COURT OF APPEAL
J. A. N. DE SILVA. J. (P/CA)
C.A. No. 304/99MAY 11™. 2001
Ceiling on Housing Property Law No. 1 oj 1973 – S. 13. S. 17 AnApplication to purchase by Tenant? New Land lord – No attornment -can the Tenant maintain the Application ?
The petitioner who was the tenant of one R made an application on14. 03. 1977 under S. 13 of the CHP Law to purchase the property fromthe said R Before the inquiry commenced in 1983. the said P transferredhis rights to H and C. and H gifted subject to life interest a portion of theproperty to D, her son. H and C were made parties before the Board. TheBoard of Review was of the view that, as the Petitioner had failed to attornto his “New" landlord as tenant he was not entitled to make an applicationunder S. 13.
(i) The relevant point of time at which the validity of the claim has to bedetermined is the stage at which the Commissioner of National Housingholds the Inquiry, 'Notifies' the Minister and the Minister makes thevesting order. This is the decisive point of time at which rights ofparties are affected.
The Applicant is entitled to pursue his application against the“Landlord” for the time being entitled to receive the rent. It is notnecessary to make a fresh application everytime there is a change ofownership.
It also appears that the transfer in question had been madesurruptitiously after the Petitioner made the application to theCommissioner. In this situation, the question of attornment or refusingto attorn to the new owner does not arise.
APPLICATION for a Writ of Certiorari.
Plyadasa v. Suraweera
(J. A. N. De Silva, J. PICA)
Cases referred to :
Biso Menlke v. Cyril de Alwis – 1982 1 SLR 368 (Distinguished)
Hussain Teyabally v. R. Premadasa- SC 69/92 SCM 05. 11. 93(followed)
Wijedasa Rajapaksha for Petitioner.
A. K. Premadasa P.C.. with C. E. de Silva for Respondents.
Cur. adv. vult.
June 22, 2001.
J. A. N. DE SILVA, J. (P/CA)
This is an application for a writ of Certiorari to quash theorder dated 10. 03. 1999 of the Board of Review set up underthe Ceiling on Housing Property Law and the decision of theCommissioner of National Housing the 6th respondent dated20. 07. 1989. By order P14 the Board of Review held that thepetitioner has no right to make an application to theCommissioner of National Housing as the petitioner has notattorned to the new owner of the premises as her tenant.
The petitioner had come into occupation of premisesNo. 203, High Level Road, Pannipitiya in the year 1961 underhis landlord one Elvitigala Don Peter. Thereafter he made anapplication on 14. 02. 1977 under the Ceiling On HousingProperty Law No 1 of 1973 to purchase this property from theaforesaid E. D. Peter and the said application had been assignedthe number C. H. 1/16/45838/145. The Commissioner ofNational Housing decided to have an inquiry only in 1983. Whenthe inquiry commenced in 1983 it was brought to the noticeof the Commissioner that the 7"' and 8"' respondents hadbecome the owners of the subject matter. Thereafter the 7th and8th respondents were made parties to the said inquiry and theinquiry proceeded only against them under the same applicationnumber viz C. H/l/16/45838/145 although a second applicationwas made under the Ceiling On Housing Property Law in respectof the said premises against the 7lh and 8th respondents.
Sri Lanka Law Reports
1200) I 3 Sri L.R.
After the inquiry the Commissioner of National Housingmade order dated 20. 07. 1989 refusing the application of thepetitioner on the grounds of equity. FYom the said decision ofthe Commissioner the petitioner appealed to the Ceiling OnHousing Property Board of Review. After a full hearing andallowing the parties to tender written Submissions the Boardof Review delivered an order on 15. 06. 1991 allowing theappeal of the petitioner and directing the Commissioner torecommend the vesting of the premises in question and to notifythe Minister that it should be vested. Being dissatisfied with thedecision of the Board of Review the 7th and 8lh respondentsmoved the Court of Appeal for a writ of certiorari (C.A. 723/91)The Court of Appeal having considered the submissions ofCounsel quashed the said decision of the Board of Review andsent it back to the Board of Review. In the Judgement of Hon.Justice Sarath N. Silva the following direction was made to theCeiling On Housing Property Board of Review.
