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THE SUPERIOR ORDER REGULAR OF THE SOCIETY OFJESUS IN THE DIOCESE OF TRINCOMALEEv
TALAGUNE AND OTHERSCOURT OF APPEAL.JAYASINGHE, J (P/CA).SRIPAVAN, J.
CA 95/99.
CHP BRA 2480.
CNH CA/OC/516.
CH OC/12/81.OCTOBER 4, 2002.NOVEMBER 6, 28 2002.
Ceiling on Housing Property Law Sections 2(3), 8(4), 11(2), 39(3) – ConstitutionArticle 140 – Finality Clause – House vested – Divested – Vested – Legality -Court of Appeal (Appellate Procedure) Rules 1990 – Objection to be taken atcommencement of hearing – Legitimate expectation of a hearing.
C devised the premises in suit by her last will to the petitioner – a charitabletrust. The 1 st respondent was the tenant of the upper floor of the premises. Cwas in occupation of the ground floor. The 1 st respondent made an applicationto purchase the entire premises. The 2nd respondent Commissioner vested
The Superior Order Regular of the Society of Jesus in the Diocese of
CATrincomalee v Talagune and others
the entire premises in terms of section 8 (4) CHP Law. Against the saidvesting, the petitioner sought a writ of certiorari in the Court of Appeal. At thehearing the Attorney-General informed Court, that the 2nd respondentCommissioner had revoked her decision to vest. The Writ application waswithdrawn. The 2nd respondent Commissioner informed the 1st respondentthat his application to purchase premises has been dismissed. The 1strespondent appealed to the Board of Review. While the appeal was pendingthe 2nd respondent informed the petitioner that the premises is vested in theCommissioner with effect from 13.3.84. Against this order the petitionerappealed to the Board of Review, which dismissed the same on the groundthat there was no right of appeal.
The petitioner sought to quash the said order of the Board of Review.
An objection was taken that the petitioner has not complied with Rule 3(1) and(2), that the order of the Board of Review is final and conclusive in terms ofsection 39 (3) of the CHP Law.
Held:
Where an objection is taken in terms of Rule 3 (1) it must be taken at thecommencement of the hearing and the matter disposed of as a preliminaryissue unless the Court thinks that such objection can be dealt with alongwith the merits.
Article 140 of the Constitution is broad enough to give the Court of Appealauthority to review even on grounds excluded by ouster clause. TheConstitution vests in the Court of Appeal an unrestricted power to reviewadministrative action in the exercise of its jurisdiction under Article 140,which being the supreme law would over rule any preclusive clause foundin ordinary legislation.
Held further:
The Commissioner of National Housing is acting without any jurisdiction tovest the property under section 8 after the Attorney General appearing forhim informed the Court of Appeal that the letter indicating that, it is vested,has been revoked; if the Commissioner formed the view it is a surplushouse, having earlier revoked his decision, then he ought to have institutedan inquiry before the determination that it is a surplus house.
Per Nihal Jayasinghe, J (P/CA)
"When the Attorney-General informed the Court of Appeal that theCommissioner had revoked his earlier decision to vest, the petitioner is entitledto the belief that the matter has firmly been laid to rest; if the Commissionerhad chosen to reactivate the process of vesting, it was only legitimate that thepetitioner expected that there would be “a hearing".
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(5) When a public authority promised to follow a certain procedure, it is in theinterest of good administration that it would act fairly and should implementits promise, so long as implementation does not interfere with its statutoryduty.
APPLICATION for a writ of certiorari/mandamus.
Cases referred to:
Kiriwanthe v Navaratne 1990 2 Sri L.R. 393
Peter Atapattu v People's Bank 1997 1 Sri L.R. 208
Re Westminster At 1986 Al 668
Attorney-General of Hong Kong v Ng Yuen Shin 1983 2 Al 629
R v Liverpool Cpd exp. Liverpool Taxi Fleet Operators Association 1972 2QB 299
Romesh de Silva PC with Hiran de Alwis for petitioner.
PA.D. Samarasekera PC with A.R.Surendran, Arul Chelvaratnam and Safana
Gul Begam for 1 st respondent.
Cur.adv.vult.
January 10. 2003
NIHAL JAYASINGHE, J. (P/CA)The Petitioner is a Charitable Trust. An elderly lady oneMrs. Crowther devised the premises in suit No. 53/7, Gregory's Road,Colombo 7 by her Last Will to the petitioner abovenamed.Mrs. Crowther died on or about 11.03.1984. Testamentary proceedingswere thereafter instituted in the District Court of Colombo and Probateissued on 03.07.1985. The 1st respondent was the tenant of theupper floor of the premises and the said Mrs. Crowther was inoccupation of the ground floor upto her death. After the death of the;said Mrs. Crowther, the executor alleged that the 1st respondentwrongfully trespassed into a portion of the ground floor of thepremises and the executor accordingly filed a rei vindicatio action fora declaration that the petitioner is the owner of the premises; that the1 st respondent is in unlawful occupation of the premises and obtainedjudgment for the ejectment of the 1 st respondent. The 1 st respondentappealed against the judgment to the Court of Appeal, which wasdismissed. An application for the special leave to the Supreme Courtwas also refused. Writ was issued against the 1st respondent and thepetitioner was placed in possession of the ground floor of thepremises. The petitioner is now in occupation of the said premises.
