ISSADEEN v. THE COMMISSIONER OF NATIONAL HOUSING AND OTHERS

003-SLLR-SLLR-2003-V-2-ISSADEEN-v.-THE-COMMISSIONER-OF-NATIONAL-HOUSING-AND-OTHERS.pdf


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ISSADEEN
v
THE COMMISSIONER OF NATIONAL HOUSINGAND OTHERS
SUPREME COURTS.N. SILVA, CJ.BANDARANAYAKE, J. ANDJ.A.N. DE SILVA, J.
SC APPEAL NO. 110/96(A)
C.A. NO. 755/92
17TH SEPTEMBER, 2002
Writ of certiorari – Laches – Writ will not issue where petitioner fails to explaindelay and it causes prejudice to respondent – Application to quash a decisionto vest a house which had been sold to the tenant – Ceiling on HousingProperty Law, No. 01 of 1973, section 13.
The appellant claiming to be the owner of the premises in suit sought to quasha recommendation of the Commissioner of National Housing to vest the saidpremises. The application was filed on 12.10.1992. It was common ground thatthe appellant had been aware of the impugned decision from April, 1992.
The impugned vesting was effected pursuant to an application made in 1973under section 13 of the Ceiling on Housing Property Law, No. 01 1973 by thedeceased 2nd respondent (The deceased”) in whose place the 2nd respon-dent was appointed. The deceased had been the tenant of the premises from1959. Since then, there had been four sales of the premises over the head ofthe deceased and the owner of the premises in 1973 who was the respondent
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to the section 13 application was one Andradi to whom the notice of the deci-sion to vest was given in 1984.
However, in 1979 the appellant’s father had purchased the premises fromAndradi and transferred it to the appellant on 14.10.1988.
Consequent to the Commissioner’s decision to vest the premises the Ministermade an Order under section 17 of the Law in or about 1989 which order wasduly gazetted. Thereafter the premises were sold by the Commissioner to thedeceased tenant on 19.10.1992 and the deceased transferred the same to thesubstituted 2nd respondent and his sister on 17.08.1994. The aforesaid privatetransfers were notarially executed.
The previous litigation and the correspondence in respect of the premisesshowed that the appellant had been aware of the decision to vest the premis-es at least by 1991.
Held:
The appellant was guilty of laches. He had failed to adduce any acceptablereason to excuse the delay. The delay had caused prejudice to thedeceased (the tenant).
In the aforesaid circumstances the court will generally not issue the writ inthe exercise of its discretion.
Cases referred to :
Biso Menike v Cyril de Alwis and Another (1982) 1 Sri LR 368
Rajakaruna v Minister of Finance (1985) 1 Sri LR 391
APPEAL from the judgment of the Court of Appeal.
L.C.Seneviratne, P.C. with V.K. Cho/csy for appellant.
Romesh de Silva, P.C. with H. Amarasekera and I. Munaweera for 2nd substi-tuted respondent.
Cur.adv.vult
April 04, 2003BANDARANAYAKE, J.
This is an appeal from the judgment of the Court of Appealdated 05.02.1996. By that judgment, the Court of Appeal dismissedthe application of the petitioner-appellant (hereinafter referred to as
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the appellant) for writ of certiorari quashing the order of theCommissioner of National Housing vesting premises No.14,Collingwood Place, Colombo 6 (hereinafter referred to as “thepremises”) as stated in letter dated 27.08.1992 (X2) on the basisthat the appellant was guilty of laches. On an application made tothis court, special leave to appeal was granted only on the questionas to whether the finding of the Court of Appeal that the petitioner 10was guilty of laches was correct.
The facts of this case, albeit brief, are as follows :
The appellant became the owner of the premises under andby virtue of Deed No. 434 dated 14.10.1988 attested by G.G.Arulpragasam, Notary Public (X1). The original 2nd deceasedrespondent-respondent (hereinafter referred to as the deceased2nd respondent) was the occupant of the premises and purportedto claim that he was the tenant of the premises. The appellant sub-mitted that she received a letter dated 27.08.1992 (X2) from the 1strespondent-respondent (hereinafter referred to as the 1st respon- 20dent) informing her that this premises had been vested in theCommissioner of National Housing in terms of the provisions of theCeiling on Housing Property Law, No.1 of 1973 and requesting theappellant to submit a written claim to the whole or any part of theprice payable in respect of such house under section 2 of the saidlaw. The appellant thereafter received a further letter dated
requesting the appellant to appear before the ValuationBoard appointed in terms of section 22 of the Ceiling on HousingProperty Law (X4). The appellant contended that she did notreceive any notice of any application made by the deceased 2nd 30
respondent for the vesting of the premises nor did she receive anyform of intimation as to the provisions of law under which thepremises had been purportedly vested in the Commissioner ofNational Housing. She further contended that she was not affordedany intimation or notice of a proposed intention on the part of the1 st respondent to secure the vesting of the premises. The appellantin her application to this Court submitted that even at the time of fil-ing her application to the Court of Appeal, she was not aware andhad not been apprised of the nature and the character of the pur-ported vesting.
