1950 Present: Pulle J.

PIYASENA, Appellant, and NADARAJAH (Inspector of Labour),

Respondent

S. C. 1,268-M. C. Colombo South, 21,815

Shops Ordinance, No. 66 of 1938-Meaning of "shop"-Meaning of "premises"- Section 31 (1).

The accused was carrying on a retail business in textiles in a portion of£ the entrance to a hotel which bore Municipal assessment No. 191. Having regard to the place where he was carrying on business it was obvious that he was an occupant of a part of building No. 191.

Held, that the place where the accused was carrying on business fell within the meaning of the word " shop " as defined in section 31 (1) of the Shops , Ordinance.

APPEAL from a judgment of the Magistrate's Court, Colombo South.

 H. W. Jayewardene, for the accused appellant.

Sam. Wijesinha, Crown Counsel, for the Attorney-General.

Cur. adv. vult

 November 28, 1950. PULLE J.-

The appeal in this case arises from a prosecution under the Shops Ordinance, No. 66 of 1938, and the point to be determined is whether the place where admittedly the appellant was carrying on a retail business fell within the meaning of the word " shop " as defined in section

31 (1) of the Ordinance. The definition reads, leaving out what is immaterial.

"Shop ' means any premises in which any retail or wholesale trade or business is carried on and. includes any premises in which the business of a barber or hairdresser or the sale of articles of food or drink is carried on."

There is a building which is described as a hotel and bearing Municipal assessment No. 191, Galle Road, Wellawatte. A portion of the entrance to this building is blocked by a partition and in front of it, on the floor of ,the entrance, is a counter which is flanked by the two doors of the entrance which are left permanently open. The appellant who carried on a business in textiles transacted his business from the area between the counter and the partition. There was a canvas awning over the counter and the goods were displayed on the counter and the space between it and the awning. Directly above the awning were the concrete eaves of the hotel. At night the place was illuminated by electric lights from current taken from premises No. 191.

Haying regard to the place where the appellant was carrying on business it is obvious that he was an occupant of a part of building No. 191. Learned Counsel argues that that is not sufficient to constitute the place a shop as defined in the Ordinance. He argues that to constitute a shop there must be a compact building capable of providing the salesmen with facilities for taking meals and with sanitary conveniences and also capable of being closed and opened in order to conform to closing orders made under section 15 (1). I do not think that the argument based on the absence of facilities in any way assists the appellant. In regard to compulsory providing of facilities, sections like 10, 11 and 14 cannot be interpreted to mean that if these facilities-do not exist a retail or wholesale place of business cannot be a shop. On the contrary they envisage a place of business which is a shop within the meaning of the Ordinance, but which may not have those facilities-and thus rendering the occupier guilty of offences punishable under section 23 (1). As I read sections 15 and 18 a physical closing of the place of business is not essential to compliance therewith. What is prohibited is the keeping of a shop open in breach of the prescribed hours ". for the serving of customers."

On behalf of the appellant reliance was placed on the cases of Metropolitan Water Board v. Pain 1[(1906) 96 L. T. R. 63.] and Illford Corporation v. Mallinson 2[(1923) 147 L. T. R. 37.]. In the former case the word " premises " had to be interpreted in the context of section 79 of the East London Waterworks Act, 1863. The question for decision in the first case was whether a bare land on which the owner intended to