TILLAINATHER v. VADIVELU

037-NLR-NLR-V-08-TILLAINATHER-v.-VADIVELU.pdf


( )1906.
April 3.
TILLAINATHER v. VADIVELU.
P. G., Jaffna, 36,411.
i'onirtoms—Unlicensed beating thereof—Breach of s. SO of Ordinance'No. 16 of1865—Proclamation under s. 12thereof—Meaning of the phrase
throughout the Island “ in e. 12—.Interpretation of the word “ town ”in s. 6—Grammatical structure of the interpretation clause—Meaning of“ town and limits ” in s. 90.
Where (he eocased were charged with having beaten tom-toms inthe village of Batticotta without a license, and with having therebycommitted an offence punishable under section 90 of Ordinance No., 16of 1665, which it was alleged was brought into operation in the saidvillage by virtue of the Proclamation made under section 12 of the' saidOrdinance, and contained in the Gaze tie of December 2, 1898;' andwhere it was contended that the term “ throughout the Island ” in section12 referred only to proclaimed limits throughout the Island and notto every part of the Island, and that Batticotta not having been, pro-claimed did not come under the Ordinance, and that the interpretationof the word“town” insection 6of the Ordinance .includedonly villages
set .out forthe purposes of theOrdinance and not everyvillage, and
that, therefore, even after giving this wider meaning to “ town “ insection 90, Batticotta, not having been set out for the purposes Of- theOrdinance, could not be brought' thereunder—
Held, perMoncbeifp,J. andObbnieb, A.J. (Layard, C.J:, dissent-
ing) that “town and limits” in section 90 mean “town and gravdts, ”which in terms of section 6, would read “village and limits,” i.e.;–:villageand gravets or village up to then: well-known and well-defined boun-daries, andthat therewas noneed of setting out thelimits of a
■ village.
“ Set out for the purposes of the- Ordinance” in section 6'refers onlyto “ limits ” and not to “ village. ”
“ Throughout the Island in section 12 means “ throughout, theinhabited parts of the Island,” and' not also throughout the uninhabitedparts.
Batticotta, being a village, would therefore be affected by the PoliceOrdinance up to its limits, i.e., its well-known and well-defined boundaries: '
T
HE accused in this case were charged under section 90 of theOrdinance No. 16 of 1865 with disturbing the repose of the
inhabitants at Vattqkottai (Batticotta), a village about six gulesfrom JaSna, by beating drums at a performance of a comedy onthe night of 23rd July, 1904, without having first obtained alicense.",
•By section 12 of the Ordinance the Governor has power , byProclamation in the Government Gazette to declare that such , ofthe provisions of the Ordinance as to him may seem meet shallcome into operation throughout the Island, or in any Province,district, town, or place as shall appear to him to require the saihe,though there be no police force established therein.
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In the Government Gaeette of 2nd December, 1898, GovernorEidgeway proclaimed that certain sections of the OrdinanceNo. 16 of 1866, including section 90 thereof, “ shall come intooperation throughout the Island.”
It was contended for the prosecution that, as Vattukottai was avillage within the Island, the acoused, who had disturbed therepose of the inhabitants there, were liable under section '90.But the accused urged that the Proclamation in the Gazette wouldbe ultra vires if its intention were to apply to any other placebut ” towns ” as defjmed in section 6 of the Ordinance.
This section provides as follows:“ The word * town ’ shall
include any village or limits set out for the purpose of thisOrdinance.”
The Police Magistrate (Mr. B. J. Dutton) held that the placewhere the offence was alleged to have been committed was avillage not included in the town of Jaffna, and that a villagecould not become' a “ town ” without its name and boundariesbeing specially set otft in the Governor’s Proclamation. Heacquitted the accused.
The Attorney-General appealed.
The case was first argued before Middleton, J., on 28th November,1904;, then before Moncreiff, J., and Middleton, J., on 14thDecember, 1904; and lastly before a Full Bench consisting ofBayard, C.J., Moncreiff, J., and Grenier, A.J., on 10th March, 1905.
Ramandthan, S.-G., for appellant.
Savundranayagam, for respondent.
Cur. adv. vult.
3rd April, 1905. Moncreiff, J.—
Section 12 of the Police Ordinance of 1865 (as amended)empowered the Governor, with the consent of the ExecutiveCouncil, to proclaim such of its provisions as he .might think fit“throughout the Island”, or in limited portions of the Island(provinces, districts, towns, and places). Such Proclamationsmight be made, although “ there were no police force establishedtherein,” and there was no necessity for defining the limits of theplace proclaimed. There is no established police force at Vattu-kottai, but the provisions of the Ordinance were proclaimed therebecause it is part of the Island, and the Ordinance was proclaimedthroughout the Island.-
Seetipn 13 requires that a Proclamation establishing a policeforce in a town should specify and define its limits, which may b*»altered from time to time. Vattukottai; although only a village,
1906.
