M. H. M. HUSSAIN, Appellant, and MRS. L. RATNAYAKE, Respondent

087-NLR-NLR-V-69-M.-H.-M.-HUSSAIN-Appellant-and-MRS.-L.-RATNAYAKE-Respondent.pdf


Hussain v. Ratnayake
421
1967 Present: H. N. G. Fernando, C.J., Tambiah, J., andSiva Supramaniam, J.
M. H. M. HUSSAIN, Appellant, and MRS. L. KATNAYAKE,RespondentS. C. 175/65—D. C. Colombo, 43/BE
Rent Restriction Act (Cap. 274)—Section 27—Boarding house—Is it "residentialpremises " or “ business premises ” 7
Premises taken to be run mainly as a boarding house are " residentialpremises ” within the meaning of section 27 of the Rent Restriction Act.
Hepponstall v. Corea (64 N. L. R. 214) overruled.
-A.PPEAL from a judgment of the District Court, Colombo.
C. Ranganathan, Q.C., with 0. K. C. Sunderampillai and K. Thevarajah,for the plaintiff-appellant.
W. D. Qunasekera, with D. R, P. OoonetiUeke, for the defendant-respondent.
Cur. ado. vult.
422
TAMBIAH, J.—Hussain v. RcUnayake
May 18, 1967. Tambiab, J.—
This case was referred to a Bench of three Judges in view of the conflictof authorities on the point of law raised in appeal. The question fordetermination is whether premises taken to be run mainly as a boardinghouse in this case are “ residential premises ” or “ business premises ”within the meaning of section 27 of the Rent Restriction Act, (Cap. 274),hereinafter referred to as the Rent Act.
The learned District Judge held that since the premises were used as aboarding house by the respondent, the premises are business premises.
The finding of fact by the learned District Judge that the plaintiffagreed to rent out the premises, which is the subject matter of this suit,to the defendant in order that she may run it as a boarding establishmenthas not been challenged in appeal. Counsel for the appellant contendedthat in determining whether any premises are residential premises orbusiness premises the character of the physical occupation of the premisesmust be looked into and if it is used mainly as a residence, even thoughthe tenant may carry on a business of a boarding house, yet the premiseswill fall under the category of residential premises. Counsel for therespondent contended that since the respondent was running a boardinghouse, the premises are business premises.
The Rent Act defines residential premises as “ any premises for thetime being occupied wholly or mainly for the purpose of residence ” (videsection 27 of the Rent Act). Business premises are defined as “ anypremises other than residential premises ”. It is clear from this definitionthat the Legislature distinguished between buildings occupied whollyor mainly for purposes of residence and other types of premises. Thephrase “ for the time being occupied wholly or mainly for the purpose ofresidence ” qualifies the words “ any premises ”. On a plain reading ofthe definition, it is clear that any premises which are for the time beingoccupied wholly or mainly for the purpose of residence of persons shouldbe regarded as residential premises. As Lord Tenterden stated “ Thewords of an Act of Parliament which are not applied to any particularscience or art are to be construed as they are understood in commonlanguage” (vide Attorney General v. Winstonly).1 If the contentionof Counsel for the respondent is to prevail, the Legislature would havedefined residential premises as premises for the time being let wholly ormainly for the purpose of the residence of the tenant and his family.
Our Rent Act differs substantially from the English and South AfricanRent Acts (vide the Rent Acts by R. E. Megarry, 7th Edition, p. 78 e£ seq :The Rent Acts in South Africa by Rosenow and Diemont, 2nd Edition,p. 26 et seq). In these countries the words “ dwelling house ”, “ let ”,and other expressions used in the definition of residential premises haveled to a spate-of decisions, some of which are difficult to reconcile. InSouth Africa special provisions have been made by legislation to control
1 (1831) 2 D. & C. L. 302 at 313.
TAMBIAH, J.—Hussain v. Ratnayakc
423
premises used as boarding houses. Any dwelling house which has morethan ten boarders has been specifically defined as a business premises.The definition of residential premises in our Rent Act is simple andunambiguous and would have created no difficulty if not for theconflicting decisions.
In Hepponstall v. Corea1, a Bench of two Judges held that premisestaken on rent for the purpose of keeping a boarding house and used infact mainly for that purpose and also to serve as a residence for thetenant are “ business premises ” within the meaning of section 27 of theRent Act. But in formulating the criterion to be applied L. M. D. deSilva, J. said (vide at page 215) :
“ Consequently it is the duty of a Court first to decide whether thepremises come within the definition ‘ residential premises ’. If theydo not, then they are ‘ business premises ’. In our opinion in orderto do this the character of the physical occupation of the premisesjudged by the use to which they are put by the tenant must beexamined. If the character of the occupation so judged is ‘ wholly ormainly for residential purposes ’ then the premises are ‘ residentialpremises ’.
