PREMADASA v. WIJEYEWARDENA AND OTHERS

033-SLLR-SLLR-1991-V-1-PREMADASA-v.-WIJEYEWARDENA-AND-OTHERS.pdf


CA
333
Premadasa v. Wijeyewardena and Others
In view of the findings in this Appeal, the Appeal No. C.A. 188/87made by the Employer-Respondent – Appellant is dismissed withoutcosts.
Appeal No. 179/81 allowedAppeal No. 188/87 dismissed
PREMADASA
V.
WIJEYEWARDENA AND OTHERS
SUPREME COURTTHAMBIAH, C.J.,
G.P.S. DE SILVA, J. &
RAMANATHAN, J.
S.C. APPEAL NO. 36/91C.A. APPLICATION NO. 736/8917 September, 1991
Writ of certiorari – Status of tenant after decree for eviction during period of stay ofwrit – Right to purchase house under Ceiling on Housing Property Law, No. 1 of 1973after passage of Ceiling on Housing Property Law (Special Provisions) Act, No. 4 of1988 * Withdrawal of application for writ of certiorari – Locus standi
The appellant was a tenant of premises No. 3 Rockwood Place under the 2ndrespondent having earlier been a tenant under his father the 1st respondent who in1979 gifted the premises to the 2nd respondent.
When the Ceiling on Housing Property Law, No. 1 of 1973 came into operation on13 January 1973 the 1st respondent owned 19 houses including No. 3 RockwoodPlace.
On 4.5 1983, the 2nd respondent filed case No. 5639/RE in the District Court ofColombo seeking the eviction of the appellant on the ground of arrears of rent andreasonable requirement. On 4.6.1984 the case was settled. The appellant consentedto judgment – writ not to issue till 31 March 1987. On 19.3.1987 the appellant madean unsuccessful attempt to have the consent judgement revised by the Court ofAppeal.
On 17.5.1987 the appellant sought to chailange the validity of the consent judgementin the District Court itself but did not pursue his application. The issue of writ washowever stayed till 31.11.1987.
On 30 November 1987 the appellant wrote a letter to the Commissioner of NationalHousing, stating that the 1st respondent had made an incorrect section 8 declarationof the number of houses owned by him. under the Ceiling on Housing Property Lawand supported his letter with an affidavit and moved that early steps be taken totransfer the house No. 3 Rockwood Place to him (the appellant) as these premiseswere deemed to have vested in the Commissioner as a surplus house.
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The appellant next moved for order of restitutio in integrum in the District Court torestore the ante status quo before the consent decree but on 6.12.1988 the DistrictCourt dismissed that application and ordered writ to issue. An 'application to the Courtof Appeal to revise the order was refused but the the issue of writ was put off for31 May 1989 and later extended till 30 June 1989.
On 10 July 1989 the Commissioner of National Housing made a determination thatsix of the 1st respondent's houses including No. 3 Rockwood Place vested in him.An appeal (No. 2263) was preferred to the Board of Review but the 3rd respondent(Commissioner of National Housing) made a determination on 8 September 1989cancelling his earlier determination vesting the six houses. The 1st respondent thenwithdrew his appeal to the Board of Review.
The appellant moved for a writ of certiorari in the Court of Appeal to quash the seconddetermination of the Commissioner. The Court of Appeal reserved its order for 14.9.90.In the meantime on an appeal to it, the Board of Review on 11 September 1990 setaside both determinations of the Commissioner and directed an order to be madeafter hearing both sides.
When the "Court of Appeal was about to deliver its order on 14.9.1990 the appellantmoved to withdraw his application in view of the order of the Board of Review. TheCourt of Appeal refused the application to withdraw the certiorari application anddelivered its order refusing application for certiorari. The appellant appealed to theSupreme Court.
Held:
Once the consent decree was entered in D.C. Colombo 5639/RE (on 4.6.1984)the appellant ceased to be a tenant of the premises and merely enjoyed thestatus of an occupier permitted by the Court to do so.
