014-SLLR-SLLR-1983-2-LIYANAGE-V.-KARUNARATNE.pdf
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LIYANAGE
V.
KARUNARATNE
SUPREME COURT
SHARVANANDA. A. C. J.. WIMALARATNE. J.
AND ABDUL CADER.J..
S. C. NO. 20/83. C. A. No. 458/81.
NOVEMBER 11. 1983.
Writ of Certiorari — Vesting order made under Section 17 of the Ceiling onHousing Property Law, No. 1 of 1973.
The Appellant filed an application in the Court of Appeal praying, inter alia, forthe issue of a writ of certiorari to quash the vesting order made under section 17of the Ceiling on Housing Property Law. No. 1 of 1973. by the then Minister ofHousing.
In his petition the Appellant stated, inter alia
that he became aware of the publication of the said order on 10th January.
1977.
that on 3rd February. 1977. he lodged an appeal against the order beforethe Board of Review constituted under the Ceiling on Housing Property Lawand that by letter dated 25th of April. 1977. he had invited the attention ofthe Board regarding the said Appeal, but had received no intimationwhatsoever.
that by the letters dated 12.09.1977 and 14.11.1980 addressed to the 4thRespondent, the present Minister of Housing, he had* sought administrativerelief.
Held—
The Court of Appeal has. in reaching the conclusion that there was undue delayon the part of the petitioner in applying to that Court for relief, overlooked theappellant's appeals dated 12.09.77 and 14.11.80 to the 4th Respondent, thepresent Minister of Housing, for relief.
These appeals to the Minister for administrative relief are not irrelevant, but havesignificance and relevance. They show that the Appellant had not acquiesced inthe vesting of his house by the order. The Petitioner was in the circumstancesjustified in seeking relief from the Minister. The delay occasioned by pursuingthis legal remedy cannot be counted against the petitioner as unreasonable. Thevesting order was admittedly a nullity and certiorari should issue.
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Lryanage v. Karunaratne (Sharvananda. A.C.J.)
145
Cases referred to:
(1 > Mrs. Kadiramanpulle v. Mailvaganam. (S. C. Application No. 536/77 —S.C.Minutes of 19th September. 1980)
(2) Biso Menika v. Cyril R. de Alwis. <S. C. 59/61 — S. C. Minutes of12.05.1982.)
APPEAL from a judgment of the Court of Appeal.
Faiz Mustapha with K. Balapatebendi for Petitioner.
Nimal Senanayake. S. A. with L V. P. Wettasinghe and Miss S. H. Senaratnefor 1 st Respondent.
Cur. adv. vult
November 25, 1983SHARVANANDA, A. C. J.
The Appellant filed an application in the Court of Appeal on25th April. 1981. praying, inter alia, for the issue of a writ ofCertiorari to quash the Vesting Order dated 19. 5. 76 made,under section 1 7 of the Ceiling on Housing Property Law No.1 of 1973. by the then Minister of Housing, in respect ofpremises bearing No. 130/52. Kirillapona Avenue, Colombo.The said order had been published in the GovernmentGazette of 13th August 1976.
In his petition the Appellant stated, inter alia
that he became aware of the publication of the said order on10th of January. 1977.
that on 3rd February 1977. he lodged an appeal against theorder before the Board of Review constituted under theCeiling on Housing Property Law and that by letter dated25th of April. 1977. he had invited the attention of the Boardregarding the said Appeal, but had received no intimationwhatsoever.
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that by the letters dated 12.09.1977 and 14.11.1980addressed to the 4th respondent, the present Minister ofHousing, he had sought administrative relief.
At the hearing of the application in the Court ofAppeal,Counsel for the 1st Respondent (the tenant of premisesNo. 130/52) conceded that the Vesting Order dated 19.5.76,was a nullity, but however, objected to the issue of a writ ofcertiorari on the ground that there had been undue delay. By itsjudgment dated 17.12.82, the Court of Appeal upheld the pleaof delay and dismissed the appellant's application with costs.
