005-SLLR-SLLR-1987-1-MOWJOOD-v.-PUSSEDENIYA.pdf
MOWJOOD
v.I’USSEDENIYA
COURT OF APPEAL
BANDARANAYAKE. J. AND WUETUNGA. J.
C.A. APPLICATIONS 73/86. 48/86. 127/86. 77/86 AND 81/86JUNE 30. 1986. JULY 1. 2, 3. 4, M AND 25. 1986
Landlord and Tenant – Rent Act No. 7 of 1972. $ 22 (C) – Mandamus—Prohibition-Revision-Notification by Commissioner of National Housing to Registrarof District Court in terms of s. 22(1C) of Rent Act No. 7 of 1972-Can premisesoffered by notification of the Commissioner be regarded as'alternate” accommodation as contemplated by s. 22(1C) of the RentAct 7 – Delegation – Agency – Ultra vires – Duty to act fairly – Guidelines to testsuitability of alternate accommodation.
In five landlord and tenant cases judgment had been entered in favour of the landlord onthe ground of reasonable requirement on the basis of single house ownership andnotice of action having been given to the Commissioner of National Housing. Writ inevery case was to issue only upon the Commissioner of National Housing (C/NH)providing alternate accommodation. The C/NH offered alternate accommodation interms of section 22 (1C) of the Rent Act No. 7 of 1972. After having on receipt of thenotice of action the C/NH sent a questionnaire to the landlord asking for informationabout the number of houses he owns and his income, etc. The C/NH also called uponthe tenant to furnish information on the following matters:
whether married or not.
the number of persons comprising his family living with him,
monthly income,
duration of tenancy.
name of original owner,
rent paid per month, and
income from c/ter sources such as spouse or child.
Thereafter C/NH furnished these particulars to the National Housing DevelopmentAuthority (NHDA) and requested NHDA to reserve a house for the tenant. The NHDAinformed C/NH with copies to the landlord and tenant of the reservations made. TheC/NH thereupon requested the tenant in writing to attend and finalise matters with theNHDA and notified the Registrar of the Court that alternate accommodation has beenfound for the tenant and that the tenant has been asked to collect the papers pertainingto his tenancy. The notifications of C/NH to the Registrar of the District regardingalternate accommodation are being sought to be quashed by certiorari and/ormandamus and prohibition and in one case where writ had been already executed byrevision. The grounds advanced are that the C/NH has acted ultra vires and unfairly ancreached an unjust decision in the choice of accommodation offered. The premisesoffered could not be recognised as alternate accommodation as the term is used in theRent Act (S. 22 (1C)). The alternate premises were offered at a greatly increased rental,located too far away and unsuitable.
Held-
Section 22(1E) stipulates that the court shall not inquire into the adequacy or thesuitability of the alternate accommodation offered by C/NH but this does not mean thatthe C/NH is free to offer any house. He cannot for instance offer a slum-dweller a flat inLiberty Plaza. The following guidelines were suggested as criteria for saying whether theaccommodation is or is not alternate
Health or business or other commercial undertakings and arrangements.-Medical facilities however are available all over the country and business andcommerce could be relocated. It would be unreasonable to give preference tothese factors over the landlord's right to his house or it may mean that the tenantcan never be dislodged.
Education.- This again is a factor carrying little weight because schools areavailable everywhere.
Rent and age.- A mere increase in rent is inconclusive. The primary criteriawould be whether the new rent bears a reasonable/elation to the old.
The age of the tenant is a material factor because the test should be whetherthe tenant could reasonably expect to benefit from the financial outlay. Thecriteria is not the increase of rent per se but the reasonableness of theexpectation that the tenant would reap the benefit of the increased outlay.
Racial identity.- It may be unreasonable to require a tenant to accept asalternate accommodation a house situated in an area where communal tensionwould gravely prejudice the physical safety and peace of mind of the tenant. Butthe anticipation of fear should be reasonable.
Physical facilities. – In the new house these must be approximately comparabletaking account of the size of the tenant's family.
Time for moving. – The time given must be reasonable and adequate.
Bona tides.-Where the tenant has done nothing to ascertain the suitability ofthe facility offered his bona fides will be in question.
Bad faith on the part of C/NH. – If the C/NH has acted arbitrarily or capriciously orwith bias in a discriminatory manner or in bad faith then the offer must be struckdown.
Conduct of the tenant.- The tenant must not be seen to prevaricate or delaygiving vacant possession
The above criteria are not exhaustive but could serve as guidelines
The statute requires a just compromise between competing interests. The ultravires doctrine cannot be applied because it would offer total protection to the tenantand result in total vulnerability to the landlord taken in the content of the realities inregard to housing in the country
When the C/NH has been fair and adopted a fair procedure while the tenants madeno effort to get in touch with the NHDA or inspect the premises offered or find outparticulars of rent or any other conditions their silence touches on the question of bonafides.
In the matter of procedural fairness effective administration should be made possiblewhile preserving a reasonable degree of fairness in executive action for the protection ofthe public.
Cases referred to:
Edirisinghe v. The Commissioner of National Housing – (1978) 79(2) NLR 268.270. 276.
Starkonski v. A. G. – (1954) A.C. 155. 170.
National Bank of Greece and Athens S.A. v. Methis – (1958) A. C. 506. 525.(1957) 3 All ER 608. 612.613.
Seaford Court Estates Ltd. v. Asher-(1949) 2 KB 481. 489.
Nakkuda Ali v. Jayaratne -(1951) A.C. 66; (1950) 51 NLR 457 (P.C.).
Ridge v. Baldwin – (1964) AC 40.
Hassanv. Controller of Imports and Exports – (1967) 70 NLR 149. 152.
Fernando v. Jayaratne – (1974) 78 NLR 123, 130.
A. G. v. Great Eastern Railway Company – (1880) 5 App. Cases 473 (HL).
APPLICATION for certiorari or mandamus, prohibition and revision.
Faiz Mustapha with M. H. M. Ashroff for petitioner in CA 73/86 and CA 77/86.
Faiz Mustapha with R. Yogendra and M. M. M. Saheed for petitioner in CA 48/86.
