Present: Dalton J.

ANDERSON v. SINNATAMBY.

 763-P. C. Anuradhapura, 59,700.

    Local Board-Power to make by-laws-Supervision and control of dairies-

Refusal of licence to sell milk-Ordinance No. 13 of 1898, s. 56. The power given to a Local Board under section 56 (5) of the Ordinance No. 13 of 1898 to make by-laws for the supervision and control of dairies enables such authority to refuse a licence to sell milk, on failure of the applicant thereof to comply with the regulations, governing the issue of such licence.

APPEAL by the Solicitor-General from an acquittal by the Police Magistrate of Anuradhapura.

The Inspector of the Local Board of Anuradhapura charged the accused with keeping a dairy without an annual licence from the Chairman of the Local Board in breach of a by-law framed by the Board. The by-law, for as it was material to the present case, is as follows :-" No person shall, within the limits of the Local Board, keep any dairy without an annual licence from the Chairman, Local Board, which licence the Chairman is hereby empowered to refuse to any person failing to comply with any of the following rules or any existing Local Board rules providing for the regulation and control of the places aforesaid . .

The learned Police Magistrate held, that the by-law was ultra vires of the Ordinance, and discharged the accused.

Mervyn Fonseka, C.C., for Solicitor-General, appellant.

Joseph, for respondent.

February 10, 1926. DALTON J.-

This appeal raises a question as to the validity of certain by-laws made on August 5,1922, by the Local Board of Anuradhapura under the provisions of section 56 of Ordinance No. 13 of 1898 (Local Boards Ordinance), as amended by Ordinance No. 27 of 1916.

The Inspector of the Local Board lodged a complaint against S. Sinnatamby of Anuradhapura for keeping a dairy without an annual licence from the Chairman of the Local Board in breach of by-law 1 set out below. The Magistrate held, that the by-law was ultra vires of the Ordinance, and discharged the defendant. From that decision the Solicitor-General appeals.

The by-law in question in its material parts, is as follows:-

(1) " No person shall, within the limits of the Local Board, keep any .... dairy without an annual licence from the Chairman, Local Board, which licence the Chairman is hereby empowered to

refuse to any person failing to comply with any of the following rules or any existing Local Board rule providing for the regulation and control of the places aforesaid .... Such licence shall further be subject to such fees as the Local Board shall from time to time determine with the sanction of the Governor in Council."

The by-laws purport to be made under the powers given by section 56 of the Local Boards Ordinance, section 56 (5) providing for the making of by-laws is as follows:-" (5) .... and for supervision and control of private markets .... dairies

Section 11 of" the Interpretation Ordinance enacts certain general provisions with respect to powers given to any authority to make rules. By sub-section (1) (d) of that section it is provided that power to make rules for regulation, supervision, protection, or control shall include power to make rules-

(1) For the issue of licences for the purpose of such regulation, supervision, protection, or control; .and

(3) For the refusal of licences in cases of non-compliance with the provisions of any rule so made.

This sub-section (1) (d) was enacted in 1916 as a result, so Counsel states, of the decision in Perera v. Fernando where Pereira J. and De Sampayo A.J., Wood Renton C.J. dissenting, held, that it is ultra vires of a Sanitary Board constituted under the Small Towns Sanitary Ordinance, 1892, to make a regulation under a section of that Ordinance requiring vendors of fish at places other than a public market established by the Board to take out licences for the sale of fish. This case arose, be it