038-NLR-NLR-V-34-ASSISTANT-GOVERNMENT-AGENT,PUTTALAM-v.-PEIRIS.pdf
AKBAR J.—Assistant Government Agent, Puttalam v. Peiris.
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1932Present: Akbar J.
ASSISTANT GOVERNMENT AGENT, PUTTALAM v. PEIRIS.
884—P. C. -Childw, 33,949.
Crown land—Definition of boundaries—Action under s. 8 of Ordinance No. 1 of1844—Recovery of costs—Procedure—Ordinance No. 28 of 1919.s. 2(c).
Where a Government Agent acting under section 8 of Ordinance No. 1of 1844 proceeds to define the boundaries of a Crown land he cannotapply to recover the cost of making the survey by means of the procedureprovided by section 2 (c) of the amending Ordinance No. 28 of 1919.
^PPEAL from an order of the Police Magistrate of Chilaw.
L. A. Rajapakse, for appellant.
Illangakoon, Deputy S.-G. (with him Schokman, C.C.), for Crown,respondent.
May 2, 1932. Akbar J.—
After argument of appellant’s counsel the case stood oyer for the Crownto obtain further information from the Assistant Government Agent onthe Crown case. Mr. Illangakoon appeared on the second day, but Iregret that he has not been able to convince me that the order of thePolice Magistrate is right. The appellant was ordered by the PoliceMagistrate to pay the Assistant Government Agent, Puttalam, Rs. 254.28,being the cost of a survey carried out at the instance of the complainant-respondent under section 2 (c) of Ordinance No. 28 of 1919. Undersection 2, when it appears to the Assistant Government Agent that theboundary of land belonging to any person w;hich adjoins land belongingto the Crown should be made or renewed in whole or in part the AssistantGovernment Agent may, in lieu of taking action under section 8 ofOrdinance No. 1 of 1844, adopt the following procedure: —(a) He can, if,
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AKBAR J.—Assistant Government Agent, Puttalam v. Peiris.
after consulting the Surveyor-General, he is of opinion that the work ofsnaking or renewing a boundary cannot be satisfactorily carried out bysuch subject, call upon the Surveyor-General to make or renew suchboundary, (b) The Surveyor-General shall certify such costs, (c) Thesubject shall pay .such amount and a Police Magistrate can enforce thepayment of this sum, as if it were a fine.
This Ordinance No. 28 of 1919, amended Ordinance No. 1 of 1844, andthe relevant portion of section 8 of No. 1 of 1844 provides that whereCrown land adjoins the land of a private person the Assistant GovernmentAgent can call upon such subject by notice to make or renew the wholeor part of the boundary between the two lands.
If this work is not begun within thirty days after service of notice,the Assistant Government Agent may cause such boundary to be madeor renewed and may recover twice the amount of the costs. It is clearfrom these two sections that the two procedures are alternative and thatif an Assistant Government Agent elects to proceed under section 8 ofNo. 1 of 1844, he cannot afterwards cite section 2 of No. 28 of 1919 tojustify his application for a recovery of the actual costs incurred bymeans of the procedure prescribed for criminal courts. It will benoticed that under section 8 of No. 1 of 1844 the money can only berecovered in a civil case. The correspondence shows to my mind thatthe Assistant Government Agent elected to proceed under section8 of 1844. . R 1/2.11.28 calls upon the appellant to remove anencroachment.
R 4/6.11.29 is a printed notice issued under section 8 of No. 1of 1844.
R 6/17.1.30 requests, the appellant “ to have your boundaries definedby a surveyor on your title plan ”.
R 8/1.2.30 is to the same effect.
R 10/21.2.30 threatens the appellant that if she will not get theboundaries defined, the work will have to be done by a Governmentsurveyor.
R 11/1.3.30 from the appellant is to the effect that a surveyor wasgoing to be appointed by the appellant to define the boundaries.
R 12/1.10.30, R 13/17.10.30, and R 14/22.10.30 are all letterscorroborating the previous letters. By R 15/29.12.30 the appellantinformed the Assistant Government Agent that the boundaries had beendefined by her surveyor and that there had been no encroachment. Inthat letter the appellant asked the Assistant Government Agent to payRs. 250 costs incurred by an unnecessary survey. By R 17/23.2.31 theAssistant Government Agent called upon the appellant to pay Rs. 254.28costs of survey under section 2 (cj of No. 28 of 1919. ' It is this sumwhich forms the subject-matter of this action.
It is quite clear from the letters I have specified above that the Assist-ant Government Agent elected' to proceed under section 8 of No. 1 of
AKBAR J.—Vallipuram v. Manikam.
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1844 from the very beginning and that being so he cannot now invokethe provisions of the amending Ordinance No. 28 of 1919. The appealis allowed and the order of the Police Magistrate is set aside.
Set aside.