103-NLR-NLR-V-65-H.-ESUFALLY-and-2-others-Claimants-and-ASSISTANT-GOVERNMENT-AGENT-COLOMBO-Re.pdf
490
EsufaUy v. Assistant Government Agent, Colombo
1S62Present: Baansy&ke, C.J., and ds Silva, J.
H. BS'Ol'ALLT and 2 others, aaimante, and AmBZ&mGOVERNMENT AGENT. COLOMBO, RespondentS. C. 1161—.Land Acquisition Case BSE. 79 fCC. 399
Defence (Compensation) Regulations 1941—Case stated, under Regulation 7—Method
of computing compensation under Regulation 2—Defence (Miscellaneous)
Regulations, Regulation 34—Special Areas (Colombo) Development (Amend-ment) Act No. 41 of 1952—Land Acquisition Act.
By virtue of the powers vested by Regulation 34 of the Defence (Miscellaneous)Regulations, the Competent Authority took possession of certain premises on4th August 1942 and remained in possession of them till 9th December 1950,on -which date possession was restored to the claimants after rent compensationhad been paid to them. The buildings which bad stood on the premises hadbeen demolished by the Competent Authority whilst in possession.
The claimants claimed compensation under Regulation 2 (1) (b) of theDefence (Compensation) Regulations, 1941. In a case stated for the opinion of the-Supreme Court under Regulation 7—
Held, “ (i) that upon a correct construction or application of Regulation2 (1) (6), the sum to be paid to the claimants is the cost of reinstating orreconstructing as on 9fcb December 1950, of the buildings on the said premisesas they stood on 4th August 1942.
that Proviso (ii) to Regulation 2 (1) is applicable to a case such as tbe-present where the entirety cf the buildings which stood on the requisitionedpremises as at the date on which possession thereof was taken from the claimantsor owners, had been totally destroyed or demolished by the CompetentAuthority whilst in possession.
that the expression ! the value of the land 1 in Proviso (ii) to Regulation
2 (1) is not confined to the market value of the land ascertained accordingto the provisions of the Land Acquisition Act and is of wider significance thanthe expression : market value ’ in that enactment and does not exclude any.special value to the owner or owners, or any specie! value to any particular ,purchaser or purchasers ; and the suitability of : the land ’ for any particular:or special purpose should be taken into account in ascertaining the value of the:land."vl
that the word ‘ land ’ in Proviso (ii) to Regulation 2(1) means in the caseof a land with buildings ’ land and buildings The maximum sum payablein respect of damage to any building or buildings is restricted to an amountequal to the maximum amount of the value of tbe land and the buildings-thereon which have bean damaged or destroyed or demolished totally orpartially. ”
(j ASE stated for the opinion of the Supreme Court under Regulation 7v.of the Defence Compensation Regulations.
S. V. Perera, Q.C., with 8. J. Kadirgamar and K. N. Choksy, forClaimants.
3. W. Jayewardene, Q.C., with 0. F. Selhukavaier, Q. 3. Bamayakehand N. R. M. DaluwaUe, for Competent Authority ,'
Cur. adv. wit.
BA5NAYA3CE, (C.J.—Esufalty v. Aasista-.it Government
Agent, Colombo
49]-
March 5,1902. Basstayake, C.J.—
This is a case stated for the opinion of the Supreme Court under Regu-lation 7 of the Defence Compensation Regulations which reads as follows:—
“ Any dispute as to whether any compensation is payable underthese regulations, or as to the amount of any compensation so payable,shall, in default of agreement, be referred to, and determined by, theappropriate tribunal constituted under the following provisions ofthese regulations, and the decision of that tribunal shall be. final:
Provided that at any stage in proceedings before it the tribunalmay, and, if so directed by the Supreme Court, shall, state in the formof a special case for the upinion of that Court any question of lawarising in the course Gf the proceedings. ”
Briefly the facts on which the question of law arise for decision areas follows :— By virtue of the powers vested by Regulation 34 of theDefence (Miscellaneous) Regulations, the Competent Authority, theAssistant Government Agent of Colombo, on 4th August 1942, tookpossession of premises bearing Municipal Assessment Nos. 212, 214, 220,218^ to $ and 218/36 to 72 Wolfendhal Street, Colombo, and remainedin possession till 9th December 1950. On the latter date possession wasrestored to the claimants. The buildings standing on those premiseswere demolished by the Competent Authority whilst in possession.Rent compensation, was paid to the claimants till possession was handedover to them on 9th December 1S50. The claimants thereupon gavenotice of their claim to compensation under Regulation 2 (1) (6) of theDefence (Compensation) Regulations 1941 by a Notice of Claim dated• 6th March 1951 supplemented by an estimate. They claimed a sum of‘ Rs. 193,015/65 as compensation under the Regulation referred to above.
. The Competent Authority assessed the compensation payable atRs. 74,250 as the maximum amount of compensation payable in respectof the total demolition which had been effected of all the buildings on theabove premises during the time the Competent Authority was in possession. of the premises. In their claim on Form 2 the claimants stated that thevalue of land and buildings requisitioned at the date possession wastaken on behalf of Her Majesty was equal to Rs. 340,555/65.
