LETCHUMAN CHETTIAR , Appellant, and MUNICIPAL COUNCIL, Plaintiff

038-NLR-NLR-V-44-LETCHUMAN-CHETTIAR-Appellant-and-MUNICIPAL-COUNCIL-Plaintiff.pdf


170
Letchuman Chettiar and Municipal Council, Colombo.
1942
Present: Howard C.J., Soertsz and Keuneman JJ.
LETCHUMAN CHETTIAR, Appellant, andMUNICIPAL COUNCIL, Plaintiff.
69—D. C. Colombo, 3,092.
Land acquisition—Land with street lines—Mode of assessing compensation—Land with two streets adjacent to building block—Value of landas building land—Housing and Town Improvement Ordinance(qap. 199), s. 19.
Where a land, which is part of a larger land, is acquired in landacquisition proceedings the correct mode of assessment is' to aseertairthe value of the entire land and then to estimate the value of the portiortaken at that rate, subject to any restrictions that may affect its value,—1 29 Cr. L. J. 106-‘ 37 Cr. L. J. 205.
Letchuman Chettiar and Municipal Council, Colombo.
171
Held, further, by Howard C.J. and Soertsz J. (Keuneman J. dissenting)^—the purpose of section 19 of the Housing and Town ImprovementOrdinance is to ensure that every building has easy access to a street ofcertain dimensions, and if any one erecting a building has two streetsadjacent to his building block, it is open to him to erect his buildingin relation to one of these streets and in that event there is nothing toprevent him from erecting his building to the extreme limit of his landon the other side of the street going beyond any street line that has beenlaid down on that side.
It is also open to him in such a case to construct suitable streetsin conformity with the requirements of the Ordinance to serve buildingserected on the land to the extreme limit of his land, ignoring street lines.
Held, also (by the whole Court),—where a land on a part of which astreet line has been placed could be utilized for building cottages, reservingthe portion of the land within the street line as part of a courtyardor garden attached to a cottage, that land may be assessed as buildingland subject to such restrictions as exist.
HIS was a proceeding for the compulsory acquisition' of land under
X the Land Acquisition Ordinance. The appeal raised the questionof the correct method of assessing the value of a piece of land acquiredby the Municipal Council of Colombo for the purpose of widening anadjacent public street called Vajira road.
The facts are stated in the judgments of Soertsz and Keuneman JJ.
H. V. Perera, K.C., (with him N. Kumarasingham), for the defendant,appellant.—The piece of land which is to be assessed was acquired underthe Land Acquisition Ordinance in order to widen Vajira road. TheMunicipal Council claims that the strip of land has no value on theground, that under the Rousing and Town Improvement Ordinance(Cap. 199) the portion acquired cannot now be built upon. The sectionin Cap. 199 dealing with buildings to be erected upon street lines issection 19. Under that section every building must either abut upon thestreet or have the space between the building and the street reserved forthe use of that building. Its purpose is to see that every building has astreet to which it should have access. It is a provision of the Legislatureas to what a building should conform to when it has only one street line.In the present case, however, the premises has two road frontages, andthere is no prohibition against building beyond the line of one streetas long as the line of the other street is preserved. Further, the propertyis so big that it is possible for the defendant to open up new streets toserve buddings which may be erected on the land.
The piece of land in question must be valued according to the valueof the rest of the land—Government Agent, Western Province v. Arch-bishop It is the value of the land, with all its potentialities and withall the actual use of it by the person who holds it, that is to be consideredin assessing the compensation. See Browne and Allan on The haw ofCompensation (2nd ed.), p. 97.
Even assuming that the owner cannot build on the land within thestreet line it was still open to him to use it as part of a courtyard or gardenattached to a building. The whole block of a land- comprising the houseand garden has to be valued as a single unit.
T
1 {1913) 16 N. L. R. 395.
J72 HOWARD C.J.—Letchuman Chettiar and Municipal Council, Colombo.
E. F. N. Gr'atiaen (with him D. W. Fernando and S. J. Kadirgamar),for the plaintiff, respondent.—A tribunal assessing compensation maytake into account not only the present purpose to which the land isapplied' but also any other more beneficial purpose to which it mightwithin a reasonable period be applied—Halsbury’s Laws of England (2nded.), Vol. 6, p. 45. For the present the piece of land in question is part ofa block of 12 acres of merely bare temple land. With .regard to itspotential use as a building site, on a proper reading of section 19 and rule 2of the Schedule in Chapter 199, the whole area of the site cannot proceedbeyond the line of the street. Any proposed plan taking in the strip ofland in question for use as a courtyard would not have been passed.It has not been established by evidence that any building scheme alongVajira road would have been passed by the public authority or wouldhave been feasible. An improvement scheme which an owner has noright to carry out is too speculative to be treated as a factor which willinfluence the market value of a land—Newnham v. Fernando et al.'The right view of the effect of the laying down of a street line was takenin Chairman, Municipal .Council, Colombo v. Fonseka et al." and Newnhamv. Gomis‘. In Government Agent, Western Province v. Archbishop (supra)no part of the property under consideration in that case was in any waysubject to restrictions. That is not the position in the present Case.
