173-NLR-NLR-V-47-DE-SILVA-Appellant-and-SIRIWARDENE-Respondent.pdf
DIAS J.—De Silva v. Siriwardene.
487
1946Present : Dias 3.
DE SILVA, Appellant, and SIRIWARDENE, Respondent.
162—C. R. Colombo, 99,325.
Contract of tenancy—Rent recoverable—Retrospective effect of Rent RestrictionOrdinance—Computation of standard rent—Proclamation in Gazette—Court can take judicial notice of it—Rent Restriction Ordinance, No. 60of 1942, ss. 3, 4, 5, 17.
Section 3 of the Rent Restriction Ordinance makes it unlawful for alandlord to recover rent in excess of the authorised rent although thecontract of tenancy was entered into before the Rent Restriction Ordinancebecame law and a higher rent was agreed upon. Section 17 of theOrdinance affords no relief to the landlord in such a case.
Where the tenancy is one in which the landlord pays the rates the“ standard rent ” is determined by adding the annual value of thepremises and the amount of rates leviable for the year and dividing theresult by twelve.
A Court can take judicial notice of the date on which the RentRestriction Ordinance was made applicable to a particular locality byProclamation.
A
PPEAL finm a judgment of the Commissioner of Requests*Colombo.
H. W. Jayewardene, for the plaintiff, appellant.
P.Navaratnarajah, for the defendant, respondent.
Cur. adv. milt.
November 1, 1946. Dias J.—
The appellant sued the respondent to recover rent for part of May andfor the months of June to August, 1945, aggregating Rs. 58*00, in respectof premises bearing No. 71, Robert’s road, Kalubovila, which he had letto the respondent on a contract of monthly tenancy since September,1939- He also asked for ejectment and damages on the ground that therespondent was overholding after the tenancy had been determined bynotice.
The appellant stated that the rent agreed on from the very commence-ment of the tenancy was Rs. 15*00 per mensem.
The respondent, in his answer, pleaded that the rent for the periodin question had been duly tendered to the plaintiff’s proctor who refusedto accept the same. He further stated that the Rent Restriction
1 {1908) 11 N. L. R. 289.
488
DIAS J.—De Silva «. Siriwardene.
Ordinance, No. 60 of 1942, having been proclaimed for this area onFebruary 15, 1943, the “ standard rent ” for the premises was onlyRs. 5*00 per mensem, and not Rs. 15*00. He had overpaid theappellant from February, 1943, to May, 1945, a sum of Rs. 405 * 00 insteadof the sum of Rs. 135*00, thereby paying a sum of Rs. 270*00 in excessof what he was by law bound to pay. Giving the appellant credit fora sum of Rs. 20*00 for the months of June to September, 1945, heclaimed in reconvention a refund of Rs. 250*00.
The first question which arises is whether the respondent has provedthe date on which the Rent Restriction Ordinance was applied to thislocality. Section 2 (1) of the Ordinance provides that the Governormay, from time to time, by Proclamation published in the Gazette,declare that the Ordinance shall be in force in any area specified in theProclamation, and appoint the day on and after which the Ordinanceshall be in force in such area.
No evidence of this has been led at the trial, and the relevant Gazettehas not been produced. It was held in Jayakodi v. Silva 1 that a Court isbound to take judicial notice of the date on which an Ordinance has beenbrought into operation. In Edirisinghe v. Cassini 2 it was laid downthat a Court could take judicial notice of the date on which a DefenceRegulation came into operation. In an old case reported in Ramanathan(1877) page 10, it was held that a Proclamation issued by the Governorcan be taken judicial notice of without proof. No doubt, this case wasdecided before the Evidence Ordinance became law, but I fail to see whya Court cannot take judicial notice of a Proclamation issued by theGovernor, if it can do so in the case of a Regulation.
therefore, allowed the respondent’s Counsel to produce the GazetteNo. 9,084 of February 12, 1943, which shows that the Ordinance wasapplied to the Mount Lavinia District on February 15, 1946.
The Rent Restriction Ordinance, therefore, began to operate in thisarea on February 15, 1943.
The next question is whether the respondent has, under sections 4 and 5of the Ordinance, established what is the “ standard rent ” for thesepremises ? This is arrived at by adding the annual value of the premisesand the amount of rates leviable for the year and dividing the resultby 12—Wijemanne <k Co. v. Fernando *.
