033-SLLR-SLLR-1993-2-MOHAMED-ISMAIL-AND-TWO-OTHERS-v.-HUSSAIN-AND-OTHERS.pdf
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Sri Lanka Law Reports
[1993] 2SriL.R.
MOHAMED ISMAIL AND TWO OTHERS
v.
HUSSAIN AND OTHERS
SUPREME COURT.
BANDARANAYAKE J.
AMERASINGHE J.
DHEERARATNE J.
S. C. APPEAL NO. 29/89.
C. A. (L A.) S. C. APPLICATION NO 20/79.
S. C. APPLICATION NO. 754/77.
JANUARY 01. 1992.
Ceiling of Housing Property Law No. 1 of 1973 – Vesting Order – Dominantcharacter of the premises -Is it a flat or house or residence or business premisesin a commercial area ? Natural Justice – Definition of house – Section 47 ofthe Ceiling on Housing Property Law No. 1 of 1973.
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Mohamed Ismail and Two Others v. Hussain and Others
(Bandaranayake, J.)
381
Of the premises, the subject matter of the suit, 3970 square feet were used forresidence, while 290 square feet were used as a tea kiosk. Several generationsof the appellant's family had been residing in the premises since 1930. Six ofthe eight rooms were used as living accommodation. While two rooms were usedfor running a tea kiosk. There was also a living room, toilet and Kitchen. Thesepremises were situated in Old Moor Street, Pettah, a declared commercial area.
Held :
All the attributes of residential premises existed at the time of the vesting.Although Old Moor Street admittedly is a commercial area, it does not followthat every building previously used as a residence has changed its character.
In terms of s. 47 of Cap. 339 a house means "an independent livingunit…. constructed mainly or solely for residential purposes and having a separateaccess and through which unit access cannot be had to any other livingaccommodation1'. Sub-sections 1 and 2 to section 47 set out 2 exceptions. Sub-section 2 provides that the aforesaid definition shall not include "a house usedmainly or solely for a purpose other than a residential purpose for an uninterruptedperiod of ten years prior to 1st March 1972." As the predominant use to whichthese premises were put was as a residence for the appellant and her familyand continued to be so and were not premises mainly or solely used for someother purpose, the provisions of sub-section 2 will not apply.
Although the respondent complains that he was informed of the vestingorder only after it was made, the respondent had gone before the Board of Reviewwho sent the case back to the Commissioner who held an inquiry. There wasno material prejudice caused to the respondent and the matter was not raisedin the Court of Appeal. The respondent was not aggrieved by order of Courtof Appeal, (which quashed the vesting).
APPEAL from the judgment of the Court of Appeal.
H. L. de Silva, P. C. with N. H. Musafer for 3rd respondent-appellant.A. A. M. Marleen for petitioner-respondent
W. S. Marsoof, Senior State Counsel with Mrs. Wanasundera, State Counselfor 1st and 2nd respondents.
Cur. adv. vult.
BANDARANAYAKE J.
This appeal arises from a judgment of the Court of Appeal whichdealt with an application for a writ of certiorari and/or mandamus madeto it by the petitioner/respondent to quash a vesting order made bythe Minister of Housing on 27.7.76 under section 17 (1) of the Ceilingon Housing Property Law No. 1 of 1973. The ground on which awrit to quash the vesting order was sought was that the propertyin question was not premises in respect of which a vesting order
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could have been made in that it was not a house or flat or residentialpremises which could be vested under the said law but that thisproperty constituted 'business premises' situated in a commercial areain which business was carried on and therefore not amenable to anorder of vesting by the Commissioner of National Housing.
The Court of Appeal as far back as 2.2.79 took the view that thepremises were not residential premises within the meaning of LawNo. 1 of 1973 aforesaid and allowed the application of the petitionerrespondent and quashed the order made by the Minister publishedin Government Gazette No. 223/10 of 8.10.1976 communicated byletter dated 30.11.76 and also directed the 1st and 2nd respondentsto divest the property. To arrive at this conclusion the Court of Appealobserved that the premises have been licensed as a tea boutique.State Counsel had also submitted that in the opinion of the AttorneyGeneral the vesting was not in order in as much as the premiseswere business premises and not residential premises.
