042-NLR-NLR-V-22-TOUSSAINT-v.-SILVA.pdf
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Present: Schneider A.J.TOUSSAINT v. SILVA.
711—P. G. (MU, 10,686.
Road Ordinance, No. 5 of 1861, section 91, sub-section (15)—“Landcontiguous to any road."
A person whose land is not in contact with the road cannot beconvicted, under section 91 of the Road Ordinance, for sufferingwater to flow from such land into or upon any such road.
The word “ contiguous ” in section 91, sub-section (5), should'begiven its ordinary meaning of touching or “ in oontact with.”
facts appear from the judgment.
A. St. V. Jayawardene, for accused, appellant.
J. S. Jayawardene, for complainant, respondent.
October 16,-1919. Schneider A.J.—
The charge in this case was read tnthe accused from the summonsin which, he was charged with mischief by “ forming out a drainandjstopping the same few yards away from the Hiyare Reservoirroad, an offence punishable under section 409 of the Penal Code,section 91 of Ordinance No. 5 of 1861.”
The Magistrate apparently saw that the charge was badly framed,and accordingly on a later date he records that he framed a “ freshcharge ”.as follows:—“ That the accused did, being the owner of aland contiguous to the Hiyare Reservoir road, suffer the passageof water to such road—section 91 (5) of Ordinance No. 10 of 1861.”From the evidence and his judgment it is obvious that he tried theaccused on this one charge, and that alone. Bat in the judgmentsheet there is a jumble of the charge as set out in the summonsand in the fresh charge framed by the Magistrate, and the accusedis set out as having been convicted of mischief under section 409,and also of an offence under section 91 of Ordinance No. 10 of 1861.This is clearly a mistake, but respondent’s counsel contended thatit was not, and that the accused had been convicted as set out inthe judgment sheet..
It is not possible for me' to entertain this contention in view ofwhat appears in the record of the case as a whole.
therefore, regard the appeal as from a conviction under section91 (6) of the Road Ordinance, 1861.
The only point involved in the appeal is the meaning tp bpattached to the word “ contiguous ” in seotion 91 (5).
1919
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1919.
SCHNEIDER
A«J* '
Touseaintv. SUva
The words are : Section 91. “ Whosoever shalL commit any ofthe following off^hces on or relating to any thoroughfare shall beliable to a fine not exceeding five pounds.
“ (6) Any owner of any land contiguous to any road who shallsuffer any water to flow from such land into or upon any such road.”
The facts as found by the Magistrate are accepted by both partiesto the appeal. They are as followsThe accused is the ownerof a land on a steep hill which he has cleared. The water fromthis land falls into a drain from which it finds its way on to thepublic road through an intervening belt of jungle a few feet broad.This intervening jungle is not a road reservation. The questionis : Gan the accused be regarded the owner of land contiguous tothe road in the circumstances ? The learned Police Magistrate hasheld that he can, because the word “contiguous” does not mean/ “ immediately contiguous,” and that to put on the word that.meaning would be to utterly defeat the object of the section.
The appellant contends that the word “ contiguous*” should begiven its ordinary meaning of “touching” or “in contact with.”
I am inclined to agree with this contention. The section inquestion is a penal provision and should be strictly “interpreted.If “ contiguous ” does not mean only “touching ” but “in theneighbourhood of,” what would be the limit within which landsare to be deemed to be in the neighbourhood. A land on a hill-side miles from a high road may discharge water into the high roadthrough the intervening land. Is such a land to be deemed ascontiguous ? What then would be the liability of the owners, ofthe intervening lands ? If they incur no liability because theowner of the land on the top of the hill where the water first gathersis liable, is the test of liability to be determined by a considerationon whose land the water first gathered and began to flow down ?
* If the water in its descent to the road gathers volume fromcontributions from the intervening lands, are all the owners liableorxsome of them, and in what proportion,1 or is only one of themliable ?s
It appears to me that all these difficulties are avoided by givingto the word “ contiguousits natural meaning of “touching” or “incontact with.” The section was evidently intended to restrain theowner obviously liable—he from whose land the water ultimatelyfound its way into the thoroughfare.
In Haynes v. Kiruj,1 North J. in interpreting the word “ conti-guous’used in a lease said: “I think the word ‘contiguous’,wasused there by some one who did not fully understand its meaning.I do not think it was intended to have its strict meaning, viz.,‘touching.’” It is hardly necessary for me to say here thatalthough a word may be given an extensive interpretation in theconstruction of a contract, the Courts will not follow the same rule
* {1893) 3 Chancery 439e
( im )in construing a^ statute. In my opinion the Legislature meant theword <c contiguous ” to have its ordinary meaning of “ touching ”in the section under consideration.
This view finds support in the decision of The Attorney-General
v. SUva.1
I would, therefore, allow the appeal, and set aside the convictionand acquit-the accused.
1919.
SOHOTBTOER
A.J.
Touamintv. SUva