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DIAS v. ELLIS.
D. G., Colombo, 14,373.
Land acquisition case—Ordinance No. 3 of 1896, s. 38—Percentage on market
value—Discretion of the Government Agent.
The claim for the 10 per cent, on the market value of the landacquired bythe Government,allowableundersection38ofthe
Ordinance No. 3 of 1896, need not be made synchronously with the claimfor compensation.
Middleton, J.—I am donbtful whether an action for the 10 per cent,value wouldlie, or whether the properremedyis notbywayof
mandamus under section 16 of the Courts Ordinance.
Per Curiam.—Section 38 of the Land Acquisition Ordinance does notconfer any legal right to compensation for compulsory acquisitionother than that which may bedecreed sounder the second, third,and
fourth headsof section 21; norany legalright tothe 10percent,of
the market value in addition to the amount of compensation finallyawarded.
The discretion vested in the Government Agent under section 38 toallow 10 per cent, on the market value is not an arbitrary or capriciousdiscretion, but should be governed by reason and justice.
HE plaintiff raised this action against the Hon. Mr. Ellis, theGovernment Agent of the Western Province, to recover a
sum of Rs. 5,437, being 10 per cent, of the sum of Rs. 54,370awarded to the plaintiff by the District Court of Colombo ascompensation for the acquisition of his property,. known as “theCanonry, ” under the Land Acquisition Ordinance.
[The District J.udge dismissed the plaintiff’s claim on the groundthat the payment of 10 per cent, on the amount of the compensationfinally awarded was a matter of discretion with the GovernmentAgent, and that £uch » claim should have been made in theoriginal land acquisition case, and not by a separate action.
The plaintiff appealed. The appeal was heard on the 4th Febru-ary, 1903.
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Dornhorst, K.C. (with him Sam-payo, K.C.),"* for appellant, 1903.referred to section 38 of Ordinance No. 3 of 1876, section 6 of February 4.Ordinance No. 17 of 1887, and the Indian Act No. 10 of 1870, March 4.section 42; also to Stork’s case (D. C., Colombo, 2,131), decided —on 14th November, 1898, in support of the right of the claimant tomake his claim to the 10 per cent, of the market value in aseparate action; Bishop of Oxford’s case (5 .4pp. Cos. 214); .Aider-man Blackwell’s case (1 Vernon Ch. Caa. 153); Hoivell v. LondonDock Co. (8 El. and Bl. 2 29.); and Queen v. Tithe Commissioners14 Q. B. 474), and Maxwell’s Interpretation of Statutes, as to themeaning of “ may."
Bamanathan, S. G., for respondent.—The only question is, whatis there in the circumstances of this case which makes thepermissive “ may ” compulsory? Is it for the public benefit orfor the advancement of public justice, as asked by the Lord Caimsin 5 Ap. Cos. 225, who quoted with approval Queen v. TitheCommissioners (14 Q. B. 474)7 Section 38 of Ordinance No. 3 of1876 was copied from the Indian Act No. 10 of 1870, section 42,where “ shall ” is the word used. The local Legislature hasaltered it to “ may.” The contention raised by the appellant hasnever been pressed in our Courts for a quarter of a century.
Cur. adv. vult.
4th March, 1903. Middleton, J.—
This was an appeal from a judgment dismissing the claim in anaction for the recovery of Bs. 5,437.50, being 10 per cent, onRs. 54,375'awarded in land acquisition case No. 2,137 by the District .Court to the plaintiS as compensation for the acquisition to theGovernment of the property known as “The Canonry,” situate atMutwal. The first point was whether his claim for the 10 percent, under section 38 of Ordinance No. 3 of 1876 ought to be madesynchronously with the claim for compensation. The District-Judge field that it should be, bu.t in D. C., Colombo, 2,131, the lateChief Justice Bonser and Mr. Justice Withers held the contrary,and in my opinion that decision is right, and the District Judgeand the assessors have nothing to do with the question of the 10 percent., Which only arises after the compensation has been fixed by
agreement or assessment by the Court.
The next question is, whether the first paragraph of section* 38is compplsory or discretionary only as regards *the GovernmentAgent. Several cases have been quoted frbm the English reports*showing that i.t has been held in certaih instances that the words-“ it shall be lawful ” have an obligatory sense,* that " may ” isequivalent to “ must ” and “ shall ” jn certain contexts, such aswhere “ for the public benefit or the atdvancement of public
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1003. justice ” it should be so. Looking at the fact admitted by counselFebruary 4. for the appellant, that the Ceylon Ordinance is a replica of the-March 4 Indian Act, with the exception that in section 38 the word “ may ”— is substituted here for the word “ shall ” used in the Indian
j, enactment, I feel very strongly that it must have been theintention of our Legislature to adopt the potential sense in placeof the obligatory, but at the same time I do not think that its bareuser concludes the construction to be put on the word.
