1933 Present: Drieberg J. and de Silva A.J.

NEWNHAM v. GOMIS.

174-D. C. (Inty.) Colombo, 2,839.

Land acquisition-Land acquired by Municipality-With street lines laid down-Measure of compensation-Depreciation in value caused by street lines-Housing and Town Improvement Ordinance, No. 19 of 1915, ss. 18 (4) and 80.

Where a Municipality acquires land in respect of which street lines have been laid down by it,-

Held, that in awarding compensation for the land the depreciation in value caused by the laying down of street lines may be taken into consideration.

APPEAL from an order of the District Judge of Colombo.

A land belonging to the defendant was acquired by the Chairman of the Municipal Council by a mandate issued under the Land Acquisition Ordinance. The Municipal Council by resolutions dated December, 1910, and November, 1918, had laid down certain street lines in respect of the land. The question for decision was whether in assessing compensation payable for the land, the depreciation in value caused by the laying of the street lines should be taken into consideration.

H. V. Perera (with him E. B. Wikramanayake), for defendant, appellant. The laying down of street lines is not to deprive a person of the use of his land, but is the first step in acquisition. The land is then required to be acquired. The postponement of the acquisition will not give the Municipality an advantage. Under the Land Acquisition Ordinance we are told that compensation is awarded on the market value at that date but we are not told that the market value depends on the user at that date. The general principle is that where statutory power is given to a public

authority to derogate from the right of a private individual it is also subject to the payment of compensation irrespective of such derogation. An act of the public authority in the process of acquisition cannot give it any advantage to the detriment of the owner in Respect of the amount of compensation. This is not a matter purely under the Land Acquisition Ordinance. It is a proceeding under the Housing Ordinance into which the Land Acquisition Ordinance is brought for a particular purpose, i.e., the purpose of convenience where there is a failure to effect a settlement. On general principles one must have regard to the conditions that existed when the Municipality took up the laying down of street lines. (1909 1 K. B. 16.) The Crown, for example, is not entitled to claim the benefit of compulsory dedication under section 49 of the Improvement Ordinance. (28 N. L. R. 65.) Statutes which encroach on the rights of property of the subject must be construed by implication to carry with them the duty to pay compensation. (Maxwell on Statutes, 7th ed., at p. 245; (1922) 24 Bombay at 785.) It would be inequitable for the Municipality to seek to assess the value of the property on the depreciated basis. If the laying down of street lines implies even an intention to acquire, then when it comes to the actual acquisition the private individual can seek to be compensated at the market value at the date of laying down the street lines.

Hayley, K.C. (with him J. L. M. Fernando), for the plaintiff, respondent.- A street is a road with buildings alongside it. Under our Ordinance at least two houses are required to make a road a " street". English law speaks of building lines, not street lines. (51 & 52 Vict. c. 52.) See also (1914) A. C. 1056; (1905) A. C. 1; 85 L. J. P. C. 95. This is a purely statutory matter. In the 1915 Ordinance we are told that the date of assessment should be when the scheme is made. If the body on whose behalf the land was acquired itself took steps which depreciated the value of the land, there is no provision of law which says that compensation must be assessed irrespective of the depreciation. (Mitter v. Secretary of State for India.1[25 Cal. 194.])

H. V. Perera, in reply.-A street line is not a buildi