April 8.
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1966.April 3.
Moncbbot,
J.
is a town in this Ordinance, and therefore this section relates toit; but the..section does not concern us here, because there is noquestion of proclaiming the establishment of a police force atVattukottai. The Ordinance also mentions other cases, which, do -not arise here, in which definition by Proclamation is required.
It is obvious that such sections of the Ordinance as are netlocally limited in their operation would apply, where posable, toevery part of the Island, Vattukottai included. There are, however,about twelve sections the operation of which is confined to “ anytown and limits.” Section .90, that in question, is one of thosesections. The question is what the expression “ town and limits ”means.
Regulation 7 of 1813 was a police regulation which relatedto the forfeiture of animals found straying “ within the Fort,town, or gravets ” of Colombo. The same expression occurs inthe early police regulations of the last century relating to othertowns.
In the Police Ordinance, No. 3 of 1834, which was passed inreference to offences committed within “ the town, Fort, andfour gravets (and the port) of Colombo, ” the operation of twenty-six of the thirty-one sections of the Ordinance is limited to thetown, Fort, and four gravets (and port) of Colombo.
Ordinance No. 13 of 1843 for establishing police in certaintowns repealed the Police Ordinances and regulations affectingColombo, Jaffna, Galle, Kandy, Trincomalee, Mannar, Matara,Negombo, and Kurunegala; and section I gave the Governor” power to establish a police force within such towns and limitsas appear to him to require the same, and as shall be specified anddefined in any Proclamation to be by him for that purpose issued.”I find that many of the sections of that Ordinance (thirty-five) arespecially confined to “ any such town and limits as aforesaid; ”and that the expression ” town and limits ” refers to a particularlocality appears, I think, from section 10, in which a form of oathis prescribed for ” the Superintendent of Police for the town andlimits of”
Among the local regulations which were repealed and replacedby this Ordinance were (section 8) Rules and * Regulations forthe Police for the Bazaar, Village, and Cantonments of Kurunegalaof September, 1819. Thus the expression “ town and limits ”fakes the place of the ” town, Fort, and gravets,” or ” bazaar, village,and cantoflments ” where they occur in the old regulations.Apparently the bazaar, village, and cantonments of Kurunegalaare treated as a town and limits to be specified and set out'. It istrue that the first section does not contemplate proclamationthroughout the Island; it . relates only to the establishment of a
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police force in certain towns and limits. The preamble speaks1905.
of (he establishment of a police force “ in certain towns and their^
neighbourhood.”Mohobbot,
This Ordinance was repealed by No. 17 of 1844, the secondsection of which is practically the first section of* the Ordinance of1848, and is followed by at least thirty-four sections which areapplicable " within any such town and limits.” The towns andlimits referred to in the sections of these two Ordinances aretdwns and limits required by the Ordinances to be specified anddefined in the" Proclamation; and the section which applies to thebeating of tom-toms is, of course, confined in its operation to townsand limits specified and defined. But it is evident that beforeany definition by Proclamation took place the Governor was toform an opinion that certain towns and limits required a policeforce; and I agree with my brother Grenier that such towns andlimits were places such as were described as towns and gravetsin the beginning of last century, when each such place had apolice regulation of its own.
These Ordinances were replaced in 1865 by the Ordinance nowunder consideration, which in section 12 provided for the Procla-mation of the Ordinance throughout the Island and in certainother places in which a police force might not. have been'established. Now, it is to be observed that in Ordinance No. 10 of.1848’ the Legislature considered that the provisions of OrdinanceNo. 17 of 1844 should be made operative in certain places “ notwith-standing that a police force might not have been establishedtherein; ” and it gave power to proclaim the Ordinance in such” towns, villages, and limits ” as should be specified and defined bythe Proclamation. In the corresponding .section (12) of theOrdinance of 1865 it is not required that the places should bedefined, and the places enumerated are ” province, district, town,or place,” as well of course as throughout the Island. Why was” village ” omitted ? Was it for the exclusion of villages, or was ithot because a village was a town ?