H. D. A. Andrado for petitioner in CA 48/86.
S. Mahendiran for petitioner in CA 81/86.
A. S. M. Perera, S.S.C. with Samith de Silva, S.C. for 1 st respondent in CA 73/86, CA81/86 and CA 77/86.
N. R. M. Daluwatta, P.C. with Wimal Kuruwita Bandaraiot respondents in CA 48/86.P. A. D. Samarasekera. P.C. with A. L. M. de Silva for 1 st respondent in CA 127/86.A. S. M. Perera, S.S.C. with Samith de Silva, S.C. for 2nd respondent in CA 127/86.N. R. M. Daluwatta, P.C. with U. G. Premasundara for 2nd respondent in CA 73/86.Iqram Mohamed with Wijayadasa Rajapaksa for 2nd respondent in CA 77/86.
2nd respondent absent and unrepresented in CA 83/86.
Cur. adv. vult
September 29, 1986.
BANDARANAYAKE, J.
The petitions in cases C.A. 73/86, 77/86, 81/86 and 127/86 haveall been filed between 27th January 1986 and 3rd February 1986. Allof them concern applications for the issue of Writs in the nature ofCertiorari and/or Mandamus (and Prohibition in C.A. 77/86) on theCommissioner of National Housing in terms of Article 140 of theConstitution to quash the notification made by the said Commissionerto the Registrar of the District Court in terms of s. 22(1C) of the RentAct No. 7 of 1972 in each case that a house has been reserved for thedefendant-petitioners and requesting the Registrar to so inform theCourt. The main ground of challenge to the action of theCommissioner was that the premises so offered or adverted to in thenotifications could not be recognised in law as "alternate"accommodation as the term was used in the Rent Act. TheCommissioner had failed therefore to comply with an expressprovision of the statute which required him to furnish alternateaccommodation to enable the landlord in whose favour a decree of theDistrict Court had already been entered, reap the fruits of victory andobtain possession of his house. It was contended that theCommissioner's notification to the Court was in consequence of adetermination he had made which decision transgressed the tenant'sright under the Act to accommodation which could reasonably beregarded as alternate to that which he had so far occupied. This Courtwas asked to review the action of the Commissioner on the allegationthat he had acted beyond his powers and reached an unjust decisionin the choice of accommodation he offered and had so failed tocomply with his public duty. The Court was asked to involve itself instatutory interpretation and was invited to measure what has beendone, or not done, against the relevant statutory provision interpretedin accordance with any appropriate presumptions of legislative intent.
In case No C.A. 48/86 there was no application for the issue of awrit but an invitation to the Court to exercise its revisionary powersunder s.753 of the Civil Procedure Code to stay the hand of theDistrict Court from issuing a writ of execution of the decree alreadyentered in favour 0f the landlord for the ejectment of the tenant frompremises in the tenant's occupation arising out of the notificationmade by the Commissioner or tor recaf of a writ of execution if alreadyissued and loi such other and further relief as the Court shalldetermine The same proposition that, the notification made to the
Court that "alternate" accommodation had been found for the tenantwas, having regard to all surrounding circumstances invalid in that theaccommodation being offered, could not be reckoned as being"alternate" as envisaged by the provision of law and the Commissionerhad therefore failed to act fairly within the law which fact providedexceptional circumstances enabling this Court to revise an order madeby the Court below affecting the tenant in consequence of suchnotification.
These several applications were taken up for hearing together as thebasic situation and the question to be determined was the same in allcases. Other important facts which may need to be considered incoming to a decision may only be found within the boundaries of eachcase. Our task may thus appear complex but the assistance the Courtreceived from all learned counsel who appeared for the partiespresented as oral and written submissions and the Departmental filesof the Housing Commissioner offered for inspection by learnedcounsel for the State made its task easier. Different counselunderstandably emphasized specific aspects in regard to the desiredinterpretation of the law in the course of their arguments. It isappropriate that the main arguments of counsel be set out in thisjudgment. But it is not convenient to record their arguments byindividual reference. Instead I shall present the cases sought to bemade out for and on behalf of the landlord and the tenant as to themeaning and application of what is referred to as "alternateaccommodation" in s. 22(1 C) of the Rent Act which is the corequestion that has to be answered. The following abbreviations will beused-C/NH for Commissioner of National Housing and NHDA forNational Housing Development Authority.
In introducing the issue that was before this Court reference has tobe made to the setting in which disputes have arisen. The law of thiscountry governing the relationship between landlord and tenant hasbecome increasingly complex. The Roman-Dutch Common Lawapplied prior to 1942 A substantial body of statute law has howeversince been systematically enacted to meet the problems of housingcaused by the flow of popmtion into the cities causing new pressureson contemporary urban life. This factual situation no doubt compelledlegislative intervention to protect tenants rrom exploitation bvunreasonable demands of rent and to provide security ol tenancy bvlimiting the circumstance.; in which proceedings m eiectmen' could betaken. Housing in urban areas was identifier ar. t uromment concernof government in the context of a welfare state and efforts were madeto remove tenancy agreements from being subject to the soleinfluences of market forces. Consequently many statutory provisionswere imposed on the Roman-Dutch Common Law base resulting incommon law principles concerning the relationship between landlordand tenant giving way to statutory safeguards of tenants. Thus thecumulative effect of the new Rent laws have been to confer asubstantial measure of protection for the tenants in areas governed bythese laws. This trend of legislative activity is of significance inconsidering the question before us.
It is appropriate at this point to set out the provisions of law relevantto the issue before us. Section 22 of the Rent Act 1972 deals withproceedings for ejectment of the tenant. The section is dividedessentially into two sub-sections dealing with premises the standardrent of which for a month does not exceed one hundredrupees —(s. 22(1)) and where the standard rent exceeds thisamount-(s.22{2)). All the instant cases are cases where thestandard rent was under Rs. 100 per month and accordingly theprovisions of s. 22 (1) apply. They are houses which may fairly becalled houses lived in by economically disadvantaged tenants. Unders. 22(1) (bb) introduced by Act No. 10 of 1977 a landlord maycommence proceedings for ejectment "if the premises having been letto the tenant prior to the date of commencement of this Act (Rent ActNo. 7 of 1972) are, in the opinion of the court, reasonably required foroccupation as a residence for the landlord, or any member of hisfamily…." Before proceedings could be instituted the landlord mustgive one year's notice in writing to the tenant of the termination oftenancy. However limitations were placed on the operation of s. 22(1)(bb) by s. 22 (1 A). A landlord could avail himself of it only if he was notthe owner of more than one residential premises and he caused noticeof such action or proceeding to be served on the Commissioner ofNational Housing. A further limitation was placed on such ejectmentproceedings by s. 22(1C). It is appropriate that it be set down:
"When a decree for ejectment of the tenant of any premisesreferred to in paragraph (bb) of sub-section (1) is entered by anycourt on the ground that such premises are reasonably required foroccupation as a residence for the landlord or any member of thefamily of such landlord, no writ in execution of such decree shall beissued by such court until the Commissioner of National Housinghas notified to such court that he is able to provide alternateaccommodation to such tenant."
