Housing Authority v Subarmani [1979] FJSC 54; Civil Action 94 of 1979 (27 July 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
CIVIL JURISDICTION

Action No. 94 of 1979

BETWEEN

HOUSING AUTHORITY
Plaintiff

AND

SUBARMANI s/o Punsami
Defendant

Mr. A. Patel, Counsel for the Plaintiff
Defendant in Person.

JUDGMENT

This is an action under S. 169 L.T.A. 19 of 1971 by the Lautoka Housing Authority for position of lots 29 and 30 occupied by the defendant in an area scheduled for development.

The summons issued on 24.4.79 supported by the Housing Manager's affidavit. It alleges that the Housing Authority holds over 1000 acres under Crown Lease No.5037 of which a large acreage has been set apart for housing development as shown in D.P. 4298 filed with the affidavit.

D.P. 4298 was registered with the Registrar of Titles on 10/12/75.

In a notice to quit dated 5/5/75 and served on 28/5/75 the plaintiff informed the defendant that on 11.11.69 the plaintiff had received a 99 year lease from the Director of lands and requires position of lots 29 & 30 as from 31/12/75.

On 18/5/79 the defendant, who was in person, informed the Court that he had occupied the land for 13 years paying $2.00 per year until 1974, that a Field Officer of the Housing Authority said he could build and that he had built a house worth $8000. He wished to seek legal advice and so the matter was adjourned to 25.5.79 on which date the defendant did not appear. However, no proof was tendered by the plaintiff who requested an adjournment sine die for re-service on the defendant who on his original appearance had not been given the full 16 days notice required by S.170.The defendant was re-served on 26.6.79 with a summons, affidavit of the plaintiff and proof of title of the plaintiff. He was required to appear and show cause on the 20th July 1979.

On 10.7.79 the defendant filed an affidavit saying that his mother and he had been allowed by the C.S.R. Ltd. to occupy the land in 1966 at $2.00 per year. He refers to a letter of 2.9.68 from the C.S.R. informing him that the land had been transferred to Government from1/9/68. In 1973 he built his present house and when the land was subdivided it overlapped each lot. His mother died in 1978 and he claims the right to lot No.30; it appears that his mother had paid the rent for lot No.29 until 1974 when the Housing Authority had stopped receiving rents.

At the hearing on 20.7.79 the defendant, who appeared in person, was given an opportunity of adding to the information contained in his affidavit. He added nothing except that the Housing Authority officer who had said he could build on the land was called Vishnu.

It seems to me that under S.89(1) of The Property Law Act 18 of 1971 the defendant and his mother were not tenants from year to year but since they paid paltry yearly rent they were entitled to 6 months notice of termination. Rent receipts attached to his affidavit show that he usually paid his rent of $2.00 in January which suggests that his tenancy ran from 1st January to 31st December. That view is confirmed by a receipt for $1.00 issued by the Director of Lands on 29.5.69 for the period 1.7.69 to 31.12.69. All subsequent rents were paid to the Housing Authority. Consequently the notice to quit expires on the correct date and is of ample duration. The defendant did not in any way challenge its validity in that respect.

Having received proper notice to quit in 1975 terminating on 31/12/75 the defendant is obliged to show that as against his landlord, the Housing Authority, he has a right to possession. His only argument is the existence of the $8000 house and his affidavit includes two photos of a presentable wooden building. He does not claim that the Housing Authority allowed him to erect it simply that one Vishnu, an officer of the Housing Authority, said it would be all right to do so. But it is the defendant who has to show a right to possession and if he is suggesting that the Housing Authority is estopped from claiming possession because they led him to believe that he would not be evicted and that he could erect a house he should call the person who gave that permission. He has made no effort to call any witness from the Housing Authority. There is no evidence that on receiving notice to quit four years ago that the defendant protested to the Housing Authority asking why they had allowed him to erect a decent house and just over a year later gave him notice to quit. The defendant must have been aware that he could not remain indefinitely on that land for a yearly acknowledgement of $2.00, and the Housing Authority would have been very foolish to suggest by word or deed that the defendant could remain on two plots without fixing the purchase price and the ground rent. A booklet issued by the Housing Authority (hereinafter mentioned) puts the price of some plots in 1969 at $2000 and the rent at $40.00 per annum. What price and rent would the defendant now expect to pay and how much would the Housing Authority demand?

It seems that far from giving any tacit approval to the defendant to erect a house the Housing Authority warned him along with other occupants against building without approaching the Housing Authority. The warning appears in a foolscap sized booklet printed by the Housing Authority on 22.12.69. It describes itself as a notice to residents in "the Golf Links, Waiyavi, Tavakubu, Simla, Chandmari, Rifle Range, Field 40 and Benares". Receipts filed by the defendant describe him as living in the "Golf Links" area. The defendant tendered that booklet which is in English, Hindi and Fijian. It paints out that when the area is fully developed for building the present occupiers will as far as possible be given an opportunity to purchase the lots they now use but because of space needed for new roads, schools, parks etc., some residents may be disappointed. In other words guarantees and promises were definitely excluded. It specifically warns that no alterations or additions should be made to houses without prior approval from the Housing Authority and that warning should have had an even stronger meaning for someone intending to build a substantial new dwelling.

In spite of that warning the defendant went ahead on erected the house in such a way that it overlapped the land his mother and he occupied. I do not believe that he had any permission or encouragement from the Housing Authority to do so. I do not accept that my field officer misled him. Had this been so he would have made some strong protest against the injustice of a notice to quit. He appears to have been silent about it for four years.

Since December 31st 1975 the defendant has occupied the area without any right to do so. He said at the hearing that he would give up possession if he were compensated and given a plot of land. If the defendant ever suspected that he had some right to compensation or damages arising from the Housing Authority's behaviour I have no doubt, from what I have seen of the defendant, that he would not have let 4 years go by without making any protest. His request is to be compensated for something the Housing Authority had expressly warned him not to do, i.e. to erect a dwelling.

The defendant must give up possession of the land occupied by him which he says is plot 30.

It seems that his house overlaps the land i.e. plot 29 which his mother occupied. His mother died in 1978 and on the defendant's own evidence she was simply a tenant at will for a nominal rent of $2.00 per year. On her death her tenancy would terminate. Accordingly there would be no reversion which the defendant or her heirs would inherit. I think it follows that the defendant has no right to continue occupying his mother's plot nor has any other third party.

There will be judgment for the plaintiff for possession of plots 29 & 30 as described in the summons.

The defendant will pay the costs which I fix at $50.00.

(Sgd.) J. T. WILLIAMS
JUDGE

LAUTOKA,
27th July, 1979.