The application to purchase the house had been made by the appellant afterthe right to purchase a house under any provisions of the Ceiling on Housingand Property Law had been specifically removed by section 3 of the Ceiling onHousing Property Law (Special Provisions) Act, No. 4 of 1988. The appellanthad no right to apply for the purchase of the house.
An appeal cannot be withdrawn except with the leave of the court. So also theappellant cannot claim, as a matter of right to withdraw his application forcertiorari. The discretion to allow the withdrawal was in the Court of Appealand it was rightly exercised in this instance.
The law as to locus standi to apply for certiorari may be stated as follows. Thewrit can be applied for by an aggrieved party who has a grievence or by amember of the public. If the applicant is a member of the public he must havesufficient interest to make the application. Since the appellant is no longer atenant, he has no preferential claim to purchase the house in the event of asale by the Commissioner. He is reduced to the position of "any person" to whomthe Commissioner is free to sell the house (s. 12(2)). In other words he is inno better position than any other member of the public. The "expectation topurchase" the house is one which he shares with every member of the public.This could scarcely be described as a "legitimate expectation". Accordingly theappellant has no sufficient interest to apply for a writ of certiorari.
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Premadasa v. Wijeyewardena and Others
(Tambiah, C.J.)
335
Cases referred to:
Tod-Heatley v. Barnard (1890) W.N. 13 C.A.
R V, Fulham Rent Tribunal, ex parte Zerek (1951) 2KB 1,11
Reg. v. Greater London Council, ex parte Blackburn (1976) W.L.R. 550
APPEAL from judgment of the Court of Appeal.
Faiz Mustapha, P.C. with M.M. Saheed and Amarasiri Panditharatne for appellant.T.B. Dillimuni with Miss P. Malalasekera tor 1st and 2nd respondents.
P.G. Dep, Senior State Counsel for 3rd respondent.
Cur. adv. vult
01 October 1991
TAMBIAH, C.J.
This appeal is from an Order of the Court of Appeal dismissing theapplication for a writ of certiorari on the ground that the appellanthad no locus standi to apply for a writ.
The appellant came into occupation of premises No. 3 RockwoodPlace, Colombo 8, as a tenant under the 1st respondent on 1stFebruary, 1973. Thereafter, the 1st respondent gifted the saidpremises to his son, the 2nd respondent, by deed of gift No. 61 of8th December, 1979, and the 2nd respondent became the presentlandlord of the appellant.
The Ceiling on Housing Property Law, No. 1 of 1973, came intooperation on 13th January, 1973. On this date, the 1st respondentowned 19 houses including premises No. 3.
On or about 4th May, 1983, the 2nd respondent instituted actionagainst the appellant in the District Court of Colombo in Case No.5639/RE and sought ejectment on the grounds of arrears of rent andthat the said premises were reasonably required by him foroccupation as a residence. A settlement was recorded in the saidcase on 4th June, 1984, and the parties agreed, inter alia, that theappellant consented to judgment being entered against him but thatthe writ was to be stayed till 31st March, 1987, and that the appellantshould pay a sum of Rs. 500/- monthly as damages.
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Thereafter, on or about 19th March, 1987, the appellant made anapplication to the Court of Appeal, bearing No. 373/87, seeking torevise and set aside the consent order entered in the District Court.Notice of the said application was refused by the Court of Appealand the said application was dismissed. Again, on the 17th May,1987, when the said case No. 5639/RE. was called in the DistrictCourt of Colombo, the appellant challenged the validity of the saidconsent order made on 4th June, 1984. However, the appellant didnot pursue the said objection and the issue of the writ was stayedby the District Court till 31st December, 1987.
According to the appellant, in or about November, 1987, he becameaware that the 1st respondent had in his declaration to theCommissioner of National Housing under s. 8 of Law No. 1 of 1973,made an incorrect declaration of the houses owned by him at thetime Law No. 1 of 1973 came into operation. The appellant thenwrote the letter (P1) dated 30th November, 1987, to theCommissioner of National Housing and also forwarded an affidavit(P1A) dated 30th November, 1987, by him. in the said letter (P1),the appellant stated, inter alia, "In view of the matters set out in myaffidavit, I shall thank you to take early steps to transfer theownership of premises No. 3, Rockwood Place, Colombo 10, to meas a tenant which premises is deemed to have vested in you byoperation of law in terms of Ceiling on Housing Property Law, No.
