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Present: Bertram C.J. and Ennis J.
THE GOVERNMENT AGENT, CENTRAL PROVINCE, v.LETCHIMAN CHETTY et al.
44—D. C. (Inty.) Kandy, 298.
Competuation for improvements—Bona fide and maidfide possessiondiscussed—Development of• Roman law principles to suit ourcivilization.
The Government Agent took steps to acquire a swamp under theLand Acquisition Ordinance, but suspended * it. On the outbreakof plague he entered into possession under the Plague Regulations,and, in anticipation of the conclusion of the acquisition proceedings,improved the land by filling it and draining it with drains whichextended out of the land. No formal order of possession wasobtained under the Land Acquisition -Ordinance.
At this, stage the scheme was modified, and the old proceedingsunder the Land Acquisition Ordinance were abandoned, andproceedings started afresh.
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The claimants contended that fhe land should be valued on the 1022.condition of the land at the date of the award, and the Government~~~
Agent-, on the other hand, claimed compensation for improvements menf Aggroeffected by him.Central
Held. that the Government Agent was not a maid fide possessorwhen he effected the improvements and was entitled to compen&a-Chettu
A person who' lakes possession of land and executes improve-ments thereon on expectation of a formal title, which in good-faith be believes himself certain to. obtain, may be a bttrur fideipossessor.
Jfarthelis A ppu a. Jgyav.arde.ne ' followed.
.Held, further, that the costs of the drains which extended out ofthe land should he taken into consideration in assessing the value-of the improvements.
Mala fide and bona fide possession discussed.
* Bertram C.J.—We are, 1 think, entitled to develop the legalprinciples handed down to us in. connection with new situationswhich arise in onr own civilisation. The tests which were taken,as determining tests under the Boraan law, are not always justlyapplicable as determining tests in* the various combinations of fact,which, from- time to time, present themselves iu modern life. Theprinciple involved was originally an equitable principle, and it ismore in accordance with the spirit of that principle that we shouldadminister it equitably, rather than upon strictly rigorous lines.
But. I think, it must be recognized that it is a development.
rJ~' HE facts appear from the judgment.
Pereira, K.C, (with him E. W. Jayawardene, H. V. Perera andNavarainam), for appellant.
AMwr, Acting S. G. (with him Brito Muttitnayagam, C.C.) forrespondent.
October 12, 1922. Bertram C.J.—
The facts of this case are of a peculiar nature, and they raise avery special case with regard to the right of a bona ffde possessorto compensation for improvements. The question arises in certainland acquisition proceedings with regard to a swamp at Nawalapit-iya.
But before I recite the facts, it might be convenient that I shouldmake a few observations with regard to the law on the subject.
The right of a bona fide possessor to improvements was an equitableright recognized by the Homan prsefcors. It arose primarily in theaction de reivindications and also in the action de hereditati* petitions.
4‘The defendant was entitled, from the time of Hadrian ouwards,to claim by exception ius retention}*, hut- not by action, an.allowancefor expenses to an extent- which varied, from time to time and
1 (m$) 11 N.L. R. 272.
The Govern-tneni Agent,Central- Province, v.LetckinumChettjf
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according to his good or bad faith. Buckland, Roman iaw,p. 669. Bee Digest 6, 1, 48.
Siuhptqs j. in praediumy quod alienmn esse apparuit. a bon©x "fidei possessore facti neque ab eo qui pradium donav^t
neque a domino peti possiint, verum exceptione doli positsper offipiuxri, iudicis sequitatis ratione servanfcur;”
that is to say, the prtetor allowed an equitable exception whichwas accorded to the conscientious possessor and denied to theuncohscientious.
The natural test of conscientiousness was belief by the possessorin the validity of his title. On these lines the law i developed with acertain definiteness. If the possessor had a consciehiid trei alieneehe was a matte fidei possessor; if he had no such conscientia he Was abonce fidei possessor; The ordinary case was the case of a man whobought from a vendor Whpm he believed to be entitled -to the pro-perty and entitled to dispose, of it. See Voet 41, 3, 6.
– + „ . * 1-' . .
Bona fides, alterum uaucapiofiis requisitum ‘est illaesa * con-scientia put-antis fetan – Bdain' esse, dum credit, eum, a quonactus est possessionem, fuisse dominum illius rei etalienandi iure hand destitutum.”
But “ bona fides refers to every possible ground of detention;whosoever conceives himself to have a lawful' ground for thedetention, which he is exercising, is called a bonce fidei possessor.”(Savigny on Possession, Perry’s Translation, Bk. 1, s. 8, p. 67.) Thesame test is embodied in two well-known definitions of Qrotius,2, 2, 10 and 11.” Possession bonce fidei is when the possessor enter-
tains any. probable or apparent right to the property possessed.Males fidei is when he does' not entertain the same.”
