012-SLLR-SLLR-2006-V-1-SOBHANI-vs.-CHAIRMAN-URBAN-COUNCIL-CHILAW-AND-OTHERS.pdf
CA
Sobhani vs. Chairman, Urban Council, Chilaw and Others
(Sriskandarajah, J.)
79
SOBHANIVSCHAIRMAN, URBAN COUNCIL, CHILAW AND OTHERSCOURT OF APPEALIMAM, J. ANDSRISKANDARAJAH, JCA 1825/2003 (WRIT)
4TH JULY, 2005
Writ of certiorari – Urban Development Authority Act, sections 3, 28A and 3(A)- Amended by Act, No. 4 of 1982, section 8(J) – Building plan tendered forapproval – Should he be the owner or should he have got permission from theowner to build ? – Is there a duty to consider title ?
The respondent refused to consider the application of the petitioner for abuilding permit as the petitioner is not the owner of the land nor has he gotpermission from the owner.
The petitioner contends that there is no duty cast on the respondent to look intothe title and the refusal has no legal or valid basis.
Held:
(i) The Urban Development Authority (UDA) has considered it necessaryto have a prima facie documentation to prove the ownership of the landor the consent of the owner of the land to grant building permits todevelop a particular land. This requirement is embodied in the buildingpermit application form.
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(ii) It is not an irrelevant or unreasonable requirement in consideringdevelopment activities in a land. Act, No. 4 of 1982 empowers the UDAto grant a building permit subject to such terms and conditions theAuthority may consider necessary.
APPLICATION for a writ of certiorari.
Sunil Cooray with C. Wijesuriya for petitioner.
Lakshman Perera for 1st and 2nd respondents.
Yuresha de Silva, State Course for 3rd respondent.
04th August, 2005,
SRISKANDARAJAH. JThe Petitioner in this application has sought an order in the nature ofwrit of certiorari to quash the decision made by the 1 st Respondent refusingto consider the building application of the Petitioner and a mandamus tocommand the 1 st Respondent to entertain the application of the Petitionerand proceed according to law.
The Petitioner submitted that she came into occupation of the premisesbearing asessment No. 94, Bridge Street, Chilaw in 1990 and carried onher business initially as a “Cool Spot” and later a textile shop after puttingup a temporary structure in the said premises. The Petitioner subsequentlydeveloped the said premises and constructed the building in the saidpremises up to the condition, as it stands today. From the year 1999 shesaid that she had been paying rates to the Urban Council to date and alsopaying revenue license tax for carrying on a trade at the said premises.The Petitioner further submitted that she received summons on 07.12.2001for an action filed in terms of section 28A 3(a) of the Urban DevelopmentAuthority Act as amended. This action was filed by the 1st Respondenton the basis that the building standing on the said premises is anunauthorized building. The Petitioner submitted that pending the aforesaid action Petitioner has tendered a building plan for approval to the 1 stRespondent in respect to the same premises complying with all therequirements. Thereafter the 1 st Respondent by his letter dated 29.07.2002P5 requested the Petitioner to establish title to the said premises and
CA
Sobhani 1/5. Chairman, Urban Council, Chiiaw and Others
(Sriskandarajah, J.)
81
stated that until she does so, her application for building permit could notbe considered. The Petitioner once again on 08.09.2003 submitted anapplication for a building permit to the same premises to the 1 st Respondentthrough his attorney at law. This application too had been rejected sincethe title to the said premises had not been confirmed by the Petitioner.The Petitioner submitted that the 1 st Respondent the chairman of the 2ndRespondent has a public statutory duty in terms of Housing and TownImprovement Ordinance as amended or Urban Development Authority Lawas amended to entertain every application for building permit and furthersubmits that in this application the 1 st Respondent has refused to entertainthe application of the Petitioner without any legal or valid basis. ThePetitioner also submitted that there is no duty whatsoever cast on the 1 stRespondent to look into the title of the applicant to the property on whichthe proposed building construction is to take place for the purpose ofentertaining applications for building permit.
The Respondents submitted that in terms of Gazette No. 100/4 of August,1980 the Minister of Local Government, Housing and Construction hasgazetted the Chiiaw Urban Council as a Development Area under Section3 of the Urban Development Authority Act.
The Respondent admitted that the Petitioner has made two buildingplan approval applications in the prescribed forms one in 2002 and theother in September, 2003. But both these applications are incomplete asthe Petitioner has neither declared himself as the owner of the land onwhich he is seeking to build nor he has not annexed any document toshow that he got permission from the owner of the land to construct abuilding. Respondents submitted that from their records the land in whichthe Petitioner is seeking permission to construct a building is a state landowned by the Ceylon Government Railway Department.
The Urban Development Authority (Amendment) Act, No. 4 of 1982 inSection 8J provides as follows:
8J. (1) Notwithstanding the provisions of any other law, no governmentagency or any other person shall carry out or engage in anydevelopment activity in any development area or part thereof ,except under the authority and in accordance with the termsand conditions of a permit issued in that behalf by theAuthority.
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An application for a permit to carry out or engage in anydevelopment activity within a development area or part thereofshall be made to the Authority in such form, shall containsuch particulars and be accompanied by such fees as maybe prescribed by regulations made under this law.
A permit under subsection (1) shall be granted by the Authorityunder that sub-section subject to such terms and conditionsas the Authority may consider necessary if the Authority issatisfied that –
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…Under Section 8J(2), an application for a permit to carry out or engagein any development activity within a development area shall be made tothe Urban Development Authority (UDA) in such form and shall containsuch particulars. One of the particulars that is required by the UDA in theapplication is to declare the status of the applicant in relation to the land inwhich he is seeking to develop. If he is the owner he has to support thesame with documentation and if he is not the owner then he has to annexa consent letter from the owner. According to the Respondent theserequirements are not fullfilled by the Petitioner; therefore the applicationof the Petitioner was not entertained. The Petitioner has failed to annex acopy of the completed application which was submitted to the UDA byhim to show that he has given all the relevant particulars that were requiredto be given in the said application. On the other hand the Petitioner’ssubmission that the ownership of a land is an irrelevant considerationwhen a building permit is sought to build a building in that land cannot beaccepted. As the above sections empower the UDA to grant a buildingpermit subject to such terms and conditions the Authority may considernecessary. The UDA has considered it necessary to have a prima-faciedocumentation to prove the ownership of the land or the consent of theowner of the land to grant building permits to develop a particular land.This requirement is embodied in the Building Permit Application Form
CA
A. R. Perera & Others vs
Central Freight Bureau of Sri Lanka and Another (Marsopf, J.)
83
which was submitted to this court by the Respondent on the request ofthis court. The Court does not think that it is an irrelevant or unreasonablerequirement in considering development activities in a land. Therefore theCourt rejects the application of the Petitioner to issue a writ of certiorari toquash the decision made by the 01 st Respondent refusing to consider thebuilding plan of the Petitioner. For these reasons the application of thePetitioner is dismissed without costs.
IMAM -1 agree.
Application dismissed.