028-SLLR-SLLR-2009-V-1-MUKTAR-AND-OTHERS-v.-RATHNASIRI-DIVISIONAL-SECRETARY-ACQUIRING-OFFICER.pdf
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MUKTAR AND OTHERSV.
RATHNASIRI, DIVISIONAL SECRETARY,ACQUIRING OFFICER
SUPREME COURT
DR. SHIRANI BANDARANAYAKE, J.
BALAPATABANDl, J.
RATNAYAKE, J.
S.C. (APPEAL) NO. 12/2006C.A. NO. 4/2001LAND ACQUISITION BOARDOF REVIEW NO. CL 1214NOVEMBER 4th, 2008
Colombo District (Low Lying Areas) Reclamation and DevelopmentBoard Act, No. 15 of 1968 – Section 4(2) – Land Acquisition Act, no. 15of 1968 – Section 7 – Determination of the quantum of compensationfor the property to be acquired – Evidence Ordinance – Section 57(9),101 and 102
The appellants had filed an appeal before the Land Acquisition Boardof Review against an award made by the respondent regarding an undi-vided Vi share of late Ummu Shifa Musthar, one of the respondents ofthe application before the Court of Appeal and who had died during thependency of that appeal and '/a share each of the 2nd to 7th appellantsrespectively. The Land Acquisition Board of Review was inter alia en-trusted with the task of deciding the relevant date on which the marketvalue of the acquired property should be determined. The main disputeinvolved was to be determined in terms of section 4(2) of the ColomboDistrict (Low Lying Areas) Reclamation and Development Board, Act No.15 of 1967 or in terms of section 7 of the Land Acquisition Act.
The Board of Review held that the relevant date for the purpose ofcomputing the quantum of compensation for the property in questionwas 24.04.1981 that date being the date of publication of the section7 notice under the Land Acquisition Act, and not 22.09.1968, viz. thedate of commencement of Act No. 15 of 1968. The Board of Review,which subsequently heard the appeal quashed the award made by the
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respondent. The respondent being dissatisfied with the decision of theBoard of Review preferred an appeal to the Court of Appeal. The Courtof Appeal set aside the decision of the Board of Review and affirmed theAward of Compensation made by the respondent based on the marketvalue of the property as at the commencement of Act No. 15 of 1968.
The appellants-respondents-appellants appealed against the aforesaidjudgement of the Court of Appeal. The Supreme Court granted specialleave to appeal. .
Held :
In determining the condition of the land in 1968 and the conditionof the land at the time of acquisition for the purpose of computingcompensation to be payable, the Board of Review had arrivedat a decision, not purely on facts, but on an inference on theapplicability of the Act No. 15 of 1968 and section 7 of the LandAcquisition Act.
When an acquisition of land falls within the purview of section4(2) of the Colombo District (Low Lying Areas) Reclamation andDevelopment Board Act No. 15 of 1968, the valuation of theproperty has to be computed on the basis of the valuation as at thedate of the commencement of the Act No. 15 of 1968. 3
(3)When it is claimed that the condition of the land in question hadchanged from its original position at the time of its acquisition, theperson who makes that statement should lead evidence to provethat position in terms of section 102 of the Evidence OrdinanceIt would be presumed that in the ordinary course of nature therewas no change in the condition of the land.
Cases referred to :
Collettes Limited V. Bank of Ceylon – [1982] 2 S.L.R. 514
Mahavitharana V. Commissioner of Inland Revenue – (1962) 64 NLR217
Naidu & Co. V. The Commissioner of Income Tax – (1959) AIR S.C.359
APPEAL from a judgment of the Court of Appeal
Faiz Musthapha, P.C., with Faizer Marker and Hussain Ahamed forAppellants Respondents- Appellants.
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M.N.B. Fernando, D.S.G., with Rajiv Chmathilake S.C., for Respondent-Appellant-Respondent.
Cvtr.adv.vu.lt.
