014-SLLR-SLLR-2003-1-JIFFRY-v.-COLOMBAGE-AND-OTHERS.pdf
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Jiffry v Colombage and others, (S.N. Silva, CJ)
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JIFFRY
v
COLOMBAGE AND OTHERS
SUPREME COURTS.N.SILVA, CJISMAIL, J. ANDEDUSSURIYA, J.
S.C. APPEAL No.19/2001C.A.APPLICATION No. 894/994TH OCTOBER 2001
Writ of certiorari – Celing on Housing Property – Information given by tenantthat the appellant owned eleven houses – Commissioner’s decision vestinga house – Validity of the decision in view of Act, No. 4 of 1988.
The appellant and his deceased brother being owners of 10 houses madetheir declaration under the Ceiling on Housing Property Law (“the Law”) on31.08.1976. The declaration stated that they were joint owners of 10 housesbut gave particulars of only 09 houses, including the house in dispute. The6th respondent the Commissioner for National Housing (“theCommissioner”) vested 06 houses excluding the premises in question.Thereafter another house of which particulars had not been disclosed wasalso vested; and all proceedings in respect of the houses including paymentof compensation for the vested houses were finalized by 31.05.1985.
The first respondent (“the tenant”) who succeeded to the tenancy of thehouse in dispute in 1992 sent an affidavit dated 21.12.1994 to theCommissioner that the appellant and the 2nd respondent were excess houseowners. After in inquiry into this matter, the Commissioner by a decisiondated 08.09.1995 purported to vest the house in dispute. The Board ofReview Ceiling on Housing Property set aside that decision on the groundthat the Commissioner had no jurisdiction to make it in view of the provisionsof the Ceiling on Housing Property (Special Provisions) Act, No.4 of 1988.
Held:
1. In view of the provisions of section 3 of the Ceiling on HousingProperty Law (Special Provisions) Act, No.4 of 1988 (‘The Act”) whichprecluded a tenant from making an application under the Law after01.01.1987 the tenant was not entitled to make his “application” dated21.12.1994.
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2. Section 4(c) of the Act which provided for the completion of pendingmatters had no application as all proceedings in respect of the decla-ration made by the appellant and the other co-owner had been con-cluded by 31.5.1985.
APPEAL from the decision of the Court of Appeal reported in (2000) 3 Sri LR367
Faiz Musthapha, PC with Reza Muzni and A.M.Jeefry for appellantN. B. D. S. Wijesekera for 1 st respondentN.Pulle, State Counsel for 6th repondent.
Cur.adv. vuit
Editor's note
Vide (2000) 3 Sri L.R.367 for a detailed statement of the facts relating to thepurported vesting.
October 04, 2001S.N.SILVA, C.J.
This is an appeal from the judgment dated 4.9.2000 of theCourt of Appeal. By that judgment, the Court of Appeal directedthe issue of a Writ of Certioari to quash the decision of the Boardof Review established under the Ceiling on Housing PropertyLaw. That decision is dated 25.8.1999. In the proceedings inquestion the Board of Review considered the appeal of the pre-sent appellant in respect of a decision made by the Commissionerof National Housing dated 8.9.1995. By that decision, theCommissioner purported to vest premises bearing No.90,Yatinuwara Veediya, Kandy owned by the appellant and the 2ndrespondent. The decision dated 8.9.1995 was made by theCommissioner pursuant to an application made by the tenant on21.12.1994.
The Board of Review has set aside the order of theCommissioner on the basis that the tenant could not have madean application in respect of the . premises bearing assessment
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Jiffry v Colombage and others, (S.N. Silva, CJ)
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No.90, after 01.01.1987 in view of the provisions of the Celing onHousing Property (Special Provisions) of Act.No. 4 of 1988.Section 3 of that Act specifically precludes an application beingmade by the tenant in terms of the principal Act after 01.01.1987.In this instance, the application was made on 21.12.1994. TheCourt of Appeal has gone on the basis that the order could havebeen made by the Commissioner in view of the provisions ofSection 4(c) of Act, No. 4 of 1988. This provison reads thus.
“Any action proceeding or thing commenced under the prin-cipal enactment and pending or incomplete on 01.01.1987which action, proceeding or thing may be carried on andcompleted as if the principal enactment had not beenamended by this Act.”
The Court of Appeal has observed that the proceedingsbefore the Commissioner were pending since the declarationmade under the Act by the owners was false or incorrect.
It is to be noted that a declaration was made by the appel-lant and the 2nd respondent being joint owners of several hous-es on 31.8.1976. In that declaration, they have disclosed the factthat they owned 10 houses. However, only the particulars withregard to 9 houses have been specified. This includes premisesbearing No. 90 Yatinuwara Veediya, Kandy which is the subjectmatter of this appeal. Pursuant to inquiries that were held,Commissioner vested 6 of these houses of which particulars weredisclosed excluding the premises in question. Thereafter the 7thhouse of which particulars were not disclosed was also vested.The decision of the Board of Review reveals that the appellantwas paid compensation in respect of the vested houses on31.5.1985.
Thus all proceedings with regard to the declaration made bythe appellant and the other co-owner had been concluded as farback as 31.5.1985. The premises bearing No. 90 YatinuwaraVeediya, Kandy was a permitted house which the owners wereentitled to retain. In the circumstances, there was no basis what-soever for the tenant, the 1st respondent, to make an applicationin 1994 in respect of these premises. According to the materialavailable, he succeeded to the tenancy only in 1992 long after the
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period for making an application lapsed in terms of provisions ofAct, No. 4 of 1988.
Accordingly, we hold that the basis on which, the Court ofAppeal issued a Writ of certiorari quashing the decision of theBoard of Review is incorrect. We allow this appeal and set asidethe judgment dated 4.9.2000. We make no order for costs.
ISMAIL, J.- I agree.
EDUSSURIYA , J.I agree.
Appeal allowed.