HUSSAN v. AUTHORISED OFFICER, COLOMBO RENT BOARD

035-SLLR-SLLR-1999-V-2-HUSSAN-v.-AUTHORISED-OFFICER-COLOMBO-RENT-BOARD.pdf


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Sri Lanka Law Reports
[1999] 2 Sri LR.
HUSSAN
v.AUTHORISED OFFICER, COLOMBO RENT BOARD
COURT OF APPEALATUKORALE, J. (P/CA); AND
A. G. DE SILVA, J.
C.A. APPLICATION NO. 471/82
M.C. FORT COLOMBO CASE NO. 40747
JANUARY 10, 1983.
Rent Act – Leasing of residential premises for 5 years under s. 29 (2) of theAct – Application of s. 2 of the Prevention of Frauds Ordinance – Failure to vacatepremises after 5 years – Non-notariat agreement – Liability of the tenant forconviction of an offence under s. 42 (2) of the Act.
By an agreement entered into in terms of section 29 (2) of the Rent Act andregistered with the Rent Board in compliance with that section, the landlord "leased"the premises in dispute at a monthly rental of Rs. 201. The agreement was “validfor a period of 5 years". The tenancywas terminable by either party with 3 months'written notice. However, such termination was not permitted until the expirationof a period of 3 years. The tenant also agreed to vacate the premises in theevent of the marriage of the landlord's son or daughter taking place after 3 yearsbut before the expiry of 5 years. The agreement was not notarially attested interms of section 2 of the Prevention of Frauds Ordinance.
Held:
There is nothing in section 29 (2) which expressly or impliedly, excludesthe operation of section 2 of the Prevention of Frauds Ordinance.
Per Atukorale, J. (P/CA)
"Where, as in the instant case, the letting of the residential premises isfor a period of not less than 5 years, I am of the opinion that the formalitiesprescribed by section 2 of the Prevention of Frauds Ordinance should beobserved."
CAHussan v. Authorised Officer, Colombo Rent Board
(Atukorale, J. P/CA)361
2. As the agreement had not been notarially executed it was invalid in law.Hence, the tenant had not contravened section 29 (3) of the Bent Actby failure to vacate the premises at the end of the period specified inthe agreement. As such she could not be convicted of an offence undersection 42 (2) of the Act.
Case referred to :
1. Pararajasekaram v. Vijayaratnam – (1974) 76 NLR 470.
APPLICATION for revision of the judgment of the Magistrate's Court of Colombo.A. A. M. Marieen for petitioner.
R. G. Dep, State Counsel for the respondent.
Cur. adv. vult.
April 5, 1983.
ATUKORALE, J. (P/CA)
The subject-matter of this application is a part of premisesNo. 13/1, Charles Way, Colombo 3, and is governed by the provisionsof the Rent Act, No. 7 of 1972 as amended from time to time. Thelandlord thereof entered into a written agreement, P1 with his tenant,the present petitioner, on 10.03.1975 to let the same at a monthlyrental of Rs. 201. P1 states that the portion "is being given out onlease" as the landlord did not at the moment require the same forhis occupation. It was "Leased" subject to certain terms. The monthlyrental was payable on or before the 25th of each and every month.It was open to either the landlord or the tenant (the petitioner) toterminate the tenancy on 3 months’ notice in writing provided, however,that neither party was permitted to do so till the expiration of a periodof 3 years. The agreement further provided that "it shall be valid for
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a period of 5 years" from the date of its execution (10.03.1975). Thepetitioner also agreed that in the event of the marriage of the landlord'sdaughter or son taking place during the continuance of the tenancy,the petitioner “shall after 3 years but before the expiry of 5 yearshand over the vacant possession of the premises to the landlord".The agreement was signed by the landlord and the petitioner in thepresence of two witnesses but was not notarially attested in termsof section 2 of the Prevention of Frauds Ordinance. The petitionerentered into and continued in occupation of the premises in pursuanceof this written agreement for the full period of 5 years ending on11.03.1980. She failed to vacate same at the expiration of this period.The respondent who is Authorised Officer for the purpose of the RentAct and as such is empowered under section 44 (5) to instituteprosecutions in respect of offences under the Act, charged the petitionerin the Fort Magistrate's Court with having contravened the provisionsof section 29 (3) of the Act in that she failed to vacate the premisesat the end of 5-year period specified in the agreement P1, an offencepunishable under section 42 (2) of the Act. After trial the learnedMagistrate found the petitioner guilty of the said charge and imposedon her a fine of Rs. 500, in default 6 months' imprisonment. Thepetitioner seeks to have this order revised in these proceedings.
Section 29 of the Rent Act stipulates that where an Agreementunder section 29 (2) is entered into, the tenant shall vacate thepremises at the end of the period specified in such agreement or asthe case may be, on the happening of the evept specified therein.It was the contention of learned counsel for the petitioner before usthat the obligation of a tenant to vacate the premisesunder section 29 (3) arises only where there is a valid agreementin law entererd into between the parties under section 29 (2).Section 29 (2), contemplates a letting of premises upon a writtenagreement or contract for a period specified therein, such period beingnot less than 5 years or until the happening of an event specified
CA
Hussan v. Authorised Officer, Colombo Rent Board
(Atukorale, J. P/CA)
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therein. He submitted that a letting of a premises for a period of 5years (as in the instant case) to be valid in law requires notarialattestation in terms of section 2 of the Prevention of Frauds Ordinance.P1 has not been so attested and is therefore of no force or effectin law. It is thus not an agreement entered into under section 29 (2)and there is no legal obligation on the petioner to vacate the premisesat the end of the 5-year period specified in P1. It was, therefore,contended that the petitioner had not acted in contravention of section29 (3) of the Act and the order must be set aside.
Section 29 (2) of the Rent Act makes it lawful with effect fromthe date of commencement of the Act, for a landlord and a personseeking to be a tenant of residential premises to enter into a writtenagreement for the purpose of letting the same for a period specifiedtherein, the period not being less than 5 years, or until the happeningof an event therein, where at the end of each such period or of thehappening of the event the landlord requires the premises for hisoccupation or for the occupation of a member of his family as aresidence. It was not in dispute before us that it was an agreementpurported to have been entered into between the parties under section29 (2) of the Act. It was also not in dispute that P1 was not notariallyattested in terms of section 2 of the Prevention of Frauds OrdinanceP1 being a letting of premises for a period of 5 years, the non-compliance with requirement of the latter section would render it nulland void in law – vide Pararajasekeram v. Vijayaratnani'K The questionis whether section 2 of this Ordinance applies to a written agreemententered into under section 29 (2) of the Rent Act. In my view it wouldapply. There is nothing in section 29 (2) which expressly or impliedly,excludes the operation of section 2 of the Ordinance. The openingwords of section 29 (2), namely, "notwithstanding anything in any otherprovisions of this Act" seem to lend support to this construction.Further, section 29 (2) seems to me to deal primarily with the contentsrather than the form of the written agreement. Whereas in the instantcase, the letting of the residential premises is for a period of not less
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than 5 years, I am of the opinion that the formalities prescribed bysection 2 of the Prevention of Frauds Ordinance must be observed,if the written agreement is to be of any force or effect in law.I, therefore, hold that P1 is invalid in law, and does not constitutean agreement within the meaning of section 29 (2) of the Rent Act.There is thus no legal obligation on the petitioner to vacate thepremises at the end of the period specified therein. She has, therefore,not contravened section 29 (3) of the Act. The conviction of thepetitioner is set aside and she is acquitted.
DE SILVA, J. – I agree.
Conviction set aside; petitioner acquitted.