067-NLR-NLR-V-08-DEPUTY-FISCAL-KALUTARA-v.-MAYA-NONA.pdf
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1906.
Jamary 23.
DEPUTY FISCAL, KALUTARA, u. MAYA NONA.
P. C.t Panadure, 20,845.
«
Obstruction—Licensed surveyor appointed by Deputy Fiscal—Powers of
Deputy ■ Fiscal—" Publicofficer ”—OrdinanceNo, 4 of1867—
Penal Oodef ss. 19 and 183—Civil Code, s, 286.
A Deputy Fiscal has * no power under section 286 of the CivilCode to license • a surveyor to prepare a diagram or map to .beannexedtoa Fiscal’sconveyance;andobstructiontoa surveyor
licensedbythe DeputyFiscal. forthatpurpose isnot punishable
under section 183 of the Penal Code.
^^PPEAL from a conviction under section 183 of the Penal Code.
Bawa, for accused, appellant.
Van Langenberg A. S.-G., for respondent.*
23rd January, 1906. Layabd, C.J.—-
The appellant in this case appeals against his conviction undersection 183 of the Penal Code. The conviction, as recorded by theMagistrate-, is to me unintelligible. The Magistrate seems to havethought, as I gather from the form used, that the Surveyor ArnoldGunawardana was a public servant. .1 can find no authority tosupport the position that the surveyor—who, it is alleged, was alicensed surveyor duly authorized by the Deputy Fiscal of Kalutara—is a public servant. .
The Solicitor-General, who argued the case for the respondent,invited my attention to the eleventh description in section 19 of thePenal Code. I think, however, that' a licensed surveyor, who ismerely employed -by a public servant for a particular purpose, doesnot come under the description of an “ officer.” To be an “ officer ” aperson must hold some office, and the. eleventh description in sec-tion 19 only refers to every “.officer,” and not every “person so asto include both officers and persons other than officers. I cannothold, therefore, that Surveyor Arnold Gunawardana was a publicservant. I might, however, properly amend the conviction, andhold the appellant had committed an offence, because he hadobstructed Surveyor Arnold Gunawardana, while acting under the
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lawful orders of a public servant, in the discharge of his public func-tion. To enable me to do this, however, I must be satisfied that thepublic servant who gave the orders to Arnold Gunawardana wasbj law entitled to give such orders to Arnold Gunawardana whilstacting in the discharge of his public functions.
The Magistrate has, I understand from the terms of his oonvio-tion, found that Arnold Gunawardana was a licensed surveyor, i.e.,a surveyor licensed as such under our statutory law, and that he wasduly authorized by the Deputy Fiscal of Kalutarja, acting in thedischarge of his public duties, to make a survey.
The appellant’s counsel argues that the only person who can beauthorized to make a survey of a property duly seized and sold in exe-cution is a competent surveyor who has been licensed by the Fiscal forthat purpose, and he invites my attention to the latter part of theproviso to section 286 of the Civil Procedure Code. It seems to meclear from the words in the whole of that section, and from the lan-guage used in the latter part of it, that the only person who can beemployed to prepare a diagram and map of the land duly sold inexecution of a mortgage is a surveyor who holds a license from theFiscal. The first part of the section refers to both Fiscal and Deputy,but the Legislature when dealing, under the latter part of the proviso,with the person who should prepare a diagram or map, was carefulto enact that he must receive a license from the Fiscal, and omits allmention of the Deputy Fiscal in that proviso. I cannot, therefore,construe the latter part of the proviso as authorizing the employ-ment of a surveyor licensed by a Deputy Eiscal.
It is true, as pointed out by the Solicitor-General, that OrdinanceNo. 4 of 1867 gives Deputy Fiscals within their districts the right toexercise the powers and perform the duties whioh under that Or-dinance can be exercised and.performed by the Fiscal of the Province,and it is also true that in the Ordinance No. 4 of 1867 there was con-tained a provision similar to that in Ordinance No. 2 of 1889. But theLegislature which passed Ordinance No. 2 of 1889 did not define theFiscal as including the Deputy Fiscal, and when dealing with theduties of a Fiscal has in several instances provided that such dutiesmay be performed also by the Deputy Fiscal. Such is the case in-thisvery section. It, however,. seems in the latter part of this sectionto restrict the power of licensing competent surveyors to the Fiscal.
Again the provisions of section No. 8 of Ordinance No. 4 of 1867only refer to the execution by the Deputy Fiscal of powers and dutiesrequired by that Ordinance to be exercised and performed by theFiscal, but the section which I have just been construing is not
contained within»the Ordinance No. 4 of 1867-.'*
26-
1906.
January 23
Layabd,
O.J.
( 350 )
1900., I think, therefore, that as, in this case, it has been established thatJanuary 23. the surveyor was one licensed by the Deputy Fiscal for the purpose ofi.iyi»i» n 3 preparing a diagram or map in manner provided by the proviso tosection 286 of Ordinance No. 2 of 1888, the conviction of the appellantcannot stand. The Magistrate has not found he was licensed by theFiscal, and the evidence does not disclose he was so licensed assection 286 requires. Several other important points have beenraised by appellant’s counsel. It is, however, unnecessary for me todiscuss them, because I have upheld his objection to the conviction.The conviction will be set aside and the appellant acquitted.