020-NLR-NLR-V-76-R.-WEERAKOON-Petitioner-and-I.-A.-C.-FERNANDO-Commissioner-of-National-Hous.pdf
Weerahoon v. Fernando
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Present: Weeramantry, J., and de Kvetser, J.R. WEERAKOON, Petitioner, and I. A. C. FERNANDO(Commissioner of National Housing) and 2 others, Respondents
S. C. 413171—Application for Writs of Certiorari and Prohibition
Protection of Tenants (Special Provisions) Act, No. 28 of 1970—Inquiry held under-8. 5 by Commissioner—Scope of Commissioner’s jurisdiction—Status of a-person as tenant^Duration—Section 14—“ Person in occupation ”.
Where a tenant makes a complaint to the Commissioner of National Housingthat he has been •wrongfully ejected by his landlord otherwise than upon anorder of Court, and the Commissioner proceeds then to hold an inquiry underthe Protection of Tenants (Special Provisions) Act for the purpose of decidingwhether the tenant's complaint is true, the mere fact that there is a returnfrom the Fiscal that the tenant was ejected by him in consequence of a writissued by Court in favour of the landlord is not sufficient to preclude theCommissioner from inquiring into the genuineness and conclusive effect of theFiscal’s Certificate.
A person who has ceased to be a common law tenant in consequence of serviceof a notice to quit continues nevertheless to be a “ tenant ” for the purpose of'seeking relief from the Commissioner of National Housing, even when ajudgment entered for his ejectment is pending in appeal in the Supreme-Court.The law protects a tenant until the final determination of a Court of law thathe be ejected. Till such time, he is in lawful possession of the premiseswithin the definition of the term “ person in occupation ” in section 14 of"the Ordinance.
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WEERAMANTRY, J.—Weerakoon v. Fernando
.A- PPLICATION for Writs of Certiorari and Prohibition.
E. R. S. R. Coomaraswamy, with L. V. R. Fernando, G. ChaTcradaran,J). P. S. Gunasekera, M. B, Jayasinghe, P. B. Dillimuni and S. C. B.Watgampaya, for the petitioner.
Sunil de Silva, Crown Counsel, for the 1st and 2nd respondents.
H. W. Jayewardene, Q.G., with Gamini Dissanayake and D. P. Mendis,for the 3rd respondent.
Gur. adv. vult.
August 13, 1971. Weeramantby, J.—
This is an application by a landlord seeking to restrain the Commissionerof Housing from taking further proceedings in terms of the Tenants(Special Provisions) Act No. 28 of 1970, upon a complaint made to theCommissioner by the tenant.
The tenant’s complaint to the Commissioner was that he had beenforcibly ejected by the landlord otherwise than by due process of law,and in terms of the Act he prayed that the Commissioner of Housingshould hold an inquiry into the question whether he (the tenant) hadbeen wrongfully dispossessed.
For this purpose the tenant filed an affidavit in which he alleged thathe had been ejected and dispossessed by the landlord acting through hisbrother-in-law and about 20 to 25 thugs whose names had yet not beenascertained, and that loss and damage was caused to the personal effectsof the tenant and other occupants of the house. In this affidavit it wasfurther alleged that on the day in question, that is 17th June 1971,between 3 and 3.30 p.m. the persons referred to had forcibly removedthe gates and forced open the doors of the house and taken possession ofit. Complaint had been made to the Borella Police in respect of this thevery same day and the brother-in-law of the landlord had been arrestedthat night and held in custody.
The position of the petitioner on the other hand is that on 16th June1971, he had obtained judgment to eject the defendant from the premises,that on the 17th of June he had obtained writ for this purpose and thaton the same day the writ of ejectment was duly executed through theFiscal’s officer. In support of this contention the petitioner has producedthe report of the Fiscal to court wherein the Fiscal has stated that on17th June in the company of the plaintiff, a police sergeant and a policeconstable, he had proceeded to the premises in question for the executionof the writ of possession. He stated in his report to court that when hereached the premises the front gate was padlocked and the front doorwas closed. At the request of the plaintiff who informed liim that thedefendant was away and would return in a little while, the Fiscal’sofficer adjourned to the Police Station and returned to the premisessome time later in the company of Police officers. At that time the gatesand the front door of the premises were open. The tenant was also
WEERAMANTRY, J.—Weerakoon v. Fernando
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present. According to the petitioner the Fiscal’s officer duly handedover possession in these circumstances. It is the petitioner’s contentionthat inasmuch as there has been a due return to court by the Fiscal’sofficer stating that he has executed writ and handed over possession tothe plaintiff, this is not a matter in which the Commissioner is entitled toproceed to inquiry in terms of the Act. In brief the position of thepetitioner is that the ejectment of the defendant from the premises hasbeen an ejectment under an order of court and that under the act theCommissioner can only inquire into cases of ejectment otherwise thanupon an order of court.
It is on this basis that the petitioner has filed application in this courtasking that the Commissioner should be restrained from taking furtherproceedings in the manner contemplated by him pursuant to the complaintof the defendant tenant..
