009-NLR-NLR-V-74-PETER-FERNANDO-Appellant-and-D.-R.-UMAGILIYA-Acquiring-Officer-Respondent.pdf
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SIRTMANE, J.—Fernando v. Umagiliya
1970Present. :Sirimane, J., and Wijayafilake, J.
PETER FERNANDO, Appellant, and D. R. UMAOTLIYA (AcquiringOfficer), Respondent-
S. C. 2169—Land Acquisition Board of ReviewAppeal No. BR 2766(CL 690
Acquisition of land by Crown—Quantum of compensation payable—Relevancy of pricesof adjoining lands—Land Acquisition Act {Cap. 460), ss. 7, 45, 46, 4S (e).
In determining under section 46 of tho Land Acquisition Act tho compensationto bo paid to a person for tho acquisition of a land, tho provisions of section4S (e) of tho Act do not debar consideration being given to tho prices fotchedby sales of adjoining lands shortly boforo tho notieo under section 7 of tho Act,unless thoro is satisfactory ovidonco that those prices thcmselvos wero high as arosult of tho proposed acquisition.
_/.PPEAL under the Land Acquisition Act.
Walter Jayaivardena, Q.C., with Mark Fernando, for the appellant.G. P. 8. Silva, Crown Counsel, for the respondent-.
Cur. ads. vult.
September 2, 1970. Sirimane, J.—
• The Appellant was the owner of an allotment of land 2 Roods 3C S4Perches in extent which was acquired by the Crown under the LandAcquisition Act (Cap. 460} hereinafter called the Act. He was awardedcompensation at tho rate of Rs. 445 per perch. On an appeal to theBoard of Review this sum was increased to Rs. 550 per perch. At thehearing before the Board the Appellant relied on the prices realised bysales of certain lots immediately adjoining the land acquired. Theselots are shown in Plan A1 and tho particulars of the sales of those lotsare set out in the Schedule A5.
In this Schedule there are five items, four of which relate to sales inJanuary, April, and August 1966. They show that the. prices at that timevaried from Rs. 1,755 to Rs. 1,000 per pcrch.;
The Board refused to take into consideration these prices, in assessingthe compensation payable to the Appellant for his land.
Tho submissions made before the Board show, that the Crown reliedon Section 4S (e) of the Act to prevent any consideration of tho pricesfetched at these sales, and it is on that section that the Crown relied attho argument in appeal.
SIRIMANE, J.—Fernando v. Vmagiliya
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Tile Appellant contends that there is an error in law in construing thesection. Section 4S (e) reads as follows :
“In determining under Section -1G the compensation to be paid toany person for the acquisition of a land or scrivUide, none of thefollowing matters shall be taken into consideration :—
Any increase which is likely to occur in the market value of the landby reason of the use to which it will be put after its acquisitionunder this Act.”
There must, be, in my view, a direct or obvious connection betweenthe use to which the land will be put after acquisition, and the enhancedprices.
The quantum of compensation p.Tyablc to a person for the acquisitionof a land in which he is interested, must be based on the market value ofthe land. (See Section 46 of the Act.)
Section 45 provides that the market value of a land in respect of whicha notice under Section 7 of the Act Jins been published is the amountwhich the land might bo expected to have realised if sold ):>3' a willingseller in the open market as a separate entity on the date of the publicationof that not'.cc.
In this instance the notice under Section 7 was published on 27.10.66.Four of the sales in A5 were shortly before this date. The Board hasrefused to take into consideration the. values reflected in these sales onthe ground that “ these sales were all after January 1966”. They wenton to state that the prices fetched at these sales were the result of thisacquisition.
The land in question, though low-lying and marshy, is stuated inthe city of Colombo in its scventh postal zone, where the demand for landis so great that prices keep on rising practically every month, andparticularly so after 1065. The evidence of the Crown Valuer was that“ from 1963 to 1966 October a great deal of change had taken place inthe value of land This increase in the prices of land in that area hadnothing to do that with an acquisition. The purpose of this acquisitionwas to hand over the land to a housing society, for an upper middle classhousing scheme. It is not as if buyers of land in the vicinity mighthave expected some new amenities, such as the supply of electricityor water service being made available to this tract of land as a resultof the proposed acquisition. These amenities were alwa3's available inthat area.
Though the Valuer called by the Appellant had at one stage of hisevidence in cross-examination agreed that the acquisition has influencedthe value of adjoining lands, yet he also stated in the course of that sameevidence that the increase in prices as a result of the proposed acquisitionwould be " very negligible ”,
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Banasinghe v. Wijendra
The purchasers who had bought lots in 19G6 beforo the date of thonotico under Section 7 did not say that the acquisition had in any wayinfluenced tho price thevpaid, and it is difficult to think that it did.
In the circumstances of this ease, we think that the Board was in errorwhen they held that the terms of Section -IS (e) prevented them fromgiving any consideration, at all to the prices fetched by sales immediatelybefore the notice under Section 7 of the Act. These prices, in ourview, should be taken into account by the Board in assessing thocompensation payable to the Appellant, and we make order accordingly.
The Appellant is entitled to costs of appeal.
Wijayatilake, J.—I agree.
Appeal allovsed.