HAPPY HOMES (PVT) LTD

Vs.

CONDOMINIUM MANAGEMENT AUTHORITY AND OTHERS

COURT OF APPEAL
SAMAYAWARDHENA, J.
OBEYESEKERE, J.
CA/WRIT/136/2015,
OCTOBER 21, 2019

Writ of mandamus-Condominium Management Authority Law, No. 10 of 1973- Obstruction of common area-Removal of unauthorised constructions-Delay-Continuing violation of rights-Apartment Ownership Law, No. 11 of 1973, section 20C(2)(f)-Power of Management Corporation to remove unauthorised constructions

The petitioner purchased a unit in a condominium property in which the 5th respondent was already a tenant of the previous owner. The 5th respondent tenant had constructed a shed in the common area causing obstruction of the common parking area and blocking access to the main building. The petitioner complained to the Condominium Management Authority. Despite several notices, the 5th respondent did not attend the inquiry into the complaint. After the inquiry held ex parte it was found that the 5th respondent had obstructed the common elements. The General Manager of the Authority directed the 5th respondent in writing to remove the shed within 14 days, as the shed was blocking the common area and access to the other apartments. The 5th respondent did not comply with the order and the Management Corporation of the condominium property informed the Authority to take action to remove the shed, as 2 1/2 years had elapsed since the order. The Authority failed to implement the order to remove the shed.

The petitioner instituted this application seeking a writ of mandamus directing the Authority to remove the said unauthorised construction.

The Authority sought the dismissal of the petitioner's application on the basis that the petitioner had delayed in filing the application and the 5th respondent had disputed the petitioner's ownership of the unit in which she was the tenant.

Held:

1. The public authority is under a legal or public duty to carry out the act demanded by the petitioner and the petitioner has a legal right to the performance of such public duty.

2. The removal of unauthorised constructions is an object of the Condominium Management Authority and the legislature has empowered the Authority to demolish unauthorised constructions.

3. The Condominium Management Authority has a public duty to demolish unauthorised constructions if the persons directed to do so fail to comply with such direction.

4. Common elements are available for use by all residents of the condominium property. Whenever any occupier of a unit or a Management Corporation in a condominium property obstructs the common elements, the other owners as well as the Management Corporation, as the case may be, have a legal right to have those obstructions removed.

5. The fact that the petitioner did not seek the implementation of the order earlier is immaterial for the reason that the violation is continuing.

6. The petitioner is not seeking to interfere with the tenancy rights of the 5th Respondent by complaining to the Condominium Management Authority. The underlying dispute between the petitioner and the 5th respondent is not an impediment to the Authority implementing the order.

7. The powers of the Management Corporation to demolish unauthorised constructions in terms of section 20C(2)(f) of the Apartment Ownership Law, No. 11 of 1973, as amended, does not take away the public duty the Authority owes the petitioner to take steps in terms of the Condominium Management Authority Law.

Cases referred to:

1. Ratnayake and others v. C.D. Perera and others [1982] 2 Sri LR 451
2. Jayawardena v. People's Bank [2002) 3 Sri LR 17

3. Rajeswari Nadaraja v. M. Najeeb Abdul Majeed, Minister of Industries and Commerce and others (SC/APPEAL/177/2015, SC Minutes of 31.08.2018)
4. Kaluarachchi v. Ceylon Petroleum Corporation and others (SC/ APPEAL/43/2013, SC Minutes of 19.06.2019)
5. Credit Information Bureau of Sri