016-SLLR-SLLR-1995-2-MUTTIAH-V.-COMMISSIONER-FOR-NATIONAL-HOUSING.pdf
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Sri Lanka Law Reports
[1995] 2 Sri LR.
MUTTIAH
v.
COMMISSIONER FOR NATIONAL HOUSING
COURT OF APPEAL.
ISMAIL, J.
C.A. NO. 674/92OCTOBER 17, 1994.
Ceiling on Housing Property Law – No. 1 of 1973 – Excess house – S.8, 8.3(a)8(4) of Ceiling on Housing Property Law – Application under S. 18A of Rent Act -Demolition of House.
Petitioner applied on 9.11.1983 under S. 18A of the Rent Act for an Order todemolish the buildings standing in the premises owned by her. The Inquiry waslaid by as the occupants of the houses had made applications for the purchase ofthese premises. This Order to lay by was quashed by the Court of Appeal, andthe Commissioner was directed to proceed with the S. 18A Inquiry. After 1 1/2years, on 2.1.1992 the Commissioner requested the petitioner to pursue thematter with the Provincial Housing Commissioner. On 28.3.1992 theCommissioner informed the Petitioner that 6 out of the 9 houses were vested inhim under Section 8(4) of Ceiling on Housing Property Law. This application is toquash the vesting Order.
Held:
It appears that the Commissioner has not communicated his decision, to vestthe said six houses in writing for almost 16 months although he claims to haveorally informed the Petitioner.
The petitioner has been denied an opportunity to challenge the decision of theCommissioner.
It is not clear as to the basis upon which only 6 of the 9 houses becamevested in the Commissioner. It is also not clear whether the Commissioner actedunder S. 8 3(a).
It appears that the decision to vest was taken by the Commissioner after hewas directed by the Court of Appeal to proceed with the S. 18A Inquiry.
AN APPLICATION for writ of Certiorari.
S. Mitrakrishnan with Mrs. C. R. Mitrakrishnan for Petitioner.
Kumar Paul, S.C. for Respondent.
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December 7, 1994.
ISMAIL, J.
The petitioner became the owner of premises bearing assessmentNos. 417, 419, 419/1, 419/2, 419/3, 419/4, 419/5, 419/6 and 419/7,Prince of Wales Avenue (now Sirimavo Bandaranaike Mawatha)Colombo 14, by deed No. 2169 dated 8.10.64. Out of the aforesaidpremises those bearing Nos. 417, 419, 419/1, 419/2, 419/3 and 419/4became vested in the Commissioner for National Housing with effectfrom 23.11.90, under section 8(4) of the Ceiling on Housing PropertyLaw No. 1 of 1972, as amended. The notice of the said vesting waspublished in the Gazette dated 14.12.90 (XII). The petitioner has inthe present application sought a writ of Certiorari to have the ordervesting these premises quashed.
The petitioner made application to the Commissioner on or about9th November 1983 under section 18A of the Rent Act, No. 7 of 1972,for an order authorizing her to demolish the buildings standing on thepremises owned by her. An inquiry into this application commencedon 6.2.84 but soon thereafter the respondent informed the petitionerby letter dated 6.3.84 that he was laying by the said inquiry as theoccupants of the houses have made applications for the purchase ofthese premises. This order was quashed by this Court in C.A.Application No. 743/87 and a writ of mandamus was issued directingthe Commissioner to proceed with the inquiry into the saidapplication of the petitioner – (C.A. Minutes of 22.6.90).
The Commissioner has stated in his affidavit that he could notcomply with this order as his powers had by then devolved on theProvincial Housing Commissioner and that, in any event, he too couldnot have proceeded with the inquiry into the application of thepetitioner for an order authorising the demolition of the houses as thesaid premises had been vested in him.
The order vesting the premises has been made on 23.11.90according to the Gazette Notifications published in English andSinhala, while the vesting order is dated 24.11.90 in the GazetteNotification published in Tamil.
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It is clear that no steps were taken by the Commissioner pursuantto the order of this Court directing him to proceed with the inquiry intothe petitioner’s application for the demolition of the premises for aperiod of one and a half years. Then on 21.1.92 he requested thepetitioner to be present at a discussion and admittedly on 29.1.92 headvised the petitioner to pursue this matter with the ProvincialHousing Commissioner. The Commissioner confirmed this by hisletter dated 20.3.92 and by a further letter, on 28.3.92, he hasinformed the petitioner that the said premises were vested in himunder section 8(4) of the Ceiling on Housing Property Law.
The petitioner has produced the letter of the Commissioner dated1.7.92 (X10), to which was annexed a copy of the Gazette notificationof 14.12.90 (X11), informing him that the premises referred to thereinwere vested in him under section 8(4) of the Ceiling on HousingProperty Law. It is to be noted that the Commissioner has specifiedthat 6 of the 9 houses bearing Nos. 417, 419, 419/1, 419/2, 419/3,and 419/4 owned by the petitioner were vested in him.
