R v Brent London Borough Rent Officer ex parte Ganatra

Fair rent–Duty of rent officer on challenge by landlord as to status of applicant–Issue one for the decision of the county court under Rent Act 1968, section 105 (1)–On facts of present case, however, there was no effective challenge by the landlord–Rent officer entitled, accordingly, to decide that applicant was tenant of premises in question–Thereafter, the rent assessment committee have no power to review that decision, but are confined to the issue of what is a fair rent–If further evidence comes to light about an applicant’s status, the matter is still in almost all cases one which should be referred to the county court This was an application by Mr Ramesh Gordhandas Ganatra, of Hollywood, USA, for an order of mandamus directed to the rent officer for the London Borough of Brent requiring him to remove or cancel an entry made by him in the rent register for the borough relating to the applicant’s property, 7 Whitby Gardens, Kingsbury, London NW9, alternatively for an order of certiorari to remove into the High Court and quash the determination of the rent officer relating to the property. Mr R J Bartlett (instructed by Bernard Elliston, Sandler & Co, of Willesden Green) appeared for the applicant, and Mr H K Woolf (instructed by the Treasury Solicitor) represented the respondent. Giving a reserved judgment, PARK J said that in October 1974 a Mr Chandrakant Radia made an application for the registration of a fair rent for the dwelling-house owned by Mr Ganatra to the rent officer pursuant to section 44 of the Rent Act 1968. The rent officer followed the procedure laid down in schedule 6 to the Act, and in due course Mr Ganatra’s brother, also of course a Mr Ganatra, wrote a letter dated October 21 1974 in which he stated, inter alia, that Mr Chandrakant Radia was not the tenant. The tenant, the letter continued, was Mr Dhirendra P Radia, to whom the house was let furnished, and therefore Mr Chandrakant Radia had no locus standi. The letter then went on to suggest that alternatively, if satisfactory evidence was produced to prove Mr Chandrakant Radia to be the tenant, the economic rent should be in excess of £50 per week. The rent officer invited the parties to be present at a visit he proposed to make to the house on November 28. Neither Mr Ganatra, the owner, nor anyone on his behalf attended, but Mr Chandrakant Radia turned up. Another invitation to a meeting at the rent officer’s office was accepted only by Mr Chandrakant Radia. Having regard to all the information he had received, the rent officer decided that Mr Chandrakant Radia was the tenant and fixed a fair rent of £11 per week. That rent was duly registered along with all the other particulars required to be entered in the register kept pursuant to section 43. On receiving notice of that determination Mr Ganatra wrote saying, ‘I hereby give you notice that I am not satisfied with the rent as confirmed by you on December 12 1974, and would like to appeal. . . .’  The matter was then referred to the rent assessment committee. When the matter came before the committee, counsel for Mr Ganatra submitted as a preliminary point that the tribunal had no jurisdiction, as Mr Radia was only one of four joint tenants. The letter of October 21 1974 was stated to have been written in haste, and it was said that Mr Dhirendra P Radia had conducted the negotiations for a tenancy for four brothers Radia. Having heard evidence on this preliminary point, the committee came to the conclusion that they were not satisfied that there was any joint tenancy; that Mr Chandrakant Radia was not a tenant; and that in the circumstances the original application was invalid, so that they had no jurisdiction to hear the objection. On being told of that, the rent officer made an entry on the reverse side of the page of his register dealing with the application. In the panel for recording the committee’s determination of the rent he wrote, ‘No jurisdiction.’  Thereafter Mr Ganatra’s solicitors wrote to the rent officer requesting him to expunge the entry in the register relating to the dwelling-house, but the rent officer refused to do so, contending that in law no power had been conferred on him to expunge the entry, which must remain until the court had made an order quashing his determination and directing that the entry be removed or cancelled. It was now submitted on behalf of Mr Ganatra (1) that the rent assessment committee were compelled to inquire into the facts in order to decide whether or not they had jurisdiction to determine the matter which had been referred to them; (2) that, they having made that inquiry and having decided that there was no competent applicant, the whole proceedings were a nullity from the start; (3) that their decision was binding on the rent officer, who had to give effect to it; (4) that while the committee were not given any power to cause an entry to be made in the register, the rent officer, who was required by section 43 to prepare and keep the register up to date, had a duty imposed on him to keep it according to law, and (5) that that duty involved more than merely recording the words ‘No jurisdiction,’ and in fact included the removal or cancellation of the entry. The scope of a rent officer’s jurisdiction after an application had been made under section 44 had been considered by the Court of Appeal in R v Westminster (City) London Borough Council Rent Officer ex parte Rendall [1973] 1 QB 959. In that case the tenant of a flat in a six-floored house made an application under section 44. The rateable value of the whole house was £1,597, but it had not been apportioned between the six floors. Section 1 (1) (a) of the Act provided that a tenancy of such a dwelling-house was a protected tenancy unless it had on the appropriate day a rateable value exceeding £400. As there was no separate rateable value for the flat, the rent officer made his own assessment of it. He concluded that it was less than £400 and therefore was within his jurisdiction. On an application by the landlord for an order of certiorari, the Divisional Court held that the rent officer had no jurisdiction to apportion the rateable value of the whole house, as that could be done only by the county court, and quashed the registration. The Court of Appeal allowed an appeal from that decision. In the course of his judgment, with which Orr and Lawton LJJ agreed, Lord Denning MR said at pp 975-6 that section 6 (2) of the Act, which provided for apportionments, only applied where there was a ‘question arising.’  