051-NLR-NLR-V-73-C.-RAJAKARUNA-Appellant-and-LAURA-DE-SILVA-Respondent.pdf
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P.ajakaruna v. De Silva
1970Present: Samerawicfcrame, J.
C. RAJAKARUNA, Appellant, and LAURA DE SILVA,Respondent
S. G. 112{67— C. R. Colombo, 8S4191R.E.
Municipal Councils Ordinance, as amended by Act No. 4 of 1969—Sections 235, 236 (5),327 (4)—Rent-controlled premises—Annual value—Increase of it without noticeto tenant—Effect on action subsequently brought for ejectment of tenant.
The plaintiff-respondent, who was the owner of certain premises, sought toeject her tenant (the defendant) on the basis that the premises were-excepted'premisbs under the Rent Restriction Act. The assessment of the annual valueof the premises had boon raised from Bs. 964 to Rs. 1,G07 on an objection madeby the plaintiff to the assessment at Rs. 964. Notico was not given to thetenant about either the objection or the inquiry into tho objection. Inconsequence of the raising of the assessment of the annual value, the premisesbecame, for the first time, excepted premises.
Held, (i) that onco tho annual value of a house is entered in the “ AssessmentBook 11 in terms of section 235 (1) of the Municipal Councils Ordinance, thoowner of tho house may file objection to the assessed annual value at anytime thereafter, even before notice of assessment of the annual value is servedon the occupier.
. (ii) that, evon assuming that notice should bo given to a tenant upon anobjection by a landlord seeking to have the assessment of annual value ofpremises increased, it was not opon to tho defendant-appellant to have theassessment set aside' or avoided in the present proceedings in which theMunicipal Council was not a party.
.A.PPEAL from a judgment of the Court of Requests, Colombo. –
E. R. S. R. Coomaraswamy, with L. TV. Athulaihmudali, G. ChakradaranM. S. Aziz and S. C. B. IValgampaya, for the defendant-appellant:. D. R. P. GoonttiUeke, with TV. H. Perera, for the substituted plaintiff-respondent.
Cur. adv. vult.SAME RAWICK-RAME, J.—Rajakaruna v. De Silva
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July 1, 1970. Samebawickrame, J.—
The plaintiff-respondent filed this action for ejectment on the basisthat the premises in question were excepted premises. The premises aresituated within the limits of the Municipal Council of Dchiwela-MountLavinia. The assessment of the annual value of the premises was raisedfrom Rs. 964 to Rs. 1,607 on an objection to the assessment made by theowner of the premises, namely, the plaint iff-respondent-
Mr. E. R. S. R. Coomaraswamy appearing for the defendant-appellantsubmitted that the purported assessment of Rs. 1,607 was void. Theplaintiff-respondent had applied to the Municipal Council to have thenotice of assessment served on her and not on the occupier. The Muni-cipal Council had declined to do so but had informed her that the assessed. annual value had been fixed at Rs. 964. The plaintiff-respondent hadthereupon filed objection to the assessed annual value by letter dated23rd January, 1964. Notice of assessment was itself served on theoccupier at a later date. Mr. Coomaraswamy contended that the objec-tion to the assessment made before the service of notice was not in orderand that all proceedings taken upon that objection and the order madeat those proceedings were void. Section 235 of the Municipal CouncilsOrdinance provides that the annual value fixed should be entered in the“ Assessment Book ” and that thereafter notice of assessment of theannual value should be served on the occupier. Subsection 4 reads :—
“ Such notice shall further intimate that written objections to theassessment will be received at the Municipal office within one monthfrom the date of service of notice.”
I am unable to take the view that the effect of this provision is thatobjection raised before the service of notice is bad. In my view, it isopen to any person entitled to take objection to an assessment to appraisehimself of the assessment as entered in the Assessment Book at any timeafter that entry is made in that book and to take objection to suchassessment, if he desires to do so.
Mr. Coomaraswamy further submitted that no notice of the objectionmade by the landlady seeking to have the assessment raised and, nonotice of the inquirj' into that objection was given to his client. Hesubmitted that the order made which prejudiced his client was thereforevoid. At the time that s. 235 of the Municipal Councils Ordinance wasenacted the objection contemplated was obviously that the assessmentwas too high. Subsection 5 of 6. 236 provides for the return of any excessrates that may have been paid after a decision upon an appeal against anassessment-. Objection to an assessment on the ground that tho assess-ment was too low and seeking to have tho assessment raised began to bemade bj’ landlords only after the Rent Restriction Act came intooperation. The raising of the assessment of any premises governed bythe Rent Restriction Act cannot but adversely affect the tenant of suchpremises. Under the provisions of the Ordinance, any excess rates
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SAMERAWICKRAME, J.—Uajakaruna v. Dc Silva
could bo passed on to the tenant and it would be the tenant who wouldhave to bear the burden of paying enhanced rates. If the assessment ofthe annual value is raised so that tho premises became excepted premisesthen the landlord is at liberty to charge any rent from a tenant. Tho• landlord is interested in having tlio assessment of the annual valueincreased. It is also in the interests of the Municipal Councils that theassessment of tho annual value should be increased because rates thatwould be payable are thereby enhanced. At an inquiry therefore heldby the council to which tho landlord alone is a party, arguments insupport of the position that the assessment should not be increased maynot be advanced. Prima Jade, it appears to me unfair that there shouldbe an increase of the assessment of the annual value to the prejudice of atenant without his being given an opportunity to put forward his positionin regard to tho matter. It is no doubt true that Local Authoritiesgenerally have acted with a sense of responsibility and have not raisedthe assessment of annual values unless they were satisfied that suchassessments had to be raised upon the application of proper principlesof rating.
