JALALDEEN v. THE MUNICIPAL COUNCIL OF COLOMBO

037-NLR-NLR-V-12-JALALDEEN-v.-THE-MUNICIPAL-COUNCIL-OF-COLOMBO.pdf


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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Wendt.
JALALDEEN v. THE MUNICIPAL COUNCIL OF COLOMBO.0. B., Colombo, 9,088.Municipal Councils’ Ordinance {No. 7 of 1887)—Action to reduce rate—Amount of rate—Jurisdiction of Court of Requests-—OrdinancesNos. 5 of 1867 and 12 of 1895.
A Court of Bequests has no jurisdiction to entertain an actionfor the reduction of assessment rate on the annual value of anypremises where Buch rate exceeds Bs. 100.
Bell v. The Colombo Municipal Council1 over-ruled.
Hutchinson C.J.—Section 4 of Ordinance No. 12 of 1895 as tothe jurisdiction of Courts of Bequests cannot be applied, and wasnot intended to apply, to objections to assessments under OrdinanceNo. 7 of 1887.
T
HE plaintiff brought this action in the Court of Requests ofColombo to have the assessment rate on certain premises
owned by him for the year 1908 reduced. The property wasassessed at the annual value of Rs. 1,056, and the rate was fixedat Rs. 130-56.
■ The defendant Council pleaded that the Court had no jurisdictionto entertain the action. The Commissioner (M. S. Pinto, Esq.),although of opinion that the objection was a valid one, consideredhimself bound by the judgment of the Supreme Court in Bell v. TheColombo Municipal Council,* and over-ruled the objection.
The defendant Council appealed.
H. A. Jayewardene (with him F. J. de Saram), for the defendant,appellant.
A. St. V. Jayewardene (with him E. H. Prins), for the plaintiff,respondent.
Cur. adv. vult.
May 5, 1909. Hutchinson C.J.—
The first question for our decision is whether the Court of Requestshad jurisdiction to try this case; and if that is answered in theaffirmative, there is a further question, whether there is a right ofappeal from the Court of Requests on the facts. These questionswere, on the hearing of the appeal by Wendt J., reserved by him forthe consideration of two Judges.
The plaintiff states that the defendant Council assessed hispremises in Colombo for the year 1908 at the annual value ofRs. 1,056 for the purpose of lighting and water taxes, ^mounting in* {19(Jij ■■ pp. C. R. 27.
rVob. XII,5
1909
May 6 ■
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1909.all to Rs. 130'66, which seems to mean that the amount of the rate
May s.on the assessment is Rs. 130 56. He objected to the assessment, and
Hutchinson as^e^ *ke Court of Requests to reduce it to Rs. 900. By section 141C.Jof the Municipal Councils’ Ordinance, No. 7 of 1887, any person
aggrieved by the assessment or non-assessment of any premisesmay object to and appeal against it in the manner provided byOrdinance No. 5 of 1867. And by Ordinance No. 5 of 1867 anyperson so aggrieved may object to the assessment or non-assessmentbefore the Court of Requests having jurisdiction in the place wherethe premises are situate if the amount of the rate on the annualvalue of the premises does not exceed £10, and before the DistrictCourt if the amount exceeds £10; “and such Court shall decideupon such objection in a summary way, and have power to amendthe assessment or to supply any omission, if necessary ; and itsdecision shall be subject to appeal to the Supreme Court, whichshall have like power of amendment.” The amount of the rate ofthe present case exceeds £10 (i.e., Rs. 100), so that, if the above-quoted enactment is still in force, the Court of Requests has notjurisdiction. The Commissioner, however, considering himselfbound by the decision of Lawrie J. in Bell v. The Colombo MunicipalCouncil,l though contrary to his own opinion, held that he hadjurisdiction, because the enactment, so far as the limitation of valueis concerned, has been impliedly repealed by section 4 of the Courtof Requests Ordinance, No. 12 of 1895, which enacts that everyCourt of Requests shall have cognizance of “all actions in whichthe debt, damage, or demand shall not exceed Rs. 300.” Theseproceedings in the Court of Requests are an “action” as definedin the Courts Ordinance and the Civil Procedure Code. And thef ‘ demand ” in this action is that the assessment made by the defend-ant Council on the plaintiff’s premises may be reduced. The onlypower to make that demand is that which is given by OrdinanceNo. 5 of 1867, the material words of which are quoted above. Thejurisdiction of the Court under chat Ordinance does not depend onthe amount of the plaintiff’s demand, but on the amount of therate ; it does not depend on the amount by which the objectorclaims that the assessment should be reduced or increased; if heonly asks for it to be reduced by Rs. 50, o • if he simply asks that itshould be reduced or amended, the claim is still beyond the juris-diction of the Court of Requests if the rate exceeds £10. If, then,we suppose that the Legislature by the enactment of 1895 intendedthat the jurisdiction in these cases should no longer depend onthe amount of the rate, but -hould depend on the amount of theobjector’s “ demand,” we have to inquire what is really the amountof the demand in these cases. Is it the amount by which theobjector asks that the assessment shall be altered, or, in case ofnon-assessment,- the amount which he asks to have assessed ?
