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P. G., Batticaloa, 2,136.
“ Land at the disposal of the Crown ”—Proof—Onus—Presumption—
Amendment of substantialprovision—Bidesmade under such
provision—Construction of statute—Ordinance No. 10 of 1885, ss.
3, 44, and 72—Ordinance No. 1 of 1892, s. 14 (1).
Held, thatin a prosecution for “ felling andsawingtimberon
land at thedisposal of the Crown withoutapermit ”underthe
rules made under Ordinance No. 10 of 1886 the same degree of'proof that the land is " land at the disposal of the Crown ” is notrequired when the ownership of the land on – which the offence isalleged to have been committed is not in dispute as that whichmay be necessary if ' the question whether it is Crown or privateproperty forms a main issue.
Held, thatwhere thereis no serious contestasto titlein apro-
secution under the Forest Ordinance the evidence of forest officersand police Jieadmen that the land on which the offence was com-mitted was Crown land was sufficient proof that the land was landat the disposal of the Crown.
Wood Benton ■ J.—To – hold otherwise would be to reduce thepenal provisions of the Forest Ordinance'to a nullity.
NugapitiyaMohandiramv. Sudalayandi (1N.L. B.102)and
Amarasekera v. Baiyya (3 Browne 161) distinguished.
(1) (1896) 2 Ch. 336.(2) (1837) 3 Mem. 79.
Present: Mr. Justice Wendt and Mr. Justice Wood Benton.SINNATURAI VANNIAH *. AHAMADO LEVAI et al.
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Section14 (1)of “TheForestOrdinance, 1892”;(No. 1of 1892>
provides that in section 44 of the Ordinance of 1885 the term“ timber ” shall, unlessthecontextotherwise requires, “ include
timber cut 'in any landor property,whether the property of the
Crown or any private individual."
Held,thatthissection of Ordinance No. 1 of 1892appliestothe
rules framed under section 44 of Ordinance No. 10 of 1885 as well.
WoodBentonJ.—If the amendment of section 44by theOrdinance
of 1892is notto applyto therules made underit, theamending
■ provisions would be entirely nugatory.
Held,thatunder section 72 ofOrdinance No. 10 of1885, whenever
a question arisesas to whetherany timber or forestproduceisthe
property of the Crown,thereis apresumption in favour of – the
Crown that it is the propertyof theCrown until the contrary is
Wood Benton J.—If a prima facie case is made out by theaccused,theonusprobandi willbe shifted, and theCrownwillbe
required to give strict proof of all the elements indicated in section 3.
Wood Benton J.—The Legislature, has drawn a distinctionbetweenmeretrespassers andpersons assertingsubstantial claims
of title. Whilethe trespasser neither receives nordeserves any
protection, the rightB of the serious claimant of title are amplyprotected by section 72.
A PPEAL from a conviction under Ordinance No. 10 of 1885.
The facts and arguments sufficiently appear in the judgment ofWood Benton J.
Bawa, for the accused, appellants.
Van Langenberg, A.S.-G., for the Crown.
Cur. adv. vult:
30th March, 1906. Wood Renton J.—
The two appellants were convicted in the Police Court of Kal-munai—first, of having felled and sawn Crown timber to the valueof Bs. 200, in the proclaimed forest of Kallovadiya in the BatticaloaDistrict, without a permit, in contravention of rule 14 of the rulesof 19th January, 1887, made under ‘‘ The Forest Ordinance, 1885 ”(No. 10 of 1885), and published in the Government Gazette of 21stJanuary, 1887; and secondly of having removed ^uch timber incontravention of rule 2 of the rules of 30th April, 1900, made underthe provisions of chapter V. of the Forest Ordinance, and publishedin the Government Gazette of 4th May, 1900.
The learned Police Magistrate sentenced each of the appellantsto a fine of Rs. 100, or in default to six months’ rigorous imprison-ment on the first count, and to a fine of Rs. 25, or in default onemonth’s rigorous imprisonment, on the second. Nine other men
were tried along with the accused on the same charges. As againstfour of these, the complainant did not press for punishment. Theremaining five were convicted on the second count alone, andsentenced each to a fine of Rs. 10 or in default one month’s rigorousimprisonment.
