016-SLLR-SLLR-1996-1-WITHARANARATCHO-V.-GUNAWARDENA-AND-OTHERS.pdf
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Withanaratchi v. Gunawardena and Others (de Silva, C.J.)
253
WITHANARATCHI
V.
GUNAWARDENA AND OTHERS
SUPREME COURT.
G.P.S DE SILVA, C.J.,
RAMANATHAN, J. ANDWIJETUNGA, J.
S.C. APPEAL NO. 64/94.
C.A. (WRIT) APPLICATION NO. 377/88.
CHP BOARD OF REVIEW NO. 1713.
03 AND 07 JUNE, 1996.
Ceiling on Housing Property Law No. 1 of 1973-Application by tenant topurchase tenement-Definition of house in section 47 of the Law- Applica-tion of section 39 (3) of the Law read with section 22 of the InterpretationOrdinance as amended by Interpretation (Amendment) Act, No. 18 of 1972- Error on “Jurisdictional Fact".
The respondent made an application to purchase her residing tenementunder the Ceiling of Housing Property Law. The definition of house insection 47 of the Ceiling on Housing Property Law, No. 1 of 1973 includesa tenement. Here there was a connecting door which was kept closed for32 years. This interconnecting door served as access from the tenement toa book depot and not to a living accommodation though no doubt there wasan attic in the book depot which however provided living accommodation.The Board of Review held this tenement was a house within the definitionof the expression 'house* in section 47 of the Ceiling on Housing PropertyLaw.
Held:
The Board of Review in holding in favour of the Respondent did not err inrespect of a jurisdictional fact but the error if at all, is one made within thearea of the jurisdiction of the Board of Review.
An ouster clause must be strictly construed and there is a presumption infavour of judicial review.
Section 22 of the Interpretation Ordinance does not exclude review of juris-dictional questions.The bar applies only to erroneous decisions made withinthe area of the tribunal's jurisdiction. The error of the Board of Review is atmost an error made within jurisdiction and the ouster clause would accord-ingly apply.
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Case referred to :
Chandralatha Wijewardena v. People's Bank and others. (S.C. Appeal No.3/80 S.C. Minutes of 20.5.1981.
APPEAL from Judgment of the Court of Appeal.
T. B. Dilimuni with Miss S.Moragoda and Miss. N. Jayawardena for the Pe-titioner-Appellant.
D. Wikremanayake with Miss Anandi Cooray for 5th Respondent.
Cur. adv. vult.
20 June, 1996.
G. P. S. OE SILVA, C. J.
The Petitioner-Appellant (hereinafter referred to as the Appellant)is the owner of premises Nos. 45 and 45/6, Maligakanda Road, Co-lombo 10,. The 5th Respondent is the tenant under the Appellant ofpremises No. 45/6, which are the premises in suit.
The 5th Respondent made an application dated 8.11.82 under theprovisions of section 13 of the Ceiling on Housing Property Law No. 1of 1973 (hereinafter referred to as the Law) for the purchase of premisesNo. 45/6. The Appellant sought to resist the application on the groundthat premises No. 45/6 was not a "house" within the meaning of sec-tion 47 of the Law. After inquiry, the Commissioner of National Housingupheld the objection and rejected the 5th Respondent's application topurchase the house. The decision of the Commissioner was notified tothe 5th Respondent by letter dated 15.9.84. The 5th Respondent there-upon preferred an appeal to the Board of Review seeking to set asidethe decision of the Commissioner and for a declaration that the premisesNo. 45/6 was a "house" within the meaning of section 47 of the law.After inquiry, the Board of Review allowed the appeal of the 5th Re-spondent and set aside the decision of the Commissioner and directedthe Commissioner to take steps under section 17 (1) of the law to"vest" the premises. Thereupon the Appellant filed an application inthe Court of Appeal seeking a writ of Certiorari to quash the order ofthe Board of Review on the ground that the order has been made with-out and/or in excess of jurisdiction.
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Withanaratchi v. Gunawardena and Others (de Silva, C.J.)