The judgment of the Privy Council in Raja Vyricherala NarayanaGajapatiraju v. The Revenue Divisional Officer, Vizagapatam * is helpfulto determine the amount of compensation to be awarded when land is”acquired.
H. V, Perera, K.C., in reply.—The case of Raja Vyricherala NarayanaGajapaiiraju v. The Revenue Divisional Officer, Vizagapatam (supra) canwell be cited in favour of the appellant. In view of the provision in theLand Acquisition Ordinance for payment of compensation the value of aland is not affected by the laying down of a street line.
Cur. adv. vult.
December 17, 1942. Howard GJ.—
I have had the advantage in this case of reading the judgments of bothmy brother Judges. In both of these judgments the facts are set out indetail. It is, therefore, only necessary for me to make reference to J.helaw that should be, applied. The general principle with regard to thevaluation of land compulsorily acquired by the Government was laiddown in Government Agent, Kandy v.- Marikar Saibo6. In this ' caseit was held' that the proper course is to 'find the market value as near asit can be ascertained of the entire land and then to estimate the value ofthe portion of land taken at that rate. This case was followed by. the-Court in Government Agent, JWestern Province v. Archbishop ° where thesame principle was followed. The test adopted in that case by theDistrict Judge of ascertaining, the market value of the particular portionof land acquired .regardless of the ‘ rest of the land was described byPereira J. as fallacious. I would also refer to the words of Lord Dunedinin Corrie v. McDermott7 that the value that has to be assessed is “ the
J1
' (1932) 1 C. L. W. 339* (1939) L. R. A. C. 302.
» (1937) 3$ N. L. R. 145.'5 6 S. C. D. 366.
3 (1933) 35 N. L. R. 119.• 16 N. L. R. 395.
’ (1914) A..C. 1056.
SOERTSZ J.—Letchuman Chettiar and Municipal Council, Colombo. 173
vahie to the old owner who parts with his property, not the value to thenew owner who takes it over ”. In this connection the question arisesas to any impairment in the value of the land by reason of restrictions,vide Stebbings case *, and no doubt, as was decided in Newnham v. Gomis *aiiy depreciation in value caused by the laying down of street lihesmay be taken into consideration. I agree, however, with my brotherSoertsz J’s interpretation of section 19 of the Housing and TownImprovement Ordinance and am of opinion that judgment should beentered for Rs. 28,242 in favour of the defendant. I also agree with theother members of the Court with regard to the order as to costs.
Soertsz J.—
This appeal raises the question of the correct method of assessing thevalue of a piece of land which the Municipal Council of Colombo hasacquired under the provisions of the Land Acquisition Ordinance, for thepurpose of widening an adjacent public street called and known asVajira road.
This piece of land is shown on the plan P 2 as the portion colouredpink—a ribbon varying in width between 28 and 32 feet, and 1,140 feetin length, and so comprising an area of 2 roods 37.20 perches. It lieson the extreme south of the premises bearing assessment Nos. 123 and 139,Bambalapitiya road, a property of 11 acres 1 rood and 12 perches in extent,and bounded on the west by another public street commonly known asthe Colombo-Galle road.
This comparatively large land is situated in a residential area of avery popular suburb of the City and, it is agreed that, regarded asa whole, it is susceptible of profitable development as a building estate.In these circumstances, it is with some surprise that one finds that allthat the Municipal Council is prepared to pay in respect of the soil of thisthree-quarter extent of land is the sum of five rupees, and that thissum is offered not as something justly due to the defendant, but as apurely gratuitous payment. To quote from the evidence given by theMunicipal Assessor: —
“ I would not say that five rupees, was offered for this land ; weoffered nothing for the land. • But as we had to pay something ,inpayment of the Transfer of Title (in real it y, of course, there is not inthese cases any deed of Transfer of Title) we offered five rupees.”
This extraordinary result is ascribed to a street line laid down as farback as in the year 1919 in conformity with a resolution passed in thatyear by the Municipal Council under the provisions of section 18 (4) ofOrdinance No. 19 of 1915, which was the Ordinance then in force, definingthe northern limit of Vajira road, at that time known as 11th lane,Bambalapitiya, in such a way as to take in the whole of the strip of landthat has been acquired.
It is contended that the effect, in law, of the laying down of this streetline, was to make it impossible for a building or any part of a building, tobe erected on the land within that line, and that, consequently; that pieceof land ceased to have any market- value at all, and had to lie steriletill such time as the Council should think fit to take it over as'a gift orrelease it from this deadly incubus.
