FERNANDO v. THE MUNICIPAL COUNCIL OF KANDY

078-NLR-NLR-V-09-FERNANDO-v.-THE-MUNICIPAL-COUNCIL-OF-KANDY.pdf


( 374 )
[Full Bench.]
Present: The Hon. Sir Charles Peter Layard, Chief Justice,
‘Mr. Justice Moncreiff, and Mr. Justice Grenier.
FERNANDO v_. THE MUNICIPAL COUNCIL OF KANDY.
C. R., Kandy, 12,713.
Property belonging to Buddhist temple—Inability for Municipal taxes—Exemption fromtaxation—Proclamationof 1818, section . 21—
Ordinance No. 7 of 1887, section 127—Ordinance No. 16 of 1900,section 2.
Property belonging to a Buddhist temple (except such property' as isespecially exempted under section 127 of Ordinance No. 7 of 1887,as amended by 'section 2 of Ordinance No. 16 of 1900). is liable topay assessment tax imposed by the Municipal Council under theprovisions of Ordinance No. 7 of 1887.
Section 21 of the Proclamation of 21st November, 1818, enactsa3 follows:.—“ The Governor, desirous of showing the adherenceof Government to its stipulation in favour of the religion of thepeople, exempts all lands which now are the property of templesfrom all taxation whatsoever,” &c.
Held, that this Proclamation referred only to taxes then . existingor to similar taxes substituted for them,' and not to taxes imposedby statute after the Proclamation.
rpHE facts and arguments sufficiently appear in the judgments.
Domhorst, K.C. (with him Van Langenberg), for the Municipal
Council (appellant).
Witter Pereira, K.G., for the plaintiff, respondent.
Cur. adv. vult.
( 375 )
14th June, 1904. Layard C.J.—
The plaintiff is the lessee from the trustee of the Poyamallie Viharein Kandy of a certain house and premises situated within the Muni-cipal limits of the town of“Kandy.
The question to be decided is whether the Municipal Council ofKandy oan compel payment of assessment tax in respect of templeproperty situated within such limits. The Legislature has giventhe Council power to make and assess for certain purposes, specifiedin the Ordinance No. 7 of 1887, a separate or consolidated rate orrates on the annual value of all houses and buildings of every des-cription and all lands and tenements whatever within the Municipallimits, excepting therefrom only all buildings exclusively appro-priated to educational purposes, such as schools, school libraries,and school laboratories, and all buildings exclusively appropriatedto religious worship, and all burning and burial grounds, and allbuildings in charge of military sentries (section 127 of the MunicipalCouncils Ordinance, No. 7 of 1887, as amended by section 2 ofOrdinance No. 16 of 1900).
The Council has thus power to assess a rate in respect of all housesand buildings and all lands and tenements whatsoever situatedwithin Municipal limits, save those exempted by the proviso tosection 127. If that Ordinance . stood alone in our Statute Bookit is clear that the house and premises occupied by the plaintiff wouldbe liable to assessment under the Ordinance of 1887, althoughtemple property, the house not being exclusively appropriated to re-ligious worship. The respondent, however, contends that the pro-perty occupied by him, being temple property., has been by the Pro-clamation of the 21st November, 1818 (section 21), exempted fromall taxation. That section runs as follows: —
'* The Governor, desirous of showing the adherence of Governmentto its stipulation in favour of the religion of the people, exemptsall lands which now are the property of temples from all taxationwhatever, but certain inhabitants of. those villages are liable toperform gratuitous services also to the Crown; this obligation isto continue unaffected. ”■
The point to be decided in this case has only once been raised inthis Court since Municipal Councils were first established by^ theOrdinance No. 17 of 1865. The first case came before my brotherMoncreiff in March, 1904, that a Municipal Council is not entitledunder section 127 of the Ordinance No. 7 of 1887 to make and assessany rate on the value of any land the property of a Buddhist templeexcepted from taxation by section 21 -of lEe Proclamation o? 21stNovember, 1818. I have his authority for stating that he arrived
1004.
