Pushpa v Leelawathie and Others
PEARL KALALIADDE GOONATHILAKAvGANANAYAKE AND OTHERSCOURT OF APPEALWEERASURIYA, J.
LAND ACQUISITION BOARD OF REVIEW.
APPEAL BR 7527/KD 378.
MAY 16, 2001.
JUNE 18, 2001.
JULY 19, 2001.
OCTOBER 16, 2001.
Land Aquisition Act, sections 9, 10(5), 17, 22(1) – Land acquired – Awardmade -Agreed to accept same -Appeal to Board of Review – Does an appeallie as the party had agreed to accept the compensation ?
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The appellant by agreeing to accept the compensation before therespondent at the statutory inquiry has relinquished or waived herright of appeal.
The governing principle is that by reaching an agreement at the stageof tf|e inquiry the appellant has satisfied herself with the adequacy ofcompensation allowed.
Per Weerasuriya, J.
“The position taken up by the appellant that the compensation isoffered only at the award stage and the acceptance of compensationcannot be interpreted as acquiescence or waiver of statutory right whichwould nullify the purposes of section 12 and section 22 is unacceptable.The right of appeal in section 22(1) is in respect of awards which areconsidered insufficient.”
APPEAL from the Land Acquisition Board of Review.
Cases referred to:
Nandarama Them v Assistant Government Agent, Matara SC8.3.1973 SCM 5.5.1975
Surambe v Acquiring Officer, Kandy – SC 3/1976 – S.C.M.8.3.1978
Wijedasa Rajapakse, PC with Kapila Liyanagamage fo applicant-appellant.Farzana Jameel SC for respondent-respondent.
February 5th, 2002.
WEERASURIYA, J .The facts pertaining to this appeal are briefly as follows:
Two allotments of land in extent 4 acres 3 roods and 37 01perches belonging to late E.W.A.B.W.M.J.B. Kalaliadde wereacquired by the State in terms of the provisions of the LandAcquisition Act. Thereafter, Acquiring Officer held an inquiry undersection 9 of the Land Acquisition Act and on 21.07.1983, made anaward granting a sum of Rs. 57,550/- and Rs. 12,000/- ascompensation. On 25.09.1983, an appeal was preferred to the
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Board of Review by the appellant. At the hearing of the appeal, apreliminary objection was taken on behalf of the respondent thatthere is no right of appeal to the Board of Review since theappellant had agreed to accept the amount mentioned ascompensation at the conclusion of the inquiry under section 9. TheBoard of Review upheld the preliminary objection resulting in thedismissal of the said appeal. The present appeal is from theaforesaid order of the Board of Review.
At the hearing of this appeal, learned President’s Counsel forthe appellant contended that, in terms of the proviso to section22(1) of the Land Acquisition Act, a claimant is disqualified frommaking an appeal only upon the proof of two elements, namely –
that compensation has been tendered to the claimant;and
that the claimant has not declined to receive the amountso tendered.
It is manifest that the appellant as the duly appointedadministratrix of the estate of the late E.W.A.B.W.M.J.B.Kalaliadda, had agreed to accept Rs. 5,550/- and Rs. 12,000/- ascompensation for lots 4 and 1 respectively shown in preliminaryplan No. 2238, as evident from the proceedings dated 21.07.1983.
In view of the significance of the purported settlement, it isnecessary to consider the provisions of section 9 of the LandAcquisition Act.
Section 9 of the Land Acquisition Act provides for an inquiry tobe held to determine the following matters:
The market value of the land;
Claims for compensation;
Respective interests of persons claiming compensation;and
Any other matter which needs investigation for thepurpose of making an award under section 17.
In terms of section 10(5), the decision of the Acquiring Officerin respect of claims made by any person to any right, title or interestover the land proposed to be acquired is final. However, since at the
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inquiry market value of the land proposed to be acquired is inquiredinto, it is open to a claimant to arrive at a settlement on the questionof compensation. In the circumstances, an agreement reachedbetween a claimant and the Acquiring Officer should not be confusedwith the acceptance of the compensation when tendered after thewritten notice of the award is given under section 17.
The appellant in the instant case by agreeing to accept thecompensation before the respondent at the statutory inquiry has 50relinquished or waived her right of appeal. The governing principleseems to be that by reaching an agreement at the stage of theinquiry, the appellant has satisfied herself with the adequacy ofcompensation allowed. It is significant that the only ground for anappeal is the insufficiency of compensation incorporated in theaward.
In the case of Nandarama Thero v Assistant GovernmentAgenW it was held that where a person consents to accept thecompensation offered to him at an inquiry held under the LandAcquisition Act, he cannot thereafter appeal on the ground that it is 60insufficient. This decision was followed in the case of Suramba vAcquiring Officer Kandy (2).
The position taken up by the appellant that the compensationis offered only at the award stage and the acceptance ofcompensation cannot be interpreted as acquiescence or waiver ofa statutory right which would nullify the purpose of sections 17 and22 is unacceptable. The right of appeal in section 22(1) is in respectof awards which are considered insufficient.
Therefore, the question of tender of compensation to theclaimant in terms of the proviso to section 22 (1) does not arise for 70consideration.
For the above reasons, I dismiss this appeal without costs.DISSANAYAKE, J.I agree.
PEARL KALALIADDE GOONATHILAKA v. GANANAYAKE AND OTHERS