1 L. B. 6 Q. B. 37* 35 N. L. R. 119
174 SOERTSZ J.—Letchuman Chettiar and Municipal Council, Colombo.
This view of the effect, in law, of the laying down of a street line issought to be supported by the judgments delivered by this Court in thecases of Newnham v. Gomis (supra) and Municipal Council v. Fonseka
In the earlier case, the only question submitted for consideration or,at any rate, as would appear from the judgment, the only questionconsidered was whether the laying down of a street line should be regard-ed as the first step in acquisition proceedings in a case in which the land •is subsequently acquired under the Land Acquisition Ordinance. Thatsubmission was made, in that case, with a view to contending that,if that were the case, any depreciation in value consequent on the layingdown of the street line should not be counted against the owner. ThisCourt rejected that contention. That question has not been raisedin this case, and there is no occasion for us to consider it. That judgmenthas, therefore, no bearing on the question now arising,, namely, whetherthe laying down of a street line necessarily renders the land within itsterile. In the second case referred to. above the question that ariseshere was considered incidentally. Koch J. said, in the course of hisjudgment.-
“ Mr. Keuneman, on • behalf of the Chairman, largely depends onthe effect of section 18 (1)(a) of the Housing Ordinance ….
The effect' of this provision, he argues, is to effectually prevent abuilding to-be erected within the street lines which have been validlylaid, and to render the space within those lines sterile and unbuildable.I think the argument is sound.”
It may well be that, in the circumstances of that case, such was theeffect of the laying down of the street line; but if that statement wasintended to be of universal application, I respectfully disagree. The effectof a street line would, in my opinion, depend on the facts of each case(see Corrie v. McDermott (supra) ).
It is, however, clear that the Council dbes not appear to have con-templated the good fortune that accrues to it from this interpretationof the law in the latter case, if it is regarded as an interpretation ofinvariable application, with complete equanimity. The MunicipalAssessor, who was the sole witness called by the Council in this case, haddeclared, in the course of his evidence in the case of Newnham v. Gomis(supra), that he considered this mode of assessment as “grossly unfair”,and in the course of his evidence in the present case he went on to say—“ This offer (that is the offer of five rupees) is liable to be misconstruedbecause of the fact that the land is within sanctioned street lines.We try to be as generous as possible with people whose lands are.affected and, although the land had no market value, we gave Rs. 1,000odd for the trees and plants on the land. Our policy is to try to be asgenerous as possible, consistent with our legal obligations as a PublicAuthority.”
This offer of a “ thousand rupees odd ” for a land which, in his view,is worth nothing at all, is not the only instance of unscientific assessmentthat has resulted, in this case, from this attempt on the part of the Assessorto reconcile reason with emotion. We find that he has awarded Rs. 2,800
> 38 N. L. B. 145.
SOERTSZ J.—Letchuman Chettiar and Municipal Council, Colombo. 175
“ on account of a certain income the temple derives from stalls ” whichused to be built every other year on this strip of land, during the festivalseason. I fail to see how this award can be justified, for, the fundamental• premise of the Assessor’s case is that once the street line was laid down—and that happened in 1919—no stalls could have been put up on thisland. That is not alL The Assessor awards Rs. 6,840 on account ofcompensation for what he vividly describes as “ a very old and dilapidatedwall which will fall down at the first gust of wind ”, and which, he asserts,is not worth anything more than Rs. 4,456 ; a further sum of Rs. 2,75Pis awarded as compensation for three inconsiderable tenements thatstood on this piece of land. These sums, Rs. 5 ; Rs. 1,008.50 ; Rs. 2,800 ;Rs. 6,840 ; Rs. 2,750 added together yield the total Rs. 13,353.50.The Assessor then adds ten per cent, to this total sum less the Rs. 2,800given as income from stalls, that is to say he adds fts. 1,055.35 to theRs. 13,353.50, in view of the compulsory nature of the acquisition. But stilldoubtful of the adequacy of his generosity, and in pursuit of “ a roundfigure ”, he throws in Rs. 91.15 and offers the defendant Rs. 14,500.
It is obvious that this is an unsatisfactory method of assessment. It iswhimsical.
The defendant refused to accept the amount offered, and when thequestion was referred to Court, he filed answer and claimedRs. 56, 687.35 on the basis that the land acquired was marketable buildingland at the date of the acquisition. In the alternative he averred that,if it is found that it is not such land, the true amount of compensationdue to him was not Rs. 14,500 but Rs. 21,899.85.
After trial, the learned District Judge upheld the plaintiff’s assessment.The Assessors, acting in an unusual manner, and not as' required bysection 24 of the Land Acquisition Ordinance, delivered separate judg-ments. One of them agreed with the trial Judge ; the other held thatthe defendant was entitled to Rs. 47,8il.50.
If I may say so with due deference, the judgment of the trial Judgeaffords us hardly any assistance. It is a reproduction of the law that theAssessor was allowed to lay down in the course of his evidence.
