Inspector Joseph V. Sandanam Meenatchy

1926 Present: Jayewardene A. J.

INSPECTOR JOSEPH v SANDANAM MEENATCHY.

480-V. C. Trincomalee, 6,95l

Local Boards Ordinance, No. 13 of 1898-By-laws enacted by the Legislature-Ultra vires.-Sections 56 (5) and 58 and Schedule D.

Where by-laws are enacted by the Legislature, as a part of a Ordinance, their legality cannot be canvassed in the Courts.

AN appeal from an acquittal. The accused was charged with having exposed pork for sale, outside a public market, without a licence, in breach of by-law No. 2 framed under section 56 (5) of the Local Boards Ordinance. The Magistrate, being of opinion that the by-law in question was ultra vires, acquitted the accused.

Mervyn Fonseka, C.C., for complainant, appellant. t

October 8, 1926. JAYEWARDENE A. J.-

In this case the complainant appeals with the sanction of the Solicitor-General against the acquittal of the accused. The accused was charged with publicly exposing for sale pig's flesh or pork in Divisions Nos. 1 and 5 outside the public market at Trineo-malee without a licence granted by the Local Board in breach of by-law No. 2 framed under section 56 (5), Chapter IV., Schedule D of the Local Boards Ordinance, No. 13 of 1898, an offence punishable under section 107 of the Ordinance.

The learned Magistrate held that the by-law in question was ultra vires and acquitted the accused. In doing so, he purported to follow the decisions of this Court in Perera v. Fernando 1 and Sanitary Inspector v. Haramanis.2

The complainant appeals and contends that the by-law is not ultra vires and that the decision relied on in the Magistrate cannot govern the construction of by-laws contained in Schedule 1) of the Local Boards Ordinance, 1898. The by-law is as follows: -

" After any such public market shall have been established and opened, no person shall without a licence granted by the Board, publicly expose for sale any meat, poultry, fresh fish, fresh fruit, or vegetables in any place within the limits of the board other than the public market; and it shall be lawful for the secretary or an inspector of the

1 (1914) 17 N. L. R. 494.  

2 (1917) 19 N. L. R. 339.

Board to seize any such meat, poultry, fresh fish, fresh fruit, and vegetables exposed or hawked about for sale contrary to the provisions of this by-law, and to remove-the same to the office of the Board to be disposed of as may be ordered by Chairman or the Magistrate."

The by-laws in Schedule D of the Ordinance have been enacted by the Legislature as a part of the Ordinance, and the question arises whether these by-laws can be treated and tested in the same way as by-laws made by a Board or Council vested with power to make-by-laws for certain specific purposes.

The by-laws in Schedule D must be treated as an integral part of the Ordinance and as having the same force and effect as the main provisions of the Ordinance.

The by-law in question is No. 2 of Chapter IV. of the by-laws in Schedule D and is given as a by-law framed under section 56 (5) of the Ordinance and relating to " the establishment and regulation-of public markets." Under section 56 "it is lawful for every Board from time to time to make such by-laws not inconsistent with the provisions of this Ordinance as it may deem expedient for any of the following purposes." And the fifth purpose is-

" For the establishment and regulation of its own markets and levy of rents and fees therein, and for supervision and control of private markets, bakeries, eating houses, tea arid coffee boutiques, butchers' stalls, fish stalls, cattlegalas, dairies, laundries, washing places, common lodging houses, and latrines."

By section 57 every Local Board is given the power to alter, amend, or repeal by-laws and substitute others not inconsistent with the provisions of the Ordinance, but no by-law or alteration, &c.. shall have effect until it is confirmed by the Governor, with the ad

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