SILVA et al. v. THE ATTORNEY – GENERAL

073-NLR-NLR-V-42-SILVA-et-al.-v.-THE-ATTORNEY—GENERAL.pdf


304
Silva v. The Attorney-General.
1940Present : Moseley S.P.J. and Keuneman J.
SILVA et al. v. THE ATTORNEY-GENERAL.
225—D. C. Colombo, 7,632.
Forest Ordinance—Seizure of timber felled from Crown forest—Reason tobelieve that offence has been committed—Material upon which the deci-sion may be reached—Good faith—Forest Ordinance, ss. 37 and 61(Cap 311).
The Government Agent (Uva) on receipt of information from theRatemahatmaya that the plaintiff was felling timber in certain areas ofland which were in process of settlement under the Land SettlementOrdinance referred the matter to the Settlement Officer.
On the advice of the Settlement Officer that no private claim to theforest in the land could be recognized the plaintiff was requested inwriting to cease felling and warned not to remove the timber alreadyfelled.
Thereupon the Government Agent wrote to the Ratemahatmayaauthorising him to seize the timber and to see that that no felled timberwas removed.
The Government Agent purporting to act under the provisions ofsection 39 of the Forest Ordinance made a report which in effectsuggested that a forest offence had been committed and which promiseda further report when investigations had been completed.
Held, that upon the material contained in the advice of the SettlementOfficer, the Government Agent, as Forest Officer, had reason to believethat a forest offence had been committed and that the seizure of thetimber was lawful.
Held, further, that the Government Agent in authorising the seizurewas acting in good faith and that he was protected by section 61 of theForest Ordinance.
A
PPEAL from a judgment of the District Judge of Colombo. Thefacts appear from the judgment.
L. M. de Silva, K.C. (with him D. W. Fernando and J. A. T. Perera),for plaintiffs, appellants.
G. P. Jayatileke, K.C., S.-G. (with him T. S. Fernando, C.C.),for substituted defendant, respondent.
Cur. adv. vult.
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MOSELEY S.P.J.—Silva v. The Attorney-General.
February 3, 1941. Moseley S.P.J.—
The plaintiffs appellants brought this action in the first place againstMr. E. T. Millington who at all times material to the action was Govern-ment Agent of the Province of Uva, claiming from him damages in respectof the seizure by him of certain logs of satinwood which they had felledon land known as Etimole Nindagama. The Government undertookthe defence of the action and, in accordance with the provisions of section463 of the Civil Procedure Code (Cap. 86), the Attorney-General wassubstituted as defendant in the action.
The parties went to trial on the following issues : —
Did the satinwood trees caused to be felled by the plaintiffs and
referred to in paragraph 3 of the plaint stand on landbelonging to a private individual ?
What were the dimensions and value of the logs of satinwood
caused to be seized by the original defendant ?
Were the seizures made or caused to be made by the original
defendant unlawfully and at a time when he had no reason tobelieve that any forest offence had been committed ?
Did the original defendant fail duly to report forthwith the said
seizures to the Police Magistrate of Badulla ?
Did the law require the original defendant to report forthwith the
seizures to the Police Magistrate of Badulla ?
Did the original defendant deprive the plaintiffs of their right,
if any, to assert their claims to the said logs of satinwood andto obtain an order in their favour in regard to the disposal ofthe same ?
If issues (3) and/or (6) are answered in the affirmative and/or
issues (4) and (5) are answered in the affirmative, what damages,if any, is plaintiff entitled to ?
Does the plaint disclose a cause of action ?
Did the original defendant act in good faith with regard to all acts
done by him or omitted to be done by him in connection withthe seizures of the said timber ?
Do the following averments in the answer—to wit,— (a) that thesatinwood trees which were caused by the plaintiffs to be felledand cut into logs in June and July, 1936, did not stand on a landbelonging to a private individual, and (b) that the said timberwas not cut on any land to which the plaintiffs or those, if any,under whom they purported to act in felling the timber wereentitled—constitute a defence to the plaintiffs’ claim ? •
At the close of the plaintiffs’ case the defendant applied to amend hisanswer and to have further issues framed consequent thereon. Theywere accordingly framed as follows : —
(a) Were the forests from which the timber had been felled
conveyed by the Sannas P 49 to the grantees named therein ?
(a) Are the said forests on which the timber had been felled land
at the disposal of the Crown and the property of the Crown ?
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MOSELEY S.P.J.—Silva v. The Attorney-General.
Was the seizure of the logs in question lawful, whether the logswere felled from trees standing on land belonging to the Crownor to a private individual ?
