Wijetunge v. Wickremanayake and Others (Ratwatte, JJ
WICKREMANAYAKE AND OTHERS
COURT OF APPEAL
RATWATTE. J (PRESIDENT) ANO ATUKORALE. J.
C. A. 1575/79DECEMBER 16, 1580.
Certiorari – SS 8, 11. 15(2) and 39 of Ceiling on Housing Property Law No. 1 of 1973 —Appeal to the Board of Review – vesting of excess house – "House" within the mean-ing of s.47 of Law No. 1 of 1973 — cancellation of vesting order – jurisdiction of Boardof Review.
After an excess house tenanted by the petitioner and belonging to the 4th respondentwas vested in the Commissioner of National Housing, on an appeal preferred by the 4threspondent the vesting was ordered by the Board of Review to be cancelled and theCommissioner took steps to divest the premises.
The vesting of the excess house of the 4th respondent was in terms of s. 11 ofthe Ceiling on Housing Property Law No. 1 of 1973. Hence the vesting is by operation oflaw. As the vesting was by operation of law no appeal lies under s.39 of the said Law.Further in terms of section 15(2) of the said Law where a house is vested in the Commi-ssioner under this law such vesting is final and conclusive except in the three instancesset out in the proviso to section 15(2).
The Board of Review acted without jurisdiction in entertaining the appeal ofthe 4th respondent. The fact of the participation of the parties in the appeal will not byacquiescence confer |urisdiction as here the want of jurisdiction is total and patent andnot contingent.
Application for.writ of Certiorari to quash the order of the Board of Review.
J. C. T. Kotalawela with M. Singaravelu for petitionerM. Sivarajasingham for 4th respondentOther respondents absent and unrepresented.
Cur. adv. vulr.
February 6, 1981.
RATWATTE, J. (President C/A)
The 4th Respondent was the owner of premises No. 294, Kehel-pandura Junction, Udupila, Makola North at the time the Ceilingon Housing Property Law No. 1 of 1973 (hereinafter referred toas the Law) came into operation. The Petitioner was the tenant ofthe s-iid premises. The 5th Respondent, the Commissioner of
Sri Lanka Law Reports
; 1981, 2 S.L.R.
National Housing by his letter dated 30. 06. 1975, which has beenannexed to the amended Petition marked X4, informed the 4thRespondent that the premises No. 294, Kehelpandura Junctionhave vested in the Commissioner from 13. 01. 1974. The 5thRespondent also informed the Petitioner by his letter X5 dated23- 07. 1975 that the premises in question have been vested inthe 5th Respondent from 13. 01. 1974. The 5th Respondentfurther informed the Petitioner that the Petitioner's application topurchase the said premises is being considered by the 5thRespondent and that steps are being taken to have the premisesvalued. The Petitioner was directed to pay a sum of Rs. 30/- permonth to the 5th Respondent till the Petitioner was informed ofthe value of the premises. The 4th Respondent appealed to theBoard of Review comprising the 1st, 2nd and 3rd Respondentsand constituted under the provisions of the said Law. Afterinquiry at which the Petitioner was also present, the Board by itsorder X1 dated 27.06.1979 held that the premises in question wasnot a "house" within the meaning of Section 47 of the Law.The Board of Review further directed the 5th Respondent thatthe vesting of the said premises be cancelled and that the premisesbe divested. Accordingly the 5th Respondent by his notice X7dated 11.01.1980 informed the Petitioner that in pursuance ofthe Order made by the Board of Review he has cancelled the letterX5 sent to the Petitioner and further that the vesting of thepremises No. 294 has been cancelled by him.
The Petitioner by his original Petition dated 18.07.1979sought to have the Order XI of the Board of Review quashed forthe reasons set out in the said Petition. The 4th Respondent filedhis Statement of Objections dated 09.11.1979. After the receiptby the Petitioner of the Notice X7, the Petitioner filed the amend-ed petition dated 20.11.1980 seeking to quash both the Ordermade by the Board of Review and the Order made by the 5thRespondent to cancel the vesting of premises No. 294. The Peti-tioner has pleaded that the Board of Review had no jurisdiction toinquire into the Appeal of the 4th Respondent and to make theOrder X1. The Petitioner further pleaded that the Board ofReview had erred both in law and on the facts in holding thatthe premises No. 294 is not a house withir. the meaning of Section47 of the Law. The Petitioner also pleaded that the 5th Respon-dent had no power or authority under the provisions of the lawto cancel the vesting of the premises in question. The Petitioneraverred in his amended Petition that he was originally the ownerof the premises in question and that due to financial difficultieshe had transferred the premises to the 4th Respondent but hecontinued to occupy the premises as the tenant of the 4th
Wi/etunge v. Wtckremanayake and Others (Ratwatte. Jj
Respondent. This was not denied by the 4th Respondent. ThePetitioner in paragraph 5 (a) of his affidavit to the original petitionstated that he had been in occupation of the premises since hischildhood and continued to occupy it as his residence after hismarriage. This averment too has not been denied by the 4thRespondent.
