LYALL GRANT J.—Chairman, M. C., Colombo v. Abdul Rahim. Ill
1932Present: Macdonell C.J. and Lyall Grant J.
CHAIRMAN, M. C., COLOMBO v. ABDUL RAHIM.
Ill—D. C. (Inty.) Colombo, 2,789.
Land acquisition—Land subject to fidei commissum—No necessity for reference—Deposit of compensation in Court—Ordinance No. 3 of 1876, ss. 11and 37.
Where in proceedings under the Land Acquisition Ordinance, theland acquired is subject to a fidei commissum and the sole claimantis the fiduciarius, it is not necessary to make a reference to Court undersection 11. It is sufficient to deposit the compensation in Court undersection 37 to abide the further orders of the Court.
^^PPEAL from an order of the District Judge of Colombo.
Keuneman, for appellant.
Nadarajah (with him Abeysekere), for respondent.
January 30, 1932. Lyall Grant J.—
This is an appeal from an order of the District Judge of Colombodisallowing the costs incurred by the Chairman of the Colombo MunicipalCouncil in submitting a “ libel of reference ”.
The Council had acquired a piece of land under the Land AcquisitionOrdinance and the compensation payable to the claimant had beenagreed upon.
The procedure adopted was the usual one. The Council advertisedfor claims. The only claimant was I. L. H. M. Abdul Rahiman, the .defendant, in this case. The Chairman held a summary inquiry and fixedthe compensation payable at Rs. 2,092.18, which he tendered to theclaimant who accepted it.
It appeared however that the premises were subject to an entail orfidei commissum.
Thereupon the Chairman proceeded to refer the matter to the DistrictCourt for further inquiry, praying that the Court would proceed to inquireand determine the apportionment of the compensation.
The libel was entered as an ordinary plaint. Notice was issued and thecase called on various occasions. There appears to have been difficultyin serving the notice on the claimant whom the libel treated as defendantto the plaint, and finally substituted service was allowed.
Proxy was filed on the claimant's behalf and she submitted a statementof claims, in which she set forth her title, admitted that there was anentail or fidei commissum and gave particulars.
The Chairman then applied for the costs of the reference, which wererefused.
From this refusal the Chairman appeals.
LYALL GRANT J.—Chairman, M. C., Colombo v. Abdul Rahim.
He argues that he is entitled to costs under section 30 (2) (a) of the LandAcquisition Ordinance, No. 3 of 1876, inasmuch as he made the referenceunder section 11 solely for the determination of a question arisingbetween or among two or more persons respecting the correct apportion-ment of the compensation awarded.
In such circumstances the section provides that he is ordinarily entitledto the costs of reference. Section 11 provides for reference by theGovernment Agent to the District Court for the determination of anymatter where, inter alia, he considers that there should bC further inquiryinto the nature of the claim or if upon the inquiry any question respectingany interests in the land arise between or among two or more persons.
Section 13 to 32 provide for Court proceedings.
For the respondent it is contended that section 11 does not apply to thepresent case—that there was no question between two or more personsrespecting any interests in the land which required reference to the Court.
The respondent referred to section 37 of the Ordinance which providesthat “ when the land taken is subject to any entail, settlement orfidei commissum, the compensation payable in respect thereof shall besubject to the same entail, settlement, or fidei commissum, so far as thedifferent nature of the property will admit; and such compensation shallbe paid into Court to abide its further orders as to the disposal or invest-ment thereof …. ” This section appears in a chapter of the
Ordinance relating to payments, and provides an exception to theordinary rule that payment should be made to the successful claimant.According to the respondent’s argument all that it was necessary for theChairman to do was, instead of paying compensation to the claimant,to pay it into Court. No doubt the Chairman in paying the money intoCourt would accompany such payment by a letter explaining thereasons for the deposit.
It was argued that the course actually taken by the Chairman wasunnecessary and irregular, that the expenses incurred by him wereincurred without any reason and should not therefore be charged eitheragainst the claimant or against the compensation awarded;
The appellant maintained that there was here a question arisingbetween two parties; yet the facts were that the claimant’s title disclosedonly one party, herself, and that the other or others of the “ two parties ”the fidei commissarius or fidei commissarii had not appeared and in facthad no legal right to appear. I think that the contention of therespondents must prevail.
Although the language of section 11 and section 30 may not be quitefree from ambiguity. I think the existence of section 37 in a differentchapter of the Ordinance makes it plain that the Legislature did notintend that, where the only reason for non-payment of the compensationagreed upon to the claimant was the existence of a fidei commissum,reference should be made to the Court. In such cases the sole dutyof the Chairman is to act under section 37, that .is to pay the compensa-tion into Court where it will abide further orders. By adopting the wrongprocedure the Chairman has incurred additional expenses and I thinkhe must bear that expense. I would dismiss the appeal with costs.
Macdonell C.J.—I concur.
CHAIRMAN, M. C. COLOMBO v. ABDUL RAHIM