073-NLR-NLR-V-47-KATHIRAVELU-Appellant-and-THIAGARAJAH-Respondent.pdf
SOERTSZ S.P. J.—Kalhiravelu v. Thiagarajab.
209
1946Present: Soertsz S.P.X.
KATHIRAVELT7, Appellant, and TH1AGARAJAH,Respondent.
392—M. C. Jaffna, 8,724, with application in revision.
Village Communities Ordinance (Cap. 198), s. 19 (6)—Penalty for breach of—
Both fine and disqualification compulsory.
Section 19 (6) of the Village Communities Ordinance enacts that amember of a Village Committee who is found to be interested directlyor indirectly in a contract with the Village Committee “ shall be punish-able by a Police Court with a fine not exceeding one hundred rupees andwith disqualification for a period of four years from taking part in anyelection under the Ordinance
Held, that the word “ punishable ” in the enactment means “ shall bepunished ” and not “ can be punished ” or “ liable to be punished ”.The Magistrate has, except under special circumstances, no alternativebut to disqualify a person once he convicts and fines him for a breach ofthat provision of the law.
A
PPEAL, with application in revision, by a complainant against asentence passed by the Magistrate of Jaffna.
N. Nadarajah, K.C. (with him H. W. Thambiah), for the complainant rappellant.
H. V. Perera, K.C. (with him S. Nadesan and N, Nadarasa), for theaccused, respondent.
Cur. adv. wit.
February 12, 1946. Soertsz S.P.J.—
It would appear that the respondent to this application has been hoistwith his own petard. He is the Chairman of the Village Committee of
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SOERTSZ S.R.J.—Kathiraoelu v. Thiagarajah.
Manipay which., among other worthy enterprises of sooial welfare, conduct-ed a Maternity Home on the premises known as “ Sangarapillai HouseOn May 18, 1942, the owner of those premises served the Chairman,that is the respondent, with a written notice to vacate his premises onthe 30th of the following month. Those were the days, not yet departed,when houses were far to seek and these elders of the village confrontedwith the possibility of being deprived of their local habitation and evenof their name, met in solemn conclave and the respondent, as Chairman,rose to the full stature of bis public spiritedness and offered “ Page House ”of which he was a part owner, to the Maternity Home for its new abode“ pending permanent arrangements But, unfortunately there was afly in this beautiful ointment of generosity. The Maternity Home hadto pay a monthly rent of five rupees, later raised to ten rupees. In thosedays, the present petitioner was an ardent supporter and enthusiasticadmirer of the respondent but the respondent, to use the words of thelearned magistrate, “ had with the passage of time fallen foul of somepersons including Dr. Kathiravelu (i.e., the petitioner) who wished tohave a new President elected for 1945 ”. They failed to oust therespondent from the Chairmanship in the elections held in 1945, andinflamed with emotions similar to those of Virgil’s goddess—meneincepto desistere victam—sat down to plot and plan. They soon dis-covered that tbe respondent had brought himself liable under section 19(6) as amended by Ordinance No. 54 of 1942 of the Village CommunitiesOrdinance m that he was directly or indirectly interested in a contractwith the Village Committee of Manipay. This prosecution was thenlaunched. The Magistrate found that the respondent was guilty of aviolation of the law and convicted him and fined him but refused todisqualify him. The petitioner now contends before me that theMagistrate had no alternative but to disqualify the respondent once hefound him guilty of a breach of that provision of the law. The question,then, is one of interpretation of the relevant section. It enacts that aperson in the position of the respondent found to be interested directlyor indirectly in a contract with the Village Committee “ shall be punish-able by a Police Court with a fine not exceeding one hundred rupees andwith disqualification for a period of four years ”.
The Magistrate has interpreted this as follows—
“ In my opinion, the word ‘ punishable ’ must be read as meaning' can be punished ’ or ‘ liable to be punished with ’ and therefore aperson found guilty can be punished (1) with a fine not exceedingRs. 100 and (2) disqualification for a period of 4 years, or (3) with bothin any combination.”
I assume that the Magistrate intended to use the word “ or ” insteadof the word “ and ” before the word “ disqualification ” and to say (3)“ both, in any proportion ” when he said “ both in any combinationExamining the Magistrate’s interpretation as amended by me, I amunable to agree with that interpretation. He has been led to it mainlyby the fact that in the preceding section of the Ordinance it is enactedthat “ shall in addition to the said fine …. be disqualified byorder of Court for a period of four years It must be conceded that
SOERTSZ S.P.J.—Kaihiravelu v. Thinffarajah.
211
these words of section 18 are clearer and more forceful than those employedin section 19 but I cannot accede to the submission that it must bepresumed that a change of language is an indication of a change ofintention on the part of the Legislature. As Blackburn J. observed inthe case of Hadley v. Perks1 the Legislature “ to improve the graces ofstyle and to avoid using the same words over and over again ” employsdifferent words without any intention to change the meaning. In myopinion, this is one such instance. In regard to the observation of theMagistrate that “ punishable ” means “ can be punished ” or “ liable to bepunished " and not ** shall be punished ” it is true that in the Penal Code,in nearly every instance, the words used are “ shall be punished ” but itseems to me that the word “ punishable ” has been substituted here be-cause the purpose of the Legislature was first of all to confer jurisdictionon Police Courts to punish with disqualification, jurisdiction that hadnot antecedently existed and secondly to impose the penalty and for thistwofold purpose the word “ punishable ” was more appropriate. Ifthe Legislature had enacted “ shall be punished by a Police Court ”the consequence would have been to confer exclusive jurisdiction on thePolice Court and presumably that was not the intention of the Legislature.But I do not think it necessary to go into this matter with elaborationfor by saying punishable with fine …. and with disqualificationfor four years, the Legislature made it imperative that there should bedisqualification. The interpretation of the Magistrate would fit a casein which it is enacted ** shall be punishable by a Police Court with a fineor with disqualification or with both ”.
In the view the Magistrate took of the offence, once he found therespondent guilty and fined him he was bound by the law to disqualifythe respondent for 4 years. But in my view in the special circumstancesof this case Chapter XXVI of the Criminal Procedure Code arises forconsideration. The respondent has been a popular and efficient Chairman.His primary motive in letting his premises to the Village Committeefor their Maternity Home was to help the people of the village, but hisaltruism was not altogether satisfactory. He could not resist thelure of the rent offered and so he came to be interested in a contractof tenancy with the Village Committee. For that reason this is not acase for discharging him with a warning. I would, therefore, undersection 325 (2) impose a nominal punishment and direct the respondentto pay five rupees by way of a fine. Under section 325 (3), I direct therespondent to pay as Crown costs Bs. 250. In this way, all the rentrecovered by the respondent will return to the Public Revenue. Undersection 325 (2) I direct the respondent to enter into a recognizancebinding himself to terminate the tenancy of “ Page House ” within threemonths, that is to say on or before May 31, 1946.
If the respondent fails to comply with these requirements on or beforethe 31st May the Magistrate will call the case on the first of June andamend the sentence imposed by him by adding to the sentence, dis-qualification of the respondent for four years.
Sentence varied.
1 {1866) L. R..1 Q. B. 444 at 447.