030-NLR-NLR-V-09-APPUSINGO-APPU-v.-DON-ARON.pdf
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1906.May 23.
Present: Mr. Justice Wood Renton.
APPTJSINGO APPTJ v. DON ARON.
C. B., Colombo, 33,764.
. Notice ofaction—“ Purporting to act ”—Mala fide—ForestOrdinance
(No. 10 of 1885), ss. 70 and 78—Courts Ordinance (No. 1 of 1889)—Cietl Procedure Code, ss. 461,463, and 464.
Wood Benton J.—A public officer who does an illegal act Malafide in the pretended exercise of statutory powers cannot be said tobe " purporting " to act under the statute which confers those rightswithin the meaning of section 461 of the Civil Procedure Code,and is therefore not entitled to the notice of action provided forby that section.
T
HE plaintiff sued the defendant, a police officer, for damagesfor unlawful seizure of timber, in the possession of the
plaintiff, which the defendant alleged had been unlawfully removedby the plaintiff from Crown land. The Commissionef held that thedefendant had acted in bad faith in seizing the timber and did1 not'honestly believe that the timber had been cut on Crown land,but dismissed the action on the ground that notice of action hadnot been given by plaintiff to defendant, as required by section 461of the Civil Procedure Code.
The plaintiff appealed.
Garvin, for plaintiff, appellant.—The defendant acted maliciouslyand not bona fide. A public officer is only entitled to notice whenhe honestly intends to act in pursuance of the powers vested inhim. The word “purporting” does not mean “pretending” but“ intending ”. [Wood Renton J.—It is conceivable that a publicofficer may have acted mala fide and still be entitled to notice.] Yes,provided the act to which he was .moved by malice was one whichhe was lawfully entitled to do. It is submitted that a public officercannot mala fide do that which he had no honest belief he was em-powered to do, and still olaim the benefit of sub-section 1 of section461, Hermann v. Seneschal (1).
W. Perera, for defendant, respondent.—Defendant admittedlyacted as a public officer. Haintiff himself admits it, and it is onlyas headman he could have entered plaintiff’s land and removed the
(1) (1862) 32 L. J. Rep. (N.S.) C. P. 43.
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timber. In these circumstances he is entitled to a month's noticeunder section 461, Civil Procedure Code. “ Purporting ” in thesection means “ pretending,” and even if defendant acted malafide he was still entitled to notice, being sued for an act done in hisofficial capacity, Bahadur v. Price (1).
Garvin in reply.—He may have acted maliciously; still, to beentitled to notice he must have honestly believed he was entitledas public officer to do the act, King v. Chamberlain (2).
23rd May, 1906. Wood Renton J.—
In this case the question of law raised is of considerable interestand importance. The facts are simple. The respondent, LeanageDon Aron, who is police vidane of Ooruwella, seized certain raftersin the possession of the appellant which he alleged had been unlaw-fully removed by him from Crown land. It transpired that thisseizure was in itself unlawful, inasmuch as the land in question wasprivate land; and the . appellant thereupon sued the respondentin the Court of Requests of Colombo claiming the value of thetimber seized. At the trial of the case certain issues were framedand the learned Commissioner decided all these issues, except one,in favour of the plaintiff. He held that the timber iu questionhad not been felled from Crown land; that it had been lawfullyremoved by the plaintiff; and that its seizure by the respondentwas unlawful. He valued the timber at Rs. 10 and assessedthe damages at Rs. 5. In his answer to the appellant’s plaint,however, the respondent had raised the issue that in what he haddone he had acted as a public officer, and that he was thereforeentitled to the. one month’s notice of action provided for by section461 of the Civil Procedure Code in regard to proceedings againstsuch officer for anything “ purporting ” to be done by them intheir official capacity. It is conceded by the appellant that nosuch notice of action was given, and the learned Commissioner ofRequests, although he specifically holds that the respondent actedin bad faith and had no honest belief that the timber in questionhad been cut by the appellant on Crown land, has come to the con-clusion that he was yet “ purporting ” to act under the powers ofseizure confenfed oh forest and police officers by section 57 of“ The Forest Ordinance, 1885,” and was therefore entitled to themonth’s notice of action secured ,t° public officers by section 461of the Civil Procedure Code.
