THE MUNICIPAL COUNCIL OF COLOMBO v. THENUWARA

132-NLR-NLR-V-43-THE-MUNICIPAL-COUNCIL-OF-COLOMBO-v.-THENUWARA.pdf


The Municipal Council of Colombo v. Thenuusara.
537
1942
Present : Moseley S.P.J. anti Jayetileke J.
THE MUNICIPAL COUNCIL OF COLOMBO v.
THENUWARA.
44—D. C. (Inty.) Colombo, No. 3,062.
Land Acquisition—Premises forming part of building—Question of separationfor purposes of Acquisition—Structure and user—■Building withinstreet line—Depreciation in value—Land Acquisition Ordinance(Cap. 203), s. 44.
The Municipal Council acquired one of five premises, which weredescribed “as a set of outhouses lying under 9ne common roof ”, andwhich appeared to consist each of one room, the rooms being in a conti-nuous line, with a verandah running the full length in front.
538
The Municipal Council of Colombo v. Thenuwara.
Held, that the question whether each of the premises formed onehouse or whether they formed part of a larger building for the purposesof section 44 of the Land Acquisition Ordinance depended upon whetherfrom the point of view of. structure and user they constituted one houseor a number of houses.
Held, further, that the premises in question could be separated fromthe rest of the building for the purpose of acquisition.
Where a building, which is acquired, lies within a street line, thedepreciation of value caused to the building, which would requirerepairs of a nature, which would be prohibited by The Housing andTown Improvement Ordinance, may be taken into consideration.Newnham v. Gonads (35 N. L. R. 119) applied.
HIS was an appeal from an order of the District Judge of Colombo
1 determining the amount of compensation payable to the respondentin respect of certain prmises acquired under the Land AcquisitionOrdinance. The question was whether premises No. 528/8 could beseparated from premises No. 528/5, 528/6, 528/7 and 528/11 for purposesof acquisition. The learned District Judge held that No. 528/8 togetherwith the other premises formed part of one house.
H. V. Perera, K.C. (with him N. K. Choksy, B. G. S. David, andS. J. Kadiragamer) for plaintiff, appellant.—The first question that arises inthis case is whether, in view of section 44 of the Land Acquisition Ordi-nance (Cap. 203) the defendant can compel plaintiff to acquire the wholeof the building of which premises No. 528/8 are alleged to be only a part.In other words, defendant wants premises No. 528/8 to be treated, aspart of a larger building. On this question it is submitted that premisesNo. 528/8 constitute one house and are not a part of a house. As to themeaning of house, see Harvie v. The South Devon Railway Co.', where itwas held that two semi-detached villas under one roof did not constituteone house within the meaning of the Land Clauses Consolidation Act(8 & 9 Viet. Cap. 18). In Goodchild v. Romford Borough Council2 thedecision was that an arcade consisting of thirty shops constituted not onebuilding, within the meaning of the Civil Defence Act, 1939, but a number' of buildings. In the present case though the tenements were small theywere separately occupied, and what makes them separate is separateoccupation.
[Jayatileke J.—In the Indian case, Venkataraman Naidu v. TheCollector of Godaveri ”, it was held that a house included all that wasnecessary to the enjoyment of the house, whether attached to the mainbuilding or not.]
Yes. Structural unity is not the deciding factor but enjoyment anduser. The test is actual enjoyment hot hypothetical enjoyment; notthe original user but user at the time of the acquisition—Richards v.Swansea Improvement and Tramways Co. *"
The next question is' whether the judge was correct in ignoring theexistence of street lines when he assessed the amount of compensation.In previous, cases—Newnham v. Gomis’ and The Chairman, MunicipalCouncil, Colombo v. Fonseka °—it was held that, in awarding compensation
1 32 L. T. R. 1..' * (1878) 9 Ch. D. 425.
» 56 T. L. R. 548.6 35 N. L. R. 119.
3 (1904) 27 I. L. R. Mad. 350.• 38 N. L. R. 145.
T
MOSELEY S.P.J.—The Municipal Council of Colombo v. Thenuwara. 539for land acquired, the depreciation in value caused by the laying down ofStreet lines must be considered. It is submitted that the principleenunciated in these cases for land not built upon applies equally in thecase of land upon which is erected a building. The true test in assessingcompensation is not the actual rent received but the rent receivable,taking into consideration the prohibition against repairs imposed bysection 19 of the Housing and Town Improvement Ordinance (Cap. 199).
J. E. M. Obeyesekere (with him G. Thomks), ' for defendant,respondent.—If in point of fact the structure would be affected theappellant must take the whole building. Harvie v. The South DevonRailway Co. (supra) is distinguishable on the facts. The cases showthat while user is one test structure must also be-taken into account.The case nearest to the present case is Greswolde-Williams v. New Castle-Upon-Tyne Corporation *.