Proceedings for ejectment taken under paragraph (bb) were givenpriority over all other business of the court- vide sub-section (1B) ofs. 22. Provision was also made by s.22(1D) that where a writ inexecution of a decree for ejectment of a tenant of premises referred toparagraph (bb) is issued by a court the execution of such writ shall notbe stayed. Section 22 (1E) stipulated that in any proceeding undersub-section (1C) the court shall not inquire into the adequacy or thesuitability of the alternate accommodation offered by theCommissioner of National Housing. The above clause (bb) andsub-sections (1A), (IB), (1C). (1D) and (1E) to s.22 were allintroduced into the law by Act No. 10 of 1977. Before that besidesthe situations recognised by s.22(1 )(a) or (c) or (d) a landlord couldunder s. 22 (1 )(b) institute proceedings for ejectment of a tenant whenhe reasonably required the premises for occupation as a residenceeither for himself or for a family member or for purposes of trade,business, profession, vocation or employment only if the premises hadbeen let to the tenant on or after the date of commencement of theRent Act of 1 st March 1972. Thus the amendments brought about byAct No. 10 of 1977 extended the opportunity for a landlord to recoverhis premises for occupation as his residence or residence for amember of his family even though the premises were let prior to March1972. That is to say, even tenancies of very long standing could beterminated if the conditions imposed by law were satisfied. Thus theamending legislation of 1977 made a significant change in the law tothe advantage of a one house owner economically disadvantagedlandlord.
A reference to similar general facts of the cases under review at thispoint would be helpful. In every case the landlord was a one houseowner of a house the standard rent of which did not exceed Rs. 100per month and had given one year’s notice in writing of the terminationof the tenancy to the tenant. Thereafter the landlord had given noticeof the institution of action for ejectment before the District Court to theCommissioner of National Housing and instituted action. So thelandlord had satisfied the conditions laid down by statute. At theinquiry before the Court the landlord would normally have had tosatisfy the Court that the premises were reasonably required for hisoccupation etc. and if he succeded in doing so it would mean that thecourt had formed the opinion that the landlord's claim was superior tothat of the tenant, i.e. in equity and in law the landlord had a betterright to the house than the tenant. Except in Case No. C.A. Application
No. /86 where judgment was given by the court after a contest infavorof the landlord, in all the other applications judgment has beenenterd in favour of the landlord of consent. In every case, order hasbeemade that writ of execution should not issue until the C/NH hasnotifiil the court in terms of s. 22 (1C) that alternate accommodationhad ten found for the tenant. A copy of the judgment of the courthas fcan sent to the C/NH for his information in each case with theorder hat writ of execution will not issue until the Commissionernotifies Court that alternate accommodation has been found for thetenam Upon receipt of the order of the Court in some cases theComrTSSj0ner has written to the landlord stating that he is unable tooffer alternate accommodation to the tenant as at present. In allthe cases the Commissioner has finally notified the Court and thetenant that alternate accommodation has been found. It is thesenotifications that are being called in question at this hearing. It is alsoobsened that in every case two (2) years or more have elapsed afterjudgment for the C/NH to respond with the offer of premises for theoccupation of the tenant.
A consideration of the petitions and affidavits filed and an inspectionof the Departmental files of the C/NH which were made available tocounsel on both sides for inspection and the submissions of StateCounsel disclose the following: Four of these actions in ejectmenthave been instituted in 1977 whilst C.A. Application 48/86 has beeninstituted in 1979. The decrees in three of the cases have been in1 982 whilst decree has been entered in the other two cases in mid1 983. The notifications have been sent to the court at end of 1 985.
Upon receipt of the notice of action in ejectment the Commissionerhas sent a questionnaire to the landlord asking for information aboutthe number of houses he owns and his income etc. The Commissionerhas also required the tenant to furnish him information regarding
whether he is married,
number of persons comprising his family living with him,
monthly income,
duration of tenancy,
name of original owner,
rent paid per month, and
income from other sources such as spouse or child.
The next step taken by the Commissioner is that he has got in touchwith the NHDA and given the income particulars of the tenants andhas requested the Authority to reserve a house for the tenant. It wouldappear that in C.A. Application 81/86 the tenant has not giveninformation of her income to the C/NH. At this point there appear tohave been negotiations with the landlord about reserving premisesbelonging to the Authority for the tenants. In every case the landlordshave deposited large sums of money with the Authority and reservedpremises for each tenant. Premises have been reserved by the NHDAat the Ranpokunawatta Housing Scheme in Nittambuwa upon adeposit of Rs. 20,000 being made by the landlord and at theMattegoda Housing Scheme upon a deposit of Rs. 32,000 beingmade by the landlord. The NHDA has informed the C/NH with copiesto the landlord and tenant of the reservations made. The C/NH hasthereupon requested the tenant in writing to attend and finalizematters with the NHDA and notified the Registrar of the Court thatalternate accommodation has been found for the tenant and that thetenant has been asked to collect the papers pertaining to his tenancy.The Departmental files do not disclose the monthly rent payable forthe premises. The petitions and affidavits declare that what has beenoffered are premises on hire purchase at rentals considerably higherthan what they have paid the landlord.
Upon the foregoing facts and circumstances an attempt can now bemade to summarize the arguments urged on behalf of the parties andrecited in broad terms in the introduction to this judgment. Thearguments of the tenant petitioners were largely based on tne doctrineof ultra vires
that the C/NH himself must make available a house from hishousing stock so that the tenant will become a tenant now ofthe Commissioner and the characteristic of a tenancy will be
*" retained. There was a duty cast on the Commissioner to retaincontrol of giving accommodation. This suggested interpretationof s. 22 (1C) was based on arguments of syntax, grammar andthe pronoun "he" used in the sub-section 22 (1C) and thereferences to accommodation offered by the C/NH insub-section 22(1 E).
that what has been offered, to wit: premises upon a HirePurchase agreement belonging to a 3rd party, to wit: theNHDA, upon a greatly increased monthly hire purchase rental.
subject to a possible repudiation of the agreement by theMinister cannot be regarded as alternate accommodation tothat which the tenant had so far enjoyed. It was argued that theC/NH cannot delegate the duty cast on him by law. He cannotact as a mediator or broker and merely put the tenant in touchwith the NHDA. If such an offer is accepted the tenant would becontracting with the NHDA and the Commissioner would not bea principal to such a transaction.
