Jansen V. Sanitary Inspector

1954 Present: Gratiaen J.

T. O. D. JANSEN, Appellant, and SANITARY INSPECTOR,
DEHIWELA-MT. LAVINIA U. C, Respondent

S. C. 435-M. C. Colombo South, 43,471

Dangerous or offensive trade-Requirement of licence-By-laws-Local Government Ordinance (Cap. 195), ss. 164, 168 (10) (k)-Urban Councils Ordinance, No. 61 of 1939, s. 248.

By-law 1 made by an Urban Council under section 168 (10) (k) of the Local Government Ordinance declared the manufacture of tiles or bricks to be included within the category of " dangerous or offensive trades ". By-law 2 prohibited the carrying on of a " dangerous or offensive trade without an annual licence which the Chairman shall issue to all persons complying with the conditions provided for the issue of such licences ". There were, however, no by-laws prescribing the conditions applicable to the manufacture of tiles.

Held, that the requirement of a licence under by-law 2 could not be said to apply to the trade of manufacturing tiles unless and until " the conditions provided for the issue of annual licences " for that particular trade were duly prescribed.

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

N. E. Weerasooria, Q.C., with R. A. Kannangara, for the accused appellant.

H. W. Jayewardene, with P. Ranasinghe, for the complainant respondent

Cur. adv. vult.

March 2, 1954. GRATIAEN J.-

This is an appeal against a conviction for an alleged contravention of a by-law made by a local authority. The appellant was charged with having carried on a " dangerous and offensive trade " (to wit, the manufacture of tiles) on 17th August 1952 within the limits of the Dehiwela-Mt. Lavinia Urban Council " without an annual licence issued by the Chairman of the Council ".

The relevant by-laws were made by the Council in 1929 under sections 164 and 168 of the Local Government Ordinance (Cap. 195) and are still in operation by virtue of section 248 of the Urban Councils Ordinance No. 61 of 1939. The relevant provisions are to the following effect:-

(a) by-law 1 declared the " manufacture of tiles or bricks " to be included within the category of " offensive or dangerous trades ";

(b) by-law 2 prohibited inter alia the carrying on within the limits of the Council of " any dangerous or offensive trade" without an annual licence from the Chairman, " which licence the Chairman shall issue to all persons complying with the conditions provided for the issue of such licences ".

The appellant had, during the year 1950, constructed a cement tile factory in Dehiwela at considerable expense with the formal approval of the Chairman. In March 1951 he was also granted a permit to use Convent Lane,

Dehiwela, for the transportation of manufactured tiles by lorry from the factory site. Shortly afterwards the supply of electricity to the premises was also arranged. Since the factory was first established, the appellant has manufactured approximately 1,000 tiles a day. It is not suggested that the particular process of manufacture adopted by him is per se obnoxious or detrimental to the health of residents in the locality, but I appreciate that the council is legally empowered by section 168 (10) (k) bona fide to " deem " an activity to be " dangerous or offensive " which is not so in fact.

In October 1951 an unexpected development took place. The Chairman peremptorily, and without prior intimation, called upon the appellant " to obtain a licence " to carry on his established " trade " " within a fortnight". The appellant explained that he was not aware that a licence was required, and asked for information as to the formalities which he should comply with in order to regularise his position. On 3rd November 1951 the Chairman replied that " a licence to run a tile factory at No. 42/5, Peter's Place, Dehiwela cannot be issued, as these premises come within a residential area". There the correspondence seems to have ended, and the evide

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