SOYSA v. COLOMBO MUNICIPAL COUNCIL

001-NLR-NLR-V-42-SOYSA-v.-COLOMBO-MUNICIPAL-COUNCIL.pdf


THE
NEW LAW REPORTS OF CEYLONVOLUME XLII1943Present: Soertsz, Keuneman and Cannon JJ.
SOYSA v. COLOMBO MUNICIPAL COUNCIL
C. R. Colomdo, 53,48&.
Appeal—Judgment of Court of Requests—Assessment of annual value—Rightof apjfeal—Municipal Councils Ordinance, s. 124 (3)—Civil ProcedureCode, s. 833 (a).
Section 124 (3) of the Municipal Councils Ordinance confers a specialright-of appeal from decisions of the Commissioner of Bequests in mattersof assessment unrestricted by the provisions of section 833 (o) of the CivilProcedure Code.
The rent actually received by the landlord is not necessarily conclusiveevidence of the annual value of premises even in cases in which there is nocontradiction by the Council of that evidence or in which there is noevidence of mala fidcs or of special circumstances.
A rent, which has been recently agreed to without the payment of apremium or the like may be taken as prima facie evidence liable to berebutted.
Weerasinghe v. Municipal Council of Kandy (25 N. L. R. 409) overruled.
T
HE plaintiff appellant instituted an action in the Court of Requestsobjecting to the decision of the Municipal Commissioner whereby
the appellant’s premises were assessed at the annual value of.Rs-. 500 forthe year 1939. The Commissioner of Requests held that the assessmentwas fair and reasonable and the action was dismissed with costs.
At the hearing of the appeal, the Counsel for the respondent took thepoint that only a question of fact was involved and that there was noappeal without the leave of the Court. Moseley J. thereupon referredthe whole case to a Bench of three Judges.
V. Perera, K.C. (with him A. M. Charavanamuttu), for the defendant,respondent.—This is an appeal from a judgment of a Court of Requestsand leave to appeal ought to be obtained. This action was institutedunder section 124 of the Municipal Councils Ordinance and it is of thenature of an appeal. Sub-section (3) of that section deals mainly withthe procedure for the determination of the action.
[Soertsz J.—What is the effect of the words “ in all cases ” in thatsub-section ?]
" All ” is used because of the actions instituted in District Courts andCourts' of Requests. It means “ every case ”. In legal documentsexpressions are used although they could be disregarded.
i—j.k. b i7-;_
2
Soysa v. Colombo Municipal Council.
[Soertsz J.—Cannot we give a meaning to it?]
The words “ subject to appeal ” in that sub-section is a statement withregard to the decision. It merely says that the decision is not final butsubject to an appeal. The rights of appeal are to be exercised accordingto the provisions laid down in the Civil Procedure Code. From anassessment the liability to pay the rates follows. It is a debt andtherefore it comes within section 833 (a) of the Civil Procedure Code.
[Cannon J.—Does not the Municipal Councils Ordinance confer aspecial jurisdiction on the Court of Requests ?]
When a right is conferred on a party, it does not necessarily confer ajurisdiction on a Court. If the existing jurisdiction is large enough thenno special right is conferred on the Court. Section 75 of the CourtsOrdinance defines the jurisdiction of Courts of Requests.
[Soertsz J.—In that section the expression “ debt, deunage ordemand ” is given a Wide meaning.]
The expression must be given the same meaning elsewhere as well. Itis illogical to give a different meaning to section 833 (a) of the CivilProcedure Code. The view taken in Weerasinghe v. M. C., Kandy1 iscorrect.
Here a party comes into "Court to get a declaration as to the quantumof the assessment. The law had taken away the right of appeal to Courtthat an aggrieved party had by vesting that right in the Chairman andsection 124 of the Municipal Councils Ordinance has restored thatj right.It is not an action $ui generis but the restoration of a right. A Courtcannot grant a bare declaration of a right. There must be a liability.