Judged by this criterion the premises which were the subject matterof the suit in that case should have been regarded as residential premises,because the tenant used the premises mainly for the purpose of humanoccupation. L. M. D. de Silva, J., having stated this proposition, latersaid :
“ There can be no doubt that the main use to which they were putwas the running of a hostel. It is clear therefore that the premiseswere not occupied ‘ wholly or mainlj’ for residential purposes ’ andtherefore they are not ‘ residential premises ’ within the meaning ofthe Ordinance. ”
In Standard Vacuum Oil Company v. Jayasuriya 2, the facts disclosedthat the residence in question was taken on rent by the StandardVacuum Oil Company to be used as a residence by one of the managersof the Oil Company. Since the chief use to which these premiseswere put to was as the residence of the manager, it was held that theywere residential premises, although thoy were rented by the Companyfor a wholly business purpose. In Hepponstall’a case, L. M. D. de Silva J.took the view that the ruling in Standard Vacuum Oil Company v.Jayasuriya (supra) was distinguishable from the facts of that case. Withrespect I am unable to find any distinction.
In Qunatilleke v. Fernando3 the rulings in Hepponstall’s case andStandard Vacuum Oil Company case were reconsidered. In that case itwas held that the premises, taken on rent by the proprietor of a
1 (1952) 54 N. L. R. 214.« (1951) 53 N. L. R. 22.
* (1954) 56 N. L. R. 105.
33-Volume LXDC
424
TAMBIAH, J.—Hussain v. Ratnayake
school and used by him as a hostel for the students and as a place ofresidence for the warden of the hostel and some of the teachers,(the business of the school itself being carried on in another place), wereresidential premises within the meaning of section 27 of the Bent Act.In the course of his judgment Gunasekara J. said (at page 109):
“ It seems to me that in the present case the whole purpose of theoccupation of Knowsley in November, 1941, was residence, althoughit was for the purposes of the tenant’s business at Duff House that heprovided this place of residence for some of the students and the staff,and no part of the tenant’s business was carried on at Knowsley. Inmy opinion, therefore, judged by the test laid down in Hepponstall v.Corea (supra) the premises in question were residential premises inNovember 1941.”
H. N. G. Fernando A.J., as he was then, also expressed his opinionas follows (vide at page 110) :
“ The Legislature has not in reality differentiated between residentialpurposes and business purposes ; the relevant definitions pose only thequestion whether the premises are occupied for the purposes of theresidence and if not they are to be regarded as business premiseswhether or not they are actually business premises. Nor is the Legis-lature concerned with the character of the tenant’s occupation. Inmy view therefore, the only issue to be determined is whether in factpersons actually ‘ reside ’ (in the ordinary connotation of the word)in the premises or in the majority of the rooms which it comprises.If such is the case, the premises are residential within the meaning ofthe Act, and the circumstances in which the residents come to residein the premises and their contractual relations, if any, with the tenantdo not alter the character which the premises acquired by reason thatpersons reside there.”
I respectfully agree with the views expressed in Gunatillehe v. Fernando(supra). I am of the view that although the correct principle of law wasstated by L. M. D. de Silva J. in Hepponstall’s case, that case was wronglydecided.
For these reasons I set aside the order of the learned District Judge andenter judgment for-the plaintiff for ejectment of the defendant frompremises No. 297, Galle Road, Colombo 3. The plaintiff claimed damagesat Rs. 500 per month, on the footing that he could rent these premisesat this rent. There is no evidence to contradict his evidence. Thereforethe plaintiff is entitled to damages at the rate of Rs. 500 per month from1st June 1963 till he obtains possession of the premises. I order thatwrit should not issue till 31st August 1967. The appellant is also entitledto costs in both courts.
SIVA SUPRAMANIAM, J.—Hussain v. Ratnayalce
42&
Siva Supramaniam, J.—
The only question that arises for determination on this appeal is whetherthe premises which form the subject matter of this action are “ residentialpremises ” within the meaning of the Rent Restriction Act No. 29 of 1948as amended by Act No. 6 of 19;">3 (hereinafter referred to as the Act).It is conceded that if they are “ residential premises ”, they are notgoverned by the Act and the plaintiff is entitled to succeed in his action.The premises are situated at Kollupitiya and consist, inter alia, of fiverooms. The defendant occupies one room and the remaining roomsare occupied by boarders.
