Abeyesekere V. The Colombo Municipality

 

1941     Present : Howard C.J.

 

ABEYESEKERE v. THE COLOMBO MUNICIPALITY.

 

105-C. R. Colombo, 56,502.

 

Assessment-Premises occupied by owner-Basis of assessment-Burden of proof-Municipal Councils Ordinance, s. 4.

 

The value of property for purposes of assessment, where the owner and occupier are one, must be ascertained by determining the rent a hypothetical tenant would give for the property.

 

The burden is on the owner by the application of the profits' or contractor's basis of assessment or by a comparison of his property with properties of a like nature to establish the annual value he claims to put upon the property.

 

APPEAL from a judgment of the Commissioner of Requests, Colombo.

 

N. Nadarajah (with him B. C. Ahlip and P. A. Senaratne), for the plaintiff, appellant.

 

H. V. Perera, K.C. (with him S. Nadesan), for the defendant, respondent.    ,

 

Cur. adv. vult 

February 7, 1941. HOWARD C.J.-

 

This is an appeal from a judgment of the Commissioner of Requests, Colombo, dismissing the plaintiff's action with costs. The plaintiff claimed that the assessment made on his premises No. 3, Kensington Gardens, Bambalapitiya, should be reduced from the assessment of Rs. 1,150 per annum for the year 1939 made by the defendant to one of Rs. 900 per annum. In finding for the defendant the Commissioner 

 

stated that he was not prepared to accept the opinions of Mr. Gomes, Mr. Gonsal, and Mr. Molligodde, who were called by the plaintiff to state what a tenant would be prepared to pay for the premises, in preference to that of Mr. Ernst, the Assistant Municipal Assessor, who had based, checked, and justified his assessment by a comparison of actual rents paid by tenants for similar buildings in the same street. Mr. Ernst's assessment was also based on what is known as the square foot method of assessment which the learned Commissioner seemed to regard as having been accepted as a proper basis in England and elsewhere. He had no doubt as to its suitability as the basis of assessment in the present case. It is true that reference is made to the square foot method of measure­ment in various local cases. In Abdul Haniffa v. Municipal Council, Colombo[1T. C. L. R. 7.    ] de Sampayo J. said that the annual value of property cannot be determined, like a sum in arithmetic, by calculating the number of square feet in the floor area, but many considerations both personal and commercial enter into the question. In Weerasekera v. Municipal Council, Colombo [2 40 N. L. R. 419.] this method is mentioned but no comment is made on its applicability. In Soysa v. Municipal Council, Colombo [3 41 N. L. R. 1.] Soertsz J. throws doubt on the results achieved by

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