032-NLR-NLR-V-16-FRASER-v.-DIAS.pdf
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Present: Lascelles C.J. and Wood Benton J.
EBASEB v. DIAS.
206—D. C. Colombo, 2,364.
Land acquisition—Reference by the Government Agent—Burden of proofthat the amount tendered is sufficient compensation is on theGovernment Agent.'
When the Government Agent makes a reference to the DistrictCourt under the Land Acquisition Ordinance, 1876, on the ownerof the land refusing to accept the amount tendered by him assufficient compensation for the land, the burden of provingthat the amount tendered is a sufficient compensation is onthe Government Agent.
T
HE facts are set out in the following judgment of the learnedAdditional District Judge (L. M. Maartensz, Esq.):—
This is a reference under section 11 of the Land Acquisition Ordi-nance, 1876, made by the Government Agent of the Western Province,as the amount of compensation (Bs. 221,239*50) tendered by tbeGovernment Agent for the land acquired was not accepted by the firstdefendant.
The first defendant in bis statement of claim alleges that the propervalue of the land acquired is Bs. 487,848*75, and prays that that summay be declared to be the proper amount of compensation for the landand premises acquired.
The premises acquired consist of land and buildings. At the trial itwas agreed between the Government Agent and the first defendant thatthe value of the buildings should be assessed at Bs. 43,500. In view ofthis agreement the amount of compensation which the GovernmentAgent is willing to give for the land is Bs. 177,739*50, and the amountof compensation demanded by the first defendant is Bs. 444,348 * 75.
The land acquired is 14 acres 3 roods 9 * 86 perches in extent, and theamount of compensation as determined by the Government Agent isapproximately Bs. 12,000 an acre, and the amount of compensationdemanded Bs. 30,000 an acre.
The Solicitor-General for the Government Agent, desired the Courtto frame the following issue:—
“ Is the land, apart from the buildings, worth more than Bs. 12,000an acre, and if so, how much ? ”
Mr. Driebeig objected to the issue, and urged that the only question.before the Court was as to the amount of compensation due to thedefendant, and that tbe only issue, if an issue was necessary, was thefollowing issue, namely:—|
“ What amount of compensation is due to first defendant for theland acquired
1M8.
1918.
Eraser9. Dias
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The Solicitor-General would not accept this issue. The question fordecision is whether an issue is necessary* and if so, whether the issueshould be in theform suggested by the Solicitor-General or in the form,suggested by Mr. Drieberg. The issue suggested by the Solicitor-General throws the burden of proving that the land is worth more thanRs. 12,000 on the first defendant, and the issue was suggested with theobject of raising the question as to the party on whom the burden ofproof lay.
The case of Fink v. The Secretory of State for India1 was cited by theSolicitor-General, where it was held that the owua probandi variesaccording to the probative value of the Collector’s inquiry, and if hemakes no inquiry or gives no reason for his valuation, the onus on. theclaimant is nominal, and the special judge must decide on the weightof evidence. This ruling is, in my opinion, not applicable to the CeylonLand Acquisition Ordinance, 1876, as the Indian Act differs consider-ably from the local Ordinance.
Under the Tndiau Act the Collector makes his award whether thecompensation is accepted or not, and he refers the matter to Court onlyon the application of some person who objects to the' award. If theobjection be to the amount, the Collector in making his reference hasto state in writing, for the information of the Court, the grounds on whichthe amount of compensation was determined (section 19 of .the LandAcquisition Act, 1894), and the Court proceeds “to determine theobjection ” (section 20 ibid.).
Under Ihe local Ordinance the Government Agent makes an awardonly where the amount of compensation is determined. And inreferring a dispute as to compensation to Court, the Government Agent■ does not state the grounds on which the amount of compensation wasdetermined, nor does the Court proceed to determine the objection tothe compensation.
The Solicitor-General urged that the Court had to determine, not theabstract question of compensation, but whether the defendant wasentitled to more compensation than was tendered, and referred tosection 23 of the Ordinance as being in support of his position.
Section 23 provides that when the person interested has made a claimto compensation pursuant to notice, the amount awarded to him shallnot exceed the amount claimed or be less than the amount tendered.
The Solicitor-General contended that as the Court could not awardless compensation than was tendered, it was only necessary to determinewhether the compensation exceeded the amount tendered by theGovernment Agent.
