(C) ;
(d) any other alteration of the internal arrangements of a buildingwhich effects any change in the open space attached- to such)>uildingor its drainage, ventilation or sanitary—?v* •
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(1982) 2 S L R.
the addition of any building, room, outhouse or other structure.
the roofing of any space between one or more walls and
' buildings.
– (k) are immaterial."
• ' The' unchallenged finding of the trial Judge in answer to issues8(a)(b) – see supra, is that these alterations were done without thesanction of the local authority. It is in evidence that the alterations'wdtg done not only without prior approval of the local authority butafter the alterations were done the local authority refused to giveapproval to them. But what is worse is that the local authority hassanctioned or recommended prosecution in respect of these alterations.
It must be noted that the items listed in the section as alterationsare structural. In fact an alteration, in the ordinary meaning of thatword, is ‘structural’. In A.C.T. Constructions Ltd. v. Customs &Excise Commrs. (1) Lord Roskill observed that he agreed with theview of Neil, J who said an alteration with reference to a buildingis a structural alteration for, otherwise, repainting a building in adifferent colour would also be argued to be an alteration. In thiscase the Crown contended on behalf of the Excise Commissionersthat underpinning the foundation of an old building with the constructionof an additional foundation is not an alteration but maintenance.
The question is whether by one or more of the works done in.the premise* as mentioned, the defendant has damaged the premises.This must be, determined before the. next question arises forconsideration, if necessary, namely is such damage wilful? Theallegation of wanton destruction was not pressed. The issue No. (9)lias been trained on the assumption that the items of work referredto in issue No. (8) namely,
re-roofing in asbestos and,
building masonry pillars in and cementing the premises, wereimprovements, as they were alleged to be made with thesanction of the. local authority.
The issue has been framed in these terms without putting in' issuewhether the items indicated amount to improvements. The’affirmativeanswer of the Judge indicates that in his view the works mentionedwere not only improvements but also that they were necessary tostrengthen the building to ensure the safety of the building. TheJudge here has overlooked his negative answer to the issMe whetherthey were done with the sanction cf the local authority T:'y
Harakalhulla r. Hinniappuhumy (Rndriyo. J.)
in.his judgment refers to the building up _of the .open space and theclosure of the well. He, however, has,taken, the view that they hadbeen done during the tenancy, under Hadjiar and therefore did notneed consideration. These findings arc challenged and need examination.
In examining the findings and conclusions of the – trial Judgeconsideration must naturally be given to the evidence of the architect.The Judge's own notes of inspection and the evidence of the officerfrom the local authority who went to inspect the premises beforethe issue of the building permits as well as the-evidence of thecarpenter are not without importance. So is the evidence of the mason.
The architect had not seen the premises before the works referredto were done on it. but the carpenter, mason and the officer fromthe local authority had seen it.
The carpenter’s evidence has been summarised by the trial Judgeand he has expresed his views thereon. In his own words:-
“Jayasinghe (carpenter) says that the roof timber in the frontportion of No. 99 was decayed. The beam'in the front of No.99 had to be replaced otherwise the roof would have collapsed.It is on this beam that the weight of the roof rests. The beamhad been attacked by insects and was in imminent danger ofcollapsing. The rafters had also decayed and had to be replacedearlier. As such new timber.; was, used and a new roof wasconstructed in the front portion of No. 99. The allegation isthat this portion of the roofhad been raised above the levelof the,roofs of the other adjoining premises and therefore itlooked unsightly. The carpenter says that the roof was soraised because it would gjve a better appearance. In any event,it is a matter of common knowledge that it, was unnesessaryto maintain the same slope for an asbestos roof as is nesessaryif the roof is of country tiles. This roof is shown in photographsP5 and P6. Indeed, I don’t get the impression that'as a resultof'the replacement of the country tiled roof- by neW sheets ofasbestos the building had been rendered unsightly. One of thepoints made in regard to this roof is that there is no downgutter for the water to flow down,. However, the photographP6 shows that an aluminium ridge has been left at the edgeof the asbestos sheets to allow the water to drain down. Itwas also mentioned that because the roof is highpr than theroof of the adjoining premises water would seep down everytimeit rains between the two roofs. 1 don’t really think that thereis such a possibility.”' ’sl" ” '1 ' 1
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(m2) 2 S.L.R.
