OA Leelawathie and Another v Commissioner of National Housing 175
LEELAWATHIE AND ANOTHERvCOMMISSIONER OF NATIONAL HOUSINGCOURT OF APPEALSRIPAVAN, J.
CA 360/2000JULY 29, 2003.
AUGUST 8, 2003.
Ceiling on Housing Property Law, No. 1 of 1973, section 2A(1), 2A(3), 11, 12,16 and 39 -Excess House vested in the Commissioner – House to be sold tothe tenant – Two applicants – No opportunity given to meet adverse evidence- Decision a nullity ? – Decision not communicated – Deprived the right ofappeal ? – Decision making process flawed?
The petitioners (wife and husband) who were in occupation of a house vestedin the 1st respondent decided to offer the premises for sale to the tenant ofthe premises. The petitioner and the 3rd respondent applied to purchase thehouse. The 1st respondent decided to execute a deed in favour of the 3rdrespondent, the petitioners were neither given a copy of the statement madeby the 3rd respondent nor an opportunity to cross examine the 3rd respondentwith a view to contradict any relevant material prejudicial to him. The decisionto execute the deed in favour of the 3rd respondent was not communicated tothe petitioners. The petitioners sought to quash the decision to execute thedeed in favour of the 3rd respondent.
(1) The 1st respondent in arriving at a decision acted merely onstatements of the 2nd petitioner and the 3rd respondent recordedon two different dates. The execution of the deed in favour of the3rd respondent has no legal consequences.
Sri Lanka Law Reports
 3 Sri L.R
No person can incur loss of property by judicial / quasi judicialproceedings unless and until he has had a fair opportunity ofanswering the complaint made against him.
The decision making process in the instant application is totallyflawed.
Non communication of the decision to execute the deed in favourof the 3rd respondent to the 2nd petitioner deprived the 2ndpetitioner his right under section 39 to appeal to the Board ofReview.
APPLICATION for a Writ of Certiorari.
Cases referred to:
Errington v Minister of Health (1935) 2 KB 249
Fairmount Investments v Secretary of State for the Environment(1976)1 WLR2255
Jayawardane v Cadiramanpulle, SC 15/79 – SCM 19.9.1980
Julian v Sirisena Cooray, Minister of National Housing 1993 1 SriLR 238
Sirisena and Others v Kobbekaduwa, Minister of Agriculture andLands 80 NLR182
Mcfoyv United Africa Company Ltd (1961) at 1172
Razik v Pussadeniya and four others Vol II 6 Sri Kanthas LawReports 84
Dr. J. Almeida Gunaratne for petitioner.
Ms. M. Fernando, Senior State Counsel for 1st and 2nd respondents.
Ms. Thushani Machado for 5th, 6th and 7th respondents.
August 29, 2003.
SRIPAVAN, J.M/s L.J. Peiris & Co made an application on 27th December 011974 to the first respondent under section 2A(1) of the Ceiling onHousing Property Law, No. 1 of 1974 for a determination undersection 2A(3) of the maximum number of houses which may beowned by the said company. The first respondent determined thatthe permitted number of houses that may be owned by thecompany was three and therefore the said company owned thirteen
QALeelawathie and Another v Commissioner of National Housing 177
houses in excess of the permitted number. This determination wascommunicated to the company on 3rd October 1975 by the firstrespondent. Thereafter, the first respondent by letter dated 12thJuly 1977 informed the company that thirteen houses referred to inthe said letter vested in him with effect from 9th June 1977 in termsof sections 11 and 16 of the said Law.
The petitioners are wife and husband respectively inoccupation of the premises in question, namely No. 50 (formerlyNo. 34) Galle Road, Alutgama. The said premises together withtwelve other premises belonged to M/s L.J.Peiris & Co. vested inthe first respondent in terms of sections 11 and 16 of the said Lawas stated above. The departmental file bearing No. CH/OC/1366produced by the learned Senior State Counsel shows that thevesting took place on 9th June 1977 (vide folio 10).
