( 286 )
Present: Fisher C.J. arid Drieberg J.
SCHRADER v. MARIKAR et al.
• 16—D. G. (Inty.) Galle, 26,821.
Land acquisition—Failure to state amount of claim—Omission explained—Award of compensation—Ordinance No. 3 of 1876, s. 23.
Where, in proceedings under the Land Acquisition Ordinanoe, aperson failed to make a statement of claim to the GovernmentAgent but has sufficiently explained his omission to Court,—
Held, that the Court had power to award him as compensationmore than the amount tendered by the Government Agent.
^^PPEAL from the order of the District Judge of Galle.
Rodrigo, C.C., for plaintiff, appellant.
F. de Silva, for defendants, respondents.
( 287 )
March 25, 1980. Drieberg J.—
This appeal is by the Government Agent of the Southern Provinceagainst a judgment awarding the respondents Bs. 4,400 as com-pensation for two lots, No. 152 and No. 160, in preliminary planNo. 12,384 acquired by the Crown. The appellant offeredBs. 1,012.50 as compensation, and the respondents claimedBs. 9,000.
The appellant contended that the respondents had refused oromitted to make their claim before the Government Agent andthat the Court could not therefore award more' than the amounttendered (section 23 of Ordinance No. 3 of 1876).
What happened was that the respondents without stating whatthey claimed asked that they be given lot 158 in exchange for lot 152,such an arrangement is allowed by section 46 (1) of the Ordinance.The Government Agent said he was unable to consider the questionof exchange and that the respondents should make an applicationfor that purpose to the Chairman of the Municipal Council of Galle.
The inquiry was adjourned for December 10, 1928; on thatdate the respondents’ Proctor applied for an extension of time,this was refused by the Government Agent. The omission of therespondents to state the amount of their claim was not wilful butlias been sufficiently explained, and it was open to the Court undersection 23 to consider the claim they made in their answer.
On the question of the correct compensation for these lots,there is evidence in the case which supports – the finding of thelearned District Judge. Mr. Toussaint, the Superintendent ofWorks of the Municipality, could not say positively that a buildingconforming to the building by-laws could not be built on thecombined lots. In fact, he stated at one time that this was possible,and he qualified his evidence to the contrary by stating that liewould allow a building of iron sheets but not one of wood.
But it is not correct to consider the question only from the pointof view whether a building can be erected on these two blocks alone,and the learned Judge rightly remarks that these blocks have avalue to capitalists desirous of combining them with others andrebuilding on them.
It is stated in the petition of appeal that this is not possible asall the adjoining lots have been acquired. But this is not so.P 1 and P 3 show that the acquisition of the adjoining lot No. 164.a large one of 1.29 perches, has been abandoned.
The appeal is dismissed with costs.
Fisher C. J.—1 agree.
.4ppeal. <li* mixxt'd.
SCHRADER v. MARIKAR et al