105-NLR-NLR-V-16-THE-GOVERNMENT-AGENT-WESTERN-PROVINCE-v.-THE-ARCHBISHOP.pdf
( 895 )
1913.
Present: Pereira J. and Ennis J.
THE GOVEKNMENT AGENT, WESTEBN PROVINCEv. THE ARCHBISHOP.
89—D. C. Negombo, 8,905.Land acquisition—Matters to be taken into consideration for ascertainingamount of compensation to be paid to owner—Test of market value.
Section 21 of the Land Acquisition Ordinance specifies certainmatters to be taken into consideration in awarding compensation,but the list there given should not be taken as exhaustive; in thecase of some of the matters mentioned, there may be in special casesconsiderations (not mentioned in the Ordinance) that may go agreat way to minimize their importance.
Pebeira J.—The portion of the land (acquired) may be situatedin a most favourable position; it may be a portion of an extent ofland of very great value; but, in view of the size of the portionand the shape given to it by Government in slicing it off from therest of the land for the purpose of acquisition, its market valuemay be nil. In such a case the proper course is to find the marketvalue as near as it can be ascertained of the entire land, and thento estimate the value of the portion of land taken at that rate.
1 (1902) 3 Br. 200.2 (1904) 10 N. L. R. 196.
2 (1904) 1 Bal. 40.
( 396 )
1913.
The Ooverprmerit Agent»WesternProvince,v. theArchbishop
'■pHE facts appear from the judgment of Ennis J.
A. St. 7. Jay ewar dene, for the appellant.—The compensationawarded by Court is insufficient. The Judge should have assessedthe market value of the whole land and then estimated the value ofthe portion of land taken at that rate. (Government Agent, Kandy,v. Saibo.1) It is wrong to try to value a small piece of a wholeland by itself in a case like this.
Garvin, Acting S.-G., for th.e respondent.—The principle on whichcompensation should be awarded is to find out the market valueand add to it compensation for severance. The market value iswhat the price of land would fetch in the open market. In the casecited 50 per cent, was added for severance. Counsel cited Stebbingv. The Metropolitan Board of Works.2 The only issue framed wasas to the market value.
A. St. V. Jayewardene, in reply.
Cur. adv. vult.
August 29, 1913. Pereira J.—
This is a proceeding on a libel of reference under the Land Acqui-sition Ordinance. What the District Judge had to decide is clearlyindicated in section 17 of the Ordinance. That section enacts: 44 Assoon as the assessors have been appointed the District Judge andassessors shall proceed to determine the amount of compensation,”meaning, of course, the sum payable as compensation to the partywhose land has been acquired under the Ordinance. It was hardlynecessary to frame any issue, although, of course, it was open to theparties to agree to any issue or issues being tried. After the minuteas to the assessors having taken their oaths, there is the record of a4nissue in the proceedings, which is as follows: 44 What is the fairmarket value of the land to be acquired? ” It does not appear inwhat circumstances this issue was framed. Was it agreed on by theparties, or did the Court frame it in terms of the latter alternativementioned ip. section 146 of the Civil Procedure Code? It does notappear that the parties agreed to this issue, and if it was framed bythe Court, I need only say that this was not the issue that had tobe tried by the Court. The issue as clearly indicated in the Ordinancewas, what amount of compensation the defendant was entitled toreceive for the portion of his land taken over by Government. Now,section 21 of the Ordinance specifies certain matters to be taken intoconsideration in awarding compensation, but, clearly, it is notintended that the list there given should be taken as exhaustive,and it is manifest that, in the case of some of the matters mentioned,there may be, in special cases, considerations (not mentioned in theOrdinance) that may go a great way to minimize their importance.The first matter mentioned in the Ordinance is the market value of1 (1911) 6 S. C. D. 36.2 (1871) L. J. N. S. (Common Law) I.
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the portion, of land acquired. Now, a portion of land may besituated in a most favourable position; it may be a portion of anextent of land of very great value; but, in view of the size of theportion and the shape given to it by Government in slicing it offfrom the rest of the land for the purposes of acquisition, its marketvalue may be nil. In such a case it would be safer to follow theprinciples laid down by this Court in the case of Government Agent,Kandy, v. Saibo 1 in assessing the amount of compensation to beawarded. There Middleton J., in a judgment acquiesced in by theChief Justice, says: “ The proper course is to find the market valueas near as it can be ascertained of the entire land, and then to estimatethe value of the portion of land taken at that-rate." The testadopted by the District Judge of ascertaining the market value ofthe particular portion of land acquired in this case regardless of therest of the land is fallacious. Of course, it may be that a portion ofa large extent of land may be so situated, that its real value may notbe a proportionate share of the value of the entire land, but thatcannot be said of the particular portion of land that has to be dealtwith in this case. There is, in my opinion, very satisfactory evidencein the case that the market value of the entire land is Bs. 15,000 anacre. At that rate the value of the portion acquired (2£ perches)would be Rs. 234.37. I would set aside the judgment appealedfrom and enter judgment for the defendant for Bs. 234.87, andBs. 60 as damages to the parapet wall (total Bs. 294.37). Thedefendant should, I think, have his costs in both Courts.
1913.
Pkbbxba J.
The Govern*merit Agent,WesternProvince,v. theArchbishop
Ennis J.—
I agree. The reference to the District Court was to ascertain thecompensation to be paid for 2£ perches of land compulsorily acquired.For some unexplained reason the only issue framed was, “ What isa fair market value of the land to be acquired? ” And it was arguedon appeal that the evidence showed that the land he acquired wasso small that nobody would buy it if offered in the market, and thattherefore the land to be acquired had no market value. It is clear,however, that the land had some value, or the Government wouldnot have offered Bs. 93.12 as its " market value.” In the circum-stances,it seems to me that the only point to be considered is whetherthe value has been appraised on a fair basis, irrespective of whether itis to be regarded strictly as “ compensation ” or as “market value.”The rule laid down by Mr/ Justice Middleton in Government Agent,Kandy, v, Saibo 1 appears to me to be the proper guide for theascertainment of compensation in such a case as this, and that thevalue should be ascertained by taking a proportionate part of the'market value of the whole land of which'it is a part. Consideredin this way, I fail to see why the land should not be regarded as abuilding site.
i (19V) 6 8. C. D. 36.
1913.
Ennis J.
The Govern-ment Agent,WesternProvince,v. theArchbishop
( 398 )
The Government assessor valued the entire land as a building siteat from Es. 8,000 to Es. 9,000 per acre, but admitted that in doingso he did not Consider the value of neighbouring lands or the pricesrealized by such lands at recent sales. Mr. Soysa gave evidencethat he paid at the rate of Es. 18,000 per acre for similar land close by,but thought he had paid at the rate of Es. 1,000 more than its marketvalue. He considered that the land, part of which is now to beacquired, was worth Es. 15,000 per acre. Mr. Fernando also valuedthe land at Es. 15,000 per acre, while the District Mudaliyar thoughtthat Es. 10,000 per acre would be the value as a building site. Isee no reason to send the case back for the finding of the District-Court as to the value of . the entire land as a building site. Theevidence, in my opinion, shows that Es. 15,000 per acre, the rateclaimed, is a fair valuation.
Set aside.