086-NLR-NLR-V-25-WEERASINGHE-v.-MUNICIPAL-COUNCIL-OF-KANDY.pdf

( 410.)
1924.
SOBNBIDBB
J.
W eerasinghev. Munici-pal Councilof Kandy
were aggrieved by any assessment it should “ be lawful for himto object to and appeal against such assessment in maimer pro-vided by Ordinance No. 5 of 1867.” Section 1 of Ordinance No. 6of 1867 demarcated the boundary line between the jurisdictionof the two classes of Courts, and proceeded to enact “ Such Courtshall decide upon such objection in a summary way and havepower to amend the assessment or to supply any omission ifnecessary, and its decision shall be subject to appeal to the SupremeCourt, which shall have like power of amendment, and each of thesaid Courts shall have power to give costs.” Sections 2 and 3 ofthat Ordinance are as follows ;—
“ 2. Neither the objection nor the appeal shall stay the levyingof any part of the rate which may be proceeded with; theexcess (if any) collected shall in such case be refunded,or the deficient amount (if any) shall be collected, accord-ing to the decision of such Court of Bequests or DistrictCourt, if there be no appeal, or of the Supreme Courtin case of appeal.”
“ 3. The Judges of the Supreme Court may from time to timeand subject to the provisions of the Ordinance No. 8 of1846, or any other Ordinance to be in that behalf here-after enacted, make rules and orders as to the notices andthe hearing of objections and appeals: Provided thatsuch rules and orders shall not be inconsistent with orrepugnant to the provisions of this Ordinance.”
I am not aware that the Judges of the Supreme Court madeany special rules in pursuance of the powers conferred by the abovesection 3 as to the matters mentioned therein, nor does it signifyif they did. The next statutory provision connected with thesubject was the Courts Ordinance, No. 1 of 1889. This Ordinancerepealed the Ordinance No. 8 of 1846 referred to in that section.The Ordinance No. 8 of 1846 was concerned with the administrationof justice and rules of Court framed by the Supreme Court. TheOrdinance No. 1 of 1889 was intended “ to consolidate and amendthe laws relating to the constitution, jurisdictions, and powers ofCourts for the administration of justice, in this Colony.” Inchapter VII. (sections 77 to 82) Courts of Bequests are dealt with.In section 80 the general right of appeal is provided for. It isas follows :—
“ 80. Any party who shall be dissatisfied with any final judg-ment, or any order having the effect of a final judgment,pronounced by the Commissioner of any Court of Requestsmay (excepting where such right is expressly disallowed)appeal to the Supreme Court against and such judgmentor order for any error in law or in fact committed by suchCommissioner.”
( 411 )
The exception provided for in that section is to be found in asubsequent Ordinance dealing with Courts of Bequests. It is theOrdinance No. 12 of 1895 already referred to. By seotion 13 ofthat Ordinance it was enacted that there should be no appeal froma judgment or an order having the effect of a final judgment in casesfor debt, damage, or demand, except with leave obtained from theCommissioner of Bequests or from the Supreme Court, or upon amatter of law, or the admission or rejection of evidence. Whilethe statutory law was in this state, the case of Jalaldeen' v. TheColombo Municipal Council1 came before the Supreme Court.It was an application for leave to appeal on the facts and also anappeal on the law. In 1908 Wood Renton J. disposed of theapplication for leave to appeal upon the ground that it was not acase in which the Supreme Court should grant leave. The appealon the law came up originally before Wendt J. who referred it to abench of two Judges. Jt was heard and determined by HutchinsonC.J. and himself, in 1909. Two questions of law were argued.First, whether the Court of Requests had jurisdiction, inasmuch asthe rate was above Rs. 100 but below Rs. 300, and the Court ofRequests Ordinance, No. 12 of 1895, had raised the general jurisdic-tion of such Courts to Rs. 300. Secondly, if it did not havejurisdiction, whether an appeal lay as of right on the facts. On thefirst question they held that the enhancement of the generaljurisdiction of Courts of Requests by the Ordinance No. 12 of 1895did not affect the special jurisdiction conferred on those Courts bythe combined effect of Ordinance No. 5 of 1867 and OrdinanceNo. 7 of 1887. The second question which is identical with thatraised by this appeal did not accordingly arise for decision, andwas not disposed of by thoBe learned Judges. When the nextimportant amendment of the Municipal Councils Ordinance of 1887was made by the introduction of the present Ordinance No. 6 of1910, presumably to meet the judgment of the two Judges in thiscase, section 124 of that Ordinance was enacted. It is necessaryto examine carefully the provisions and language of that section.Unlike its predecessor this Ordinance contains no reference to theOrdinance No. 5 of 1867. The procedure, therefore, in cases ofobjection to assessments made by the Municipal Councils is to befound in that section, the effect of which was undoubtedly to repealthe former law which embodied the Ordinance No. 5 of 1867.The question which accordingly arises for determination on thisappeal is whether this section contains the whole of the law relatingto the jurisdiction of Courts of Requests to hear and determinesuch actions and appeals connected therein.
