[FULL BENCH.]

Present : Ennis and De Sampayo JJ. and Loos A.J.

THOMASZ v. SAIBO.

113-P. C. Colombo, 27,041.

Food controls-Defence of the Colony Regulations, 1919-Order fixing the price of flour-Ultra vires.

The order of the Food Controller, fixing the price at which floor, Ac, should be sold, made under Regulation 1 of the Defence of the Colony Regulations, 1919, is not ultra vires.

THE facts appear from the judgment.

A. St. V. Jayawardene (with him Tisseveeresinghe), for the accused, appellant.-The regulation made by the Food Controller {Gazette of July 1, 1919) is ultra vires. The Regulation 1 of the Defence of the Colony Regulations made by the Governor (Gazette of May, 1919), from which the Food Controller purports to derive his power to make the regulation in question, is in its turn ultra vires. For the power to fix the maximum price for- which articles of food may be sold by retail we have to look to clause 3 (10) of the Order in Council of October 26, 1896, and to that alone. Under that clause the Governor alone was empowered to make such a regulation, and that by a Proclamation. No such Proclamation has been made. It cannot be said that the Governor had delegated his power under clause 4 of the Order in Council of March 21, 1916, to the Food Controller. For he is not of the class of naval or military authorities, to whom alone under the clause the Governor can delegate any of his powers. The Food Controller has no legal status. His office has not been created by any Ordinance or Order in Council. In England it was thought necessary to pass an Act of Parliament to create the office of Food Controller. See 6 and 7 Geo. V., c. 68, s. 3. Similar legal sanction is necessary in Ceylon before the Food Controller can exercise any of his powers.

It was argued before the Police Magistrate that, apart from clause 3 (10), the Governor has no power under the Amending Order in Council of March 21, 1916, to make regulations, and by such regulations to make provisions with regard to matters coming within, inter alia, " Trading." It is said that the Defence of the Colony Regulations of May, 1919, made by the Governor are regulations under the Amending Order in Council of 1916, and that by those regulations he has made provision for the appointment of a Food

Controller and in respect of his powers and duties, one of which was fix maximum price of food, and that, therefore, the Defence of the Colony Regulations and the regulation of the Food Controller are infra vires. This will be a sound argument if the same Amending Order in Council did not specifically direct that the Principal Order in Council, including 3 (10), should be in force, and that the Amending Order should be construed and read as one with the Principal Order. Then, there are two apparently inconsistent Orders. The inconsistency is only apparent. They can be reconciled with each other if a reasonable construction can be placed on each of those Orders according to accepted canons of legal interpretation. The later powers given to the Governor are general, and will not necessarily affect or do away, with the special power conferred on him by Order 3 (10). " When in the same or subsequent Statute a particular enactment is followed by a general enactment, and the latter taken in its most comprehensive sense would over-rule the former, the particular enactment is operative, and the general enactment is taken to affect only those other parts of the particular enactment to which it may properly apply. " The general enactment affects all matters in respect of " Trading " other than fixing maximum price of any article of food. The other principle that penal enactments should be strictly construed and in favour of the accused applies. The later Order in Council enhances the punishment, and in cases of doubt effect should be given to the earlier enactment imposing a lesser punishment.

Gamin, S.-G. (wit