RAZAQH v. SURAWEERA AND OTHERS

016-SLLR-SLLR-2002-3-RAZAQH-v.-SURAWEERA-AND-OTHERS.pdf


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Razaqh v. Suraweera and Others
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RAZAQH
v.SURAWEERA AND OTHERS
COURT OF APPEALJAYASINGHE, J. ANDEDIRISURIYA, J.
CA NO. 946/98BR/CHP NO. .1980FEBRUARY 12, 2002
Ceiling on Housing Property Law, No. 1 of 1973, sections 2 (1), 8 (2), 8 (3),8 (5), 11, 17 and 39 – Vesting by operation of law – Owner not opting to retainownership – Are they surplus houses vesting by operation of law? — Is therea right of appeal to the Board of Review?
The petitioner was the owner of six houses. After Law, No. 1 of 1973 came intooperation, the petitioner made a declaration under the above Law stating that,she did not propose to retain ownership of the said house. These six houseswere thus vested in the Commissioner. Thereafter, in 1978 upon representationmade by the petitioner to the Commissioner, the petitioner was informed that fourhouses had not been vested. One of the tenants applied to the Court of Appealchallenging the said decision of the Commissioner. The Court of Appeal directedthe Commissioner to hold an inquiry, before divesting.
At the inquiry, the petitioner's (estranged) husband, consented to the vesting ofthe. premises. The Commissioner cancelled the earlier letter of divesting, andrestored the earlier vesting order. The petitioner appealed against this order tothe Board of Review. The Board of Review dismissed the appeal on technicalgrounds. The writ of certiorari sought against that order made by the Board ofReview was dismissed by the Court of Appeal; however, the Supreme Court, setaside the order and directed the Board of Review to hear and determine theappellant's appeal.
At the Board of Review it was contended by the respondent tenant, that theorder of the Commissioner Is not a decision or a determination after inquiry andtherefore there is no right of appeal to the Board of Review, which contentionwas upheld.
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Held :
S. 8 ( 2 ) and S. 8 (3) have to be read with S. 8 (5) of Law, No. 16of 1973.
S. 8 (5) states that any house the ownership of which is not proposedto be retained in terms of any declaration made … is referred to asa surplus house. The houses vested in the Commissioner in this case aresurplus houses.
Thus, vesting is by operation of law and it is not a decision or adetermination made by the Commissioner after inquiry. Therefore, there isno right of appeal to the Board of Review.
APPLICATION for a writ of certiorari.
Cases referred to :
(1) Abeysekera v. Wijetunga – (1982) 2 SRI LR 737.
P. A. D. Samarasekera, PC with K. Gunawardena for petitioner.
P. Nagendra, PC with L. W. Pannila for 6th respondent.
M. A. M. Marleen, PC with M. M. M. Munzir for 5th and 7th respondents.
Anil Gunaratne, Deputy Solicitor-General for 8th respondent.
Cur. adv. vult.
May 17, 2002
EDIRISURIYA, J.
The petitioner in this case was the owner of six houses bearingassessment Nos. 27/4, 27/11,27/12,27/14,27/15 and 27/16, JayanthaWeerasekera Mawatha, Colombo 10.
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After the Ceiling on Housing Property Law, No. 1 of 1973 cameinto operation the petitioner made declarations under the above Lawstating that she did not propose to retain ownership of the said houses.
The Commissioner of National Housing by his letter dated25. 03. 1974 (A4) informed the petitioner that all six houses vestedin him.
Upon representations made by the petitioner the Commissioner byhis letter dated 13. 11. 1978 informed the petitioner that premisesbearing Nos. 27/11, 27/12, 27/16 and 27/4 had not been vested (A5).
Thereafter, the tenant of No. 27/12, W. A. Perera applied to theCourt of Appeal for a writ of certiorari challenging the decision of theCommissioner. The Court of Appeal directed the Commissioner to holdan inter partes inquiry before divesting the premises.