The reason why the whole building should be taken is that the effectof taking No. 528/8 would affect the stability of the remainder. Instructure this is one building. The divisions were made without regardto structure. There is not here a row of tenements built as such but onebuilding separately occupied. Separate occupancy of rooms does notconvert the structure into separate buildings. See the remarks ofBrett L.J. in Richard v. Swansea Improvement and Tramways Co. (supra)at p. 434, where the test laid is partly structure and partly user; see alsoHalsbury (Hailsham ed.) Vol. 6, s. 86, for the meaning of the wordhouse as used in the Land Clauses Consolidation Act ; Lord RobertGrosvenor v. The Hampstead Junction Railway Co.Regent’s Canal andDock Co. v. London County Council’: Genders v. London Co/unty Council'.It is submitted that structurally this row of tenements constitute oneunit, and structure must be taken into account. The Madras Case (supra)cited has no application as it proceeded upon the particular provision ofthe Indian Act. The correct principle is that laid down in the Greswolde-Williams case (supra).
H. V. Perera, K.C., replied.
Cur. adv. vult.
September 4, 1942. Moseley S.P.J.—
This is an appeal by the Municipal Council of Colombo from an awardof the District Court of Colombo determining the amount of compensationpayable to the claimant, respondent in respect of certain land acquiredby the appellant under the provisions of the Land Acquisition Ordinance(Cap. 203 of the Legislative Enactments).
The respondent was the owner of what is known as Lot 6 on PreliminaryPlan No. A 942. The eastern boundary of lot 6 is Maradana road; thewestern is the " street line ” which had been laid down in connectionwith the widening of Maradana road. The respondent’s propertycomprises premises bearing assessment Nos. 528, 528/1, 528/2, 528/3,.528/4, 530, 532, 534, all of which lay within the street line 528/8, whichstreet line bisects 528/7, 528/6, 528/5, and 528/11, all of which lie tothe west of the street line. The . premises which the Council sought toacquire comprised all those which lay within the street line and No. 528/81 (1927) IV. N. 32S.“ (1912) 1 Ch. 583.
* 1 Dt Gcx Jones 44G.J (1915) 1 Ch. 1.
540 MOSELEY S.P.J.—The Municipal Council of Colombo v. Thenuwara.
which the line bisects. For those premises the Council offered by way ofcompensation the sum of Rs. 16,550. This sum includes the 10 per cent,on the market value,- provision for the payment of which is made bysection 38 of the Ordinance. The claimant, however, assessed the valueof the premises within the street line at Rs. 19,422, and in regard to lot528/8 he alleged that it was part of a larger building, and invoked theaid of section 44 of the Ordinance, which is as follows: —
“ 44. The provisions of this Ordinance shall not be put in forcefor the purpose of acquiring a part only of any house, manufactory, orother building, if the owner desire that the whole of such house,manufactory, or building shall be so acquired.” –
He desired that the whole of that building be acquired, and assessedits value at Rs. 4,320. That is to say, for the entire property he claimedRs. 23,742, and in addition the 10 per cent, above mentioned.
The learned District Judge held that No. 528/8, together with the otherpremises lying without the street line, must necessarily be regarded as onehouse (which I shall hereinafter refer to as “ the rear portion ”) andawarded Rs. 17,943.75 (including 10 per cent, for compulsory acquisition)in respect of the portion already acquired, and assessed the value of theother buildings at Rs. 2,812.50. Since, however, the claimant was“ willing to pay for and take back the land on which those buildingsstand,” the District Judge assessed its value at Rs. 1,031.25, and awardedin respect of the buildings Rs. 1,781. He held that the 10 per cent, forcompulsory acquisition could not be claimed in respect of this sum. Thetotal sum, therefore, -awarded to the claimant was Rs. 19,724.75. Eachparty was ordered to pay its own costs.
The first question that arises in appeal is in regard to the applicabilityof section 44 of the Ordinance. Do the premises No. 528/8 constituteone house, or are they only a part of a house, i.e., of the rear portion?This portion was described by the learned District Judge as a “ set ofouthouses lying under one common roof.” This may well be an aptdescription. It will be noted that the premises are five in number.Those numbered 528/5, 528/6, 528/11, and 528/8 would appear to haveconsisted each of one room, the rooms being in a continuous line, with averandah running the full length in front. That portion of the verandahin front of 528/11 has in some way become 528/7. Each of the five isoccupied by a different tenant. The common roof rests on a ridge plate,or beam, which runs the entire length of the building. That beamconsists of several parts joined together without any relation to thepartitions. There is evidence that in one of the partitions there is adoor which is not, however, in use. Counsel for the respondent hasstressed the opinion of witnesses that not only was the rear portionoriginally one building but was even connected with the front portionand that the whole formed one ^residence. That may have been so, butis that a matter which need be considered ? In Richards v. SwanseaImprovement and Tramways Co. (supra), Brett L.J., at page 434,said: —
“ I cannot help feeling that the period of time to which alone youmust look is the moment before the notice to treat is given; and what
MOSELEY S.P.J.—The Municipal Council of Colombo v. Thenuwara. 541
you have to consider in all these cases is the state or nature of the
premises to be dealt with at that moment, and that it does not signify
when or how that state of the premises was brought about.”
