Housing Authority v Kumar [1987] FJSC 1; Civil Action 144 of 1984 (27 March 1987)

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

CIVIL ACTION 144 OF 1984
BETWEEN:

THE HOUSING AUTHORITY

Plaintiff
AND:

ASHKOR KUMAR

Defendant

For the Plaintiff: Mr. N.C. Prasad.
The Defendant In person.

JUDGMENT

Cases referred to:

(1) Raj Kumar v. Housing Authority Civ.App.No.16/79 FCA.

(2) The Housing Authority v. Samson Muniappa C.A. No.25/77.

(3) The Housing Authority v. Samsher Mustapha C.A. No.289/76.

(4) Housing Authority v. Subramani C.A. No.94/79

(5) Gurdial Singh and Chandra Hans C.A. 737/83

(6) Badal & Ors. v. Bhim Sen C.A.No.251/76; Civ.App. 49/77 FCA.

(7) Habib Bank Ltd. Habib Bank A.G. Zurich (1981) 2 All E.R. 650.

(8) Sheila Maharaj v. Jai Chand Privy Council App. No.63 of 1984 (7/7/1986)

(9) Commissioner of Inland Revenue v. Flour Mills of Fiji Ltd Civ.App. No.6 of 1985 FCA.

(10) Southend-On-Sea Corporation v. Hodgson (Wickford) Ltd. (1962) 1 Q.B. 416.

(11) Preston v. Inland Revenue Commissioners [1984] UKHL 5; (1985) 2 All E.R. 327.

This is an application under section 169 of the Land Transfer Act, Cap. 131. The plaintiff, the Housing Authority ("the Authority") is the last registered proprietor of Crown Lease No. 5037 containing over 1005 acres. The Authority has carried out substantial development of the said land, including part thereof known as "Field 40 Stage 6D 9A". The defendant is occupying a portion of the latter development namely Lot 200 of Scheme Plan No. 123-2B. On 15^th May, 1978 the Authority addressed a notice to quit to the defendant in which it was stated that the defendant’s occupation of the land had "compelled the Authority to procrastinate its development of the said land". The Authority now claims that the said occupation is unlawful and without any colour of right and seeks an order of possession.

Apparently the land in question was originally owned by the Colonial Sugar Refining Company, ("CSR") the tenants thereof holding their tenancies from CSR, to whom they paid ground rents. Subsequently the land became Crown land and the Authority acquired a lease thereof in 1969 for a period of 99 years.

The parties filed affidavits but the Court also heard evidence viva voce. Evidence was given that when the Crown acquired the particular lands, it seems that the Lands Department thereafter cancelled a number of marginal tenancies thereon. Apparently the present land occupied by the defendant, was then occupied by one Hari Ram, who seemingly had been a tenant of CSR. In any event, on the 12th March, 1973 the following document was drawn up:

"12th March, 1973.

The Manager,

Housing Authority,

LAUTOKA

Dear Sir,

I, Hari Ram s/o Nand Lal having paid rent to Lands Department and now, to the Housing Authority under Tenancy No. Field 37/430 hereby relinquish any rights I may have had and transfer the same to Asok Kumar s/o Ram Sewak together with my house and out buildings.

The purchaser Asok Kumar has been explained that he will be allocated a residential lot when Housing Authority's Sub-division reaches that area but he will not be entitled for any subsidy or concessions that are normally considered in a case of a original recognized tenant.

I accept the above transfer:

Signed: H. Ram
HARI RAM s/o NAND LAL

Signed: A. Kumar

ASOK KUMAR s/o RAM SEWAK

Witness: Sgd. S. Mishra

(S. MISHRA) – for HOUSING AUTHORITY"

On the 16th May, 1977 the defendant applied to the Lautoka Town Council for development permission, the purpose of development being stated by the defendant as being a "Proposal for a Temporary House", the class of building being stated by the defendant as being a "Temporary Dwelling Extension as Shown on Plan." The proposed extension consisted of three bedrooms and a lounge constructed of masonite walls, partitions and ceiling, mounted on posts sunk in concrete, topped by a corrugated iron roof, the value of the work being set at $4,800. The defendant had meanwhile applied to the Authority in the matter, as on the 17th May, 1977 a letter was addressed to the defendant by the Authority, granting permission for the temporary extension on the following conditions:

"(1) That the extensions are not of a permanent nature and can be readily dismantled on request, or on later than three years after completion.

(a) That the existing buildings be demolished immediately on completion of the alterations.

.......

(2) That you will remove your house and any trees, shrubs, etc, that may interfere with the Authority's proposed sub-division of the area in which your house is situated at such time as the Authority requests if the Authority alone decided such removal is necessary, and that such removal will take place within 30 (thirty) days from the date of such request.

(3) That the proposed extension are not included in any removal costs that may be considered if condition (3) is enforced by the Authority.