The Superior Order Regular of the Society of Jesus in the Diocese of
CATrincomalee v Talaaune and others (Javasinohe, J. (P/CA)385
The 1st respondent thereafter made an application to the 2ndrespondent to purchase the entire premises. Petitioner contends thatthe 1 st respondent's application is misconceived in that he was not thetenant of the entire premises. The 2nd respondent however by 'A12'informed the petitioner that he has vested the premises in terms ofSection 8(4) of the Ceiling of Housing Property Law. Against the saidvesting the petitioner prayed for a writ of certiorari in the Court of Appeal.At the hearing the Attorney-General informed the Court that the 2ndrespondent had revoked 'A12' and the petitioner accordingly withdrewits application for writ. Thereafter the 2nd respondent informed the 1 strespondent that his application to purchase the premises has beendismissed. Against this decision the 1st respondent appealed to theCeiling on Housing and Property Board of Review. While the appealwas pending the 2nd respondent by his letter dated 22.04.1993informed the petitioner that the premises is vested in the Commissionerwith effect from 13.03.1984 and the said decision was accordinglygazetted. Against the said order of the 2nd respondent, the petitionerappealed to the Board of Review. The Board of Review dismissed thepetition of appeal on 23.01.1999 on the ground that there has been nodecision or determination made by the Commissioner of NationalHousing and therefore there was no right of appeal (vide A27). It isagainst the order of the Board of Review that the petitioner is seekingrelief from this Court.
The learned President's Counsel for the Petitioner submitted that interms of Section 8(4) a house can be vested only if,
"any person who has without reasonable cause failed to send adeclaration within the period referred to in Sub Section (1) or SubSection (2) of Section 8 or
has made an incorrect declaration“.
and that the Commissioner of National Housing was accordinglyobliged to inquire whether the petitioners have in fact sent a declaration;whether there was a legal obligation to send such declaration; whetherthe failure to send such declaration was without reasonable cause.Counsel then submitted that the Commissioner was also obliged todetermine whether the house is an excess house in terms of Section2(3); whether in terms of Section 8 the petitioner could retain the house;that the house has been vested without proper inquiry. The learned
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President's Counsel also submitted that once the Commissioner hasmade a decision not to vest the house he has no right in law to changehis own decision.
It is also the submission of the learned President's Counsel for thepetitioners that the Commissioner's decision to vest the house is exfacie wrong as he has not made a determination whether or not thehouse in question is an excess house. He has by 'A12' reversed hisearlier decision while the appeal to the Board of Review is pending; thatthe Commissioner's decision is bad in law as the 1st respondent has nolocus standi to make an application for the purchase of the premisesas he is the tenant of a part of the said premises; That there is nodetermination as to the number of houses the petitioner is entitled toretain in Colombo.
Mr. Samarasekera, President's Counsel for the 1st respondentsubmitted that the petitioner is a body of persons whose entitlement tohouses had been earlier determined by the Commissioner of NationalHousing and that it was under a legal and statutory duty to notify theCommissioner that it had acquired the ownership of an additional housein terms of Section 11(2). The learned President's Counsel submittedthat the Commissioner by his letter dated 27.11.1990 inquired from thePetitioner details of the acquisition of the property in question, to whichinquiry the petitioner failed and neglected to respond. Counselsubmitted that the petitioner instead wrote to the Chairman, NationalHousing Development Authority who in turn suggested to theCommissioner to seek advise of the Attorney-General re the legalposition as to whether the titled devolved on the Petitioner upon thedeath of Mrs. Crowther or on the date of the executors conveyance. TheAttorney-General has advised that the property was vested by the 2ndrespondent.
The 1st respondent at the hearing raised two preliminary objections.
The petitioner has failed to comply with the imperative provisionsof Rules 3.1 of the Court of Appeal (Appellate Procedure) Rules1990 and as such the Petition is liable to be dismissed.
The order of the Ceiling on Housing Property Board of Review isfinal and conclusive in terms of Section 39 (3) of Ceiling onHousing Property Law and therefore the Petitioner is not entitledto assail the said order of the Board of Review in theseproceedings.
The Superior Order Regular of the Society of Jesus in the Diocese of
CATrincomalee v Talagune and others (Jayasinghe, J. (P/CA)387
As regards the first preliminary objection Mr. Romesh de Silva, P.C.,submitted that the respondents are in fact estopped from taking of theobjection in that the 1st respondent himself has forwarded documents'R2' and 'R3' which are in the written submissions and submitted that inany event since the respondents themselves are relying on thedocuments filed by the petitioner, it is inequitable for the respondents tourge before this Court of the violation of Rule 3.1. The learnedPresident's Counsel further submitted that Rule 3.1 is not mandatoryand that even if the petitioner failed to comply with Rule 3.1 a discretionis vested with the Court to consider the documents relied upon by thepetitioner and that there is no automatic dismissal provided by law. Thelearned President's Council submitted that in Kiriwanthe v NavaratndhCourt had held that mere technicalities should not stand in the way ofCourt in arriving at a just finding. In that case the Court has held wherethere is a discretion the Court would exercise that discretion judiciallyand not technically; that in exercising discretion the Court will bear inmind the need to keep the channel of procedure open for justice to flowfreely and smoothly and the need to maintain discipline of the law.Kiriwanthe v Navaratne (supra) had further held that the weight ofauthority thus favours the view that while all these rules must becomplied with the law does not require or permit an automatic dismissal.
