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Oct. 14, 1910
Present : The Hon. Sir Joseph T. Hutchinson, Chief Justice,Mr. Justice Wood Benton, and Mr. Justice Grenier.
Land .L-juMlionOrdinance.1H7U—Reference toCourt—liival claimants
—Dislr'u I Court,haspower to order claimantstopay the costs of
reference toGovernment.Agent—Appealasto coals—Vial Procedure
Code, s. SOB et seq.
When.1 a referencetothe District Courtis madeby aGovernment
Agent under thelastclause of section 11 ofTheLand Acquisition
Ordinance, 1876,*'in consequence merelyofa disputebetween
two rival claimants as tothe title toland,there being no dispnte
as to tbc amountofcompensation, theDistrictCourthas power
to order that theGovernment Agent snailbepaidhis coats of
the reference outof the fund in Court or byeither or both of the
Under section 209 et seq. of the Civil Procedure Code it wouldbo competent lor aCourt to order even asuccessfulpsrty to- pay
costs which hadbeen rendered necessarybyhisownconduct.
The SupremeCourt wouldnot interferein appeal with the exercise
of the discretionof aDistrict Judge in makinganorder' as to costs,
unless it is clear that a manifest injustice has been caused by its-exercise.
mHE facts are set out in the judgment of Hutchinson C.J. This
X case was referred to a Full Bench by Hutchinson C.J. andMiddleton J.
Bartholomeusz, for the appellant.—The Government Agent is notentitled to get his costs of the reference; Green v. Romanis1 is a caseon all fours with the present; and is a direct authority in favourof the appellant. Section 29 of The Land Acquisition Ordinance,1876,” says in what cases the Government Agent may get hiscosts; the Government Agent cannot get costs in any other case.[Wood Renton J.—Ordinance No. 9 of 1908 repeals that section.]Section 2 of Ordinance No. 9 of 1908 practically re-enacts section 29 ofthe Ordinance of 1876. [Hutchinson C.J.—Is not the GovernmentAgent in the position of a stake holder? May not a Court give astake holder who brings an interpleader action his costs?] Theprinciples that apply to interplead®'’ actions would not apply toproceedings under the Land Acquisition Ordinance, which must be
THE GOVERNMENT AGENT, UVA, v. BANDA et al.
D. C., Badmlla, 2,403.
1 (1882) S S. C. C. 1:
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Oet, u, mo
The Govern-ment Agent,Vva, v.Banda
governed by the provisions of that Ordinance. [Hutchinson C.J.—Section 683 of the Civil Procedure Code would justify an ordergiving the Government Agent costs out of the fund.] The Govern- .ment Agent precipitates the dispute between the claimants byacquiring the land compulsorily. He ought to bear his costs; itis manifestly unjust that the claimants should pay the cost of theGovernment Agent. In In re Fisher1 Lord Justice Say said: “ Ifwe look at the reason of the thing, it is very hard upon a landownerthat his land should be taken from him compulsorily and the moneypaid into Court, and that when the money is paid out he shouldhave to pay the costs of it himself.” [Wood Renton J.—The chiefquestion is whether the District Court has the power to make suchan order as the present.] The Supreme Court has already held thatthe Court has not the power to make thi6 order. [HutchinsonC.J.—The practice has been against the appellant, in spite ofGreen v. Romanis.] Counsel also referred to Cripp's Law of.Compensation (3rd ed.), p. 287.
Van Lavjenberg, Acting S.-G., for respondent, not called upon.
Cur. adv. vult.
October 14, 1910. Hutchinson C.J.—
The Crown took a small piece, of land under the powersconferred by ‘‘ The Land Acquisition Ordinannce, 1876 and theGovernment Agent, finding that there were two claimants of theland, each of whom claimed the whole of it, agreed with them,under section 10, as to the amount of compensation to be allowed,and then, under section 34, referred the dispute to the DistrictCourt. The District Court decreed that the present appellant wasentitled to the whole of the compensation, with costs from theother claimant, and ordered the claimants to pay the GovernmentAgent his costs of the action (i.e., of the reference to the DistrictCourt). This is an appeal by the successful claimant against theorder for payment of the Government Agent’s costs. The. reasongiven by the District Judge for making the appellant as well as theother claimant liable for the Government Agent’s costs was thatthe appellant “ had not sufficiently exercised his rights, and that,if they had been more actively kept alive, such a contest wouldhave been impossible.”
