043-NLR-NLR-V-62-MODERA-PATUWATA-CO-OPERATIVE-FISHING-SOCIETY-LTD-Appellant-and-GUNAWARDENA-Re.pdf
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Mod&ra Paluwata Co-operative Fishing Society Ltd. V- Gunawardena
Present : Basnayake, C.J., and Pulle, J.MODERA PATUWATA CO-OPERATIVE FISHING SOCIETY DTD.,Appellant, and GUN AW ARDEN A, Respondent
S. G. 516—D. C.lGalle, 1299
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 affir-med 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 remedyand the statutory remedy are available to a person at his election.
Accordingly, the right to fish in the sea which exists under the common lawcan be enforced by way of ordinary action although a specific remedy is provided,by the Regulations made under-the repealed Game Protection Ordinance, 1909,which are kept alive by section 28 of the Fisheries Ordinance No. 24 of 1940.
A
•Yi.PPEAT, from a judgment of the District Court, Galle.
W. J ay evoardene, Q.C., with G. P. J. Kurukvlasuriya and N. R. M,Daluwatte, for Defendant-Appellant.
E. Chitty, Q.C., with G. N. Gunawardena, and Hanan Ismail, forPlaintiff-Respondent.
Cur. adv. vuU_
1 (1953) 54 N. L. R. 457.
BAS??AYAKE, C.J.—Modern Palviwala Co-operative Fishing
Society JLld. v. Gurutvardena
189
May 29, 1959. Basuayake, C.J.—
This action relates to the plaintiff’s right to fish in the portion of thesea known as Modem Patuwata Waraya by the coast of Dodanduwa inthe Galle Revenue District. The defendant is a Co-operative Societyknown as the Modera Patuwata Co-operative Pishing Society Ltd.The plaintiff is a fisherman who has been fishing in the Modera PatuwataWaraya for thirty-two years. At one time he had seven boats andused ma-del fishing nets, but at the material time he had only two fishingboats. His ancestors had fished in the same waraya before him. Tillthe defendant Society was formed in 1950 the plaintiff was the solefisherman in the Modera Waraya. The ma-del fishing season begins on1st September and ends on 31st May. The sea is too rough for ma-delfishing in the intervening period. Regulations made under the repealedGame Protection Ordinance, 1909 (Gazette. No. 7,860 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 fisliing in the area coveredby the territorial waters adjoining the Galle Revenue District. Thematerial regulations read ;
" 1. The ma-del net fishing season begins on September 1 and endson May 31 each year.
“ 2. All ma-del, baru-del, visi-del nets and yoth within a PatabendiAraehchi’s jurisdiction shall be registered on application to the Govern-ment Agent in a book to be kept for the purpose by such PatabendiArachchi. A tab bearing the registration number shall be attachedto each ma-dela, baru-dela, or yotha in such position as may be mostconvenient. All ma-del, baru-del, and yoth for use in a particularboat shall bear the same registration number. The particulars to beregistered in regard to such nets are the registration number and thenames of the owners ; in the case of a ma-dela the length of the netshall also be registered. The Government Agent shall have power,for special reasons to be given by the applicant, to register such ma-delnets after September 15.
"3. In case of any dispute as regards the description and numberof the nets to be registered the parties entitled to register them, or theboundaries of the warayas or ports the decision of the GovernmentAgent shall be final.
“ 4. The Government Agent shall have power to limit the numberof ma-del, baru-del, visi-del nets or yoth to be used in each waraya orport.
“ 5. Registered ma-del, baru-del, visi-del, or yoth shall be usedin the waraya for fishing by turns in rotation calculated from October1 in the order of the registration numbers (of which order each ownershould keep himself informed). The turn of each group of ma-del andbaru-del bearing the same registration number shall begin at sunriseand terminate at sunrise of the following day.”
lOOBASNAYAKE, C.J.—Modera Patu-wata, Co-operative Fishing
Society Ltd. v. Qnnawardena
It would appear that the registration of nets in Modera Waraya wasdiscontinued after 1938 and re-started in 1950 when the Co-operativeFishing Society was formed. It may be that the authorities did notconsider registration necessary so long as the plaintiff was the sole fisher-man in the waraya.
In 1950 two boats of the plaintifF were registered and these boats wereassigned the numbers 1 and 2. Two boats of the defendant numbered3 and 4 were also registered. Under Regulation 5 the plaintiff andthe defer dant were given alternate days for fishing in the waraya. Theadvent of a rival to the field which the plaintiff monopolised seems tohave resulted in unpleasantness between the plaintiff and the Presidentof the Co-operative Society, especially as some of the plaintiff’s employeeswent over to the Co-operative Society. The 1950 fishing season whichbegan in October 1950 and ended in April 1951 passed off without anyuntoward happenings. In September 1951 an attempt was made tobring the plaintiff within the fold of the Co-operative Society. Withthat end in view a meeting presided over by the Director of Fisheries washeld at Dodanduwa on 26th September 1951. But the meeting failedto achieve its purpose. The President of the Society claimed that theplaintiff having agreed to join the Society backed out of it later, whilethe plaintiff maintained that he never agreed to become a member ofthe Society. On account of the uncertainty created by this conflict,the Patabendi Arachchi did not serve on the plaintiff and the defendantthe list of their respective fishing days before 1st October 1951 as he shouldhave done.