An application for leave to appeal from the aforesaid order wasmade to the Court of Appeal on 15.2.79. The application had beenmade by the 3rd respondent/petitioner who died subsequently. Thepresent petitioners were subsitituted in the room of the deceased 3rdRespondent and the Court of Appeal, treating the following assubstantial questions of law, granted leave to appeal to the SupremeCourt, to wit : 1 (a) whether in respect of premises which are inextent 3970 sq : ft : which are mainly used for residential purposes,the use of two rooms in extent 290 sq : ft : as a tea kiosk has theeffect of converting the entirety of the premises into business premisesfor the purpose of excluding the operation of law No. 1 of 1973 ;or whether, notwithstanding such user, the premises continue asa"house' as defined in law No. 1 of 1973; (b) whether in the faceof the uncontradicted material placed by the appeallants, it was opento the Court of Appeal to come to a finding that the premises, towit: No : 104 Old Moor Street were not residential premises as aground for quashing the vesting order made by the Minister ofHousing and Construction and published in Gazette Extraordinary No.233 of B/10/76.
The Court of Appeal also granted leave on a further questionwhether the said vesting order should be quashed by a writ ofcertiorari because it was made pursuant to an enquiry held contraryto the principles of natural justice and/or whether the owner wasdenied an opportunity to appeal against the decision of theCommissioner of National Housing to the Board of Review.
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Mohamed Ismail and Two Others v. Hussain and Others
(Bandaranayake, J.)
383
Learned Presidents Counsel for the Appeallant submitted that thesaid judgement of the Court of Appeal dated 2/2/79 had been deliveredwithout a proper consideration of the applicable law. The questionwhether the premises in question constituted a 'house' within thepurview of the Ceiling on Housing Property Law No. 1 of 1973 hasto be determined with reference to the definition in Section 47 ofthat law. There was, it was submitted, a mass of evidence relevantto this matter but ignored by the Court of Appeal which failureconstituted, a substantial error of law entitling the appeallants to havethe judgment of the Court set aside and the Ministers vesting orderrestored. Counsel pointed to the following facts in order to show thata substantial part of the premises was used as a residence :
that the applicant has been living in these premises since 1930;the said premises No. 104 Old Moor St: was assessed as a housefrom 1941 to 1952. Certified extracts from the Colombo MunicipalCouncil registers have been produced in evidence as 3R28 and 3R29in support ;
the tenant's (3rd Respondent) Mrs T. P. Mohommed's childrenand grand children were born in this house. Birth certificates 3R6to 3R13 support this ;
that the tenant's family including her children and grandchildren continue to live in this house. Householders lists for 1958,1960, 1971 and 1973 – (ie) 3R-52, 53, 54, 55 have been producedin support ;
Likewise, Electoral registers for the years 1952 and 1954 to1973 marked 3R16 and 3R 17 to 27 have been tendered toprove residence ;
that this house consists of 9 rooms 6 of which are bedroomsand a sitting room, a kitchen and a bathroom. The entire premisestake up an area of 3970 sq. ft. whereas the two front rooms whichwere used as a tea kiosk comprised only 190 sq. ft.
the said 2 front rooms were used as a tea kiosk and licensedas such with a license fee of Rs. 25/- from the year 1951 to 1975.Vide register of licenses 3R37 (1951 – 1973), 3R38 (1974-75) whilstthe family lived in the rest of the house. (These documents wereobjected to as having been filed without the permission of Court).These 2 rooms were not licensed as a eating house as suggestedby the respondent. – (vide 3R39)
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that the Electricity Board charged power consumption to thewhole premises at the domestic rate ;
there was also filed Plan 3R14 (of the premises) and suveyer'sreport 3R14 (a) made by K. Thirunamakarasu licensed surveyor on1979/78 (documents objected to for the aforesaid reasons). It wasthe submission of Mr. de Silva that the evidence clearly showed thatthe premises comprised a house within the definition as its dominantuse was for the purpose of residence and not business. The premiseswere thus validly vested after due enquiry.
It was contended on behalf of the respondents that therespondent had become owner of the premises on Deed 3571 dated18/9/73 attested by T. Chelvadurai NP. An officer of the NationalHousing Department informed the respondent on 3/5/76 whenrespondent presented himself for an enquiry that since the premiseshad been bought by the respondent over the head of the tenant thepremises will be vested in the Commissioner and sold to the tenant.That, it was submitted was the reason for the vesting, and not uponevidence that these were residential premises. The first time that plan3R14 and report 3R 14 (a) and the licencing register were put inevidence was before the Court (without permission first had andobtained) and that these documents were not before the Commis-sioner at time of making of decision to vest the premises as aforesaid.The Commissioner did not go into the question whether these werebusiness premises or not. In any event the plan and suveyor's reportwere prepared at the behest of the tenant and cannot be regardedas final and conclusive evidence of the facts as the respondent hashad no access to these premises to inspect and contradict theiraccuracy. Again, 3R28-31 and 37 – 39 show that from 1953 to 1975,a period of 20 years prior to the coming into force of the Ceilingon Housing property law, the premises have been used even partiallyfor a commercial purpose. The premises is situate in an area declareda commercial area in the Pettah. As at present, the premises havebeen divested as directed by the Court of Appeal in 1979.
