028-NLR-NLR-V-59-S.-COOMARASWAMY-et-al.-Appellants-and-P.J.-HUDSON-Government-Agent-N.-P.-.pdf
PULLK, J.—Coomaraswamy i). Hudson
97
3957Present:JBasnayake, C.J., and Pulle, J.
S. COOMARASWAMY el al., Appellants, and P. J. HUDSON (Govern-' nient Agent, N. P.), Respondent
•t
S. G. 247-2IS—D. G. Jaffna, 6,852
Hand Acquisition Ordinance (Cap. 203)—Acquisition of contiguous allotments of land—Determination of compensation for severance and injurious affection—Claimsto compensation—Subsequent amendment not permissible—Sections G, 7, 12 (I),14, 21 (l) (c), 23, 32.-
. Where several contiguous allotments of land belonging to the same owner aresought to bo acquired by the Crown as a single unit-, a claim to compensationfor sevcrt-.no© and injurious affection under paragraphs (b) and (c) of section 2tof the I.nnd Acquisition Ordinance cannot be made in respect of any one of thoseallotments in its relation to the other allotments. In such a case, the date relo-vant to tho assessment of compensation is that on which tender is mnclorby theGovernment Agent, and the question of severance cannot be decided with re-ference only to tlio time of vesting of title in the Crown under section 12 (J) ofthe Ordinance, ns amended by tho band. Acquisition {Amendment) Ordinance,Mo. 51 of 1947.
According to sections 6, 14 and 23 of tho band Acquisition Ordinance (nowrepealed), a claim to compensation once made in response to a notice undersection 6 or section 14 is final and does not admit of any amendment thereafter.Nor does section 32 permit such a claim to be altered subsequently.
j^^-PPEALS from a judgment of the District Court, Jaffna.
II. V. Perera, Q.G., with G. Ranganathan, for the 1st defendant-appellant in Appeal No. 247 and for the 1st defendant-respondent inAppeal No. 24S.
K. Palasuntharam, for the 2nd and 3rd defendants-appellants inAppeal No. 24S and.for the 2nd and 3rd defendants-respondents inAppeal No. 247.
G. F. Jcignralne, Crown Counsel, with J. R. M. Perera, CrownCounsel, for tlic plaintiff-respondent in both appeals.
•Cur. adv. vult.
July 22, 1957. Pur.bE, J.—.
There are two appeals in this ease, one by the' 1st defendant and the■ other, by the 2nd and 3rd defendants. They arise out of proceedingstaken under the Land Acquisition Ordmance (Cap. 203) to acquire aproperty described as lot 1 in Preliminary Plan A 1578 dated 6th April,1949. ..To the south of lot 1 was a land also belonging to the 1st defendantand it is shown as lots^2 and 3. . These were acquired at the same timeas lot 1. To the north .of lot i is a land, belonging to the 2nd and 3rd
5—-—-lec >- r –
2-—— J. IT. B 70303- 1,503 (11/57)
SSTULLE, J.—Coomatasicaitiy v. ltuctson.
defendants. No portion of this land lias been acquired. Lot 1 is a rect-angular strip 20 feet wide and 345 feet in length of which the 1st defendantwas entitled to an undivided half share and the 2nd and 3rd defendantsto the remaining half. It is common ground that lot 1 served, by agree-ment among the defendants, as a means of access to the lands on cither .side of it. A certain result of the acquisition of lotd was that theowners of the land to the north of it lost the use of it as a roadway.
– Whether the 1st defendant could be said in any relevant sense to havelost 'the use of lot 1 as a means of access has been the subject of dispute' in view of the fact that lots 2 and 3 to the south and contiguous to lot 1were also acquired at the same time.
The market value of lot 1, namely, Us. 23,331 /- is no longer in disputealthough at one stage of the proceedings it was. The claim of the 1stdefendant is that in addition to the market value lie is entitled to a further;sum of Es. 16,500/- as damages sustained by reason of the acquisition oflot 1. This claim was entirely disallowed, first on the ground that lots 2and 3 having passed to the ownership of the Crown it could not be said thatthe acquisition of lot 1 resulted in damage on account of severance orinjurious affection under paragraphs (b) and (c) of section 21, and secondly,on the ground that the claim was Iparred by section 23, inasmuch as the 1st. defendant had omitted to make such a claim until he delivered an amendedstatement on 20th August, 1953, in answer to the libel of reference.