The Commissioner explaining the circumstances in which thesehouses came to be vested in him has stated that in March 1985 thetenants of all the houses owned by the petitioner complained to himthat she owned surplus houses, including those occupied by them.He held an inquiry into this matter at which the petitioner wasrepresented by an Attorney-at-Law and he found that she ownedsurplus houses. He claims that on 17.9.88 the petitioner wasinformed that 8 houses, excluding house bearing assessmentNo. 419/3, were vested in him in terms of section 8(4) of the Ceilingon Housing Property Law. The Commissioner has also stated that thepetitioner was at all relevant times fully aware that these premiseswere surplus houses which had vested in him. Yet, it appears that theCommissioner has not communicated his decision to vest the surplushouses owned by the petitioner in writing, although he claims to haveorally informed the petitioner about the vesting on 17.9.88. He couldnot have done so earlier because the vesting order has been signedby him either on 23.11.90 or 24.11.90. However, it is not clear as tothe basis upon which the Commissioner could have orally informedthe petitioner, on 17.9.88, that 8 of the 9 houses owned by her,excluding house bearing assessment No. 419/3, vested in him. Nor is
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it clear as to the basis upon which only 6 of the 9 houses owned bythe petitioner specified in the Gazette notification vested in him. TheCommissioner has failed to communicate his decision after thevesting order was signed by him on or about 23.11.90, until about anyear and 4 months later, either on 28.3.92 as claimed by him or until5.3.92 (X9) as stated by the petitioner. This was, in any event, afterthe Commissioner was directed to proceed with the inquiry into thepetitioner’s application for the demolition of the buildings by thejudgment of this court on 22.6.90 in C.A.Application No. 743/87.
Section 8(4) of the Ceiling on Housing Property Law provides as
follows:
“Any person who has, without reasonable cause, failed to send thedeclaration, within the period referred to in subsection (1) orsubsection (2), as the case may be, or has made any incorrectdeclaration in regard to the number of houses owned by him or by hisfamily, as the case may be, shall be guilty of an offence under thisLaw, and any such house owned by such person or by any memberof the family of such person as may be specified by theCommissioner by Notification published in the Gazette shall vest inthe Commissioner with effect from such date as may be specifiedtherein.”
Section 8(1) and 8(2) refer, inter alia, to declarations within the timespecified by an individual who is not a member of a family andmembers of a family respectively, who own houses in excess of thepermitted number of houses and the vesting of such houses if nosuch declaration or an incorrect declaration is made.
The petitioner has stated in paragraph 15 of her affidavit that thesaid houses were not surplus houses within the meaning of theCeiling on Housing Property Law and that she had previously sent adeclaration to the Commissioner that they are not surplus houses andthat she proposes to retain them for her husband and her 6 children.The Commissioner has not replied this averment in the affidavit of thepetitioner on the basis that reference has been made by thepetitioner to “excepted premises” not known to the Ceiling onHousing Property Law. This has subsequently been corrected by thepetitioner to read as “surplus premises".
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The Commissioner has stated that he became aware in March '85,on representations made by the occupants of the houses owned bythe petitioner, that she owned houses in excess of the permittednumber of houses. The petitioner has herself not set out thecircumstances in which she sent the declaration referred to in heraffidavit. It is also not clear whether the Commissioner did take actionin terms of section 8(3A) of the Ceiling on Housing Property Law, therelevant provisions of which are as follows:
“Where the Commissioner has reason to believe that houses inexcess of the permitted number of houses were owned by anyperson who has not made a declaration as required bysubsection (1) or subsection (2), the Commissioner shall bya notice served on such person require such person to furnishthe requisite declaration together with any other particularsin such a manner as may be specified by the Commissionerwithin a period of six weeks from the date of service of suchnotice …”
The respondent Commissioner has failed to explain thecircumstances in which he specified that 6 of the 9 houses owned bythe petitioner vested in him under section 8(4) of the Ceiling onHousing Property Law. There is no indication as to whether he tookinto account that the petitioner had 6 children and if so, whether shehad houses in excess of the permitted number of houses, whether itwas necessary for her to submit a declaration under section 8(2) ofthe Ceiling on Housing Property Law or whether she failed to sendthe declaration "without reasonable cause” or that, if she had made adeclaration whether it was an incorrect declaration and whether shewas guilty of an offence under this Law. These are some of therelevant matters which the Commissioner should have consideredbefore proceeding to specify in the Gazette notification that 6 of the 9houses owned by her vested in him. If in fact the Commissioner hasconsidered these matters, prior to making a decision on or about23.11.90 to vest these houses, he had failed to communicate hisdecision to the petitioner soon thereafter, and the petitioner couldnow claim that she was deprived of her right of appeal to challengethe decision of the Commissioner.
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Muttiah v. Commissioner for National Housing (Ismail, J.)
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For these reasons I am of the view that the Commissioner haserred in law and that he has not acted in accordance with theprovisions of section 8 of the Ceiling on Housing Property Law investing the premises specified in the Gazette Notification dated14.12.90.1 therefore direct the issue of a writ of certiorari to quash thevesting order dated 23/24.11.90 published in the Gazette dated14.12.90 (XII).
Application allowed.