The main submission of learned Counsel for the Petitioner atthe argument before us was that the 4th Respondent had no rightof appeal to the Board of Review against the vesting of thepremises in question in the 5th Respondent. The contention oflearned Counsel was that the vesting of the premises in the 5thRespondent was by operation of Law in terms of Section 11 (1)of the Law as amended by Law 34 of 1974. He argued thatthe vesting was not as a result of any decision or determinationmade by the Commissioner. Section 11(1) provides for.the vestingof houses in excess of the permitted number of houses. In thenotice X4 sent by the 5th Respondent to the 4th Respondent, theformer has informed the latter that in terms of the declarationmade by the 4th Respondent the premises in question, the owner-ship of which the 4th Respondent has not opted to retain, hasvested in the 5th Respondent in terms of Sections 11 and 16 ofthe Law from 13.01.1974. The 5th Respondent has furtherstated that the Petitioner will be informed of these facts. There-after by the notice X5 the 4th Respondent has informed thePetitioner that the premises in question which has been declared asan excess house by the 4th Respondent, has vested in the 5thRespondent by the operation of Law No. 1 of 1973. LearnedCounsel for the 4th Respondent conceded before us that if thevesting of the premises was an automatic vesting, i.e., a vesting byoperation of law, the 4th Respondent had no right of appeal tothe Board of Review. But his submission-was that this vesting wasnot by operation of law. He submitted that under this law thereare three ways by which houses become vested in the Commi-ssioner: Firstly, under Section 8 (4), secondly, under Section11 (1) and thirdly, under Section 13. He conceded that if thevesting is under Section 11 (1), then the vesting is by operationof law, but only if the conditions in Section 10 have beensatisfied.
The contention on behalf of the 4th Respondent was thatthe vesting in this case could not have been under Section 11(1) asthe 4th Respondent did not send a declaration under Section 8 tothe 5th Respondent. It was further contended that the vesting ofthe premises in question was under Section 8 (4) on a determina-tion made by the Commissioner, as the 4th Respondent had notsent a declaration. The submission of learned Counsel for the 4th
Sri Lanka Law Reports
f 1981] 2 S.L.R.
Respondent therefore was that the notice X4 had no validity. I donot think that we can decide on the validity of X4. The 4thRespondent when he received X4 did not protest to the 5thRespondent and challenge the correctness of the contents of X4.Instead he appealed to the Board of Review. In the Objectionsfiled by the 4th Respondent in this Court he has not specificallydenied that he sent a declaration under Section 8 to the 5thRespondent. In the notice X4 the 5th Respondent specificallyrefers to the declaration made by the 4th Respondent and has sta-ted that the 4th Respondent has not opted to retain the ownershipof the premises in question. In the notice X5 the 5th Respondentstates that the premises in question have been declared to be anexcess house. In paragraph 1 of the Petitioner's original petition,the Petitioner has stated that the vesting of the premises was interms of Section 11 and 16 of the Law. In paragraph 3 of hisaffidavit, the 4th Respondent has admitted the averments in para-graph 1 of the Petitioner's original Petition, but states that thedetermination and vesting were in excess of the powers conferredon the 5th Respondent. Taking all these matters into considera-tion I am of the view that the vesting in question was in terms ofSection 11 (1) of the Law and was therefore a vesting by opera-tion of Law.
The question then arises whether the Board of Review hadjurisdiction to entertain the appeal of the 4th Respondent in thiscase. The provisions regarding appeals to the Board are containedin Section 39 of the Law. Section 39 (1) reads as follows:
"Any person aggrieved by any decision or determination madeby the Commissioner under this Law may, within one monthof the date on which such determination is communicated-tosuch person, appeal against such decision or determination tothe Board, stating the grounds of such appeal."
So that it is clear from the provisions of Section 39 (1) thatthe Board had no jurisdiction to entertain this appeal as thevesting was by operation of Law and not as a result of a decisionor determination made by the 5th Respondent. Further in termsof Section 15 (2) of the Law, where any house is vested in theCommissioner under this Law, such vesting is final and conclu-sive except in the three instances set out in the proviso to Section15 (2). The Proviso has no application to the instant case. Asstated earlier learned Counsel for the 4th Respondent concededthat if the vesting was by operation of Law, the 4th Respondentcould not have appealed to the Board. I am of the view that theBoard had no jurisdiction to entertain the appeal of the 4thRespondent. Learned Counsel for the 4th Respondent submitted
Wijetunge v. Wickrenoanayake and Others (Ratwatte, J.J
that even if the Board had no jurisdiction, the Petitioner was notentitled to the relief asked for by him as he had participated in theproceedings before the Board and therefore acquiesced in theproceedings. I do not think there is any substance in this submi-ssion, because in this case, there was a total and patent want ofjurisdiction and not merely a contingent want of jurisdiction.The Petitioner is therefore not disentitled to object later to theOrder made by the Board, in spite of the fact that he had takenpart in the proceedings before the Board. I am accordingly of theview that the Order of the Board of Review dated 27.06.1979has to be quashed and consequently the Order of the 5th Respon-dent divesting the premises in question has also to be quashed.In view of this finding it is not necessary to consider the twoother grounds urged by the Counsel for the Petitioner. Fristly,that in any event the Order of the Board of Review should notbe allowed to stand as the Board was differently constitutedon the several dates of inquiry before the Board; and secondly thaton the evidence led before the Board, the Board had committed anerror in coming to the conclusion that the premises in questionwas not a house within the meaning of Section 47 of the Law.
For the above reasons I would quash the Order made by theBoard of Review dated 27.06.1979 and the Order made by the 5thRespondent which is contained in the document X7 dated11.01.1980. The Petitioner will be entitled.to the costs of thisApplication.
ATUKORALE, J I agree.
Order of Board of Review and order of 5th respondent quashed.