KEUNEMAN J.—Bultjens v. Hendrick Appu.
1941Present : Keuneman J.
BULTJENS v. HENDRICK APPU.
32—M. C. Matara, 32,017.
Betel—Sale within market areor—Prohibition under Local Boards Ordinance—•Prohibition conflicts with Urban Councils Ordinance, No. 61 of 1939, s. 165.
A by-law, made under section 56, sub-section (5) of the Local BoardsOrdinance, No. 13 of 1898, which prohibits the sale of betel within aspecified market area, is not conserved by section 248 of the Urban,Councils Ordinance, No. 61 of 1939, and is invalid, if it conflicts with the
provisions of section 165 of the Urban Councils Ordinance.
^f^PPEAL from a conviction by the Magistrate of Matara.
A. H. C. de Silva, for accused, appellant.
S. W. Jayasuriya, for complainant, respondent.
Cur. adv. vult.
i r 11,1941. Keuneman J.—
rj. ■» -.resent appellant was originally charged under by-law 16 (1) ofthe L, laws made by the Urban Council under sections 164 and 168 ofthe Local Government Ordinance which enacts that “ within any marketarea no person should sell, of expose for sale any …. vegetables
except at a public market”. The offence charged was that the accusedexposed for sale betel at a place other than a public market. In viewhowever of the decision in appeal in a connected case that betel cannotbe included in the term “ vegetable ” used in the by-law (vide Buultjensv. Samitchiappu *), the plaint was amended and the appellant was chargedfor breach of by-law No. 1 made under the provisions of sub-section (5)of section 56 of Ordinance 13 of 1898 and published in Government GazetteNo. 6,262 of September 25, 1908.
The by-law is as follows : —
No person shall, within the limits of the Local Board without alicence granted by the Board, publicly sell or expose for sale betelleaves, tobacco, arecahut or any articles of food or drink on any public
I is c. L. w. 23.
KEUNEMAN J.—Bultjens v. Hendrick Appu.
ground or on any roadside, or at or near any roadway or pathway,unless the same shall be sold or exposed for sale in any private house,boutique or garden.
It may be noted that sub-section (5) of section 56, under which theby-law is stated to be made, gave power to the local authority to makeby-laws—
“ For the establishment and regulation of its own markets and levyof rents and fees therein, and for supervision and control of privatemarkets …. ”
The Urban Council contends that although Ordinance No. 13 of 1893has now been repealed, the by-laws made thereunder are conservedunder the Local Government Ordinance, Chapter 195, section 246 andthe Urban Councils Ordinance, No. 61 of 1939, section 248. It is howeverto be noted that under each of the last mentioned Ordinances, the by-laws are conserved “ so far as they are not in conflict with the provisionsof this Ordinance ”. The appellant contends that the by-law which isnow relied on is in conflict with these Ordinances.
It is necessary for the purposes of this case to examine only OrdinanceNo. 61 of 1939. As a matter of fact the other Ordinance, Chapter 195,in the material sections uses similar phraseology.
Under Ordinance No. 61 of 1939, power is conferred by section 166 onthe Urban Council to make such by-laws, not inconsistent with theprovisions of the Ordinance, as may be authorised or required by theOrdinance, or may appear to the Council to be necessary for the purposesof the exercise of its powers and the discharge of its duties under theOrdinance.
Under section 170, without prejudice to the generality of the powersconferred, the Urban Council is empowered to make by-laws for and withrespect to, inter alia: —
(11) Markets and fairs, public and private, including—
their establishment, maintenance and improvement ;
their regulation, supervision, inspection, and control ….;
(n) in the case of public markets, the declaration of a market area, andthe licensing, restriction, or prohibition of sales within such area,in accordance with section 165.
Section 165, referred to under (n) states that in any town in which apublic market is established under the control of the Urban Council, theCouncil may by by-laws assign an area to such market, and may prohibit,the sale, except under licence, of “ meat, poultry, fish, fruit or vegetables ”within such area. It is to be noted that sections 170 (11) (n) and 165definitely confer on the Council the power to declare a market area, andto prohibit sale within that area, but at the same time, the section limitsthe prohibition to certain articles, viz., “ meat, poultry, fish, fruit or,vegetables ”.
It is clear that betel does not come within the list of articles the sale ofwhich can be prohibited.x
I incline ^to the opinion that any by-law which seeks to prohibit thesale of betel, within any specified market area, is a by-law which is inconflict with the provisions of the Ordinance, in particular the positive
Daniel v. Cooray.
requirements of section 165. Further, the by-law now in question hasno relation to “ a market area ”, but applies throughout “ the limits of theLocal Board
I may add that Counsel for the respondent referred me to section 170(16), as follows:—'“All other purposes, whether of the same nature asthose above enumerated or otherwise, for which by-laws may be necessaryfor the protection or promotion of the local public interests, conveniencesand amenities ", but, as at present advised I do not see how this sub-sectionhas any application to the present case.
I may add that under section 56 (21) of Ordinance No. 13 of 1893by-laws could be made “ for every other purpose which may be necessaryor expedient for … the promotion of the comfort and convenience
of the people thereof ”. But the by-law now in question was statedto be made not under sub-section (21) but under sub-section (5).
I hold that the by-law now in question has not been conserved underOrdinance No. 61 of 1939. The conviction and sentence are set aside andthe accused is acquitted.
BULTJENS v. HENDRICK APPU