It was pointed out that the Commissioner's power to provide a houseis found in s. 41 (1) read with s. 2 (a) of the National Housing Act, Cap.401 and the power to charge rent is contained in s.41 (1) read withs.3(C) of that Act. The interpretation s. 100(1) defines the housingobjects and powers which the Commissioner may use. So whereasthe Commissioner's powers and functions are found in the statute thatcreates his office namely the National Housing Act, the Rent Actmerely casts extra functions on him such as those under s.22(1C)and s. 22(1 E) or for example under s. 12(1) or s. 18(A). Thedelegation of powers, duties or functions of the C/NH are governed bythe provisions of s.44(A)(1) of the Rent Act. Such delegation of apower, duty or function cast on him by the Rent Act could only be to aGovernment Agent of an Administrative District or to his Assistant in adivision. On this question of delegation reference was also made tothe decision in Edirisinghe v. The Commissioner of National Housing(1). This judgment also dealt with the distinction between "delegation"and "agency"-p. 276-an agent could be given detailed directionsand does not have a wide area of discretion. In the instant caseshowever no directions have been given by the C/NH to the NHDAexcept to receive money. So the NHDA is not an agent of the C/NHeither but is an independent functionary who acts as principal to anycontract with the tenant. It is also to be noted that by virtue of s. 82 ofthe National Housing Development Authority Act the provisions of lawset out in the Rent Act shall have no application in relation to anyproperty, business or activity of the Authority. (The Rent Act is ascheduled Act under the NHDA Act.) This means that the C/NH hasno power or function vis a vis NHDA. Section 22 (1C) was enacted in1977 whereas the NHDA Act was enacted in 1979. So that whens. 22(1 C) was enacted the NHDA was not within the contemplation ofthe Rent Act. Again it must be noted that under regulation 2 of theschedule to the Rent Act any premises of which the landlord is theC/NH shall be excepted premises for the purposes of the Rent Act.Relying on Maxwell "Interpretation of Statutes"-12th Ed. p.85 the
Court was invited to apply the rule that the provision meant what itmeant when Act was passed. This means that when the C/NH seeksthe assistance of the NHDA to obtain a house he acts ultra vires.
To sum up the arguments taken on the vires point referred to in thisparagraph, it was contended that the NHDA was neither an agent or adelegate of the C/NH, that the Rent Act has been taken out of the pathof the operation of the NHDA, and therefore the Commissioner'sconduct in notifying the Court that he has found alternateaccommodation whilst relying on houses from the NHDA is ultra vires.
alternate accommodation must be reasonably equal regardingrent and suitability in other respects. The means of the tenant,the needs of the tenant, proximity to his place of work, thedictates of the ethnic crisis presently confronting this country,the age and state of health of the tenant, amenities, were allfactors that must be taken into account in determining whetheraccommodation offered was alternate. If what was offered wasdisproportionate in one or more such fundamental areas thenthe offer was ultra vires. It was submitted that all the tenantsoccupied premises in Wellawatta, Colombo 6 and that threepetitioners were referred to accommodation in Nittambuwa, adistance of approximately 30 miles away and 2 petitionersreferred to accommodation in Mattegoda also some milesaway. In Case No. 81/86 the petitioner is a Tamil lady, widowof 69 years who was offered accommodation at Nittambuwa. Inall the cases the rent payable on the new accommodationshows an increase.
apart from the vires issue taken a. aforesaid, it was alsocontended by the petitioners that the C/NH had failed to actfairly. Even though a purely administrates act was envisaged by
■ 'the section the law cast a duty on the administrative agency toact fairly. In converting tenancy into hire purchase, in offeringaccommodation at a higher rental in a different location ofhouses belonging to a 3rd party, in converting protectedpremises into excepted premises the C/NH was not actingfairly. Again, petitioners complained that there had been no.inquiry at which they were present held by the C/NH. They wereentitled to be heard. If they had been heard they would havebetter explained their difficulties in accepting what was beingoffered. The notification had been made to Court. Before theyagreed to take what was being offered and the C/NH had thusacted arbitrarily and capriciously without good faith.Furthermore there were terms of settlement implied in theconsent decrees that the tenant would be found alternateaccommodation. It was on these terms that the defendant didnot proceed to trial. In all these circumstances thedeterminations of the C/NH should be struck down.
I will now deal with the contentions of the respondents. The Statewas a respondent in four of the applications so I will refer to positionstaken on behalf of the State first. In C.A. Application No. 81 /86 writ ofexecution had already issued before this application was registered.Consequently the tenant had already been evicted on 28.1.86 and thehouse given back to the landlord. The tenant now sought restoration.The petitioner had however invoked only writ jurisdiction and not therevisionary powers of the Court. So it was contended that even thoughthis Court were to quash the determination of the Commissioner still awrit of ejectment issued by the District Court remains in force. So theissue of writ of certiorari quashing the Commissioner's determinationwould be futile. A writ of ejectment is an appealable order. There is noappeal filed. Petitioner must exhaust available remedies before askingfor the Court's prerogative powers to be exercised-and there are noexceptional circumstances to exercise the revisionary powers of theCourt. If the C/NH had done something ultra vires the District Courtcan go into the matter. It is my view that the District Court has nosupervisory powers over the conduct of the Commissioner; and sincethe application for writ of execution has been made more than 1 yearafter the decree was entered-decree was entered on 1.6.82 andexecution effected in January 1986-the provisions of s.347 of theCivil Procedure Code directs that an application for issue of writ shouldbe by way of petition to which the judgment debtor is made'respondent and a copy of the petition should be served on him. Thishas not been done. The petitioners were unaware that writ issued. Soif this Court holds that the Commissioner's act is ultra vires that wouldconstitute exceptional circumstances which woulo merit theintervention of this Court as the District Court could have exercised itsjurisdiction only if the notification was intra vires. I will refer >o thismatter again once I deal with the vires point But besides thesearguments, it was also contended on behalf of the State th- r the C/NHhas no houses to let and acts as aoern ftr the State and ir can onlvnegotiate to make available house, tieiongr g the Str-te d Stat;
organizations. So if one gives a restricted meaning to the pronoun 'he'in s.22(1C) it would make the Act unworkable. The C/NH madeavailable to him for possible disposal only two categories of housesbelonging to the NHDA-
where the initial deposit is Rs. 32,000,
where the initial deposit is Rs. 20,000.
