v.ARTHUR & OTHERS
COURT OF APPEAL.J.A.N. de SILVA, J.
3rd AUGUST, 2000.
6th SEPTEMBER, 2000.17th OCTOMBER, 2000.6™ DECEMBER, 2000.
Ceiling on Housing Prqpe/Pty Law 1 of 1973 – S. 13, S. 39(3), S. 47-S. 13Application-Business presses or residential premises – What isaHouse?- User test and construction- order of the Board of Review Final and
Conctuswj/- Constitution Article 140 – Interpretation Ordinance S.22 -Judical review.
The Respondent made an application under S. 13 of Law 1 of 1973 to the
Commissioner of National Housing to purchase the premises in question.The Commissioner dismissed the application holding that the premiseswere business premises. The Board of Review reveled the finding,holding that the premises in question is residential.
It is apparent that the Board of Review has been guided by the'User Test’.
Hie decision of the Board of Review is not unreasonable and norcan it be said that it is unsupported by the evidence on record. The nonproduction of the building plan would necessarily raise the presumptionthat it was not produced as it would have been unfavourable to thePetitioner if it was produced.
In applying the 'User Test' the Board of Review had consideredthe receipts issued by the Petitioner, extracts from the Electoral Register,Birth certificates of children. The Board was of the firm view that thepremises in question were residential.
APPLICATION for a Writ of Certiorari
Sri Lanka Law Reports
12001] 2 Sri L.R.
Cases referred to:1. Abeysekera vs Wifetunga – 1982 – 2SLR – 737
Agnes vs CommissionerofNaiianalHcusing – 4 Sri Kantha Law Reports 72
Ismail vs Hussain -1993 – 2 SLR 380 (SC)
Magi Nona, vs Commissioner of National Housing -1997 3 SLR 131(SC)
Valdyanathan vs Board of Review C.H.P – 1998 – 1 SLR 275(SC)
Aloysious vs Pillaipody – 1982 – 2 SLLR 762
Withanaratchchi vs Gunasekera – 1996 – 1 SLLR 253
Wijewardena vs Peoples Bapk – SC Appeal 3/80 – SCM 20. 5. 1981
Perera vs Lokuge – 1996 2 SLR 282 (SC)
Sittamparanathan vs Premaratne – SC^peal 53/95 SCM 6. 2. 96
Edmond vs D.S. Fernando – 1995 i:SLR 407
Dr. Jayantha de Almeida Gunaratne with P. Agalawatta for Petitioner.Rohan Sahabandu for Respondents.
Cur. ado. vult
J. A. N. de SILVA. J.
This is an application for a writ of certiorari to cpiash theorder made by the Board of Review of the Ceiling on HousingProperty dated 23.10.1998 (P59) allowing the appeal made toit by the 1st respondent from the order of the Commissioner ofNational Housing dismissing the 1st respondent’s applicationto purchase the premises bearing No. 17, HunupitiyaRoad, Colombo – 02. The facts which have given rise to thisapplication for writ of certiorari may be briefly stated asfollows.
The petitioner is the landlord/owner of the premises inquestion and the first respondent is the tenant from around1940. The 1st respondent made an application under Section13 of the Ceiling on Housing Property Law No. 1 of 1973 tothe Commissioner of National Housing to purchase thepremises bearing No. 17, Hunupitiya Road, Colombo – 02. The
Moosajees Ltd. v. Arthur & Others
(J. A. N. de Silva, J.)
Commissioner dismissed the said application holding thatthe premises were business premises. The 1st respondent^,appealed against the Commissioner’s order to the Ceiling onHousing Property Board of Review. A preliminary objectionwas taken that as the petition of appeal was signed by theAttorney-at-Law there was no proper appeal. The Board ofreview upheld this objection and subsequently the Court ofAppeal rejected the application to quash the said order. TheSupreme Court, however, overruled the decision of the Courtof Appeal and set aside the order of the Board of Review anddirected the Board to tiy the case on its merits.*
Thereafter theeBaard of Review went into the questionwhether the premises^ question is business premises asopposed tp residential premises and after having consideredthe evi^thce and documents placed before it, the Boardreversed the Commissioner’s finding, allowing the 1strespondent’s appeal and held that the premises in question is“residential” and therefore “a house” within the ambit ofSection 47 of the Celling on Housing Property Act.
At the hearing of this application leam^ Counsel forthe petitioner strongly contended that the Board of Reviewmisdirected itself bv formulating the wrong question fordetermina,tiSn and erred when it reversed the Commissioner’sorder. The Board of Review at the very commencement of itsorder stated that “the only question to be determined in thiscase is whether the said premises is a business premises ornot”. It was the contention of learned Counsel that this initialmisdirection has affected the whole approach to the matterwhich was in issue namely whether the 1st respondent tenantcould have made the application under Section 13 of theCeiling on Housing Property Law “for the purchase of house letto him”. Counsel submitted that the question that should havebeen asked for determination was whether the said premisesis a house within the meaning of Section 47 of the Ceiling onHousing Property Law for the purpose of an application underSection 13.
* 1996 – 2 SLR – 14
Sri Lanka Law Reports
[2001} 2 Sri L.R.
It is to be noted that when the Board of Review consideredthe appeal, the Commissioner of National Housing has alreadyvtaken a decision on the application of the 1st respondentthat the premises in question is business premises and notresidential. In the appeal what the Board of review had to dowas to consider the correctness of the Commissioner’s deci-sion. In these circumstances I disagree with the contention ofthe learned Counsel for the petitioner that the Board of Reviewformulated the wrong question for determination. Implicit inthis question is whether the premises in question is residentialor business. The only issqe before the Court of Appeal iswhether the Board of Review erred in holding that the premisesis residential when the contention of the applicant was that itwas business premises.
