Government Agent, Western Province v. Ibraim Ahmed.
1932Present: Dalton and Drieberg JJ.
GOVERNMENT AGENT ; WESTERN PROVINCE v. IBRAIM AHMED.
63—D. C. Avissawella, No. L.A. 4.
Land acquisitoin—Exaggerated claim by defendant—Sum tendered insufficientas compensation—Costs.
Where, in Land Acquisition proceedings, the defendant was found tohave exaggerated his claim and the sum offered by the plaintiff wasfound to be insufficient compensation for the value of the land; andwhere it a!>o appeared, that the case put forward in the M’ver Courton behalf of the plaintiff did not show such careful preparation as theCourt might have been entitled to expect.
' Held, that each party should bear his own costs in the lower Court.J^PPEAL from an order of the District Judge of Avissawella.
J.E. M. Obeyesekere, C.C., for appellant.Garvin (with him Marikar), for respondent
* 9 Eq. 103.
246 DALTON J.—Government Agent, Western Province v. Ibraim Ahmed.
July 26, 1932. Dalton J.—
This was a reference by the plaintiff under the provisions of OrdinanceNo. 3 of 1876 (Land Acquisition) in respect of a piece of land at Avissa-weffa, 6 acres 2 roods and 0.1 of a perch in extent. The sum of Rs. 9,742had been tendered as sufficient and proper compensation to be allowed,but the defendant refused this sum and claimed compensation at the rateof Rs. 5,000 an acre. The District Judge awarded the sum ofRs. 17,720.55 as compensation, from which decision the plaintiff appeals.
The first matter for comment is that the amount of evidence led toassist the Court in its task is very small. One would have thought thatboth sides might have been able to amplify it, especially on such- a matteras local assessments. which, it is suggested by the plaintiff, show anappreciable increase in the value of properties, at any rate for two yearsprior to this acquisition, the date of which is August 12, 1929.
For the purpose of making a valuation the land acquired has beendivided up on a plan P 4 into three lots. Lot No. 1 is 2 roods and 36perches in extent along a stream, described as low-lying swampy land.Lot No. 2 again for convenience’ sake has been roughly subdivided intothree portions (a) 1 acre 2 roods and 24 perches in extent, land suitable forbuilding, tapering to a point, with a road frontage, (b) 2 roods and 1 perch,low-lying with a drain running through it, (c) 3 acres 1 rood and 14 perchesbuilding land at the back of (a) and previous acquisitions, with no roadfrontage. Lot No. 3 is a low-lying swampy hollow in the middle of lot 2(c) and is 1 rood and .05 of a perch in extent.
A previous acquisition of a blbck 1 rood and 32.5 perches in extent hadtaken place on July 1, 1927. This block lies in the middle of the blocknow acquired with a road frontage and is obviously from its position (videplan) a valuable piece of the whole, taking the two acquisitions together.This block of 1 rood and 32.5 perches was acquired at the rate of Rs. 2,000per acre.
On August 18, 1927, another larger block 3 acres 3 roods and 20.65perches had also been acquired, at the rate of Rs. 3,000 per acre. Thislies to the north of the block now being acquired, separated from it by asmall stream, and has a road frontage. It is compact and of a convenientsize, being rectangular, thereby differing from the block now acquiredwhich tapers to a point. The gradient from the top to the road is alsoless steep and irregular, a fact of considerable importance in consideringthe cost likely to be incurred in building on the land. On the same datea very small piece of land 7.45 perches in extent was acquired at the rateof Rs. 1,000 an acre. It borders the stream above mentioned, beingapparently the only low-lying position of the larger block acquired on thesame date.
These three previous acquisitions, as the trial Judge points out, are asafe guide to the value of the land in that locality. The amounts offeredhad been accepted in each case without dispute, and the GovernmentAppraiser, Mr. Kirk, in the present case based his valuation of the landnow being acquired on the figures previously paid. It is urged for the
DALTON J.—Government Agent, Western Province v. Ibraim Ahmed. 247
appellant that the trial Judge was not justified in departing from that safeguide, which he stated in his judgment was a very strong point in favourof the Crown, and that his conclusions are not supported by the evidence.
The question at once arises why the trial Judge has departed from thissafe guide. The answer is that an offer had been made to the defendanttowards the end of 1927 for 1 acre of the block now being acquired, forthe sum of Rs. 4,500. This 1 acre is carved out of lot No. 2 to which Ihave referred. Accepting this as showing the value of the land, he hasworked out the value of the remainder from this starting point.
