[1951] EACA 322

# $110$

## APPELLATE CIVIL

#### Before WINDHAM, J.

GANGA SINGH. Appellant (Original Tenant-Respondent)

MRS. MAGANLAL PREMJI, Respondent (Original Landlord-applicant)

## Civil Appeal No. 1000 of 1951

(Appeal from the decision of the Central Rent Control Board, Nairobi)

Landlord and Tenant—Eviction order by Executive Officer—Rent Control Board— No notice to quit proved by Landlord.

The Executive Officer acting by delegation from the Central Rent Control Board made an eviction order against a tenant on the ground of non-payment of rent which was admitted. The tenant appealed on the ground that no notice to quit had been given to him by the respondent-landlord.

The Executive Officer made no finding on the question whether notice to quit had been given or not and there was nothing in his record to show that the point was even raised.

The respondent sought to put in an affidavit made by the Executive Officer made one month after his decision and also contended that no appeal lay to the Supreme Court from the decision of an Executive Officer as Section 7 of the Increase of Rent (Restriction) Ordinance, 1949, makes provision for appeals from a determination of the Rent Control Board and not of an Administrative or Executive Officer.

Held $(12-11-51)$ .—(1) Where the burden lay on the landford to establish a vital issue, and The final of the same can be called a significant to establish a what issue appeared on the record or decision it would be improper to allow the record to be supplemented by an affidavit. There should be a recorded finding

(2) By section 7 when read with section 5 (3) of the Increase of Rent (Restrictions) Ordinance, 1949, the decision of any officer authorized by the Board must be treated as a decision of the Board for all the purposes of the Ordinance including those of section 7.

Retrial ordered

Case distinguished: Dalip Singh Karam v. Anderji Odhavji Nathwani (C. A. 966/49) 24 (1) K. L. R. $(1950)$ 49.

Trivedi for Appellant.

### D. N. Khanna for Respondent.

JUDGMENT.—The appellant-tenant appeals against an eviction order made against him by an Executive Officer acting by delegation from the Central Rent Control Board, on the ground of non-payment of five months' rent. In the proceedings before the Executive Officer the appellant admitted the non-payment of the rent. He appeals, however, on the ground that no notice to quit had been given to him by the respondent-landlord terminating his contractual tenancy, and that the eviction order was accordingly without jurisdiction contrary to law.

Now I think it cannot be seriously contested that if no notice to quit had been given by the respondent, and the appellant remained a contractual tenant, the eviction order was bad. There was no evidence that the non-payment of five months' rent was a breach of any term of the contract which operated automatically to terminate the contract and entitled the landlord to re-occupy the premises.

In the present case the Executive Officer made no finding on the question whether notice to quit had been given or not, and there is nothing in his record to show that the point was even raised. There is no recorded evidence on the point. The landlord-respondent, however, now seeks to put in an affidavit by the Executive Officer, made a month after his decision, to the effect that the question of a notice to quit was in fact raised at the hearing and that he, the Executive Officer, was shown a notice to quit which had been served on the tenant prior to the hearing of a previous action for eviction between the same parties. I cannot, however, take such an affidavit into consideration. It has been held by this Court, it is true, in *Dalip Singh Karam v. Anderji Odhavji Nathwani*, (C. A. 966/49) that the proceedings before a Rent Control Board need not be as formal as those before a Court, nor need all the evidence be recorded, provided that natural justice is done. But where, as here, the burden lay on the landlord to establish a vital issue, the giving of notice to quit, and where no mention of that issue appears in the Board's record or decision, nor anything to indicate that it was conceded by the tenant, I think it would be most improper, and a dangerous precedent, to allow the Board's record to be supplemented by an affidavit made by the Board or a member of it; nor is the decision cited above any authority for adopting such a course. There should be a recorded finding by the Board on all issues vital to its decision or, if a vital issue is not in dispute, a finding to that effect.

It is contended for the respondent, in the alternative, that no appeal lies to this Court at all from a decision of an Executive Officer to whom (as here) the Board has delegated its powers under section 5 (3) of the Increase of Rent (Restriction) Ordinance, 1949, the argument being based on the fact that section 7, which makes provision for appeals, speaks only of appeals from the determination of a "Rent Control Board" and not of an Administrative or Executive Officer. This narrow construction of section 7, however, is quite contrary to its clear intention, when read together with section 5 $(3)$ . Under section 5 $(3)$ the Board may delegate its powers to an Administrative Officer or other person authorized by the Board. The only reasonable interpretation of this section, when read with the Ordinance as a whole, is that the decision of any such officer or person must be treated as a decision of the Board for all purposes of the Ordinance, including those of section 7. An appeal under that section accordingly lies against his decision.

For the above reasons I allow this appeal. The fairest course to take in my view is to order, and I do order, a re-trial of this case by the same or any other Executive Officer, when the question of notice to quit will be determined and recorded. I will now hear Counsel on the question of costs.