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NATIONAL HOUSING AND DEVELOPMENTAUTHORITY AND ANOTHERCOURT OF APPEALSRIPAVAN, J.
DECEMBER 16, 2003 ANDMARCH 15, 2004
Writ of mandamus – Refusal to perform a legal duty -Presidential directive -Status of law ? -Is it enforceable?
Kahandawela v National Housing and Development Authority and
CA another (Sripavan, J.)177
The petitioner the widow of an Air Force Officer who died in action was allot-ted a flat and a sale agreement was entered into with the 1st respondent.According to the terms of agreement, the petitioner agreed to pay the amountover a period of 20 years in stated monthly instalments.
The petitioner sought to repay on a different basis. On a directive from H.E.The President, the Secretary of Ministry of Housing directed the 2nd respon-dent to formulate a scheme for the purpose of giving flats on concessionaryprices together with a selection criteria. The petitioner did not produce any suit-able scheme with a selection criteria. However as the petitioner had defaultedan additional sale agreement, with an undertaking to pay the balance amount-was entered into. The petitioner thereafter sought a writ of mandamus, toimplement the proposals of H.E. The President.
The Presidential directive relied on by the petitioner does not have the“status of law”. Duties enforceable by mandamus are those imposed bylaw.
Mandamus would not lie to enforce any further concessions not provid-ed in a legal manner.
APPLICATION for writ of mandamus
Cases referred to:
De Alwis v Silva – 71 NLR 108
State of Assam v Ajit Kumar- 1969 (AIR) SC 1196
L.C. Seneviratne P.C., with K. Wickremasinghe for petitionerMs B. Tilakaratne, Deputy Solicitor-General for respondents.
April 30, 2004
The petitioner is the widow of the late Squadron Leader K.A.J.P.Kahandawela of the Sri Lanka Air Force who died in action conse-quent to an air crash. The petitioner and her husband were occu-pying official Married Quarters at the time of the death of the peti-tioner’s husband. The Commander of the Air Force by letter dated15th March 1966 (P2) addressed to the Minister of Housing,Construction and Public Utilities recommended the petitioner’sapplication to obtain a government flat. Accordingly, the petitionerwas allotted a flat by the first respondent in the Manning Town
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Housing Scheme at a purchase price of Rs. 2,500,000.00. The peti-tioner entered into a sale agreement (P4) with the first respondenton 14th June 1966 after making an initial deposit of Rs. 800,000.00.According to the terms of the agreement, the petitioner agreed topay the balance amount of Rs. 1,700,000.00 over a period of 20years in monthly instalments of Rs. 7,085.00.
The departmental file produced by the learned D.S.G. showsthat the second respondent on 5th November 1966 received a let-ter (P6) from the petitioner seeking permission to re-pay the bal-ance amount of Rs. 1,700,000.00 on the following basis:-
Rs. 5,000.00 per month for the first five years.
Rs. 6,000.00 per month for the next five years.
Rs. 8,000.00 per month for the next five years
Rs. 9,000.00 per month for the last five years
However, the second respondent by letter dated 17th February1997 (P7) informed the petitioner that the instalments relating to thepurchase price could not be revised. Thereafter on 29th September1998, the petitioner forwarded a letter (P11) to Her Excellency thePresident seeking a reduction in the purchae price of the flat allo-cated to her. In the aforesaid letter the petitioner referred to aDirective No. PPL/H/02/65/95 dated 21st June 1995 (P10) issuedby the Secretary, Ministry of Housing to the second respondentinforming that Her Excellency the President has directed that 25%of all houses constructed by the first respondent should be madeavailable to Government Officers and'that priority should be givento the families of Armed Service Personnel killed in the North-EastWar. In the said letter, the Secretary, Ministry of Housing has direct-ed the second respondent to formulate a suitable scheme for thepurpose of giving flats on concessionary prices together with aselection criteria.
It should be noted that the petitioner did not produce any suit-able scheme with a selection criteria formulated and implementedby the first respondent authority in relation to the Manning TownHousing Scheme. In the absence of any such scheme adopted interms of the law, this court is not in a position to decide the legalbasis on which a reduction in the purchase price could be given tothe petitioner.
Kahandaweia v National Housing and Development Authority and
CAanother (Sripavan. J.)
The petitioner subsequently received letter dated 20th May1999 (P12) from the first respondent authority informing that shehas been permitted to pay the balanoe purchase price over a peri-od of thirty years at the rate of Rs. 4,725.00 per month commenc-ing from 14th June 1996. The petitioner was also requested to bepresent at the office of the first respondent in order to sign an addi-tional sale agreement to give effect to the necessary changes in thepayment of the balance purchase price. It is evident from thedepartmental file (folio 40) that the Board of Management of thefirst respondent authority granted approval to the petitioner to paythe monthly instalments already in default together with the balanceamount due to the first respondent over a period of thirty yearswithout interest from 14th June 1996. Thus, the petitioner on 1stJuly 1999 signed an additional agreement (P13) undertaking to paythe balance amount in monthly instalments of Rs. 4.725.00.
Learned President’s Counsel for the petitioner urged that thedocument marked P12 be quashed and a mandamus be issued onthe first respondent as it has failed to abide by the Directive issuedby Her Excellency the President which expressly provides that inthe sale of government flats, concessionary rates be given to thefamilies and next of kin of personnel of the Armed Forces killed incombat.
As I referred to in the earlier part of this judgement, in theabsence of any scheme approved and adopted in terms of Act No.17 of 1979 as amended, by the first respondent in selling flats orhouses at a concessionary price*to the personnel in the ArmedForces and/or their next of kin, this court cannot direct the respon-dents by mandamus to sell the flats in question at a particular con-cessionary price. Before mandamus can issue there must be legalduty cast upon the first respondent without discretion to do the verything ordered. The mere fact that flats have been sold to certainothers by the first respondent at a price less than offered to the peti-tioner is not a ground on which a writ of mandamus can be issued.If the pretitioner’s complaint is that she has been discriminated bythe first respondent in the sale of flats, she must have then soughther remedy in the Supreme Court in the manner provided by theConstitution. The Presidential Directive relied on by the learnedPresident’s Counsel does not have the status of “Law”. Duties
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enforceable by mandamus are those imposed by law. In De Alwisv SilvaW, it was held that the administrative regulations laid downin the Ceylon Government Manual of Procedure did not have thestatus of law and that non-compliance with them could not beenforced by mandamus. (Vide State of Assam v Ajit Kumar (2).Thus, it is fundamental for the invocation of the remedy of man-damus, there must be a refusal to perform some legal duty. Thepetitioner having signed two agreements with the first respondentis bound by the terms and conditions of such agreements. In theresult, mandamus would not lie to enforce any further concessionsnot provided in a legal manner. The petitioner’s application isaccordingly dismissed. There will be no costs.
KAHANDAWELA v. NATIONAL HOUSING AND DEVELOPMENT AUTHORITY AND ANOTHER