I shall now proceed to examine that seotion. It has five sub-sections. In the first of these it conferred jurisdiction upon Courtsof Requests to entertain actions objecting to assessment in all cases1 4 App. Ct. Rep. 231 ; 2 Cur. L. R. 34.
1924.
SCBKEIDEB
J.
W eeraainghev. Munici.pal Councilof Kandy
li
( 412 ,
1924.
SOHNEIDEB
J.
Weerasinghev. Munici-pal Councilof Kandy
where the amount of the rate or rates does not exceed Rs. 300.The effect of this legislation was to fix the same amount as beingthe pecuniary limit in all cases in Cpurts of Requests whether ofobjection to assessment or of any other description* In otherwords that act of the Legislature clearly indicated that though aspecial principle of ascertaining the monetary limit was to beadopted in assessment cases, yet that was to make no difference.It should be here observed that the jurisdiction is conferred inprecise words : The person aggrieved “ may institute an action.”
Sub-section (2) set at rest a controversy which had existedpreviously by expressly enacting that the objector must be confinedto the grounds stated in his written objection to the Chairman.
Sub-section (3) enacts that the Court shall follow the ordinaryregular procedure in hearing and determining such actions. Thisprovision was made, it appears to me, for two reasons: First,because it was realized that as a special principle was prescribedfor determining the pecuniary value of the action it was considerednot wise*' to omit reference to the procedure which should befollowed; and secondly, because this section was repealing andreplacing a section of the former Municipal Councils Ordinancewhich expressly referred to the Ordinance No. 5 of 1867, whereinthe procedure was described as summary, a term not preciselyaccurate when applied to the Civil Procedure Code of 1889. In thelatter part of this sub-section occur the words : “ And the decision ofsuch Court shall in all cases be subject to appeal to the SupremeCourt.” These are the important words in the decision of thisappeal. I shall proceed to consider them after mentioning theprovisions of sub-sections (4) and (5).
Sub-section (4) was apparently meant to make a provision similarto section 3 of Ordinance No. 5 of 1867. It enacts that an appealin assessment cases shall be governed by the provisions of chapterLVHL of the Civil Procedure Code, 1889. That chapter isconcerned only with the procedure for preferring and prosecuting■ an appeal, and has no reference to any rule governing the right toappeal.
Sub-section (5) is the re-enactment of section 2 of the OrdinanceNo. 5 of 1867 with a very slight and immaterial verbal alteration.