June 18, 2009
DR. SHIRANI BANDARANAYAKE, J.
This is an appeal from the judgment of the Court ofAppeal dated 11.03.2005. By that judgment the Court ofAppeal allowed the appeal of the respondent-appellant-respondent (hereafter referred to as the respondent), set asidethe decision of the Board of Review and affirmed the awardof compensation made by the acquiring officer based on themarket value of the property as at the commencement ofAct, No. 15 of 1968. The appellants-respondents-appellantshereinafter referred to as the appellants appealed to the Su-preme Court against the said judgment of the Court of Appealfor which this Court granted Special Leave to Appeal on thefollowing questions:
Was the Court of Appeal wrong in rejecting the prelimi-nary objection that no question of law had been disclosedand what was referred to was a pure question of fact,which was in relation to the state of the land in 1968 and1981?
Having erroneously held that a question of law had arisen,did the Court of Appeal thereafter further err by makinga pronouncement, which interferes entirely with a findingof pure fact?
In any case was the Court of Appeal wrong in conclud-ing that the land had not undergone any change withoutcontrary to evidence being led either before the Board ofReview or the Court of Appeal itself?
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Did the Court of Appeal misdirect itself on the burden of
proof?
The facts of this appeal, as stated by the appellants,albeit brief, are as follows:
The appellants had filed an appeal before the LandAcquisition Board of Review against an award made by therespondent regarding an undivided Va share of late UmmaShifa Musthar, one of the respondents of the applicationbefore the Court of Appeal and who had died during thependency of that appeal arid 1 / 12th share each of the 2ndto 7th appellants respectively. The property acquired bearsassessment No. 13, Horadehipitiya Road, Kolonnawa, con-taining in extent 11A-OR-31.00P.
The Board of Review was, inter alia, entrusted withthe task of deciding the relevant date on which the marketvalue of the acquired property should be determined. The maindispute therefore involved the question as to whethercompensation of the property to be acquired was to bearrived at in terms of Section 4(2) of the Colombo District (LowLying Areas) Reclamation and Development Board, Act No. 15of 1968 (hereinafter referred to as Act, No. 15 of 1968) or interms of Section 7 of the Land Acquisition Act.
The appellants maintained that the relevant date forvaluation should be the date on which notice under Section 7of the Land Acquisition Act was published in the Gazette, viz.,24.04.1981, whereas the respondent took up the positionthat compensation should be awarded on the basis thatacquisition falls within the purview of Section 4(2) of Act,No. 15 of 1968 and therefore the date of commencement ofthat Act. viz. 22.09.1968, should be adopted as the relevantdate for the purpose of computing compensation.
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The appellants had admitted that Act, No. 15 of 1968came into effect on 22.09.1968 and the Gazette Notificationof the intention to acquire the property in question in termsof the Land Acquisition Act was published on 12.08.1970.The appellants have also admitted that the said propertywas acquired on 02.03.1979, when Section 38(a) notice waspublished in the Gazette.
The Board of Review, which initially heard this matter,by their order dated 20.02.1995 had held that the marketvalue would be determined as at 22.06.1968, only if the landacquired at the time of acquisition was in the same conditionit was on 22.09.1968.
According to the appellants, the land acquired was notin a marshy, waste or swampy state, but in an improvedcondition at the time of acquisition on 02.03.1979 andin those circumstances determination of the question ofcompensation to be made in terms of Section 7 of the LandAcquisition Act, the material date being 24.04.1981, the dateon which Section 7 notice of the Land Acquisition Act waspublished in the Gazette.
Accordingly, it was held that the relevant date for thepurpose of computing the quantum of compensation for theproperty in question was 24.04.1981 that date being the dateof publication of Section 7 Notice under the Land AcquisitionAct, and not 22.09.1968, viz., the date of commencement ofAct, No. 15 of 1968.
