1959  Present : Basnayake, C.J., and. Pulle, J.

MODERA PATUWATA CO-OPERATIVE FISHING SOCIETY LTD.,


Appellant, and GUNAWARDENA, Respondent

S. C. 516-D. C. Galle, 1299/X

    Fishing-Right to fish in the sea-Enforceability-Regulations under Game Protection Ordinance, 1909-Regulation 3-fisheries Ordinance, No. 24 of 1940, s. 28  Several remedies ,Right to elect.

Where there is an existing liability at common law and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law, both the common law remedy and the statutory remedy are available to a person at his election.

Accordingly, the right to fish in the sea which exists under the common law can be enforced by way of ordinary action although a specific remedy is provided by the Regulations made under the repealed Game Protection Ordinance, 1909, which are kept alive by section 28 of the Fisheries Ordinance No. 24 of 1940.

APPEAL from a judgment of the District Court, Galle.

H. W. Jayewardene, Q.C., with G. P. J. Kurukulasuriya and N. R. M. Daluwatte, for Defendant-Appellant.

G. E. Chitty, Q.C., with C. N. Gunawardena and Hanan Ismail, for Plaintiff-Respondent.

Cur. adv. vult.

May 29, 1959. BASNAYAKE, C.J.-

This action relates to the plaintiff's right to fish in the portion of the sea known as Modera Patuwata Waraya by the coast of Dodanduwa in the Galle Revenue District. The defendant is a Co-operative Society known as the Modera Patuwata Co-operative Fishing Society Ltd. The plaintiff is a fisherman who has been fishing in the Modera Patuwata Waraya for thirty-two years. At one time he had seven boats and used ma-del fishing nets, but at the material time he had only two fishing boats. His ancestors had fished in the same waraya before him. Till the defendant Society was formed in 1950 the plaintiff was the sole fisherman in the Modera Waraya. The ma-del fishing season begins on 1st September and ends on 31st May. The sea is too rough for ma-del fishing in the intervening period. Regulations made under the repealed Game Protection Ordinance, 1909 (Guzette No. 7,866 of 3rd July 1931, p. 1179), which are kept alive by section 28 of the fisheries Ordinance, No. 24 of 1940, provide for the regulation of fishing in the area covered by the territorial waters adjoining the Galle Revenue District. The material regulations read:

"1. The ma-del net fishing season begins on September 1 and ends on May 31 each year.

"2. All ma-del, baru-del, visi-del nets and youth within a Patabendi Arachchi's jurisdiction shall be registered on application to the Government Agent in a book to be kept for the purpose by such Patabendi Arachchi. A tab bearing the registration number shall be attached to each ma-dela, baru-dela, or youth in such position as may be most convenient. All ma-del, barn-del, and youth for use in a particular boat shall bear the same registration number. The particulars to be registered in regard to such nets are the registration number and the names of the owners; in the case of a ma-dela the length of the net shall also be registered. The Government Agent shall have power, for special reasons to be given by the applicant, to register such ma-del nets after September 15.

"3. In case of any dispute as regards the description and number of the nets to be registered the parties entitled to register them, or the boundaries of the warayas or ports the decision of the Government Agent shall be final.

"4. The Government Agent shall have power to limit the number of ma-del, barn-del, visi-del nets or youth to be used in each waraya or port.

"5. Registered ma-del, baru-del, visi-del, or youth shall be used in the waraya for fishing by turns in rotation calculated from October 1 in the order of the registration numbers (of which order each owner should keep himself informed). Th