Nelia Silva v. Commissioner for National Housing and Another 291
v.COMMISSIONER FOR NATIONAL HOUSING AND ANOTHER
SUPREME COURTG. P. S. DE SILVA, CJ.,
WADUGODAPITIYA, J. ANDWEERASEKERA, J.
S.C. APPEAL NO. 105/97C.A. NO. 362/90
NOVEMBER 14 AND DECEMBER 4. 1998
Writ of certiorari – Tenant's application to purchase a house – Sections 13 and17 (1) of the Ceiling on Housing Property Law – Requirements of a valid vestingorder under section 17 (1) of the Law.
In 1976 the respondent who was the tenant of a house owned by the appellantmade an application under section 13 of the Ceiling on Housing Property Lawto purchase the house let to him. The parties were not properly heard. However,on 20.10.1976 the Minister had made a minute in the file which was regardedas a “vesting" of the house under section 17 (1) of the Law. The purported “vesting"was communicated to the parties on 07.02.1977. Thereafter in 1982 theCommissioner for National Housing held a proper inquiry and refused thetenant's application. That decision was communicated to the tenant. On an appealby the tenant the Board of Review reversed the Commissioner’s decision onthe ground that the Commissioner had no jurisdiction to have held an inquiryin 1982 in view of the "vesting order" made in 1976.
There was no valid vesting of the house in 1976, in that firstly there wasno vesting order published in the Gazette at that point of time, as requiredby section 17 (1) of the Ceiling on Housing Property Law; secondly theCommissioner's decision under section 17 had not been communicatedto the owner of the house prior to the “vesting".
A publication of the purported “vesting order" in the Gazette in 1996 afterthe owner had applied to the Court of Appeal for a writ of certiorari wasof no force or avail in law in that the said publication was founded onan illegal decision “to vest' the premises.
Sri Lanka Law Reports
 1 Sri LR.
Case referred to:
Caderamanpulle v. Pieter Keuneman and Others – SC Appeal No. 15/79 SCMinutes 19th September, 1980.
APPEAL from the judgment of the Court of Appeal.
P. A. D. Samarasekera, PC with Upali de Almeida for the petitioner-appellant.
Faiz Musthapha, PC with Ananda Kasturiarachchi for the 2nd respondent-respondent.
Cur. adv. vult.
December 10, 1998.
G. P. S. DE SILVA, CJ.
The petitioner-appellant (petitioner) is the owner of premises bearingassessment No. 279 Mutuwella Mawatha, Colombo 15. The 2ndrespondent's husband was the tenant of the premises at the time theCeiling on Housing Property Law (the Law) came into force. The tenantmade an application in terms of section 13 of the Law to purchasethe premises. The 1st respondent (The Commissioner of NationalHousing) held an inquiry some time in 1976. The Court of Appealhas described this inquiry as "an abortive inquiry"; it appears to havebeen a perfunctory inquiry where the parties were not properly heard.(The notes of this inquiry have not been produced).
The 1st respondent thereafter proceeded to hold a second inquiryin 1982. The notes of this inquiry have been produced marked P1.A perusal of P1 shows that both the owner and the tenant had beenfully heard by the 1st respondent. At the conclusion of the inquiry,the 1 st respondent on the grounds of "equities" refused the applicationof the tenant to purchase the premises. This decision wascommunicated to the tenant by P2 dated 25.9.84.
The tenant (ie the 2nd respondent's husband) thereupon preferredan appeal to the Board of Review. The Board of Review by its order
Nelia Silva v. Commissioner for National Housing and Another (De Silva, CJJ
P4 dated 8.9.98 allowed the appeal. The petitioner unsuccessfullymoved the Court of Appeal by way of a writ of certiorari to quashthe order P4. Having failed before the Court of Appeal, the petitionerhas now preferred the present appeal to this Court.
The principal ground upon which the Board of Review allowed theappeal of the tenant was that as far back as 28th October, 1976, thepremises had "vested" in the 1st respondent and the 1st respondenthad no jurisdiction to hold the second inquiry and “override or cancel"the "vesting order". However, what needs to be'stressed is that theBoard of Review held that the premises had "vested" in the 1strespondent solely on the basis of a letter at folio 12 of theCommissioner's file. Furthermore, the Board of Review proceeded tohold that the "decision or determination of the Commissioner hadbeen communicated" to both the owner and the tenant by the letterdated 7th February, 1977.
Now, in the first place a "vesting" of the premises could not beeffected by the Minister making a minute in the departmental file orby writing a letter which is placed in the departmental file. This findingof the Board of Review is in the teeth of the express provisions ofsection 17 (1) of the Law. Admittedly, there was no “vesting order"published in the Gazette at that point of time.
More importantly, on the undisputed facts as set out by the Boardof Review in its order P4, the petitioner was informed of the purported"vesting" more than three months later. The purported "vesting" wason 28.10.76 while the communication of the "vesting" to the petitionerwas as late as 7th February, 1977. This procedure is manifestlycontrary to the ruling in Caderamanpulle v. Pieter Keuneman andothers,(1) wherein Thamotheram, J. held. "There is a duty cast onthe Commissioner to act fairly. The failure therefore to inform thelandlord of the Commissioner's decision or determination under section17 before the Order of vesting was made deprived the landlord ofhis right under section 39 to appeal to the Board of Review". Thus,it is clear that the Board of Review was in grave error in makingthe order P4.
The Court of Appeal too agreed with the reasoning and conclusionof the Board of Review. Said the Court of Appeal, "The Commissionerwas in error in holding the second inquiry whilst the order of vesting
Sri Lanka Law Reports
 1 Sri LR.
by the Minister stood without being quashed. In other words uponthe vesting by the Minister title to the property passed to the 1strespondent under section 15 (2) of the Law. The 1st respondenttherefore could not have held a fresh inquiry into the vesting on anapplication under section 13 in respect of property which hadalready vested in him. Thus, it follows he could not have made orderrefusing to vest a house which had already vested in him under section17 (1) . . . "The judgment of the Court of Appeal is vitiated by thefact that it has failed to appreciate that there was no valid “vesting"in terms of section 17 (1) of the Law.
The 2nd respondent, however, now relies on a Gazette notificationpublished as late as 23rd February, 1996, in support of his submissionthat the premises in suit are lawfully vested in the 1st respondent.It is to be noted that the petitioner's application for a writ of certiorarito quash the order of the Board of Review (P4) was filed as far backas 20th April, 1990. While the matter was pending before the Courtof Appeal, the Minister had proceeded to publish the Gazettenotification which has been produced for the first time before this Court.
In any event, I am of the view that this Gazette notification is ofno avail to the 2nd respondent as it follows upon an invalid decisionor determination to “vest" the premises made on 28.10.76. In otherwords, the “vesting order" published in the Gazette on 23.2.96 isfounded on an illegal decision "to vest" the premises. It, therefore,has no force or avail in law.
For these reasons, the appeal is allowed, the judgment of the Courtof Appeal is set aside and we direct that a writ of certiorari do issueto quash the order of the Board of Review (P4). In all thecircumstances, I make no order for costs of appeal.
WADUGODAPITIYA, J. – I agree.
WEERASEKERA, J. – I agree.
Writ of Certiorari issued to quash the Order of the Board of Review.