That was an action brought under the provisions of the Lands ClausesConsolid&ion Act 8 & 9 Vit. Cap. 18) section 92 of which correspondsclosely with section 44 of our Cap. 203. Assuming that the date of the“ notice to treat ” corresponds with the date of acquisition here, it isclear to me that we need not consider the premises in the light of theiroriginal structural character or user. What is relevant is whether, fromthe point of view of structure and user, they constitute one house or anumber of houses. “You must have”, continued Brett L.J., at page435, “ the premises so structurally made or placed that they may be onehouse, …. and, secondly, you must have them enjoyed as onehouse, or held as one house.”
Counsel lor the appellant relied largely upon the case of Harvie v. TheSouth Devon Railway Co. (.supra) in which the plaintiff was the lesseeof two semi-detached villas under one continuous roof. The party wallbetween them was only carried up to the ceilings, so that there wascontinuous space between the ceilings and the roof. There was nointernal communication between the villas. The party wall was soineffective that if one of the villas were to be pulled down, the otherwould become uninhabitable. The question was whether the two villaswere one house within the meaning of section 92 of the Lands ClausesConsolidation Act (supra). The two vilas were in fact held underseparate leases, but that was a fact which Cairns L.C. put altogetherout of the case. “ They were ”, he said, “ separately occupied by separatefamilies, they have separate hall doors, and they have no internalcommunication in the ordinary sense of the term, that is to say, no internalcommunication by which it is intended, or by which it is the practicethat the inmates of one villa should pass into the other villa ; in pointof fact, as regards all the parts of the villas which are occupied, namely,the ground and the first floors, there is no communication of any kindwhatever between the two …. For all practical and real purposesthe two villas appear to. be …. two separate houses. ” The
fact that the two houses could not be safely separated was held to beimmaterial, and the defendant company, who had given notice to treatfor a strip of the garden of one, were not compelled to take the twovillas as constituting one house. With all respect to the learned DistrictJudge, to whom the above-mentioned case was cited and who did notregard it as analogous, it seems to me that this decision, to put it nohigher, provides a useful formula. In Goodchild v. Romford BoroughCouncil (supra) the question for decision was whether an arcade consistingof thirty shops constituted a commercial building within the meaning ofthe Civil Defence Act, 1939. It was held that the arcade was not onebuilding, but a number of buildings.
The Indian Act corresponding to our Land Acquisition Ordinancecontains upon this point a provision that the Court shall have regard tothe question whether the land proposed to be taken is reasonably requiredfor the full and unimpaired use of the house, manufactory or building43/38
542 MOSELEY S.P.J.—The Municipal Council of Colombo v. Thenuwara.
There is' no such provision in the Local Ordinance, but it seems to me thatthe Indian Legislature has done no more than codify what is obviously apiece of sound common-sense.
Counsel for the claimant-respondent relied upon Greswolde-Williams v.Newcastle-Upan-Tyne Corporation (supra), in which the plaintiff was theowner of “ Princess Buildings ”, which structure, from the architecturalaspect of its exterior, appeared to form one whole, It was divided into thir-teen or fourteen divisions or houses (using the term “ houses ” not in thesense of section 92 of the Lands Clauses Consolidation Act), by walls of thecharacter properly and usually built as party walls to divide the pro-perties of adjoining owners. In some cases a house had its own staircase,in other cases a common staircase gave access to the upper floors of morethan one house. The defendant-corporation had given notice to treatfor the acquisition of a piece of land numbered 130, and on this land stoodthe two western most houses. In the case of these two houses accessto the upper floors of No. 1 was only gained by means of the staircase inhouse No. 2. The plaintiff owned the whole building and was inpossession of all the staircases and lavatories and rooms for purposes ofmanagement and for accomodation for porters. There was one systemof water supply for the whole building. There was intercommunicationbetween all the ten eastern-most houses, but between those and the fourwestern-most there was none. It was held that the corporation wasbound to take the whole building. I need only say that the facts appearto me to be so different from those in the present case that the decisionis of no avail to the respondent. The judgment, however, affirms theproposition that the factors to be taken into consideration are thestructure and user. Again, the case of Lord Robert Grosv.enor v. TheHampstead Junction Railway Co. (supra), in which it was held that theland, which'h.vould ultimately be part of the garden in front of one of anumber of intended almshouses, formed part of a house, was decidedupon the footing that the conveyance of “ the house ” would pass theopen space in front, and that, in the words of Turner L.J., “ it was invain to argue that these (i.e., the individual almshouses) can be consideredas separate tenements.” That this' was so is clear when it is realisedthat there was a common centre part, which was to be a hall with properoffices attached, and the abstraction of one or more of the almshousespiecemeal might render the centre part out of all proportion to require-ments. The case of Regent’s Canal and Dock Co. v. London Countycouncil (supra) was, if I understood counsel’s argument aright, cited merelybecause it followed Richards v. Swansea Improvement and TramwaysCompany (supra) and affirmed the opinion of Brett L.J. that a manu-factory might be a house, or a building or might be more than one houseor more than one building. This case does not seem to me to be of artymore assistance to the case for the respondent than is Genders v. LondonCo. Council (supra) where there was a special provision in the Act underconsideration that where the Council took part of a property it was not'entitled to interfere with the main structure of any house, building ormanufactory.
