044-NLR-NLR-V-53-GUNASEKERA-Appellant-and-MUNICIPAL-REVENUE-INSPECTOR-Respondent.pdf
Gunasekera c. Municipal Ucccnue Inspector
229
1951Present: Gratiaen J.
GUNASEKERA, Appellant, and MUNICIPAL REVENUEINSPECTOR, Respondent
S. C. 889—M. M. G. Colombo, 51,668
Municipal Councils Ordinance, Vo. 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 shallbe 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 anyother trade or business which the Council may, by means of by-laws declare to bean 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 allegedcontravention of a by-law which purported to declare the business of “ manu-facturing or storing of furniture ” to be an " offensive trade or business ”.
Held, (i) that the charge framed against the accused was defective becauseit nowhere alleged that he was carrying on the business of “ storing furniture ".
fix) that, in any event, the term ” business of storing furniture *" introducedthe idea of an establishment maintained for keeping in deposit, for an agreedremuneration, a customer’s furniture in a store or warehouse for temporarysafe-keeping.
Obiter : A by-law purporting to have been passed by a local authority andapproved and confirmed under Section 268 of the Municipal Councils Ordinancecan, nevertheless, be held by a Court to be ultra vires if it was passed in excessof the authority of the local authority.
.AlPPEAL from a judgment of the Municipal Magistrate's Court,Colombo.
A. C. Nadarajah, for the accused appellant.-Eric LaBrooy; for the complainant respondent.
Cut. adv. vult.
230
tiRATTAEN J.—Gunasekera v. Municipal Revenue Inspector
December 14, 1951. Ghatiaex J.—
The appellant carries on the business of a licensed auctioneer atpremises No. 277, Union Place, within the limits of the Municipalityof Colombo. It is apparently his practice to use a part of his premisesfor displaying the furniture of his customers pending sale by publicauction on Thursday and Saturday of every week. The lots whichare purchased are removed by the successful bidders from the premises,•ehe appellant retaining a part of the purchase price by way of hisauctioneer’s commission. No additional charge is made for displayingany article of furniture on the premises until it is eventually sold.
On 6th June, 1951, the appellant was charged by the local authoritieswill the commission of an offence punishable under Section 148 (3)of the Municipal Councils Ordinance, No. 29 of 1947. The charge wasframed 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 theColombo Municipal Council use premises No. 277, Union Place, Colombofor storing furniture which has been declared an offensive trade orbusiness by By-Laws published in Government Gazette No. 10,157of September 29, 1950, in contravention of Section 148 (1) of theAlunicipal Councils Ordinance, No. 29 of 1947 and thereby committedon 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 ofthe following purposes, namely, for boiling offal or blood, or as a soap-house, dyeing-house, oil-boiling-house, tannery, brick, pottery orlime kiln, sago manufactory, gun-powder manufactory, manufactoryof fireworks, or other manufactory or place of business from whicheither offensive or unwholesome smells arise, or for any purposeswhich are calculated to be dangerous to life, or as a yard or depotfor hay, straw, wood, co.,3, cotton, bones, or inflammable oil. or forany othtr trade or business which the Council may, by means of by-laws,declare to be an offensive or dangerous trade or business for the purposesof this Section, exeept under a licence from the Council, which ishereby empowered, at its discretion from time to time, to grant suchlicences, and to impose such terms therein as to the Council mayappear expedient.
(21 No licence for any of the purposes mentioned in sub-section (1)-shall be given within the administrative limits of the Council underSection 5 of the Nuisances Ordinance. –
(31 Every person who without a licence as aforesaid uses anyplace within the ' Municipality for any of the purposes mentioned insub-section (1) shall be guilty of an offence and shall be liable onconviction to a fine not exceeding five hundred rupees, and, in caseof a continuing offence, to an additional fine not exceeding fifty rupeesfor each day during which the said offence is continued after aconviction thereof. ’ ’
GBATIAKX -T.—Gunaeekera t. Municipal Revenue Inspector231
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In September, 1947, the Municipal Council of Colombo passed a by-lawpurporting to declare the business of “ manufacturing or, storing offurniture or manufacturing and storing of furniture ” to be an “ offensivetrade or business ” for the purposes of Section 1.48. The by-law was,in due course, approved by the Minister of Health and Bocal Government,confirmed by Parliament, and published by notification in the GovernmentGazette.
Mr. Nadarajah has submitted that, on the authority of Jayasuriya v.liupesinghe *, it is open to this Court to declare the by-law ultra vires ofthe Municipal Council on the ground that the storage of furniture wasin fact neither *' offensive ” nor “ dangerous ” in the sense in which theseterms are commonly understood. But the present case is concernedwith a legislative enactment entirely different from that which Jaya-wardene J. was there considering. Under the Small Towns SanitaryOrdinance of 1892 a Sanitary Board was empowered to frame by-laws*'■ for the regulation of dangerous or offensive trades ” but not to decidefor itself whether a trade was, in fact, dangerous or offensive. Section 148of the Municipal Councils Ordinance, on the other hand, expresslyempowers the local authority, by means of by-laws, to “ declare ” a1 rade or business “to be an offensive or dangerous trade or businessfor the purposes of the Section. The present case is therefore moreanalogous to Tennakoon v. Muttuwappu 2 which I shall have occasionto discuss later. For the present I am satisfied that the appellant'scomplaint of ultra vires, in so far as it is based on the grounds specificallyurged by Mr. Nadarajah, cannot be sustained. Such a plea, if available:• x, all, must rest on different considerations. But I am content toassume that the by-law was intra vires the powers delegated by Parliamentto the Council.
