017-NLR-NLR-V-33-ILLANGAKOON-v.-AMARIS-FERNANDO-et-al.pdf
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MAARTENSZ A.J.—Illangakoon v. Amaris Fernando.
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1931Present: Maartensz A.J.1LLANGAKOON v. AMARIS FERNANDO et at.
806— 7—P. C. Colombo, 808,008.
Burial ground—V sing without permission ofGovernor—Claimof title—The
Cemeteries, and Burials Ordinance, 18901 s, 8.
Where the accused were charged with using a burial ground, in whichburials had been discontinued by proclamation,—
Held, that it was no defence that the accused had acquired title to the.land by prescription.
^^PPEAL from a conviction by the Police Magistrate of Colombo.
Weerasooria, for accused, appellants.
M. F. S. Pulle, C.C., for complainant, respondent.
March 20, 1931. Maartensz A.J.—
The appellants in. this case were convicted under section 8 of theCemeteries and Burials Ordinance, 1899, for using a portion of theBuddhist burial ground situated at Mayfield road, Kotahena, withoutthe permission of the Governor. It was proved that burials on theland, which had been exclusively set apart for the burial of the dead,had been discontinued by a proclamation dated December 23, 1875,and that the accused were living on the land without the permission of theGovernor.
The appellants were fined Rs. 7.50 each and only have a right of appealupon a matter of law.
The point of law argued on appeal was that the accused were notliable to conviction under section 8 of the Ordinance as they had acquireda prescriptive title to the land. It was contended that section 8 onlyapplied to lands which had not become private property. I am unableto adopt this contention. Section 8 prohibits the sale or disposal oruse for any purpose whatsoever of land which has been consecrated orexclusively set apart for the burial of the dead and in which burials havebeen discontinued under the provisions of Ordinance No. 12 of 1862or of Ordinance No. 9 of 1899 without the permission of the Governor.The object of the provision is no doubt, to prevent land in which burialshave been discontinued from being used before a sufficient time haselapsed to render the use of it safe from the point of view 6f health; andalso to prevent a desecration of the dead by a premature use of theland. The objects of the provision would be defeated if it was heldthat the section did not apply to land, title to which has been acquired byprescriptive possession.
IiTALL GRANT J*—Fernando 9. Peim.
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Apart from these considerations section 8 creates a statutory offenceand the penalty for a breach of it cannot be avoided by a plea that theland belongs .to the offenders. Even if the land had originally "belongedto accused they would be guilty of a breach of the section by using itfor the purpose of habitation.
The appeals are dismissed.
Appeals dismissed.