1 of 1973, as the said L.A. Wijewardene is trying to eject me fromthis house having suppressed these facts." In the said affidavit (P1A),the appellant declared, inter alia, "I became the tenant of premisesNo. 3, Rockwood Place, Colombo 10, under L.A. Wijewardena. On13.1.73 the said Mr. L.A. Wijewardena owned several 'surplushouses' in excess of the permitted number of houses, ascontemplated by the said Law, in that he owned inter alia thefollowing 19 houses."The appellant than itemised the 19 housesincluding premises No.3. Rockwood Place, Colombo 10. Theappellant proceeded to state that as the 1st respondent had twochildren, the 2nd respondent and a daughter, of the 19 houses, atleast 15 houses, including premises No. 3 of which he is tenant aredeemed to have vested in the Commissioner of National Housing byoperation of law under the provisions of Law No. 1 of 1973,assuming that his two children were dependants. Otherwise, as manyas 17 houses are deemed to have vested in the Commissioner. Theappellant further added, "I therefore state that premises No. 3,Rockwood Place, Colombo 10, of which I am tenant too had vested
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in the Commissioner in addition to the other surplus houses. I statethat in view of the matters set out above, since premises No. 3,Rockwood Place, Colombo 10, of which I am tenant is deemed tohave vested in the Commissioner of National Housing, steps betaken to transfer the ownership of this house to me as a tenant, asI am in law entitled to."
The appellant again moved the District Court for an order forrestitutio-in-integrum restoring the ante status quo of the parties priorto the entering of the said consent decree. On 6th December, 1988,the District Court dismissed the appellant's application and madeorder directing the issue of writ. The appellant then made anapplication bearing No. CA 1205/88, to the Court of Appeal to revisethis order. The Court of Appeal in the course of its order dated 15thDecember, 1988, stated, "The settlement was a pure and simplematter to vacate the premises in suit and gave the plaintiff time. Wefind the learned Judge had intervened and extended this time. Wenow find in the course of his submission, Counsel for petitioner statesthat they are prepared to vacate the premises and moves for moretime till 31st May, 1989. It is also brought to our notice that thepetitioner had made an application to the Commissioner of NationalHousing to vest this premises. We hope that the inquiry in this regardwould be expedited before the date of the issue of writ. Howeverthe issue of writ would not have any relationship to the inquiry. Writbe issued on the 31st of May 1989. This order will not affect therights of any of these parties under the Ceiling on Housing PropertyLaw."
On 5th June, 1989, the Court of Appeal, on being informed by theappellant that the Commissioner had not concluded the inquiry,stayed the writ until 30th June, 1989, and added that no further timewould be granted.
The Assistant Commissioner of National Housing concluded theinquiry into the appellant's complaint (P1 & P1A) and theCommissioner of National Housing, who is the 3rd respondent, madea determination on 10th July, 1989 (P10) under s. 8 (4) of Law No.1of 1973 to vest in him 6 houses including premises No. 3, RockwoodPlace. The 1st respondent appealed to the Ceiling on HousingProperty Board of Review in Appeal bearing No 2263. On 8thSeptember, 1989, the 3rd respondent made a determinationcancelling his earlier determination (x) vesting the said 6 houses.
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Thereupon the 1st respondent withdrew the appeal lodged by himto the Board of Review.
The appellant then applied to the Court of Appeal for the issue of awrit of certiorari to quash the determination cancelling the earlierdetermination to vest 6 houses on the ground that the determinationto cancel the earlier determination has been made without affordingthe appellant an opportunity of being heard, and that the said orderhad been made mala fide and for a collateral purpose, in that, thesaid order was made at the instigation of the purchasers who hadpurchased some of the other houses mentioned in the appellant'saffidavit (P1A).
