Senanayaka V. Seramaliar

Present : Mr. Justice Grenier.

SENANAYAKA v. SERAMALIAR.

M. C, Kandy, 14,273.

Municipal Council-Delegation of authority by Chairman to Secretary to sanction prosecution-Validity-Ordinance No. 7 of 1887, ss. 290 and 306.

    The Secretary of a Municipal Council may sanction prosecutions-for breaches of by-laws made under the Municipal Councils Ordinance, 1887 (Ordinance No. 7 of 1887), if so authorized by the Chairman under section 290 of the Municipal Councils Ordinance, 1887 (No. 7 of 1887). T HE following complaint was filed against the accused : -

    " That the accused did, on or about the 12th day of March, 1907, at Kandy, within the jurisdiction of this Court, occupy ground beyond the limits of space No. 9 rented by him by leaving coconuts and vegetables there, in breach of clause 72, chapter VI., of the by-laws of the Municipal Council of Kandy, and thereby committed an offence punishable under section No. 306 of the said by-laws.

" D. P. SENANAYAKA,
" Complainant.

    " I authorize this prosecution.

	" JAS. JAYATILEKE,
	" Secretary, Municipal Council of Kandy,"
	"for Chairman.

    Objection was taken that the- plaint was bad as it was signed by the Secretary and not by the Chairman. The Magistrate (T. B. Russell, Esq.), over-ruled the objection on the authority of section 290 of Ordinance No. 7 of 1887, and convicted the accused. The accused appealed.

    G. Koch, for appellant.-The prosecution is bad for want of proper-sanction. Section 306 of the by-laws provides that no complaint shall be preferred in any Court for breach of any by-law except with the previous sanction of the Chairman. This prosecution has been sanctioned by the Secretary and not the Chairman. The Chairman-has no power to delegate to any other person the duty of sanctioning prosecutions laid on him by section 306 of the by-laws. The-maxim delegata potestas non potest delegari applies. In Hobbis v. The London County Council (1) it was held that " the question whether a specific legal duty may be performed by means of an agent or deputy depends on the nature of the duty. A duty which is merely ministerial may be delegated, but not a duty the performance of which involves discretion or skill."

Foot Notes:

(1) (1897) 75 Law Times, 688; Encyclopedia of the Laws of England, vol. X. v, 339.

    The duty of sanctioning prosecutions is of the latter class, as it involves the exercise of discretion, and is not merely a ministerial act of signing. Section 290 of the Municipal Ordinance, No. 7 of 1887, does not authorize the delegation of any but ministerial acts.

    Assuming, for the sake of argument, that the Chairman can delegate, the authority to Mr. Jayatileke filed in this case does not delegate the duty of sanctioning prosecutions to him, it only contemplates the signing of papers. There is no need to consider it bad grammar, as the Police Magistrate does, because it can be intelligently read as it is, and it is not to be supposed that an intelligent and experienced gentleman like Mr. Lewis, the Chairman, would have signed a document open to the charge of being bad grammar. (GRENIER J.-Why do you appeal ? The punishment is nominal. only a fine of Rs. 5.) This offence is merely statutory, not a malum in se, and the appellant is entitled to demand that the law be strictly complied with before he can be punished for a statutory offence.

    Bawa, for respondent.-I do not grant that the Chairman has not sanctioned this prosecution. He may have sanctioned it, and directed the Secretary to sign the plaint. Section 290 of Ordinance No. 7 of 1887 clearly gives the Chairman the right of delegating all duties, acts, &c, and this is clearly an act. The authority produced is bad grammar; it follows the wording of section 290, and includes the duty of sanctioning prosecutions.

    Koch, in reply.-The authority is dated 1st September, 1906. The by-laws

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