DBIEBERG J.—Abeyicardene v. Wijeysekere.
1931Present : Drieberg J.
ABEYWABDENE v. WIJEYSEKERE.
799—M. C. Oalle, 1,362.
Stall—Holder of a licence to sell vegetables—Right to occupy space above stall—Municipal Councils Ordinance, No. 6 of 1910. chapter 6. bylaws 5and 11..
The holder of'a stall in the Municipal fruit Market, in terms of a licence issuedunder by-law 5 of the Municipal By-laws, is not entitled to use the space above theceiling of the stall for purposes of storage.
^^PPEAL from a conviction by the Municipal Magistrate of Galle.
Hamffa, for the accused, appellant.
Abeywardene, for the complainant, respondent.
December 4, 1931. Drieberg J.—
The appellant is the licensee of the stall No. 10 in the public fruitmarket in Galle.
DB1EBEBG J.—A bey wardens v. IVijeyseheTe.
Provision lor the sale of fruit in public markets is contained in by-law 11 of chapter 6, which is as follows: ° Spaces six feet by four inextent or of other dimensions containing not less than twenty-foursquare feet, properly 11 marked and numbered, shall be set apart inevery public market for the sale of vegetables, fruits and other articlesby persons paying such daily fee as the council may from time to timedetermine. No person shall occupy any such space ^bout havingobtained the licence required by by-law 5 of this chapter.0
By-law 5 of this chapter provides that “ No person shall hold oroccupy a seat or stall in any of the public markets without a licence inthe form B hereto annexed signed by the Secretary, or contrary to thetenor of such licence.0
The licence to the appellant is in the form B and is for a period of amonth, provision being made in it for further extensions of a month ata time.
The market is divided into two lengthwise with rooms on either side.Each room is separated from the room on either side and from thatbehind by a wall. There was at one time a wooden ceiling but thishas been replaced by expanded metal. It should be noted that thespace above the ceiling in each room is not confined * to each room butis common to each pair of rooms, each room and the room behind itbeing regarded for the purpose of this description as a pair of rooms.Along the length of th§ whole building on both sides and affording a.frontage to each room is a verandah. Between the top of the frontwall of the room, above the level of the expanded metal ceiling on theverandah aspect of each room and the roof is an open space, so thatit is possible from the verandah to have access to the space betweenthe ceiling and the roof.
The appellant used this space above the ceiling for keeping his cookingutensils and bedding which he placed on the expanded metal. TheMunicipal Council says that this use of the ceiling is not justified by hislicence and he was prosecuted under by-law 20 of chapter 6 which is asfollows: “ No person holding a licence for any stall or space in publicmarkets shall use or occupy, or permit or allow any person acting onhis behalf to use or occupy, and no servant of the person holding suchlicence shall use or occupy, any ground beyond the limits of the stallor space, rented by him Chapter 22 of the by-laws provides a penaltyfor the breach of this or any other by-law.
The -Municipal Magistrate convicted him and‘fined him Rs. 5. Themain contention of the appellant is that under his licence he was entitledfor the purposes of* his trade to the entirety of the room, from the floorto the roof, in precisely the same manner as if the room had been letto him. But this is not so, for apart from the ordinary meaning of theword it will be seen that under rule 11 what is provided for the pur*poses of a vendor in a market is a " space ° which is described in termsof superficial area and no one can occupy such a' space without a licenceunder by-law 5. By-law 5 does not use the word ° space ° but providesfor tbe issue -of licences for a seat or stall. It follows therefore that the
AKBAR J.—Canagasingham o. Meyadin Bawa.
licence can be for nothing more than a seat or stall in the “ space ” setapart for Bale and this, under by-law 11, is a space containing a certainminimum number of square feet.
The ordinary meaning of the word “ stall ” is also against the appellant.A stall is a booth in a market and it means in some cases a table on whichgoods are exposed for sale; the word suggests nothing more than thespace used for the purposes of sale, and I do not think it can be extendedin this case to the space above the expanded metal ceiling which is notdesigned or intended for the storage of goods.
Mr. Haniffa contended that the conviction was bad as the writtenauthority of the Chairman for the prosecution had not been granted.The sanction of the Chairman does not appear on the plaint to Court,but this is not necessary. Whether sanction was granted is a matterof fact. No question regarding it was raised at the trial, and thisobjection was not taken in the petition of appeal. I must assutne inthe absence of evidence to the contrary that the prosecution was properly
The appeal is dismissed.
ABEYWARDENE v. WIJEYSEKERE