PREMAWARDENA AND OTHERS
SUPREME COURTAMERASINGHE, J.
BANDARANAYAKE, J. ANDEDUSSURIYA, J.
SC APPEAL NO. 37/2000SC SPECIAL LA APPLICATION NO. 110/2000CA APPLICATION NO. 213/200024th OCTOBER 2000
Writ of mandamus – Tenant’s application to purchase the house let to him■ Ceiling on Housing Property Law, No. 1 of 1973 – Sections 13 and 17(1)of the Law – Writ application to compel sale made after the landlord hadobtainedjudgement for ejectment of tenant – Power of Court of Appeal tostay execution of the decree in the action pending the determination of thewrit application.
One Gananathan, father of the Appellant (now deceased) was thelandlord of the premises in dispute. He had instituted D.C. Colombo CaseNo. 6908/RE for the ejectment of the 1st respondent-tenant from the saidpremises and obtained a judgement for ejectment. That judgement wasaffirmed by a judgement of the Supreme Court.
Before the execution of the decree in the Supreme Court action the l91respondent made an application dated 28lh February, 2000 to the Courtof Appeal for a writ of mandamus for directions on the 2nd respondent (theCommissioner for National Housing) and the 3rd respondent (the Ministerof Housing) to take steps under section 17(1) of the Ceiling on HousingProperty Law, No. 1 of 1973 to vest the premises in the 2nd respondent andto transfer it to the 1st respondent pursuant to an application he hadmade under section 13 of the Law. The 1st respondent averred that by aletter dated 7Ul February 1977 the then Commissioner for NationalHousing had informed that he had decided to vest the premises in himpursuant to the section 13 application made by him to purchasethe premises. The l91 respondent sought an order directing the 2ndrespondent (the present Commissioner) to notify that decision to the 3rdrespondent, for an order directing the 3rd respondent to vest the premisesin die 2nd respondent and for an order directing the 2nd respondent toconvey the ownership of the premises to him (the 191 respondent) after thevesting.
Sri Lanka Law Reports
1200111 Sri UR.
The l5t respondent also sought an order staying further proceeding inD.C. Colombo Case No. 6908/RE which was in effect an interim orderstaying the execution of the decree entered in favour of Gananathan (nowdeceased) in whose place the appellant had been substituted. The Courtof Appeal issued the interim order sought until the final disposal of theapplication for writ. This resulted in staying the execution of a decreewhich had been affirmed by the Supreme Court.
There is no basis on which the Court of Appeal could have stayedthe execution of the decree of the Supreme Court in D.C. Colombo CaseNo. 6908/RE even if the Court of Appeal had a right to do so since in thiscase neither the Is1 respondent nor the Commissioner for NationalHousing had any manner of title to the premises in suit.
The 1“ respondent had no "legitimate expectation" to have the writapplication concluded in his favour in that the Commissioner had failedto communicate his decision to the landlord before he notified hisdecision to the Minister to enable the landlord to avail himself of his rightof appeal to the Board of Review under section 39( 1) of the Law.
An order for vesting of the premises can only be published in theGazette after the appealable period expires in the event of there being noappeal to the Board of Review or after a decision of the Board of Reviewin favour of the Is1 respondent in the event of an appeal being filed by theappellant. Hence the Is1 respondent’s application to the Court of Appealwas premature.
Cases referred to :
Neliya Silva v. Commissioner of National Housing and Another (1999)1 Sri L.R. 291 at 293
Broome v. Cassell and Co. (1972) A.C 1027 at 1054
APPEAL from the judgement of the Court of Appeal.
S. Mahenthiran with EJt. Premalingam and M.S.C. Rajas ingam lorappellant.
A.K. Premadasa, P.C. with C.E. tie Silva for l’1 respondents.
K. Sripavan, Deputy Solicitor General for 2nd and 3rd respondents.
Cur. adv. vult.
Indrakumar v. Premawardena and Others (Edussuriya. J.)
Editor’s Note :Vide Premawardenau. Indrakumar 12000) Sri LR139
for the judgement of the Supreme Court in DCColombo Case No. 6908/RE referred to above.
