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Present: Drieberg J.
DE SILVA v. GOVERNMENT AGENT, WESTERNPROVINCE.53—C. R. Kalutara, 11,055.
Police tax—Assessment of premises—Annual value—Objection toassessment—Regularity of tax—Action under section 40 —Ordinance No. 16 of 1865, s. 34.
An action brought under section 40a (1) of the Police Ordinanceby a person, aggrieved by the decision of the Government Agentwith regard to an assessment, must be limited to the questionof the annual value of the premises concerned.
It is not open to the plaintiff in such' an action to questionthe regularity of the police tax on the ground that the provisionsof section 34 of the Ordinance have not been complied with.
PPEAL from a judgment of the Commissioner of RequestsKalutara.
F. de Zoysa, K.C. (with Navaratnam), for plaintiff, appellant.
. J. E. M. Obeyesekere, C.C., for defendant, respondent.
September 25, 1928. Driebekg J.—
The appellant is the owner of a house in Kalutara and he wasserved with a notice in the form C under section 40 of the PoliceOrdinance of 1865 that the annual value of his house had beenassessed at Rs. 215 and that the police tax due for it was Rs. 912a year.
The appellant stated in his plaint that on receipt of the noticehe objected to this demend on the followiug grounds :—
(<7.) The percentage payable on the bona fide annual value of theproperty in question has not been duly proclaimed asrequired by section 34 of Ordinance No. 16 of 1865.
(b) The tax as assessed will in the aggregate exceed the sumnecessary for the inaintenence of the Police Force setapart for the protection of the persons and property ofthe inhabitants of Kalutara town.
(r) No Committee of assessors has been appointed accordingto the provisions of sections 5 and 6 of Ordinance No. 7of 1866 (as amended by Ordinance No. 19 of 1921) andno assessment has been made as required by sections 27and 28 of the Police Ordinance.
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De Silva v.GovernmentAgent,
(id) As the requirements of the law relating to the assessment .. and levy of the police tax have not been complied withthe present assessment of it and its levy will be illegal.
(e) The assessment is excessive.
He also says that the Government Agent inquired into theseobjections and on April 2, 1927, overruled them. He then proceedsto allege that “ by reason of the above premises an action hasaccrued to the plaintiff under section 40a of the Police Ordinanceto sue the defendant for a declaration that the said tax is illegaland that the plaintiff is not liable to pay same.” His prayer isfor a declaration that on the grounds set out in his objectionsthe police tax is illegal and that he is not liable to pay the same.
Many issues have been framed in this case and evidence led onthem, but in my opinion the action should have been dismissedon the objection taken in the answer that the action was notmaintainable against the defendant-respondent. I take this tomean that this being an action brought for the purpose of having itdeclared that the levy of the police tax is illegal on the groundalleged, namely, that the Governor in Executive Council has notcomplied with the requirements of section 34, it must necessarilybe an action against the Crown and the party defendant must bethe Attorney-General.
The only ground alleged for suing the Government Agent is thatthis is a statutory action allowed against him under section 40a (1).
Section 37 of the Ordinance provides that a committee o^assessors should proceed to inquire into and determine the bona fide.annual value of all houses, buildings, lands and tenements in atown, and “ the tax hereby imposed on or payable for the same.”After this assessment a notice in the form C is served on the ownerin which he is informed what the annual value has been assessed atand what the amount of the tax payable quarterly amounts to.Section 40 (2) requires that the notice should state that “ writtenobjections to the assessment ” will be received within a certaintime and at a certain place stated in the notice. Section 40 (4)empowers the Government Agent to inquire into any objectionsso made and to make orders thereon.
Section 40a (1) provides that “ If any person is aggrievedby the decision of the Government Agent with regard to theassessment of any house, building, land, or tenement, he maywithin one month of receiving the notification of the GovernmentAgent’s decision under the last preceding section institute anaction objecting to such decision in the Court of Requests havingjurisdiction in the place where such house, building, land, ortenement is situate, if the amount of the rate or rates on the annualvalue of such house, building, land, or tenement does not exceed
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three hundred rupees, and in the District Court having suchjurisdiction where such amount exceeds the sum of three hundredrupees.”
Further provision is made in section 40a for the trial of thisaction, which is limited, except with special leave of the Court,to the written objections tendered to the Government Agent.
It is.not easy to see how the present action can possibly beregarded as one brought under section 40a (1). It is true thatone of the grounds of objection was that the assessment wasexcessive, but this was a pure formality. There is no avermentof what the appellant says is the true annual value, no claim thatthe assessment be reduced to it, but on the other hand the claim isthat the levy of the tax itself is illegal.
The ground on which it is sought to enlarge the scope of thestatutory action is that as the notice C issued under section 40states not merely the assessment of the annual value but also theactual amount payable by way of tax, the objections allowed bysection 40 (2) can extend not merely to the assessment of theannual value but also to any objection which can be taken to thepayment of the sum mentioned. It is sufficient to say thatsection 40 (2) in express words limits the objections to the assess-ment and that section 40a (1) allows an action to any one aggrievedby the assessment.
The notice in form C states the annual value and gives thearithmetical result of the amount due on that value at the rateauthorized, but the Government Agent and the assessors havenothing to do with the rate which is fixed by the Governor withthe advice of the Executive Council.
The real grounds oh which the appellant desires a declarationthat the tax is illegal are as follows :—Section 34 of the Ordinanceenacts that the tax should be levied at a rate which the Governor,■with the advice' and consent of the Executive Council, shall byproclamation “ from time to time appoint.” This rate was lastfixed at 4| per cent, and proclaimed on August 3, 1886, and isstill in force. It is contended that the provision for determiningfrom time to time implies that it should be revised. No furtherproclamation, however, of the rate would be necessary unless therate was altered, and this has net been done.
The other ground arises from the fact that the Police Force inKalutara town is maintained for the joint purposes of the townand the adjoining district. In such a case the Governor in theExecutive Council is required by section 34 to determine fromtime to time what proportion of the expenditure on the policehas to be met by the tax. The appellant says that this has notbeen done and that the levy is therefore illegal.
De Silva v.GovernmentAgent,
De Silva v.GovernmentAgent,
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It appears that the cost of the Police Force at Kalutara in' 1927was Rs. 20,574*84 and that the amount of the police tax for thatyear could not exceed Rs. 14,547*08. It follows therefore that thecost of maintaining the force does dot fall solely on Kalutara townand that part of the cost is paid out of another fund which, I take it,is the general revenue of the .Colony, and there is thus an apportion-ment of the liability. Whether the apportionment is fair orwhether, if it is not, any relief can be obtained in a Court of laware questions which cannot be considered in such an action as this.
It will thus he seen that this action is in no way concerned withthe assessment of the annual value of premises, but is broughtfor the purpose of questioning the legality of certain acts of theGovernor in Executive Council.
The issue suggested by respondent’s counsel on the objectiontaken in the answer to the action being against the GovernmentAgent was not included in the issues subsequently framed andaccepted by both sides, but the Commissioner appears to havehad it in his mind in referring to the case of Horsfall v. The Qveen’sAdvocate,1 I should, however, have been obliged to pass the samejudgment even if no reference to this point had been made by therespondent, for the Court cannot allow a statutory action for anyother than the purpose for which it was created. The appellantwas unable to justify this action being brought against theGovernment Agent except as an action under section 40a (1).
The appeal is dismissed with costs.
» -5 S. C. C. 101.
DE SILVA v. GOVERNMENT AGENT, WESTERN PROVINCE