576DE KRETSER J.—Kiel and Mathes Appuhamy.
3943Present: de Kretser J.
KIEL, Appellant, and MATHES APPUHAMY, Respondent.659—M. C. Nuwara Eliya, 6,177.
Obstruction to public servant—Surveyor employed by deputy fiscal underVillage Community Rules—Penal Code, s. 183.
Obstruction caused to a surveyor employed by the deputy 'fiscal toprepare a diagram or map under rules 59 and 60 of the Village Com-munities Ordinance is an offence under section 183 of the Penal Code.
^J^PPEAL from a conviction by the Magistrate of Nuwara Eliya.
F. A. Tisseverasinghe (with him P. Malalgoda), for complainant,appellant.
Cyril E. S. Perera, for accused, respondent.
Cur. adv. vult.
October 21, 1943. de Kretser J.=— –
The facts leading to this appeal are as follows :—Under writ issued byVillage Tribunal a certain land was sold. The sale was confirmed andthe deputy fiscal authorised the appellant to make a plan of the land.When he went to the land he was. obstructed by the respondent. Thelearned Magistrate acquitted the respondent because he thought theappellant was not a public servant and therefore section 183 of the PenalCode did not apply. In this view he was wrong, for the section alsorefers to persons acting under the lawful orders of public servants. Thecomplainant appeals with the sanction of the Attorney-General.
The issue of a fiscal’s conveyance with a map or diagram annexed isprovided for by rules 59 and 60 framed under the Village CommunitiesOrdinance, to be found in Vol. III. of the Subsidiary Legislation ofCeylon. Mr. Perera argued that there was no authority in those rulesjustifying the deputy fiscal in employing a surveyor. I cannot agree.Rule 59 casts'on the fiscal the duty of issuing a conveyance and entitleshim to a fixed fee. Rule 60 casts on him the duty of attaching a map or■diagram to'the conveyance and on the purchaser all the expenses thereofand not a fixed amount. I can see no substantial difference between theprovisions of section 236 of the Civil Procedure Code and rules 59 and60; the former is more explicit but that makes no real difference!The fiscal cannot possibly make the map or diagram himself except bydrawing softie sort of imaginary figure on paper. The map or diagram isinsisted on so as to make identification of the land conveyed easy. Sucha map can be made by a surveyor alone. If the rough drawing were idlthat is required it would also be easy to fix the fee ,at once.
In my opinion, therefore, the deputy fiscal was well Within his rights ingetting the complainant-appellant to' make the plan, and the latter wasacting under the lawful orders of a public servant. The appeal i% allowedon this point of law, and the case remitted to the Magistrate to proceedwith the trial.!
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Pi:iXTgD ^lT, THE GOVERNMENT I'iipEjf
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KIEL, Appellant, and MATHES APPUHAMY, Respondent