The Collector of Land Revenue

- vs -

Looi

Judgment

Suffian LP

(delivering the judgment of the Court)

1. Lot 412, Certificate of Title No 13287, Town of Kuala Lumpur, is a large piece of land of approximately 1.994 acres in Kampong Bahru, upon which stood a large two-storey house No 175, Raja Muda Road.

2. To change the course of the Sungai Benus which passed through Kampong Bahru, the Government acquired part of it under the Land Acquisition Act, 1960 (“the Act”). The Government acquired an area of 15,540 square feet, which has accordingly been excised, and a further area of 4,005 square feet not acquired was severed from the rest of the land. As a result of river deviation work done on behalf of the Government after the acquisition, the house was badly damaged and required extensive repair.

3. The Collector of Land Revenue heard the owner’s claim on 29 October 1969, and on 24 January 1970, and in his award dated 30 January 1970, awarded compensation as follows:

   1. a sum of $54,390 for the 15,540 square feet acquired at $3.50 per square foot; and

   2. a sum of $900 as disturbance money.

   No award was made in respect of the damage to the house. It is round this that controversy now centres.

   The landowner was dissatisfied with the award and at her request the matter was referred under s 38 of the Act to the High Court; and on 3 November 1979, Vohrah J confirmed awards A and B; and further awarded

   3. $8,010 as compensation for damage sustained by reason of the severance of $4,005 sq ft from the rest of the land; and

   4. $40,185 compensation for the damage to the house.

4. The Collector accepted all the learned judge’s awards, except award D which says that the Government must pay compensation for the damage done to the house.

5. There is no dispute regarding the market value of the land acquired, and none regarding the damages that are payable in respect of severance. The dispute now is regarding the compensation awarded in respect of the damage done by the Government subsequent to the acquisition, to the house which was never acquired and still belongs to the owner.

6. The Government contends that this compensation, if payable, should have been the subject of a separate suit. The owner contends (and the learned judge agreed) that it need not have been the subject of a separate suit and that it can be considered and awarded in the course of a reference under the Act.

7. The authority for holding that compensation is payable for the damage to the house is para 2(d) of the First Schedule to the Act which provides:

   In determining the amount of compensation the court must take into consideration [among other things] the damage, if any, sustained or likely to be sustained by the person interested (i.e. the owner at the time of the Collector’s taking possession of the land by reason of the acquisition injuriously affecting his other property, whether movable or immovable, in any other manner or his actual earnings.

8. Thus the point before us is a short and simple one: must damages for injurious affection to the house under para 2(d) be sued for separately or may they be claimed and awarded in the course of the reference under the Act? This point has never been decided by the courts before.

9. The point is not merely of academic interest.

10. No claim was made at the enquiry before the Collector. It would appear that if it had been made, the Collector could, because of the words “likely to be sustained”, award compensation for the damage done to the house.

11. In Collector of Dinagepore v Girja Nath Roy ILR 25 Cal 346 a piece of land belonging to the Maharajah of Dinagepore was acquired for the construction of a bridge; a bridge was constructed upon it and opened for traffic; and the Maharajah claimed compensation for the loss of his income derived from his ferry which was worked within a short distance of the spot on which the bridge had been constructed and within the limits of his estate. He relied on cl 4 of sub-s (1) of s 23 of the Indian Land Acquisition Act which was almost like our para 2(d). It provided that in determining compensation regard shall be had to:

    The damage (if any) sustained by the person interested at the time of the Collector’s taking possession of the land by reason of the acquisition injuriously affecting his other property, moveable and immovable, in any other manner, or his earnings.

12. It was contended for the Collector that the claim was unsustainable because no action could have been maintained by the Maharajah in respect of the bridge if it had been opened without the authority of the Act, and because the damage sustained, if any, was attributable, not to the acquisition of the land, but to the user of it when the bridge had been constructed and opened.

13. The claim was allowed by a court of two judges. The court cited with approval the following passage from Lord Watson’s judgment in Cowper Essex v Acton Local Board (1889) LR 14 App Cas 153.

    A proprietor is entitled to compensation for depreciation of the value of his other lands in so far as such depreciation is due to the anticipated legal use of works to be constructed upon the land which has been taken from him under compulsory powers.

14. The Calcutta court also said at page 352:

    There is no limit as to the nature of the ‘injuriously affecting’ except in so far as this is provided for by the other clause of the section: the difficulty is as to the time when the damage is sustained. The words ‘at the time when the Collector takes possession of the land’ cannot mean that compensation can only be given for the damage which had actually at that time been sustained without reference to a continuing damage caused by the acquisition.

15. Be it noted that our provision is stronger than the Indian, for ours provides that not only must regard be had to the damage actually sustained by the owner but also damage likely to be so sustained.

16. On the authority of the Calcutta case, it is plain that an owner is entitled to be compensated for damage that is sustained not only at the time of the Collector’s taking possession of the land — on 24 January 1970, in the instant case - but also for damage likely to be sustained thereafter, i.e., such damage as can reasonably be expected at the time of the Collector’s taking possession. This disposes of the argument of Mr Mansor for the Government that the owner is only entitled to be compensated for the damage sustained at the time of the Collector taking possession.

