GRATIAEN J.—Jansen o. Sanitary Inspector, Dehiwela-Mt. Lavinia 445
1954Present : Gratiaen J.T. 0. D. JANSEN, Appellant, and SANITARY INSPECTOR,DEHIWELA-MT. LAVINIA U. C., RespondentS. C. 435—M. C. Colombo South, 43,471
Dangerous or offensive trade—Requirement of licence—By-laws—Local GovernmentOrdinance [Cap. 196), as. 164, 168 (10) (k)—Urban Councils Orditiancc, No. 61of 1939, s. 248.
Bv-Iaw 1 made by an Urban Council under section 168 (10) (£) of the LocalGovernment Ordinance declared the manufacture of tiles or bricks to he in-cluded within the category of “ dangerous or offensive trades ”. By-law 2 pro-hibited the carrying on of a “ dangerous or offensive trade without an annuallicence which the Chairman shall issue to all persons complying with the condi-tions provided for the issue of such licencesThere 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 toapply to the trade of manufacturing tiles unless and until “ the conditionsprovided for the issue of annual licences ” for that particular trade were dulyprescribed.
^VlPPEAL from a judgment of the Magistrate’s Court, Colombo South.
N. E. Yee.rasooria, Q.C., with R. A. Kannangara, for the accusedappellant.
//. H'. 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 aby-law made by a local authority. The appellant was charged with havingcarried on a “ dangerous and offensive trade ” (to wit, the manufactureof tiles) on 17th August 1952 within the limits of the Dehiwela-Mt. LaviniaUrban Council without an annual licence issued by the Chairman of theCouncil ”.
The relevant by-laws were made by the Council in 1929 under sections164 and 168 of the Local Government Ordinance (Cap. 195) and are still inoperation by virtue of section 248 of the Urban Councils Ordinance No. 01of 1939. The relevant provisions are to the following effect:—
by-law 1 declared the “ manufacture of tiles or bricks ” to be in-cluded w'ithin the category of “ offensive or dangerous trades ” ;(fc) by-law 2 prohibited inter alia the carrying on within the limits ofthe Council of “ any dangerous or offensive trade ” without anannual licence from the Chairman, “ which licence the Chairmanshall issue to all persons complying with the conditions providedfor the issue of such licences
The appellant had, during the year 1950, constructed a cement tile factoryin Dehiwela at considerable expense with the formal approval of the Chair-man. In March 1951 he was also granted a permit to use Convent Lane.
440 GRATIAEN J.—Jansen v. Sanitary Inspector, Dehiwela-Mt. Lavinia
Dehiwela, for the transportation of manufactured tiles by lorry from thefactory site. Shortly afterwards the supply of electricity to t he premiseswas also arranged. Since the factory was first established, the appellanthas manufactured approximately 1,000 tiles a day. It is not suggestedthat the particular process of manufacture adopted by him is per seobnoxious or detrimental to the health of residents in the locality, butI appreciate that the council is legally empowered by section 168 (10) (Jfe)bona fide to “ deem ” an activity to be “ dangerous or offensive ” whichis not so in fact.
In October 1951 an unexpected development took place. TheChairman pereinptorily, and without prior intimation, called upon theappellant “ to obtain a licence ” to carry on his established “ trade ”
“ within a fortnight ”. The appellant explained that he was notaware that a licence was required, and asked for information as to theformalities which he should comply with in order to regularise his position.On 3rd November 1951 the Chairman replied that “ a licence to run atile factory at No. 42/5, Peter’s Place, Dehiwela cannot be issued, asthese premises come within a residential area”. There the correspond-ence seems to have ended, and the evidence indicates that theappellant continued to manufacture tiles in his factory without objectionfrom the Council until this prosecution was instituted on 8th August 1952.
The learned Magistrate took the view, although with undisguised regret,that the by-law alleged to have been contravened absolutely prohibitedthe manufacture of tiles within the limits of the Council except under theauthority of a written licence from the Chairman. He accordinglyconvicted the appellant, but imposed on him qnly a nominal sentence inview of the quite remarkable conduct of the local authority in havingexpressly sanctioned the erection of an expensive factory for the manu-facture of tiles without disclosing its opinion that the structure couldnot lawfully be used for the purposes for which it was to be constructed _
While sharing the learned Magistrate’s condemnation of the attitudetaken up by the local authority, I am glad to say that I have come to theconclusion that, upon a proper construction of the by-law which theappellant is alleged to have contravened, his conviction cannot be sustained.
Section 168 (10) (fc) of the Local Government Ordinance empoweredthe Council to promote “ public health and amenitieB ” within the limitsof its jurisdiction by making by-laws for “ the regulation, supervision,inspection and control ” (but not, be it noted, for the total prohibition) “ oftrades deemed to be offensive or dangerous by the District Council ”.Prima facie, therefore, the by-laws previously referred to in my judgmentwere intra vires, but it is necessary to give by-law 2 a reasonable interpre-tation which restricts its application to the legitimate objects which aconscientious local authority must be assumed to have intended tofurther..
The by-law prohibits the carrying on of a “dangerous or offensivetrade without an annual licence which the Chairman shall ” (the words areimperative) “ issue to all persons complying with the conditions prescribedfor the issue of such licence ”. These words clearly presuppose that, beforethe by-law can operate in respect of any particular trade, the local
De Silva o. Commissioner of Motor Traffic<H
authority has duly prescribed the conditions under which it may becarried on. If these conditions have been prescribed, a person complyingwith them would be entitled as of right to obtain a licence from theChairman ; and the licence while in operation, serves as a certificate ofcompliance with the conditions previously prescribed. If the conditionsare subsequently contravened by the licensee, there is power to cancel thelicence.
The same set of by-laws meticulously prescribes the conditions underwhich certain other trades (e.g. bakeries) may be carried on within thelimits of the Council. But the prosecuting Inspector has admitted in hisevidence that “ there are no conditions in the by-laws which the accusedwould have to comply with before a licence is issued ”. _ In such a situationthe requirement of a licence is manifestly purposeless.
I do not rule that by-law 2 is ultra vires. But in my opinion it cannotbe said to apply to the trade of manufacturing tiles unless and until“ the conditions provided for the issue of annual licences " for that particulartrade have been duly prescribed. The alternative interpretation sugges-ted on behalf of the Council must be rejected as unreasonable.
According to the correspondence filed of record, the Chairman in-formed the appellant that a licence to manufacture tiles in a “ residentialarea ” could not be issued. That might well have been a reasonablecondition to impose in regard to any particular trade which the Council“ deems ” to he “ dangerous ” or “ offensive ”, but according to theevidence, no such condition has in fact been prescribed.
It was argued by Mr. Jayawardena that the charge against the appellantrelates to the year 1952, whereas the correspondence deals with a situationwhich arose in the previous year. I appreciate this point, but the evi-dence in the lower Court has not established that the position had alteredin any respect before the date material to the charge. No by-laws haveyet been passed, apparently, prescribing the conditions applicable to themanufacture cf tiles within the limits of the Dehiwela-Mt. Lavinia UrbanCouncil, and for that reason by-law 2 is not yet in operation as far as theappellant’s “ trade ” is concerned.
I allow the appeal and quash the conviction.
T. O. D. JANSEN , Appellant , and SANITARY INSPECTOR , DEHIWALA-MT. LAVINIA U. C
GRATIAEN J.—Jansen o. Sanitary Inspector, Dehiwela-Mt. Lavinia 445