The concession on the part of the Counsel for the 1strespondent that the Vesting Order dated 1 9.5.76 was bad in lawand was a nullity, was based on the decision ofMrs. Kadiramanpulle v. Mailvaganam^ on the ground that thepetitioner was not given notice by the Commissioner of NationalHousing, regarding the notification to the Minister by him undersection 1 7(1) of the Ceiling on Housing Property Law No. 1 /73.As notice of the notification to the Minister was not given to thePetitioner, the Petitioner was deprived of the right of appeal tothe Board of Review under section 39(1) of the said Law. In thecircumstances, the vesting order P2 has to be treated as invalidand a nullity.
Counsel for the Appellant has relevantly submitted that sincethe vesting order, P2 was a nullity, the Appellant was entitled torelief as prayed for, ex debito justitiae and that he should not bedenied relief and that his application should not be dismissedsolely on the ground of undue delay. In my view this submissionis entitled to succeed.
It is to be noted that the Court of Appeal has, in reaching theconclusion that there was undue delay on the part of thePetitioner in applying to that Court for relief, overlooked theAppellant s appeals dated 12.9.77 and 14.11.80 to the 4th
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Liyanage v. Karunaratne (Sharvananda. A.C.J.)
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Respondent, the present Minister of Housing, for relief. In view ofthe provisions of section 17A (1) of the Ceiling on HousingProperty Law which provides "that the Commissioner may, withthe prior approval in writing of the Minister, by order publishedin the government gazette divest himself of the ownership ofsuch house". These appeals to the Minister for administrativerelief are not irrelevant, but have significance and relevance.They show that the Appellant had not acquiesced in the vestingof his house by the order P2. The Petitioner was in thecircumstances justified in seeking relief from the Minister, thedelay occasioned by pursuing this legal remedy cannot becounted against the Petitioner as unreasonable. The consequentdelay is excusable. Counsel- for the Appellant has drawn ourattention to the judgment of this Court in Biso Menika v. Cyril R.deAlwis2, where the legal effect of delay is fully discussed. It wasstated there that
"when the Court has seen the record and is satisfied thatthe order complained of is manifestly erroneous or withoutjurisdiction, the court will be loathe to allow the mischief ofthe order to continue and reject the application simply onthe ground of delay, unless there is some extraordinaryreason to justify such rejection."
The record does not show that the petitioner has slept on hisrights without any reasonable excuse. The time lag has certainlybeen explained in the petition. Further no prejudice to the 1stRespondent (the tenant who has sought to purchase thepremises) by the delay of the petitioner in coming to court hasbeen disclosed.
The 1st Respondent appears to have deposited certain monieswith the Commissioner of National Housing (the 3rd Respondent).According to the 1st Respondent, the Commissioner of NationalHousing (3rd Respondent) requested him to deposit 1/4 of theestimated purchase price of the premises in question and to payRs.36/- per mensem and he has deposited certain sums ofmoney. In my view these payments cannot constitute suchprejudice as to bar the issue of the writ. Since the vesting orderis a nullity as conceded by Counsel for the 1st respondent, title
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to the premises that are subject to the vesting order continued inthe petitioner. The 1st respondent has not done anythingsubstantial to the premises on the faith of the validity of thevesting order.
In the circumstances I cannot agree with the conclusion of theCourt of Appeal that the delay of the appellant in preferring thisapplication for a writ of certiorari is not justified, and that it isfatal to the application. I therefore set aside the judgment of theCourt of Appeal and direct the issue of a writ of certiorariquashing the vesting order dated 19.5.76 made by the Ministerand published in the Government Gazette (P2). The appeal isallowed. The 1st Respondent will pay the appellant his costs inthe Court of Appeal and in this Court. Since the vesting order isbeing quashed the 1st respondant will be entitled to the refundof the sum deposited towards the purchase price paid by him.Since the 1st Respondent had been paying Rs. 36/- per monthas rent to the 2nd Respondent, I direct the Commissioner ofNational Housing (3rd respondent) to pay the petitioner the saidsums of Rs.36/- paid by the Lst respondent to theCommissioner monthly. The monies so paid by the 3rdRespondent to the Petitioner will be set off by him against thearrears of rent due from the 1 st Respondent to the petitioner.
WIMLARATNE. J. — I agree
ABDUL CADER, J. — I agree
Appeal allowed.