"In the circumstances I am of the view that the matter shouldbe referred back for a fresh hearing before the Board of Reviewthat is now functioning. The Board should consider allobjections raised to the application by the petitioner (now 7,h to8th respondents) including the question whether the lslrespondent (now the petitioner) had the necessary competencyas tenant to make the application under Section 13 of theCeiling On Housing Property Law. The question of equitieswould have to be considered afresh in the light of the evidenceand findings of the Commissioner."
After a fresh hearing the Board of Review delivered its orderon the 10th of March 1999 (P14) on the basis that as thepetitioner had failed to attorn to his “New" landlord as tenanthe was not entitled to make an application under Section 13 ofAct No. 1 of 1973. The Board of Review in its order has statedthat they were going to consider in whose favour equities wouldlie but unfortunately had ignored this aspect altogether in theorder.
Plyadasa u. Suraweera
(J. A. N. De Silva, J. PICA)
It is an accepted and undisputed fact that at the time ofmaking the first application on the 14th of February 1977 interms of the Ceiling On Housing Property Law, it was E. D.Peter who was the landlord of the premises in question. Bydeed No. 24684 dated 08. 08. 1977 attested by H. W.Gunasekera Notary Public the said original owner E. D. Petersold and conveyed a part of the premises together with thehouse therein to the 7* respondent. Prior to that on 04. 02. 1977by deed NO. 24175 Peter had sold part Of the land to the 8threspondent N. A. D. Chandralatha. Thereafter the 7th respondentby deed No. 4687 dated 08. 02. 1987 attested by H. A. S.Thilekaratne Notary Public gifted her portion of the saidpremises to her son. the 9,h respondent, subject to her lifeinterest.
Having slept over the original application for nearly six yearsthe Commissioner commenced the inquiry on 28. 10. 1983 onwhich date objection was raised with regard to themaintainability of the application as the ownership has beentransferred to 7th and 8th respondents and the petitioner wasnot their tenant. When this objection was raised the petitionerhas made another application to the Commissioner on the veryday viz 28. 10. 1983.
Section 13 of the Ceiling on Housing Property Law is asfollows.
"Any tenant may make an application to the Commissionerfor the purchase of a house let to him.”
The language of Section 13 of the Ceiling On HousingProperty Law makes it clear that tenant and landlord must beparties to the application. It is only a tenant who can make anapplication under Section 13 of the Ceiling On Housing PropertyLaw against the landlord owner.
Mr. A. K. Premadasa, President's Counsel submitted thatat the time 2nd application was made the petitioner was not thetenant of the 7,h respondent in respect of the premises in suit.
Sri Lanka Law Reports
120011 3 Srt L.R.
He further contended that a tenant who refused to attorn to thelandlord cannot make an application under Section 13 of theCeiling On Housing Property Law. Reliance was placed on thedecision of Biso Menika v. Cyril de Alwisin on the ground thatthe facts in that case were identical to the facts in the instantapplication.
It is to be noted that in Biso Menika's case after propertywas transferred to Biso Menika the tenant was informed of thatfact and a request was made for him to attorn to the newlandlady which the defendant in that case refused.
