Sri Lanka Law Reports
1198912 Sri LR
v.GUNASEKERA AND OTHERS
COURT OF APPEAL
VIKNARAJAH, J. & A. DE Z. GUNAWARDENA, J.
C.A. 1472/76JUNE 01 & 06, 1989
Writs of certiorari and mandamus – Landlord and tenant – Determination of standardrent – Determination of authorised rent – Earlier order determining authorised rent andappeal therefrom – Can second application be made when there is already a deter-mination of authorised rent? – Rent Act, section 34.
On an earlier application between the sameparties, the Rent Board by Order ot04.06.82 determined the authorised rent. An appeal from this Order was rejected on26.01.85 as it was out of time. Before the order of rejection was delivered thepetitioner made a second application to the Rent Board on 02.03.84. The Board ofReview held firstly that where section 4(1) and 4(2) apply, the Board has no jurisdictionto determine or fix the standard rent only and secondly the determination of theauthorised rent on the first application was final and conclusive.
Section 34 of the Rent Act empowers the Rent Control Board to determine theauthorised rent on the application of the landlord or tenant.
Standard rent is different from the authorised rent and in fact it is only acomponent of the authorised rent. Section standard 4(1) and .4(2) set out themanner in which the standand rent is determined. In the case of premises towhich sections 4(1) and 4(2) do not apply the standard rent per annum meanssuch rent as may be fixed by the Board on the application of the landlord ortenant for the time being ofthe premises.
Where sections 4(1) and 4(2) apply to any premises the Board has no jurisdictionto entertain an application to determine or fix the standard rent only.
The determination of the Rent Board of the authorised rent on the first applicationwas final and conclusiva
A person aggrieved by ah Order of the Rent Board must appeal therefrom in 21days after receipt of the decision that is, receipt of the copy of the Ordfer (s.
' 40(4)); and the decision of the Board is final and conclusive (s. 40 (II)). Final andconclusive means there is no appeal' from the decision.
An Order even if not made in good faith, is an act capable of legal consequences.It bears no brand of invalidity upon its forehead. Unless the • necessary
. proceedings are taken at law to establish the cause of invalidity and to get itquashed or otherwise upset, it will remain as effective for its ostensible purposeas the most impeccable of Orders. This, must be equally true even where thebrand of validity is plainly visible.
B.C. Perera v. Gunasekera and others (Viknarajah, J.)
APPEAL from the Order of the Board of ReviewN.R.M. Daluwatte, P.C. with P. Keerthisinghe for petitioner
H.L. de Silva, P.C. with P.A.D. Samarasekera, P.C. and G.L. Geetananda for 7threspondent
August 03, 1989
This is an application by the petitioner for a Writ of Certiorari toquash the order of the Board of Review dated 10th October 1986(P25) in Appeal No.3920 and a Writ of Mandamus directing the saidBoard of Review to hear and determine the appeal of the 7threspondent according to law.
The petitioner is the tenant of premises No. 90 Galkissa Road,Dehiwela as from July 1968. The 7th respondent is the landlord ofthe said premises.
The petitioner made an application to the Rent Board dated 2.3.84numbered 1.7/84 (P14) for determination of the standard rent. At theinquiry on 23rd April 1984 into this application the 7th respondentwas not present and the Board determined the authorised rent of thesaid premises and the determination of the Board is marked P15. Inthe application P14 in column 9 the petitioner has stated that earlierthe Rent Board had made an order regarding authorised rent. Fromthis order of the Rent Board P15 the 7th respondent appealed to theBoard of Review which appeal is numbered 3920. The "Board ofReview made its decision on 10th October 1986 (P25) allowing theappeal and holding that the petitioner cannot make' a secondapplication to the Rent Board when there has already been adetermination-made by a Rent Board earlier in respect of the samematter. The present application is to quash this decision (P25).Learned Counsel for petitioner submitted that, there were two errorsof law in this order viz:
As section 4(1) applied to the premises in suit the Boardhas no jurisdiction to determine and fix the standard rent.
The order of the first Rent Board dated . 4.6.82 determiningthe authorised rent is final and conclusive.
At this stage it would be appropriate to refer to the first applicationmade by the petitioner to determine the authorised rent.
Sri Lanka Law Reports
(1989] 2 Sri LR
The petitioner filed an application in the Rent Board of Mt. Laviniadated 2.2.77 numbered RB/15/DN/77 against the 7th respondent(P1). As there was no relief claimed in this application (P1) anamended application P2 was filed for determination of the authorisedrent. According to the proceedings the case of the 7th respondentwas that he had made several additions and improvements inpursuance of a building application made in 1966 numbered 129/61.The inquiry commenced on 17.6.77 and was postponed from time totime and ultimately on 11.5.82 there was a settlement (P3a) beforethe Rent Board. The petitioner was not present but she wasrepresented by her attorney-at-law. The 7th respondent was presentand was represented by an attorney-at-law. The lawyers representingthe petitioner and 7th respondent agreed that the year 1966 shouldbe taken as the relevant year for the determination of the standardrent as a fresh assessment for the year 1966 was made taking intoconsideration the building plan No. 129/61. The new assessment for1966 is Rs. 1016.00. In terms of this settlement the Rent Board byorder dated 4.6.82 (P4) determined the authorised rent as Rs. 110/69taking the annual value of 1966 as the first year of assessment. Thepetitioner appealed from this order to the Board of Review. TheBoard of Review by order dated 26.1.85 (P6) rejected the appeal asit was out of time. Before the order P6 was delivered the petitionermade the second application to the Rent Board (P14) on 2.3.84which I have referred to at the commencement of this judgment.
