052-SLLR-SLLR-1998-V-3-WIJEBAHU-v.-SUMANASEKERA-AND-OTHERS.pdf
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Wijebahu v. Sumanasekara and Others
355
WIJEBAHU
v.
SUMANASEKARA AND OTHERS
SUPREME COURTAMERASINGHE, J.,
ANANDACOOMARASWAMY, J. ANDGUNAWARDANA, J.
S.C. APPEAL NO. 148/96C.A. APPLICATION NO. 688/93
30 SEPTEMBER, 13 OCTOBER, 21 NOVEMBER, 199719 JANUARY AND 4 MAY, 1998.
Ceiling on Housing Property Law – Writ of Certiorari – Tenant's application topurchase the house let to him – Failure to make the owner of the house a partyto the application – S. 13 of the law – Repeat of the right to purchase houses- Act No. 4 of 1988 – Owner's right to negate the sale of the house.
On 16.4.86 the tenant applied to the Commissioner for National Housing underS.13 of the Ceiling on Housing Property Law, No.1 of 1973 to purchase the houselet to him. To the knowledge of the tenant, the appellant was the owner of thehouse. But the tenant made the appellant's predecessor in title who had diedin 1982 the respondent to the application. The appellant having learnt about theinquiry appeared before the Assistant Commissioner on 30.3.89 by which datethe right of tenants to purchase houses in terms of S.13 of the law had beenremoved by Act No. 4 of 1988 with effect from 1.1.1987. The Commissionerdecided to recommend the vesting of the house to enable its sale to the tenant.
Held:
The owner had acquired a right under Act No. 4 of 1988 that the house is notliable to be sold to the tenant in terms of the Ceiling on Housing Property Law.The application of the tenant was void ab initio as it had been made againsta non-existing person and the provisions of the amending Act barred the applicationafter the specified date.
Case referred to:
1. Teyabally v. Hon. R. Premadasa SC Appeal No. 69/92 SC Minutes 5November, 1993.
APPEAL from the judgment of the Court of Appeal.
Faiz Musthapha, PC with S. Mahenthiran for the appellant.
A. K. Premadasa, PC with C. E. de Silva for the 1st respondent.
Cur. adv. vult.
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June 17, 1998.
A. DE Z, GUNAWARDANA, J,
This is an appeal from a judgment of the Court of Appeal dismissingan application made by the appellant for a Writ of Certiorari seekingto quash, (a) the decision of the 2nd respondent, the Commissionerfor National Housing recommending the vesting of residential premisesNo. 35, Dutugemunu Street, Dehiwala, belonging to the appellant, onan application made by the 1st respondent to purchase it, and (b)the order made by the Board of Review, consisting of the 3rd to the6th respondents dismissing an appeal taken by the appellant againstthe said decision.
The subject- matter of this appeal is the premises bearing No. 35,Dutugemunu Street, Dehiwala, where the 1 st respondent is the tenant.It is common ground that one Dr. Fonseka was the original ownerof the said premises. Dr. Fonseka and his wife had adopted theappellant as a son, although there is no formal adoption order, madeunder the Adoption Ordinance. Upon the death of Dr. Fonseka thepremises had devolved on his widow. Mrs. Fonseka had by her lastwillbequeathed the property to the appellant. Mrs. Fonseka died on the15th of December, 1982 and, upon the will being admitted to probate,by executor's conveyance bearing No. 1120 dated 6.9.1996, theappellant became the owner of the said premises.
The 1st respondent's father who was the original tenant underDr. Fonseka, died in 1975, and thereupon the 1st respondent's motherbecame the tenant of the said premises. She died in 1982 and the1st respondent became the tenant of the said premises.
The 1st respondent made an application under section 13 (1) ofthe Ceiling on Housing Property Law, on 16.4.1986 (XI) to purchasethe said house. The said application was made on a form issued bythe Commissioner of National Housing. It is pertinent to note that incage 3 where it is required to give the name of the owner, it is statedas follows: "Said to be, Mrs. Indra Fonseka (deceased)" Inconsequence of the said application the Commissioner issued a noticedated 22.3.1989 (X2) addressed to Mrs. Indra Fonseka, who wasdeceased at the time.
