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Present: Fisher C.J. and Garvin J.
GOVERNMENT AGENT, NORTHERN PROVINCE v.KANAGA8UNDERAM.
126—D. C. (Inty.) Jaffna, 23,456.
Land acq uisition—A eg uisition to part of building—Objection taken atinquiry—Ordinance No. S of 1876, s. 8.
Where, in proceedings under the Land Acquisition Ordinance,the Government Agent acquired a portion of a building belong-ing to the defendant, notwithstanding an objection based uponsection li of the Ordinance, and thereupon instituted an action fordetermination of the compensation due to the defendant,—
Held, that the defendant was entitled to an injunction restrain-ing the Government Agent from taking possession of the buildingpending the determination of the action.
HE plaintiff, who was the Government- Agent of the Northern
Province, sought to acquire a portion of a building belongingto the defendant. The defendant requested the plaintiff to acquirethe whole building, which the plaintiff refused to do. Thereuponthe plaintiff instituted the present action for assessment of compen-sation due to the defendant for the portion of the building soughtto be acquired. The defendant pleaded that the plaintiff was notentitled to acquire a portion of the building and applied for aninjunction restraining the plaintiff from taking possession ordemolishing the portion of the building which was the subject ofacquisition. The learned District. Judge held that the defendanthad consented to the acquisition r f a portion of the building anddismissed the application for an injunction.
F. Perera (with Iiajapakse), for defendant, appellant.
J.E. M. Obeycsekere, G.G., for plaintiff, respondent.
October 18, 1928. Fisher C.J.—
In my opinion the document relied upon by the learned Judgehas no application in the circumstances of this case. That was. adocument which was given before the proceedings for the compul-sory acquisition were instituted. Moreover, on the construction otthe document itself it is merely an expression that the defendantwas willing to part with the shop and verandah if he got theprice he wanted. It cannot be suggested that either of the partieshad in their mind that he was willing to submit the question ofhow much he was to receive to arbitration. Enactments for thecompulsory acquisition of land have to be strictly construed andapplied. See Maxwell on the Interpretation of Statutes, 4th ed-,page 427.) Section 44 provides that a part of a house shall not be
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1928. compulsorily acquired if the owner dearies that the whole should benw^nTn .t taken. The stage at which the defendant took his objection seems—— to be the proper stage, that is at the inquiry before the GovernmentAgent, Therefore, in my opinion, the possession of the propertyNorthern against the will of the owner is wrongful, and he is entitled to haveV. Katiagfi aD injunction to restrain the plaintiff or his officers from takingeunderem possession pending the determination of the action.
The order of the learned Judge will be set aside, and the plaintiffwill pay the costs of hearing in the Court below and of this appeal.
I should add that the objection based on section 87 of the CourtsOrdinance, 1889, taken by Mr. Obeyesekere as to the power of theCourt to grant an injunction in this case is met by the fact thata claim, in reconvention was made and for that purpose thedefendant occupies the position of a plaintiff.
Garvin J.—I agree.