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Present: Akbar J.
MUDALIYAR OP GALLE v. ADDERAMAN.
86—P. C. dalle, 34,541.
Sea sand-, removal of—Prohibition by Government Agent—Belt of sea-shore—Ordinance No. 12 of 1911, ss. 3 and 5.
A Government Agent has no right to prohibit the removal ofsand from large tracts of the seashore.
The power vested in him under section 5 of Ordinance No. 12 of1911 can only be exercised to prohibit the removal of sand froma particular spot or place on the seashore within the meaning ofthe section.
PPEAL by the Attorney-General from an acquittal. Theaccused was charged with illicitly removing sea sand from
certain belts of the seashore, an area prohibited under section 5of Ordinance No. 12 of 1911. The prohibition was madeby the Government Agent of the Southern Province and publishedin the Government Gazette.
Samarawickreme, C.C., for complainant, appellant.
Bajapakse (with D. E. Wijewardene), for accused, respondent.
March 12, 1929'. Axbab J.—
This is an appeal by the Attorney-General from the acquittal ofthe accused, who was charged with illicitly removing sea sand fromthe shore behind the devata bazaar within a prohibited area under'section 5 of Ordinance No. 12 of-1911.
The Government Agent of Galle, by a notice of prohibition datedJuly 4, 1927, and published in the Government Gazette of July 8,1927, purporting to act under section 5 of the Ordinance, prohibitedthe removal of sea sand, &c., from the seashore within four belts.The first one is a belt of nearly 12 miles between Bentota andBalapitiya, the second a belt of 18£ miles between Balapitiya andGintota, the third a belt of 6£ miles between Gintota and Waggal-modera, and the fourth a belt of 11 miles between Waggalmodera andGoiyapana. There is a note to this prohibition that sand may beremoved, on permits issued by the Government Agent, from fourdifferent places. It seems to me that the Government Agent hasentirely misunderstood section 5 of the Ordinance and the essentialdifference between an order of prohibition under that section and aproclamation by the Governor in Executive Council under section 3.IJnder the latter section the Governor in Executive Council may
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proclaim any part of the seashore as an area from which no sand,&c., may be removed except on a licence from the GovernmentAgent. If the Government Agent refuses the licence the aggrievedparty has the right of appeal to the Governor in Executive Council(section 8). Under section 6 of the Ordinance the GovernmentAgent may prohibit the removal of sand, &c., “ from any spot or' place on the seashore within his Province adjoining or near anypublic road' thoroughfare, public work or public building, oradjoining or near any part of the Ceylon Government Railway,”if such removal is likely to injure such road, thoroughfare, &c. Thesection then obliges the Government. Agent to give notice ofsuch prohibition in the best possible method so as to ensuresufficient publicity.
There is this great difference between the scope of the twosections. The Governor in Executive Council prohibits removal froma definite tract of seashore, and permits are to be given for removalfrom certain parts of this tract by the Government Agent.Under section 5, the Government Agent prohibits the removalfrom a particular “ spot or place,” of sand, &c., but sand, &c.,can be removed from other parts so long as it is not the spotor place indicated.
The Government Agent by his proclamation has at one strokecovered an area of 47 miles, and he has stated in a note that sandcan be removed, within this enormous belt, at certain defined placeson permits issued by him. In my opinion the word “ spot ” mustmean a particular spot on the seashore. The word “ place ” mustbe interpreted ejusdem generis with the word “ spot.” Althoughmarginal notes are not part of an Ordinance, yet it might bementioned that the marginal note to section 5 is ter the same effect.
The Police Magistrate’s judgment is a well-reasoned one, and Iapprove of all the points he has brought forward against the prose-cution. As a matter of fact he‘has found that there was no noticeat the spot, or within 6 miles of it, prohibiting removal. . I cannotunderstand how the Government Agent can expect the public toread a notice hidden away in the Government Gazette. Even theproclamations by the Governor in Executive Council, under section 3,made in the past have only covered a modest one or 2 miles, butthe Government Agent’s prohibition is more ambitious and coversno less than 47 miles.
I see no grounds for allowing the appeal, and I would thereforedismiss it.
MUDALIYAR OF GALLE v. ADDERAMAN