019-SLLR-SLLR-1997-V3-GNANASAMBANDAM-v.-THE-REHABILITATION-OF-PROPERTY-INDUSTRIES-AUTHORITY-RE.pdf
178
Sri Lanka Law Reports
[1997] 3 Sri L.R.
GNANASAMBANDAM
v.
THE REHABILITATION OF PROPERTY & INDUSTRIESAUTHORITY (REPIA) AND OTHERS
SUPREME COURT.
G. P. S. DE SILVA. C.J.,
PERERA, J. AND
DR. SHIRANI A. BANDARANAYAKE, J.
S.C. APPEAL 105/96.
C.A. 1195/87.
JULY 25, AUGUST 4, 1997.
Writ of Certiorari – Emergency (Rehabilitation of Affected Properties, Business orIndustries) Regulations No, 1 of 1983 – Divesting of vested property – Tenant'sRights.
The appellant was the tenant of the disputed premises which was burnt downduring civil disturbances in July 1983. Such property vested in the state in termsof regulation 9 of the Emergency (Rehabilitation of Affected property Business orIndustries) Regulations No. 1 of 1983. On 23,12.83 the appellant sought relief inrespect of the disputed premises. On 17.1.84 the body called REPIA under theEmergency Regulations divested the property in terms of regulation 14.Thereafter the owner of the premises (The 5th respondent) repaired it andobtained a letter dated 28.6.84 from REPIA granting him permission to deal withhis property to the exclusion of the tenant.
Held:
When the property was divested, the tenancy with the appellant revived byoperation of law. in terms of regulation 14(2); and the decision of REPIA containedin its letter dated 28.6.84 was made without the appellant being heard, in breachof the audi alteram partem rule. That decision was made by REPIA in excess of itsauthority and was devoid of legal effect.
APPEAL from the judgment of the Court of Appeal.
A, R. Surendren with G. Ranawaka for the appellant.
Faisz Musthapha, PC. with Gaston Jayakody for the 5th respondent.
Cur. adv. vult.
September 5,1997.
P. S. DE SILVA, C.J.
The petitioner who sought relief by way of certiorari andmandamus was admittedly the tenant of the premises which are the
sc
Gnanasambandam v. The Rehabilitation of Property &
Industries Authority (REPIA) and Others (G. P. S. de Silva, C. J.)
179
subject-matter of these proceedings for many years prior to the civildisturbances which occurred in the latter part of July 1983. It is alsonot disputed that the premises were burnt and the petitioner'shousehold goods and vehicles were also burnt during the period ofthe civil disturbances in July 1983. The petitioner and his family werethus compelled to leave the premises.
The petitioner had on 23.12.83 made an application by way of anaffidavit (1R1) for relief to the body known as the Rehabilitation ofProperty and Industries Authority (REPIA) established under theEmergency (Rehabilitation of Affected Property. Business orIndustries) Regulations No. 1 of 1983, published in gazetteextraordinary No. 257/3 of 7.8.83. Regulation 9(1) provides that“Every affected property … shall with effect from the date theseregulations come into force vest absolutely in the State free from allencumbrances." “Affected property" is defined as “any immovableproperty damaged or destroyed on or after July 24, 1983, by riot orcivil commotion." It is common ground that the 5th respondent, one ofthe co-owners of the premises, had by his affidavit dated 16.1.84(1R4) given a specific undertaking to REPIA that he would “restoretenancy to the previous tenant after effecting repairs …". Theprevious tenant is the petitioner. On 17.1.84 the REPIA had“divested" the premises; provision for “divesting” is found inRegulation 14 which reads thus:-
“14(1) Notwithstanding that, any affected property, or industry orbusiness has vested in the State by reason of the operationof these regulations REPIA may at any time by Orderpublished in the gazette divest such property, industry orbusiness.
(2) The following provisions shall apply to a divesting Ordermade under paragraph (1):-
(a) the property, industry or business shall be deemednever to have vested in the State by reason of theoperation of these regulations and any question whichmay arise as to any right, title or interest in or over suchproperty, industry, or business shall be determinedaccordingly.