If a rent officer made his own estimate of the rateable value of the relevant part, and it was under £400, and there was no challenge to his jurisdiction, then there was no ‘question arising’ and nothing to refer to the county court. If on the other hand there was a doubt in his own mind about the apportionment, he should go to the county court; or if the landlord took objection, or there was a challenge to the jurisdiction, then, of course, a question arose and the matter had to go to the county court. Lord Denning went on at p 976: Except in those cases, it seems to me that the rent officer is entitled to say: ‘On the face of it, this part appears to me to be within the rateable limits. I am entitled to rely on section 1 (3), which says that the rateable value is deemed to be within the limits unless the contrary is shown. It is not shown here. So I have jurisdiction.’  In doing so the rent officer is acting within the principles of such cases as R v London etc Rent Tribunal ex parte Honig [1951] 1 KB 641, where it has been held that a tribunal has jurisdiction to decide on the facts necessary to found its own jurisdiction. 69 Lord Denning’s words applied with equal force to a case such as the present one. If a rent officer found his jurisdiction challenged on the ground that the applicant was not a tenant of the premises, a question fell to be determined under section 105 (1) of the Act by the county court, to which tribunal the disputed issue must be left for decision. Here Mr Ganatra, in his original objection, had not raised the issue of the rent officer’s jurisdiction otherwise than in general terms, and he had gone on to leave the question to be decided by the rent officer on ‘satisfactory evidence.’  Thereafter he twice failed to keep an appointment at which he could have put any case he had on this point to the rent officer. In such circumstances the rent officer was fully justified in coming to the conclusion, on the evidence before him, that the application was not one he should refuse to consider and that the applicant before him was the tenant of the premises in question. The next issue was the jurisdiction of the committee. When a landlord or tenant lodged an objection in writing to the rent officer’s determination and registration ‘the matter’ had to be referred to the rent assessment committee under para 5 of the 6th schedule. Thereafter the committee conducted an inquiry and, if requested to do so, heard representations from the landlord and tenant. At the conclusion the committee either confirmed the rent registered or determined a fair rent, which in due course was registered by the rent officer. Thus in the first instance the committee’s jurisdiction was confined to deciding the matter referred to them by the rent officer, who had no power to refer to them any matter other than his determination of the rent; he certainly could not refer to them any disputed question relating to his jurisdiction to determine the rent, because any such question, as already noted, was for the county court. In the present case, the rent officer properly determined the jurisdiction issue, and Mr Ganatra in effect abandoned the contention that the applicant was not the tenant, so that at the time of the reference there was no issue as to jurisdiction of either officer or committee. But, as Mr Woolf had contended, it would be possible, after a reference by the rent officer, for a situation to arise in which the rent officer’s jurisdiction to consider the application in the first place could be disputed, as for example by the discovery of a tenancy agreement showing that the applicant was not the tenant. In such a situation the parties might agree that there was no jurisdiction; but if the new evidence was disputed, the committee or rent officer should leave the question to be determined by the county court on an application under section 105. Here, of course, Mr Ganatra had not been in a position to offer new evidence. All he had done was to alter slightly the basis of his original objection to the jurisdiction of the rent officer. He had contended before the committee that Mr Dhirendra Radia, whom he had previously alleged was the tenant, was one of four joint tenants. It was doubtful if that constituted a sufficient basis for the rent assessment committee’s decision to inquire into a matter falling outside the rent officer’s reference. But even if it did, the committee’s decision to inquire into it was wrong. They should have followed the procedure outlined above. The consequences of their inquiry vividly illustrated the difficulties which could arise when the correct procedure was not followed. The rent officer had decided that Mr C Radia was the tenant. On the other hand the committee had decided that he was not, and that, contrary to Mr Ganatra’s contention, the four Radia brothers were not tenants either. In support of his submission on behalf of Mr Ganatra that the committee had to inquire into the facts, counsel had relied on R v Fulham, Hammersmith & Kensington Rent Tribunal ex parte Zerek [1951] 2 KB 1, a case where the tenant had referred the letting to a rent tribunal under the Landlord and Tenant (Rent Control) Act 1949. It had to be observed, however, that the 1949 Act, taken in conjunction with the principal Acts, contained no section comparable with section 105, so that a rent tribunal faced with the situation in Zerek’s case were compelled to decide for themselves whether they had jurisdiction to hear and determine the reference. By virtue of section 105, a rent assessment committee were not compelled to determine whether or not an applicant was competent, though no doubt they might do so if they wished, provided the matter casting doubt on his competence had come to light since the rent officer’s reference; but the circumstances in which they would be justified in ignoring section 105 and embarking on an inquiry into such a matter, or indeed any matter not referred to them by the rent officer, must be very rare. In the present case no reason had been put forward for the rent assessment committee’s decision to inquire into the jurisdiction question. The committee did not appear to have directed their minds to the question of refusing to proceed with the case and thereby allowing the parties to apply to the county court. One consequence of their decision was that not having the power to order discovery, as would the judge in the county court, they apparently never saw a copy of Mr Ganatra’s letter dated December 16 1974 in which by implication he accepted the rent officer’s decision that Chandrakant Radia was the tenant. For those reasons, the rent assessment committee’s decision themselves to decide the question of jurisdiction was a wrong decision. That being so, there was no reason why the rent officer should be required to do any more than he had done, namely enter in the appropriate place in the register the words, ‘No jurisdiction.’  The application should be refused. MAY J and LORD WIDGERY CJ agreed, and the application was dismissed with costs.