December 01, 2000.
EDUSSURIYA, J.The 1st Respondent to this appeal made an applicationdated 28th February 2000 to the Court of Appeal for the Issueof;
a writ of Mandamus compelling the Commissioner ofNational Housing (2nd Respondent to this Appeal) tonotify the Minister of Housing (3rd Respondent to thisAppeal) to vest premises bearing assessment No. 137- 1/1, Ananda Rajakaruna Mawatha,
a writ of Mandamus directing the 3rd Respondent onbeing so notified by the 2nd Respondent, to vest thesaid premises in the 2nd Respondent by publishing avesting order in the Government Gazette,
to issue an order directing the 2nd Respondent toconvey by deed the ownership of the said premises tothe 1st Respondent after the said premises had vestedin the 2nd Respondent,
on the basis that the then Commissioner of National Housinghad informed him (1st Respondent) by letter dated7th February 1977 (XI) that he had decided to have thepremises in question vested in him (then Commissioner ofNational Housing), pursuant to-an application made by the1st Respondent (as tenant) under Section 13 of the Ceiling onHousing Property Law No. 1 of 1973 to the then Commissionerof National Housing to purchase the said premises belongingto the then landlord K.C. Gananathan (the father of theAppellant).
Sri Lanka Law Reports
120011 I SriLR.
The 1st Respondent also sought from the Court of Appealan interim order staying further proceedings in D.C. ColomboCase No. 6908/RE which was in effect an interim order stayingthe execution of the decree of this Court entered in favour ofK. C. Gananathan (now deceased) in whose place the Appellanthas been substituted in action No. 6908/RE which said actionhad been instituted by K.C. Gananathan for the ejectment ofthe 1st Respondent from the premises relevant to this Appealon the ground that the tenant (lsl Respondent to this Appeal)was guilty of conduct amounting to a nuisance to the adjoiningoccupiers including the landlord as set out in Section 22(2) (d)of the Rent Act.
The Court of Appeal had in the first instance issued aninterim order staying the proceedings in D.C. Colombo CaseNo. 6908/RE and thereafter the Court of Appeal had afterinquiry into an application to vacate the said order extendedit until the final disposal of the application for writ, thereby ineffect staying the execution of a decree of this Court.
The Appeal now before this Court is from that order of theCourt of Appeal.
It is evident from the contents of the Application for thewrit of Mandamus made to the Court of Appeal that the allegeddecision to vest the premises in question in the Commissionerof National Housing had not been gazetted and is devoid ofany force or avail in law and it was for that reason that the1st Respondent filed the application for a writ of Mandamus inthe Court of Appeal.
I refer to XI as the alleged decision to vest the premises,since it purports to have been signed by someone on behalf ofthe Commissioner of National Housing, but it does not bear theofficial frank of the Commissioner of National Housing or theperson who signed it. The position is the same with regard todocument X3. Further, only alleged true copies of thesedocuments have been produced but not the originals.
Indrakumar u. Premawardena and Others (Edussuriya, J.)
Even assuming that these are copies of genuinedocuments, XI does not show that a copy of the same had beensent to the landlord nor is there any other evidence placedbefore either the Court of Appeal or this Court to establish thatthe alleged decision of the Commissioner of National Housingwas ever communicated to the landlord. Nor has the 1stRespondent to this Appeal averred in his Petition and Affidavit,filed in the Court of Appeal, that the Commissioner of NationalHousing had communicated his decision under Section 17(1)of the Ceiling on Housing Property Law, No. 1 of 1973 to thelandlord K.C. Gananathan who is now deceased.
Before an order of vesting is made by the Minister bypublishing in the Gazette, the decision of the Commissioner ofNational Housing must necessarily be communicated to thelandlord to enable the landlord to avail himself of the right ofappeal to the Board of Review (Neliya Silva v. Commissioner forNational Housing and Another4 ,J). Hence, the reliefprayedforbythe 1st Respondent before the Court of Appeal cannot begranted.
