097-NLR-NLR-V-59-GOPALLAWA-Municipal-Commissioner-of-Colombo-Petitioner-and-LAND-ACQUISITI.pdf
B A S V A V A K K, C.J.—Gopallan-a v. Land Acquisition Board of Review
437
1958 Present :Basnayake, C.J., de Silva, J., and Sinnelamby, J.GOPALLAWA (Municipal Commissioner of Colombo), Petitioner, andLAND ACQUISITION BOARD OF REVIEW and others, Respondents-
S. C. 323—Application for a ll'rii of Prohibition on the Land Acquisition'Board of Review
Land Acquisition Act, -Vo. 9 oj 10-50—Payment of compensation by acquiring officer—Acceptance of it ay claimant—Claimant's right of appeal thereafter—Sections7, O, 10 (/) ('/), 20, 27, 31, 35.
Acceptance, by tho claimant, of pnyment of tho amount of compensationwhich the acquiring officer lias determined under section 16 (1) (cl) of the LandAcquisition Act, Vo. 0 of 1950, does not preclude the Board of Review fromhearing an appeal preferred by the claimant unitor section 20 of tho Act.
./^PPLICATIOX for a Writ of Prohibition on the Land Acquisition Boardof Review. This application was referred to a Bench of three Judges undersection ISA of the Courts Ordinance.
F. X. Graliaen, Q.C., with Walter Jayaua-rdena, for Petitioner.
If. F. Pc rent-, Q.C., with Edmund J. Cooray and E. B. Vannitamby, for1st Respondent.
If. W. Jayeuatdene, Q.C., wit!i Jlli-ss JIaureen Seneviratne, for 2ndto 7th Respondents.
Cur. adv. vult.
May 13, 19oS. Basxayake, C.J.—
The only question for decision on this application is whether acceptanceby the claimant of payment of the amount of compensation which theacquiring officer has determined under section 1G (l) (d) of the LandAcquisition Act, No. 9 of 1950, (hereinafter referred to as the Act),is a bar to the hearing by the Board of Review (hereinafter referred to asthe Board) of the claimant’s appeal under section 20 of the Act.
Shortly the material facts arc as follows : The petitioner the MunicipalCommissioner of Colombo who is also an acquiring officer within the ad-ministrative limits of the Municipal Council of Colombo held an inquiryunder section 9 of the Act into the market value of Lot 1 in P. P. A. 3,29Sin Maradana claimed by the 1st Respondent the Roman Catholic Arch-bishop of Colombo (hereinafter referred to as the 1st Respondent)-Oji 6th October 1951 he made his award under section IG of the Actdetermining that in his opinion a sum of Rs. 2G1,S20 should be allowedas compensation for the acquisition. On. 20th October 1951 the 1stRespondent whose claim under section 7 of the Act was Rs. 431,914/31being dissatisfied with the ofFer appealed under section 20 to the Board.About 1st November 1951 the petitioner dirpeted that a cheque for
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BA SNA Y A ICE, C.J.—Gopallawa v. Band Acquisition Board of Review ■
Rs. 260,976/25 drawn in favour of the 1st Respondent be posted to him.' together with a voucher. On 3rd November 1954 the Municipal Treasurersent the following letter :—
I enclose herewith cheque for Rs. 260,976/25 together with VoucherNo. 9433. Kindly perfect and return the voucher early.
On 9th November 1954 the 1st Respondent returned to the petitionerthe voucher duly receipted together with a letter the text of which is asfollows :—
This is to acknowledge receipt of your memo. No. 2304 dated3.11.54 together with the Voucher No. 9433 and a cheque forRs. 260,976/25.
The voucher with the receipt on the reverse is returned herewith.
It would appear from the petitioner’s affidavit that thereafter, it isnot clear when, he without any intimation to the 1st Respondent, informedthe Board that he had received payment of the amount tendered to himaccording to the award and that he would not therefore be entitled toreceive any further sum on account of compensation. I can find noauthority in the Act for such a communication to the Board by anacquiring officer and in my opinion it was unwarranted.
