085-NLR-NLR-V-27-KATHIRAVALU-et-al-v.-URBAN-DISTRICT-COUNCIL,-JAFFNA.pdf
( 468 )
1926.
Present: Branch C.J. and Maartensz A.J.
KATHIRAVALU et al v. URBAN DISTRICT COUNCIL,
JAFFNA.
t
214—D. C. Jaffna, 18,463-Urban District Council—Acquisition of land—Cutting a drain acrossplaintiffs’ land—Compensation—Enhanced value of land—Ordinance N*. 11 of 1920, s. 116.
Where an Urban District Council, in exercise of the powersconferred upon it by section 116 of Ordinance No., 11 of 1920,cut a channel across plaintiffs’ land,—
Held, that the plaintiffs were entitled to claim the value of theland taken up by the channel by way of compensation.
The enhanced value accruing to plaintiffs’ Mother land by thecutting of the channel should not be taken into consideration, inassessing the compensation payable to the plaintiffs.
HpHE plaintiffs sued the Jaffna Urban District Council to recoverdamages in respect of the action of the Council in cuttinga drain across their land. The claim arose from a drain being cut,in exercise of the power vested in the Council by section 116 of theLocal Government Ordinance, No. 11 of 1920, in pursuance ofa flood outlet scheme to prevent the land in and around Jaffnabeing flooded during rainy weather. The action was tried on thefollowing issues :—
Had the Council any right to cut a dr&n through plaintiffs’
lands without having first acquired the necessary land,paying value and damages t. ■
Was it necessary for the defendant Council to deepen the
water-course ?
Could not the defendant Council have constructed the channel
alongside the public road without causing as much damageto the public ?
What sum, if any, are the plaintiffs entitled to claim by way of
The learned District Judge answered the 1st, 2nd, and 3rd issuesin favour-of the Council, and his findings were not challenged inappeal. The argument in appeal was limited to the questionwhether plaintiffs were entitled, by way -of compensation, to the
( 469 )
value of the land taken up by the drain, and whether the Councilwas entitled to set off against such value the increase in value ofplaintiffs’ other land resulting from the cutting of the channel.
HayUy (with 8. Rajaratnam), for plaintiffs, appellants.
Allan Drieberg, K. C. (with N. K. Choksy), for defendant, re-spondent.
Rajaratnam (in reply).
March 30,1926. Branch C.J.—
The question that arises for decision in this case js what com-pensation, if any, is payable to the plaintiffs under section 116 ofOrdinance No. 11 of 1920 in respect of the action of the JaffnaUrban District Council in making a drain across the plaintiffs’ land.
Section 116 above referred to provides that every DistrictCouncil may make such drains, sewers, and water-courses as maybe judged necessary for the effectual draining of any area withinits administrative limits, and, if needful, may carry them through,across, or under any street, and, after due notice, into, through, orunder any enclosure or other lands whatever, doing as little damageas may be, and making compensation for any damage done. Undersection 225 the District Council may make compensation out ofthe local funds to all persons sustaining any damage by reasonof the exercise of any of the powers vested in the Council. Section222 names the Court which is to ascertain and determine theamount of the damages payable.
Mr. Hayley for the appellants said that but for Roderick v. AstonLocal Board1 he would have taken the point that the Councilcould not carry a drain “ across ” the appellants’ land, but he citedthe case as bearing in other respects on the questions involved.
The case went to trial on the following issues :—
Had defendant Council any right to cut a drain through
plaintiffs’ land without having first acquired the necessaryland, paying value and damages ?
Was it necessary for defendant Council to deepen the water-
course as shown in preliminary trace as was done by them ?
If it is held that the tracing and cutting of drainage channel
was necessary, could not the defendant Council have con-structed the channel alongside the public road withoutcausing as much damage to the plaintiffs ?
What sum, if any, are the plaintiffs entitled to claim by way
of damages ?
The learned District Judge answered issues (1) and (2) in theaffirmative. As regards (3) he found that the defendants hadexercised a wise discretion in putting the channel where it is at1 (1877) 5 Ch. Div. 328-
1926.
