Hewage v Weerasena and others (Wijayaratne J.)
WEERASENA AND OTHERSCOURT OF APPEALUDALAGAMA, J.
LAND ACQUISITION BOARD OFREVIEW CL 1257FEBRUARY 26, 27, 2003MARCH 13, 24, 2003APRIL 4, 2003
Land Acquisition Act – section 28(1) – section 48(e), Section 48(g) -Compensation awarded – Appeal on a question of law only – EvidenceOrdinance Section 3 – Fact?
The ambit of the appeal under section 28(1), is confined to the reviewof a decision of the Board of Review on a question of law only.
What is outside the jurisdiction of the Board of Review and what wasnot contested in the proceedings before the Board of Review cannotform the subject of an appeal.
No questions of law arise for determination.
APPEAL from the decision of the Land Acquisition Board of Review.
Case referred to:
1. Perera (GA, NWP) v Fernando 51 NLR 121A. Gnanathasan D.S.G. for respondent – appellant.
Shibly Aziz, P.C, with Luxman de Alwis for the appellant – respondent.
October 27, 2003
WIJAYARATNE, J.This is an appeal from the decision of the Land AcquisitionBoard of Review dated 20.12.2000 awarding compensation in a
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sum of Rupees thirteen million seven hundred and twenty fourthousand and seventeen and cents sixty one (Rs. 13,724,017.61)in respect of lot 2 in PP7450 in extent 180.58 perches.
The appeal is preferred by the respondent-appellant under andin terms of .section 28(1) of the Land Acquisition Act, which givesthe right of appeal to a party dissatisfied with the decision of theBoard of Review to appeal to this Court on a question of law.
The respondent – appellant in his petition of appeal dated 10
presented nine questions stating in paragraph 5 there-of that the questions of law are fit and proper questions of law to bedetermined by this court under section .28(1) of the LandAcquisitions Act. The nine questions so presented are as follows :
Is the acquired land within the retention area coming underthe Colombo Flood Protection and Control Project as at therelevant date.
Even if it is otherwise has the valuer got to disregard anyplanning restrictions imposed by Planning Authorities by thevery fact that lands are identified as Low Lying and come 20within the area declared under Section 2 of the ColomboDistrict (Low Lying Areas) Reclamation and DevelopmentBoard Act No. 15 of 1968.
Has the publication of the Notice under section 2 of theColombo District (Low .Lying Area) Reclamation andDevelopment Board Act No. 15 of 1968 inhibited the publicfrom buying or otherwise developing the lands describedtherein, thereby affecting the value of the land acquired.Further has the publication of press notices by Ministry ofHousing and Construction and other agencies concerned 30with Greater Colombo Flood Protection Project inhibited thepublic from the buying or otherwise developing…. In whatso-ever manner.
Is the method adopted by the respondent-appellant's Valuerin assessing the depth of filling of the acquired land reliableand accurate.
Is the method adopted by the respondent – appellant's Valuerin assessing the value of the land on a national development
Hewage v Weerasena and others (Wijayarathe J.)
scheme based on development projects of similar nature inthe area correct and accurate in arriving at the market valueof the subject property.
Has the Board of Review erred in law considering pastawards in determining the value of the land acquired ignoringcomparable sales.
Whether section 48(e) of the Land Acquisition Act requires totake into account any decrease in value due to the reason ofthe use to it will be put after its acquisition.
Whether section 48(g) of the Land Acquisition Act requiresthe valuer to disregard only any increases due to circum-stances envisaged therein or does it require total disregard-ment of the purpose for which the land is acquired.
Finally if the land is situated outside the retention area,whether the acquisition is valid.
The petitioner prayed that appeal be allowed, set aside theDecision of the Board of Review, affirm the award of compensationmade by the respondent-appellant in a sum of Rs. 1,589,179.09and for costs.
At the argument stage, whilst arguing merits and demerits of thedecision and the findings of the Board, the appellant-respondenturged that appeal be dismissed as the questions presented fordecision by this court are not pure questions of law but questionsof fact only. Accordingly this court would deal with each and everyquestion first having determined whether the same is a question oflaw or a question of fact or a question of mixed fact and law.
