Basnayake Nilame V. The Attorney General

Present  : Shaw J. and De Sampayo A.J.   1915.

BASNAYAKE NILAME v. THE ATTORNEY-GENERAL.

245-D. C. Kandy, 22,466.

Kandyan Convention of 1815, Article 5-Subsequent legislation relating to processions and music-Actions in Municipal Courts to enforce rights under the Contention.

Article 5 of the Kandyan Convention does not invalidate the provisions of subsequent legislative enactments relating to processions and music.

THE facts appear from the judgment.

Anton Bertram, K.C., Attorney-General, and van Langenberg, K.C., Solicitor-General (with V. M. Fernando, C.C.), for defendant, appellant.

Bawa, K.C. (with him E. W. Perera and D. R. Wijewardene), for plaintiff, respondent.

Cur. adv. vult.

February 2, 1915. SHAW J.-

The plaintiff brought this action in his capacity as Basnayake Nilame of the Wallahagoda dewale against the Attorney-General as representing the Crown, claiming a declaration that he as such Basnayake Nilame is entitled to the right and privilege of holding and conducting a perahera procession, by which the Basnayake Nilame of the Wallahagoda temple, with the retainers and tenants of the said temple, has the right and privilege of marching to and from and through all the streets of the town of Gampola, including that part of Ambagamuwa streets with which this action is concerned, with elephants, to the accompaniment of tom-toms, drums, and other musical instruments. He further claimed a declaration that he was entitled to damages Rs. 25, and further damages of Rs. 25 per year until the said right and privilege should be granted. The plaint alleged that the right and privilege claimed is a very ancient one, enjoyed in connection with the temple prior to the cession of the Kingdom of Kandy to the British Government, and that the rights and privileges of the temple were acknowledged, recognised, and confirmed to the temple when all the inhabitants of the Kingdom of Kandy were by the Grown, on the cession of the Kingdom of Kandy under the Kandyan Convention of 1815, confirmed in and allowed to enjoy the rights and privileges they had enjoyed under the Kandyan Government; that the rights and privileges claimed were, after the Kandyan Provinces, same under the British Government, enjoyed and exercised by the temple through its various Basnayake, Nilames,

and are necessary for its proper dignity and prestige and for the proper conducting and carrying out of the ceremonies to be performed by the temple, and further claimed that the temple has acquired a right by prescription to the performance and enjoyment of the said rights and privileges.

It then, proceeded to allege that the Government Agent for the Central Province, on August 27, 1912, wrongfully and in breach of the said Kandyan Convention and agreement and of the rights and privileges enjoyed by the temple, refused to allow the plaintiff permission to proceed through that portion of Ambagamuwa street within a hundred yards of either side of the Muhammadan mosque in the town of Gampola, to the accompaniment of tom-toms, drums, and other musical instruments, and still refuses to do so though thereto often requested, and went on to claim the declaration, damages, and costs.

The defendant by his answer submitted-

(1) That the plaint discloses no cause of action against the defendant,

(2) That, even if the Government Agent of the Central Province was guilty of any wrongful act, which the defendant denies, the defendant is not liable to be sued in respect thereof.

(3) That the right claimed is not one which is known to or recognized by law.

(4) That the plaintiff is not vested with the said right, and cannot maintain any action in respect thereof.

(5) That, assuming such a right to exist, the present action is not maintainable against the defendant.

He further denied various allegations in the plaint, and submitted that all assemblies and processions in the public roads, str

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