Kathiravalu.v. Urban Dist(riot CouncilJaffna
( 470 )
1926.
Branch C.J.
Kathiravaluv. Urban Dis-trict Council,Jaffna
present. -On the question of compensation he says : “ I find thatthe plaintiffs are not entitled to any damages at present. Theyaxe not entitled to the value of the land taken up for the use of thechannel. So far as 1 can see, the value of the land east of thechannel has not depreciated. On the contrary, the value of theland on both sides of the channel is steadily going up, both becauseit has become suitable for dwelling lands and it has been renderedfree from floods.” He also states : “ The flood outlet scheme wasa very necessary one. The land in and round Jaffna is flat; andin the rainy weather it is common knowledge that when there isheavy rain for a day or two, as often happens, the lands in andround Jaffna get flooded. The object of the scheme is to preventthese lands being flooded, and the channels are intended to canyaway the superfluous water before it can flood the land. Theexpression ‘ damages at present ’ refers to the inconveniencecaused the plaintiffs in getting across the channel or drain to awell in the absence of a proper bridge across the drain. I need notconsider this aspect of the matter, however, as bridges have nowbeen built and no compensation is now claimed in respect of difficultyof access to the well or for severance generally.” In the Court belowthere were claims for “damages consequent on the land beingcut in two ” and for “ damages resulting from water being drainedaway from the tanks on which the fields depend for their moistureand for the subsoil of the fields themselves.” These claims havebeen abandoned on appeal. Another point may be shortly dis-posed of. The learned District Judge held that the correspondencediscloses an acquiescence by the plaintiffs in the action of theCouncil amounting to a gift of the land. I do not think that thisfinding can be sustained. On appeal the matter thus resolveditself into a claim by the plaintiffs for compensation in a sumrepresenting the market value of the land occupied by the drain.The plaintiffs say that the land taken up by the drain is somethingunder 5 lachams, and that a lacham of land at that place is worthRs. 1,000. The claim, therefore, is for something a little underRs. 5,000. The argument on appeal is that the land has for allpractical purposes been acquired by the Council, and that thedamages should be the same amount as compensation in the caseof acquisition, and that no question as to the improvement of theremaining lands can be considered.
The question that remains, therefore, is whether the plaintiffsare entitled to the actual value of the land occupied by the drainirrespective of any question of enhanced value, and if not, how isthe amount of compensation for damages, if any, to be arrived at ?
It is not necessary for a local authority on a case like the presentto purchase the land (see Roderick v. Aston Local Board (supra),Thornton v. Nutter,1 Swanston v. Twickenham Local Board2), but1 (1867) 31 J. P 419.1 {1879) 11 Ch. Div.. 838.
( 471 )
in certain cases compensation for the damage sustained by reasonof the exercise of the powers conferred by section 116 might beN greater than the actual value of the land occupied by a drain,sewer, or water-course. This is apparently not the case here.It was agreed at the appeal that as. I would be in Jaffna for theCriminal Sessions I should visit the land, and I did this incompany with plaintiffs’ counsel and proctor. I was not able toinspect the whole of the drain, but I went over that portion of itlying to the south of the well, access to which is now given by anadequate bridge. The drain is an open one, shallow in most places,and quite dry at the time I saw it, and dry for the greater partof the year. During the dry months the occupiers of land on eitherside of the drain cross it freely, and it offers no hindrance whateverfor much the greater part of its length. Two bridges have beenerected by the Council at the only places they appear to be required.In the iainy months the storm water would ordinarily flow practi-cally over the same ground occupied by the drain, but its flowwill now be more concentrated. If too there had been no attemptat drainage higher up, it would appear that less storm water wouldflow over the plaintiffs’ land than at present, but in any case achannel would be necessary. It is a little difficult to understandwhy the plaintiffs object to the present channel, and in the absenceof some such system of drainage as that now afforded, it appears tome it might be necessary for the plaintiffs themselves in the interestsof public health to drain their land at their own cost. This wouldbe the case even if the Council had done nothing whatever in thatarea in the matter of drainage on or above the plaintiffs’ lands.There can be no doubt, I think, that the surrounding land of theplaintiffs has been increased in market value by the drain in questionso far as its value for residential purposes is concerned, and itonly requires some further drainage for the paddy field lands to beavailable for building, to which use they will clearly be put at nodistant date. I think, however, that the general enhancement ofmarket value cannot be taken into consideration when determiningthe amount to be paid the plaintiffs as damage-. The damageclaimed is, as I have said, the loss of something approaching 5lachams of land at Rs. 1,000 a lacham. It is somewhat surprisingthat land in Jaffna, with its comparatively low rental value, shouldbe worth that amount, but there seems to be a keen desire amongpeople in the locality to purchase land for residential purposes, andthe evidence of the second plaintiff on the point is as follows :—“The value of a lacham is over Rs. 1,000 in that locality. Theprice of land is going up. The paddy fields there arc being convertedinto dwelling compounds.” I am not clear if the learned DistrictJudge has accepted this evidence as to value, and the point can,if necessary, be further considered.
