Union of Campement Sites v Government of Mauritius

• Jurisdiction: Mauricio
• Date: 25 June 1984
• Court: Supreme Court (Mauritius)

Mauritius, Court of Civil Appeal.

(Lallah, Acting CJ, and Espitalier-Nel, Acting SPJ)

Union of Campement Sites Owners and Lessees and Others

and

Government of Mauritius and Others

Human rights Property rights Taxes Proprietary rights in Crown leases of campement sites Renewal of leases Liability to pay campement sites tax Whether amounting to increase in rent Whether taxing statute a colourable device Whether proprietary rights protected by the Constitution Whether deprivation of property without compensation Campement Sites Tax Act 1983

Human rights Equality before the law Universal Declaration of Human Rights, 1948 International Covenant on Civil and Political Rights, 1966, Article 26 International Covenant on Economic, Social and Cultural Rights, 1966 Reports to the Human Rights Committee European Convention on Human Rights and Fundamental Freedoms, 1950 Guidance from Liability to pay campement sites tax Whether tax reasonably justifiable in a democratic society Whether violation of the right to equality before the law or equal treatment of the law The law of Mauritius

Summary: The facts:The petitioners challenged the Campement Sites Tax Act 1983 (the Act) imposing tax on their campements on the grounds that the tax was not reasonably justifiable in a democratic society; that the tax was a violation of their proprietary rights in that it was without any indemnification; and that it violated their right to equality before the law as other owners of rural land paid no such tax.

Held:The action of the petitioners was dismissed.

(1) The constitutional right to protection from deprivation of property without compensation was subject to conditions and limitations. In relation to property, the imposition of a tax and the right to protection from deprivation of property were mutually exclusive. The imposition of a tax by law was not in itself a compulsory taking of possession or a compulsory acquisition of the tax payer's property, it was the manner and the measure of the enforcement or execution of the debt thus created which involved the compulsory taking of possession or the compulsory acquisition of the debtor's property. Therefore, it was not the imposition of a tax but rather its enforcement that could be challenged on the ground that it was not reasonably justified in a democratic society. In this case it had not been argued that the recovery of the tax as a Crown debt constituted execution or enforcement means which were not reasonably justifiable in a democratic society.

(2) In interpreting the constitutional provisions relating to the right to equality or the equal protection of the law, it was best to consider specific provisions in the Constitution of Mauritius itself rather than seek guidance from other differently drafted Constitutions. Furthermore, it was not for the courts of Mauritius to pronounce on the consistency of constitutional provisions and of the laws of Mauritius with the provisions of the International Covenant on Civil and Political Rights, 1966, to which Mauritius was a party. This function was reserved for the United Nations Human Rights Committee under Article 40 of the Covenant. The function of the Courts was to pronounce on the consistency of the laws enacted by Parliament with the provisions of the Constitution.

(3) The Constitution of Mauritius had adopted provisions giving effect to positive equality and provisions giving effect to non-discrimination and also substantive provisions which guaranteed equality of treatment before the courts but not necessarily identity of treatment. The rights of the plaintiffs alleged to have been adversely affected by the Act were not among such rights. Therefore, the Act did not violate the constitutional equality before the courts, the equal protection of the law and the non-discriminatory character of laws on specified grounds.

The following is the text of the relevant parts of the judgment of the Court delivered by Acting Chief Justice Lallah:

On 11 November last year, Parliament enacted a law, the Campement Sites Tax Act (No 32 of 1983), imposing a tax on sites which have a sea frontage or are close to, or else have a private access to, the sea, whether those sites are on privately owned land or on land which belongs to the State.

The main features of the Act are the following:

It is best, at this stage, that we refer to the main facts that have been put forward by the plaintiffs as a basis for their challenge of the constitutionality of the Act.

First, it is common ground that, with the exception of odd tracts of land on Pas Gomtriques which have passed into private ownership by way of concessions or otherwise in the past, the bulk of Pas Gomtriques are Crown property. It is not disputed that the Crown has leased to a large number of individual lessees plots of land on Pas Gomtriques on which they have built what is commonly known in this country as a campement, that is, a sea-side villa or retreat, according to their taste or means. There has been little evidence on how many of them use their campement as their only residence or as a second residence on the benefit of which they are already subject to income tax under Section 11(1)(f) of the Income Tax Act. That is, however, not important. The point the plaintiffs consider to be relevant is that they already pay rent to the Crown under those leases and that the rent may not be increased beyond a certain percentage in the event of the renewal of the lease as is indicated by the lease which was produced and which, so we were told, is a specimen lease. It was not disputed, it seems to us, that particular sites differed from one another in terms of value as is the case with the buildings on those sites.

Secondly, it is also common ground that the lessees of Pas Gomtriques are not the only persons who are liable to pay the campement site tax. Owners or, in certain cases, occupiers of land in private ownership are also liable to pay the tax, if the land is a campement site within the definition of the Act.

Thirdly, it is not disputed that, whereas there is a tax (rates) on immovable property in urban areas, there is no such tax in rural areas except for campement sites which are all to be found in rural areas and which alone have been made subject to a tax under the Act.

Lastly, evidence was led on the quantum of the rates payable in respect of immovable property in urban areas and on the fact that these rates are determined in terms of the value of the immovable property and that these rates vary in scale in accordance with the value. The purpose of this evidence was, presumably, to give some indication of the relative tax burdens on town dwellers, on the one hand, and on campement site occupiers, on the other. Evidence was also led on the financial situation of a person who has a yearly income of about Rs 40,000 and who would have to pay a campement site tax of Rs 3025 a year, in addition to a year's rent of RS 300 for the site when compared with a neighbour whose land happens to be just off the perimeter of...