Even if the law permits the substitution of the presentowner (the Appellant) namely, the son of the former owner -landlord K.C. Gananathan (now deceased) in the place ofthe said K.C. Gananathan, in the proceedings before theCommissioner of National ,Housing, the decision of theCommissioner of National Housing will first have to becommunicated to the present owner, the Appellant, to enablethe Appellant to exercise his right of appeal to the Board ofReview under Section 39(1) of the Ceiling on Housing PropertyLaw No. 1 of 1973. Thus, the order of vesting can only bepublished in the Gazette, after the appealable period expiresin the event of there being no appeal to the Board of Review, orafter a decision of the Board of Review in favour of the 1stRespondent in the event of an appeal being filed by theAppellant. Therefore, in any event the 1st Respondent'sapplication to the Court of Appeal is premature.
Sri Lanka Law Reports
120011 1 SriLR.
On a reading of the order appealed from it is clear that thesole basis for extending the order staying further proceedingsin D.C. Colombo Case No. 6908/RE is that the Petitioner-Respondent has a “legitimate expectation" to have the matterconcluded in his favour in as much as the Commissionerof National Housing had informed him. that he theCommissioner of National Housing had decided to have thehouse in question vested in him after inquiry into thePetitioner-Respondent’s application to purchase the houseand also required the Petitioner-Respondent to deposit onequarter of the estimated sale price of the house.
However, at the hearing of this appeal not only did thePetitioner-Respondent’s Counsel not pursue this line ofargument but also denied making submissions on that basisin the Court of Appeal, until Counsel for the Respondent-Appellant drew the attention of Court to paragraph 7 of thewritten submissions tendered to the Court of Appeal by noneother than the Counsel for the Petitioner-Respondent himself.So that, having “planted” the argument based on the doctrineof “legitimate expectation” in the mind of the Judge in theCourt of Appeal, he then sought to disassociate himself fromsuch submission when he realized the futility of pursuing sucha line of argument before this Court. Therefore I do not thinkthat there is any need to dwell any further on this topic.
Counsel for the Appellant submitted that the Court ofAppeal had issued the order to stay further proceedings inD.C. Colombo Case No. 6908/RE in the first instance withoutnotice to the Appellant in violation of the Rules of Court.
Though there is provision in the Rules to issue interimstay orders without notice for a limited period on grounds ofurgency, the question is whether even with notice the Court ofAppeal has the authority to issue an order staying theexecution of a decree affirmed by this Court.
SCIndrakumar v. Premawardena and Others (Edussuriya. J.)13
In this connection it is appropriate to quote Lord Hailshamfrom his judgment in Broome v. Cassell and Co.m where HisLordship said “The fact is, and I hope it will never be necessaryto say so again, that, in the hierarchichal system of Courtswhich exists in this country, it is necessary for each lower tier,including the Court of Appeal, to accept loyally the decisionsof the higher tiers”.
In this case now in appeal before this Court, the Court ofAppeal has issued an order staying the execution of a decreeentered by this Court after a carefully considered judgment.
Although in issuing such order the Court of Appeal hadnot questioned the correctness of the judgment of this Court,the said order had been issued to enable the 1st Respondentjudgement-debtor in Case No. 6908/RE to pursue anothercourse of action, namely, the application for a writ ofMandamus compelling the gazetting of a decision taken by theCommissioner of National Housing twenty three (23) yearsago,in order to vest the premises in suit in the Commissionerof National Housing. Even if the reliefs applied for by the 1stRespondent are granted, still certain steps will have to betaken thereafter before the premises in suit can be conveyedto the 1st Respondent. Hence, at the moment there is no basison which the Court of Appeal could have stayed the executionof the decree of this Court in 6908/RE even if the Court ofAppeal had a right to do so, since neither the 1st Respondentnor the Commissioner of National Housing has any manner oftitle to the premises in suit.
In the circumstances, the interim order of the Court ofAppeal dated 2nd June 2000 is set aside and this Appeal isallowed with costs fixed at Rs. 10,500/-.
AMERASEVGHE, J.I agree.
BANDARANAYAKE, J. – I agree.