003-NLR-NLR-V-69-M.-S.-M.-MADANI-Petitioner-and-S.-M.-P.-JOSEPH-and-9-others-Respondents.pdf
H. N. G. FERNANDO S.P.J.—Madani v. Joseph
21
I960 Present . H. N. G. Fernando, S.P.J., T. S. Fernando, J.p andSri Skanda Rajah, J.M.S. M. MADANI, Petitioner, and S. M. P. JOSEPH and 9 others.
Respondents
S. C. 456/64— Application for a Mandate in the nature of a Writ ofCertiorari tinder Section 42 of the Courts Ordinance.
Landlord and tenant—Rent Control Board—Jurisdiction to order amenities ]or benefito] tenant—Constitutional validity of appointment of Board—Rent RestrictionAct (Cap. 274), s. 11.
The jurisdiction of a Rent Control Board to order a landlord to provideamenities for the benefit of his tenant in torms of Section 11 of the RentRestriction Act cannot be questioned on the ground that the power conferredby the Section is a judicial power and cannot lawfully be exercised except bysome authority appointed by the Judicial Service Commission. Section 11empowers the Board to make orders with regard to specified amenitiesirrespective of the question whether such matters are governed by the tenant’spre-existing legal rights or by the terms of his contract of tenancy.
A PPLICATION for a writ of certiorar i.
H. Mohideen, with K. Jayasekera and M. K. N. Nalliah, for thePetitioner.
S. W. B. Wadugodapitiya, for the 1st Respondent.
L. de Silva, Crown Counsel, with C. Sivarasa, Crown Counsel, for the8th and 9th Respondents.
Cur. adv. vult.
October 2, 1966. H. N. G. Fernando, S.P.J.—
Section 11 of the Rent Restriction Act (Cap. 274) empowers a RentControl Board to order a landlord to provide specified amenities for thebenefit of his tenant. Such an order may be made if the Board issatisfied that the amenities had been previously provided, but hadbeen discontinued or withheld without reasonable cause. A Boardmay also order a landlord to effect repairs or re-decoration.
In the present case, premises had been let to the Respondent tenantabout 1943. From that time (according to the tenant) a roadwayrunning by the side of the premises had been used as means of accessfor the entry of vehicles into the premises. Alleging that this roadwayhad been closed by means of a gate which prevented the tenant fromusing the roadway, the tenant applied to the Board for relief under
S3
H. N. Q. FERNANDO, S.P.J.—Madani v. Joseph
Section 11. The Board after inquiry made order directing the landlordto restore the amenity of the use of the roadway ; on appeal to the Boardof Review constituted under the Rent Restriction Act this order wasaffirmed. The landlord thereupon applied to this Court for a Writ ofCertiorari to quash the orders of both Boards. This application wedismissed after hearing the landlord’s counsel. I now state our reasons.
The principal matter argued was that the power conferred by Section 11of the Act is a judicial power and cannot lawfully be exercised exceptby some authority appointed by the Judicial Service Commission.
The primary objects of the Act are—(a) to limit the amount of therent of certain premises, and (b) to limit the rights of a landlord to ejectthe tenant of controlled premises. Again the principal powers conferredon a Rent Control Board are to grant authority in its discretion forthe institution of actions for ejectment, and in certain circumstancesto fix the authorised rent of premises. The powers conferred on theBoard by Section 11 are additional to these.
Matters such as repairs, re-decoration and the provision of amenitiesmay or may not be the subject of a contract of tenancy, and Section 11empowers the Board to make orders with regard to such matters irres-pective of the question whether such matters are governed by contractsof tenancy. The Board in the present case has determined a questionof fact, namely that the amenity had previously been provided to thetenant. But the decision to restore the amenity did not depend on thetenant’s pre-existing legal rights or upon the terms of his contract oftenancy. The decision is thus one of policy.
Prior to the enactment of the Rent Restriction Act, matters dealtwith under Section 11 would not ordinarily have been the subject ofcivil actions. If a landlord discontinued amenities previously available toa tenant, or if he unreasonably refused to effect repairs or re-decoration,a tenant would not have been able to compel a landlord to restore theamenities unless his contract specially protected him against such default.Under normal conditions, however, a landlord would not ordinarilycommit such defaults involving the natural consequences that the tenantswould on that score terminate their tenancies.
Section 11 is clearly designed to provide for contingencies connectedwith the conditions which rendered it necessary for the Act to restrictthe right of ejectment. But for Section 11, that restriction could beevaded and tenants could be forced to vacate premises, through deli-berate action or inaction on the part of landlords resulting in conditionswhich render premises unfit or unsuitable for habitation. Section 11is thus only ancillary to a legislative plan having the primary objectswhich I have earlier specified. The orders which may be made underSection 11 are not different in substance from those which may be madeby a local authority for the provision of such facilities and amenities
ABEYESUNDERE, JDon Charles v. The Queen
23
aa water service, drainage, or light and air. Orders of the latter naturehave not been regarded in our law as being made in the exercise of judicialpower, nor should the new but similar orders under Section 11 be soregarded.
I hold that the Boards were validly authorised by law to make theorders challenged in this case. The other grounds urged in this appli-cation are quite without substance.
T.S. Fernando, J.—I agree.
Sbi Skanda Rajah J.—I agree.
Application dismissed■