IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application in the nature of Mandamus in terms of Article 140 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

1. M. J. M. Ershad, 81 A 2/4 Kynsey Road, Colombo 08.

PETITIONER CA No. CA/Writ/0194/2020 v.

1. The Condominium Authority, National Housing Department Building, 1^st Floor, Sir Chiththampalam A. Gardiner Mawatha, Colombo 02.

2. Madhavi S. Pathirana Yapa, General Manager, National Housing Department Building, 1^st Floor, Sir Chiththampalam A. Gardiner Mawatha, Colombo 02.

3. Cheryl Silva, 81 A, 3/1 and 3/2, Kynsey Road, Colombo 08.

4. Anne Amerasekara, 81 A 2/3, Kynsey Road, Colombo 08.

RESPONDENTS BEFORE : M. Sampath K. B. Wijeratne J. &

M. Ahsan. R. Marikar J.

COUNSEL : H.G. Hussain with M. G. M. Shammas and Nishaath S. Riza for the Petitioner.

Madushka Kannangara, SC for the 1st and

2nd Respondents.

Rienzie Arsecularatne, PC with Chamindri Arsecularatne and Namal Karunaratne for the 3^rd and 4^th Respondents.

ARGUED ON : 21.11.2023 DECIDED ON : 15.12.2023 M. Sampath K. B. Wijeratne J.

Introduction This is an application filed by the Petitioner seeking a writ of mandamus directing the 1^st and 2^nd Respondents to take action against the 3^rd and 4^th Respondents to have all obstructions created and caused by them removed and to take steps preventing them from obstructing in any manner the common areas in the condominium property.

The occupants of the respective units in a condominium property are governed by the Apartment Ownership Law No. 11 of 1973, as amended¹ (hereinafter referred to as the ‘Apartment Ownership Law’), Condominium Management Authority Law, as amended² (hereinafter referred to as the ‘Condominium Management Authority Law’) and the Regulations made thereunder. The Regulations made under Section 24 of the Condominium Management

1 Amendment Act No. 45 of 1982, 4 of 1999, 27 of 2002 and 39 of 2003.

2 Amendment Act No.46 of 1982 and 24 of 2003.

Authority Law are published in the (Extraordinary) Gazette notification No.2026/25 dated 5^th July 2017 (‘P 2’).

Factual background The Petitioner and the 3^rd and 4^th Respondents are residents of the condominium apartment complex named ‘Kynsey Arcade’. The Petitioner occupies condominium parcel No. 81A 2/4, and the 4^th Respondent occupies No. 81A 2/3 on the same floor, the 2^nd floor. The 3^rd Respondent occupies condominium parcels No. 81A 3/1 and 81A 3/2 on the 3^rd floor. The 1^st Respondent is the Condominium Management Authority established by the Condominium Management Authority Law and the 2^nd Respondent is the General Manager of the 1^st Respondent Authority.

The Petitioner alleged that the 3^rd and 4^th Respondents violated the laws and Regulations applicable to the ‘Kynsey Arcade’ condominium apartment complex by encroaching on the common areas by placing flower pots, chairs, ornament stands, and other movable items, preventing the Petitioner from using those, causing a hindrance. The Petitioner submitted photographs marked ‘P 3’, ‘P 3(A)’, ‘P 4’, ‘P 4(A)’ and ‘P4 (B)’ depicting the situation.

The Petitioner stated that the 3^rd Respondent was directed by the 2^nd Respondent, the General Manager of the Condominium Authority, by letter dated 11^th March 2016 (‘P 5’), and the 4th Respondent was directed by the Chairman of the 1st Respondent Condominium Authority by letter dated 25^th March 2016 (‘P 6’) to have all obstructions placed in the common areas removed. The Petitioner states that the 3^rd and 4^th Respondents did not comply with the directions and the Petitioner was compelled to institute legal proceedings at the Magistrate's Court of Colombo. The Petitioner filled three private plaints against the 3rd and 4th Respondents and the 3^rd Respondent's husband, Victor Silva. These private plaints were based on charges under Section 262 of the Penal Code, which pertains to unlawfully or negligently doing any act which is and which he has knowledge or has reason to believe to be like