JUMlt
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Jijnoll a* tlie oonc^u“on witb great hesitation, and when the present appeal—c— ' came before him, sitting alone, he felt that the point to be decidedLayabd C.J. was one 0f considerable difficulty, and as he was doubtful as to thecorrectness of his first decision Ee thought it desirable that this appealshould be decided by a Full Court. It was argued by the appellant’scounsel in appeal that the provisions of the Ordinance Ho. 7 of i887repealed by implication the exemption created by the Proclamationof J.818 in favour of temple lands. I would, however, point out thatif the exemption created by the Proclamation was impliedly repealedit must have been by the provisions of section 53 of the OrdinanceNo. 17 of 1865, which first empowered Municipal Councils to assessrates within Municipal limits. The Ordinance No. 7 of 1887 waspassed by the Legislature merely to consolidate and amend the lawsrelating to Municipal Councils which had been previously createdtwenty years earlier by the Ordinance No. 17 of 1865.
Before deciding the question of impiled repeal, which is alwaysa very difficult one, for, as Lord Blackburn says in Garnett v. Bradley(1), referring to Plowden’s Commentaries:" Anybody who wishes
to find an argument on either side about the repeal of a statute forinconsistency with a subsequent statute will find many good andingenious arguments which make for the side he particularly wantsto support, ” it appears to me first necessary to decide whether theProclamation of 1818 freeing temple lands from taxation precludedthe Legislature from directing by the Ordinance No. 17 of 1865Municipal Councils to levy an assessment tax on all-lands and build-ings situated within Municipal limits, including temple lands otherthan those lands on which stood buildings exclusively appropriatedto religious worship. If the Proclamation of 1818 was limited totaxation then existing or to taxation of a similar nature to beafterwards created and did not reler to taxation by local bodies,subsequently created by statute, for the purpose of lighting andsanitation, &c., of certain local areas, then the provisions of thelater legislation would not in any way be inconsistent with theexemption of the Proclamation of 1818, and the two could standside by side and be read together, and still the Proclamation of. 1818 would not have the effect of freeing temple lands from thelocal rates created by the later statutes.
Appellant’s counsel argued that the Proclamation of 1818 onlyreferred to taxation then in existence, but quoted no authorities andreferred to no analogous cases in the English reports. I am greatlyindebted, however, to my brother Moncreiff for referring me onthis point to the following decisions of the English. Courts:
(1) 3 App. Cas. 950.
( 377 )
1yittiama v. Pritchard (1), Perchard v. Heywood (2), King v.London Gag * Light and Coke Company (3), Sion College v. LondonCorpn. (4). Section 51 Geo. 3, c. 37, provided that certainlands in >the city of London reclaimed from the Thames shouldbe free of all taxes and assessments whatsoever. By subsequentlegislation from time to time the City of London was authorizedto raise rates and assessments in respect of all premises withincertain areas, and the lands exempted by the above-mentionedstatute were included in those areas. It was held by the EnglishCourt that the exemption created by 7 Geo. 3, c. 37 only appliedto then existing taxes and assessments or others substituted forthem, and that in the case where subsequent statutes created newrates, even although such rates included some purposes for whichrates were made when the exemption was created by section 51• Geo. 8, c. 37, they were held to be substantially a new assessment,therefore not to fall within the exemption- After the Proclamationof 1818 the paddy tax, as pointed out by my brother Moncreiff inhis judgment [Mudiyanae v. Kandy Municipal Council (5)], was theonly tax left, and that was a tax on the annual produce of all paddylands in the Colony and was payable to the Crown and was creditedto the general revenue. At that date there does not appear to haveexisted any taxation for local purposes confined to local areas.There appears no reason to think that the Crown at that time con-templated creating Municipalities and Local Board towns. Oughtwe then to hold that this Proclamation which freed temple lands fromall taxation whatever would preclude the Crown, when subsequentlycreating Municipal Councils and giving them power to make ratesfor the purpose of conserving and improving the towns for whichthe Councils were constituted, and for providing the lighting of thepublic streets of such towns and for carrying out proper sanitationwithin their limits and supplying water to the inhabitants thereof,from directing that such rates should be levied from all lands andbuildings situated within Municipal limits including the lands exemp-ted under the Proclamation of 1818 ? It appears to me it could nothave been the intention of the Proclamation of 1818 to free templelands from other than taxes to the Crown that then existed or othersimilar taxes substituted for them. Since that Proclamation, owingto the prosperity of the Colony and owing to its progress, it hasbeen found necessary by the Crown to create a new form of taxationnot contemplated at the time the Proclamation issued, and to giveto certain local areas powers to raise taxes within certain local limits
4 T. R. 2.(3) 8 B. and C. 54.
8 T. R. 468;(4) (1901) 1 Q. B. 617.
r5) 7 N. L. R. 167.