As I have said, ten or twelve sections of the Ordinance containthe phrase 48 town and limits.” Section 80, the first of the “ generalprovisions,” refers to ” any town and limits.” Section 90—alsoone. of the “ general provisions ”—is applicable within “ any townand limits.” These are general provisions, and there is nothingin them or in the Ordinance to suggest that they are not to applyto places proclaimed but not defined. The mere fact that thedefinition of such places, which was required by Ordinance No. 10of 1846, is not required by this Ordinance indicated an intention onithe part of the Legislature which these sections have carried out.
I think the draftsman had no deep design in the use ofy the phrase.
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1905.
April 3.
Moxcaxtrr,
J.
and this appears from the fact that in section 63 the phrase is“ within any .town,” and in the following section (64) it is “ withinsuch town and limits.”
By section 6 of the Ordinance (of 1865) the word ” town ”includes any village or limits set out for the purposes of theOrdinance. I see no reason for thinking that the words " set out.for the purposes of this Ordinance” are attached to the word“ village.” Villages had their limits, as towns had their gravets.We must not make the Legislature illiterate without reason. Ifwe adopt the Magistrate’s interpretation, a town in which nopolice force is established may be brought within the Ordinance by -Proclamation under section 12, although its limits are not definedfor the purpose. A village, says the Magistrate, is not a town, landnot in that sense within section 12, if its limits are not defined byProclamation. I can see no purpose underlying this distinction,which is wrung out by a slipshod rendering of the interpretationclause; and I can see a good deal of embarrassment in some partsof the Ordinance if the Magistrate’s view were put in force. Whyshould the village proclaimed under section 12 not have theadvantage of sections 53, 80, 81, 82, 84, 87, and 95 ?
The Ordinance appears to me to have put villages on the samefooting as towns, and in reading section 90 I should take thewords (for the purpose of this case) as “ any village and limits.”
I think, therefore, that section 90 applies- to the village of Vattu-kottai, and that the order suggested by my brother Grenier isright.
Grenier, A.J.—
The accused in this case were charged under section 90 ofOrdinance No. 16 of 1865 with disturbing the repose of the inhabit-ants in the neighbourhood at Vattukottai by beating drums on thenight of the 23rd July, 1904, without having first obtained a licenseas required by the said section. The Magistrate acquitted theaccused on the ground that the place where the offence was com-mitted was a village not included in Jaffna town, and that theprovisions of section 90 of Ordinance No. 16 of 1865 did not applyto villages, as the, expression “ include ” in the definition clausemeant a place proclaimed as a town in the Qazette—that is, any vil-lage or place of certain limits proclaimed as a town in the Qazette.
It was argued by the Solicitor-General for the complainant thatwhen sections 6, 12, and 20 of the Ordinance are read together the
words ” all persons who shall at any time within any town
beat drums ” must be interpreted to mean all persons who ^hall at-any time within any town or village or other place beat drums, £c.The reason he assigned was that in the definition clause the word
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town " includes any village or limits set out for the purposes of thisOrdinance, and that as the accused beat drums in the village calledVattukottai without a licence they had rendered themselves liabletinder section 90.
There was much discussion as to the meaning of the words '‘ limits
set out for the purposes of this Ordinance.” The term “ limits ”
occurs in several sections of the Ordinance—for instance; in sections
00, 81, 82, and other sections where it is used in connection with
the word “ town and although the term is rather loosely employed
and is therefore not easy of interpretation readily, 1 think that the
connection in which it is used in the context leaves little or no»
room for doubt that it was intended to refer to the gravets, as theterm is popularly understood, or the boundaries of a town; andtherefore when in the definition clause the word “ town ” is definedto “ include any village or limits set out for the purposes of thisOrdinance ” the definition must be taken to refer to the limits ofthe town, or in other words to the gravets or boundaries of the town.The word “ gravets ” is a Sinhalese word which means boundaries inthe usual acceptation of the term. -A village may be included orlie. within the limits of a town, and 1 believe that as a matter of factthere are villages which are situated within the gravets or boundariesof a town. But there are other villages which are not so situated,and lie outside the limits or boundaries of a town; and the word“ town ” was, I think, so defined in section 6 as to be synonymouswith the word ‘‘ village,” and to include any village situated withinthe limits or boundaries of a town as well as any village outside itslimits or boundaries. It is manifest that the contention for theaccused, that the words “ set out for the purposes of this Ordinance ”should be read after the word “ village,” is ill-founded, whether weregard the grammatical construction of the words or their plainmeaning as ordinary words in the English language to which anordinary meaning should be assigned. One does not speck of set-ting out a village, but of setting out the limits of a town or village.I would therefore reject without hesitation the construction soughtto be placed upon the words in question by the counsel for therespondents and take the word to mean, reading it in connectionwith sections 12. and 90, as referring to the limits or boundaries ofa town.