. There existed in Nawalapifciya for a long time past an unsightlyand insanitary swamp, and the Government had determined., toacquire it, so as to enable the Local Board to carry out certainpublic improvements. Land acquisition proceedings were com-menced; a mandate for acquisition was issued on June 15,. 1916(P 7); a notice was issued in the Gazette (October 6, 191.6), aridclaimants were summoned to an – inquiry before the AssistantGovernment Agent- on November 14. But the inquiry on the date- fixed seems to have been little more than an inspection. Novaluation was made by the Government Agent, and no sum tendered,bot the. proceedings were suspended. The reason for the suspensionwas. a-question, which-arose whether it might not be more expedient. to proceed by the way of a general improvement scheme under the
4 “ Illffisa '' appears to be used here ia-the sense of ’* unqualified, unimpeachable
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Housing and Towi# Iij^rpvement Ordinance of '1915. Before thisquestion was finally..settled j the' acquisition proceedings being, still Bebtrasm progress, plague- broke out in Nawalapitiya, and the Government C,J*took systematic measures to cope with it. These included the Th* Govera*removal of persons residing in the immediate -neighbourhood ofthis swamp to another locality. Acting under regulation 51 of the Province, v.Plague Regulations, the Government Agent took possession of this-
swamp area and enclosed it. Meanwhile, the idea of proceedingimder the ' Town Improvement Ordinance had 1 been abandoned.
The original project for the ordinary land acquisition project hadbeen revived, and the Finance Committee of the Legislative Councilin November, 1919, voted a sum for “ Nawalapitiya. swamp works inconnection with drainage, filling, Ac., and cost of .acquisition ofland.” This, by a letter of November 21, 1919, was communicatedto the General Manager of Railways, who had undertaken to do thefilling in, and an information copy was sent to the GovernmentAgent.
Being thus already in possession under the Plague Regulations,in anticipation of the conclusion of the acquisition proceedings,the Government proceeded to carry out the improvements ordered,draining and filling up the unhealthy swamp and immenselyimproving the value of the land. Strictly speaking, before doingthis, the Government Agent ought to have obtained a formalorder for possession iinder section 12 (2) of the Land AcquisitionOrdinance. This requirement, no doubt, escaped his notice owningto the fact that he was in possession already.
At this point occurred an incident which .has somewhat confusedthe history of the proceedings. It was desired to modify the scheme,and a new plan was ordered taking in premises not previouslyincluded, and it was thought convenient to abandon the old proceed-ings and to start afresh. A new mandate was issued; a new inquirywas held; the Government Agent made an award and tendered asum in accordance therewith. Owing to the long delay in puttingthrough the acquisition, and owing to the fact that under section 21
.the value of the land must be taken to be the market value at-tire time of the Government Agent’s award, (for this I take to be thelaw notwithstanding the inartistic drafting of- the. Ordinance),the land had to be valued in*its improved state, and, as I have alreadysaid, the- improvements had immensely enhanced its value.
It would of course be obviously and, on the face of it, unjustthat the public revenue should be charged, not only with theoriginal value 'of the land*, but also with the enhanced value .due tothe • expenditure of* public money in the course of the acquisitionproceedings. 'The -Government* clearly had -an .equitable claim inrespect of these improvements. ' It has already been Held in ourCourts that under our law, unlike the ’ Roman law, such a claimmay be the subject of separate proceedings in which the ^person
The Govern-ment Agent,CentralProvince, v.Letch im anChettg
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making the improvement may be plaintiff. See Appuhamy v.Banda.1. And it has been further held that such a claim in respectof buildings erected by the Government as bona fidei possessorcould be advanced by the Government Agent in a reference under,the Land Acquisition Ordinance for the purpose of the acquisitionof the land on which the buildings have been erected. Relying onthis authority the Government put in a claim for compensation inrespect of the improvements it had effected in the course of the landacquisition proceedings.
What was the answer to this claim? It was as follows:—You,the Crown, had necessarily a conscientia rei alienee, in that youknew or you might have known, if you had made theamost elemen-tary inquiries, that you had not yet acquired the land. You were■necessarily a males fidei possessor. If you had taken precautionsto duplicate the title to possession which you already had underthe Plague Regulations by an order for possession under the LandAcquisition Ordinance, your> possession would have been bonmfidei, as it was males fidei.