N. Nadarajah (with him B. C. Ahlip), for the plaintiff, appellant.—Section 124 of the Municipal Councils Ordinance provides a remedyagainst the decision of the Chairman by instituting an action. This is anappeal. In the earlier Ordinances the words “ in all cases ” do not appear.Under Ordinance No. 17 of 1865 there was no machinery to review theassessment. Ordinance No. 5 of 1867 provided for objections and appeals.Section 141 of the Municipal Councils Ordinance, 1887, re-enacted the•provisions for objections and appeals.
The words “ in all cases ” are used to clarify the right that is alreadygiven. Sub-section (4) also indicates this view. The expression “ subjectto appeal” means that an aggrieved party can appeal.
The word “ demand ” is defined in Byrne’s Law Dictionary. It wasconsidered in Mohideen v. the Proprietors of the Kellie Group 2.' Liabilityto pay has nothing to do in this case.
A general provision of an Ordinance cannot take away a provision of aparticular Ordinance—Maxwell on the Interpretation of Statutes, p. 328.This is an action for the valuation of the property. The question here isto consider whether it is an interest in land.
H. V. Perera, K.C., in reply.—It is a question relating to land but notan interest in land. The special provision of the law is not inconsistentwith the general law. In Mohideen v. The Proprietors of the Kellie Group(supra) the word “ demand ” was given a wide meaning. Byrne’s
definition agrees with that case.
[Soertsz J.—We will hear the appeal.]
i 2J X. L. Ii. 409.*
(1910J IS y. L. B. oOC. /
SOERTSZ J.—Soysa v. Colombo Municipal Council.
3
N.Nadarajah.—The assessor said that the property' was assessed on thesquare foot basis. The amount of the rent was not questioned. Unlessthere is collusion or bad faith between the owner and tenant the rentshould be the basis of assessment. In cases where the owner is in occu-pation different considerations, such as the revenue and profits orcontractor’s basis, will be applied. See Abdul Haniffa v. The MunicipalCouncil of Colombo1; Mohamed v. The Municipal Council of Colombo';Sidoris Appuhamy v. The Municipal Council of Colombo3; SUva v.Colombo Municipal Council'; and Weerasekera v. Municipal Council,Colombo
The English rule, too, is the same, that is, .the actual rent should betaken in the absence of any mala fides. Other methods had been adoptedwhere the owner was in occupation as in The Ceylon Turf Club v. TheColombo Municipal Council0. See also 27 Halsbury (Hailsham), p. 388,section 821.
H. V. Perera, K.C.—Weerasekera v. Municipal Council, Colombo (supra)casts an impossible burden on the respondent. See also Poplar AssessmentCommittee v. Roberts If a method is appropriate to one kind of property,then it is^ immaterial whether the owner is in occupation or not. Poyser J.rin Weerasekera v. Municipal Council, Colombo, held that without anyjustification the assessment ought not to be raised.
Cur. adv. vult.
October 23, 1940. Soertsz J.—
The first question that arises on this reference relates to an objectiontaken by Counsel for the defendant-respondent to the hearing of thisappeal, when it came up before my brother Moseley J. On that occasion,it was submitted to him that the appeal involved a pure question of facton which the Commissioner of Requests had pronounced final judgment,and that, consequently, there was no right of appeal from it in view ofsection 833 (a) of the Civil Procedure Code, which enacts that “ thereshall be no appeal from any final judgment or any order having the effectof a final judgment, pronounced by the Commissioner of any Court ofRequests in any action for debt, damage, or demand, unless upon a matterof law. or upon the admission or rejection of evidence, or with the leaveof the Commissioner, anything in section 78 of the Courts Ordinancenotwithstanding ”.
In this instance, no leave has been obtained from the Commissioner,or from this Court in accordance with section 833 (2) of the Civil ProcedureCode.
In support of his submission, respondent, Counsel relied on theruling in the case of Weerasinghe v. Municipal Council of Kandy ’, inwhich Schneider J. upheld a similar objection.
Counsel'for the appellant submitted that in virtue of section 124 (3)of the Municipal Councils Ordinance, there was a right of appeal in allcases from the decision of a Commissioner of Requests with regard to
» (1922) 1 Times 7.' 6 40 N. L. B. 418.
