034-SLLR-SLLR-2008-V-1-TEA-TANG-LTD.-v.-KOLONNAWA-URBAN-COUNCIL.pdf
CATea Tan9 Ltd- v363
Kolonnawa Urban Council
TEA TANG LTD.vKOLONNAWA URBAN COUNCILCOURT OF APPEALSRiSKANDARAJAH, J.
CA 949/2005MARCH 17, 2008MAY 8, 2008.
Writ of Certiorari – Urban Councils Ordinance – Sections 160 and 166- Levyingof rates – Municipal Councils Ordinance Section 236, 237 and 238 – Increase ofrates – Is the Ministers approval necessary to access the annual value afresh -Judicial review – Only on illegality? – Not on the basis that decision is right orwrong? – Alternate remedy?
The petitioner sought a writ of certiorari to quash the decision to increase theannual value of the petitioners premises in respect of the years 2003-2004-2005and prohibiting the Urban Council from revising the annual value without thesanction of the Minister.
The petitioner contended that they submitted objections to the 2003assessment, but before a decision was arrived at a notice of assessment for2004 was received and the annual value and rates contained therein were sameas the annual value and rates for the year 2003. The petitioner objected to thevaluation, and was informed that the Valuation Department had decided not tochange the 2003 valuation. It was the contention of the petitioner that the annualassessment rates for the years 2003, 2004 and 2005 are ultra vires sections 237and 238 of the Municipal Councils Ordinance.
364Sri Lanka Law Reports[2008] 1 Sri L R
Held:
The power to impose and levy rates by the 1st respondent is under section160 of the Urban Councils Ordinance. Under Section 160(3) when theCouncil imposing any rate for any year resolves to levy without alteration thesame rates as was in force during the preceding year the approval of theMinister is not required.
Section 236 of the Municipal Councils Ordinance provides for a personaggrieved by the decision under section 235 to institute action in the DistrictCourt and the decision of the Court is subject to an appeal to the Court ofAppeal (section 236 (3)). Though the petitioner has lodged an objection andthe decision was conveyed to him, the petitioner has not taken any action tochallenge the decision in the District Court (section 236).
The Minister's approval is necessary to impose and levy a rate on the annualvalue of any immovable property for the 1st time (section 160 (1) UrbanCouncils Ordinance) but if the respondent levies without alteration the samerate as was in force during the preceding year the Minister's approval is notnecessary (section 160(3)).
The petitioner cannot challenge the assessment of the annual value of thepetitioner's property in this application. These proceedings are judicial reviewproceedings and the challenge can only be on the basis of legality or illegalityand not on the basis that the decision is right or wrong.
The petitioner has an effective alternate remedy provided by statute tochallenge the correctness of the assessment of the annual value.
APPLICATION for a writ of certiorari.
Cases referred to:
Best Footwear (Pvt.) Ltd. and two others v Aboosally, Former Minister ofLabour and Vocational Training and Others 1997 2 Sri LR 137.
Jayawardena v Silva 73 NLR 284.
Ishak v Lakshman Perera, Director-General Customs and Others 2003 3NLR 18.
Tennakoonj Director-General Customs and Another 2004 I Sri LR 53.
Manohara de Silva, PC with A. Wijesundara for petitioner.
Gamini Kirandage for respondent.
Cur.adv. vult.
June 16, 2008SRISKANDARAJAH, J.
The petitioner is a company incorporated under the CompaniesOrdinance and has its factory and stores at the premises bearingNo. 235/4 and 235/2A, Old Avissawella Road, Orugodawatte
CATea Tan9 Ltd. v365
Kolonnawa Urban Council (Sriskandarajah, J.)
respectively. The said premises are coming under the Municipallimits of the Kolonnawa Urban Council.
The petitioner in this application is seeking a writ of certiorari toquasli the decision to increase the annual value of the petitioner’spremises bearing the assessment Nos. 235/4, 235/4/1/1 and 235/2AOld Avissawella Road, Orugodawatte contained in the assessmentnotice issued in respect of year 2003, 2004 and 2005 marked as P3,P6 and P9 and a prohibition prohibiting the Urban Council fromrevising the annual values of the aforesaid premises without thesanction of the Minister.
The petitioner submitted that in terms of section 160 of the UrbanCouncils Ordinance the Urban Council is empowered to impose andlevy rates and taxes on the annual value of the immovable propertysituated within the town and the assessment of the said rates taxesand the annual value of the property is assessed in terms of section166 of the Urban Council Ordinance as amended. For the purposesof levying rates and taxes the Urban Council has allocated threeassessment numbers for the aforesaid premises namely: No. 235/2Afor Stores, No. 235/4 for the Factory and No. 235/4,1/1 for theManager’s quarters.
The petitioner submitted that the petitioner received theassessment notice sent for the year 2003 in respect of thesepremises on 24th March 2003. In the said notice the 1st respondenthas increased the annual value of the said premises which resultedin an increase in the total rates and taxes payable on the aforesaidthree premises. The petitioner submitted its objection to the saidassessment on 8.04.2003. An inquiry was held on the said objectionon 20th August 2003 and the petitioner tendered written submissionat the conclusion of the inquiry. But before the petitioner knowing theoutcome of the said inquiry, a notice of assessment for the year 2004was received by the petitioner and the annual value and the ratescontained therein were same as the annual value and the ratescontained in the notice of assessment received for the year 2003.The petitioner lodged an objection to the said notice of assessment.
The petitioner was informed by the 1st respondent that theValuation Department after considering the objection of the petitionerfor the annual assessment for the year 2003 has decided not to make
366Sri Lanka Law Reports(2008) 1 Sri L.R
any change in the assessment. The petitioner submitted that theassessment notice issued for the year 2004 and 2005 contained thesame annual value.
