032-SLLR-SLLR-1982-2-CHANDRASEKERA-AND-ANOTHER-v.-BARY.pdf
CAChandrasekera and Another r. Rarv6'57
CHANDRASEKERA AND ANOTHER
v.BARY
COURT OF APPEAL
RANASINGHE, J., (PRESIDENT. G/A) AND RODRIGO. J.
C.A. S.C. 297/75D C. GALLE 7923/L.
AUGUST 31 AND SEPTEMBER 1, 1982
Landlord and tenant — Excepted premises – Rent Restriction Act. Regulation 10- Municipal Councils Ordinance, sections 234-239 – Annual value – Revision -Service of notice of revision — Revised value to be prospective only..
The plaintiff was. the landlord of business premises No. 30. China Garden, CrossStreet, Galle and sued the defendant for ejectment.
The annual value of the premises as on 1.1.68 was Rs. 3,287/- and w£s basedon the Notice of Assessment served on the defendant on 13.2.68. In-September1968 the Municipal Council revised the assessment but did not serve notice, onthe occupier. According to this revision the annual value as at 1.1.68 was Rs.4,250/-. _
The question to be decided was whether the annual value assessed at Rs:3,287/-or its revision in September 1968 was to be taken into account for purposes oithe Rent Act.
HeM –
That the Municipal Council could revise the annual value but that suchrevision has prospective and not retrospective effect.
That the Municipal Council is bound to serve'Notice of Assessment on theoccupier.
' (3) That' for purpose' of regulation 10 of the Rent Restriction Act the annualvalue as at-1.1.68 was Rs. 3,2871-
Cases referred to:
Cooper v. Wandworth Board of Works (1863) 14 C.B.N.S. 180
Ridge v. Baldwin (1963) 2 A.E.R. 66, 74 ,
Wiseman v. Borneman (1969) 3 A.E.R.. 275. 279 (
Ameradasa v. The L.R.C. at al (1977) 79 (1) N'L.R. 505
N.S. Don Gerald v. W.M. Fonseka (1969) 71 N.L.R 457
G: H. A. Perera v. Chitra de Vos (1970)73 N.L.R. 357
C. Rajakaruna v. Laura de Silva (1970) 73 N-.L-R. 274. .av
658
Sri Lanka Law Reports
(1982) 2 S.L.R.
Durayappah v. Fernando (1966) 69 N.L.R. 269
Hoffman-La Roche v. Secretary of State for Trade (1975I A. C. 295, 358
APPEAL from judgment of the District Judge of Galle.
H.W. Jayewardene, Q.C., with Miss P. Seneviratne for substituted defen-dants-appellants.
N.R.M. Daluwatte for plaintiff-respondent.
October 11, 1982Cur. adv. vult
RANASINGHE, J. (President, C/A)
The main question which arises for consideration in this appeal iswhether the premises in question – bearing No. 30 China Gardens,Cross Street, Galle – which are, admittedly, business premises situatewithin the local limits of the Municipal Council of Galle and fromwhich the plaintiff-respondent has sought to have the deceased-defendantejected, were, at the times material to this action, excepted premisesWithin the meaning of the Rent Restriction Act of 1948 (Chap. 274)and the relevant Regulations made thereunder.
A determination of this, question calls for a consideration of thefollowing matters raised by learned Queen’s Counsel appearing forthe substituted-defendants-appellants:
Whether notice of the revision of an assessment in respectof any premises, under the provisions of the MunicipalCouncils Ordinance (Chap. 252) should be served on the
. person in occupation of the said premises?
Whether such a' revision once made could be brought intooperation with retrospective effect?
Even so, could such a revision, effected in the month ofSeptember 1968, operate to increase, as from 1.1.68, theannual value of any premises, which, by virtue of theassessment actually in force in January 1968, were coveredby the provisions of the Rent Restriction Act then inforce, so as to convert such premises into “exceptedpremises”, as contemplated by the said Rent Act, andthereby take such premises out of the operation of thesaid Rent Act with effect from 1.1.68?
