STATE BANK OF INDIA v. RAJAPAKSE

016-SLLR-SLLR-2002-V-1-STATE-BANK-OF-INDIA-v.-RAJAPAKSE.pdf


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STATE BANK OF INDIA
v.RAJAPAKSE
COURT OF APPEALWEERASURIYA, J. ANDDISSANAYAKE, J„
CA NO. 83/90 (F)
DC COLOMBO NO. 4087/ZLJUNE 26, 2000,
JULY 14, 2000 ANDOCTOBER 19, 2000
Landlord and Tenant – Informal tenancy agreement – Tenant carrying out altera-tions to premises – Temporary or permanent constructions – What is alteration?- Common law rights of parties – Housing and Town improvement Ordinance,sections 6 (1) and (2) – Unauthorized structures.
The plaintiff-respondent instituted action as the tenant of the 1st floor premisesrented out to him seeking a delaration that he is entitled to carry out inter aliarearrangement and improvement of the premises and further sought a permanentinjunction restraining any obstruction to the construction of a mezzanine floorfrom the defendant-appellant (landlord).
After trial the District Court entered judgment in favour of the plaintiff-respondent.
In appeal it was contended that the said construction was unauthorised and thatit was a permanent structure and that the tenant is not entitled to constructpermanennt structures without the landlord's permission.
Held:
The plaintiff-respondent did have neither the permission of the defendant-appellant nor the approval of the Mayor when he constructed the mezzaninefloor.
The construction exposed the plaintiff-respondent for prosecution by theColombo Municipal Council.
The facts in the case show that the mezzanine floor is a structural alterationto the premises in suit, of a permanent nature.
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State Bank of India v. Rajapakse (Dissanayake, J.)
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Per Dissanayake, J.,
"Under the Common Law a tenant is entitled to carry out alterations whichinvolved superficial or surface changes as opposed to permanent alterations."
"A building is a structure and an alteration of a structure must be structural."
APPEAL from the judgment of the District Court of Colombo.
Cases referred to:
Inspector of Local Board v. Peeris ~ 8 CWR 53.
Nesaduray v. Amerasinghe – 39 NLR 246 at 248.
Canagaslngham v. Urban Council, Trincomalee – 50 NLR 191.
The Clarke – 1902 – 2 ch 327.
Less and Another v. Bornstein and Another – (1948) 4 South African LawLaw Reports 333 at 339.
White v. Ryan – 1932 Ir R 69.
Bickmare v. Dinmer – 1903 (1) ch 158.
South Wales Aluminium Co. v. Neath Assessment Committee – (1943)
2 ALL ER 487.
Hobday v. Nicol – 113 LJ KB 264.
West Minster Council v. London Country Council – 1902 (1) KB 326.
LCC v. Jann – (1954) 1 WLR 371.
Thomas v. Benjumin Scaffolding Contracts – (1980) 79 LGR 702.
Mano Dewasagayam for the defendant-appellant.
Bimai Rajapakse with G. K. Hirimuthugoda and Ajith Anawarathne for plaintiff-respondent.
Cur. adv. vult.
February 09, 2001
DISSANAYAKE, J.
The plaintiff-respondent by his plaint dated 06. 04.1982 filed this action 1as the tenant of the 1st floor in premises bearing No. 18 1/2 in theState Bank of India Building rented out to him by its owner thedefendant-appellant seeking a declaration from the District Court thathe is entitled to carry out internal decoration, redecoration, rearrange-
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merit and improvement to the premises as are necessary for theplaintiff's business, from time to time, in order to put the premisesfor reasonable use.
Having commenced construction of a mezzanine floor on 7th March,1982, the plaintiff-respondent sought a permanent and an interim 10injunction from the District Court restraining any obstruction from thedefendant-appellant.
The defendant-appellant filed answer praying for a dismissal of theplaintiff-respondent's action and seeking a mandatory order fordemolition of the mezzanine floor and damages in a sum of Rs. 5,000up-to-date of answer and continuing damages at Rs. 1,000 per monthup-to-date of demolition of the said mezzanine floor.
The case proceeded to trial on 13 issues and the learnedAdditional District Judge by his judgment dated 21. 02. 1990entered judgment for the plaintiff-respondent as prayed for with costs. 20
The defendant-appellant had lodged this appeal from theaforesaid judgment.
Learned Counsel for the defendant-appellant contended that thelearned District Judge was in error when he came to the finding thatthe construction of the mezzanine floor was only a temporaryconstruction.
Learned Counsel for the defendant-appellant further contendedthat there was an admission by the plaintiff-respondent that he hadconstructed the said mezzanine floor and that he failed to obtainthe approval of the Municipal Council, which shows that by constructing 30the said mezzanine floor he had contravened the provisions ofthe law.
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State Bank of India v. Rajapakse (Dissanayake, J.)
