031-SLLR-SLLR-2000-V-3-GOLOMBAGE-v.-JIFFRY-AND-OTHERS.pdf
COLOMBAGE
v.JIFFRY AND OTHERS
COURT OF APPEALJ.A.N. DE SILVA, J.
CA NO. 894/992604/BR3rd JULY, 20003rd AUGUST. 2000
Ceiling on Housing Property Law 1 of 1973- S.8(4) – Removal of Ceiling onHousing Property – Ceiling on Housing Property (Special Provisions) 4 of1998 – S.2. S.3. S.4.
The lsl Respondent and his deceased brother made a declarationdisclosing nine houses, when in fact they owned ten houses. In terms ofthe law they were permitted to retain 3 houses and six houses werevested. The Commissioner published a notice in November 1994, callingupon the public to inform him about undeclared houses belonging toowners, to enable the Commissioner to wind up its affairs.
The Petitioner in response disclosed that the Is' Respondent and hisbrother are excess house owners, with the result, the premises inquestion was also vested in the Commissioner. This decision was setaside by the Board of Review.
The main contention of the Is' Respondent was that the Ceiling onHousing Property was removed under S.2 of C.H.P (Special Provisions)Act No. 4 of 1998, and the Commissioner therefore cannot make such anorder in view of the provisions of C.H.P (Special Provisions) Act No. 4 of1988.
Held :
In view of Section 4(c) of Act No. 4 of 1988 any action, proceeding orthing commenced under the principal enactment and pending andincompleted could be carried on and completed.
The decision made by the Commissioner in 1995. is a direct result ofthe false declaration of the 151 Respondent and his brother, therefore thedecision falls within the parameters of "incomplete thing” and is valid.
APPLICATION for a Writ of Certiorari.
368
Sri Lanka Law Reports
12000) 3 Sri LR.
Cases referred to :
Magi Nona v. Commissioner of National Housing (1997) 3 SLR 131at 131
Sithamparanathan v. Premaratna (1996) 2 SLR 203
Imadeen u. Peoples Bank CALA 150/97 – CAM. 30. 06. 2000
N.B.D.S. Wijesekera for Petitioner.
Riza Muzni with A.M. Jeffry for lsl Respondent.
Ms. M.N.B. Fernando. S.S.C for 6lh Respondent.
Cur. adu. vult.
September 04, 2000.
J.A.N. DE SILVA, J.
The 1SI respondent A.C.H. Jiffry and his deceased brotherMohammed Nawaz were the Co-Owners of a number of housesinherited by them from their father by a deed of gift bearingNo. 721 dated 16. 02. 1957. The subject matter of thisapplication viz No. 90 Yatinuwara Veediya, Kandy was one ofthose houses. When the Ceiling of Housing Property Law No 1of 1973 came into force they made a declaration disclosingnine houses when in fact they were the owners of ten houses.In terms of the provisions of the said Act they were permittedto retain three houses and six houses were vested with theCommissioner of National Housing. Thereafter upon beeninformed that the landlords had failed to declare two morehouses the said two houses were also vested with theCommissioner after due inquiry.
The petitioner in this case been the tenant of house No. 90.Yatinuwara Veediya, Kandy at all relevant times. The tenancyhad been admitted by the lsl respondent. The petitioner statesthat the Commissioner of National Housing published a noticein the Dinamina Newspaper on the 27th of November 1994calling upon the public to inform the Commissioner aboutundeclared houses belonging to owners to enable theDepartment of National Housing to wind up its affairs. Thepetitioners's position is that in response to this notice shesubmitted an affidavit dated 21. 12. 1994 disclosing that the
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lsl respondent and his brother Nawaz are excess houseowners. After inquiring into this matter, house No. 90Yatinuwara Veediya, Kandy was vested in the Commissioner.
The 1st respondent appealed to the Board of Review. TheBoard of Review by its order dated 25. 08. 1999 allowed theappeal and set aside the vesting order on the basis that theCommissioner had no jurisdiction to launch an investigationand vest this house in view of the provisions of the Ceiling onHousing Property (Special Provisions) Act No. 4 of 1998. Thepresent application by the petitioner is to quash the said order.
The Ceiling on Housing Property was removed underSection 2 of the Ceiling on Housing Property (SpecialProvisions) Act No. 4 of 1998. Under Section 3 of the said Act,the right to make applications under the principal enactmentwas taken away after 1st of January 1987.
Section 8(4) of the Ceiling on Housing Property Act readsas follows.