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It is common ground that the only question that has to bedecided by this Court is whether the appellant is guilty of laches infiling the application in the Court of Appeal.
Learned President’s Counsel for the appellant contendedthat in considering the question of laches it is the knowledge of thematerial facts on the part of the appellant that would be operativeand effective in considering redress from Court. The appellant’sposition is that she became aware of the vesting order that wasmade in respect of the premises only after receiving the letter fromthe 1st respondent dated 27.08.1992 (X2). Subsequently she had soreceived a letter dated 02.09.1992 requesting her to appear beforethe Valuation Board. Therefore, the appellant contended that shewas not given any intimation of the notice to vest the said premis-es in the Commissioner of National Housing or of any inquiry inrespect of such vesting. Learned President’s Counsel for the appel-lant contended that, if such notice was given to the appellant, shecould have applied to the Board of Review. Furthermore, learnedPresident’s Counsel submitted that the failure in informing theappellant of any intention or inquiry relating to the said vesting bythe Commissioner of National Housing constituted a breach of nat- 60ural justice. In support of his submission, learned President’sCounsel for the appellant relied on Biso Menike v Cyril de Alwisand another C) and Rajakaruna v Minister of Finance <2>. LearnedPresident’s Counsel for the appellant’s submission is that since thetime the appellant became the owner of the property and the timeshe filed her application in the Court of Appeal, there had been nodelay.
Learned President’s Counsel for the respondent wasemphatic that the appellant is guilty of laches. In support of thisposition, learned President’s Counsel took up the following sub- 70missions:
The appellant’s predecessor in title was well aware of theapplication before the Commissioner of National Housing;
The lawyers who originally appeared for the 2nd respondentin the present case are the same lawyers who appeared forone Andradi, in 2362/RE (Andradi was the owner of thepremises from whom the appellant’s father purchased it in1979);
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Appellant filed action No. 1/22/91 in the District Court ofMount Lavinia and the answer of the original 2nd respon- sodent was filed on 03.04.1992. In the said answer, it was dis-closed that the premises had been vested in theCommissioner of National Housing.
It is relevant and imperative to refer to some of the relatedfacts of this case at this juncture. The deceased 2nd respondentwas a tenant of the premises since 1959. Originally he was thetenant of one Peter de Silva and after four transfers over his headone Andradi became the owner of the premises in question byDeed No.156 dated 13.09.1970, attested by A.I.M. Kaleel, NotaryPublic. The deceased 2nd respondent, by application dated 9002.02.1973 applied to the Commissioner of National Housing forthe purchase of the premises in terms of section 13 of the Ceilingon Housing Property Law, No.1 of 1973. By its order, theCommissioner of National Housing, allowed the appellant’s appli-cation and recommended vesting of the premises. This was com-municated to Andradi by letter dated 19.11.1984 with a copy tothe deceased 2nd respondent. The premises was vested and thevesting order was gazetted on 08.02.1990. Thereafter theCommissioner of National Housing transferred the premises tothe deceased 2nd respondent by Deed No. 14983 dated ioo19.10.1992. The deceased 2nd respondent transferred thepremises to the substituted 2nd respondent and his sister byDeed No. 1466, dated 17.08.1994 attested by E.M.P.N.Arthenayake.
The appellant filed action (L/22/91) in the District Court ofMount Lavinia and the answer of the deceased 2nd respondentwas filed on 03.04.1992. In the said answer, inter alia, thedeceased 2nd respondent had pleaded as follows :
“The defendant further pleads that in the exercise of hislawful rights he had made application to the Commissioner noof National Housing under the provisions of the Ceiling onHousing Property Law for the purchase of the premises insuit and on December 27th 1989 an order was made for thevesting of the said premises in the Commissioner ofNational Housing with the approval of the Honourable theMinister of Housing and Construction and the said vesting
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order was duly Gazetted under the provisions of the Ceilingon Housing Property Law in the Government Gazette.”
