Sri Lanka Law Reports
 1 Sri LR.
PODDALAGODA AND OTHERS
SUPREME COURTDHEERARATNE, J..
WIJETUNGA, J. ANDBANDARANAYAKE, J.
S.C. APPEAL NO. 51/97
C.A. APPLICATION NO. 142/96
RENT BOARD OF REVIEW APPEAL NO. 5036
RENT BOARD KANDY APPLICATION NO. 29/92
JUNE 1, 1998.
Writ of Certiorari – Decision of the Rent Board – Appeal to the Board of Review- Rent Act, No. 7 of 1972 – Sections 40 (4) and 40 (11) of the Act.
On an application made by the appellant landlord the Rent Board established underthe Rent Act held that the premises in dispute were "excepted* premises in termsof S. 2 (4) (c) of the Rent Act. The tenant appealed to the Board of Reviewunder S. 40 (4) of the Act which provides for an appeal upon a matter of law.The Board of Review found that the Rent Board had failed to properly evaluateevidence and on that basis set aside the order of the Rent Board and decidedthat the premises were governed by the Rent Act and not "excepted" premises.
The Rent Board had failed to properly evaluate the evidence andsuch failure was a question of law upon which the Board of Review wasentitled to exercise powers under S. 40 of the Act.
The decision of the Board of Review is “final and conclusive" underS. 40 (11) of the Rent Act and there being no grounds recognised byS. 22 of the Interpretation Ordinance, the appellant could not have suc-ceeded in the application before the Court of Appeal for a writ of certiorarito quash the decision of the Board of Review.
Case referred to:
1. Hasseen v. Gunasekera and others CA Application No. 128/86 CA. Minutes2 October, 1995.
Nalini Ellegala v. Poddalagoda and Others (Wijetunga, J.)
APPEAL from the judgment of the Court of Appeal.
A. K. Premadasa, PC with C. E. de Silva for appellant.
P. A. D. Samarasekera, PC with G. L. Geethananda and Keerthi Sri Gunawardenafor the 1st respondent.
Cur. adv. vult.
July 24. 1998.
This is an appeal from the order of the Court of Appeal dated2. 7. 96 dismissing the application of the respondent-petitioner-petitioner (landlord) for a Writ of Certiorari, seeking to quash the orderof the Rent Board of Review. The respondents are the petitioner-appellant-respondent-respondent (tenant) and the Chairman andmembers of the Rent Board of Review.
Special leave to appeal has been granted only in respect of thefollowing matters mentioned in paragraph 12 of the petition filed inthis Court :
"12 (£>). Under section 40 (4) of the Rent Act an appeal liesto the Rent Board (sic) (of Review) only on a matter of law.
(c) The Rent Board heard and saw witness Paramalingam. Hisevidence was accepted by the Rent Board. The Rent Board ofReview erred in rejecting the evidence of Paramalingam."
The tenant made an application dated 1. 4. 92 to the Rent Boardof Kandy against the landlord, seeking inter alia the determination ofthe authorized rent of premises No. 16, Lady Gordon’s Road, Kandy(X1). At the commencement of the inquiry before the Rent Board,the landlord objected to the jurisdiction of the Board to hear anddetermine the said application on the basis that the provisionsof the Rent Act do not apply to. the said premises, in terms ofsection 2 (4) (c).
Sri Lanka Law Reports
 1 Sri LR.
The inquiry commenced with the landlord leading evidence toestablish that the premises were not subject to the provisions of theRent Act, under section 2 (4) (c).
The Rent Board delivered its order (X6) on 31. 5. 93, holding that“the premises are 'excepted' premises in terms of section 2 (4) (c)of the Rent Act" and "the Board therefore has no jurisdiction”.
The tenant appealed to the Rent Board of Review which deliveredits order on 22. 1. 96 (X10) setting aside the order of the Rent Boarddated 31. 5. 93 and holding that “the said premises are governedby the provisions of the Rent Act and cannot be considered as“excepted‘ premises under section 2 (4) (c) of the Rent Act". It furtherdirected the Rent Board of Kandy to hold an inquiry with regard tothe relief prayed for in the application.
