035-SLLR-1984-V1-WIJESUNDRA-v.-GUNAWARDENA-AND-OTHERS.pdf
CA
Wijesurendrav. Gunawardena
239
WUESURENDRAv.GUNAWARDENA AND OTHERSCOURT OF APPEAL
ATUKORALE, J. (PRESIDENT) AND T. D. 6. DE ALWIS. J.
C.A. No. 826/83.
JANUARY 12 AND .13. 1984.
Rent Act No. 7 of 1972, as amended by Act No. 55 of 1980 – Application fordetermination of authorised rent – Jurisdiction of Rent Board and Board of Review toinquire into the validity of. the assessment of the annual value by the localauthority – Rules 12 and 13 of the Rules framed under section 52 (If (c) of VillageCouncils Ordnance (Cap. 257}.
The respondent made an application to the Rent Board, under section 34 of the RentAct. No. 7of 1972,'for a determination of the authorised rent of the premises of whichhe was the tenant. He produced before the Board a copy of the relevant assessmentregister maintained by the local authority showing the annual value of the premises asassessed by that local authority. The petitioner submitted that the assessment wasillegal and void as there had been non-compliance with Rules made under section52 (1) (c) of the Village Councils Ordinance which were mandatory. The Rent Boardrefused to allow the petitioner to canvass the assessment of the ennual value on theground that it had no jurisdiction to do so. The petitioner appealed to the Board ofReview against the order of the Rent Board. The Board of Review affirmed the Order ofthe Rent Board and the petitioner then filed an application for a writ of certiorari toquash the Orders of the Rent Board and Board of Review.
Held-
Rules 12 and 13 of the Rules made under section 52 (1)<c) of the Village CouncilsOrdinance are mandatory provisions of law. non-compliance with which would vitiatethe assessment made. The annual value defined in section 48 of the Rent Act is theannual value as is assessed according to the Rules made under section 62 (1) (c) of theVillage Councils Ordinance.
The Rent Board and. in appeal, the Board of Review have jurisdiction, in determining theauthorised rent, to inquire into the objections by a party adversely affected, that theassessment made by the local authority was illegal as there was non-compliance withmandatory Rules.
Cases referred to
Loku Banda v. The Assistant Commissioner of Agrarian Services. Kandy. (1963}65N.L.R. 401.
Bastian Perera v. The Commissioner of National Housing. (1974} 77 N.LR. 361.
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[1984] 1 Sri L.B.
APPLICATION for writ of certiorari to quash orders made by Rent Board and Board ofReview.
Miss. Maureen Sermiratne, S. A with Kithsiri Gunararne for petitioner.
5. C. B. Walgampaya for 1 st respondent.
2nd to 4th respondents absent and unrepresented.
Cur. adv, vult.
April 5.1984,
ATUKORALE, J. (President)
The petitioner who is the landlord of premises No. 59 A/12 A.Palatota, Kalutara, seeks, inter alia, to quash by way of certiorari theorder of the Rent Board of Review contained in exhibit P 14. By thisorder the Board of Review, affirming the order of the Rent Board,refused to permit the petitioner to lead evidence to establish that theannual value of the premises specified in the first assessment for theyear 1978 was not one determined according to law by the localauthority and that therefore it was a nullity. The first respondent is thetenant of the premises and the second to the fourth respondents arethe members of the Board of Review. The premises are residentialpremises governed by the provisions of the Rent Act, No. 7 of 1972.The 1st respondent made an application to the Rent Board for adetermination of the authorised rent of the premises – vide P 3. At thehearing into this application the 1 st respondent produced a certifiedextract of the assessment register relating to the premises. Thepetitioner submitted to the Rent Board that the assessment of theannual value was illegal and void for the reason that certain mandatoryprovisions of law had not been complied with by the local authoritybefore the assessment was made. At the hearing before us it wassubmitted that there had been non-compliance, inter alia, with Rules 12and 13 of the Rules framed under S. 52 (1) (c) of the Village CouncilsOrdinance (Chap.257, Vol IX, L.E.). The Rules are contained in Vol. Vof the'Subsidiary Legislation (1956 Revised Edition). It was submittedthat the petitioner sought to lead evidence before the Rent Board andthe Board of Review to show that no inspection of the premises wascarried out by any assessor of the local authority-; that the assessmentwas made in complete ignorance of the structure of the building, itssquare area and the facilities provided therein and that no notice inForm K in the schedule to the Rules was ever served on anyone as aresult of which the petitioner was deprived of the opportunity ofobjecting to the assessment. The Rent Board refused to hear anyevidence on the ground that the certified extract of the assessmentwas conclusive proof that the premises had been correctly assessed
CAWijesurendra v- Gunawardena (Atukorale, J )241
and that it had no power to inquire into the validity of the assessment.The petitioner appealed to the Rent Board of. Review against thisorder. The Board of Review comprising the 2nd to the 4threspondents affirmed the order of the Rent Board and held that theRent Board had no jurisdiction to question the legality or otherwise ofthe annual value as specified in the assessment made by the localauthority in proceedings held for the determination of the authorisedrent of premises – vide P 14.