17. We think that it was unreasonable to expect the owner to submit the claim for damage to the house at the enquiry. Mr. Lee Yoke San, chartered surveyor and licensed appraiser, a witness for the owner, prepared a report on 14 November 1969, i.e. after the first day’s hearing before the Collector, and said that he expected possible damage to the house as a result of the deviation work but that it was not possible then to assess the extent of the damage and the amount of compensation to be paid for it. The Collector took cognisance of Lee’s report at the subsequent hearing on 24 January 1970.

18. In any event the Government had notice of the owner’s claim for injurious affection at that stage.

19. Mr Mansor submitted that the Government was expecting to be sued by the owner for the damage done to the house; and if she had done so, the Government could have protected their interest, because they still held some retention money owing to the contractor who had done the river deviation work, and the Government could probably somehow involve the contractor, who, it was said, was an independent contractor for which the Government was not vicariously liable. The owner did not sue, and so the Government released the retention money to the contractor, thus losing their hold over him.

20. To allow the owner to pursue her claim in the course of the reference which was not heard until 30 May 1978, i.e. nearly eight years after the completion of the river deviation work on 12 December 1970, was Mr Mansor argued, unfair to the Government; because by then any suit by the owner would certainly have been time-barred under the Public Authorities Protection Ordinance, 1948, which prescribed a one-year time limit, and allowing consideration of this claim in the course of the reference was tantamount to reviving a time-barred cause of action. What the owner should have done, it was submitted, was to sue the Government separately for this damage.

21. With respect we do not agree. In our judgment the learned judge was right in ruling that the owner need not have sued separately for this damage and that the court has power to consider and adjudicate on her claim in the course of the reference. With respect we agree with the law stated by the Calcutta court in RH Wernicke v The Secretary of State for India in Council 13 Calcutta Weekly Notes 1047.

22. There Government acquired part of a tea garden for the purpose of extending a rifle range near Darjeeling. The owners were left with about eight acres of tea land behind the butts where it was extremely unsafe to work when firing was going on. They claimed injurious affection of these eight acres. Counsel for the Government opposed the claim, arguing that any damage should be the subject of a suit. Richardson J at pages 1059 and 1060 disposed of this argument as follows:

    There remains the claim for injurious affection which is laid as Rs 2,540. It is said that the rifle range will interfere, with the working of eight acres of land behind the butts and I think that there can be no doubt as to this. It will not be safe to put coolies on the land when the range is being used. Mr. Sinha for the Government contended that the contemplated injury was contingent, that it could only arise from the negligent use of the range and that the tea garden was not entitled to compensation now but would be entitled to a remedy by suit when the injury occurred. The case to which he referred His Highness the Gaekwar of Baroda v Gandhi Kachrabhai Kasturchand (1903) LR 30 IA 60 is not an adequate support for this proposition and the learned counsel for the claimants cited good authority for the view that the tea garden is entitled to compensation now even if the injury which is contemplated be of the nature of an actionable nuisance (Land Acquisition Act, s 23, clause fourthly) Croft v L & NW Ry Co (1863) 32 LJ QB 113; 122 ER 164 and Cowper Essex v The, Local Board of Acton (1889) LR 14 App Cas 153.

23. As to Mr Mansor’s argument that to allow the consideration of the owner’s claim in the course of the reference was tantamount to reviving a time-barred claim, it cannot be said that the owner has been guilty of delay at all. The Collector made his award on 30 January 1970; and the owner promptly by Form N asked for her objection to be referred to the High Court. This form, be it noted, was dated 4 March 1970, one month and a few days later and certainly well within the one-year limit prescribed by the Protection of Public Authorities Ordinance, 1948. Moreover, as can be seen from this Form the owner specifically gave notice that she intended to make a claim under para 2(d) of the First Schedule.

24. An additional reason for holding that the owner’s claim under this paragraph may be considered in the course of the reference is the absence from the Land Acquisition Act, 1960, of a section corresponding to s 31 of the FMS Land Acquisition Enactment (FMS Cap 140) which provided that when an owner had made a claim to the Collector, the High Court in a reference might not award a sum exceeding the sum so claimed: this implies that the Legislature when enacting the Act desired to let the High Court have in a proper case a free hand to award more than the sum claimed before the Collector. What case can be more proper than this one where at the time of the enquiry there was only the possibility of damage and soon after the completion of the river deviation work there was indeed damage and extensive damage at that?

25. Finally, it is in the public interest that as many related matters in controversy as possible should be ventilated and determined in the same proceedings — to save time and costs.

26. For the above reasons, we would dismiss this appeal with costs.

Cases

Collector of Dinagepore v Girja Nath Roy ILR 25 Cal 346; Cowper Essex v Acton Local Board (1889) LR 14 App Cas 153; RH Wernicke v The Secretary of State for India in Council 13 Calcutta Weekly Notes 1047.

Legislations

Land Acquisition Act 1960: para 2(d) of First Schedule

FMS Land Acquisition Enactment (FMS Cap 140): s.31

Land Acquisition Act [India]: s.23

Representations

Abu Mansor Ali (Senior Federal Counsel) for the appellant.

Roland Khoo for the respondent.