051-SLLR-SLLR-1998-V-3-LEELAWATHIE-v.-MANEL-RATNAYAKE.pdf
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Leelawathie v. Mane! Ratnayake
349
LEELAWATHIE
v.MANEL RATNAYAKE
SUPREME COURTG. P. S. DE SILVA CJ„
WIJETUNGA, J. ANDBANDARANAYAKE, J.
S.C. APPEAL NO. 73/95C.A. APPLICATION NO. 54/85JUNE 15, 1998.
Ceiling on Housing Property Law – Writ of Certiorari – Tenant's application topurchase the house let to him – S. 13 of the law – Death of tenant pending writapplication – Right of deceased tenant's daughter to proceed with S. 13 application.
The tenant applied in terms of S.13 of the Ceiling on Housing Property Law, No.1of 1973 to purchase the house let to her. The Commissioner for National Housingdecided to recommend to the Minister the vesting of the house for the purposeof sale to the tenant. On an appeal by the owner of the house under S. 39 ofthe law, the Board of Review set aside the Commissioner's decision. The tenantmoved the Court of Appeal by way of certiorari to quash the order of the Boardof Review. The tenant died pending the hearing of the application and her daughter(the respondent) was substituted after which the court set aside the order of theBoard of Review.
Held:
The tenant's right conferred by S.13 of the Ceiling on Housing Property Law ispersonal to the tenant making the application. That right ceased upon the tenant'sdeath; and the respondent is not entitled to proceed with the application under
S.13 made by the original tenant.
Cases referred to:
Caderamanpulle v. Keuneman SC Appeal No. 15/79 SC Minutes19, September, 1980.
Perera v. Lokuge and Others (1996) 2 Sri LR 282.
APPEAL from the judgment of the Court of Appeal.
P. A. D. Samarasekera, PC with Peter Jayasekera and R. Y. D. Jayasekera forthe respondent.
T.B. Dillimuni with Tissa Bandara for the substituted petitioner respondent.
Cur. adv. vult.
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June 24, 1998.
G. P. S. DE SILVA, CJ.
The 5th respondent-appellant (appellant) is the owner of premisesNo. 35, Ananda Mawatha, Colombo 10, which forms the subject-matter of these proceedings. The tenant of these premises AslinRatnayake (now deceased) made an application to the Commissionerof National Housing in terms of section 13 of the Ceiling on HousingProperty Law (CHP law) to purchase the premises. The Commissionerof National Housing held an inquiry and informed the appellant andthe tenant of his decision to recommend to the Minister to “vest" thepremises in terms of section 17 of the CHP law. Thereupon theappellant preferred an appeal to the Board of Review against thedecision of the Commissioner of National Housing. (Section 39 of theCHP law). The Board of Review, after inquiry, allowed the appeal andset aside the decision of the Commissioner of National Housingrecommending the "vesting'' of the premises. Thereafter the tenantmoved the Court of Appeal by way of a writ of Certiorari to quashthe order of the Board of Review. The Court of Appeal set aside theorder of the Board of Review. The present appeal is against thejudgment of the Court of Appeal.
It is common ground that pending the hearing of the applicationfor a writ of Certiorari, the tenant (Aslin Ratnayake) of the premisesdied. The daughter of the tenant was formally substituted in the roomof her deceased mother. She is the present substituted petitioner-respondent. It would appear that the appellant did not object to thesubstitution as the substitution was of a formal nature in order toproceed with the hearing and disposal of the application before theCourt of Appeal. I am therefore of the view that the failure of theappellant to object to the substitution of the daughter in the room ofthe deceased tenant has no relevance to the question that arises fordecision on this appeal.
The short point that arises for consideration before us is whetherthe application made by the tenant in terms of section 13 of the CHPlaw can be proceeded with by the substituted petitioner-respondentafter the death of the tenant. In other words, has the substitutedpetitioner-respondent the locus standi to maintain the application madeby her mother (now deceased) who was the tenant of the premises?
SCLeetawathie v. Manet Ratnayake (G. P. S. de Silva, CJ) 351
The material provisions in the CHP Law are sections 9, 13 and
17 (1) and (2):
Section 9 – "The tenant of a surplus house or any person who maysucceed under section 36 of the Rent Act to the tenancy ofsuch house may, within four months from the date ofcommencement of this law, apply to the Commissioner for thepurchase of such house."
Section 13 – "Any tenant may make application to the Commissionerfor the purchase of the house let to him where no action orproceedings may under the Rent Act be instituted for the ejectmentof the tenant of such house on the ground that such house isreasonably required for occupation as a residence for the land-lord of such house or for any member of his family.
Provided, however, that where the application made is topurchase a house in respect of which an application may bemade under section 14 (1), the Commissioner shall not take anyaction in respect of the application made unless the owner ofsuch house consents to the sale of such house; and suchconsent may be withheld under this law in respect of only oneof the permitted number of houses.
For the purpose of this section and section 12, "tenant"includes a tenant in whose favour an order for the delivery ofpossession of a house has been made under section 5 of theProtection of Tenants (Special Provisions) Act.
In this section, the expression 'house' does not includea house owned by a local authority, a Government departmentor public corporation".
Sections 17 (1) and (2) – "(1) Where an application has been madeunder this law for the purchase of a house, and the Commis-sioner is satisfied-
that such house is situated in an area which in his opinionwill not be required for slum clearance, development orredevelopment or- for any other public purpose;
that it is feasible to alienate such house as a separate entity;and
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(c) that the applicant is in a position to make the purchase.
the Minister may, on being so notified by the Commissioner, byOrder (hereinafter referred to as a “vesting order") published in theGazette vest such house in the Commissioner with effect from suchdate as may be specified therein.
