Mudaliyar, Wellaboda Pattu V. Silva

Present: Schneider J.

MUDALIYAR, WELLABODA PATTU v. SILVA.

770-P. C. Balapitiya, 11,244:

    Seashore-Removal of coral from bed of sea-Prohibition by Government Agent-Meaning of the word " removal "-Ordinance No. 12 of 1911, ss. 5 and 6.

A Government Agent has no power to prohibit the removal of coral from the bed of the sea. The word " removal " for the purposes of the Seashore Protection Ordinance means moving from a place where a thing is found.

APPEAL from a conviction by the Police Magistrate of Balapitiya. The accused was charged with having illicitly collected sea coral stones from the sea beach at Akurala within an area prohibited under section 5 of Ordinance No. 12 of 1911.

Rajapakse, for accused, appellant.-The scope of sections 3 and 5 must be distinguished. Under section 3 the Governor may prohibit' the removal of sand or coral from certain proclaimed areas of the

seashore or from the bed of the sea contiguous thereto. Under Mudativar section 5 the Government Agent may prohibit the removal of such. from certain particular spots on the seashore only.

The charge and conviction under section 6 are based upon section 5. What is punishable under section 6 is the removal. The plaint, evidence, and judgment refer to the collection of coral by the accused.

Moreover, the removal must be the taking away of sand, coral, &c, from the area or spot to a place outside such area or spot. Otherwise, every step taken by a person walking on the seashore of such area or spot will be an offence, because a certain quantity of sand is displaced or dislodged from its position.

Further, the evidence is vague and meagre. There is no legal proof that the spot is a prohibited one, and the Government Agent has no power to prohibit the removal of coral from the bed of the sea. Only the Governor may do so.

Basnayake, C.C., for respondent.-The conviction is under section 6, and therefore the accused must be deemed to have been punished for the removal. Collection of coral is tantamount to a removal of coral within the meaning of the Ordinance. It is not necessary that the substance should be removed to a place outside the area as long as its position is shifted. (See section 7.)

The Police Headman says orally that the area is a proclaimed one.

Counsel also referred to Karunaratne v. Boteju.1[1 7 N.L.R. 127.]

December 18, 1928. SCHNEIDER J.-

Counsel for the appellant based his argument of this appeal on the assumption that the conviction was for the removal of coral in contravention of a prohibition under section 3 of the Seashore Protection Ordinance, 1911 (No. 12 of 1911). But in fact the conviction is not for a removal, as I shall presently point out. He . submitted two objections to the conviction. He contended first that the removal contemplated in the Ordinance is a removal or transporting from within a proclaimed (section 3) or prohibited (section 5) area to a place outside such area, and that there was no evidence of any such removal.

He next contended that there was no evidence that the spot or place from which the coral is alleged to have been removed is one coming within a prohibition made under section 5.

With the first of his contentions I am unable to agree. The word " remove " with its variations used in the Ordinance must be given the meaning the word bears in ordinary language of " to take off or away from the place occupied ; to change the situation of; to convey to another place." The language of the Ordinance

does not lend any support to his contention that the conveying 1928 must be to a place outside a given area. The object of the Ordinance and its history also appear to be against his contention. The J. present Ordinance was enacted in place of the Ordinance No. 20 of 1865, which it repealed (section 2). That Ordinance was intituled " An Ordinance to provide against the removal of stones and other substances from certain p

Click Here to Read the rest of this document