SAHEED v. GAIYOOM AND OTHERS

019-SLLR-SLLR-1998-1-SAHEED-v.-GAIYOOM-AND-OTHERS.pdf


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SAHEED
v.GAIYOOM AND OTHERS
SUPREME COURTAMERASINGHE, J.,
WIJETUNGA, J. ANDGUNAWARDANA, J.
S.C. APPEAL NO. 92/95
A. APPEAL NO. 464/89 (F)
C. COLOMBO NO. 5137/ZLOCTOBER 6TH, 1997NOVEMBER 11TH, 1997.
Vindicatory action – *Affected property’ under REPIA Regulations 1983 -Termination of tenancy over affected property – Title of the owner to have thetenant ejected.
The plaintiffs sued the defendant for a declaration of title to the premises in suitand ejectment of the defendant on the ground that the tenancy of the defendantterminated by the destruction of the building let to him during the civil riots in1983. The District Judge held that the building had been completely destroyed.In terms of Regulation 9 (1) of the Rehabilitation of Affected Property or Businessor Industries Regulations, 1983, such premises, being "affected property" withinthe ambit of Regulation 19, vested absolutely in the State. However, in order toenable the plaintiffs to assist rebuilding the premises, REPIA, the body empowered
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to rehabilitate affected properties, acting under Regulation 9 (2) declared thepremises to be not 'an affected property*. Issue 7 at the trial was whether thatdeclaration restored the premises to the plaintiffs.
Held:
Upon the destruction of the premises, the contract of tenancy came to an end,irrespective of the question whether it also came to an end by reason of thepremises being automatically vested in the State as an 'affected property'. Thedeclaration of REPIA under Regulation 9 (2) of the Regulations restored thepremises to the plaintiffs.
Cases referred to:
Giffry v. De Silva (1965) 69 NLR 281.
P. T. Samuel v. M. M. Mohideen (1968) 71 NLR 451.
Muzamil v. REPIA (1985) S.C. 2 Sri LR at 310, 322.
Rupasinghe v. Madatti (1994) 2 Sri LR 161.
Muzamil v. REPIA (1984) C.A 2 Sri LR 197.
APPEAL from the judgment of the Court of Appeal.
A. K. Premadasa, PC with Ikram Mohamed and C. E. de Silva for the defendant-appellant.
R. K W. Goonesekera with Luxman de Alwis and M. H. A. Raheem for theplaintiffs-respondents.
Cur. adv. vult.
December 17, 1997.
AMERASINGHE, J.
The plaintiffs (the respondents in the matter before me, hereinafterreferred to as the 'respondents') instituted action in the District Courtof Colombo on the 17th of December, 1985, for a declaration of titlein their favour to premises No. 44, 2nd Cross Street, Colombo 11(hereinafter referred to as the ’premises'), and for ejectment of thedefendant (the appellant in the matter before me, hereinafter referredto as the 'appellant1), on the ground that the tenancy of the appellanthad been terminated by the complete destruction of the building byfire during the Civil riots in July, 1983.
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The appellant, inter alia, pleaded that he was the lawful tenantof the premises, which were governed by the provisions of the RentAct, and that, although the premises had been slightly damaged, hehad continued to do business on the premises uninterruptedly, havingeffected repairs in 1983.
However, the respondents maintained that the premises were com-pletely destroyed and that, in the circumstances, the tenancy cameto an end by operation of law. According to the respondents, andthis is borne out by the document PI, on 22nd August 1993, theymade a declaration to the Rehabilitation of Property and IndustriesAuthority (REPIA) – a body established by the President by Regu-lations made under section 5 of the Public Security Ordinance andpublished in Gazette Extraordinary No. 257/3 of August 07, 1983 -stating that the premises had been "completely burnt down" and thatthey proposed to rebuild the property out of their own resources. Inresponse to that declaration, REPIA by its letter dated 1st September1983 (P2) declared the premises to be not "an affected property" forthe purposes of the Regulations, but required the plaintiffs to “obtainthe prior approval of the Urban Development Authority and/or the LocalAuthority before commencing any development activities or repairs".
The learned District Judge granted the reliefs prayed for by therespondents. With regard to the issue (Issue 7) whether the declarationby REPIA on 1st September 1983 had restored the premises to therespondents, the learned District Judge found that the declaration didhave that effect. In the Court of Appeal, the appellant submitted thatthe learned District Judge had erred in arriving at the conclusion thatthe premises were so destroyed that they were not available for theappellant to carry on his business at that place. In support of thatsubmission, it was pointed out that the learned District Judge hadplaced reliance on the inspection report of an officer of the UrbanDevelopment Authority who had visited the premises and had statedthat the premises were completely destroyed. However, the reportrefers to Nos. 44 and 46, Main Street, Colombo, whereas the premisesin suit was No. 44, 2nd Cross Street, Colombo. The Court of Appeal,considered this a matter of “grave importance", but did not acceptthe submission that "the learned District Judge's rejection of the[appellant's] evidence was coloured by [the officer's] evidence. "TheCourt of Appeal found other evidence in the record to sustain the
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finding of the learned District Judge that the premises had beencompletely destroyed, and accordingly dismissed the appeal.