» (1915) 1 C. W. B. 34.- • (1934).37 N. L. B. 393 at 403.
3 (1919) 6 C. W. B. 335.7 (1922) 2 A. C. 93 at 107.
* (1905) 3 Bal. 163.8 25 X. L. B. 409.
4SOERTSZ J.—Soysa v. Colombo Municipal Council.
assessment of any house, building, land, or tenement, and he asked for areview of the ruling in the case relied on by the respondent. He alsocontended that this appeal involved a question of law.
Moseley J. ruled that the appeal raised what “ seems to be purely aquestion of fact ”, but because he had “ some hesitation in agreeing withthe view taken by Schneider J. ”, he referred the whole case forconsideration by a Divisional Bench.
The answer to the question raised by the preliminary objectiondepends on the correct interpretation of section 124 (3) of the MunicipalCouncils Ordinance. Does that section confer a special and unrestrictedright of appeal from decisions of a Commissioner of Requests in mattersof assessment, or must that section be read with section 833 (a) of theCivil Procedure Code as subject to the restriction imposed by it ?
The relevant part of section 124 of the Municipal Councils Ordinance isin these terms : —
“If any person is aggrieved by the decision of the Chairman with
regard to the assessment of any house, building, land or tenement, hemay …. institute an action objecting to such decision in the
Court of Requests having jurisdiction …. if the amount ofthe rate or rates …. does not exceed three hundred rupees,,,and in the District Court having jurisdiction, where such amountexceeds the sum of three hundred rupees ”.
“Upon the trial of any action under this section, the plaintiffshall not be allowed to adduce evidence of any ground of objectionwhich is not stated in his written objection to the Chairman ”.
“ Every such Court shall hear and determine such action accord-ing to the procedure prescribed for such Courts by the law for the timebeing in force regulating the hearing and determination of actionsbrought in such Court, and the decision of such Court shall in all cases hesubject to appeal to the Supreme Court ”.
Every such appeal shall be governed by the provisions ofChapter LVIII. of the Civil Procedure Code, or by any Ordinance herein-after enacted regulating the making of appeal to the Supreme Courtfrom any judgment, decree or order of Courts of Requests or DistrictCourts ”.
The argument advanced by respondent’s Counsel is that this sectiondoes not confer a special right of appeal in matters of'assessment, butmerely declares that the decision given by the Commissioner is not a finalbut an appealable decision, and that the conferment of the right to appeal,and the limits within which that right may be exercised are to be found insection 833 (a) of the Civil Procedure Code read with section 78 of theCourts Ordinance.
I have examined this contention with great care, but I can find nojustification for it, whether the approach to it be historical or expository.Whichever way I look at it, it seems tcTme that section 124 of the MunicipalCouncils Ordinance creates and defines a special proceeding in regard tothe hearing and determination by the relevant Courts of questions arisingfrom the decision of the Chairman of the Municipal Council on matters ofassessment, and confers a special right of appeal to the Supreme Courtfrom the decisions of such Courts.
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SOERTSZ J.—Soysa v. Colombo Municipal Council.
So far as I have been able to delve into the history of this matterof assessment in relation to the jurisdiction of Tribunals, the first enact-ment dealing with it is Regulation No. 5 of 1320 which, for the purpose ofobtaining contributions for the repairs of the roads in the Fort, Pettahand gravets of Colombo, authorised a committee of five respectablepersons to assess the annual rent of dwelling houses and shops within thatarea, and provided for an appeal to the collector whose decision was to befinal. This regulation created a special jurisdiction in regard to mattersof assessment distinct from the jurisdiction of tfie Courts in existence atthat date. It gave a right of appeal to the collector in every, case. Theregulation of 1820 was repealed by Ordinance No. 4 of 1834 which consoli-dated and amended the law relating to assessment tax on houses inColombo and Galle, and enacted that the assessment should be mads bya committee, and gave the right to any owner or occupier to appeal fromthe assessment to the relevant District Court which was required to decidesuch appeal ‘ by examination of parlies or hearing evidence ’. » This Ordi-nance too gave a right of appeal in every case.
