SOEKT8Z S. P. J.—VaitHingam v. Sivaguru.
1948Present: Soertsz S.P.J.
VATTILINGAM, Appellant, and SIVAGURU (Village CultivationOfficsr), Respondent.
S. C. 597—M. C. Vavuniya, 20,939.
Irrigation Ordinance—Power to cut channel across paddy field—Payment of compen-sation—Pules framed under Ordinance—Ultra vires—Chapter 312, sections 7and 11—Pule 21.
'Die Government Agent purporting to act under rule 21 of tho rules framedunder section 11 of Chapter ‘112 of tho -Legislative .Enactments ordered achannel to be cut across the paddy field of the accused for the purpose ofirrigating a tract of paddy fields. The accused blocked the channel. He wascharged and convicted.
Held, that the rule did not empower the Government Agent to deprive aproprietor of his land without acquisition and compensation. Any rule pur-porting to do so would be ultra vires.
Appeal from judgment of the Magistrate, Vavuniya.
H. W. Jayawardene, for the accused, appellant.
A. Kannangara, Crown Counsel, for the Attorney General.
Cur. adv. vult.
March 2, 1948. Soertsz S.P.J.—
This is a disturbing case, and, if the view taken by the Magistrate iscorrect, it means that persons entrusted with the framing of by-laws forthe purposes of certain Legislative Enactments may, by a stroke oftheir pen, deprive villagers of their property without acquisition procee-dings and without payment of any compensation.
The facts are, briefly, these as stated in the Magistrate’s older “ thefields of the accused, of one Kulanthai Sinnakuddy and some cthcis, areirrigated by the water from the Puliyankulam tank, which is under thecontrol of the Assistant Government Agent, Vavuniya …. Thereis a channel from this tank extending up to the culveit between the13th and the 14th mileposts. From this culvert there is no channel tothe stretch of Gelds and water flows in its natural course dowm to them.”In consequence of there being no channel the field of Sinnakuddy lackedirrigation. The Irrigation Department gave its attention to this matterand finding that it would cost Rs. 4,000 to construct a channel, and notbeing prepared to spend that amount of money, sought the interventionof the Assistant Government Agent who, taking a very liberal view ofhis powers, ordered the Village Cultivation Officer to cut p channelacross the land of the accused. The officer carried out this order withgreat gusto. He cut a channel across the field of the accused inflictingon him the loss of one acre of his field. The accused blocked this channel.He was prosecuted evidently on the footing that a worm should not turn.
Noordeen Lebbe v. Shahid Hameed.
In the Court below, it was said that what was done was done on theauthority of Rule 21 framed under section 11 of Ordinance No. 45 of1917. Rule 21 runs as follows:—
“ Where it is necessary for the purpose of irrigating the fields belowto open a channel through the land of a proprietor who will not bebenefited thereby, such proprietor shall be bound to allow the con-struction of such channel without compensation. ”
It will be noticed that these rules are made by a prescribed majority ofproprietors and one can understand proprietors submitting themselvesto the use of their lands without compensation for the greatest good of thegreatest number provided they are given that power expressly by someLegislative Enactment. But section 7 of Ordinance No. 45 of 1917,which is the parent Ordinance under which Rule 21 is stated to havebeen framed, does not appear to me to give any power at all to deprive anon-majority proprietor of his land without acquisition and withoutcompensation. Be that as it may, at the time relevant for this caseRule 21 was not in operation. It is Ordinance No. 32 of 1946 that isnow in force and there is no rule similar to Rule 21 framed under thatnew Ordinance. At any rate, Crown Counsel has not been able to findany such rule nor am I aware of any such rule. But had there beena re-enacting of Rule 21, as I have already observed, the provision that aChannel may be cut across a non-consenting proprietor’s field withoutpayment of compensation would, clearly, be ultra vires when regard ishad to the purpose for which section 11 of the new Ordinance enacts thatrules may be made by a majority of the proprietors present at a meetingof the proprietors.
I allow the appeal, set aside the conviction and acquit the accused.
VAITILINGAM, Appellant, and SIVAGURU (Village Cultivation Officer), Respondent