Two arguments were addressed to me in support of the appeal,and against the preliminary objection to it. It was argued thatthe words “ in all cases be subject to appeal to the Supreme Court ”conferred a right of appeal, special and distinct, from the generallaw. I am unable to accept this argument. Those words areinappropriate if the intention was to confer a special right of appeal.I think that they do no more than imply that a right of appealexists. It was necessary to say that because a special principlefor determining jurisdiction was being enunciated. If the words“ subject to appeal to the Supreme Court ” are sufficient to oonfer
( 413 )
a right of appeal, there was no necessity in the Ordinance No. 7 of1887 to use language which in unmistakable terms conferred aright of appeal when it expressly referred to the provisions of theOrdinance No. 5 of 1867 in that connection. The latter Ordinanceexpressly enacted that decisions in assessment cases “ shall hesubject to appeal to the Supreme Court.” And yet the OrdinanceNo. 7 of 1887 had the words that .if any person were aggrieved“ it shall be lawful to him to object and appeal against such assess-ment in manner provided by the Ordinance No. 5 of 1867.” It isprobably in view of this language used in these two Ordinancesthat Wood Benton J. in the case already referred to said thatthe appeal was governed by the “ combined effect ” of the twoOrdinances. That the Legislature did not intend to confer a rightof appeal by the use of those Words is apparent from the languageused in other Ordinances when the intention was undoubtedlyto confer jurisdiction. Take sections 75 and 80 of the CourtsOrdinance conferring the right of appeal in District Court andCourts of Bequests cases. The words used are the same—theaggrieved party “ may appeal.” In the Ordinance No. 7 of 1887the words were “ it shall be lawful.” The change of language from“it shall be lawful to appeal ” in Ordinance No. 7 of 1887 to“ subject to appeal ” in No. 6 of 1910 is surely not without signi-ficance. It is not possible to conceive that the draftsman or the-Legislature had lost sight of the provisions of seotion 13 of theCourt of Bequests Ordinance, No. 12 of 1895, or of the effect onconferring a special jurisdiction, because the very first sub-sectionwas intended to counteract the effect of the judgment in JalaMeen v.The Colombo Municipal Council (supra), the principle of the decisionof which Was that the Court of Bequests Ordinance had not affectedthe special jurisdiction conferred by Ordinance No. 5 of 1867,which same jurisdiction was conferred by section 124. Anotherreason why I am not disposed to uphold that argument is thatit seems to me obvious that the intention of the Legislature inenacting section 124 of the present Municipal Councils Ordinancewas to do no more than expressly raise the jurisdiction of Courtsof Bequests from Bs. 100 to Bs. 300 in assessment cases, andto make it clear that the procedure in such cases should be thesame as in all other cases. That reason applies equally to thesecond argument addressed to me that as regards appeals in suchcases the Legislature intended by the enactment in sub-section (4)that only chapter LVUL of the Civil Procedure Code should apply.It is not possible to entertain the argument that a special provisionwas intended to and did in fact override a provision on the samepoint in the general law, unless that intention is clearly manifestedby the language used. The language and even the general purportof section 124 fail to disclose any intention that the generalprinciples governing the right of appeals should not apply to
1924.
SOHKSIDEB
J
Weeraiingkev. Mitnici*pal Councilof Kandy
( 414 )
1924,
Schneider
J.
Weerasinghee. Munici-pal Council.of Kandy
appeals in cases of objection to assessments. Lastly no reasonoccurs to me why a larger right of appeal should be allowed in suchoases, especially when by this very section the Legislature dis-countenanced any special limitation as regards jurisdiction in suchoases. This case comes within the category of cases described as“for demand” in section 13 of the Ordinance No. 12 of 1895.It is therefore governed by the provisions of that section, and theappeal must fail in the absence of leave to appeal. In view ofthe law as it stood before this decision, the defendant Council canplead some justification for the procedure it had followed, butI feel I should not be acting fairly by the respondent unless I gavehim his costs. I therefore dismiss the appeal, with costs.
Appeal dismissed.
The appeal in this case was subsequently argued on the facts beforeGarvin A.J. on May 22, 1924, as it was discovered that the appealwas with the leave of the Commissioner. The appeal was dismissed.