014-NLR-NLR-V-05-ASSISTANT-GOVERNMENT-AGENT-v.-KULATUNGA.pdf
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ASSISTANT GOVERNMENT AGENT v. KULATUNGA.
D. C. Matara, 4.
Ordinance No. 1 of 1899, s. 8—“ With intent ’’—Meaning of section.
In section 8 (1) of Ordinance No. 1 of 1899, the words “ with intent "do not govern the whole of the succeeding clauses down to the end ofthe sub-section, but only the words immediately following, down to thewords " rights of ownership."
Bonsbb, C.J.—The section is not happily expressed, but the meaningseems to be that, if a man has not entered upon the land included in thenotice, he is forbidden to do so if his purpose is to assert any claim tothe land by so doing; but if he .has already entered upon land includedin the notice, he is not to do anything which would alter the conditionof the land. ]He is not to build houses or form plantations or makeclearings, or cut trees or open mines, but things are left in statu quountil the question of the true ownership of the land has been decided.
If he has already entered and reduced the land or any parts of it intoa state of cultivation, then he may go on cultivating and gather thefruits, but he is not to do anything which would substantially alter theexisting condition of things.
T
HE facts of the case are fully set out in the following judgmentof the Chief Justice.
Bawa, for appellant.
Solicitor-Qeneral, for respondent. •
• This section runs as follows:—
“ After the date of the Government Gazette containing the first publication ofthe notice prescribed in section 1 it shall not be lawful for any person, withoutthe written consent of the government agent or assistant government agent, toenter on any. land specified in such notice with intent to establish a -right ofpossession or occupation of such land or to exercise rights -of ownership, or tobuild any house or hut or to form a plantation thereon, or to make clearings forthe purpose of cultivating such land or for any other purpose, or to cut or fellany trees upon such land or to open wo^k or to use any mine thereon, until suchland’ has been declared not to.be the property of the Crown.”
1901.,
February 27.
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1001.
February 27.
27th February, 1901. Bosses, C.J.—
This is an appeal by a person who has been ordered undersection 8 of Ordinance No. 1 of 1899 to deliver up possession ofcertain lands to the Crown.
The Ordinance provides that it shall be lawful for the Govern-ment Agent, if it shall appear to' him that any lands within hisProvince are forest, chena, waste, or unoccupied, to issue a noticedeclaring that, if no claim is made to him within three monthsfrom the date of such notice, such ; land is to be deemed theproperty of the Crown. That notice is to be published in theGovernment Gazette, and it is provided that after the date of thepublication of that notice in the Government Gazette, it shall notbe lawful for any person, without the written consent of theGovernment Agent or the Assistant Government Agent; to' enteron any land specified on such notice with intent to establish arighr of possession or occupation of such lands or to exerciserights of ownership or to build any house or hut, or to form aplantation thereon, or • to make clearings for the purpose ofcultivating such landor for any otherpurpose,orto cut or fell
any trees upon suchland, or to openworkortouse any mine
thereon, untill such land has been declared not to be the propertyof the Crown.
Now that provision is not very happily expressed, but I thinkits meaning is reasonably clear. Mr. Bawa asked us to construeit'as though the words “ with intent” governed the whole of thesucceeding clauses down to. the end of the sub-section, and to readthat what was there forbidden was an “ entry on the land withintent,” that is withintent to build ahouse,ortoform a planta-tion, or to cut trees,or to open a mine in it.Idonot think that
that is a reasonable construction, of the clause. It seems to methat the words “ with intent ” only govern the words immediatelyfollowing down tc the words ‘‘ rights of ownership ”, and thatthen we have after that an enumeration of the things expresslyforbidden to be done by a person, whether he has already enteredon the land or not. The meaning of the section seems to me tobe this: that if a man has not entered upon the land includedin the notice, be is forbidden to do so if his purpose is to assertany • claim to the land bv so doing, but if he has already enteredupon land included in the notice, he is not to do anything whichwould alter the condition of the land. He is not to build housesor. form plantations. ‘ or make clearings, or cut trees, or open mines,but things are to be left in statu quo until the question of thetrue ownership' of the land has 'been decided. If he has alreadyentered and reduced the land, or any part of it into.a state of
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cultivation, then he may go on cultivating. If he has, for instsnoe, ■ 1901planted fruit trees, it cannot -be contended^ that he is obliged to February 27.allow.the fruit to .rot,on.the land; he; may . tqke a the fruits. And BonsbbC j3 he has sown paddy he may go on sowing paddy, and not letthe land go out of cultivation; but he is not'to do anything which -would substantially alter the existing condition of .things.. .,
Now, the only question in this case is as to what the' appellantdid. There is no doubt that in September las,t tie caused . someten acres of land included in a notice under the Ordinance to besown with amii, a species of fine grain. He says that the groundwhere the. amu was sown had been previously under cultivationand that sweet potatoes had been growing there. before, . and thatall that he did was to clear the weeds and hpe up the ground forthe purpose of sowing amu. If this is what.he did, I do notthink he is obnoxious to the provisions of the Ordinance. ;Butthe Mudaliyar wjio went "to the land in May when the 'notice wasissued, and again in September before the amu was sown, gives avery different description, of its condition. He1 says: “ At the date“ of the notice the land on which amu is now growing was covered“ with jungle, bushes, old stumps re-sprouting in some places so“ thick and high that a man cou]|d not be seen; in others four or“ five feet high. When I went in September I saw jungle lying“ there felled, evidently with katties. The growth was jungle,
“ not weeds which could be cleared with a mamoty.”' ,
Now, if that evidence is to be believed, what the appellant didwas to make a clearing • for the purpose of cultivation, a thingwhich is expressly . forbidden by the Ordinance, The DistrictJudge saw no reason for. disbelieving the Mudaliyar. He sayshe cannot help believing him. I see no reason to disbelieve him •either.
The appeal will be. dismissed.
Browne, A.J., agreed.
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