Sri Lanka Law Reports
[)984] 1 S.L.R.
COURT OF APPEAL
ATUKORALE, J. (PRESIDENT) AND MOONAMALLE, J.
C. A. 46/80.-D. C, NEGOMBO-2168/L.
JUNE 6. AND NOVEMBER 1 6. 1983.
Rent Act, No. 7 of 1972-Application by tenant to Rent Board for certificate oftenancy – Whether Rent Board has jurisdiction to inquire into a disputed question oftenancy before grant of certificate – Whether certificate given is final and conclusive- Appeal to Board of Review – When available – Legality of order made by Board ofReview on an appeal involving question of fact.
The plaintiff filed action in the District Court to have the defendant ejected from thepremises in suit on the ground that she was a trespasser and was in wrongfuloccupation thereof. The defendant had earlier applied to the Rent Board for acertificate of tenancy which application had been refused. The Board of Review haddismissed her appeal from this Order. The question as to whether, in view of theorders of the Rent Board and the Board of Review the defendant was entitled to anorder that she is the tenant of the premises, was tried as a preliminary issue. TheDistrict Judge answered the issue in the negative and the defendant appealed.
(1) Where, upon the refusal of a landlord to give a tenant a certificate of tenancy anapplication is made under section 35(2) of the Rent Act to the Rent Board for sucha certificate, the Board has the power to inquire into the disputed question oftenancy before the grant of the certificate or otherwise.
*(2) The contents of a certificate of tenancy given by the Rent Board are not finaland conclusive and can be challenged in a Court of Law when reliance is sought tobe placed on the certificate since such a certificate is admissible in evidence and isprima facie evidence of the facts stated therein.
Since the appeal of the defendant to the Board of Review was not on a questionof law as is required to be in terms of section 40(4) of the Rent Act. the decision ofthe Board of Review is devoid of any legal force and does not preclude thedefendant from seeking to establish in this action that he is the lawful tenant.
Cases referred to
(1) Ponniah Rathnam Nadar v. D M Appuhamy-S. C 242776(F): S. C. Minutesof 14.6.77.
12) Ranasinghe v Jayatillake (1970) 72 N.L.R. 126
Manuel v. Wi/ewardena (Atukorale, J.)
APPEAL from an yder of the District Court of Negombo.
J. W. Subastnghe. S. A. with Bimal Rajapakse for the defenbant-appellant.
P. A. D. Samarasekera with G. L. Geethananda for the plaintiff-respondent.
Cur. adv. vu!t.
February 2, 1984.
ATUKORALE, J. (President)
The premises in suit in this case admittedly belonged to the plaintiffwho instituted this action to have the defendant ejected on thebasis that she was a trespasser and in wrongful occupation thereof.The defendant maintained that she was the monthly tenant underthe plaintiff. At the hearing it was admitted that the premises wererent-controlled and that the defendant had made an application(P1) to the appropriate Rent Board for a certificate of tenancy ; thatthis application was refused by the Rent Board (P3) ; that thedefendant appealed to the Board of Review and that the Board ofReview dismissed her appeal (P4). Based on these admissionsissue No.6 was raised on behalf of the plaintiff as to whether inview of the orders of the Rent Board and of the Board of Review thedefendant is entitled to obtain an order from court that she is thetenant of the premises. This issue was tried as a preliminary issue.The learned District Judge answered this issue in the negative andentered judgement in the plaintiff's favour. The present appeal isfrom this judgement. At the hearing no oral evidence was led byeither party. Certain documents were marked. P1 is the applicationof the defendant to the Rent Board in which one of the reliefs askedfor by her is a certificate of tenancy. She states therein that thelandlord (the plaintiff) is seeking to have her ejected from thepremises in the instant action without disclosing the tenancy. P2consists of the proceedings before the Rent Board. P3 is the orderof the Rent Board. It shows that the Board after a consideration ofthe evidence before it reached the finding that the defendant wasnot the lawful tenant of the premises and refused her application.P4 is the order of the Board of Review dismissing the defendant'sappeal.
Learned Senior Attorney for the defendant submitted to us that aRent Board constituted under the provisions of the Rent Act. No.7of 1972. had no jurisdiction to inquire into and make an order
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 1 S.L R.
