Weerasinghe V. Municipal Council Of Kandy

Present: Schneider J. 1924-

WEERASINGHE v. MUNICIPAL COUNCIL OF KANDY.

 335-C. E. Kandy, 1,013.

Court of Requests-Action objecting to assessment-Appeal on facts- Leave necessary.

In an action in a Court of Requests objecting to assessment under the Municipal Councils Ordinance, there is no appeal on facts without the leave of the Commissioner.

PLAINTIFF brought this action objecting to the assessment of the annual value of certain premises by the Municipal Council of Kandy. The Commissioner of Requests (W. O. Stevens, Esq.) upheld the objection. The defendant Council appealed on the facts with the leave of the Commissioner. The respondent's counsel took the objection that no appeal lay without the leave of the Commissioner of Requests. The fact that leave was granted was not ascertained till after the judgment of the Supreme Court was delivered.

Soertsz, for defendant, appellant.

H. V. Perera, for plaintiff, respondent.

February 28, 1924. SCHNEIDER J.-

Under the provisions of the Municipal Councils Ordinance, No. 6 of 1910, the defendant Council assessed the annual value of certain premises belonging to the plaintiff. The plaintiff succeeded in his objection to the assessment. The defendant Council has preferred this appeal against the judgment of the Commissioner of Requests. The appeal is upon pure questions of fact. A preliminary objection was taken to the appeal on the ground that no appeal lay upon the facts, except with leave obtained in accordance with the provisions of section 13 of the Court of Requests Amendment Ordinance, No. 12 of 1895. The preliminary question argued was whether this objection was well founded. If it should succeed, the appeal would fail and would have to be dismissed. For the decision of-the objection against the appeal, it is not necessary to refer to any legislation prior to the Municipal Councils Ordinance, No. 7 of 1887, except the Ordinance No. 5 of 1867, which is connected with it. By the combined effect of section 141 of the Ordinance No. 7 of 1887 and the Ordinance No. 5 of 1867, a special jurisdiction was conferred on Court of Requests to hear and determine actions founded on objection to assessment of the annual value of any premises where the rate or rates did not exceed Rs. 100 and District Courts where it did. A right of appeal was given from the decisions of such Courts. Section 141 was to the effect that if any person

were aggrieved by any assessment it should " be lawful for him to object to and appeal against such assessment in manner provided by Ordinance No. 5 of 1867." Section 1 of Ordinance No. 5 of 1867 demarcated the boundary line between the jurisdiction of the two classes of Courts, and proceeded to enact " Such Court shall decide upon such objection in a summary way and have power to amend the assessment or to supply any omission if necessary, and its decision shall be subject to appeal to the Supreme Court, which shall have like power of amendment, and each of the said Courts shall have power to give costs." Sections 2 and 3 of that Ordinance are as follows :-

" 2. Neither the objection nor the appeal shall stay the levying of any part of the rate which may be proceeded with ; the excess (if any) collected shall in such case be refunded, or the deficient amount (if any) shall be collected, according to the decision of such Court of Requests or District Court, if there be no appeal, or of the Supreme Court in case of appeal."

"3. The Judges of the Supreme Court may from time to time and subject to the provisions of the Ordinance No. 8 of 1846, or any other Ordinance to be in that behalf hereafter enacted, make rules and orders as to the notices and the hearing of objections and appeals : Provided that such rules and orders shall not be inconsistent with or repugnant to the provisions of this Ordinance."

I am not aware that the Judges of the Supreme Court made any speci

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