EUGENE NONA v. KARUNADASA AND OTHERS

036-SLLR-SLLR-1998-1-EUGENE-NONA-v.-KARUNADASA-AND-OTHERS.pdf


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EUGENE NONA
v.KARUNADASA AND OTHERS
SUPREME COURTFERNANDO, J.,
DHEERARATNE, J. ANDWADUGODAPITIYA, J.
SC APPEAL NO. 126/96CA NO. 300/94C.N.H. NO. CH/6/51788/2417JUNE 3, 1997.
Writ of Certiorari – Ceiling on Housing Property Law, No. 1 of 1973 – Appealunder section 39 (1) – Procedure of Appeal to the Board of Review – Validityof the Appeal.
The appellant who sought to appeal to the Board of Review under section 39(1) of the Ceiling on Housing Property Law, No. 1 of 1973, against the decisionof the Commissioner for National Housing dated 12.08.91 in favour of an applicationmade by the appellant's tenant under section 13 of the Law to purchase the houselet to him was unaware of the address of the Board of Review; whereupon theappellant sent a registered letter to the Commissioner dated 26.8.91, within onemonth of the impugned decision as required by section 39 (1). In that letter theappellant objected to the Commissioner's decision and asked him to consider thematter sympathetically and to restore the house to her. As per the postal receiptthe address on the envelope of that letter was The Department of National HousingCeiling on Housing Property Board of Review (Unit for the implementation ofsection 39), Department of National Housing, Maligawatte, Colombo 10*. No actionwas taken on the appellant's letter until July, 1992, when on representations made
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by the appellant the Board of Review considered the matter but rejected the appealupholding a preliminary objection that there was no properly constituted appealpreferred to the Board within the stipulated time limit The Court of Appeal affirmedthe order of the Board of Review. In doing so the Court added that the appellanthad also failed to state any grounds of appeal.
Held:
In the circumstances of the case, the receipt of the appeal by theCommissioner amounted to receipt by the Board.
The burden was on the tenant to establish that the appellant's letter dated26.8.91 was received after the appealable period by producing the relevantdocuments from the Commissioner's file. This the tenant had failed to do.The Court must assume that it had been received by the Commissionersoon after 26.8.91.
It is unnecessary to set out all the points in support of an appeal, particularlywhere the order appealed from baldly stated a conclusion, without anyfindings. In any event, by asking that her case be considered sympatheti-cally, the appellant raised the issue whether upon a consideration of theequities she should have been allowed to retain her house. Hence, therewas no failure by her to specify grounds of appeal.
APPEAL from the judgment of the Court of Appeal.
A. K. Premadasa, P.C with C. E. de Silva for the appellant
Manohara R. de Silva for the 1st respondent
2nd' respondent absent and unrepresented.
Cur. adv. vult
February 12, 1998
FERNANDO, J.
The question for decision in this appeal is whether the appellant'sletter dated 26.8.91 constitutes a valid appeal to the Board of Reviewset up under the Ceiling on Housing Property Law, No. 1 of 1973,conforming to section 39 (1) of that law, which provides:
"Any person aggrieved by any decision or determination made bythe Commissioner under this law may, within one month of thedate on which such determination is communicated to such person,appeal against such decision or determination to the Board, statingthe grounds of such appeal*.
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It is common ground that there are no regulations as to the formand content of appeals, and how they are to be lodged.
The 1st respondent, the tenant of a house owned by the appellant,made an application to purchase that house, under section 13 of theLaw. After inquiry, the 2nd respondent, the Commissioner of NationalHousing (the Commissioner), informed the appellant by letter dated12.8.91 that he had decided to report to the Minister that he wassatisfied that the requirements of section 17 (1) (a) to (d) of the Lawhad been met; he added that if she was not satisfied with that ordershe could appeal to "the Ceiling on Housing Property Board of Reviewunder section 39 of the Law" within 30 days. He did not disclose theaddress of the Board, and his own address was given as:
"Unit for the implementation of section 13, Ceiling on Housing
Property Branch, Department of National Housing, Maligawatte,
Colombo 10".
The appellant sent a registered letter dated 26.8.91 addressed to:
"The Commissioner of National Housing, Ceiling on Housing
Property Branch, Department of National Housing, Maligawatte,
Colombo 10".
She briefly set out her version of the facts, as to her familycircumstances, the ownership of the house, and how she wished todispose of it. She then stated: echoing the Commissioner's words,that in no way was she satisfied with his order, and that she stronglyobjected to it; and she asked him to "kindly [consider ?] thissympathetically and restore the house to her".