They do not appeal.
On behalf of the present appellants, Mr. Bawa took a number ofpoints, which are, however, practically reducible to two. We shallrefer to the evidence, so far as it is material, in dealing with theseobjections. In the first place, he contended, as matter of law, thatthe burden of proving, and of proving strictly by evidence of a kindto which we shall refer immediately, that the land on which thetimber in question had been cut, and from which it had been removed,was “ land at the disposal of the Crown ” within the meaning ofsection 3 of " The Forest Ordinance, 1886 ” (No. 10 of 1886), restedon the prosecution, and, in the present case, had not been discharged.This objection applies to both counts in. the plaint. In the secondplace, he said that, even assuming that his point as to the burdenof proof was bad, there was no evidence to substantiate the chargeof felling and sawing. We shall’ deal with these objections in turn.On the question of the burden of proof, Mr. Bawa put his case inthis way. Where a forest offence is charged it rests with the pro-secution to make out affirmatively that the land on which it isalleged to have been committed is “ land at the disposal of theCrown. ” The evidence by which that onus probandi is satisfiedmust be authentic evidence that the land in question is land inrespect of which no person has acquired any right by written grantor lease from the British, Dutch, or native Governments, or anyright as against the Crown by a certificate of no claim, and whichhas not been registered as temple lands (No. 10 of 1885, section 3).Statements by police vidanes and forest officers on these points—and no other evidence was forthcoming in the present case—are ofno probative value. In support of these contentions, Mr. Bawarelied on the following authorities:Nugapitiya Mohandiram v.
Sudalayandi(1); Amarasekerav.Baiyya (2);647, P.G.,Kuru-
negala (3);t 596,P.G.,Tang alia,20,068(3);393,P.C.,
In our opinion, however, these cases are clearly distinguishablefrom the one before us. In each of them there was a serious contestas to whether the land in question was Crown land or not. Hereno such issue was raised. The learned Police Magistrate, indeed;
(1895)1 N. L. R. 103.(3)S, C.Min. 12thOctober, 1904.
(1900)3 Browne 161.(4)8. C.Min. 13thOctober, 1904.
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1908. gays that the accused admitted the land to be Crown land; and theManh 80. language used by some of them at least in giving evidence is capable
Wood of bearing that construction. In any even it is abundantly clearRbktokJ.fagt that Kallovadiya forest is Crown land was in no way
contested in the Court below. The substantial defence there wasthat the accused had been the victims of a false charge, and thepetitions of appeal are equally innocent of any suggestion of theingenious plea which was put forward at the argument on theirbehalf. Even assuming that in prosecutions for forest offencesthe burden of proof on the point now in question does rest on thecomplainant, the cases cited by Mr. Bawa are no authorities forholding that the same degree of proof is to be exacted when theownership of the land on which a forest offence is alleged to havebeen committed is not in dispute as that which may be necessaryif the question whether it is Crown or private property forms amain issue. In the present case the Police Magistrate had beforehim the evidence, unchallenged in cross-examination, of a policevidane and a forest officer to the effect that. Kallovadiya forestwas Crown land. The forest officer further stated that he washimself, as such, in charge of the very timber now in question.Under the circumstances of this case this evidence was sufficientto satisfy any burden of proof that lay on the prosecution. To holdotherwise would be to reduce the penal provisions of the Forest.Ordinance to a nullity. Moreover as regards the second count inthe plaint, Mr. Bawa’s point as to the burden of proof is, we think,bad on another ground; That count i9 based on rule 2 of the rulesof 30th April, 1900, which are made section 44 of “ TheForest Ordinance, 1885. ” It prohibits the removal without apermit of forest produce or timber. Now “ The Forest Ordinance,1892 ” (No. 1 of 1892), provides (section 14 (1)) that in section 44 ofthe Ordinance of 1885' the term “ timber ” shall unless the contextotherwise requires, “ include timber cut in any land or property,whether the property of the Crown or any private individual.”It would seem, therefore, that in the present case no question as tothe ownership of the land could arise. Mr. Bawa argued, however,that the' Ordinance of 1892 had merely amended section 44 and badleft the rules made under it unaffected. There are, in our opiniontwo answers, each of them a conclusive answer, to this argument.Section 44 of the Ordinance of 1885 provides for the making of rules,and for nothing more. If the amendment of that section enactedby the Ordinance of 1892 iB not to apply to the rules made under it,the amending provisions of section 14 (1) of the Ordinance of 1892are entirely nugatory. By a well recognized rule of statutory
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interpretation we are bound to avoid that result if we can; andthis duty is a peculiarly incumbent one where, as here, a naturalconstruction, which will make section 14 (1) of the Ordinance of1882 effective, lies close at hand. The interpretation of section 14(1) which Mr. Bawa asks us to adopt is obnoxious to another, andequally fatal, objection. Even if it could be made operative, itwould involve the creation of one o| those inconsistencies betweenrules and the statute under which they are made which the Legis-lature has directed rule-making authorities .to avoid (“ The Inter-pretation Ordinance, 1901 ”—No. 21 of 1901, section 11 (1) (c)),and which it cannot itself be presumed to have intended. In view ofour conclusions on these issues there is no need for us to go furtherin regard to this part of the case. But if it had been necessaryto decide the point, we should have been disposed, to hold thatsection 72 of “ The Forest Ordinance, 1885, ” would apply here;that section, the effect of which has not so far as we are aware beenconsidered in any case that has hitherto come before the SupremeCourt, provides as follows: —
V When in any proceedings taken under this Ordinance, or inconsequence of anything done under this Ordinance, a questionarises as to whether any timber or forest produce is the property ofthe Crown, such timber or produce shall be presumed to be theproperty of the Crown until the contrary is proved.
Mr. Bawa contended that the prosecution in the present casewas a “ proceeding taken under ” the Criminal Procedure Code,and not “ The Forest Ordinance, 1885. " He argued further thatsection 72 applied only to the special classes of proceedings indi-cated in chapters VI. and VH. of the Ordinance.. We are notprepared to agree with either of these contentions. The word" under ” in the clause in question we take to mean “ by virtue of,and section 72 extends, in terms, to the whole Ordinance, andmust be held to apply also to offences created by rules (see thedefinition of “ forest offence ” in section 3). Where the fact ofCrown rights of property in forest produce or timber, or in the landfrom which suah produce or timber is taken, has still to be allegedin prosecutions under the Ordinance of 1885 (and, as we have seen,Ordinance No. 1 of 1892 has excluded that element from the facta'probanda in a large category of cases), it seems to us that the Legis-lature intended to draw, and has drawn, a distinction betweenmere trespassers and persons asserting substantial claims of title.Both are in the same position in this respect that, in virtue of section72, there is a presumption of fact, against them. But whereas thetrespasser neither receives nor deserves any protection, section 72
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amply secures the rights of the Berious claimant of title. Fromour experience of land cases on the civil side we feel no hesitationin saying that where any real contest as to title is involved, littledifficulty will be found in making out such a prima facie claim as,under section 72 of the Ordinance of 1886, will shift the onus pro-bandi and put the Crown to the strict proof of all the elementsindicated in section 8. It appears to us that this construction ofthe Ordinance at once safeguards private rights of property andsecures the almost equally desirable end of the prompt and certainpunishment of offenders of the class to which the present appellantsbelong.
In regard to Mr. Bawa’s last point, it is sufficient to say that thecarts in which the appellants were removing the timber in questionwere traced directly back by their tracks by the police vidane torecently cut stumps in the Crown forest. This evidence, taken inconjunction with the other proved facts in the case, justified a con-viction on the first count in the plaint.
The appeal is dismissed.
Wendt J. agreed.'
SINNATURAI VANNIAH v. AHAMADO LEVAL et al