ORIENTAL FINANCIAL SERVICES CORPORATION LTD VS. RANGE FOREST OFFICER AND ANOTHER

ORIENTAL FINANCIAL SERVICES CORPORATION LTD VS.
RANGE FOREST OFFICER AND ANOTHER

COURT OF APPEAL
SISlRA DE ABREW,
GOONERATNE, J.
CA (PHC) APN 26/201 1
HC AMPARA 343/2009
MC AMPARA 317773
MARCH 15,2011
APRIL 28, 2011

Forest Ordinance - 13 of 1982 - Section 40 - Registered owner - absolute owner - Registered owner convicted - Vehicle confiscated - Should the vehicle be released to the absolute owner? - Who is the owner of the vehicle?

The registered owner of a vehicle was convicted on his own plea for transporting timber without a permit. At the inquiry-whether the vehicle should be confiscated or not, the absolute owner (finance company) from whom the registered owner obtained financial assistance to purchase the vehicle gave evidence and claimed the vehicle. After inquiry the Magistrate made order confiscating the vehicle. The revision application filed by the Finance Company in the High Court was dismissed. The petitioner sought to revise the said judgment.

Held:

(1) The owner envisaged in the law cannot be the 'absolute owner' (Finance Company).

(2) The absolute owner has no control over the use of the vehicle except to retake the possession of the vehicle for non payment of installments. No injustice would be caused to him as he could recover the amount he spent from the registered owner by way of action in the District Court on the basis of a violation of the agreement.

APPLICATION in revision from an order of the High Court, Ampara.

Cases referred to :-

(1) Manawadu vs. A.G. 1987 2 Sri LR 30

(2) Faris vs. OIC Galenbindunuwewa 1992 1 Sri LR 167

(3) Nizar vs. IP Wattegama 1978 - 79 2 Sri LR 303.

(4) Umma Habeena vs. OIC Dehiattakandiya 1999 3 Sri LR 89

Asthika Devendra for Petitioner.

Respondents absent and unrepresented.

Cur.adv.vult

April 28th 2011

SISIRA DE ABREW, J.

    In this case the registered owner of vehicle No. EPLE 3471 was convicted on his own plea for transporting timber without a permit. Thereafter an inquiry was held whether the vehicle should be confiscated or not. At the inquiry the absolute owner from whom the registered owner obtained financial assistance to purchase the vehicle, gave evidence and claimed the vehicle but the registered owner did not give evidence. After the inquiry the learned Magistrate made order confiscating the vehicle. Being aggrieved by the said order the petitioner moved the High Court in revision but the learned High Court Judge, by his order dated 2.1 1.2010, dismissed the petition of the petitioner. Being aggrieved by the said order of the learned High Court Judge (HCJ) the petitioner has filed the present petition to revise it.

    The position taken up by the petitioner is that he is unaware of the commission of the offence and that he has no knowledge of the commission of the offence. He therefore contends that both orders of the learned Magistrate and the learned High Court Judge are wrong and the vehicle should be released to him. Learned Counsel for the petitioner relied on Manawadu Vs Attorney General.(1) In considering the contention of

learned counsel for the petitioner, it is necessary to consider Section 40 of the Forest Ordinance as amended by Act No. 13 I of 1982 is as follows:

"Upon the conviction of any person for a Forest Offence

(a) all timber or forest produce which is not the property of the State in respect of which such offence has been committed and

(b) all tools, boats, carts, cattle and motor vehicles used in committing such offence (whether such tools, boats, carts, cattle and motor vehicles are owned by such person or not)

shall by reason of such conviction be forfeited to the State. "

    I have cited the above section since that was the section that was considered in the judgment of Manawadu's case (supra). For the purpose of completeness I would like to state that this section was repealed by Act No. 65 of

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