“In regard to premises No. 95, the carpenter says that theroof at the rear of No. 95 had decayed and the wooden pillarson which the roof was resting had also perished. The half wallon which the wooden pillars were resting had cracked and wascrumbling. As a result the wall plate had got lowered causingthe roof itself to be lowered. In view of this the wooden pillarswere replaced by five brick pillars and the roof raised to thelevel at which it should have been. He says that the masonrypillars were better and more secure than the wooden pillars.Thereafter the carpenter had replaced the existing beam ofthat portion of the roof and new rafters were used and anasbestos roof constructed.*’
The summary of the mason’s evidence in the words of the Judgeis as follows:-
“as for Mendis, the mason, he says that crabs had dug holeson the floor and as a result the pillars on which the roof wasresting had become insecure and the roof itself had got lowered.In premises No. 95 he had built 5 brick pillars flush againstthe boundary wall and on these pillars a new roof wasconstructed.”
“I did not get the impression that either the mason or thecarpenter had given false evidence. Indeed their evidence issubtantially consistent with the evidence of the defendanthimself in regard to the.condition of the premises. Consideringthe antiquity of this building I am not surprised that thepremises were barely habitable. Indeed the photographs producedby Mr. Classen are more eloquent than all the evidence ledin'the case.”
As regards the evidence of the officer from the local authority,the Judge says:-
“This witness was cross-examined at length but it seems to methat the only material point in his evidence is that at the timehe inspected the building it was in a dilapidated condition.”
The Judge’s comment on the architect’s evidence is this:-
“ A consideration of Mr. Classen’s expert evidence thereforeshows beyond any doubt that whatever work that had beendone by the defendant could have been done better and possiblymore skilfully but that no damage as such had been done tothe building and certainly it was not damages of the type that
Barakathulla i'. Hinniappuhamy (Rodrigo, J.)
can be expected to be caused by irresponsible school boys andsoldiers of an invading army. The work done by the defendantwas neither purposeless nor undisciplined nor had it been donecarelessly or wastefully.”
A firm impression is created' on a reading of this evidence thatthe roof in the front part of premises No. 99 and the roof of thearea where the wooden pillars supported the roof needed substantialrepairs and perhaps the floor in this area of the wooden pillarsneeded recementing. In fact the application to the local authorityfor a permit was restricted to re-roofing and re-cementing of. thewooden pillars area. So if the works done by the defendant wererestricted to repairs the defendant would have had no problem inthis action unless the repairs itself had damaged the building, throughlack of skill or otherwise. What had taken place is reconstruction ofthe roof and the ground support for the roof as a measure of repair.Not only has the defendant replaced the roof with a new structurewith new and different materials and ancillary to that replaced thewooden pillars with brick pillars situated at different points thus alsoaltering the internal arrangement of the area at least in respect ofspace. This is wholesale reconstruction and more so when consideratingwhat had been done in the open ground space abutting the road.On an examination of the evidence i am inclined to agree with theJudge that the work on the roof is neither unsightly nor defectiveas alleged though architecturally it could have been more attractive.Any way on an overall view the new roof and the recemented flooris an improvement on what existed before in a damaged condition.Even so though it is an improvement structurally it is still a repairin the legal sense. In Senanayake v. Urban Council, Gampaha (2),Sansoni, J., as he then was, cited with approval a dictum of Denning,L.J., in Morcam v. Campbell-Johnson (3), in the following words
“It seems to me that the test, so far as one can give any testin these matters is this: If the work which is done is theprovision of something new for the benefit of the occupier,that is, properly speaking an improvement; but if it is onlythe replacement of something already there, which has becomedilapidated or worn-out; then albeit- that it is a replacementby its modern equivalent-, it comes within the category ofrepairs and not improvements.’'
