Bultjens V. Hendrick Appu

 

 

1941 Present: Keuneman J.

 

BULTJENS v. HENDRICK APPU.

 

32-M.C.Matara,32,017.

 

Betel-Sale within market area-Prohibition under Local Boards Ordinance- Prohibition conflicts with Urban Councils Ordinance, No. 61 of 1939, s. 165.

A by-law, made under section 56, sub-section (5) of the Local Boards Ordinance, No. 13 of 1898, which prohibits the sale of betel within a specified market area, is not conserved by section 248 of the Urban Councils Ordinance, No. 61 of 1939, and is invalid, if it conflicts with the provisions of section 165 of the Urban Councils Ordinance.

 

APPEAL from a conviction by the Magistrate of Matara.

 

A. H. C. de Silva, for accused, appellant.

 

S. W. Jayasuriya, for complainant, respondent.

 

Cur. adv. vult.
 

11,1941. Keuneman J.-

 

The present appellant was originally charged under by-law 16 (1) of the by laws made by the Urban Council under sections 164 and 168 of the Local Government Ordinance which enacts that " within any market area no person should sell of expose for sale any . . . . vegetables except at a public market". The offence charged was that the accused exposed for sale betel at a place other than a public market. In view however of the decision in appeal in a connected case that betel cannot be included in the term " vegetable " used in the by-law (vide Buultjens v. Samitchiappu)[118 C.L.W.23.], the plaint was amended and the appellant was charged for breach of by-law No. 1 made under the provisions of sub-section (5) of section 56 of Ordinance 13 of 1898 and published in Government Gazette No. 6,262 of September 25, 1908.

 

The by-law is as follows : -

 

No person shall, within the limits of the Local Board without a licence granted by the Board, publicly sell or expose for sale betel leaves, tobacco, arecanut or any articles of food ox drink on any public

 

ground or on any roadside, or at or near any roadway or pathway, unless the same shall be sold or exposed for sale in any private house, boutique or garden.

 

It may be noted that sub-section (5) of section 56, under which the by-law is stated to be made, gave power to the local authority to make by-laws-

 

" For the establishment and regulation of its own markets and levy of rents and fees therein, and for supervision and control of private markets . . . ."

 

The Urban Council contends that although Ordinance No. 13 of 1893 has now been repealed, the by-laws made thereunder are conserved under the Local Government Ordinance, Chapter 195, section 246 and the Urban Councils Ordinance, No. 61 of 1939, section 248. It is however to be noted that under each of the last men

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