The landlord then made an application to the Court of Appeal fora Writ of Certiorari to have the said order quashed. The Court ofAppeal by its judgment dated 2. 7. 96 (X14) dismissed the applicationof the landlord.
The present appeal is from the said judgment.
Section 40 (4) provides that "any person who is aggrieved by anyorder made by any Rent Board under this Act may, before the expiryof a period of twenty-one days after the date of the receipt by himof a copy of the order, appeal against the order to the Board of Review:
Provided, however, that no appeal shall lie except upon a matterof law".
It is necessary, therefore, to consider whether there was a matterof law upon which the party aggrieved by the order, viz the tenant,could have appealed to the Board of Review. This question wastaken up as a preliminary objection at the hearing before the Boardof Review which held that “the evaluation of evidence adduced beforethe Rent Board is itself a question of law to be determined by theBoard" and rejected the said preliminary objection.
SCNalini Ellegala v. Poddaiagoda and Others (Wijetunga, J.)49
It had been submitted to the Board of Review that the evidenceof one Paramalingam, who had at one time been a tenant of thepremises, had not been properly evaluated by the Rent Board incoming to the conclusion that the premises came within theprovisions of section 2 (4) (c) of the Act.
Paramalingam who gave evidence on behalf of the landlord statedthat he became a tenant of a portion of premises No. 14 in 1964,under the mother of the present landlord. When his wife died in 1975,the character of his occupation changed from tenant to that of boarder,where the then landlord even looked after his two children. Thoughhe continued to occupy the same portion of the premises, the restof the house too was thrown open to him and his children, and hestarted paying for their meals as well. That part of the house whichhe was occupying was renumbered as No. 16, while the rest of thepremises remained as No. 14. In 1984 he left the premises on beinggiven official quarters.
According to the present landlord, Paramalingam became a boarderunder her in 1976 when she became the owner of the premises byinheritance from her father. After her brother came into occupationof a portion of the premises in 1978, and as Paramalingam had bythen become a boarder, she got back one room used by them, ofwhich she and her mother went into occupation. Although in 1980she was working in Colombo, she came home every week-end toKandy.
The tenant gave evidence on her own behalf and stated that whenshe came into occupation of No. 16, there was no access to anyother part of the building and produced the Assessment Extracts inrespect of No. 16 which showed that No. 16 had earlier been a partof No. 14. It was her position that Paramalingam had even admittedto her in a telephone conversation that he had been a tenant until1984; which however Paramalingam denied in cross-examination.
It had been submitted before the Board of Review that the thenlandlord had furnished a declaration dated 19. 1.73 (E2) under section37 of the Rent Act, according to which. Paramalingam was the tenantof the said premises.
Sri Lanka Law Reports
 1 Sri LR.
Section 37 (7) requires that “where a change occurs in any of theparticulars aforementioned, such change shall be notified to the board,by the person who has furnished such particulars, within six weeksof the occurrence of such changeAmong the particulars so requiredto be furnished are (i) the name of the tenant, (ii) the date ofcommencement of tenancy, and (iii) any other particulars pertainingto the tenancy of the said premises.
It was thus incumbent on the present landlord's mother, who wasthen the landlord, to notify the Rent Board of any change that occurredin any of the particulars so furnished. But, in this instance, the landlordhad made no such intimation to the Board. If the character ofParamalingam's occupation of the premises had changed from thatof tenant to boarder, it was imperative that the landlord should soinform the Board within six weeks of such occurrence, to enable theBoard to amend and update its Rent Register in respect of suchpremises, as by the declaration dated 19. 4. 73 Paramalingam's namehad been furnished as the tenant.
The Board of Review also noted that the Rent Board had failedto take into account the fact that Paramalingam was not an impartialor unbiased witness in that, on his own admission, after the deathof his wife, the then landlord had looked after his children and evensupplied him and the children with meals and played the role of afoster mother to his children. It was in these circumstances that theBoard of Review came to the conclusion that the Rent Board hadfailed to properly evaluate the evidence and therefore set aside theorder of the Rent Board dated 31. 5. 93.