When the application came up for hearing before the Court ofAppeal, Counsel for the respondents took a preliminary objection tothe locus standi of the appellant and the maintainability of theapplication. The Court of Appeal reserved its order for 14thSeptember, 1990. On 11th September, 1990, the Board of Reviewmade order (X9) allowing the appeal of the appellant and set asidethe order (X) made by the 3rd respondent. The Board of Review inits order stated that the complaint of the 1st and 2nd respondentswas that the vesting order was made without hearing; likewise thecomplaint of the appellant was that the order cancelling the vestingorder was also made without hearing him. It set aside both orders(P10 and X) and directed the Commissioner to give a full hearingto both sides and to arrive at a decision on the application of theapplicant.
In the morning of 14th September 1990, the appellant's attorney-at-Law filed a motion in the Registry of the Court of Appeal moving towithdraw the application for the issue of a writ of certiorari for thereason that the Board of Review had made an order on 11thSeptember 1990, setting aside the order made by the 3rdrespondent, and that it is not necessary to proceed with theapplication. The Appellant's Junior Counsel met Justice Palakidnarin his Chambers and submitted that the appellant had filed the saidmotion in the Registry seeking permission to withdraw the application.When the said application was called on that day for delivery ofjudgment, the appellant's Junior Counsel moved to withdraw theapplication. The proceedings of that day are recorded as follows:
CAPremadasa v. Wijeyewardena and Others
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"Judgment delivered in open Court and Counsel for the petitionerstates that the matter has been resolved by the Board of Reviewof National Housing. He wishes to withdraw this application. Thejudgment has been delivered. Counsel for Respondent objectsto the withdrawal at this stage. Court will consider this applicationwhen proper papers are filed. Application is dismissed withcosts".
The Court of Appeal by its order took the view that after the consentdecree entered in D.C., Colombo Case No. 5639/RE the appellanthad ceased to be a tenant of the premises and was enjoying thestatus of an occupier permitted by Court to do so. The Court ofAppeal also took the view that the appellant's letter (P1) drew theattention of the Housing Commissioner to an allegedly falsedeclaration by the 1st respondent in regard to the number of houseshe owns. The petitioner sought thereby to initiate moves to ultimatelypurchase the house. The application to purchase the house has beenmade after the right to purchase a house under any provisions ofthe Ceiling on Housing and Property Law has been specificallyremoved by s. 3 of the Ceiling on Housing Property Law (SpecialProvisions) Act, No. 4 of 1988, which states, "Notwithstandinganything in the principal enactment, the tenant of a house or anyperson who may succeed to the tenancy thereof under s. 36 of theRent Act, No. 7 of 1972, shall not be entitled, from, or after January1, 1987, to make an application, under any provision of the principalenactment, for the purchase of such house." The Court of Appealheld that the appellant had no right to make an application for thepurchase of the house, and consequently cannot make cancellationof the order (X) as a prior step to request the Commissioner to sellthe house.
Before us, the appellant's Counsel, Mr. Faiz Mustapha, P.C.,submitted that the Court of Appeal had erred in refusing theapplication of the appellant to withdraw the application for the issueof a writ of certiorari on the morning of the 14th of September, 1990as there was no live issue between the parties consequent to theorder of the Board of Review on 11th September, 1990. To iquestion by this Court as to why the appellant had waited until tbday fixed for delivery of judgment, to withdraw his application, tfappellant's Counsel replied that the 11th of September may havbeen a Friday and as Saturday and Sunday were non-working day;
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the motion could have been filed only on Monday. However, I findthat the 11th of September, 1990, was a Tuesday and the 14th ofSeptember was a Friday.
Mr. Faiz Mustapha, P.C., next submitted that the Court of Appealhad erred in holding that the appellant has ceased to be a tenantand therefore had no status in the matter; that the Court of Appealhas failed to consider the principles applicable to locus standi inpublic law remedies like certiorari and also failed to consider thatthe applicant had sufficient interest in the matter.