Section 235 contains provisions in regard to notice being given of thodate of inquiry and of tho person in -whose presence the inquiry has to beheld. This provision did not envisage notice being given to a tenant orhis being heard but-, as I ha ve indicated earlier, when s. 235 w as enactedit was no.t contemplated that there would be objections seeking to haveassessment of annual values increased nor indeed on that date was thereany question of possible prejudice to any person other than landlordsthemselves by reason of raising of the assessment of annual values.Mr. Coomaraswamy relied upon the principle first enunciated in Bentley'scase that where a statute is silent in regard to notice being given totho interested partjq the logic of the common law would supply thedeficiency and require such notice to be given.
There is an amendment to s. 327 of the Municipal Councils Ordinanceby Act No. i of 1969 made with retrospective effect from 1st January,1919 which may be relevant. -It is as follows :—
“ (4) In determining for the purposes of this Ordinance the annualvalue of any premises to which tho Rent Restriction Act applies, and -in assessing the amiual rent of such premises for the purposes of suchdetermination, a Municipal Council shall not have regard to theprovisions of that Act.”
This amendment has been enacted because of tho view taken that it wasnot open to a Municipal Council to increase the annual value of premisesto which the Rent Restriction Act applied in suclv a manner that thopremises became excepted premises but the plain words of the subsectionwhich enjoins all Municipal Councils not to have regard to the provisionsof the Rent Restriction Act may have the effect of precluding any impliedrequirement that notice should be given to a tenant upon an objection bya landlord seeking to have the assessment of annual value of premisesincreased. .
SAMERAWICKRAME, J.—Rajakaruna v. De Silva
27 7
I have given careful consideration to the matter .raised by learned-counsel for the defendant-appellant and I should have referred thismatter to Mj* Lord the Chief Justice for his consideration as to whetherit merited decision by a fuller Bench were it uot for the matter which Irefer to in the next paragraph.
In the case of Duraiyappa v. Fernando 1 it was held by th6 PrivyCouncil that a decision made without notice to a party in breach of theprinciples of natural justice is not a nullity but is voidable at the instanceof that party. It would appear to follow that in this case if the tenantwas entitled to notice, the assessment made without notice and in hisabsence would not be a nullity but would be voidable. It would benecessary therefore that the assessment should be set aside or declaredvoid by a court. It appears to me that it is not open to thedefendant-appellant to have the assessment 6et aside or avoided in theseproceedings in which the Municipal Council is not a party.
I desire however to state that whether there is a legal obligation on aMunicipal Council to issue notice to a tenant or not the Council would bewell advised, upon an objection made by a landlord seeking to have anassessment increased, to issue notice to the tenant of such premises andto hear him.
Mr. Coomaraswamy also contended that there was a sum of Es. 3,000in the hands of the plaintiff-respondent which should be 6ct off againstrent and damages. Paragraph 10 of the answer 6Cts out the defendant’sposition in regard to this matter as follows :—
" The defendant states that he has paid to the plaintiff a sum ofRs. 3,000 by way of excess rents and there is now in the hands of theplaintiff a sum of Rs. 3,000 paid in excess of rents by the defendant tothe plaintiff within the last three years. In the premises aforesaid thisdefendant is entitled to remain in occupation of the said premises untilthe liejuidation of the said sum. Consequently the defendant furtherstates that this sum having been held by the plaintiff at the time of thenotice to quit the said notice to quit is in an}- event bad in law.”
At the trial the following issues were raised :—
” (11) (</) Was there in the hands of the jdaintiffa sum of Rs. 3,000 ?(b) Can this amount be set off against future rents ?
(12) If so is tIre plaintiff by his conduct entitled to terminatethe contract between the plaintiff and defendant ? ”
The defendant stated in evidence that a sum of Rs. 3,000 was paid onhis behalf by his brotiier to the landlady’s agent before he entered intooccupation in order to instal drainage and water pipes. The plaintiffdenied that the Bum of Rs. 3,000 was paid. 'The learned Commissioner ofRequests held that a sum of Rs. 3,000 had been paid but he took the viewthat it had been paid as key money and therefore it was not recoverable.Mr. Coomaraswamy contended that the learned Commissioner was inerror in considering the question whether this money was paid as keymoney which was the case neither of the plaintiff nor of-tiic defendant.
* (I'jGC) A L. li. 200.
278
Ceylon Estates Staffs' Union v. Superintendent, Mcddccombra
Estate, M’atagcda
It was conceded on behalf of the defendant that though the money was-paid there was no arrangement that the money should be set oil' againstrent. At the date of action there was no sura claimed as due either byway of rent or damages. In view of the fact that there was no arrange-ment that this money was to be set off against rent the defendant.cannotclaim ; even if he was entitled to a return of the money, that it should beset off against future rent and damages. It was open to the defendantto have put forward a claim in reconvcntion ashing that he be declaredentitled to a repayment of the sum of Rs. 3,000 and for a decree for thatamount. If he succeeded, there would have been a set off between thesums decreed in favour of the plaintiff and the sums decreed in favour ofthe defendant in accordance with the rules of civil procedure. Thedefendant-appellant has however not put forward any claim in recon-vent-ion and even if he did put forward sucli a claim, it would have beenbeyond the jurisdiction of the Court of Requests. I am therefore of theview that upon the position of the defendant-appellant himself the claimfor an order that the sum of Re. 3,000 should bo set off against rent anddamages cannot succeed.
It was also contended that notice to quit had not been duly given.There is a finding of fact by the learned Commissioner that he is satisfiedupon the evidence that the registered letter containing the notice was *delivered to the defendant on the 30th of June 1964 and not on 1st July1964 as contended for by the defendant. I see no reason to interferewith that finding. The appeal is accordingly dismissed with costs.
Appeal distnissed.