048-NLR-NLR-V-17-FOWKES-v.-DEENE.pdf
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1913'
Present : Pereira J.
FOWKES v, DEENE829—P. C. Nuwara Eliya, 7,590-
Game Protection Ordinance, 1909—Exclusive, right of fishing in a streamgranted to a club—Rule by club delegating to a public officer theright vested in the club of granting licenses.
The word "sub-section" in th,e expression "last preceding-sub-section " in section 17 of " The Game Protection Ordinance, 1909,"cannot be regarded as a mistake for the word " section.’*
It is not competent to a club, to which the exclusive right oftaking from a stream the fish mentioned in Schedule III. of" theOrdinance has been conceded, to make a rule delegating to anyparticular public officer the – right, vested in the club of grantinglicences enabling the licensee to fish for fish to which the concessionapplies.
rp HE facts sure set out in the judgment.
Ba-wa, K.G., for the accused, appellant.
Hayley, for the complainant, respondent.
Cur. adv. vult.
December 1, 1913. Pereira J.—
This is a prosecution under “ The Game Protection Orddnance,1909,. ” According to the formal conviction entered up, the accusedhas been, convicted of fishing for trout in Blackpool river, ‘' a streamscheduled as a preserved water of the Ceylon Fishing Club undersections 16 (1), (2), (3), 17, and 18 of Ordinance No. 1 of 1909, without.having obtained a license from the Assistant Government Agent ofNuwara Eliya, and thereby committing an offence punishable undersection 19 (2) of the same Ordinance. ” I suppose what is meant bythe words " a stream scheduled as a preserved water of the CeylonFishing Club M is a stream in which the right of taking the fishmentioned in Schedule III. of the Ordinance has been conceded tothe Ceylon Fishing Club by the Governor in Executive Council bywriting under the hand of the Colonial Secretary. If so, I have toobserve that there is no evidence that Blackpool river is such astream. A booklet purporting to contain the “ Buies, of the CeylonFishing Club ” has been 6titched up with the record, which containsalist of streams and waters “ in which the exclusive right to taketrout is conceded to the club but, in the first place, this bookletis not evidence, and, in the next place, there is no mention, in the
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list, of Blackpool river, except as follows: “ No. 7-^-Streams on-ElkPlains between Blackpool and Ambewela. ” If it was intended toexolude Blackpool river from the list, it could not be done moreeffectually than by the words used. When we speak of thingslying between two other things, we naturally exclude from thecategory the things last mentioned. Assuming,, however, that it.has been proved that Blackpool river is such a stream as is men-tioned above, the evidence manifestly. discloses no offence undersection 19 (2) of the Ordinance. The respondent’s counsel, however,has submitted that section 19 (2) is a mistake for. section 19 (1).How is the offence described in the conviction punishable undersection 19 (1)? Section 17 of the Ordinance: provides [omittingimmaterial words] that any person who fishes forf fish, for thetaking of which a license is required by rules under the “ lastpreceding sub-section, ” without such license, shall be guilty ofan offence, and shall be liable on conviction to the punishmentprescribed by section 19 (1). The respondent’s counsel submittedthat the word “ sub-section ” in this section is a. mistake, in the-Ordinance for “ section. ” I am afraid I shall not be justified inproceeding on such an assumption. Section 17 as it stands con-stitutes a rational provision. That being so, it will, 1 think, becontrary to all canons of construction to assume that the use ofany particular word in it is a mistake, and to substitute anotherword for it. Such a mistake, if it exists, can only be correctedby the Legislature. What is referred to in section 17 as the “ lastpreceding sub-section ” is, of course, sub-section (3) of section 16,That sub-section provides for the issue of licenses by the club, towhich . a concession has been granted as stated above, enabling thelicensee to fish for fish to which the concession applies. The onlyrule' that was pointed out to me as a rule made in terms of thisprovision is mile No. 3. That rule provides for the issue of licenses(to fish for trout) not by the club, but by the Assistant GovernmentAgent. It purports to delegate to the Assistant Government -Agentthe power vested in the club by the Ordinance. That, of course, theclub could not do. It was argued by the respondent’s counsel thatthe meaning of the rule was that the Assistant Government Agentwas to act on behalf of the club. The words used do not at alladmit of such a construction. They imply nothing other than anattempt at delegation of the power mentioned above. Had’ therule been that a license approved by the club in general or specialmeeting or by a committee may be issued in the name of the -clubunder-the hands of the Government Agent the requirements of thelaw would have been complied with, "but in the present state ofthings, there being no rule providing for the issue of licenses -by theclub itself, section 17 has no application, and the conviction cannotstand. I set it aside and acquit the accused.
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Pmtmat .T
Fowlkes v.Deette
Set aside.