Sri Lanka Law Reports
[1986) 1 SriL.R.
COURT OF APPEAL.
G. P. S. DE SILVA, J. AND MOONEMALLE. J.
A. 635/79 (F).
C. MOUNT LAVINIA 461/RE.
MAY 9 AND 10, 1985.
Rent and Ejectment – Business premises and residential premises – Exceptedpremises – Burden of proof – Sections 2 and 48 of the Rent Act – Regulations 1. 2.and 3 of the Schedule to the Rent Act.
The plaintiff sued the defendant for ejectment of his tenant the defendant frompremises let to him. The entire basis of the action was that the premises were businesspremises situated within the Town Council limits of Maharagama and exceptedpremises as the annual value was over rs. 1,000. The defendant was not resident in thepremises in suit but ran a private tulory in them.
The premises were business premises as a private tutory was being run there but for theplaintiff to succeed the burden was on him to prove that the premises were exceptedpremises within the meaning of the Rent Act. For this the plaintiff had to prove firstlythat the premises were assessed as business premises for the purpose of rates leviedby the local authority and secondly that the annual value was over Rs. 1000. Allbusiness premises of which the landlord is the Commissioner of National Housing or alocal authority are also excepted premises. The premises in suit though of the annualvalue of over Rs. 1.000 had been assessed as residential premises. Hence theplaintiff's suit fails.
Cases referred to :
Hussain v. Ratnayake (1967) 69 NLR 421.
Thompson v. Could & Co.  AC 409, 410.
Aloysius v. Pillaipody S. C. Appeal No. 4/82 M. C. (Civil) Jaffna 1 167/L – S.C.Minutes of 2nd December. 1982.
APPEAL from a judgment of the District Court of Mount Lavinia.
W. P. Gunatilleke for defendant-appellant.
D. R. P Goonetilleke for plaintiff-respondent.
Cur. adv. vult.
Wickremasinghe v. Atapattu
June 19. 1985.
P. S. DE SILVA. J.
The plaintiff brought this action on 29th December 1977 for theejectment of the defendant from premises No. 441, High Level Road,Navinna. and for recovery of damages. In his plaint he averred that hewas the owner of the premises in suit which had been let to thehusband of the defendant on a rental of Rs. 250 per month ; that thedefendant’s husband. Wickremasinghe, had' died on 23rd January1977 ; that on 13th May 1977 the defendant was noticed to quit thepremises on or before 31st May 1977 ; that the defendant,notwithstanding the notice to quit, remains in unlawful occupation ofthe premises from 23rd January 1977. It is of the utmost importanceto note that the entire basis of the action was that the premises were"business premises" situated within the limits of the Town Council ofMaharagama and that, the annual value being over Rs. 1,000, were"excepted premises" within the meaning of the Rent Act No. 7 of1 972 (hereinafter referred to as the Rent Act).
At the trial, the ownership .of the premises was admitted. It wasfurther admitted that the premises were situated within the limits ofthe Town Council of Maharagama and that it had been previously let toWickremasinghe, the husband of the defendant. The central issue inthe case was issue No. 1 – "Are the premises in suit governed by theRent Act No. 7 of -1 972 ?" The District Judge answered this issue inthe negative and held that the premises were "excepted premises"within the meaning of the Rent Act. He accordingly entered judgmentfor the plaintiff and the defendant’s appeal is now before us.
The only point argued by Mr. W. P. Gunatilleke. Counsel for thedefendant-appellant was that the finding that the premises' were"excepted premises" was clearly erroneous and that the action mustnecessarily fail. It was Counsel’s submission that the District Judgehad misconstrued the relevant provisions of the Rent Act.
Before I deal with the provisions of the Rent Act. let me refer to theevidence of the plaintiff, who was the principal witness in the case.The defendant did not give evidence. The plaintiff stated that he gavethe premises on rent'in 1971 to Wickremasinghe. the husband of thedefendant, and that Wickremasinghe. while he resided at 108, OldKottawa Road, Nugegoda, conducted a private tutory in the premisesin suit. As rightly submitted by Mr. D. R. P. Goonetilleke, Counsel for
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 1 SriL.R.
the plaintiff-respondent, the plaintiffs evidence on this point isstrongly corroborated by two documents, viz. P3 and D1. P3 is acertified copy of the Certificate of Registration dated 2nd August1972 under the Business Names Ordinance. P3 establishes thefollowing facts
that Wickremasinghe commenced on 10.4.72 a business bythe name of ■ aado) roOs'
that the principal place of the business was the premises insuit ;
that the general nature of the business was conducting a privatetutory ;
that the usual residence of Wickremasinghe was 108, OldKottawa Road, Nugegoda.
