098-NLR-NLR-V-05-BYRDE-v.-APPUHAMI.pdf
( 343 )
BYRDE v. APPUHAMI.P. C., Batnapura, 22,835.
1002.April 24.
Removal of timber without permit—Rule 2 (a) framed under s. 44 of Ordinance-No. 10 of 1885, as amended by Ordinance No. 1 of 1892, s. 14—Removal“ from any land ”—" Land " includes house.
Per Moncrbiff, A.C.J.—The term “any land." used in rule 2 (a),framed under section 44 of the Ordinance No. X of 1885, as amended by’Ordinance No. 1 of 1892, section 14, includes not only the land on whichthe trees were felled, but every land to which they had been carried andany house in which it was stacked.
Spence v. Anthony, 1 S. C. R. 55, disapproved.
T
HE accused in this case were charged with having on the25th and 28th January, 1902, at Mohadeniyahandiya in
Napawala, in Kuruwiti korale, a district proclaimed under theprovisions of the Forest Ordinance, No. 10 of 1885, moved certaintimber from the land Mahadeniyahandiya without a permit fromthe Government Agent of Sabaragamuwa, or some other officer duly.authorized by the Government Agent to issue permits; and thatthereby they had committed a breach of rule 2 (a) framed undersection 44 of the Ordinance No. 10 of 1885, as amended by section14 of Ordinance No. 1 of 1892, and) published in Government GazetteNo. 5,689 of the 4th May, 1900, and so committed an offence punish-able under section 45 of the Forest Ordinance, No. 10 of 1885.
The rule ran as follows:—'
“ No forest produce or timber shall be moved in any district•“ which has Been proclaimed bv the Governor from any land,“ except with a permit from the Government Agent, ” &c.,
It was proved that the first accused employed men to fell timberthat was lying on Crown land1 on Napawala dowa (field); that onthe 10th November, 1901, the Assistant Conservator seized sometimber at Mahadeniyahandiya on the • land belonging to onePodisingho as being timber brought from the dowa; that theaccused removed it from Podisingho’S house to the first accused’shouse; and that there was no permit shown for such removal.
The first accused stated that he felled the timber on certain lands,and having obtained a permit from the Ratemahatmaya of Kuruwitikorale he removed it to Podisingho's house, and from thatplace to his own house in the same village.
The permit was found to be a time-expired one. The PoliceMagistrate, found the accused guilty, and sentenced each of themto a fine of Rs. 100.
They appealed.
Walter Pereira, for appellants.—No permit was ' necessary inthis case, as the removal proved) by eye witnesses was that from •26-
( 344 )
Podisingho’s house to the first accused’s house. Buie 2 requiresApril 24. a permit only when the removal is “ from any land. In Spence
v. Anthony (I S. 0. R. 55), Lawrie, J.. held that “ land ” meant
land in which the trees grew and were felled, and not a shed,house, workshop, or ship.
Rdmandthan, S.-G., for respondent, was not called upon.
24th April, 1902. Moncbeiff, C.J.—
The appellants were charged with having removed timber with-out a permit from a land called Mahadeniyahandiya, within aproclaimed district, in breach of rule 2 of the regulations pub-lished in the Government Gazette of 4th May, 1900.
As a matter of fact, the appellants had removed this timberfrom the land on which it was felled and placed it in the houseof one Podisingho. For that they had a permit. Afterwards, whenthe period for which the permit was given had run out, they againremoved the timber from Podisingho’s house to the house of thefirst accused. For that removal they had no permit.
On behalf of the appellants, Mr. Walter Pereira urged that nopermit was required in that instance, and he cited a case (Spence v.Anthony) reported in 1 S. C. R. 55, in which Mr. Justice Lawriestated his opinion to be that the land from which timber isremoved, and for the removal. of which timber a permit isrequired, is not only “ a land ” but the land on which the treesgrew and were felled. The expression used in the regulationis “ any land. ” I am disposed to take a different view of . thesewords, because if no permit is required for removal of timberfrom a house, it might well be that the timber might be placed in ahouse in a spot close to which it fell, and thereupon no permitMould be required. In the next place, it is conceivable that timberfelled upon one land might be stacked on another which adjoins it,and again no permit would! be required. The impression I gatherfrom the words as' they stand, unexplained by other provisions sofar as I am aware, is that “ any land ” would include not only theland on which the trees were felled, but any land to which theyhad been carried, and that whether the timber was placed in ahouse or stacked in‘the open air.
I therefore think that. this removal was made without a permit,which is required by the regulations, and that the Magistrate wasright in finding the charge proved.
The penalty Tie 'has inflicted seems to me to be excessive. Iwould reduce it in each Case by one-half; that is to say, each accusedto pay a fine of Rs. 50.