The appeal from the judgment came up, in the first instance, beforemy brother Keuneman and myself but, as we were unable to agree on theprinciple on which assessment should be made in this case, it becamenecessary for us to act under section 38 of the. Courts Ordinance and, there-upon, My Lord the Chief Justice associated himself with us.
I have had the privilege of reading the judgment prepared by mybrother Keuneman and I find that we are agreed that the value or, Ishould say, the absence of value put upon the soil of the portion of theland acquired cannot be justified in any way at all.
But, we take different views in regard to what the correct methodshould be for assessing that value. My brother is of opinion that thisis land on which buildings cannot be erected at all and that “ a prospectivepurchaser would not be willing to give the same value for the strip inquestion as he would for land on which buildings can be erected ”. Inthis view of the matter, he has examined the evidence of Marikar, thewitness called by the defendant and, upon that evidence, he has heldthat this strip of land “ could be utilized for providing courtyards in front44/16
176 SOERTSZ J.—Letchuman Chettiar and Municipal Council, Colombo.
of the cottages (that is the hypothetical cottages shown in the schemeproposed by the witness) until the time of the acquisition by the Council ”,and calculating upon the basis of the difference in rent value between acottage with a courtyard and one without such an appurtenance,' andmaking a deduction on account of rates and repairs, and capitalizing theresulting sum at 15 years’ purchase, he has arrived at the figure Rs. 10,800.To this he has added Rs. 6,880 as compensation for the wall, arid 10per cent, on account of the compulsory nature of the acquisition and hasawarded Rs. 19,360 to the defendant.
For my part, I am unable to take the view that, in the circumstancesof this case, the land acquired is land on which buildings cannot be erected.Alternatively, I am of opinion that even if the view I have just indicatedis erroneous, nevertheless, in the circumstances of this case, this stripof land can be so incorporated in a scheme of building blocks as to con-stitute and serve as appurtenances to the buildings erected on thoseblocks and that, for that reason, the land acquired must be assessed withthe rest of the land as land suitable for'building, subject to such restrictionsas really exist.
In land acquisition proceedings, the correct mode of assessment is, Iagree, that laid down in the case of Government Agent, Kandy v.Saibo ‘ and followed in Government Agent, Western Province v. Arch-bishop *, namely, “ to find the value- of the entire land and then to estimatethe value of the portion taken at that rate ”. The value that has to beassessed is in the words of Lord Dunedin in Carrie v. McDermott (supra)
“ the value to the old owner who parts with his property, not the valueto the new owner who takes it over”. But, of course, in applying thesetests it is a necessary point of inquiry how far restrictions affect thevalue.
Taking this mode of approach, I cannot see my way to interpret section19 of the Housing and Town Improvement Ordinance in the mannersuggested by my brother Keuneman. In my view, the purpose of section19 is to ensure that every building has easy access to a street of certaindimensions and if anyone erecting a building has two streets adjacentto his building block, it is open to him to erect his building in relationto one of these streets and, in that event, there is nothing to prevent himfrom erecting his building to the extreme limit of his land on the sideof the Other street, going beyond any street line, that has been laiddown on that side. The only way of escape to the Public Authorityis to forestall him by compulsory acquisition of the piece of landbelonging, to him that lies within the street line on the usual termsof acquisition. Moreover, in a case like the present case, where thedefendant, besides having two adjacent streets, one on the west, and theother on the south of his land, has a land some twelve acres in extent,it is open to him,' to construct suitable streets in conformity with therequirements of the Ordinance to serve buildings erected on the land,and, in that case too, he may build right up to the extreme southernand western limits of his land, ignoring any street lines, unless the PublicAuthority concerned acquires the land involved, for despite the streetlines the land continues to be -his till it is acquired.
1 6 S. C. D. 36.116 N. L. R. 303.
SOERTSZ J.—Letchuman Chettiar and Municipal Council, Colombo. 177
Coming next to the matter of restrictions, the only definite prohibitionagainst an owner in the position of the present defendant is that imposedby section 108 of the Housing and Town Improvement Ordinance, whichsays that,—
“ no person shall erect any masonry or boundary wall or gatewaywithin the street lines of any street for which street lines have been laiddown.”
This is the only express statutory restriction, and the only restrictionthat has to be taken into account in assessing the value of the land in acase like this.
I do not think that an inference that an owner cf a land is, in every case,prohibited from building beyond a street line laid down on his land canfairly be drawn from the existence of the restriction just mentioned orfrom the statement in the latter part of section 19 (4) that,—
“where application is made to re-erect any building which projectsbeyond any street line so defined or to re-erect any part thereof whichso projects, the Chairman may require that such building shall beset back to the street line.”
