038-SLLR-SLLR-1980-V-2-TARACHAND-v.-MUNICIPAL-COUNCIL-OF-COLOMBO.pdf
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TARACHAND v. MUNICIPAL COUNCIL OF COLOMBOCOURT OF APPEAL
ABDUL CADER J. & L. H. DE ALWIS J.,
A. (S.C.) NO. 352/72(F),
C. COLOMBO NO. 2056/Z,
OCTOBER 7,1980.
Municipal Council Ordinance, section 235(1) – Waiver.
In terms of section 235(1) of the Municipal Council Ordinance, the MunicipalCouncil, Colombo, entered the assessment for 1968 of premises described inparagraph 2 of the plaint in the assessment book and gave public notice thereof.The Council is required to give notice to the occupier of the premises undersection 235(3) in the forms set out in the third schedule.
The learned District Judge held that this notice was not served on the occupier,namely the plaintiff in this action or left at the premises.
The plaintiff however participated at the inquiry into assessment, but did not atthat inquiry raise the question that the Council failed to serve individual notice onhim.
Held:
Compliance with section 235(3) of the Municipal Council Ordinance, isimperative (Don Gerald v. Fonseka 71 NLR 457 followed.)
Participation at the inquiry does not take away the right of the plaintiff toclaim relief on the ground that there was non-compliance with section235(3).
Cases referred to:
Don Geraldv. Fonseka 71 NLR 457
Rajakaruna v. de Silva 73 NLR 274
Durai Appu v. Fernando 69 NLR 269
Ridge v. Baldwin 1964 AC 40
APPEAL from Judgment of the District Court of Colombo.
H. W. Jayewardena, Q.C. with M. Mahendrarajah for the appellant.
J. W. Subasinghe for respondent.
Cur adv vult.
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7th November, 1980ABDUL CADER, J.
In terms of section 235(1) of the Municipal Council Ordinance,Chapter 252, the defendant entered the assessment for 1968 ofpremises described in paragraph 2 of the plaint in the assessmentbook and gave public notice thereof. The Council is required to givenotice to the occupier of the premises under section 235(3) in theform set out in the third schedule. The learned District Judge heldthat this notice was not served on the occupier, namely, the plaintiff inthis action or left at the premises. Before us, Counsel for therespondent did not challenge that finding.
Counsel for the appellant pointed out that this requirement ofservice on the occupier is an imperative provision on the failure ofwhich the assessment should be declared void. He pointed outfurther that if such notice had been served on the plaintiff, the plaintiffwould have had an opportunity to object to that assessment and ifhis objection was rejected, he would have been entitled to institutean action, objecting to the assessment in the District Court, undersection 236(1). As a result of the failure to give notice to theplaintiff, not only the plaintiff had been denied the opportunity to fileobjection, but also that when the plaintiff came to know that theassessment had been enhanced, he was precluded from filing anaction in the District Court under section 236(1) for the reason thatthe only evidence that he can place before that court is his writtenobjection to the assessment (s.236(3)) and such written objectionsdo not exist for the reason that the plaintiff had been deprived of theopportunity of lodging an objection. He urges that the Court shouldview this failure even more seriously than otherwise as the premiseshave been taken out of rent control by the new assessment and thetenant is now entirely at the mercy of the landlord. Therefore, heurged that the failure to serve notice in terms of section 235(3) is fataland voids the assessment that had been made by the defendant-Council.
The learned District Judge held that since the plaintiff hadparticipated at the inquiry into the assessment and did not at thatinquiry raise the question that the defendant failed to serve individualnotice on him, the plaintiff had waived his rights to notice undersection 235(3). The landlord had taken objection to the assessmentand wanted the assessment enhanced. The defendant-Council fixedthat matter for inquiry and gave notice to the plaintiff of that inquiryand the plaintiff participated through an Attorney-at-Law who made a
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statement of the rents paid by the plaintiff to the landlord. TheCommissioner then enhanced the assessment. It is the participationat this inquiry that the District Judge called a waiver of notice. In thefirst place, at that inquiry proceedings of which are marked D5, it istrue that the Attorney-at-Law did not take any objection on theground that notice had not been served on the plaintiff in terms ofsection 235(3). But it is difficult to hold for that reason that the plaintiffhad waived his rights to a notice in terms of this section. There is alsono doubt that the Attorney-at-Law had given information about thevarious rents collected by the landlord, but that, too, was done inconsequence of a statutory duty cast on the plaintiff. Further, asMr. Jayewardene pointed out, the question of waiver was not raisedin the issues. Mr. Jayewardene submitted that the waiver is one formof estoppel and unless it is expressly pleaded and put in issue, it waswrong on the part of the Court to have denied judgment to theplaintiff on the ground of waiver. In any event, I am disposed to takethe view that the participation at the inquiry does not take away theright of the plaintiff to claim relief on the ground that there was non-compliance with section 235(3). By such participation, the plaintiffwas, no doubt, heard. But the fact yet remains that the plaintiff hadlost the opportunity to file action under section 236(1) as a result ofthe defendant’s failure to give him notice. That compliance with thisrequirement is imperative is further enhanced in that it is this noticethat intimates that written objections will be received in the Counciloffice. Section 235(4) stated that notice to the occupier shall furtherintimate that written objections to the assessment will be received atthe Municipal Council office within one month from the date ofservice of notice.
