048-NLR-NLR-V-33-ISMAIL-v.-COLOMBO-MUNICIPAL-COUNCIL.pdf
AKBAR J.—Ismail v. Colombo Municipal Council.
187
1931Present: Akbar J. and Ma&rtensz A.J.
ISMAIL v. COLOMBO MUNICIPAL COUNCIL.
326—D. G. Colombo, 25,185.
A ssessment—A rmualvalue—Action to reduce assessment—Housedesigned to*
meet requirements of Muslim community—Basis of assessment.
Where, in an action to reduce assessment it was proved that a housewould be worth Bs. 400 per mensem, were it not that it was designedto suit the requirements of the Muslim community,—
Held, that no reduction could be claimed on that basis, as theplaintiff must be regarded as a possible tenant.
^ PPEAL from a judgment of the District Judge of Colombo.
F. A. Hayley, K.C. (with him Jayatilleke), for plaintiff, appellant.
E. Keuneman, for defendant, respondent.
September 2, 1931. Akbar J.—
The plaintiff-appellant instituted this action for the reduction of theassessment of his house called Mamujee Villa, under section 124 ofOrdinance No. 6 of 191Q, from Rs. 4,000 a year to Rs. 2,500 a year. Atthe trial, however, Counsel for the plaintiff stated that he relied on theevidence of Mr. Eastman and that he would accept Mr. Eastman's-figure, namely, Rs. 3,250, as a fair annual value. The main questionargued in this appeal was that the District Judge was wrong in declaring'that the annual value was Rs. 4,000 as fixed by the District Judge andthat it should be reduced to Rs. 3,250. It is clear from section 124 ofOrdinance No. 6 of 1910, and, it was so admitted by Counsel for theappellant, that the. burden of proof was on the plaintiff to show thatthe assessment was wrong. The case really hinges on the evidence ofMr. Eastman and accordingly to him this house has been so built as to beof use only to members of the Muslim community, especial members^of the Boarh community, to which the appellant belongs. The wordsof Mr. Eastman are “ A European tenant will not take this house. . . . The house is very airless and dark .' . . . This isnot the type of house which is occupied by Europeans …. Thehouse has been designed to give extreme privacy for the purposes anddesires of the Muslim community. '* But Mr. Eastman admitted thathe considered Mamujee Villa would be worth Rs. 400 a month were-
188AKBAK J.—Ismail v. Colombo Municipal Council.
it not for the fact that it was designed for Muslim occupation.He, however, thought that as the use of such a house was restricted tomembers of the Muslim community or Borah community, the assessmentshould be reduced to Bs. 325 a month. He gives, however, no reasonwhy the reduction should be from Bs. 400 to Bs. 325 per month. So.that the nett result of his evidence in this case is that although the.house suited the plaintiff in every way he would not have paid the fullBs. 400 *a month, but would have only paid Bs. 325. The plaintiffhimself has given no evidence to support this opinion evidence ofMr. Eastman.
It has been held by the English Courts, namely, in the case of TheQueen v. The School Board for London that a School Board School,which was owned and occupied by a School Board, was liable to be rated•to the poor rate, though the School Board could make no profits out ofthe school and no tenant could be found for it as a school except theSchool Board themselves; and that the *' gross value ” of the school• under the English Act was the annual rent which the School Boardthemselves might, reasonably be expected to pay if they were tenants.of it. In the case of The London County Council v. Erith Overseen 2,.the House of Lords held that the London County Council who were.the statutory owners of land and premises, of a pumping station and.works were assessable to the poor rate on the basis of such rent, as they-would have been willing to pay if the premises had belonged to a private- towner, although the premises were incapable of yielding a profit and -.the County Council were practically the only possible tenants. Applying;these principles to this case the point for decision in this appeal narrows.itself to a small compass. Had this house not been designed forMuslim use, it would be fairly worth Bs. 400 a month, but saysMr. Eastman, althoughany Muslim tenant would have paid
Bs. 400 for a month for this house, yet the rental should be reduced toBs. 325 a month, because most of the Muslim owners were not in thehabit of renting out houses and invariably owned their own houses. AsI have pointed out there is no evidence on the point why the reduction.-should be at the rate of Bs. 75 a month and not something less or more.The burden on the issues wason the plaintiff.Hehashimself not given
•evidence to prove that if thishouse was availableto him he wouldnot
have paid Bs. 400 but only Bs. 325 a month. According to the decisionsquoted by me above, the plaintiff himself must be regarded as a possibletenant. It seems to me, therefore, that the plaintiff has failed to dis-charge the burden which was on him andthathisappeal mustbe
-dismissed. Mr. Hayley alsoargued furtherthatthecosts shouldbe
divided, because there were certain other issues framed with regard tothe rates payable for the first quarter, which the District Judge hasdecided in plaintiff’s favour. As the District Judge points out, however,the plaintiff is not entitled to relief as regards costs, because he hadfailed on the main question in this action. The appeal must be dismissedwith costs.
Maartensz A.J.—I agree.
Appeal dismissed. 11
11 (1886) L. J. A. BVol. 55, p. 169.* {2895) L. J. A. B., Vol. 63, p. 9.