The petitioners contended that the annual assessment made forthe years 2003, 2004 and 2005 are ultra vires sections 237 and 238of the Municipal Councils Ordinance.
The power to impose and levy rates by the 1st respondent UrbanCouncil is under section 160 of the Urban Council Ordinance.
Section 160 provides as follows:
160(1) The Urban Council of a town may, subject to suchlimitations, qualifications, and conditions as may be prescribed bythe Council, and subject to the approval of the Minister, imposeand levy a rate on the annual value of any immovable property orany species of immovable property situated with the town.
(1A) in pursuance of the powers under sub-section (1), theCouncil may impose a higher rate on premises used forbusiness or commercial purposes.
1AA
(2)2A ….
2Q….
(3) Where the Council in imposing any rates for any year, resolvesto levy without alteration the same rate as was in force during thepreceding year, the approval of the Minister shall not be requiredfor the imposition and levy of such rate.
(5)♦ *The above section authorises the 1st respondent to impose andlevy a rate on the annual value. Under Section 160(3) when theCouncil imposing any rate for any year, resolves to levy withoutalteration the same rate as was in force during the preceding year,the approval of the Minister is not required.
The assessment of annual value is provided in Section 166 of theUrban Council Ordinance. It provides:
166. The assessment of any immovable property for the purpose ofany rate under – this Ordinance shall, with the necessary
CATea Tang Ltd. v367
Kolonnawa Urban Council (Sriskandarajah, J.)
modifications, be made in manner prescribed by section 235 of theMunicipal Councils Ordinance, with respect to immovable propertywithin Municipal limits, and all the provisions of the said section,together with those of sections 233, 242, 243 and 241, shall, with thenecessary modifications, apply with respect to every suchassessment made for the purposes of this Ordinance.
Provided that, pending the making of any such assessment,any valuation of any immovable property made for thepurposes of the assessment tax under the Police Ordinance,or any enactment passed in amendment thereof shall bedeemed to be the valuation of such property for the purpose ofany rate on the annual value thereof under the Ordinance.
Section 235 of the Municipal Councils Ordinance provides:
The Council shall cause to be kept a book, to be called the"Assessment Book", in which the annual value of each house,building, land, or tenement within the Municipality shall beentered every year, and shall cause to be given public noticethereof and the place where the assessment book may beinspected. [Shall not have effect in such areas as may bespecified in an Order under section 2 of the Rating andValuation Ordinance – See section 76 thereof]
……..
Such notice shall further intimate that written objections to theassessment will be received at the Municipal Office within onemonth from the date of service of the notice.
……..When any objection to an assessment is disposed of theCouncil shall cause the decision thereon to be notified to theobjector, and such decision shall be noted in the book ofobjections, and any necessary amendment shall be made inthe assessment book.
Section 236 of the Municipal Council Ordinance provides for aperson aggrieved by the decision under section 235 to institute anaction in the District Court and the decision of this court is subject to
368Sri Lanka Law Reports[2008] 1 Sri L.R
an appeal to the Court of Appeal (236(3)). The petitioner admittedthat he lodged an objection for the assessment of the annual valueas provided by section 235 of the Municipal Council Ordinance andthe decision was communicated to him but the petitioner had nottaken any action to challenge the said decision in the District Courtas provided by Section 236 of the Municipal Council Ordinance.
The petitioner’s main contention is that the said decision toincrease the annual assessment for the year 2003, 2004 and 2005 isultra vires section 237 and 238 of the Municipal Council Ordinance.Section 237 has no relevance to the 1st respondent.
The Minister's approval is necessary to impose and levy a rate onthe annual value of any immovable property for the first time (Section160(1) but if the 1st respondent levy without alteration the same rateas was in force during the preceding year the Minister’s approval isnot necessary (Section 160(3)). It has to be noted that the 1strespondent has not increased or varied the rate imposed on theannual value of the property. But the annual values of the saidproperties of the petitioner were increased after a fresh valuation ofthe said properties by the Valuation Department according to section235 of the relevant Ordinance. The Minister's approval is notnecessary to assess the annual value of a property a fresh (section238 of the Municipal Council Ordinance is not applicable to the 1strespondent). The petitioner has not filed an action in the District Courtchallenging the decision for a fresh assessment and the determinationof the annual value as provided in section 236 of the MunicipalCouncil Ordinance hence the said assessment of the annual value ofthe said properties for the year 2003, 2004 and 2005 are valid. Thetaxes are imposed on this new annual value on the same rate(percentage) that was imposed on the previous years. Therefore theimposition of the rates for the year 2003, 2004 and 2005 by the 1strespondent on the properties of the petitioner is lawful. The petitionercannot challenge assessment value of the petitioners properly in thisapplication for several reasons. One is that these proceedings is ajudicial review proceedings and the challenge can only be on thebasis of legality or illegality and not on the basis that the decision isright or wrong; Best Footwear (Pvt) Ltd. and Two Others v Aboosally,former Minister of Labour and Vocational Training and Othersf^. Asthere is no illegality in the assessment of the annual value and theimposition of rates the petitioner cannot have and maintain this
CAAbeysinghe v. 369
Commercial Bank of Ceylon
application. The other is the petitioner has an effective alternateremedy provided by statute to challenge the correctness of theassessment of the annual value; Jayawardena v SilvaW, Ishak vLakshman Perera, Director-General of Customs and Othersi3Tennakoon v Director-General of Customs and AnotherW. In view ofthese finding this court dismisses this application without costs.
Application dismissed.