016-NLR-NLR-V-05-ELLIS-v.-CAREEM.pdf
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ELLIS v. CAEEEM.
D. C. Colombo, 2,165.
Land Acquisition Ordinance, No. 3 of 1876—V Person interested ”—Reversionarylessee.
The owner of a reversionary lease is not a person interested in theproperty sought to be acquired under . the Land Acquisition Ordinance.
Though the result of the property being taken over by the Govern-ment will result in loss to the reversionary lessee,—in that it rendersthe lessor unable to fulfil his agreement to put the lessee in possessionwhen the time comes for him to take possession, and the lessee cannotsue the lessor or the Crown for damages,—yet no compensation can begiven him when the Ordinanoe awards none.
T
1TTR was a reference by the Government Agent of the WesternProvince under the Land Acquisition Ordinance. No. 3 of
1876, •*to acquire a land situated at Maradana, containing m extent4 acres and 22 perches. The Government Agent tendered a sumof Es. 39,818 as a sufficient compensation, but the owners demand-ed Es. 100,000, and their lessee, who was in possession of the land,claimed the sum of Es. 6,000 as compensation in respect of threeleases in his favour: the first expiring on the 13th June, 1900,nearly two months after the date of the libel of reference, and thesecond a lease to him from the 1st July, 1900; for a term of twoyears, the rent payable being at the rate of Es. 250 per month.
The case was tried with the aid of two Assessors, Messrs, t. C.Loss and David Perera. The former assessed the proper compen-sation to be Es. 50,000 and the latter at Es. 37,500.
The District Judge valued the premises at Es. 50,000, and as tothe lessee’s claim he delivered judgment as follows:—
“ As between the plaintiff and the first and second claimants, theCourt has held that the value of the land acquired by the Crownis Es. 60,000. .The • third claimant, who is the lessee of the land,• claims to be paid Es. 6,000 out of this sum as compensation.
1001.
March 26and 28.
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The lease in his favour (0 2) is dated 21st August, 1899, end is fortwo years commencing from, the 1st July, 1900. The land appearsto have been acquired by the Crown between January and March,
It is contended on behalf of the • lesssors, the first andsecond claimants, that the lessee is not entitled to' compensation, asthe lease had not commenced, and the lessee was not in possessionof the lease premises at the date of the acquisition by the Crown,and I have been referred to Voet, lib. XIX., tit. II., section 16. Ido not see that that passage applies to this case. I am of opinionthat the lessee is – entitled to compensation to the extent of hisinterest in the land acquired.
" With regard to the value of that interest, there is the evidenceof the third claimant, who was called as a witness by the lessors asagainst the Crown in order to prove that the . land was yorthRs. 100,000. I did not believe that evidence as td income, but Ithmlr that the first and second claimants are bound by that evi-dence, as 1 must accept it as against them.
" I find that the third claimant is entitled to Rs. 3,243.36 ascompensation, and he is entitled to draw that amount from theRs. 50,000.
“ The first and. second claimants are therefore entitled toRs.' 46,756.84, and the third claimant to Rs. 3,243.36.
” The first and second claimants to pay the third claimant hiscosts of this contention.”
The owners appealed.
Van Langenberg and H. J. C. Pereira, for appellants.
Rdmandtkan, S.-G., for respondent.‘
Their Lordships, after argument, considered Rs. 50,000 to besufficient compensation to the appellants, but desired to hearfurther argument as regards the right of the lessee to obtaincompensation in regard to the new lease, which had not begun torun at the time of the acquisition by the Crown.
Sampayo, for the lessee, respondent contended that his clienthad an interest in the land acquired by virtue of his lease, andquoted 3 N. L. R. 48; 4, S. C. G. 151; Indian Land AcquisitionAct, No. 10 of 1870 (section 19); 13 Calcutta L. R. 33; and Voet,XIX. 2, 1.
Bonseb, C.J.—If the lessee’s claim be rejected in this suit,can he claim damages as against the Crown or his landlord?