Now,, the Proclamation by the Governor dated 2nd December,1898, made certain sections of the Ordinance, amongst them section90, operative throughout the Island or in any province, district,town, or place, irrespective of the establishment of a police forcetherein. It seems to me that the Magistrate has given this Proclama-tion a rather fanciful and extravagant meaning in the illustrations
1905,
April 9.
Okehobb,
AX
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1900.
April a.
Oarann,
A.j.
to be found in his judgment of the extent to which the Proclama-tion may be made to apply . We must try to put a reasonableconstruction upon words which occur in any Proclamation orOrdinance with a due regard to the obvious intention of the framert,and not strain the meaning of words so as to render them ambiguousor unintelligible, and thus obtain materials to subtilize upon, as theMagistrate appears to have done. The Proclamation read as a wholeis' clear enough in my opinion, and applies to provinces, districts,towns, and places- throughout the Island which are inhabited, andcannot be made to apply to places which are not inhabited, such asforests and jungles where there iB no population. To hold other-wise would be to do violence to the language of the Proclamationand to give the words “ throughout the Island ” such a comprehen-sive meaning as to render the Proclamation itself a document of arather grotesque character._
I hold, therefore, that it was an offence under -the Ordinance tobeat drums in the village of Vattukottai, as charged in the informa-tion. The acquittal must be set aside and the case sent back fortrial and adjudication on the merits.
Layard, C.J.—
The question to be decided in this appeal is as to whether theProclamation of the 29th day of November, 1898, had the effect ofbringing section 90 of “ The Police Ordinance, 1865,” into operationin every village of the Island.
There is no doubt that section 12 of that Ordinance, as Amendedby section 2 of Ordinance No. 4 of 1897, gives the Governorpower, acting with the advice and consent of his ExecutiveCouncil, by Proclamation, to bring any provisions of ‘ ‘ The PoliceOrdinance, 1865,” into operation throughout the Island. That is tosay, provisions which related to towns and villages can be by thismeans brought into operation into such towns and villages as theOrdinance originally contemplated, and provisions which areapplicable to places and rural districts outside such towns andvillages come into force in such places and districts.
Section 90 absolutely. prohibits any person from beating tom-toms within any town and limits without haying obtained alicense from the officers mentioned in the section. It is arguedby the appellants that the words “ any town and limit” includeahy village whatsoever, and by the respondents merely any townor village the limits of which may have been defined for thepurposes of the Ordinance.
Section 90 of the Ordinance appears to have been adapted fromseotion 37 of the Ordinance No. 17 of 1844, which OrdinanceNo. 16 of 1865 repealed. I find that the operation of the latter
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section- was also limited in operation to “ towns and limits.’’During the argument of the appeal I thought that possibly" limits ” was used in the Ordinance of 1866 for .gravets. Areference, however, to the Ordinance of 1844 shows that the term" limits ’’ is not used by the Legislature synonymously withthe term " gravets.’’ By the 2nd section'of the Ordinance No. 17of 1844 it is clear what the Legislature intended by the words" towns and limits ” in that Ordinance, viz., such towns, and limitsais have been specified and defined in any Proclamation issuedand published in the Government Gazette under that section,whilst " gravets ’’ in that Ordinance, I gather from section 8,referred to recognized and well-defined areas outside certaintowns in the Colony the limits of which were well-establishedand did not require defining. Section 87 only operated in suchtowns and limits as had been specified and defined by Proclama-tion issued under the Ordinance of 1844.
In 1866 the Legislature thought it desirable to repeal the Ordi-nance of 1844 and to make further provision with regard tothe regulation of a police force in the Island. In legislating,I gather from the Ordinance No. 16 of 1865, the Legislaturerecognized that there were large towns in the Island within someof which a police force had been already established, in respectof which it enacted that no fresh Proclamation was necessaryto bring the Ordinance of 1866 into force, whilst there were othersimilar towns in respect of which it- is provided by section 7of the Ordinance might by Proclamation be brought into operation,and by section 13 directed that when proclaimed the limits of thetown should be defined and specified by the Proclamation.
With reference to other than large towns it enacted that apolice force might be established by Proclamation (section 8),declaring not that the Ordinance itself should come into operation,but certain provisions thereof to be specified in the. Proclamationitself, which Proclamation should also set out the limits ofsuch town.