The 2nd and 3rd defendants in their first statement dated 18th October,1950, by way of answer to the libel of reference claimed a sum of Us. 7,000/-on account of the damage sustained by them owing to their land to thenorth of lot 1 being injuriously affected by the acquisition. By anamended statement delivered on the 20th August, 1953, these defendantsclaimed under this head Rs. 18,900. The learned District Judge estimatedthe damage.at jRs. 11,665/- but awarded only Its. 7,000/- on the groundthat a claim in excess of Rs. 7,000/- was barred by section 23.
Before dealing with the legal submissions on tho claims for damagesby tho three defendants it is necessary to set out certain dates and alsoto refer to the proceedings in D.C. Jaffna case No. 6,SS8 in which compen-sation was determined by court for lots 2 and 3 belonging exclusivelyto the 1st defendant. The tliree lots were dealt with together by onemandate and one notice under section 6 of the Land Acquisition Ordi-nance and the inquiries under section 7 were fixed for the same day,namely, the 22nd August, 1949. On this date the compensation tenderedfor lot 1 was Rs. 9,160/- and for lots 2 and 3 Rs. 72,491. On 16th March,1950,the Minister of Agriculture and Lands directed the Government Agentto take possession c>f the tliree lots, from which date the title theretobecame vested absolutely in the Crown by virtue of the provisions ofsection 12 (1) of the Ordinance, as amended by the Land Acquisition(Amendment) Ordinance, No. 51 of 1947.
The points taken by the ist defendant are that the learned DistrictJudge was wrong in holding [a) that by reason of the acquisition of lot 1he was not entitled to compensation for severance and injurious affectionunder paragraphs (6) and (c) of section 21 and (b) that in any event theclaim was barred by section 23.
PU7-LB, J.—Coomaraswatny v. Hudson
99
The date relevant to the assessment of compensation is that on whichtender is made by the Government Agent and it is manifest from the libelof reference in the present case and in the connected case Ro. 6,888 thatcompensation was tendered on 22nd August, 1949, when the title to thelots had not yet become vested in the Crown. I am of opinion that in 'the special circumstances of this case it would be unreal and extremelyartificial to hold that the 1st defendant was entitled to any claim based onseverance or injurious affection. If there is one fact which is firmlyestablished it is that these contiguous lots were sought to be acquired as asingle unit for the building of a post office. Lot I.was the subject of aseparate assessment because it was thought erroneously that the acquiringauthority could not make one assessment for the three lots taken as asingle entity. In my view no question of severance could arise whenclaims and tender of compensation were all made on the footing that even-tually all the lots would be taken over by the Crown. Severance mustbe of a permanent character in the contemplation of both parties. If thedate of the vesting of title alone determined whether there has been aseverance then it ought to follow that in assessing compensation for lots 2and 3 severance of lot 1 must be taken into account and in assessing -compensation for lot 1 damages must be awarded ior its severance fromlots 2 and 3. In effect, therefore, two sets of damages have to be addedto the market value of the three lots idtimately acquired as a single entity.
An interpretation of section 21 (b) or (c) which produces this result doesnot commend itself to me. In other words the question does not fall tobe decided with reference only to the time of title vesting in the Crown.
I find myself in agreement with the trial Judge that the claim of the 1stdefendant founded on section 21 (b) or (c) is misconceived. This disposesof the appeal of the 1st defendant..
The learned District Judge awarded the 2nd and 3rd defendants onlyEs. 7,000 as damages for severance although he assessed the same atBs. 11,665/50 because he accepted the submission of the acquiring autho-rity that a claim in excess of Rs. 7,000/- was barred by section 23. Thefirst part of section 23 is in my opinion clear and speaks for itself." Itruns as follows :—
“ When the person interested has made a claim to compensationpursuant to any notice mentioned in section 6 or in section 14,. theamount awarded to him shall not exceed the amount so claimed or beless than the amount tendered by the Government Agent under section7, or the amount which the Government Agent shall have bffered'togive under section 13. " The second part of section 23 deals -withcertain exceptional situations with which we are not concerned in thepresent case.-"v –' 1
Tiiere is no evidence that any particular sum was claimed as compensa- >tion by any of the defendants when they appeared pursuant to the notice'under section 6. But they did make, claims in answer to' the libel of:reference. The 1st defendant by his statement of ISth October, 1950,.-claimed to be paid compensation on the basis that the market value of lot 1» -was Bs. 2S,000/-. On the 20th August, 1953, the 1st defendant claimed.!in. addition.to his. share of the.market .value the. sum.of Rs. 1.6,500/- as-
100
. PUXL13, J.—Coomaraswamy v.' Hudson
damages ■which lie said was the amount by which the Crown benefitedby reason of the acquisition of lot 1. As the case was eventually" presented on his behalf the additional claim represented .damagesunder paragraphs (6) and (c) of section 21..
