SERASINGHA v. IBRAHIM SAIBO.

SERASINGHA  v.  IBRAHIM 
SAIBO.

M.C., Colombo,  8.

Public market established by Municipal Council of Colombo-By-law 14' of chap. XIX. of by-laws in schedule A to Ordinance, No. 16 of 1881- Municipal Council's Ordinance, No. 7 of 1887, s. 232-Ordinance No. 8 of 1901-Lease of public market-Right of Council to issue licenses to stall holders.

    The by-laws as to public markets contained in chapter XIX. of the by-laws in schedule A to the Ordinance No. 16 of 1881 are not consistent with the provisions of sections 226 to 232 of Ordinance No. 7 of 1887, which deal with public markets, and were not legally in force at the date of the framing of the Ordinance No. 8 of 1901.

    Therefore, a conviction under by-law 14 cannot be sustained.

    A lease of a building used as a public market, unless let subject to the provisions of chapter XVIII. of the by-laws, would vest in the lessee an estate for the time being, the due enjoyment of which would be incompatible with the use of that building as a public market; and no licenses from the Chairman of the Municipality or its Secretary for the occupation of its stalls is necessary during the existence of the lease.

    Therefore, a conviction under section 232 of the Ordinance No. 7 of 1887 is bad.

    THE accused was till the end of December, 1902, a stall-holder in the public market at Slave Island established by the Municipal Council of Colombo. He occupied two stalls under monthly licenses issued to him. When the Council leased the market for the year 1903, he was given notice to quit on or before the 1st January, 1903, but he continued to hold over and sell mutton. Thereupon he was charged with a breach of the by-law 14 of chapter XIX. of the by-laws in schedule A to the Ordinance No. 16 of 1881, and also with selling mutton in breach of section 232 of the Ordinance No. 7 of 1887.

    The Municipal Magistrate (Mr. E. F. Ondatje) acquitted the accused on 4th February, 1903. As to the first alleged offence, he held that by leasing the market the Council had divested itself of the right to issue licenses, and could therefore require the accused to hold a license; that the leasing of markets would create a monopoly, and all by-laws which would restrain trade were ultra vires; and that by-law 14, chapter XIX. which empowers the Council to deprive a person of the right to carry on his trade in a public market, was unreasonable and therefore ultra vires. As regards the second offence, he held that section 232 of the Ordinance No. 7 of 1887, was a dead letter, and not applicable to the

accused; and that as it was wrong to refuse to allow the accused to continue in occupation, the accused was not guilty under section 232.

    The complainant (a Municipal Inspector) appealed, with the sanction of the Attorney-General.

    Van Langenberg, for appellant.

    Dornhorst, K.C., and Walter Pereira, for respondent.

Cur. adv. vult.

19th August, 1903. LAYARD, C.J.-

    The accused was up to the end of December, 1902, a stall holder in the public market at Slave Island established by the Municipal Council, and occupied two stalls therein. He was charged in this case with breach of the by-law 14 of chapter 19 of the by-laws in schedule A to the Ordinance No. 16 of 1881, and also with the offence of selling mutton in breach of section 234 of the Ordinance No. 7 of 1887. The Magistrate has acquitted the accused on the first charge on the grounds (1) that by leasing the market the Council had divested itself of the right to issue licenses and could not therefore require the accused to take out a license; (2) that the leasing of markets would create a monopoly and all by-laws which tend to restrain trade are ultra vires; (3) that the by-law which allows the Council to deprive a person of the right to carry on his trade in a public market is unreasonable, and therefore ultra vires. And as to the second offenc

Click Here to Read the rest of this document