On the question of withdrawal of the application for issue of a writof certiorari, the appellant’s Counsel submitted that the appellant’sprayer to the Court of Appeal was to quash the determination (X)made by the 3rd respondent. The Board of Review has set asidethis determination before delivery of judgment by the Court of Appeal.There must be an order to quash at the time of delivery of judgment.The appallenfs prayer ceased to be one which the Court of Appealcould grant.
Mr. T.B. Diilimuni, learned Counsel for the 1st respondent, on theother hand submitted that the appellant cannot claim a right towithdraw the application. The arguments in the case had beenconcluded and the Court of Appeal had reserved judgment and itwas ready to be delivered. At the last moment, the Court is told notto deliver its judgment. This is an attempt to prevent the Court fromperforming its duty.
Learned State Counsel aiso submitted that judgment has beenreserved by Court and a party can only withdraw with permission ofCourt.
Rule 38 of the Supreme Court Rules, 1978, states that an appellantmay at any time apply to withdraw his appeal, and serve notice ofsuch application to withdraw on every respondent who has enteredan appearance at the Registry; and the Court may, after making aninquiry into the matter, permit the withdrawal of such appeal on suchterms as to costs and otherwise as it may think fit. I also find thispassage in Annual Practice (1958), Vol. 1. at p. 1671:
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(Tambiah, C.J.)341
"An appeal cannot be withdrawn without the leave of the Court,even if the appellant offers to pay the respondent's'costs; andthe Court of Appeal will usually require to be informed of thereasons for withdrawal." Tod-Heatley v. Barnard (1)
The considerations should apply for withdrawal of applications. Theappellant cannot claim, as a matter of right, to withdraw hisapplication for certiorari.
The allowance or rejection of the appellant's application to withdrawhis application for the issue of a writ, was a matter exclusively withinthe discretion of the Court of Appeal. The appellant's motion towithdraw his application merely contained his affidavit that the Boardhad made order on the 11th of September, 1990, setting aside theorder made by the 3rd respondent. A certified copy of this order wasnot annexed to the motion. The Court of Appeal by its order of 14ihSeptember, 1990, quite rightly said that it would consider thisapplication when proper papers are filed. On the material available,the Court has correctly exercised its discretion in not acceding tothe appellant's application to withdraw the application for the issueof a writ of certiorari.
On the question of locus standi, Mr. Mustapha, P.C., submitted thatthe appellant is not relying on s. 9 of the Ceiling on Housing PropertyLaw which enables a tenant to apply to purchase a “surplus house”.Nor is he relying on s. 13 which allows a tenant to apply to purchasea house when the house is of such a category that an action cannotbe maintained in respect of that house on the ground of “reasonablerequirement", or on s. 13A under which a tenant can apply topurchase the tenanted house where the owner had left Sri Lankaand has ceased to be a citizen of Sri Lanka or resident abroad orthe owner is not in existence or cannot be traced. The appellant isrelying, he submitted, on s. 12 (2) of the Law.
S. 8 (4) states that where a person has . made an incorrectdeclaration in regard to the number of houses owned by him or byhis family, any such house owned by such person or by any memberof the family of such person as may be specified by theCommissioner shall vest in him. Upon such vesting, theCommissioner has the power to deal with the vested houses in termsof s. 12. He may transfer such houses to a local authority,Government Department, or Public Corporation, (s. 12 (1)), or he may
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sell such houses (s. 12 (2)). In terms of s. 12 (2)), if he decides tosell, he has to first offer such house to the tenant. If the tenant doesnot accept such offer, "the Commissioner may sell such house toany other person" (emphasis is mine).
It was Mr. Mustapha's contention that if he succeeds his applicationfor certiorari, the determination of the Commissioner (P10) vestingpremises No. 3, Rockwood Place, in him will stand. In terms of s.15 (2), where a house is vested in the Commissioner, theCommissioner shall have absolute title to such house, free from allencumbrances. The appellant will, therefore, be freed of the tenancy,under the 2nd respondent. The appellant falls within the category of"any other person", and therefore has a legitimate expectation of thehouse being offered to him for purchase by the Commissioner. Thisgives him sufficient interest to maintain an application for certiorari.
