Gunatileke V. The Municipal Council Colombo

1936 Present : Akbar and Koch JJ.

GUNATILEKE v. THE MUNICIPAL COUNCIL,
COLOMBO.

63.-D. C. Colombo, 330.

Compensation for improvements-Building upon neighbour's land-No right to compensation-Right to remove the building-Roman-Dutch law.

A person who builds partly on his own land and partly on his neighbour's land has no right to claim compensation for the value of the building or a portion of it from the owner of the land encroached upon.

His right is restricted to a removal of the encroaching portion of the building or a right to buy the land on which it stands.

THIS was an action in which the plaintiff claimed compensation for the value of a building a portion of which had encroached on a road reservation vested in the defendant Council. The defendant denied that the plaintiff was in law entitle to compensation for improvements even if he was a bona fide possessor. The learned District Judge dismissed -the plaintiff's action.

H. V. Perera (with him Molligodde and E. B. Wikramanayake), for plaintiff, appellant.-Lessor can claim for improvements made by lessee (Appuhamy v. Doloswala Tea & Rubber Company [1 25 N. L. R .267. ] ). This principle can be applied to a licensee. Compensation can be claimed against the Crown just as against a private party (Velapodi v. Kanda Perumal [2 4 Bal. 126.] ). The making of an encroachment on a road reservation bona fide is not a criminal offence. The only criminal offences are those that are wilful (section 91). The question of compensation depends on bona fides. In 25 N. L. R. 267 the lessee was a lessee under a long lease. The improvements were obviously made by the lessee for his own benefit. It was held that the lessor could take the benefit. A fortiori in the case of a lease for a short time, and more so in the case of a licensee.

Keuneman, for defendant, respondent.-The theory of compensation is based on the principle that a person shall not enrich himself at the expense of another. Also a person cannot get compensation except to the extent that a particular land has been enhanced in value. Nature of improvement must be looked at from the nature of the property. Building on a road reservation is of no use. Usefulness cannot be considered from the point of view of the improver (1 N. L. R. 228). Encroachment like this is not an improvement. Plaintiff had no right to encroach on the road. Why should the Council pay him for something he had no right to do and which is of no use to the Council (2 Maarsdorp 48). Case in 25 N. L. R. does not apply to the facts of this case. Besides both Judges did not agree in that case on this point.

H. V. Perera, in reply.-Useful improvement is not to be looked at from the point of view of owner. Owner cannot reduce a bona fide possessor to the level of a mala fide one. Only mala fide possessor can be asked to remove his improvements. Useful improvements are defined in Pereira p. 352. Intention is the intention of the man who made the improvements. The object is to compensate a man who is losing something. In considering the market price and the land improved one must take into consideration the possibility of the encroacher being a possible purchaser. The saleable value to the owner is increased by the encroachment. One must consider the question in the abstract, not from the point of view of a particular owner.

Cur. adv. vult.

June 2, 1936. AKBAR J.-

This appeal raises an important question of law which depends on facts which cannot be disputed. Plan D 7 shows a boutique which we may assume as having been built by the plaintiff. Now this boutique stands for the most part on land owned by the plaintiff, but a portion of it to the north-east abuts on the portion coloured pink in plan D 7, which the District Judge has held to be a portion of a road reservation. This finding was not disputed in the argument before us and therefore this north-eastern por

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