In Beverley’s Commentary on the Indian Land Acquisition Acts,1 of 1894. there is the following note to section 22 :—“ The claimanttakes the position of plaintiffs, and the burden of proving that thecompensation should be more than he has (was ?) awarded rests on theclaimant.’’ But in India the practice appears to be different from thelocal practice. In India, apparently, the Collector does not in makinghis reference describe himself as plaintiff. The claimant is so described,and the Collector is described as defendant. This appears to have beenthe practice even under the old Indian Act X. of 1870, which is almostidentical with the local Ordinance, for in the reported cases the Collector
1 (1907) 34 L L. R. CaL 599.
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Is described as the defendant. The oases are (1) Khaagiralu v. TheCollector of Poona,1 (2) Bunal v. Collector of Calcutta,* (3) AH Khan v. TheCollector of Furakhabad.*
In Ceylon, however, the Government Agent has invariably adoptedthe position of plaintiff and described himself as such. The form ofreference was adopted by Government Circular No. 169 of October 16,1899 (Circulars of 1899, 90).
It has never been the practice to frame issues, and it has always beenthe practice for the Government Agent to lead evidence in the firstinstance regarding the amount of compensation to be allowed.
Tn this case the Government has, in accordance with the practice,adopted the position of .plaintiff, and,I am not prepared to frame anissue which will involve a departure from the practice of the GovernmentAganf. leading evidence in the first instance. Although no issues wereframed in land acquisition cases, the Court always had in view thegeneral issue, namely, What amount of compensation should beallowed for the land acquired ?
In accordance with the practice, I hold that the issue in this caseshould be the issue proposed by first defendant’s counsel. The oost ofNovember 2 will be costs in the cause.
The plaintiff appealed.
Bawa, K.C., Acting S.-G. (with him Akbar, C.C.)t for plaintiff,appellant.
A. Drieberg (with him Hayley), for first defendant, respondent.
Cur. adv. vult.
February 28, 1913. Lascelles C.J.—
This is an interlocutory appeal by the Government Agent of theWestern Province in a reference under the Land Acquisition Ordi-nance, 1876. The property which is the subject of the referenceconsists of land and buildings at Captain’s Garden in Colombo, andis part of the estate of the late Sir Harry Dias. The first defendant,as the administrator of the estate, claimed Bs. 487,848.75 for theland and premises acquired by the Crown, his claim being at therate of Bs. 30,000 an acre for the land apart from buildings. TheGovernment Agent tendered Bs. 221,239.50 as compensation for theproperty, the tender being based on a. rate of Bs. 12,000 per acre.By agreement between the parties the value of the buildings was putat Bs. 43,500. The claim of the first defendant was thus reduced toBs. 444,348.75,and the Government Agent’s tender to Bs. 177,739.50.
When the reference came before the Court, the Acting Solicitor-General, for the Government Agent, proposed the following issue:—“ Is the land, apart from the buildings, worth more thanBs. 12,000 an acre, and if so, how much?”
And Mr. Drieberg, for the first defendant, the following issue:—“ What amount of compensation is due to first defendant for
the land acquired?”
i {1884) 8 I. L. R. Bom. 568.
*7 I. L. R. All 817.
191$.
Fraserv. Dias
* 21. L. R. Cal. 102
1018.
XiASCELLES
c.j.
Fraserv. Dias
( 112 )
After considerable argument the learned District Judge acceptedMr. Drieberg's issue, and from this decision the present appeal isbrought.
The real point in dispute is with regard to the onus of proof, theappellant’s issue being framed with the object of casting upon thedefendant-respondent the burden of proving the value of theproperty.
We were referred to certain decisions under the correspondingIndian Act, which, as the District Judge has shown, are not in.pointowing to the essential difference between that Act and the CeylonOrdinance.
The following considerations appear to me to be material. TheGovernment Agent does not disclose the basis of his tender eitherat the time when he makes it or subsequently on reference to theCourt. It strikes me as scarcely reasonable that the GovernmentAgent, by means of an ingeniously framed issue, should be allowedto escape the obligation of proving that the amount tendered byhim is adequate compensation for the property acquired.
Further, under the libel of reference the Government Agent comesbefore the Court as a plaintiff, and avers that the compensationoffered by him “ was sufficient and proper compensation to beallowed for the acquisition of the said land and premises, but wasnot accepted by the first defendant.”
The burden of proving this averment is surely on the plaintiff whomakes it. Again, the prayer in the reference is not that the Courtshould determine whether anything beyond the sum tenderedshould, be paid to the defendant. The prayer is that the Courtshould, determine generally the amount of compensation to beawarded without reference to the amount tendered. The properissue on such a reference, if indeed any issue is necessary, is clearlyin the general form suggested by Mr. .Drieberg rather than in thatsuggested by the Acting Solicitor-General.