relating to a disputed question of tenancy on an application madeto it by a perspn claiming to be the tenant for a certificate oftenancy. He contended that the Act conferred no power, eitherexpress or by implication, on a Rent Board to hold an inquiry for thepurpose of determining whether the applicant wa% a tenant or not.He maintained that S. 37(1} of the Act makes it obligatory on theRent Board to prepare and maintain an up-to-date Rent Registerrelating to each premises situated within its area of jurisdiction. Forthis purpose the Board is empowered to require the landlord or thetenant of the premises to furnish to it such information andparticulars as it may deem necessary. The particulars so furnishedby the landlord or the tenant are required to be entered by theBoard in the Rent Register. If in the course of the preparation andthe maintenance of the Register any dispute arises between thelandlord and the tenant in relation to any of the particulars requiredto be furnished, the Board is obliged to inquire into and make adecision on any such dispute, which decision is declared to be finaland conclusive-S. 37(5} of the Act. It was also submitted thatS. 37(6) empowers a tenant to make application to the Rent Boardto have his name entered in the Rent Register as the tenant of thepremises. On such application the Board, after notice to thelandlord and after due inquiry, must, if it is so satisfied, enter hisname in the Register as the tenant of the premises. Such a decisionof the Board is also declared to be final and conclusive. Theprovisions of S. 37 of the Act, it was contended, were verycomprehensive requiring the Rent Board to prepare and maintain anup-to-date Rent Register containing all the necessary particularspertaining to the tenancy of each premises in its area of jurisdiction.They were mandatory requirements which had to be complied withby every Rent Board. Learned Senior Attorney urged that when anapplication is made by a tenant for a certificate of tenancy all thatthe Board could do is to ascertain from the Register whether theapplicant is the tenant. If his name has been entered as the tenantthe Board will give the certificate. If his name does not appear in theRegister as the tenant no certificate could be given by the Board tohim. He thus maintained that the Board in giving a certificate oftenancy performs a purely administrative function. Learned SeniorAttorney also stressed the fact that S. 35(2) of the Rent Act, whichmakes provision for the giving "of a certificate of tenancy by theBoard, makes no reference to and does not contemplate the
Manuel v. Wijewardena (Atukorale. J.)
holding of an inquiry or the making of any order by the Board. Byway of contrast he drew our attention to several sections in the Actwhich specifically provided for an inquiry and the making of an orderby the Board, such as, for instance, sections 13(1), 13(4), 14(2),20(1), 25 (1) 34 and 36(4). He therefore contended that thescheme of the Rent Act revealed that in giving a certificate oftenancy the Board is called upon to perform not a quasi-judicial buta purely administrative function. In holding an inquiry into thedefendant's application P 1 and in deciding that the defendant wasnot the tenant, the Board, it was thus contended, had actedwithout jurisdiction and the order P 3 of the Board and the orderP 4 of the Board of Review were accordingly of no force or effect inlaw.
On a careful consideration of the provisions of the Rent Act, I amof the opinion that a Rent Board has the power to inquire into anddecide on a disputed question of tenancy arising out of anapplication made by a tenant for the grant of a certificate of tenancyto him. S. 35( 1) of the Act enacts that a landlord shall, upon beingrequested to do so by the tenant, give to him a certificate oftenancy relating to the premises in the prescribed form. S. 35(2)provides for a case where the landlord refuses to give the tenantsuch a certificate. In such a case the Rent Board is required, uponapplication made to it by the tenant, to give to him a certificate.S. 39(1) stipulates that every application to the Rent Board underthe Act must be made in such a manner as is prescribed. It is not indispute that the application made by the defendant is in th§prescribed form. S. 39(3) of the Act stipulates that before making'any order upon any application under this Act, the Board shall giveto all interested parties an opportunity of being heard and ofproducing such evidence, oral or documentary, as may be relevantin the opinion of the Board. The language used in this subsection isplain, clear and unambiguous. It is of the widest possible importand includes every application authorised to be made under theAct. It would include an application made by the tenant underS. 35(2) of the Act for a certificate of tenancy. It also empowersthe Board to make any order upon the application made to it. Alogical consequence of the submission, if accepted, of learnedSenior Attorney would be to curb the power of the Rent Board togive certificates only to tenants whose names are entered as suchin the Rent Register maintained under S. 37(1), As pointed out by
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learned counsel for the plaintiff there is nothing either in S. 35 or inS. 37 to indicate Jhat they should be read together. They are twodistinct and separate sections independent of each other. There isno reason to give a narrow construction to S. 35(2} as urged bylearned Senior Attorney. Moreover the form prescribed byregulation 44 of the regulations framed under the Rent Act – FormB set out in Schedule D – shows that the date of the 'decision' ofthe Rent Board to give the certificate must be inserted in thecertificate. The form of the certificate also provides for a statementto the effect that the Board 'after due inquiry' was 'satisfied that thetenant is entitled to a certificate of tenancy'. S. 43(5) of the Actstipulates that any regulation made by the Minister shall whenapproved by the House of Representatives be as valid and effectualas if it were enacted in the Act itself. The form prescribed byregulation 44 thus has the force of law as fully as if it had beenenacted in the Act – vide S. 17(1 )(<?) of the InterpretationOrdinance. (Chap. 2). The form therefore fortifies the view that theRent Board has the power to inquire into and to decide to give acertificate of tenancy to the tenant, in a case where the landlordhas refused to give one. The submission of learned Senior Attorneytherefore fails.
