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Present : Pereira J.
SOLICITOR-GENEBAL w. PERERA.
504—P. C. Aviseawella, 16,774.
Excise Ordinance, No. 8 of 1913, ss. 17, 36 and 80—Arrack renter failingto pay instalment of rent—Cancellation by Government Agent oflicense to sell arrack under s. 36 (1) (a)—Fee "—Appeal—Points of law not stated in the petition of appeal urged at thehearing of the appeal—Criminal Procedure Code, s. 340.
Where, in a criminal case, a party has no right of appeal excepton a matter ot law, the petition of appeal should contain a state-ment of the matter of law to be argued, and the appellant shouldat the argument confine himself to the matter stated in the petition;but where a party has a general right of appeal under section 898of the Criminal Procedure Code, he is not subject to be restricted to thegrounds urged in the petition of appeal.
Where the Governor had delegated to the Excise Commissionerthe power under section 24 of the Excise Ordinance to determine'the conditions and restrictions for the grant of licenses under theOrdinance, and a certain condition in a license had the sanction ofthe' Exeise Commissioner,—
Held, that the condition was valid, and a breach cf it justifiedthe cancellation of the license.
The term " fee ” used in the Excise Ordinance means a sum paidon the issue of a license for the license. The money stipulated tobe paid by the buyer of an exclusive privilege to sell arrack cannotbe regarded as a fee for the issue of a license.
fjpHE facts are set out in the judgment.
Elliott (with him B. F. de Silva), for accused, appellant.—Therenter, Perera, did not pay one instalment of the sum for which hehad purchased the exclusive privilege of selling arrack. That wasnot a ground for cancelling the license wider section 26 of theExcise Ordinance.f
Under section 18 the Governor has the right to grant to anyperson the exclusive right of selling arrack subject to such conditions-
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as he may impose. The conditions of this license were not imposedby the Governor.
The Governor cannot cancel a license except on grounds specifiedin the Ordinance. The default in paying an instalment is not aground falling under section 26 (1) (a), under which the GovernmentAgent purported to act.
Where a lump sum is required for granting an exclusive privilegefor sale of arrack no duty or fee is due (see section 18).
The terms “ duty ” and “ fee ” cannot apply to an instalment ofthe sum for which the privilege was sold. Fee is given for obtaininglicenses, and not for obtaining a monopoly. The term " duty "means excise duty.
The license is issued free of any fee in a case like the present.
The Government Agent can cancel the license only, under section26 (1) (d), and that when the renter surrenders his right. Sub-sections (b) and (c) have no application to this case.
Bertram, K.C., A.-G., for the respondent.—The appellant cannotargue any point of law other than the point certified (see CriminalProcedure Code, section 340 (2)).
[Pereira J.—That section applies to cases when no appeal liesas of right except on a point of law.] The section is wide enoughto cover an appeal on points of law in any case.
Elliott.—In the present case an appeal lies as of right on facts, asthe accused has been sentenced to a fine of Bs. 100. The appellant’sproctor need not have certified any point of law. The fact thatone point of law has been certified does not preclude the appellantfrom raising other points.
Where a renter makes default of payment on an instalment, theprocedure to be followed is laid down in section 30. Section 26does not apply to such a case.
Bertram, K.G., A.-G. (with him Mahadeva, Acting G.G.,), for therespondent.—It was open to the Government Agent to insert in thelicense issued by him the conditions of arrack rent sale publishedin the Gazette of February 6, 1913. The Governor has by notifi-cation under section 7 (/) delegated his powers under section 24to the Excise Commissioner. The conditions were framed by theExcise Commissioner under the powers conferred on him by theGovernor.
Section 26 (d) does not touch the present case; that refers onlyto cases where the renter himself surrenders the right.
The term “ fee ” has been used in many sections of the Ordinanceto mean the price for which an exclusive privilege to sell arrack wassold. See section 30, section 31 (2) (j). The same use of the wordis to be found in several notifications made under the Ordinance.
The purchase price is a consolidated fee. Non-payment of anyinstalment of the fee falls under section 26 (1) (a).
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It is open to the Government Agent to suspencf or cancel thelicense under section 26 (1) (b) lor any breach of conditions subject towhich the license was issued. The cancellation may be justifiedunder sub-section (b) also.
It is open to the Government Agent to proceed under section 30,but that is not the only course open to him.
Cur. adv. vult.
