060-NLR-NLR-V-44-MUNICIPAL-COUNCIL-KANDY-Appellant-and-SILVA-Respondent.pdf
HKARNE J.—Municipal Council, Kandy, and Silva.253
1942Present: Ueame J.
MUNICIPAL COUNCIL, KANDY, Appellant, andSELVA, Respondent.
109—C. R. Kandy, 30,844
Assessment—action to reduce assessment—Failure of plaintiff to dischargehis burden.
Where, in an action to reduce assessment the plaintiff failed to placedata before the Commissioner which would have enabled him to holdthat the – assessment was in fact unreasonable, the assessment of theMunicipal valuator should not be reduced.
^^PPEAL from an order of the Commissioner of Requests, Kandy.
H. V. Perera, K.C. (with Cyril E. S. Perera), for the defendant,appellant.
No appearance for the plaintiff, respondent.
Cur. adv. vult.
July 24, 1942. Hearne J.—
The plaintiff, to quote from the judgment of the Commissioner ofRequests, filed this action against the Municipality of Kandy to havethe annual assessment of premises No. 44, King street, reduced, complain-ing that the assessment and the rates recently fixed by the Municipalitywere unreasonable and too high. He asked that the assessment ofRs. 1,200 per year be reduced to Rs. 900 per year. The Commissionerreduced the assessment to Rs. 1,000 a year and the Municipality hasappealed.
The plaintiff’s claim that the assessment of Rs. 1,200 a year was un-reasonable was based on the fact that he received only Rs. 90 permonth as rent. The Commissioner held that the rent which theplaintiff was receiving for No. 44, King street, was not the proper basisof assessment. “ It is I think reasonable to presume ”, he said, “ thatthe plaintiff could have and would have got a bigger rent from his tenantif for instance the plaintiff had effected the improvements to thepremises”. And again, “It seems to me reasonable to presume that infixing the rent from time to time the plaintiff'did consider the fact thathis tenant had effected the improvements Clearly, therefore, thesuggested basis of assessment namely, the bare rent, was in the findingof the Commissioner a misleading one. Recognizing this, the Commission-er then posed to himself the following question—I paraphrase hiswords—“By how much should the assessment be increased over and
254
SOERTSZ S.P.J.—The King v. Abeywickrema.
above the monthly rental multiplied by ten by reason of the fact that thetenant and not the plaintiff landlord had improved the premises ?
“ It is very difficult to say ”, he said, “ but I think Rs. 100 per year wouldbe fair The simple fact as it appears to me is that it is impossible tosay on the available material what would be fair, for as the Commis-sioner himself notes, there is hardly any evidence as to the cost or valueof the improvements. In the result it appears that the plaintiff had notplaced all the necessary data before the Commissioner which would haveenabled him to determine whether the assessment was in fact unreason-able. The bona fides of the valuator were not questioned and I am unableto say that on the method of valuation adopted by him—the comparativemethod—his assessment was too high.
The appeal will be allowed with costs in this Court and before theCommissioner of Requests.
Appeal allomed.