033-SLLR-SLLR-1998-1-VAIDYANATHAN-v.-BOARD-OF-REVIEW-CEILING-ON-HOUSING-PROPERTY-LAW-AND-O.pdf
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Vaidyanathan v. Board of Review Ceiling on Housing
Property Law and Others
275
VAIDYANATHAN
v.BOARD OF REVIEW CEILING ON HOUSING PROPERTY LAW
AND OTHERS
SUPREME COURTAMERASINGHE, J.,
DHEERARATNE, J. ANDANANDACOOMARASWAMY, J.
S.C. APPEAL NO. 164/96C.A. NO. 328/92CHP APPEAL NO. 208017TH, DECEMBER 1997.
Writ of certiorari – Application by the tenant for purchase of house let tohim – Section 13 of the Ceiling on Housing Propety Law, No. 1 of 1973 – Definitionof "house" – Section 47 of the Law.
Late Mohanam, the tenant of the premises in suit and the appellant her husbandwho succeeded her as tenant sought to purchase the house occupied by themon an application made under section 13 of the Ceiling on Housing Property Law,No. 1 of 1973.
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Sri Lanka Law Reports
(1998) 1 Sri LR.
Held:
The premises in suit was used mainly for a purpose other than a residential purposeduring the relevant period and the occupation of the appellant and Mohanam ofthe premises as a residence was incidental. Consequently, the premises in suitwas not a “house” within the meaning of Section 47 of the Ceiling on HousingProperty Law which the tenant could apply to purchase in terms of section 13of the Law.
APPEAL from the judgment of the Court of Appeal.
P. Nagendran, PC with N. Singarawela for appellant.
S. Mahenthiran for 9th respondent.
M. S. Indika Demuni de Silva, SC for 8th respondent.
Cur. adv. vult.
February 16, 1998.
DHEERARATNE, J.
On 26.6.75, the late Mohanam Vaidianathan (Mohanam) the tenantof premises No. 252, Sea Street, Colombo 11, made an applicationin terms of section 13 of the Ceiling on Housing Property Law,No. 1 of 1973 (CHP Law), to purchase the premises. The 9threspondent, the landlord of the premises, resisted the application topurchase, on the basis that the premises was not a "house" withinthe meaning of the CHP Law. Mohanam died on 27.6.83 and theappellant, who claimed to have succeeded to the tenancy as deceasedperson's husband, participated at the inquiry before the 8th respondentCommissioner of National Housing. The 8th respondent held that thepremises was not a “house"; and an appeal made to the Board ofReview on that question too failed. The appellant then moved the Courtof Appeal by way of a Writ to quash the order of Board of Review.The appellant was unsuccessful there too and has now appealed fromthe judgement of the Court of Appeal to this Court, having obtainedleave on the following questions: 1
(1) Was there a failure to comply with Rule 3A (1) (a) of theSupreme Court Rules? (2) Did the petitioner (appellant) have no locusstandii and (3) Were the premises business premises to which section13 of the Ceiling on Housing Property Law did not apply?
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I shall consider the pivotal last question first, because, if theappellant fails on that, it will be unneccessary for us to determinethe rest. Section 47 of the CHP Law gives the following definitionof a "house" :
House means an independent living unit, whether assessed or notfor the purpose of levying rates, constructed mainly or solely forresidential purposes, and having a separate access, and throughwhich unit access cannot be had to any other living accommodation,and includes a flat or tenement, but shall not indude-
sub-division of, or extensions to, a house which was firstoccupied as a single unit of residence; and
a house used mainly or solely for a purpose other than aresidential purpose for an uninterrupted period of ten yearsto March 1, 1972.
The precise matter for determination in this case is whether or notthe premises in question fall within the exclusionary provision (2) ofthe section mentioned above. The decision of the matter could nothave been free from difficulty if it was not compounded by the factthat the appellant and his wife Mohanam on the one hand and thecontesting 9th respondent on the other, have taken somewhat differentstances from what they now take, in certain other proceedings. Someof those proceedings were related to the repealed Rent RestrictionAct, No. 29 of 1948, where (like in the Act, No. 7 of 1972) the term“business premises" was defined as meaning any premises other thanresidential premises; and the term "residential premises" was definedas meaning any premises for the time being occupied wholly or mainlyfor the purpose of residence. One can hardly discern any differencebetween the two terms "mainly or solely" and "wholly or mainly" andit would be correct to say that both expressions mean "predominantly".
Let me endeavour to find the evidence tending to show thepredominant purpose for which the premises were used for anuninterrupted period of ten years prior to March 1, 1972, which periodfor the sake of convenience, I shall refer to as "the relevant period".The premises in suit are situated in Sea Street which is admittedlya commercial area; but that fact by itself is of little value to determinethe nature of the predominant user the premises were engaged for.
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Sri Lanka Law Reports
(1998) 1 Sri LR.
