096-NLR-NLR-V-69-U.-N.-WIJETUNGE-Appallant-and-J.-SENANAYAKE-and-another-Respondents.pdf
SAMERAWICKRAME, J.-—Wijetunge v. Senanayake
445
1967Present: Manicavasagar, J., and Samerawickrame, J.U.N. WIJETUNGE, Appellant, and J. SENANAYAKE and another,
Respondents
S. C. 653164—D. 6. Kandy, 7179
Rent Restriction Act—Excepted premises—Schedule, Regulations 1 and 2—Annualvalue—Significance of date of institution of action—Sections 2 (4), 2 (5), 10,13 (1), 27.
Where a landlord seeks to eject his tenant and the question for determinationis whether the premises let are excepted promises within the meaning ofregulation 2 of the Schedule to the Rent Restriction Act, the relevant annualvalue is what it is at the time of the institution of the action and not what itwas at the time when the premises were let.
A.PPEAL from a judgment of the District Court, Kandy.
H. W. Jayewardene, Q.C., with A. K. Premadasa and D. S. Wijewardene,
for defendant-appellant.
C. Ranganalhan, Q.C., with I. S. de Silva, for plaintiffs-respondents.
March 15, 1967. Samerawickrame, J.—
Cur. adv. vult.
In this appeal, the defendant-appellant submits that the premises insuit were not excepted premises within the meaning of the RentRestriction Act and that he was, therefore, entitled to the protectiongranted to tenants under the said Act.
Section 2 (4) of the Rent Restriction Act provides tffat where an Actis in operation in any area, it should apply to all premises in that areanot being excepted premises. Section 2 (5) provides that the regulationsin the schedule should be applied for the purposes of determining thepremises which shall be excepted premises for the purposes of this Act.
Prior to an amendment in the year 1953, Regulation 1 of the Schedulestated “ annual value ” means the annual value of the premises asassessed for the purposes of any rates levied by any local authority underany written law during the month of November, 1941. By Regulation 2,premises were excepted premises if being premises of the descriptionmentioned in Column 2, the annual value thereof exceeds the amountstated in it. In Column 2 premises are described' as (a) residentialpremises, (b) business premises. By Act No. 6 of 1953, Regulation 1 asit appeared before was deleted and Regulation 2 reads as follows :—“ Any premises (other than premises referred to in Regulation 1) situatedin any area specified in column 1 hereunder shall be excepted premisesfor the purposes of the Act, if being premises of the description mentionedin column 2, the annual value thereof as assessed for the purposes ofany rates levied for the time being by any local authority under anywritten law exceeds the amount specified in the corresponding entryin column 3.”
446
SAMERAWICKRAME, J.—Wijetunge v. Senanayake
The premises in question are situated within the limits of the MunicipalCouncil of Kandy and, at all times relevant to this action, had beenbusiness premises. The annual value of these premises was assessedfor the purposes of rates by the Municipal Council of Kandy as follows :—
In 1945 they were assessed at Rs. 4,000.
In 1946 the assessment remained the same.
In 1947 they were assessed at Rs. 4,400.
In 1963 they had been assessed at-Rs. 4,400.
Business premises situated within the area of the Municipal Councilof Kandy are excepted premises if the annual value exceeds Rs. 4,000.
The defendant-appellant submits that the relevant annual value isthat for the year in which the premises were let. The plaintiff-respondentcontends that the relevant annual value is that at the time of theinstitution of the action. The letting had been in 1946 and the actionwas filed in 1963.
Prior to the amendment in the year 1953, it is clear that the relevantannual value was that which prevailed in the year 1941 for that wasexpressly provided in Regulation 1 as it then stood. After the amendmentto the Schedule, the annual value as assessed for the purposes of anyrates levied for the time being by any local authority under any writtenlaw is referred to. The words “ for the time being ” means, in my view,the relevant time or the time with reference to which the question thathas been raised is to be determined. The matter for determination inthis action is whether the plaintiff was precluded from instituting thisaction by reason of the provisions of Section 13 (1) of the Rent RestrictionAct for the reason that the premises in suit were premises to which theAct applied. The relevant time or the time with reference to whichthe question that has been raised in this action is to be determined,is therefore, the time of the institution of the action. I am, therefore,of the view that it is the assessment at the date of the institutionof the action : namely, the 29th May 1963, that has to be looked at.Assessment at that date was Rs. 4,400. Applying the provisions ofparagraph 2 of the Schedule, the premises are excepted premises.
Mr. H. W. Jayewardene, Q.C., appearing for the defendant-appellantreferred to the definition “ residential premises ” in section 27 ; in thatSection, residential premises are defined as “ ‘ residential premises ’ meansany premises for the time being occupied wholly or mainly for the purposesof residence”. He submits that the words ‘for the time being’ in thatprovision have to be given the meaning of the time of the letting asotherwise it would be open to a tenant to change the character of thepremises from residential premises to business premisss or vice versa,by reason of the use to which he puts the premises. He referred alsoto a judgment of Sinnetamby J. in Muttucumaru v. Corea1 in which
1 (1955) 59 A . L.X. 525.
SAMERAWICIvRAME, J.—Wijetunge v. Senanayake
447
it was held that in determining a question whether premises are residen-tial premises or not, it has to be decided with reference to the positionat the time of the letting of the premises. Mr. Jayewardene, therefore,submitted that the words ‘ for the time being ’ in paragraph 2 of theSchedule should be given the same meaning as has been given to it inthe definition of residential premises in Section 27. It is to be noted thatin his judgment, Sinnetamby J. while holding that ‘ for the time being ’in the definition of residential premises in Section 27 meant the timeat which the premises were let, nevertheless held that in paragraph 2 ofthe schedule the words ‘ for the time being ’ should be taken as referringto the time of the institution of the action. Further, while it is desirablethat an expression used in an Act should have the same meaningwherever it appears, it is not imperative that it should have that samemeaning. Even where an expression is defined in a defining Section,the Section usually contains the words “unless the context otherwiserequires ”. In this matter, the words ‘ for the time being ’ have not beendefined. It is, therefore, open to a Court to give it the meaning whichappears to be called for in the context.
Although Sinnetamby J. has stated that the question whether thepremises are residential premises or not should be decided with referenceto the position at the time of the letting of the premises, it appears tome that it may be more correct to state that the question is to bedecided with reference to the date of the institution of the action but indeciding that question, reference may have to be made to the positionat the time of the letting for the reason that it would not be open to atenant by unilateral action to change the character of the premises.This is expressly prohibited and illegal in view of Section 10 of the RentRestriction Act and it would also be unlawful under the Common Lawin the case where tenancy is not covered by the Act. Accordingly, onthe principle that a party cannot take advantage of his own wrong,any change in the character of the premises made either illegally orunlawfully by the tenant after the date at which the premises were letto him will have to be ignored and cannot be relied upon by him tosupport a contention that the premises are protected by the RentRestriction Act. For the purpose of this appeal, however, it is notnecessary to decide that matter.
I accordingly hold that the learned District Judge has come to acorrect decision on this matter. His judgment is affirmed and theappeal is dismissed with costs.
ManicavasagAit, J.—I agree.
Appeal dismissed.