I cannot understand how, with these facts as the premises, the conclusioncould be said to be that “ therefore, the Chairman may require that abuilding shall not be erected to project beyond a street line in every caseIt is said that this view of section 19 (4) and of section 108 leads to ananomalous state of things. I do not agree. But if it does, it is for the-Legislature to intervene. We must interpret the law as it is, and in thecase of an enactment such as this which imposes restraints and restrictions,we must interpret the words employed by the Legislature as favourablyto the citizen as can reasonably be done. It is possible that in view of theinterpretation given in the earlier cases I have referred to of section 18 (4)of the old Ordinance, the Legislature was content to frame the presentsection 19 in this way, or more probably, the Legislature failed to con-template and provide for a case like this where there are two adjacentstreets in existence and the possibility of other streets being constructed.But this is speculation. I do, however, concede that where there is onlyone street serving a land and the land is not of a size or nature to lenditself to the construction by the owner of another suitable street to serveit, the owner must build either upon the line of the existing street or musthave all the land between at least one face of his building and the streetreserved for the use of the building. In such a case there is, in effect,a prohibition against building beyond the street line.
In this view of the matter I hold that but for the acquisition thedefendant would have been entitled to build on the land acquired if he—
divided and disposed of his land in such a manner as to relate all
buildings that may be erected upon it to the existing street' onthe west of the land or,
constructed streets of his own to serve buildings that may be erected
on the southern side of his land, that is to say, the side onwhich the street line in question was laid down.
But, in view of the fact that on the western limit of this land, thereare buildings in existence to-day abutting on the Colombo-Galle road,which would have to be demolished in order to give direct access from the
178 SOERTSZ J.—Letchuman Chettiar and Municipal Council, Colombo.
road on that side to buildings that may be erected on this land, and alsoin view of the fact that if buildings that may be erected on the southernside of this land—that is on the side of the acquisition—are going to beerected in such a way as to go beyond the street line, the defendantwould have to use some other part of his land in order to construct aroad to serve those buildings, I do not propose to assess the value of theland acquired as land on which buildings could have been erected despitethe street line, because there is not sufficient material before us for suchan assessment to be made.
But, as I have already observed, there is an alternative view.Assuming that, in law, the owner could not, once the street line had beenlaid down, put up buildings on the land within the line, or assuming thateven if he could, it would not be economical for him so to build for thereason that he would either, have to demolish buildings or to constructother streets, it was still open to him to reserve the portion of his landwithin the street line as part of the courtyard or garden attached to hisbuilding. In this city, particularly in areas like that in which thisland is situated', there are hundreds of houses and bungalows with suchcourtyards and gardens attached to them, and it is indisputable that theipore such open land there is attached to a building, the more valuableare the premises. Such a piece of land is as much and as valuable apart of the premises as the part on.which the building itself stands, and• so far. as the soil is concerned, it is due to be assessed in the same way,subject to any statutory restrictions or to any defects inherent in the landitself affecting its value. '
In my view, it, would be fallacious in assessing the value of a buildingblock to treat the portion of land oh which one intends one’s buildingsto stand as more valuable than the rest of the block which is going to beone’s garden or courtyard. The whole block must be valued as a singleunit. That, at any rate is, I believe, the way in which purchasers valuebuilding blocks they desire to acquire.
What then are the restrictions and drawbacks in this case ? Itis said -that the value of this land is affected by the presence, of the street. line which is1 a warning that the land within it may sooner or later beacquired. I do not, however, regard that fact by itself as affecting thevalue of the land for, in my view, upon the acquisition, the owner is dueto be fully compensated. The warning will, of. course, affect the valueof the land if it is a warning that it is liable to be acquired without anycompensation being paid in respect of the soil, and that is the questionthat is begged by the Municipal Assessor from the beginning to the endof his assessment.
In my view, upon a proper interpretation of the law, there is no suchwarning necessarily implied by the laying down of a street line. Theonly restriction that, in this case, affects the value of this land is thatimposed by section 108 of the Ordinance already referred to, but I donot Consider'that that restriction affects the value substantially. Thereare_so many efficient substitutes for masonry boundary walls and gates.But, I suppose that some deduction may reasonably be claimed on thisaccount, Thepe is another matter referred to in the evidence of theAssessor as affecting the value of this land, in fact, namely, that there is aHindu Temple on it, and a Buddhist Temple in its immediate vicinity.
KEUNEMAN J.—Letchuman Chettiar and Municipal Council, Colombo. 179
It is said,, to use the Assessor’s words “ there are daily disturbances fromthe temples ”, meaning that the tom-tomming and bell-ringing thattake place every day and, in an intensive manner, on festival days, willnot attract the better class of building investors.
This is not an unreasonable objection and I think that a deductionshould be made on that account too. Both these deductions must, inthe nature of things, be largely conjectural, and it would not, therefore,serve any useful purpose to remit the case for further investigation onthese point. We are, I think, in a position to make a rough estimateas to what those deductions should be.
