Suva City Council v Ben [2015] FJHC 101; HBC439.1999 (20 February 2015)

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IN THE MATTER of an application by the Plaintiff under the Local Government Act, Section 94 and under the State Acquisition of Lands Act, Cap 135 for the Compulsory Acquisition of Land

SUVA CITY COUNCIL,
a local body corporate duly constituted under the Local Government Act, Cap 135.
Plaintiff

ASMUK LAL and MANHAR LAL
of 6112-20 Redgrave Drive, Tabreake, Int, M9R – 3T8, Canada, Businessman
2nd Defendant

BALWANT BHAI and DAMYANTI BEN
of C/- Garment Manufacturers, PO Box 12003, Suva, Businessman & Domestic Duties respectively
3rd Defendant

URIS MIDGES and JANICE MIDGES
of C/- Janet, GPO Box 11809, Suva, Consultant Surveyor and Domestic Duties respectively
4th Defendant

MANSUKHLAL ODHAVJI and MAHENDRA ODHARJI
of PO Box, Suva, Businessmen
5th Defendant

Appearance : Appearance made before the Hon. Justice Jitoko on 11 May 2005
Ms Waqanika, Counsel for the Plaintiff
Ms Fatiaki Y., Counsel for the 3rd Defendant

[1] This matter was heard before Hon. Justice Jitoko on 11 May 2005 and fixed for Judgment on Notice.

[2] The proceedings already conducted before Hon. Justice Jitoko, will be considered for the delivery of the Judgment. I have perused the judge's notes, written submissions and the affidavits filed and which are available in the case record, for the said purpose.

[3] 3.1 The Plaintiff, Suva City Council had instituted this action on 16 September 1999 by way of originating summons to authorize the Plaintiff to acquire land belonging to the 12 Defendants for widening of Amy Street, Suva.

3.2 As stated in the affidavit of Eroni Ratukalou, a Director Engineering Services sworn on 15/9/1999 of Suva City Council, it was stated the acquisition of the lands owned by the 1st to 12th Defendants are needed for the purpose of widening the road to ease the traffic.

3.3 The Plaintiff managed to acquire land and widen almost half of the length of Amy Street, by acquiring land of 4 occupants.

3.4 The 12 owners who are the Defendants of this case refused to part with their land, however, it became necessary for the council to move this court for compulsory acquire of the lands.

3.5 Ministerial approval was granted by letter dated 9 June 1995 (copy annexed and marked as 'A').

3.6 Notices were served on the Defendants in December 1998 (copy annexed as 'B') and the Notices were published in the Government Gazette of 15 January 1999 (copy annexed and marked 'C').

3.7 The Plaintiff sought orders for compulsory acquisition pursuant to Section 94 of the Local Government Act and Section 6 of the State Acquisition of Lands Act Cap 175.

3.8 The 1st Defendant had filed his affidavit dated 6 December 2000 enclosing a petition dated 8 February 1999 addressed to D F Solanki, Acting Town Clerk/Chief Executive Officer of the Plaintiff (annexed and marked as 'A') and stated inter-alia:

(a) There was no requirement or necessity to widen the Amy Street traffic on the street is busy only in the morning approximately for 1 hour;

(c) He is not aware that 46 properties were acquired through mutual discussions and agreement and urged the council to disclose the names of the 46 property owners;

(d) The 1st Defendant also stated that if compulsory acquisition is made, living in the property is unsafe, it will be encroachment to his right of quite enjoyment of his occupation of the property etc.;

(e) The 1st Defendant admitted that he received the Notices and further stated he and the other 11 Defendants raised their concern with the Plaintiff by letter dated 1st February 1999 annexed and marked as 'B';

(f) The 1st Defendant and other owners have put forward other options available which were more beneficial to the public and which will not inconvenience to his family and other Defendants;

(g) The 1st Defendant also pleaded this court to dismiss the Plaintiff's action and to order the Plaintiff to consider and discuss other options available.

3.9 By the amended originating summons filed on 21 March 2001, substituting some other parties in place of 2, 6, 7, 8, 9, 11 and 12 Defendants. Second further amendment to summons was filed on 13 February 2002. Order was made by the Deputy Registrar on 20 February 2002 granting leave to the Plaintiff to delete and add the Defendants as stated in the said order.

3.10 Several applications were made by the Plaintiff and finally the 3rd further amended originating summons dated 24 March 2004 was filed on 1 April 2004, and sought the following orders:

(1) An area of 28m² from CT6495 being part of Lot 5 DP 6976 owned by Usha Ben (1st Defendant).

