131-NLR-NLR-V-43-INSPECTOR-OF-POLICE-v.-KALUARATCHI.pdf
Inspector of Police v. Kaluaratchi.
533
1942
Present: Soertsz J.
INSPECTOR OF POLICE v. KALUARATCHI.
668—M. C. Colombo, 36,178.
Obstructing public servant—Refusing admission to premises for effectingrepairs to feeder pillar—Electricity Ordinance (Cap. 158) s. 6—PenalCode, s. 183.
The Electricity Ordinance, section 6, enacts that the Governor may,for the placing of appliances and apparatus for the supply of energy,confer upon any public officer any of the powers, which the Telegraphauthority possesses with respect to the placing of telegraph lines andposts for the purpose of a telegraph established or maintained by Govern– ment. By Gazette notification the Governor conferred-. upon the officersof the Electricity Department “ the powers which the Telegraph autho-rity possesses with respect to the placing of telegraph lines or posts forthe purpose of a telegraph established or maintained-' by Government ”,Section 10 of the Telegraphs Ordinance gives power to do and performall other acts, matters, things necessary for the purpose of establishing,constructing, repairing, improving, &c.
Held, that repairing- is a function necessary Under the Electrical Ordi-nance to ensure that appliances and apparatus placed under section 6of the Ordinance continue in a condition in which they can be describedas appliances and apparatus for the supply of energy and that thepower' to enter a land for the purpose of repairing has 'been given bynecessary implication.
534
SOERTSZ J.—Inspector of Police v. Kaluaratchi.
Where the accused refused to open a gate, which was locked, in order topermit an officer of the Electrical Department to enter the premises forthe purpose of repairing a feeder pillar.—
Held, that the accused was guilty of offering voluntary obstructionto a public servant.
Police Sergeant, Hambantota v. Simon Silva (40 N. L. R. 534) followed.y^PPEAL from a conviction by the Magistrate of Colombo.
H. V. Perera, K.C. (with him S. de Soyza and E. A. G. de Silva), foraccused, appellant.
H. A. Wijemane, C.C., for complainant, respondent.
Cur. adv. vu.lt.
October 19, 1942. Soertsz J.—
The accused-appellant in this case was charged for that he did“ voluntarily obstruct a' public servant to wit Mr. Muthubalasuriya,Assistant Engineer, Government Electrical. Department, in the executionof his duty by refusing his admission into premises 164, Thimbirigasyayaroad, for the purpose of effecting repairs to a feeder pillar situated in thepremises, and having thereby committed an offence punishable undersection 183 of the Penal Code
In order to sustain this charge it was necessary to prove (a) that the.Public Officer referred to was entitled to enter upon this land for thepurpose aforesaid; (b) that what the accused-appellant did or saidamounted to voluntary obstruction. In regard to the former of theseelements, the evidence of the Chief Engineer and Manager of the Govern-ment Electrical Undertakings Department, taken with his letters P 1 andP 2, sent to the appellant on July 15 and on August 7, 1941, respectively,shows that the case for the prosecution is that the Public Officer concernedin this case had the right to enter upon this land under section 6 of theElectricity Ordinance (Cap. 158), read with the Notification published,in the Government Gazette No. 7,622 of December 23, 1927, and withsection 10 of the Telegraphs Ordinance. (Cap. 147).
It is necessary to quote these sections and the notification for thepurpose of examining the case for the prosecution as well as the case forthe defence.
Section 10 of the Telegraphs Ordinance, so far as it is material, enactsas follows: —
The telegraph authority may from time to time place and maintaina telegraph line under, over, along or across, posts in or upon, anyimmovable property ; and for that purpose it shall be lawful for anyofficer in the employ' of the Government in the Telegraph Department,and for the servants, workmen, and labourers employed by or undersuch officer, at all time on reasonable notice, and with all necessarycarriages and animals and other means to enter upon all or any landsand to put up thereon any post, which may be required for the supportof any telegraph line ; and to fasten or attach to any tree growing onsuch land or to any building or thing thereon any bracket, or othersupport for such line ; and to cut down any tree or branch which mayin any way injure, or which is likely to injure, impede, or interfere with
SOERTSZ J.—Inspector of Police v. Kaluaratchi.
535
any telegraph line; and also severally to do and perform all other acts,matters, and things necessary for the purpose of establishing, construct-ing, repairing, improving, examining, altering or removing any tele-graph, or in any way connected therewith, or for performing any act,matter, or thing under the provision of this Ordinance. ”
Section 6 of the Electricity Ordinance enacts as follows: —
“ The Governor may, for the placing of appliances and apparatusfor the supply of energy for any purpose of the Government, conferupon any public officer any of the powers which the telegraphauthority possesses with respect to the placing of telegraph lines andposts for the purpose of a telegraph established or maintained by theGovernment or to be so established or maintained:
The notification under this section notifies as follows : —
“ It is hereby notified for general information that the Governorhas been pleased, in pursuance of the powers vested in him undersection 6 of the Electricity Ordinance, and with the advice of theExecutive Council, to confer upon the Director of Electrical Under-takings and upon all officers of the Electrical Department, dulyempowered by the Director in that behalf, the powers which theTelegraph authority possesses with respect to the placing of telegraphlines and posts for the purpose of a telegraph established or maintainedby the Government or to be established or maintained.