Sri iMttku l,aw Reports
lim) 2 S L R
' ;This'judgtnent and the dictum needs review in view of the recentdecision of the House of Lords in the case cited* above (A.C.TConstruction Ltd. V. Customs and Excise Commrs) in which it wa-said that the word “repair" is an ordinary word in common use-better left alone to be given its ordinary meaning. It ought to be aquestion of fact in each case or one of degree for a Tribunal of factconcerned to determine. The Hoiise of Lords did not disagree withthe observation of Brandon. J. in the Court of Appeal that "althought^e purpose of the work is to remedy an existing or to preventfuture defects in the building, it is nevertheless not within theexpression "maintenance" in the ordinary and natural meaning ofthe word. For example, if a building has a flat roof which leakscontinuously and the owner decides to replace the flat roof with apitched roof, so as to eliminate that defect then, although that workwas designed to eliminate a defect it would not in my view bemaintenance in the ordinary and natural meaning of that word".
The emphasis in the Senanayake case (2) is replacing something which• is already dilapidated or worn-out but if it is a replacement ofsomething that is not dilapidated or.worn-out then it is not a repair. but just an alteration which may or may not be an improvementSee for this distinction the case of A.C.T. Construction Ltd. vCustoms and Excise Commrs. (4). For e.g. the replacement of slatesby tiles. Denning, L.J. here was applying the section of the EnglishRent Act corresponding to s.6(I)(b) of the Rent Act No.29 of 194Xas amended. The point is if it is an improvement in this sense thenthe landlord can recover the cost of the improvement but not if itis a repair. So can the landlord recover the cost of the improvementbut not if it is a repair. So can the landlord recover the cost of astructural alteration not amounting to a repair. In this view of thematter the replacement -by the defendant of the roof and therecementing of the floor is undoubtedly a repair, but involvingalterations, and as I said this repair has not damaged the buildingA diffic,pl,t’y,,howp,yer, is created by the refusal of the local authorityIQ .grant ..the , certificate of conformity for this work. This difficultyv,applies in fact to all the works done on, the,premises. I shall return,.,tp,4his aspect of the matter later. ..
■■'"The new roof in so far as it-has replaced the old worn-out oneis n repair. But it has been extended; that is to say, it has been so*constructed as to cover an area that was not covered by the oldroof, namely, an alleyway which provided a passage earlier from theroad through the vacant ground space abutting the road to an open
CARarakaihulla v. Hinniappuhamy (Rodrigo. J I473
ground space at the back of the house. This passage was alleged bythe plaintiff to have been open to the sky. This was denied by thedefendant. It must have been open to the sky sometime in the historyof this building. For otherwise there would have been no ventilationor light into the area below this roof. But at the inspection by thetrial Judge the plaintiff himself had said to him that the alleway hadan aluminium roof earlier and the defendant said it had a zinc roof.In the notes of the Judge’s inspection this extended roof has beennoted as being an extension of the rest of the roof in corrugatedasbestos. This must be shutting out ventilation and light altogether.But if as the plaintiff states the passageway had earlier been coveredby a roof then this replacement by the extended roof-' in asbestoswould not in my view, be causing new damage to the building.
The building of masonry pillars also followed the need for replacementof the wooden pillars that had already decayed. So all this is comprisedin the work of repair to the roof. These pillars just the same'havebeen built flush on a new boundary wall according to the officerfrom the local authority. This creates a problem because the, certificateof conformity has been -refused for this area -particularly for thisreason. This as 1 said is part of the general difficulty that thedefendant faces in respect of the necessity to get the final approvalfrom the local authority.