It is observed that the Court of Appeal order dated 2.2.79 quashingthe vesting order has been made merely for the reason that Statecounsel has submitted that he cannot support the vesting and thepremises had been licensed as a tea boutique and house and not
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Mohamed Ismail and Two Others v. Hussain and Others
('Bandaranayake, J.)
385
upon a consideration of all the available evidence, (eg:) that from1941-51 it had been described only as a house.
This brings me to the question as to what was the dominantcharacter of the premises at the relevant time. This aspect of thecase has not been considered by the Appeal Court at all. Thedocuments 3R14 and 3R14 (a) which in the circumstances ought tohave been admitted in the interests of justice, clearly show that onlythe two front rooms of a much larger house have been used as atea boutique probably due to economic necessity. The said plan andreport are thus supported-by the Council registers, to wit; tea boutiqueand house. The respondents could have sought the assistance ofCourt to verify the accuracy of the plan and report. They have notchosen to do so. They have neither objected to the admission ofthose documents or taken any other step. No commission has beentaken to prepare another plan. The affidavit and other documentstendered to the Court such as householders lists etc : show that therewere several generations of this family living in these premises since1930. This family continues to live there. Six of the eight rooms wereused as living accommodation at the relevant time. The other tworooms were used as a tea kiosk. There was also a living room, toiletand kitchen. Thus all the attributes of residential premises existedat time of vesting. Although Old Moor Street admittedly is acommercial area it does not follow that every building previouslyused as a residence has changed its character.
The statutory definition of 'house' contained in section 17 of
Cap. 339 describes it as" meaning an independent living unit
constructed mainly or solely for residential purposes, and having aseparate access and through which unit access cannot be had toany other living accommodation. “ An examination of the surveyorsplan and report taken together with the Appeallants affidavit showsthat these premises satisfies the above definition in all respects. Thereare 2 exceptions provided by the law to the said definition. Section47 sub section (1) has no relevance to the present issue. Sub section(2) stipulates that the aforesaid definition shall not include " ahouse used mainly or solely for a purpose other than a residentialpurpose for an uninterrupted period of ten years prior to 1st March1972 °. Respondent's Counsel relied on this sub-section which is inthe nature of a proviso to section 47 and pointed to the Assessmentregister which records the premises as tea boutique and house from
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1952 to 1975 and submitted that as at least part of these premiseshad been put to commercial use for over ten years prior to the relevantdate it should be considered as business premises to which theproviso applied and therefore not amenable to an order of vestingin terms of section 17 (1).
I am satisfied on all the evidence that the predominant use towhich these premises were put was as residence for the appellantand her family and continued to be so and was not premises mainlyor solely used for some other purpose so as to attract the provisionsof sub-section (2) aforesaid. This finding answers the first two questionsposed by the Court of Appeal in 1991. Section 47 (2) thus has noapplication to the facts of this case. It was not open to the Courtof Appeal to have come to a finding that these premises were notresidential premises.
That finding drawn from the primary evidence was perverse.Although the respondent complains that he was informed of thevesting order only after it was made, the respondent has gone beforethe Board of Review who sent the case back to the Commissionerwho held an anquiry. There has therefore been no material prejudicecaused to the respondent. Nor has the respondent raised this matterin the Court of Appeal. The respondent was not aggrieved by theorder of the Court of Appeal. The third question raised by the Courtof Appeal must therefore be answered in the negative.
The appeal is allowed. The judgement of the Court of Appeal dated2nd February 1979 is set aside. The direction given by that Courtto the 1st and 2nd respondents dated 2/2/79 to divest the propertyvested is set aside. As the property has been divested since, the1st and 2nd respondents are dirked to vest the property in theCommissioner of National Housing, the Petitioner-Respondent will paycosts in both Courts.
AMERASINGHE J. – I agree.
DHEERARATNE J. – I agree.
Appeal allowed.