The other document D1 was the statement required to be furnishedby the landlord (plaintiff) under section 37 of the Rent Act. It gives theaddress of the tenant (Wickremasinghe) as 108, Old Kottawa Road.Mirihana, the date of commencement of the tenancy as 1st August
In column 6 of D1 where the landlord is required to set out thepurpose for which the premises is occupied it is stated, "given for thepurpose of residence. It is now being used for a businesspurpose – conducting a tutory". D1 is dated 8.2.75, long before thedate of the notice to quit. Thus the District Judge’s finding thatWickremasinghe was carrying on a private tutory in the premises insuit, while he resided at 108, Old Kottawa Road, is clearly supportedby the oral and documentary evidence.
The expressions "business premises" and "residental premises" aredefined in section 48 of the Rent Act. According to the definition"residential premises" means "any premises for the time beingoccupied wholly or mainly for the purposes of residence" while"business premises" means "any premises other than residential
premises". These two definitions are identical with the
definitions contained in the Rent Restriction Act’(Chap. 247) whichhas now been repealed. It is well settled that if persons actually residein the premises or in the major portion of the premises, such premisesare "residential premises" within the meaning of the Act – vide thedecision of the Divisional Bench in Hussain v. Ratnayake (1). In theinstant case, there is no such evidence. On the contrary, the evidenceis that the premises were used to conduct a private tutory. I
Wickremasinghe v. Atapattu (G. P. S. De Silva. J.)
accordingly hold that the premises in suit are "business premises"within the meaning of the definition contained in section 48 of theRent Act.
But Mr. W. P. Gunatilleke contends that the plaintiff cannot succeedby merely establishing that the premises are "business premises"within the meaning of the Rent Act. He must further prove that thepremises are "excepted premises" within the meaning of the Rent Act.Relying strongly on Regulation No. 3 in the Schedule to the Rent Act,Counsel submitted that there must be proof, firstly, that the premiseswere assessed as business premises for the purpose of fates levied bythe local authority and, secondly, that the annual value of premises soassessed exceeded Rs. 1,000. Counsel maintains that the plaintiff hasfailed to prove these vital matters and his action must therefore fail.
As stated earlier, the plaintiff has come into-Court on the basis thatthe premises in suit are "excepted premises" within the meaning of theRent Act. Hence, on this crucial issue, the burden of proof clearly rests
on the plaintiff.’'
Let me now consider the statutory provisions which are relevant tothe question of "excepted premises". Section 2 deals with theoperation of the Rent Act. The material part reads thus
"2 (T) This Act shall be in operation –
in every area in which the Rent Restriction Act (Chap.274) was, by virtue of the provisions of section 2 of thatAct and by virtue of any notification made under thatsection, in force immediately prior to the date ofcommencement of this Act
2 (4) So long as this Act is in operation in any area, theprovisions of this Act shall apply to all premises in that area, notbeing excepted premises ; and the word "premises" wherever itoccurs in this Act shall, unless the context otherwise requires,be construed as premises to which this Act applies, and theexpressions "residential premises" and "business premises"shall be construed accordingly.
2 (5) The regulations in the Schedule to this Act shall have effectfor the purpose of determining the premises which shall beexcepted premises for the purposes of this Act"
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The regulations- in the Schedule which set out the "exceptedpremises" read thus
Any premises (other than residential premises) of which thelandlord is a local authority shall be excepted premises for thepurpose of this Act.
Any premises of which the landlord is the Commissioner ofNational Housing shall be excepted premises for the purpose ofthis Act.
Any business premises (other than premises referred to inregulation 1 or regulation 2) situated in any area specified in
■ column I hereunder shall be excepted premises for the purposesof this Act if the annual value thereof as specified in theassessment made as business premises for the purposes of anyrates levied by any local authority under any written law and inforce on the first day of January 1968, or. where theassessment of the annual value thereof as business premises ismade for the first time after the first day of January. 1968. theannual value as specified in such first assessment, exceeds theamount specified in the corresponding entry in column II ;
– Area'Annual value
Municipality of Colombo6.000
Municipality of Kandy, Galle or any other Municipality4.000
■Town within the meaning of the Urban Councils Ordinance2.000
Town within the meaning of the Town Councils Ordinance1.000
Any business premises situated in any area in which theAct is in operation (not being a Municipality or a Town within themeaning of the Urban Councils Ordinance or the Town CouncilsOrdinance) shall be excepted premises for the purposes of thisAct –
■.(-a) if on the date of commencement of this Act such premiseswere let at a rent exceeding Rs. 1,500 per annum ; or
(fc>) where such premises were not let on that date, if they arefirst let thereafter at a rent exceeding Rs. 1,500 perannum ;
Wickremasinghe v. Atapattu (G. P. S. De Silva, J.)
Provided, however, that-the board may on the application of thetenant, declare that any premises referred to in the precedingprovisions of this regulation are not excepted premises, if theboard is satisfied that the fair rental value of the premises is notmore than Rs. 1,500 per annum". (The emphasis is mine).