The total award of compensation by the respondentwas Rs. 350,000/- and the appellants were awarded samein proportion to their respective shares. The appellantsoriginal claim after certain restriction had amounted to Rs.8,860,150/- stating that the appellants will be entitled tocompensation in proportion to their respective shares.
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The Board of Review, which subsequently heard theappeal by the appellants had by their order dated 20.12.2000quashed the award made by the respondent in respect of theamount of compensation and substituted the total amountingto Rs. 6,621,500/- stating that the appellants will be entitledto compensation in proportion to their respective shares.
The respondent being dissatisfied with the decisionof the Board of Review preferred an appeal to the Court ofAppeal. Learned Counsel for the appellants tookup preliminary. objection that no question of law had been disclosed andwhat was referred to was a pure question of fact, whichwas in relation to the date of the land in 1968 and 1981.The Court of Appeal, by their judgment dated 11.03.2005held against the appellants and allowed the appeal of therespondent. The Court of Appeal thereby had set aside thedecision by the Board of Review dated 20.12.2000 and hadaffirmed the award of compensation made by the respondentbased on the market value of the property at the commence-ment of Act, No. 15 of 1968.
Having stated the facts of this appeal let me now turnto consider the questions raised in this appeal on the basisof the submissions made by both learned Counsel for theappellants and the respondent.
Was the Court of Appeal wrong in rejecting thepreliminary objection that no question of law hadbeen disclosed and what was referred to was a purequestion of fact, which was in relation to the state ofthe land in 1968 and 1981?
Learned President’s Counsel for the appellants contendedthat although the appellant’s original restricted claim wasRs. 8,860,150/-as compensation, the respondent had awardedonly Rs. 350,000/-. The Board of Review had quashed the
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Award made by the respondent in respect of the amount ofcompensation and had substituted the total amount to beRs. 6,621,500/-. The respondent being dissatisfied with thesaid decision of the Board of Review had preferred an appealto the Court of Appeal and had sought to appeal from thedecision of the Board of Review on the following questions oflaw:
Should the relevant date on which the market value of theacquired property be determined according to the date onwhich Notice under Section 7 of the Land Acquisition Actwas published in the Gazette or should the relevant datebe determined according to the date of commencement ofthe Colombo District (Low Lying Areas) Reclamation andDevelopment Board Act, No. 15 of 1968?
Whether the part of Section 4(2) of which reads as “themarket value of that land for purposes of determining theamount of compensation to be paid in respect of that landshall, notwithstanding anything to the contrary in thatAct, be deemed to be the market value which that landwould have had at the date of commencement of that Actif it then was in the same condition as it is at the time ofacquisition” should be interpreted as if the condition ofthe land had changed from the time of acquisition, theprovisions of the said Section 4(2) will not be applicableand the relevant date for the valuation should be taken asSection 7 date?
The appellants had taken up a preliminary objectionbefore the Court of Appeal that the said questions are onlypure questions of fact and that no questions of law had beendisclosed. Their position was that the comparison of thecondition of the land as at the date of acquisition and as atthe date that Act, No. 15 of 1968, came into being (which wason 19.09.1968) was a pure question of fact.
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It is not disputed that the question to be consideredbefore the Land Acquisition Board of Review was whether theland in question was in the same condition at the time ofacquisition, as it was at the date of commencement of the Act,No. 15 of 1968. The said Board of Review had accordingly ex-amined the applicability of Section 4(2) of Act, No. 15 of 1968and Section 7 of the Land Acquisition Act. Considering theissue in question, the said Board of Review had stated that,
“Learned Counsel for appellants submitted that,according to the description given in the tenement listRl(a) dated 30.07.80, this land has been described asa garden containing eight temporary buildings and 25 •coconut trees 10 to 25 years old, and therefore if onekeeps in mind the fact that at the commencement of theReclamation and Development Board Act it applied to“low lying, marshy, waste or swampy areas’’ the landacquired was not in that state, but in an improvedcondition at the time of acquisition, namely on 02.03.79.Learned Counsel for appellants contention is that in viewof the aforesaid circumstances, determination of thequestions of compensation had to be made under Section7 of the Land Acquisition Act, the material date being thedate on which the Section 7 notice was published in theGazette, namely 24.4.81 ”.