These houses were located at newly developed housing schemessituated at Nittambuwa and Mattegoda. As a public servant he shouldbe presumed to apply uniform criteria in respect of all cases. There isno allegation of bias or discrimination.
On behalf of the other respondents it was urged with a quotationfrom Lord Denning's book "The Discipline of Law", p. 12 that thisCourt should set to work on the constructive task of finding theintention of Parliament not only from the language of the statute butalso from a consideration of the social conditions which gave rise to itand supplement the written word so as to give "force and life" to theintention of the legislature. The tenants have been sued in ejectmenton grounds of reasonable requirement. The trial judges have found inall the cases that the landlords hardship outweighs the hardships ofthe tenants. This view it was urged is justifiable even though thejudgments (except one) have been with consent of the defendants.Then after the lapse of many years, the C/NH has finally been able tomake an offer of a house. None of the tenants have bothered to visitthe housing schemes and inspect the premises offered. Nor have theyrejected the offers-nor have they informed the NHDA that they arenot interested in the houses or that the houses are unsuitable. Theyhave maintained a state of silence with no response whatsoever andthen sought relief from the offer. The landlord has for the first timebeen given some consideration in the under Rs. 100 categories ofhouses rented out before 1972. The statute does not cast a duty onthe C/NH to provide a house for the tenant. If he does not in factprovide a house for the tenant what it means is that the landlord will beunable to evict his tenant. Again the tenant need not look for title orownership as to whose house he is being offered. All that is required isthat the tenant be given vacant possession. The landlords, eager toreoccupy their houses have deposited monies with the NHDA toreserve houses for the tenants There is no legal prohibition againstsuch conduct. Those reservations are still valid and the offers openThe C/NH has a discretion in the choice of accommodation. The
Distict Court cannot go into the question of suitability of the house inview of the preclusive clause found in s.22(1E). All that has actuallyhappened is that the landlord has been left out in all but one of thecases despite a decree in his favour.
Still another contention of these other respondents was that thenotifications of the Commissioner were intra vires. This argument wasbased on the syntax and grammar of s.22(1C) as evidencing anintention of the legislature that the law is only concerned with theCommissioner's "ability to provide" a house and does not cast on hima duty to do so. The tenant's opinion as to the suitability of the offer isnot relevant. The C/NH is authorised to give information to the Courtwhich is what he has done by his notification. As he is so authorisedhis act is not ultra vires. It would be so if the information was given byan unauthorised person. These arguments seeking to portray thenotifications as intra vires on the hypothesis that the C/NH is free tooffer any house are unconvincing. It would mean that the C/NH wouldsatisfy the statute if he offers a slum dweller a flat in Liberty Plaza.
I have adverted to contemporary developments where the effect ofstatutory provisions since 1942 has been to afford a greaterprotection to the tenant. In the case of this trend the provisions ofs. 22 (1C) have been enacted recognising the right of a landlord ownerof a single house the standard rent of which is under Rs. 100 permonth to regain possession of his house even though let before 1972.It postulates a significant departure from the trend towards restrictingthe rights of the landlord and offers instead some measure ofprotection to the landlord. At the same time the section ensures thatthe tenant will have the benefit of alternate accommodation. The Courtis thus called upon to give effect to these twin objectives of the"legislature. These dual objectives have to be reconciled. It is my viewthat there is no criteria explicitly discoverable in the statute for thepurpose of reconciling these competing interests of the landlord andof the tenant. Nor have I discovered any binding authority. It appearsto me that there is a gap in the statute law. Now, the arguments forthe tenant petitioners have been largely based on the doctrine of ultravires, i.e.:-
(i) That the C/NH must give a house from his housing stock and notfrom those belonging to persons who are not his agent ordelegate but has failed to do so;
(ii) That the house offered must be alternate to that he occupied,alternate should be regarded as very similar to that alreadyenjoyed-be similar or approximate to the rent he had so far paid(not sharply increased) and located in an area where thetenant's vital interests lie and where the tenant can live withoutfear which obligation or duty the C/NH has failed to fulfil.
It is my view that the object of the provision providing that the tenantwill have the benefit of alternate accommodation is to ensure that thetenant will not be deprived of premises he is occupying until he has afirm assurance of alternative accommodation. So the question of theownership of premises is not of primary importance. The law has to beinterpreted in the context of the social conditions which gave rise to it.The law here offers protection to the landlord in conditions wherehouses are in short supply and there has been a tremendousescalation in building costs in the last decade and new rentals onnewly built houses could inevitably have no resemblance whatever torentals paid prior to 1972. So the consequences of upholding the ultravires point would be that it would not be possible to offer anyprotection whatever to the landlord. The Commissioner's housingstock being exhausted any new stock he may in the future acquiremust of necessity attract much higher rents than those of rentcontrolled premises. The Commissioner's houses are 'excepted'houses, so that payment of nominal rents cannot be resurrected. Thusthe objective of the legislature of protecting the landlord cannot beachieved if the ultra vires point is upheld. Section 22(1 C) offersprotection to both sides. You cannot do that by proceeding from anultra vires standpoint. An acceptance and application of the ultra virespoint would only perpetuate the occupation of the premises by thetenant. The mere fact that the Commissioner offers a house from the'NHDA and not from his own housing stock does not establishconclusively that he is acting ultra vires. So it seems to me that theessential task of this Court is to adopt an empirical approach andestablish proper indicia and balance the equities as between theparties.
In similar circumstances the courts in England and other jurisdictionshave adopted such an empirical approach when having to decidebetween alternative rules of interpretations. In the case of Starkonshv. A. G. (2) per Lord Reid:
‘If a decision in one sense will on the whole lead to much morejust and reasonable results, that appears to me to be a strongargument in its favour.”
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Professor H. L. A. Hart in his book "The Concept of Law" refers to apenumbrai area of a problem and when the court is dealing with such apenumbral area the court has to rely on intuitive concepts of justiceand fair play. The popular notion of "justice" is based on a sense ofequality either distributive or corrective But justice may also help todecide between alternative rules or interpretations. In this situationsays Viscount Simonds:
"The question is simple: What does justice demand in such a
case as this?If I have to base my opinion on any principle.
