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ILLANGAKOON v. AMARIS FERNANDO et. al.
NLR33V70
1931 Present: Maartensz A.J.
ILLANGAKOON v. AMARIS FERNANDO et al.
206-7-P. C. Colombo, 208,008.
Burial ground-Using without permission of Governor-Claim of title-The
Cemeteries, and Burials Ordinance, 1899, s. 8.
Where tie accused were charged with using a burial ground, in which burials had
been discontinued by proclamation,-
Held, that it was no defence that the accused had acquired title to the land by
prescription.
APPEAL
from a conviction by the Police Magistrate of Colombo.
Weerasooria, for accused, appellants.
M. F. S. Pulle, C.C., for complainant, respondent.
March 20, 1931. MAARTENSZ A.J.-
The appellants in this case were convicted under section 8 of the Cemeteries and
Burials Ordinance, 1899, for using a portion of the Buddhist burial ground
situated at Mayfield road, Kotahena, without the permission of the Governor. It
was proved that burials on the land, which had been exclusively set apart for
the burial of the dead, had been discontinued by a proclamation dated December
23, 1875, and that the accused were living on the land without the permission of
the Governor.
The appellants were fined Rs. 7.50 each and only have a right of appeal upon a
matter of law.
The point of law argued on appeal was that the accused were not liable to
conviction under section 8 of the Ordinance as they had acquired a prescriptive
title to the land. It was contended that section 8 only applied to lands which
had not become private property. I am unable to adopt this contention. Section 8
prohibits the sale or disposal or use for any purpose whatsoever of land which
has been consecrated or exclusively set apart for the burial of the dead and in
which burials have been discontinued under the provisions of Ordinance No. 12 of
1862 or of Ordinance No. 9 of 1899 without the permission of the Governor. The
object of the provision is no doubt to prevent land in which burials have been
discontinued from being used before a sufficient time has elapsed to render the
use of it safe from the point of view of health; and also to prevent a
desecration of the dead by a premature use of the land. The objects of the
provision would be defeated if it was held that the section did not apply to
land, title to which has been acquired by prescriptive possession.
Apart from these considerations section 8 creates a statutory offence and the
penalty for a breach of it cannot be avoided by a plea that the land belongs to
the offenders. Even if the land had originally "belonged to accused they would
be guilty of a breach of the section by using it for the purpose of habitation.
The appeals are dismissed.
Appeals dismissed.