The English Courts, in earlier decisions, took the view that anapplication for certiorari must be made by an "aggrieved party" andnot merely by a member of the public. However, in recent years theEnglish Courts seem to have become more generous in theirinterpretation of "person aggrieved", and have held that an applicantfor certiorari need not show a personal legal right. As Wade says,(Administrative Law, 4th Edn. p. 543):
"One of the valuable features of the 'public' character of certiorariand prohibition, already emphasised, is that they may be awardedto a member of the public without any special personal right. In R.v. Fulham and Rent Tribunal ex.p. Zerek (2) Parker, L.J. thus statedthe law as to certiorari:
"Anybody can apply for it – a member of the public who hasbeen inconvenienced or a particular party or person who has aparticular, grievance of his own. If the application is made by whatfor convenience one may call a stranger, the rfemedy is purelydiscretionary. Where, however, it is made by & person who hasa particular grievance of his own, whether as a party orotherwise, then the remedy lies ex debito justitiae."
In Reg. v. Greater London Council ex parte Blackburn (3) Mr.Blackburn complained that pornographic films were being openlyshown in London and elsewhere, which were grossly indecent. He
CAPremadasa v. Wijeyewardena and Others
(Tambiah, C.J.)343_
applied for prohibition, in the public interest, to stop the GreaterLondon Council from acting in breach of their statutory duty toprevent the exhibition of pornographic films within their administrativearea. The order of prohibition was granted. Lord Denning M.R.observed (page. 558,559):
. "It was suggested that Mr. Blackburn had no sufficient status tobring these proceedings against the G.L.C. On this point, Iwould ask: who then can bring proceedings when a publicauthority is guilty of a misuse of power. Mr. Blackburn is a citizenof London. His wife is a ratepayer. He has children who maybe harmed by the exhibition of pornographic films. If he has nosufficient interest, no other citizen has. Unless any citizen hasstanding, therefore, there is often no means of keeping publicauthorities within the law unless the Attorney-General will actwhich frequently he will not."
In England, in 1978, following a report of the Law Commission, anew procedure was devised by a new Rule of Order 53 by which,on an application for Judicial Review, the applicant could obtain fromthe High Court relief by way of prerogative writs or by way ofinjunction or declaration cumulatively or alternatively. Order 53 r.8required that in all cases the test is one of "sufficient interest" inthe matter to which the application relates. Thus the locus standi forall 3 remedies are the same.
The law as to locus standi to apply for certiorari may be stated asfollows: The writ can be applied for by an aggrieved party who hasa grievance or by a member of the public. If the applicant is amember of the public, he must have sufficient interest to make theapplication.
In the application to the Court of Appeal for certiorari, the appellantin the forefront of the petition in paragraph (1) described himself as"the tenant of the premises". He relied on his position as tenant ofthe premises under the 2nd respondent to give him standing to applyfor certiorari. His position now is that he is not replying on ss. 9,
13 or 12 (2), or 13 (a) as a tenant of the premises to give himselfstanding to apply for the writ. He now comes forward under thecategory of "any other person" in s. 12 (2), that is, as a “memberof the public" with the expectation and hope that the Commissioner
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would sell the house to him rather than to any other member of thepublic, in case he decides not to transfer the bouse to an institutionenumerated in s. 12 (1).
Mr. Mustapha conceded that the consent decree in D.C. ColomboCase No. 5639/RE has wiped out the tenancy. The appellant enjoysno more than permissive occupation in terms of the decree of Court.Since he is no longer a tenant, he has no preferential claim topurchase the house, in the event of sale by the Commissioner. Heis reduced to the position of "any person" to whom the Commissioneris free to sell the house – vide s. 12 (2). In other words, he is inno better position than any other member of the public.The"expectation to purchase" the house is one which he shares withevery member of the public. This could scarcely be described as a"legitimate expectation". Accordingly, I hold that the appellant has no"sufficient interest" to make this application for a writ of certiorari.
In the result, the appeal fails and is dismissed with costs.
G.P.S. DE SILVA, J. – I agree.
RAMANATHAN, J – I agree.
Appeal dismissed.