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Present: Dalton and Lyall Grant JJ.
ASSISTANT GOVERNMENT AGENT t>. ABDUL RAHIM AN.81—(Inty.) D. C. Kandy, 315.
Housing and Town Improvement Ordinance, No. 19 ofs. 49—
Land covered by building—Dedication—Land Acquisition Ordi-nance, No. 3 of 1876—Compensation—Sections 21, 22, and 23.
Where land covered with buildings and other land, within thelines of a back lane scheme, w&b acquired under the Land Acquisi-tion Ordinance for the purpose of executing an improvement underthe Housing and Town Improvement Ordinance.'
Held, the owner was entitled to compensation for all the landacquired and that the Crown had no right to claim the benefit ofsection 49 of the Housing and Town Improvement Ordinance.
OR the purpose of the execution of a back lane scheme in thetown of Kandy, under the provisions of the Housing anti
Town Improvement Ordinance, it became necessary to acquire anextent of land 4.57 perches in area. The Assistant GovernmentAgent, acting in pursuance of the mandate issued to him by theGovernor, proceeded to take order for the compulsory acquisitionof the said lot, and offered a sum of Rs. 2,300 as compensation forthe building on the land, the site on which the building stood, andcertain coconut trees. The bare landi itself was excluded from theassessment. A reference to the District Court of Kandy, under theLand Acquisition Ordinance followed. The matter for determine-.tion by the District Judge was-, whether or not the defendant's claimto compensation for the bare land was well-founded. Compensationwas awarded in respect of only half the bare land. Both parties. appealed from this order. In appeal the defendant was declaredentitled to full compensation for the bare land.
M.W. H. de Silva, C.C., for plaintiff, appellant.
Keuneman, for defendant, respondent.
September 8, 1926. Dalton J.—
This case raises questions as to compensation payable on thecompulsory acquisition of land under the Land Acquisition Ordi-nance, 1876. and the Housing and Town Improvement Ordinance,1915.
The District Judge has awarded to defendant the sum of Rs. 3,758,and costs, as compensation for the acquisition of his land. Fromthat award both plaintiff and defendant have appealed. Thereference to the District Court by the Assistant Government Agent(who is termed the plaintiff in these proceedings) sets out that the
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“ The court will, pursuant to the directions and provisions to theeffect contained in the said Ordinance No. 3 of 1876,proceed to inquire and determine the amount of suchcompensation . . . . ”
Filed with the reference are two documents, the first being a letterof October 22, 1924, to the Government Agent, Kandy, from theClerk to the Executive Council, which it is well to set out in full.Tt was in the following terms: —
Copy forwarded to—
The Chairman, Board of ImprovementCommissioners, Kandy, with reference tohis letter No. II of May 12, 1921, andconnected correspondence.
Colonial Secretary’s Office,Colombo, October 22, 1924.
Sir,—With reference to your letter No. 237 dated May 14, 1924, I aminstructed by the Governorto transmitto you the accompanying
preliminary plan No. 7,703 and io state that, with the advice of theExecutive Council, His Excellency the Governor directs you to takeorder for the acquisition under the provisions of Ordinance No. 3 of1876, section 6, of the allotments of land described in the said plan aslots 1 to 26, and situated in Colombo street, Castle Hill street, and Trinco*raalee street,within the Municipallimits of Kandy,in theDistrictof
Kandy, Central Province, and required for a .public purpose, viz., forthe execution of the back lane scheme sanctioned by His Excellencythe Governorin Executive Council(vide C. – S. letterNo. 3of May9,
Governor under, the provisions of section 6 of the Land AcquisitionOrdinance, by mandate dated October 22, 1924, directed the plain-tiff to take order for the acquisition of certain land described as lot-16 within the Municipal limits of Kandy and of the extent of 4.57perches or thereabouts. The boundaries of the land are fully setout, but it is not necessary to repeat them here. Thereupon theplaintiff took action, under section 7 of the Ordinance, reciting theorder for the acquisition of the land and declaring the intention ofthe Government to take possession of the land which was required fora public purpose, ” namely, for the execution of the back lane schemesanctioned by His Excellency the Governor in Executive Council.”The reference further sets out that as the plaintiff was unable toagree with the person interested (called Abdul Rahiman Saibo,the defendant) the amount of compensation to be allowed, hereferred the matter to the District Court under the provisions ofsection 11 of the Ordinance. The amount tendered by the plaintifffor the land and the premises under section 8 of the Ordinancewas set out as Rs. 2,300, but this was not accepted by the defendant.The prayer of the reference is that—
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A further communication will be addressed to you regarding the votefrom which the cost of acquisition should be met.
