The Government Agent Uva V. Banda

[FULL BENCH.]

Present : The Hon. Sir Joseph T. Hutchinson, Chief Justice,
Mr. Justice Wood Renton, and Mr. Justice Grenier.

THE GOVERNMENT AGENT, UVA, v. BANDA et al.

D. C, Badulla, 2,403.

Land Acquisition Ordinance, 1876-Reference to Court-Rival claimants -District Court has power to order claimants to pay the costs of reference to Government Agent-Appeal as to costs-Civil procedure Code, s. 209 et seq.

Where a reference to the District Court is made by a Government Agent under the last clause of section 11 of " The Land Acquisition Ordinance, 1876." in consequence merely of a dispute between two rival claimants as to the title to land, there being no dispute as to the amount of compensation, the District Court has power to order that the Government Agent snail be paid his costs of the reference out. of the fund in Court or by either or both of the contesting parties.

Under section 209 et seq. of the Civil Procedure Code it would be competent for a Court to order even a successful party to pay costs which had been rendered necessary by his own conduct. The Supreme Court would not interfere in appeal with the exercise of the discretion of a District Judge in making an order as to costs, unless it is clear that a manifest injustice has been caused by its exercise.

THE facts are set out in the judgment of Hutchinson C.J. This case was referred to a Full Bench by Hutchinson C.J. and Middleton J.

Bartholomeusz, for the appellant.-The Government Agent is not entitled to get his costs of the reference; Green v. Romanis [1 (1882) 5 S. C. C. 1.] is a case on all fours with the present, and is a direct authority in favour of the appellant. Section 29 of " The Land Acquisition Ordinance, 1876," says in what cases the Government Agent may get his costs; the Government Agent cannot get costs in any other case. [WOOD RENTON J.-Ordinance No. 9 of 1908 repeals that section.] Section 2 of Ordinance No. 9 of 1908 practically re-enacts section 29 of the Ordinance of 1876. [HUTCHINSON C.J.--Is not the Government Agent in the position of a stake holder? May not a Court give a stake holder who brings an interpleader action his costs?] The principles that apply to interpleader actions would not apply to proceedings under the Land Acquisition Ordinance, which must be

governed by the provisions of that Ordinance. [HUTCHINSON C.J.- Section 633 of the Civil Procedure Code would justify an order giving the Government Agent costs out of the fund.] The Government Agent precipitates the dispute between the claimants by acquiring the land compulsory. He ought to bear his costs; it is manifestly unjust that the claimants should pay the cost of the Government Agent. In In re Fisher  [1 (1894) 1 Ch. 450, 453.] Lord Justice Kay said: " If we look at the reason of the thing, it is very hard upon a landowner that his land should be taken from him compulsorily and the money paid into Court, and that when the money is paid out he should have to pay the costs of it himself." [WOOD RENTON J.-The chief question is whether the District Court has the power to make such an order as the present.] The Supreme Court has already held that the Court has not the power to make this order. [HUTCHINSON C.J.-The practice has been against the appellant, in spite of Green v. Romanis.] Counsel also referred to Cripp's Law of Compensation (3rd ed.), p. 287.

Van Lavjenberg, Acting S.-G., for respondent, not called upon.

Cur. adv. vult.

October 14, 1910. HUTCHINSON C.J.-

The Crown took a small piece of land under the powers conferred by " The Land Acquisition Ordinance, 1876 "; and the Government Agent, finding that there were two claimants of the land, each of whom claimed the whole of it, agreed with them, under section 10, as to the amount of compensation to be allowed, and then, under section 34, referred the dispute to the District Court. The District Court decreed that the present

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