It would appear that the first respondent acting in terms ofsection 12 of the said Law decided to offer the premises in questionfor sale to the tenant of the said premises. As both the firstpetitioner and the third respondent made their applications on 6thFebruary 1995 and 29th November 1994 respectively for thepurchase of the said premises, the first respondent summonedboth parties for an inquiry. According to folio 212 of thedepartmental file a letter dated 14th December 1998 was sent toboth the second petitioner and the third respondent requestingthem to be present for an inquiry to be held on 5th January 1999.The second petitioner was present on 5th January 1999 and hisstatement marked 1R1 was recorded. However, the thirdrespondent was absent on 5th January 1999 and another undatedletter was sent to the third respondent only, in January 1999 (folio215) requesting him to be present for an inquiry to be held on 20thJanuary 1999. The third respondent was present and his statementmarked 1R2 was recorded. It is observed that the petitioners wereneither given a copy of the statement made by the third respondentnor an opportunity to cross examine the third respondent with aview to contradict any relevant material prejudicial to them. Thedepartmental file shows that a decision was taken by the firstrespondent on 11th August 1999 that the third respondent was thetenant of the said premises and to execute a deed in his favour.
Sri Lanka Law Reports
 3 Sri LR
Thus, it would appear that the first respondent in arriving at adecision acted merely on statements of the second petitioner andthe third respondent, recorded on two different dates.
No person can incur loss of property by judicial or quasi-judicial proceedings unless and until he has had a fair opportunityof answering the complaint made against him. Accordingly,objectors at public inquiries must be given a fair opportunity to meet 70adverse evidence, even though the statutory provisions do notcover the case expressly. (Vide Errington v Minister of Health 0)-.
The House of Lords in Fairmount Investments v Secretary of Statefor the Environment (2) held that it was a breach of natural justicefor an inspector to make recommendations on the strength ofconsiderations which the objector had not known, were in theinspector’s mind and had no chance to deal with. The decisionmaking process in the instant application is fatally flawed. The courtwould consider any decision as having grave consequences if itaffects the proprietary rights of the petitioners. In the socircumstances, I hold that the first respondent has failed to act fairlyand reasonably in the interest of administrative justice.
Further, as rightly conceded by the learned Senior StateCounsel, the departmental file did not indicate that the firstrespondent communicated his decision to execute the deed infavour of the third respondent to the second petitioner, whichdeprived the second petitioner his right under section 39 of the saidLaw to appeal to the Board of Review. (Vide Jayawardena vCadiramanpulle (3> Julian v Sirisena Cooray, Minister of NationalHousing). Upon consideration of all the material, I am satisfied 90that the decision to execute a deed in favour of the third respondentis a nullity as the petitioners have been deprived of their statutoryright of appealing to the Board of Review prior to the execution ofthe deed. Thus, the execution of the deed in favour of the thirdrespondent has no legal consequences.
As observed by Sharvananda, J. (as he then was) in the caseof Sirisena and Others v Kobbekaduwa, Minister of Agriculture andLandsL5) “there are no degrees of nullity. If an act is a nullity, it isautomatically null and void and there is no need for an order of thecourt to set aside, though it is sometimes convenient or prudent to 100have the court declare it to be so.”
qALeelawathie and another v Commissioner of National Housing179
“You cannot put something on nothing and expect it tostay there, it will collapse”- Lord Denning in Mcfoy v UnitedAfrica Company Limited6). For the reason stated, I set asideall the proceedings before the first respondent. This order,however, does not prevent the first respondent from initiatingan inquiry afresh with a view to offer the house in question forsale to the tenant, in terms of the law.
Following the judgment in Razikv Pussadeniya and FourOthers <7). I direct the first respondent to refund to the legalheirs of the third respondent whatever monies that have beenpaid by the third respondent to the first respondent towardsthe execution of the deed in favour of the third respondent.The petitioners have been subjected to much hardship andexpense by the ill considered actions on the part of the firstrespondent. I therefore direct the first respondent to pay eachof the petitioners costs in a sum of Rupees 1250. Accordingly,the petitioners would be entitled to a total sum of Rupees2500 as costs.
LEELAWATHIE AND ANOTHER v. COMMISSIONER OF NATIONAL HOUSING