1904.
June 14.
Layabd C.J.
( 378 )
1904. for local purposes. I think it would not be fair or just to exemptJune 14. j£mpie lan^g from rates or taxes which are levied for purposes notLatabd C.J. contemplated at the time the Proclamation of 1818 was issued. Ibelieve the proper construction to be placed on the exemption con*tained in that Proclamation is that it refers merely to taxation by theCrown in respect of which all land in the Colony was then liable orother similar taxation substituted for it. I do not think the exemp-tion therein contained can apply, or was intended to apply, to taxesto be levied by Municipal Councils not then existing for the purposesof an Ordinance passed forty-seven years after. Municipal Councilshad not been created in 1818 and were not created until 1865, andit is impossible to credit that the draftsman of the Proclamationcould have contemplated or intended to free temple lands from anew kind of taxation which was not dreamt of in 1818. In myopinion the Proclamation of 1818 cannot be pleaded as a bar to theassessing of $he house and premises leased by the plaintiff, becausethe Proclamation of 1818 did not contemplate, nor could it havebeen intended for, the exemption of temple property from local ratesand taxes leviable by Municipal Councils created by an Ordinancepassed forty-seven years after for the purposes set out in the Ordi-nance of 1865. The Ordinance of 1865 created a new form of tax-ation which did not go to increase the general revenue of the Colony,as the paddy tax did in 1818, but was raised for particular localpurposes not thought of nor in any way contemplated in 18.18.As I am of opinion thafTthe Proclamation of 1818 in no way appliesto Municipal taxation for local purposes, but merely to taxation forgeneral revenue purposes, i.e., to Crown taxation, the question doesnot arise as to whether the' Proclamation of 1818 so far as it relatesto exemption from taxation of temple lands is impliedly repealedby the provisions of section 127 of the Ordinance No. 7 of 1887, andneed not be adjudicated on. The judgment of the Commissionermust be set aside and the case be returned to the Court of Bequests,Kandy, to be proceeded with. The appellants are entitled to thecosts of this appeal.
Moncbbiff J.—
It is true that in giving my decision in Ranawanagedere Mudiyansev. Municipal Council, Kandy (1), I thought the points involved mightmake a different impression upon the minds of other Judges andI should not readily say that a contrary opinion in this case is wrong.
I still adhere to the opinion that,, if these temple lands were exemp-ted by the Proclamation of 1818 from the rates now sought to be
(1) (1904) 7 N. L. ft. 167.
( 379 )
imposed upon them, the exemption was not taken away by theMunicipal legislation of 1887 and 1900 (Ordinances No. 7 of 1887and No. 16 of 1900). Section 127 of the former Ordinance, withthe proviso’ added by the later Ordinance, is affirmative and not• negative. It does not necessarily therefore repeal the provisioncreating the exemption. Again, it is a general provision in whichno reference to the exemption is suggested -and generalia specialibus■non derogant'. In Oamett v. Bradley (1) the Court quoted with appro-val the following passage froth Maxwell's Interpretation of Statutes: —“ A general later law is presumed to have only general cases in viewand not particular cases which have been already provided for by a-special or local Act ”.
In any case it has never been disputed that, if the intention ofthe legislature is apparent effect must be given to it. There may becases in which an exemption “ from all taxes and assessments what-soever ” does, and cases in which it does not, refer to future taxes.The English Courts held that such an exemption in favour of houses. built on -ground embanked under 7 Geo. 4, 3, 47, freed the propertyfrom land tax or taxes of a similar nature even when imposed afterthe exemption was granted, but not from the incidence of othertaxation. Lord Kenyon in Williams v. Pritchard (2) said thatif it were intended that a subsequent Act should control a priorprovision, it must be taken to do so; but. that in spite of words ina later Act which strictly and grammatically. would repeal the priorprovision, the Courts had given effect to the apparent intention ofthe Legislature that there should be no repeal.