Tour obedient servant,(Signed) C. H. Collins,
Clerk to the Executive Council.
The second document is an extract dated November 7, 1924, fromthe Ceylon Government Gazette setting out that lot 16 bearing assess-ment No. 404, described as a portion of a garden containing certaintrees, a tiled masonry building and drains, and 4.57 perches inextent, under an order for acquisition, was required for a publicpurpose and was to be taken possession of by the Government.
The only question raised by defendant in his answer to thereference was as to the sufficiency of the compensation to be paid.He claimed the sum of Bs. 7,500.
From the reference and answer, therefore, it would seem thatwhen the matter came into Court the question raised was as to theamount of compensation to be paid for lot 16, 4.57 perches in extent,,compulsorily acquired by the Government under the provisions ofthe Land Acquisition Ordinance, 1876. Under section 12 of thatOrdinance it is open to the Crown, at any time after a reference tothe Court, to enter into possession of the land and to obtain a certi-ficate vesting the land absolutely in the Crown. Whether or notthat was done in this case does not appear, but that does not affectthese proceedings, for the whole of the land has in fact been acquiredby the Crown. At the opening of the reference to the DistrictCourt, Mr. Loos, appearing for the plaintiff, then for the first timestated that the sum of Bs. 2,800 tendered as compensation was inrespect of the building on lot 16 and for the actual land upon whichthe building stood, plus the value of the trees growing upon therest of the land. He purported to rely upon the provisions ofsection 49 of the Housing and Town Improvement Ordinance, 1915.The material part of that section is as follows: — 49
49.(1) Where in any area already in whole or in. part occupied
or likely to be occupied by buildings any local authorityor any Board of Improvement Commissioners is of opinionthat back lanes should be provided for the scavenging ofsuch area, it may make a scheme (herein called a “ backlane scheme ”) ….
For the purpose of any such scheme the authority framing thescheme shall require'
Any land covered with buildings which it is necessary
to acquire ….; and
Any other land covered with buildings situated within
the lines of the proposed back lanes.
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No compensation shall be payable in respect of any other landwithin the lines of the proposed bach lanes, but all suchland shall be deemed to be dedicated by the owners for thepurpose of the proposed back lanes.
Provided that compensation shall be payable in respect of anyincome-producing trees growing on or within the saidlines which it shall be necessary to remove for the purposesof the scheme.