The learned District Judge lias treated this question as a purequestion of fact, and for this purpose has interpreted the words“ bonce fidei ” as being used in their ordinary sense. The question isa question of fact, but, in my opinion, it must be decided in accordancewith the legal principles which have been accepted as governing thematter. But the question arises: Is the law* in so rigorous and un-reasonable a condition t-hnt it must necessarily impute mala fidesto a person who, in fact, has acted in perfect good faith, but hasneglected to observe a particular formality, which it was in his ownhands to take. In my opinion it would be a most unfortunateposition' if the law had not developed principles which would enableit to deal justly with such a case. There has in fact been such adevelopment by an express authority in our own books. SeeMarthelix Appu v. .1 ayawardene (supra). In that case plaintiff wasput into possession of land by the owner under an agreement to sell.He paid him an instalment of the purchase price and expended hismoney on the land in reliance on the agreement. Hutchinson C-J.refused to hold that he took possession in bad faith, “ for manypurposes a man is presumed to know the law, hut lie is not necessarilya -maid fide possessor, because he knew or must be presumed to haveknown that his title was bad or defective. I. have not
found any definition of a mala fide possessor, but I think a man whotakes possession in the mistaken belief that he has a title or that he iscertain of obtaining one, whether his mistake be a mistake of factor of law, cannot' be said to do so maid, fide.'’ Wood Renton J.expressly concurred in this expression of opinion..
It waR urged before us that we ought to disregard this judgmentiof these two learned Judges, because it was ohvious that they had not
1 (70/2) IS N. L. R. 203
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fully considered t.he subject inasmuoh as the Chief Justice hadavowed that he had not fouud any definition of maid fide possessor,whereas there is such a definition in Grotius. The opinion mustnevertheless he taken to be well considered, Hutchinson C.J.spoke not only with reference to the case before him, but also withreference to a similar case which he had heard a short time before,and said with regard to the plaintiff in that case: " I considered,and I still think, that he was a bona fide possessor.'" Sir AlexanderWood Renton was not in the habit of concurring in generalexpressions of legal principles unless he had duly considered them.
In my opinion this development of the law should be welcomed,and the present case should be treated as coming within the principleslaid down. Indeed; as a Court of two Judges, we are bound by thatdecision. Jt was contended, however, for respondent that thatdecision is inconsistent with the decision of the Privy Council inDe Livera v. Abeyasinghc-1 I do not agree with that contention.There it was found that the possession and the improvement were infact maid fide, and the circumstances of the case were wholly differentfrom those of the present case. We are, I thinkl entitled to developthe legal principles handed down to us in connection, with new situa-tions which arise in our own civilization. The tests' which weretaken, as determining tests under the Roman law are not alwaysjustly applicable as determining tests in the various combinationsof fact, which, from time to time, present themselves in modern life.The principle involved was originally an equitable principle, -and itis more in accordance with the spirit of that principle that we shouldadminister- it equitably rather than upon strictly rigorous lines.But, I think, it must be recognized that it is^ a development.
There is a passage in the Digest which, at first sight, seemscontrary to the principles enunciated by Hutchinson C.J. SeeDigest, 41, 2, -5.
The Governmcni Agent,CentralProvince, v.LetchimanChttiy
“ Si ex stipulatione tibi Stichum debeam efc non tradam eum, tuautmn nanctus fueris possessionem, pnedo es; *que si^ vendidero nec tradidero rem, si non voluntafce maa nanctussis possessionem, non pro emptore possides, sed prsedo es.”
In other words, if the purchaser takes possession of land sold to him,but not yet conveyed, he is not to be treated as being in possessionas a purchaser, but is to be regarded as a^robber. But it should-benoted that the important words are “ non voluntate men,” so thatif the purchaser takes possession with the consent of the vendor,as in Mart ltd is Appu v. Jayawardene (supra), it would seem to followthat his possession is to be counted as borne fidei. This passage,therefore, may be considered- as indicating that conscienfia ret alieneeis not necessarily an absolute test, but that the equitable consider-ations of the case are to be regarded.
1 (191?) 19 N. L. R. 492.
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The Govern-ment Agent,Central'Province, v.LetchimanOhttty
– Exception was taken to the method of calculating the costs ofthe improvements. The improvements consisted partly of filling'up the-swamp, partly of the ^pstruction of drains, which werdnotwholly situated in the land Jm^pyecT, with a view to carrying ofthe water which would otherwise flood the land. The^costs of theseimprovements has been distributed pro rata over the whole areaacquired, and 1 think that this is a just principle.^
I would therefore dismiss the appeal. With regard, to the costs,appellant must pay the costs of this appeal. As the Crown doesnot insist upon the order made by the learned; Judge in the Courtbelow, I think in the Court below each side should pay its owncosts.
Ennis J.—I agree.
THE GOVERNMENT AGENT, CENTRAL PROVINCE, v. LETCHIMAN CHETTY et al