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BANAWA NAGEDABA MUDIYANSE v. MUNICIPALCOUNCIL, KANDY.
C. B., Kandy, 12,297.
'Buddhist temple lands—Municipal taxes—Ordinance No. 7 of 1887, s.137—Proclamation of 21st November. 1818, s. 21—“ Exemption fromall taxation "—Contrary enactments—Repeal by implication.
Under section 127 of the Ordinance No. 7 of 1887, a Municipal Councilis not entitled to make and assess any rate on the value of any land,the property of a Buddhist temple, exempted from taxation by section21 of the Proclamation of 21st November, 1818.
N this case the trustee of a Buddhist temple in Kandy sued theMunicipal Council, Kandy, for the return of the-money paid
by him under compulsion as Municipal tax claimed illegallyby the Council on certain lands belonging to the temple. TheCommissioner held against the trustee.
The plaintiff appealed. The appeal was argued on 3rd March,1904.
Walter Pereira, for appellant.
Van Langenberg, for respondent.
Cur. adv. wit.
4th March, 1904. Moncreiff, J.—
The question is whether the Municipal Council of Kandy cancompel payment of assessment tax and lighting rate in respect oflands which are the property of Nitteawella Vihare within the .gravets of Kandy. The trustee of the vihare sues for the returnof Bs. 57.56 paid under compulsion. He maintains that landswhich are the property of temples are exempt from all taxation.By the Proclamation of the 21st November, 1818 (section 21)
“ the Governor,, desirous of showing the adherence of the Govern-ment to its stipulation in favour of the religion of the people,exempts all lands which now are the property of temples from alltaxation whatsoever.”
The defendants reply that the Legislature has , given thempower to impose rates and taxes in respect of temple lands, andthat the exemption given by the Proclamation of 1818 has beenrepealed. Section 127 of the Municipal Councils’ Ordinance, No. 7of 1887, gave the Council power to* make bAd assess for certainpurposes, inter alia lighting, “ any Separate or consolidated rate orrates on the annual value of all houses and buildings of every
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description, and all lands and tenements whatsoever, within the
municipality Provided further (as amended by section 2 of
Ordinance No. 16 of 1900) that all buildings exclusively
appropriated to religious worship shall be exempted from
the payment of such rate or rates. ’ ’
The Council has thus power to assess in respect of all housesand buildings and all lands and tenements whatsoever. Moreoverthere is in the proviso an exemption in favour of buildings exclu-sively appropriated to religious worship, but not in respect oflands. Did the Legislature mean to repeal the exemption grantedby the Proclamation of 21st November, 1818 ?
Field, J. (Dobbs v. Grand Junction Waterworks Go., 51 L. J.
Q. B. 504) said: “ Repeal by implication is never to be favoured;it is no doubt the necessary consequence of inconsistent legislationwherever it occurs, but it must not be imputed to the Legislature'unless absolutely necessary.”
A. L. Smith, L.J., says on the same subject (1 L. R. Q. B., 1892,656, Churchwardens of West Ham v. Fourth City Mutual Build-ing Society): ‘ ‘ The test of whether there has been a repeal byimplication is this: are the provisions of the later Act so .inconsistent or repugnant to the provisions of the earlier Act thatthe two cannot stand'together? In which case leges posteriorescontrarias abrogant.”
I do not think the alleged repeal by implication in this casesatisfies these requirements.
Mr. Van Langenberg argued that, although the subject might be,the Crown is not bound by a Proclamation; and Mr. Pereiraadmitted that the Crown might recede from the matter in theProclamation. But as the Crown has not necessarily, in myopinion, shown any wish to recede from its position under theProclamation, I need not say more on the point.
Then the question arises, what was meant by the w7ord r‘ taxa-tion ” used in the Proclamation?
In Brewster v. Kidgel (1697), 12 Modern Reports 167, LordHolt said: “ When taxes are generally spoken of, if the subject-matter will bear it they shall be intended Parliamentary taxesgivei to the Crown. TheVe are diverse other things improperly'called taxes,' as rates for Church and Poor, Sewers; or anyimposition that lessens^ a man’s property, is called a tax. Soin the Stat. det Tall&gio non concedendo. But when taxes aregenerally spoken of they are to be understood of the highest andmost eminent sort of taxes/- those in aid of the Crown. Thatwhich particularly affects this case is the time when thiscovenant [for rent free from all taxes] was made, anno 1649.
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when taxes of this nature had been used for four or five years
before^ If this covenant had been in the year 1640, and not
1649, it would not have reached this case, because there was nosuch kind of taxes in being.”
We know, therefore, what might have been meant in Ceylon bya general exemption from taxation in 1818; for primd facie themeaning attached to the word in England would attach here.
A reference to the full text of the Proclamation shows that theGovernor therein abolished “ all duties heretofore payable to theGabadawas Arumudale Avulege, and all other duties or taxeswhatsoever are abolished, save and except that now declared andenacted, being a tax on all paddy lands of the annual produce.”Then the modifications and exceptions are dealt with, andamongst others the exemptions of temple lands from V alltaxation whatever.” This can hardly be called a general exemp-tion, for although the Proclamation provided that there should beonly one tax, the terms of the exemption have evidently refer-ence to more than the paddy tax. The presumption is thereforethat the taxation mentioned was meant to include what the wordwould have included in England, unless it can be shown thatsuch could not have been tbe intention of the Proclamation. Ifit. were shown, for example, that a lighting rate was only an assess-ment or a “ duty ” such as is mentioned in section 17 of theProclamation, this appeal might be dismissed.
I find, however, that by Regulation No. 5 of 1824, for forma-tion of a fund for repair of the roads in the Fort, Pettah, andgravets of Colombo, and for fighting the streets of the Pettah,authority was given for assessment of houses and shops and thelevying of a tax. The assessment was to be made by a Committeeof five persons, and the tax to be paid to the Collector of Colombo.The regulation was amended frequently, and a similar regulationmade for Galle. In Regulation No. 8 of 1830 the imposition wascalled “ assessment tax.” Regulation No. 10 of 1825 refers to theJoy tax, the tax on toddy drawers, and the “ assessments levied
under the authority of Government at various rates to
provide mails in lieu of calling on each individual to carry the .same gratuitously in turn,” and provides that ” in lieu of all thesaid taxes and assessments (being all .of them more ^or less in the,nature of capitation taxes) the sum of 1«. 6d. should be leviedannually on all the male inhabitants of the districts affectedbetween the ages 16 and 60 years.”
1 think that this appeal’ should >be allowed and judgment asprayed for in the plaint be entered- The appellant will have hiscosts of appeal and in the court below.
RANAWANAGEDARA MUDIYANSE v. MUNICIPAL COUNCIL KANDY