While the issues were framed on the footing that there were severalseizures of satinwood logs, learned Counsel for the appellants made itclear at the outset of his argument that he did not press the appeal inrespect of any of the seizures which took place after July 4, 1937.
The learned District Judge found it convenient in his judgment todeal first with issues (3) and (9) holding the view that a decision on theseissues would to a very large extfent determine the result of the action.He might indeed have gone further since an answer to issue (9) in theaffirmative must, in view of section 61 of the Forest Ordinance (Cap. 311),decide the action in favour of the defendant.
The plaintiffs, on May 5, 1936, had written to the Ratemahatmayaof the Buttala division, wherein the land in question is situated, in-forming him that they had acquired certain, rights in- the land and thatthey proposed to begin felling satinwood trees standing thereon. TheRatemahatmaya forwarded a copy of the letter to the GovernmentAgent (Mr. Millington) who was also a Forest Officer, and expressed theopinion that the felling should not be allowed pending the settlementof the area, which appears to have been in process, under the LandSettlement Ordinance (Cap. 319). This correspondence was referredby the Government Agent to the Settlement Officer for his advice.
On June 9, 1936, the Settlement Officer replied as follows : —
“ The Government Agent, Uva,
Badulla.
Mr. Odiris de Silva should be warned that no private claim to anyforest in Etimole can be recognized. The area is now under surveyfor the purpose of Settlement and if Mr. de Silva fells any timber fromthe land before it is settled it will be at his own risk.
Sgd. S. Vallipuram,
for H. E. Jansz,
' Colombo. June 9, 1936.Settlement Officer.”
. This document was marked D 3 in the action and is set out fully as itseems to me to have considerable bearing on the matters in issue. Thefirst plaintiff was accordingly warned in the sense of D 3 and was informedthat permission to fell could not be granted. That was on June 15,and on the same date the plaintiffs’ manager was requested in writingby the Ratemahatmaya to cease felling and warned not to remove timberalready felled. The plaintiffs thereupon asked the Ratemahatmayaby letter for the Legislative authority under which he purported to act.The plaintiffs do not appear to have received a reply to their inquiryand proceeded with the felling and removal of timber. On July 8,Mr. Millington wrote to the Ratemahatmaya authorizing him to “ con-. tinue the seizure ” of all timber already felled and to see that no felledtimber was removed.<
MOSELEY SJP.J.—Silva v. The Attorney-General.
307
On July 21, Mr. Millington, purporting to act under the provisions ofsection 39 of the Forest Ordinance, made a report which, in effect, suggestedthat a forest offence had been committed and which promised a furtherreport when investigations had been completed.
It may be convenient here to set out sections 37, 39 and 61 of theForest Ordinance which are as follows : —
“ 37. When there is reason to believe that a forest offence has beencommitted in respect of any timber or forest produce, such timber orproduce, together with all tools, boats, carts, and cattle used in com-mitting any such offence, may be seized by any forest officer or policeofficer.
39. Upon the receipt of any such report the Government Agent orAssistant Government Agent shall forthwith forward the same to theMagistrate having jurisdiction to try the offence, and such Magistrateshall take such measures as may be necessary for the trial of the accusedand the disposal of the property according to law.
61. No suit or criminal prosecution shall lie against any publicservant for anything done in good faith or omitted by him in goodfaith under this Ordinance.”
In considering the position at this stage the learned District Judgein his judgment observed that “ in view of the advice and directionsgiven by the Settlement Officer as embodied in his endorsement D 3and his letter D 8 the question arises whether Mr. Millington acted in goodfaith in ordering his subordinate officers to make a seizure of the timberwhich had been felled and thereby prevent their transport and removal ”.I would draw attention to the words “ and his letter D 8 ” since thelearned Judge appears to have been under a misapprehension as to thedate of that letter. Elsewhere in his judgment he remarked thatMr. Millington had sought to justify hi£ action on advice embodied in theletter D 8 of “ 11th June, 1936 ”. The date of the letter is in fact July 11,1936, and could therefore only justify in retrospect an action whichtook place on or about June 26. On that date Mr. Millington had beforehim, in the way of advice from the Settlement Officer, the document D 3.Had he reason upon that material, to believe that a forest offence had.been committed ? To answer this question it is necessary to take intoconsideration certain circumstances surrounding the land whereon stoodthe timber in respect of which Mr. Millington formed the opinion that anoffence had been committed.