Having considered all these authorities it seems to me that havingregard to the structure and user of the premises in this case, and to the
MOSELEY S.P.J.—The Municipal Council of Colombo v. Thenuwara. 543
fact that without structural alteration the user as one house would be,to say the least, highly inconvenient, I find it difficult to avoid the con-clusion that the rear portion consists of five separate houses. In thesecircumstances the appellant cannot be required to acquire any part of therear portion other than No. 528/8.
The question then arises whether, in assessing the amount of compen-sation to which the claimant is entitled, there should be taken intoconsideration the restrictions imposed by section 19 of the Housing andTown Improvement Ordinance (Cap. 199) in regard to erection and re-erection of buildings beyond any defined street line. The learned DistrictJudge after consideration of the evidence of the Municipal Assessor that,owing to the fact that the property acquired was- situated within thestreet lines, the rentals of those premises would have a tendency to decline,held that the Court was concerned to value the premises at the date ofacquisition and that there was no satisfactory ground upon which theactual rent received should not be regarded as the basis upon which thevalue should be capitalised. It was, I think, admitted that the actualrents received in respect of the whole of the premises acquired wasRs. 145. Three months’ rental was allowed, the parties acquiescing, onaccount of rates, taxes and repairs. The nett annual rent was thusfound to be Rs. 1,305 which, capitalised on the basis of 12-| years’ purchasegave the capital value as Rs. 16,312.50. The Municipal Assessor, takinginto consideration the existence of the street lines, assessed the rentalwhich might be expected at Rs. 135 which, making the allowance in respectof rates, taxes and repairs, gives a nett annual rental of Rs. 1,215. Thisfigue, on the same basis, gives a capital value of Rs. 15,187.50.
In Newnham v. Gomis (supra), it was held that in awarding compensationfor land acquired in similar circumstances the depreciation in value causedby the laying down of street lines might be taken into consideration.The land in question was not built upon, as was the case in The ChairmanfMunicipal Council, Colombo v. Fonseka et al. (supra), which affirmed theprinciple. At the trial it was argued on behalf of the claimant that theseauthorities only concerned land which was not built upon, and the learnedDistrict Judge does not, in his judgment, refer to them. It is clear thatthe value of vacant land must necessarily depreciate when the area iscurtailed by the definition of a street line which imposes a restrictionupon building. I am quite unable to see that the same principle doesnot apply in the case of land upon which is erected a building which must,sooner or later, require repairs of a nature which would be prohibitedby the section of The Housing and Town Improvement Ordinance towhich I have referred. The extent to which the value of such land andbuildings would be affected would vary accordingly to the substantialnature and state of repair of such buildings. I think that the evidenceof Mr. Orr, the Municipal Assessor, may safely be accepted on this point.In his opinion they were very old boutiques, in very poor condition, atleast fifty years old. No doubt he had this in mind when he gave his.estimate of a fair rental as Rs. 135 per month. In my view, his estimateshould be accepted. It follows that, in my opinion, the capital valueof the buildings acquired is Rs. 15,187.50. That seems to me to be themarket value mentioned in section 21 of the Ordinance. To this must be
544 DE KRETSER J.—Hamid v. Colombo Apothecaries Company, Limited.
added the ten per centum of the market value mentioned in section 38,which brings the amount of compensation which I would award toRs. 16,706.25. It will be noted that the sum offered by the appellantwas Rs. 16,500. This sum was arrived at by deducting from the total thesum of Rs. 250 in respect of about one perch of the land which forms partof No. 528/8 and which falis without the street line, since it was thoughtthat the claimant might wish to retain it. The result of my findings isthat the appeal is allowed with costs here and in the Court below. Theaward of the District Court is set aside and the claimant is awardedRs. 16,706.25, or, in the alternative, if he wishes to retain that part ofNo. 528/8 which lies without the street line, Rs. 16,431.25.
Jayetileke J.—I entirely agree.

Appeal allowed.