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HETUHAMY v. MUDELIHAMY et al.
P. C., Kigalla, No. 15,754.
The Village Communities' Ordinance, 1889, 8. 6—Rules by inhabitants ofdivision within the operation of the Ordinance—Possessing or draw*ing toddy—IUict sale of arrack.*
It is ultra vires of the inhabitants of a local district broughtwithin the operation of the Village Communities’ Ordinance to .make a rule to the effect that “ any person possessing or drawingfermented toddy “ without a license, or illicitly selling arraok,shall be guilty of an offence.”
r | ^HE facts of the case appear in the judgment of Bonseb, C.J.
Bawa, for appellant.
8th September, 1896. Bonseb, C.J.—
In this case the Police Magistrate has declined to exercisejurisdiction on the ground that the case is one within the exclusivejurisdiction of a Gansabhawa court. The complaint was in thefollowing terms:—
“ That the second defendant did on the 16th day of . July, 1896,
“ unlawfully, for some other purpose than the purpose mentioned“ in the section 39 of Ordinance No. 10 of 1844, at Kabbunkaduwa,
“ draw 15 gills of fermented toddy from a kitul tree stand?
“ ing on the land called Hitinawatta, which belongs to the“■first defendant; and that the first defendant did cause the same“to be drawn without first obtaining a license for that purpose“ from the Government Agent of the Province, or from the licensed“ retail dealer of the district, within which such palm was situated,“contrary to the provisions of the Ordinance No. 10 of 1844,“ and in breach of sections 40 and 46 of such Ordinance.”
The first observation I would make is, that this appears to chargethe accused with an offence which is physically impossible.Toddy cannot be drawn front a tree in a state of fermen-tation. The juice must stand for some time, and then itferments. The Magistrate issued sommons upon this complaint.When the defendant appeared before him he refused to proceedwith the case, because it was stated that a rule had been madeunder the Village Communities’ Ordinance, of which the conductof the defendants was a breach. The rule is No. 105, publishedin the Government Gazette of 14th December, 1888. It was madeunder section 6 of the now repealed Ordinance No. 26 of 1871, therules under which were expressly kept alive by Ordinance No. 24of 1889, which repealed that Ordinance.
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Thp rule is in the following terms: “ Any person possessing or
drawing fermented toddy without a license, or illicitly selling“ arrack, shall be guilty of an offence.”
I am of opinion that the rule was ultra vires. Section 6 of Ordi-nance No. 24 of 1889 enumerates a.large number of matters, onwhich it authorizes the inhabitants of a locality to make rules,which when made and approved by the Governor in ExecutiveCouncil are to take effeot. But there is nothing which gives colourto or supports rule 105. The only clause which deals with toddydrawing is clause 9, which empowers the making of rules “for“ the prevention of accidents connected with toddy drawing,“ and the periodical inspection of the ropes and other appliances“ used.” By no stretch of imagination can this rule be broughtwithin that clause. Again, section 28 of the Village Communities'Ordinance of 1889 expressly provides that no case, civil or criminal,which is instituted for the protection of the revenue, is to be broughtbefore a village tribunal.
The present case appears to me to be peculiarly one brought forthe protection of the revenue, and therefore expressly forbiddento be brought in a Gansabhawa court. Then there is anotherobjection to this order. The offence charged is one which is alreadyan offence under Ordinance No. 10 of 1844, and in my opinion itis not competent for the inhabitants of any local district underthe provisions of the Village Communities’ Ordinance to take thatwhich is already an offence, and‘convert it into an offence withinthe sole and exclusive jurisdiction of their own tribunal.
For these reasons I am of opinion that the Police Magistratewas wrong in.referring the case to the village tribunal.
I agree. This case first came before me sitting alone. ThoughI then entertained very much the same opinion as the ChiefJustice has just expressed, I thought it better that it shouldcome up before two Judges of this Court. I would observe in thisconnection that it is no longer an offence to draw toddy withouta license. The offence consists in drawing it, and omitting totake necessary precaution to prevent the toddy intended to bedrawn from fermenting—section 47 of Ordinance No. 10 of 1844.
September 8.Bokseb, C.J.
HETUHAMY v. MUDELIHAMY et al