Sri Lanka Law Reports
(1981) 2 S.L.R.
v.THE MAGISTRATE, KURUNEGALA
COURT OF APPEAL
K. C. E. DE ALWIS, J. AND SENEVIRATNE, J.
C. A. APPLICATION 894/80- M.C. KURUNEGALA 60001DECEMBER 1. 1980.
Local Authority Quarters (Recovery of Possession) Law. No. 42 of 1978, sections3. 10—Local Authorities Housing Act, No. 14 of 1964, as amended by Act. No. 63of 1979, sections 3,5A, 6—Application to quash eviction order by Magistrate— Whetherpremises "local authority quarters" within meaning of Law No. 42 of 1978— Whenprovisions of section 5A introduced by Act No. 63 of 1979 applicable in case ofpremises belonging to local authority— Whether occupier of quarters entitled to a hearingbefore vacation notice served—Natural justice—Functions of Commissioner- Whethera Writ of Certiorari lies.
The petitioner, a Local Government Service employee, who was working as a clerkin the Kurunegala Municipal Council had been given certain premises belonging tothe Council for his occupation. Shortly after the petitioner went into occupation, onan application made by the Council the Rent Board also fixed the authorised rent ofthe premises. The petitioner was subsequently transferred and in view of the transferthe Municipal Council passed a resolution under section 3 of the Local AuthorityQuarters (Recovery of Possession) Law, No. 42 of 1978, that the MunicipalCommissioner who was the competent authority under the Act should serve a noticeto quit on the petitioner requiring him to vacate and deliver vacant possession of thepremises and the Commissioner acting on this resolution served such notice. Thepetitioner replied stating that what he occupied was not "official quarters"and in hisletter also requested the Municipal Commissioner to take action under Act No. 63 of1979. This Act which amended the Local Authorities Housing (Amendment) Act.No. 14 of 1964, had introduced a new section 5A to the principal Act which madeprovision for the transfer free of charge of a house to which that Act applied to a tenantif the Advisory Board constituted under the Act was satisfied as to certain conditions.Proceedings were taken nevertheless against the petitioner under the said Act No. 42 of1978 and an order was made by the Magistrate, Kurunegala, for the eviction of thepetitioner.
The petitioner made the present application for writs of certiorari and/or prohibitionto quash the order for eviction made by the Magistrate, Kurunegala (1st respondent)and the Municipal Commissioner (2nd respondent). It was also submitted on his behalfthat there was a denial of natural justice in that he was not given an opportunity of beingheard before the notice to quit was served on him by the Muncipal Commissioner.
The petitioner was not entitled to a transfer of the said premises as he had requestedand a person entitled to such a transfer under the Local Authorities Housing Act mustbe a tenant tu whom in terms of section 3 (11 a house had been let on rent purchaseterms. There was no evidence that the premises were !»t to the petitioner On »ocii a basis.In any event, there was also no evidence that an Advisory Board constituted for the
Wijesinghe v. Magistrate, Kurunegala (De Atwis, J.)
Municipal Council of Kurunegala under the provisions of section 6 of the Act had madea determination as required by section 5A(2).
Accordingly the premises occupied by the petitioner were "local authority quarters"within the meaning of the Local Authority Quarters (Recovery of Possession) Law,No. 42 of 1978, and on the transfer of the petitioner from Kurunegala the Councilwas entitled to recover possession under the provisions of the said statute.
In any event, the Municipal Commissioner in issuing the eviction notice that he didwas carrying out a direction of the Municipal Council as contained in the resolutionpassed by it and acted in a purely ministerial capacity. The writs applied for by thepetitioner therefore did not lie.
Per K. C. E. de Alwis, J.
"In the case of Fernandopulle v. Minister of Lands and Agriculture, Samarakoon, C. J.stated, 'This writ of certiorari is not confined to judicial or quasi-judicial acts. It extendseven to administrative acts that affect the rights of the subject.' This act of the MunicipalCommissioner does not fall into even the third category mentioned by His Lordship;therefore, a Writ of Certiorari does not lie."
Case referred to
Fernandopulle v. Minister of Lands and Agriculture, (19781 79 (21N.L.R. 119.
APPLICATION for Writs of Certiorari and/or Prohibition and/or for revision of an orderof the Magistrate, Kurunegala.
S. Mahenthiran, for the petitioner.
A. K. Premadasa, with T. B. Dillimuni, for the 2nd respondent.
Cur. adv. vutt
January 23, 1981.