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The learned counsel for the appellant submitted that upon receiptof said notice at the appellant’s address, the appellant appeared beforethe 2nd respondent, the Commissioner, on 30.3.1989, with a view ofinforming the Commissioner that Mrs. Fonseka is dead. The Com-missioner recorded answers to a number of questions directed at theappellant on that occasion (vide X3). It is recorded therein that: " Mr.Mohan Wijayabahu, the respondent's adopted son, present". There-after his statement has been recorded, where he has asserted thathe is the present owner of the said premises, and that the tenant,the 2nd respondent has accepted him as the landlord, and paid rentto him. He has further stated that he is not consenting to the saidpremises being vested and sold to the tenant. He has not been cross-examined. This version of the facts spoken to by the appellant wasnot disputed by the Commissioner, and has not filed an affidavitcontroverting this position.
The Commissioner by his letter dated 24.4.1990 (vide X4) informedthe appellant of the decision to recommend the vesting of the saidpremises. The appellant appealed from the said decision to the Boardof Review. The Board of Review by its Order dated 17.7.1993dismissed the appeal. Thereupon the appellant sought to challengethe said Order by way of an application for a Writ of Certiorari inthe Court of Appeal. The Court of Appeal dismissed the said appli-cation by its Order dated 7.2.1996.
The learned counsel for the appellant submitted that the saidapplication to the Commissioner having been made against adeceased person, viz Mrs. Fonseka, as stated above, was void andbarred by the provisions of the Ceiling on Housing Property (SpecialProvisions) Amending Act No. 4 of 1988. He contended that sinceit is stated in the application itself that the owner Mrs. Indra Fonsekais dead, the said application to the knowledge of the 1st respondentwas made against a deceased person. He submitted that the provisoto section 13 requires that the application must be made against anamed owner. The said proviso states that where the application ismade to purchase a house described in section 14 (1) “the Com-missioner shall not take any action in respect of the application madeunless owner of such house consents to the sale of such house".In other words, without further inquiry, at the threshold itself, theCommissioner has to stay his hand, if the owner does not consent.Section 14 stipulates that the house should inter alia be a house inrespect of which ownership of such house was acquired by construc-tion or purchase before the specified date or purchased before the
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specified date or by gift or inheritance from a grandfather, a parentor spouse who had acquired ownership before the specified date. Theterm “specified date” is defined as the date on which the tenant forthe time being or the tenant upon whose death the current tenantsucceeded to the tenancy came into operation. In order to determinethese requirements, there must necessarily be a disclosure in theapplication itself of the identity of the owner.
The learned counsel for the 1st respondent submitted that the onlyrequirement under section 13 of Ceiling on Housing Property Law isto make an application to the Commissioner informing the Commis-sioner that the tenant desires to purchase the house let to the tenant.He stressed that under the said law, there is no provision prescribingthe form in which the application has to be made. He cited the caseof Mariam Nurban Hussain Teyabally (now Mrs. M. A. Mansoor) vs.Hon. R. Premadasa01 where at page 5 it is stated as follows:
"It is relevant to note that the law does not stipulate a time
limit within which the application has to be made. Nor is there a
prescribed form in which the application has to be forwarded".
Although the said law does not prescribe a form in which to makethe application, it is nevertheless essential to state the relevant particularsin the application, to enable the Commissioner to make a decision,because the provisions of section 13 states that certain requirementshave to be satisfied, before the Commissioner makes a recommen-dation to the Minister. For example, in the instant case, the Com-missioner had to ascertain whether the owner would consent to thesale of the said premises to the tenant, because if the owner didnot consent, he could not have proceeded any further with thisapplication. Thus it was necessary in this case that the name of thepresent owner should have been given in the application, so that hewould be made the respondent to the application, instead of that, whatthe respondent had done was to give the name of Mrs. Indra Fonseka,who to the knowledge of the respondent, was deceased by then. Therespondent has made the issue further uncertain by adding the words,"said to be". Whereas by the time the respondent made the saidapplication, according to her own evidence before the Commissioner,on 30.03.1989 (X3), the present owner, is the appellant. Further inthe earlier application filed by her in the Rent Board, seeking per-mission to renovate the house, she was accepted as the tenant bythe appellant. Thus it appears that, the respondent has, for reasons
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best known to her, omitted to mention the name of the appellant asthe owner of the said premises.