(2) An area of 28m² from CT6497 being part of Lot 3 DP 6976 owned by Hasmuk Lal and Manhar Lal (2nd named Defendant).

(3) An area of 28m² from CT6499 part of Lot 1 DP 6976 owned by Balwant Bhai and Damyanthi Ben (3rd named Defendants).

(4) An area of 52m² from CT 3789 being part of Lot 9 DP 6976 owned by Juris Midges and Janis Midges (4th named Defendants).

(5) An area of 38m² being part of Lot 13, DP 6068 owned by Mansukhlal Odhavji and Mahendra - f/n Ratilal Odhavji (5th named Defendant).

3.11 When the matter came up before Hon. Justice Jitoko on 19 April 2004, Orders were made as per Ex-parte Motion and directions were given to serve the summons.

[4] Time to time originating summons was amended to substitute parties on demise of the original Defendants and finally the Defendants were the persons stated in paragraph 3.10.

[5] I have taken into consideration the affidavits filed by the parties, and the oral and written submissions to arrive at conclusions and then to make my determination.

(a) Affidavit sworn by Eroni Ratukalou, Director Engineering of the Plaintiff sworn on 15 September 1999 and annexures marked 'A' and 'B';

(b) The affidavits sworn by the 1st Defendant in the originating summons Natwarlal Chauhan (subsequently substituted Usha Ben) sworn on 6 December 2000 and the letter dated 8/2/1999 annexed marked as 'A', the concerns by the other 11 Defendants;

(g) The affidavits sworn by Jagdish Singh, Acting Director Engineering Services of the Suva City Council sworn on 24 March 2004;

6.1 In 1979, Suva City Council had a Town and Country Planning Scheme which was approved by the Minister to widen certain roads and streets around Suva City to be widened and developed for the interest of the public.

6.2 The purpose of the scheme is to envisaged what the council had in place for the development that the council will undertake in future.

6.3 Amy Street was one of the busy streets that was identified by the council to be widened. It is located in a Commercial 'B' Zone and as such it requires to be widened to cater for the volume of traffic that passes through the area.

6.4 The area that was allocated for widening was to be 6 feet away from the road at the time the scheme was approved and the scheme was advertised in the papers and gazette in the Fiji Islands Government Gazette and no one has objected (emphasis mine). None of the Defendants had tendered any documentary evidence with regard to any objection on this issue.

6.5 The Plaintiff passed a resolution in its meeting held on 25 June 1997 that Amy Street road needed to be widened for the purposes of facilitating easy traffic congestion.

6.6 Notices of Intention to compulsory acquisition of the land were served on the registered owners in December 1998 annexed to the Affidavit of Eroni Ratukalou dated 12 April 2002 marked as annexure 'B'.

6.7 The Notices of Intention to compulsory acquire the land pursuant to the exercise of the powers vested with the CEO of the Plaintiff under Section 94 of the Local Government Act and Section 3 and 5 of the State Acquisition of Lands (Cap 135) was published in the Government Gazette dated 15 January 1999 marked as 'C' and annexed to the said affidavits dated 12 April 2002 sworn by Eroni Ratukalou.

6.8 By the letter dated 9 July 1998, the Ministry of Local Government and Environment approved the Plaintiff to apply to the High Court for compulsory acquisition of the land which is the subject matter of this case (letter marked as 'A' to the affidavit of Eroni Ratukalou).

6.9 Except for the 3rd named Defendants no other Defendants in this case has filed any submissions. The 3rd named Defendants submitted:

(a) the widening of the road will affect the business council out along Amy Street;

(b) the acquisition of 20sqm from the property will cause huge detriment to the Defendants and the front walls of the Defendants' house will be close to the main road leaving it subject to vandalism damages and hooligans at night and endangering the occupants for traffic accidents;

6.10 I cannot agree by widening the Amy Street the said submissions are relevant. The Plaintiff plan to widen the Amy Street is to ease the traffic congestion which is beneficial to the land owners i.e:

(2) The risks and difficulties are the same whether the road is narrow or wide, it does not make any difference. The business or industries along the road will develop having easy and proper access.

(3) When there is a Master Plan for a capital city, it is not possible for the council to look at alternative remedies as suggested by the Defendants.