There is some mystery as to how and when that letter was receivedby the Commissioner and/or the Board, and that I will deal with later.
By letter dated 1.7.92 to the appellant, the Secretary to the Boardacknowledged that the appeal dated 26.8.91 sent by her had beenreceived; that it had been assigned a number; and that the date, timeand place of inquiry would be notified later. By letters dated 18.8.92both parties were informed that the appeal would be taken up forinquiry on 29.9.92, and were warned that no application for a post-ponement would be considered. The 1st respondent was not present
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on 29.9.92, and the Board ordered that he be noticed for 19.11.92.On that day both parties were represented, but the inquiry waspostponed for 30.1.93; and on 30.1.93 a preliminary objection wastaken that there was no valid appeal addressed to the Board.
It is clear from the order of the Board, dated 21.8.93, that theBoard had examined the Commissioner's file. The Board upheld thepreliminary objection:
"… There is a minute in the journal of the Commissioner's fileto show that as at 11.12.91 there was no appeal against the saiddecision of the Commissioner. The so-called appellant's letter of26.8.91 has been filed of record in the Commissioner's file afterletters received by the Commissioner in 1992, and indeed alongwith [an Attorney-at-law’s letter] dated 3.6.92. Furthermore, the saidletter of 26.8.91 in its contents is no appeal and it has not beenaddressed to the Board of Review. Even if we were to construethe said letter of 26.8.91 as an appeal, it is clearly out of timeas an appeal in terms of section 39 must be lodged within onemonth of the date of communication. The so-called appellant hasthereafter written an undated letter addressed to the Chairman… received by this Board on 11.6.92. Having examined its contentswe are unable to construe it as an appeal. In any event it cannotcure the failure of the so-called appellant to prefer to this Boarda properly constituted appeal within the stipulated time limit . . .'
The appellant applied to the Court of Appeal for Certiorari to quashthe order of the Board of Review, and for an order directing the Boardto accept, and to hear and determine, the appellant's appeal. Therewas also a prayer that the relevant records maintained by theCommissioner and the Board be called for and examined, butunfortunately that was not done.
The Court of Appeal held that the appellant's letter was addressedto the Commissioner and not to the Board; that it contained no requestto the Commissioner to consider it as an appeal to the Board; andthat the only request made therein was for the Commissioner toreconsider his decision sympathetically and give back the house toher. Thus, it concluded, there was no basis for the Commissioner totreat the letter as an appeal against his order, and to forward it tothe Board. Further, according to the record maintained by the
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Commissioner, the letter had been received at his office after 3.6.92- Clearly more than one month after she received the Commissioner'sorder; and in any event it did not state any grounds of appeal.
The appellant comes to this court with special leave to appealagainst that order. The question whether there was a valid appealhas three aspects: Was the appellant's letter addressed to the Boardof Review? If so, was it lodged within the prescribed period of 30days? If so, did it specify the grounds of appeal?
The Board of Review had to decide whether it's appellate juris-diction had been duly invoked. It could have determined that questionby reference only to its own record. The first document in its recordwas an undated letter from the appellant to the Chairman, receivedin June, 1992; and to that were annexed copies of the Commissioner'sletter of 12.8.91, her letter of 26.8.91 and the registered postal articlereceipt. The file shows that it was on these documents alone thatthe Secretary acknowledged the appellant's appeal and gave it anumber. Perhaps the Board might have disposed of the matter byholding that there was no document validly invoking its jurisdiction:that the June, 1992 letter, even if it was a proper appeal addressedto the Board, had been received long after the appealable period hadlapsed; that the copy of the August, 1991 letter had also been receivedafter the appealable period; and that in any event that had not beenaddressed to the Board.
But, instead, the Board paid great attention to the contents of theCommissioner's file, almost as if that was a proper place in whichto search for a valid appeal to the Board. The Board stated that therewas a minute dated 11.12.91 in that file that no appeal had beenfiled; and a letter dated 3.6.92 from an Attorney-at-law; and that theappellant's letter had been filed along with that letter. That approachgives rise to a question: Would the Board have come to a differentconclusion if the appellant's letter had been placed in the Commis-sioner's file in August, 1991, and/or if the minute of 11.12.91 statedthat an appeal had been lodged?
Let me note, in passing, that it would not have been strange forthe law to have allowed an appeal against the order of a tribunalto be lodged with that same tribunal, as in the case of the DistrictCourt. While section 39 does not stipulate that an appeal must be
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lodged with the Board, yet it does not expressly allow an appeal tobe lodged with the Comissioner, and I do not wish to rest this judgmenton a mere inference that section 39 allows that.
