Gunasekera V. Municipal Revenue Inspector

1951 Present: Gratiaen J.

GUNASEKERA, Appellant, and MUNICIPAL REVENUE
INSPECTOR, Respondent

S. C. 889-M. M. C. Colombo, 51,668
 

Municipal Councils Ordinance, No. 29 of 1947-" Offensive and dangerous trades "- By-laws-In what circumstances ultra vires-Sections 148, 267, 268.

By Section 148 (1) of the Municipal Councils Ordinance " No place shall be used within any Municipality for any of the following purposes, namely, for boiling offal or blood, or as a soap-house, dyeing-house, ... or for any other trade or business which the Council may, by means of by-laws, declare to be an offensive or dangerous trade or business for the purposes of this Section, except under a licence from the Council . . ."

The accused, an auctioneer, was charged with " storing furniture " in alleged contravention of a by-law which purported to declare the business of " manufacturing or storing of furniture " to be an " offensive trade or business ".

Held, (i) that the charge framed against the accused was defective because it nowhere alleged that he was carrying on the business of " storing furniture ".

(ii) that, in any event, the term " business of storing furniture " introduced the idea of an establishment maintained for keeping in deposit, for an agreed remuneration, a customer's furniture in a store or warehouse for temporary safe-keeping.

Obiter : A by-law purporting to have been passed by a local authority and approved and confirmed under Section 268 of the Municipal Councils Ordinance can, nevertheless, be held by a Court to be ultra vires if it was passed in excess of the authority of the local authority.

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

A. C. Nadarajah, for the accused appellant.

Eric LaBrooy, for the complainant respondent.

Cur. adv. vult.

December 14, 1951. GRATIAEN J.-

The appellant carries on the business of a licensed auctioneer at premises No. 277, Union Place, within the limits of the Municipality of Colombo. It is apparently his practice to use a part of his premises for displaying the furniture of his customers pending sale by public auction on Thursday and, Saturday of every week. The lots which are purchased are removed by the successful bidders from the premises, the appellant retaining a part of the purchase price by way of his auctioneer's commission. No additional charge is made for displaying any article of furniture on the premises until it is eventually sold.

On 6th June, 1951, the appellant was charged by the local authorities with the commission of an offence punishable under Section 148 (3) of the Municipal Councils Ordinance, No. 29 of 1947. The charge was framed in the following terms :-

" that you did, within the jurisdiction of this Court at No. 277, Union Place, on 20th December, 1950, without a licence from the Colombo Municipal Council use premises No. 277, Union Place, Colombo for storing furniture which has been declared an offensive trade or business by By-Laws published in Government Gazette No. 10,157 of September 29, 1950, in contravention of Section 148 (1) of the Municipal Councils Ordinance, No. 29 of 1947 and thereby committed an offence punishable under Section 148 (3) of the said Ordinance. "

Section 148 of the Municipal Councils Ordinance declares as follows :-

" (1) No place shall be used within any Municipality for any of the following purposes, namely, for boiling offal or blood, or as a soap-house, dyeing-house, oil-boiling-house, tannery, brick, pottery or lime kiln, sago manufactory, gun-powder manufactory, manufactory of fireworks, or other manufactory or place of business from which either offensive or unwholesome smells arise, or for any purposes which are calculated to be dangerous to life, or as a yard or depot for hay, straw, wood, coal, cotton, bones, or inflammable oil, or for any other trade or business which the Council may, by means of by

Click Here to Read the rest of this document