RAJIV HUNDLANI AND OTHERS

Vs.

DIRECTOR GENERAL OF URBAN DEVELOPMENT AUTHORITY AND OTHERS

COURT OF APPEAL
SAMAYAWARDHENA, J.
CA/WRIT/261/2016
February 13, 2020

Writ of certiorari-State Lands (Recovery of Possession) Act, No. 7 of 1979, sections 3(1)(b), 14(2)(b)-Notice to Quit-Identification of the properly-Prejudice-Civil Procedure Code, section 403-lnterpretation Ordinance, No. 21 of 1901, section 2(s)-Technical objections

The Petitioners filed this application seeking to quash by a writ of certiorari the Notice to Quit issued under the State Lands (Recovery of Possession) Act on three grounds: (a) failure to obtain the approval of the Minister before issuing the Notice to Quit; (b) failure to identify the property; and (c) Notice to Quit addressed to the partnership business.

Held:

1. The approval of the Minister was never put in issue until it was raised at the argument. Had it been raised earlier, the approval could have been produced.

2. The property was identified in the Notice to Quit inter alia by assessment numbers. There is no ambiguity in the identification of the property. There is no legal requirement to attach a plan to the Notice to Quit.

3. The State Lands (Recovery of Possession) Act was passed to expeditiously recover possession of state land from persons in unauthorised possession. The procedure is simple and straightforward. There is no place for high technical objections that defeat the purpose of the Act.

4. According to section 3(1)(b) of the Act, the Notice to Quit shall specify the date on or before which the person in possession shall vacate the land, which date shall not be less than thirty days from the date of issue. Nevertheless, giving less than thirty days' notice would not ipso facto vitiate the Notice to Quit if no prejudice is caused

5. Mere payment of rent does not create tenancy unless the parties actually intended to do so. There shall be ad idem as to the essential requirements: (a) the object of the contract is to let and hire; (b) the ascertained property; and (c) a fixed rent.

6. Under section 403 of the Civil Procedure Code, when an action abates, the action dies a natural death once and for all.

7. A partnership is neither a natural nor a juristic person. Nevertheless, section 2(s) of the Interpretation Ordinance states that "person" includes any body of persons corporate or unincorporate. A partnership is an unincorporated body. Hence there is no legal obstacle to serve a Notice to Quit on the partnership. All the correspondence the petitioners rely on is in the name of the partnership, not the partners. The petitioners responded to the summons issued on the partnership and submitted to the jurisdiction of the Magistrate's Court.

8. Writ is a discretionary remedy. It is an equitable relief. A party cannot invoke the writ jurisdiction of the Court of Appeal as of right. The literal or technical breach of an apparently mandatory provision in a statute may be insignificant. The prejudice caused to the applicant by such breach is relevant. Even if a party is technically entitled to the relief sought, the court can still refuse to grant the relief if other factors stand against the granting of that relief. The court shall take stock of everything-including the conduct of the party applying for the writ and decide what is best.

Cases referred to:

1. Gunaratne (Alexis Auction Rooms) v. Abeysinghe (Urban Development Authority) [1988] 1 Sri LR 255
2. Jayathilaka v. Ratnayake [2007] 1 Sri LR 299
3. lhalapathirana v. Bulankulame [1988] 1 Sri LR 416
4. Kandiah v. Abeykoon [1986] Ill CALR 141
5. Eileen Prins v. Marjorie Patternott [1995] BLR 41
6. Jayawardena v. Bandaranayake [1998] 3 Sri LR 72 at 74-75
7. Bastian v. Panagoda [1998] 3 Sri LR 173
8. Seneviratne v. Urban Council, Kegalle [2001] 3 Sri LR 105 at 108
9. Jayasinghe v, Gnanawathie Menike [1997] 3 Sri LR 410