019-SLLR-SLLR-2003-V-2-KITHSIRI-v.-GAMALATH.pdf
CA
Kithsiri v Gamlath (Nanayakkara, J)
135
KITHSIRI
v
GAMALATH
COURT OF APPEALUDALAGAMA, J. ANDNANAYAKKARA, J.
A. NO. 896/92 (F)
C. MATUGAMA 183/REJUNE 14, AND
JULY 17 AND 24, 2002
Rent Act, No. 7 of 1972 – Regulations 3 and 4 – Excepted premises – TownCouncil ceased to exist – District Development Council – Pradeshiya Sabha -What is the local authority within which the premises were situated?Pradeshiya Sabha Act, section 221 – Were the requirements relating to TownCouncils in the schedule to the Rent Act kept alive?
The plaintiff respondent instituted action seeking ejectment on the ground ofarrears of rent and contended that the premises were excepted premises. Thedefendant appellant whilst denying arrears of rent contended that the premis-es were governed by the provisions of the Rent Act. It was contended by thedefendant-appellant that the Town Council within which the local limits of thepremises were situated had been replaced by the District DevelopmentCouncil (D.D.C.) of Kalutara at the time action was instituted. As the D.D.C.has not been recognised as one of the local authorities for the purpose ofRegulation 3, Regulation 4 would apply.
The trial judge held in favour of the plaintiff-respondent holding that the premis-es were excepted premises.
Held:
It is clear that for any business premises to be brought within the mean-ing of excepted premises – Regulation 3 – it has not only to be situat-ed in one of the areas stipulated but also it should have an annual valueexceeding the amount set out.
It is clear that the provisions of section 221 of the Pradeshiya Sabha Acthave kept the requirements relating to Town Councils in the scheduleto the Rent Act alive, in spite of the fact that the Town Council hasceased to exist at the time of the institution of the action.
APPEAL from the District Court of Moratuwa.
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Case referred to:
1. Owen be Silva v K.M. N. Rani – CA 259/94
P.A.D. Samarasekera, P.C., with T.B. Dillimuni for defendant-appeallant.A..K. Premadasa, P.C., with C.E. de Silva for plaintiff-respondent.
Cur.adv.vult.
October 16, 2002NANAYAKKARA, J.
The plaintiff-respondent instituted action against the original 01defendant seeking ejectment of the defendant-appellant and allthose holding under him from the premises fully described in theschedule to the plaint on the ground of arrears of rent and dam-ages.
The defendant-appellant in response to the averments con-tained in the plaint filed his answer admitting tenancy and receipt ofthe notice to quite but pleaded that the premises in suit were gov-erned by the provisions of the Rent Act, No. 7 of 1972.
The case proceeded to trial on the basis of 10 issues of 10which, seven were formulated on behalf of the plaintiff-respondentwhile the rest were framed on behalf of the defendant-appellant.
At the commencement of the trial the following admissionswere recorded:
Tenancy.
The receipt of the notice to quit as pleaded in the plaint.
That the premises in suit are business premises.
The agreed rent is Rs. 125/- per month.
At the conclusion of the trial the learned District Judgeentered judgment in favour of the plaintiff-respondent.2C
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It is from the aforesaid judgment that the defendant-appellanthas preferred this appeal.
During the pendency of this appeal, as both the original plain-tiff-respondent and the defendant-appellant passed away, the pre-sent plaintiff-respondent and the defendant-appellant were substi-tuted as substituted plaintiff-respondent and substituted defen-dant-appellant for the purpose of the prosecution of the appeal.
At the hearing of the appeal it was contended on behalf of thedefendant-appellant that the premises in suit were rent controlledand governed by the provisions of Regulation 4 to the Schedule of 30the Rent Act. It was also contended that the Town Council within thelocal limits of which the premises in suit were situated, had beenreplaced by the District Development Council of Kalutara at thetime the action was instituted. As the District Development Councilhas not been recognised as one of the local authorities, withinwhich the premises in suit should be situated for the purpose ofapplication of Regulation 3 to the Schedule of the Rent Act, it wascontended that Regulation 4 of the Schedule to the Act shouldapply to the facts of the present case.
