058-SLLR-SLLR-2004-V-3-SIVAPRAGASAM-AND-OTHERS-v.-PERIMPANAYAGAM.pdf
390
Sri Lanka Law Reports
[2004] 3 Sri L.R
SIVAPRAGASAM AND OTHERSvPERIMPANAYAGAMCOURT OF APPEALRAJA FERNANDO, J.
AMARATUNGA, J.
CA (PHC) 2/97PHC BATTICALOA 231/96MC BATTICALOA 27555/LG/96JANUARY 10, 2001JUNE 13, 2001
Urban Development Authority Act, No. 41 of 1978 – Delegation of authority toMayor/Municipal Commissioner to attend to all matters pertaining to planning -Does this extend to demolition of unauthorised structures – Could the Mayor makean application fora demolition order? – Occupation of an unauthorised structure asa tenant -Is he a protected tenant under the Rent Act?
The Mayor of Batticaloa instituted proceedings under Section 29A of the UDA Actand sought an order for the demolition of the premises in question on the basis thatthe premises were unauthorised premises against the owner of the premises. TheMagistrate's Court made order to demolish the premises. The petitioners claimingto be tenants filed papers in the Magistrate's Court which were rejected by theMagistrate. The revision application filed in the High Court was dismissed.
It was contended that, the Mayor did not have any lawful authority to make anapplication for the demolition under the UDA Act, as delegating of functions relatingto planning activities did not extend to the demolition of unauthorised structures andaccordingly the Mayor did not have the authority to make an application for amandatory demolition order. It was further contended that, the petitioner is a tenant,and is protected by the provisions of the Rent Act.
Held:
Functions of planning would include the taking of steps to enforce planningprocedure.
Occupation of the premises by the appellants being unlawful and illegal,Rent Act cannot be used to cover up or rectify such illegality.
APPEAL from an order of the Provincial High Court of Batticaloa..
Cases referred to:
Piyasena v Wijesooriya CA 119/90 CAM 4.11.1994.
Malwattagev Dharmawardhane 1991 2 Sri LR 141.
CA Sivapragasam and others v Perumpanayagam (Amaratunga, J.)391
S. Mahenthiran PC with Pushpha Narendra for appellant.
S. Sivarasa PC with S. Mandeleswaran for respondent.
May 16, 2003
GAMINI AMARATUNGA, J.This is an appeal from an order made by the learned High Court Judgeof Batticaloa in the exercise of the revisionary jurisdiction of the ProvincialHigh Court under Article 154 P (3)(b) of the Constitution. The revisionapplication to the High Court was against an order made by theMagistrate's Court of Batticaloa in an application filed under the provisionsof the Urban Development Authority Act No. 41 of 1978 as amended.
The original respondent to this appeal, the Mayor of Batticaloainstituted proceeding under Section 29(a) of the Urban DevelopmentAuthority Act No. 41 of 1978 as amended by Act No. 4 of 1982 in theMagistrate's Court of Batticaloa against one Mrs. Navaratnarajah, theowner of premises No. 69, 73 and 74A, Main Street, Batticaloa for anorder for the demolition of the said premises on the basis that the saidpremises were unauthorised structures. When the case was called on
the said Ms. Navaratnarajah appeared in the Magistrate'sCourt and undertook to demolish the said premises and accordingly thelearned Magistrate made order directing her to demolish the saidpremises within one month.
Thereafter the present appellants, claiming to be the lawful tenants ofthe said premises filed papers in the Magistrate's Court to have an inquiryregarding the Mayor's application. However, the learned Magistraterejected the applications of the present appellants. They thereafter filed arevision application in the High Court of Batticaloa and the learned HighCourt Judge after hearing the revision application made order dismissingthe revision application. This appeal is against the order of the learnedHigh Court Judge.
In deciding the revision application the learned High Court Judge hasaddressed his mind to two main questions. The first question was whetherthe premises in question were unauthorised structures and if so whetherthe present appellants have any legal right to claim tenancy rights inrespect of such premises and the protection afforded to tenants under theprovisions of the Rent Act and the Protection of Tenants (SpecialProvisions) Act. The second question was whether the respondent Mayorhad any lawful authority to make an application for a demolition orderunder the provisions of the Urban Development Authority Act No. 41 of
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1978 as amended. If the answer to the second question is in the negative,the 1 st question does not arise at all. The matter ends there. It is thereforenecessary to consider the 2nd question first.
The letter delegating the authority to the Mayor/MunicipalCommissioner to attend to all matters pertaining to planning anddevelopment regulation functions of the Urban Development Authorityand all incidental matters thereto has been submitted to Court by therespondent marked R1. The argument adduced on behalf of the presentappellants was that the delegation of functions relating to planningactivities did not extend to the demolition of authorised structures andaccordingly the Mayor did not have the authority to make an applicationfor a mandatory demolition order. The learned High Court Judge has heldthat the delegation of the functions of planning would include the takingof steps to enforce planning procedure and accordingly the Mayor had theauthority to institute proceedings against an owner of an unauthorisedbuilding for an order to demolish such building. The learned High CourtJudge's conclusion finds support from the decision of this Court inPiyasena v Wijesooriyafi), where it was held that functions of planningwould include the taking of steps to enforce planning procedure.
The next question is whether the applicants are lawful tenants of thepremises in question entitled to the protections provided by the Rent Act.The learned High Court Judge has carefully considered the legal status ofa person who is in occupation of an unauthorised structure as tenant1. Inthis case the owner of premises Mrs. Navaratnarajah has admitted that thepremises in question was an unauthorised structure. No evidence to thecontrary was placed before Court by the Appellants. The learned HighCourt Judge has followed the decision of the Supreme Court inMalwattage v DharmawardanaP) where it was held that an illegality cannot'give rise to any right capable of being protected under the Rent Act. Thelearned High Court Judge has come to the finding that the occupation ofthe premises by the appellants being unlawful and illegal, the Rent Actcannot be used to cover up or rectify such illegality. Accordingly thelearned Judge has decided that the order made by the learned Magistratewas correct and that the revision application should be dismissed. There isnothing wrong in this order and the appellants appeal is without merit.Accordingly I affirm the orders of the High Court and the Magistrate's Courtand dismiss this appeal with costs fixed at Rs. 7500/-.
RAJA FERNANDO, J. – I agree.
Appeal dismissed.