In 1843 by Ordinance No. 10 of that year, Courts ox Requestswere established with Commissioners to preside over them. By section 5of that Ordiftance these Courts were given jurisdiction to try esses up tothe value of £5 and by section 22 the decisions of these Courts were subjectto review by the Supreme Court. In the following year Ordinance No. 17of 1844 provided for the assessment of the " bona fide value of all housesand buildings ” by a committee, and gave an aggrieved party the rightto object to such assessment “ whatever may be its amount ”, beforethe Court of Requests of the town concerned and directed the said Court“to decide upon the matter of such objection in a summary way ”, andenacted that “ no appeal or review shall lie against any such decision ”.Here again it will be observed that a special jurisdiction distinct from theordinary jurisdiction of Courts of Requests is created.
The next important Legislative Enactment dealing with thismatter is Ordinance No. 5 of 1867 which enacted that “ if any personshall be aggrieved by the assessment or non-assessment of any house,building, land or tenement, it shall be lawful for him to object .before the Court of Requests having jurisdiction …. if the
amount of the rate on the annual value …. does nor exceed tenpounds. and to the District Court if such amount exceeds ten pounds.And such Court shall decide upon such objection in a summary way ..
.. and its decision shall be subject to appeal to the Supreme Court”.
At the time this Ordinance came into force the law relating to the juris-diction of Courts of Requests was the law enacted by Ordinance No. 8 of1859. Section 8 of that Ordinance is in these terms : —
“ Each of the said Courts (i.e., Courts of Requests) shall be a Courtof Record and shall have cognizance of, and full power to hear anddetermine all actions in which the debt, damage or demand shall notexceed ten pounds ”.
Section 19 gave a right of appeal from any final judgment or order forany error in law or in fact.
Now it seems to me that these two enactments afford a clear clue tothe solution of the question before us. The only reasonable inference
6SOERTSZ J.—Soysa v. Colombo Municipal Council.
to be drawn from the fact that notwithstanding sections 8 and 19 ofOrdinance No. 8-of 1859, the Legislature thought it necessary to promul-gate Ordinance No. 5 of 1867 in order to confer jurisdiction on Courts ofRequests in matters of assessment not exceeding ten pounds and to give aright of appeal is that it regarded the question of objection to assessmentor non-assessment as something outside the scope of actions for debt,damage or demand. It is immaterial to inquire whether this view of theLegislature was right or wrong. What is important and to the point isthat that appears to have been its view when it passed Ordinance No. 5of 1867. For if objection to assessment or non-assessment was in itsview, within the meaning of the words “ action for debt, damage ordemand”, Courts of Requests already had jurisdiction to entertain (hatmatter in virtue of Ordinance No. 8 of 1859, inasmuch as the monetarylimit for Courts of Requests was the same, in both Ordinances, namely,ten pounds, and there was a right of appeal by virtue of section 19 ofOrdinance No. 8 of 1859 as I have already pointed out.
When the Municipal Councils Ordinance, No. 7 of 1887, was passedit expressly reserved, by section 141, the jurisdiction created by OrdinanceNo. 5 of 1867. Things continued in this state till the enactment ofOrdinance No. 12 of 1895- which, by section 4, empowered Courts< ofRequests to take cognizance of and to hear and determine all actions inwhich the debt, damage or demand shall not exceed Rs. 300. Six years,later, the question arose whether this increase in the monetary limit ofthe jurisdiction of Courts of Requests resulted in a similar extension ofjurisdiction in regard to matters of assessment, and in the case of Bell v.Colombo Municipal Council', Lawrie J. held that by virtue of section 4of Ordinance No. 12 of 1895, it was competent for a Court of Requests totry and determine a matter of assessment in which the rate involvedwas Rs. 264. In the case of Jalaldeen v. The'Colombo Municipal Council ,3Wood Renton J. approved this decision of Lawrie J. as “ sound ”. Butwhen the case of Jalaldeen v. The Colombo Municipal Council came beforea Bench of two Judges on some other questions, Hutchinson C.J. andWendt J. overruled Bell v. The Colombo Municipal Council. They heldthat the jurisdiction of Courts of Requests in matters of assessmentremained at the monetary limit of Rs. 100 and that that limit had notbeen altered by Ordinance No. 12 of 1895. They also ruled that the“ demand ” involved in the objection to assessment is related in terms ofmoney not to the amount of the increase or the decrease of the assessment,but to the rate. The rate was the determining factor. In the course ofhis judgment, Wendt J. made this observation : —
“ I cannot subscribe to the decision of Lawrie J. in Bell v. TheColombo Municipal Council. I think that the Ordinance of 1867created a new and special right, and prescribed a special procedure for,enforcing it ”.
