122-NLR-NLR-V-39-APPUWA-v.-HOMAPALA-et-al.pdf
Appuwa v. Homapala.
445
1937 .Present: Abrahams C.J.
APPUWA v. HOMAPALA et al.
In the Matter of an Application for a Writ of Mandamus-oh theChairman and Members of the Village Committee ofGangaihala Korale.
Village Communities Ordinance—Permit to hold a fair—Right of grantee to ashfor renewal—Ordinance No. 9 of 1924, s. 29.
A person to whom a Village Committee has granted a permit toestablish a fair is not entitled to claim a renewal of the permit on pay-ment of the annual fee.
T
TTTS was an application for a writ of mandamus on the Chairmanand Members of the Village Committee of Gangaihala korale.
H. V. Perera, K.C. (with him C. V. Ranawake), for petitioner.
N. E. Weerasooria (with him Cyril E. S. Perera), for first, fourth toninth, and fifteenth to seventeenth respondents.
H. E. Amerasinghe, for second, third, tenth, .eleventh, thirteenth,fourteenth and eighteenth respondents.
Cur, adv. vult
446
ABRAHAMS C.J.—Appuwa v. Homapala.
December 7, 1937. Abrahams C.J.—
This is an application for a writ of mandamus. The applicant obtaineda rule on the Chairman and the members of the Village Committee ofGangaihala korale in Udapalata Gampola, Central Province, to showcause why they should not permit him to continue to hold a private fairwithin the area of their authority. The Chairman and the majority ofthe members of the Village Committee appeared in order to show cause,the remainder of the members of the Committee, although represented,submitted that they did not oppose the application.
By virtue of section 29 of the Village Communities Ordinance, No. 9 of1924, the Village Committees of the subdivisions of the Central Provincemade certain, rules which, as required by the above-named Ordinance,received the approval of the- Governor. By rule 29 of those rules, “ Noperson shall establish private ‘ galas ’ or halting places, fairs, markets, orslaughtering places without the sanction of the Village Committee, orwithout payment of a fee to be fixed by the Village Committee”. Theapplicant requested the Village Committee of Gangaihala to sanction theestablishment by him of a Sunday fair. Sanction was granted, and thedocument granting sanction reads as-follows : —
No. G.T. 308.
Gangaihala Korale Village Com.
Gampolawela, Gampola, 30th July, 1933.
Authority or permit is granted to P. Appuwa of Ampitiya in Dolos-bage to establish a Sunday fair at Gonnagahamulawatta at Ampitiyain Gangaihala korale of Udapalata on payment of Rupees Twelve(Rs. 12) from the 1st January, 1933, under the orders of the VillageCommittee subject to the under-mentioned conditions in accordancewith rule No. 29 framed under section 29 of the Village CommitteeOrdinance, No. 9 of 1924, as published in the Ceylon Government GazetteNo. 7,727 of 9th August, 1929.
The permit shall be renewed yearly on payment of the above-mentioned fee.
The said f£g shall.be remitted to the Kandy Kachcheri annually•on or before the 1st day of January and obtain proper receipts therefor.
. If necessity arises at any time, to dose the above fair, temporarilyor permanently the Committee shall be informed in writing one monthpreviously.
Upon a special requirement the fair shall be open on any other•day in the week for the benefit of the public.
The fair shall be open from 6 a.m. to 6 p.m. on dates of business.
Acts contrary to law such as" gambling, sale of intoxicants, &c.,shall not be done or allowed to be done within the premises of the fair.
Any act contrary to law concerning the health of the public shallnot be^done or allowed to be done.
Any headman or any person legally appointed by the Village
Committee shall be allowed to inspect the Sunday fair- at any time whenit is open./
Sgd. S; M. Ptjnchi Banda,Chairman,- Vr C., Gangaihala:
447
ABRAHAMS CJ.—Appuwa v. Homapala.
Sometime in December, 1936, the applicant remitted the fee for theyear 1937 to the Government Agent of the Central Province, and wasinformed by the Government Agent that the fair was to b.e discontinuedas from January 1, 1937, and on January 3, 1937, he received a notificationfrom the Chairman of the Village Committee to the effect “ that theSunday fair carried on by you near Lokananda Maha Vihare should be-closed as from January 1, 1937”. No reason was given for this action,and the applicant complains that he has been put to a great deal ofexpense because in expectation of the continuance of this fair he haderected permanent structures. In the affidavit of the Chairman of theVillage Committee in these proceedings it is stated that the reason for thediscontinuance of this fair was that the site on which it was held was toonear the preaching hall of the village temple, and that it was then resolvedthat another site should be selected. However, the damage to theapplicant or the reason for the discontinuance of permission are purelycollateral matters, the question for my decision being whether the appli-cant for the writ has a legal right to the establishment of the fair as aprivate fair, and whether the Village Committee is under a legal duty tosanction such an establishment.
The applicant puts his case in this way. Rule 29, under which privatefairs can be established, intends that private fairs should be establishedbut that obviously some conditions must be affixed to their establishment.These conditions were set out in the document granting permission to theapplicant, and so long as those conditions are fulfilled, so-far as they areincumbent upon the applicant, he is entitled to maintain this fair. It isnot suggested that he has violated any of the conditions, and as hetendered payment of the annual fee fixed by the permit the VillageCommittee had np power to refuse a renewal of the permit according tothe first condition in the permit which, the applicant says, is an under-taking on the part of the Village Committee to renew the permit if theannual fee is paid.
I do not agree that any person has a legal right to establish a privatefair. Whether private fairs or any other of the activities mentioned inrule 29 are to be established and carried on in the area under the authorityof a particular Village Committee is one for the Village Committee todecide. For the well-being of a particular area it may or it may not bedesirable that a fair should be established. If it becomes desirable theVillage Committee under rule 20 of the above-named rules is empoweredto establish such a fair. That rule reads as follows:—
“ If it is necessary the Village Committee shall establish in- villages,with the sanction of the Government Agent, (o) ‘galas’ or haltingplaces for carts or cattle, (b) fairs or markets, and (c) slaughteringplaces . . . . ”
If the inhabitants of a village desire the establishment of a fair, theyare, of course, in a position to make representations to the Village Com-mittee, whom, presumably they can control to a certain extent by theirelectoral powers, and the Village Committee, if it does its duty properly,would then consider: whether it should itself establish a fair or inviteprivate venturers to do so. It seems to me that any other state of affairs
>448 FERNANDO A<J.—Mercantile Bank of India, Ltd. v. Ramanathan Chettiar.
in the village area would produce a thoroughly undesirable result. Theremight be very easily several private fairs running not only in competitionwith each other but with a public fair as well, since if private persons havea right to establish a fair, I do not see how any limit could be put uponthe number of fairs in any particular village area. For that reason I amof opinion that the applicant has not shown the infringement of any rightto which he is entitled.
The applicant would fail too in this particular case on his own sub-missions even if he has a right to establish a fair, for I do not think thatthe permit gives him a right, expressly or impliedly, to a renewal as amatter of course if he pays the specified fee. The wording of condition(1) is not very eicact, but I think it means that the permit lasts for oneyear only and may be renewed from year to year without imposing anyobligation on the Village Committee to renew it.
The rule will be discharged with costs.
Rule discharged.