RANAWANAGEDARA MUDIYANSE v. MUNICIPAL COUNCIL, KANDY

RANAWANAGEDARA  MUDIYANSE  v.
MUNICIPAL

COUNCIL, KANDY.

C. R., Kandy, 12,297.

Buddhist temple lands-Municipal taxes-Ordinance No. 7 of 1887, s. 127-Proclamation of 21st November, 1818, s. 21-" Exemption from all taxation "-Contrary enactments-Repeal by implication.

    Under section 127 of the Ordinance No. 7 of 1887, a Municipal Council is not entitled to make and assess any rate on the value of any land, the property of a Buddhist temple, exempted from taxation by section 21 of the Proclamation of 21st November, 1818.

IN this case the trustee of a Buddhist temple in Kandy sued the Municipal Council, Kandy, for the return of the money paid by him under compulsion as Municipal tax claimed illegally by the Council on certain lands belonging to the temple. The Commissioner held against the trustee.

    The plaintiff appealed. The appeal was argued on 3rd March, 1904.

    Walter Pereira, for appellant.

    Van Langenberg, for respondent.

Cur. adv. vult.

4th March, 1904. MONCREIFF, J.-

    The question is whether the Municipal Council of Kandy can compel payment of assessment tax and lighting rate in respect of lands which are the property of Nitteawella Vihare within the gravets of Kandy. The trustee of the vihare sues for the return of Rs. 57.56 paid under compulsion. He maintains that lands which are the property of temples are exempt from all taxation. By the Proclamation of the 21st November, 1818 (section 21) " the Governor, desirous of showing the adherence of the Government to its stipulation in favour of the religion of the people, exempts all lands which now are the property of temples from all taxation whatsoever."

    The defendants reply that the Legislature has given them power to impose rates and taxes in respect of temple lands, and that the exemption given by the Proclamation of 1818 has been repealed. Section 127 of the Municipal Councils' Ordinance, No. 7 of 1887, gave the Council power to make and assess for certain purposes, inter alia lighting, " any separate or consolidated rate or rates on the annual value of all houses and buildings of every

description, and all lands and tenements whatsoever, within the municipality..... Provided further (as amended by section 2 of Ordinance No. 16 of 1900) that..... all buildings exclusively appropriated to religious worship .......shall be exempted from the payment of such rate or rates."

    The Council has thus power to assess in respect of all houses and buildings and all lands and tenements whatsoever. Moreover there is in the proviso an exemption in favour of buildings exclusively appropriated to religious worship, but not in respect of lands. Did the Legislature mean to repeal the exemption granted by the Proclamation of 21st November, 1818 ?

    Field, J. (Dobbs v: Grand Junction Waterworks Co., 51 L. J. Q. B. 504) said: " Repeal by implication is never to be favoured; it is no doubt the necessary consequence of inconsistent legislation wherever it occurs, but it must not be imputed to the Legislature unless absolutely necessary."

    A. L. Smith, L.J., says on the same subject (1 L. R. Q. B., 1892, 658, Churchwardens of West Ham v. Fourth City Mutual Building Society): " The test of whether there has been a repeal by implication is this: are the provisions of the later . Act so inconsistent or repugnant to the provisions of the earlier Act that the two cannot stand together? In which case leges posteriores contrarias abrogant."

    I do not think the alleged repeal by implication in this case satisfies these requirements.

     Mr. Van Langenberg argued that, although the subject might be, the Crown is not bound by a Proclamation; and Mr. Pereira admitted that the Crown might recede from the matter in the Proclamation. But as the Crown has not necessarily, in my opinion, shown any wish to recede from its position under the Proclamation, I nee

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