With that observation I would respectfully associate myself.
The resulting position, then, is that even if it is conceded that anaction instituted by right of section 124 (1) of the Municipal CouncilsOrdinance objecting to the decision of the Chairman with regard to theassessment of any house, building, land or tenement can, a priori, be said’ 4 A. C. P. 1‘7.5 4 A. C. B.131.
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SOERTSZ J.—Soysa v. Colombo Municipal Council.
to. be an action for debt or demand, the Legislature preferred to treatsuch an action as sui generis, and enacted Ordinance No. 5 of 1867 confer-ring a special jurisdiction, providing a special procedure for the hearingand determining of such actions, and giving aggrieved parties a specialright of, appeal. When Ordinance No. 7 of 1887 replaced OrdinanceNo. 5 of 1867, section 141 of the new Ordinance expressly empowered theparty aggrieved by the decision of a Chairman “to object to and appealagainst such assessment or non-assessment in the manner provided bythe Ordinance No. 5 of 1867 ”. In other words, it continued the specialjurisdiction, the special procedure and the special right of appeal providedfor by earlier Ordinance. Ordinance No. 6 of 1910 which followedinterfered with this state of things only to the extent of raising themonetary limit of the jurisdiction of Courts of Requests in matters ofassessment so as to enable them to try actions in which the rate involveddid not exceed Rs. 300. It brought the monetary limit in matters ofassessment in line with the monetary limit of the jurisdiction of Courts ofRequests in all other actions that they had power to try, and so met thedifficulty created by the decision given in Jalaldeen’s case.
For these reasons, I • am of opinion that such an historical examina-tion as I h&ve attempted leads to a conclusion contrary to the view takenby Schneider J. and establishes that section 124 of the Municipal CouncilsOrdinance creates a special right of appeal and defines that rightindependently of the Courts Ordinance and of the Civil Procedure Code,except that it adopts the procedure laid down by “ Chapter 58 of the CivilProcedure Code or by any Ordinance hereafter enacted regulating themaking of appeals ”.
An examination of the words of section 124 leads to the sameconclusion. The effect of the words " and the decision of such Courtshall in all cases be subject to appeal to the Supreme Court ” is, in theplain meaning of those words, to give a right of appeal not restricted inthe way in which the right of appeal given by section 833 (a) of- the CivilProcedure Code is restricted. If it had been the intention of the Legislatureto impose similar limits to the right of appeal in matters of assessment, itseems to me that the obvious course for it to take was to refer to andadopt the provision in section 833 (a) just as it referred to and adoptedChapter 58 of the Civil Procedure Code when providing for the modeof preferring and prosecuting appeals.
Schneider J. appears to have reached the conclusion to which hecame in Weerasinghe v. Municipal Council (supra), by taking the view thatthe words “ shall in all cases be subject to appeal ” are inappropriate forconferring a special right; of appeal. He seems to have thought that ifthe conferment of a special right of appeal had been in the contemplationof the Legislature, it would have said “ the aggrieved party may appeal ”,or “ it shall be lawful for the aggrieved party to appeal ”. But~althoughthe language of statutory law is, to a large extent, conventional, I do notthink -it is quite as stereotyped as this comment of Schneider J. suggestsI can see no substantial difference between the phrases “may appeal”,“ it shall be lawfiill to appeal ”, and “ shall be subject to appeal ”, The*-seem to be different ways of saying the same thing.
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SOERTSZ J.—Soysa v. Colombo Municipal Council.