1926.
Branch C. J.
Kctthiravaluv. Urban Dis-trict Council,Jaffna
( 472 )
1926.
Branch C.J.
Kathiravaluv. Urban Dis-trict Council,Jaffna
I think that the case should be sent back to the District Judgefor further inquiry and adjudication. If the enhancement of marketvalue which has followed the ' completion of the present worksis left out of consideration the plaintiffs will have suffered somedamage, namely, some actual pecuniary loss, and compensationfor that loss must be assessed.
Excluding questions of compensation for access to the welland for severance generally and for the loss of water by drainageon the one hand, and excluding on the other hand all questionsof enhancement in value of the surrounding land, the damage wouldbe the pecuniary loss suffered by the plaintiffs by the exerciseby the Council of its statutory powers. It may be difficult to arriveat a fair assessment, but the attempt must be made. It is to beobserved that compensation is only claimed in respect of theconstruction of the drain shown in the plan in its passage throughplaintiffs* land. That drain, as I understand the matter, followsthe course of an old drain, save at one place, where there has beena necessary deviation, and the damage may, therefore, only bein respect of the widening and deepening of this old drain andof any deviation. This is a question, however, for the learnedDistrict Judge. The matter could, it 6eems to me, be Settledexpeditiously and at small cost by arbitration, but that is, of course,a matter for the parties. If they desire to make legal historyfor the benefit of others in a somewhat similar position, there existall the elements of a protracted and expensive contest. Thelearned District Judge who tried the action has all the facts beforehim. and if the parties do not settle the matter themselves, he willin the light of this judgment .reconsider the question of damage.If any statement as to facts by me founded on a view of the locusin quo or otherwise is wrong, he can correct it and allow the partiesto call fresh evidence on that or any other point. The learnedDistrict Judge says in his judgment: “ It seems that under theEnglish Act,where an exactly similar provision is made, the EnglishCourts have held that no compensation is recoverable for the landtaken for the purpose, and that compensation is only recoverablefor damage to property, e.g., damage to buildings, plantations,and the like. See the authorities quoted by Mr. Niles fromHcdsbury's Laws of England.9' The cases referred to in LordHalsbury's Laws of England, Vol. VI., p. 163, paragraphs 246, andp. 172, paragraphs 265 and 266, do not justify the conclusion thatin a case like the present no compensation should be given, and Ithink too that the enhanced value of the surrounding lands has hadits effect on the mind of the learned Judge.
The conditions surrounding the present case are so peculiarthat no decided case is likely to be of any material assistance,and as regards certain portions of the drain, it may be very difficultto determine, what damage, if any, has been sustained by reason
( 473 )
of the exercise of the powers of the Council* There are otherparts of the drain, however, where the position is a different one.The truth of the matter probably is that if the Council had antici-pated difficulty as regards a claim for damages they would haveused other means for bringing the lands into a sanitary condition.Now, however, that the Council has done the work itself, consider-ations involving compensation must prevail.