“Any person who has, without any reasonable cause,failed to send the, declaration within the period referred to insubsection (1) or subsection (2) as the case may be, or hasmade any incorrect declaration in regard to the number ofhouses owned by him or by his family as the case may be, shallbe guilty of an offence under the law and any such houseowned by such person or by any member of the family ofsuch person as may be specified by the Commissioner bynotification published in the Gazette shall vest in theCommissioner with effect from such date as may be specifiedtherein.”
Therefore it is clear that when a person makes an incorrectdeclaration, the Commissioner is empowered to vest thehouses through a Gazette notification. As the then ChiefJustice G.P.S. de Silva held in Maginona u. Commissioner ofNational Housing111 “a prosecution is not a condition precedentto a vesting.”
370
Sri Lanka Law Reports
1200013 Sri LR.
The question that arises for determination now is, can theCommissioner make such an order in view of the provisions ofCeiling on Housing Property (Special Provisions) Act No. 4 of1988.
The position taken up by the 1st respondent is that thehouse in question was declared by them to the Commissionerof National Housing and therefore this is not a house that canbe considered as “not disclosed". It is to be noted that in thedeclaration form ten houses had been declared but details hadbeen given only in respect of nine houses. On informationreceived by the Commissioner subsequently two more houseswere also vested on the basis of non disclosure. In thesecircumstances I am of the view that the Is' respondent cannotrely on his declaration form and affidavit tendered to theCommissioner.
Section 2 and 4 of the Act No. 4 of 1988 read as follows.
(2) Notwithstanding anything to the contrary in section 2 orany other provision of the Ceiling on Housing Property LawNo. 1 of 1973 (principal enactment) or any other written law.there shall be no limit from or after January 1st, 1987 as tothe maximum number of houses which may be owned by anindividual who is, or is not, a member of a family or by any bodyof persons, corporate or unincorporated and the provisions ofthe principal enactment shall be construed accordingly."
(4) For the avoidance of doubt it is hereby declared that theprovisions of this Act shall not affect, or be deemed to haveaffected,
The past operation of, or anything duly done orsuffered under, the principal enactment prior toJanuary 1st, 1987.
Any offence committed, any right, liberty or penaltyacquired or incurred, under the principal enactment,prior to January 1st, 1987.
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(c) Any action, proceedings or thing commenced underthe principal enactment and pending or incompletedon January 1st, 1987 which action proceedings orthing may b.e carried on and completed as if theprincipal enactment had not been amended by thisAct.
The Commissioner of National Housing published a noticeintimating to the public that Commissioner is winding up hisaffairs and all transactions with his department would ceasewith effect from 31. 12. 1994.
The matters referred to in the said notice are as follows.
Execution of deeds in favour of the tenants under theCeiling of Housing Property Law.
Payment of compensation.
Information regarding any house not disclosed by thelandlord.
The 3rd item refers to the declarations that are alreadymade by the landlords.
It must be kept in mind everything that the Commissionerhas done stems from the incomplete, inaccurate or falsedeclaration made by the Is1 respondent and his brother.Therefore in view of the provisions of subsection 4(c) anyaction, proceeding or thing commenced under the principalenactment and pending and incompleted could be carried onand completed. In the circumstances I hold that the decisionmade by the Commissioner in 1995 is a direct result of the falsedeclaration of the lsl respondent and his brother. Thereforethat decision falls within the perimeters of “incomplete thing”and is valid.
The decision in Sithamparanathan u. Premaratne121 citedby the 1st respondent has no application to this case as it refers
372
Sri Lanka Law Reports
12000] 3 Sri LR.
to pending proceedings, where as in this instant the decisionof the Commissioner is with regard to an incomplete action.
Counsel for the Is1 respondent also raised a preliminaryobjection to this application on the basis that certified copiesof the documents are not annexed to the petition and thereforethe application should be dismissed, as it violates rules 3( l)(a)of the Court of Appeal (Appellate Procedure) Rules 1990, andin support of this contention cited the decision in Imadeen v.Peoples BankJ3>. The main document in this case is the order ofthe Board of Review dated 28. 08. 99. That document is aduly certified document. Therefore I reject the preliminaryobjection since there is substantial compliance. I also set asidethe decision of the Board of Review dated 25. 08. 1999.
This application is allowed. The Commissioner of NationalHousing is directed to take consequential steps to give effectto his decision. The petitioner is entitled to cost fixed atRs. 2000/=.
Application allowed.