• The findings of the learned District Judge that the defendant “ informed-the plaintiff at the time she took this building on rent that she was rentingit out in order to run a boarding establishment ” and that she did infact use the premises for that purpose were not contested in appeal.
The trial Judge has held, on the authority of Hepponstall v. Corea 1,that the premises are “ business premises ” within the meaning of theAct and are consequently governed by the provisions of the Act and hasdismissed the plaintiff’s action.
Under the Act, “ residential premises ” means “ any .premises for thetime being occupied wholly or mainly for the purpose of residence ”.All other premises fall under the category of “ business premises
In the case of Standard Vacuum Oil Co. v. Jayasuriya2, where certainpremises were taken on rent by a Company for the purpose of itsbusiness and were occupied by the Manager mainly for the purposeof residence in connection with the company’s business, it was held thatthe premises were “ residential premises ” within the meaning of the Act.In the course of his judgment, Gunasekara J. stated : “ Although bydefinition ‘ business premises ’ and ‘ residential premises ’ exclude eachother, ‘ purposes of business ’ and ‘ purposes of residence ’ do not;and in a given case one may well include the other, as for example inthe case of a tenant who takes in paying guests. ”
The principles underlying the decision in the above case wereapproved by this Court in Goonetilleke v. Fernando3. In that casepremises taken on rent by the proprietor of a school and used by him as ahostel for the students and a place of residence for the warden of the hosteland some of the teachers were held to be “ residential premises ” withinthe meaning of the Act.,
In Hepponstall'a case (vide supra), “ the respondent took the premiseson rent for the purpose of running a boarding, and in fact used the premisesfor that purpose L. M. D. de Silva J., who delivered the judgment(Swan J. agreeing), after holding that, in order to decide whetherthe premises come within the definition of “ residential premises”, ‘‘the
(1952) 54 N. L. R. 214.'
• (1954) 56 N. L. R. 105.
i
(1951) 53 N. L. R. 22.
426
SIVA SUPRAMANTAM, J.—Bustain v. Ratnaydke
character of the physical occupation of the premises judged by the use
to which they are put by the tenant must be examined ”, proceeded to
state as follows :—“ There can be no doubt that the main use to which
•
they (the premises) were put was the running of a hostel. It is cleartherefore that the premises were not occupied ‘ wholly or mainly forresidential purposes ’ and therefore they are not ‘ residential premises ’within the meaning of the Ordinance. Consequently they are ‘ businesspremises
With the greatest respect to that very eminent Judge, I find myselfunable to agree with his conclusion. He sought to distinguish theStandard Vacuum Oil Company case (vide supra) on the ground that inthat case “ only a very small amount of business was conducted on thepremises and the main purpose of occupation was residence.”
Under the Act, the character of the premises, ‘‘ residential ” or“business ” depends not on the purpose for which the premises are takenon rent by the tenant or let by the landlord but on the nature of thephysical occupation. The only test for “ residential premises ” is whetherthe premises are occupied (by the occupier or occupiers) wholly or mainlyfor the purpose of residence. There can be no doubt that in a boardingevery boarder occupies the premises wholly or mainly for the purpose ofresidence. The fact that the tenant supplies meals to the boarders ormakes a profit through the occupation of the premises by the boarderscan make no difference to the nature of the occupation by the boarders.
It was argued that the Act is intended to protect the rights of tenantsand therefore the occupation referred to in the definition of “ residentialpremises ” is occupation only by the tenant, and if the tenant occupies thepremises mainly to carry on a business, the premises will not fall underthe category of " residential premises ”, even though the business carriedon necessitates the occupation of the premises wholly or mainly as aresidence by the occupiers. This argument, however, ignores the expressterms of the Statute and would necessitate the interpolation of the words“ by the tenant ” after the word “ occupied ” in section 27 of the Act.“ It is a strong thing to read into an Act of Parliament words which arenot there, and, in the absence of clear necessity, it is a wrong thing to do.”—per Lord Mersey in Thompson v. Goold L
For the foregoing reasons, I am of opinion that Hepponstall v. Corea(vide supra) was wrongly decided and should be overruled.
I hold that the premises in question are “ residential premises ” withinthe meaning of the Act. I allow the appeal and enter judgment for theplaintiff as prayed for with costs in both Courts. The defendant will beentitled to credit in any sum of money she may have paid to the plaintiffas rent or damages after the date of the institution of this action. Idirect that writ of ejectment be not issued till 31st August, 1967.
H. N. G. Fernando, C.J.—I agree.
Appeal allowed
1 [1910) A. G. 409 at p. 420.