081-NLR-NLR-V-59-FREWIN-CO.-LTD.-Petitioner-and-THE-COLOMBO-MUNICIPAL-COUNCIL-et-al.-Resp.pdf
354Frewin t£> Co., Ltd. v. The Colombo Municipal Council '
1957Present: H. N. G. Fernando, J.
FEEWIN & CO., LTD., Petitioner, and THE COLOMBO MUNICIPALCOUNCIL et ah, Bespozidents
S. C. 253—In the matter of an. Application for the issue of a Mandate in .the nature of a Writ of Mandamus
Municipal Councils Ordinance, No. 29 of 1917—Consolidation of separate buildings—Assessment in respect of rates leviable—Should notice thereof be given to thetenants of the separate buildings 7—Sections 233 (1), 233, 235 (sub-sections 1,2, 3, 4, S), 242, 243, 252, 201, 325—1lent Restriction Act, No. 20 of 1043, asamended by Act No. 0 of 1953, s. 2 (4}.-
Whcro separate buildings are consolidated and assessed as a whole for thelevy of rates, in terms of section 233 of the Municipal Councils Ordinance, IhoMunicipal Council is not hound to serve on a tenant of a part of the premisesassessed a notice of tlio new assessment cither of tho entiro premises or of that. portion which had previously been the subject of a soparato assessment and ofwhich tho tenant is in occupation. Tho fact that, in consequenco of thenew assessment, tho consolidated premises havo becomo “ excepted premises ’’ .within the contemplation of section 2 (4) of tho Rent Restriction Act of 1948,
as amended by Act No. 6 of 1953, 13 not material..'
It would bo sufficient if the notico of assessment in respect of the consolidatedpremises is served on or left at those premises in compliance with section 291 oftho Municix>al Councils Ordinanco. Sub-section 3 of section 235 must bo readin conjunction with tho general provision for notico contained in section 291.
H. X. G. FERNANDO, J.—i'rcwin it- Co., Ltd. v. The Colombo355
Municipal Council
PPDICATION for a writ of mandamus.■
S. Jayawickreme, Q.G., with G. V. Samcratcickrcme, for thepetitioner.
H. V. Perera, Q.G., with iV. Nadarasa, for the 1st respondent.
Felix Dias, for tho 2nd respondent.
Cur. adv. vult.
July 18, 1057. H. N. G. Pbunaxdo, J.—
This is an application by the petitioner for a writ of Mandamus direct-ing the Municipal Council of Colombo to serve on tho petitioner a noticeof assessment in l-cspcct of certain premises in Colombo and/or to inquireinto objections to the said assessment.
The premises in question bears Mo. JO G/3-7, Baillio Street, Colombo,and form part of a larger building numbered in separate portions as 40G/l to 40 G/7 and 40 G/10. On 29th December 1955 a notice of assess-ment of the entiro building under the number 40 G/l-7 and 40 G/10 wasserved on ouo Gan)ini do Silva who was an employee of the tenant ofpremises bearing the number 40 G/2, but it is common ground that thonotice of assessment was not served on the petitioner..
Tho rent which the petitioner had been paying to tho landlord for thepremises which are the subject matter of this application was Rs. 314.5S,but on 29th February 1956, the landlord increased tho rent to Rs. 1,950per month. Tho petitioner states that he was informed that this increasein rent was made on tho ground of the increase in the assessment of thoannual value of tho prom iscs, meaning, I presume, that since the assess-ment of the main building had been fixed for tho year 1956 at Rs. 9,525the entire premises had become <c excepted premises ” within the contem-plation of section 2 (4) of tho Rent Restriction Act of 194S as amendedby Act No. 6 of 1953. The petitioner no doubt believes that if he had anopportunity of objecting to the assessment tho premises may haveremained subject to rent control, and his substantial complaint is that thodenial to him of tho opportunity to object to the notice of assessmenthas had tho consequence that the landlord has been able to increase thorent inordinately.