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At the hearing before the Court of Appeal, Counsel for the 5thRespondent took the preliminary objection that the application cannotbe maintained in view of the provisions of section 39 (3) of the lawread with section 22 of the Interpretation Ordinance as amendedby Interpretation (Amendment) Act No. 18 of 1972. The principlesubmission of Mr. Dilimuni, Counsel for the Appellant, was that theBoard of Review has erred on a "jurisdictional fact" in reaching theconclusion that premises No. 45/6 is a "house" within the meaning ofthat expression in the law. Counsel urged that the Board of Review hasfailed to take into consideration (a) the evidence of the 5th Respond-ent given before the Commissioner on 9.3.83; (b) the observationsmade by the Assistant Commissioner who inspected the premises insuit with a view to ascertaining whether the premises fell within thedefinition of “house", (c) the complaint made by the Appellant to thePolice on 22.9.84 and also the statement made by the 5th Respondentto the police on the same day.
Mr. Dilimuni drew our attention to the evidence given on 9.3.83 bythe 5th Respondent before the Commissioner. The gist of her evidencewas that between the premises No. 45/6 where she resides and premisesNo. 45 which is a book depot, there is a door and that this door pro-vided access to premises No. 45. While admitting the existence of thedoor, she further stated that the door had been closed for the last 32years. It was her position that she was in occupation of the premisesfor 32 years.
The next item of evidence relied on by Mr. Dilimuni is the record ofthe observations made by the Assistant Commissioner who inspectedthe premises. This officer has stated that premises No. 45/6 is situ-ated behind the premises No. 45. It is a room attached to premises No.45. She has specifically stated that there is an “inter connecting door"between the two premises and she had concluded that the premisesNo. 45/6 cannot be considered as an “independent unit" as it is con-nected by a door to premises No. 45. This is a minute made in therelevant file of the Commissioner and is dated 27.8.84.
The other item of evidence relied on by the Appellant is the com-plaint made to the police on 22.9.84. In this complaint the Appellanthas stated that the 5th Respondent is preparing to construct a wall on
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her side in order to close the door. The 5th Respondent who made astatement to the police on the same day admitted "the construction ofthe wall" and further stated that it was done for ’her protection*.
In short, Mr. Dillimuni submitted that the Board of Review has failedto take into account evidence which is intensely relevant on the issuewhether the premises in suit is a "house" within the meaning of thelaw. By such failure, Counsel contended, the Board of Review hasseriously erred on a "jurisdictional fact" and thereby acted in excessof its jurisdiction. It was the contention of Mr. Dillimuni that the preclu-sive clause contained in section 39 (3) of the law read with section 22of the Interpretation Ordinance as amended by Act No. 18 of 1972, hasno application when the impugned order is one made outside or inexcess of jurisdiction.
I now turn to the definition of the expression "house" in section 47of the law. It reads as follows
"House" means an independent living unit whether assessed ornot for the purpose of levying rates, constructed mainly or solely forresidential purposes, and having a separate access, and through whichunit access cannot be had to any other living accommodation, andincludes a flat or tenement, but shall not include-
subdivisions of, or extensions to, a house which was firstoccupied as a single unit of residence; and
a house used mainly or solely for a purpose other than a resi-dential purpose for an uninterrupted period of ten years prior
to March 1,1972.
Mr. Dillimuni drew our attention to the words "through which unitaccess cannot be had to any other living accommodation" and stressedthat the existence of the "inter-connecting door" provided access fromthe premises No. 45/6 to premises No. 45. Therefore, Counsel urgedthat the premises in suit did not fall within the meaning of the expres-sion "house" in the law. In short, the existence of the "inter-connectingdoor" takes the premises in suit out of the definition.
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Mr. E.D. Wikremanayake for the 5th Respondent presented his casebefore us on the assumption that there was an "inter connecting door"between the two premises. Mr. Wikremanayake submitted that havingregard to the evidence and the terms of the definition of the expression"house", the existence of an inter connecting door does not take thepremises out of the definition. The assessment registers show thatfrom 1941 to 1948 there was one assessment number given for theentire building, namely No. 45. The assessment registers further showthat in 1949 there was a sub-division of the premises, namely, assess-ment Nos. 45 and 45/6.
