071-NLR-NLR-V-29-RODRIGUESZ-v.-KIRI-MENIKA.pdf
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Present; Drieberg J.
RODRIGUESZ t>. KIRI MENIKA.
711—P. G. Kandyt 88,441.
Publicservant—Government surveyor acting withoutauthority—
Unlawful obstruction—Land Acquisition Ordinance, 1876—PenalGodet s. 183.
Where a* Government surveyor proceeded to exercise the powerscontained in section 4 of the Land Acquisition Ordinance No, 3 of1876, without the authority of the Surveyor-General,—
Held, that the obstruction offered to the surveyor was notunlawful.
^^PPEAL from an acquittal from the Police Court of Kandy.
Loos, for complainant, appellant.
Rajapakse, for accused, respondent.
June 12, 1928. Drieberg J.—
The appellant is a Government surveyor, who was resisted by therespondent when he was about to survey a land. It was sought toacquire this land for a public purpose, and an order (P 3) had beenissued by His Excellency the Governor to the Surveyor-Generalunder section 4 of the Land Acquisition Ordinance, 1876.
The appellant received instructions (P 1) from Mr. Davies,Assistant Superintendent of Surveys, to survey the land, and asthe respondent objected to the survey the appellant was directedto issue a notice to the respondent on what is referred to as Form 178(P 5). This form is intended to meet the requirements of the provisoto section 4 of the Ordinance.
On April 21, 1927, the appellant, when he was about to surveythe land, was resisted by the respondent. The learned PoliceMagistrate has accepted the evidence of resistance, but he was ofopinion that section 4 of the Land Acquisition Ordinance requiredthat the appellant should have been authorized by the Surveyor-General to make the survey and that there was no proof that hewas so authorized. He acquitted the respondent, and the appellanthas brought this appeal.
Mr, Loos, for the appellant, contended that the words " authorizedby the Surveyor-General 99 applied only to “ any surveyor,” andnot to any officer of the Surveyor-General’s Department. In my
1928.
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1928.
Dbxbbebg
. J.
Kodrigueszli. KiriMenika
opinion Ine learned Police Magistrate has taken the correct viewof this section, and it was necessary for the appellant to prove thathe had the authority of the Surveyor-General to enter the landand survey it. Section 4 does not state the form or nature of theauthority required.
The appellant undoubtedly was authorized by the AssistantSuperintendent of Surveys to make the survey. A letter of July 22,1927 (P 4), by the Surveyor-General to the Superintendent of Sur-veys, Kandy, was put in evidence. In this the Surveyor-Generalrefers to orders issued by him to the Superintendent of Surveys,Kandy, to make the survey. Now, this letter was written after theresistance, and there is no proof of such orders. If the Surveyor-General had directed the Superintendent of Surveys or hig Assistantto have the survey made by the appellant or any other officer ofhis department whose duty it was to make such surveys, and ifthe Superintendent or Assistant Superintendent of Surveys actingunder those directions had entrusted the work to the appellant, it.could have been contended that the appellant had the authority ofthe Surveyor-General to make the survey. But no such evidencewas led, nor was there proof of a direct authority to the appellantby the Surveyor-General, and the charge necessarily failed.
The appeal is dismissed.
Appeal dismissed.