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ALLIAR LEVVAI v. ISMAIL et al.
D. G., Batticaloa, 12,958.
Obstructing public servant in discharge of his duty—Ordinance No. 18 of1892, 88. ■ 7 and 9—Recovery of sanitary rate—Ordinance No. 16of 1865, 8. 41—Special authority from Government Agent to seizeand sell—Evidence necessary to support charge—Penal Code,s. 183.
An officer seizing property of a person who has failed to pay thesanitary rate leviable under the 7th section of the Ordinance No. 18•of 1892 should have the special authority of the Government Agentto effect such service, as provided in section 41 of the OrdinanceNo. 16 of 1865.
A general authority “ to seize any property whatsoever belongingto the persons who have made default in the payment of the“ sanitary rate assessment tax due by them for properties situated“ at,” &c., is insufficient to justify the seizure of property belongingto a defaulter not mentioned by name.
On the money due being demanded and not paid, it is the duty ofthe Government Agent to furnish his officer with a list of personsin default, and a special authority to seize and sell the propertybelonging to such persons.
• In the absence of such a special authority, a charge of obstructinga public servant in the discharge of his duty will not lie undersection 183 of the Penal Code.
' | *HE complainant, a rural constable, professing to act under thewritten authority of the Government Agent of the EasternProvince, went to the house of the accused to seize movable pro-perty in default of payment of tax recoverable under Ordinance
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No. 18 of 1892. The accused obstructed him, and was chargedunder section 183 of the Penal Code for obstructing a publicservant in the discharge of his duty. The Magistrate convictedhim and sentenced him to pay a fine of Rs. 5, or in default ofpayment to seven days’ rigorous imprisonment.
The authority of the Government Agent ran as follows :—
“ By virtue of the powers vested in me by the 41st clause of“ Ordinance No. 16 of 1865 and the 9th clause of Ordinance“ No. 18 of 1892, I, Colin Alexander Murray, Government Agent,“ Eastern Province, do hereby authorize Rural Constable Ahamadu“ Lewai of Kattankudi to seize any property whatsoever belong-“ ing to the persons who have made default in the payment of the“ sanitary rate assessment tax due by them for properties situated“ at Kattankudi, within the limits hrought under the operation of“ Ordinance No. 18 of 1892 by Proclamation in the Government“ Gazette No. 5,459 of 19th February, 1897. I further authorize“ the seizure and sale of any movable property to whomsoever“ belonging in or upon any house or tenement for which tax“ may be due.
“ Any property seized by virtue of this authority is to be sold in“ presence of the Pattu Varaiiah, either at his office or at the spot,“ at any time not less than ten days, and within thirty days, of“ seizure, unless the amount due as tax, with costs, is sooner
“ Given under my hand this 5th day of August, 1898.
“ C. A. Murray,
“ Government Agent, Eastern Province.”
The accused appealed against the conviction.
Bawa, for appellant.
• Van Langenberg, for respondent.
24th October, 1898. Bonser, C.J.—
In this case the appellant was fined Rs. 5 “ for that he did“ obstruct a public servant, to wit, Ahamadu Lebbe, rural“ constable, in the discharge of his public functions, to wit,
“ the seizure of property in default of payment of the tax“ recoverable under Ordinance No. 18 of 1892, and thereby com-“ mitted an offence punishable under section 183 of the Penal“ Code.”
It appears that the village of Katankudiyiruppu has beenbrought under the Ordinance No. 18 of 1892. That was proved
by the production of the Government Gazette.
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Now, when a village is brought under the operation of thatOctober 24. Ordinance it is declared by section 7 that it shall be lawful forBohsbbTc.J. the Board of Health of the Province once a year, if it shall thinknecessary, to make, with the sanction of the Governor and Exe-cutive Council, any rate on the annual value of all immovableproperty in the village, with a proviso that such rate is not toexceed 4 per cent, per annum on such annual value. Thenprovision is made for a valuation and for the recovery of the taxby reference to the Police Force Ordinance of 1865 and itsamending Ordinances.
Now, section 5 of Ordinance No. 7 of 1866 amending section 35of the Police Ordinance of 1865 provides that the assessmentis to be made by three assessors appointed by the Governor.When that assessment has been made it is to be reported to theGovernment Agent, who may revise the assessment.
The Government Agent is to cause a notice of the assessment,with a demand for payment, to be served on each person liable.Then, if the tax be not paid, the Government Agent may seizeand sell any movable property of the debtor, and the GovernmentAgent is empowered to authorize any person, specially in writing,to seize and sell such property.
In the present case it was proved, as I said before, that thevillage had been brought under the operation of the Ordinance.It was proved that a Board of Health had been appointed for theProvince in which that village is situated. It was proved thattwo persons had been appointed by the Governor to act asassessors for this village, but it was not proved that three personshad been appointed as required by the 5th section of the amendedPolice Ordinance. It was not proved that any notice of theassessment and demand for payment had been made. It wasproved that this appellant was in the assessment list for a certainamount, but it was not proved that any rate had been made bythe Provincial Board of Health and sanctioned by the Governorand Executive Council. It was proved that the complainant hadserved a general authority to seize and sell the property ofdefaulters, but it was not proved that he had any special authorityas required by section 41 of the Police Ordinance, 1865. There-fore, it was not proved that he was acting in the discharge of hispublic functions. It seems to me to be essential to prove that hehad a special authority to seize the property of the appellant. Itwould be a most dangerous thing if a person like the complain-ant were entrusted with a general authority to seize and sellthe property of anybody he thought fit. My opinion of what•. is contemplated by the Ordinance is, that on the money being
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demanded and not paid the Government Agent is to furnish hisofficer with a list of persons in default, and give him a specialauthority to seize and sell their property. This was not done inthis case.
I am therefore of opinion that it was unlawful for the com-plainant to seize the appellant’s property, and that the appellantcommitted no offence in obstructing him.
18 98. -October 24.
ALLIAR LEVVAI v. ISMAIL et al