On a consideration of the provisions of section 2 read with theregulations in the Schedule it is clear that all residential premises otherthan residential premises of which the Commissioner of NationalHousing is the landlord are governed by the provisions of the Rent Act.This was a significant departure from the position that obtained underthe previous Rent Restriction Act No. 29 of 1948 (Chap. 274).Moreover, it is not all "business premises" which are exceptedpremises within the meaning of the Rent Act. All business premises ofwhich the landlord is the Commissioner of National Housing or o.fwhich the landlord is a local authority are "excepted premises". Theonly other "business premises" which are "excepted premises" for thepurpose of the Rent Act are those premises set out in regulations 3and 4. Admittedly the premises in suit are within the limits of the TownCouncil of Maharagama which is an area in which the Rent Act is inoperation – vide the gazette notification D3. Therefore the onlyregulation which has to be considered for the purposes of the instantcase is regulation No. 3. Indeed Counsel for the plaintiff-respondentcontended that the premises in suit fell within the provisions ofregulation No. 3 and were therefore excepted premises.
At the trial the defendant marked in evidence certified extracts ofthe assessment register for the years 1968 to 1973 – vide D2 andD2A. These documents show (a) that the annual value for the years1968 to 1973 was always above Rs. 1,000 ; (b) that the descriptionof the premises for the years 1968 and 1969 was "tiled cottage andland" and for the years 1 970 to 1973 "tiled house and land". Havingregard to the terms of the description of the premises given in D2 andD2A it seems to me that the premises were assessed as "residentialpremises" and not as "business premises". If it had been assessed as"business premises" an expression such as "private tutory" would havebeen used. The words "house" and "cottage" are clearly indicative ofan assessment on the basis of "residential premises". Now it is ofimportance to note that regulation 3 speaks of "business premises
where the annual valueas specified in the assessment made as
business premises for the purposes of any rates levied by any local
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authority under any written law" exceeds Rs. 1,000. It is not
without significance that the words emphasized above by me were notfound in regulation No. 2 in the Schedule to the Rent Restriction ActNo. 29 of 1948. The expression "annual value" itself is defined insection 48 :
"Annual value of any premises means the annual value of suchpremises assessed as residential or business premises, as the casemay be. for the purposes of any rates levied by any local authorityunder any Written law and as specified in the assessment undersuch written law" (The emphasis is mine).
Once again it is to be noted that there was no definition of annual valuein the Rent Restriction Act No. 29 of 1948. Thus it seems to me thatwhere the annual value of any premises are assessed, suchassessment must necessarily be based on the character of thepremises, namely whether the premises are residential or businesspremises. In the present case, as stated earlier, D2 and D2A showthat the annual value, although it exceeds Rs. 1,000, was notassessed on the basis that the premises were "business premises". Inmy view, regulation 3 expressly requires that the annual valueexceeding Rs. 1,000 must relate to premises assessed as businesspremises. I accordingly hold that the premises in suit do not fall within• the provisions of regulation 3 in the Schedule to the Rent Act and aretherefore not "excepted premises" within the meaning of the Rent Act.
Counsel for the plaintiff-respondent submitted that what iscontemplated in regulation 3 is merely the use of the premises asbusiness premsies and nothing more. But this would be to overlookthe words "annual value thereof as specified in the assessment madeas business premises" and to introduce new words – a mode ofconstruction which, as a general rule, is not permissible. In theoft-quoted words of Lord Mersey in Thompson v. Gould & Co.(2). "Itis a wrong thing to read into an Act of Parliament words which are notthere, and, in the absence of clear necessity, it is a wrong thing to doso"; Maxwell in his Interpretation of Statutes says "A constructionwhich will leave without effect any part of the language of a statute willnormally be rejected". (Eleventh Edn. page 15). I am thus unable toaccept the ' interpretation contended for on behalf of theplaintiff-respondent as it does violence to the language used by thedraftsman.
CAWickremasingha v.Atapattu (G. P. S. De Silva. J.)23
The view I have taken above finds some support in the dicta ofWimalaratne, J. in Aloysius v. Pillaipody (3) wherein the learned Judgeobserved :
the annual value entered in the register is necessarily
linked with the description of the property. The description of theproperty as entered in the register thus affords prima facie evidenceas to whether the property has been assessed as residential
premises or as business premises Not only the annual value
and the rates, but also the description of the property as entered inthe assessment register afford proof of the matters represented
therein. The entries also afford material for determining
whether premises are or are not ’excepted premises".
For these reasons, the appeal is allowed, the judgment and decreeof the District Court are set aside and the plaintiff's action is dismissedwith costs fixed at Rs. 315. The defendant is entitled to costs ofappeal fixed at Rs. 210.
MQONEMALLE, J. – I agree.
Plaintiff's action dismissed.
1-WICKRAMASINGHE v. ATAPATTU