The credibility of Paramalingam's evidence, as well as the landlord'sfailure to notify the Rent Board of the alleged change of status ofParamalingam from that of tenant to boarder are vital factors indetermining the question whether the premises in question were"residential premises occupied by the. owner on January 1, 1980, andlet on or after that date".
Other than the ipse dixit of Paramalingam and the landlord asregards the change of character of Paramalingam's occupation of the
SCNalini Ellegala v. Poddalagoda and Others (Wijetunga, J.)51
premises, there was no other material to indicate that Paramalingamand his children had become boarders after the death of Paramalingam'swife. There was on the other hand the absence of any notificationunder section 37 (7) of such change by the landlord as required bylaw. It is common ground that Paramalingam was an occupant of thepremises in suit from 1964 to 1984, until he left on being given officialquarters.
The main ground adduced before the Court of Appeal was thatthe Rent Board of Review was in error in entertaining the appeal whichwas not founded on a question of law. The Court of Appeal observedthat "if the true and only reasonable conclusion contradicts thedetermination reached by the tribunal, the conclusion may be set asideon the ground that there has been an error of law, which wasresponsible for the determination", and proceeded to hold that the"Board of Review has not acted outside its jurisdiction in entertainingthe appeal and making its decision on a matter of law".
The Court of Appeal in dealing with the application before it alsoreferred to section 40 (11) of the Rent Act under which the decisionof the Board of Review on any appeal shall be final and conclusive.It went on to state that “section 22 of the Interpretation Ordinancepermits an application to this Court to be made to quash the decisionof the Rent Board of Review only if it ex facie had no authority tomake the decision or if it had acted contrary to the principles of naturaljustice or a mandatory rule of law; none of which, save the questionof evaluation of evidence by the Board of Review has been allegedin the petition. Since the Board of Review was correct in treatingthe defective evaluation of evidence by the Rent Board as a questionof law, the petitioner cannot therefore succeed in this application".
In Hasseen v. Gunasekera and otherd' the Court of Appeal dealtwith an order of the Board of Review, affirming an order of the RentBoard which had been “arrived at without an adequate evaluation ofthe evidence and by failing to take into consideration relevant itemsof evidence which could have influenced the finding" and held theRent Board as well as the Board of Review had “erred in law byfailing to take into account relevant items of evidence in arriving at
Sri Lanka Law Reports
 1 Sri LR.
the finding0 and therefore quashed the orders of the Rent Board aswell as of the Board of Review.
Wade & Forsyth, Administrative Law, 7th edition at page 312dealing with the 'no evidence' rule states that 'no evidence’ does notmean only a total dearth of evidence. It extends to any case wherethe evidence, taken as a whole, is not reasonably capable ofsupporting the finding, or where, in other words, no tribunal couldreasonably reach that conclusion on that evidence". It goes on to stateat page 316 that "It seems clear that this ground of judicial reviewought now to be regarded as established on a general basis", andforecasts that 'no evidence' seems destined to take its place as yeta further branch of the principle of ultra vires, so that Acts givingpowers of determination will be taken to imply that the determinationmust be based on some acceptable evidence. If it is not, it will betreated as 'arbitrary, capricious and obviously unauthorised1.
Applying these principles to the matter before us, and havingregard to the facts aforementioned, I am of the view that the RentBoard had failed to properly evaluate the evidence and suchfailure was a question of law upon which the Board of Review wasentitled to exercise its powers under section 40 of the Act.
Equally, the Court of Appeal was right when it held that thedecision of the Board of Review being final and conclusive' undersection 40 (11) of the Rent Act, and there being no grounds recognizedby section 22 of the Interpretation Ordinance (save the question ofdefective evaluation of evidence by the Rent Board which had beencorrectly treated by the Board of Review as a question of law), thepetitioner could not have succeeded in the application before thatCourts, viz for a Writ of Certiorari to quash the decision of the Boardof Review.
For the reasons aforesaid, the appeal is dismissed, but in all thecircumstances, without costs.
DHEERARATNE, J. – I agree.
BANDARANAYAKE, J. – I agree.