I do not think that it was intended, that an arbitrary or capri-cious discretion should be given to the Government Agent, butthat his permissive action should be governed by the principle ofreason and justice.
What I- gather from reading the opinions of the Law Lords inJulius v. Bishop of Oxford (5 App. Cos. 214-244), which include aconsideration of the other earlier cases quoted to us by the learnedcousel for the appellant, is that the words “ it shall be lawful ”are potential primd facie, but may be construed as making theexercise of the power imperative where, from the particularprovisions, the context, or the general scope and object of thisenactment conferring the power, this may be gathered, and that"the enabling words' are always compulsory where they are wordsto effectuate a legal right.
Lord Blackburn says: “ If the object for which the power isconferred is for the purpose of enforcing a right, there was theduty cast on the donee of the power Jfco exercise it for the benefit ofthose who have that right, when required on their behalf.”
Now, the scope and object of the Ordinance here one would havesupposed would be to enable the sufferer by compulsory acquisi-tion to obtain compensation on that ground. Neither the preamblenor the context would seem to contemplate this specifically. Itis only at section 38 it is enacted that the Government Agent mayin consideration of the compulsory nature of the acquisition pay10 per cent, on the market value mentiond under section 21. inaddition to the amount of compensation finally awarded.
Under section 21, if the court and assessors are of opinion that nodamages can be awarded under the«second, third, and fourthheads therein, they would only be able to award compensationunder the first head, i,e., the market value at the time of the award.
This, i*t seems *to me, is rather emphasized by the restriction
imposed on the basis of valuation bv the terms of section 22. *
Such a case I should say, would certainly be one in whichthe Government Agent ought to exercise, his permissive power.Again, the District Court and assessors are not empowered speciallyto take into consideration the compulsory nature of the acquisition.
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but rather enjoined for doing bo under the first Jtwo heads ofsection 22, which would seem to include some of the elementswhich would have to be considered in valuing damages arisingfrom the compulsory nature of the acquisition.
The Ordinance, therefore, does not, in my opinion, confer $nylegal right to compensation for compulsory acquisition other thanthat which may be decreed so under the second, third, and fourthheads of section 21, and therefore no legal right as to the 10 percent, which would enable us to read the word “ may ” as equivalentto “ shall.” On this construction there are no cases in which theexercise of the Government Agent’s permissive_ power becomesimperative even where the District Court and assessors have onlyawarded the market value under section 21, first heading.
In every case under the Ordinance the District Court shouldfind specifically what is the market value, and what the damagesseparately under each of the three last heads under section 21,as it is on the market value that the 10 per cent., if allowed, is tobe calculated.
In my opinion, therefore, this appeal must be dismissed forthe reasons I have stated, but I am also doubtful whether thisaction would lie, or whether the proper remedy is not by way ofmandamus, under section 46 of The Courts Ordinance, but Iexpress no binding opinion on this point.
I am of the same opinion.Very good reason should be
required for holding that ” may ” means “ shall ”. It is said thepower given in section 38 of the Land Acquisition Ordinance iscompulsory because it is conferred for the public benefit or theadvancement of public justice.This is, however, a matter
between the Government Agent as representing the Crown and theplaintiff, and I do not think it comes within the class of casereferred to.
On applying section 38 of Ordinance No. 3 of 1876 to thecircumstances of this case, I can find nothing to convince methat the power given to the Government Agent to pay to thepersons interested in land taken under the Land AcquisitionOrdinance “ ten per cent, on the market valuq mentioned jnsection 21” is compulsory. The only consideration which seemsto be in favour of the appellant’s contention is that, while thecompensation to be given is reckoned fiot only on the marketvalue but on the damage, sustained by the persons interested bythe severance of the land acquired, tl^e injurious effect of theacquisition on their oth’er property, and the ’ expense incurred in
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1903.changing their residence, there is no compensation for the.
February 4 compulsory character of the acquisition. If the appellant isMarch 4. righfci section 38 requires the Government Agent to give compen-—sation in respect of the compulsory nature of the acquisition.
MoNCBEif f.y that is so, why is the matter separated from .the general
provisions for compensation, and why is it withdrawn from thereference to the District Judge? In borrowing the section fromthe Indian Ordinance, No. 10 of 1870 (section 42) our Legislatureconverted the word “ shall ” into “ may I see no reason forthinking that this was accidental; I can very well. understandwhy it was done. The appeal should be dismissed.
DIAS v. ELLIS