It seem to us that the mere fact that there is a return from the Fiscalshowing that there had been a delivery of possession in terms of the writissued by court, is not sufficient to preclude the Commissioner fromholding an inquiry under the relevant section, where the allegation ismade to him that there has been a dispossession otherwise than upon anorder of court. The truth or otherwise of the allegation so made isindeed a matter which the Commissioner would be called upon to deter-mine, but the fact that such an allegation has been made places upon theCommissioner the duty to hold an inquiry into the matter and determinewhether there has been a dispossession or not in the manner alleged. Nodoubt the fact that the plaintiff has in his favour a return from the Fiscalshowing that there has been an execution by due process of law is amatter which the Commissioner would take into account at the inquiry,but where these facts are disputed, the mere circumstance that such acertificate exists is not conclusive, nor does it in any way deprive theCommissioner of his jurisdiction to inquire into the matter.
These are all questions of fact on which we are not called upon in theseproceedings to express an opinion and whatever views we indicate inthe course of this order do not in any way affect the Commissioner’sundoubted jurisdiction to inquire into the merits himself.
The only other question for determination is the submission of learnedcounsel for the petitioner that the Commissioner is without jurisdictionto inquire into this matter unless the person dispossessed is a tenant orperson in possession, for those are the persons referred to in section 5 asbeing entitled to the very special relief afforded by the Act. In regard tothe person in possession there is also a definition clause in the Act whichstates that a person in possession means a person in lawful possession.
It is submitted on behalf of the petitioner that the 3rd respondent isnot a tenant on the basis that his status of tenant had been terminatedby the judgment entered by court. It is submitted also that he is not a-person in possession, on the basis that once judgment was entered bycourt, he was no longer a person in lawful possession of the premises.
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WEEIIAMANTRY, J.—Weerakoon v. Fernando
It is consequently submitted to us that the 3rd respondent, at the timehe made application to the Commissioner, lacked the necessary capacityto make such application.
These submissions do not however commend themselves to us.
In the first place, if a person’s status of tenant is brought to an end bya decree of a court of law granting ejectment to the landlord, still wherethe judgment of the court is itself under appeal, there is no final deter-mination of the rights of parties. It cannot therefore be said that ifthere had been a status of tenancy that status had been finally broughtto an end by the judgment. In this case a petition of appeal had beenfiled on the day subsequent to the date of judgment, that is on 17th June1971, the very date on which the ejectment is alleged to have taken place,and there is thus no final determination of this matter.
Moreover it would not be correct to state in any event that it is by thejudgment that the status of tenancy is determined, for a tenancy comesto an end not upon the judgment of the court but upon the determination,of the common law tenancy by a notice to quit. Thereafter the con-tractual relationship is at an end, and the creation of this result is notpostponed till a court grants a plaintiff a decree of ejectment.
If therefore one views the matter strictly legalistically, any tenantwhose tenancy has been determined by a notice terminating the tenancyis no longer a tenant strictly so-called.
Such a view would however render manifestly unworkable the statutoryprovisions which the legislature has specially enacted for the protection oftenants. No tenant under notice to quit would then be able to invoke•these provisions as a “ tenant ”, and the very object of the legislaturewould thereby be defeated. Conscious of the injustices that wouldTesult from such a strict interpretation, the Courts have in other statutoryprovisions as well, adopted an interpretation of the word “ tenant ” so asto achieve the object of the legislature in granting relief to the tenantfather than defeat such object by too technical an interpretation. Manyof the provisions of the Rent Restriction Act, which speak of a tenantare in fact provisions referring to a person who has once enjoyed thestatus of a tenant but has ceased to be a common law tenant whereuponthe law looks upon him as nevertheless a tenant in the eye of the statuteand calls him a statutory tenant in order that the Act may be renderedworkable. Reference to this matter would be found in a series ofjudgments of this court and I need only refer in this connection to thejudgment of Keuneman J. in Gooneratne v. Thelenis 1 wherein he held"that the word “ tenant ” in proviso B to section 8 (now section 13) ofthe Act must be taken to cover not only a tenant who is in fact so atthe time but also a person who had at one time occupied the position ofa tenant even though at the time of action the tenancy was no longer in^existence.
1 (1946) 47 N. L. R. 433.
Lewis Brown <Ss Go., Ltd. v. Periyapperuma
116
Similar interpretations had been given to the word “ tenant ” in^England under the Rent Restriction Acts and Banks L.J. in Remon v.■City of London Reed Property Company Limited1 has expressed the views•as early as 1921 that in all the Rent Restriction Acts the expression“ tenant ” has been used in a special or peculiar sense as including aperson who might be described as an ex-tenant and who had continued in-occupation without any legal right to do so.
Following this line of authority we would reject the first of the-contentions by which it is sought to remove the respondent “from thecircle of those entitled to seek relief from the Commissioner.
In regard to the second contention, that the respondent is no longer aperson in lawful possession, it becomes clear again that the lawprotects a tenant until the final determination of a court of law that hebe ejected. Till such time he is in lawful occupation of the premises. Ifis true he is not in occupation upon a contract of tenancy but his continued-occupation till final judgment is one which the law expressly protects■and is by no means an illegal occupation.
The second submission must also therefore fail.
It follows that no adequate ground has been made out before us forrestraining the Commissioner from taking further proceedings.
Having regard to these considerations we dismissed this applicationwith costs and how set out our reasons for doing so.
De Kretser, J.—I agree.
Application dismissed.