BAILEY v. FERDINANDUS.
D. C., Kdndy, 173.Land Requisition—Ordinance No. 6 of 1877,8.2—Right of assessors to hear.questions of law—Question of law affecting jurisdiction of Court—Who to decide such question—Averment as to Surveyor-Generalreporting on necessity of land for public purpose—Method of' valuation of property.
Though assessors have to consider questions of law conjointlywith the District Judge in a land acquisition case, yet, wherethe legal point raised refers to the jurisdiction of the Court, theDistrict Judge even after the appointment of assessors, is the properauthority to decide such a question.
Where a libel of reference alleged that the Governor had directedthe Government Agent to take order for the acquisition of the landfor a public purpose, that the required notice wasduly published, &c.,that the Government Agent held a summary inquiry and tendered tothe defendant a certain amount by way of compensation, &c.—Held,that it was not necessary to allege also that the Surveyor-Generalexamined the land and reported to the Governor that it was neededfor the purpose mentioned.
Held also, that the proper method of valuing the land is to consider(1) the situation of the properly, (2) the best use to which it can beput, and (3) the use to which property immediately adjoining it is put.
In considering the question of the best use to which the propertycan be put, the past history of the house and its neighbourhood willbe of use.
TN this Land Acquisition case, the counsel for the defendanttook exception to the libel of reference, in that it did not statethat any reference was made to the Surveyor-General or to anyother officer specially authorized by the Governor to examine theland and report whether the same was fitted for the purpose forwhich it was sought to be acquired, nor was there any allegationthat the compensation was tendered to the defendant. After theparties had nominated their respective assessors and the case wasfixed for hearing on the 10th July, 1899, the District Judge fixedthe 19th April for the disposal of the matter of law raised bythe defendant. On that date the counsel for the defendant con-tended that it was not competent for the Court sitting alone todecide the question of law, in view of section 2 of the OrdinanceNo. 6 of 1877, and he moved that the argument do stand adjournedfor the day of trial with the assessors.
The District Judge allowed the motion, but on the trial day(10th July) ho heard counsel before swearing in the assessors,and disposed of the point of law himself as follows :—
“ My reasons for holding that the matter of law raised by Mr.La Brooy should be decided by the Judge alone are these :—
“ The function of the assessors is merely to assist the Judge indetermining the amount of compensation (sections 14 and 17).
• 18.99. iAugust 28.
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The objections taken by'Mr. La Brooy strike at .the ,very .root .of1899-
the libel of reference. If his objection is ,a . sound one, ,the August 28.assessors will not be called upon to aid the Judge, in, determiningthe amount, of compensation. If the reference, is bad, the, libelmust be dismissed. That is a matter for the Judge alone to decide.
If in determining the amount of compensation, any questionof law or practice or usage, having the force of law arises,and there is any difference of opinion between the Judge andassessors or any of them, the opinion of the Judge shall provail(section 2 of Ordinance No. 6 of 1S77).1
“ As to the objections themselves, it seems to me the libol is good.
Section 13 enacts the information to be stated' by the GovernmentAgent in making a reference under section 11. All that infor-mation has been stated. It is not competent for the Court to lookbehind the direction by the Governor, with the' 'advice of theExecutive Council, to the Government Agent to take order for theacquisition of the lntid (section 6). The other objection is thatthere is no allegation that the compensation was tendered to thedefendant. The allegation > does appear, though not where Mr.
La Brooy thinks it should appear.”
On the question of compensation, which the Government Agentdetermined to be Rs. '2,022; evidence was heard on both sides,and the District Judge and Assessor Gunatilleka were agreed thatthat amount was fair and just. Assessor Fernando thought theland was worth Rs. ICO per acre, making a total'of Rs. 5,100dorthe 51 acres acquired.
Dornhorst, for appellant.
Loos, C. C., for respondent.
Cur. adv. vult.
28th August, 1899. Withers. J —
The- first question we have to decide is, was defendant'sdemurrer- a question of law which must be tried by the DistrictJudge and the assessors ?
That the assessors have to consider questions of law is clearfrom the 2oth section of the Land Acquisition Ordinance of 1876,which has been repealed and replaced by section 2 of the amend-ing Ordinance No. 6 of 1877, which enacts as follows : ".In case“ of any difference of opinion between the judge and assessors or“ any of them, upon any question of law, or practice or usage having" the force Of law*…….. theopinionof the judge shall prevail,
" subject to appear to the Supreme Court hereinafter provided.’’