Both sides were agreed for the purpose of this case, that the bestbuilding land in this neighbourhood, free from restrictions, defects anddrawbacks would be worth Rs. 50,000 an acre. I think it would be rea-sonable to deduct Rs. 10,000 per acre owing to the presence of the twotemples and the consequent depreciation in the value of the land. A fur-ther deduction of Rs. 5,000 an acre owing to the restriction imposedby section 108 would -be more than adequate. These deductions reducethe value of the land acquired to Rs. 35,000 per acre. The extent acquiredis 2 roods 37.20 perches, and its value, ignoring decimal points, isRs. 25,675. I would add ten per cent, for compulsory acquisition, andthat yields the total Rs. 28,242, which, on the evidence in the case, Iconsider a fair value for the land acquired and everything on it.
I would, therefore, enter judgment for this amount in favour of thedefendant. In regard to costs, I agree to make the order proposed bymy brother Keuneman, although I should have been disposed' to givethe defendant half the taxed costs in the Court below for the reason that,on my assessment, he gets nearly half the amount he claimed. I wouldtherefore, set aside the judgment of the District Judge and direct .thatjudgment be entered in the manner I have stated.
Keuneman J.—
This is a proceeding for the compulsory acquisition of land underChapter 203. The land acquired is lot 1 in P. P. No. A1197 of 2 roods'37.20 perches, forming part of premises bearing assessment Nos. 123 and139,. Bambalapitiya road. This strip of land was acquired for wideningVajira road. The plaintiff tendered compensation of Rs. 14,500, butthis was not accepted. In his answer the defendant claimed the sum ofRs. 51,788.50 as compensation.
The compensation tendered by the plaintiff was made up as follows : —
Rs. Cj,. Compensation for loss of income from certain tene-
ments demolished2,700 0
Value of 1,140 feet of boundary wall .'.6,840 0
Value of trees..1,008 50
Compensation offered for sterile land..5.0
10 per cent, for compulsory acquisition’ 1,055 35,
Compensation allowed in respect of temporary booths ..2,600 0
Total 14,208 85
The plaintiff offered the round sum of Rs. 14,500.
180 KEUNEMAN J.—Letchuman Chettiar and Municipal Council, Colombo.
It has been established in this case that the land acquired comes withinstreet lines sanctioned by a resolution of Council on August 8, 1919, andsubsequently approved by Council (vide Government Gazette No. 7,053 ofSeptember 19, 1919—P4).
The contention of the plaintiff is that in consequence of the Housingand Town Improvements Ordinance (Chapter 199), the portion acquiredcould not be built upon before the acquisition, and that owing to therestriction on the user of this portion it was of no value to any prospectivepurchaser. The compensation, therefore, was only given in respect ofcertain tenements demolished on this land, of the value of trees and awall standing thereon, and of the loss of income from temporary boothserected on the occasion of an annual festival. It is to be noted that themain premises is the site of a Hindu temple.
For the defendant, it was argued that as the whole premises has tworoad.frontages, viz., the line of the Galle road, and the line laid down forVajira road, there was no prohibition contained in section 19 of theHousing and Town Improvements Ordinance against building beyondthe street line of Vajira road', as long as the line of the Galle road waspreserved intact.
The argument is based on the construction placed by appellant’s Counselupon the words of section 19 of Chapter 199 (Housing and Town Improve-ments Ordinance). The material words relied upon are as follows : —
“ Every building erected or re-erected ….
(a) shall be erected either upon the line of an existing street notless than twenty feet in width, or upon the line of a new' street defined or approved by the Chairman or otherwiseauthorised under this or any other Ordinance ”.
Counsel argued that the section was not drafted in the form of a prohibi-tion against building otherwise than on the line pf an existing street orof a new street. He contended that there were two street “ lines ” in thiscase, the “ line ” of Galle road, and the “ line ” of Vajira road, and urgedthat, as long as the appellant had for his land the line of Galle road, therewas no prohibition against his building beyond the street line of Vajiraroad. Counsel emphasized the fact that the word “ street ” was usedin the singular, and stated that as long as any street line existed in respectof the appellant’s land, the Chairman could not refuse permission tobuild on any other portion of the appellant’s land, even though thatportion fell within sanctioned street lines.
Appellant’s Counsel admitted that this interpretation would lead to acurious anomaly. Under section 19 (4), where the street line cuts througha building, if the owner applies for sanction to re-erect the building, hecan be required by the Chairman to set back the building to the street•line, subject to the payment of compensation. At the same time theChairman was powerless to prevent any new building being erected withinthe sanctioned street' line. Counsel contended that this latter elementhad been overlooked. I do not believe that such an important mattercould have been forgotten, and I think it is incumbent upon .us to look"for an interpretation of the section that does not lead to so startling ananomaly. In -my opinion such an interpretation can be obtained fromthe words of the section itself.