The argument advanced by Counsel, based upon the provisions-of this section, was that compensation was only payable for landacquired covered with buildings, and that for any other land nocompensation was payable, since it is to be deemed dedicated bythe owners for the purposes of the scheme. * This argument, in myopinion, is not sound, having regard to what was actually done in thiscase. It must be noted that the authority has power to acquire onlyland covered with buildings. They can acquire nothing .further underthis section. The method of acquisition is set out in section 80 ofthe Ordinance. Where any land or building is authorized or requiredto be acquired for the purposes of the Ordinance and no agreementis arrived at, the authority seeking to make the acquisition appliesto the Governor, who declares the land or building is needed for apublic purpose, and he “ may order proceedings to. obtain possessionof the same for the Government and to determine the compensationto be paid to the party interested under the Land AcquisitionOrdinance, 1876/*
There is no evidence here to show what exactly was the applicationof the Board of Commissioners, or whether there was any applicationat all, but there is no doubt as to what was actually acquired.Mr. Keuneman has gone further, and argued that there is no evidenceof the existence of any Board of Commissioners or of any back lanescheme, but that was not questioned at the hearing of the. reference.It was taken for granted by both sides at the hearing, as appearsfrom the letter of January 30, 1925, addressed to the GovernmentAgent by defendant’s proctors. The land actually acquired is thewhole of lot 16, including that part which, according to the casefor the plaintiff, is not covered with buildings. Under section 49.however, the authority had no power to make any such acquisition,although under the Land Acquisition Ordinance power is given tothe Government to acquire it for the purposes of that latter Ordi-nance. In the case of section 49, land not covered by buildingsremains the property of the owner although it is to be deemed to bededicated for the purposes of the back lanes. That dedication canonly follow upon an acquisition by the authority under section 49.Counsel for the plaintiff argued that this dedication was equivalentto a conveyance to the public for all purposes, but that. argumentloses sight of the law governing the dedication of a highway or also
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of the terms of the section which provides for nothing but a right ofway on the lines of the proposed scheme, which has toi be maintainedand repaired by the local authority. The dedication of a permissionto use a way is in the character of a gift, but it is a gift of the use ofthe way only (Gautret v. Egerton *). It is the use of the soil that isoffered bv the owner, and in a case which comes within section 49the use to which the land may be put is strictly confined to thescavenging of the area. The owner of the soil prior to the dedication,on such a dedication being made, remains the owner of the soil, andnone of his rights therein are affected apart from the conditions andreseiwations attached to the dedication. (FisKer v. Browne.2) Inthe case before this Court, however, the whole of the land has beenacquired, as I have pointed out, by the Crown, and the former ownerretains no rights whatever therein. There is no room here for anydedication by the owner. The Crown has full power to make thisacquisition under the Land Acquisition Ordinance, but it is obviousthat having done so it cannot now seek to limit the compensationpayable under that Ordinance on the basis that there has been adedication of part of the land, by reference to the provisions ofanother Ordinance which has no application ta .the particularcircumstances. It is not open to the Crown to say that it is truethat we have acquired the whole of the land in question, includingland without any buildings thereon, but we do not propose to) payany compensation for the latter, because under section 49 it is tobe deemed to be dedicated by the owners for the purposes of theproposed back lanes. I am unable to see that here there has beenany acquisition under section 49, for in fact, as I have already pointedout, the authority has no power to acquire any land not covered bybuildings. It is not questioned, however, that the Crown hasacquired the whole cif the land—land actually with buildings on itand other land; hence there is no case of any dedication arising.It is possible that action might have been taken under section 49,but for some reason, no doubt sufficient to the authorities, theypreferred to acquire the whole of the lot under the provisions of theLand Acquisition Ordinance. This is confirmed by the letter ofJanuary 30, 1925, to which I have already referred, which mentionsa threat to take advantage of section 49. The letter of the Govern-ment Agent of January 29, to which it was a reply, has not beenproduced, but I think it a reasonable inference, having regard to theaction already “taken in the acquisition, that the threat was to seekto limit the compensation payable, if the offer then made was notaccepted. That strengthens the conclusion to which one is irre-sistibly drawn by the other circumstances, that .there never was anyacquisition under the powers given by section 49. Compensationis therefore payable on the footing of the Land AcquisitionOrdinance as set out in sections 21, 22, and 38. The market value is
1 L.R. 2 C. P. 371.
* B. S. 770.
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deposed to by the Government Assessor at Bs. 5,216. This is thesum asked for by defendant in his petition of appeal, and the sumto which Mr. Keuneman says the defendant is entitled; it is notnecessary, therefore, to consider whether or not he is entitled as ofright to a percentage on the market value under section 38.
It is impossible at this stage to allow the plaintiff to amend hisclaim or to commence these proceedings afresh under sectiop 49, asCounsel for the plaintiff has asked, should the Court be against himon the appeal. How that could be done, having regard to what hasalready taken place, I am unable to see, as the whole of the land hasbeen acquired by the Crown in due fc*rm of law.