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1899. The District Judge’s reasons for holding that he was competentAugust 28. to decide the present question of law by himself are that the functionWithers, 3. of the assessors is merely to assist the Judge in determin-ing the amount of compensation, and the only questions of lawwhich they can take part in deciding are questions incidental tothe inquiry into the amount of compensation and arising out ofit. There can be no doubt that, had the District Judge been soadvised, he might have rejected the libel of reference in the firstinstance, under the provisions of the 46th section of the CivilProcedure Code (vide section 32 of the Land Acquisition Ordi-nance, 1876). He might, in my opinion, have decided the presentquestion of law at any time before the appointment of the assessors,but the assessors having onoe been appointed, was he not bound toplace before them every question of law embraced in these pro-ceedings? The provisions of the amending Ordinance No. 6 of1877 are very wide, and appear to keep apart from one anotherquestions of law, questions of practice or usage having the forceof law, and the amount of compensation to be awarded. I mustsay that on this point my mind is not wholly free from doubt.But, as the District Judge observes, the paramount object for whichassessors are called in is to decide the amount of compensation tobe awarded in cases where the Government Agent has tenderedan amount to persons claiming as interested parties and they haverefused to accept the amount tendered. And, as he observes, thepresent question of law touches the very jurisdiction of his Court.He alone ought to decide whether he can entertain the libel ofreference, and whether in'fact any case has been made out for theappointment of assessors and the creation of a Land AcquisitionCourt. After much consideration I think that, even at this stageof the proceedings, the District Judge was the proper authority todecide this particular question of law.
Then the next question is : Is his decision on that matter of lawa right decision ? In other words, does the libel of reference notshow jurisdiction in the District Court to entertain it ? It recites,in the first instance, that the Governor, with the advice of theExecutive Council, had directed the Government Agent to takeorder for the acquisition of the particular land which is the subjectof reference. That, as Chief Justice Phear pointed out, is thereally important fact to be recited in the libel of reference. Thatis the all-important fact as regards the Government Agent’s powers.Then the libel goes on to recite the following facts : Due publi-cation of notice ; that the Government proposed to take possessionof the land ; and that claims for compensation should be made tothe Government Agent. Summary inquiry into the value of theland, determination of the amount of compensation, and tender of
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the amount which in the Government Agent’s opinion should beallowed. The libel does not expressly say that the amount deter-mined was tendered to the defendant as the interested party whohad attended in pursuance of the Government Agent’s notice.But this may fairly be inferred from paragraph 3 and paragraphC of the libel. These were the proper facts to satisfy the DistrictJudge that the Government Agent had done what was required ofhim in order to put the District Court in motion. But it was urgedthat something more was wanting to give the Court juris-diction : the libel should have disclosed the observance of everyformality which the Ordinance requires before the Governor, withthe advice of his Council, can direct the Government Agent totake order for the acquisition of any land ; it was not enough tostate, as the libel states, that the particular land was required for apublic use, or even to specify that use ; it should have stated thatit appeared to the Governor that this particular land was needed fora public purpose; that the Governor had directed the Surveyor-General or other officer to examine such land and to reportwhether the same is fitted for such purpose; lastly, that theSurveyor-General or other authorized officer did examine the landand did report to the Governor that the possession of the landwas needed for the purpose for which it appeared to the Governorlikely to be needed. This last fact was pressed upon as the mostimportant fact, because the person to judge of the fitness of theparticular land for a particular public purpose is not the Governoror the Governor in Council, but the Surveyor-General or otherproper officer who makes his report to the Governor, and it looksas if the fitness of the land proposed to be acquired depended onthe opinion of the Surveyor-General, as expressed in his report,for the 6th section of the Land Acquisition Ordinance of 1876enacts: “ That upon the receipt of such report it shall be lawful“ for the Governor, with the advice of the Executive Council, to“ direct the government agent to take order for the acquisition of“ the land.” That is to say, the Governor, even with the adviceof the Executive Council, could not give such a mandate to theGovernment Agent unless he had received a report of the fitnessof the particular land for the particular purpose for which it hadappeared to him. to be needful. In other words, the Governordecides on the necessity, the Surveyor-General or other officer onthe fitness of the land, and then the Governor, with the advice ofhis Executive Council, if advised to adopt the officer’s opinion, hasto direct the Government Agent to put the matter through in theway required by law. But, in my opinion, the statement in thefirst paragraph of the libel was sufficient to give jurisdiction to theCourt on the principle of the maxim “ omnia presumuntur rite
August 28.Withers, J.
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1890. esse acte.” And on thiB point 1 am adopting the opinion of
. August 28. Burnside, C.J., in the case of Saunders v. Silva, S. C. G. 8.