K. C. E. DE ALWIS, J.
This is an application for writs of certiorari and prohibition toquash an order for eviction of the petitioner from premisesdesignated "annexure B'' of the premises bearing assessmentnumber 7, Rest House Road, Kurunegala, and "to stay allproceedings". Also included in the petition is a prayer to "Revisethe order made by the 1st respondent". The 1st respondent isthe Magistrate, Kurunegala. The Municipal Commissioner,Kurunegala, is the 2nd respondent. It is relevant to remark thatthe Kurunegala Municipal Council is not a respondent.
In the course of his argument, counsel for the petitionersubmitted that he was not seeking any relief against the Magistrate;but the substantial reliefs in the prayer refer to orders: "order foreviction" and "order made by the 1st respondent". There is alsoan item in the prayer seeking an order from this Court, "to stayproceedings". The proceedings referred to thuiein allude to actionwhich the fiscal has to take on the Magistrate's order and
Sri Lanka Law Reports
consequential action, if any, by the Magistrate after the fiscal hadcomplied with his order. One cannot conceive of any "proceedings"before the 2nd respondent It must also be noted that he hadmade no order whatsoever in the matter that has given rise to agrievance to the petitioner. Therefore, the petition does not reflectany relief as against the 2nd respondent. On the submission ofcounsel that he is not seeking relief as against the Magistrate, theapplication merited dismissal.
However, we heard arguments to consider whether any relief layas against the 2nd respondent At this stage it is appropriate to setout the relevant facts relating to the application. The petitioner, aLocal Government Service employee, had been appointed as aclerk in the Kurunegala Municipal Council and had been given thesaid premises for his occupation to obtain efficient service fromhim. The premises belong to the Municipal Council. Sometimeafter the petitioner had gone into occupation of the premises, onthe application of the Council, the Rent Control Board had fixedthe authorised rent of the premises at Rs. 21.96. In the affidavitfiled by the 2nd respondent he states that the said application wasmade on an erroneous understanding of the law that evenMunicipal premises were governed by the Rent Act, No. 7 of1972. The petitioner was later transferred out of the Municipalityof Kurunegala, and in view of the transfer the Council has passeda resolution under section 3 of Local Authority Quarters (Recoveryof Possession) Law, No. 42 of 1978, that the MunicipalCommissioner should serve a quit notice on the petitionerrequiring him to vacate and deliver vacant possession of thepremises. Acting on this resolution the Commissioner served thenotice on or about the 9th April, 1980—(see document G). Thepetitioner replied by letter dated 13.6.1980 stating that he wasnot in occupation of "official quarters"—(see document H). Itmust be stated that this document indicates that the petitionerappears to have erroneously misconstrued the order of the RentControl Board fixing the authorised rent as an order determiningthe question whether the premises were official quarters, or not.In his letter the petitioner has also requested the Commissioner totake action under Act No. 63 of 1979.
This Act is an amendment to Local Authorities Housing Act,No. 14 of 1964. It introduces a new section, 5A, to the principalAct. Section 5A states—
Wijesinghe v. Magistrate, Kurunegaia (De Alms, J.)
"5A (1) Where prior to the date of coming into force of thissection a house to which this Act applies has been letto any person under the provisions of section 3 (1) andthe monthly rental of such house immediately prior tosuch letting did not exceed twenty-five rupees, thelocal authority within the administrative limits of
which the house is situated shall
transfer free of charge that house to that person.
Where prior to the date of coming into force of thissection, a house to which this Act applies has been letto any person otherwise than under the provisions ofsection 3 (1) and the monthly rental of that house doesnot exceed twenty-five rupees, the local authoritywithin the administrative limits of which that house is
situated shalltransfer free of
charge that house—
(a) to the tenantin occupation
thereof on the date of coming into force of thissection;
to the person in occupptior, of that house on thedate of conr.ig into fo>-we of this section where thetenant of L’nat S-.t«iSe is not in occupation;
if, and only if the• ^oard constituted for that local
authoritv ;dTisfjed thaT_
(i) s-«c'i tenant or person in occupation as the case may be,is in need of housing accommodation,
, %•) Syc^ enant or the person in occupation as the case may'* Lse,ijgt itizen of Sri Lanka, and
…..of such tenant or person in occupation, as
(»n;t e '-’me, be, appears m the electoral list prepared for
t e cast r.ia^ oCtjon of members of that local authority."the-’genera i e>
a view that he is entitled to a transfer ofThe petitioner b of th, of„ ,s not so. , n5rson
the premises by virtue
entitled to a transfer is a
principal Act applies, or is
has been set out above.