Learned Counsel for the petitioner further submitted thatthe Board of Review misdirected itself in holding that “no,cogent evidence before the Board to prove the contention of therespondents when infact there was assessment extractspertaining to ttie premises from the year 1942 to 1979 whichclearly described the premises as a “eating house”. Theseextracts were produced as P43-P53. It was submitted that theBoard of Review completely ignored this evidence* and appliedthe wrong test in determining the question wrfether thepremises constituted a house within the purview of Ceiling onHousing Property Law No 1 of 1973.
The Supreme Court and Court of Appeaf of Sri Lanka haveadopted both tests viz the “construction” test and the “User”test in determining what constitutes “a house” in terms of theCeiling on Housing Property Law. In Abeyasekara vs.Wjjetungaf11 the Supreme Court applied the construction testand came to the conclusion that the premises were a waysideboutique constructed for the purpose of business. It was nota house within the meaning of Section 47. Again in Agnes vs.Commissioner of National Housing12* Court of Appeal adoptedthe construction test and held that the building was
Moosqjees Ltd. v. Arthur & Others
(J. A. 1V. de Silva, J.)
constructed for storage of goods and not for the purpose ofresidence.
There are several other decisions where the user test hadbeen applied viz Ismail vs. Hussain01, Magi Nona vs. C. N. H.(4>,Vaidyanathan vs. Board of Review C. H. P.(5>, Aloysious vs.Pillaipody16) and Withanaratchi vs. Gunasekara!71.
In the instant case the Board of Review had applied theuser test and having considered the rent receipts, extracts ofElectoral Registers, the birth certificates of children, havecome to the conclusion that tl?e premises is a house. Thesketch that was produced showed, number of rooms, kitchen,toilets which indicatecrt^at it was used mainly for the purposeof residence by the tenantand his family members. The Boardhad been guided by the fact that dominant use of the premiseswas for residence. Even though the petitioner contended thatthe proper test should have been the construction testno building plans have been produced by him. The nonproduction of the building plan would necessarily raise thepresumption that it was not produced as it W^uld have beenunfavourable to the petitioner if it was produced.c
Leaitiecl Counsel for the first respondent submitted thatthe order of the Board of Review is final and conclusive andcannot be impeached on the material. Counsel based hisargument relying on Section 39(3) of the Ceiling on HousingProperty Law react with Section 22 of the InterpretationOrdinance as amended by Act No. 18 of1972. Learned Counselsubmitted without conceding that even if there is an error inthe decision of the Board of Review it is an “intra jurisdictional”error which precludes judicial review. Generally speakingpreclusive clauses are strictly construed and there is apresumption in favour of Judicial Review. As professorWade in his book Administration Law states that there isa firm judicial policy against allowing the rule of law to beundermined by weakening the power of Court. Our Courts toohave adopted this policy. In Wijewardena vs. Peoples Bankf8)
Sri Lanka Law Reports
 2 Sri L.R.
Justice Sharvananda (as he was then) considered the scopeof Section 22 of the Interpretation Ordinance as amendedand stated that “in my view Section 22 of the InterpretationOrdinance has no application when the question ofjurisdiction to make the impugned order is in issue, when theorder or determination is outside or in excess of jurisdiction ofthe tribunal. ” However a more liberal view has been expressedin Perera vs Lokuge191 and Sittamparanathan vs Premaratnemwhere it had been stated that mere excess of jurisdiction isnot sufficient to succeed but there must be patent lack ofjurisdiction. Again in Edmond vs D. S. Fernando1111 theSupreme Court at 413 held as follows ®Tlje Court of Appealcould have granted the writ only if it was permissible for thatCourt to act under the 1st Proviso to Section 22 of theInterpretation Ordinance which is as follows.
Provided however that the preceding provisions of this 'Section shall not apply to the Court of Appeal in exercise of itspowers under Article 140 of the Constitution in respect of thefollowing matters and the following matters only. That is tosay;
Where such determination . . . iS ex facie not withinthe power conferred on such person, authority ortribunal making or issuing such determination and
Where such person, authority or tribunal upon whomthe power to make or issue such determination isconferred, is bound to conform to the rules of naturaljustice,
Or where compliance with any mandatory provision oflaw is a condition precedent to the making or issuingof any such determination and the Court of Appeal issatisfied that there has been no conformity with suchrules of natural justice or non compliance with suchmandatory provision of such law.”
Moosqjees Ltd. v. Arthur & Others
(J. A. N. de Silva, J.)
In the instant case it was not the contention of the Counselfor the petitioner that the determination of the Board of Reviewwhich was sought to be quashed was “ex facie” not within thepower conferred on the Board of Review under Section 39 of thesaid law nor did the petitioner contend that the Board ofReview failed to conform to the rules of natural justice.
The Board of Review came to a firm conclusion that thepremises in question were residential. The question is whetherthey misinterpreted the legal meaning given to a house. It isapparent that the Board of review has been guided by “usertest” which test was adopted by &e Supreme Court in some ofthe cases mentioned above. As stated earlier in applying theuser test the Board of jfe^'ew had considered the rent receiptsissued £/lhe petitioner, extracts from the Electoral Register,birth certificates of children etc.
On a consideration of the entirety of the facts and circum-stances in this case it seems to me that it cannot be said thatthe decision of the Board of Review is unreasonable, nor canit be said that it is unsupported by the evident^ on record. Inthe circumstances I refuse this application and dismisssame with^ costs, pommissioner of National Housing isdirected to take action according to law.
MOOSAJEES LTD v. ARTHUR & OTHERS