Learned Senior Attorney for the petitioner urged before us that theBoard of Review erred in law in holding that the Rent Board had nosuch jurisdiction. She submitted that when a party makes anapplication to the Rent Board for a'determination of the authorisedrent on the basis of an annual value specified in the register ofassessment prepared by a local authority, it is open to the party who issought to be adversely affected by the same to challenge the validityof the assessment. She contended that the assessment of the annualvalue referred to in section 4 of the Rent Act must be a lawful and validassessment made in compliance with the provisions of law underwhich it is purported to be made. In support of her contention that it isopen to the Rent Board to inquire into the validity of the assessmentshe relied on the decisions in Loku Banda v. The AssistantCommissioner of Agrarian Services (1) and Bastian Perera v. TheCommissioner of National Housing (2). In the former caseAbeysundera, J. after considering certain earlier-decisions of theSupreme Court deduced the principle that * where an Order that is notmade by a Court is sought to be enforced by a Court under any writtenlaw, the Court must be satisfied that such order is valid and the partyaffected by such order is entitled to attack its validity." Learnedcounsel for the 1 st respondent submitted to us that neither the RentBoard nor the Board of Review had jurisdiction to question the legalityor the validity of the assessment made by a local authority and that theproper remedy of the petitioner was to have canvassed the same atthe proper time in appropriate proceedings such as by way of a writagainst the local body or a regular action to have the assessmentdeclared null and void. He maintained that it is not open to thepetitioner to impeach the assessment in collateral proceedings beforethe Rent Board.
S.34 of the Rent Act, No. 7 of 1972, as amended by S. 16 of ActNo. 55 of 1980, authorises the Rent Board on an application made inthat behalf by the landlord or tenant to determine by order the amount
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of the authorised rent of premises. Such a determination is based onthe annual value of the premises. S. 48 of the principal Act enacts thatthe annual value of any premises means, unless the context otherwiserequires, 'the annual value of such premises assessed as residential orbusiness premises, as the case may be, for the purpose of any rateslevied by any local authority under any written law and as specified inthe assessment under such written law.’ Rules 5, 6 and 10 to 18 ofthe aforesaid Rules provide for and prescribe the method by which theannual value has to be assessed. They provide, inter alia, for the issueof notices of assessment on the occupiers of the premises in aprescribed form (Form K), for the filing of objections, for inquiry intothe same by the Chairman of the local authority and for the filing ofappeals by persons aggrieved by the decision of the Chairman. Rule17 states that any assessment in respect of which no objection ismade shall be final for that year. Rule 18 (3) enacts that the decisionupon appeal by the Assistant Commissioner of Local Government shallbe final and conclusive. The Rules are very comprehensive andcontemplate the giving qf. notice -of assessment and the filing andhearing of objections thereto. In my view Rules 12 and 13 aremandatory provisions of law, non-compliance with which would vitiatethe assessment made. The annual value defined in S. 48 is the annualvalue as is assessed according to the aforesaid Rules. The Rent Boardand the Board of Review were therefore wrong in holding that they hadno jurisdiction to question the validity of the assessment of the localauthority. The Rent Board is empowered to determine the authorisedrent of any premises governed by the Rent Act. Such a determinationwill necessarily affect the rights of the parties before it. Where oneparty invites the Board to act on the annual value specified in theassessment register and its validity is challenged by the other partywho is sought to be adversely affectecfby such assessment it is, in myopinion, incumbent on the Board to inquire into and decide upon itsvalidity before determining the authorised rent. There is an error of lawapparent on the face of the orders of the Rent Board and the Board ofReview. I therefore make order quashing both orders and direct that afresh inquiry be held by the Rent Board into the application of the 1 strespondent. The 1 st respondent will pay the petitioner a sum of Rs.315 as costs of this application.
T. D. G. DE ALWIS, J. -1 agree.Application allowed.