Thereupon, the Commissioner held a fresh inquiry. The petitionerstates that she was abroad and was receiving medical treatment inIndia. She states she was estranged from her husband; that at theabove inquiry her husband without her express or implied authorityhad consented to the vesting of the said premises. The Commissionerby his letter dated 06. 08. 1984 [A6 (a)] cancelled his earlier letterof 13. 11. 1978 (A5) and restored his earlier vesting order dated25. 03. 1974 (A4). In response to the letters sent by the petitionerthe Commissioner by his letter dated 05. 02. 1986 (A7) informed herthat he could not divest the premises. Thereafter, she lodged apetition of appeal dated 05. 03. 1986 to the Board of Review (A8).
The Board of Review dismissed the appeal on 03. 10.1987 statingthat the appellant had been negligent in preparing the petition of appealand the Board could not help her to extricate herself from difficultyto which she had fallen as a result of her own negligence. The Boardof Review was also of the view that the appealable period set outin section 39 of the Ceiling on Housing Property Law has long
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expired and in that situation the Board had to refuse the applicationto amend the caption by the substitution of C. M. M. Samoon orS. M. Azhar in place of S. M. Samoon as the 3rd respondent.
Thereafter, the petitioner applied to the Court of Appeal for a writof certiorari to quash the order dated 03. 10. 1987 of the Board ofReview and for a writ of mandamus directing the Board of Review
to substitute S. N. Azar in place of the original 3rd respondent andto hear the petitioner’s appeal.
The Court of Appeal dismissed the application stating that theappeal to the Board of Review was long past the one-month periodallowed for appeal and that material facts have not been disclosedby the petitioner.
Thereafter, the petitioner appealed to the Supreme Court from theorder of the Court of Appeal.
Delivering the Supreme Court judgment, Fernando, J. the other twojudges agreeing said the Court of Appeal was in error in taking theview that the Board of Review has decided that the appeal was outof time. He further said the facts which in the opinion of the Courtof Appeal the appellant improperly failed to disclose were not in anyway relevant to the application made by the appellant to challengethe order of the Board of Review in regard to substitution and theywere relevant to the question whether the appeal was out of timebut since that was not the matter really in dispute their non-disclosurewas of no consequence.
Since the respondents had submitted to the Supreme Court thatthey did not object to the substitution it was thought that there was
no reason to direct the Board of Review to go into that question $gain..
Accordingly, the Supreme Court allowed the appeal and set asidethe order of the Court of Appeal and substituted therefor,
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an order in the nature of a writ of certiorari quashing theorder dated 03. 10. 1987 made by the Board of Review.
an order in the nature of a writ of mandamus directingthe Board of Review:
to substitute 6th respondent (M. S. M. Azhar alsoknown as S. N. Azar) in place of the original 3rdrespondent named in the petition of appeal dated05. 03. 1986; and
to hear and determine the appeal dated 05. 03.1986.
It was urged before the Board of Review that the order of theCommissioner is not a decision or a determination after a properinquiry and therefore there is no right of appeal to the Board of Review.Following the decision of the Supreme Court case Abeysekera v.Wijetunga(1) the Board of Review held that it does not have jurisdictionto grant the relief prayed for by the appellant and dismissed the appeal.Hence, this application to this Court.
The petitioner has prayed that a mandate in the nature of a writof certiorari quashing the order of the Board of Review be issuedor alternatively to direct the Commissioner of National Housing by writof mandamus to divest the 4 houses vested in him. He has also prayedthat vesting of 4 houses in the Commissioner be quashed.
The learned counsel for the petitioner Mr. Samarasekara, PCcontended that vesting of property in terms of the provisions of theCeilling on Housing Property Law could be quashed in view of thefinding of the Supreme Court in case Abeysekara v. Wijetunga andOthers (supra) where His Lordship the Chief Justice Neville Samarakoonheld that a property which the Commissioner had declared to havevested in him was not a house but a business premises and quashed
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the order of the Board of Review. His Lordship the Chief Justice furtherheld that the contention of the Commissioner that the property wasvested in him has no legal consequence.