The assessment register maintained at the Municipal Council,Colombo, described the premises for the relevant period, as a house,except for the year of assessment 1966 when it was described asa store. Therefore it is no wonder that in the case No. DC Colombo53744/M filed by the 9th respondent against Mohanam, seekingrecovery of arrears of rent and her ejectment under the former RentRestriction Act, the premises were described as a residential premisesand that is not a decisive factor in determining the predominantpurpose to which the premises were used. That action was pendingwhen the Rent Act, No. 7 of 1972 came into operation and by virtueof section 47 of that Act (except for the recovery of arrears of rent)the proceedings for ejectment became null and void.
Mohanam as the tenant of the premises made an application tothe Rent Board to determine the authorized rent, probably in 1962,on the basis that the premises were not residential premises. Thatapplication was made because in 1961 and 1962, the annual valueof the premises was assessed at Rs. 2,385 and if they were residentialpremises, the annual value being over Rs. 2,000 for the time being,they became excepted premises, as the law stood at that time; andthe tenant could not have sought the protection of the Rent RestrictionAct from the jeopardy of being evicted under the common law. Thedecision of the Rent Board of Review 9R10 dated 17.6.63 clearlyindicates that it was contended for Mohanam that the premises werebusiness premises while it was contended on behalf of the 9threspondent that they were excepted premises and therefore inferen-tially residential premises. In my view those proceedings too are notdecisive of the question in hand. The tenant was manoeuvring to seekcover under the Rent Act inasmuch as the landlord was manoeuvringto get her out of that protection.
There is no doubt that part of the premises were used for therunning of money lending business in the name of "Lakshmi Nilayam"continuously from the year 1949. The evidence reveals that appellantand his wife were not destitute tenants but between them were ownersof several residential premises. In the year 1965, apparently, the 9threspondent wrote to Mohanam that she was violating the contract oftenancy by using the premises for the money lending business.Although that letter was not produced, the letter dated 1st March, 1965sent by Mohanam in reply was produced marked 9R4. Relevant partsof that letter read as follows: "It is absurd to suggest to me that
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there was any agreement regarding the purpose for which thesepremises to be used when they were let to me by the Trustee ofthe new Kathiresan Temple or at any subsequent stage. I emphaticallydeny that the premises were or are residential premises within themeaning of the Rent Restriction Act. The premises are protectedpremises and I am entitled to the protection of the Rent RestrictionAct. It is idle for you to state that I am endeavouring to use the saidpremises for the purposes of business. A money lending businesshas been carried on in the said premises from 1947 to your knowledge.Messrs. Sankara Iyer were also using the said premises for business. . . These premises are situated in a commercial area and arebusiness premises and have always been assessed to your knowledgeas such. The municipality and its witnesses admitted this fact in Court".
That reference to the. admission made by witnesses in Court inthat letter pertains to the proceedings in the action No. DC Colombo57107/M. That action was filed by Mohanam against the MunicipalCouncil, Colombo, complaining that the assessment of the annualvalue of the premises for the year 1962 was excessive and unrea-sonable. The proceedings of that case to my mind, unequivocallysuggests to what predominant purpose to which the premises wereused.
According to the Licensed Surveyor who gave evidence in thoseproceedings, the ground floor area of the premises was 1,864 squarefeet while the area upstairs was 605 square feet. The present appellantgave evidence on behalf of his wife in those proceedings. He statedthat the premises in question which is situated in the commercial zonehas been designed for business purposes and not for habitation. Theentire premises had one tap and one water closet. It was his testimonythat the premises were chiefly used as business premises and thatit was necessary for business purposes for him to remain in that areaThe money lending section and the office room occupy the entiredownstairs area except the kitchen and the water closet. He categori-cally stated that two-thirds of the premises was used for businesspurposes. The surveyor's evidence too corroborated that fact.
The case No. DC Colombo 57107/M was settled as evidenced bythe document marked 9R2 in January, 1965 and the first two pointsof settlement read as follows:
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(1998) 1 Sri LR.
It is agreed between the plaintiff and the defendant that thepremises in question are situated in an area used mainlyfor commercial purposes.
From and before 1941 the defendant found that the saidpremises was (s/c) used as a money lending business placeand residence and the premises in question have beenassessed on the footing that it was a house used for businesspurposes.
For the above reasons I hold that there was ample evidence tojustify that the premises in suit was used mainly for a purpose otherthan a residential purpose during the relevant period and theoccupation of the appellant and Mohanam of the premises as aresidence was incidental. In view of this finding that the premises insuit is not a house within the meaning of the CHP Law, it would befutile to decide the other two matters on which leave to appeal wasgranted. The appeal is dismissed with costs fixed at Rs. 10,000.
AMERASINGHE, J. – I agree.
ANANDACOOMARASWAMY, J. – I agree.
Appeal dismissed.