Premises No. 45 is described as a ‘book depot", while premisesNo. 45/6 has been described as a "tenement" in the assessment regis-ter for 1949. Mr. Wikremanayake first submitted that the inter-connect-ing door therefore provided access from the "tenement" to the “bookdepot" and not into any "living accommodation" as contemplated inthe definition of a “house". It is right to state here that Mr. Dillimuni'ssubmission was that in premises No. 45 there is an attic which pro-vided "living accommodation”.
Mr. Wikremanayake next submitted that the words "whether as-sessed or not for the purpose of levying rates, constructed mainly orsolely for residential purposes, and having a separate access andthrough which unit access cannot be had to any other living accom-modation" qualify only the preceding words “an independent living unit."Mr. Wikremanayake emphasized that the definition expressly includesa "tenement" and the assessment register of 1949 described thepremises in suit as a "tenement". Counsel further pointed out that theunchallenged evidence is that the door was closed for the past 32years. It is not disputed that the 5th Respondent was residing in thesepremises long before the Appellant purchased the premises in 1979.1am inclined to the view that there is force in these submissions madeby Mr. Wikremanayake.
On a consideration of the entirety of the facts and circumstancesof this case, it seems to me that it cannot be said that the decision ofthe Board of Review is unreasonable; nor can it be said that it is un-supported by the evidence on record. At most, the alleged error of theBoard of Review lies in the evaluation and the assessment of the oral
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and documentary evidence. I find myself unable to agree with Mr.Dilimuni for the Appellant that the Board of Review has erred in re-spect of a "jurisdictional fact." The error, if at all, is one made withinthe area of the jurisdiction of the Board of Review.
In this view of the matter, it is necessary to consider whether theprovisions of section 39 (3) of the law read with section 22 of theInterpretation Ordinance as amended by Act No. 18 of 1972 precludejudicial review of the decision of the Board of Review.
I think it would be correct to say that generally speaking an ousterclause is strictly construed and that there is a presumption in favour of
judicial review. As observed by H.W.R. Wade "there is a
firm judicial policy against allowing the rule of law to be undermined byweakening the powers of the Court. Statutory restrictions on judicialremedies are given the narrowest possible construction, sometimeseven against the plain meaning of the words. This is sound policy,since otherwise administrative authorities and tribunals would be givenuncontrollable power and could violate the law at will (at page 720 ofthe 6th Edition on Administrative Law. At page 722 of the same editionWade states "An even bolder, though equally justifiable, judicial policywas that Certiorari would be granted to quash an act or decision whichwas ultra vires even in the face of a statute saying expressly that noCertiorari should issue in such a case."
Mr. Dillimuni relevantly cited the case of Chandralatha Wijewardenav People's Bank and Others. This was a case where Sharvananda, J.(as he then was) considered the scope of section 22 of the Interpreta-tion Ordinance as amended by Act No. 18 of 1972. Said the learnedJudge, "In my view, section 22 of the Interpretation Ordinance asamended by the Interpretation (Amendment) Act No. 18 of 1972, hasno application when the question of jurisdiction to make the impugnedorder is in issue, when the order or determination is outside or in ex-cess of the jurisdiction of the tribunal. Section 22 deals with decisionsand orders which any person, authority or tribunal is empowered tomake or issue, The court's jurisdiction to pronounce on the authorityof the tribunal to make an order is not ousted by any such exclusionaryclause "shall not be called in question in any court" if the tribunal wasnot empowered to make the order. The question of the tribunal's juris-
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Samarasinghe v. Air Lanka Ltd. and Others
259
diction to make the order or decision can always be agitated. Section22 of the Interpretation Ordinance does not exclude review of jurisdic-tional questions. The bar applies only to erroneous decisions made
within the area of the tribunal's jurisdiction* I am in entire
agreement with the view of the learned Judge that the section does notshut out judicial review on jurisdictional grounds; it is a bar to thereview of erroneous decisions made within the area of the jurisdictionof the tribunal. As stated earlier, the error of the Board of review is atmost an error made within jurisdiction, and the ouster clause wouldaccordingly apply.
For these reasons the appeal fails and is dismissed, but in all thecircumstances, without costs.
RAMANATHAN, J. -1 agree.
WIJETUNGA, J. -1 agree.
Appeal dismissed.