This offer was made towards the end of 1927 by Mr. J. de Jacolyn, aProctor and Notary practising at Avissawella. There is no evidence toshow that this offer was ever made known to the Government Agent atthe inquiry, nor did it apparently come to the notice of the GovernmentAppraiser prior to the hearing in the District Court, but Mr. de Jacolynwas called as a witness there. Two bungalows had been put up on theblock of 1 rood and 32.5 perches previously acquired, which seem to haveattracted his notice, and he made an offer for 1 acre adjoining the blockapparently for the purpose of building a house for himself. He was toldhe could not get it for less than Rs. 5,000, but the owner agreed to let himhave it for Rs. 4,500. ThG witness admits he has himself not much ideaof land values, but he understood he had made a bargain. Nothing issaid as to how the value was arrived at, but he states defendant owns allthe available land in Avissawella, hence it is very difficult to say what isthe real value of land there. '
No explanation is .offered of the extraordinary jump in land values onthis site said to have been taken place between August, 1927, and the endof the year, and the reasonable conclusion with regard to this offer seemsto me on the evidence adduced to be this, that it was a special offer forthe best piece of land on the site selected by Mr. de Jacolyn to build ahouse for himself, governed by personal reasons and not as a businessproposition. That it affords evidence, as the trial Judge states, that theprice of land there had more than doubled, and that in less than sixmonths I am quite unable to agree. The previous acquisitions in 1927were on July 1 and August 18, and there was no increase at any ratebetween those two dates. The remarks of one of the assessors, Mr. Perera,seem to me to be most apposite on this point, and he concludes the reasonsfor the offer were personal and peculiar to Mr. de Jacolyn, the 1 acre blockselected being obviously the pick of the block, the owner also realizingthat the value of the rest of the land would be most seriously affected.With this 1 acre block divided off and sold, the land behind would haveno outlet to the road save through a lowlying and swampy piece ofground, whilst the small triangular portion left to the south would be ofvery little value. The offer was not proceeded with, for the witness statesthat when he heard that the Government was going to acquire the wholeland, he decided not to buy the land.
For these reasons I think the trial Judge was wrong in departing fromthe previous acquisitions as a safe guide for proceeding to value thepresent acquisition. I am of opinion that Mr. Kirk was correct in basing
348 DALTON J.—Government Agent, Western Province v. Ibraim Ahmed.
his figures upon them at any rate as a starting point. With respect to theevidence of Mr. Kirk complaint has been made on appeal that the learnedJudge has been unduly hard upon this witness and has made remarksabout him and his evidence which are not justified. I think there issome ground for that complaint. The learned Judge states he was notconvincing and would not give a direct answer to a single question. Thatlatter defect, in my experience, is not uncommon, when professional orexpert witnesses are giving evidence. The attitude referred to is notalways helpful, but it does not necessarily mean that the witness isinsincere or is untrustworthy. It may even be due to his desire to explainmatters to the Court, which he assumes requires enlightenment onquestions usually not within the knowledge of the Judge. If he does notdirectly say so, one must assume that the learned Judge wishes one tounderstand that he found the witness was not truthful, since he compareshis evidence with that of another witness whom he says he found “ atleast truthful and candid ”. I can find nothing in the evidence to supportany such conclusion as to Mr. Kirk’s evidence. On one point as to theexistence of a previous development scheme he is ambiguous and unsatis-factory, and he does possibly lay himself open to adverse comment, butno attempt seems to have been made to clear up this point by either side.
I deal further with this matter later. On other points, such as the amountof building land available in Avissawella, rents paid, increase inassessments, he may have made cursory local inquiries, but .the evidenceled for the defendant seems to me to be open to exactly the same criticism.The reference in the judgment to his evidence in some other proceedings,referred to by the trial Judge as “ the recent bribery case ” would lead oneto think that the Court took into consideration in weighing the evidenceof the witness some previous evidence or statements by him that werenever put to the witness when he was in the witness box. What thatevidence was there is nothing on the record to show.
