Gunatileke v. The Municipal Council, Colombo.
1936Present: Akbar and Koch JJ.
GUNATILEKE v. THE MUNICIPAL COUNCIL,
63.—D. C. Colombo, 330.
Compensation for improvements—Building upon neighbour’s land—No rightto compensation—Right to remove the building—Roman-Dutch law.
A person who builds partly on his own land and partly on hisneighbour’s land has no right to claim compensation for the value ofthe building or a portion of it from the owner of the land encroachedupon.
His right is restricted to a removal of the encroaching portion of thebuilding or a right to buy the land on which it stands.
HIS was an action in which the plaintiff claimed compensation forthe value of a building a portion of which had encroached on a
road reservation vested in the defendant Council. The defendantdenied that the plaintiff was in law entitle to compensation for improve-ments even if he was a bona fide possessor. The learned District Judgedismissed the plaintiff’s action.
68 Law Times Reports, p. 29.
AKBAR J.—Gunatilefce t>. The Municipal Council, Colombo.
H. V. Perera (with him Molligodde and E. B. Wikramanayake), forplaintiff, appellant.—Lessor can claim for improvements made by lessee(Appuhamy v. Doloswcda Tea & Rubber Company'). This principle can beapplied to a licensee. Compensation can be claimed against the Crownjust as against a private party (Velapodi v. Kanda Perumal3). Themaking of an encroachment on a road reservation bona fide is not acriminal offence. The only criminal offences are those that are wilful(section 91). The question of compensation depends on bona fides. In25 N. L. R. 267 the lessee was a lessee under a long lease. The improve-ments were obviously made by the lessee for his own benefit. It washeld that the lessor could take the benefit. A fortiori in the case of alease for a short time, and more so in the case of a licensee.
Keuneman, for defendant, respondent.—The theory of compensationis based on the principle that a person shall not enrich himself at theexpense of another. Also a person cannot get compensation exceptto the extent that a particular land has been enhanced in value. Natureof improvement must be looked at from the nature of the property.Building on a road reservation is of no use. Usefulness cannot be consideredfrom the point of view of the improver (I N. L. R. 228). Encroachmentlike this is not an improvement. Plaintiff had no right to encroachon the road. Why should the Council pay him for something he hadno right to do and which is of no use to the Council (2 Maarsdorp 48).Case in 25 N. L. R. does not apply to the facts of this case. Besidesboth Judges did not agree in that case on this point.
V. Perera, in reply.—Useful improvement is not to be looked atfrom the point of view of owner. Owner cannot reduce a bona fide pos-sessor to the level of a mala fide one. Only mala fide possessor can beasked to remove his improvements. Useful improvements are defined inPereira p. 352. Intention is the intention of the man who made theimprovements. The object is to compensate a man who is losing some-thing. In considering the market price and the land improved onemust take into consideration the possibility of the encroacher being apossible purchaser. The saleable value to the owner is increased by theencroachment. One must consider the question in the abstract, notfrom the point of view of a particular owner.
Cur. adv. vult.
June 2, 1936. Akbah J.—
This appeal raises an important question of law which depends onfacts which cannot be disputed. Plan D 7 shows a boutique whichwe may assume as having been built by the plaintiff. Now this boutiquestands for the most part on land owned by the plaintiff, but a portionof it to the north-east abuts on the portion coloured pink in plan D 7,which the District Judge has held to be a portion of a road reservation.
' This finding was not disputed in the argument before us and thereforethis north-eastern portion of the boutique is an encroachment on thedefendant’s land. It is argued for the respondent that, even assumingthe plaintiff to be a bona fide possessor of that portion of the spacecoloured pink on which the north-eastern comer of the boutique stands,he is not entitled in law to claim compensation for improvements.
1 4 Bed. 126.
* 25 N. L. B .267.
86AKBAH J.—Gunatileke v. The Municipal Council, Colombo.
Under Ordinance No. 6 of 1910 all road reservations are includedin the definition of “ Street ” in section 3 and under section 70 all streets,excepting such as shall be specially exempted by the Governor inExecutive Council are vested in the Municipal Council for the purposeof the Ordinance. Under section 154 any street or part of any streetvested in the Council which shall be discontinued under the Ordinanceor is otherwise no longer required for use as a street, may be sold orleased or exchanged only with the sanction of the Governor. So thatthe defendant has no power to sell or lease any part of the portion colouredpink without the sanction of the Governor. Assuming, therefore,that the plaintiff is a bona fide possessor of the portion on which theencroaching portion of the boutique stands in the space coloured pinkin plan D 7, is the plaintiff entitled to claim compensation from thedefendant in this action ?
With regard to the right of a bona fide possessor to claim compensationfor useful improvements, Maasdorp in Volume 2 of his Institutes of theCape Law at pp. 47, 48, and 96 speaking of an encroachment made by abuilding, which stands .partly on one property and partly on another,states as a definite principle of the Roman-Dutch law as accepted inSouth Africa that the owner of the ground encroached upon may demandthat the encroachment be removed or that the encroacher shall take atransfer of the piece of ground actually covered by the encroachmentand of so much of the rest of the ground as is rendered useless to himthereby and pay him the value of the ground so transferred togetherwith a reasonable sum as d£mages for the trespass and as a solatium forthe compulsory expropriation of his property. Walter Pereira in hisLaws of Ceylon, p. 350, refers to the same principle and this rule hasbeen quoted with approval by the Supreme Court in Migel Appuhamy v.Tliamel and Others It must follow from this principle that the plaintiffhas no right to claim money compensation for the value of the buildingor a portion of it from the owner of the land encroached upon. Hisright is restricted to a. removal of the encroaching portion of the buildingor a right to buy the land on which it stands. Mr. Perera suggested thatthis law would only apply to an encroachment by a building builton a mistaken idea as to the boundaries, and not to a case where theplaintiff bona fide thought that he was the owner of the portion on whichhe had encroached owing to a mistaken view as to title. This distinctionis too subtle for me to appreciate it. A person who builds a portionof his building on his neighbour’s land, bona fide, does so because hethinks he has a good title to the portion encroached upon. Theexceptional principle which I have stated above applies only to buildingspartly on one land and partly on another and the reason for its adoptionis reasonable enough. It would be unreasonable to expect the ownerof the land encroached upon to pay compensation for a portion of a buildingwhich will be of no use to him. On the other hand to restrict the ownerof the building to the right to carry away the materials of the buildingin so far as it abuts on the neighbouring land may destroy the valueof the whole building and render it useless to him. 1
1 2 Cur. L, R. 209.
AKBAR J.—de Silva v. Attorney-General.
In the case before me too only a small part of the boutique whencompared with the whole abuts on the road reservation, and I see noreason why the Roman-Dutch law should not be applied. As I havealready indicated the defendant has no power to sell or lease a portionof the road reservation without the Governor’s sanction and the Govern-ment is not a party to the action. In any event, the claim tocompensation cannot be made in this case. As the appellant’s counselonly restricted his argument to the boutique and did not press his claimto the foundation the appeal must stand dismissed with costs.
Koch J.—I agree.
GUNATILEKE v. THE MUNICIPAL COUNCIL COLOMBO