On the other hand, Counsel for the respondent admitted thaton his submission the words “ in all cases ” in sub-section (3) are otiose.He sought to dispose of them by ascribing them to the copiousness of thedraftsman’s vocabulary. I am afraid I must refuse to be lured by theattractive simplicity of that solution. As Moseley J. observed thesewords “mean what they say” or are “meaningless”. It is an element-ary rule of legal interpretation that words used in Legislative Enactmentsmust be given a meaning wherever possible. It is not only possible,but quite easy to give the words “ in all cases ”, in this context, theirordinary meaning. Difficulty arises, and we find ourselves “ in wanderingmazes lost ” only when we set out in search of support for a preconceivedor desired interpretation by disregarding words that occur, and importing. other provisions of law which have a purpose of their own, into a provisionsuch as section 124 of the Municipal Councils Ordinance which has anindependent completeness.
As a last resort, respondent’s Counsel submitted that publicpolicy suggests that the Legislature must have intended to adopt onemeasure of appeal from decisions in all cases that can reasonably bebrought within the phrase action for “ debt, damage, or demand I havealready dealt with the submission that objection to assessmerit is withinthe meaning of the word “ action for debt or demand ” but with referenceto this appeal to public policy, it has been often remarked that when weenter the region of public policy we are on slippery ground, and astrideBurrough J.’s aged, but still “very unruly horse”. (Richardson v.Mellish1.) We do not know where it will lead us. It is sufficient to saythat it may well be that the Legislature thought that public policy requiredthat such an imporant and difficult matter as that of assessment shouldbe put in a class of its own.
For these reasons I am of opinion that the decision in Weerasinghe v.Municipal Council, Kandy (supra) is erroneous.
In view of this ruling and because Moseley J. has referred the wholecase to us, we heard Counsel on the substantive appeal, and I now proposeto address myself to that appeal.
The relevant facts are that the Municipal Council, through itsAssessor, rated the appellant’s property, No. 139, Bambalapitiya, on anannual value of Rs. 500. The appellant objected to this assessment, andasked that it be reduced to Rs. 450. The Commissioner refused toentertain the objection, and dismissed the action with costs. The appealis from that decision.
The burden is on the appellant to show that the Assessor’s assess-ment is unreasonable, and the question is whether the appellant hasdischarged that burden.
The learned Commissioner has accepted the appellant’s evidencethat he receives a monthly rental of only Rs..45 ; that he tried his best toget Rs. 50 ; that his present tenant offered him only Rs. 40 in April, 1939 ;that he refused to accept that offer ; that the building remained unoccu-pied in May, 1939 ; that the present tenant later offered him Rs. 45 per
1 2 Bing 229.
SOERTSZ J.—Soysa v. Colombo Municipal Council.
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mensem and took it at that rental from June 1, 1939; that up to date,he pays that rent. There is also the uncontradicted evidence of theappellant that when this building was ready for occupation in February,1937, he asked for Rs. 50 a month but could find no tenant till April.He then found a tenant who offered to pay him Rs. 50 a month, occupiedthe building from April to October, and then “ ran away without payingrent for August and September”. The_ nett result of that transactionwas that the appellant received only Rs. 33.50 per mensem during thatperiod. He never again found a tenant who even professed a willingnessto pay Rs. 50 a month. He says that in order to find a tenant at Rs. 45a month, he has had to reject lower offers, and to keep the building- unoccupied for months at a time.
The plaintiff-appellant further testified to a drop in rents in thisarea, and on this point, he was supported by two witnesses whom henailed, and by three witnesses called by the defendant-respondent. Allthat the Municipal Assessor was able to say in regard to this was that acomparative statement (D 4) of annual values compiled by him for theperiod 1934-1939 showed that, but for one exception, the assessmentshave remained the same, but he was unable to say, except inferentiallytjrom D 4? that the rents have remained the same in this area. In viewof all this, it is difficult to understand why the Commissioner of Requestssays that the plaintiff's allegation that there has been a tendency for rentsin this area to drop “ is not warranted by the evidence ”.
