LOKUGE AND OTHERS
G.P.S DE SILVA, C.J.,
KULATUNGA, J ANDRAMANATHAN, J.
S.C. APPEAL 58/95.
C.A. APPLICATION NO. 1531/84.
30TH JANUARY, 1996.
Writ of Certiorari – Ceiling on Housing Property Law – Sections 39 (3) and 17• Tenant's application to purchase a house – Equities – Board of ReviewDecision – Board's Jurisdiction to consider equities – Interpretation Ordi-nance section 22.
The Board of Review under the Ceiling on Housing Property Law No. 1 of1973 after a full inquiry and on the ground of equity set aside a decision ofthe Commissioner for National Housing to recommend the vesting of a Houseowned by the Appellant to enable the tenant thereof to purchase it under
section 13 of the Law. The Court of Appeal quashed the decision of theBoard. It was argued that the Commissioner has to be satisfied only on thematters set out in Section 17 of the Law. If he is so satisfied he must, subjectto an appeal to the Board on those matters, notify the Minister of such fact;whereupon the Minister alone is empowered to decide whether a vestingorder may be made. Hence, in considering equities, the Board acted out-side its jurisdiction.
There is an area of discretion in the Commissioner to consider theequities of the case and decide whether he will accept the application andnotify the Minister that an application has been made.
Even assuming that the Commissioner has no power to reject an ap-plication on the ground of equities, he is under a duty to consider equities inaddition to the matters set out in Section 17 to enable the Minister to makea fair decision as the Minister's power to make a vesting order is discretion-ary. The Commissioner's decision including the question of equities is sub-ject to an appeal to the Board.
The Board of Review acted within its jurisdiction. It cannot be said thatthe decision of the Board is ex facie not within the power conferred on itwithin the meaning of Section 22 of the Interpretation Ordinance. To suc-ceed on that ground there has to be a patent lack of jurisdiction. Mereexcess of jurisdiction is not sufficient.
Cases referred to:
Beatrice Sitamparanthan v. Premaratne, S.C. Appeal No.53/95 S.C.Minutes of 6th February 1996.
Caderamanpulle v. Keuneman, S.C. Appeal No. 15/79 S.C.
Minutes of 19th September, 1980.
AN APPEAL from a judgment of the Court of Appeal.
A.K. Premadasa, P.C. with C.E. de Silva and Ms. Mangali Wickramasena forAppellant.
P.A.D. Samarasekera, P.C. with Hemasiri Withanachchi for Respondent.
8th February, 1996.
The Appellant is the owner of house No. 20/1, Sri Dharmapala Road,Mount Lavinia. The 2nd Respondent (Commissioner for NationalHousing) decided to recommend the vesting of the said house to enablethe 1 st Respondent who is the tenant thereof to purchase it undersection 13 of the Ceiling on Housing Property Law No.1 of 1973. On anappeal by the Appellant, the Board of Review reversed the 2ndRespondent's decision.
The Board of Review found that 5 houses owned by the father ofthe Appellant had vested under section 11 of the law leaving theAppellent with only two houses namely, 20/1 and 20 which are twinhouses under one roof. The Appellant lives in No. 20 with his twodaughters aged 20 and 16. These are the only houses he owns whichhe intends to gift to his daughters on the occasion of their marriage.The 1st Respondent's wife owned a building site at Bellanwila whichshe sold for Rs. 60,000/- after the 2nd Respondent decided torecommend the vesting of house No. 20/1.
On the above facts, the Board of Review after a full inquiry setaside the decision of the 2nd Respondent on the ground of equity.The1 st Respondent then applied to the Court of Appeal for a writ of certiorariagainst the order of the Board which was allowed by that Court on theground that the Board had acted in excess of its jurisdiction when itvaried the 2nd Respondent's decision without first making a findingthat the 2nd Respondent had either failed to consider the respectiveinterests of the parties or to exercise his discretion in that regardreasonably. The Court opined that by its decision, the Board hadeffectively prevented the application from receiving the attention ofthe Minister who had the final discretion in vesting the house, to enablethe tenant to purchase the same.