Tho question I have to decide is one of law, namely w hether it w as thoduty of the Municipal Council to serve on the petitioner, who is a tenantof a part of tho premises assessed, a notice of tho new assessment, either oftho ontire premises, or of that portion of which tlio petitioner is inoccupation as tenant. •
35G
H. N. G. FERNANDO, J.—Frewin <£• Co., Lid. v. The Colombo
'Municipal Council-
Tho relevant provisions of the Municipal Councils Ordinance -whichrequiro consideration are tho following :—-
" Section 233 (1). The Council may, from time to time, as often as itmav think necessary for the purpose of assessment, divido any house,buildings, lands, or tenomont, and consolidate any separate houses,buildings, lands or tenements whatsoever within tho municipalityand assess, in respect of any rate or rates leviable under this Ordinance,each such divided portion separately, and each such consolidatedpremises as a whole :
Provided that in the case of any such consolidation the consolidated' premises shall bo asscssod at tho aggregate annual value of the severalhouses, buildings, lands, or tenements of which such premises arocomposed.
Section 233 (3). Nothing in this section shall be deemed to affect therequirements of section 235 regarding the service of notice ofassessment.'.
Section 235 (1). The Council shall cause to be kept a book, to be calledtho “ Assessment Book ” in which tho annual value of each house,building, land or tenement within the municipality shall be entered■ every year, and shall cause to bo given public notice thereof and thoplace where the assessment book may be inspected. .
Every owner or occupier of any house, building, land, ortenement., or his authorised agent, shall be permitted free of charge, toinspect any portion of the said assessment- book which relates to hispremises.
The Council shall cause a nolieo of assessment in English, Sinha-lese, and Tamil to bo served on or left at tho premises of ovory occupier,whether lie bo proprietor, joint proprietor, or tenant of tho house, build-ing, land, or tenement assessed. The said notice shall bo substantiallyin the Form sot out in tho Third Schedule, and there shall bo appendedthereto a demand of payment of the rate or rates leviable within suchtime and in such proportions as the Council may deem reasonable.
Such notice shall further intimalo that written objections to thoassessment will bo received at tho Municipal Office within one monthfrom the dato of service of the notico.
Every assessment against which no objection is taken shall bofinal for the year.
It is clear from the affidavit of the Assistant Municipal Assessor thatprior to 1937 the main building had been assessed in separate portionsand that in 1937 the Council in pursuance of section 11G of Chapter 193,which corresponded to the present section 233, consolidated all the por-tions and thereafter assessed the consolidated premises as a whole. Onecontention put forward on behalf of the petitioner is that despite thisconsolidation the Council was bound to make separate assessments in
IT. 2sr. G. l’ERXAXDO. J.—Frcwin cb Co., Ltd. v. The Colombo
Stfwiicipal Council
357
respect of each portion which had previously been the subject of a se-parate assessment, and to serve notice of assessment separately in respectof each such portion. If this contention be correct, then clearly theCouncil was bound to assess separately eacli of the portions of the mainbuilding now occupied by the petitioner which had previously beenassessed separately.
Section 233 (I) does not in my opinion directly affect the question whichI have to decide. It does not deal with the assessment of annual valueof particular premises but rather provides for the making and assessmentof a rate which is to be leviable on an amount representing the annualvalue of all premises, the amount of such annual value being determinedunder other provisions of the Ordinance. The term “ annual value ”is defined in section 325 in terms which briefly expressed mean the annualrent which a tenant might reasonably be expected to pay in certain hypo-thetical circumstances. The Council from time to time having regard .to that definition determines the “annual value ” of each house, building,land or tenement and has a duty to enter the amount in the “ assessmentbook ” and to serve a notice of assessment in accordance with theprovisions of sub-section (3) of section 235. I shall consider later theapplication of those provisions to the present case.
The first contention for the petitioner involves the interpretation of theprovisions which original^ formed part of section 11G of Cap. 193 and arenow incorporated in section 233 of the current Ordinance. Those provi-sions empower the Council, for the purpose of assessment to “ consolidateany separate houses, buildings, lands or tenements, ” and to “ assess ..
