BIBILE, CHAIRMAN, BOARD OF REVIEW CEILING ON HOUSINGPROPERTY LAW AND OTHERS
COURT OF APPEALPALAKIDNAR, J.
GUNAWARDANA, J. ANDWEERASEKARA, J.
C.H.P. BOARD OF REVIEW 154218 AND 19 FEBRUARY 1991
Ceiling on Housing Property Law, No. 1 of 1973 – Eligibility of tenant to purchaseexcess house – Can sub-tenant claim right to purchase excess house againstthe tenant?•
The Ceiling on Housing Property Law, No. 1 of 1973 requires that eligibility topurchase an excess house from the Commissioner is founded on a tenancy withthe owner. A sub-tenant does not have priority over the tenant whose prior claimis statutorily recognized under section 12(2) of the Law.
Case referred to:
Root King v. Kent County Council, (1981) 2 All ER 227.
H. L. de Silva, P.C. with S. Mahenthiran and P. M. Ratnasundaram for petitioner.
P. A. D. Samarasekara, P. C., with Lasantha de Silva for 7th respondent.
15th March, 1991.
Premises number 256, Vauxhall Street was owned by TyrecraftsLtd. It was rented out to George Stewarts. The 7th Respondent Diaswho was an employee of George Stewarts occupied this premises.Dias by reason of an internal agreement with the employers changed
his residence to a bungalow belonging to George Stewarts called theMill manager’s bungalow. He however retained an occupancyinterest in the premises number.256,VauxhaH Street. Dias's position. as an occupier was attorned to-by the petitioner Thurairajah whocontracted with him for the tenancy on 1.2.1974. In effect Dias statesthat Thurairajah was a sub-tenant under him.
The premises .referred to fell into the category of an excess houseunder the Ceiling on Housing Property Law (No. 1 of 73) in regard tothe ownership by Ty.recrafts Ltd. Therefore in law the premisesbecame vested in the Commissioner of Housing -Property on13.1.1974.:V
The Commissioner acting under the law offered the house for saleto Dias on 30.9.1974 by letter marked “A". This offer was acceptedand a formal agreement to. purchase was entered into between theCommissioner and Dias. The agreement is marked “B”. The petitionermade an application to buy the premises but it was refused by theCommissioner on 4.11.1976 by order marked ”C”. The Commissionerhad given time to the petitioner to find alternate accommodation anddirected Dias to file an Action for ejectment. This action is nowpending in the District Court; On 23.9.1981 a letter from the ValuationBoard confirming the decision to sell to Dias was sent to him. Thisconfirmation is marked "F".
Having proceeded thus far the Commissioner performed a volte-face as it were and reversed his decision to sell to Dias andrescinded the agreement “B" and made order to sell this premises on19.4.1984. to the petitioner.
This order was made consequent to an inquiry under Section 12 ofthe Act as evidenced by documents P5, P6 and P7. The petitionerappealed from the order to the Board of Review. The Board of Reviewby order dated 15.3.1988 marked P8 allowed the appeal of the 7thRespondent Dias:
The matter before this Court is an application by way of writs ofcertiorari and prohibition inviting this Court to review the order P8 andprohibit the consequences that flow from that order. It may bepertinent to note at this stage that no appeal lies from order P8.Section 39(3) of the Act states that P8 shall be final and shall not becalled in question in any Court. The petitioner has therefore invokedthe writ of this Court on the main -ground that there is an error on theface of the record.
. Jt may also be pertinent to note that the decision by (Commissionerto sell to the 7th respondent Dias on ordef.jnarked “A” wasappealable under Section 39(1) of the-Abb The petitioner has notexercised fife right of appeal in the circumstances. Instead he hadmoved the Commissioner to hold an inquiry and obtained the orderP4, reversing the decision to sell. Learned President’s Counsel for thepetitioner soughLtq.iustify P4 as %:;measure taken to rescind theprevious order on the ground of fraud, mistake and error. The law hesubmitted would permit this administrative decision. He based hisview on the authority of cases reported in Root King v. Kent CountyCouncilm.
In our view such a move by the Commissioner could havestemmed from a direction by the Board of Review on an appeal fromthe order marked “B". It was a statutory right which could not havebeen circumvented by the petitioner in any other way. The reversal ineffect swept aside a series of far-reaching steps taken by theCommissioner to sell the premises to the 7th respondent Dias. Thedecisions were clearly taken on the basis of the 7th respondent’seligibility to purchase the house. This eligibility is based onsubstantial proof of his position as a tenant under Section 12 of theAct. As observed earlier in this judgment the petitioner himselfacknowledged the position of Dias by contracting with him to tenantthe house for himself.
The argument that this tenancy enabled the petitioner to qualifyunder the Act to become a purchaser does not convince us as beingthe correct legal position consonant with the facts. The Act requiresthat eligibility to purchase an excess house from the Commissionerwould be founded on a tenancy with the owner. The argument thatany tenancy would meet the requirement does not accord with thescheme of the statute. The statutory context has to be reviewed in thelight of the impact on other provisions of the statute. A sub-tenant in
our view does not have priority over the tenant whose prior claim isstatutorily recognised under Section 12(2) of the Act.
For the purpose of this application the petitioner must prove hiseligibility under this statute. Equitable consideration may apply onlywhen the person who has a right to purchase in thelst instance doesnot exercise-such a right. •
The eligibility of the 7th respondent is borne out by theCommissioner’s decision to sell to him. The Board of.-Review, hasbased its decision on the acceptance of such eligibility. Eligibility isbased on the proof of the facts which show a prior, claim. The fullextent of such eligibility was within the purview Of the Commissionerand the Board of Review. Tenancy by George Stewarts under whoselicense the 7th respondent came to occupy the premises and hissubsequent interest in the premises as acknowledged by thepetitioner himself support the' presumption that the Commissioneracted in the proper exercise of his rights as an act correctly done inoffering to sell the premises to the 7th respondent. In law he couldonly do so to the tenant. The onus does not lie on the 7th respondentto prove his tenancy for the. purpose of this application. The petitionermust establish his statutory right under the Act to displace the 7threspondent.
In our view he has failed to do so. Therefore we dismiss thepetition with costs fixed at Rs. 1,000/-.
GUNAWARDANA, J. – I agree.
WEERASEKARA, d. -I agree.
Application for writ dismissed.
THURAIRAJAH v. BIBILE CHAIRMAN BOARD OF REVIEW CEILING ON HOUSING PROPE