Sirisena v. Doreen de Silva and Others
v.DOREEN DE SILVA AND OTHERS
SUPREME COURTG.P.S. DE SILVA, CJ.,
WADUGODAPITIYA, J„ ANDGUNASEKERA, J.
S.C. APPEAL NO. 190/96C.A. NO. 563/88C.H./1/5/1423/26JULY 10, 1988
Writ of Certiorari – Ceiling on Housing Property Law – Tenant's application topurchase the house let to him – Sections 13 and 17 (1) of the Law – Invalidvesting order – Board of Review Order to implement the invalid order.
Pursuant to an application by the 4th respondent tenant under S. 13 of the Ceilingon Housing Property Law against the then owner of the house let to him topurchase it and a recommendation by the Commissioner for .National Housing.
Sri Lanka Law Reports
 3 Sri LR.
the Minister signed an order on 10.09.1976 for vesting the house. However, thatOrder was not published in the Gazette as required by S. 17 (1). Hence therewas no valid vesting Order. No steps were taken on that order when in November,1982 the Commissioner summoned the appellant who was now the owner of thepremises for an inquiry and decided to recommend the vesting of the house. Theappellant who was informed of that decision by a communication dated 16.12.83appealed against that decision to the Board of Review in terms of S. 39 of thelaw. The Board of Review dismissed the appeal, affirmed the Commissioner'sdecision made in 1976 and directed the Commissioner to take steps on the“vesting" made on 10.09.1976.
In making its decision the Board of Review acted without jurisdiction firstly, becausethe appeal was not against the Commissioner's decision made in 1976, but againstthe decision communicated to the appellant on 16.12.83; secondly, The Boardhad no jurisdiction to direct the Commissioner to act on the “Vesting made in10.9.76“ for the reason that there was no valid vesting order made in terms ofs. 17 (1) of the Law.
APPEAL from the judgment of the Court of Appeal.
Sanjeewa Jayawardena for the appellant.
K. Premadasa, P.C, with C. E. de Silva for the 4th respondent.
Cur. adv. vult.
July 31, 1998.
G. P. S. DE SILVA, CJ.e
The 4th respondent was the tenant of premises No. 473, LiyanageMawatha, Nawala. She made an application to the 5th respondent(Commissioner of National Housing) in terms of section 9 and/orsection 13 of the Ceiling on Housing Property Law (“the law") topurchase the premises. The respondent to the application was oneM. W. Perera who was the owner and landlord of the premises.
The 5th respondent held an inquiry and “recommended" to theMinister on 10.9.76 to “vest" the premises. The Minister signed the“order" on 12.10.76. However, it is very relevant and important to notethat the "order" was NOT published in the Gazette as expresslyrequired by the provisions of section 17 (1) of the law. Thus it ismanifest that there was no valid order “vesting" the premises in the
SC Sirisena v. Doreen de Silva and Others (G. P. S. de Silva, CJ.) 201
5th respondent. No rights could therefore flow from the purported"order" signed by the Minister on 12.10.76. Moreover, the “recommen-dation" of the 5th respondent to the Minister to "vest" the premiseswas not communicated to the owner and landlord M. W. Perera.(Caderamanpulle v. Pieter Keuneman, SC Appeal No. 15/79, SCMof 19.9.80).
The 5th respondent does not appear to have taken any steps interms of the Law until November 1982 when the present petitioner,who was now the owner and landlord of the premises, received anotice stating that an inquiry will be held into the application madeby the 4th respondent in terms of section 13 of the law to purchasethe premises. Both the petitioner and the 4th respondent participatedat the inquiry. At the conclusion of the inquiry, by a communicationdated 16.12.83 (marked P5) the 5th respondent informed the petitionerof his decision to "recommend" to the Minister to "vest" the premises.
The petitioner appealed to the Board of Review in terms of section39 of the law against the decision of the 5th respondent communicatedto him by P5. The Board of Review by its order dated 15.3.88 (markedP7) dismissed the appeal of the petitioner. The petitioner moved theCourt of Appeal by way of certiorari to quash both P5 and P7. TheCourt of Appeal dismissed the petitioner's application and hence thepresent appeal to this court.
This appeal turns on the legality of the order of the Board of Review(P7). The Board of Review having referred to the first inquiry heldin 1976, the "recommendation" to vest made by the 5th respondenton 10.9.76, and the "Order" signed by the Minister on 12.10.76,expressed its findings in respect of the second inquiry in 1983 inthe following terms: "When a Commissioner makes a decision thatdecision stands until it is reversed in appeal by the Board of Review… In this instance the Commissioner having made an Order to veston 8.9.76 (sic) and thereafter having obtained the Minister's approvalfor the vesting has held a second inquiry after which he has cometo the same finding. In holding the second inquiry in the year 1983the Commissioner has manifestly acted without jurisdiction. Thereforethe decision made after the inquiry in 1983 and conveyed by theCommissioner's letter dated 16.12.83 (i.e. P5) has also been madewithout jurisdiction". On this finding, as submitted by Mr. Jayawardenafor the petitioner-appellant, the Board of Review should have set aside
Sri Lanka Law Reports
 3 Sri LR.
P5 and allowed the appeal. Instead, the Board of Review proceededto hold that “the Commissioner's decision made on 10.9.76 is thedecision in respect of this application. As the Minister has signedthe Vesting Order the Commissioner is directed to take the necessarysteps on the basis of the vesting made on 10.9.76. The appeal isdismissed and the Commissioner's decision made on 10.9.76 isaffirmed".
In so holding the Board of Review acted without jurisdiction fortwo reasons. First, the petitioner's appeal was not against the Com-missioner's decision made on 10.9.76 but against the decision of theCommissioner communicated to the petitioner on 16.12.83, by P5. Thevalidity of the decision made on 10.9.76 was never a matter in issuebefore the Board of Review at any time. Secondly, the Board ofReview, had no jurisdiction to direct the Commissioner to act on thebasis of the "vesting made on 10.9.76" for the reason that there wasno valid "vesting Order" made in terms of section 17 (1) of the lawin 1976. It is also to be noted that a period of 12 years had passedsince the Minister signed the purported “Order".
The Court of Appeal fell into the same error as the Board of Reviewwhen it took the view that". . . the Board could not ignore the earlierrecommendation of the 5th respondent to vest the premises and thefollow-up action of the Minister in signing the vesting order. The Boardwas acting within its jurisdiction in directing what action the 5threspondent was to take on the earlier order". As I have pointed outabove, no rights could flow from "the earlier order" which had no forceor avail in law. The CoGrt of Appeal too was in grave error whenit held that the Board of Review "was acting within its jurisdiction".
For these reasons, the appeal is allowed, the judgment of the Courtof Appeal is set aside and I direct that a writ of certiorari do issueto quash P5 and P7. I make no order as to costs of appeal.
WADUGODAPITIYA, J. – I agree.
GUNASEKERA, J. – I agree.
SIRISENA v. DOREEN DE SILVA AND OTHERS