There is then the open ground space abutting the main road infront. This ground space has beep built upon and enclosed into aroom. So is the partly open space immediately behind it. Thisparticular portion of., ground space has been open to the sky butcarried walls on. three.sides.. It also opened out to the ground spaceabutting the road. It would appear that this portion of ground spacebehind bounded by the walls on three sides had been built uponduring the time of Noor Hadjiar. It is contended that even the, openground space abutting the road was also built upon, during Hadjiar-stime. But the defendant has been specific in his evidence that .thealteration that he effected to the premises on application being madeto the .local authority in, 1968, that is, after he became tenant of theplaintiff, was the construction of an.extension in the open area infront. To quote, his own words
“I have summoned the ,Urban Council to produce necessarypapers. The alterations I effected to the premises was. theconstruction of an extension in the open area in front. Thebuilding had no extension up to the drain which is by the
Sri l.anka Law Reports
(IW2) 2 S L R.
road. I got the ground cemented. I also got some wooden
pillars erected and some galvanized sheets were fixed on the
roof. As a result a portion like a verandah came into existence.
In the areas which are cemented like the verandah there were
half walls earlier on three sides, namely on the side of the
road, and the two short walls. I got the wooden pillars erected
in line'with the existing walls. As a result the existing building
got enlarged. The new structure was about 100 ft. in length
and 50ft in width. The other boutique buildings down the road
were in line with the built-up drain. As a result of the new
construction these buildings also came in line with the other
boutique buildings.
Counsel for the defendant submitted that this was a confusion inthe mind of the defendant, for he submits that the evidence of thedefendant given later, on another day. is the true position. Thisevidence in his own words is thus :-
"The front portion of No.95 was vacant. I improved thatsection even before the plaintiff became the landlord. Thatwas done while the Hadjiar was alive. That may be in about1950. I have no document to prove that I obtained permissionto effect that improvement."
Counsel for the plaintiff denies that this'is a confusion. He submitsthat this latter evidence is in relation to the vacant portion behindthis open area that I referred to earlier. There is, however, theapplication of the defendant to the local authority for approval ofintended works – that is, re-roofing and re-cementing. To this applicationis attached a sketch. See P17. This sketch shows the front portionof the premises as a shop room. The width is 16ft. and this wouldbe the width of the entrance to the back portion of the open spacebounded by walls depicted in Plan P4 made by the architect. Whatis shown as a shop room in P17 cannot be the verandah like structurethat the defendant is speaking of because the defendant gives thewidth thereof as 30ft. This would rather indicate that the open spacehad not been built upon at the time of his application for re-cementingand re-roofing in 1968. It must be remembered that it is only inJanuary 1968 that the defendant became the plaintiffs tenant. Evenif it had been built upon in 1950 as Counsel for the defendantcontends still it will- not help the defendant in view of what I shallstate presently.
CAUtirtikolhulla i Ilinniappuhnmv (Rodrigo. J.)475
This alleged new verandah is certainly not a repair. It is,.a building•.of a new structure. See Jayaratne v. Singal(fxana^(5). This structureor the verandah has thus ma.de a complete .ultetation of the openground_space jn. front of the building. In- ,YisW;pf Denning L.J.'sdictum ^quoted earjier this provides something , new >. for the. benefitof the defendan.tv::lt is therefore an improvement in any event from.tbe.k standpoinbiOl the tenant. though it. could Jjc.itpr§judicw' to thelandlord. It had made the premises..more commcdiQHkii&Mfcihe sivhgis such, things^ cannot . be done without appfpyaJ^frdpj. tjie. localauthority,and without a,.certijficate o/^opformity. T^g bgjtificate ‘pfconformity in. respect., of all. .these works had been refused, Qnereason,.given is that the alteration in the open space^i^ not keep'the. required distance of 45ft from, the centre of the road.. The PublicInspector of, Health had recommended prosecution for theseunauthorised alternations. The officer from the local authority hadstated that the wall and the five pillars are a new construction aridthat it had not been approved by the local authority ami the certificateof conformity had been refused in respect of that as well. ^ . 1