The plaintiffs derive their title, whatever it may be, from a Sai.nas*that is to say, a copper plate grant made by the King of Kandy in 1807.That the Sannas itself is genuine is admitted. The effect of it, for thepurposes of this judgment is immaterial. It is sufficient to say that thepoint which appears to have been always in doubt is whether or notit conveys to the grantee the high forest.
Controversy seems to have arisen for the first time in 1905, when inresponse to a call by the Settlement Officer for documents of title thisparticular Sannas was produced. A translation was made and corres-pondence followed as to the correctness thereof. In May, 1906, thematter appears to have been shelved until the time should arrive to carryout the Etimole irrigation scheme.
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MOSELEY S.P.J.—Silva v. The Attorney-General.
In 1921, the Ratemahatmaya asked that inquiry be made into thetitle since an application to remove some ebony from the land had beenreceived by him. The Sannas was again produced by the applicantwho threatened to take legal proceedings if his activities were circum-scribed. The controversy seems to have terminated in May, 1923, whenthe then Government Agent (not Mr. Millington) expressed the opinionthat an expensive survey was not worth while “ unless the Crown canassert title The matter was apparently not pressed by the applicant.
The subject was again revived in 1929 when the Divisional ForestOfficer who considered that prompt action in connection with the claimwas of importance since attempts were being made to “ exploit satinwoodfrom the area These representations were addressed to Mr. Millingtonwho by his letter D 91 of September 7, 1929, referred the matter to theSettlement Officer. Mr. Millington mentioned in his letter that theKachcheri file dealing with this subject was forwarded with his pre-decessor’s letter of December 4, 1922. The Settlement Officer’s replywas that nothing had been proposed or done since June, 1923.
It will be observed that on three occasions questions connected withtitle had been raised with the authorities and Counsel for the appellantscontends that Mr. Millington must have been aware of these circumstancesand for that reason had no reason to believe that the action of the plaintiffsin felling and removing timber in 1936 constituted a forest offence. It is afact that the prosecution which was instituted failed and Counsel argued^that in view of certain decisions of this Court Mr. Millington should havebeen aware that a prosecution could not succeed if there was a genuinedispute in progress as. to title. In Chena Muhandiram v. Rawapper1Lascelles C.J. expressed the view that the section (now section 2) of theForest Ordinance which deals with prosecution was not intended toauthorize the Crown to proceed criminally in cases where there is fromthe beginning a bona fide question of title between the Crown and theaccused. In Weerakoon v. Ranhamy 2 a Full Bench laid down inter aliathe classes of cases in which a Magistrate should refer the matter to aCivil Court. Counsel contended that Mr. Millington must have beenaware of these decisions and should therefore have been put on his guard.Assuming that he was in fact aware of these decisions the question to beanswered is, was he aware that there was a dispute between the plaintiffsor the persons from whom they derived title on the one hand and theCrown on the other. As I have pointed out the matter had been dis-cussed on three previous occasions, viz., 1905, 1922, and 1929. At thelatter date only was Mr. Millington the Government Agent of the Provinceof Uva. Should he, in 1936, have been cognisant of any previouscontroversy, or, if he was not, should he have taken steps to satisfy himself. that there had been no previous dispute ? In the course of his evidence,taken de bene esse he said that his mind was a blank in regard to thequestion of title to the land. He also admitted that he did not go intothe matter at all but referred it to the Settlement Officer. He had,he said, no recollection of having seen file 1552, which was the Kachcheri
117 x. L. R.
* 23 N. L. R. 33.
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MOSELEY S.P.J.—Silva v. The Attorney-General.
file dealing with the matter. His evidence on these points was acceptedby the learned Judge and I see no reason for forming a contrary opinion.It has been contended by learned Counsel for the appellants that Mr. Milling-ton’s action in referring the matter to the Settlement Officer amountedto a delegation of,his powers which he was not legally empowered todelegate, and that he must therefore take the consequences. As hasalready been remarked the Kachcheri file dealing with this matter wassent to the Settlement Officer in 1922. There is evidence that a file,which must have been opened subsequently, was sent to the same officein 1934. It seems to me that the Settlement Officer was an officer whowas eminently qualified to advise the Government Agent on a matterof this kind and that the Government Agent would be justified inaccepting his advice without further inquiry. It is true that the learnedDistrict Judge appears to have misdirected himself in assuming thatMr. Millington justified his action in view of the Settlement Officer’sadvice contained in the letter D. 8, which was written subsequently to theseizure. On the other hand he may have intended to say that Mr. Milling-ton acted on the advice of the Settlement Officer, given in D 3, whichwas subsequently embodied in D 8. In either case it seems to me a matterof no importance since, in my view, the observations of the SettlementOfficer in D 3 are sufficiently forceful to warrant Mr. Millington in believingthat a forest offence had been committed.