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The following matters were admitted by the parties at the trial :
The defendant-appellant was a tenant of the plaintiff-respondent in respect of premises No. 18 112, First floor, StateBank of India;
The plaintiff-respondent constructed the mezzanine floor;
The plaintiff-respondent did not obtain the permission of theColombo Municipal Council or the Mayor before constructing *othe said mezzanine floor;
The plaintiff-respondent commenced construction on 6. 3. 82and completed it under authority of an interim injunctionissued by Court;
The plaintiff-respondent constructed the said mezzanine floorwithout obtaining the permission of the defendant-appellant;
The plaintiff-respondent constructed the said mezzanine floorwith the intention of increasing his office space.
Learned Counsel for the defendant-appellant drew the attention ofCourt to section 6 (1) of the Housing and Town Improvement soOrdinance which provided that construction of the followingalterations to buildings required the approval of the Mayor or theMunicipal Council:
Construction of a door or window in an external wall(section 6 (2) (b)).
Construction of an internal partition (section 6 (2) (c)).
Alteration of the internal arrangements of a building whichaffects any change in the open space attached to thebuilding or its ventilation (section 6 (2) (d)).
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{d) Addition of any room or other structure (section 6 (2) (e)).
He cited the following cases which dealt with certain alterationswhich came under section 6 (2) of the Housing and Town ImprovementOrdinance :
Inspector of the Local Board v. Peerid^ where it was heldby reference of section 6 (2) (c) of the Housing and TownImprovement Ordinance, that the construction of apartition inside the house which was partly of bricks andpartly of venition shutters with glass panes was a violationof section 6 (1) of the Ordinance;
Nesaduray v. Amerasinghd2> at 248 where Fernando, AJ,took the view that the alteration in section 6 (2) means"some work which resulted in the alteration or conversion".
Canagasingham v. Urban Council, Trincomaleel3> whereit was observed by Basnayake, J. (as his Lordship wasthen) "that an examination of section 6 (2) of the Housingand Town Improvement Ordinance reveals that the objectof the legislation is to phohibit unauthorised alterationsof buildings unless done according to approved plans".
It is to be observed that the premises in suit was let by thedefendant-appellant to the plaintiff-respondent on an informal tenancyagreement dated 31. 12. 1975 (P1).
According to the terms of the said contract of tenancy thepremises was let to the plaintiff-respondent for the purpose of usingit as an office.
The said contract of tenancy (P1) did not contain any provisionrelating to making of any kind of alterations, to the building structural
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or otherwise, however, clause (c) of the said contract of tenancy (P1)prohibited any change in electric wiring without the written consentof the landlord.
Since the said contract of tenancy subsisted between the parties 90at the time of filing of this action their respective rights have tobe determined on the said contract of tenancy and on the principlesof common law relating to landlord and tenant, which is theRoman-Dutch Law.
In the book "Landlord and Tenant in South Africa" by Wille, 5thedition in Chapter XIII under the heading "Contract, Use of LeaseProperty (Buildings)", at page 235 it is stated thus :
"From the negative point of view the tenant may not use thebuilding unreasonably or improperly, or for a purpose other thanthat for which they were let to him, nor may convert the nature 100of, or make alterations to, the property or a portion of it; for example,he may not convert a dwelling house into a shop or a stable."Where the tenant of a shop was not allowed to make "structuralalterations," without the consent of the landlord, it was held thatfor any alteration it was necessary for carrying on the businessfor which the premises was let was not a structural alteration unlessit involved a permanent alteration of the premises as opposed tomere superficial or surface changes."
Therefore, it is apparent that under the common law a tenant isentitled to carry out alterations which involved superficial or surface 110changes as opposed to permanent alterations.
To comprehend the meaning of the words “alteration" and “struc-tural" it is helpful to have recourse to Judicial Dictionaries.
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In "Strouds Judicial Dictionary" (4th edition) 1971, the meaning ofthe word "alteration" is given as probably, an alteration, in premiseswhich will discharge an insurer, means generally a permanentalteration or user and not something mere casual and temporary.
In "Words and Phrases Judicially Defined" vol. 1 (1946) by RolandBurrows at page 168 it is stated that : “an alteration in building mustbe structural alteration". Quoting Re Clarke's Settlement (Buckley, 120J.), the author states that: "a building is a structure, and an alterationof a structure must be structural".
In the case of Less and Another v. Bornstein and Anothet at339 Searle, J. stated thus: "Now in my opinion, in the circumstances,without defining the term “structural alterations" for the purpose ofclause 10 of the lease, it must be limited to alterations or additionswhich (a) are permanent in their nature and (b) which alter the formor structure of the premises as opposed to alterations of a superficialnature which merely alter the surface. Alterations as to fittings andfixtures for the purpose of converting the premises for the ordinary 130conducting of the business for which they were let, would not, in myview, amount to "structural alterations" – vide White v. Ryarfi» eventhough the annexing of such fixtures might include the boring of holesin or plugging the actual walls or structure of the buildings – videLeigh v. Tay lot, Bickmore v. Dimmet. It would seem to followtherefrom that any alteration necessary or essential for the carryingon the trade for which the premises are let would not be a "structuralalteration" unless it involes an actual permanent alteration of thestructure of the premises themselves as opposed to mere superficialor surface changes".140
In "Strouds Judicial Dictionary" vol. 5 (5th edition) (1986) at page2513 meaning of the word structure is given as – 1
(1) in its ordinary sense, means something which is constructedin the way of being built up as is a building (South WalesAluminium Co. v. Neath Assessment Committed9).