(2) as soon as may be after a house is vested in the Commissionerunder subsection (1), the Commissioner shall enter into anagreement with the applicant for the sale of such house to theapplicant, subject to the following conditions:
that the applicant shall pay to the Commissioner a lump sumor on rent purchase terms or in such instalments as maybe determined by the Commissioner, the amount determinedunder this law as the price payable for such house to theformer owner and an additional sum of five per centum ofsuch amount to cover the costs incurred by the Commis-sioner;
that until the amount payable as the price of such houseis finally determined under this law, the applicant shall maketo the Commissioner a monthly payment of an amount notless than the monthly rent payable for such house, whichpayment shall be set off against the amount payable as theprice of such house;
that the applicant shall be responsible for the repairs to, andthe maintenance of, the house and shall insure the houseagainst loss or damage by fire, civil commotion and riot andpay all rates and taxes due to any local authority; andsuch other conditions as may be determined by theCommissioner."
Section 9 applies to a "surplus house" within the meaning of section8 (5). Thamotheram, J. in Caderamanpulle v. Keunemari'], referringto an application under section 9 observed, "In regard to such anapplication no question of an inquiry arose as between landlord andtenant as the landlord had already lost his rights of ownership". Onthe other hand, section 13 (the section relevant to this case) appliesto a house which is within the permitted number which a landlord is
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Leelawathie v. ManeI Ratnayake (G. P. S. de Silva, CJ)
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entitled to retain as owner. In regard to section 13, Thamotheram,J. in Caderamanpulle's case (supra) stated : "As the application undersection 13 is in respect of a house permitted by law to be ownedby the landlord, his consent is always relevant even where theCommissioner has the discretion to act under section 17 notwithstand-ing the landlord refusing consent. The Commissioner has to hear thelandlord and consider his position fairly before deciding to act undersection 17."
Moreover, there is a significant difference in the language of section9 and section 13, insofar as the person entitled to make the applicationis concerned. While the entitment to make an application for thepurchase of the house is confined to “any tenant" in terms of section13, the provisions of section 9 speak of the tenant. . . or anv personwho may succeed under section 36 of the Rent Act to the tenancy.
. .. The words underlined above are not found in section 13. It seemsto me that the difference in the language tends to show that the rightconferred by section 13 is personal to the tenant who makes theapplication. In this connection, it is also relevant to note (as statedearlier) that section 13 applies to houses which are within the permittednumber allowed to be owned by the landlord.
Once an application is made in terms of section 13 to purchasea house, the Commissioner of National Housing has to be satisfiedin regard to the specific matters set out in sections 17 (1) (a), (b)and (c). Analysing the provisions of section 13 read with section 17,Thamotheram, J. in Caderamanpulle's case (supra) expressed himselfin the following terms: “It seems to me that the effective decision ordetermination in regard to the tenant's application under section 13is made by the Commissioner and not by the Minister… Under section13 an application has to be made under the law for the purchaseof a house. This does not mean that every application purporting tobe validly made under section 13 has to be acted on and a notificationmade to the Minister under section 17 even if (a), (b) and (c) of thelatter section are satisfied. It was rightly conceded by Mr. H. L. deSilva that there was an area of discretion left to the Commissionerfor him to consider the equities in the case and decide whether theapplication should be entertained. Before going into the question raisedat (a), (b) and (c) of section 17, he must decide whether he is goingto accept an application under section 13 and notify the Minister thatan application has been made under this law. The Commissioner isnot a mere conduit pipe through whom an application of a tenant under
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section 13 goes to the Minister even if conditions (a), (b) and (c) aresatisfied.” It would also be relevant to refer to the case of Pererav. Lokuge and otherswherein Kulatunga, J. held (1) that the"Minister's power to make the vesting order is discretionary”, (2) ”theCommissioner is under a duty to consider equities in addition to thematters set out in section 17 to enable the Minister to make a fairdecision". It is thus abundantly clear that the CHP law requires theCommissioner of National Housing to address his mind to "the equitiesin the case" and to act fairly. This again is a pointer to the true natureof the application made under section 13, namely, that the rightconferred is personal to the tenant making the application. The positionof the present substituted-petitioner-respondent may well be differentfrom the position of the original applicant. In short, "the equities inthe case” could be different.
Furthermore, there is the significant fact that in the present casethe tenant who made the application in terms of section 13 died beforean Order was made by the Minister under section 17 (1) vesting thehouse in the Commissioner of National Housing. There was not evena notification by the Commissioner to the Minister under section17 (1). Thus the deceased tenant had no proprietary rights in respectof the house which could pass to her heirs on her death.
Admittedly, the present substituted petitioner-respondent is not theperson who made the application under section 13 to purchase thepremises in suit. For the reasons stated above, I hold that thesubstituted petitioner-respondent is not entitled to proceed with theapplication made under section 13 by the original applicant, namely,the deceased tenant (Aslin Ratnayake) and the Commissioner ofNational Housing himself has now no right to entertain the application.The right conferred by section 13 is personal to the tenant who makesthe application and comes to an end upon her death – Actio personalismoritur cum persona. Accordingly, the appeal is allowed and thejudgment of the Court of Appeal is set aside. In all the circumstances,I make no order for costs.
WIJETUNGA, J. – I agree.
BANDARANAYAKE, J. – I agree.
Appeal allowed.