The respondent has called a clerk of the Dehiwala-Mount LaviniaUrban District Council who produced a certified copy of the assessmentregister—D2. This shows that the annual value during the relevantperiod is Rs. 55*00. The rates are not specifically stated, but D2 statesthat the “ monthly rent ” is Rs. 5*00. The witness stated that in 1945the assessor had assessed the premises at Rs. 5*00 a month..
Dealing with this point the Commissioner says in his judgment:—“ Onreference to D2 …. I find that in 1941 the monthly rental isRs. 4*50 and the annual value Rs. 50*00 and for the years 1942, 1943,and 1944 the monthly rental is assessed at Rs. 5*00 and the annual valueRs. 55*00. Therefore, I find that the plaintiff Lad recovered from thedefendant Rs. 10*00 in excess of the standard rent.”
1 (1943) 44 N. L. R. 379.* (1945) 46 Ni L. R. 334.
* (1946) 47 N. L. R. at p. 64.
DIAS J.—De Silva v. Siritoartfene.
489
The appellant criticises this finding. He submits that in order toascertain the “ standard rent" one must add the annual value and therates. D2 does not show what the rates leviable are and, in the absenceof that factor, the “ standard rent ” cannot be calculated. Theappellant was asked whether he paid the rates, but he wets not askedwhat the amount he paid was. I, therefore, agree with the appellant’scontention that the respondent has failed to establish what the standardrent is.
On the question of tender, the Commissioner has held against-theappellant who, in his evidence, admitted that although the respondent’sproctor remitted money on behalf of the respondent from June, 1945,appellant’s proctor refused to accept those rents.
The main question for decision arises on the respondent’s claim inreconvention. It is submitted for the appellant that this monthlytenancy began in September, 1939, long before the Rent RestrictionOrdinance became law. At that date it was lawful for a landlord andtenant to agree upon a rental of Rs. 15*00 per menserm An agreementby the parties as to the duration of a tenancy may be for a definite time,or it may continue until a certain event takes place, or run from period toperiod. In the case of a monthly tenancy it runs from month to monthuntil determined by proper notice to quit *.
It is therefore urged that anterior to the date when the Rent RestrictionOrdinance was proclaimed in this area, there was in existence a lawfulagreement between the parties under which the respondent had to pay amonthly rental of Rs. 15 * 00.
It is submitted that even assuming that the “ standard rent ” for thesepremises after February, 1943, was Rs. 5*00 per mensem, the RentRestriction Ordinance cannot retrospectively affect vested lawful rightswhich had come into existence prior to the Proclamation of the Ordinancein that locality. Even if the Ordinance has a retrospectivo effect, it isargued that by virtue of section 17 of the enactment the increase ofRs. 10*00 over the standard rent of Rs. 5*00 is saved, because it is inaccordance with the terms of a “ lawful agreement relating to thetenancy ”.
This question arose in a different form in Edmund v. Jayawardene a.In that cise the parties on December 15, 1942, entered into an agreementthat the tenant should pay a rental of Rs. 23 * 00 per mensem commencingfrom January 1, 1943. The Rent Restriction Ordinance became law onDecember 26, 1942, so that when the agreement became operative,the Ordinance was in force. At that date the standard rent for thepremises in question was only Rs. 15*00 per mensem. It was held thatthe question whether the Ordinance could affect vested rights did notarise, because on the day the agreement began to operate, the Ordinancewas already in force. Jayetileke J. said :—“ The section (3 (2) ) pro-hibits the increase of rent from the day the Ordinance came into operation,namely, December 26, 1942…. The material date in this case
is January 1, 1943, when the increase became effective, and not December15, 1942, when the increase was agreed on ”.
Wille on Landlord de Tenant, pp. 36, 37; Tambiah on Landlord ds Tenantpp. 31, 32-
{1946) 46 N. L. R. 306.
20—H 16792 C8/681
490
DIAS J.—De Silva v. Siriuardene.
The plaintiff, in that ease, therefore, was held disentitled to recoverfrom the defendant anything more than the standard rent under section3 (1). The question which arises here did not, therefore, come up fordecision in that case.