The purpose for which the land was being acquired was stated to be forbuilding houses for Government servants, and the question of the cost ofpreparing sites for building and making roads came up for consideration.Mr. Nathanielsz, the Provincial Engineer, had prepared a building dvelop-ment scheme (Exhibit P 9), for erecting thirty-one buildings and formaking the necessary roads. The cost of site and road formation he putat Rs. 14,300, although he does not seem quite sure about his figures.When this scheme was prepared is not stated, but the Exhibit P 9 has anote to the effect that it accompanied a communication from theProvincial Engineer to the Government Assessor in 1930. In February ofthat year, however, he gave the Government Assessor an estimate of thecost of site and road formation amounting to Rs. 10,000 only- It is trueMr. Nathanielsz states his later figures are more reliable, but Mr. Kirkutilized the estimate sent him in making his valuations, for which, itseems to me, he cannot be blamed. For doing so he has been adverselycriticised by the learned Judge, who actually suggests the Appraiser hasartificially adjusted his figures to meet his own valuation. The learnedJudge seems to me to have overlooked the fact that he had obtained anestimate of Rs. 10,000 from the Provincial Engineer, which the latter
DALTON J.—Government Agent, Western Province v. Ibraim Ahmed. 249
himself seems to have forgotten until reminded of it when in the witnessbox. At one point, in cross-examination, Mr. Kirk does state that inmaking his valuation he had referred to a building scheme, which he sayshad been scrapped. In re-examination on this point, he states heconfirmed his valuation, after consideration of the previous acquisitionsby making calculations on a hypothetical building scheme, presumablythe earlier scheme already referred to by him. One gathers from there-examination that plaintiff’s counsel had no knowledge of this earlierscheme, but the matter does not seem to have been further pursued. Thescheme (P 9) put forward by the Provincial Engineer was apparently notin existence until 1930. The Provincial Engineer describes this as “ thefirst complete building scheme proposed ”. Whether or not there wasany previous scheme for building, such as Mr. Kirk referred to, he was notasked, but his description of the scheme P 9 and the use of the word“ complete ” are not incompatible with the existence of some previousincomplete proposals, such as Mr. Kirk mentions. In any event,however, Mr. Kirk’s calculations seem to me to be too much in the natureof conjectures to form the basis of any real test as to the value of the landby this method.
On the question of increases of land values after the 1927 acquisitionsdue to those acquisitions I agree with the trial Judge that there is someevidence to support the case for the defendant. Mr. Kirk suggests thatthe value of the adjoining land would be decreased, because people wouldsee that building was very costly, but I do not think there is much in thatsuggestion. On the other hand there is evidence to show that the twobungalows put up were attractive enough to draw Mr. de Jacolyn to thevicinity. Mr. Kirk, however, as has been pointed out, had no knowledgeof Mr. de Jacolyn’s offer until the evidence was actually given in Court.The increases in assessments in 1929, as shown by the assessment register,are fairly numerous, and it is impossible to think that a large proportionof them are solely due to improvements in the properties, although theevidence might have been more definite on this point. There was a slightdrop in the figures of 1928, compared with those for 1927, which wasapparently due to the figures of 1925 being adopted for rubber lands,but there was a considerable increase in the next year. The increase inannual values between 1928 and 1929 is shown to be Rs. 7,951, althoughthe assessments of rubber lands had been reduced.
On the subject of increase in rents between 1927 and 1929 the learnedJudge states he accepts the testimony of the defendant’s witnesses,Gnanapragasam and Fernando, who, he states, speak to actual facts asknown by them, rather than the inferences of Kirk. I quite agree thatthe evidence of Kirk on this point does not help the Court. On the otherhand, of the other two witnesses mentioned i cannot find that Fernandomentions increase of house rents at all, whilst Gnanapragasam althoughhe states he knows of some cases where rent had gone up 500 per cent.,does no more than mention one specific case of an increase known to him.The one case he mentions is the raising of the fiscal’s rent for a dwellinghouse from Rs. 20 to Rs. 40, but it does not seem to me to be of any valuestanding alone, even if it was within the yedrs 1927 to 1929, which is not
250 DALTON J.—Government Agent, Western Province v. Ibraim Ahmed.
at all clear. Apart from this he speaks in general terms and states therewas a 100 per cent, rise in house rents in 1927 when he adds the highestlevel was reached. If only specific instances showing how and why hecame to this conclusion had been given, his evidence might have been ofsome value on this point. The establishment of a District Court atAvissawella is mentioned as being a cause for these increases, but when theevidence on this point is analyzed, we are again without any specific cases^to help us. There is in fact no evidence on the record as to when thisDistrict Court was established at Avissawella, but we have been informedin the course of the argument before us that it was in August, 1927. Ifso is it not likely that the earlier acquisitions were affected by it, if it hadany such effect as is here contended ? The trial Judge himself says “ itis well known ” that such an event would ordinarily enhance the value ofland generally. He adds “ even Mr. Kirk had to admit that it wouldincrease the demand for offices and quarters ”. Gnanapragasam speaks oflarge increases in the value of land after the establishment of the DistrictCourt, but no instance is given of such an increase, and he goes at once tomention the case of increase of rent, to which I have already referred.There was already a Police Court and Court of Requests at Avissawella,and the establishment of the District Court, I understand, meant that thePolice Magistrate also became District Judge with possibly (there is noevidence on this point) an addition or additions to his staff. Theestablishment of the District Court may or may not have brought abouta demand for more offices and dwellings, but this is a matter of evidence,and I can find very little in the evidence led on this point which is ofassistance in deciding this particular question.