It is therefore quite clear that the question of conditionof the land had to be considered by the Board of Review. Ona careful examination of the proceedings and the order madeby the Board of Review, it is apparent that the conditionof the land as of the date of acquisition compared with thecondition of the land as at the date of Act, No. 15 of 1968was not arrived at by the Board of Review on an assessmentof facts. Further the Board of Review had led no evidenceon the condition of the land in 1968 at the time the said
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Act, No. 19 of 1968 came into operation and had come to theconclusion of the condition of the land, not on an assessmentof the facts, but purely by inference.
In fact the Court of Appeal had given its mind to thisquestion and had correctly found that no evidence had beenled before the Board of Review with regard to the conditionof the land in 1968, viz., at the time Act, No. 15 of 1968came into operation. Since no evidence had been led beforethe Board of Review, it was erroneous for the Board to haveconcluded that the land in question earlier had been marshyand swampy and that the land acquired was not in that state,but an improved condition at the time of acquisition. On thatbasis the Board of Review had decided that the relevant datefor the purpose of computing the quantum of compensationfor the land is 24.04.81 and not 22.09.68, which was the dateAct, No. 15 of 1968, came into operation.
What constitute a question of law was considered anddetermined by this Court in Collettes Ltd. v. Bank of Ceylonwwhere it had been stated inter alia, that,
inferences from the primary facts found are mattersof law;
whether there is or not evidence to support a finding, is aquestion of law; and
whether the provisions of a statement applying to thefacts; what is the proper interpretation of a statutoryprovision; what is the scope and effect of such provisionare all questions of law.
As stated earlier the Board of Review had drawn infer-ences from the primary facts, which were before them andno evidence was led to support their findings. Further the
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Board of Review interpreted the statutory provisions inarriving at the date for the purpose of computing the quantumof compensation for the land in question. The Court ofAppeal, after considering the matter before it, quite correctlycame to the conclusion that the questions referred to theCourt of Appeal for determination were questions of law thathad to be decided by that Court.
It is not disputed that before the Board of Review theappellants and the respondent were relying respectively onthe applicability of Section 7 of the Land Acquisition Act andSection 4(2) of the Act, No. 15 of 1968 for the purpose ofarriving at the relevant date to compute the quantum ofcompensation. Considering the submissions made before theBoard of Review and for the reasons stated above it is quiteapparent that the Board had arrived at a decision, not on thebasis of the facts before the Board, but on an interpretationof the aforementioned statutory provisions.
Accordingly it is apparent that the Court of Appeal wasnot wrong in rejecting the preliminary objection that ‘no ques-tion of law had been disclosed and what was referred to wasa pure question of fact,’ which was in relation to the state ofthe land in 1968 and 1981.
Having erroneously held that a question of law hadarisen, did the Court of Appeal thereafter further errby making a pronouncement, which interferes entirelywith a finding of pure fact?
Learned President’s Counsel for the appellants contendedthat he relied on the decision in Mahau/itharana v Commis-sioner of Inland Revenue^ where H. N. G. Fernando, J. (as hethen was) had adopted a statement by Gajendragadkar, J. inNaidu and Co. v The Commissioner of Income Tax.,3)
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The contention of the learned President’s Counsel for theappellants was that what was held in the decision in Naiduand Co. (supra) by Gajendragadkar, J., was that findingof facts could be challenged only within narrow limits andlimited to improper admission of evidence or exclusion ofproper evidence or not supported by legal evidence or is notrationally possible. Learned President’s Counsel submittedthat the Court of Appeal had distinguished this decision onthe basis that what was considered in that case relates to apure question of fact, which is not the issue in question inthis case.