Wixebbs, J. Now we come to the merits of the case. It was strenuouslycontended by Mr. Domhorst that the award of the District Courtwas not only against the weight of evidence, but was based on nointelligible principle whatever. Neither member of the Courtwhich has decided the amount of compensation tendered to besufficient has explained, it is said, whether he values the land ashorticultural land, building land, waste land, or any sort of land-It has not been valued by Judge or assessor as anything inparticular. It cannot be called waste land, because it has severalfruit trees on it, jak and mango, and has grass on it for grazing.Why not then value it as horticultural land ? It is true that,Mr. Piper and Mr. Huxley condemned the land as unsuitable fortea, but the two experienced witnesses called by the defendant. thought that it would do Very well for tea, and also for cacao onthe lower part of the land; or, why was it not valued as abuilding property ? The witnesses for the Government Agentadmitted that there were at least two available sites for building.According to a witness on the other side, there was room enoughon those sites for putting up fifteen houses. The plaintiff’s asses-sors thought that the land was worth no more than Rs. 20 an acreat the outside. Defendant’s first witness, who had been a planterfor over twenty years, may be said to have valued the land at aboutRs. 300 an acre. Whence this extraordinary difference ? Thewitness last referred to says, he valued the land as in part a goodbuilding property and, in part very suitable for such valuableproducts as tea and cacao. Of course, if you value a land ascombining several admirable qualities, there is no limit to thevalue you may put upon it. But this is not very business-like.Now, the value of landed property mainly depends upon threeconsiderations: (1) the situation of the property ; (2) the bestuse to which it can be put; and (3) the use to which propertyimmediately adjoining it is put. When those points have beenconsidered there may be various modes of assessing the value.The land in question is a little over 50 acres. In the immediatevicinity is land partly under tea and partly under patana andscrub, and chena land. The land itself is covered with lantana,shrubs, grass, some jak and mango trees, and a sapu tree. Thereis a building on it and the site of an old store building. No oneoccupies the land or pays rent for it, as far as I can make out.Its history is briefly this. It was once under coffee, poor coffeewhich died out between fifteen and twenty years ago. Noattempt has been made to plant it since. During all this time andat the present moment it has served and serves no profitable
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purpose. A neighbour offered some time ago Rs. 20 per acre withthe building thrown in, as he thought it would do to turn his cattleout to graze on. But that offer was not accepted.
The answer to the question, What is the best use to which theland can be put, is according to history, no use at all except per-haps for grazing purposes. No one has offered to buy it for tea orcacao, and no one has offered to lease it for tea or cacao, and no onehas attempted to plant tea or cacao on it. No doubt some of theadjacent land has some good tea on it, and the land still under chenamay be good for tea and perhaps cacao as well. So, the use to whichthe adjoining land has been put and is best suited seems to behorticultural. But if the present land had been as fit for horti-cultural as land in its vicinity, somebody would have acquired itfor such a use. Then why should it be valued as a building site ?It does not become a building site because you can put up abuilding or two on it. A building site is a site where you canput up buildings which are likely to attract tenants as otherbuildings in the vicinity. Nothing in the history of this landor its neighbourhood makes it reasonable to suppose that, if oneput up houses on. the two available sites on it, he would gettenants for them. Mere chance cannot be allowed to influencethe value. The difficulty of getting water is against the landbeing used as a residential property. The District Judge baseshis award chiefly on the circumstance that similar land in thevicinity of the land in question has recently been acquired forthe same purpose at Rs. 20 per acre. That was a circumstanceproperly taken into account. But Mr. Domhorst minimized theeffect of that circumstance by observing that, as a large extent ofgood land was acquired with land like that in question, the ownerwas ready to throw in the poor land for a nominal price, if he wasoffered a liberal compensation for the good land. But I thinkthe history of the land affords the best evidence of its value, andI regard it as proved that the best use the land can be put to is agrazing ground, as I said before. No one has offered or tried tomake a fruit garden of it, or a cocoanut or tea garden of it, or toconvert it into a residential property. I think the award is strictlyaccording to the evidence.
The evidence gives us no particulars as to the condition orcharacter of the land, when it was first planted with coffee, whetherit was chena land and better, or only such grass land as even inthe tea enterprise if has been attempted, with manuring, &c., topress into the yielding area of an estate. We only know that
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when coffee died out, these 50 acres got‘overgrown with lantana,and that for eighteen years no one in the old coffee capital hasdesired either to experiment with tea or cacao on it, or to utilize itas a building site for his own pleasure or for his profit in letting totenants. I think this hard fact of no one having desired to useit for any purpose save grazing, limits our consideration of itsvalue to that which we would put on any grassy hillside in itsvipinity, and that however it once was considered fit for plantationpurposes, we should not longer so regard it. I would express thesecond consideration scheduled by my brother in the morerestrictive wording, “ the best use to which the property could“properly and would probably be put; ” and when there had beenthis neglect of the land for horticultural or building purposes, Iwould say it showed that the public—the possible investors in suchlines-—regarded it as not properly suitable for either, and there-fore it was improbable at the time of acquisition that it wouldbe required for either. When Colombo is spreading southwards,I am prepared to regard the vicinity of stations on the SouthernRailway as possible building sites, though I do not know thatKelani, Ragama, or land in that direction should be so regarded.But has the area used for building sites in Kandy extended at allin the direction of this land in the last twenty years ? I do notfind proof thereof.
As to the legal questions, I would only say, in addition to mybrother’s views, that I have never regarded it to be a question forthe assessors, which of two rival claimants is entitled to thecompensation. In any such difficulty I would ask, must theassessors give their opinions on the question in order to “ deter-“ mine the amount of compensation,” regarding as I do theirfunctions to be limited to that duty ?
I desire to concur entirely in all my brother has written.
BAILEY v. FERDINANDUS