On this conclusion on defendant's appeal, it is not necessary toconsider .the question raised in plaintiff’s appeal, as to the meaningof the words “ land covered with buildings *’ as used in section 49.-yj plaintiff’s case presupposes an acquisition under section 49 ofOrdinance Nc*. 19 of 1915. I am however unable to see anything inthe context there to prevent the application of the definition of4* building ” as set out in section 2 of the Ordinance. The questionwo ]& then resolve itself into an inquiry as to what is included in theword “ appurtenances ” as used in that definition. The question asto the amount of compensation payable is, however, under the cir-cumstances determined on defendant’s appeal. No useful purposewould, therefore, be served by going into this further point. On thelast point raised by Crown Counsel, as to the lack of proof thatdefendant was the owner of the land acquired and so entitled to anysum, no question on that point was referred to the lower Court, andso it does not arise on this appeal. I might, however, point out thatplaintiff has throughout treated him as the owner and actuallytendered to him the sum of Rs. 2,300.
The defendant is entitled to succeed in this appeal, the appeal ofthe plaintiff being dismissed; the finding of the Court below will beset aside save as regards costs, and the amount of compensationpayable by plaintiff to the defendant is determined at Bs. 5,216.The defendant is also entitled to his costs of this appeal.
Lyali, Grant A.—
This is an appeal by the Assistant Government Agent of theCentral Province from an order made by the District Judge ofKandv in connection with proceedings for .the acquisition of landunder the Acquisition of Lands Ordinance, No. 3 cjf 1876. There isa cross appeal by the defendant.
The facts stated in the petition of appeal are that the Governorin exercise of the powers vested in him by section 6 of the saidOrdinance directed the plaintiff-appellant to take order for theacquisition of the land described in the lecorcl. in extent 4.57
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perches, that claim was made to this land by the defendant-1928.
respondent, and that the appellant after summary inquiry determined t^Ttt.the amount at which compensation should be allowed—(1) for the Gkam* J.building on the lot, (2) for the site on which the building stood, (3)for the coconut trees standing on the bare land. The value of these Governmenthe estimates at Bs. 2,300, and for the remaining bare land he allowedno compensation, holding that under section 49 of Ordinance No. 19 Rahimanof 1915 no compensation need be -paid for land not coveredby buildings. The compensation tendered was rejected, andthe matter referred to the District Court, Kandy, for determina-tion.
After hearing the case, the District Judge ordered the plaintiff-appellant to pay the defendant-respondent a sum of Bs. 3,758, madeup as follows: (1) a sum of Bs. 2,300 awarded by the plaint:ff,and (2) a sum of Bs. 1,458, the value of half the bare land, on thefooting that at least half of the total extent of the bare land mustbe looked upon as land covered with buildings. The rest was tobe regarded as having no buildings, and for it no compensationneed be paid.
From this order the plaintiff appeals. The defendant has lodgeda counter appeal, in which he claims that compensation should bepaid for all the lands acquired.
Two points have been argued before us on appeal: —
Whether in the circumstances of the case the whole of this
area is land covered with buildings in tjje sense of section49 of Ordinance No. 19 of 1915; and
Whether the amount to be paid as compensation is governed
entirely by the provisions of Ordinance No. 8 of 1876, andaccordingly whether compensation is due in respect of thewhole area so acquired.
Ordinance No. 19 of 1915 is an Ordinance for .the housing of thepeople and improvement of towns. Under that Ordinance Boards-of Improvement Commissioners may be appointed for the purposeof initiating and executing improvement schemes under the Ordi-nance. Among other schemes which they are authorized to initiateare what are known as back lane, schemes. In the present instancethe Board of Improvement Commissioners of Kandy initiated aback lane scheme and proceeded to acquire the necessary lands tobring the scheme into operation. For the purposes of the schemethe Commissioners are directed to acquire (a) any land covered withbuildings which it is necessary to acquire to provide access to anyproposed back lane from any existing street or back lane, and (b)any other land covered with buildings or situated within the lines ofthe proposed back lane.
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The section proceeds to enact that—
” No compensation is payable in respec.t of any other land inrespect of the proposed back lane, but such land is deemedto be dedicated by the owners for the purpose of theproposed back lanes.”
And there is a proviso that—
“ Compensation shall be payable in respect of income producingtrees within the back lanes, which it shall be necessary toremove for the purposes of the said scheme.”
