Present: Dalton J.
ARULAPPAH v. KAIKAN.48—P. C. Mannar, 16,906.
Forest Ordinance—Conviction for cultivation of Grown land—Magistrate'spower to order destruction of crops—Ordinance No. 19 of 1907,s. 22.
Where an acoused is found guilty of cultivating" Crown landwithout a permit, the Police Magistrate has no power to order thedestruction of crops raised by the accused.
^ PPEAL from a conviction by the Police Magistrate.
<Onanapragasam, for accused, appellant.
Basnayake, C.C., for respondent.
"February 7, 1929- Dalton J.—
The appellant has been charged with breaking up the eoil of about1 acre of land and cultivating it without a permit from the properauthority, an offence punishable under section 22 of the ForestOrdinance, No. 16 of*1907.
He has appealed from that conviction on various grounds. Helias first of all urged that no offence is set out in the charge, and insupport of this the Counsel has referred to a judgment of this CourtDe Silva v. Odris.1 In that case, in the course of his judgment,de Sampayo J. incidentally refers to the charge on which thatcase is based; he points out that the charge refers to the alleged•offence as a breach of section 21 of the Ordinance, whereas the•charge should have referred to the law or rule framed under thatsection which had been contravened.
It will be noted that the charge in this case before me merelystates the offence, and states that the offence was punishable undersection 22. The circumstances therefore differ from this, in thecase referred to me. It is clear, however, that de Sampayo J. cameio the conclusion that the appeal in that case should be allowedon other grounds for the prosecution failed to show that any offencelad been brought home to the accused.
The appellant then urged that he had shown that what he didhere, he did under a bona fide claim of right. He purports to pro-duce a title deed he had got executed a month prior to this offence,which deed purported to convey to him certain lands situated inthe locality named, there being six vendors to that deed.
( 512 ).
1M9. He called one of'fS^M^iars as a witness. It is quite obvious
from that witness’s evid&nbg that he had no knowledge of the-
Dalton j. whereabouts of the land whioh the accused had cultivated.
There was ample evidence in my opinion to show beyond anyArvlappaha whatsoever that the appellant was not acting bona fide, butkaiican was aware that he had no right whatever and also that hisso-called vendor had no right whatever to the land.
Lastly, it is urged that there was no specific act of breaking upor cutting the land as alleged in the charge. But there is evidencethat the accused did cultivate the land, and it is also obvious thatthe accused admitted that he had done this, but that he wasentitled to do it.
The evidence establishes the fact that the land mentioned in thecharge is forest and at the disposal of the Crown. All the elements,,therefore, are present to justify the Magistrate in convicting theaccused. The appeal must, therefore, be dismissed and the con-viotion affirmed.
The Magistrate directed that the crop planted on the land beseized and destroyed and the fences be removed. He purported to-act under section 41 of the Forest Ordinance of 1903. The CrownCounsel agrees with me that he had no power to do as he did. Thelatter part of. his orcler will therefore be deleted, but this is not to-be taken as any recognition of appellant’s right to them.
A. C. Richards, Acting Government Printer, Colombo, Ceylon.
ARULAPPAH v. KAIKAN