RAHIM v. JUAN

153-NLR-NLR-V-02-RAHIM-v.-JUAN.pdf


( m )1807.
July 14and 28.
RAHIM v. JUAN.
P. O., ChUaw, 11,772.
Forest produce—Removal of timber from, private land—Ordinance No. 1-of 1892.
“ Forest produce,” the transit of which may, by Ordinance No. 1of 1892, be regulated or'prohibited by the Governor in ExecutiveCouncil, is interpreted in the Ordinance to mean “ timber cut in•' any land or property, whether the property of the Crown or any“ private individual ”—
Held, that the judgment in Marikar v. Dias (2 C. L. R. 168), thatsince the passing of the above Ordinance removal of timber withouta pass as distinguished from forest produce was not an offence,was due to an oversight of the above interpretation, and is not inaccordance with the right reading of the Ordinance.
HE facts of the case sufficiently appear in the judgment.
Dias, C.C., for appellant.
De Saram, for respondent.
26th July, 1897. Bbowne, J.—
At the argument of this appeal before myself it was submittedthat the present Acting Chief Justice had come to an erroneousconclusion in the judgment, in pursuance of which the Police,Magistrate acquitted the accused on presentation of the complaintand examination of the complainant, and counsel for appellantdesired that if it should appear necessary I should submit theappeal presented to the Acting Chief Justice. I did so, and he,allowing appellant’s contention, has sent me the following judg-,* ment. I respectfully concur in it, and I therefore read it as the
judgment upon the appeal.
Lawele, A.C.J.—
The history of the legislation regarding the removal of timbergrown on private lands seems to be this. In the Ordinance No. 24of 1848 (to regulate the felling and removal of timber grown onCrown lands in the Island) there was this enactment (section 8):
“ And? whereas much valuable timber is felled on the Crown lands“in this island and removed therefrom without any authority,”“ under pretext that the same has been felled on the lands of priyate“ parties; and it is expedient to prevent as far as possible the“ continuance of these frauds, it is therefore further enacted that it“ shall not be lawful for any person to remove from his own land or‘-from the land of any. other private party any timber which“ may have been felled thereon without having obtained a permty“ authorizing such removal,” &c.‘
( 379 )'
This Court construed the 8th section of Ordinance No. 24 of1848 somewhat strictly.
In a Negombo case reported by Beling and Vanderstraaten,page 408, decided by the Full Court (Rowe, C.J., Templer andMorgan, J.J.) on 18th May, 1857, it was held that the act prohibitedby the 8th section of the Ordinance was the removal of timberfrom the land on which it had been felled, and that removal fromthe premises of a trader in the town of Negombo was not an actwhich fell within the prohibition.
This was followed two years after by the Full Court (Rowe,C.J., Sterling and Morgan, J.J.), 3 Lorenz, 229, and jn two casesreported in Ramanathan’s Reports, 1877, pp. 180 and 236,' and in1 8. C. C. 46 and 63.
The Ordinance No. 24 of 1848 was repealed by Ordinance No. 6of 1878. The 9th section of it enacted “ that it shall not be lawful“ for any person to remove from his own land or from the land“ of any other private person any timber which shall have been“ felled thereon without having obtained a permit authorizing“ such removal,” &c.
The decisions under the Ordinance of 1848 relative to theremoval of timber from private lands were applicable to the newOrdinance.
In a case reported in 3 8. C. C. 60 it was held by Cayley, C.J.,that a plaint under the Ordinance of 1878 was defective, in thatit did not state from whose land the timber was removed, nor didit state that it was removed from the land on which it was felled,and those defects were not cured by the evidence.
Then the Ordinance No. 7 of 1878 was repealed by OrdinanceNo. 10 of 1885.
Section 46 enacted: “ No timber shall be removed from any“ land without a pass from the Government Agent,” &c., andtimber was interpreted to include trees when they have fallen orhave been felled, and all wood, whether cut up or fashioned orhollowed for any purpose or not.
This included the materials of houses, doors, and windows,frames, boats, carts, furniture, everything made of wood grownin Ceylon.
In a case reported ’in 1 8. C. R. 55 I held that there must beproof of removal from a “ land.” I intended to decide in the spiritof the decision under Ordinance No. 24 of 1848, beginning .withthe Negombo case in 1857, and that judgment of mine was givenin June, 1890.3
By the Ordinance No. 1 of 189^ the 46th section of the Ordinanceof 1885 was repealed, and it was no longer a statutory offence to
1807.
July 14and 26.
IiAWbie,
A.C.J.
( 380 )
1807.July 14and 26.
Lawbib,
A.C.J.
remove timber without a permit, but by an addition to section 44it was enacted that the Governor in Executive Council mightregulate the transit of all forest produce or prohibit the movingof forest produce without a pass, and forest produce was inter-preted to include “ timber, cut in any land or properly, whether“ the property of the Grown or any private individual.”
In a case reported in 2 C. L. B. 158 I overlooked theinterpretation given by the Ordinance of 1891 to forest produce,and I take this opportunity (the first so far as I remember whichI have had) of saying that in my opinion the judgment I thengave was not in accordance with the right reading of the amend-ing Ordinance.
I see from the report that I had not the advantage of hearingcounsel in that case, which may partly account for my havingfallen into error.
I would set aside the acquittal and remit the case for furtherproceedings.
The plaint seems to me to require amendment. It asserts thatit is an offence under section 46 to remove ebony and other logsand two roof beams from Raj akadalu wa to Chilaw without apass. The Ordinance does not say so. It gives to the Governorpower to regulate the transit and to prohibit the moving of timberout on private land.
It is not said in this plaint that the Governor has made such aregulation. If he has, the complaint is defective in not settingout the terms and the date of the regulation a breach of which isan offence.
It is premature to give an opinion as to what the prosecutionmust prove before a conviction can be obtained for removing“ timber cut in any land.”
It is. not necessary to prove the moving from the place wherethe timber was cut; not subsequent removal from timber yard totimber yard; not the moving of the materials of houses or offurniture from house to house. I would set aside the acquittaland remit for further proceedings.