In Mahawitharana v Commissioner of Inland Revenue(supra), the Supreme Court had to consider the question as towhether ‘on the facts and circumstances proved in thecase, the inference that the transaction in question was anadventure or concern in the nature of trade is in law justified?While answering the said question of law in the affirmative, theSupreme Court had held that in a case stated underSection 78 of the Income Tax Ordinance, the Supreme Courtcould consider the correctness of the inference drawn bythe Board of Review as to the Assessor’s intention, only a)if that inference had been drawn on a consideration ofinadmissible evidence or after excluding admissible andrelevant evidence, b) if the inference was a conclusion offact drawn by the Board, but unsupported by legal evidence,or c) if the conclusion drawn from relevant factswas not rationally possible and was perverse andshould therefore be set aside. This was laid downon the basis of the decision in Naidu and Co. (supra)and in both Naidu and Co. (supra) and in Mahawitharana(supra) the questions in issue were based on pure questionsof fact.
The issue in question in this matter, as was statedearlier, was on the basis of the condition of the land in 1968and the condition of the land at the time of acquisition. Whilst,
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the respondent contended that the applicable date should bethe date when Act, No. 15 of 1968 came into operation,-theappellants submitted that what should be taken into consid-eration was the date of acquisition. Admittedly it is necessaryto arrive at the correct date for the purpose of computingcompensation to be payable and for that purpose it is neces-sary to know whether there had been a change in the condi-tion of the land between 1968 and the date of acquisition, as,if there had been such a change in the condition of the land,Section 4(2) of Act, No. 15 of 1968 would not be applicable forthe payment of compensation.
It is not disputed that the condition of the land at the dateof acquisition was arrived at by the Board of Review based onevidence, there had been no evidence with regard to thecondition of the land in 1968.
Accordingly as stated earlier, under question No. 1, theCourt of Appeal had accepted that the Board of Review, indetermining the condition of the land in 1968, had arrivedat a decision, not purely on fact, but on an inference on theapplicability of the Act, No. 15 of 1968 and an interpretationgiven to Section (2) of Act, No. 15 of 1968 and Section 7 of theLand Acquisition Act.
It is not disputed that the appellants Valuers and theState Valuer had given evidence with regard to the valuation ofthe land, but no evidence was led as stated earlier, in relationto the condition of the property in question in 1968. The LandAcquisition Board of Review, in question of computation ofcompensation had considered the question on the basisthat the land had been considered in an improved conditionat the time of its acquisition and it is important to note thatthe Board of Review had arrived at this conclusion on thepremise that Act, No. 15 of 1968 was applicable to low lying,
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marshy, waste or swampy areas and therefore this land wasmarshy in the year 1968. It is therefore apparent that theBoard of Review in order to arrive at its finding had interpretedthe provisions of Act, No 15 of 1968 and such a course ofaction could not be accepted as considering a pure questionof fact.
Accordingly the Court of Appeal was correct in concludingthat the decision in Mahawitharana(supra) could be distin-.guished on that basis.
It is therefore evident that the Court of Appeal did notinterfere with a finding of pure fact.
In any case was the Court of Appeal wrong in conclud-ing that the land had not undergone any change withoutcontrary to evidence being led either before the Board ofReview or the Court of Appeal itself?
Learned Counsel for the appellants contended that theCourt of Appeal misdirected itself in interfering with questionsof fact and determining that the land had not undergone anychanges.
As stated earlier, the Board of Review, after interpretingthe provisions of Act, No. 15 of 1978 and the Land Acquisi-tion Act, had determined erroneously that the land in ques-tion had undergone changes after 1968.
The Court of Appeal after determining that there was aquestion of law that whether there was a proper interpreta-tion and application of section 4(2) of Act No. 15 of 1968, hadproceeded to examine the documents relating to the land inquestion, which included the Deed of Transfer at the timethe said land was purchased by the appellants predecessorsand the condition of the land as referred to in the said Deedof Transfer.