In order to succeed the appellant must show either that the Courthad no power to make the order, or that it went on some wrongprinciple, or else that the matter is covered by authority. Havingregard to section 32 of the Ordinance and the enactments as to costsin chapter XXI. of the Civil Procedure Code, it cannot be maintainedthat the Court had no power; and, whether the reason given by1 (1894) 1 Ch. 450, 453.
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the learned Judge is satisfactory or not, there is no wrong principle Oet. 14,1910enunciated. The only question is, whether the matter is covered Hutchinsonby authority; and the appellant says that there is an authority C. J.exactly in point (Green v. Ramanis Appu1), in which Clarence J., mm?Agcn£delivering the judgment of himself and Dias J., held in a case just Um,v.the same as this that the Government Agent ought not to be made Bandato pay any costs of the reference to the District Court, and oughtnot to get any. The Court said that the Government Agent “ bringsthe disputants into the Court, and need do no more; we do notthink that he ought to receive any costs for .doing that much.
To give the Government Agent any such costs would be quite
counter to any analogy to be drawn from the administration ofsimilar matters under the English Land Clauses Consolidation Act."
This decision was before the date o.f the Civil Procedure Code,which empowers and directs the Court which decides an action todecide also which party is to pay the costs of the action. ClarenceJ. makes no reference to any enactment or rule which was then inforce as to costs; but he does not decide the matter on the groundthat the District Court had no power to make the order, but onthe ground that it was not fair that the Government Agent shouldget any costs; that is an appeal against an order as to costs, whichthe District Court had jurisdiction to make, was allowed on theground that the District Court had exercised its discretion wrongly.
The reference to the Land Clauses Act is not quite convincing; fortinder that Act an association of private persons takes a man's landfor its own private benefit, and it might be thought reasonable thatit should pay him the value of the land in full without any deduction;whereas this is a case of a public officer empowered and required' by the Legislature to take land for the. public benefit, and it may. be thought (I do not say that it is the right view, but at least it isa possible view) that he has the price of the land in his hands, readyand willing to pay it to the true owner, and is merely in the positionof a stake holder or trustee, and that, where his conduct has been‘. quite correct, he ought to recover from the owner or out of the fund(in accordance with section 633) the costs which he properly incursin getting a decision as to who is entitled to the fund. The Legis-lature has not said anything in the Ordinance of 1876 as to thecosts of such a proceeding as this, beyond the general enactment insection 32 that the proceedings shall be subject to the rules providedfor in ordinary civil suits. In ordinary civil suits the District Courthas to decide, under chapter XXI. of the Code (which was not inexistence at the time of the decision in 5 S.C.C.), who is to pay thecosts; and section 633 enacts that a stake holder, where his inter-pleader action is properly instituted, may have his costs providedfor by a charge on the fund or in some other effectual way. Mypresent opinion is that the Code now empowers -the District Court
1 (1882) S S. a. C. 1.
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0<*. 14, 1910
The Govern-inert Agent,Vva, v.Banda
to make such an order as was made in this case, and that the decisionin 5 S. C. G. ought not now to be followed. But I think that thematter is of sufficient importance to be argued before a Full Court.
If it should be held that the Government Agent is entitled to biscosts, his costs will not be all those which he has actually incurred,but those which the District Court or its taxing officer allows. Ishould not allow an appeal to this Court unless some principle wereinvolved; and I should not consider that any principle was involvedmerely because the costs of the Government Agent’s appearance bya proctor were allowed or disallowed.
Having heard this case argued before a Full Court, I remain of thesame opinion as before: that the District Court has power to orderthat the Government Agent in such a case as this shall be paid hiscosts of the reference to the Court out of the fund, or by either orboth of the contesting parties; and that the question whether thecosts of his appearance in person or by a proctor at the* inquiry inCourt is a matter for the taxing officer of the Court, or the Judge,to decide.
