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Present : Jayewardene A.J.MM.
JAYASURIYA v. BUPESINGHE.
494—P. 0. Avis8awellaf 7,735.
Small Towns Sanitary Ordinance, No. 18 of 1892—Quarring for cabook—
Personal use—Dangerous and offensive trades—Powers of Sanitary
A person, who quarried for cabook on his 'land for his ownuse, without a licence, cannot be convicted of the breach ofa by-law framed under section 9 b (2) (/) of Ordinance No. 18 of1892 for the regulation of dangerous or offensive trades.
The “ term " trade means a business or manufacture carried onfor profit.
The section does not enable a Sanitary Board to classify tradeswhich are neither dangerous nor offensive as such and to framerules for their control.
luare, whether the by-laws are valid. in respect of the provisionsealing with quarrying.
PPEAL by the Solicitor-General against the acquittal of theaccused who was charged with keeping a cabook quany
within the limits of a Sanitary Board town without a licence fromthe Chairman of the Board, in breach of rule 2 of chapter XULof the by-laws framed under section 9e (2) (f) of the Small TownsSanitary Ordinance, No. 18 of 1892t and punishable under section 9
(k)of the Ordinance. It appeared that the accused cut cabook onhis land for use in building a house, and not for the purpose of sale.The learned Police Magistrate acquitted the accused.
Illangakoon, C.G., for appellant.
N. JE. Weerasuriya, for accused, respondent.
October 15, 1924. Jayewardene A.J.—
In ibis case the Solicitor-General appeals against the acquittal ofthe accused who was charged with keeping a cabook quarry atpremises No. 233, Puwakpitiya, a Sanitary Board town, without alicence from the Chairman of the Board in breach of rule 2 ofchapter XIII. of the by-laws framed under section 9 » (2) (/) ofthe Small Towns Sanitary Ordinance, No. 18 of 1892, and punish-able under section 9 (k) of the same Ordinance.
The facts showed that the accused had been cutting cabookon his land for the purpose of building a house and not for thepurpose of sale. The learned Police Magistrate after hearing theli
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Jaybwab-DEOT Aj J.
evidence of the Sanitary Inspector acquitted the accused. TheSolicitor-General appeals. Now section 9 e (2) of the Ordinanceempowers Boards established under the Ordinance to frame by-laws,subject to the approval of the Governor in Executive Council,for the following, among other purposes:—44 (/) The regulation ofdangerous or offensive trades.”
Under this sub-section the following by-laws (I give only thosematerial for the purpose of this case) have been framed: —
” (1) Dangerous and offensive trades shall for the purpose ofthese rules mean and include any of the following:—
44 Storage or manufacture of artificial manure, boiling of blood oroffal, drying blood or offal, tanning, fat melting, fatextracting, soap making, soaking of coconut husks, fibredyeing, coconut oil manufacture (where machinery isemployed), manufacture or storing of fibre, storing ofhides, bones, artificial manures, or any materials for themanufacture of artificial manure, storing of Maidive fishin quantity over 5 cwt. in weight, quarrying for metal,cabook, or gravel, the manufacture of bricks and tiles, theburning of lime, the manufacture of aerated waters,storing or curing of plumbago.
” (2) No owner or occupier of any land or premises withinthe limits of any Sanitary Board or other person shall carry*on or suffer to be carried on upon such land or premisesany offensive or dangerous trade or manufacture without ;vlicence from the Chairman of the Sanitary Board, ’who isfurther empowered to refuse such licence to any personfailing to comply with any of these or other already,existing Sanitary Board rules.
“ Such licence shall be subject to such fees aS the Sanitary Boardfrom time to time may determine with the sanction ofthe Governor in Council.
44 (12) The owner or occupier of any land from which clay, earth, -stone, gravel, cabook, or other material is cut for themanufacture of bricks or tiles, or for building, or forany other purpose shall be responsible for seeing thatproper drainage is provided, and that the pits or trenchescut are afterwards filled, so that water cannot stagnate,therein.”
