036-NLR-NLR-V-62-K.-A.-MARTIN-APPUHAMY-Appellant-and-URBAN-COUNCIL-GAMPAHA-Respondent.pdf
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SAJNSONI, J.—Martin Appuhamy v. Urban Council, Gampaha
1960Present : Sansoni, J.
K. A. MARTIN APPUKAMY, Appellant, and URBAN COUNCIL,
GAMP AHA, Respondent
8. C. 101—C. P. Gampaha, 7656
Sent Sestrictior Act, No. 29 of 1948—Section 13 (1) (c)—“ Seasonable requirement ”for purposes of business—Requirement must not be remote—Must business bealready in existence ?
To establish that premises are reasonably required for the purpose of thelandlord’s business in terms of section 13 (1) (c) of the Rent Restriction Act*it is a necessary condition that the landlord’s requirement is not remote, in th®.sense that it must be a present requirement, even though not an immediate one.
The plaintiff, an Urban Council, sought to have its tenant, the defendant,ejected from the premises let on the ground that the premises were reasonablyrequired for the purposes of its business, namely, a proposed Free MedicalHall. There were, however, many things that needed to be done before theMedical Hall could become a reality. Financial provision had to bo made,staff had to be recruited, by-laws and regulations had to be passed, beforethe Council could entertain a reasonable prospect of seeing their hope fulfilled_
Held, that, assuming that the running of a Medical Hall fell within the term“ business ”, the plaintiff was-not entitled to a decree in its favour before thepreliminary procedural stages for the establishment of the Medical Hall wereattended to.
Obiter : It is open to a landlord to claim back his premises under section 13(1) (c) of the Rent Restriction Act for the purpose of establishing a businesswhich is not yet in actual existence at the time of the institution of the action.
A
jL APPEAL from a judgment of the Court of Requests, Gampaha.
H. W. Jayewardene, Q.C., with A. C. M. Uvais, for Defendant-Appellant.
H. V. Perera, Q.C., with G. T. Samerawichreme, for Plaintiff-Res-pondent.
Cur. adv. vult.
April 11, 1960. Sansoni, J.—
The plaintiff in this action, the Urban Council of Gampaha, has suedits tenant the defendant to have him ejected from premises No. 1, BazaarStreet, Gampaha, on the ground that these premises are reasonablyrequired for the purposes of its business within the meaning of section13 (1) of the Rent Restriction Act, No. 29 of 1948.
There is an alternative claim, made apparently on the basis that theAct does not apply to these premises, but such a claim seems to me to beunsustainable because this is not a case where a bare land was let to thedefendant. It is clear from the evidence of the Council’s witness thatwhen the agreement D1 was executed between the Council and the de-fendant there was already a building on the land which the defendanthad erected.
SAXSONI, J.—Martin Apjnihamy v. Urban Council, Gampaha
157
The defendant resisted the claim on the grounds that the premises^ere not reasonably required by the plaintiff, and that the intended"business which the Council proposed to carry on in the premises was not abusiness within the meaning of section 13. The business which theCouncil proposes to carry on, if and when it obtains possession of thepremises, is described as a Free Medical Hall. A motion in the followingterms was carried at a meeting of the Council held on 27th January 1956 :f* That it is proposed that a Free Medical Hall be opened at Gampahatown It will be noticed that the resolution makes no mention of thesepremises and was quite general in its terms.
The defendant was given permission under the agreement HI to occupy~ohe premises for 10 years commencing from 1st January 1949, and thatperiod expired on 31st December, 1958. He has been running a textilebusiness there with a stock in trade which is now worth about Rs. ISO,000.The business has been growing steadily and the nett profit has grown fromRs. 32,900 in 1953 to Rs. 74,270 in 1958. Both parties claim that althoughthey had searched for other premises they have not been able to find.any. The learned Commissioner on this aspect of the case held thatthere was not the slightest doubt that the defendant is carrying on avery big textile business in Gampaha and that his business would suffer•if he were to be ejected. He also held that the defendant had not madea genuine effort to obtain possession of certain other premises bearingassessment No. 16, Main Street, Gampaha, but it would seem from theevidence that no share of those premises belongs to the defendant. The•Commissioner appears to have attached great consideration to the in-terests of the community and thought that the community would lose.a free Ayurvedic Dispensary if this action were to be dismissed. Hegave the Council judgment as prayed for.
At the hearing of the appea1, the arguments ranged over a widefield. The plaintiff naturally had to satisfy the Court that it had powerunder the Urban Councils Ordinance No. 62 of 1939 to open a free MedicalHall, and several sections of the Ordinance were referred to, but I do notconsider it necessary to decide this question, nor the question whetherthe establishment of such a Medical Hall would constitute a businesswithin the meaning of section 13. I shall assume, without deciding,that the Council has the required power and that the running of a MedicalHall falls within the term “ business ” in section 13.
It would still be necessary, however, for the Council to show that thesepremises are reasonably required for the purposes of its business. Inmy opinion, it has failed to show that. I do not say so on the ground thatthe business is not in existence, for on this point I agree with the view-taken by Nagalingam, J. in Hameedu Lebbe v. Adam Saibo,x and-Gratiaen, J. in Andree v. De Fonseka2, in preference to that of Basnayake,–C. J. in Mamuhewa v. Ruwanpatirana3 and NanayalcJcara v. Pawlis,jSHlva 4. I think there is much to be said for Mr. Perera’s argument that
1 {1948) 50 N. If. R. 181.* {1950) 51 N. L. R. 213.
(1948) 50 N. L. R. 184.
{1959) 60 N. Jb. R. 490.
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Oooray v. Wijesuriya
the word “ the ” in the phrase “ the trade, business, profession, vocationor employment of the landlord ” does not point to a particular existing-business, but refers to business as a genus or type; in other words, the-phrase may be construed as “ for the landlord’s business purposes ” :
I also find that according to the Concise Oxford Dictionary the word“ the ” can be applied to a thing actually or potentially existent. Butit is, in my view, a necessary condition that the landlord’s requirementis not remote, in the sense that it must be a present requirment, eventhough not an immediate one. On applying this test, I do not thinkthat the Council has made out a case for the ejectment of the defendant.It is clear that no steps whatever have been taken to implement theresolution P9 which was passed on 27th January 1956. Obviously thereare many things that needed to be done before the free Medical Hall.could become a reality. Financial provision must be made, staff mustbe recruited, by-laws and regulations must be passed, before the members-of the Council can entertain a reasonable prospect of seeing their hopefulfilled. It is obvious that these steps cannot be completed overnight,especially where they have to be taken by a statutory body like anUrban Council. This building may well have to lie unoccupied for manymonths while all the preliminary procedural stages are gone through.I can see no reason why the defendant should be ejected before thesepreliminary matters have been attended to, assuming that they will atsome time be attended to. I
I therefore hold that the premises are not reasonably required for thepurposes of the Council's business, and the action must fail on this ground.I allow the appeal and dismiss the plaintiff’s action with costs in bothCourts.
Appeal allowed.