(4) The Defendants also concern whether adequate compensation will be paid on such acquisition. I firstly deal with the issue of public purpose. There is no challenge that the widening of the Amy Street is for public purpose. Only issue to be decided is whether the proper procedure was being followed. Except for disputed valuation, the Defendants have not contested the procedure.

(5) The compulsory acquisition of the land powers are detailed in the Section 94 of the Local Government Act (Cap 125). The Section 94 enumerates the compulsory acquisition for public purpose. Section 6 of the Crown Acquisition of Lands Act Cap 135 allows the acquiring authority (the Plaintiff) to make an application to this court which was adhered to.

(6) 'Public Purpose' is defined in Section 2 of the Crown Acquisition Act (Cap 135):

"The utilization of the land, necessary or expedient in the interests of defence, public safety, public order, public morality, public health, town and country planning or the utilization of any property in such a manner as to promote the public benefit".

The acquiring of the land to widen the Amy Street undoubtedly a public purpose and the Defendants fails.

(7) The Section 6(3) of the Crown Acquisition of the Lands Act empowers the court and set guidelines which states:

"The court shall not grant an order referred to in either sub sections (1) or (2) unless it is satisfied that the taking of possession or acquisition is necessary or expedient in the interests of defence, public safety, public order, public morality, public health, town and country planning or utilization of any property in such a manner as to promote the public benefit".

I already concluded the widening of the Amy Street is for a public purpose further more it is on Town Planning Scheme at large. Certainly, the project is to develop Suva City as the capital of Fiji, which should be planned for the future generations and I have no hesitation to conclude the widening of Amy Street is part of Town Planning Scheme for the benefit of the public. I also conclude in such a situation, the Defendants private reasons cannot be taken into consideration.

(8) I further conclude the Defendant have not proved the compulsory acquisition is not for a public purpose and there is any malice on the part of the Plaintiff.

(9) The Plaintiff had stated that already 46 properties along the Amy Street were acquired and the Defendants failure to allow the acquisition had created a situation where the development work to be carried out by the Plaintiff is being obstructed and as such the compulsory acquisition being made justifiable.

Accordingly, I determine the Plaintiff's application for compulsory acquisition of the Defendants' land should be allowed.

(10) Section 7 (1) of the Crown Acquisition of Lands Act (Cap 135) provides for "Damages and Compensation" which states:

"An acquiring authority shall pay damages to all persons owning the property or having any interest or right therein that would be affected by the taking of possession or acquisition, thereof in respect of the taking of possession prior to the application to the court................".

[7] The Defendant also had drawn attention to the Section 40(1) of the 1997 Constitution and stated, the Constitution afforded them the right not to be deprived of property by the state other than in accordance with a law stipulated under Section 40(1) of the Constitution (similar provisions is enumerated in 2014 Constitution in Section 27). Section 40(2) of the 1997 Constitution states that it's for 'public purpose' which is established by the Plaintiff, and the Defendants are only entitled to the compensation.

[8] The Plaintiff submitted Halisbury Law of England, 4th Edition, para 140, on page 103, it states that "the value of land must be assessed at the prices current at the time of entry or the time of agreement or assessment, whichever is the earlier; what is to be valued is the land and the interests in it at that time, subject to the rule that interest created or works beyond the necessities of continued enjoyment by the owner after service of the notice to treat, which add to the undertakers or acquiring authority's burdens must be disregarded and interest created or works executed for the purpose of increasing and compensation must be disregarded".

[9] I hold that the Defendants should be compensated as per valuation of the properties made prior to filing of this application before the court. However, it is justified to pay interest on the said sum from the date of Notice i.e. 28 December 1998 up to the date of this judgment to the Defendants. If any of the Defendants have obtained the compensation before this Judgment they are not entitled for such compensation. I determine the Defendants are entitled to:

1st named Defendant	-	$1100.00	*With interest at the* *rate of 4% from* *28 December 1998*
2nd named Defendants	-	$1100.00
3rd named Defendants	-	$1000.00
4th named Defendants	-	$2054.00
5th named Defendants	-	$1500.00

(a) The Plaintiff is authorized to compulsorily acquire the lands belonging to the Defendants as described in paragraphs 1 to 5 of the Third further Originating Summons dated 24 March 2004 filed on 1 April 2004;

(b) Order that the Plaintiff should pay the compensation to the Defendants within 30 days on the valuation made by the City Valuer on the properties owned by the Defendants as detailed in paragraph 9 of this Judgment;

High Court of Fiji

Suva City Council v Ben [2015] FJHC 101; HBC439.1999 (20 February 2015)