Fraser V. British Steam Navigation Co.,Ltd.,

Present : De Sampayo J. and Schneider A.J.   1921

FRASER v. BRITISH STEAM NAVIGATION CO., LTD.

71-D. C. Colombo, 2,526.

Land Acquisition Ordinance, No. 3 of 1876 - Compensation - Is the purpose for which land is acquired to be taken into consideration in determining compensation ?

In determining the amount of compensation to be paid to the owner of land acquired by Government under the Land Acquisition Ordinance, the Government Agent can take into consideration the purpose for which the land is acquired. The words " the damage sustained at the time of awarding compensation" should not be construed as meaning the damage actually suffered at that point of time without reference to the continuing damage caused by the acquisition. The " injurious affecting " must be estimated with reference to the date of the awarding of compensation, and according to the purpose for which the land is proclaimed to be required. The measure of the injuria will differ as the purpose.

THE facts appear from the judgment.

A. Drieberg and H. H. Bartholomeusz, for the defendant company, appellant.

Solicitor-General (with him Fernando, C. C.), for plaintiff, respondent.

Cur. adv. vult.

244

January 31, 1921. SCHNEIDER A.J.-

Out of an extent of 11 acres 1 rood 24f perches of the land called Mahawatta or Coomaraswamy's land, the Government acquired 2 acres l rood 6.52 perches for a public purpose under the provisions of the Land Acquisition Ordinance, 1876. The portion acquired is that abutting on Korteboam street and Alutmawata road, and shown as lot 8 in the survey plan marked P 1. The plaintiff, on behalf of the Government, and the defendant company agreed upon the amount to be paid as compensation for certain buildings and trees standing upon the portion acquired, but they were unable to agree upon the sum to be paid as the market value of the land and for the damages sustained by reason of the acquisition injuriously affecting the other portion which was not acquired.

The plaintiff, therefore, referred the matter to the District Court of Colombo under the provisions of section 11 of the Ordinance. The plaintiff offered compensation at the rate of Rs. 20,000 per acre as the market value of the land considered as bare undeveloped land, together with another 10 per cent. of that sum in consideration of the compulsory nature of the acquisition under the provisions of section 38 of the Ordinance. For damages he offered a like 10 per cent. The defendant company claimed as the market value of the land at the rate of Rs. 80,000 per acre, and as damages Rs. 50,000.

Section 21 of the Ordinance lays down what matters the Judge and assessors shall take into consideration in determining the amount of compensation. Applying the provisions of that section to this case the Court had to determine two questions :-

(1) What was the market value of the land at the time of awarding compensation (section 21 first) ?

(2) What is the damage the defendant-company has sustained by reason of the acquisition injuriously affecting the other land of the company ?

The Judge and the assessor appointed by the plaintiff awarded compensation at the rate of Rs. 25,000 per acre for the land and Rs. 7,000 as damages. They directed that the defendant company should pay the plaintiff's costs of action. The assessor appointed by the defendant company was of opinion that the market value of the land should be calculated at Rs. 45,000 per acre. He agreed that Rs. 7,000 was the sum to be awarded as damages. He was also of opinion that each party should bear his own costs.

The defendant company has appealed from the award of the Court.

There were two methods open for ascertaining the market value of the land acquired, viz., (1) by inquiring what the land would fetch if laid out in the most lucrative and advantageous way in which the owner could dispose of it, and (2) by finding out the

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