A few facts and circumstances relevant to the matter in disputemay be noted. DIO is the notice of assessment served on thedeceased-defendant oo 13.2.68 in which the annual value of the said
CA Chandrasekera and Another r. Bury (Ranasin)-he. J.) ! I‘resident, CIA) 659
premises for the year 1968 was assessed at Rs.3287/- and the” ra'tesand taxes payable for the four quarters of 1968 were assessed' onthe basis of the said annual value: P4 is an extract from the AssessmentRegister according to which the annual value, in respect of the saidpremises, which had, as set out in DIO, been fixed at Rs. 3287/- ason 1.1.68, has been revised and fixed at Rs. 4250/- with effect from
1.68: that the said revision embodied in P4 was made in September1968: there is no evidence that notice of the revision embodied inP4 was served on the deceased-defendant: that, by P10, Regulation2 of the Regulations in the Schedule to the Rent Restriction Act(Chap 274) was amended in regard to the date of the relevantassessment with reference to which the determination of “exceptedpremises’’ was to be made: that, after the said amendment, the date,with reference to which such determination had to be made, was 1.1.68.
Part (XII) of the Municipal Councils Ordinance (Chap 252) dealswith the making and assessing of rates and taxes on the annual valueof all houses and buildings situate within a Municipality. Sec. 234empowers a Municipal Council to require the owner and occupierof any premises to furnish returns of the rent or annual value ofsuch premises in order to enable the Municipal Council to assess theannual value of such premises. Sec. 235 deals with the entry of theannual value’of a property in a book called the “Assessment Book”,and the right of an owner or occupier of any premises to inspectthe entry relating to his premises. Subrsec.,{3) of -thei said sec. 235requires the Municipal Council to cause a notice.-of ^assessment, inall three languages, to be served on or left at the»premises of everyoccupier whether such occupier be owner of such -premises or not.Sub-sec. (4) thereof gives such occupier the right to submit writtenobjections to such assessment within one month of the date of suchservice. Sub-secs.(5) and (6) provide for the holding of an inquiryinto such objections in the presence of .such objector. Sec.236 givesan objector, who is aggrieved by the order made upon his objections,the right to institute an action in Court. Sec.238 empowers a MunicipalCouncil to adopt a previous .valuation or an assessment made by it;but it can do so only after notice of such valuation and assessmentis served on the occupier. Sec. 239 gives a Municipal Council thepower and authority at any time to revise any assessment either byincreasing or decreasing it. Although Sec.239 does not expresslyrequire the service of notice of such revision oh the occupier of thepremises affected by such revision, it, however, seems to be clear,s. r-ir^ regard to the procedure ordained in regard to the first valuation
660Sri Lanka Law Reports(1982) 2 S.L.R.
and assessment and also in regard to the adoption of a previousassessment, that the Legislature did intend that notice be given tothe occupier before any revision of an assessment is made. Whatapplies in respect of a first valuation and an adoption should applywith equal force' in respect of a revision as well. There is no goodreason for any distinction to be made as between a first valuationand a subsequent adoption of it on the one hand, and a revision ofit on the other. The revision of an assessment could operate to thedetriment of the occupier; particularly where such occupant is atenant in occupation of premises to which the provisions of the RentRestriction Act applies. A subsequent change "may be sought to beavailed of, as in this case, to assert that the occupier is no longerentitled to a protection which he enjoyed previously. Looked at fromthis standpoint it seems to me that this too is a situation in which“the justice of the common law will supply the omission of thelegislature’' by requiring that at least the occupant of the premises,in respect of which such revision is being made, be given notice ofsuch revision, before it is in fact made. Authority for such aconstruction being' adopted will be found in the cases of: Cooper vs.Wandsworth Board of Works (1); Ridge vs. Baldwin (2); Wisemanvs. Bomeman; (3); Ameradasa vs. The L.R.C. et al (4). The failureto serve such a -notice would also, in view of the judgment ofSharvananda; J., in Ameradasa’s case (4), operate to render any £uchrevision a nullity and thus void.'
In the case of N.S. Don^Gerald vs. W.M.Fonseka, (1), the SupremeCourt held that Sec. 235 of the Municipal Councils Ordinance imposesoh the Council a duty to serve a notice, of assessment at the premisesassessed, and that the object of the said sec. 23S is to ensure thatnotices were received by occupiers. At page 458 (H.N.G.) Fernando,C.J. stressed the importance of such notice where the person inoccupation is a tenant who is entitled to the protection of the rent laws.
Learned Counsel for the plaintiff-respondent relied on the judgmentsin the cases of – G.H.A. Perera vs. Chitra de Vos (6); and C.Rajakaruna vs. Laura de Silva, (7). Perera’s case (6) is of no availto the plaintiff-respondent for the reason that the questions whichhave been raised in this case viz. the necessity of notice, and thepower to bring a revision into force . with retrospectiveoperation, were not considered in that case. In Rajakaruna’s case (7)Samarawickrema, J. took the view that, even assuming that noticeshould be given to a tenant before an assessment of the annual valueof the premises occupied by him is increased, yet, it was not open
CA Chandrasekera and Another r. Barv (Ranaxingiie. J.) (President. CIA) 661
to the defendant-appellant, who was the tenant, to have the assessmentset aside or avoided in that case as the Municipal Council was nota party. In that case too the question of the- retrospectivity of arevision of an assessment did not arise for consideration. Furthermore,in view of the subsequent judgment of the Supreme Court inAmeradasa’s case (4), such an order has to be treated as being void.In regard to the decision in Duraiyappa's case (8) it must be notedthat even in England it is now being looked upon as a “puzzlingcase” – vide thfe judgment of Lord Wilberforce in the case ofHoffmann – La Roche vs. The Secretary of State for Trade, L. R. (9).
If the said assessment made without notice is a' nullity and is void,then the absence of the Municipal Council is not a bar to the saidassessment being challenged in these proceedings. It is also in evidencethat the Municipal Council has since, upon objection by the defendants,restored the original assessment as set out in DIO.
P4, as set out earlier, though made only in September 1968, hasbeen sought to be made operative as from 1.1.1968. Do the provisionsof sec. 239 of the Municipal Councils Ordinance (Chap. 252), underwhich P4, it is contended, has been made, empower the MunicipalCouncil to make it operative from a date anterior to the date onwhich it was actually made? It is a fundamental rule of construction- “that no statute shall be construed so as to have a retrospectiveoperation unless its language is such as plainly to require such aconstruction”: “that the general rule of law undoubtedly being, thatexcept there be a clear indication either from the subject-matter orfrom the wording of a statute, the statute is not to receive aretrospective construction.” – vide: Craies: – On Statute Law (7 edt.)p.387-388, Maxwell: On Interpretation of Statutes (12 edt.) pp. 215-218.“It is. hardly necessary to point out that nothing is more finallyestablished in all civilised systems of jurisprudence than the propositionthat the Legislature is presumed to enact prospectively and notretrospectively.” Bindra Interpretation of Statutes (6 edt.) p.724.Restrospective effect can only be given when the language or theintention of the Legislature is clear and unambiguous.
A consideration of the provisions of the said sec. 239 of theMunicipal Councils Ordinance does, in my opinion, show that, whilstthere is nothing in the language which would enable such a revisionto be made with retrospective effect, there is clear indication thatsuch a revision is to take effect only after the date oh which it isactually made. An analysis of the provisions of the said sec. 239
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Sri Lanka Law Reports
(1982) 2 S L R.
indicates that, whilst the first part of the section states that theMunicipal Council “shall have” power and authority, at any time torevise, any .assessment as it may seem meet by either increasing ordecreasing it. The concluding part of it gives the Council the powerand authority to fix the date upon which such revised assessment“shall come into force.” The date which, in terms of the concluding.part, of this section, the Municipality is required to fix, is the dateupon which such revised assessment “shall come into force.” It is
if'*>■'•ji • „•4 •,
not a date upon- which such revised assessment shall have come
• •-.11 I I V ,…,-i, .••
into forpe.” The date so. contemplated is' clearly a future date; andnot a date which has already elapsed. The word'“shall?, appearing
in the clause'‘‘the date upon..;shall come; into-force”, is used as
a tense sign. It, in this context, announces a' future event. It expressesfuturity. These words do, in my opinion, indicate quite clearly thatthe assessment so revised is to-come into effect from a date afterthe date on which it is so revised. The provisions of the said section239 far from lending themselves to a construction which would enablesuch a revision being brought into effect from a date which hasalreaidy elapsed, do, in thy* opinion, quite clearly and unmistakablyreveal an intention that-such revision should come into effect onlyafter it is so made; only from a date in the future. The provisionsof the said section 239 are clearly prospective. They do not empowerthe Municipal Council to bring such a revision into operation with•retrospective effect.
Regulation 2 of the Regulations in the Schedule to the RentRestriction Act (Chap 274) provides that the annual value, whichwas to determine whether any premises are “excepted premises” ornot, should be the annual value of such premises as assessed “forthe purposes of any rates levied for the time being” by thfe relevantlocal authority. Thereafter this Regulation was amended as set outin P10. Since’, this amendment cameiinto operation, the position isthat the annual value to be taken into consideration for suchdetermination is, in the case of premises, such as the premises whichare the subject-matter of these proceedings, which bad been assessed
prior to 1.1.68, the annual-value specified in the assessment “ in
force on the first day of January 1968” The operative annual
value, therefore, is that which was in force on 1.1.68. The simple-question then is: What was the annual value actually in force on thefirst day' of January 1968? It contemplates a certain, fixed factor -the valuation made in respect of any premises to be effective on1,1.68, and which was brought into operation, and was in fact
CA Chandrasekera and Another v. Bury (Kanasinyhc. J.) I [’resident. C'.'A)663
operative as from 1.1.68. The amendment has had a definite objectivein contemplation. Thereafter the determination was not to be dependenton any factor which would not be constant and could vary from timeto time. It was to be dependent on a factor which could easily beascertained with certainty; and once ascertained it was to remainfixed and immutable, unaffected by any subsequent changes. Theannual value was to be frozen. The moment the annual value ismade and becomes operative, a certain state of facts comes intoexistence, and rights are acquired by persons in occupation qf«suchpremises. A right so acquired by a tenant in occupation, and whichis protected by the Rent Act, is not to be made dependent uponany act done thereafter by. a local authority in pursuance of anypower lawfully vested in such authority. Any changes in such annualvalue, made lawfully by a local authority, would be valid and operativefor the purpose Of collecting rates and taxes in respect of any premiseson the basis of such changed or revised annual value. For purposesof determining the question of “excepted premises”. Regulation 2,as amended, has, however, frozen such annual value – as that whichwas in force on 1.1.68. In this view of the matter I am of opinionthat, for the purposes of the said Regulation 2, as amended, theannual value of the premises, which are the subject-matter of theseproceedings, which was in force on the 1st day of January. 1968 isthat which is set out in DIO, and not the revised assessment as setout in P4.
For these reasons the submissions made by learned Queen's Counselon behalf of the defendants-appellants that P4 is bad both for thereason that no notice of such revision was given to thedeceased-defendant, the person in occupation of the said premises,before such revision was made, and also for the reason that theprovisions of sec. 239 Municipal Councils Ordinance do not authorizethe making of such a revision with retrospective effect that, in anyevent, the revised annual value, as set in P4, cannot supercede,-* forthe purposes set out in the said Regulation 2 as amended, the annualvalue as set out in DIO, are entitled to succeed.
The appeal of the 2nd – 8th substituted-defendants-appellants isallowed. The judgment and the decree of the District Court are setaside; and the plaintiff-respondent's action is dismissed with costs,both here and below.
RODRIGO J. — I agree.
Appeal allowed.