In the course of his judgment the learned Commissioner quotesa statement made by the appellant himself in cross-examination
a) (1897) I. L. R. 24 Cal. 584. (2) (1871) 40 L. J. Rep. (N.S.) C. P. 273.
1906.May 23.
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1906. to the effect that the respondent purported to act in his capacityMay 23. of headman in seizing the timber, and treats this as an admissionWoox, which, if not positively binding on the appellant, at least went farBentonJ. 'to dispose of the case. It appears to me, however, that the- Com-'missioner has taken a wrong view of the bearing of any such answeras this. Apart altogether from the fact that it was elicited incross-examination in reply to some ingenious advocate who hadthe requirements of the law in view, I think that the interpretationof the word “ purporting ” in the Civil Procedure Code was a questionfor the Court, and that the learned Commissioner should haveconsidered it exclusively in that light. We have therefore todetermine the simple question whether a public officer who in badfaith effected an unlawful seizure of timber in the pretended exerciseof statutory powers can be said to be “ purporting ” to act under thestatute which confers those powers within the meaning of section461 of the Civil Procedure Code.
So far as I am aware, the term “ purporting ” has not been judici-ally defined, at least for the purposes of such a case as this, either inthe English Courts or in any of the Courts of this Colony. Butit seems to me that in the connection in which I have now to dealwith it the word “ purporting ” is equivalent to “in pursuance of,”and it has been held in’England in a great variety of cases, of whichI may give Hermann v. Seneschal (1) as a typical example, that thedefendant in such ah action as the present is only acting in pur-suance of his statutory powers, if he honestly intended to put thelaw in force and believed that the plaintiff had committed theoffence with which he was charged, although there was no reasonableground for such belief. In my opinion law and equity alike requirethat we should construe the word “ purporting ” in the same sense.It must be borne in mind that notice of action is not the onlyprivilege which the Civil Procedure Code confers on public officersacting in their official capacity. It gives them the chance of theintervention of the Attorney-General to undertake the burden oftheir defence (section 463). Even if there be no such intervention,it exempts their persons from arrest and their property fromattachment' otherwise than in execution of a decree (section 464).It would be intolerable if these privileges could be claimed by apublic officer who is acting wrongfully and for the1 gratification ofprivate malice, and whose official authority appears only in his badgeas police vidane or in hjs possession of those Government diarieswith which we are so unpleasantly familiar in the Court of Assize.
It appeared to me at the ciose of the argument, which was most
(1) (1862) 32 L, G. Rep. (N. S.) C. P. 43.
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ably conducted by Mr. Garvin for the appellant and by. Mr. E. W.Perera for the respondent, that, in view of section 66 of the ForestOrdinance, 1886, which makes the vexatious and unnecessaryseizure of property by a forest or police officer a criminal offence,and empowers any magistrate dealing with such a case to awardthe whole or part of any fine imposed as compensation to the partyaggrieved, it might possibly be said that the creation by this enact-ment- of a special procedure by way of redress to the parties aggrievedby unlawful seizures had taken away by implication the presentappellant’s remedy in a Civil Court. But after hearing whatcounsel on both sides had to say on this question, I think that thedifficulty which I raised is an unfounded one. Section 92 of theCourts Ordinance provides that convictions' or acquittals are nota bair to civil process for the same wrong which forms the subjectof the criminal proceedings, and I think that sections 70 and 78 ofthe Forest Ordinance, 1885, both of which contemplate alternateor additional proceedings in such cases, themselves corroboratemy view on this point. I have now dealt with all the outstandingissues in this case.
I set aside the judgment appealed against, and cn the basis ofthe finding of the learned Commissioner of Bequests himself, Idirect that judgment be entered in favour of the appellant forRs. 10, the value of the timber, and Rs. 6 damages, with all costshere and in the court below.
1806.May 23.
WoodRenton J.