I shall now refer to the submission of learned Counsel for thepetitioner regarding the two alleged errors of law in the order P25.
Section 34 of the Rent Act empowers the Rent Control Board todetermine the authorised rent of the premises upon an applicationmade in that behalf by the landlord or the tenant of the premises.Standard rent is different from authorised rent and in fact it is only acomponent of the authorised rent.
Sections 4(1) and (2) set out the manner in which standard rent isdetermined. In the case of premises to which 'the provisions ofsections 4(1) and (2) do not apply, the standard rent per annummeans such rent as may be fixed by the Board on application madeeither by the landlord or,the tenant for the time being of suchpremises. The Board of Review in its order P25 has stated that“where sections 4(1) and (2) apply to any premises the Board has nojurisdiction to entertain an application to determine or fix the.standardrent only and such an application must be rejected”. The Board of
B. C. Perera v. Gunasekera and others (Viknarajah, J.)
Review has further stated that “it would appear that section 4(1)applied to the premises in suit”.
I am of the view that the Board of Review has correctly set out thelegal position. The application that was made by the petitioner was todetermine the standard rent and not the authorised rent although theRent Control Board by its order P15 has proceeded to determine theauthorised rent. I hold that there is no error of law in this part of theorder of the Board of Review.
I shall now deal with the second alleged.error of law.
Counsel for petitioner submitted that the Board of Review erred inlaw in treating the determination of the Rent Board (P4) on the firstapplication as final and conclusive. The first Rent Board _determination of the authorised rent was made on 4.6.1982 (P4). Thepetitioner appealed from this order to the Board of Review but theappeal was rejected as it was out of time. The Board of Review didnot hear the appeal and thus there was no decision on the appeal.
Under section' 40(4) any person who is aggrieved by any ordermade by any Rent Board may before the expiry of a period of twentyone days after the date of the receipt by him of a copy of the orderappeal against the order to the Board of Review. Provided howeverthat no appeal shall lie. except upon a matter of law.
Under section 40(11) the decision of the Board of Review on anappeal shall be final and conclusive.
Learned Counsel for respondent submitted that as the appeal wasrejected the Rent Control Board decision was final and conclusive.
The word final and conclusive means that there is no appeal fromthat decision.
In Wade’s Administrative Law (15th Edn) p.598 this is stated asfollows: –
“If a statute says that the decision ‘shall be final’ or shall be‘final and conclusive to all intents and purposes’ this is held tomean merely that there is no appeal: judicial control of legality isunimpaired”
It is not stated in the Rent Act that the decision of the Rent Boardis final because there is an appeal to the Board of Review. Where noappeal is provided or where a party does not appeal to the Board ofReview the finality attaches to the decision of the Rent Board.
Sri Lanka Law Reports
Counsel for petitioner submitted that the decision of the first RentBoard (P4) is a nullity because the standard rent has not beendetermined taking the 1960 annual value as the first year ofassessment but has been determined taking the annual value of1966 as the first year of assessment.
If the petitioner was dissatisfied with the order P4 the petitionershould have applied to this Court by way of writ of certiorari to quashthe decision of the Rent Board P4 on the ground that the order is anullity. The petitioner cannot in the present application seek adetermination from this Court that the first Rent- Board decision is anullity.
Wade-Administrative Law (15th Edn) at page 313 states asfollows:-
"In a well known passage Lord Radcliffe said:
‘An Order even if not made in good faith, is still an act capableof legal consequences. It bears no brand of invalidity upon itsforehead. Unless the necessary proceedings are taken at law toestablish. the cause of invalidity and to get it quashed orotherwise upset, it will remain as. effective for its ostensiblepurpose as the most impeccable of orders’.
This must be equally true even where the ‘brand of invalidity’ isplainly visible for there also the order can effectively be resistedin law only by obtaining the decision of the Court. The necessityof recourse to the Court has been pointed out repeatedly in theHouse of Lords and Privy Council without distinction betweenpatent and latent defects”.
At page 314 Wade states:
“The truth of the matter is that the Court will invalidate an orderonly if the right remedy is sought by the right person in the rightproceedings ' and circumstances. The order may behypothetically a nullity but the Court may refuse to quash itbecause of the plaintiff’s lack of standing, because he does notdeserve a discretionary remedy,' because he has waived hisrights or for some other legal reason, In any such case the void. order remains ‘effective and is in reality valid”.
I hold that there is no error of law in the decision of the Board ofReview P25 and' therefore no writ lies.
On the facts of this case which I have set out earlier the order ofthe first Rent Board P4 is not tainted with any illegality and is a validorder. I hold that the said order P4 is final and conclusive..
I therefore dismiss the application with costs fixed at Rs. 210/-.
A. DE Z. GUNAWARDENA, J. – I agree.