055-NLR-NLR-V-23-THE-FOREST-RANGER,-CHILAW-,-v.-FERNANDO.pdf
Present: Do Sampayo J.
THE FOREST RANGER, CBTILAW, y. FERNANDO.
948—P. G. Chilaw, 11,389.
Seashore—la it land at the disposal of the Grown ?—Forest Ordinance,
No. 16 of 1907—Res communis—Sea sand—Forest produce.
The seashore is not “land at the disposal of the Crown” withinthe meaning of the term in the .Forest Ordinance, No. 16 of 1907.It is res commums, the use of which is open to the whole com-munity, though the Crown has the right of control on behalf ofthe public.
Sea sand is not “ forest produce ” within the meaning of theForest Ordinance. The term “sand” in regulations framedunder section 21 (c) of the Forest Ordinance does not refer to seasand.
"The land being vested in the Local Board, it ceased to be a‘forest’ if it was one before, and the sand is not ‘ forest produce,*and the removal of it is not a forest offence.”
rj^HE facts appear from the judgment.
R. L. Pereira, for accused, appellant.
Jansz, £7.(7., for respondent.
Our. adv. vuti.
1 [1912)14 N. L. R. 146.
R.L.R. 134,
( 213 )
December 20,1921. Db Sampayo J.—
This is a curious case, and 1 think the point of view on whichthe Police Magistrate proceeded is wholly erroneous. The com-plainant is the Forest Banger, and the accused is the proprietorof a ooconut estate adjoining the seashore at Chilaw. The chargeagainst the accused is that in the year 1919 he removed, without apermit, a certain quantity of “ forest produce,” namely, sea sand,from the seabeach at Chilaw in breach of section 21 of the ForestOrdinance, No. 16 of 1907. It is rather startling to be told that theseabeach is a forest under the jurisdiction of the Forest Department,and that sea sand is forest produce. Of course, if the law so definesthem, there is nothing more to be said, but I do not think that thelaw has done this. No doubt the Ordinadhe-defines “forest”as all land at the disposal of the Crown. But the seashore is notland at the disposal of the Crown in this sense, though the ForestBanger takes upon himself to say “ the seabeach belongs to theCrown.” It is res communis, the use of which is open to the wholecommunity, though, of course, the Crown has the right of controlon behalf of the public. Moreover, this particular seashore appearsto me to be vested in the Local Board of Chilaw—a point which Ishall deal with a little later. The delay of two years in institutingthis prosecution appears to be due to a protracted correspondencebetween the Local Board and the Assistant Government Agent withregard to the rights and powers of the Local Board in this connection.The Local Board appears to have thought that they had no right o verthis part of the seashore, and were afraid to act in this matter. Thiscorrespondence ended in the Local Board deciding not to takeaction, and banding over thb matter to the Forest Department,which, accordingly, boldly stepped in and assumed a power which Ithink it has not.
Again, “forest produce” is defined as (1) trees and leaves,Sowers and fruits, roots, timber, &c.; (2) plants not being trees,including grass creepers, &c.; (3) tusks, horns, birds9 nests, &c.;and (4) peat, surface soil, rocks, minerals, &o. It will be seen thatsea sand does not come within the definition. It was suggestedthat it came under the description of “ surface soil.” But sea sandis not soil in the ordinary acceptation of the term. Mr. Jansz,
C., for the respondent, says that a mistake has been committed,and the charge is defective in hot referring to regulation No. 2 ofchapter IX. of the regulations framed under section 21 (e) of theForest Ordinance, which authorize the Governor in Council to makeregulations, inter alia, for regulating or prohibiting th- collectionand removal of forest produce. In the schedule to these ?egulations“ sand ” is included among “ minor forest produce.” But in myview “ sand ” in that context is not the same .thing as u sea sand,”and I think the regulations contemplated “ sand ” in the earthlysoil of a real forest, and not “sea sand/’ I need not* /
1921*
The ForestSanger,Chilaw, o.Fernando
1921.
Dh 8amfayoJ.
The ForestBanger,OhUaw, v.Fernando
( 214 >
pursue this subject, as I think the conviction cannot be supportedfor other reasons.
The Police Magistrate thought that the place from which the seasand was taken was not part of the shore, but Was part of the wasteland adjoining it, and was therefore land at the disposal of theCrown, and therefore was “ forest.” In taking this view the PoliceMagistrate forgot the charge which he himself formulated, for thecharge was that the accused removed the sand from the seabeach.But it is worth while for a moment to consider his reasoning. Itappears that there is a gravelled path or road along the shore, andthe sand was removed from the land side of this path. Accordingto the Police Magistrate, the path was intended to mark the limitof the seashore. The Government may, like King Canute, set a markon the shore and tell the waves: “Thus far and no further.” But thewaves have a habit of disregarding all human barriers, and they,'in this as in the old case, dash over the path and deposit moundsof sand on the other side. It is these mounds that the accused cutaway and removed. In one point of view the accused rendered someservice in removing these useless mounds and depositing the sandin his own good land and increasing its fertility. The fact is thatthe legal way of determining the seashore is well known, and thecircumstances disclosed appear to me to show that the place inquestion is part of the seashore. But, as.I said, the charge says thatthe accused removed the sand from the seabeach, and that con-cludes the matter.
The Local Board appear on a narrow reading of the Ordinanceto have thought that they had no power over this part of the seashore,and instead of enforcing their own rules, they deputed one of theirmembers to negotiate a peace with the accused. One does notusually associate this kind of temerity with Chilaw. But thismeticulous proceeding, as might be expected, failed to producepeace, for the accused became obstinate, and refused to agree toany terms. The inexplicable hesitation of the Local Board appearsto me to be due to a mere bugbear. Section 4 of the Local BoardsOrdinance, No. 13 of 1898, empowers the Governor to bring anytown under the operation of the Ordinance and to define the limitsof such town. The prosecutor in this case himself says that thesand was removed from land within the Local Board limits. Again,he says: “ I have nothing to do with land vested in the Board.This land is not vested in the Board, although the land has beenbrought in lately within the Local Board limits.” The Secretaryof the Local Board also says that “ the spot from which the sandwas removed was brought within the Local Board limits in 1918.No vesting has yet been made in the Board.” This is a goodillustration of the danger of allowing technical terms to be used bypersons who do not understand *h©m. The expression ec vestingorder” has reference to theof section 52 of the Local
( 215 )
Boards Ordinance, which deolarea that “ all wa3te ground or land
within the town …. which have been or may be handedover to the Board with the sanction oi the Governor (and of whichhanding over a record in writing shall be made signed by the personsauthorized to hand the same over and by the Chairman of the saidBoard), shall be and the same are hereby vested in the said Board.”What the Secretary evidently meant was that, although the landwas handed over, no written record, which he calls “ vestingorder,” has yet been made of the fact. No such record or “ vestingorder ” is necessary to vest in the Board any land which is handedover; the Ordinance itself declares such land to be vested in the*Board. The written record is only evidence of the handing over asbetween the Crown and the Board, and as I ventured to explain inAndrias Appu v. Navaratnarajah,1 the provision within the bracketsin the above section is only directory. The Police Magistrate, inthe same way as the Secretary of the Board, thought that the landwas not “formally vested ” in the Board, and that, therefore, theBoard could not deal with the matter. The relevancy of this pointis that the land being vested in the Local Board, it ceased to be a“ forest,” if it was one before, and the sand is not “ forest produce,”and the removal of it is not a forest offence.
The conviction is set aside.
Set aside.
♦
1981.
Db SaupayoJ.
The ForestBanger,Chitaw, v.Fernando*