100-NLR-NLR-V-59-D.-H.-S.-GUNAWARDENA-Appellant-and-S.C.-PATRICK-Public-Health-Inspector-Res.pdf
II. X. G. FERNANDO, J.— Gunau-ardena v. Patrick
449
1957Present:H. N. G. Fernando, J.
D. H. S. GUNAWARDENA, Appellant, and S. C. PATRICK(Public Health Inspector), Respondent'
S. G. 4—21. C. Gampola, 16,04S
Urban Council—Dissolution oj Council—Special Commissioner—Scope of his powers—Secretary of Council—Closing order obtained on his application—Validitythereof—Housing and Town Improvement Ordinance fCap. 190), s. 76—Urban Councils Ordinance, Ho. 61 of 1939, s. 196.
Where an Urban Council is dissolved under section 196 of tlio Urban Councilsw Ordinance and a Special Commissioner is appointed, tho power conferred ontho Chairman by section 76 of the Housing and Town Improvement Ordinance' to apply for a closing order in respect of an insanitary dwelling-houso may boexercised by tho Special Commissioner. Tho Secretary of tho Council is notentitled to make such an application if ho had not been authorised to do so bytho Council, when it was in office.
A.PPEA1. from a judgment of the Alagistrate’s Court, Gampola.
J3. Jayasuriya, for the accused-appellant.
D. S. Jayawickrcme, Q.C., with J. V. 21. Fernando, for tho complainantrespondent..
Cur. adv. vuJt. '
April 12, 1957. H. ISf. G. Fernando, J.—.
Tho appellant has been convicted of inhabiting a dwelling-housein breach of a closing order made under the Housing and Town Improve-ment Ordinance (Cap. 199)—an offence punishable under section SI ofthat Chapter. Several objections were taken at tho argument to thevalidity of the closing order.
Tho premises.in question form part of a building owned by the UrbanCouncil of Kawaiapitiya, and it is argued that the procedure of prohibit-ing habitation by means of a closing order has been adopted as a deviceto eject tho appellant in evasion of the provisions of tho Rent Res-triction Act. Even if there be a 113- truth in this allegation, it is not onowhich I can entertain at this stage. Any representation that the applica-tion was being made in bad faitli and not on tho ground of the “unfitnessof the premises should have been made to the Magistrate, and thcre->after have been made the subject of an appeal against the closing order. 1 •
Tho officer who is empowered b}' section 76 of Chapter ’199 to^apply*to a Magistrate for a closing order is the Chairman of tlio Id'c'aJ authority—^in tlio present instance the Chairman of the Nawalapitiya'-Urban'Council. kDuring tho relevant period, however, the Urban Council >had‘,bcendissolved under section 196 of tho Urban Councils Ordinance of 1939,"*-’
450
Carolis Appuhamy v. Ford Footwear Ltd.
and a Special Commissioner had been appointed.to administer theaffairs of the town. – In this situation, it is contended for the appellantthat the powers conferred on the Chairman by section 76 of Chapter 199could not have boon availed of, because there was no “ Chairman ” inoffice at the time. I think tho'answer is to be found in sub-section (41)of section 196 of tho 1939 Ordinance which provides that “ all the powersvested in the Urban Council shall be deemed to be vested in the SpecialCommissioner ”. No doubt there is here no express transfer of powersvested in the Chairman, but the express vesting of the powers of theCouncil is in my opinion wide enough to include all statutory powerswhich are conferred on a person in his capacity as Chairman of a Council.The intention of the Legislature in enacting section 196 was manifestly tosecure that the Urban Council area would bo administered as before,but by a Commissioner instead of a Council or its Chairman.•
I have just pointed out that the power conferred by section 76 on theChairman could have been exorcised by the Special Commissioner. Butthe- application to the Magistrate for the mandatory order was in thiscase made, not by the Commissioner, but by the Secretary of the Council.While it may well be that the Council, when it was in office, had authorisedthe Secretary to take action under section 76, and while such a delegationmight well be effective despite the dissolution, the difficulty I encounterhere is that the record does not contain any reference to any suchdelegation, and my notice has not been drawn to any such act of delega-tion even if it be in existence. In tho circumstances, I am constrainedto hold that the Magistrate has purported to act without jurisdiction,in that ho entertained an application which was made by an officerwho was not shown to have the right to make the application, and to holdaccordingly that the closing order was invalid.-
In the exercise of the powers of this Court in revision I set aside the“ closing order ” of 28th December 1954 and the order and sentencepassed by the Magistrate on 16th December 1955, and acquit the accused.
Order set aside.