(4) That you guarantee no hindrance to the Authority's subdivision plans, or the work it, or its agents undertake in the area at any time, nor from members of your family, or any other person associated with your residence in Vitogo and Drasa. ..."

The defendant signified his agreement and his willingness to "abide by all the conditions stated". Indeed, compliance with the Authority's conditions in the matter was stipulated to be a condition of the building permit, issued by the Lautoka City Council on the 30th June, 1977. On the 15th August, the Council issued a certificate of completion of the building. Meanwhile on the 22nd July, 1977 the Fiji Electricity Authority had addressed a letter to the Manager of the Housing Authority stating that-

"The (Fiji Electricity) Authority will make a supply available on the conditions that the applicant signs a form guaranteeing the (said) Authority a minimum return of $25 per year for five years and pay a total deposit of $50, upon receiving the approval from you."

Apparently the Housing Authority gave its approval in the matter.

The defendant testified that the document dated the 12th March, 1973 was drawn up by Mr. Mishra, whom he referred to as a "manager" in the employment of the Authority. Mr. Jogendra Singh, the Divisional Manager for the Authority for the Western Division, conceded that there was an employee of that name on the staff of the Authority at the time, but that he had since died. Mr. Singh added that he could not authenticate the particular signature. The defendant testified that he paid Hari Ram $1,000 as consideration under the agreement of the 12th March, 1973. This was corroborated by Jai Narayan, a cousin of Hari Ram, who, he said, had emigrated to Australia, apparently in 1973. He testified also that Mr. Mishra "wrote something".

Further, as I have indicated, I consider that a promise on the part of the Authority itself arose in the letter of the 12th March, 1973, such promise being withdrawn on the 15th May, 1978 when a notice to quit was issued to the defendant.

I have had occasion to consider the aspect of proprietary or promissory estoppel in the case of Gurdial Sinqh and Chandra Hans (5) decided at Lautoka, where indeed I followed the learned exposition of the law in the matter by Stuart J in the case of Badal & Ors. v. Bhim Sen (6). I believe that the modern test is that laid down by Oliver L.J. (as he then was) in his judgment delivered in the case of Habib Bank Ltd. v. Habib Bank A.G. Zurich (7) at p.666 namely:

"Whether, in particular individual circumstances it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he had allowed or encouraged another to assume to his detriment."

Since then Sir Robin Cooke in delivering the judgment of the Lords of the Judicial Committee of the Privy Council in the case of Sheila Maharaj v. Jai Chand (8) observed at p.7:

"The doctrine of promissory estoppel is now firmly established, although its frontiers are still being worked out."

As I see it, the test set by Oliver L.J. is met in this case. However, the Authority has at once both a statutory duty to perform and a statutory discretion to exercise. In this respect in the case of Commissioner of Inland Revenue v. Flour Mills of Fiji Ltd. (9) the Fiji Court of Appeal held at pp.34/36 that an estoppel cannot be raised to prevent or hinder the exercise of a statutory duty or discretion. As to a statutory discretion, the Court relied in particular on the following dicta of Lord Parker C.J. in the case of Southend-On-Sea Corporation v. Hodgson (Wickford) Ltd. (10) at p.423:

"As I have said, I can see no logical distinction between a case such as that of an estoppel being sought to be raised to prevent the performance of a statutory duty and one where it is sought to be raised to hinder the exercise of a statutory discretion. After all, in a case of discretion there is a duty under the statute to exercise a free and unhindered discretion. There is a long line of cases to which we have not been specifically referred which lay down that a public authority cannot by contract fetter the exercise of its discretion. Similarly, as it seems to me, an estoppel cannot be raised to prevent or hinder the exercise of the discretion."

The dicta of Lord Templeman in the case of Preston v. Inland Revenue Commissioners (11) at p.341, now indicate that judicial review of the decision of a statutory authority would nonetheless lie for unfairness amounting to abuse of power, if the authority were guilty of conduct equivalent to a breach of contract or breach of representation on its part giving rise to an estoppel. I cannot see that any "abuse of power" is involved in this case and furthermore this is not an application for judicial review. The Authority has a discretion in the matter of the allocation of sites for houses and, in my judgment, the defendant cannot raise any estoppel in the matter.

In any event, I must observe that he who seeks equity must do equity. There is the aspect that the defendant lives for a good deal of the year with his father, and that the house at Field 40 is not occupied by him for that period. I do not see that there can be any objection to that aspect. There is the aspect however of his share in another property and, as I have said earlier, it seems that it is this particular aspect which has affected .the exercise of the Authority's discretion so far. There is however the defendant's evidence that he fully intended to transfer his share in the house at Waiyavi to his wife. It may be that he has now done so. If he has done so, then I can only observe that he has a strong case for the exercise of the Authority’s discretion in his favour.

Meanwhile the Authority is entitled to an order. I order that immediate possession be given to the plaintiff.

Delivered In Chambers at Lautoka
this 27^th Day of March, 1987.

(B.P. Cullinan)
JUDGE