morethe owner of these premises as she had transferred this property toone Alice Margaret Fernando.
The respondent had also on or about 15.8.73 made an applicationto the Rent Board of Seeduwa, seeking permission to effect certainrepairs to the said house and also sought a determination of theauthorized rent of the said premises. At the inquiry before the Rent
Board, Gladys Senanayake once again by her representativeinformed the Board that she had sold the premises in question toAlice Margaret Fernando.
The respondent thereupon withdrew the said application and on31.8.73 filed a fresh application before the Rent Board naming AliceMargaret Fernando as the respondent. At this inquiry Alice MargaretFernando who was present accepted the respondent to the presentAppeal as the tenant of the said premises. The Rent Boardaccordingly made a determination that the authorized rent of thepremises as being Rs. 45.40 per month.
Thereafter on 31.12.83 the respondent made a second applicationto the Commissioner of National Housing to purchase the said houseand named the appellant as the respondent as he was the owner ofthis property at that time. The Commissioner after inquiring into thisapplication made order refusing the application to vest the saidhouse on the ground of equity.
The respondent then filed an appeal against this order to theBoard of Review which after due inquiry reversed the findings of theCommissioner and held that the premises in question have beenpurchased by the present appellant over the head of the tenant. TheBoard also held that as the standard rent of the premises was belowRs. 100/-, the owner was not entitled to withhold his consent to thevesting in terms of the provisions of Section 14(1) (c) read withSection 13 of the Ceiling on Housing Property Law as the ownershipof the house was transferred to him while the respondent (tenant) wasin occupation.
It is common ground that the respondent came into occupation ofthe premises which is the subject matter of this appeal in 1967 underone Gladys Senanayake who was both the landlord and owner of thesaid premises. Gladys Senanayake by Deed No. 3529 dated 18.2.72transferred the said premises on which the house in question issituated to Malkanthi Senanayake who in turn transferred the sameby Deed No. 47417 dated 25.11.72 to the present appellant.According to the appellant the consideration of a sum of Rs. 7,500/-for the purchase of this house was furnished by his mother AliceMargaret Fernando and she was placed in possession of the saidpremises. There is therefore no dispute between the parties on thematters set out above.
On behalf of the appellant, Counsel very strongly urged that theCourt of Appeal had erred in law in affirming the order of the Board ofReview in this case and invited this Court to set aside the judgmentand Order of the Court of Appeal dated 7.11.94. Counsel submittedthat both the Ceiling on Housing Property Board of Review and theCourt of Appeal have failed to consider and review the ground ofequity which was the sole basis upon which the Commissioner ofNational Housing had decided not to recommend the vesting of thishouse under the provisions of Section 13 read with Section 17 of theCeiling on Housing Property Law. Counsel also contended that theCourt of Appeal had erred in holding that the determination of theBoard of Review was final, in view of the provision of Section 39(3) ofthe Ceiling on Housing Property Law read with Section 22 of theInterpretation Ordinance as amended and thus operated as a bar tcan application for a Writ of Certiorari in the present case.
In support of his first submission Counsel invited the attention ofthis Court to the finding of the Commissioner of National Housingwhich has been produced marked “A”. According to this order theCommissioner has held that notwithstanding the fact that this housemay be vested in the Commissioner under Section 13 of the Ceilingon Housing Property Law, as it has been purchased over the head ofthe tenant, nevertheless he would not recommend such vesting onthe ground of equity.
Counsel’s main complaint was that the Board of Review in its ordermarked “B” based its decision on the fact that the appellant hadpurchased this house over the head of the tenant. The Board hadfailed altogether to consider the more important aspect of thedecision of the Commissioner namely the ground of equity. This hesubmitted was the sole consideration upon which the Commissionercame to his finding. Counsel urged that the Commissioner rightlyheld that it was not equitable to vest this house in the particular
circumstances of this case. It was indeed a legal duty on the part ofthe Commissioner to consider the equities before making arecommendation to vest the house under the provisions of Section 17of the Ceiling on Housing Property Law.
In view of the strong submission made by Counsel on this matter, Ihave perused the order of the Board of Review which has beenproduced marked “B” and it appears to be quite clear that it wouldnot be correct to say that the Board of Review has failed altogether togive its mind to the ground of equity. I may in particular refer to thefollowing passages contained in the Order of the Board of Review onthis specific matter.