I was disposed to think that the intention of .the Proclamationof 1818 was to free temple lands in the Kandyan Provinces from .all existing and future taxation. I was greatly influenced by thefact that the Governor of Ceylon was dealing in pursuance of astipulation with temple lands. He . is represented as saying thathe abolished all existing taxes and was enacting a paddy tax fromwhich, and from which alone, temple lands would be exempt. Ifthat were all he meant, I think his words exempting these landsfrom all taxation whatsoever were not well chosen. He-was “ desir-ous of showing the adherence of the Government to its stipulationin favour of the religion of the people ”, The concession was appar-ently the fulfilment of a promise.- The only stipulations I amaware of are—
(1) Article 5 of the Proclamation of 2nd March, 1815, agreedto at the Kandy convention:" The religion of Buddha pro-
fessed by the chiefs and inhabitants of these provinces is
(1)3 App. Cos. 966.'•'(2)4 T. R. 2.
1904.
June 14.
Monobkwv
J.
1904.
June 14.
Monobeiw,
3.
( 380 )
declared inviolable and its rites, ministers, and places^ ofworship are to be maintained and protected ’ ’; and
(2) Article 16 of the Proclamation of 21st November, 1821:
“ As well the priests, as all the ceremonies and processions ofthe Budhoo Religion, shall receive the respect which in formertimes was shown them
The Proclamations of 18th September, 1819, and 21st May, 1822,which provide for the registration of these lands, show no confine-ment of the exemption; it is still exemption from all taxation what-ever.
It may be that there were no strictly Municipal taxes in 1818, andthat imposts for the repairing and lighting of streets were payableto the King, but in the case reported in 7 N. L. R. 167 I mentionedthat in 1824 a Committee was appointed for assessing and levying avax for the repair of roads and lighting of streets in Colombo. Inthat case, and in other similar cases in the beginning of the 19thcentury, the impost levied is impartially called a- tax or an assess-ment. It may or may not have been a King’s tax, but it was forsuch purposes as are contemplated in this case.
In 1866 Ordinance No. 17, being a Municipal Councils’ Ordinancewas passed, and by section 53 power was given to Municipal Councilsto make and assess rates and taxes on buildings and lands: “ Providedthat all- buildings appropriated to religious worship and buildingsin the charge of military sentries shall be exempted from the paymentof such rate ”. The exemption does not extend to land, but thereiason given for that by the, plaintiff is that temple lands in theKandyan Provinces had already been exempted by the Proclamationof 1818.
It seemed to me that the strongest argument in favour of theintention to exempt these lands from all taxation subsequent., to-,1818 was that for eighty years no attempt was made to tax them,although the Municipal Councils’ Ordinances of 1866 and 1887 hadgiven the' Councils general power to tax' lands. I believe it isa fact that for eighty years the land in question in the casereported in 7 N. L. R. 167 had not been so taxed; but it appearsfrom inquiries made by the Court that the premises No. 6, VictoriaDrive, Kandy, which are held on lease from the Poyamallie Vihareand are the subject of this case, were taxed without question from1867 to 1904. This fact seems to alter the matter; and I cannotunderstand why the appellants did not bring it prominently to ourattention; unless my recollection is incorrect in the former, caseit was assumed by both sides in argument that the Proclamationof 1818 referred to future taxation. My belief that future taxation
( 381 )
wtb in view is considerably shaken by the fact that” these premiseswere taxed ’without question for thity-seven years, and I am notprepared on these materials to say that the view of the Chief Justiceon that point is wrong.
Grenieb A.J.—
In ibis case the main question for determination is whether theproperty described in the 1st paragraph of the plaint is liable to betaxed by the Municipal Council of Kandy. The argument before usproceeded on the footing that the lands were temple lands, althoughthe proof that they had been registered as such-was defective inview of the provisions of section 22 of Ordinance No. 10 of 1856 inthat there was not sufficient evidence that a certificate had beenissued in terms of that section.
The Commissioner followed a judgment of this Court in C. B.,Kandy, 12,297, which he considered was on all fours with the presentcase, and entered judgment for plaintiff as prayed for. The defend-ant Council has appealed.
