PERERA, Appellant, and DINGIRI MENIKA and others, Respondents

031-NLR-NLR-V-63-PERERA-Appellant-and-DINGIRI-MENIKA-and-others-Respondents.pdf


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BASNATAES. C-J.—Pererav. Dingiri J
1960Present: Basnayahe, C. J., and Sansoffl* J.PERERA, Appellant, and DINGIRI M K.N l K A and others, Respondents
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S.C. 75159—D. G. Kandy, 5087jL
Land Acquisition Act, No. 9 of 1959—Reference to Court under Section 10 (1) (b)—Incapacity of Court to decide matters other than those referred to it—Sections7, 9, 11, 12—Civil Procedure Code, s. 18.
Where the acquiring officer at the conclusion of an inquiry held under section9 of the Land Acquisition Act, Wo. 9 of 1950, refers the claim or dispute for thedetermination of a Court, the Court has no power to determine claims or disputesnot referred to it for its decision. The Court is not entitled to employ theprovisions of Section 18 of the Civil Procedure Code to qdd parties who makeclaims not made before the acquiring officer or raise disputes not referred toit by him.
Appeal from an order of the District Court, Kandy.
H. W. Jayewardene, Q.G., with Vernon Jonklaas, S. Sharvanandaand L. C. Seneviratne, for 1st Defendant-Appellant.
No appearance for Plaintiff-Respondent.
September 1, 1960. Basnayake, C.J.—
This is an appeal by the 1st defendant in a reference to the DistrictCourt made on 27th March 1957 under section 10 (1) (6) of the LandAcquisition Act No. 9 of 1950. That provision empowers the acquiringofficer at the conclusion of an inquiry held under section 9 to refer theclaim or dispute for the determination of a competent Court havingjurisdiction over the place where the land which is to be acquired issituated. In his reference, which is in the form of a plaint, theacquiring officer stated—
** 2. That at the said inquiry dispute arose between thesaid defendants as regards their right, title or interest aforesaid, andit has become necessary under Sec. 10 (1) (6) of the said Act to refer,such dispute to this Court for determination.
“ 3. That the plaintiff does hereby refer the said dispute to thisCourt for determination and states for the information of Court the. particulars of the said dispute which are as follows ;—
The 1st defendant claims the entirety of the land.
The 2nd defendant claims Kajakariya Rights in respect of about
1 acres of the land and claims compensation in a sum which,if invested @ 3 % should bring an annual income sufficient toperform- the Rajahanya claimed.
'S^hxm
2J. N. B 19724—2,033 (10/61)
170
BASNAYAKFj, O.J.—rera v. Dingiri Menika
The 3rd. defendant claims Rajakariya flights in respect of an
extent of 3 roods 8 perches and claims l/3rd of the valuethereof as compensation. In addition he claims sole owner-ship of about 1£ acres.
The 4th, 5th & 6th defendants claim 2 acres of land jointly on
Deed No. 3459 dated 18/5/1878 attested by R. D. Bastian,
N.P.
The 7th defendant claims 5 lahas of land on Deed No. 11830
dated 17th February 1890 attested by J. A. Siriwardena, N.P.”
The 1st defendant in his answer disputed the claims of the 2nd, 3rd,4th, 5th, 6th and 7th defendants referred to in the reference. The 3rddefendant, the trustee of the Dalada Maligawa, filed an answer claimingRs. 15,000/- out of the compensation as being the value of the loss ofRajakariya Services to the Maligawa. The 4th, 6th and 7th defendantsfiled a joint answer in which they prayed—-
(а)that the 4th defendant be declared entitled to l/18th share of thecompensation awarded ;
(б)that the 6th and 7th defendants be each declared entitled to 1/12th
share of the compensation in respect of the land described inschedule “ A ” of the answer and l/4th share each of the com-pensation in respect of land described in schedule “ B ” thereof.
The 5th defendant died after the reference without filing an answerand on the application of the Government Agent his heirs were added asdefendants.
At the hearing on 19th March 1958, the 4th, 6th, 7th, 8th and 9thdefendants appeared and abandoned their contests and admitted thetitle of the 1st defendant. The 2nd, 3rd and 5tb defendants did notappear at the hearing. The Judge ordered decree nisi to be enteredagainst them.
On 26th March 1958 the Proctor for the 2nd and 3rd defendants movedthat the decree nisi entered against them be vacated as the defendantsdid not appear on the day fixed for the hearing owing to inadvertence onhis part.
On 28th May 1958 after the Court had entered decree nisi in respectof some of the absent defendants, eight of the respondents to this appealfiled a petition in which they claimed that they were jointly entitled to“ an undivided two-thirds share of the compensation in respect of theland ” and prayed that they be added as defendants to the proceedingsand that they be allowed to file their statements and that the Court doinquire into their claim ; and on 5th July 1958 the 9th respondent fileda petition claiming that she was entitled to compensation in respect of2/3 share of an extent of two acres of the land and prayed that she beadded as a defendant and that she be permitted to file a statement • ofclaim, and that an inquiry be held.