I would venture to say it was the principle of rational justice."-National Bank of Greece and Athens S.A. v. Methis (3)
Dennis Lloyd in his book "Current Legal Problems" -1948. p. 89: 101says:
"it is not only in the creation of statute law that the
philosophy of a community declares itself. In filling the gaps left byprecedent the judge will draw on those views which he considersare vital to the welfare of the community. English public policy. shows a surprising swing from the individualism of the last century.English courts have not misunderstood the social experiments beingcarried out. There is a real willingness to interpret the statute in thelight of its social purpose."
Again at page 89 he refers to the view expressed by Lord Denning inSeaford Court Estates Ltd. v. Asher (4):
"The judge must work constructively by drawing the conclusionthat fits the policy of the Act."
Again Dennis Lloyd in his book "Introduction to Jurisprudence" 2ndEd. 1965-p. 301 refers to "the common sense of justice to developthe law and to fill in the gaps in the legal system".
One of the foremost exponents of the American movement in socialjurisprudence-Roscoe Pound-expounds a technique in solving theseproblems and he describes it as the "Theory of Social Engineering",i.e. the reconciliation of competing interests in any society. His articletitled "The Call for a Realist Jurisprudence"-{1931) 44 Harvard LawReview p.697, took an illustration of the conflict between capital andlabour. The essence of the theory is to "reach a just compromisebetween competing interests". A similar approach is found in the
writings of the Scandinavian jurist A. V. Lundstedt "Legal ThinkingRevised"-! 1956) in the chapter dealing with "Method of Justice". Theinstant cases provide an illustration of a similar conflict betweendivergent interests in the setting of the relationship between landlordand tenant.
It has been urged in the course of argument that the C/NH is under aduty to act fairly in discharging his statutory functions. I am inagreement with such a contention. The law in recent times has movedaway from the classification of functions-the distinction betweenjudicial, quasi-judicial and purely administrative powers does not todayhave the importance which was assigned to it in accordance with the'Nakkuda AH' (5) tradition where it was held that natural justice with itsconcomitant right to a fair hearing had no part to play where a purelyadministrative decision was to be taken under a statutory procedure. Ifthe function was judicial or quasi-judicial an objective test was applied.In other words, where objective goals were to be reached it wasrecognised as a quasi-judicial power and rules of natural justice mustbe followed; but if the goals were subjective the act was onlyadministrative and there was no obligation to comply with the rules ofnatural justice. So it was held that the writ of certiorari was availableonly when rights were adversely affected and the administrativeauthority was under a duty to act judicially. If the decision was purelyadministrative the writ will not be available for failure to observe rulesof natural justice-see Nakkuda AH v. Jayaratne (5).
This narrow construction was however rejected in England in 1963by the decision in Ridge v. Baldwin (6) and the principles for an orderof certiorari was restored to its earlier scope and the way was pavedfor more recent developments. Ridge v. Baldwin (supra) (6) reinstatedthe right to a fair hearing as a rule of universal application-per H. W.R. Wade-"Administrative Law"- 5th Ed. p.471. Perhaps the onlyrelevance of the Nakkuda AH case today is that it confirms that in thefield of Administrative Law English Law applies in Sri Lanka. Acomparable approach to the 'Nakkuda AH' (5) tradition is reflected in astrand of Sri Lankan judicial authority-vide Hassan v. Controller ofImports and Exports (7). However the conceptual distinction betweenquasi-judicial and administrative functions has been strongly assailedfrom the standpoint of policy. In the case of Fernando v. Jayaratne (8)Sharvananda, J. (as he then was) had this to say:
"If the purpose of the rules of natural justice is to prevent a
miscarriage of justice it cannot be appreciated why these rules
should not apply to administrative inquiries.
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An unjust decision in an administrative inquiry in the context of aWelfare State may have greater effect than a decision in aquasi-judicial inquiry. This represents a direct attack on the dichotomybetween 'quasi-judicial' and 'administrative' functions in the setting ofthe law of natural justice-see also Article by Professor G. L. Peiris inthe journal of the Indian Law Institute titled "Natural Justice and theClassification of Powers-lndia and Sri Lanka Compared"-Vol. 25:1,pp. 18-19 (1983). An unjust decision can never be fair. So a conceptof fairness has been recognised in recent times as applicable in theperformance of administrative acts. In a series of Canadian judgments'fairness' has been equated to no more than good faith in reaching adecision. Inherent in the postulate of good faith is the lack of bias, i.e.and impartial consideration of the relevant application. In contrast tothe above meanings of fairness a procedural right to a fair hearing hasalso been developed. See Wade-"Administrative Law"-4th Ed.p.441 et seq. In New Zealand advertence to irrelevant considerationshas been associated with unfairness. Vide article by Dr. G. L. Peiris on"Procedural Fairness in Relation to Administrative Decisions-RecentTrends in Canadian Law"-XV. CILS. 1982 pp. 58, 59. So theaccepted view today casts a duty to act fairly when taking anadministrative decision. I have dwelt at length on the aspect of'fairness' because it provides the conceptual basis for resorting to thebalance of equities exercise.. To reach the goal of fairness it isdesirable that one establishes the proper equities.
Writers on jurisprudence have said-
"It is not interests as such but the yardsticks with reference towhich they are measured that matter. It may be that some interest istreated as an ideal in itself in which case it is an ideal that willdetermine the relative importance between it and other
interestsThe balancing metaphor is misleading If
two interests are to be balanced that presupposes a yardstick withreference to which they are measured. One does not weighinterests against one another even on the same plane. But withreference to :.ome ideal it is possible to say that the upholding ofone interest is more consonant with another; which means that withreference to that ideal the one interest is entitled to preference overthe other"-R. W. M. Dias on "Jurisprudence", 4th Ed. p.602.
Further he says at p. 603-
"All questions of interests and ideals should be considered in the
context of particular issues as and when they come up for decision.
The recognition of a new interest is a matter of policy".
In my view the policy of the law in enacting s. 22 and the ideal whichthe policy identifies is the landlord's right to the possession of hishouse.