„^‘ Act is as follows-
Section 3 (1) of the principal
^ovided, a local authority may,
"Subject as hereinafter pi
tenant to whom section 3 (i) of the
a tenant qualified under 5A (2), which
Sri Lanka Lam Reports
(1981) 2 S.LR.
either upon a resolution passed in that behalf at a dulyconstituted meeting of that local authority or upon thedirection of the Minister, let to any person any house—
which has vested in that local authority under section 2;or
which has been, or may be constructed by that localauthority within administrative limits of that localauthority for the purpose of residence,
on such terms as will enable that person to become owner ofthat house and the land appertaining thereto after makingcertain number of monthly payments as rent.”
It would be seen that section 3 (1) above is a provision enablinga local authority to let houses on a rent-purchase basis. There isno evidence that the premises were let to the petitioner on such abasis. Therefore, section 5A (1) does not apply to him, nor is thereevidence that an Advisory Board constituted for the MunicipalCouncil of Kurunegala, under the provisions of section 6 of theprincipal Act, made a determination as in section 5A (2) of theAct. In the absence of such evidence, the annexe is "localauthority quarters" within the meaning of Local AuthorityQuarters (Recovery of Possession) Law, No. 42 of 1978, and theprovisions of that law applies to the annexe. In the said Law,"Local Government quarters" has been defined as—
"Any such building or room or other accommodationoccupied or used for the purposes of residence as is provided byor on behalf of any local authority”.
Under section 3 (1) of the Law, the local authority may pass aresolution at any meeting of such local authority that a quit noticeshall be served by the competent authority on the occupier on thehappening of certain events specified in that section. The competentauthority for a Municipality is the Municipal Commissioner. Oneevent specified in the section is that the occupier has beentransferred from the station and in this case the relevant event isthat the petitioner was so transferred. The document, markedR3, is such a resolution as is contemplated in the Law. In termsof this resolution the Municipal Commissioner has served a noticeon the petitioner—(see document G).
There is no gainsaying that the petitioner was a servant orofficer of ine Kurunegaia Municipal Council and that he was put
CAWijesinghe v. Magistrate, Kurunegala (De Aims, J.)217
in occupation of the premises because he was such, for purpose ofhis residence and on an appeal by him to the Council to "allocate"it "on the usual terms and conditions", (see R4). In R4 he pointedout that the Council will derive revenue in a sum of Rs. 46 permonth on the basis of his salary. His request for these premiseswas because he was a servant or officer of the Council and needed'quarters in proximity to the office of the Council. His request hadbeen recommended by an officer whose abbreviated designationis noted in document R5 as "M.S.W.". In making therecommendation this officer has said that if he was given thepremises it would enable the petitioner to go for work early, towork after office hours and to concentrate on his work with peaceof mind. The work referred to is obviously the petitioner's duties.On this recommendation the premises had been given to him anddeductions had been made from his salary as stated in R4.Therefore, it is clear that he had taken possession of the premisesas an occupier of "Local Authority quarters". This fact isunderlined in an application which the Council made to the RentControl Board to fix the authorised rent—(see document A). Alevy of rent on the basis of salary is usually made on officialquarters provided to public officers. Unless the premises is officialquarters, I cannot see under what circumstances rent is fixed onthe basis of salary.
For some inexplicable reason, the Municipal Commissioner inmaking certain recommendations regarding the recovery of rentfrom the petitioner has stated that the premises cannot beconsidered official quarters and that it had not been given to himas such – (see document, marked C). This statement is no morethan an opinion by the Municipal Commissioner expressed to theCommissioner of Local Government and an erroneous one at that.It cannot detract from the obvious fact, evident from thedocuments and other circumstances in evidence, that the premisesis "local authority quarters".
No doubt, notwithstanding this clear position with regard tothe nature of the premises, a controversy has been raised by thepetitioner deeming that he has a right take a transfer of thepremises. On the facts it is clear that he has no such right. Thepetitioner complained that he was denied natural justice in notbeing given an opportunity to be heard before the notice wasserved on him. The Municipal Commissioner had no function toperform before he issued the notice, his duty was to carry out the
Sri Lanka Law Reports
(1981) 2 S.L.R.
directions of the Council as contained in the resolution, in apurely ministerial capacity.
I n the case of Fernandopulle v. Minister of Lands and Agriculture,(1), Samarakoon, CJ. stated, "This writ of certiorari is notconfined to judicial or quasi-judicial acts. It extends even toadministrative acts that effect the rights of the subject". Thisact of the Municipal Commissioner does not fall into even thethird category mentioned by His Lordship; therefore, a writ ofcertiorari does not lie. I refuse the application with costs fixed atRs. 200 payable to the 2nd respondent.
SENEVIRATNE, J.-l agree.
WIJESINGHE v. THE MAGISTRATE, KURUNEGALA