1926.
Branch C.J.
KcUhiravaluv. Urban Din•trict Council,Jaffna
As regards costs, the plaintiffs have put forward claims in theCourt below which cannot be supported, and three of the fourissues were properly decided against them. On appeal all but oneof the grounds of appeal have been abandoned, and in the onethat remains, namely, the claim to be paid, the whole market valueof the land occupied by the drain cannot be sustained. On theother hand, the claim of the plaintiffs to be paid something ascompensation has been successful. I would order each party to bearits own costs in the Court below, and give the plaintiffs, appellants,half the costs of this appeal. The costs of any further inquirywil) be in the discretion of the learned District Judge.'
Maabtensz A.J.—
The plaintiffs appeal from a judgment of the District Court ofJaffna dismissing their action for compensation for damage causedto the first plaintiff’s land by the defendant Council.
The claim to compensation arises from a channel cut throughthe first plaintiff’s land at Vannarponnai^ in exercise of the powervested in the Urban District Council, Jaffna, by section 116 ofthe Local Government Ordinance, No. 11 of 1920, in pursuance ofa flood outlet scheme to prevent the lands in and around JaffnaTown, being flooded during rainy weather.
The catchment area is shown in plan D 9. The District Judgesays in his judgment:—>
The natural flow of water is from Adiyarakunallakulam andnorth of it, southwards through the plaintiff’s landsinto the Vannankulam. From there the water found itsway down to the sea on the south through what appearsto have been originally paddy fields. These lands on thesouth have gradually been filled up and converted intodwelling lands and gardens, with the result that unlessproper outlets were made the flood water coming fromthe upper reaches would find no outlet.”
The execution of this scheme has, as may be expected, takensome years. The scheme was begun by the Local Board of Jaffna,to which the Urban District Council has succeeded.
( 474 )
1922 * In 1919, by letter dated September 20 (D 1), the Chairman of theMaabtensz Local Board, Mr. Constantine, wrote to the second plaintiff regard-Kathiravalu a channel through their lands, and by letter D 2, datedv. Urban JHa- November 14,1921, the second plaintiff agreed to the cutting of thetrict Council, channel, provided the channel south of the hospital road was openedand the channel south of the tank was deepened before the rainyweather set in.
In letters D 4 and D 5, dated October 13 and November 14,1922,the second plaintiff called attention to the fact that the channelwas not cleared. He presumably refers to the channel south ofthe tank.
The channel complained of was cut on or about July 20, 1923.In June, 1923, the second plaintiff began to prepare the way to aclaim for damages. In letter P 2, dated June 22, he contendedthat the Urban District Council had no power to cut a channelacross the land, as under section 116 the Council only had powerto make drains below the surface.
The channel across the plaintiff’s land had now become necessary.
The District Judge remarks :—
“ From Mr. Berwick’s plan D 11 it would seem that in 1915 thewater from the tank came down along the channel andlost itself in the plaintiff’s fields, and gradually found itsway to the Vannankulam. So long as the rain wasevenly distributed in the rainy season no harm wouldresult; on the contrary, as Mr. Tillainather remarkedin his evidence, it would be the best thing possible for hisfields. But once the flood areas on the north wererelieved and the water rapidly filled the tank on the northand ran down the channel, as it must, the condition wouldbe quite different. All the water that originally stoodin and around lands on the north would all flow downand submerge the plaintiff’s fields and rot their paddy.”
The plaintiffs have not set up a claim for damages on the groundthat the channel to the north has increased the flow of flood wateron to the first plaintiff’s land. It might have been a factor in thepresent action if the second plaintiff had not agreed to the cuttingof the channel across the land in question.
The action was tried on the following issues :—
Had the defendant Council any right to cut a drain through
the plaintiffs’ lands without having first acquired thenecessary land, paying value and damages ?
Was it necessary for the defendant Council to deepen the
water-course as shown in preliminary trace as was doneby them ?