Equities have already been balanced at stage of judgment in theDistrict Court. The landlords need is acknowledged and we are at thepoint of execution of decree. So it would be grossly inequitable todeny the landlord possession because of some of the subjectivefactors urged by the petitioners. A satisfactory approach would be toidentify primary criteria relating to comparability of accommodation.What are these primary criteria for saying that accommodation is or isnot alternate? For example, A will be alternate to B only iffundamentally A is similar to B, e.g. a slum is not equal to a flat inLiberty Plaza. The answer seems to be that they must be roughlycomparable. When identifying criteria the goal of 'rational justice'adopted by Lord Simmonds seems to me to be most appropriate. Aconvenient first step may be to decide what factors should beexcluded:
Personal idiosyncrasies of tenant with regard to preference maybe ignored. If one were to look at each person's individual needit becomes too subjective and impractical. This would extend toneeds of health or business and other commercial undertakingsand arrangements. It is a fact that there are medical facilitiessuch as hospitals, doctors, pharmacies etc., all over thecountry. This applies even to factors such as climate andaltitude, except perhaps in the most extreme cases. The pointis that health facilities are equally distributed in the country.Business and commerce could be relocated. It would beunreasonable to give preference to these factors over thelandlord's right to his house as it would mean that the tenantcan never be dislodged and the landlord will never get hispremises back.
Education.- The lament that dependants'schooling would bedisturbed is without merit. There are Government schools (andprivate schools) all over the country and they produce students
qualified for higher education in the universities. So it is safe toassume that a child could attend another Government schoolwithin close proximity to his new home. Thus it is inequitable tosay that the child must be afforded the opportunity to remain inthe school where he is since this approach would stultify thelegitimate protection conferred on the landlord by the statutoryprovision. Hence this cannot be appropriate criterion governingassessment of the competing equities.
Rent and Age of the Tenant.- Is there a gross or strikingdisparity between rent so far paid and rent payable. Increase ofrent may be relevant but to what degree? A most equitableapproach would be to say that a mere increase in rent isinconclusive. One will have to consider whether the difference isequitable in all the circumstances and the primary criteria therewould be whether the payment which the tenant is being askedto make bears a reasonable relation to the present market valueof the premises. With regard to this the age of the tenant is amaterial factor; because the test should be whether the tenantcould reasonably expect to benefit from the financial outlaywhich he is called upon to make because of the rent purchasefoundation. So the criteria is not the increase of rent per se butthe reasonableness of the expectation that the tenant would'reap the benefit of the increased outlay on the basis of hirepurchase. For example if the tenant is 40 years old it isunreasonable for him to continue to live for the rest of his life inthe landlord's house. But at 40 years even though the monthlypayment he is called upon to make is substantialy in excess ofwhat he was earlier paying, the premises are neverthelessalternate because he has every expectation that he wouldacquire the advantage of the financial outlay he makes. Buteven if age is on the side of the tenant still his conduct incidentalto his protest at the offer must be considered and the tenantmust establish the bona fides of his protest. New housing stockof the C/NH will always be more expensive. You need newstock to replenish the old. Escalation in building costs makes adifference in rent unavoidable. So necessarily the tenant will becalled up to pay more – that is part of the reality of the situationin regard to housing in this country. So even the lack of meansof the tenant in itself cannot be recognised as a substantialground for relief – it would be unacceptably harsh by thelandlord.
Racial identity. – Is it open to a tenant offered accommodationsome distance away from where he has been living to say thathe fears physical harm and will have no peace of mind if he isrelocated at the place offered? It is a fact that prevailingconditions regarding relationships among communities in SriLankan society may justifiably givn rise to such fears. It may beunreasonable to require a tenant to accept as alternateaccommodation a house situated in an area where communaltensions could gravely prejudice the tenant – his physicalsafety and peace of mind. But it is a question of fact in eachcase. However this too can be open to abuse. The test is – Isthe anticipation of fear reasonable? It may be less safe inWellawatte than it is in Nittambuwa or Mattegoda in suchcircumstances. The bona fides of a protest on these groundswhatever community to which the tenant belongs should alsobe considered. The tenant should be given scope forestablishing that the place of relocation is unsafe.
Physical facilities in the new home must be approximatelycomparable taking account of the size of the tenant's family.
Relevant also is the time given by the C/NH for the tenant tomove. Is it adequate for a person with special skills to adjustand find earning capacity in the new location? The time givenmust be reasonable and adequate. The court should alsoconsider this factor before issue of writ.
The test of Bona Fides. – Where the tenant has done nothing toascertain the suitability of the facility offered his bona fides is inquestion. The tenant is under a duty to make a sincere effort tosecure suitable accommodation for himself. There must be anearnest and sincere attempt by him to do so. The tenant cannothave a closed mind on the matter so vitally affecting him. Hecannot be disinterested in anything that is offered. So wherethere is evidence that the tenant has not even been willing toascertain for himself the nature of premises offered, it is atentative indication of a lack of bona fides on his part as such anattitude would nullify the statutory concession made to thelandlord. On the other hand if the tenant examines the offer andfor example says "I have six children of different sexes. I needthree bedrooms but the house offered has only 1 bedroom",then what has been offered is not alternative provided that the
premises previously occupied were significantly more spacious.As stated earlier, physical facilities should be approximatelycomparable having regard to the reasonable requirement of thetenant. "
Has the Commissioner acted arbitrarily or capriciously or withbias in a discriminatory manner or in bad faith when making anoffer of alternate accommodation. If so proved then his offermust be struck down on account of his failure to act fairly.
When the C/NH offers an alternate house the tenant must notbe seen to prevaricate or delay giving vacant possession tolandlord. He must not indefinitely retain possession in the hopethat the C/NH may in the future be able to offer cheaperaccommodation from his housing stock in the event of avacancy occurring as otherwise it will cause unconscionabledelay in accommodating the landlord's rights. The landlord hasa right to vacant possession of his house within a reasonabletime of an alternate house being offered to the tenant.
The application of the above guidelines may provide provisionalcriteria in regard to the question whether the premises offered can be. accepted as alternate. They are not meant to be exhaustive.
✓
• The basic objection to the application of the ultra vires doctrine tothese instances is that it is not even handed – it would offer totalprotection to the tenant and result in total vulnerability to the landlordtaken in the context of the realities in regard to housing in the countrytoday. The statute requires a just compromise between the competingf interests. I therefore reject the arguments of the petitioners that theCommissioner has acted ultra vires his powers or duties when henotified the Registrar of the District Court in all of these cases that heis able to provide alternate accommodation to the tenants.