The next question that arises for our consideration is the legaleffect of the two orders, P3 and P4, made by the Rent Board andthe Board of Review respectively. Learned counsel for thedefendant submitted to us that the decision of the Board of Reviewwas final and conlusive – S. 40(11) of the Rent Act – and that itcould not be challenged collaterally in the present action. In supportof this submission he relied on the decision of the former SupremeCourt in Ponniah Rathnam Nadar v. D. M. Appuhamy (1) WhereIsmail, J. (with Wimalaratne, J. and Ratwatte, J. agreeing) held thatwhere a Rent Board, under S. 16A of the Rent Restriction Act asamended by Act No. 10 of 1961, has determined the amount of theauthorised rent of the premises from which no appeal is taken tothe Board of Review, it is not open to the tenant to canvass thevalidity of the order of the Rent Board in the course of proceedingsin a court for his ejectment from the premises on the ground ofarrears of rent. Ismail, J. expressed the view that the properremedy of the tenant was to have appealed against the order of theRent Board and that, not having done so, the tenant is precluded
Manuel v. Wiiewardena (Alukorale. J.)
from challenging the correctness of the order of the Rent Boarddetermining the amount of the authorised rent in the course of theaction. The section corresponding to S. 16A of the Rent RestrictionAct is S. 34 of the present Rent Act, No.7 of 1972, as amended byAct No.55 of 1080. The provisions relating to the grant of acertificate of tenancy are contained in S. 16B of the RentRestriction Act, as amended, and in S. 35 of the present Rent Actand are identical. According to these provisions a certificate oftenancy given by the landlord to a tenant is admissible in evidenceand is prima facie evidence of the facts stated therein. They furtherstipulate that where the Rent Board on a refusal of the landlord togive the tenant a certificate of tenancy gives to the tenant acertificate, such a certificate of tenancy given by the Rent Board isdeemed to be a certificate of tenancy given by the landlord to thetenant. The legal consequence of this provision is that thecertificate given by the Rent Board must also be taken to beadmissible in evidence and to be prima facie evidence of the factsstated therein. If this be so, a landlord or tenant will not beprecluded from challenging the correctness of the facts stated inthe certificate given by the Rent Board when in proceedings in acourt of law reliance is sought to be placed on the certificate.Hence it seems to me that the contents of a certificate of tenancygiven by the Rent Board are not final and conclusive. There is nospecific legal provision relating to the effect of a refusal by the RentBoard to give a certificate of tenancy. But considering the fact thatthe Rent Board is required to inquire into and arrive at a decision ipproceedings which are of a judicial nature, a refusal by the RentBoard to give a certificate may reasonably be taken to be primafacie evidence of the fact that the applicant is not the lawful tenantof the premises where the ground of refusal is for the same reason.
In the instant case the defendant appealed to the Board ofReview from the order of the Rent Board. S. 40(4) of the Rent Actby its proviso permits an appeal to the Board of Review only upon amatter of law. In this respect there is a departure from thecorresponding provision contained in S. 21(4) of the RentRestriction Act which gives an aggrieved person a right of appealfrom any order of the Rent Board. ,lt becomes clear from a perusalof the order of the Board of Review (P4) that the appeal of thedefendant was not on a matter of law. It involved only questions of
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fact. The Board of Review was therefore not competent to entertainthis appeal. The decision of the Board of Review on such an appealis, in my view, devoid of any legal force. It cannot attract for itselfthe character of finality and conclusiveness which only a decisionon a proper appeal upon a matter of law is vestedvith. The opinionI have formed is therefore that the order of the Board of Review (P4)is of no legal effect and does not preclude the defendant fromseeking to establish in this action that he is the lawful tenant of thepremises in suit. I also hold that in view of the special statutoryprovisions contained in the Rent Act relating to the grant of acertificate of tenancy the decision of the Supreme Court in PonniahRathnam Nadar v. D. M. Appuhamy is clearly distinguishable andthe principle enunciated therein has no application to the facts ofthis case. I might also add that in Ranasinghe v. Jayatillake (2}Fernando, C. J. (with Weeramantry, J. agreeing) made certainobservations which seem to suggest that a determination of theamount of the authorised rent under S. 16A of the Rent RestrictionAct by the Rent Board may be contested in a court of law.
For the above reasons the appeal is allowed. The judgement ofthe learned District Judge'is set aside. Issue No. 6 is answered inthe affirmative and the case is remitted to the District Court for trialon the other issue. The defendant will be entitled to a sum ofRs. 1050/- as costs of the abortive trial and of this appeal.
INflOONAMALLE, J-I agree.
EL v. WIJEWARDENA