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Present: Fisher C. J. and Drieberg J.
MARIKAR BAWA «. MUNICIPAL COUNCIL,COLOMBO.1828,
17—D. C. Colombo, 20,091.
Assessment—Appeal from decision of the Chairman of MunicipalCouncil—Burden—Municipal Councils Ordinance, No. 6 of1910, s. 124.
Where a person who is aggrieved by the decision of the Chairmanof the Municipal Council with regard to an assessment institutesan action under section 124 of the Municipal Councils Ordinance,—Held, that the onus was on the plaintiff to show that the assess-ment was unreasonable.
A PPEAL from a judgment of the District Judge of Colombo-The facts appear from the judgment.
Hayley, K.C. (with Keuneman), for defendant Council, appellant.
H. V. Perera (with Nagalingam and Marshalpulle), for plaintiff,,respondent.
September 21, 1928. Fishes C.J.—
In this case the Municipal Assessor assessed the annual valueof the respondent’s premises at Rs. 6,250. The premises, whichare occupied by the respondent, are situated in an essentiallyshopping and business area and are used for carrying on the businessof a jeweller and silk vendor. They occupy a position on whatis said to be the better side of Chatham street to which passengersare wont to go for the purpose of making purchases. The shopfront is especially imposing and attractive. The floor area ofthe. shop proper is extensive, and altogether the evidence goesto show that the premises constitute a high class and commodiousshop such as is very likely tp catch the attention and thereforethe custom of a large and lucrative class of customers.
It was urged that the system adopted by the Assessor for thepurpose of making his assessment, a system which appears to bein vogue to a large extent in similar areas in Great Britain, wasfallacious and misleading, and no doubt the conditions in thestreet in which these premises are situate make it somewhat difficultfor a satisfactory average to be struck ; but we are concerned withthe conclusion arrived at.
There are in this case shops which are similar to some extentwith which a comparison can be made. How do the results ofapplying this system work out, and how do those results compare
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with the result of an endeavour to fix the rent which a hypotheticaltenant would pay by a comparison which does not rest on a purelymathematical basis 1 In the course of' his judgment the learnedJudge said: “ I agree with Mr. Orr that No. 98 is' a shop, the rentof which would be a fair basis for ascertaining the rent whichmight be paid by a prospective tenant for No. 90.”
The actual rents paid for shops in the near neighbourhood mightbe a very good prima facie test, and if these rents are free frombeing affected by any artificial or fortuitous cause this test isprobably the soundest which could be had. How then does No. 98compare with No. 90 ? The shop No. 98 has a modem frontage.The front area, that is to say, the shop portion, is 1,100 square feet.The shop area of No. 90, the respondent’s shop, is 1,815 square feet.Therefore, so far as size is concerned and from a shop point of view,No. 90 has a more than considerable advantage. The back areaof No. 98 is 657 feet, while that of No. 90 is 423 square feet—229on the ground floor and 194 upstairs. This gives a total area of1,757 square feet in the case of No. 98 and a total area of 2,238square feet in the case of No. 90, and the actual rent paid forNo. 98 is Bs. 500 per month. What then should be the rent forNo. 90? Putting it in this way, if premises 1,757 square feetin area pay Bs. 500, what should premises 2,238 square feet in areapay, assuming that there was nothing to choose between thepremises as regards situation, adaptability for business, and attrac-tiveness ? The result would work out at a little over Bs. 630a month. It is said that No. 98 has an advantage in the way ofsituation. This advantage would appear to be slight. A matterof a few yards. As regards commodiousness of shop accom-modation, which must be an important' consideration when a largenumber of passengers are contemporaneously doing their shoppingNo. 90 has a very great advantage. It is fitted up in a modern,shop style. Its frontage is very distinctly more imposing inappearance, and it is calculated to make a greater impression onpassengers than the less imposing premises No. 98. It wouldseem therefore that, on the- basis of attractiveness and general 'aptitude for inducing customers, No. 90 has avery distinct advantage.Under all these circumstances an assessment based on the resultof the calculation I have made would be in all probabilitylower than it should be, and might very reasonably include anyallowance to be made in respect of the residence on the premisesby the occupier of No. 98 and his family.
But the important question is whether there is any evidenceto compete with Mr. Orr’s evidence, or anything in Mr. Orr’sevidence which justifies interference with the result of his cal-culation and comparison.
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I think that in an appeal to the District Court under section 124of the Municipal Councils Ordinance, No. 6 of 1910, the onus lieson the plaintiff to show that the assessment appealed against isunreasonable. In this case no evidence was produoed by theplaintiff which shows that the assessment by Mr. Orr was un-reasonable, and it can hardly be said that it was impossible tofind persons of local knowledge, skill, and experience to go intothe witness box to testify as to what the “ annual value ” of theplaintiff’s premises really is and to submit their opinions to thetest of cross-examination. Neither was there anything in Mr. Orr’sevidence to support the contention that it cannot be relied uponto prove what the annual value -of the premises is for the purposeof assessment.
In the result the appeal must be allowed, the cross-appeal mustbe dismissed, and the respondent must pay the costs of the appellantin this Court and in the District Court.
Dbxebebg J.—Agreed in a separate judgment.
MARIKAR BAWA v. MUNICIPAL COUNCIL, COLOMBO