023-NLR-NLR-V-59-DAVID-Appellant-and-MUNICIPAL-SANITARY-INSPECTOR-Respondent.pdf
IVEERASOORIY.A, J.—David v. Municipal Sanitary Inspector
81
Present: Weerasooriya, J. and H. If. G. