061-NLR-NLR-V-10-SILVA-v.-RAJENDRA.pdf

Present ;JMr. Justice Middleton.
* SILVA v. RAJENDRA.M. C.> Colombo, 5,593.
Public health—Neglecting to obey an order to fill up or disinfect a well—Requisites of proof—Mode of proof—*' Owner M—Person holdingpower of attorney—Regulation25made underOrdinanceNo,3 of
1897.
In a prosecution for neglecting to obey an order made underregulation 25 of December16,1901,byauthorityofOrdi-
nance No. 3 of 1897, there must be proof that the Chairman issatisfied, on proper materials,that the wateriaso polluted asto be
dangerous to the public health.
The various ways of proving this indicated.
A person who holds a power of attorney from a person absent inEngland^ and who managesthepropertyofsuch person in Jth&
Island, ia *n M owner ” within the meaning of the above regulation.
A
PPEAL from a conviction by the Municipal Magistrate (R. W.
Byrde, Esq.). The accused was charged as follows That
he, being the owner of premises bearing assessment No. 18, Ksw
1 (1905) 2 Balasingham 61.
1907.
September 10.
( 316 )
1907. street, within the Municipality of Colombo, did on June 29,September io. 1007, and thereafter, without lawful authority or excuse, omit tofill up the well in the said premises, which well he was required tofill up by a written notice served on him on May 18, 1907,and issued by the Chairman of the Municpial Council of Colombounder regulation No. 25, made under Ordinance No. 8 of 1897and published in Ceylon Government Gazette No. 5,970 datedFebruary 19, 1904, and that the said accused did thereby commitan offence punishable under section 7 (1) of the said OrdinanceNo. 3 of 1897.M
The Magistrate convicted the accused and fined him As. 50.
The accused appealed.
Bawa, for appellant.—There is no evidence to prove that the'Chairman in fact arrived at the conclusion that the. water in the wellwas unfit for human consumption, nor that he came to such a con-clusion on the report of a properly qualified analyst. The noticeserved on the accused is no proof (Leembruggen’s Reports, 1905,p. 27). The accused is not an “ owner ” or “ occupier ” as requiredby the Ordinance. “ Owner ” means owner in the sense understoodby the Civil Law. Finally, no option is given by the notice eitherto disinfect the well or to close it.
F. J. de Saram, for respondent.—The case in Leembruggen’sReports can be differentiated from the present, and does not apply.The notice states that the Chairman was satisfied on the report ofthe Public Analyst, and the latter must .be presumed to be properly■qualified for the post he holds. Owner is not defined for the .pur-pose of the Ordinance No. 8 of 1897, but a definition can be soughtfor in analogous Ordinances, viz., from the Ordinance No. 7 of 1887.section 8; Nuisances Removal, 18 and 19 V., c.. 121, section 2; audthe Public Health Acts. The provisions of the Ordinance should beconstrued so as to give effect to the intention of the Ordinance and■not furnish a means of evasion (Maxwell on the Interpretation of8tatutesf pp. 26, 72, and 405). The accused holds his father'spower of attorney, and collects the rents in his absence. He acceptodnotice as owner, and is estopped from denying the fact now. Thesection gives* the Chairman the option to order either the disin-fection or the closing of wells.
e10th September, 1907. Middleton J.—*
v
This wa£ an appeal from a conviction by which defendant wasfined for neglecting to obey an order of the Chairman of the Muni-cipal Council made under regulation 25 of December 16, 1901, by^authority of Ordinance No. 3 of 1897.
( 317 )
It was agreed by counsel appearing in two other cases, Nos. 3691907.
-and 379, M. C., Colombo, 5,826 and 5,053, respectively, that, subject SeptembsrlQ.to any supplementary argument that they might be called on to add, Mtodusio*the argument of Mr. Bawa in this case and the decision thereingiven should be, so far as it affected the other cases, decisive of them.
The regulation under which the prosecution is instituted runs asiollows:—
'* Whenever the proper authority is satisfied from either the writ-ten report of a qualified analyst or the certificate of a health officerthat the water of any well is so polluted as to be dangerous to thepublic health, the proper authority may give written notice to theowner or occupant of the land or premises in which such well issituated to fill up or to disinfect the well to the satisfaction of theproper authority, and the owner or occupant shall thereupon forth-with cause the well to be filled up or disinfected, as the case may be.
In places where there is a Municipality the term ' proper authority ’in this regulation means the Chairman of the Municipal Council."
The first point taken was that the Chairman must prove that heis satisfied, and that the evidence on which he is satisfied is that of.a qualified analyst or the notice is ultra vires.
In the present case all that the prosecution has attempted to proveis that the notice was given to the defendant, mid that he is the•owner within the meaning of the regulation. The copy of the noticesaid to have been served on defendant purports to be signed by theChairman, and expresses the fact that he is satisfied from the writtenreport of a qualified analyst. No evidence has been tendered orgiven that the water analyzed came from the well in question,nor has the analyst's written report been put in. The groundfor the Chairman's order is that he is satisfied that the wateris so polluted as to be dangerous to the public health. If the•Chairman is satisfied of this on the grounds set out in the regula-tion, be can order the well to be filled up or disinfected. If theowner disobeys, he is liable to punishment for breach of the regula-tion. He may obey, showing.his acquiescence in the propriety ofthe order. If he disobeys, it then becomes incumbent, in myopinion, on the Chairman to prove to the Court that he has com-plied with the regulation as a condition precedent to the exercise•of the Court's penal coercive powers. To do this, in the ordinarycourse of evidentiary procedure, it would be necessary for the Chair-man to appeal to and produce the analyst's report and state hissatisfaction with it on oath. This would cause great inconveniencemid demand on the time of the Chairman, and is not absolutely
essential.*
»
The Court accepts the signature of the Attorney-General or of apublic officer under section 147 of the Criminal Procedure Code asevidencing their sanction to criminal proceedings under certain
( 318 )
1907. sections of the Penal Code, and a copy duly certified by the legalBftmber 10. keeper thereof of Municipal proceedings is evidence thereof underMmnjsron section 78 (5) of the Evidence Ordinance. I think, therfore that.
. a duplicate or the original notice marked A in these proceedingsmight well be . received in evidence by the Magistrate to show theChairman’s satisfaction. A copy duly certified by the Chairmanhimself or the clerk of the Municipal Council I should also have no-objection to receive in evidence. Proof also that a notice in theterms of A was duly signed by the Chairman, of which a copy was.produced to the Court and sworn to as being a true copy of thenotice served, would also, in my opinion, be sufficient.
If the analyst is the Government Analyst, his report is receivablein evidence under section 406 (3) of the Criminal Procedure Code.
If he is not the Government Analyst, his report should show thathe is a properly qualified analyst, and if so, it would be admissibleunder the regulation itself to show the ground on which the Chair-man was satisfied. I think, therefore, the analyst’s report dulysigned by him manifesting his qualification would be put inevidence.
In most cases it would not be necessary to call either the Chair-man or the analyst, but this might be done, if required, under and;by analogy to the provisions in sub-sections (4) and (5) of section 406.The analyst’s report must show that the water it refers to was saidto be taken from the well in question by identification of the vesselcontaining it. There must also be evidence- that the water sent tothe analyst was in fact taken from the well in question. This is, Ithink, the most ijnportant requirement under the regulation, owingto the possibility of fraud or negligence on the part of everysubordinate person. At least three samples ought to be taken, andthe vessels containing them carefully sealed, marked, and identi-fied, one to be sent to the analyst, one to be retained by theSanitary Inspector who draws them to be, produced before the Court,and the other to be given, if required, to the owner or occupier.
The Magistrate being satisfied that the Chairman has good reasonfrom the analyst’s report or from the certificate of the health officerto be satisfied that water taken from an accused’s well is so pollutedas to be dangerous to public health must enforce the Chairman’sdecision, and* I would hold, following my decision in 129, M. C.,Colombo. 9,982, that the Chairman's decision so founded cannot beimpugned. To hold that the Chairman's mere satisfaction is theonly thing to be proved would open out a dangerous avenue toinjustice by way of negligence or chicanery, if not fraud. *
• Again, a man is not to be punished unless it is clear vto the Courtthat he has* discharged an order which the Chairman has made on thegrounds permitted to him by law.
On the first point, therefore, I must hold that the prosecutionhaVe not furnished the necessary proof to entitle them to succeed.
(319 )
Following on this first point comes the third raised by Mr. Bawa, 190t.viz., whether the option of deciding if the well is to be filled up September 10.or disinfected rests with the proper authority, t.6., the Chairman. MiddlbtowIn my opinion it was the intention of the regulation to give the J*proper authority that* option. It is absolutely necessary for thepurpose of the Ordinance, in the interests of the public safety, thatsuch arbitrary powers should be within the province of theExecutive Government, and the Legislature has accorded to it powerto make regulations for this purpose. It is incumbent, however,that they should be exercised wisely and with due regard to therights of property and persons. These powers cannot be conve-niently exercised by the Governor and the Executive Council, andthey are delegated to a Government official occupying a responsibleposition as Chairman of the Municipal Council, in whose hands theirexercise is looked for as attended with discretion and judgment.
If the Governor, with the advice of the Executive Council, con-sidered that a qualified analyst or a health officer were competentpersons to advise the Chairman as to whether the polluted condi-tion of water in a well was dangerous to public health, I must assumethat they are persons qualified and competent to advise the Chairmanin such a matter. If they are competent there is no danger tothe public interest in acting on their scientific advice, or in givingthe Chairman the option which, in my opinion, he was intended tohave and has.
The second question raised, which comes last in the order ofmy consideration of the wKole matter, is (1) whether the defendanthere is estopped frorp denying the ownership which he originallyimpliedly admitted; (2) whether he must not be deemed under thecircumstances to be the owner within the meaning of the regulation.
The defendant held his father's power of attorney while the latterwas in England, accepted service of the notice, and wrote to theSanitary Inspector on July 23 in regard to taking samples in thewell without any objection made that he was not the owner. It wasonly upon the hearing of the evidence for the defence that thedefendant- raised the question of his liability.
The prosecution tv? ted on the belief that he was the owner in pro-secuting him, and he has only himself to thank for the position he1 has been placed in. I have some doubt, however, if the law ofestoppel should be applied to the case of a person charged with aquasi criminal offence, who is entitled, I think, to prove the truthif ho can. *1' »
As»regardfe* the second sub-point, it is said there is no definition of“ owner” in the Ordinance, and argued for the ' defence that thisCourt will not extend the meaning of the word beyond .that impliedby dominus under the Boman-Dutch Law.
On the, other hand, .counsel for the prosecution argues that themeaning should be derived by analogy from that, given to it in.
24-
( 320 )
1907. English or Ceylon Public Health Acts, and relied on certain dicta inSeptember 10. MaacweU on the Interpretation of Statutes. The regulations, likeMronraroN Ordinances, are not to be construed so as to furnish chance ofescape and a means of evasion (Maxwell, p. 405), and the evidentmeaning should be given when needful to effectuate the intention ofthe Legislature. .
While the defendant’s father was in England, the defendantcollected the rents and managed the property on which the well was-situate, and was for the time being acting as its beneficial owner.To allow him to evade the responsibility connected with the sanitarymanagement of the property on the ground that he was merelyde facto and not de jure owner would, I think, be inconsistent with,if not contrary to, the intentions of the framers of the regulation.To hold the contrary would give a patent means of evasion to apermanently non-resident owner, whose property was managed bya duly authorized attorney. I therefore hold that a person in theposition of the defendant as regards property must be deemed to bean owner for the time being within the meaning to be assigned tothat word under the regulation in . question. In my opinion, there-fore, the appellant must succeed practically only on one point, thefirst raised by Mr. Bawa.
The Sanitary Inspector Davidson has sworn here that he servedthe notice A on the defendant, but that can hardly be so, as it is inthe record and it is not in evidence that he returned it. He intendedto say no doubt that he served a document, of which A is a truecopy, on the defendant, but.he omitted.to state that the documenthe served was in fact signed by the Chairman. There is no proofhere, therefore, of the Chairman’s satisfaction. Sanitary Inspectorde Silva does not cure this by saying that the notice was issued bythe proper authorities. The notice further does not identify theanalyst.
I shall therefore direct that the conviction be quashed for want ofproper proof.
Appeal allowed, conviction quashed.