Now, Counsel for the appellant contends that this officer was notentitled to enter this land for the purpose he had in view when he soughtadmission, namely to effect certain repairs to what has been described as afeeder pillar erected on this land. Counsel’s argument was that section 6of the Electricity Ordinance authorises the Governor to confer powersonly with respect to the placing of appliances and apparatus and not withrespect to the maintaining of such -appliances and apparatus by effectingrepairs or otherwise. In other words, Counsel submits that while the .Telegraphs Ordinance by section 10 expressly provides, for both placingand maintaining telegraph lines and posts, and the powers conferredby that section are powers necessary for both those purposes, the effectof the operation of section 6 and the notification made thereunder is toseparate from the total area of those powers such powers only as arenecessary for the placing of appliances and apparatus and to conferthem—and no more—on the persons nominated by the Governor.
At first sight there appears to be considerable force in this argumentinasmuch as the word “ maintain ” in section 10 of the TelegraphsOrdinance is absent from section 6 of the Electricity Ordinance. But itcan hardly be said that this was a deliberate omission intended to restrictthe powers of officers under the Electricity Ordinance within narrowerlimits, and to deprive them of so essential a power as that of maintainingthe appliances and apparatus, once they have been placed, in a state ofworking efficiency. This omission seems rather the result of somewhatinept draftsmanship that was content to direct itself by the “ heading ”above section 10 without a close scrutiny of the words of the sectionitself.
530SOERTSZ J.—Inspector of Police v. Kaluaratchi.
1 do not, however, think that the language of the two sections in questionand of the notification published under section 6 of the Electricity Ordinance,properly interpreted, drives us to the conclusion that whatever theintention of the Legislature may have been it has only succeeded inconferring powers necessary for the placing of appliances and apparatusas distinguished from powers necessary for maintaining them. It is acanon of the interpretation of statutes “ that if it is possible the wordsof a statute must be construed so as to give a sensible meaning to them.The words ought to be construed ut res magis valeat quam pereatCurtis v. Stovin'. “ One is not only entitled to, but one must get an exactconception of the aim and scope of a statute in order to interpret it.”(see Scheibler v. Furiss ’.)
Looked at in this way, it seems clear that section 6 of the ElectricityOrdinance aims at “ the supply of energy ”. It says that “ the Governormay for the placing of appliances and apparatus for the supply of energyconfer upon any public officer any of the powers, which theTelegraph authority possesses with respect to the placing of telegraphlines and posts for the purpose of a telegraph established or maintainedby the Government. …”
By the Gazette notification already referred to, the Governor hasconferred upon the officers of the Electrical Department mentioned in it.“ the powers which the Telegraph authority possesses with respect to theplacing of telegraph lines or posts for the purpose of a telgraph establishedor maintained by the Government ”.
Now, one of the powers expressly given by section 10 of the TelegraphsOrdinance is the power “ to do and perform all other acts, matters andthings necessary for the purpose of establishing, constructing, repairing,improving, examining, altering, &c.” Conceding that “ repairing ” isa function appropriate not to the “ placing ” but to the “ maintaining ”expressly provided for by section 10 of the Telegraphs Ordinance, still itmay reasonably be said that “ repairing ” is a function necessary under theElectricity Ordinance to ensure that appliances and apparatus placedunder section 6 of the Electricity Ordinance continue in a conditionin which they can be describe^! as “ appliances and apparatus for thesupply of energy ” and that, therefore, the power to enter the land for thepurpose of'repairing has been given by necessary implication. The viewcontended for by the appellant' would result in the breakdown, irreparably,of the system for the supply of energy. It would mean that wheneveran appliance or apparatus ceases to function owing to some defect,great or small, the empowered authorities may enter the land and placenew appliances and apparatus, but may not, for instance, use a screw-driver to set the machinery going again; and that would be a reductio adabsurdum.
I would, therefore, hold that the Assistant Electrical Engineer wasentitled to enjer upon this land to effect repairs to the feeder pillar.
The next question for consideration arises on the submissions made byCounsel that what the appellant did or said on this occasion did notconstitute obstruction within the meaning of that word as used insection 183 of the Penal Code, but was only passive resistance.
1 22 Q. B. D. at p. 5J7.1 (1893) A. C. at p. 20.
The Municipal Council of Colombo v. Thenuwara.
537
The learned Magistrate, who tried the case, found that when the.Engineer went on August 20, 1941, to effect the necessary repairs afternotice had been given to the appellant by letter P 2 of August 7,acquainting him with the proposed visit, he found the gate giving accessto the appellant's premises “ closed and padlocked The engineerrequested him to open the gate but he “ asked him to clear out and refusedto open the gate ..When the Engineer “ tried the padlock
of the gate, accused threatened him and said he would assault his men.He feared a breach of the peace and left This seems to me to establishan activity7 too intense to be described as passive resistance or sullennon-co-operation.
The appellant’s own version is that the Assistant Engineer came upto his gate that morning; he went to the verandah ; he saw a PoliceSergeant and some people near the gate ; the Engineer asked him toopen the gate that was locked, telling him that he was in the ElectricalDepartment; he refused to open the gate; The engineer asked himtwice ; he refused twice ; he told the engineer that he could climb over orcreep under the gate ; after some time the Engineer left.
The Magistrate preferred to accept the version given by the Engineer.It was substantially supported by the Police Sergeant who accompaniedthe working party. According to that version a clear case of obstructionwas made out.
But assuming that the appellant’s version is the true one, still on whathe, admittedly, said and did, it is clear that he transgressed the limits ofpassive resistance or non-co-operation and was clearly in the realm ofobstruction. His case is within the ruling in the case of -Police Sergeant,Hambantota v. Simon Silva (supra).
1 dismiss the appeal, and 1 would add that, having regard to the statusof the appellant, it seems to me that he owes more to himself than heappears to be ready to give. He may not be as fortunate in the matter ofsentence if he persists in this course of action.
Affirmed.