There were also other provisions as to establishment of policein rural districts, to which I need not refer, and section 12enabled the Governor to bring into operation such of the pro-visions of the Ordinance as he might think desirable into anyplace, though a police force had not been established there. Thatsection was amended in 1897, and the Governor was given power, >as mentioned above, to bring such provisions of the Ordinance ashe thought desirable into operation throughout the whole Island.Now, tlie Governor has been pleased to bring section 90 intooperation throughout the Island, and certainly by that Proclama-tion it has come into force in every town (other than a large town)
190S.April 3,
Layabd.C.J.
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1005.in respectof which a Proclamationhas beenissued under, section
April &8, eVen ifsection 90 was not specifiedin theoriginal Proclamation
Uyabd.CJ. issued under section 8. Did the Proclamation, however, bring itinto force in every little remote village and hamlet in the. Island—villages situated perhapsonthe confines of a large
forest or jungle and far away from other human habitations,or villages inhabited perhaps by village or forest Yeddahs ?However unreasonable it may be to extend such a provisionto .juch villages, still, if the Legislature intended that they mightby Proclamation be brought into operation within such villages, allthat the Court can do is to declare the law to be as the Legislatureintended.
c
Lookingback to the Ordinanceof1844,it is clear that the
provisions of section 87 could only have operated, as mentionedabove, within such towns and limits as had been specified anddefined by Proclamation issued under the Ordinance of 1844.Did the Legislature in 1865 intend to go further ?
By section 6 it enacted that *• the word * town * shall include anyvillage or limits set out for the purposes of this Ordinance.” Asmy brother Moncreifi properly pointed out in the course of theargument, it is not good English to speak of a village set out forthe purposes of the Ordinance.
At the same time there is no integral part of the Island w or ofany division or district thereof which is defined as “ limits,” andwhat did the Legislature mean to refer to distinct from a villageor town by the words 4 4 limits set out for the purposes of thisOrdinance ” ?
No doubt the word “ town has been slovenly defined by theOrdinance; however we must do our best to interpret what theLegislature intended to enact, and bearing in mind the provisionsof the Ordinance of 1844, for which this Ordinance is substituted,and the unreasonableness in providing in 1865 that the provisionsof section 90 should extend into every little village of the Island,I am constrained to come to the conclusion that the Legislatureintended to limit the definition of town to include any villagewhose limits had .been set out for the purposes of the Ordinance.I find the words " town and limits ” used in several sectionsbrought into force throughout the Island by the strength of theProclamation. If I am justified by reading for the word 44 town ”ft in these sections the word “ village,” I am still confronted withthe words 44 village and limits M to interpret. I must assign ameaning to the word 44 limits ” in these sections. 44 Limits ” areno integral part of the Island, as I said before. 14 Limits of a tillage,”unless such means those defined for the purposes of the Ordinance,would ordinarily include paddy lauds, chena lands, and forests,
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some of which might be a very long way from all human habita- 1#0B.tions. The Legislature has not very clearly expressed its meaning, April 9.but I think it could have only one intention, and that was to refer Latiso,OJ.to such towns, including villages, the limits of which had been get .out by some. Proclamation or other for the purposes of theOrdinance.
The Solicitor-General tried to impress us, or some of us, by say-ing that if we upheld the Police Magistrate’s judgment we shouldbe rendering inoperative a Proclamation issued by the Governor,with the advice of the Executive Council. I told him at once thatif the Proclamation was ultra vires, whatever might be the result,we must so declare. A little further consideration of the Procla-mation would have shown the Solicitor-General how fallacious hissuggestion was. Some of the sections brought into operation bythe Proclamation are applicable to the whole Island, and are notrestricted to towns and their limits, and those sections which referto “towns and limits” are by the force of this Proclamationbrought into force in every town or village in the Island whoselimits have been defined for the. purposes of the Ordinance; notonly those towns proclaimed under sections 7 and 18, but all thosetowns proclaimed under section 8, in some of which it may be thatsection 90 and some of the other sections of the Ordinance appli-cable to “ towns and limits ” have not been brought into operationby the Proclamation issued under that section.
t
I would further add that I do not believe it could have been theintention of the Governor or of the Executive Council by theProclamation now under consideration to bring into force in everylittle village in the Island provisions such as those containedin section 90, which are inapplicable to the circumstances andsurroundings of the villagers themselves, and would almost deprivethem of the harmless amusement of beating tom-toms, for itwould require them in every case to go many miles to obtairra license from one or other of the officers specified in section 90,who, when they receive the application for the license, would bequite incapable of forming an opinion as to whether there was orwas not any good reason for refusing to grant a license.
The order of the Police Magistrate ought, in my opinion, to beaffirmed.’
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