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Present •• Sir Charles Peter Layard, Kt., Chief Justice.
JANSZ v. PERERA.
P. C., Colombo, 92,909.
Unlawfulgaming—Jurisdictionof PoliceCourt—VillageCom-mitteerules—Exclusivejurisdiction of VillageTribunal—Ordinance
Ho. 17 of 1889,t».4 and '22—Ordinance No.24 of 1889, ss.6, 28,
Theprovisionsof “ The Gaining Ordinance, 1889 "(No.17 of
1869)have no applicationinplaces which have been brought
withintheoperation ' of the“ .Village Communities’ Ordinance,
• 1889 ”(No. 24of1889), and in which theinhabitants have,nnder
the provisions of section 6 (12) of the said Ordinance, made rulesfor the prevention of “ gambling ”and “ cock-fighting. " In such
placesthe VillageTribunal or the VillageCommittee*has exclusive
FJ1HE facts sufficiently appear in the judgment. ,
Jayewardene, for the accused.
Van Laingenberg, A. S.-Q., for the Crown.
Cur. ad. vult.
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20th -July, 1905. Layard C.J.—
This matter comes before me in revision. The applicants wereoriginally charged before a Village Tribunal with the offence ofunlawful gaming, to wit, cock-fighting, under Village Committeerule 63, published in the Government Gazette of the 13th June,1889, but were subsequently brought up before the Polioe Magistrateof Colombo, and convicted of an offence punishable under section 4of Ordinance No. 17 of 1889.
By the provisions of that section, whosoever commits unlawfulgaming shall be punished with fine not exceeding one hundred rupeesor rigorous imprisonment for a term which may extend to six months,or with both. For the purpose of that Ordinance “ unlawfulgaming ” includes cock-fighting, whether for a stake or not, andwhether practised publicly or privately.
Prior to the passing of that Ordinance the Legislature bad dele-gated to Village Committees the power to make rules for the pre-vention of gambling and cock-fighting by the provisions of “ TheVillage Committees’ Ordinance, 1871.” The attention of Govern-ment was apparently drawn to the question as to whether rules couldbe made under that Ordinance inflicting penalties for offences whichthe statute law had already dealt-with. To protect the rules framedunder “ The Village Committees’ Ordinance, 1871,” provision wasmade in the Ordinance No. 17 of 1899 (see section 22) that no rule madeunder that Ordinance or any future Ordinance relating to VillageCommittees should be held to be ultra vires on the ground that itconflicts with the provisions of the Ordinance No. 17 of 1889. Atthe date of the passing of the Ordinance No. 17 of 1889 the Govern-ment had just sanctioned rules made under the provisions of “ TheVillage Committees’ Ordinance, 1871,” for certain Village Committeesin the Western Province. One of these rules is the rule 63 above-mentioned. This rule prohibited cock-fighting, and enacted amongother things that any person found cock-fighting shall .be liableto a fine not exceeding Us. 10. It appears, to me that by enactingsection 22 of the Ordinance No. 17 of 1889 the Legislature intendedto conserve the rules made by the Village Committees in respect ofunlawful gamin’g, including cock-fighting, and virtually enacted thatwhenever such rules had been made they were to prevail, and did notintend to say that persons resident in districts subject to rules framedby Village Committees would be liable to be punished for breach ofsuch rules if tried before Village Tribunals, and also to be punishedfor the same offence under the Ordinance No. 17 bf 1889 before aPolice Magistrate. I read section 22 as directing that wheneverother provision has been made, or in the future is made, by Village
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1905. Committees to prevent unlawful gaming (including cock-fighting),July 2o.Ordinance and its provisions are not to interfere with such
LayardC.J. provisions, even should they be in conflict with some of its provisions.
This is emphasized by the Legislature later in the same yearpassing “ The Village Committees’ Ordinance, 1889,” still providing. for the inhabitants of any subdivision brought within the operationof the Ordinance being allowed to make rules for the prevention ofgambling and cock-fighting, notwithstanding the existence of theOrdinance No. 17 of 1889, thus continuing the powers previouslygiven to the Village Committees,, if they so desired, to make rulesboth inconsistent with and repugnant to the provisions of that Ordi-nance ; and so anxious was the Legislature to leave all mattersconnected with any rule made by the Village Committees to be dealtwith by the Village Tribunals and Village Committees alone, thatwhilst by the proviso to section 28 it gave power to Village Tribunalsto refer any case, civil or criminal, to the Court of Requests or PoliceCourt having no jurisdiction over the subdivision, or to the Attorney-General or any Crown Counsel in any criminal case or to the Govern-ment Agent in any civil or criminal case to direct it to be tried by thePolice Court or Court of Requests, it did not give such power inrespect of breaches of rules made by the inhabitants of a subdivisionunder the authority of the Ordinance. Section 28, in giving juris-diction to Village Tribunals, divided the jurisdiction into threeclasses, (1) breaches of rules, (2) civil jurisdiction, (3) criminaljurisdiction, and the proviso necessarily only purported to deal wilhthe two latter classes, because Police Courts and Courts of Requestshave never had conferred on them jurisdiction to try breaches ofvillage rules.
This is further emphasized by the Legislature in section 49 givingVillage Committees, where Village Tribunals do not exist, exclusivejurisdiction not only in respect of breaches of such rules, but inmatters connected with them as well, and in declaring that they areto exercise the same exclusive jurisdiction as the Ordinance hadconferred on Village Tribunals in respect thereof, and making noprovision for the transfer of such cases from such Committees to anyother Court.*
It could not have been the intention of the Legislature to allow aperson found guilty of cock-fighting to be liable to punishment bothfor breach of a Gansabhawa rule and of the Gaming Ordinance. Onthe contrary, the Legislature desired to delegate, and has delegated,the power to the Village Committees to make rules for the preventionof cock-fighting, even if such rules be in direct conflict with the Gam-ing Ordinance. Where such rules have been made they must have
been intended by the Legislature to supersede such provisions of theGaming Ordinance as they were in direct conflict with, and tnat notonly breaches of the rules so made but all matters connected withany such rule were -to be within the exclusive jurisdiction of theVillage Tribunals or Village Committees is clear from section 49 ofthe Ordinance No. 24. of 1889. The Police Court of Colombo had,in my opinion, no jurisdiction to entertain this charge, and I quashthe conviction, sentence, and all proceedings in revision.
Layabs C. J.
JANSZ v. PERERA