When the 1st Respondent’s appeal came up for hearing before theBoard on 26th October 1956 the Chief Valuer who represented the peti-tioner took a preliminary objection to the hearing of the appeal on theground that by receiving payment of the amount of compensation deter-mined by the petitioner, the 1st Respondent must be deemed to havewaived or abandoned his appeal to the Board. On 16th November 1956the Board quite rightly over-ruled the objection and directed that theappeal be listed for hearing. On 25tli June 1957 the petitioner filed thepresent application for a Writ of Prohibition on the Board. On 2SthJune 1957 notice was ordered on the respondents. On 12th September1957 the application came up for hearing before my brother U. N. G.Fernando who reserved the matter under section 4S of the Courts Ordi-nance for the decision of more than one Judge of this Court. The matterhas accordingly come before this Court on an order made by me undersection 48A of the Courts Ordinance.
We have no doubt whatsoever that the 1st Respondent did not losehis right of appeal when he accepted the cheque sent to him by the peti-tioner. We cannot escape the feeling that the petitioner paid the amountof compensation he had determined to the 1st Respondent in the beliefthat its acceptance would.deprive him of his right of appeal. We canfind no other explanation for his conduct in sending the cheque after theappeal had been lodged and, thereafter, through his spokesman beforethe Board, raising the objection that the 1st Respondent had forfeitedlus right of appeal by his acceptance of it. The conduct of the petitioneris deplorable.-'■
Learned counsel for the petitioner relied on section 35 of the Act insupport of his contention that the Board was precluded from hearing theappeal after the acceptance of the compensation by the 1st Respondent .
BASXAYAKE, C. J.—Gopailawa. v. Land Acquisition Board of Review
430
Tliafc section provides that where compensation for the acquisition of anylaud or servitude has been or is deemed to have been paid in accordancewith the provisions of the Act no further claim against the Governmentfor compensation for the acquisition shall be allowed.
He argued that the appeal was a claim for further compensation andtho Board had no power to allow it even if they formed the conclusion thatthe 1st Respondent’s claim should be allowed. We are unable to acceptthis submission of learned counsel. Section 27 provides that where anaward is made under section 16 the acquiring officer shall tender theamount of compensation allowed in the award to each person who isentitled to it and where in appeal the amount of compensation is variedhe shall tender the amount determined by the appellate bod}'. If theperson entitled to receive compensation consents 'to receive it whentendered the acquiring officer is required to pay it to him. The sectionis obscure and does not expressly provide for the case in which the amountof the compensation determined by the acquiring officer in his awardunder section 16 is paid to a claimant who consents to accept it whentendered as required by that section and thereafter the amount deter-mined by the acquiring officer is increased in appeal. Clearly the Regis- .lature does not intend that the acquiring officer should tender and payonce more the arnoxmt he has already paid the claimant on liis consentingto accept the amount tendered by him in accordance with his award.Where the acquiring officer has already paid the amount of compensationawarded by him on the claimant consenting to accept it on its beingtendered and where the amount of compensation is increased in appealthe acquixing officer need only tender after the decision in appeal thedifference between the amount already paid by him and the new amountdetermined in appeal.
Section 27 does not authorise the acquiring officer, in the event of anappeal, to refrain from tendering the amount determined by him in hisaward under section 16 and withhold its pajunent till the decision ixi appealwhere the claimant consents to receive it. He must tender the amountafter he has made his award and pay it to the claimant if he consents toreceive it regardless of whether there is an appeal or not. In the instantcase if the 1st Respondent were to succeed in Ixis ajxpeal the acquiringofficer need tender to him and pay, if he consents to receive it, only thedifference between the amount already paid by him and the amountdetermined in appeal as sufficient compensation for the land acquired.