( 475 )
If it be held that the tracing and cutting of a drainage channel
was necessary, could not the defendant Council haveconstructed the channel alongside the public road withoutcausing as much damage to the plaintiffs ?
What sum, if any, are the plaintiffs entitled to claim by way
of damages ?
There is no issue or plea that the first plaintiff acquiesced in thecutting of the channel, and that—to quote the words of the DistrictJudge—" his acquiescence amounts to a gift of the land to thedefendant Council for this purpose.”
The learned District Judge answered the 1st, 2nd, and 3rd issues infavour of the Council, and his findings were not challenged in appeal.
As regards damages, the plaintiffs claim (I quote from thejudgment):—
“ (1) The value of the land taken up by the channel, which is,roughly, 5 lachams, at Rs. 1,000 a lacham ;
“ (2) Damages consequent on the land being cut in two by thechannel, rendering the portion on the east (said to be200 lachams p. c.) inaccessible and uncultivatable, andtherefore of less value ; and
“ (3) Damage resulting from the water being drained away fromthe tanks on which the fields depend for their moisture,and from the subsoil of the fields themselves.”
-1926.
Maabtbksz
A.J.
Kathiravalut>. Urban Dis-trict CouncilJaffna
The District Judge has found that under head (2) the land eastof the channel has not depreciated in value, and that there isno foundation for the suggestion that the channel is responsiblefor the lands having become less productive; under head (3) thatit has not been proved that the channel is carrying away the moistureof the subsoil.
These findings were not contested in appeal. The argumentin appeal was limited to the question whether the plaintiffs wereentitled by way of compensation to the value of the land taken upby the channel:—
“ The defendant Council admits (I again quote from the judgmentof the District Judge) having cut the channel throughthe plaintiffs' land; but denies that the plaintiffs havesuffered any damage or loss in consequence. It maintainsthat the channel in question was a necessary one, beingpart of a scheme for the drainage of the town of Jaffna,and constructed under the advice and supervision ofcompetent Engineers; and that, far from the plaintiffssuffering damage, .these lands which are being rapidlyconverted into dwelling lands, have been rendered freefrom floods, and have, therefore, become healthier forresidential purposes, and have become more valuable assuch.”
( 476 )
1926.
Maabtbnsz
A.J.
On the question “ whether the plaintiffs are entitled to recoverthe value of the land so taken,” the learned District Judge, afterreferring to section 116, says :—
Kathiravaluv. Urban Dis-trict Council,Jaffna
“ It seems that under the English Act, where an exactly similarprovision is made, the English Courts have held that nocompensation is recoverable for ihe land taken for thepurpose, and that compensation is only recoverable fordamages to property, e.g.t damage to buildings, planta-tions, and the like (see the authorities quoted by Mr. Nilesfrom Halsbury's Laws of England). It seems to me thatour Ordinance also intended to make a similar provisionin Ceylon for purposes of public health.”
The appellant contends that this proposition cannot be supported,and that he is entitled to the value of the land taken up by thechannel by way of compensation, and that the defendant Councilis not entitled to set o£E the enhancement in value, if any, ofother land belonging to the plaintiff owing to the cutting of thechannel.
Respondent’s counsel was unable to refer us to any authoritiesfor the statement that no compensation is recoverable for the landtaken. The dismissal of the plaintiffs’ action on that ground can-not be supported, and the case must go back for the assessment of
The main question argued in appeal was whether the Councilwas entitled to set oflE against the value of the land taken theincrease in value of the remainder of plaintiffs’ land resulting fromthe cutting of the channel.
Section 116, under which compensation is claimed, enacts asfollows :—
■ “ Every Dijtrict Council may, from time to time, cause to be made,altered, or extended such main or other drains, sewers,and water-courses as may be judged necessary for theeffectual draining of any area within its administrativelimits, and, if needful, may carry them through, across,or under any street, or any place laid out as or intendedfor a street, and (after reasonable notice in writing inthat behalf) into, through, or under any enclosed or otherlands whatsoever, doing as little damage as may be, andmaking full compensation for any damage done.”