Even in respect of the well the submission is marie that thpiighthe well was cjosed down on orders of the local authority such'anorder has been necessitated by the defendant constructing;, a waterseal lavatory close to the well. It is said that the damage .caused isthe construction of the water seal lavatory in such a manner as tobring about the need to close the well. It is, howevernot clear, asto when this had been done. However, in view of what I have , tosay hereafter it is not necessary to exanjine this contention, . A
While the roof as such is a useful repair and has riot otherwisedamaged the building, what is the position if the pillars and the Wallon which this roof rests has to be demolished for lack of a certificateof conformity. Likewise, if the new front verandah^ though ripimprovement for the benefit of the tenant, it ceases-'to ■ be animprovement of any benefit to the tenant if that too has-to; bedemolished. In areas of local authority where the construetion-andalterations to buildings is required by law to be:aubj<wtUo^tHeurdi$sand by-laws of the Housing and Town Improvement < l/dinahge-.li,isnot. open to the owner, of the house and far less to , the tenant ,to•undertake building operations even by way of rcjujir^an^ far lessby way of .improvements if they involve alterations wjiVt^ut/Suhctionfrom the local authority, for everybody every day qo unauthorisedalteration or construction continues, the tenant, or the owner .ispenalised and the alterations and construction^ remain subject to
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demolition orders. The officer from the local authority had said thateven up to the date on which he gave evidence there had been nosubmission by the tenant of amended plans. What a tenant can orcannot do to a premises has to be viewed at in the perspective ofthe relationship of landlord and tenant.. It is required of a tenant tolook after the premises as if it were his own. Therefore no carefultenant would undertake works on a premises which may be requiredto be demolished by the local authority.
There are authorities that had taken the view that replacing acadjan roof with a tiled roof is an alteration within the meaning ofthe Housing and Town Improvement Ordinance. See de Silva v.Abdul Karan (6). Similarly removal of a wall and rebuilding it asthe defendant'has done in this case has been held to be an alterationand not a repair • see Kasthuriratne v. Senanqyake (7). So thedefendant has done the works mentioned in contravention of buildingby-laws of the local authority.
Even so, a person who builds and/or alters a building in contraventionof building by-laws is given by the Ordinance an opportunity tosatisfy the Chairman of the Local Authority (Chairman includes theMayor of an Urban Council) or the Magistrate, if he is prosecuted,as the case may be, why no demolition order can properly be madein respect of the works in question. For instance he can show thatthough .the alteration or the new erection is in breach of a provisionof the Ordinance, yet it does not contravene an express statutory' prohibition. See Jalaldeen V Albert (8) per H.N.G. Fernando andalso Dingiri Banda v. Gomez (9) where .Alles, J. held that it is a.matter of discretion for the Magistrate which he must exercisejudicially to order a demolition. This discretion must, of course, beekerdsed to make a mandatory order for demolition – where thealteration or the works contravenes a statutory prohibition as againsta mere breach of a provision. So that on the evidence it is notinevitable that the tenant should remove the alterations or a newStructure without an opportunity being given to him to satisfy the
proper authority that the works need not be demolished.
Yet this matter has to be further examined from two stand points.The new structure on the vacant ground has no chance of – beinglegally permitted to stand in view of it not keeping the requiredstatutory distance from the centre of the road. The evidence of theofficer from the local authority and the documents marked in thatconnection is clear on that. Has the tenant then caused damage perse by erecting a structure in contravention of a statutory prohibition? .
CABarakaihulla v. Hinniappuhamy (Rodrigo. J.iATI
The tenant is entitled to the beneficial user of every part of thepremises. If erecting a structure on a vacant piece of ground appurtenantto the building enhances the enjoyment of the building by the tenantthere is normally no reason why he should not erect a structurethereon. This, of course, may be in breach of an express or impliedterm of the contract of tenancy in which event the landlord can suefor damages and restoration of the premises to its original conditionbut not for ejectment and cancellation of the tenancy. This view Ihold on the Roman Dutch Law authorities which I will cite in a moment.
