096-NLR-NLR-V-72-T.-W.-CHARLES-SILVA-Appellant-and-Mrs.-D.-C.-MANCHANAYAKE-Respndent.pdf
440
■Charles Silva t>. Mancha nayahe
1969Present: Siva Supramaniam, J.
T.W. CHARLES SILVA, Appellant, and Mrs. D. 6. MAECHANAYAKE,RespondentiS'. C. 125166—0. R. Colombo, 00762
Rent Restriction Act {Cap. 271), as amended by Act jVo. 12 of 19GG—Sections 9,12 A, 13,23—Sub-letting of rented premises—1 Yord "premises ” in s. 12 A (b) includes“part of the premises ”—Rent Restriction (Amendment) Act, No. 10 of '1961.,s. 11—Servitude—Jus superficiarium.
If a tenant of premises to which section 12 A of the Rent Restriction Actapplies sublets a part of the premises without the written authority of tholandlord, he is liable to be ejected from the premises.
A tenant of premises governed by section 12 A of tho Rent Restriction Acterected, with the consent of tho landlord, certain temporary buildings on tholand which formed part of the premises and let thoso buildings to a thirdparty S without tho landlord’s written authority. During the period of thotenancy, tho local authority assessed separately for rating purposes thetemporary buildings and the land on which they stood. The rates in respect ofthe newly assessed buildings were paid by the tenant and not by tho landlord.
SIVA SUPRA MAN I Ail, J.—Charles Silva v. Hanchanayake ,441
Held, (i) that it could not be contended that -what was let by the tenant to Swas a jus supcrjiciarium.
(ii) that, despite tlio variation of language between section 9 (1) and section12 A (6) of the Rent Restriction Act, tho latter section prohibited thosubletting not only of the entirety of tho premises let but also of part of thopremises. Therefore, when tho tenant lot the temporary buildings, he necessarilylet also the land on which tho buildings stood, and that land was unquestionablypart of tho premises of which ho was tenant. He wa3 thus liablo to be ejectedon the ground of subletting.
Appeal from a judgment of tho Court of Requests, Colombo.'
H. IV. Jayewardene, Q.C., with P. Nagendran, B. Elialamby and
M.Devasagayam, for tho defendant-appellant.
C. Ranganathan, Q.C., with D. T. P. Rajapakse, for the plaintiff-respondent.
Cur. adv. vult.
July 31, 1969. Siva Supramaniam, J.—
The question that arises for decision on this appeal is whether a tenantof rent controlled premises, the standard rent of which does not exceedRs. 100 per month, who, after erecting with the consent of the landlord,certain temporary buildings on the land which forms part of the saidpremises lets those buildings to a third party without the landlord’swTitten authority is liable to ejectment on the ground that he has subletthe premises in terms of S. 12 A of the Rent Restriction Act (Cap. 274)as amended by Act No. 12 of 1966.
The defendant took on rent from the plaintiff’s husband premisesNo. 46 (renumbered later as No. 12S), Subadrarama road, Nugegoda,which consists of a tiled house and land appurtenant thereto at a monthlyrental of Rs. 20. The defendant erected on the appurtenant land, withthe permission of the plaintiff’s Jiusband certain temporary buildings.'The defendant undertook to demolish the said buildings on terminationof the tenancy and to remove the materialswitbout causing any damageto the land. On the death of the plaintiff’s husband, the defendantbecame the tenant of the plaintiff on the same terms and conditions.
During the pendency of the tenancy, the local authority assessedseparately for rating purposes the temporary buildings and the land onwhich they stood and numbered that portion as No. 128/1. The ratesin respect of No. 12S/1 were paid by the defendant while the plaintiffcontinued to pay the rates in respect of No. 128. It is admitted that thedefendant, without the consent of the plaintiff, gave on rent the portionnumbered 128/1 to one Subramaniam at a monthly rental of Rs. 90 andthat Subramaniam continued to be the tenant of that portion even after■the elate of the commencement of the instant case.