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(2) Although the question what is a structure is a question offact, the question what is a structure within the meaning ofa particular statute or regulation is a mixed question of lawand fact (Hobday v. NicoP0) at 2514) it is stated thus :
"(b) A stand constructed of wood, except its nails, for iso
enabling spectators to view a street procession was a "woodenstructure" within London Building Act, 1894 (C. ccxiii),s 84; it was not a "building or structure of a temporarycharacter", within s. 83 (Westminster Council v. LondonCounty Council).
(j)a car shelter is a "structure" within s. 22 of the LondonBuildings Act 1930 (20 & 21 Geo. 5 c. Clvii (L. C. C. v.JanrP2).
(k)Scaffolding erected to support seating for theatricalperformance has been held to be a "structure" for the 160purposes of s. 30 of the London Buildings Acts (Amendment)
Act 1939 (C. XCVII) Thomas v. Benjamin ScaffoldingContracts'13).
According to the evidence led in the instant case it was revealedthat, the plaintiff-respondent constructed a mezzanine floor which was39 feet by 13 feet 9 inches and fitted on timber beams at 6 feet6 feet 2 inches intervals which were fixed to timber columns thatwere driven into the concrete floor cutting those small areas of thetimber floor at the points they were fitted to the floor.
The evidence also revealed that the premises was let out for the 1?opurpose of using it as an office. The floor area which was 696 squarefeet was increased to 1,100 square feet by the construction of thesaid mezzanine floor. Because of the said construction, the premisesin suit had been partitioned into a ground floor and a mezzanine floorand thereby constructed an additional room. New electric cables havebeen used to fix 4 air-conditioners and 6 fluorescent lamps that werefitted, without the written permission of the defendant-appellant.
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There were 11 desks 2 filing cabinets on the mezzanine floor, andabout 20 people could be accommodated on the said mezzanine floor,whereas earlier there was only room for 4 persons to work in the 180said premises.
It was also revealed in the evidence that if the mezzanine floorwas fitted to the entire area of the building it would cause damageto the building, but in this case no damage was caused to the building.
Admittedly, the plaintiff-respondent neither did have the permissionof the defendant-appellant nor the approval of the Mayor or theColombo Municipal Council, when he constructed the saidmezzanine floor.
It is to be observed that the aforesaid construction also exposedthe plaintiff-respondent for prosecution by the Colombo Municipal 190Council under section 6 (2) of the Housing and Town ImprovementOrdinance, as per report of Structural Engineer Milroy Perera dated15. 4. 1982 (D3).
Therefore, the matter that arises for decision of this Court iswhether the construction of the said mezzanine floor is a structuralalteration of a permanent nature or a mere superficial or surfacechange. I
I am of the view a tenant of a premises is entitled only to carryout superficial or surface changes to put the premises into reasonableuse, for the purpose for which it was let, like for example changing 200the furniture and fittings, changing the colour of the paint on the wallsor using of some decorative material, etc., and a tenant is certainlynot entitled to construct an additional room or an additional floor andthereby increase the floor area without the consent of the landlord,even if such construction is done with timber and can be dismantledeasily. To detemine whether the said mezzanine floor erected by thethe plaintiff-respondent was a temporary or a permanent one, thefollowing facts that transpired in the testimony of Milroy PereraStructural Engineer need careful examination.
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The said mezzanine floor was 39 feet x 12' 9" was made out of 210planks which were about one inch in thickness.
The floor was fixed onto timber beams which lay across and alongthe border of the said floor. The said timber beams were fitted onto18 timber columns which were fixed near the inner walls of the buildingat 6 feet and 6' 2“ intervals. These columns were driven into theconcrete floor. Small areas of the timber floor, where the said timbercolumns were driven into the concrete floor, were cut.
The said mezzanine floor was built to carry the weight of 11 desks,filing cabinets, steel cupboards, book racks and the weight of theemployees who used the said furniture. The said structure was able 220to carry the weight of an office. The question whether the said structurewas temporary or permanent depended on the period to which thesaid structure was intended to be used. If the person who constructedthe said structure did not dismantle it, it would become a permanentstructure. Generally, the question whether a structure was temporaryor pemanent depended on the intention of the person who erectedit. The said mezzanine floor had been in existence for 6 years upto the time Milroy Perera gave evidence in the District Court.
It is to be noted that from the above facts which were revealedon the testimony of Milroy Perera, that the said mezzanine floor, 230although constructed out of timber is a structural alteration to thepremises in suit, of a permanent nature.
Therefore, I hold that the construction of the said mezzanine floorto the premises in suit was a structural alteration, of a permanentnature. I
I set aside the judgment of the learned District Judge and enterjudgment for the defendant-appellant as prayed for in the answer ofthe defendant-appellant.
WEERASURIYA, J. – I agree.
Appeal allowed.