KEUNEMAN J.—Letchuman Chettiar and Municipal Council, Colombo. 181
I do not think that when the Legislature used the words the “ line ofthe street” it had in contemplation the names or labels which for thepurpose of convenience have been applied to the various streets ip thecity. All the streets even in the city do not run straight, they turnsometimes at an angle, and in the country where the land is hilly even atan acute angle. It is not an unknown experience for a land to be boundedon two sides by a street, which bears the same name. In my opinionthe “ line of the street ” here has relationship not to the streets asseparately named, but has relationship to the land, and although theland may have in popular language two or more road frontages, it mayhave only one line of street, which need not necessarily be a straight line.
I think the words of seciton 19 (1) (b) have a special significance in thisconnection, viz., “ shall either abut upon the street or have all the landbetween at least one face of such buildings and the street reserved forthe use of the building ”. No question arises when the building abutsupon the street, at whatever point of the compass the street may lie.But the later words, in my opinion, contemplate the possibility of theline of the street being on more than one “ face ” of the building. Wherethat state of things exists, all the land between one “ face ” of the buildingonly and the street line must be reserved for the use of the building, whilethe land between the other faces of the building and the street neednot be so reserved.
I think these words throw a light on the meaning of “ street ” and “ lineof the street ”, and that the word “ street ” has no relationship to the namesapplied to the various streets, and that the line of the street has relation-ship only to the particular land or building, and that the line of the streetmay be on more than one side of the land or building.
I may here refer to sections 20 and 21. Section 20 requires that anyperson wishing to lay out a new street should give notice to the Chairmanof his intention. Section 21 (b) empowers the Chairman to give writtendirections with regard to “ the line of the new street, so as to ensurethat it forms a continuous street with any existing street or approved newstreet specified by the Chairman ”.
Now it is common experience that these “ new streets ” run at rightangles to the existing street, but still they are to be regarded as continuouswith the existing street.
I am therefore of opinion that the construction of section 19 suggestedby appellant’s Counsel cannot be accepted,, and that the Chairman hasunder section 5 neither the power nor the discretion to allow any buildinginside a sanctioned street line. Although the portion within the streetline remains the property of the owner, the street lines define the bound-aries of the street, and all erections and re-erections of buildings must be onthe line of the street as so defined.
Further, from the facts, it is clear that the strip of land in questiondoes not extend to the line -of the Galle road. There is a portion of landintervening, which had been previously acquired by the Municipality.Again, the whole line of the Galle road, immediately adjacent to thestrip in question, is now occupied by a number of boutiques, and it has
182 KEUNEMAN J.—Letchuman Chcttiar and 'Municipal Council, Colombo.
not been shown that it would be an economical proceeding to demolishthese boutiques, so as to provide the strip in question with a value asbuilding land.
I do not think that the decision in The Government Agent, W. P. v.Archbishop1 compels me to value the strip acquired on a basis pro-portionate to the value per acre of the rest of the defendant’s land. I do notthink that case went further than to decide that where the whole land isof the same character, the proper course is to find the market value asnear as it can be ascertained, and then to estimate the value of theportion acquired at that rate. It would, of course, not be correct to valuethe strip as- a separate entity, which on account of its shape and sizemay be of no value to a prospective purchaser. Pereira J. himselfdrew attention to an important qualification of the rule. “ It may bethat a portion of a large extent of land may be so situated, that its realvalue may not be a proportionate share of the value of the entire land ”.If' the situation or physical condition of the land can make this difference,
I think it is equally true that where the strip in question has. legal restric-tions placed upon it, which- do not apply to the rest of the land, the realvalue of the strip will not be a proportionate value of the rate per acre.of the rest of the land. No doubt it must be borne in mind that the stripin question in fact forms part of a large land, but the physical, infirmitiesor legal restrictions attaching to the strip in question must be taken intoaccount in determining the value of the strip.
This case must accordingly be decided on the'basis that there was aprohibition against erecting buildings on the strip in question. SeeUjagar Lai v.The Secretary of State for India in Council2.
Counsel for the appellant, however, argued that in spite of the prohibi-tion against building on this strip, it could still be regarded of value as abuilding site. He pointed out the rule which required that in the case ofdomestic buildings, factories, and workshops, the total area covered byalKthe buildings should not .exceed two-thirds of the' total area of thesite (Rule 2 in the Schedule), and argued that the portion which couldnot be built upon may be allocated as the portion left free of buildings.
I do not think this argument can be accepted. Under rule 2 of theSchedule, which deals with the reservation of a proportion of the site,the’ one-third portion not covered with buildings except of the kindallowed “shall belong exclusively to the domestic building, factory, orworkshop, and shall be retained as part and parcel thereof”. Wherestreet lines have been laid down, there is always the prospect of theportion within the street lines being acquired for the widening of thestreet, and it would not then be reasonable to expect that the owner willbe in a position to retain that portion as part and parcel of his building.Besides, I do not think the evidence called in the case supports the conten-tion of appellant’s Counsel. The Municipal Assessor, who has had avery wide experience, gave it as his opinion that the value would beseriously affected, in fact would be reduced to nothing at all. No witnessfor the defence contested the proposition that the value would be dimi-nished, and I am of opinion that the prospective purchaser would not be116 Ar. L. R. 395.* L. R. 33 Allahabad 733.
