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ELLAWALA v. FERNANDO.
D. C., Ratnapura, 23,238.
Mining—Ordinance No. 10 of 1894, s. 6—Opening mine on the strength of *license granted to co-owner—Illegality of act.
A license to open a mine granted under the Ordinance No:-’10 of 1894to a person does not justify the opening and working of it by anyother person who owns a share in it.
It would be open to the holder of a license to appoint his co-ownerto be his manager or superintendent of the work, in which case thelicensee would be responsible for the acts of his manager or superin-tendent, but the object of the Ordinance would be defeated if thelicense enabled persons not under the control of the licensee toconduct mining operations on the land.
HE accused, being charged with having opened, worked, andused a mine on a certain land without a license, in breach of
sectioii 6 of Ordinance No. 10 of 1894, pleaded that, though hebad no license, his partner Kira had one. The Police Magistrate,Mr. T. R. E. Loftus, disbelieved the evidence led on behalf of theaccused and convicted him.
Bawa, for appellant.
Ramanathan, S.-G., for respondent.
The arguments of ’counsel, heard on 4th August, 1902, appearin the following judgment: —
6th August, 1902. Wendt, J.—
The appellant has been convicted of having opened, worked,,and used a mine without having obtained a license therefor. Theoffence is said to be punishable under section 6 of OrdinanceNo. 10 of 1894. That enactment only substituted a new section
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for section 11 of Ordinance No. 5 of 1890. The charge should 1902.therefore have been laid under the latter Ordinance, and I order Anymi 4-It to be amended by substituting the words ** section 11 of Wendt, J.Ordinance No. 5 of 1890 ” for the words “ section 6 of OrdinanceNo. 10 of 1894. ”
It would seem that one Bahardeen, with two others jointly, tooka lease of an undivided half of the parcel of land upon which theoffence is alleged to have been committed. Bahardeen then tookout a licence under the Ordinance and opened and worked sundrymines for gems. One Kira, claiming a right' in respect of theother undivided half of the land, also took out a license and com-menced operations on the land. The appellant claimed to have. purchased an undivided quarter out of the half leased to Bahardeenfrom some person who claimed adversely to the lessor, but the.appellant’s right was not admitted by Bahardeen. The appellantone day went down to the land with a number of men, andproceeded to open and work a mine in spite of the protests ofBahardeen and Kira.
His defence to the present prosecution was that he did this asKira’s partner. This was denied by Kira, who was called as witnessfor the defence, and the defence therefore failed. It was, however,argued on behalf of the accused that once a license had beengranted to any person in respect of any land, it authorized anyother person owning a share of that land to open mines on itwithout being under the necessity of taking out another license,and this although the alleged co-ownership was denied by thelicensee.
I am clearly of opinion that this contention cannot be supported.
Section 5 of the Ordinance requires the applicant for the licenseto state the name and description of the land, the nature of theright by which he claims to open a mine on it, and the names andresidences of himself and of the persons under whose managementor superintendence the mine is to be worked. If the applicantceases to have an interest in the mine, or if a change takes placeIn the management or superintendence of it, the applicant is tcmake a further declaration to that effect. Section 4 provides thatthe Government Agent may issue to any person establishing a•prima facie right to enter upon and open, work, or use a mine onany land, a license under the Ordinance. A. form of license isprescribed, which shows that the right granted by the license islimited to the licensee. No doubt the term !' person ” in theOrdinance includes any association or body of persons, but inthat case the Ordinance regards them as all working together.Accordingly a joint stock company may apply by its directors or
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1902.manager,and a bodyofco-owners mayapply by one of their
August o.number duly authorizedbythem, but I donot see how, under the
Wendt, J.authorityconferred bythelicense on theowner, say, of half of
the land,the owner oftheother half couldinsist by mere force of
his co-ownership on opening and working mines independentlyof the licensee. The object of the Ordinance is to have somedefinite person responsible for the operations on the land. Hemay be required to fulfil certain conditions in his working underthe license and to give security for such fulfilment, and the licenseis liable to be revoked upon breach of any such condition. Theobject of the Ordinance would be defeated if the license enabledpersons not under the control of the licensee to conduct miningoperations on the land. It would, of course, be open for theholder of a license to appoint his co-owner to be his manager orsuperintendent of the work, but in that case the licensee wouldbe responsible for the' acts of his manager or superintendent. Ifthe application be that of a partnership or company or body ofco-owners, that would undoubtedly need to be stated in the appli-cation.
In the present, case the applicant might or might not have a goodtitle to a fourth of the land, but that will not entitle him to openmines on the land without a license, any more than he could havedone so if he had claimed to be the exclusive owner of the wholeland.
The appeal is dismissed.
ELLAWALA v. FERNANDO