I am of the opinion that in view of the preclusive clause in section39(3) of the Law, the Court of Appeal had no power to quash the decisionof the Board of Review in the absence of a ground for such quashingprovided by section 22 of the Interpretation Ordinance. One such groundis a failure of natural justice. On the facts of this case that ground isnot available. The other ground is that the Board was ex facie withoutpower to make the impugned decision.To succeed on that ground theapplicant must establish a patent lack of jurisdiction. Mere excess ofjurisdiction as adverted to by the Court of Appeal is not sufficient -see Beatrice Sithamparanathan v. PremaratneS1)
Mr. Samarasekera PC for the Respondent submitted that in consider-ing an application for the purchase of a house under section13 of theLaw, the Commissioner had to be satisfied only on the matters set outin section 17 namely;
that the house is situated in an area which in his opinion will not berequired for slum clearance, development or redevelopment or any otherpublic purpose;
that it is feasible to alienate such house as a separate entity; and
that the applicant is in a position to make the purchase.
Counsel argued that where the Commissioner is so satisfied hemust, subject to an appeal to the Board of Review on the aforesaidnratters, notify the Minister of such fact; where upon the Minister aloneisthen empowered to decide whether a vesting order may be made.
Counsel contended that consideration of equities is not a pre-recuisite to the making of a notification under section 17; hence itwojld be outside the jurisdiction of the Commissioner and the Boardof Review to consider equities; and that they have no power to rejectan application on the ground of equities. He said that the dicta inCaieramanpulle v. Keunemarf® as to the Commissioner's discretionto sonsider equities is obiter. There the Court held that theConmissioner need not act on every application made under S. 13andnotify the Minister under section 17 even if paras (a), (b) and (c)are satisfied; and that there is an area of discretion in the Commissionerto ctnsider the equities of the case and decide whether he will acceptthe ipplication and notify the Minister that an application has beenmad.
h Caderamanpulle's case (supra) there was no decision of theBoad of Review. The Commissioner notified the Minister arecommendation for a vesting without having informed the owner ofthat (ecision; whereupon the Minister made order vesting the house inthe Commissioner. The Court quashed the vesting order primarily onthe ground that it was inequitable; and that the Commissioner failed tohold a fair inquiry affording the owner an adequate opportunity to statehis case; he also failed to inform the owner of his decision to recommendthe vesting; hence the vesting order was in breach of natural justiceand void.
On the submission of the State that in the course of an applicatbnunder section 13 the final determination is that of the Minister,Thamotharan, J. said:
"It seems to me that the effective decision or determination inregard to the tenant's application is made by the Commissionerand not by the Minister."
In the circumstances, I am unable to agree that the dicta inCaderamanpulle's case were obiter; that decision has been consistent!/followed in other decisions. I do not consider it necessary or appropriateto reconsider it. Even assuming that the Commissioner had no powerto reject an application on the ground of equities, I am of the opinionthat he has incidental power to consider equities for the reason thatthe Minister's power to make the vesting order is discretionary; andthe Commissioner is under a duty to consider equities in additior tothe matters set out in section 17 to enable the Minister to make a 'airdecision. The Commissioner's decision including the question of equiiesis subject to an appeal to the Board of Review.
In the result it is my conclusion that on the facts of this case,theBoard of Review acted within its jurisdiction in making its decision Itcannot be said that the said decision is ex facie not within the powerconferred on the Board. The decision in favour of the Appellait iseminently equitable. Hence the specific finding that the Commissbnerhad failed to consider equities is unnecessary. I accordingly alloy theappeal set aside the judgment of the Court of Appeal and reston thedecision of the Board of Review, dated 21.09.94. In al thecircumstances, I make no order as to costs.
G.P.S. DE SILVA, C.J. – I agree.
RAMANATHAN, J. -1 agree.
PERERA v. LOKUGE AND OTHERS