BABNAYAK K, OJ".—X*erera v. Dingiri Menika
171
On 20th May 1959 the application of the Government Agent for theaddition of the minor children of the deceased 5th defendant, the applica-tion of the Proctor for the 2nd and 3rd defendants, and the applicationsof the respondents to this appeal, were heard and allowed. The appellantdoes not complain against the orders in favour of the Government Agentand the 2nd and 3rd defendants. He has appealed against the orderthat the nine respondents to this appeal be added as defendants.
The learned District Judge has failed to give effect not only to therelevant provisions of the Land Acquisition Act; but also to the provisionsof Section 18 of the Civil Procedure Code which applies to proceedingsunder the Act by virtue of Section 12 thereof. The material portion ofthat section reads—
tf (1) The proceedings in a court on a reference made to it under
section 10 shall be subject to the procedure provided by the Civil
Procedure Code for civil suits.”
A reference under section 10 is made at the conclusion of an inquiryheld under section 9. An inquiry under that section is held into claimsmade in pursuance of a notice under section 7 directing every personinterested in the land which is to be acquired personally or by agent dulyauthorised in writing to appear before the acquiring officer on the dateand at a time and place specified therein after notifying in writing to theacquiring officer at least seven days before that date the nature of hisinterests in the land, the particulars of his claims for compensation, theamount of compensation and the details of the computation of suchamount. The claim that the acquiring officer is authorised to refer tothe Court for its decision is the claim made to him in pursuance of thenotice under section 7 and the dispute referred to in section 10 (1) (b)is any dispute that may have arisen between any claimants who havemade claims to him. The instrument of reference which the statute(s. 11) requires should be in the form of a plaint in a civil suit, makes itclear in the prayer wherein the Government Agent asks for a determinationof the dispute described therein. The jurisdiction of the Court under theAct is purely statutory and the Court has no power to determine claimsor disputes not referred to it for its decision. The claims made by therespondents were not before the Government Agent and have not beenreferred to the Court for its determination. It has therefore no juris-diction to decide them. Even section 18 of the Civil Procedure whichcan undoubtedly be resorted to in an appropriate case is of no avail inthe instant case because the presence of the respondents before the Courtis not necessary for deciding the dispute under reference. The learnedJudge quite properly exercised his powers under section 18 when he addedthe heirs of the deceased 5th defendant. That section enables theCourt to add any person as a defendant to an action where a personought to be joined or whose presence before the Court is necessary inorder to enable it effectually and completely to adjudicate upon andsettle the dispute or claim referred to the Court for its determination bythe Government Agent. It does not empower the Court to add parties
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BASNAYAKE, C.J.—Perera v. Dingiri Mentha
who make claims not made before the Government Agent or raise dis-putes not referred to it by him, because the presence of such personsbefore the Court is not necessary for determining the dispute referred bythe Government Agent to the Court for its determination.
Our view finds support in the decisions of this Court under the LandAcquisition Ordinance which was replaced by the Act. Though thelanguage of the relevant provisions of the Ordinance and that of therelevant provisions of the Act are not precisely the same, there is nosubstantial difference between them. In the case of Tempter v. Sene-viralne1 a bench of three Judges held that the Court has no power todecide matters other than those referred to it for its determination. Inthe case of the Assistant Government Agent, Kalutara v. Wijesekara2De Sampayo J. observed :
“ The Court’s jurisdiction is limited by the Ordinance ; it is eitherto make an award as to the amount of compensation where theclaimants and the Government Agent are disagreed on that point or todecide the question of title to the land where there is any dispute amongthe claimants or where all the parties interested have not appearedbefore the Government Agent. The proceedings are purely statutoryand do not, I think, admit of legal exceptions or dilatory pleas, as in anordinary action, where the case falls under the first head of inquiry.”
In this connexion the following observations of Withers J. in Tempter’scase are relevant—
“ According to clause 19 of Ordinance No. 2 of 1889, which governedthe procedure herein, no person can intervene in any action other thanas provided by clause 18 of Ordinance No. 2 of 1889. The interven-tion of the additional claimants could not possibly be necessary for theadjudication of the question raised between the Government Agentand the four claimants who had attended in pursuance of the notice.”
In the case of Government Agent, Sabaragamuwa v. Asirawatham et at.3where a land which was the subject of proceedings under the LandAcquisition Ordinance was transferred by the claimant while a referenceto the Court was pending, the vendee was added as a party. That decisionis consistent with the view we have taken, because the vendee’s presencewas necessary for deciding the matter of the reference.
We therefore set aside the order appealed from and send the case backto the lower Court for proceedings to be taken in due course.
The appellant is entitled to the costs of the appeal.
Sansont, J.—I agree.
Order set aside. *
} (1892) 2 C. L. Reports 70.* 1 C. W. R. 257.
* (1928) 29 N. £. R. 367.