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TOUSSAINT v. MAHA NAYAKA UNNANSB.
M. M. 0., Kandy, 8,040.
Ordinance No. 15 of 1S62, s. 1, sub.-s. 1—Offence of keeping premises in a filthyand unwholesome state—Proper person to he charged—Evidence.
To justify a prosectuion under “ The Nuisances Ordinance, 1862,”section 1, sub-section 1, there must be evidence that the accused is theproprietor or the person having control of the premises in question.
N tl.'is case the “ Maha Nayaka TJnnanse of the MalwattaPansala, Victoria Drive, Kandy,” was charged before the
Municipal Magistrate’s Court at Kandy with having on the 8thFebruary, 1900, kept the Malwatta Pansala premises in a filthy andunwholesome state, under sub-section (1) of section 1 of OrdinanceNo. 15 of 1862, found guilty, and sentenced to pay a fine ofRs. 10. The accused applied to the Magistrate for leave to appealagainst the finding, but his application was refused. He nowpetitioned the Supreme Court to deal with the case in revision.
Van Langenberg, for petitioner.—There is no proof that thepetitioner was either the owner or occupier of the premises inquestion. They consist of several pansalas occupied by separateincumbents, and it has not been shown that that part of thepremises which was filthy and unwholesome was within thesupervision or control of the petitioner. He was not on thepremises when the complainant entered, having gone to the SevenKorales. In Leembruggen v. Rajapakse (liam. 1875, 252) it washeld that where a tenant is in occupation, the tenant and not theowner is liable; and in Thomas v. Perera (1 S. 0. C. 45) Piieab,C.J., ruled that to support such a charge it was essential to prove
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that the person accused should not only be either the owner oroccupier, but should also have such a control over- it as is involvedin the allegation that he kept or suffered the same to be in thestate complained of.
4th May, 1900. Moncrieff, J., quashed the conviction andsentence in these terms: —
I think that the charge is not made out against the accusedunder the terms of Ordinance No. 15 of 1862, section 1. It is notmade out that he is the proprietor, or the person having controlof the premises. I therefore think that the conviction is wrong,and that the order complained of must be quashed.
TOUSSAINT v. MAHA NAYAKA UNNANSE