035-NLR-NLR-V-60-D.-A.-SENANAYAKE-Appellant-and-THE-URBAN-COUNCIL-GAMAPAHA-Respondent.pdf
SANSONI, J.—Senanayake v. Urban Council, Gampaha
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1958 Present; Sansoni, J., and H. N. G. Fernando, J.D. A. SENANAYAKE, Appellant, and THE URBAN COUNCIL,GAMPAHA, Respondent
S. G. 818—D. C. Gampaha, 5,039
Bent Beslriction Act, No. 29 of 1948—Section 6 (1) (b)—Permitted increases of rent—Distinction between improvements and repairs.
A test- by which an improvement may be distinguished from a repair withinthe moaning of section 6 (1) (6) of the Rent Restriction Act is : “If tbe workwhich is done is the provision of something new for the benefit of tbe occupier,that is properly speaking an improvement; but if it is only the replacement ofsomething already there, which has become dilapidated or worn-out, thenalbeit that it is a replacement by its modem equivalent, it comes within thecategory of repairs and not improvements
.i^^.PPEAL from a judgment of the District Court, Gampaha.
Colvin B. de Silva, with G. G. Weeramantry, M. L. de Silva, E. B.
Vannitamby and H. Ismail, for the defendant-appellant.
Wanigatunga, with B. D. B. Jayasekera, for the plaintiff-respondent.
Gur. adv. mlt.
October 27,1958. Sansoni, J.—
The plaintiff Council took on rent certain premises from the defendantto serve as its office at an agreed rent of Rs. 75 a month. It now suesthe defendant to recover a sum of Rs. 842/88 being the difference betweenthe agreed rent which was paid to the defendant and what it claims to
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SANSONI, J.—SenanayaJce v. Urban- Council, Gampaha
have been the authorised rent of Rs. 38/88. The defendant in his answerpleaded, among other defences, that he had not received from the plaintiffanything in excess of what he was entitled to recover, and that the plain-tiff has failed, when computing the authorised rent, to take into accountthe value of the improvements effected to the premises since 1941.
The substantial question we have to determine is whether any increaseof the authorised rent was permitted in terms of section 6 (1) (b) <f theRent Restriction Act, No. 29 of 1948, which reads : “ Where the landlordof any premises has, since the date by reference to which the standardrent of the premises is determined for the purposes of this Act, incurred,or hereafter incurs, expenditure on the improvement or structural alt; ra-tion of the premises (not including expenditure on decoration or ropers),the standard rent per annum may be increased by an amount calculatedat a rate not exceeding six per centum of the amount so expended ”.The case for the defendant was that a sum of Rs. 15,000 approximatelyhad been spent by him in 1943 in improving the premises. Tho workdone on the house is said to have consisted of replacing rafters and ivperson the roof and tiling it where it was thatched ; fixing gutters, becausethe thatched roof needed no gutters unlike a tiled roof; fixing a r edingwhere there was no ceiling; and cementing the floor which wr.s notcemented except for the floor of the hall. The garden which was un-fenced before was also said to have been improved by the erection .4 abarbed-wire fence on wooden posts, and the erection of a gate. Finally,the level of the garden was raised with gravel in order to prevent it gettingwater-logged. There are certain other items of work such as new doorsand windows, and the plastering and whitewashing of the walls, but theseitems are so clearly in the nature of repairs that I need not refer to themagain. According to the writing D3 which contains various items ofwork and their cost, these particular repairs would not have accountedfor more than a sum of Rs. 1,500.
It would have been better if the learned District Judge had found onthe facts what items had been done or not done, and what he would haveallowed in respect of those items which had been done. I gather from areading of his judgment that he was prepared to hold that approximatelyRs. 15,000 had been expended, and since he does not reject any particularitem it seems to me that he has accepted the defendant’s case to theextent of holding that work costing about Rs. 15,000 was done. Theonly question for decision is how much of that work is “ improvements ”and how much “ repairs ”. Rejecting as I do the items relating to thedoors and windows, plastering and white-washing which totalled aboutRs. 1,500 I have to consider whether any of the remaining items can beconsidered to be an improvement.
