Selvanayakam Kangany V. Henderson

1946  Present: Jayetileke J

SELVANAYAKAM KANGANY, Appellant, and HENDERSON,

A. G. A., KEGALLA, Respondent.

941-M. C. Kegalla,  12,301.

Criminal trespass-Meaning of ?occupation? in section 427 of Penal Code- Occupation may be by oneself or through agent-Difference between occupation by tenant and occupation by servant after expiry of notice to quit-Intention to annoy-Penal Code, ss. 427, 438.

The Superintendent of a tea and rubber estate gave due notice to the accused, who was a laborer occupying two line-rooms of the estate, that his services would no longer be required and that lie should vacate the rooms. The accused refused to vacate the rooms and was, thereupon, charged under section 433 of the Penal Carlo with having committed criminal trespass by unlawfully remaining in the two rooms ?with intent to annoy the Superintendent.

It was established that the Superintendent was in paramount occupation not only of the estate but also of the line rooms and that lie had the right to allot any rooms in the lines to the laborers and to change the rooms occupied by the laborers as he wished.

The accused?s defence was that he was born and bred on the estate, that the estate was his home, and that he intended to remain the estate till he was able to build a house to move into. There was, however, no evidence that the accused paid nay rent for I he rooms which he occupied or that he was permitted to occupy them as a reward for his services. The accused?s occupation of the rooms was, is fact, ancillary to the performance of the duties which he was engaged to perform.

Held (i.) that the Superintendent was in occupation of the two rooms within the meaning of section 427 of  the Penal Code. The occupation that is entitled to protection under the section may be by oneself or through an agent;

(ii.) that the accused?s occupation of the rooms was not as tenant hut as servant;

(iii.) that the accused, by remaining in the rooms after his services were terminated, was guilty of criminal trespass. If annoyance to the Superintendent was the natural consequence of the accused?s act and if the accused know that it was the natural consequence, titan there was an intention to annoy.

APPEAL against a conviction from the Magistrate?s Court, Kegalla.

H. V. Perera, K.C. (with him S. Nadesan and C. S. Barr Kumarakulasinghe), for the accused, appellant.-The conviction is bad on the following grounds :-(1) The accused-appellant is a tenant. (2) The line-rooms which the accused-appellant refused to leave were in the accused- appellant?s occupation and not in the occupation of Rajapakse, the Superintendent of the estate. (3) It cannot be said that accused- appellant intended to annoy Rajapakse by remaining in the lines. (4) There is no intention to annoy anyone in any way.

As regards (1). In the Privy Council case of The Calcutta Corporation v. The Province of Bengal 1[1(1944) A. I. R. (P.C.) 42 at 45.] Lord Porter in his judgment makes it clear that where a servant occupies a particular house of the master for the convenience of both of them the possession by the servant is that of

tenant unless the servant is required to occupy it for the better per. performance of his duties though his residence is not necessary for that purpose or if his residence there is necessary for the performance of lib duties though not specifically required.

On this aspect of the case there is the unchallenged testimony of the accused that ho was born in these particular line rooms, lived there all his life and that his father before him lived there. The accused was a labourer in the estate employed by the present owner on the same terms as under the previous owner. There is no evidence as to what those terms were. The terms of service may and do actually vary in different estates.

The natural inference on these facts, on the authority of the Privy Council. case cited (supra), i

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