PITLLE J.—Baby A.ppuhamy v. Sivaguru
1953)Present: Pulle J-
Y. D. tiAEY APPUHAMY, Appellant, and R. SIVAGURU(Additional Colonization Officer), Respondent
S. C. 1,192—M. C. A nuradhupura, 10,917
Irrigation Ordinance, No. 32 of 1946-t—Section 92 (a)—Prosecution thereunder—Nature of evidence required.
In a prosecution under section. 92 (a) cf the Irrigation Ordinance for wilfullyand mischievously blocking up an irrigai ion channel there must be proof thatihe channel is part of an irrigation work.
AT. from a judgment of the Magistrate’s Court, Anuradhapura.N. E. Weerasooria, Q.C., with S. C. E. Rodrigo, for the accused
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H. G. Jayetileke, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
August 18, 1953. Pulle J.—
The appellant in this case was convicted under section 92 (a) of theIrrigation Ordinance, Ko. 32 of 1946, of wilfully and mischievouslyblocking up or demolishing an irrigation channel. Various submissionshave been made in the petition of appeal against the conviction but theone which merits attention is the allegation that there was no evidencethat the channel which, admittedly, was blocked up was comprised in an<c irrigation work ” within the meaning of that expression in the Ordinance.
According to *the sketch put in evidence the water which feeds thechannel in question comes from Alankulama tank and the channel musthave served at one time only a single proprietor named Kanagasabai whoowned a large tract of fields. That tract has been divided up. Thelarger part of it is owned by the brother of the appellant and two othersand comparatively small extent of 4 acres towards the end of thechannel is owned by one Somapala who complains of the damage causedto him by the blocking.
It is said in the evidence called for the prosecution that this channelis part of an irrigation work called the Nachehaduwa Scheme. If thatbe so, it would*have been an easy matter to have produced a plan ortracing showing the relevant irrigation works and the proprietors ofthe lands served by those works. I can well understand that thisparticular channel is not shown in the plans but if it was constructed bythe Irrigation Department or at the expense of the proprietors inpursuance of their statutory powers, reliable evidence ought to have been
PTTLLE J.—Baby A.ppuhamy v. Sivaguru
easily forthcoming. If, as it appears to be the case, the intervention ofthe Assistant Government Agent had been sought successfully to compelthe appellant to desist from blocking up the channel sufficient materialat the Kachcheri ought to have been available to fix the character of thechannel as an irrigation work in respect of which statutory powers couldhave been exercised.
The only irrigation receipt produced is one dated after tie offence.Reliable evidence of previous receipts unambiguously pointing topayments by Somapala for water obtained from the channel in questionwould have been helpful. He may not have retained the earlier1 receipts,as he alleges, but records of those payments ought to have been available.The difficulties created by the inconclusive character of the evidence arenot diminished by the assertion that Alankulama tank is a private tankfed by the Nachchaduwa tank and that there should be a list at theKachcheri of shareholders entitled to take water from the tank. WhetherSomapala was entitled as a shareholder to take water has not beenestablished by the production of any list.
This is a case in which the best evidence as to whether the channel wascomprised in an irrigation work has not been adduced. I do not, there-fore, think it safe to allow the conviction tS stand, o 'I haVe anxiouslyconsidered whether there should be a re-trial. If at all, only one proprietorhas suffered damages recoverable in a Court by the act of the appellant.The civil remedy is available. The offence was in 1951 and it was theduty of the prosecution to prove that the channel was part of airirrigation work.
The conviction and sentence are set aside and the appellant is acquitted.