The learned Police Magistrate doubted whether quarrying forcabook was a 44 dangerous trade or manufacture,” but, assuming it'to be 44 dangerous ” he held it was not a 44 trade,” as the cabook wascut for the accused's own use, and it was not a manufacture ascontemplated by the rules as it was not for the purpose oftrade—reading the by-law in the spirit of the section of the Ordi-nance under which it is framed. Counsel for the accused also;
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questioned the validity of this by-law, so far as it affects quarrying,which he contended was ultra vires. I do not think it is necessaryin the present instance to discuss the larger question whether theby-laws in question are ultra vires, but I may say that I sharethe doubt of the learned Magistrate as to their validity in respect ofthe provisions dealing with quarrying.
J>ENE A. J.
In my opinion section 9 e (2) (/) empowers the Board to framerules to regulate trades which are generally considered or can beproved to be " dangerous or offensive,” but it does not enable theBoard to classify trades which are neither dangerous nor offensiveas such and to frame rules for their regulation. Further rule 2appears not to be certain and positive. It empowers the Chairmanof the Board to refuse a licence to any person who fails to comply,not only with any of the rules contained in chapter XIII., but alsowith “ other already existing Sanitary Board rules." What these” other already existing ” rules are, the by-law does not state, norwhether they have been approved by the Governor in ExecutiveCouncil and published in the Government Gazette. A by-lawso uncertain in its terms cannot be treated as valid. A by-law,to be valid, must “ contain adequate information as to what itrequires or forbids to be done, so that the persons affected may bein no doubt as to what they are required to do or abstain from doingand as to the penalty for non-compliance. ” Craies ’ “ Statute Laur,2nd ed., p. 893. Assuming that the by-laws are valid, I agree withthe Magistrate that the accused has not committed a breach of thesecond rule, and that that rule has no application to a casewhere a person quarries for cabook for his own use. The sub-section in question empowers the Board .to frame rules to regulatedangerous or offensive trades. Now the term " trade ” meansbuying and selling. It also sometimes includes any business ormanufacture carried on for profit. The word ” manufacture ”in rule 2, in my opinon, means the making or working up of anything with the object of selling it—that is, with a view to “ trade.”The rule must be read as the Magistrate says in connection with theauthority conferred on the Board to make it. If it is so read,it seems to me clear that the rule only applies to cases where cabookis quarried or manufactured for the purpose of sale or trade. Itwould not apply to persons who quarry for cabook for their ownuse and not for “ trade.” Under schedule A to the by-laws the feefor a licence to quarry for cabook is Bs. 50. This is a large sum, andI do not think such a high fee would have been imposed if thequarrying was not regarded as being for the purpose of sale. I mayhere mention that there is a special Ordinance regulating theworking of quarries within Municipal and Local Board towns—the Quarries Ordinance, No. 8 of 1889. This Ordinance dealswith quarries irrespective of whether they are worked with aview to profit or for one’s owu use. No quarry in such a
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town can be worked or opened without a licence from the Chairmanof the Council, or Board as the case may be. Conditions may beattached to such licences, and security may be taken for the fulfil-ment of the conditions. I suppose fees may also be charged for theissue of these licences. This Ordinance applies only to towns*where a Municipal Council or a Local Board or since 1923 an UrbanDistrict Council has been established. If Sanitary Boards consti-tuted pnder Ordinance No. 18 of 1892 desire to bring quarries undertheir supervision and control, and this seems to be highly desirable,the- Quarries Ordinance of 1889 ought to be amended by makingit applicable to Sanitary Board towns also. The attempt to controlquarries, through the instrumentality of rules framed under a powerto regulate dangerous or offensive trade is, in my opinion, hardlylikely to meet with much success.
I affirm the judgment and dismiss the appeal.
JAYASURIYA v. RUPESINGHE