019-NLR-NLR-V-48-WIJESINGHE-Appellant-and-THE-ATTORNEY-GENERAL-Respondent.pdf
Wijesinghe v. The Attorney-General.
1946
Present: Keoneman S.P.J. and Jayetileke J.
WIJESINGHE, Appellant, and THE ATTORNEY-GENERAL,
Respondent.
296—D. C. Nuwara Eliya, 2,504.
Land reserved ion construction of road—Possession of it for over 10 years—Improvements effected on it—Right to claim compensation—Claim forrights conferred by Crown Lands Encroachments . Ordinance, s. 9—Throughfares Ordinance (Cap. 148), ss. 67, 73—Crown Lands Encroach-ments Ordinance (Cap. 321), ss. 9, 10.
60KEUNEMAH S.F.J.—Wijegmghev. The Attorney-General.
Section 67 of the Thoroughfare Ordinance, read with section 73,debars a person from claiming compensation for improvements effectedon land which has been marked off and reserved for the construction ofa road.
A person who has been in uninterrupted possession, for not less than,ten years, of land reserved for the construction of a road is precluded bysection 10 of the Crown Lands Encroachments Ordinance from making,any claim under section 9 of the same Ordinance.
PPEAL from a judgment of the District Judge of Nuwara Eliya.
F. N. Gratiaen (with him Anton Muttukuma.ru), for the defendant,appellant.
H. W. R. Weerasooriya, C.C., for the Crown, respondent.
October 18, 1946. Keuneman S.P.J.—
In this case it is clear that the land in question was acquired underthe Land Acquisition Ordinance and a Certificate of Acquisition wasduly issued in 1914 vesting the premises in His Majesty the King. Therecan be no question that it still remains to this day Crown property.
Two points have been urged by Counsel for the appellant, first, thathe was entitled to be paid compensation for improvements under thecommon law. It is, however, obvious that in the acquisition proceedingsthe land was taken over by His Majesty for a public purpose, namely,for deviating the Tawalantenna-Watagoda road. I think it is clearthat the premises in question come within the definition of the word“ road ” in .section 73 of the Thoroughfares Ordinance (Cap. 148), namelythat it is land which has been marked off ajid reserved for the constructionof a road. Section 67 of the Thoroughfares Ordinance accordinglyapplies, namely, that the provisions of the Prescription Ordinance andof any other law relating to the acquisition of rights by virtue of possessionor user shall not apply to roads. In my opinion a claim for compensationfor improvements is a right acquired by virtue of possession or user andas this case refers to premises which constitute a road I think that noclaim for compensation can be entertained.
The second point raised by Counsel for the appellant is under section9 of the Encroachment upon Crown Lands Ordinance (Cap- 321). Theappellant claims that he should be entitled to a grant from Governmentof the land on payment of half the improved value of the land or, in thealternative, that the Government should not be allowed to eject himuntil the Government has paid him half the improved value of the landand the full value of any buildings erected thereon. This is a claim onthe footing that the appellant has been in uninterrupted possession ofthe land for not less than ten years. Unfortunately for the appellant,however, section 10 enacts that the provisions in section 9 do not apply toany public road, street, or highway. I think that the appellant isprecluded from making his claim under section 9 and that that claimcannot be entertained by us;
We have considered the question as to whether the plaintiff in thiscase, namely, the Crown is entitled to costs of this action and of theappeal. Having regard to the length of time during which the defendant
CANEKERATNE J.—Ambalavanar v. Somasundera KttrukkaL: 81
and his predecessors in title have remained in undisturbed possessionof this land, which had been acquired by the Crown as far back as 1914for the purposes of a road, since when no steps seem to have been takenby Government till shortly before the institution of this actiontowards giving effect to the purpose for which the land was acquired,this seems to be a case where an ex-gratia payment of compensation tothe defendant in respect of the cultivation made by him on the landunder the belief that he had good title to it may be favourably consideredby the authorities. I further think that the reasons that I have justadvanced constitute a good reason for not giving the plaintiff costs eitherof the action or of the appeal. In substance, therefore, the appeal isdismissed without costs, subject to this that the order for costs madeagainst the appellant in the Court below will be deleted.
Jayettleke J.—I agree.
Appeal dismissed-