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Appeal Court quashes CMC decision

by Sarath Malalasekera

The Court of Appeal has quashed the Colombo Municipal Council decision to issue seizure notices and the recovery of all alleged rates from Overseas Realty (Ceylon) Limited.

Petitioner Overseas Realty (Ceylon) Ltd., cited the Colombo Municipal Council, Municipal Treasurer and Municipal assessor as the respondents to his application for mandates in the nature of writs of certiorari, mandamus and prohibition.

The Bench which comprised Justice Nihal Jayasinghe, then President Court of Appeal and Justice K. Sripavan in their judgement said: "We have considered the submissions of president's Counsel and we are satisfied that the requirements of 8 (L) in Act No. 41 of 1988 has been complied with and we accordingly make order that the petitioner is entitled to in terms of section 8 (L) of the Urban Development Authority Act as amended to the remission of rates at 80 per cent for the first five years and further remission of 50 per cent for additional five years in terms of Section 8 (L) of the Urban Development Authority Act. We make no order for costs."

President's Counsel Romesh de Silva with A. A. M. Illiyas and Ajitha Edririmanne appeared for the petitioner.

G. Jayasinghe with C. Nilanduwa appeared for the respondents.

Justice Jayasinghe in the judgement stated:

"This is an application for grant and issue of a mandate in the nature of a writ of certiorari quashing the decision in issuing the seizure notices and the recovery of the alleged rates marked P 13A-P13Q and for a writ of mandamus directing the respondents to comply with the statutory provisions contained in the urban Development Authority Act No. 41 of 1988 as amended.

The President's Counsel states that the relief for issue of a mandamus arises in terms of section 8 (L) of the urban Development Law No. 41 of 1978 as amended by Act No. 49 of 1987 and 41 of 1988. The President's Counsel invites attention to section 8 (L) (1) as if found in Act No. 41 of 1988 which provides that where any building being a building comprised in a Property Development Project approved under 22 (B) of the Inland Revenue Act. No. 28 of 1979 is constructed in development area under and in accordance with a permit issued under Section 8 (J) then, notwithstanding anything in the Municipal Councils Ordinance and the Urban Council's Ordinance (A) a remission of 80 per cent of the rates assessed on such building under any such Ordinance shall be allowed by the Municipal Council for five years calculated from the date of first assessment of such building.

Under Act No. 49 of 1987 a remission of 80 per cent of the rates and the remission of 50 per cent for further five years calculated from the expiration of the period referred to in paragraph 8. The petitioner in paragraph 24 (1) of the petition had averred 'that the property is comprised in a Property Development Project approved under section 22 (B) of the Inland revenue Act No. 28 of 1979.'

This averment has ben admitted by the respondent in paragraph 18 of the statement of objections and paragraph 20 of the affidavit filed by the Assistant Municipal Assessor of the first respondent. The petitioner has also averred that in paragraph 24 (1v) of the petition that section 8 (L) of the Urban Development Authority Act as amended sanctions authorize and grants remission of rates of 80 per cent for the first five years and further 50 per cent for an additional five years.

This paragraph has also been admitted in paragraph 21 of the statement of objections and paragraph 23 of the affidavit of the Assistant Municipal Assessor. The President's Counsel invited attention of Court to P 16 which is a development permit issued under section 8 (J) of part 2 (a) of the Urban Development Authority Act No. 41 of 1978 and also P 17 which is a development permit also issued under same provision being an amendment to P 16.

By P 19, the Urban Development Authority has written to the municipal assessor stating that the building has been constructed during the validity period of the said permit issued under section 8 (J). In paragraph 19 of the statement of objections, the respondents have admitted that the Urban Development Authority has issued a letter stating that the petitioner's tower had been constructed within the validity period.

Gamini Jayasinghe, counsel for the respondents however submitted that section 22 (b) of the Inland Revenue Act has been amended to by Act No. 24 of 1982 introducing an additional requirement that the Minister's approval must be Gazetted before March 31, 1983 and that there is a burden cast on the petitioner to satisfy Court that the requirements set out in the 22 (c) in Act No. 24 of 1982 has been complied with.

The President's Counsel for the petitioner, however submits that since paragraph 24 (1) of the petition has been admitted by the respondents that there was no need for the petitioner to adduce proof that he has complied with the requirements set out in 22 (b).

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