By 21st October it became clear that the plaintiff would not jointhe Co-operative Society. The Patabendi Arachchi therefore handed on22nd October the list of fishing days of the Co-operative Society for the1951 season to its President. He refused to accept it. The days of themonth bearing odd numbers were assigned to the plaintiff and the daysof the month bearing even numbers to the defendant. The defendantdefied the allocation of turns for fishing and fished on the days allottedto the plaintiff as well. This led to friction between the defendant andthe plaintiff. On 31st October 1951 there was an open clash betweenthe parties in which a number of persons were seriously injured on bothsides. The plaintiff was charged along with others of offences involvingviolence to person and eventually convicted of attempted murder andsentenced to undergo five years’ rigorous imprisonment. Thereafterfishing in the waraya was suspended for a number of days and the warayawas guarded by the Police to avoid further clashes. There is a conflictof evidence as to the exact period of suspension of fishing. The Inspectorof Police states that fishing 'was suspended from 31st October to 21stNovember. The Inspector of Fisheries who stated in examination-in-chief that from 23rd October to 16th November the defendant fishedin the waraya to the exclusion of the plaintiff, when cross-examinedsaid that he was unable to state definitely whether from 31st October to
BASyAYAKE, C.J".—M oiler a Fatnwala Co-operative Fishing
Society Ltd. v. Gnnawardena
191
10th November there was fishing in the waraya. Even the PatabendiArachchi is unable to say whether any fishing was done in the warayabetween 31st October and 12th November. The plaintiff himself isunable to throw any light on the matter as he was taken into Police cus-tody on 31st October and later remanded to the custody of the Eiscal fromwhich he was not released till 15th November.
The learned Judge has held that the defendant fished on the daysallotted to the plaintiff during the period commencing on 23rd October1951 and ending on 10th November 1951, but I am unable to find anysatisfactory evidence in support of his finding that fishing was carriedon by the defendant between 31st October and 10th November or that thedefendant prevented the plaintiff from exercising his right's during thatentire period.
It is not clear on what basis the learned Judge has awarded the plaintiffdamages in a sum of Rs. 3,500. Even assuming that the defendantfished on the days allotted to the plaintiff between 23rd October and10th November, the number of fishing days of the plaintiff would be tenand the amount of damages Rs. 1,500 on the plaintiff’s own assessmentof net profits of Rs. 150 per day. But it is not established that thedefendant fished between 31st October and 10th November. ThePresident of the defendant Society^ admits that be fished on the datesallotted to the plaintiff from 23rd to 31st October 1951. Therefore it isonly the period from 23rd October to 31st October 1951 that can be takeninto account for the assessment of damages. Id this period the plaintiffhad five fishing days. Giving him credit for 10th November as well,on which day according to Waduge Simon’s statement (D5) to the Pa-tabendi Arachchi the defendant fished, the total number of days onwhich the defendant usurped the plaintiff’s right would be six. Themaximum he can obtain as damages is therefore Rs. 900.
Anyone is free to fish in the open sea. The right is subject to regulationby the State within its territorial waters. This right is also subject toregulation by custom (Van Rrerla <£- others v. Jacobs cfc others1). Wherethe right is regulated anyone is free to exercise his right subject to theregulations. It is even granted in our common law that where a personhas fished alone for a long time in a backwater of the sea-he can preventanyone else from enjoying the same right (Voet, Bk. XLJ, Tit. I, s.5).Such a right of exclusive fishing is recognised by the Law of Englandas well (Hall—Rights of the Crown in the Sea Shore, p.4=6).
Learned counsel for the appellant also contended that the specificremedy provided in Regulation 3 barred the plaintiff’s right of action.It is a well established principle of law that where a statute createsnew rights and provides a specific remedy or appoints a specific tribunalfor its enforcement, a party seeking to enforce the right must resortto the prescribed remedy or the prescribed tribunal and to no other. But
1 (1921) A. D. 330.
192
~RA SNAYA TCn, C.J.—Modera Patuwata Go-operative Fishing
Society Ltd. v. G/unawardena
tlie instant case does not fall within the ambit of that principle. Theplaintiff is seeking to enforce his rights not under the regulations but underthe common law. It is equally well established that where there is anexisting liability at common law and that liability is affirmed by a statutewhich gives a special and peculiar form of remedy different from the re-medy which existed at common law, both the common law remedy and thestatutory remedy are available to a person at his election. Under ourlaw everyone has the right of access to the established courts of law forrelief against the infringement of his rights and to no one will the courtsdeny that right if their powers are invoked in appropriate proceedings.Even if it be conceded that such a right can be taken away by an enactmentof a Sovereign Legislature there is no doubt that a subordinate law-making authority cannot do so.
The appeal is dismissed subject to the substitution of the sum of Rs. 900for the sum of Rs. 3,500 awarded as damages.
Even though the appellant has succeeded in obtaining a substantialreduction of the damages awarded against him as the respondent’s claimfor damages has not been properly presented, we order the appellant topay the costs of appeal because throughout these proceedings he deniedthe plaintiff's right to fish in these waters.
Rums, J.—I agree.
Appeal mainly dismissed.