Rdmanathan, S.-G.—He cannot. Lex non cogit ad impossibilia.The cirucumstances of Bailey v. De Urespigny ‘are precisely inpoint (L. R. 4 Q. B. 180).
1001.March 20and 29.
Cur. adv. vult.
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1901.
Mqrch 26
and 28.
28th March, 1901. Lawbie, J.—
By the Land Acquisition Ordinance Government must pay forland required for public purposes the market value at the time ofawarding compensation.
There may exist several interests in the acquired land whichare saleable, having a separate market value. The interest of theproprietor, Whether one or many, the interest of a tenant inpossession, the interest of a usufructuary mortgagee, the interestof a life-renter, all these and others may, in the general case, besold separately; and I am of the opinion that when interests areseparate, and when each of those separately interested cannotagree with the Government Agent as to the market value of theirseparate interests, then each must be referred to the Court to havethe matter determined by the Court and Assessors.
Here there were (it is said) two separate interests in the landucquired: (1). the interests of the owner; (2) the interest of alessee. The Government Agent settled with the lessee and gavehim the market value of the existing lease under which he wasin possession, but the Government Agent refused to pay anythingfor a lease to commence some months later which was -notcurrent at the time of awarding compensation.
I think the Government Agent was right. The reference ofthe Court was on the matter between the Government Agent andthe owner: what was the market value of the land?
The District Judge and Assessors were unanimous in findingthat the nett income or rental derived from the land was Us. 3,000.
The.District Judge and one Assessor held that Bs. 50,000 wasthe market value as being the capital which, if fairly invested,would produce the income of Bs. 3,000-
As the Government Agent did not appeal, it is unnecessary to-consider whether the Court did not give too large a sum.
It treated the land as capable of yielding Bs. 3,000 per annumfor ever, whereas from the unsubstantial buildings on the landthe rental was probably not stable nor permanent. If Bs. 3,000 wasthe rental, seven to ten year’s purchase might have been enough,whereas the Court gave nearly seventeen year’s purchase. But asI said, the Government Agent did not appeal; it seems to me thatthe landowner had no cause of complaint—he got quite enough.
Then the lessee came forward. He had been refused compen-sation by the Government Agent for the market value of a leasewhich was not in existence at the date of awarding compensa-tion.
He acquiesced in that refusal, and he did not press the claimland asked that it be referred to Court.
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What interest had this claimant in the land under the lease on1901-
which he founds? It seems to me he had none. He had made acontract with the owner in which, in consideration of its. 750——
paid, the owner gave him a lease to commence at a future date. Lawbib>That did not create a present interest in the law at the date of the■award, which had to be paid for under the Land Acquisition■Ordinance.
I would affirm the decree in favour of the owner for its. 50,000and dismiss the lessee’s claim, setting aside the deoree in hisfavour with costs..
.Bosses, O.J.—
As regards the question raised by the first appeal as to thesufficiency of the compensation awarded to the landowner, 1agree in dismissing the landowner’s appeal, being of opinion thatthe compensation awarded was amply sufficient, having regardto the description, of the property given by the witnesses, a largeportion of it consisting of mud-walled huts with cadjan roofs.
Then, as regards the other appeal in which the landownersobject to a portion of their compensation being diverted to com-pensate the owner. of a reversionary lease I agree that theappeal should be allowed. It seems to me that the owner of a rever-sionary lease is not a person interested in the property withinthe meaning of the Ordinance.
No doubt the result of the property being taken- over by the‘ Government under the provisions of the Land Acquisition Ordi-nance will result in loss to the reversionary lessee, in that itrenders the landownersunabletofulfiltheir agreementto* put
the lessee in possessionwhenthetimecomes for himto take
possession, but it -seemsto methat that,is a case whichhas not ■
been provided for by theOrdinance,and that we have noright to
make law and award compensation when the Ordinance gives, nocompensation.
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