After hearing Counsel for the appellant and the 1st respondent -regrettably, the Commissioner was not represented when special leavewas sought and at the appeal – we directed the Registrar to call forthe relevant files from the Commissioner and the Board of Review;and to make them available to Counsel with the right to make writtensubmissions; and judgment was reserved. The Board of Review sentits file, but the Commissioner did not; and no written submissions werefiled.
Particularly in view of the registered postal article receipt (whichI refer to below), several efforts were made to obtain the Commis-sioner's file. As it was not produced, the present Commissioner wasdirected to be present in person on 9.7.97, whereupon she said thatthe file had been sent to the Attorney-General in 1994, and thatDepartment had informed her by a letter dated 8.7.97 that it had beenmisplaced. She was asked to tender a photocopy of that letter to theRegistry, but it was only after several reminders that she finally didso on 2.1.98. In the meantime, upon inquiry from the Attorney-General's Department, the Registrar was informed by letter dated28.10.97 that the department's own file had been sent to its recordroom and could not be traced, but that as a matter of practice filesreceived from other departments are returned before its own files aresent to its record room. Thus even six months after the conclusionof the hearing this court was unable to examine the record whichwas the subject-matter of the Certiorari proceedings, and which wasof crucial importance to our efforts to find the truth. The delay inpreparing this judgment was due to those efforts to obtain theCommissioner's file.
I must now refer to one important matter not dealt with in theimpugned orders, the pleadings or the submissions. The appellant'sletter was sent by registered post, and the original registered postalarticle receipt was filed in the Court of Appeal. That describes theaddressee of the letter as:
“The Department of National Housing, Ceiling on Housing
Property Board of Review, (Unit for the implementation of section
39), Department of National Housing, Maligawatte, Colombo 10.°
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The authenticity of that receipt was never disputed. It must bepresumed, therefore, that the envelope tallied with the receipt. Further,the Board of Review found that letter in the Commissioner's file. Theenvelope would, in the normal course, have been retained in the file.The Board has made no comment about the envelope. That file wouldhave answered numerous questions.
First, when was that letter received? Unfortunately, the date stampon the receipt is undecipherable. However, it must have been, in theusual course, date-stamped the very day it was received in theCommissioner's office. In the absence of any suggestion that the letterwas posted long after August, 1991, I must assume that it had beenreceived by the Commissioner soon after 26.8.91, and thus within 30days of his order.
Second, how did it happen that a letter enclosed in an envelopeaddressed to the Board of Review – and more fully described as the"Unit for the implementation of section 39“ – was accepted by oron behalf of the Commissioner? Why was it either not accepted, ornot immediately forwarded, unopened, to the Board? Or had someadministrative arrangement been made for letters addressed to theBoard to be accepted and opened by the staff of the Commissioner?On the other hand, if it was by some mistake that it had been acceptedand opened, why was it not returned promptly to the appellant – whomight then have sent it to the Board?
Third, how and why was a minute made on 11.12.91 that therewas no appeal? If the invariable practice was for appeals to be lodgedwith the Board of Review, had an inquiry been made from the Board,and if so, what was the response from the Board? The Board ofReview file, however, does not indicate that there had been any suchinquiry or response. If no inquiry had been made from the Board,then on what material was that minute made? Was it simply on thebasis that there was no appeal in the Commissioner's file?
Fourth, by letter dated 1.7.92 the Secretary to the Board askedthe Commissioner to forward the relevant file. The Commissioner hadthe appellant's letter by early June: why did he not forward the fileor that letter without waiting for the Secretary's letter?
The proceedings of 30.1.93 do not show that the Board made anyreference to the Commissioner's file in open court, or made it available
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for perusal by the parties. It appears that after reserving its order,the Board examined the file, and acted on material therein whichremained undisclosed to the parties; and to the Court of Appeal andthis Court.
On the available material, I hold that the appellant sent a letteraddressed to the Commissioner in an envelope addressed to theBoard. There is no evidence as to the address of the Board at therelevant point of time, and it is quite possible that the Board functionedin the same premises as the Commissioner. Both Counsel were unableto tell us what the address of the Board was at the relevant time.When asked how the appellant could have ascertained that address,Counsel for the 1st respondent was only able to suggest the telephonedirectory. But that is no safe guide: the directories for 1994, 1995and 1996 list the Chairman and the Secretary "C H P Board of Review"- without an address – under "National Housing Department". TheCommissioner having failed to specify the address of the Board, itwas not unreasonable for the appellant to have sent her letter to thesame address. However, she did not address the letter itself to theBoard.