. . each such consolidated premises as a whole ”. Thus far the intentionof the Legislature seems to have been that the Council may, presu-mably for its own convenience in assessing property for rates, make oneassessment of consolidated premises in lieu of making several separatoassessments for each of the buildings which constitute the consolidatedpremises. But Counsel for the petitioner argues that the proviso to sub-section (1) of section 233 (or of the former section 116) requires that despiteconsolidation separate assessments must continue to be made in res£>ccbof the houses or buildings constituting the consolidated premises. Theargument is that the proviso, in requiring that ‘‘the consolidated j>remisesshall bo assessed at the aggregate annual values of the several houses orbuildings of which the premises are composed ”, requires an assessmentto be made of tho annual value of each of the several houses or buildingsand that the consolidated premises will then be assessed at the aggre-gate of the annual values of all the several houses or buildings. Thusfar I am in agreement with Counsel’s argument and I would accept the viewthat consolidated premises are nob to be assessed at the amountwhich a hypothetical tenant would pay a3 rent for the whole premisesbut should instead be assessed at the aggregate of the amounts which eachof several l^'pothetical tenants would pay as rent for each of the severalhouses or buildings.
But it is further argued that when the Council makes separate assess- ’ments of the annual value of each of the several houses or buildings, the
35S
H. X. G. FERN"AN DO, J.—Freicii t cb Co., Ltd. v. The Colombo'
•Municipal Council'
procedure set out in section 235 of recording the asscssmentintheassess-ment book as being tlie annual value of the separate house or building andof giving notice concerning that particular assessment must be followed.
I would observe in' the first place that if this were the intention, nothingis achieved through the exercise bj- the Council of the powers conferred bj-scction 233 (former section 116), for, despite consolidation, the Councilwould have to continue to take the identical steps which it took before in. respect of each of the several houses or buildings, the only change beingapparently that there would in addition be a need to total up the separateannual values of the separate houses and buildings and record thattotal as being the assessment of the consolidated premises. I naturallyhesitate to accept a view which renders the exercise of a statutorypower quite nugatory and would natural^ prefer an interpretation whichrenders the power effective if, of course, such an interpretationcan reasonably attach. The proviso undoubtedly requires the Councilto assess the annual value of each of the several houses or buildingsof which consolidated premises are composed, but that requirement,in my view, is imposed onty in order to provide a means where-by the Council must assess the consolidated premises. In other words,the direction given bjr the proviso to an assessing officer is that whenconsolidated premises are to be assessed the amount of the assessmentshall be calculated by taking account of the annual value of each of theseveral houses or buildings ; so that the officer must first determine what isin his opinion the annual value of each of the several houses or buildings.But the proviso does not require expressly that each such determinationis to be an assessment for the purposes of section 235. In the event ofobjection being taken to the assessment of consolidated premises, theassessment may undoubtedly be attacked on the ground that regardhas not been paid to the direction given in the proviso or that theopinion of the assessing officer as to the annual value of any particularhouse or building is incorrect and that the assessment of the consolidatedpremises should be altered accordingly. But the fact that objectionscan be taken on such a ground does not mean that separate entries mustbe made in the assessment book for each house or building, or that noticesof assessment (must be separately served with respect to each of them.Considering the proviso in its context, this construction of it is to mymind perfectly reasonable and has the advantage that it gives force andmeaning to the statutory power of consolidating separate houses orbuildings for the purpose of assessment…
Counsel also relies in support of his first contention on sub-section 3of section 233 and argues that sub-section 3 of section 233 keeps alive,despite consolidation, the duty to serve notices of assessment separatelyin respect of each separate portion of the consolidated premises. Sub-section (3) follows immediate^’ on sub-section (2) which provides forservice of a notice of consolidation. In my opinion, sub-section (3) ismerely a saving clause designed to ensure that the service of a notice ofconsolidation does not absolve the Council from the duty to serve a noticeof assessment if the service of the latter notice is required by section 235. For
350
jff. ;NT. G. FEHXAXDO, J.—Fravin <0 Co., Ltd. r. The Colombo
.1/tniicip'tl Council.