It was argued for the defendant Council that by section 127 ofOrdinance No. 7 of 1887 it was bound from time to time and when-ever it thought necessary, subject to certain provisions, which it isneedless to refer to here, to make and assess with the sanction of theGovernor in Executive Council any separate consolidated rate orrates on the annual value of all houses and buildings of every des-cription and all lands and tenements whatsoever within the Munici-pality. It was submitted by the appellant’s counsel that no excep–tion was made in favour of temple lands, and. that the section appliedto all lands situated within.the limits of the Municipality. Undoubt-edly the words are very large, and unless it could be shown that-certain lands were exempt by special favour or bounty of the Crownfrom the operation of this section the section would apply. It wascontended for the plaintiff that by section 21 of the Proclamationof the 21st November, 1818, all temple lands were expressly exemptedfrom all taxation whatever. The words of the Proclamation are asfollows:—
" The Governor, desirous of showing the adherence of Governmentto its stipulation in favour of the religion of the people, exempts alllands which now are the' property of temples from all taxationwhatever, but, ” &c.
This Proclamation has unquestionably the force of law, but ithas not, in my opinion, that far-reaching effect and operationwhich was claimed for it by the plaintiff. The construction Iwould put upon this • Proclamation is the construction which occurred
1904..
June 14.
Moncbbxpf
3.
( 382 )
1904.
June 14-
Obsotbb
A.J.
vo me as soon as the words were read out, that the exemptionwas in respect of taxation at the direct instance of the Crowiy andexistent at the time of the Proclamation, and did not embracefuture taxation. I am using the word' in a general sense whichmight be called for by conditions and exigencies, such, for exainple,as those brought out by the establishment of Municipalities andLocal Boards, and Which it was impossible to contemplate; presum-ably there were certain taxes leviable on all lands in 1818. Althoughit is difficult to discover what those taxes were, and as an act ofgrace on the part of the Crown, the Crown declared that it would notexact those taxes from lands which belonged- to temples, it may be,as suggested by the plaintiff Council, that temple lands were notsubject to any taxation. whatever under the Sinhalese kings. Butwe have no precise information on the point. This, however, seemsto be clear to my mind, that the Proclamation cannot be taken toexempt all temple lands in perpetuity, but only such lands as werethen the property of temples, and which were liable in respect oftaxes leviable at the -time just as lands other than temple landswere.
Now, Ordinance No. 10 of 1856 refers in the preamble to theProclamation of the 21st November, 1818, and the Proclamationsof 18th September, 1819, and 21st May, 1822. The object of thisOrdinance was to provide for the settlement of claims to exemptionfrom taxation of temple lands in the Kandyan Province and for thedue registration of all lands belonging to such temples. The . Ordi-nance made no provision for any exemption of a different character,nor in any way altered the original scope and object of tbe Procla-mation of 1818, which, as I have said before, exempted temple landsfrom taxes than leviable on lands generally. I do not agree with thecontention that the Proclamation of 1818 must be taken and read as anexception to the Municipal Council’s Ordinance, No. 7 of 1887. The'authorities cited seem to me to deal with a different state of facts,and I cannot extract from them any principle which I can apply to-the present case. Whether we look upon the Proclamation of 1818 injthe light of a general law and the Municipal Councils’ Ordinance asidealing with any particular or special subject, this seems plain totme, that the one is not repugnant to the other. They cab stand sideeby side, and effect can be given to each independently of the other-The Proclamation of 1818 dealt with a certain class of taxation quitedistinct fom the rates leviable under the provisions of the MunicipalCouncils’ Ordinance. Perhaps .it is not necessary to hold that inlevyii^ these rates the defendant Council practically enters into acontract with the ratepayers, but, in my humble opinion, ratef£
( 388 )
levied by the Council for the supply of water, Ac., stand on quite adifferent footing from taxes so-called imposed directly by the Crown,such as the paddy tax was. I am free to admit that if there are twoenactments of the law which are irreconcilable, the later one must beconsidered as a repeal of the former. The Proclamation of 1818and section 127 of the Municipal Councils’ Ordinance cannot evenbe said to be inconsistent with each other, much less irreconcilable;and therefore effect can be given to the latter, without in theslightest degree attenuating or rendering nugatory the provisionsof tile former. The Proclamation will still exempt temple landsfrom taxes which were leviable on other lands at the time of the‘passing of it, if such taxes are recoverable by the Crown at thepresent day.
For the reasons I have stated, I hold that the judgment of tEeCommissioner in favour of the plaintiff is wrong and must be setaside and the case sent back for trial on the second, third, and fourthissues framed by the Commissioner.
1904.
June 14.
Gbenxek
AJ.
H. C. COTTLE, GOVEBNMENT PRINTEB, COLOMBO, CEYLON.