070-NLR-NLR-V-71-KUNDANMALS-LIMITED-Appellant-and-THE-MUNICIPAL-COUNCIL-OF-COLOMBO-Respondent.pdf
H. N.u. jriSHN&MUJ, uj.—Kundanmals Limited ■313
v. The Municipal> Council of Colombo '
1968: Present: H. H. G. Fernando, 0J.9 and de Kretser, J.KUNDANMALS LIMITED, Appellant, and THE MUNICIPALCOUNCIL OF COLOMBO, Respondent
S. C. 180 (Inly.) j1966—D. G. Colombo, 1197
Municipal Council—Valuation of property—Procedure in case Of objection to assess-ment—“ Ground of objection.Municipal Councils Ordinance (Cap. 25%),
as. 235, 236 (2), 327—Rent Restriction Act.
Where an action is filed under section 236 of the Municipal Councils Ordinancefor the reduction of the assessment of the annual value of certain premises,section 236 (2) is not a bar to the plaintiff adducing evidence and arguing at thetrial that, having regard to the provisions of the Rent Restriction -Act, thehypothetical tenant contemplated in the definition of annual value Jnsection 327 of the Municipal Councils Ordinance cannot be reasonably expectedto pay for the premises a higher rent than that which the landlord is permittedby the Rent Restriction Aot to receive. It is not necessary that this particularground of objection should have been stated in the written objection to theassessment, which the plaintiff made to the Council.under section 235 of theOrdinance.
Appeal
from an order of the District Court, Colombo.
8. Sharvananda, with K. Kanthasamy, for the Plaintiff-Appellant.
H. Wanigaittnga, for the Defendant-Respondent.
Our. adv. vult.
June 26,1968. H. N. G. Fernando, C.J —
This was an action filed under section 236 of the Municipal CouncilsOrdinance for the reduction of the assessment of the annual value ofcertain premises. The plaint alleged in paragraph. 9 that the plaintiffbrings this action “ objecting to the deoision (of the Counoil) pn-the groundthat the annual value of Rs. 6,690 is excessive and unreasonable *■.
When the case was token up for trial Counsel for the plaintiff statedhis intention to argue that, having regard to the provisions of the RentRestriction Act, the hypothetical tenant contemplated in the definition of“ annual value ” in section 327 of the Municipal Councils Ordjnaooecannot be reasonably expected to pay for any premises a higher rentthan that which the landlord is permitted by the Rent Restriction Act toreceive. Upon an objection taken on behalf of the Municipal Council,the learned District Judge made order that the plaintiff would not belxxx—14
314
H. X.J-Gi FERNANDO, C.J.—Kundanmala Limited
y. The Municipal Council of Colombo
allowed to adduce evidence of facta upon which he could base theargument which I have just mentioned. The Judge relied on a. 236 (2)of the Municipal Councils Ordinance which provides that:—
*' Upon the trial of any action under this section, the plaintiff shall
not be allowed to -adduce evidence of any ground of objection which is
not stated in his written objection to the assessment ".
In the appeal also, it was argued for the Council that since this particularground of objection was not stated in the written objection to theassessment, which tKe plaintiff had made to the Council under e. 235of the Ordinance, the plaintiff could not be permitted at the trial toadduce evidence on that ground.. *
In Ceylon Turj Clvb v. Colombo Municipal Council1 Macdonell, C.J.,considered the meaning of the expression 11 ground of objection ” ins. 236 (2) (formerly s. 124), and held that the statement in a writtenobjection to the Council “ that the assessment of annual value isexcessive ” is susceptible of a single and precise meaning, namely thatthe assessment is excesisive in relation to the annual value specified in it.In other words, such a statement means that the assessment is excessivebecause it is greater than the proper assessment which the definition of" annual value ” requires the assessor to make.
By reason of the definition, the assessment of the annual value ofpremises must be an estimate of the amount of rent which a tenant mightreasonably be expected to pay. If it is the position of an objector that aparticular assessment is excessive because a tenant cannot be reasonablyexpected to pay a higher rent than that permitted by the Rent RestrictionAct, his objection is purely and simply that the assessment is excessive.In such a case, the objector relies on a legal argument based on the impactof the Rent Restriction Act only as a reason for his plea of excessiveness :but the ground of objection is that, for that reason, the assessment isexcessive. Thus the ground or matter which calls for decision by theCourt is whether or not the assessment is excessive ; and an assessmentcan be excessive, not only because of circumstances which are purelyactual, but also because the circumstances are such that provisions ofaw render the assessment excessive.
I hold therefore that the plaintiff is entitled to raise at the trial thequestion of law which was outlined before the trial Judge, and to adduceevidence relevant to that question.
The order made by the learned District Judge on 19th September 1966is set aside. The plaintiff will be entitled to the oosts of this appeal.
DE Kbetseb, J.—I agree.
Order set aside.
» (1934) 37 N. L. R. 393.