096-NLR-NLR-V-71-N.-S.-DON-GERALD-Petitioner-and-W.-M.-FONSEKA-Respondent.pdf
H. N. G. FERNANDO, C.J.—Don Gerald v. Foneeta
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1009 Present: H. N. G. Fernando, C.J., and Weeramantry, J.
N.S. DON GERALD, Petitioner, and W. M. FONSEKA, Respondent
S. C. 351168—Application for a Mandate in the nature of a Writ ofMandamus on W. M. Fonseka, Chairman, Urban Council, Horana
Landlord and tenant—Bent-controlled premises—Alteration of assessment of annualvalue to make them excepted premises—Omission to give notice to tenant—Irregularity—Assessment of annual value—Requirement of notice to occupier—
. Municipal Councils Ordinance, s. 235—Mandamus.
Certain rent-controlled premises falling within the limits of an Urban Councilbecame excepted premises in consequence of a change made on 19th July 1967in the assessment of the annual value of the premises. On 2nd February 1966' the landlord filed action against the tenant for ejectment. During thependency of the action, the tenant requested the Chairman of the Urban Councilto issue a notice of assessment for the year 1968 to. himself. This request wasrefused by the Chairman on the ground that notices of assessment wereinvariably sent only to owners of premises and not to occupiers. The presentapplication for a Writ of Mandamus was made by the tenant to compel theChairman to issue the notice.
Held, that section 235 of the Municipal Councils Ordinance imposed on theCouncil the duty to serve a notice of assessment at the premises assessed. Theobject of s. 235 was to ensure that notices were received by occupiers.
A.PPLICATION for a Writ of Mandamus.
E. A. O. de Silt a, with S. £>. Wijeratne, for the Petitioner.
M.W. Jayewardene, Q.C., with L. W. AthulathmudaH, for theRespondent.
Cur. ado. vuti.
January 16, 1969. H. N. G. Fernando, C.J.—
The petitioner in this case was the tenant of certain premises situatedwithin the limits of the Horana Urban Council. In September 1967 he■ received notice from his landlord to quit the premises on or before 31stDecember 1967, and on 2nd February 1968 Hie landlord filed actionagainst him for ejectment. It would appear from the affidavit of thepetitioner that he became aware only after this action was filed of thefact that the premises had become excepted premises- for the purposeof the Rent Restriction Act. This was in consequence of a change in theassessment of the annual value of the premises, which had been made on19th July 1967. The assessment thus made fixed Rs. 2,222 as the annualvalue, which figure is higher than the figure which would render thepremises subject to Rent Restriction,
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H. N. G. FERNANDO, C. J.—Don Oerald v. Foneeka
Tlie petitioner’s claim that he was not informed of this change in theassessment is admitted by the Chairman of the Urban Council who isthe respondent to the present application. The Chairman has stated inhis affidavit that notices of assessment were invariably sent only toowners of premises and not to occupiers. The petitioner in May 1968requested the Chariman to issue a notice .of assessment for the year 1968to himself. This request was refused, and the present application is for aWrit of Mandamus to compel the Chairman to issue the notice.
Section 235 of the Municipal Ordinance which, according to theCounsol for the respondent, applies in relation to assessments made byUrban Council, clearly imposes on a Council the duty to serve a notice ofassessment at the premises assessed. Thus the object of s. 235 is toensuro that notices are received by occupiers. Section 235 also providesfor the making of objections against an assessment within thirty daysfrom the date of the service of the requisite notice. The failure of theCouncil in the present case to serve on the occupier’s premises a noticefixing an assessment higher than the figure of Rs. 2.000, has deprived thepetitioner of an opportunity to object to that assessment. This has hadparticularly serious consequences in the instant case because theassessment actually made has deprived the petitioner of the protection ofthe Rent Restriction Act .
Counsel appearing for the respondent Chairman has argued that if anoccupier of premises has for some period of time made no representationsregarding the omission of the Urban Council to serve notices of assessmentat his premises, the occupier must bo deemed to have waived his right toa notice. But s. 235 requires a notice to be served in each and everyyear, so that a failure to make representations in any year wall at themost amount to a waiver of the notice required for that year. Whentherefore the petitioner did not make representations relating to thenotice of the assessment for 1967, he did not thereby waive his right toservice on him of the notice for 1968.
Counsel has also urged that there may be many occasions in which aLocal Authority has followed the practice of sorving notices of assessmenton owners, and not on occupiers. That being so, he submitted that inconsidering whether to grant the relief asked for in this case we shouldtake into account the possibility that there may be numerous similarapplications which might involve the making of fresh assessments forpast yoars. We agree that this is a relevant consideration. But thereis in the present case a special circumstance that if the petitioner is notnow allowed an opportunity to object to the assessment of Rs. 2,222, hewill be deprived of any chance of being able to plead the Rent RestrictionAct in the action for ejectment which is pending against him.
WitHam t). Somnsundtram459
We direct that a Mandate be issued in terms of the prayer in thepetition. The respondent must pay to the petitioner the costs of thisapplication.
Weeramantry, J.—I agree.
Application allowed.