442.SIVA SUPBAMAXIA1I, J.—Charles Silva v. Manchnnayake
The plaintiff’s case is that the defendant sublet the premises of whichhe was the tenant without her written consent and is consequentlyliable to be ejected therefrom in terms m 3. 12A of the Act-. The word“ premises” was not defined in the Act- as it originally stood but by anamendment effected by S. 11 of the Rent Restriction (Amendment) ActNo. 10 of 19G1, it was defined as follows :—
“Premises mean any building or part of a building together with theland appertaining thereto. ”
It was submitted by Mr. Jayewardenc that the buildings which borethe assessment No. 12S/1 were erected by the defendant at his own expensewith the permission of the plaintiff and what was let to Subramaniamwas the right of a superficiary and that there was no subletting of thepremises of which the defendant was the tenant. Jus superficiariumi3 a servitude recognised by our common law. Quoting Grotius 2. 4G. 9.Layard C.J. in Ahamado Nalckie v. Muhamadu Natcliie1 explained theright as follows :—
“ The jus superficiar iu in is the right which a person has to a building
standing on another’s groundIt is the right to build on the soil
and to hold and use the building so erected until such time as the ownerof the soil tenders the value of the building, if the amoiuit to be paidhas not been previously agreed upon. ”
Lraseelles C.J., commenting on this right, stated as follows in the samecase when it came up on appeal after a retrial :—
“ It is, however, .clear that agreement between the landowner and theperson who acquires the right is the foundation of the right. Yoet 43,17 defines “ superficies ” as denoting things such as trees, plants andcspeciallj’ biiildings, growing or built on the surface of the soil whichanyone has erected on land belonging to another with the consentof the owner on the condition that he may keep them in perpetuity orfor a considerable period and generally on pa3*ment of rent. ”
It is unnecessary for the decision of this case to consider the questionwhether in Ceylon the servitude of jus superficiarium can be created. otherwise than by a notarial agreement.
The permission that is'granted by a landlord to a tenant to erect-atemporary building on a land which is the subject matter of the tenancy,subject to the condition that the building is dismantled on the terminationof the tenancy and the materials arc removed, is not jus superficiarium.The nature of the permission in such a case negatives the grant of a rightto the builder to remain in possession of the building in 2>crpctuity or fora considerable period or until the owner tenders tlie value of thebuilding. The submission, therefore, that what was let by the defendantto Subramaniam was ihc jus superficiarium must fail.
1 {1005) S N. L. if. 330 at p. 331.
SIVA S U P R AMA XI AM, J.—Charles Silca v. Alanchanayalce443
It is common ground that the defendant did not sublet the entirety ofthe premises of which he was the tenant. But when he let the temporarybuildings, he necessarily let also the land on which the said buildings stood,,and that land was unquestionably part of the “premises ” of which hewas the tenant under the plaintiff. The question, then, is whether thesubletting by the tenant of a part of the premises without the writtenauthority of the landlord entitles the latter to institute an action forejectment of the tenant. S. 12A of the Act permits a landlord toinstitute an action to eject the tenant of any premises the standard rentof which for a month does not exceed one hundred rupees where “ suchpremises have been sublet without the written authority of the landlordof such premises ”. Mr. Jayewardenc submitted that it is only wherethe entirety of the premises have been sublet that the landlord has a rightof action, as the words “ such premises ” in S. 12A do not include “ partof the premises He argued that since S. 9 of the Act which imposes ageneral prohibition on subletting by a tenant without the authority ofthe landlord specifies “ the premises or any part thereof ”, thejegislaturemust have deliberate^ intended to exclude the subletting of a part of thepremises from the ambit of the prohibition in cases where the standardrent does not exceed Rs. 100 per month. In further support of the argu-ment it was said that S. 12A was enacted to give additional protection totenants of small premises and that, therefore, the legislature had inten-tionally narrowed down the grounds for ejectment by omitting certaingrounds applicable to other premises under S. 13. The question, then,is whether the legislature, by implication, intended to permit tenants ofpremises to which S. 12A applies, to sublet part of the premises, despitethe express prohibition contained in S. 9 (1) against the subletting of anypart of any premises to which the Act applies.