There remain for consideration certain other questions which wereraised during the argument. Mr. Nadarajah has ai'gued.
that the charge framed against the appellant is defective becauseit nowhere alleges that he was carrying on the business of “ storingfurniture ”.
that there is in any event no evidence from which it would belegitimate to infer that the appellant was in fact carrying on sucha business within the meaning of the by-law.
I have come to the conclusion that both these submissions are entitledto succeed.
Section 148 certainly empowers the local authority to declare a trade-or business to be offensive or dangerous even if, in the opinion of a Courtof law, it contains none of the elements of offensiveness or of danger.But as Drieberg J. points out in Tennekoon v. Muttuwappu (supra) thelocal authority had no power and did not purport to declare what is nota trade or business to be a trade or business. The by-law concerned hasdeclared the business of storing furniture (and hot the storing of furnituresimpliciter) to be an offensive or dangerous trade or business. It istherefore essential that the prosecution in presenting a charge framed1 {1924) 26 N. L. B. 321.* {1932) 1 C. L. W. 229.
GRA.TIAEX -T.—Gunasckera «. Municipal Revenue Inspector
under Section 148 should specifically allege and prove that the accused^person was carrying on a business of the kind which had been declaredto he offensive or dangerous. The preliminary observations of BertramC.-3. in Jayasekera v. Silva 1 are very pertinent in this connection. In<my opinion, therefore, the case against the appellant fails ab initio.
I can hardly imagine that either the Municipal Council which passed:the by-law or the Minister who approved it or Parliament which con-firmed it could have intended to regard as a potentially “ offensive ordangerous business " the perfectly legitimate and innocuous activities-of an auctioneer who displays his customers’ furniture in his auctionrooms before he puts it up for sale. The term “ business of storing-furniture ” introduces the idea of an establishment maintained forkeeping in deposit, for an agreed remuneration, a customer’s fumiture-in a store or warehouse for temporary safe-keeping.
The by-law under consideration must, in fairness to the MunicipalCouncil, to the Minister and to Parliament itself, receive an interpretationwhich is, as. far as possible, consistent with the policy of the legislaturewhich enacted Section 148. I am content to say that in the presentcase the evidence adduced at the trial does not prove that the appellanthas carried on any trade or business which can reasonably be construedas the business of “ storing furniture ” in contravention of the by-law.In my opinion the appellant is entitled, quite apart from the issue ofultra vires, to succeed on both the grounds to which I have referred.
My decision has so far proceeded upon the assumption that the by-law unler consideration wag intra vires the legislative powers delegatedto the Municipal Council under Section 148 (1) of the Ordinance. ButI must not be understood to hold that this assumption is correct. The'question is, I think, of sufficient importance to call for some generalobservations as to what I conceive to be the proper function of localauthorities in respect of by-laws purporting to have been passed underthe Ordinance.
Section 4 charges each Municipal Council “ with the regulation, control'and administration of all matters relating to the public health, public-utility services and public thoroughfares, and generally with the pro-tection and promotion of the comfort, convenience and welfare of thepeople and the amenities of the municipality ”. Section 267 empowerseach Council to make such by-laws as may appear necessary for thepurpose of carrying out the principles and provisions of the Ordinance.Section 148(1) is a special illustration of this delegated legislative
authority, and the validity of any by-law must in each case be testedwith reference to the purposes which it purports to serve.
Section 148 (1) appears in that part of the Ordinance which authorises;and empowers a Council to promote and secure the public health withinits municipal limits. Accordingly, this Chapter deals with subjectssuch as drainage, latrines, insanitary buildings, conservancy and scaveng-ing, nuisances, infectious diseases, and, finally, “ offensive and dangerous;trades ”. It is in relation to the last named subject that Section 148 (l)iappears.
> (1918) 5 O. W. R. 255.