Apart from a term in the contract of tenancy, erection of a structurecan cause damage in one of two ways. If it is allowed to stand(being erected without the consent of the landlord) not being incontravention of a building by-law it may damage the interests ofthe landlord. Perhaps the value of the premises may diminish if ithas otherwise not caused physical damage to the rest uf the building.If it is required to be demolished and is in fact demolished thebuilding and/or the ground may be incidentally physit ally damaged.Prejudice to the landlord’s interests by way of devaluation of theproperty is not the damage prescribed in the statute. It is damageto the premises, that is, to the building and the land that is penalised.In fact, the plaintiff has said in evidence in one moment that nodamage or loss has been caused to him by this structure. But thisappears to be a casual piece of evidence though in answer to Court.
One would think that no damage per se is caused by erecting anextension without approval and it remained to be seen whetherdamage will be caused by the eventual demolition and the processof restoration of the premises to its original condition. No authorityhas been cited nor have I been able to discover any for saying thaterecting a structure (unapproved) for the only reason that it is againsta statutory prohibition enures to the benefit of the landlord. Theanswer to this problem must be suspended till the Roman DutchLaw authorities are examined on this point. More so, since thequantum and quantity of damage required to be established forejectment of the tenant is not spelt out in the Act.
The principles of Roman Dutch Law bearing on this point arecontained in Voet 19.2.18 which reads
“Ita quoque eum non nisi ob notabiliorem in re conductaversationem malignant dejici, aequum eSt.”
This passage makes a full comment on the causes for the ejectment,of a tenant contained in paragraph 16. In paragraph 16 is found thethird eajse of ejectment of a tenant, which reads:-
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<1982) 2 S L R.
"Vel conductor in re conducta male versetur.”
He is here referring to urban tenements “Urbana praedia” and‘‘de domo vel fundo. ” He insists that the mala versatio referred tomust not be negligible or merely a breach of the convenants .whichstipujate the manner in which the property is to be used but mustbe serious and grave injury to the property. This kind of misconductis 'Comprised in the requirement of gross and malignant misconductstated in the passage quoted. Commenting on the brief passage inJustinian’s Code, Ch. 651 de locatio et conductio, 3., which, it issmd„,appears to be the source of almost everything written by theRpman Dutch Law commentators on this subject, Carpzoeveous addsa useful passage as follows that “inasmuch as the methods of abusewhich should be considered sufficient to justify ejectment are notfound to be enumerated in the law, it would appear that the wholequestion must be left to the determination of a prudent and carefulJudge as to whether the particular abuse is to be restrained byejectment or simply by damages or whether it should be, on theground of its triviality to. be. ignored altogether. Then anothercommentator Gerard Noodt ? 19.2. referring to town tenants quotesthat they must behave in the houses leased to them as befits a goodp«ter familias – in domo.conducta versari ut oportet bonum patremfamilias see for a fuller treatment of this subject, the case of Silvav! Obeysekera (10) per Bertram, C.J.
'Applying these principles to the facts of this case I do not thinkthat a careful Judge will consider the works done by the tenant onthe premises has caused grave and malignant injury to the premises,he can be reasonably expected to restore the premises in the event.fit his having to remove the front structure, as indeed he will bep&mpelled to, and to modify the interior works, which in the netrpsujt is. bound to be such as any damage that might be caused willbe negligible.
1 am, therefore 6f the view that no damage has been caused tothe premises of the kim) described in .the Roman Dutch Law authoritieswhich is the kind and degree pf. damage that that word in the statutecpn reasonably be interpreted to attract. In that view of the mattert|ie word “wilful” in the statutory provision which is not a term ofart but a common English word in ordinary use does not alter thedegree or character of damage required to be established for ejectmentof. a tenant under the statute.
CABarakuthuUa r. Hinniappiihamv (Rodrigo. J I479
A point of pleading has been taken by Qounsel foi the respondentthat evidence has been led of alterations. and -stun lures withoutspecific pleadings or issues on them and consequently the respondenthas been gravely prejudiced by the admission of such evidence. Itis not necessary to say anything more on this point than that therespondent through good luck that he has had with the law and theprudence of the trial Judge has successfully withstood this unexpected,storm complained of.
For these reasons we dismiss this appeal with costs.
E. DE SILVA, J. —I agree.
Appeal dismissed.