With regard to the value of the land for tenement buildings there is theevidence of the witness Fernando, which on this matter is very definiteand to the point. Kirk, of course, had no local knowledge nor do hislocal . inquiries seem to have gone very far. Fernando himself hastenements and he says he has been approached on many occasions to putup more. There is evidence to show there was a growing demand forthis type of building, and building sites are few. Considerable expenseno doubt would have to be incurred on the site acquired to make it readyfor the erection of even tenement buildings, but it would naturally costless than any development scheme for small houses or bungalows.
Lastly, on this question of increase of land values in Avissawella, theintroduction of water service and electric light is referred to by the witnessGnanapragasam. Unfortunately, however, there is no evidence at all toshow when these improvements reached Avissawella. They are onlyreferred to in a general way by the witness Gnanapragasam, and there isnothing to show they had any bearing on any alleged increase in landvalues between 1927 and 1929.
The witnesses Gnanapragasam and Fernando, called for the defendant,in respect of their valuations of the land do not seem to make any referenceto the previous acquisitions in 1927 in arriving at their conclusions. It isnot necessary, however, to consider their valuations in any detail, as thetrial Judge has correctly, in my opinion, come to the conclusion that theirvaluations are open to question for want of expert knowledge. Thatconclusion has not been questioned on appeal.
DALTON J.—Government Agent, Western Province v. Ibraim Ahmed. 251
With the evidence of defendant’s son, as to why the offer made for theearlier acquisitions in 1927 was accepted, the learned Judge does not deal,apart from stating that Mr. de Jacolyn’s offer showed the price of land hadmore than doubled between August and the end of 1927. The witnesshad been his father’s attorney for ten to fifteen years, doing all his businessfor him. He states he did not go into the question of the values of theprevious acquisitions until after the acquisitions, as his father was seriouslyill at the time. He states, however, he consented to a low valuation,which could not be otherwise if his present claim at Rs. 5,000 per acre allround is to be substantiated. The truth of the matter seems to me to liein the fact that defendant, as witness says, is very wealthy and ownspractically the whole of Avissawella, that the witness had no means oftesting the value of the land acquired in 1927, for example, by othersales, and that he was satisfied with the amount then tendered as beinga fair offer.
The unreality of Mr. de Jacolyn’s offer as forming any test as to the realvalue of the whole block acquired is further apparent when one considersthe learned Judge’s valuations of the lots outside the block. Lot 1 he hasvalued at the same rate per acre as the 1 rood and 32.5 perches acquiredin 1927, the latter from its position a valuable building site, with a roadfrontage, and lot 1 being swampy land which would require veryconsiderable filling in and unsuitable for building purposes, according tothe evidence of Mr. Nathanielsz, for a considerable period of time. Lot 1moreover has no road frontage. His valuations of the different portionsof lot 2 and the effect upon the remainder of lot 2, after the 1 acre has beencarved out of it, I have already dealt with.
Commencing then with the previous acquisitions as a safe guide and as astarting point for arriving at the valuation of the acquired land, andhaving due consideration for the evidence of increases in values under theheadings dealt with, which I have set out, I have come to the followingconclusions. Taking the lots into which the land has been divided onplan P 4, a sufficient and proper compensation for lot 1, 2 roods and 36perches in extent, I put at Rs. 1,250 per acre. For lot 2, I would put thecompensation to be paid for the portion (a) 1 acre 2 roods and 24 perches inextent at Rs. 2,500 per acre; portion (b) 2 roods and 1 perch in extent atRs. 1,500 per acre; and portion (c) 3 acres 1 rood and 14 perches atRs. 2,000 per acre. With regard to lot 3, 1 rood and .05 of a perch inextent there is no dispute, the compensation tendered at Rs. 750 per acrebeing accepted. In the result, on this valuation the defendant will beentitled to the sum of Rs. 12,676.62. The appeal is therefore allowedto this extent. Save with regard to the assessors’ fees the decree of thelower court is set aside, and decree will be entered for this sum.
With regard to the costs of the proceedings in the lower Court, it isquite clear that the defendant put forward a much exaggerated claim.On the other hand, the case as put forward in the lower Court on behalfof the plaintiff does not show such careful preparation as the Courtmight have been entitled to expect, whilst the sum offered has beenfound not to be sufficient and proper compensation for the land at the
DALTON J.-r-Rantebe v. Peiris Silva.
time of the acquisition. Under all the circumstancesthat each party pay his own costs in the lower Court,each party being partially successful, I would make nocosts of appeal.
Drieberg J.—I agree.
I would direct
On the appeal,order as to the
GOVERNMENT AGENT_ WESTERN PROVINCE v. IBRAIM AHMED