the tenant or any person residing or lodging with himor being his subtenant has, in the opinion of the
Courtbeen convicted of using the premises for
an immoral or illegal purpose”
Counsel for the Plaintiff contended that the offence underSection 8(2) of the Control of Prices Act comprises of thefollowing three ingredients :
carrying on business at any premises;
having in possession for purpose of trade a stock ofarticles in respect of which the price is fixed;
the refusal (where asked) to sell such article.
He submitted that all ingredients of the offence of whichthe 1st Defendant has been convicted relate to the premisesbeing the subject of the tenancy and that this would amountto the use of the premises for an illegal purpose as contem-plated by section 22(l)(d) of the Rent Act.
On the other hand. Counsel for the Defendants contendedthat the mere physical location of the commission of theoffence and the occurrence of its constituent ingredients in therented premises is not the determinant factor but that thereshould be an actual use of the rented premises in the commis-sion of the offence to attract the ground of ejectment underSection 22(l)(d) of the Rent Act.
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The submissions of Counsel tend to veer towards eitherend of the spectrum of views that may be taken in relation tothis brief by somewhat nebulous provision.
A similar ground of ejectment was contained in Section13(l)(d) of the Rent Restriction Act No. 29. of 1948, asamended, which preceded the currently operative Rent ActNo. 7 of 1972. An analogous provision was operative in theUnited Kingdom in section 4 of the Rent and Mortgage InterestRestriction Act of 1923, which stated that no judgment for therecovery of the possession of any dwelling house could be givenunless the tenant "has been convicted of using the premises orallowing the premises to be used for an immoral or illegalpurpose.”
An examination of some of the different cases in which aninterpretation of the said provisions were drawn in issue wouldbe a useful guide to the proper application of the ground ofejectment as set out in Section 22 (1)(d) of the Rent Act.
In the case of Saris Appuhamy vs Ceylon Tea PlantationsCo. Ltd.,11' the tenant was convicted of an offence under section4 of the Protection of Produce Ordinance. The basis of theoffence was that he was found in possession of 3 gunny bagscontaining manufactured tea dust and 8 gunny bags contain-ing tea sweepings in such circumstances as it was reasonableto suspect that the same were not honestly in his possessionand that he was unable to give a satisfactory account of hispossession thereof. It appears that 11 bags were kept in theboutique being the tenanted premises in suit. Rose C.J.upheld the judgment entered against the tenant and observed(at page 448).
“It seems to me that the learned Commissioner was fullyentitled to come to the view that this was a case in whichthe premises were made use of for the purpose of storingthis tea which was reasonably suspected to have beenstolen.”
The next is the case of Asiya Unxma vs Kachi Mohideen'21 inwhich, Sinnetamby, J considered the application of Section13(1)(d) of the Rent Restriction Act to a situation where the
Kodituwakkudrachchi u. Paramanathan and Another
(S.N. Silva, C.J.)
tenant had been convicted of an offence of possession ofcocaine without a licence. He allowed the appeal and set asidethe judgment of the court of first instance entered in favour ofthe landlord on the basis that the conviction of the tenant doesnot come within the “compass” of section 13( 1) (d) of the Act. Heobserved at page 332 as follows:
“section 13(l)(d) is restricted to cases in which a tenanthas been convicted of keeping or using the premises let foran illegal purpose. The conviction in this case was cer-tainly not in respect of the use or the purpose for which thepremises were kept. The conviction was for possession ofcocaine. There are certain cases in which the use of ahouse or premises for a certain purpose is itself an offence;instances that come to mind are the keeping or using ahouse for themselves independent of the purpose forwhich the premises are themselves put. Unlawful gaming,is by itself and offence separate and independent of theoffence of using a building or premises for that purpose;the former is punishable under Section 2 ofthe Gaming Ordinance while the latter is punishableunder Section 3. Likewise, under the Brothels Ordinance,a person who keeps or uses the premises for the purposeof a brothel is punishable under Section 2 of the Ordi-nance (Chapter 25 of the Legislative Enactments). Thereis thus a clear distinction between a conviction in respectof an illegal act and a conviction for keeping premises forthe purpose of an illegal or immoral act. What the sectionof the Rent Restriction Act contemplates is a conviction forusing the premises let for an illegal purpose and not theconviction of an occupant therein of an illegal act."