The claimants claimed that they were entitled to he paid such a sunsof money as would have enabled them on 9th December 1950 to recon-struct the buildings as they stood on 4th August 1942 and they accordinglydeclined to accept the sum of Rs. 74,250 tendered by the CompetentAuthority to them and desired that the matters in dispute be referredto the Board of Review constituted under the Land Acquisition Act1950 as being the appropriate Tribunal under the provisions of Regulation'7 of the Defence (Compensation) Regulations read with the Special Areas:(Colombo) Development (Amendment) Act No. 41 of 1952 for the-determination'of the questions as to the right of the claimants to.becompensated.
492
BASNAYAKE, C.J.—EsufaUy v. Assistant Government
Agent. Colombo
The Competent Authority accordingly referred the dispute to the Board
of Be view for hearing and adjudication- As questions of law of greatimportance arose on the arguments submitted by counsel, the Board hasstated a special case. The questions of law that arose axe stated by theBoard in paragraph 5 of the Special Case as follows :—
•• (i) whether, upon a correct construction or application of Kegula-tion 2 (1) (b), the sum to be paid to the claimants is to be the cost ofreinstating or re-constructing as on 9th December I960, of the buildingson the said premises as they stood on the 4th August 1942, or whetherit is to be sura of money computed or ascertained on some other basisand if so, on what basis :
whether Proviso (ii) to Regulation 2 (1) was applicable to a casesuch as the present where the entirety of the buildings which stood onthe requisitioned premises as at the date on which possession thereofwas taken from the Claimants or Owners, had been totally destroyedor demolished by the Competent Authority whilst in possession, orwhether the said Proviso applied only to cases where buildings hadbeen only partially destroyed or damaged ;
(hi) if Proviso (ii) did apply to a case of total destruction or demo-lition of buildings on requisitioned premises, whether the words2 the value of the land; in the said Proviso meant the
market value of 1 the land ’ as understood under the Land AcquisitionAct 1950, or whether the words ' the value of the land 5 were intendedto be of wider significance than market value, and should include anyspecial value to the owner or owners, or any special value to anyparticular purchaser or purchasers ; and whether the suitability of2 the land s for any particular or special purpose should be taken intoaccount in ascertaining its ‘ value ’ ;
in a case where compensation has to be assessed in respect ofbuildings that have been damaged or destroyed (wholly or partially)by the Competent Authority whilst it was in possession of the premises,whether the word ‘ land 1 in Proviso (ii) in the expression ‘ the valueof the land . . . . * was to be construed as £ the value of thebuildings ’ or was to be construed as equivalent to ' the value of theland and the buildings ’ thereon; in other words whether the sumpayable in respect of damage to any building or buildings was to berestricted to an amount equal (i) to the maxim am value of the buildingor buildings destroyed or damaged or demolished wholly or partiallyas the case may be or (ii) to the maximum amount of the value of theland and the buildings thereon which had been destroyed or damaged ‘or demolished totally or partially ; or whether the Claimants were to berestricted to a sum not greater than the value of the land only withouttaking into account the value of the building or buildings on the landwhich had been totally or partially damaged or destroyed atdemolished. ”
BASNAYA KE, C.J.—Esufally v. A&n-stant Government
Agent, Colombo
493
In paragraph. 6 the Board states the questions on which the opinionof this Court is desired thus :
:: The Board of Review decided that the above questions of lawwere relevant to the determination of the dispute between the partiesand were of sufficient importance to justify the Board exercising thepower given by Regulation 7 to state the said questions of law in theform of a Special Case for the opinion of the Rouble the Supreme Courtof Ceylon so that the Board may be informed of the correct constructionand application of Regulation 2 (1) (6) and also Proviso (ii) of Regulation2 (1) and of any other Regulations which, the Court may be of opinion,are appropriately applicable to the present case, so as to enable theBoard to proceed further with the hearing of the matter in disputeand decide upon the correct method or basis or principle of computingcompensation and of awarding the correct amount to be paid to theClaimants in respect of their claim. 53
We accordingly state our opinion as follows :—
that upon a correct construction or application of Regulation
2 (1) (6), the sum to be paid to the claimants is the cost of re-instating or reconstructing as on 9th December 1950, of thebuildings on the said premises as they stood on 4th August 1942.
that Proviso (ii) to Regulation 2 (1) is applicable to a case such
as the present where the entirety of the buildings which stoodon the requisitioned premises as at the date on which possessionthereof was taken from the claimants or owners, had beentotally destroyed or demolished by the Competent Authoritywhilst in possession.
that the expression “ the value of the land ” in Proviso (ii) to
Regulation 2 (1) is not confined to the market value of the landascertained according to the provisions of the Land AcquisitionAct and is of wider significance than the expression “ marketvalue 33 in that enactment and does not exclude any specialvalue to the owner or owners, or any special value to any parti-cular purchaser or purchasers ; and the suitability of “ theland 33 for any particular or special purpose should be takeninto account in ascertaining the value of the land.
that the word “ land 33 in Proviso (ii) to Regulation 2(1) means in
the case of a land with buildings “ land and buildings Themaximum sum payable in respect of damage to any buildingor buildings is restricted to an amount equal to the maximumamount of the value of the land and the buildings thereon whichhave been damaged or destroyed or demolished totally orpartially.
It was agreed that each party should bear its costs.
BE Silva, J.—£ agree.
Opinion slated.