others. In the former case the Commissioner had decided not torecommend the vesting of a house in terms of the provisions of theCeiling on Housing Property Law on grounds of equity. That decisionwas reversed by the Board of Review on appeal. The owner thenmade an application to this court to have the order of the Boardquashed. This court affirmed the order of the Board and dismissedthe owner's application inter alia, holding that the provisions of section39 (3) of the Ceiling on Housing Property Law read with section 22of the Interpretation Ordinance, as amended, constituted a bar to theissue of a writ of certiorari. His Lordship Perera, J. having observedthat the appellant did not rely on grounds (a) and (b) in section 22of the Interpretation Ordinance, held that the appellant also failed toestablish a non-compliance of a mandatory provision of law, whichthe Board of Review failed to observe, and dismissed the appeal.
Fazrul Hefeera and Another v. Sokkalingampillai and others
(Dr. Ranaraja, J.)
In Withanaratchi {supra) the facts were somewhat similar to thosein the present case. There the decision of the Commissioner forNational Housing that the relevant premises was not a "house" wasreversed by the Board of Review on appeal. An application was madeto this court by the owner to have the determination of the Boardquashed on the ground that it was made without and/or in excessof jurisdiction. It appears that this court dismissed the application. Onappeal to the Supreme Court, His Lordship G.P.S. de Silva CJ.stated“on a consideration of the entirety of the facts and circumstances ofthis case, it seems to me that it cannot be said that the decisionof the Board of Review is unreasonable; nor can it be said that itis unsupported by the evidence on record. At most, the alleged errorof the Board of Review lies in the evaluation and the assessmentof the oral and documentary evidence . . . The error if at all, is onemade within the area of the jurisdiction of the Board of Review. . . (Section 22 of the Interpretation Ordinance) is a bar to the reviewof erroneous decisions made within the area of the jurisdiction of theTribunal . . . and the ouster clause would accordingly apply".
Learned counsel for the petitioner however has sought a reviewof the impugned orders on the ground that both the 2nd respondentand the Board of Review committed mistakes of fact, which carriedthem outside their jurisdiction. It is submitted that they both misappliedthe definition of the word "house" in section 47 of the Law and thefinding that the relevant premises is a "house" is unsupported byevidence. In other words, the 2nd respondent and the Board of Reviewhad clothed themselves with jurisdiction on facts that did not existand therefore their decisions cannot have the finality, as Parliamentdid not intend to confer jurisdiction to decide on matters where thefacts do not justify their holding that the relevant premises was ahouse. It is learned counsel's contention that the evidence proved thatthe subject matter was a “business premises", over which neither the2nd respondent nor the Board of Review had jurisdiction.
Section 47 of the Law defines “House" as : "an independent livingunit, whether assessed or not for the purpose of levying rates,constructed mainly or solely for residential purposes, and having aseparate access, and through which unit access cannot be had toany other living accommodation, and includes a flat or tenement butshall not include –
Sri Lanka Law Reports
[1998] 3 Sri LR.
subdivisions of, or extentions to, a house which was first occupiedas a single unit of residence; and
a house used mainly or solely for a purpose other than aresidential purpose, for an uninterrupted period of ten years priorto March 1, 1972".
His Lordship Samarakoon, C.J. in Abeysekera v. Wijetungst® stated,the “test" is whether a premises is an independent living unit, "con-structed mainly or solely for residential purposes". The test must bean objective one and not a subjective one. It's construction and thepurpose of the construction is what matters. Subsection (1) and (2)to section 47 set out 2 exceptions. See His Lordship Bandaranayaka,J's observations in Mohamed Ismail and others v. Hussain andothers<7). Thus where there is clear evidence that the building wasconstructed mainly or solely for residential purposes, the exceptionsset out in the subsections have no application, unless a "house" whichhas been originally constructed for residential purposes was usedmainly or solely subsequently, for a purpose other than residence,for an uninterrupted period of 10 years prior to March 1, 1972. It wouldtherefore be unwise to consider the definitions of “business premises"or "residential premises" in the context of the Rent Act in interpretingthe term "House" in the Ceiling on Housing Property Law.
The extract from the assessment register (R2) describes thepremises, which bore the number 179 in 1941, as a "tiled upstair houseand garden". The petitioners have not seriously contested that thebuilding was originally constructed for residential purposes. They havetherefore sought to bring the premises under exception to section47. It was their duty then to establish that the premises was usedmainly or solely for a purpose other than a residential purpose fora period of 10 years prior to March 1, 1972. The 1st respondentobtained a lease of the premises for 5 years on bond No. 54 dated13.9.52. (R20). That document describes the premises as a houseand building. The lessee has undertaken to construct a latrine andobtain water service at his expense. The 1st respondent giving evidencebefore the Commissioner has produced extracts from the electoral .register A13 to A15 where his name, his wife's name and the nameof one of his sons were registered as voters residing in the premisesfrom 1962. The 1st respondent has used the premises mainly for thepurpose of residence of his family, using only a small portion outlined
Fazrul Hefeera and Another v. Sokkalingampillai and others
(Dr. Ranaraja, J.)
in red in plan A21, which is about 82 square feet in area, for apawnbrokering business. The balance area of 2,750 square feet onthe ground floor and 2,000 square feet in the upper floor was usedfor residential purposes. In the face of the uncontradicted evidenceof physical occupation by the 1st respondent and his family of thepremises 10 years prior to 1st March, 1972, the Commissioner hadthe jurisdiction to entertain application P1 and make an order thereon.The Board was not in error in holding that the Commissioner hadrightly entertained the application.