In the case of AbrahamSinghovs Ariyadasa!3' Weeramantry
J., considered an instance where a person permanently resid-ing with the tenant was convicted of committing an offence ofselling arrack within the premises in suit. He departed fromthe reasoning of Sinnetamby J., following the test adopted byBankes L.J., in the case of Shneider Sons LtcL, vs Abrahamsm.He observed as follows at page 140 at 141 –
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‘The more satisfactory test in my view would be notwhether the user of the premises constitutes mi essentialelement in the offence for which the occupier of hislicensee has been convicted, but rather as Bankes L.J,observedwhether the tenant has taken advan-tage of the premises and the opportunity they afforded forcommitting the offence.”
Subsequently in Asilin Nona vs K. Don William'51,Weeramantry J, considered the application of this ground ofejectment to a situation where the only evidence of theconviction was an admission by the Defendant in her answerthat she had been convicted in one case on a charge ofpossession of arrack, contrary to the provisions of the ExciseOrdinance. She had also pleaded that the arrack was broughtfor a house party. Weeramantry J., allowed the appeal and setaside the judgment entered against the Defendant on the basisthat the said conviction does not establish the ground ofejectment set out in the Rent Act. At page 137 he observed asfollows:
"In the case of Abraham Singho vs Ariyadasa, I hadoccasion to hold that an illegal sale of arrack on thepremises in contravention of the provisions of the ExciseOrdinance is a use of the premises for an illegal purposeand that a sale on a single occasion is sufficient toconstitute such use. It was there pointed out that thesatisfactory test would be not whether the user of thepremises constitutes an essential element of the offencebut whether the tenant has taken advantage of thepremises and the opportunity they offered for committingthe offence. As I there observed an illegal sale of arrackrequires a measure of cover and there is no doubt thebuilding had in that case been taken advantage of.
In the present case there seems to be hardly any evidenceof the tenant taking advantage of the premises for thepurpose of committing the offence. Unlike in the case of anillicit sale where the cover of the building is made use of
Kodituwakkuarachchi v. Paramanathan and Another
(S.N. Silva, C.J.)
or taken advantage of for the purpose of effecting the sale,the mere offence of possession does not appear to involvetaking advantage of the building as such."
In the next case of Paranavithana vs Themanis,e> KretzerJheld that where a tenant carried on business of a eating housein the rented premises without a licence from the MunicipalCommissioner “the house is being put to a purpose forbiddenby the law, and the landlord would be entitled to the ejectmentof the tenant on that ground.”
The case of Sumanadasa us Edmundl7) relates to a situa-tion where the inmates of the rented premises had beenprosecuted in no less than 20 cases for offences under theExcise Ordinance committed in and within close vicinity of thetenanted premises.
Wanasundera J reviewed several previous judgments onthe subject. He disagreed with the view expressed bySinnetamby J in the case referred to above on the basis thatit was “a narrow interpretation" of the provisions and incon-sistent with previous dicta. He has made a somewhat similarcomment with regard to the second judgment of WeeramantryJ referred to above in the case of Asilin Nona vs Don William.He cited a portion of the observation made by Weeramantry J.,in the said case (which has been referred to above) andobserved that if “Weeramantry J., by this statement meantthat one act of possession cannot in any circumstancesconstitute a use of the premises within the meaning of thesection, then 1 think he has declared the law a little toonarrowly.” On the facts stated Wanasundera J., held that therewas no basis to interfere with the findings made against theDefendant tenant by the court of first instance and the Courtof Appeal. As a general observation he stated that on thematerial adduced the court should draw an inference “as towhether or not the convictions were associated with thepremises in such a way as to constitute user of the premisesfor an illegal purpose.”
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In the light of the observations cited above, I would nowturn to a consideration of the basis on which the relevantprovisions should be applied to the facts of this case.