In my opinion every consideration .which can be drawn fromthe forin of the reference tells in favour of the defendant-respondent’scontention.
The practice of our Courts for many years has been for the Govern-ment Agent, as the plaintiff On the record, to begin by leadingevidence in support of the amount tendered by him, and I see noreason why this practice should be changed, unless it is shown to beerroneous or unfair to either of the parties.
• The onus of. proof is not, I think, affected by the fact that theOrdinance provides that the compensation shall in no case be lessthan the sum tendered by the Government Agent. The truequestion is, What is the fair value of the property? In order todecide this, it is necessary to ’test the valuation of the GovernmentAgent no less than that of the defendant. 1 can see no objection tothe prevailing practice under which the representative of the Crown.
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in these proceeding is required, in the first instance, to substantiatethe valuation which he himself puts forward as sufficient and propercompensation to be allowed for the property acquired.
In my opinion the appeal fails, and .must be dismissed with costs.
Wood Benton J.—
This case raises for the first time an interesting point under theLand Acquisition Ordinance, 1876 (No. 8 of 1876). Land belongingto the estate of the late Sir Hairy Dias, whose executor is the firstdefendant-respondent, has been acquired by Government for publicpurposes. The Government Agent of the Western Province, theappellant, tendered to the respondent the sum of Bs. 221,289.50 ascompensation for the land. The respondent refused to accept thisamount, and claimed a sum of Bs. 487,848.75. The GovernmentAgent thereupon referred the matter to the District Court under theprovisions of the Ordinance of 1876. The parties are agreed thatthe buildings on the land have been properly valued at Bs. 43,500.The tender of the Government Agent is based on an allowance ofBs. 12,000 for every acre of the land in question. The respondentclaims Bs. 30,000 an acre. When the case came on for hearingbefore the District Court,- the Acting. Solicitor-General asked theDistrict Judge to frame the following issue
“ Is the land,' apart from the buildings, worth more thanBs. 12,000 an acre, and if so, how much?"
The respondent's counsel objected that no issue was necessary orproper in proceedings of this kind, and contended that if an issuewas to be framed it should be in the following form: —
" What amount of compensation is due to the first defendantfor the land acquired ?"
The learned District Judge over-ruled the Solicitor-General '&contention, and accepted the issue suggested by the respondent'scounsel. The Government Agent appeals.
In my opinion, although in view of the provisions of section 32 ofOrdinance No. 3 of 1876 I see no reason why an issue should not beframed, if it is thought expedient, in land acquisition cases, thedecision of the District Judge as to the form of the issue is perfectlyright. The Government Agent, where the amount of compensationtendered by him is not accepted by a claimant, comes before theCourt as a plaintiff. The libel of reference has been held by theSupreme Court to be practically a plaint (In re Perera x). It is inform a prayer by the Government Agent that the Court would.“ proceed to inquire and determine the amount of compensation to.be awarded," and the District Judge states—a statement supported,by an examination of the procedure adopted in the cases decidedunder the Ordinance—that it has always been the practice for the?13-* (1879) 2 8. C. C. 117.
IMS.
IiASOBLLPS
cu.
Fraserv. Dias*
1918;
Wood .Bhnton J.
Fraser*. Dias
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Government Agent to accept the rdle of plaintiff and to lead evidencein the first instance regarding the amount of compensation to beallowed. A cursus curia of this character is obviously entitled tothe greatest weight. In my opinion it is supported by the form ofthe reference, and there is nothing in Ordinance No. 8 of 1876 whichreally militates against it. The learned District Judge has 'shownthat no analogy exists in regard to the matter that concerns us herebetween the Ceylon Ordinance and the Indian Land Acquisition Act,1894. I would adopt his reasoning on that question as part of myown judgment. Section 15 of Ordinance No. 3 of 1876 itself issufficient to show that the award of the Government Agent is oneof a very different character from that which the Indian Actcontemplates.
I hold that it is the duty of the Government Agent in cases of thiskind to lead affirmative evidence in support of the amount ofcompensation tendered by him to a claimant. It is obvious, ofcourse that, while the initial burden of proof rests on the Govern-ment Agent, it may readily be transferred to the claimant in thecourse of the proceedings.
On the grounds that I have stated I would dismiss the appealwith costs.
Appeal dismissed.