The question whether, in the circumstances of this case, theappellant's letter constituted a valid appeal to the Board could nothave been decided by ignoring the address appearing on the envelope,and looking only at the letter: it was the address on the envelope,more than anything else, which determined who would receive theletter. The letter and that address must therefore be consideredtogether: Do they constitute a purported appeal to the Commissioner,in which event the envelope must be treated as mistakenly addressedto the Board? Or a purported appeal to the Board, in which eventthe letter must be treated as mistakenly addressed to the Commis-sioner? There is no third interpretation possible. I think the secondinterpretation must be preferred. The appellant was told that if shewas dissatisfied with the order, she could appeal to the Board;accordingly, in her letter she expressed her dissatisfaction and strongobjections, and asked for relief; and, what is most important, if deliveredin accordance with the address on the envelope, her letter would havebeen received by the Board, and by no one else. And in that eventthe Board would have had to consider whether the reference to theCommissioner was just a mistake. But the Board did not appreciatethe significance of the postal article receipt (of which it had a copy);
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and therefore failed to look for the envelope; and consequently failedto address that vital question.
It might have been further argued that even assuming theappellant's letter to have been addressed to the Board, yet it wasnot actually received by the Board. However, it is quite clear that whenthe Board became aware that the letter had been received by theCommissioner it did not dissociate itself from the Commissioner – evenby a passing remark that receipt by the Commissioner did not amountto receipt by the Board. Instead, it approached the issue whether anappeal had been duly lodged as if receipt by the Commissioner wouldhave been sufficient, provided that it was in due form and within time.The circumstances make it probable that receipt by the Commissionerwas not unauthorised vis-a-vis the Board.
As to whether the appellant's letter was received in due time, theargument poceeded on the basis that posting was in order. It wasneither suggested that it should have been delivered by hand, northat it had been posted after the expiry of the appealable period of30 days. The objection was that it had not reached the Board ofReview in time. I have already held that, in this instance, receipt bythe Commissioner amounted to receipt by the Board. As for the dateof receipt, copies of the appellant's letter of 26.8.91 and postal articlereceipt were in the record of the Board; the burden was on the 1strespondent to establish the facts relevant to his preliminary objectionby proof that the letter had been received after the appealable period.The best evidence of the date of receipt would have been the date-stamp on the original letter and the post-mark on the envelope: butthe 1st respondent did not seek to produce those documents fromthe Commissioner’s file, and the Board itself did not look at them,and filled the gap in the 1st respondent's case by relying on equivocalmatters without even giving the parties an opportunity to commentabout them – the Commissioner's minute of 11.12.91 and that theoriginal had been filed in June, 1992. On the evidence, the Boardshould have held that the 1 st respondent had failed to prove that theletter had not been received within time.
Finally, I must deal with the contention that the letter did not setout any ground of appeal. That requirement must not be construedwith greater strictness than in regard to appeals from original courtsand tribunals such as District Courts, Magistrate's Courts and Labour
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Tribunals – where an appellant is often permitted to argue even pointsnot contained in the petition of appeal, particularly because the appealwas against an order which baldly stated a conclusion, without anyfindings, let alone reasons. Here, one issue was whether, upon aconsideration of the equities, the appellant should have been allowedto retain her house. The equities depended on the factual positionof the parties: ownership of houses, family circumstances, income,etc. The appellant stated her version of the facts. (It is immaterialwhether there were errors or omissions, because that would not affectthe formal validity of her appeal, but went to the merits, and the meritswould have had to be considered only if Board decided that the appealwas in due form.) She then asked for ‘’sympathetic" consideration andfor the restoration of her house. Had she asked for "equitable"consideration, there could have been no argument about the formalvalidity of the appeal; indeed, had she merely stated the facts andasked for restoration of her house, that would have been enough.I hold that the use of the word "sympathetic" did not vitiate her appeal.
For these reasons, I allow the appeal and set aside the order ofthe Court of Appeal. I quash the order of the Board of Review, overrulethe preliminary objection taken by the 1st respondent in the Boardof Review, and direct the Board to entertain, hear and determine theappeal on the merits. The Registrar is directed to return its file tothe Board of Review.
The appellant is entitled to the costs incurred in the Board ofReview, the Court of Appeal and in this court, at the stage of specialleave and at the appeal. It would not be just or equitable to orderthe 1st respondent to pay those costs, because it was the Commis-sioner's acts and omissions which resulted in the preliminary objectionand the subsequent litigation. I therefore order the Commissioner topay the appellant costs in a sum of Rs. 30,000 within one month.
DHEERARATNE, J. – I agree.
WADUGODAPITIYA, J. – I agree.
Appeal allowed.