“The Commissioner held an inquiry and dismissed the appellant’sapplication on the grounds of equity. This appeal is against thesaid decision of the Commissioner of National Housing.
Counsel (for the appellant) also stated that this is the only houseof his client and the Commissioner has come to a correctconclusion by not recommending to vest the premises in suit andtherefore requested this Board to dismiss this appeal.
We have considered the submissions and documents placedbefore us by Counsel carefully.”
It was Counsel's contention that the issue of equity was highlightedby his client’s Counsel at the hearing before the Board of Review.Although there is some substance in the submission of Counsel thatthe Board in its order has placed greater emphasis on the fact thatthe appellant had purchased this house over the head of the tenant, Iam unable to agree with the submission that the Board has altogetherfailed to take cognizance of the ground of equity upon which theCommissioner’s decision was based.
Housing Property Law read with Section 22 of the InterpretationOrdinance as amended constituted a bar to the issue of a Writ ofCertiorari in this case. In other words Counsel’s contention was thatthe Court of Appeal had overlooked an error of law contained in thedetermination of the Board of Review namely that the equitableconsideration on which the decision of the Commissioner of NationalHousing not to recommend vesting was based, had not beenconsidered by the Board of Review when it made its determination inappeal. The Court of Appeal had therefore erred in refusing to issue aWrit of Certiorari in this case. I have already expressed my view onthis question in the earlier part of this judgment. Be that as it may – Iwould now consider the legal validity of this argument. Section 39(3)of the Ceiling on Housing Property Law specifically provides that adetermination made by the Board of Review “shall not be called inquestion in any Court”.
Therefore the question arises as to whether even if thedetermination of the Board of Review contained such an error of law itwas open to the Court of Appeal to act under the first proviso toSection 22 of the Interpretation Ordinance and issue a Writ ofCertiorari in this case to quash the determination of the Board ofReview, for such an error of law.
The Court of Appeal could have granted the writ only if it waspermissible for that Court to act under the first proviso to Section 22of the Interpretation Ordinance which is as follows:
“Provided however that the preceding provisions of this sectionshall not apply to the Court of Appeal in the exercise of itspowers under Article 140 of the Constitution in respect ofthe following matters and the following matters only. That is tosay.
Where such determination … is ex facie not within thepower conferred on such person, authority or tribunalmaking or issuing such determination and
– where such person, authority or tribunal upon whom thepower to make or issue such determination is conferred, isbound to conform to the rules of natural justice,
– or where compliance with any mandatory provision oflaw is a condition precedent to the making or issuing ofany such determination and the Court of Appeal issatisfied that there has been no conformity with such rulesof natural justice or no compliance with such mandatoryprovision of such law.”
It was not the contention of Appellant’s Counsel that thedetermination of the Board of Review which was sought to bequashed was “ex facie“ not within the power conferred on the Boardof Review under Section 39 of the said Law nor did the appellantcontend that the Board of Review failed to conform to the rules ofnatural justice.
The case of the appellant was that compliance with a mandatoryprovision of law was a condition precedent to the making of the saiddetermination by the Board of Review and that the Board of Reviewhad failed to comply with such mandatory provision of law. Counselfor the appellant however did not specify in the course of hisargument the mandatory provision of law which was a conditionprecedent to the making of the determination by the Board of Review.On an examination of the statute itself there does not appear to beany mandatory provision of law which is a condition precedent tomaking the determination in question by the Board of Review underSection 39 of the said law. I hold therefore that the Court of Appealhas rightly taken the view that it was barred by the provisions ofSection 39(3) of the Ceiling on Housing Property Law read withSection 22 of the Interpretation Ordinance as amended from issuinga Writ of Certiorari to quash the determination of the Board of Reviewin the present case.
I therefore affirm the judgment of the Court of Appeal in this casedated 7.11.94.
The appeal is dismissed with costs.
BANOARANAYAKE, J. – I agree.
WIJETUNGA, J. -1 agree.
Appeal dismissed.
I find support for this view in James v. Board of Review (PaddyLands Act)(1) and Mohideen v. Gunawardena.<2)