Special leave to appeal from that decision was granted by theSupreme Court on the following questions:
Was issue No. 7 raised in the course of the proceedings of18.6.86 answered correctly by the learned District Judge?
Are the regulations, namely the Rehabilitation of AffectedProperty or Business or Industries Regulations published inthe Government Gazette Extraordinary 257/3 dated 7.7.1983and the provisions of Act No. 29 of 1987 relevant to theseproceedings?
Mr. Premadasa submitted that issue No. 7 was not correctlyanswered by the learned District Judge. His position was as follows:When premises were "affected property" within the meaning ofthe regulations, then, in terms of regulation 9 (1) such premises vestedautomatically in the State. The premises in suit were "affected prop-erty", since regulation 19 defines "affected property" to mean "anyimmovable property damaged or destroyed on or after July 24, 1983,by riot or civil commotion and includes any immovable property usedfor the purposes of an affected business or industry". The premisesin suit were damaged and they, therefore, vested in the State. If theywere to be divested, then, in terms of regulation 14 (1), REPIA shouldhave divested the premises by Order published in the Gazette. Thereis no such Order. The letter issued by REPIA on 1 September 1983could not have restored the premises to the plaintiffs, and thereforethe answer to issue 7, should have been in the negative; consequently,the learned District Judge's finding that the declaration by REPIA on1 September 1983 had the effect of restoring the premises to therespondents was erroneous. And so, the respondents' claim for adeclaration of title should have been rejected.
Mr. Goonesekere submitted that issue No. 7 was correctlyanswered by the learned District Judge. His position was as follows:REPIA was established to assist in the rehabilitation of damagedproperty. Admittedly, in order to facilitate their task, 'affected property'was vested in the State by law. Entrusting the task of rehabilitationto REPIA, however, did not mean that the Government or REPIA took
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on the entire responsibility for doing everything necessary to achievethat end: where, as in this case, a person who was the owner ofpremises but for the vesting of such premises by operation of law,indicated that he or she was willing to undertake the task of rebuildingaffected premises, REPIA welcomed the offer, and permitted rebuild-ing, subject to the person conforming with the requirements of theUrban Development Authority or the Local Authority. However, sinceaffected premises vest in the State, in order to enable a personauthorized to assist REPIA to perform its functions, the property couldbe restored to such person either by a divesting order made underregulation 14; or by a declaration, as was made in this case, by REPIAthat the premises were not “affected premises". The effect of sucha declaration would be that, although by operation of law the premisesmight otherwise have been regarded as vested in the State, yet inview of the declaration by REPIA, the premises in effect are restoredto the former owner. That was the finding of the learned District Judgewith regard to “issue 7" and it is a finding that was correct.
Mr. Premadasa referred to section 11 (1) (a) of the Act of 1987which states: “Where any affected property consists of premises towhich the Rent Act No. 7 of 1972 . . . applies, then any person whowas the tenant of such premises on the day immediately precedingthe relevant date shall be entitled to enter upon and occupy suchpremises and it shall be the duty of the landlord to permit such tenantto enter upon and occupy such premises". I am inclined to agree withMr. Premadasa's submission that section 11 (1) (a) was intended toensure that landlords would not be in a position to eject tenants merelybecause there was any damage whatsoever, however slight, to thepremises. However, in my view, the protection afforded by section11 (1) (a) assumes that the tenancy agreement was in force: Wherepremises are destroyed without the fault of the landlord or the tenant,as in the matter before us, the contract comes to an end, whetherthe tenancy was one that fell within the operation of the Rent Actor otherwise: Giffry v. De Silva0> total destruction is unnecessary; forthe test is whether the premises are so damaged that they cannotbe used for the purposes for which they were leased: P. T. Samuelv. M. M. Mohideen®. Although the appellant said that the premiseswere only 'slightly damaged' and that the premises continued to beused, yet the learned District Judge and the Court of Appeal foundthat the premises had been rendered uninhabitable by the damagethey had suffered. There are no reasons why I should not accept
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the correctness of the conclusion reached by the two Courts. In thecircumstances, in my view, the contract came to an end, irrespectiveof the question whether it also came to an end by reason of thepremises being automatically vested in the State as an 'affectedproperty'.
There is no dispute that the premises were damaged: the disputeis with regard to the extent of the damage. In the circumstances, thepremises were, in my view, “affected property" within the meaningof regulation 19. As such, the premises automatically vested in theState, for regulation 9 (1) states: “Every affected property . . . shall. . . vest absolutely in the State free from all encumbrances".Consequently, the tenancy agreement would have been automaticallyextinguished: Muzamil v. REPIA® at 322.