The resulting position is that the respondent has failed to makethe appellant, a respondent to the said application. In this context,whether the participation of the appellant in the proceedings beforethe Commissioner on 30. 3. 1989 would regularise the proceedings,also arises for consideration. In my view this question must beconsidered in the light of the provisions of the Ceiling on HousingProperty (Special Provisions) Amending Act No. 4 of 1988. It ispertinent to note here the provision in section 3 of the said amendingAct which states as follows:
Section 3. – Notwithstanding anything in the principal enactment,the tenant of a house or any person who may succeed to thetenancy thereof under section 36 of the Rent Act, No. 7 of 1972,shall not be entitled, from, or after January 1, 1987, to make anapplication, under any provision of the principal enactment, for thepurchase of such a house.
Thus by virtue of the above provision, the right that a tenant hadto make an application to purchase a house ceased to exist, witheffect from 1.1.1987.
However the learned counsel for the 1st respondent submitted thatthe said application was made prior to the said date, and the provisionsof section 4 (c) of the said amending Act would apply to save suchpending applications. The said section 4 (c) states that:
Section 4 (c) Any action, proceeding or thing commenced underthe principal enactment, and pending or incompleted on January1, 1987, which action, proceeding or thing may be carried on andcompleted as if the principal enactment had not been amendedby this Act.
The learned counsel for the appellant contended that to attract thesaid provision, the application or thing should have been duly “com-menced" and “pending or incompleted". It was submitted that, in thepresent case, there was no application at all, and as such there wasno proceeding or thing “commenced" under the Act or "pending orincompleted" on 30.3.1989, and as such the provisions of section 4
have no application.
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It is to be observed from the facts of this case that there wasno pending application before the Commissioner against the presentowner, the appellant, as at 1.1.1987. Therefore, at the time theappellant appeared before the Commissioner on 30.3.1989, by virtueof the said provisions of section 3, he had acquired a right that thesaid premises are not liable to be sold to the tenant, in terms of theCeiling on Housing Property Law. In this regard it may be noted that,the doctrine of “acquired rights” or “vested rights" has gained recog-nition as a general principle of law. (Lord McNair, “The GeneralPrinciples of Law Recognised by Civilised Nations", 33 B.Y.I.L. (1957)p.16.). Although there is no uniformity in various municipal legalsystems in regard to the character and content of acquired rights,broadly 'rights', may be divided into two categories, viz, 'property' rightsand 'personal' rights. 'Property' rights in general will not be limited toonly real or moveable property but will also include rights in rem intangible and intangible goods and contractual rights whose contentis economic. 'Personal' rights relate to moral or political matters. Theconcept of 'acquired rights' deals with the sanctity of property rightsunder a particular municipal legal system. Acquired rights has beendefined by O'Connel as follows: "Acquired rights are any right, cor-poreal or incorporeal, property vested under municipal law in naturalor juristic person and of an assessable monetary value." (O'Connel,International Law, vol. 2 (second edition – London, 1970) p. 763).Therefore, as the appellant has acquired a right, as aforesaid, it isa violation of a recognised general principle of law, to have permittedthe respondent to proceed with the said application before the Com-missioner.
The learned counsel for the 1st respondent relied on the obser-vation made in the case of M. N. H. Teyabally v. Hon. R. Premadasaand othersi01 (Supra), which states as follows: "The submission of Mr.de Silva, that the tenant must make a fresh application every timethere is a change of ownership, is not well-founded," The learnedcounsel for the appellant pointed out that the said case is distinguish-able from the present case, as the application of the provisions ofthe amending Act No. 4 of 1988 did not arise for consideration, inthe said case. Furthermore, in that case the application had been madeagainst the current owner and there was a change of ownershipthereafter. It was in that context that the learned Chief Justice madethe comment that the proceedings could have been continued withouta formal substitution. It has no bearing at all on the present casewhere the application, ab inito is void as having been made againsta non-existing person, and the provisions of the amending Act barringapplications after the specified date.
SCAlmeida v. Ceylon Fisheries Corporation and Others361
For the reasons stated above, I hereby set aside the judgmentof the Court of Appeal dated 7.2.1996, and allow the appeal of theappellant, with costs fixed at Rs. 2,500.
AMERASINGHE, J. – I agree.
ANANDACOOMARASWAMY, J. – I agree.
Appeal allowed.
Tenant's application declared void ab initio.