When asking the NHDA to give a house in the context of theprevailing shortage of housing, the C/NH has acted in a mannerreasonably incidental to the exercise of his powers under the statute.Statutes are interpreted as authorising not only those things expresslyprovided for, but also acts 'reasonably incidental' to those expresslystated. The classic formulation of this principle is that of LordSelbourne in A. G v. Great Eastern Railway Company (9).
It remans to consider whether the petitioners can succeed on theground that the C/NH has been unfair in all the circumstances inmakiny the notifications to Court. The available material shows thatthe tenants have not in any case made any effort whatsoever to get intouch with the NHDA or inspect the premises offered or find outparticulars of rent or any other conditions. This silence touches on thequestion of the bona fides of their protest that the offers are unfair.The new rent payable upon relocation is uncertain. No information hasbeen furnished by any of the petitioners what the purchase pricewould be. The NHDA is not a party to these applications. In C.A.48/86 the petitioner's affidavit says that he is required to pay a rent ofRs. 240 per month for the new premises, whereas she has beenpaying Rs. 30 per month to her landlord. In C.A. 127/86 thepetitioner's affidavit asserts that she fears and reliably understandsthat she will be called upon to pay Rs. 360 per month whereas shehas been paying only Rs. 65.25 to her landlord In C.A. 73/86 thenew rental is not stated but the petitioner has said that he is presentlyoccupying a house with 2 bedrooms, hall, sitting room and storeroom, verandah, two toilets on land in extent 9.80 perches and payinga rental of Rs. 63.67 per month to the landlord. He expects similarfacilities for a similar price from the Commissioner. In C.A. 77/86there is no information available about new rental but here again she ispresently occupying a 3-bedroomed house with 2 toilets, sitting room,verandah, store room on 8.3 perches of land She pays a rent of Rs.71.92. There is no information available in C.A. 81/86 of what thenew rental is.
In the absence of any dialogue with the tenants the question ofjustifiable fears on account of racial tensions cannot be considered.There are no instances of any extreme cases of ill health of the tenantdiscernible from the available facts. In C.A. 81/86 the petitioner awidowed Tamil lady claims she is 69 years and has been offeredpremises in Nittambuwa. Proceedings were instituted against her in1977. On 14.5.78 the C/NH has called for particulars as set out in anearlier part of this judgment. She has not sent any reply. On 1 7.12.85the C/NH has informed the tenant Mrs. Ponniah that a house has beenresea ed for her requesting her get in touch with the NHDA. Shedoes not do so. She does not ascertain the rent payable. On 20.1.86
fter a delay of a month she petitions the C/NH and it is only in this
''•'t'nn that she claims for the first time to be 69 years old. There was
i . iill *3%/oiloklo tA tkn f* /MLJHnr <4aaa»aa/4 U>J_
Master and that she is in receipt of a pension and that her son is anengineer and his wife a teacher both of whom are living with thetenant. This information has come from the landlord Mrs. NoorulHidaya. The Commissioner's letter of 14.5.78 calls upon thepetitioner to provide information regarding the earnings of anychildren. The petitioner could have contradicted the informationsupplied by the landlord if it was incorrect if she had taken a greaterinterest in the offer made. She has not done so. This naturally affectsthe evaluation of the equities on the two sides. In any event I haverejected the arguments of the petitioners that the Commissioner hasacted ultra vires. This being so in Case No. 81/86 writ of ejectmenthas already issued and the landlord has been placed in possession andthere is no appeal from that order. As I have held that the C/NH hasnot acted ultra vires there are no exceptional circumstances for thisCourt to exercise its revisionary powers and strike down the writ ofexecution, because even though the respondent was not noticed ofthe application for writ of execution, such a need to so notify therespondent under s.347 of the Civil Procedure Code is only directory.
In spite of Mrs. Ponniah's age I am of the view that her conductbelies her bona fides in protesting the offer of a house and does notentitle her to relief. In case No. 77/86 the tenant Mrs. Aboobucker is awidow and according to her affidavit she is 75 years old and is inreceipt of a monthly income of Rs. 1850 on the information shefurnished to the C/NH Besides this the landlord has forwardedinformation to the C/NH by way of an affidavit that the daughters andsons-in-law of his tenant live with the tenant and they are in receipt of"a monthly income of Rs. 10,000. This has not been refuted. She toomay have been able to do so if she was vigilant. In the circumstancesher age cannot be considered a criterion for holding that her interestpredominates over that of the landlord who has a decree in his favour.It is my view that in none of the cases can it be shown by thepetitioners that they have been dealt with unfairly by the C/NHapplying the yardsticks of comparison and assessment I have advertedto in this judgment.
The question also arises whether the Commissioner has adopted afair procedure in coming to a decision that alternate housing isavailable which prompted him to so inform the parties and the Court.The modern law rprnnnises that to insist on nhservanre of the Totality
of the rules of natural justice in the performance of purelyadministrative functions might sometimes severely restrict the efficientperformance of administrative action. So a concept of procedural• fairness as distinct from the substantive fairness of the decisionarrived at, has developed quite apart from the traditional rules inrespect of natural justice.
Modern trends in Canada and the United Kingdom bear amplewitness to this development-vide Article by Professor G. L.Peiris-Procedural Fairness in Relation to AdministrativeDecisions-Recent Trends in Canadian Law-XV. CILS 1982 p.58. Itrepresents a useful tool in making effective administration possiblewhilst preserving a reasonable degree of fairness in executive actionfor the protection of the public. In the instant cases the Commissionerbided his time for over two years and then with the informationsupplied to him by the landlords and the tenants he sought theassistance of the NHDA to secure accommodation and he also did notdiscourage the landlord to help by making the initial deposit. The' tenants were asked to communicate with the NHDA. It is my view thatin the circumstances the C/NH has acted reasonably in discharging hisduty and has adopted a fair procedure when considered in the contextof the constraints placed on him in finding housing. For these reasonsthe petitioners also fail on the ground that the Commissioner'sdetermination and notification that he is able to provide alternateaccommodation has not been fair. I am of the view that theCommissioner's notifications should not be struck down. I accordinglyrefuse the applications for the issue of writs of certiorari and/ormandamus and of prohibition that have been made in these cases.The application for revision in C. A. Application No. 48/86 of the orderthe District Judge is also refused for the reasons given in thisjudgment. The applications in all these cases are accordinglydismissed. There will be no costs in any of the cases.
WIJETUNGA, J.-l agree.