Learned counsel for the petitioner has alleged that the Inquiry officerhad violated the principles of natural justice in departing from hisearlier finding R33, that the premises was a business premises dated24.6.92 without giving the petitioner's a hearing. The Inquiry officer
S.A. Karunaratne has given evidence before the 2nd respondent. Asseen above, his evidence is of little or no relevance in applying thetest in section 47 of the law to decide whether the premises is a"house" or to bring the premises within subsection (2) of that section.
Finally, learned counsel complained that both the 2nd respondentand the Board of Review have misdirected themselves on the questionof "equities".
Section 17 (1) of the Ceiling on Housing Property Law provides:
Where an application has been made under this law for thepurchase of a house, and the Commissioner is satisfied –
that such house is situated in an area which in his opinion willnot be required for slum clearance, development or redevelop-ment or for any other public purpose;
that it is possible to alienate such house as a separate entity;and
that the applicant is in a position to make the purchase,
the Minister may, on being so notified by the Commissioner, by order(hereinafter referred to as a "vesting order") published in the Gazette,vest such house in the Commissioner with effect from such date asmay be specified therein".
Sri Lanka Law Reports
[1998] 3 Sri LR.
It is not disputed that these three requirements were consideredby the 2nd respondent and he was satisfied they were fulfilled beforemaking orders P7A and P7B. In other words, he has complied withthe requirements of section 17 of the law.
His Lordship Thamotheram, J. in Caderamanpulle v. PieterKenueman and othersintroduced the further element of “equities"that the Commissioner had to consider in deciding whether anapplication under section 13 of the law should be entertained. He wasof the view that the Commissioner is not a mere conduit pipe throughwhom an application of a tenant under section 13 goes to the Minister,even if conditions band (in section 17) are satisfied. There was a dutycast on the Commissioner to act fairly. While conceding thatCaderamanpulle (supra) did not elaborate as to what is meant by theword “equities". His Lordship S. N. Silva, J. in Kathiresan v. Bibileand others/® expressed the view that it was clear from the contextthat there was a requirement on the part of the Commissioner toconsider the respective interests of parties and in doing so he mustact reasonably. Section 13 of the law he stated, was introduced asa measure of regulating ownership. The policy was that a tenant whowas in occupation of a house let to him at the time the present landlordbecame owner and who continues as tenant under the present land-lord, is entitled to applly for the purchase of that house. This policyalso involves the vesting of such house without the consent of thelandlord. Therefore the tenant had a “pre-emptive right" or a"preponderant right" to purchase the house. In considering what isfair and reasonable the Commissioner had to attach due weight tothis right on the part of the tenant entitled to make an applicationunder section 13.
The decision on "equities" is a matter where the Commissionercould exercise his discretion. Such a decision could be reviewed onthe ground of “irrationality". As Lord Diplock in GCHQ CaseCouncilof Civil Service Unions v. Minister for the Civil Service/'® explained"Wednesbury Unreasonableness" applies to a "decision which is sooutrageous in its defiance of logic or of accepted moral standardsthat no sensible person who had applied his mind to the questionto be decided could have arrived at it". Unless "unreasonableness"or "irrationality" could be treated as an extenion of the principle ofultra vires, the petitioner is faced with the obstacle of section 39 (3)read with section 22 of the Interpretation Ordinance.
CAFernando v. Ceylon Brewerys Ltd.61
Both Caderamanpulle and Kathiresan (supra) did not deal with"equities" in that light. The petitioners have in their pleadings onlyalleged that the Commissioner and the Board of Review failed toconsider equities of parties. They have endeavoured in their writtensubmissions to expand on it by referring to factual matters presentedby both parties, which have in fact been considered by both the 2ndrespondent and the Board of Review. Nowhere have the petitionersalleged that the 2nd respondent or the Board of Review actedunreasonably or irrationally. In any event, both bodies have not erredon facts of a decisive nature which goes to the root of their jurisdiction.See Withanaratchi (supra). On the contrary, they have followed thepolicy of the CHP Law as set out in Kathiresan (supra). In thecircumstances the petitioners are not entitled to the relief claimed.Their application is dismissed with costs fixed at Rs. 1,500 payableto the 1st respondent.
Appeal dismissed.