BETWEEN: p class=MsoNormal alal align=center style="text-align: center; margin-top: 0; margin-bottom: 0"> HAMID KHAN and RAHMAT KHAN
(both sons of Ahmed Khan)
Plaintiffs
AND:
SIMOSAD
Defendant
Mr. V. Maharaj for the Plaintiffs
Mr. M. V. Bhai for the Defendant
JUDGMENT
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This is a section 169 application under Part XXIV of the Land Transfer Act Cap 131 (the 'Act') for immediate vacant possession of a 'flat' on all that piece of land comprised and described in Crown Land being C.L.66296 Lot 1 Samabula Rifle Range Part of C.T. 6582 (the
"property") of which the plaintiffs are the registered lessees.
The first Plaintiff has sworn an affidavit in support of his application on his own behalf and on behalf of his brother the second
Plaintiff.
The first Plaintiff states that he is the owner of one of the 'flats' on the property which is presently occupied by the defendant as a tenant on a monthly basis paying $280.00 per month as rent. The
defendant has been served with a notice to quit but he has failed to vacate the flat. He deposes that the Fair Rents Act Cap. 269 does not apply in respect of the property. Furthermore the defendant is in illegal occupation as no consent of the Director
of Lands was obtained before the defendant went to occupy it.
In his Affidavit in Reply the defendant says that the notice to quit given to him is "irregular and void" and that it does not comply with the provisions of the Fair Rents Act particularly sections 19, 21, 22 and 23. He further states that the Plaintiff has "failed to observe the terms and conditions
of the lease when tenancy was granted" to him. Furthermore, he says that the present proceedings cannot be entertained as the
Plaintiff is in breach of section 13 of the State Lands Act Cap. 132 as no consent of the Director of Lands was obtained before letting
the flat out on rent.
In reply to the dent's said assertion about Fair Rent, the Plaintiff states that the defendant is in arrears ears of rent and that
the Plaintiff had found an alternative accommodation for him but he refuses to move. The Plaintiff has attached to his affidavit
the Director of Land's consent to evict the defendant from the property.
Consideration of the issues
The lease is a Crown Protected Land the necessary consent of the Director of Lands to institute legal proceedings against tnst the
Defendant for vacant possession has been obtained.
The Plaintiffs have, as registered lessees, brought these proceedings against the defendant under s.169 of the Act which they are
entitled to do. A valid notice to quit has been given and it is not denied that the rent is owing. The tenant is an illegal tenant
as section 13 (which deals with consent of Director of Lands) of the State Lands Act has not been complied with by either the landlord
or the tenant; but consent has been obtained to evict the defendant. The Plaintiff's claim for possession is based on the independent
and untainted ground of their being registered lessees and hence they do not have to have recourse to the illegal tenancy to establish
their case.
The defendant argues on the assumption that the Fair Rent Act applies to the propbut without any evidence ince in support of his assertion.
The Plaintiffs say that it does not. In fact there is no evidence of any valuation to show that the property or the flat is valued
at so much for the Fair Rents Act to apply. Here the Court is merely concerned with a small flat owned by the first Plaintiff without any indication of its value.
The decision in this case rests on (a effect of lack of consent of the Director of Lands when then the flat was let out and (b) whether
the provisions of the Fair Rents Act apply to this case.
p class=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> Application of Fair Rents Act
The defendant in his affidavit talks about a 'lease' bere is no evidence of any lease. It is a straightout tenancenancy agreement.
On the facts before me I find that the Fair Rents Act Cap ("FRA") does not apply here. To be able tble to come under it, there has to be an application for determination of fair rent under s.4 of
FRA which provides, inter alia:
p class=MsoNormal stal style="margin-left: 36.0pt; margin-top: 0; margin-bottom: 0"> "4 - (1) The lessor or lessee of any dwellouse to which this Act appl applies may apply to the Fair Rents Officer for the area
in which the dwelling-house is situated to have the fair rent of the dwelling-house determined."
In thse neither party has made an application. It is only upon receipt of an application that a at a valuer is appointed to value
the property. The valuer values the property and then determines the fair rent in accordance with the provisions of section 5 of
FRA.
It is no use defendant saying that FRA applies without having taken steps to have fair rent determined when he had ample time to do
so.
If FRA applied in this case, then the power of the Court to Order possession of a dwelling to which the FRA applies is restricted.
A judgment for possession can only be made in certain cases which are set out therein.
I might mention that section 23 says that thewill apply to Crown Land and dwelling houses on Crown Land,Land, but except for section
11, it must mean that the FRA applies to valid leases or tenancies under the State Lands Act. Therefore s.19 of FRA must apply only
to valid leases or tenancies under the Crown Lands Act.