* (1901) 4 App. C. R. 27.
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It may be said that he is not bound by the Ordinance of 1867 to1909.
state that amount; that he has the right simply to state that heMay S.
objects to the 'assessment, and to require the Court to consider his. jjixtchinsonobjection and amend the assessment. But he is required by the C.J.Ordinance of 1887 to state in writing the grounds of his objection. to the Chairman of the Council and to the person, if any, whoseproperty has not be^n assessed ; and th» Court might require himto state in his plaint the amount by which he asks that it.should beamended, if that is necessary in order to ascertain whether the Courthas jurisdiction. But when he asks that an assessment of Rs. 1,056should be reduced to Bs. 900, can it be said that liis. “ demand ” -is for Bs. 156? I think not. He will not get Rs. 156 if he succeeds;he will get a reduction of his rate by about Rs. 20. In my opinionhis demand is not for Rs. 156. Then, are we to say that the testof jurisdiction is now whether the amount by which, if the objectionsucceods, the rate may be amended exceeds Rs. 300 ? If that isso, it will require a large reduction in the amount of the assessment—a reduction, according to the present rate, of between Rs. 2,000and Rs. 3,000 to take the case out of the jurisdiction of the Courtof Requests.
The Legislature and the draftsman of the Court of RequestsOrdinance probably had not their attention specially directed to theOrdinances of 1867 and 1887. If they had, and if they had intendedto ‘enlarge the jurisdiction of Courts of Requests in cases of appealsfrom assessments, I think that they would have considered itnecessary to expressly amend the Ordinance of 1867 so as to statewhat should be in future the test of jurisdiction in such cases.
In my opinion the enactment of section 4 .of the Court ofRequests Ordinance as to jurisdiction cannot be applied, and wasnot intended to apply, to objections to assessments under theMunicipal Councils’ Ordinance. If I am right, the Court of Requestshad no jurisdiction in this case. The second question reservedfor our decision does not arise, and the action should have beendismissed. I suggested during the argument that when the Legis-lature by Ordinance No. 27 of 1908 authorized the republication ofOrdinance No. 5 of 1867 in the revised edition, and declared that thatedition should be the only Statute Book of the Island, it expresslyrepresented thereby that Ordinance No. 5 of 1867 is still in forceas it is printed in the revised edition. That argument, however,would not help us much if we had to do with two contradictory orinconsistent enactments. But I do not think that in this case wehave two such enactments.
