023-NLR-NLR-V-12-FERNANDO-et-al.-v.-ASSISTANT-GOVERNMENT-AGENT-KEGALLA.pdf
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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Wendt.
FERNANDO et al. v. ASSISTANT GOVERNMENT AGENT,
KEGALLA.
D. C., Regalia, 2,539.
Waste Lands Ordinance — “ Enter ” — Continuing in occupation —:Ordinance No. 1 of 1897, s. 22.
The word “ enter ” in sub-section (1) of section 22 of OrdinanceNo. 1 of 1897 does not refer merely to the original entry, butincludes every entry subsequent to the publication of the noticeprescribed by section 1 of the Ordinance.
Assistant Government Agent v. KuLatnmga > referred to.
A
PPEAL by the plaintiffs from an order of the District Judgedirecting them to deliver possession of a certain land and
of everything on it within seven days under sub-section 2 of section22 of Ordinance No. 1 of 1897. The material facts appear in thejudgments.
Bavoa, for the plaintiffs, appellants.
W. Pereira, K.G., S.-G., for the Crown.
Our. adv. vuU.
March 17, 1909. HtJTCHmsojf, C.J.—
This is an appeal by the plaintiffs against an order made onFebruary 13, 1909, under section 22 of Ordinance No. 1 of 1897.
On September 27, 1907,' the Assistant Government Agent ofKegalla issued a notice under section 1 of the Ordinance which waspublished in the Gazette of that' date. It declared that unless thepersons, if any, claiming any interest in the lands therein mentioned,should within three months appear before the Assistant GovernmentAgent and make claim to the lands, the Assistant GovernmentAgent would, in pursuance of the powers vested in him by theOrdinance, declare the lands to be the property of the Crown.
On February 12, 1908, the plaintiffs made a claim, which wasduly referred to the District Court-.
On October 7, 1908, the Assistant Government Agent madecomplaint to the District Court under section 22, charging theplaintiffs with having acted in contravention of that section. TheDistrict- Court heard the complaint and made an order on October 9,.1908, dismissing it, which, however, was set aside on appeal, andthe case was sent back for further evidence.
»(1901) S N. L. R. 37.
1909-
March 17.
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1909. On February 13, 1909, the District Court, after hearing furtherMarch 17. evidence, held that the plaintiffs, since the publication of the notice,Hutchinson without the requisite consent, entered on the land and were thenC.J. working mines on it, and ordered the plaintiffs to deliver uppossession of it and of everything on it within seven days.
< The first point taken by the appellants is that the foundation ofthe authority given by the first section of the Ordinance to issuethe notice is that it appears to the Government Agent that the landis forest, chena, waste, or unoccupied, and that the notice issued inthis case does not state, and there is nothing on the record to show,that it so appeared to the Government Agent. This point wasnot taken until the hearing of this appeal, and the plaintiffs filedtheir claim and fought this application in the District Court withoutmaking this objection. The form of the notice under section 1 isgiven in the schedule to the Ordinance, and was followed in this case ;it states that the Government Agent is acting under the powersvested in him by the Ordinance; if the form had stated that itappeared to the Government Agent that the land was forest, &c.,no proof would have been required that it so appeared to him ; andin my opinion when the notice follows the form (as it must do), nosuch proof is required.
The point of substance urged by the appellants is that there isno proof that they, after the publication of the notice, enteredupon or took possession of the land. It is proved that they hadentered on the land long before the date of the publication of thenotice, and that they, before that date, were working andafterwards continued to work a mine of plumbago on the land bymeans of a pit on their adjoining land through a tunnel leadingto the land in dispute; and there is also evidence that they havesome buildings and works on the land in dispute.
In Assistant Government Agent v. Kidatunga,1 Bonser C.J.,with whom Browne J. concurred, held that in sub-section (1)of section 22 the words “ with intent ” only apply to the clause
immediately following them, viz., “ to establishownership,”
and do not govorn the other infinitives which follow, so that theclause, “ or to use any mine therein,” means—not that it is unlaw-ful “ to enter with intent to use any mine,” but that it is unlawfulto use any mine therein. It seems from the reference in thejudgment to Mr. Bawa’s argument that he had contended that theevidence showed that the appellant had not “ entered ” the landsince the notice, but that having previously cultivated It he haddone nothing more after the notice than clear the weeds and hoe upthe ground. Bonser C.J., refused to accept Mr. Bawa’s contentionthat the words “ with intent ” in sub-section (1) governed the wholeof the succeeding clauses. He then said that he accepted theDistrict Judge’s finding that what the appellant did was to make1 (1901) 6N.L.R. 37.
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a clearing for the purpose of cultivation. But he dotes not refer .tothe circumstances that the order had been made under sub-section
; he finds that the appellant had “ made a clearing for thepurpose of cultivation,” “ a thing which is expressly forbidden bythe Ordinance,” i.e., by sub-section (1), according to the construc-tion which he put on sub-section (1). He says nothing more aboutthe appellant having “ entered upon or taken possession of the land,”which is the only thing that gives jurisdiction under sub-section (2).I gather from the Mudaliyar’s evidence quoted in the judgment, andaccepted by the District Judge and by the Appeal Court, that theappellant had not previously cultivated the land; but. the Courtdoes not in terms so find. It seems to me .that the Courtwas so taken up with the argument as to the construction ofsub-section (1) that it overlooked the fact that the order was madeunder sub-section (2), and could only be made on proof that theappellant had entered upon or taken possession of the land with oneof the intents there mentioned. However that may be, I think, asI thought on the occasion of the former appeal, that the decision wasthat, upon proof that after notice a clearing had been made for thepurpose of cultivation, an order could be made under sub-section
—a decision which I should like to have reviewed by a Courtcompetent to over-rule it, if I thought it was absolutely necessary,but which we must follow until it is over-ruled.
But I think that the order of the District Judge should be affirmedon the ground that the word “ enter ” does not refer merely to theoriginal entry. It has no technical meaning. Every time a mangoes on the land, he enters upon it. If he enters upon it withoutany of the intents mentioned in the sub-section, he is not liable tohave an order made against him ; but if he enters with one of thoseintents, he is so liable. The object of the section seems to me to beto prevent a man, after the notice, exercising rights of ownership,or building or planting or clearing the land or felling trees oropening or working mines on it. The plaintiff went on the landafter the date of the notice with intent to work a mine on it, andtherefore the order was rightly made. I would dismiss the appealwith costs.
Wendt J.—
I agree that the appeal should be dismissed. I concur with mylord both in thinking that the decision in Assistant GovernmentAgent v. Kvlatunga} is open to question, and in hQlding thatin the present case the appellants after the issue of the Gazette
notices “ entered upon the landwith intent towork or
use a mine thereon,” and thereby rendered themselves liable tothe order which has been made against them.
Appeal dismissed.
1 (1901) s iv. L. R: 37.
9_,d 2
1909.
March 17•
Hutchinson
C.J.