In pursuance of this section the Board of Improvement Com-missioners laid out a scheme and acquired certain lands. A part ofthe scheme included the area in dispute. That area forms part of agarden at the back of a shop and dwelling house in Trincomaleestreet, Kandy.
Upon the area there stands an outhouse; the Commissionersoffered compensation on the footing that the area occupied by thisouthouse was the only portion of the land that was covered bybuildings.
The District Judge has allowed compensation on the footing thatabout half the area is land covered with buildings. It wasargued before us that the whole area should be regai'ded as landcovered with buildings in the sense of the Ordinance. “ Coveredwith buildings ” is a phrase susceptible of different meanings, and asto its use in the Ordinance of 1915 I think assistance is gained byreference to the definition of the word ” building ” in that Ordinance.
The definition of the word 44 building ” given in section 2 says:“ Building ” includes outhouses or other appurtenances of a build-ing. I think ” covered with buildings” means “covered with* buildings and appurtenances,” and the question really is whether aback yard of small dimensions is included in the term appurten-ances.”
Reference was made to the schedule of the Ordinance, wherecertain rules are laid down to govern buildings. Rule 2 provides“ that the total area covered by all buildings (the word “ building ”is here used in a different sense from its sense in the Ordinance)or any site used for any domestic building, factory, or workshop,shall not exceed two-thirds of the total area of the site, and the ureanot so covered shall belong exclusively to the building and shall beretained as part and parcel thereof.”
We have not been informed of the exact proportion which thearea of this yard or garden bears to the area of the premises to whichit is appurtenant, but to judge from the plan submitted it appeal'sto be of about an equal size.
It appears to me that so far as some area of one-third of the totalsite is concerned that must clearly be considered to be included inthe term “ building " as appurtenant to the actual building.
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T am inclined to think, looking through the provisions of theOrdinance as a whole, that any extension of this area cannot beconsidered to be a building. The one-third area is clearly appurten-ant to the actual structure, because that structure cannot beextended on the site without a breach of the rules.
If we include a larger area under the designation of “ appurten-ances,” it is difficult, if not impossible, to fix any limits. Unless,therefore, the plaintiffs can show that the total area of the garden,including the site of the outhouse, is not more than one-third of thewhole premises, they cannot, I think, succeed on this ground.
It was argued, however, that as Government had chosen to acquirecompulsorily the entire area hatched on the plan, it must pay forthat entire area, and not merely for the portion built on.
Proceedings were under the Land Acquisition Ordinance, and thatOrdinance does not allow o.f any deductions from the market valueof the whole sum. It was pointed out that Government might havecontented itself with acquiring the land covered by the outhouse,and that the owner would have been compelled to dedicate the restof the land without compensation for the purposes of a back lane.In that case, no doubt, smaller compensation would have been paid.
In reply to this it was argued by Counsel for the Crown that thefact of Government acquiring the whole area instead of a part onlymade no difference to the amount of compensation payable.
The argument which struck me as ingenious was that as soon asthe scheme was approved, the land not built upon became dedicatedto the public, and was of no further value to the owner. Accord-ingly in assessing compensation, the Court could only take intoconsideration the land which was built upon.
am unable to agree with this argument. If the Crown acquiresland not built upon, all right and title to this back lane passes forever from the owner, but if the land is merely dedicated to thepublic for the purposes of a back lane, the owner still has all therights in the land which are not inconsistent with this dedication.
In other words, the lands remain his, but burdened with a servi-tude. That servitude only arises when the land is dedicated, andI don’t think dedication takes place until the scheme is carried out.
If Government chooses to acquire the whole land, it appears to methat it must pay the market value of the whole area according tothe principles laid down in the Land Acquisition Ordinance.
There is no dispute as to the value of the land, as the claimantis prepared to accept Captain Eastman’s valuation.
I think the appeal by the Crown should be dismissed, and thecounter appeal allowed and compensation awarded in accordancewith the valuation on the basis that the whole land acquired mustbe paid for.
Plaintiff’s appeal dismissed.Defendant*8 appeal allowed.
ASSISTANT GOVERNMENT AGENT v. ABDUL RAHIMAN