036-NLR-NLR-V-17-VIDAN-v.-PANDITARATNE-et-al.pdf
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♦Present: Pereira J.
VIDAN v. PANDITAEATNE et cU.
^918.
897—898—P. C. Nuwara Eliya, 7,617.
Genu Protection Ordinance—Exclusive right of fishing in a stream—License from Government Agent.
Where the exclusive right to take (ram a stream the fishmentioned in Schedule m. to “ The. Game Protection Ordinance,1909,” has been conceded by the Governor to a particular fishingclub, the provision as to a license from the Government Agentunder Bection IS of the Ordinance would still apply to such streamsunless a valid role is made by the club providing for a license insubstitution for the license under section 15.
rjIHE facts appear from the judgment.
H. J. G. Pereira, for first accused, appellant.
Hayley, for respondent.
Cur. aiv. vult.
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1918*
' Vidanv.Panditarafhe
December 7, 1918. Pereira J.—
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it is difficult to understand the conviction in this case. Itpurports to be a conviction of an offence punishable under section19 (2) of Ordinance No. 1 of 1909; but the recitals in it are recitalssupporting a conviction under section 17 of the Ordinance. Boththese sections make it an offence (omitting words immaterial tothis inquiry) to take fish of a particular kind without a license.Section 17 makes it also an offence merely to fish for fish of the kindreferred to without a license, while section 19 (2) creates no suchoffence. Hence, the prosecution in case No. 7,590 of the PoliceCourt of Nuwara Eliya, which I have already disposed • of, couldnot be instituted under section 19 (2), and unless there was .somedefect in the rules requiring the license mentioned in section 17,this prosecution might have been instituted under section 17.However, I have the assurance of the respondent’s counsel thatthis prosecution is altogether one under section 19 (2), and hemaintained that the license referred to in the conviction is thelicense provided for by section 15 of the Ordinance. The prosecu-tion is pritna facie a prosecution under section 19 (2), but I am notprepared to accede to the contention that the license referred to inthe oonviction is the license provided for by section 15. Thatsection provides for the issue of a license by the Government Agentof a Province to be in force within the limits of his Province, andhere I may observe that, although under the interpretation clauseof the Ordinance the expression “ Government Agent ” includesan Assistant' Government Agent, the expression as used in section15 requires a strict construction, as the words in the context—“ of^any province, within the limits of such province ’'—occurringimmediately after the expression w Government Agent " lepel theinterpretation provided for by the Ordinance, the same being, ofcourse, expressly subject to what appears “ in the context.” Thelicense referred to in the conviction is a license from (to quote fromthe conviction) “ the Assistant Government Agent' of NuwaraEliya, Honorary Secretary of the Ceylon Fishing Club.” Thereference here clearly is to the license provided for by rule 3 of the*' Rules of the Ceylon Fishing Club ” produced in evidence and filedof record. As I have already held in the ease referred to above,rule 81s ultra, vires, and therefore the conviction in this case in itspresent form cannot stand. The question is whether 1 should amendthe conviction and retain the sentence, if I am satisfied on theevidence that the accused have taken fish without the licenseprovided for by section 15.
The stream from which the accused are charged with taking fishis the stream known as the " Ambayela stream.” The exclusiveright to take from this stream the fish mentioned in Schedule III.to the Ordinance has been conceded by the Governor to the CeylonFishing Club. The Ordinance provides that when such a- right has
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been conoeded to a club, that club may make rules for the preserve- 1M8.turn, Ac., of the fish to which the concession applies; but, curiously,*j
at the time the exclusive right to take fish from certain streams
was conceded to the Ceylon Fishing Club, rules for the prosecution,
'&c., of fish under section 16 (2) of the Ordinance had already beenmade by the club, as appears from the notification of December 16,
1909 (see Epitome of Proclamations, Ac., during 1909, page 260),and the concession was expressly made subject to those rules.
Whether that proceeding was in order, or whether Ambawela streamis included in the list of streams mentioned in that notification orin the notification dated May 10, 1910 (see Epitome for 1910,page 75), I shall not pause to inquire. On both points I shallassume the condition of affairs to be in favour of the prosecution;but what is the effect, on the provision as to licenses to be obtainedfrom the Government Agent, of the concession of an exclusiveright under section 16 (1) ? Before proceeding to consider thisquestion, I may mention that it is open to the Governor to makea concession under section 16 (1), subject to such conditions as tohim in Executive Council may appear fit. The concession in thecase of the streams mentioned in the notification of December 16,
1909, was expressly made, • as already observed, subject to certainrules made by the club. Those rules were, therefore, binding on theconcessionaires, but, clearly, as many of the rules as were ultra vireshad no binding effect on the public at large, and, as pointed out byme in case No. 7,590, rule No. 3 was ultra vires (albeit the AssistantGovernment Agent happened to be the Honorary Secretary of theclub), and no prosecution could therefore be maintained undersection 17 as against a member of the general public. Now, as tothe effect of a concession under section 16 (1) on the provision as tolicenses under section 15. It has been argued that the momenta concession is made in respect of a stream, section 15 of the Ordi-nance ceases to have any operation with reference to that stream,and that, then, the licenses to be obtained for fishing are none otherthan the licenses provided for by sub-section 3 (a) of section 16.
I was at first inclined to take this view, but on a careful consideration"of the different provisions of the Ordinance, I think that, when aclub to which a concession is granted fails to make a valid provision' for the issue by itself of licenses, the provision as to licenses in section15 continues to hold good. Such a club is, by sub-section (3) (o)of section 16, authorized to make rules “ for the issue of licensesby itself either in addition to, or in substitution for, the licensesprescribed by section 15.” In the present case no valid rule hasbeen made by the Ceylon Fishing Club for the issue of licenses byitself in substitution for the licenses provided for by section 15, andnone in addition to such licenses. Therefore, I take it that, asregards the Ceylon Fishing Club and the Ambawela stream, theprovision as to licenses of section 15 stands. It has neither been
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101*.
Pbrbola J.
Vidanv.
Panditoratne
superseded nor added to, and I agree with Mr. Hayley that, inSpite of the concession to the club, a person may be prosecutedunder section 19 (2) for taking fish from the Ambawela stream
Vidan v. without the license required by section 15. But in such a case the
matter is one that concerns the Government Agent of the Province.He or somebody instructed by him should, strictly speaking,prosecute. As stated above, the present conviction is wrong and
cannot stand, and 1 do not think that, in the circumstances of thecase, it should be amended by this Court. Dealing with the convic-tions of the first and third accused in appeal and of the secondaeeused in revision, I quash the convictions and all proceedings hadin the .Police Court, leaving it to the Government Agent to reprosecutethe aeeused, if so advised, under section 19 (2) of the Ordinance fortaking fish from the Ambawela stream without the license requiredby section 15.
Quashed.