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It is not disputed that the said land was purchased bythe appellants on 04.10.1968. Accordingly, the Court ofAppeal considered a question of law based on the determina-tion made by the Board of Review and had correctly examinedthe relevant documents, which were tendered to the Courtof Appeal. Since the land in question had been purchasedby the appellants predecessors in 1968, and that being theyear in which the condition of the land was relevant, afterexamining the said Deed, the Court of Appeal had correctlyheld that there had been no change in the condition of theland.
Did the Court of Appeal misdirect itself on the burdenof proof?
Learned Presidents Counsel for the appellants submittedthat the respondent had taken up the position that thecomputation of compensation should be calculated on thebasis of Section 4(2) of Act, No. 15 of 1968 and therefore theburden of establishing the fact that the condition of the landhad not changed after 1968 until the date of acquisition on24.04.1981 was on the respondent.
As stated earlier, the following facts were common groundin this appeal: the land in question was purchased by the ap-pellants predecessors on 04.10.1968 and the Act, No. 15 of1968 came into being on 22.09.1968. In terms of the acquisi-tion process, the Section 4 notice under the Land AcquisitionAct was dated 12.08.1970, order had been made in terms ofSection 38(a)7 of the Land Acquisition Act on 02.03.1979 andthe Section 7 notice in terms of the said Act was issued on24.04.1981.
It is also common ground that the land was vested in termsof Section 38(a) of the Land Acquisition Act on 02.03.1979
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and that at that time there was no Condition Report preparedfor the land in question. In such circumstances when theAcquiring Officer took over the land it was presumed thatthere had been no change in the condition of the land,Accordingly the respondent had decided to compute theamount of compensation in terms of Section 4(2) of Act, No.15 of 1968, where it is stated that,
“ Notwithstanding anything to the contrary
to that Act, be deemed to be the market value whichthat land would have had at the date of commencementof this Act if it then was in the same condition as it isat the time of acquisition” (emphasis added).
The appellants had been of a contrary view to the effectthe land in question had changed from its original positionat the time of its acquisition , then in terms of Section 101 ofthe Evidence Ordinance the burden of proving that assertionlies on the appellants; Section 101 of the Evidence Ordinancestates that,
“Whoever desires any court to give judgment as to anylegal right or liability dependent on the existence of factswhich he asserts must prove that those facts exist.
When a person is bound to prove the existence ofany fact, it is said that the burden of proof lies on thatperson. ”
Accordingly if the appellants had asserted that thecondition of the land in question had changed from itsoriginal position at the time of its acquisition, in terms ofSection lOlof the Evidence Ordinance, the appellants shouldlead evidence to prove that position. Further in terms ofSection 102 of the Evidence Ordinance, the burden of proof
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lies on the appellants, who required the Court to deter-mine the amount of compensation they would be entitled towhich was different from what the respondent had computedas compensation. When the appellants claimed that thecompensation should be computed in terms of the LandAcquisition Act as the condition of the land had changed fromthe time it was purchased by the appellants predecessorsand when the respondent had stated that there had beenno change in the condition of that land, the burden of prooflies on the appellants to lead evidence that the land hadundergone a change in its condition. Further as correctlypointed out by either party, in terms of Section 57(9) ofthe Evidence Ordinance it would be presumed that in theordinary course of nature there would be no change in thecondition of the land; section 57(9) clearly states that thereis no need to prove the ordinary course of nature and if thereis no evidence of the condition of the land in 1968 to thecontrary by the appellants, it is presumed that in terms ofthe ordinary course of nature that there was no change in thecondition of the land. Therefore the burden of proving thatthere had been a change in the condition of the land solely restson the appellants.
For the reasons aforesaid the questions of law for whichspecial leave to appeal was granted are answered in thenegative.
This appeal is accordingly dismissed and the judgment ofthe Court of Appeal dated 11.03.2005 is affirmed.
I make no order as to costs.
BALAPATABENDI, J. – I agreeRATNAYAKE, J. – I agreeAppeal dismissed.