In .the present case, the rental of Rs. 15*00 per mensem was agreedupon and had become effective nearly three years before the Ordinancebecame law and four years before it was applied to this area
Xt is a cardinal rule of construction that a statute must be construedstrictly and not be extended to interfere with ordinary or vested rights 1A retrospective operation is not to be given to a statute so as to impairan existing right or obligation, otherwise than as regards a matter ofprocedure, unless that effect cannot be avoided without doing violenceto the language of the enactment. If the enactment is expressed inlanguage which is fairly capable of either interpretation, it ought to beconstrued aB prospective only. Every statute which takes away orimpairs vested rights acquired under existing laws, or creates a newobligation, or imposes a new duty, or attaches a new disability in respectof transactions or consideration already past, must be presumed, out ofrespect to the Legislature, to be intended not to have a retrospectiveeffect—Paramasothy v. Suppramanian 2.
It is another rule of construction that one may consult the preambleof the Statute to find out its meaning and keep its effect within its realscope. Hull Blyth da Co. v. Valiappa Chettiar *. Nevertheless, wherethe meaning of the section is plain, it is not possible for the preamblein any wise to qualify the enacting sections of the statute—SeUathurai v.Kandiah *.
The preamble to the Rent Restriction Ordinance says that it is anOrdinance to restrict the increase of rent and to provide for mattersincidental to such restriction. “ To increase ” means to amplify,augment, enlarge or swell. The object of the Legislature, therefore,was to restrict landlords who, by taking advantage of the existing shortageof living accommodation, made inequitable demands for rents fromtenants who, by force of necessity, had to accede to such exorbitantdemands. Section 3 (1) (6) expressly provides for that by enacting thatit shall not be lawful for the landlord “ to increase the rent of suchpremises in respect of any such period to an amount in excess of suchauthorised rent ” Clearly this appellant has not done that. There is,however, the effect of section 3 (1) (a) to be considered. That sub-section in clear and unequivocal language provides that “ it shall not helawful ” for the landlord “ to- demand, receive, or recover as the rent ofsuch premises in respect of any period commencing on or after theappointed date, any amount in excess of the authorised rent of suchpremises as defined for the purposes of this Ordinance in section 4”.
1 See Chairman, Municipal Council v. Silva (1917) 4 C. W. R. at p. 152 ,*Marikar v. Marikar (1920) 22 N. L. R. at p. 142.
(193S) 39 N. L. R. at p. 532.
8 (1937) 39 N. L. R. at p. 100. See also Natchiappa Chettiar v. Pesonahamy (1937)39 N. L. R. 377 (Objects and Reasons of statute may be considered), Chow v. de Alvris(1946) 47 N. L. R. at p. 44 (The grounds and cause for malting of the statute can beconsidered). Kuma v. Banda (1920) 21 N. L. R. 294 (Div. Court) (History of statutecan be inquired, into to ascertain its meaning).
(1923) 1 T. L. R. 212.
Albert Peiris v. Gunaratne.
491
The meaning of those words is that where at the date this Ordinanceapplies, the rent payable under the pre-existing law is in excess of theauthorised rent, the landlord was debarred from demanding, receiving, orrecovering any amount in excess of the authorised rent. The languageof the section being clear, there is no justification to give it a restrictedmeaning. I, therefore, hold that the contention of the appellant on thispoint fails.
The next question is whether section 17 permits any escape from thissituation ? This question was recently considered in Wijemanne &> Co.v. Fernando (supra). Soertsz J. said:—“ The reasoning by which thetrial Judge reached his conclusion is clearly fallacious, inasmuch as itignores the fact that it is not merely a voluntary agreement to pay anincreased rent that justifies the paymentt of such a rent by one party andthe receipt of it by the other, but a voluntary as well as lawful agreement ”
Section 3 makes it unlawful for the landlord to recover the old rent,and section 14 penalises a breach of that requirement. Wijemanne & Co.v. Fernando (supra) is binding on me. I therefore hold that section 17affords no relief to the appellant.
The position then is this : The plaintiff’s claim fails and his actionmust be dismissed. On the claim in reconvention the respondent hasfailed to prove what the standard rent is. If the aggregate of this sumis in excess of what the respondent has paid the appellant, the lattermust refund such excess to the respondent..
therefore, affirm the findings of the Commissioner in dismissing theplaintiff’s claim. I set aside the order of the Court below in regard tothe claim in reconvention, and send the case back for proper proof interms of the Ordinance as to what is the standard rent for these premisesand for adjudication as to what amount, if any, on such computationis due from the appellant to the respondent. There will be no costs ofthis appeal. All other costs shall be in the discretion of the Commissionerof Bequests.
Plaintiff’s claim dismissed. Claim in reconventionsent back for further inquiry.