Wendt J.—
When “The Police Ordinance, 1865,” and “The MunicipalCouncils’ Ordinance, 1865,” authorized the levying of rates onlands for the maintenance of the police force, &c., no remedy was
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1909. provided for landowners who considered themselves aggrieved byMay 5. the assessment of thfir property. Two years later the Legislature,Wendt J ^y Ordinance No. 6 of 1867, reciting the desirability of givingdissatisfied parties “ the right to object to and appeal against”such assessment, enacted that “ if any person shall be aggrieved bythe assessment or non-assessment of any house, building, land, ortenement, it shall be lawful for him to object to such assessmentor such non-assessment before the Court of Requests having juris-diction in the place where such house, building, land, or tenementis situate, if the amount of the rate on the annual value of suchhouse, building, land, or tenement does not exceed ten pounds,and to'the District Court if such amount exceeds ten pounds ; andsuch Court shall decide upon such objection in a summary way,and have power to amend the assessment or to supply any omissionif necessary, and its decision shall be subject to appeal to theSupreme Court, which shall have like power of amendment, andeach of the said Courts shall have power to give costs.” Section 141of the present Municipal Councils’ Ordinance. (No. 7 of 1887), whichrepealed the older Ordinance, empowers the party aggrieved “ toobject to, and appeal against, such assessment or non-assessmentin the manner provided by the Ordinance No. 5 of 1867.” TheOrdinance of 1867 created a new remedy, and prescribed in whattribunal that remedy should oe pursued. In apportioning the casesbetween the Court of Requests and the District Court, it enactedthat the objector should resort to the Court of Requests if theannual rate did not exceed £10 (now equivalent to Rs. 100), otherwisehe should apply to the District Court. It is noticeable that thedivision did not depend upon the value involved in the claim (whichis the principle upon which the dete a nation of jurisdiction inordinary cases depends), but upon the amount of the rate. Theclaim might be for a reduction of the •'ssessment, which wouldinvolve a corresponding reduction of the rate by Rs. 5 only, yet ifthe rate was over Rs. 100, the proper Court was the District Court.Clearly, therefore, the assignment of jurisdiction between the twoCourts did not proceed upon the principle applicable to ordinaryactions, but was peculiar to the special procedure newly created.Then came in 1895 the Court of Requests Amendment Ordinance(No. 12 of 1895), which by section 4 repealed section 77 of theCourts Ordinance defining the general jurisdiction of Courts ofRequests, and substituted a new definition empowering suchCourts to take cognizance of all actions in which the debt, damage,or demand shall not exceed Rs. 300. It was argued that this newOrdinance impliedly repealed section 1 of the Ordinance of 1867 asbeing inconsistent with it, and it was suggested that section 1should now be given effect to as if “ Rs. 300 ” were substituted for“ £10.” I certainly think that cannot be done, because the Rs. 300is mentioned as the limit of value involved in the action, while
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the £10 was the limit of the rate. Nor do I think that the enactmentof 1895 could be regarded as introducing into that of 1867 a newprinciple of ascertaining jurisdiction, viz., according to the valueinvolved in the demand. It is more than probable that the drafts-man of the Ordinance of 1895, and the Legislature in enacting it,had not their minds directed to the Ordinance of 1867 at all, andhad no formulated intention in regard to it, but dealt with thegeneral jurisdiction of the Court without regard to any particularclass of cases expressly assigned to that Court or .the Distriot Court.Otherwise I should have expected definite specific reference to theolder Statute. I cannot subscribe to the decision of Lawrie J. inBell v. The Colombo Municipal Council.' I think that the Ordinanceof 1867 created a new and special right, and prescribed a specialprocedure for enforcing it, and the Ordinance of 1895 cannot beheld to have intended to leave the right untouched, but to alter theprocedure, when it said not a word as to either. I may add thatif the respondent’s argument is sound, the Ordinance of 1867 wastwice repealed before 1895 by the successive Ordinances definingthe general Court of Requests jurisdiction, viz., No. 11 of 1868,section 81, and No. 1 of 1889, section 77, each of which empoweredthose Courts to entertain actions in which the demand did notexceed £10.
I hold that the Court of Requests had not jurisdiction to proceedwith this action, and I would reverse the decree.appealed from anddismiss the action with costs in both Courts.
Appeal allowed.
♦
1909.
May 5.
Wendt J.
‘ (1901) 4 App. O. B. 21.