In the instant case the transfer of the premises in questionhad been made surruptitiously after the petitioner made aapplication to the Commissioner under Section 13 of the CeilingOn Housing Property Law. According to the evidence of thepetitioner the .rent had been paid to Peter till January 1980direct to him. In 1980 N. D. A. Hemalatha had made anapplication to the Rent Board against Peter and petitionernaming petitioner as her tenant and asking for rent. As thisdispute was there the petitioner deposited the rent with thelocal authority. At the inquiry before the Commissionerpetitioner’s evidence was as follows. "s)0q E. D. Peter z»@a©a?®(sS Sz^-SSa @2533®tS §)0sl 22>®30 ^030®@0025} ©QtSsi <jsf03
It is also important to note that petitioner had stated thatneither Peter nor Hemalatha ever told him that the premises inquestion was sold. Hemalatha too in her evidence has statedthat the petitioner never paid rent to her. It had been suggestedto the petitioner that Hemalatha's Attorney informed thepetitioner about the sale of the property in 1980 and requestedthe petitioner to pay the rent to her. This suggestion was rejectedand denied by the petitioner. A letter from the lawyer wasproduced subject to proof but never proved by the 7threspondent.
From the above circumstances it is clear that when thepetitioner went before the commissioner for an inquiry in 1983
Piyadasa v. Surciweera
(J. A. N. De Silva. J. PICA)
in respect of his original application naming Peter as thelandlord, Hemalatha and her sister Chandralatha complainedto the Commissioner that they are the owners of the premises.Even though Hemalatha’s sister N. A. D. Chandralatha was theowner of a strip of land the petitioner was compelled to make afresh application naming both of them as landladies on theirrepresentation. In this situation the question of attornment orrefusing to attorn to the new owner does not arise. The originalapplication was against the landlord for the time being entitledto receive the rent and therefore is valid.
His Lordship Chief Justice G. E S. de Silva in an unreportedcase Hussain Teyabally u. R. Premadasa121 in a similar situationwhere the house was sold over the head of the tenant to a 3rdparty prior to the commencement of the inquiry by theCommissioner of National Housing held as follows.
"I agree with the submission of Mr. Samarasekera for the3rd respondent that in making the application all that the tenantdoes is to notify the Commissioner of National Housing of hisclaim to purchase the house. The relevant point of time atwhich the validity of the claim has to be determined is the stageat which the Commissioner of National Housing holds theinquiry, "notifies" the Minister and the Minister makes thevesting order under Section 17 of Law No 1 of 1973. This is thedecisive point of time at which the rights of parties are affected.Thus the applicant is entitled to pursue his application againstthe "landlord" i.e the person for the time being entitled to receivethe rent" of the premises let (Section 48 of the Rent Act). If suchperson has become the landlord by purchasing the house overthe head of the tenant such house is liable to be vested for thepurpose of sale to the applicant. If on the other hand at thatpoint of time the applicant has "ceased” to be a "tenant" or thepremises in respect of which the application was made is nolonger a "house" within the meaning of the law. then theapplication cannot be entertained. In the present case thehouse was purchased by the appellant in October 1995 andthe inquiry was held in February 1976. When the appellant
Sri Lanka Law Reports
120011 3 Sri L.R.
purchased the house "over the head of the tenant" she did soclearly at her peril. The submission of Mr. H. L. de Silva that thetenant must make a fresh application every time there is a changeof ownership is not well founded. It is not in accord with thestatutory scheme. Law No 1 of 1973 is a piece of social legislationwhich should be construed with little technicality as possible."
In view of the above decision I hold that the Board ofReview's decision that the petitioner did not have the capacityto make an application against the 7th and 8"' respondents iserroneous and contrary to law. Therefore 1 set aside the saidorder dated 10.03. 1989 and the Commissioner's order dated20. 07. 1989 rejecting the application.
Since the Board of Review has failed to consider equities Iam compelled to make the following observations. It is to benoted that Chandralatha the new owner could not have takenaction under Section 22(7) of the Rent Act as she had not gotthe "house" by way of inheritance or gift from parent or spouse.I am also mindful of the fact that Hemalatha had paid onlyRs. 4000/= for the premises in question (according to the deed).
In these circumstance I direct the Commissioner of NationalHousing to consider whether the petitioner has satisfied theother requirements under Section 17 of the Ceiling On HousingProperty Law and take appropriate action accordingly. Thisapplication is allowed with costs fixed at Rs. 5500/=.
AMARATUNGA, J. – I agree.