example, if consolidation is being effected for an year in respect of which,no notice of assessment has already been given, the service of the noticeof consolidation is not enough ; there must in addition be a notice of theassessment of the consolidated premises ; on the other hand if severalpremises haveahv adv been assessed for a particular 3-car and those assess-ments have become final in terms of section 23S (8), then if consolidationis effected during that 3-ear the existing assessments will stand as separateassessments for that 3-ear and no new notices of assessments would berequired for that 3-ear. I would point out in this connection that thelanguage used in sub-section 3 of section 233 is that ordinarily emp!o3redin a saving clause.
Tiic second argument urged on behalf of the petitioner is based on theprovisions of sub-section 3 of section 235 which require a notice of assess-ment “ to be served on or left at the premises of every occupier, whetherhe be proprietor, joint proprietor or tenant of the house, building, tene-ment or land assessed. It is urged that the petitioner is an occupierqua tenant of the premises in question, and that where there are severaltenants of premises a notice must be served on every such tenant. Itwould follow if this contention be correct that the Council has a dutywhenever it assesses any premises to ascertain whether there is only“one occupier ” or “several” occupiers, and, if there are several,to further ascertain whether a 113- of them are proprietors, joint proprie-tors or tenants, and if so to serve separate notices on each of them.This contention would be reasonable if the Ordinancc'mvposed on tenantsthe liability5- or the rcsponsibilit3r for the pa3*me-nt of rates, but the provi-sions of the Ordinance are to the contrary effec t. Tor instance section243 gives to an occupier who is not an owner the right to deduct from therent any amount- which he pays as fates or the value of a 113- of his movableswhich may be seized for non-pa3’'ment, and even in regard to the sei-zure of movables, section 242 protects the movables of a tenant from .seizure for arrears of r ates bc3-ond the two quarters next preceding theseizure. The principal sanction for the levy- of rates is that containedin section 252 which confers on the Council the right to sell property ofan owner who is in default. While the language employ ed in sub-section3 of section 235 can be const rued to mean that all “ occupiers ” mustreceive notice, the object of that section, in my opinion, can only be toensure that when premises are assessed, a notice of the assessment must beserved on or left at the premises assessed. In the present case the pre-mises assessed arc the consolidated premises and a notice lias been servedon or left at those premises, in compliance with section 291 of the Ordi-nance which deals with service of notice. There are several alternativemodes of service prescribed in that section and one of tho alternativesin that- section is the delivery of the notice to some adult person on thepremises. In my opinion the requirements of service under:seetion 291have been complied with in the present case by delivering to Gamini dcgulva on the assessed premises the notice of the assessment on those pre-mises. I do not agree with the argument on behalf of the petitioner thatsub-section 3 of section 235 must be read b3- itself and cannot be read withthe general provision for notice contained in section 291.-
360
-j_j q x^ERN.-^NDO, J.—Frewin <0 Go., Ltd. v. The Colombo
' .Municipal Council
I have also to'consider a subsidiary argument that the failure to servea notice on the petitioner has deprived him of the benefit of the RentRestriction Act. ; In the first place it has to be borne in mind that thestatutory provisions I am examining in this ease have existed since 1010and perhaps longer and that the impact of these provisions on subsequentlegislation cannot properly be taken into consideration in order to givethem a construction different from that 'which v ould have been gi enif there had been no Rent Restriction Legislation. Moreover it is notcontended that the petitioner could not, if the thought had occurred tohim, have inspected the assessment book when public notice was givenunder section 235 that the book was open for inspection.
For these reasons I would dismiss this application with costs which J1fix at Rs. 252-50 payable by the petitioner to the Municipal Council. _
Application dismissed.