I have considered the submissions of Counsel carefully. I am of theview that where objection is taken in terms of Rule 3.1 it must be takenat the commencement of the hearing and the matter disposed as apreliminary issue unless the Court thinks that such objection can bedealt with along with the merits. I am of the view that an objection takenat the end of the hearing in terms of Rule 3.1, is sustained, then theCourt would have unnecessarily protracted the proceedingsconsidering the other matters when the application could have beendismissed in limine. Court ought to refuse to consider any objectionunder Rule 3.1 if taken after the merits of the case are gone into, as itwas done in this case.
As regards to the second objection the Supreme Court in PeterAtapattu v People's Bantt2) had held that the language of Article 140 ofthe Constitution was broad enough to give the Court of Appeal authorityto review even on the grounds excluded by ouster clause. It is the viewof this Court that the Constitution vests in this Court an unrestrictedpower to review administrative action in the exercise of its jurisdictionunder Article 140, which being the Supreme Law would override any
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preclusive clause found in ordinary legislation. Both preliminaryobjections are accordingly overruled.
I have also considered the validity of 'A2 ' the gazette notificationvesting the premises in question under 8 (4) of the Ceiling on HousingProperty Law. However according to 'A21' the Commissioner ofNational Housing has written to the Petitioner informing that thepremises has been determined as a surplus house under Section 2 (3)of Ceiling on Housing Property Law and that it will be vested in theCommissioner of National Housing with effect from 13.03.1984. It is myview that the Commissioner of National Housing is clearly withoutjurisdiction to vest the property in question under Section 8 (4) after theAttorney-General appearing for the Commissioner of National Housinghaving informed the Court of Appeal that the letter of 04.09.1986 hasbeen revoked. Nevertheless the 2nd Respondent has purported toissue 'A22' that the premises has vested under section 8 (4). If theCommissioner formed the view in terms of 'A21' that the premises inquestion is a surplus house having earlier revoked his decision then heought to have instituted an inquiry before 'A21' is issued. ProfessorWade in his book "Administrative Law" Seventh Edition at page 494states thus:
"The Courts have developed a relatively novel doctrine in publiclaw that a duty of consultation may arise from a legitimateexpectation of consultation aroused either by a promise or by anestablished practice of consultation".
The classic situation in which principles of natural justice apply is
where some legal right, liberty or interest is affectedBut good
administration demands their observation where the citizen
may legitimately expect to be treated fairly. A doctrine of legitimate'expectation has been developed both in the context of reasonablenessand in the context of natural justice.
In Re Westminster AC3') Lord Diplock stated that the decision mustaffect some other person either;
by altering rights or obligations of that person which areenforceable by or against him in private law; or
by depriving him of some benefit or advantage which either (1) hehad in the past been permitted by the decision-maker to enjoyand which he can legitimately expect to be permitted to continueto do until there has been communicated to him some rational
The Superior Order Regular of the Society of Jesus in the Diocese of
CATrincomalee v Talagune and others (Jayasinghe, J. (P/CA)389
grounds for withdrawing it on which he has been given anopportunity to comment; or (11) he has received assurance fromthe decision-maker that it will not be withdrawn without giving himfirst an opportunity of advancing reasons for contending that itshould not be withdrawn,
In Attorney-General of Hong Kong v Ng Yuen Shid4) Court held that:"When a public authority has promised to follow a certainprocedure, it is in the interest of good administration that it shouldact fairly and should implement its promise, so long asimplementation does not interfere with it's statutory duty".
A similar view was taken in R. v Uverpool Cpn – exp. Liverpool TaxiFleet Operators Association^5).
When the Attorney-General informed the Court of Appeal that 2ndrespondent had revoked 'A12" the petitioner is entitled to the belief thatthe matter has finally been laid to rest .If the 2nd respondenthad chosen to reactivate the process of vesting it was only legitimatethat the petitioners expected that there would be a hearing.
If it was the position of the 2nd respondent that the premises isvested under 8 (4) he must be satisfied that the petitioner acted inviolation of 8 (4); that he could do only after inquiry. In any event both'A21' and ‘A22‘ are bad in law and cannot be sustained. Therefore theC.H.P. Board of Review was in error when it dismissed the appeal of thepetitioner on the basis that there was no determination made by theCommissioner. I accordingly grant petitioner the relief as prayed for inparagraphs (a) and (b) of the prayer to the petition. The 1st and 2ndrespondents shall pay the Petitioner Rs. 15,000/- each as costs.
SRIPAVAN, J. – I agree.
Application allowed.