"fact" according to section 3 of the Evidence Ordinance, meansand includes,
"anything, state of things or relation of things capable ofbeing perceived by the senses;"
any mental condition of which any person is conscious.
This court would first, apply this provisions in determiningwhether each of such questions is a question of fact only or a ques-tion of law.
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Q1 :Is the acquired land within the retention area coming
under the Colombo Flood Protection and Control Projectas at the relevant date.
The Board has considered the documents A30, A31A, A39 theevidence of Mr. Guruge who testified on behalf of the respondentbefore the Board of Review. The evidence supported the proposi-tion that the land in suit is outside the retention area marked in planPP7450.so
However, this question relates to the existence of lot 2 in rela-tion to the Retention area marked in PP7450 and it is a pure ques-tion of "fact" in terms of the definition of the term “fact".
Thus, it is not a question that this court would have to determinein terms of section 28(1) of the Land Acquisition Act.
Q2 :Even if it is otherwise has the valuer got to disregard any
planning restrictions imposed by Planning Authorities bythe very fact that lands are identified as Low lying andare coming within the area declared under Section 2 ofthe Colombo District (Low Lying Area) Reclamation and 90Development Board Act No. 15 of 1968.
Section 2 of the Colombo District (Low Lying Area) Reclamationand Development Board Act No. 15 of 1968 empowers the ministerto declare a particular area to be a "Reclamation and Developmentarea" for the purpose of the act.
In terms of subsection 3 of section 2 states that upon publicationof an order declaring a Reclamation and Development area, theduty of the Corporation is to reclaim and develop such area.
The ambit of the provision is that the corporation should devel-op such land and not to restrict development of such area. The 100powers of the corporation stipulated in section 9(d) as amended,
" to enter into any contract with any person for the execution of
any Land Development Project and schemes…"
Thus it is clear that what the relevant law envisaged is theDevelopment and Co-operation in development of such lands bythe Corporation and not the restriction of development of suchlands. However, the respondent-appellant did not refer this Court to
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any provisions of law empowering the corporation to restrict devel-opment of such lands. There is thus no legal basis upon whichempowering the imposition of planning restrictions on the basis ofa declaration of Reclamation and Development area.
Question however is whether a valuer got to disregard any plan-ning restriction imposed by the planning authorities. In the firstplace when the restrictions are not lawful any valuer acting in termsof law cannot regard any restriction which has no sanctity of law.
Vet if there is proof that it is a factor that has affected the mar-ket value of the land, a valuer is obliged to consider the same withdue regard.
This is a mixed question of law and fact, the Board of Reviewhas considered on the evidence before it and with due regard tosale of land in the vicinity. We are unable to agree that a questionof law arises for determination, as it is not established that theBoard of review has erred in law on whether such should or shouldnot be considered.
Q3 :Has the publication of the Notice under Section 2 of the
Colombo District (Low Lying Area) Reclamation andDevelopment Board Act No. 15 of 1968 inhibited the pub-lic from buying or otherwise developing the landsdescribed therein, thereby affecting the value of the landacquired. Further has the publication of press notices byMinistry of Housing and Construction and other agenciesconcerned with Greater Colombo Flood ProtectionProject inhibited the public from the buying or otherwise• developing…. In whatsoever manner
"Inhibition" is a state or condition of mind of a person in relationto existence of facts (things). Whether the publication for noticeunder section 2 had the effect of changing the State or condition ofmind of a would be purchaser of land is a pure question of factdependent on evidence of such state of things. Specially when thepurchasers are described as members of the public. The existenceof such an inhibited frame of mind is a question of fact and whetherthe existence of such fact affected the value is again a question offact.
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The witnesses, mainly the valuers have testified on this areaand the Board of Review has considered the same. There is noquestion of law that this court has to determine on the question ofinhibition and/or its effect.
Q4 :Is the method adopted by the respondent-appellant's
Valuer in assessing the depth of filling of the acquired 15Cland reliable and accurate.