We ob serve that the acquiring officer has deducted from the amount ofcompensation already paid a certain sum in respect of rates payable by. the 1st Respondent. Such a deduction is not prescribed in the Act.Only deductions authorised by the Act may properly, be made from thecompensation payable to a claimant. ..-•-
We were informed by learned counsel for the petitioner that the presentapplication was in tho nature of a test case. . We wish therefore to makeit clear that in our opinion neither section 35 nor any other section of theAct has the effect of taking away the right of appeal of a claimant under,section 20 or precluding the Board from hearing an appeal on the groundthat the claimant has accepted the compensation tendered and paid-by –
440 . SISnTNJETAJ£B Y, J.—Gopailawa v. Land Acquisition Board of Review'
. the acquiring officer, ■whether sucli acceptance be with or without qualifi-.cation. A right of appeal given by statute is not lost by the party onwhom it is conferred except where the statute makes express provision' in. that behalf.' ‘ '•
The application is refused with costs which we fix in respect of the 1st-Respondent at 100 guineas and in respect of the 2nd Respondent-, theBoard, at 75 guineas..
de Silva, J.—I agree.
SlXNETAMBY, J..
I have seen the judgment prepared by My Lord the Chief Justice and Iagree that the application should be refused. I also agree with his orderin regard to costs.
The seemingly innocent letter dated 3rd November 1954 sent by theMunicipal Treasurer enclosing a cheque for Rs. 260,976/25 and requestingthe Archbishop to perfect and return the voucher annexed to it was aninvitation to the Archbishop to accept the money with no conditionsattached. There was no indication that the payment was offered in fullsatisfaction of the Archbishop’s claim for compensation; and, havingregal'd to the fact that an appeal to the Board of Review had alreadybeen filed against the award under section 20 of the Act, any ordinary manwas entitled to assume that the payment was subject to the final deci-sion of the Boat'd. This inference was all the more reasonable as theacquiring officer was liable to pay interest on the compensation awardedunder' section 33 of the Act..
The acquiring officer, however, took the view that once a payment hasbeen made and accepted under section 27 of the Act, whatever the cir-cumstances, the claimant was debarred under section 35 from makingany further claim and that the appeal to the Board must be regardedas at an end. When the Board refused to accept this view the petitionerfiled the present application for a Writ of Prohibition. I agree with MyRord the Chief Justice that the attitude of the acquiring officer in thismatter cannot under any circumstances be regarded as commendable.However, if the lair penalises a claimant in the manner suggested theacquiring officer is entitled to exact the full penalty.
Provisions of the law which have the effect of depriving the subject ofhis normal rights and of imposing penalties on him must be stricllyconstrued. Section 27 requires a tender of the full amount of compensa-tion as determined by the acquiring officer. This, however, was notdone. The acquiring officer deducted certain sums alleged to be due tothe Municipal Council and tendered only the balance. Even on theassumption that the contention of learned Counsel who appeared for theacquiring officer is correct there has been a non-compliance with the provi-sions of section 27. The acquiring officer is therefore not entitled to claimany benefit under it. Tin’s is sufficient to dispose o’f the present case butit seems to me that even if the full amount of the award had been paidthe claimant would still be entitled to jiroceed with his appeal beforethe Board of Review.
Fernando v. Commissioner of Income Tax
441
I agree with the interpretation placed on section 27 by My Lord the•Chief Justice. I am fortified in this view by a consideration of the provi-sions of section 31 of the Act. If the claimant refuses to receive the-amount awarded or is dead or cannot be found section 31 enables theacquiring officer to pay the amount into Court. Such a pajnnent wouldin terms of section 35 be a pajiuent “ in accordance with the provisionsof the Act ” and would, if petitioner’s contention is correct, operate as abar to further proceedings before the Board of Review. jNothing wouldbe more unreasonable than that. All that an acquiring officer has to doto compel acceptance of his award is to offer it to the claimant and if herefuses to accept it pay it into Court. The claimant cannot then appealto or prosecute his appeal before either the Board of Review' or any otherauthority as provided for in the Act. The acquiring officer would thusbe vested with the power of nullifying all the provisions of the Act inregard to the rights of a claimant who is dissatisfied with an award.This was not the intention of the legislature, nor is it the plain meaningof the provisions contained in sections 27 and 35 of the Act. Theacquiring officer’s contention is altogether untenable and this applicationijust accordingly fail. —
Application refused-.
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