Sri Lanka Law Reports
[1997] 3Sri L.R.
180
the divesting Order shall have the effect of revivingany arrangement, agreement or other notariailyexecuted instrument in and over that property, industryor business subsisting on the date on which suchproperty, industry or business vested in the State."
There, by virtue of the operation of Regulation 14(2) the contract oftenancy with the petitioner “revived". In other words, the tenancyrevived by operation of law.
The Chairman of the REPIA, (3rd respondent) however, by hisletter dated 28.6.84 (1R6 and also marked as 5R2) addressed to the5th respondent has stated as follows:-
“This is to inform you that you are absolved of the undertaking youhad given in your affidavit of 16.1.84 to the effect that you wouldrestore tenancy of the above premises to your previous tenant, ashe has not claimed it to date. Please also be informed that thedivesting order dated 17.1,84 issued in your name is valid and thatyou are free to do whatever you desire with your property."
The reasons for the decisions contained in 1R6 are set out by the3rd respondent in his affidavit dated 23,2.88 filed before the Court ofAppeal. The first reason is that the 5th respondent by his letter dated16.6.84 had informed the Chairman, REPIA “that the premises hadbeen repaired and kept vacant to be given to the previous tenant, thepetitioner, but as his whereabouts were not known and as he waslosing income by keeping the premises closed indefinitely andrequested that he be released from the undertaking to give thepremises to the petitioner.” The second reason is "that no applicationhad been made by the petitioner to retain the tenancy." In my viewboth reasons do not bear scrutiny. In the first place, REPIA had actedon the representations made by the 5th respondent that thewhereabouts of the petitioner were unknown without the petitionerbeing heard. There was thus a clear violation of the audi alterampartem rule on a matter which vitally affected the rights of thepetitioner. The letter P6 addressed to REPIA by the petitioner clearlyestablished his continued interest in returning to the premises.Secondly, the statement in 1R6 that "no application has been madeby the petitioner to retain the tenancy" is in the teeth of the affidavit
sc
Gnanasambandam v. The Rehabilitation of Property &
Industries Authority (REPIA) and Others (G. P. S. de Silva. C. J.)
181
1R1. Moreover, REPIA has no authority to make a “divesting order” inthe name of a particular person; nor has it the authority to inform the5th respondent “that you are free to do whatever you desire with yourproperty." 1R6 is devoid of legal effect as it has been issued withoutauthority. I accordingly hold that REPIA has clearly acted in excess ofits authority.
The Court of Appeal has upheld the preliminary objection to theapplication on the erroneous assumption that REPIA is not a party tothe proceedings. REPIA is in fact the first respondent in the presentapplication.
Prayer (b) of the application, namely a writ of Mandamus on REPIAis, however, misconceived. The proper party should have beenREPIA established under and in terms of the Rehabilitation ofPersons Properties and Industries Authority Act No. 29 of 1987. ButREPIA was not made a party to these proceedings and hencemandamus cannot issue.
It was submitted on behalf of the 5th respondent that REPIA wasnot in existence at the time the petitioner filed his application for writof Certiorari and Mandamus in November 1987. There is no merit inthis submission; the 1st respondent (REPIA) and the 3rd respondent(Chairman, REPIA) filed a statement of objections on 24.2.88, butnowhere in their objections have they taken up the position thatREPIA ceased to exist by November 1987. Nor has the 3rdrespondent pleaded this position in his affidavit dated 23.2.88.
In the result, I set aside the judgment of the Court of Appeal in sofar as it has dismissed the application for a writ of certiorari and Idirect that a writ of certiorari do issue to quash 1R6 (also marked as5R2 by the 5th respondent). 1R6 (5R2) is accordingly quashed.
I make no order as to costs.
PERERA, J. -1 agree.
DR. SHIRANI A. BANDARANAYAKE, J. – I agree.Appeal allowedwrit of certiorari issued.