GBATIAEN J.—Gvnasekera v. Municipal Revenue Inspector233
The Section, in the first instance prohibits the carrying on, exceptupon conditions imposed by the Council, of certain enumerated trades or^businesses whose activities are by their very nature calculated either■to produce “ offensive or unwholesome smells ” or to be “dangerous tolife But Parliament has recognised that an exhaustive catalogueof such -activities would be difficult to achieve. Accordingly, xt haddelegated to each Council the power to introduce by-laws which wouldprohibit other trades or businesses of a like kind which, if uncontrolled,would be likely by reason of their offensiveness or dangerous potentialitiesto be injurious to public health. Parliament could not have intendedthat these delegated powers of legislation should be so exercised as to-declare to be “ offensive or dangerous ” any trades or businesses whichthe City Bathers did not reasonably and honestly regard as injurious to•the health of the community. I do not doubt that any by-law which,subject to approval and confirmation under Section 368 (I), was genuinelyintended by the Council to promote the public health would be intravires the delegated powers conferred on it by Section 148 (1). In eachsuch case, the bona fide decision of the local authority must, upon itsfinal confirmation by Parliament, be accepted as “ conclusive on the point ”.Tennakoon v. Muttuwappu (supra). In other words, a Court of Cawwhich is called upon to enforce a particular by-law must be guided by■the sensitiveness of the nostrils of the City Bathers on matters relatingdo “ offensiveness ” or by their genuine apprehension that some particularactivity may prove dangerous to health. The language of the Sectioncertainly precludes the Court from substituting its own notions of whatis “ offensive ” or “ dangerous ” for the declared notions, honestlyentertained, of the Council on the point.
But this does not mean that in an appropriate case the right, and,indeed the duty, of exercising some measure of judicial control overdelegated legislation has been withheld by the legislature which passedSections 148 (1) and 268 of the Ordinance. If a Council purports topass a by-law under Section 148 (1) by exceeding the terms of the delegationconferred by Parliament, the doctrine of ultra vires is immediately broughtinto operation. Should a Council, for instance, purport to declarea business to be “ offensive ” which is neither offensive in fact nor even'•believed to be so, with the pretended purpose of safeguarding the publichealth but with the sole intention of collecting revenue by levying licence-fees, then it seems to me that the by-law would be clearly ultra vires.
It is no doubt permissible for a Council to levy a fee as a condition..precedent to the issuing of a licence for carrying on a trade or businesswhich is otherwise prohibited by Section 148. But that is certainly■not the purpose which the Section is primarily intended to achieve.!Bor the payment of a fee cannot by itself render an offensive smell anyless pungent or a dangerous activity any less injurious to residents in“the locality. I have examined for the purposes of this appeal some ofrthe trades or business declared .by the Municipal Council of Colombo to'be “ offensive or dangerous ”, and I would very much like to be■convinced that Section 148 has not come to be regarded merely as aconvenient instrument for revenue collection, rather than, as it should
234
GRATIAEN J.—Gunasrl.era v. Municipal Revenue Inspector
be, a valuable safeguard to promote the public health. In Englandthe practice of local authorities entrusted -with similar delegated legis-lative functions is to invoke some consultative machinery before finallydeciding whether trades should be prohibited as potentially “ offensiveor “ dangerous Whether such machinery is resorted to by anyMunicipal Council in this country, I frankly do not know.
It does not seem to me that the provisions of Section 268 (2) are wideenough to withdraw altogether the jurisdiction of a Court to declareultra vires a by-law which has been passed in excess of the authorityof a local authority. Section 268 (1)' certainly introduces an additionalsafeguard by postponing the operation of a by-law until it has beenapproved by the appropriate Minister and confirmed by Parliament.But the co-existence of Parliamentary and judicial control of delegatedlegislation are not incongruous. As I read Section 268 (2), the notificationof such approval and confirmation gives validity to the by-law only ifit bad in the first instance been passed intra vires the local authorityand not otherwise. A by-law that is from its inception ultra vires cannotthereafter atain what has been described as the high water-mark ofinviolability ” which attaches to a Parliamentary' enactment. If itwere intended that the mere confirmation, however perfunctory, ofa by-law passed in excess of a Council’s authority, should thereby' con-vert it into something possessing the force of inviolable law, the with-drawal of the jurisdiction of the Courts could have been expressed inless uncertain terms. This is the conclusion at which I have arrivedafter an examination of the opinions expressed by the majority of themembers of the House of Lords who decided The Chartered institutesof Patent Agents v. Lockwood {1894s) A. C. 347, and Minister of Healthv. Yaffe {1931) A. C. 494 with reference to legislation analogous to theprovisions of Section 268 (2) of the local Ordinance.
As I have already pointed out, it is unnecessary for the purposes ofthe present appeal to decide whether or not the by-law declaring thebusiness of “ storing furniture ” to be “ offensive or dangerous ” for thepurposes of Section 148 is ultra vires. But I will say this:for some
reason which is not apparent, the by-law does not even choose to pro-claim which of these alternative reproaches was considered more ap-propriate to a business activity which most- human beings, I imagine,would regard as singularly inoffensive and by' no means dangerous tohuman life. Possibly it was felt that the storing of furniture in godownsor warehouses might introduce some element of inflammability. Butif that were so, one would have expected the form of licence issued underSection 148 to impose conditions which would be calculated to reducethat risk. As it is,' I for my part fail to see how the mere payment ofan annual fee of Rs. 250 by a warehouseman could by itself preventa conflagi-ation. Be that as it may, I have already' decided that, asfar ns the present appeal is concerned, the conviction cannot stand, and,for the reasons already indicated in my judgment, I make order acquittinghim.
Appeal allowed.