The defendant-respondent’s case rests mainly on the resultsobtained by the Assessor by the application of what is known as the squarefoot method. The Assessor takes a number of more or less similarinstances in this area and shows that in those instances, on the assessedvalue, the tenant pays as rent more per square foot of space than thetenant of this building would be paying if the rental had been fixed atRs. 50 per mensem. On the assessed value of the premises in question,the square foot method yields 58 cents per square foot, whereas thestatements D 1 and D 2 show that other premises in the near neighbour-hood stands 82 cents, 70 cents, and 71 cents per square foot. Now, tocarry the argument involved in this to its logical conclusion, it seems tofollow that by the application of this method it would have been possibleto justify an annual value of Rs. 600 or more for these premises.
When I make this comment I do not intend to suggest that theactual rent paid by a tenant to his landlord must for the purpos- ofassessment, always prevail over the results obtained by applying otherprinciples familiar to the Law of Rating, such, for instance, as the square■foot method applied in this case.
In Weerasekera v. Municipal Council, ColomboPoyser J. said:“ As I stated before, the rent actually paid is by no means conclusive asto what a hypothetical tenant would pay, but it is prima facie evidencewhich, if uncontradicted may become conclusive ”. In Silva v. ColomboMunicipal CouncilPereira J. observed as follows: —“ The actual rentreceived by the landlord, in the absence of evidence of mala fides on the
* 40 N. L. R. 419.
3 Dal. 103.
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• SOERTSZ J.—Soysa v. Colombo Municipal Council.
part of the landlord or tenant is generally speaking, a fair test to go by inestimating the annual value, provided, of course, it has not been fixed inview of special circumstances applicable to any particular' case Thewords I have underlined are of the greatest importance when we areexamining these judgments in order to obtain guidance for ourselves.Those words are, in my view, intended to convey the meaning that the. actual rent paid is not necessarily conclusive even in cases in which thereis no contradiction by the Council of the evidence for the landlord inregard to the rent paid by his tenant, or in which there is no evidence ofmala fides, or of special circumstances. I have thought fit to drawattention to this fact because there are other cases in which the decisionsseem to suggest that in the absence of “ contradiction ”, “ mala fides ”,or “ special circumstances ”, the actual rent paid affords a conclusive test.That appears to be too wide a proposition. I .am indebted to my brother_ Keuneman for a reference to a passage in Faraday on Rating (4th ed.), p 70,which sums up admirably the law on this matter. It says, “ as a broadprinciple the rent actually paid is prima facie evidence of value,^but it isnot conclusive evidence ; the rent, however recently agreed to be paid by aperfectly free occupier under the statutory terms, would be a criterion ofvalue difficult to set aside”. Ryde on Rating (5th ed.), p. 207, puts thematter thus :—“But though the rent actually paid is not the measurecofrateable value, or even conclusive evidence of the value at the date whenthe rent was fixed, if a rent payable under a yearly tenancy has beenrecently fixed without payment of any premium or the like, it may be takenas prima facie evidence liable to be rebutted ”. It is not difficult toimagine cases in which even in the absence of “ contradiction ”, " malafides ” or “ special circumstances ”, a rent lower than that which ahypothetical tenant might reasonably be expected to pay is fixed betweenlandlord and tenant without what is known as “ higgling of themarket
In the case before us, the Assessor does not deny that the monthlyrent of Rs. 45 is the actual rent. The Commissioner of Requests hasfound that there has been no “ mala fides ”, that there are no“ special circumstances ” relating to the fixing of this rent ; the evidenceestablishes that there has been sufficient “ higgling of the market ” bythe landlord, and the rent of Rs. 45 a month is a rent that has beenrecently fixed.._
In these circumstances, the appellant has satisfied the requirementsimposed upon him and has proved that Rs. 450 is the annual value of thisbuilding in the meaning given' to “ annual value ” in section 4 of theMunicipal Councils Ordinance.
I would, therefore, allow the appeal, set-aside the decree entered by theCommissioner of Requests and direct decree to be entered declaringRs. 450 to be the annual value of this building for the year 1939.
The'appellant is entitled to costs here and below.
Keuneman J.—I agree.
Cannon J.—I agree.
Preliminary objection overruled.
Appeal allowed.