092-NLR-NLR-V-46-CHANDRASOMA-Appellant-and-SIRIWARDENE-Respondent.pdf
KEUNEMAN J.—Chandrasoma and Siriwaidene.
277.
1948Present: Keuneman J.
CHANDRASOMA, Appellant, and SIRIWARDENE,Respondent.
374—M. C. Gampaha, 25,319.
Defence (Miscellaneous) Regulations, Regulations 37 and 52—Order for requisitionofpaddy—Competentauthority—Appointmentinwriting—Gazette
notification.
By virtue of a notification in the Gazette, the Court can take judicialnotice of the fact that the Assistant Government Agent (Emergency)for an area in question is the competent authority for the purpose ofthe Defence (Miscellaneous) Regulations. The production of the Gazetteis sufficient proof that the appointment in question has been made inwriting.
^PPEAL .from a conviction by the Magistrate of Gampaha.
C. Nagalingam, Acting Attorney-General (with him J. A. P. CherubimC-C.) for complainant, appellant.
S. N. Eajaratnam (with him S. P. M.respondent.
Rajendram) for accused,Cur. adv. vult.
June 18, 1945. Keuneman J.—
The accused-appellant was charged with having failed to deliver98 bushels and 4 measures of paddy to the Food Production Officerin respect of an order for requisition duly made under Regulation 37of the Defence (Miscellaneous) Regulations by the complainant who wasthe competent authority to make the order of requisition, and withhaving thereby committed an offence under Regulation 52 of the saidRegulations.
The accused was acquitted, and this appeal is taken with the sanctionof the Attorney-General.
It is not in dispute that the complainant is the Assistant GovernmentAgent (Emergency), Alut Kuru korale, Gampaha, i.e., for the area inquestion. The Government Gazette Notification P5 dated January 15,1943, was produced in the case, whereby His' Excellency the Governorpurported to appoint the several officers specified in Column 1 for therespective areas in Column 2, for the purpose of requisitioning underRegulation 37 the articles specified in Column 3. The relevant appoint-ments were as follows:—Government Agents, Assistant GovernmentAgents, Assistant Government Agents (Emergency) (in Column 1) fortheir respective Provinces, Districts or Areas (in Column 2) in respect ofany article of food or drink (in Column 3). The appointments purportto be-made and signed by the Governor.
The complainant, however, stated that he did not hold a letter ofappointment from the Governor appointing him a competent authority.The Magistrate held that Regulation 3 contemplated appointment by a
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KEUNEMAN J.—Chandrasoma and Siriteardene.
letter oi appointment, and that in the absence of such a letter the com-plainant could not be regarded as the “ competent authority ” for thearea. The accused was accordingly acquitted.
Regulation 3 (1) runs as follows: —
" The competent authority, for the purposes of any Defence Regula-tion shall be the person appointed by the' Governor in writing to be
the competent authority for the purpose of-the Regulation.”
Regulation 3 (2) provides that the appointment as competent authoritymay be made generally for the whole of the Island, or for any area orplace specified in the writing, and may be limited to such of those purposesas may be specified in the writing. Regulation 3 (3) clearly contemplatesthat " the holder of a designated office ” may be appointed as a com-petent authority, arid provides that in that case the appointment shallbe deemed to extend to the person for the time being performing theduties of the office designated, unless express provision is made to thecontrary.
Regulation 3 (1) certainly requires that the Governor should makethe appointment of the competent authority in vrriting. The Magistratethought that the words ‘ ‘ in writing ’ * meant by means 'of a letter ofappointment. I do not agree that the words can bear that meaning.All that is required is that the Governor’s appointment must be inwriting, and once the writing is proved the manner in which the appoint-ment is communicated to the appointee has no significance. In fact,where the holder of a designated office is appointed every successorto that office is at once clothed with authority, and in fact the person forthe time being performing the duties of the office has also authorityextended to him. I do not see that it is necessary for the Governor tocommunicate that fact to the successor in office or the person performingthe duties of the office.
The Magistrate has drawn attention to Regulation 4, which deals withthe appointment of the “ authorised officer ”. Under Regulation 4 (1)a senior officer of police is the authorized officer, and for certain regula-tions a commissioned officer in His Majesty’s Forces, and for others anofficer of Customs, is the authorised officer. Regulatioon 4 (2) addsthat the Governor may by notification in the Gazette appoint any personby name or by office to be an authorised officer in addition to or in lieu ofthe persons who are authorised officers under Regulation 4 (1).
It is true that in the appointment of "an authorised officer ” underRegulation 4 (2) notification in the Gazette is imperative. Notificationin the Gazette is not necessary in respect of the appointment of the" competent authority ” under Regulation 3, and the appointmentdepends upon the fact that it is made in writing by the Governor. Butnotification in the Gazette has this important consequence, that undersection 57 (7) of the Evidence Ordinance (Cap. 11) the court shall takejudicial notice of " the accession to office, names, titles, functions andsignatures” of the persons filling a public office. The important resultin this case is that by virtue of the notification in the Gazette the courtcan take judicial notice of the fact that the Assistant' Government Agent(Emergency) for the area in question is the “ competent authority
WTJEYEWABDENE J.—Ranhamy and Singlia Appvhamy.
279
for the purposes of the Regulations. I further think that the productionof the Gazette is sufficient prCof that the appointment in question hasbeen made in writing.
The ground on which the Magistrate acquitted the accused cannot besupported. I set aside the order of acquittal and send the case backto the Magistrate. If the Magistrate who tried the case is still available,he will deal with the other matters of defence raised in the case andrecord his verdict. It is open to him if he so desires to hear furtherargument on these matters raised. If the Magistrate who tried this caseis not available the case will be tried de novo.
Set aside.