KEUNEMAN J.—Letchuman Chettiar and Municipal Council, Colombo. 183
willing to give the same value for this strip in question as he would forland on which by law buildings can be ejected. It is reasonable toconclude that the restriction on the user must be reflected in the value.
The defendant, however, led evidence to show that there were manyother uses to which the strip of land could be put, other than its use forerecting buildings. I do not think I need deal with the argument thatit would be used for the planting of fruits, vegetables and flowers, for thereason that, even on this basis, the defendant has not succeeded in showingthat he would be entitled to any increase in the compensation to beawarded.y
There is, however, one manner of user of the premises which deservesmore serious consideration. Mr. Marikar, Licensed Surveyor, called for thedefence, produced a sketch plan in which by using the street line sanc-tioned for Vajira road, twenty cottages could be erected on the landimmediately adjacent to the strip in question. This witness contendedthat the strip in question could be utilized for the purpose of providingcourtyards in front of the cottages, until the time of acquisition by theCouncil. He said that the cottages could each be rented with thecompounds for Rs. 50 to Rs. 70 per month, and that if the compoundswere acquired, the rent would be diminished by Rs. 7.50 for each cottage.Working on this potential rent of Rs. 7.50 per month in respect of eachcottage, or Rs. 150 per month for the whole strip, he arrived at the figureof Rs. 19,237.50 as being the value of the strip in question as bare land.
The Municipal Assessor, who was cross-examined on this point, deniedthat the cottages shown by .Mr. Marikar could command the rent ofRs. 50 .to Rs. 70 a month, and gave it, as his opinion, that not more thanRs. 15 to Rs. 20 each could be obtained for them per month. He added thatpeople who occupy that type of house do not worry about a courtyard,and stated that the removal of the courtyard would result not in adepreciation, but in an appreciation of the rent. I am unable to followthis last opinion, and the Municipal Assessor has not fortified his opinionby giving reasons or providing instances. I think it is more reasonableto accept the opinion of Mr. Marikar, that a tenant wiil pay an enhancedrent for a cottage with a little courtyard in front, rather than for onewhich- abuts directly on the street. But the question of value has still,to be determined. In view of the unfavourable' opinion formed by theDistrict Judge of Mr. Marikar’s evidence, I am reluctant to accept hisestimated rent of Rs. 50 to Rs. 70 for the buildings with courtyards, and. hisestimate of the diminution in rent of Rs. 7.50 for each cottage when thecourtyards are removed. At. the same time I am not able to acceptthe opinion of the Municipal Assessor, that the ''removal of the courtyardswill not result in a depreciation of the rent and in fact will bring; aboutan appreciation of the rent. I do not think there is anything in theevidence which can enable me to accept that opinion. The evidenceis not very satisfactory as to the actual amount of depreciation in therent, by the removal of the courtyards. For the purposes of this case,however, I do not think any useful purpose will be served by sending thecase back for the recording of further evidence on the point, for, in myopinion, it will be safe to fix the figure of Rs. 4 as the amount of deprecia-tion in the case of each cottage, caused by the removal of the courtyard
184
HE ARNE J.—Abeytunge and Siyadoris.
This would mean an annual income of Rs. 48 per cottage, or Rs. 960 inrespect of all the cottages. From this, accepting Mr. Marikar’s basis,a quarter, i.e., Rs. 240, must be deducted in respect of rates and repairs,leaving a balance of Rs. 720. Mr. Marikar capitalized this sum at15 years’ purchase. I do not find in this case any evidence which tendsto show that Mr. Marikar is wrong. Accepting that basis, the valueof the strip to the prospective purchaser would be Rs. 10,800. It isobvious that the defendant on this basis cannot claim for the loss of incomefrom the stalls or for the buildings and trees on the strip. But theitem of Rs. 6,800 for the boundary wall which could have been utilizedunder the scheme must be added, bringing the grand total to Rs. 17,600.Adding 10 per cent, for compulsory purchase, the total value would beRs. 19,360. I think the defendant is entitled to receive this amount.I enter judgment for that amount.
The appellant is entitled to the costs of this appeal. As regards costsin the District Court, the appellant has succeeded in obtaining a sumappreciably in excess of that awarded by the Chairman. At the sametime, the appellant claimed in his answer a sum of Rs. 51,788.50, whichis an extravagant claim, and cannot be supported on any basis spokento in this case. In the circumstances the appellant will be entitled toreceive 1/3 of his taxed costs in the District Court.
Judgment varied.