If a prohibition is imposed on alienation by way of sale, gift or leaseof any premises, such prohibition would ordinarily apply to alienation ofany part of the premises. If the provisions of S. 12A had been containedin an independent statute and not in an amending Act, there would havebeen little room for the argument that the prohibition against sublettingdoes not apply to the subletting ol a part of the premises. The difficultyin the present case arises from the fact that there is a variation of languagebetween the principal Act and the amending Act and according to theordinary canons of construction, the variation vould be deemed to havebeen made deliberately.
S. 9 (1) of the Act prohibits the subletting by the tenant without thewritten consent of the landlord of the whole or any part of any premisesirrespective of tho rental value and under S. 23 a contravention of theprohibition constitutes an ofienco. Mr. Rauganathan submitted thatS. 9 (1) has not been repeated by any provision in the amending Act andthat it would bo unreasonable to impute to the legislature an impliedintention to permit under S. 12A (d>) what had been prohibited underS. 9 (1) . Mr. Jayewardene, however, argued that subsections (1) and (2)of S. 9 refer to " any premises or any part thereof” and if the legislature
444SIVA SUPRAMANIAM, J.—Charles Silva v. Manchanayake
intended S. 12A (6) also to apply to the whole or part of tho premises,S. 12A (b) was superfluous as S. 9 (1) and (2) would have covered the case.He submitted that tho legislature would not have enacted a superfluousprovision of law.
S. 12A is so framed as to categorise all the circumstances under which alandlord may institute an action to eject his tenant, in cases where theauthorised rent of the premises does not exceed Rs. 10U per month. Thosection provides that unless anyone of those circumstances' is present,no action may be instituted by the landlord ‘'notwithstanding anythingin any other law ”. If, therefore, the provision relating to sublettinghad not been included in S.12 A, it could have been contended that sub-letting was not a ground for ejectment in respect of premises to whichS. I2A applied. Hence the contention of Mr. Jayowardene that ifMr. Rangaaathan’s argument is accepted, S. 12A would be a superfluitycannot prevail.
The best way to find out the intention of the legislature is to examinein what sense the word “ premises ” has been used in other similar clausesof the same section. S. 12A (c) authorises an action where " such pre-mises have been used by the tenant thereof or by any person residing orlodging with him or being his subtenant for an illegal or immoral purpose”.Can it be argued that the use of a part of the premises for an illegal orimmoral purpose will not entitle the landlord to institute an action?Obviously, in this clause the word “premises” includes “part of thepremises Similarly S. 12A (d) authorises an action where “ wantondestruction or wilful damage to such premises has been caused by the
tenant thereof or” Does it mean that the landlord should wait
till wanton destruction or damage is caused to the entirety of the premisesbefore he can institute an action ? Obviously, in this clause too the word“ premises ” includes “ part of the premises ”. The legislature could nothave intended the word “ premises ” to include “ part of the premises ”in clauses (c) and (d) but to exclude “ part of the premises ” in clause (6).
It is therefore reasonable to hold that despite the variation in languagebetween S. 9 and S. 12A, the legislature intended the word “ premises ”to include “ part of the premises ” in S. 12A (6). As Maxwell (Interpre-tation of Statutes, 11th Edition, p. 3IG) says : “Though the statute is thelanguage of the three estates of the realm, it seems legitimate in con-struing it to take into consideration that it may have been the productionof many iniiids and that this may better accouut for any variety of styleand phraseology which is found than a desire to convey a differentintention. ”
I am therefore of opinion that a tenant of premises to which S. 12Aapplies who sublets a part of tho premises without the written authorityof his landlord is liable to be ejected from the premises.
I dismiss the appeal with costs.
Appeal dismissed.