The plaintiff-respondent on the other hand had contended 40that the premises in question were excepted premises within themeaning of Regulation 3 in the Schedule to the Rent Act and priorto the date material to the action, the original respondent let thepremises in suit to the deceased defendant at a monthly rental ofRs. 125/- and in spite of the notice to quite terminating the tenancyof the defendant-appellant, continued to be in wrongful and unlaw-ful possession of the premises causing loss and damages to theoriginal respondent.
It appears from a careful consideration of the issues formu-lated and arguments advanced by the respective parties that the 50decision of this case depends entirely upon the answer provided tothe crucial issue No. 1 framed by the plaintiff-respondent. The saidissue is, “Are the premises in suit excepted premises in terms of theprovisions of Regulation 3 in the Schedule to the Rent Act No. 7 of1972?”
Therefore in order to arrive at a correct determination it wouldbe pertinent to examine the evidence that has been led in this case
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having regard to the relevant Regulations in the Schedule to theRent Act.
It was the position of the witness Piyasena, the RevenueInspector of Matugama Development Council, who gave evidencein this case that the Town Council within the local limits of which thepremises were situated ceased to exist in the year 1961, andthereafter the premises had come within the purview of theKalutara District Development Council for seven years before itcame under the present Matugama Pradeshiya Sabha. Therefore,it is apparent that the assessment of this witness’s evidence wouldbe more important and relevant than the evidence of the other wit-nesses to the determination of the most fundamental issue in thiscase.
At this stage, it would also be helpful, if the attention isfocussed on Regulation 3 of the Schedule to the Rent Act. It pro-vides thus:
“3. Any business premises (other than premises referred toin regulation 1 or regulation 2) situated in any areas specifiedin column 1 hereunder shall be excepted premises for thepurposes of this Act if the annual value thereof as specifiedin the assessment made as business premises for the pur-poses of any rates levied by any local authority under anywritten law and in force on the first day of January, 1968, orwhere the assessment of the annual value thereof as busi-ness premises is made for the first time after the first day ofJanuary, 1968, the annual value as specified in such assess-ment, exceeds the amount specified in the correspondingentry in Column 11
(1) Area(11) Annual Value
Municipality of ColomboRs.6000/-
Municipality of Kandy, Galle or any
other municipalityRs.4000/-
Town within the meaning of the Urban
Councils OrdinanceRs.2000/-
Town within the meaning of the Town
Councils OrdinanceRs.1000/-
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Kithsiri v Gamalath (Nanayakkara, J)
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From a careful reading of the above mentioned regulation itbecomes clear that for any business premises to be brought withinthe meaning of excepted premises in terms of Regulation 3 to theSchedule to the Rent Act it has not only to be situated in one of theareas stipulated but also it should have an annual value exceedingthe amount set out in the regulation. But this regulation has to beconsidered in conjunction with the express provisions of section 100221 of Pradeshiya Sabha Act, No. 15 of 1987 which explicitely pro-vide thus:
221. A reference to any written law in operation on thedate appointed under section 1 of the Act
to a Town Council shall be deemed to be areference to a Pradeshiya Sabha.
Therefore the fact that the Matugama Town Council withinthe local limits of which premises were originally situated ceased toexist in the year 1981 and at the time material to the action thepremises in suit had been situated within the local limits of the 110District Development Council of Kalutara, as transpired in thecourse of the evidence, is not material to the determination of thecrucial issue in the case. Accordingly the argument of the defen-dant-appellant that all questions relating to the applicability ofSchedule 3 of the Rent Act in this instance have to be determinedon the basis of the local authority within which the premises weresituated at the time of the institution of action, cannot be sustainedin the instant case.
The reasoning adopted in the case of Owen de Silva vKulatunge M. Noeline Rani,1 by this very court would be pertinent 120to this case as the facts in the present case are on all fours withthe facts of that case.
Therefore it is clear, that the provisions of section 221 of thePradeshiya Sabha Act have kept the requirements relating to TownCouncils in the Schedule to the Rent Act alive, in spite of the factthat the Town Council has ceased to exist at the time of the institu-tion of the action.
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For the foregoing reasons, I would not disturb the judgmentof the learned District Judge, and dismiss this appeal with costs.
UDALAGAMA, J. – I agree.Appeal dismissed.