It is therefore common ground that notwithstanding the factthat the appellant became aware of the vesting order in April 1992,she had waited for 6 months to file her application seeking for a writof certiorari in the Court of Appeal.
Learned Judge of the Court of Appeal, after considering thematerial before Court, held that the appellant and her father wereaware of the application made by the deceased 2nd respondent bythe time the action No. 2362/RE, filed by the Andradi’s against thedeceased 2nd respondent in the District Court of Mount Lavinia forejectment was finally decided by the Court of Appeal in case No.95/79(F) on 25.08.1989. It was further held that the appellantshould also have been aware of the vesting order published in1990.
As referred to earlier, the deceased 2nd respondent was thetenant of the premises, who came into occupation in 1959. Theappellant’s father purchased the premises from Andradi, while thedeceased 2nd respondent remained as the tenant, in 1979.Learned President’s Counsel relied on Biso Menikev Cyril de Alwisand another (supra, pp.379-380) in support of his contention thatthe writ of certiorari will not be refused when such denial of the writis likely to cause grave injustice. In this case Sharvananda, J. (ashe then was) stated that,
“unlike in English Law in our Law there is no statutory timelimit within which a petition for the issue of writ must be filed.But a rule of practice has grown which insists upon such peti-tion being made without undue delay. When no time limit isspecified for seeking such remedy, the Court has amplepower to condone delays…”
This passage was cited with approval by G.P.S. de Silva, J.(as he then was) in the Court of Appeal judgment in Rajakaruna vMinister of Finance (supra).
It is however to be noted that delay could defeat equity.Although there is no statutory provision in this country restrictingthe time limit in filing an application for judicial review and the
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case law of this country is indicative of the inclination of the Courtto be generous in finding ‘a good and a valid reason’ for allowinglate applications, I am of the view that there should be proper jus-tification given in explaining the delay in filing such belated appli-cations. In fact, regarding the writ of certiorari, a basic character-istic of the writ is that there should not be an unjustifiable delay inapplying for the remedy. Prof. G.L. Peiris, in his book on Essayson Administrative Law in Sri Lanka (Lake House Investments 160Ltd., pg. 13 and 15) stated that,
“Where a discretion is available to the Court in regard to thegrant or refusal of certiorari, the writ will generally not issueif there has been unjustifiable delay on the part of the appli-cant in seeking relief … The relevant principle is that reliefby way of certiorari must be sought punctually.”
The appellant’s contention that she became aware of thevesting order in regard to the premises only in AprilJ992 in myview cannot be accepted for the following reasons. The attorney-at-law for the deceased 2nd respondent wrote to the attorney-at-law for the appellant on 06.06.1991 replying the latter’s letterdated 06.05.1991 regarding the premises in issue. In the reply,the said attorney-at-law had informed the attorney-at-law for theappellant in the following terms:
“My client, Mr. Edward Fernando, was a lawful tenant, enti-tled to the statutory protection of the Rent Act in respect ofthe aforesaid premises. Your attention is drawn to thepleadings, proceedings and judgment in the District Courtof Mount Lavinia Case No.2362/RE (A5).”
In his reply dated 28.06.1991 (A6), the attorney-at-law for ibothe appellant informed the attorney-at-law for the deceased 2ndrespondent in the following terms :
“Action has already been instituted in the District Court ofMount Lavinia bearing the above number for recovery ofpossession of the premises bearing assessment No.14,Collingwood Place, Wellawatte from your client.”
The appellant’s petition to the Court of Appeal, although it isdated 30,09,1992, was filed only on 12.10.1992. The appellant
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has not given any reason for the delay in filing the application, butstated that she has not received any notice either from the 1st or -190the 2nd respondent to this application. Taking into considerationthe totality of the circumstances, it is improbable that the appel-lant was not aware of the vesting order made by theCommissioner of National Housing, at the least by June 1991.
In fact a consideration of the entirety of the circumstancesin this case, reveal that the appellant would have known about thevesting order well before her attormey-at-law received the letterdated 06.06.1991, referred to above. In the instant case, in myview, the delay on the part of the appellant has caused prejudiceto the deceased 2nd respondent since he has taken all necessary 200steps on the basis that the premises was vested in theCommissioner of National Housing. The appellant has failed toadduce any acceptable reason to excuse the delay.
I accordingly hold that the appellant was guilty of lachesand answer the question on which special leave to appeal wasgranted by this Court in the affirmative. This appeal is according-ly dismissed, but in all the circumstances of this case I make noorder for costs.
S. N. SILVA, C.J.-I agree.
DE SILVA, J.-I agree.
Appeal dismissed.