Counsel for the respondent pointed out that the assessment bookwas available for inspection after public notice was given and if theplaintiff wished to check the assessment, it was open to him to havedone so and lodge his objection without awaiting a personal noticeunder section 235(3). Although this is true, we are all aware that notenant takes the trouble to inspect this assessment book unless hecomes to know that there is some revision of assessmentcontemplated and almost always he comes by that knowledge onlywhen he receives personal notice. There is no reason why anoccupier should inspect the books when the law requires the Councilto give personal notice to him.
In the case of Don Gerald v. Fonseka,mH. N. G. Fernando, C.J.held “that section 235 clearly imposes on a Council the duty to servea notice of assessment at the premises assessed. Thus, the object of
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section 235 is to ensure that notices are received by occupiers.Section 235 also provides for the making of objections against anassessment within thirty days from the date of the service of therequisite notice.” This authority is also important as he went on tosay:-
“The failure of the Council in the present case to serve on theoccupier’s premises a notice has deprived the petitioner of anopportunity to object to that assessment. This has had particularlyserious consequences because the assessment actually made hasdeprived the petitioner of the protection of the Rent Restriction Act.”
Counsel also cited the case of Rajakaruna v. de Silva(2) andsubmitted (1) that the Municipal Council had no right to increase theannual value of premises as while section 236(5) makes provisionsfor excess taxes collected to be returned to the party aggrieved,there is no provision for payment of additional taxes to theMunicipality by the tax payer; (2) that the distinction between avoidable and a void assessment made by Samarawickrame, J.following the decision in Durai Appa v. Fernando™ is no longer validin view of several subsequent decisions. He referred us to the caseof Ridge v. Baldwinw and submitted that the distinction between avoid and voidable transaction is a principle known to contract lawand should not be extended to other provinces of the law. It is notnecessary for me to go into either of these propositions which Mr.Jayewardene has submitted for the reason that I am of the opinionthat what Samarawickrame, J. wished to say in that case was that solong as the assessment remains without being declared void by acourt of law or any other tribunal of competent jurisdiction thatassessment would bind the parties and to have that assessmentannulled, it would be necessary that a proper action should be filedagainst the Municipality and a declaration to that effect be obtainedthrough the court of law. In that case, the landlord was seeking toeject a tenant on the ground that the tenant had failed to pay rent onthe basis of an increased assessment and the tenant raised thequestion of failure to give notice to him without making theMunicipality a party to the proceedings or without filing a separateaction against the Municipality to have the assessment annulled. Inthis case, the Municipality is the defendant and paragraph A of theprayer to the plaint is a prayer for such annulment.
Mr. Subasinghe pointed out that this Court cannot grant the reliefprayed for in paragraphs B and C of the plaint, and Mr. Jayewardenereadily conceded it. Issues 4 to 19 had been tried at an earlier trial
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and the judgment and answers to issues in that case at the first trialwere not canvassed before us. The appellant before us wasconcerned only with the answers to issues 1 to 3. There was nodispute before us in respect of issues 1 and 2 which the learnedDistrict Judge has answered “no” and “yes” respectively. LearnedDistrict Judge has answered issue No. 3 in the negative. We are ofthe opinion that he should have answered that in the affirmative.
In the result, we set aside the judgment of the learned DistrictJudge and enter judgment for the plaintiff as prayed for in paragraphA of the plaint. Paragraphs B and C of the prayer to the plaint aredismissed.
The plaintiff is entitled to costs of both courts.
L. H. DE ALWIS, J. -1 agreeAppeal allowed.