In applying section 22(1 )(d) which permits the ejectmentof the tenant where the tenant or any person residing orlodging with him or being his sub-tenant has in the opinion ofthe court been convicted of using the premises for an immoralor illegal purpose, one has to be mindful of its purpose in thescheme of the Rent Act. The Rent Act is designed to afford ameasure of protection to a tenant. It does so by restricting theamount that could be recovered by way of rent and assuringthe continuance of the tenancy by limiting the grounds onwhich proceedings for ejectment could be instituted. Therationale of the relevant provision in section 22(1 )(d) is thatwhere the tenancy is protected by law, the tenant or a personresiding or lodging with him or his sub tenant, should not usepremises for an immoral or illegal purpose. Where such userresults in a conviction, the tenant would lose the protectionafforded to him and be liable for ejectment.
The word “conviction" as appeal ing in this section isreferable to the commission of an offence by the tenant or aperson residing or lodging with him or his sub tenant.
The words "immoral or illegal" pertain to the offence inrespect of which the conviction is entered.
The phrase “using the premises” introduces a link be-tween the premises and the immoral or illegal conduct inrespect of which the conviction is entered.
The word “purpose” appearing at the end of the relevantprovision qualifies the words "immoral” or “illegal”. In thecontext of the preceding words of the provision, the word“purpose” should be construed as the use of premises, in orderto do or perpetrate something which is immoral or illegal.
Kodituwakkuarachchi v. Paramcmathan and Another
(S.N. Silva. C.J.)
As noted above the phrase “using the premises” relates tothe link between the premises and the immoral or illegalconduct in respect of which the conviction has been entered.The question as to what would amount to user of the premisesin this context has been dealt with in the judgments citedabove. It is clear that the mere fact that an offence wascommitted in the premises does not amount to use of thepremises for an immoral or illegal purpose. Qn the other hand,it is not necessary to go so far as to establish that a use of thepremises for an immoral or illegal purpose is a necessaryingredient of the offence that has been committed, as reasonedby Sinnetamby J., in Asiya Umma’s case. The weight ofauthority supports the reasoning of Bankes L. J., in Shneider’scase that the ground of ejectment would be attracted if it canbe established that the tenant or an occupant under him, hastaken advantage of the premises and the opportunity itafforded for "an immoral or illegal purpose." When the wordsin the provision are construed as stated above, the proper testwould be to ascertain whether the tenant or such other personoccupying as provided in the section took advantage of therented premises and the opportunity it afforded for the im-moral or illegal purpose which in turn results in the convictionfor an offence.
If the aforesaid test is applied to the facts of the presentcase it is clear that the " illegal” act is the refusal to sell the milkpowder that was asked for. The submission of counsel for thePlaintiff is that the packets of milk powder in relation to whichthere was a refusal to sell were kept in the rented premises.There is no evidence as to where the milk powder was kept.However, assuming that the milk powder was kept in thepremises, the conduct of keeping the milk powder in thepremises does not per se amount to a user of the premises foran immoral or illegal purpose. It would indeed be legitimate tokeep milk powder is such premises. The illegal conduct isreferable only to the refusal to sell. Since it could not be saidthat the 1st Defendant has taken advantage of the premisesand the opportunity afforded by it when he refused to sell the
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packet of milk powder that was asked for, I am of the view thatthe Plaintiff has failed to discharge the burden of proof that lieson him to establish the ground of ejectment in section 22( 1 )(d)of the Rent Act. I would answer the question of law formulatedby the Court of Appeal against the plaintiff. Accordingly theJudgment dated 20.11.1985 of the Additional District Judgeis set aside and the action is dismissed. The appeal had beenallowed proforma in the Court of Appeal. In the circumstancesthis appeal is dismissed.
Considering the facts and circumstances of the case, eachparty would bear its own costs in respect of the trial in theDistrict Court, proceedings in the Court of Appeal and in thisCourt.
WIJETUNGA, J. – I agree.
GUNASEKERA. J. – 1 agree.
Appeal dismissed.