July 2, 1914. Pereira J.—
This is a prosecution under the Excise Ordinance, No. 8 of1912. The accused has been convicted of selling an excisablearticle, to wit, arrack, without a license from the Government Agent,in contravention of section 17 of the Ordinance, an offence punish-able under section 43 (h). The accused was a salesman underone J. B. M. Perera, to whom the Governor had, under section 18of the Ordinance, granted the exclusive privilege of selling arrackin the Three Korales and Lower Bulatgama from July 1, 1913, toSeptember 30, 1914. Perera made default in the payment of aninstalment of the consideration due in respect of the grant, and theGovernment Agent thereupon cancelled the license issued to him,and the sale by the accused referred to above took place after thecancellation of the license. Practically the only ground of appealset forth in the petition of appeal is that, under section 26 of theOrdinance, the license of a holder of an exclusive privilege can besuspended only on the requisition in writing of the person enjoyingthe privilege. The appellant's counsel proceeded to urge othergrounds, and objection was taken thereto by the Attorney-General,who contended that the appellant should be restricted to the groundsof appeal mentioned in the' petition of appeal, and cited section340 (1) of the Criminal Procedure Code. In this connection thatsection does no more than provide that the petition of appeal shallstate shortly idle grounds of appeal. I do not think that that is anauthority for saying that in the argument of the appeal the appellantshould be restricted to the grounds set forth in the petition of appeal.Sub-section (2) of section 340 provides that where the appeal is ona matter of law, the petition of appeal shall contain a statement ofthe matter of law, to be argued. That section has, so far as I amaware, been treated as applying only to cases in which a party hasno right of appeal except on a matter of law. I am inclined to thinkthat that is the correct interpretation of the sub-section. OtherwiseI should have expected the provision to be expressed in totallydifferent terms. I over-ruled the Attorney-General’s objection, andin view of the decision that I have come to in this case nothing moreneed be said about it.
The crucial question in the case is whether the Government Agentacted ultra vires in cancelling the license issued by him to J. B. M.Perera, the so-called renter. This license- is filed of record in thecase, and it will be seen that it is subject to the “ arrack rent sale
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conditions published in the Ceylon Government Gazette No. 6,546of February 6, 1913. " The question was debated whether it waswithin the power of the Government Agent to insert in a licenseissued by him under the Excise Ordinance such a condition as thatreferred to above. Under section 24 of the Excise Ordinance everylicense issued under it shall be granted (to quote material wordsonly) subject to such restrictions and on such conditions as theGovernor may direct generally or in any particular case. TheGovernor himself does not appear to have prescribed any conditionsand restrictions under this section; but under section 7 (f) of theOrdinance the Governor had the power by notification to delegateto any Excise Officer any of his powers under section 24, and byNotification No. 1 published in the Government Gazette No.- 6,536dated December 18, 1912, paragraph 5, the Governor has delegatedto the Excise Commissioner the power under section 24 of theOrdinance to determine from time to time the restrictions andconditions for the grant, of licences under the Ordinance, and in viewof the defence set up in this case and the statement in the petitionof appeal, especially the statement in paragraph 2 (e), I presume thatthe insertion of the condition referred to above in the license thatwe are concerned with in this case had the sanction of the ExciseCommissioner.
The defence seriously pressed in appeal was that the GovernmentAgent had written to the renter that he had cancelled his licenseunder section 26 (1) (a) of the Ordinance, which speaks of default ofpayment of a fee, and that the sum for which the exclusive privilegeto sell arrack wa6 purchased by the renter could not be deemed tobe a “ fee. ” At the argument in appeal I was not inclined to agreewith the appellant's counsel, but on a fuller consideration of thematter I think that he is right. “ Fee as used in the Ordinance(see section 24) is a sum paid on the issue of a license for the license;the sale of an exclusive privilege to sell arrack takes place quiteindependently of the issue of licenses, although the grantee is boundto take a license after his purchase. But clearly by the non-paymentof an instalment the renter committed a breach of a condition of thelicense under sub-section (b) of section 26 of the Ordinance- Thereason given by the Government- Agent in his letter to the renterdated March 9, 1914, for the threat to cancel his license wastantamount to default in payment of part of the purchase money,and the fact that sub-section (a) of section 26 was cited did notrender the cancellation of the license any the less effectual. TheGovernment Agent was not bound to cite any section at all.
The contention that in view of the provision of section 30 of theOrdinance it was not open to the Government Agent to take actionunder section 26 1 do not think is at all tenable.
For the reasons given above I dismiss the appeal. .
SOLICITOR -GENERAL v. PERERA