Neither this section nor any other section gives any indicationas to how the question should be answered.
The powers vested in the .Urban District Council are verysimilar to the powers vested by section 16 of the Public Health
( 477 )
1926.
MaartbnszA.J.
Katiravaluv. Urban Die*trict Council,Jaffna
Neither appellants’ counsel nor respondent’s was able to citeany authority directly deciding the question under consideration,nor have I been able to find any.
The Act has been in force about 'fifty years, and I cannot butbe surprised that there should be no 'authorities if the principlecontended for by respondent’s counsel was one which could be setup under the Act.
The absence of authority, in toy opinion, indicates that theplea of betterment has no place in a claim for compensation undersection 308 of the Act.
I agree with Mr. Drieberg’s argument that the power exercisedby the Council would, but for the provisions of section 116, bea tort, and that the measure of damages is the actual pecuniaryloss sustained by the plaintiffs. I am not prepared to accede tothe other branch of his argument, that to arrive at the actualpecuniary loss the increase in value of other land belonging to thefirst plaintiff must be taken into consideration.
I am of opinion that the claim to compensation must be governedby the principles applicable to an action in tort, except that byreason of section 116 the plaintiffs are not entitled to claimvindictive damages or insist on a removal of the channel.
If the plaintiffs had sued the defendant Council in an ordinaryaction for trespass and damages, the Council, under the Roman-Dutch law, if a bona fide possessor, might have set up a counterclaim for compensation for improvements, and claimed the costof the improvement or the difference between the value of the landbefore and after the improvement was effected, whichever is less,
Pereira on Compensation, p. 48. The Council cannot possibly bedeemed a bona fide possessor.
Even if the Council is a mala fide possessor, it could claimcompensation for useful improvements if the owner stood by andallowed the improvements to proceed without any notice of hisown claim. Pereira, p. 62. Otherwise he can only take awaysuch improvements as can be removed without detriment to theproperty. Ibid, 44.
The English Common law would appear to draw no distinctionbetween a mala fide and a bona fide possessor as regards the rightto compensation for improvements. Both are equally disentitled.
Act, 38 and 39 Victoria, chapter 65, and section 308 of this Actprovides:—<
“That where any person sustains any damage by reason ofthe exercise of any of the powers of this Act in relationto any matters as to which he is not himself in default,full compensation shall be made by such local authorityexercising such powers.’’
( 478 )
1926.
Maabtbnsz
A.J.
KathiravaluUrban Dis-trict Council,Jaffna
But when the owner of property stands by and allows the improve-ments to proceed, equity interferes and gives the necessary relief,Pereira, p. 34; Mayne on Damages, p. 527.
Claims to compensation for improvements arise both in Englishlaw and in the Roman-Dutch law in actions for the recovery ofpossession and mesne profits. Even if they were applicable in anaction for damages for injury to the land, it cannot be said thatthe plaintiffs stood by and allowed the Council to incur theexpenditure, for by letter P 2, dated June 22, 1923, the secondplaintiff objected to a channel being cut on the surface of the land.
In an ordinary action the defendant Council would not be entitledto set up a claim for compensation.
There are, as I have stated, no decisions under the Public HealthAct regarding “ betterment.” But there are two cases under theLand Clauses Consolidation Act with reference to 63' of the Act,in which claims in the nature of betterment were rejected.
This section provides that:—
“ In estimating the purchase money or compensation to be paidby the promoters of the undertaking in any of the casesaforesaid, regard shall be had by the justices, arbitrators,or surveyors, as the case may be, not only to the value ofthe land to be purchased or taken by the promoters of theundertaking, but also to the damage (if any) to be sustainedby the owner of the lands by reason of the severing of thelands taken from the other lands of such owner, or other-wise injuriously affecting such other lands by the exerciseof the powers of this or the special Act, or any Actincorporated therewith.”