The tenancy agreement could have been revived by a divestingorder published in the Gazette, for regulation 14 (2) (b) states thatwhere there is such an order it "shall have the effect of reviving anyarrangement, agreement or other notarially executed instrument in andover that property . . . subsisting on the date on which such property. . . vested in the State". However, there is no divesting order in thematter before me. The tenancy was at an end and, since the appellant,nevertheless, insisted on remaining on the premises, steps were takenin the District Court to eject him from the premises. In my view, theappellant had no business to be on the premises after his tenancyagreement had come to an end, and so, order was, in my view, rightlymade by the District Court that the appellant should be ejected fromthe premises. Indeed, section 10 (1) of the Rehabilitation of Persons,Properties and Industries Authority Act, No. 29 of 1987 states: "Anyperson who without lawful authority, proof whereof shall be on suchperson, enters or occupies any affected property . . . shall be guiltyof an offence . . ."
The steps to eject the appellant were taken by the persons whohad, prior to the vesting of the premises in the State under and interms of regulation 9 (1), been the owners of the premises. It wasnot suggested in the District Court, the Court of Appeal, or in theSupreme Court, that owners whose properties were vested in REPIA,under and in terms of regulation 9 (1), were stripped of their ownershipfor all time, unconditionally: And, in my view, rightly so; for thevesting process was manifestly for the limited purpose of facilitating
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rehabilitation: Surely, it was not an underhand device for the Stateacquiring properties? Why should owners of property be penalizedbecause their properties had been damaged by criminals? Civilizedsocieties attempt, within their means, to compensate victims of crime,and assist to rehabilitate them – and this was manifestly the intentionof the Executive, as expressed in the Emergency (Rehabilitation ofAffected Property, Business or Industries) Regulations No. 1 of 1983,and that of the legislature, as expressed in the Rehabilitation ofPersons, Properties and Industries Authority Act, No. 29 of 1987. Therewas no intention to confiscate the properties of owners whoseproperties were destroyed and to place them in the tragic positionof the well-known character who fell off a tree, only to be goredby an unsympathetic bull. They remained owners, except that forfacilitating the process of rehabilitation, ownership was vested in theState.
In my view, in carrying out its function of repairing and restoringaffected properties, REPIA is not restricted in any way to using onlythe resources made available by the Government for the achievementof its objectives. Indeed regulation 6 (b) contemplates financialassistance for the work of REPIA from "any source whatever, whetherin or outside Sri Lanka". When a person who owned a property, butwas by law divested of it, because it was "affected property", under-takes to assist REPIA by rebuilding the damaged property, I am ofthe view that REPIA may make reasonable decisions with regard tosuch an offer and enter into reasonable'arrangements, and adoptreasonable procedures it deems appropriate for giving effect to itsdecisions. In my view, it may, as it did in this case, issue a declarationunder regulation 9 (2) that the premises are not "affected premises",not because the premises were in fact undamaged, but deemed tobe undamaged, in order to restore the property to the de facto ownerto enable the de facto owner to rebuild a damaged building. Sucha declaration does not result in divesting: Rupasinghe v. Madatti(4)at 170. However, REPIA is not, in my view, obliged to first divestthe property and make the person who offers to rebuild the premises,technically the de jure owner, before it does these things: cf. Muzamilv. REPIA (supra), at p. 324 affirming the decision of the Court ofAppeal Muzamil v. REPIA(S>.
REPIA knew what the position was, namely, that legally the premiseswere, “affected property". The respondents' position was set out in thedeclaration to REPIA made by Mohamed Salihu Ahamed Abdul Gaiyoom
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(the 1st plaintiff-respondent) on the 22nd of August 1983: "13. Doyou propose to repair the affected property out of your own resources?:Yes. The property has been completely burnt, down and we have torebuild the property at our own expense." Having accepted the offerof the de facto owners to rebuild the premises, REPIA restored thepremises to the respondents so as to enable them to assist it in thedischarge of its functions. And, in my view, the learned District Judgewas quite right in answering issue 7 by holding that the declarationof REPIA on the 1st of September, 1983, restored the destroyedpremises to the [respondents]. With regard to the second groundon which leave to appeal was granted, although learned counselfor the appellant did say: "Forget the regulations", as we have seen,both the Emergency (Rehabilitation of Affected Property, Business orIndustries) Regulations No. 1 of 1983 and the Rehabilitation of Persons,Properties and Industries Authority Act, No. 29 of 1987 are "relevantto these proceedings".
For the reasons stated in my judgment, I dismiss the appeal withcosts.
WIJETUNGA, J. – I agree.
GUNAWARDANA, J. – I agree.
Appeal dismissed.