. The claim on behalf of tbe 2nd and 3rd defendaiits was less ambiguous.In their first statement filed on 18th October, 1950, they asked for com-pensation in a figure representing the market value of lot 1 estimated atIts. 28,000/- and a sum of Its. 7,000/- as damages caused by the severanceof the lot from the remaining unacquired portion of then- land immediatelyto the north. As stated earlier, in the amended statement of 20th August,1953, they claimed Rs. 18,900/- under the head of damages.
In regard to the interpretation of section 23 we have not had the assis-tance of any reported case. Koiv obviously the first set of claims of thesedefendants were made pursuant to notices mentioned in section 14. Thelast named section is explicit that the notice should require the claimants“ to state to the court on or before a day to be therein mentioned the sumwhich he claims as compensation for his interest in the land as needed. ”In my opinion the statement filed commits the claimant irrevocably tothe figure named by him. I think it would be a misuse of language tosay that because an amendment of each of the statements of claim wasallowed the amended figure^ represented the sums claimed “ pursuant toany notice mentioned in section 14 ”. I obtain support for this view fromthe commentary by Donough on The Law of Land Acquisition and Com-pensation on section 25 of the Indian Acquisition Act, No. 1 of 1894,which is the counterpart of our section 23. Sub-section 1 of section 25reads,•
“ When the applicant has made a claim to compensation, pursuantto any notice given under section 9, the amount awarded to him bythe court shall not exceed the amount so claimed or be less than theamount awarded by the Collector under section II. ” Commentingon this sub-section the author states,
“ A claim to compensation tendered to the Collector under section 9may be made in writing, if he so directs, or otherwise, but it is importantthat the statement should be carefully made, for the amount cannot beenhanced beyond the figure stated. ”
Reference was made in the course of the argument to section 32 underwhich proceedings taken after a reference to court are made subject tothe rules, practice and procedure followed in ordinary civil suits, “ so faras the same can be made applicable I do not think it is permissibleto invoke section 32 for the purpose of enlarging or restricting the rightsof the acquiring authority or a claimant which are specifically providedfor in the Ordinance. The rules of procedure operate only within theframework of the special provisions defining the rights and liabilities of theparties to a libel of reference. If the view which I have expressed iscorrect, the applications to amend the statements by altering the amountsclaimed as compensation should have been disallowed, as t hose amendmentswould not have served any purpose. In the present case the amendments
PULLE, J.—Coomarasicatny v. Hudson
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were allowed leaving open the question whether section 23 was a bar tothe award of greater compensation than that claimed on tlio firststatements..••-.
The appellants complain that the learned District Judge was wrong in’ordering that each party should bear his own costs. Under section 30 (2)when the amount awarded by court exceeds the amount tendered by thoGovernment Agent such costs shall ordinarily bo paid by the GovernmentAgent. In the present case the amount ultimately awarded is aboutthree times what was tendered by tho acquiring authority. The trialJudge stated that on his finding the defendants were getting more thanwhat the Government Agent tendered but loss than what he offered by1 DIO which is a letter dated 20th February, 1953, addressed by theGovernment Agent’s Proctor' to the defendants’ Proctor. By thatletter an offer was made of Rs. 23,100/- as market value of lot 1 andRs. 7,000/- as damages. Lot 1 is 4 "62 lacliams which the parties agreedat one stage of the trial, namclj', on 27th May, 1954, should be valued atRs. 5,050/- per laeham. This would give for tho market value slightlymore than Rs. 23,100/-. namely, Rs. 23,331/-. The learned trial Judgehas obviously misdirected himself on the question of costs. I would,therefore, amend the decree under appeal by giving to the appellants thecosts in the District Court up to and including the 27th May, 1954_Subject to this variation th appeal should be dismissed with costs.
Basxayake, C.J.—
I have had the advantage of reading the judgment prepared b3r mybrother Pulle with which I agree.
It is clear from a reading of sections 6,14, and 23 of the Land AcquisitionOrdinance (now' repealed) that a claim once made in response to a noticeunder section G or in response to a notice under section 14 is final and doesnot admit of any amendment thereafter.
Section 32 affords no authority for holding that a claim under either ofthese sections can bo altered.
The dearth of decisions on the subject is due to the fact that theprovisions arc not obscure and need no elucidation.
In the Madras case of Secretary of State v. Subramania Ayyar 1, the Courtin construing the corresponding section of the Indian Act came to thevery same conclusion that we have formed in thi3 case. The Courtthere expressed the view that it would not be open to a claimant to makeout a fresh case, whether by way of supplementary claims to compensation,or otherwise.'
'-Appeals dismissed.
1 {1930) A. I. R. Madras 37C. '
2*J. X. n 703GS fl 1/571