The question of the distinction to be drawn between improvementsand repairs has been considered by the Court of Appeal in England andthe most recent authority to which we have been referred is Mdream v.Campbell-Johnsonl. The statutory provision considered in that case
1 (1956) 1 Q. B. 106.
SANSONI, J.—iSenanayake v. Urban Council, Gampaha
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was section 2 (1) of the Increase of Rent and Mortgage Interest (Res-trictions) Act of 1920 which reads: “ The amount by which the increasedrent of a dwelling-house to which this Act applies may exceed thestandard rent shall, subject to the provisions of this Act, be as follows,that is to say: (a) Where the landlord has since September 2nd, 1039,incurred, or hereafter incurs, expenditure on the improvement or struc-tural alteration of the dwelling-house (not including expenditure on deco-rat ion or repairs) an amount calculated at a rate per annum not exceedingeight per cent, of the amount so expended”.
Three items of work had been done on a block of flats and the questionwa.; whether they came within the description of improvements or re-pairs. The first item was the drainage system. In place of a 60-year oldtwo-pipe system which had come to the end of its life, the landlordinstalled a modern one-pipe system. The second item concerned thecold water supply. In place of six worn-out water tanks, one large newwater tank was installed. The third item was the lowering of the areawhich had been made higher than the damp course when the flats werebuilt. This resulted in water collecting in the area and percolatinginto the walls, and in order to avoid this trouble the area was lowered.In considering these matters the Court attempted to lay down a test bywhich an improvement may be distinguished from a repair and Denning
J. said : “ It seems to me that the test, so far as one can give any testin these matters, is this : If the work which is done is the provision ofsomething new for the benefit of the occupier, that is properly speakingan improvement; but if it is only the replacement of something alreadythere, which has become dilapidated or worn-out, then albeit that it is areplacement by its modern equivalent, it comes within the category ofrepairs and not improvements The Court held that all three itemsfell within the category of repairs. There was no difficulty with regardto the drainage system and the cold water supply. The more modemsubstitute merely took the place of what had stood there for many yearsand needed replacement. The lowering of the area was a more difficultquestion, and as I understand the judgments of Denning L.J. andHodson L.J. this item was also disallowed because, under the section,the expenditure has to be on the improvement or structural alteration■of the dwelling-house, and the area was outside the body of the flats.
In other respects I think the judges took the view that the work was animprovement. Such a view would be in accord with an earlier judgmentof the Court of Appeal in Wales v. Rowland1 where a new concrete bedput into a house before a new floor was laid on it was held to be animprovement.
Applying the same test and reasoning I would say that the erection of anew barbed-wire fence on wooden posts and a new gate with concreteposts, where there was no fence or gate before, is clearly an improvement.Again, putting in a new ceiling and cementing floors, where there was noceiling or cemented floors before, also amounts to an improvement.With regard to the raising of the level of the ground also I do not considerthat a repair, and it may be equated to the loweringof the area in the case
1 {1952) 2 Q. B. 12.
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K. D. DE SILVA, J.—Cyril de Silva v. Azeez
cited. It is not a case of something dilapidated or worn-out beingreplaced ; instead of a compound which got water-logged the t enant hadthe benefit of one which was free from that defect. Lastly, in place ofthe roof which was previously a cadjan roof a new tiled roof with newtimbers was built. It is not that the roof was defective or needed repairs ;nor can it be said that the tiled roof is the modern equivalent of a cadjanroof, for they have co-existed for many years.
I think therefore that the learned Judge was in error in characterisingthese items of work as repairs. Since an expenditure of Rs. 7,500 wouldhave sufficed to justify the increase of rent from Rs. 39/88 to Rs. 75 thedefendant has proved that the increase was permitted by the Act.
I would therefore set aside the judgment appealed from and dismissthe plaintiff’s action with costs in both Courts.
H. N. G. Fernando, J.—I agree.
Appeal allowed.