The cases are (l) Senior v. The Metropolitan Railway Company1 and(2) the case of Eagle v. The Charing Cross RailwayCompany.2
In the earlier case Bramwell B. said at page 229 :—
“ But I understand it is now suggested, on the part of the com-pany, that although the obstruction may have causeda temporary loss to the plaintiff, it may still turn out thatultimately there will be a benefit to the premises. Imuch doubt whether the company is entitled to a set-offof that description. Suppose the case of a tenant fromyear to year, or for a term of years, whose term happenedto be co-extensive■ with the obstruction, is he to get nocompensation for the loss sustained by him during bisterm ? Or take it in another way. Suppose a manhas two houses, one injured by the company’s works,and the other benefited. Is he to get no compensationfor th3 one injured ? It appears to me that the principleof set-off contended for is unsound.”
i (1863) 32 L.J. Q. B. 226.*36 L. J. Common Pleas 297.
( *79 >
In the later case the umpire found the plaintiff had sufferedda oage from the diminution of light to the house resulting fromworks erected by the Railway Company, but that the saleablevalue of his interest in the house was not diminished. It wascontended that this means that there is no damage to the messuageor premises.
Bovill C. J. said at page 303 with regard to that contention:—
“ It cannot be said to my mind, consistently with justice, thata man’s damage is to be ascertained with reference towhat he could sell his property for. He may say, I donot desire to part with it. The whole finding seems to meto have reference to a totally different matter, and thispoint was probably raised at the request of the company,to obtain a decision upon the question whether saleablevalue was the test of compensation or not. In manycases, with regard to old properties, where the valuedepends on the site, I can quite understand that youmight damage the houses, as then erected, and yet theproperty would sell for the same amount whether theobstruction existed or not. I think that is not the test.’ ’
Montague Smith J. at page 306 said that the saleable value maybe a test in ascertaining the true amount of damage, but that it isnot the only, and certainly not a conclusive, test. He added : “ Aman is not to be driven to sell his property before he can ascertainwhether he is entitled to compensation or not.”
The rulings in these cases confirm my opinion that such a claimcould not be made under section 116 of Ordinance No. 11 of 1920.
Mr. Drieberg in his argument referred us to the provision ofsection 26 (6) of the Land Acquisition Ordinance of 1876, whichenacts that the judge or assessor shall not take into considerationin determining the amount of compensation to be awarded anyincrease to the value of the other land of the person interested likelyto accrue from the use to which the land acquired will be put, andasked us to draw from the absence of such a provision regardingcompensation for damages under section 116 the inference that theLegislature intended that the enhanced value of the land should beset off against any damage to it.
I find it impossible to hold inferentially that the Legislatureintended to set off against a claim of damages for injury to a landthe increase in value of the remainder of the land or other landbelonging to the person injured resulting from that injury. Sucha claim as I have pointed out could not have been-set up in anordinary action, and if the Legislature intended to depart from theordinary rulerf would expect it to say so in express terms.
27/33
1926.
M&ABTEK8Z
A J.
Kathiravaluv. Urban Dis-trict Council,Jaffna
1926,
Maartbnsz
A.J.
Katiravaluv. Urban Dis-trict Council,Jaffna
( 480 )
I am of opinion that the defendant Council is not entitled toset off the increased value, if any, of the remainder of the plaintiff’sland resulting from the cutting of the channel.
As regards the amount of damages, Mayne layB down that “ wherethere has been a total deprivation of land the damages of courseare such as will indemnify the plaintiff for the loss of his property.”Mayne on Damages, p. 520.
The learned District Judge has not assessed the damages, and Iset aside the decree and remit the case to the District Court for thepurpose of further inquiry and adjudication on the issue of damages.This does not appear to be a case in which compensation is payableon an acquisition. A right to some compensation has beenestablished, and what that compensation should be must be leftto the District Judge.
The plaintiffs should have the half costs of appeal. I wouldorder each party to pay his own costs in the District Court. Thecosts of the further inquiry will be in the discretion of the DistrictJudge.
Decree sei aside.
Case remitted.