026-NLR-NLR-V-64-B.-WIJETILLEKE-Municipal-Sanitary-Inspector-Appellant-and-S.-D.-M.-DEEN-Re.pdf
WijeiiUeke t>. Deen
161
Present: Sansoni, J.
B . WIJET1LLEKE (Municipal Sanitary Inspector!, Appellant, and
S. D. M. DEEN, Respondent
S. C. 174 of 1958—M. M. C. Colombo, 91760
Municipal Council of Colombo—By-law 39 requiring licence for keeping cattle—Validity—Municipal Councils Ordinance, No. 17 of 1S87—Municipal CouncilsOrdinance {Cap. 193), ss. 3, 109,110 (5) (19)—Municipal Councils Ordinance,No. 29 of 1947, ss. 272 (5) {24) {25), 318.
By-law 39, the main provisions of which were passed under the MunicipalCouncils Ordinance No. 17 of 1887, has been kept in force by the combinedeffect of section 3 of Chapter 193 and section 318 of Ordinance No. 29 of 1947.
By-law 39, which requires a licence for keeping cattle in certain places, couldwell have been framed under section 110 (5) of Chapter 193.
A.PBEAL from a judgment of the Municipal Magistrate’s Court,Colombo.
II. V. Perera, Q.C., with G. F. Sethukavalar and C. Navaratnarajak,for the complainant-appellant.
G. T. Sameravrickreme, with N. D. H. Samarakoon, for the accused-respondent.
Cur. adv. imil.
102
SANSONT, J.—Wijetilleke v. Deen
June 22, 1959! Sansoni, J.—
This is an appeal from an acquittal. The accused was charged withthe following offence : “ that you did within the jurisdiction of this Courtat 4/1 Longden Terrace on the 5th day of June, 1957, keep two head ofcattle therein without a licence from the Municipal Commissioner forthe use of such place for the said purpose in breach of By-law 39, ChapterXIII of the Colombo Municipal Council’s By-laws published in theCeylon Government Gazette No. 6,080 of October 20, 1905, as amended byProclamation published in Government Gazette No. 8,624 of June 14,1940, and as further amended and published in Ceylon GovernmentGazette No. 10,352 of February 8, 1952, and did thereby commit anoffence punishable under the said By-law 39, Chapter XIII of the saidMunicipal Council’s By-laws”.
After trial the Municipal Magistrate acquitted him on the groundthat no licence is necessary for keeping cattle in a cattle shed. By-law39 reads : “ The owner or occupier of any of the following places, viz.,any livery or hack stable, horse lines, veterinary infirmary, cart stand,cattle shed or yard in which one or more horses or head of cattle orsheep or goats are kept or allowed to be together, shall apply to theCommissioner for a licence for the use of such place for any of the 'purposes aforesaid.”
Three reasons were urged by Mr. Samerawickreme as to why the orderof accquittal should not be interfered with. One was that the charge isdefective. I can see no substance in that objection. The charge isframed in accordance with the terms of the by-law and contains theessential ingredients.
The next reason was that the by-law itself had ceased to bo in force. as soon as the former Municipal Councils Ordinance, Cap. 193, was re-pealed by Ordinance 29 of 1947. Now Section 318 of Ordinance 29 of1947 kept in force all by-laws published under Chapter 193 so far as theywere not inconsistent with the provisions of the later Ordinance, but Mr.Samerawickreme urged that this by-law was not published under Chapter193 but under the earlier Municipal Councils Ordinance No. 17 of 1887.
I am unable to agree with this submission, because Section 3, Chapter193, in effect provided that all by-laws published under Ordinance 17of 1887 shall be deemed to have been published under Chapter 193.I therefore think that the combined effect of section 3 of Chapter 193and Section 318 of Ordinance 29 of 1947 was to keep in force the by-lawin question. To hold otherwise would not be to give proper effect tothe expression “ shall be deemed ” in Section 3.
The only other submission made by Mr. Samerawickreme was thatBy-law 39 is inconsistent with Section 110 (19) of Chapter 193 and there-fore was not kept in force even under Section 3 of that Ordinance. Section110 follows upon Section 109, which empowered the Council to make by-laws which may appear necessary for the purpose of carrying out theprovisions of the Ordinance; and Section 110provided that in particular
Dingiri Ammo. v. RcUnatilaka
163
and without prejudice to the generality of the powers conferred bySection 109, such by-laws may be made for various matters specifiedtherein. Sub-section 19 refers to dairies, and Mr. Samerawickremeurged that as only dairies run by persons following the trade of dairymenare contemplated, By-law 39 could not have been framed under Sub-section 19. Even if that be conceded, it does not conclude the matter,for the by-law could well have been framed under Section 110 (5) whichrelates to sanitation including the prevention and abatement of nui-sances, as it probably was. There is then no inconsistency. Nor isthere any inconsistency when one considers the section correspondingto Section 110 in Ordinance No. 29 of 1947, that is Section 272. Section272 (5) deals with sanitation including the prevention and abatement ofnuisances, while sub-sections 24 and 25 deal with dairies and theregistration of cows kept in premises other than licensed dairies. Theby-law could well be framed under Section 272 (5).
I therefore hold that this by-law is valid. It is not disputed that thefacts necessary to establish the charge have been proved.
I set aside the order of acquittal and fine the accused Rs. 20/- indefault two weeks simple imprisonment.
Acquittal set aside.