In regard to issue (9) the matters which have already been consideredare relevant. Section 61 of the Forest Ordinance has been set outabove. Before deciding whether Mr. Millington acted in good faithin regard to the acts done or omitted to be done by him, the meaning ofthe term “ good faith ” requires consideration. The expression is notdefined in the Forest Ordinance, nor in the Interpretation Ordinance.Various authorities have been brought to our notice. Perhaps thelowest estimate of what is necessary to satisfy the requirements of theterm is contained in Mogridge v. Clapp1 in which Kekewich J. defined“ bona fides ” as the absence of “ mala fides It is difficult to acceptthis as a definition which is generally applicable, however appropriateit may have been to the particular case then under consideration. Indeed,in Mookerjee v. Collector of Hooghly", a case which dealt with theresponsibility of Magistrates it was held that the mere absence of mala■fides was no defence where a.Magistrate had pleaded that he was actingjudicially and bona fide and that there was no protection afforded to aMagistrate who had not acted with due care and attention. The questionto be considered, said Macpherson J., was whether the Magistrate hadacted reasonably, circumspectly, and carefully. In Collector of SeaCustoms, Madras v. Punniar Chithambaram ’ Kindersley J. quoted from aprevious judgment the following words : —
“ A groundless belief formed from ignorance or rashness is plainlynot sufficient—the belief must be entertained in “ good faith ” andthose words were meant, I think, to require an honest persuasion,found after fair inquiry and consideration …” 1
1 (1892) 3 Ch. Dir. page 3SS.1 13 Sutherland. W. R. 13.
3 /. h. R. 1 Madras, paye SO.
310MOSELEY S.P.J.—Silva v. The Attorney-General.
Re Greenwood; Greenwood v. Firth 1 was an action against trustees undera will who had failed to collect a certain debt due to the testator. Thedefendants relied upon section 21 (2) of the Trustees Act, 1893 (56 & 57Viet. C. 53) which relieves a trustee from responsibility “ for any lossoccasioned by any act or thing done by him …. in good faith ”.It was held by Eve J. that “ care must be exercised not to extend tothe careless or indolent trustee the statutory relief intended for thecareful and active, though possibly mistaken, one,'’ and further that if“ the loss has arisen from the neglect or carelessness or supineness of thetrustee, and not from a mistaken but bona fide exercise of the statutorypowers vested in him, then …. the case is one outside thesection altogether …. and no relief ,is thereby afforded to thetrustee ”.
In the present case the main charge against Mr. Millington is that hedid not recall the Kachcheri file from the Settlement Officer and consultit for the purpose of forming his own opinion on the matter. The learnedDistrict Judge found that it would be difficult to hold that Mr. Millington’saction would have been in any way different if he had himself investigated.the claim. I have already expressed the opinion that he sought advicefrom an eminently suitable quarter and it does not seem that a studyof the file would have helped Mr. Millington to form the conclusiontheflt a bona fide claim of right existed. He would have found that theamended translation of the Sannas excluded high forest from its operation,and from Mr. Fox’s report, annexed to the document D 104 he wouldhave gleaned that the Sannas conveyed “ only certain paddy fields andthe ‘ goda walpitiya ’ appertaining thereto.” He would have learnedof the previous protests which had been allowed to lapse into oblivion,and of the crediting to revenue of money received from the sale of felledebony instead of paying it to the claimants. The District Judge had allthese facts before him and he answered issue (9) in favour of the defendant.It does not appear that there were brought to his notice all the authoritieswhich were cited to us. Nor does it appear to me that, however highlywe value the requirements of the term “ good faith ” in the light of theauthorities that have been considered, the learned District Judge couldhave come to any other opinion.
As I have already observed the case depends almost, if not altogetherentirely, upon the answer to issue (9). In regard to issues (4) and (6), itis only necessary to say I agree with the views of the learned District Judgethereon. It is undeniable that the prosecution in respect of the allegedforest offence was subject to considerable and unexplained delay, butin this respect it does not seem that Mr. Millington was in any wayresponsible.
For these reasons I think that issues (3) and (9) were rightly decidedin favour of the defendant and that the plaintiffs’ action therefore fails.
The appeal is dismissed with costs.
.O
Keuneman J.—I agree. 1
1105 L. T. 509.
Appeal dismissed.