It seems to me that this finding relates to the nature of the subject-matter and therefore has no application to the facts of the instantcase. It is not in dispute that the relevant premises are houses withinthe meaning of the Ceiling on Housing Property Law. It should benoted that in the same case the Supreme Court held that in theabsence of a decision or a determination made under the provisions «»of the law there was no right of appeal to the Board of Review.
The learned counsel for the petitioner further contended that therefusal of the Commissioner to exercise his powers under section 17(A) was a decision that the Board had the jurisdiction to set aside.
The learned counsel for the 5th and 7th respondents Mr. Marleen,
PC and the learned counsel for the 6th respondent Mr. P. Nagendran,
PC contended that the petitioner has failed to appeal to the Boardof Review against the Commissioner’s decision refusing to divest thepremises.
It is significant that the relief the petitioner has prayed for in the 110appeal (A8) is the decision of the Commissioner to vest the premisesin him.
In the six declarations compendiously marked A1 the petitioner asowner declared that she did not propose to retain the said six houses.
Mr. Marleen, PC contended that when a declarant furnishes a dec-laration in terms of sections 8 (2) and (3) of the Ceiling on HousingProperty Law stating that the declarant does not propose to retainany house such a house becomes a "a surplus house” in terms ofsection 8 (5) of the Ceiling on Housing Property Law.
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Mr. Samarasekara, PC the learned counsel for the petitioner 120submitted that vesting of houses takes place under section 11 of theCeiling on Housing Property Law. This section reads thus: “any houseowned by any person in excess of the permitted number of houses. . . vest in the Commissioner”. Mr. Samarasekara further submittedthat the permitted number has to be gathered from section 2 (1).
In this case according to him two houses in respect of two dependentchildren and two more are permitted. What vests in the Commissionerunder section 11 in this case are only two houses.
Having regard to the circumstances of this case I am of the opinionthat sections 8 (2) and 8 (3) have to be read with section 8 (5) of 130the said Law.
Section 8 (5) states “any house the ownership of which is notproposed to be retained in terms of any declaration made under thissection … is hereinafter referred to as a surplus house".
Therefore, I am of view that houses vested in the Commissionerin this case are surplus houses.
In the circumstances, I hold that vesting of premises is by operationof law and that it is not a decision or a determination made by theCommissioner after a proper inquiry. Therefore, the petitioner has noright of appeal to the' Board of Review in terms of section 39 of the 140Ceiling on Housing Property Law.
The petitioner has also prayed for a writ of mandamus to directthe Commissioner to divest the four houses, which have vested inhim.
The learned counsel for the 5th and 7th respondentscontended that vesting of the premises took place as far back as10. 04. 1973 (A1) but the petitioner made representations tothe Commissioner to divest the houses five years after the premisesvested in the Commissioner.
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He further contended that apart from five years delay in making isorepresentations to the Commissioner for the divesting of four housesvested in the Commissioner there is also a delay of one year andsix months in coming to court in invoking the writ jurisdiction of thecourt against the order of the Commissioner refusing to divest thehouses (w'deA10 Court of Appeal application No. 237/86) without firsthaving appealed to the Board of Review in terms of section 39.
He contended that on the ground of unreasonable delay too thepetitioner’s application should be refused. Viewed in this light it seemsthat there had been unreasonable delay on the part of the petitionerin invoking the jurisdiction of this Court.160
The learned counsel for the petitioner contended that the hearingof the appeal to the Board of Review was in terms of the directionof the Supreme Court by its judgment dated 10. 06. 1992 (A12) andtherefore, the Board of Review should have determined the petitioner’sappeal on merits without disposing of it upon a preliminary objection.
It is clear that the Supreme Court has not directed the Board ofReview to hear and determine the appeal only on the merits. It ismy view that the appeal could be heard and determined on apreliminary issue as well. Accordingly, I disallow the application.
NO COStS.’70
JAYASINGHE, J. – I agree.
Application allowed.