Wood Renton J..—
This is an appeal by the second of two claimants for a sum awardedby the Government Agent of Uva for the acquisition of certainproperty under Ordinance No. 3 of 1876, against an order by the learned .District Judge of Badulla decreeing both claimants liable for theGovernment Agent's costs. There was no dispute as to the amountof the compensation tendered by the Government Agent, and thecase was referred to Court in consequence merely of a disputebetween the claimants as to the, apportionment of the sum awarded.The contentions of the second claimant-appellant were upheldby the learned ■ District Judge, who decreed him entitled to theamount of the acquisition, with costs from the-first claimant. Thereis no appeal by the first claimant against that order, and, as I havesaid, the only point that we have to decide is whether it was com-petent for the learned District Judge to order the appellant, who isa successful claimant, to pay the costs of the Government Agent.The appellant’s counsel endeavoured to induce us to enter upon aconsideration of the different heads of costs which the GovernmentAgent might claim. He contended, for example, that, even if thecosts of the reference might properly be awarded, it would beimproper to allow any costs of appearance on behalf of the Govern-ment Agent at the trial of the dispute between the claimants in theDistrict Court. I do not think, however, that we are called uponat present to deal with such points. The Government Agent's costshave not yet been taxed, and it will be open to the appellant toraisfe any objection that he thinks proper to the inclusion of any
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particular item in the bill of costs before the taxing officer. We Oct. 14, 1910have at present merely to decide whether such an order as is here WoODappealed from cannot legally be made. . Section 32 of Ordinance Rentok J.
No. 3 of 1876 provides that proceedings taken under the Ordinancein any District Court shall be subject, so far as the same can be madeapplicable, to the rules, practice, and procedure in force for thefcimft being in ordinary civil suits. There can be no doubt but that,under section 209 and following of the* civil Procedure Code, itwould be competent for a Court to order even a successful parly topay costs which had been rendered necessary bv~ his own conduct—the ground on which the District Judge has relied in the presentcase—and also that the Supreme Court would not interfere withthe exercise of that discretion in appeal, unless it was clear that amanifest injustice had been caused by its exercise. There are nomaterials in the present case which would justify us in holdingthat the order under appeal is unjust, and apart from authority orany curs us curia to the contrary, the District Judge's order, in myopinion, should be upheld. The only authority cited to us was adecision of Clarence and Dias JJ. in the case of Green v. RomanisAppu,1 in which it was held that in such cases as the present theGovernment is not entitled to pay or to receive the costs of thereference. I do not think .that the practice of the English Courts inregard to land acquisition cases orTthis point furnishes a safe rulefor our guidance in dealing . with the acquisition by Governmentof land for public purposes. There is a wide difference betweenthe compulsory acquisition of land by private bodies for their owupurposes and profit, and the compulsory acquisition of land byGovernment for the benefit of the public. In the absence of anyevidence showing that there has been a strong cursus entire insupport of the rule laid down in Green v, Romanis Appu1 I donot think that it ought to be followed. No such evidence hasbeen adduced, and I therefore agree to the order proposed by HisLordship the Chief Justice.
This is an appal from an order as to costs in a case under“ The Land Acquisition Ordinance of 1876.” The District Judgehad undoubtedly jurisdiction to make the order condemning theunsuccessful claimants to pay the Government Agent's costs, andI do not think that the order was manifestly wrong or unjust,in which case alone this Court has interfered. As far as I know,the case of Green v. Romanis Appu,1 in which it was held thatthe Government Agent ought not to receive any costs, as he simplybrings the disputants into Court and need do no more, has not beenfollowed. It seems to me that there is no reason why the Govern-ment Agent should not be paid his costs out. of the fund in Court,
1 (1882) 6 S. C. C. i.
The Govern-ment Agent,Vva, iBanda
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Oct. 14,1910 because in making the reference to Court he has to engage theGrbkebr J. services °f the Crown Proctor and of Crown Counsel in order to
have the necessary papers prepared and presented to Court. The
t»«npractice in the District Court of Colombo, as well as in the DistrictUva, v. Court of Galle, as I have been informed by the Secretary of theBanda m former Qourt, is .to pay the Government Agent’s costs out of thefund in Court, and allow the successful claimant to recover theamount so paid from the unsuccessful- party. 1 agree to the orderproposed by His Lordship the Chief Justice.
Appeal dismissed. •
THE GOVERNMENT AGENT , UVA, v. BANDA et al