In GUTNIEL SHARAN f/n Bhawani Samuel Sharan and DAL RAM f/n Jai Ram (Action No. 272/80 Western Division) DYKE J was faced with a similar situation as here where the respondent raised the point that he was protected in accordance with section
19(1) of the FRA. There in the course of his judgment DYKE J said:
Section 7 of the Fair Rents Act can only mean that the determination of fair rent is fixed for the next twelve months, not that the tenant is given security of tenure
for twelve months regardless of whether he has a valid lease or not."
p class=MsoNormaNormal style="margin-top: 0; margin-bottom: 0"> Effect of Absence of consent
The property is a protected lend therefore the consent of the Director of Lands is required under s.13 of the State LandsLands Act
Cap. 132 which, inter alia, provides as follows:
"13. - (1) Whenever in any lease under this Act there has been inserted the following clause:-
"This lease is a protected lease under the pions of the Crown Lands Acts Act."
(hereinafter called a pred lease) it shall not be lawful for the lessee thereof to f to alienate or deal with the land comprised in
the lease of any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever, nor to mortgage, charge or
pledge the same, without the written consent of the Director of Lands, first had and obtained, nor, except at the suit or with the
written consent of the Director of Lands, shall any such lease be dealt with by any court of law or under the process of any court
of law, nor, without such consent as foresaid, shall the Registrar of Titles register any caveat affecting such lease.
ass=MsoN=MsoNormal style="margin-left: 36.0pt; margin-top: 0; margin-bottom: 0"> Any sale, transfer, sublease, assignment, mortgage or other alienation or dealing affected without such consent shall be null and
void."
There is no evidence of any consent having been obtained either by laintiff or the defendant. This 'dealing' therefore is null null
and void and the defendant's occupation of the flat is therefore unlawful, null and void. The defendant cannot in the circumstances
be regarded as a lawful tenant of the Plaintiffs (vide CHALMERS v PARDOE (1963) 3 A.E.R. 552; JAI KISSUN SINGH v SUMINTRA (1970) 16 F.L.R. 165 F.C.A; PHALAD v SUKH RAJ (Civ. App. 43/78 F.C.A.)
The defendant submits that because there was no consent of the Director of Lands he cabe evicted. I hold that thet the defendant is
in unlawful possession of the 'flat' on the property and he cannot justify remaining in possession. The defendant's assertion will not stand as in MISTRY AMAR SINGH v KULUBYA 1963 3 AER p.499, a Privy Council case, it was held that a registered owner of land was entitled to recover possession because his
right to possession did not depend on the illegal agreements in that case but rested in his registered ownership and as the person
in possession could not rely on the agreements because of their illegality he could not justify his remaining in possession. That
case "concerned an illegal lease of 'Mailo' land by an African to a non-African which was prohibited by a Uganda Statute except with
the written consent of the Governor. No consent was obtained to the lease. After the defendant had been in possession for several
years the plaintiff gave notice to quit and ultimately sued him for recovery of the lands. He succeeded." (quoting from RAM KALI below).
Also in RAM KALI f/n Sita Ram and SATEN f/n Maharaj (Action No. 93/77) DE J. expressed a sd a similar view:-
"It is not necessary to determine whether there was an ad sale as the defendant cont contends or a tenancy as the plaintiff alleges.
Either transaction was illegal without the consent of the Director of Lands. .... While the plaintiff did disclose the illegal tenancy
her claim for possession is based on the independent and untainted grounds of her registered ownership and she does not have to have recourse to the illegal tenancy to establish her case". (underlining mine)
Conclusspan>
Under section 169 of the Act the Plaintiffs fall into the category of persons who are entitled to institute ejectment proceedings
under the said section.
As required under section 172 of the Act the onus is on the defendant to "show cause why huses to give possession of n of such land" and "if he proves to the satisfaction of the judge a right to the possession of the land, the judge shall dismiss the summons with
costs against the proprietor, mortgagee or lessee or he may make any order and impose any terms he may think fit."
It is not in dispute that the defendant is in occupation of the flat and th has been served with NoticNotice to Quit and despite that
he continues in occupation. His tenancy was determined by such notice to quit. As stated above the Fair Rents Act does not apply in this case. On the authorities referred to hereabove despite the lack of consent the Plaintiffs are entitled to
evict the defendant. In KULUBYA (supra) it was held:
I therefore find that the defendant has not shown any right to rema possession or that there are any triable issues, and theretherefore
I grant the order for possession sought by the Plaintiffs.
I ordet the defendant deliver immediate vacant possession of the said flat to the Plaintiffs but but execution to be stayed for 14
days from the date of this judgment with costs against the defendant to be taxed if not agreed.
D. P
Judge
At Suva
23 December 1996
Hbc0480j.96s
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