073-NLR-NLR-V-16-ASSISTANT-GOVERNMENT-AGENT-,-KEGALLE-v.-BANDA-et-al.pdf
( 274 )
1013.
Present: Pereira J. and Ennis J.
ASSISTANT GOVERNMENT AGENT, KEGALLA, v.
BANDA et al.
216—D. C. Regatta, 3fi05.
Res judicata—Omission to make a claim in reconvention in an action• in the District Court — Civil Procedure Code9 s. 207 — Landacquisition—Right of Government Agent to claim compensation forimprovements effected by the Crown—Must Attorney-General claimthe compensation on behalf of the Crown ?
A person who omits to make a claim in reconvention in an actionin the District Court does not thereby lose his right to press thatclaim in a subsequent action*
– A Government Agent has the power to assert in land acquisitionproceedings the Crown’s right to compensation in respect ofimprovements made by the Crown as bona fide possessor of landsacquired by the Crown.
By the loss of the jus retentionis a person who had effectedimprovements on landed property does not lose his right tocompensation.
rj^HE facts are set out in the indictment.
Bawa, K.C., Acting S.-G., for plaintiff, appellant.
A,. St. V. Jayewardenet for defendants, respondents.
,Cur. adv. vult.
March 4, 1913. Pereira J.—. .
This case is the result of a reference under section 11 of the LandAcquisition Ordinance, 1876. The portion of land acquired by theCrown is described as lot No. C 208 in preliminary plan No. 1,847.It is a part of the land known as Kalugalamukalana, which maygenerally be regarded as high forest. This forest was at one time
( 275 )
supposed to be Crown land, and in the belief that it was such Govern-ment erected a set of cooly lines on the portion acquired. .Sincethen the whole land was dealt with under the Waste Lands Ordi-nance, and in the proceedings on the reference to Court under thatOrdinance it was declared to be the property of the defendants.The defendants say that they have thus become entitled to thebuildings erected by Government, and claim compensation inrespect thereof. The District Judge has awarded the defendantsEs. 1,200 as compensation in respect of the buildings, and theSolicitor-General has limited his appeal to only this part of theaward. This amount, I take it, is the market value of the improve-ments, and I may say that the party who made the improvementswould be entitled, if at all, to this sum as compensation, because inlaw he is entitled to the market value of the improvements or theiractual cost, whichever is less, and th.e evidence shows that themarket value is in this case the less of the two sums. It may. beinferred from the evidence of Mr. Jonklaas, District Engineer, thatthe rooms cost much more than Rs. 1,200. There were only twoissues framed, namely, “ What is the value of the lot acquired, anddoes the decree in D. C. 1,308 entitle the claimants to compensationfor the buildings? ” An admission was recorded in these terms.41 It is admitted buildings on the land acquired were erected by theCrown.’* Considering what the District Judge says in his judgment,I take it that the second issue means whether, in view of the decreein case No. 1,308 of the District Court of Kegalla, the Crown can,in this case, maintain a claim to compensation. On this issue theDistrict Judge says that the decree in 1,308 is res judicata as againstthe Crown. I do not see how that can be so. Assuming that theproceeding under the Waste Lands Ordinance was a regular actionunder the Civil Procedure Code, was the Crown bound to make itsclaim to compensation in it? The District Judge cites the expla-nation to section 207 of the Civil Procedure Code, but he omits theimportant words “ upon the cause of action for which the actionis brought.” Anyway, he proceeds to ask himself, <f What was thecause of action in the waste lands case? ” and answers thequestion as follows: ” It was the denial by the claimants of anyright in the Crown to the land in question.” Now, the Crown hadno right whatever to the land in question, except a jus retentionisuntil it was paid compensation; and this right the Crown mighthave claimed, hut it is not, as it cannot of course be in the circum-stances, now insisted on. By the loss of the jus retentionis a personwho has effected improvements on landed property does not losehis right to compensation. The actual claim that the Crown hadwas a money claim against the owners of the land,whoever they were,namely, a claim to compensation for the improvements, and thisthe Crown was not bound to make in reconvention in thewaste lands proceedings. I mean its omission to make this claim
1913.
Pebeiba J.
AssistantGovernmentAgent,Kegalla,Banda
1918*
Phbhtba J,
AssistantGovernment' Agent,Kegalla, v.Banda
( 276 )
in those proceedings did not render the decree res judicata as againstthe Crown in respect of its claim for compensation. This Court hasalready held that a person who omits to make a claim in reconventionin an action in the District Court does not thereby lose his right topress that claim in other proceedings. (See Appuhamy v. Banda.1)
* In the course of the argument I was in doubt that the GovernmentAgent had the power to assert in the present proceedings the Crown’sright to compensation in respect of the buildings in question. Ithought that such a right could only be asserted by the Attorney-General; but having considered carefully the full scope of theOrdinance, I think that the Government Agent has full powerthereunder to represent the Crown for all purposes directly connectedwith the acquisition of any land for public purposes, and the paymentover, or the distribution of, the compensation awarded therefor.Now, I think that the Crown’s claim to compensation in this case,being a claim against any person whomsoever who may be theowner of the property acquired, is a matter directly connected withthe distribution of the compensation awarded, and that, therefore,the Government Agent can assert that claim in these proceedings.The right order will be that out of the whole sum awarded as com-pensation for the property acquired, the Crown is entitled to receiveBs. 1,200 as compensation for improvements made on that property,and that therefore the amount of compensation that the Crown isliable to pay for the property will be the sum awarded by theDistrict Judge minus the said sum of Bs. 1,200.
Considrering the irregularity; in the procedure adopted by theGovernment Agent in asserting the claim of the Crown to compen-sation for the buildings, that is to say, by valuing the whole of theproperty acquired, which, including the buildings, obviouslybelonged to the claimants, at Bs. 31, I think that the proper orderas to costs will be that each party do bear his own costs in bothCourts.
Ennis J.—I agree.
Varied.
♦ i
i (1013) 16 N. L. R. 203.