The reliability and accuracy of a method is again a state ofthings in relation to an existing set of facts.
The Board of Review has considered the evidence of the valuerdescribing the methods he adopted in assessing the depth of thefilling. The valuer who testified on behalf of the respondent too hasagreed to the existence of documentary evidence that permittedsuch assessment. This is a pure question of fact the Board ofReview had in fact considered and there is no question of law pre-sented for determination by this court.
Q5 :Is the method adopted by the respondent-appellant's 16o
Valuer in assessing the value of the land on a nationaldevelopment scheme based on development projects ofsimilar nature in the area correct and accurate in arrivingat the market value of the subject property.
Development projects of similar nature in the area in the assess-ment of a notional development is a factor that need to be consid-ered by a valuer. The market value of land is essentially a relativefactor and it is both reasonable and practical to consider values inrelation to similar land.
In the case of Perera (G.A.NWP) v Fernando,^ it was held, 170
"In deciding upon the market value, of property compulsorilyacquired, evidence of relevant sales in the vicinity is animportant, factor provided that such sales were of propertysimilarly situated and are shown to have been by a willingseller to a willing buyer"
"Market value of property is the price which a willing vendormight be expected to obtain in the open market from a willing
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purchaser and the price will be estimated having in view thefuture potentialities of the property"
Accordingly the method adopted by respondents-appellant'svaluer in assessing the value of the land was not found to be cor-rect and accurate by the Board of Review on the strength of evi-dence before it.
Q6 :Has the Board of Review erred in law considering past
awards in determining the value of the land acquiredignoring comparable sales.
There is nothing on record in proceedings before the Board ofReview that the Board had ignored comparable sales. The Boardhas definitely compared the sales referred to in evidence and forreasons given had considered them as being not comparable. Pastawards are presumed to be made according to law and it is the dutyof the Board to consider lawful award relevant to the matters inissue.' The Board has not erred in law in considering the pastawards lawfully made presumably on rational basis.
Q7 :Whether Section 48(e) of the Land Acquisition Act
requires to take in to account any decrease in value dueto the reason of the'use to it will be put after its a acqui-sition.
The purport of provision of sub section C of section 48 is toexclude any "increase" likely to occur after acquisition" and onlyprovide that such increase "shall not be taken into "consideration".Even on a plain reading of the section it is clear that the provisions" do not require to take into account any decrease in value
Section 48 deals with "matters that shall not be taken into con-sideration and hence there is no question of what it requires to takeinto account does-not arise to be determined.”
Q8 :Whether section 48(g) of the Land Acquisition Act
requires the valuer to disregard only any increases dueto circumstances envisaged therein or does it requiretotal disregardment of the purpose for which the land isacquired.
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Provisions of Section 48(g) deals with "special suitability oradaptability of the land in its application under statutory powers forwhich there is no market…" The section certainly requires that thepurpose for which the land is acquired became the determining fac-tor than in the application of the purpose under statutory powers.Whether there is increase or decrease, what is to be not taken intoaccount is "the purpose of application under statutory powers…which has no market" only.
Q9 :Finally if the land is situated outside the retention area, 22SS
whether the acquisition is valid.
Validity of the acquisition is not a matter that has arisen for con-sideration by the Board of Review. Nor does the provisions of theLand Acquisition Act empowers the Board of Review to, considerthe question of validity of an acquisition of land.
The ambit of an appeal under section 28(1) of the LandAcquisition Act is confined to the review of a decision of the Boardof Review on a question of law only. What is outside the jurisdictionof the Board of Review and what was not contested in the pro-ceedings before the Board of Review cannot in terms of provisions 23oeof section 28(1) form the subject of an appeal.
The question of validity of the acquisition is one outside thescope of such an appeal as it cannot be a part of the decision of theBoard of Review.
This is not a question that this court would consider in an appealunder section 28(1) of the act.
In all the circumstances, we see no reason to interfere with thefindings of the Board of Review. In the result the appeal is dis-missed with costs fix at Rs. 2,500/-.
UDALAGAMA, J.Appeal dismissed.
HEWAGE v. WEERASENA AND OTHERS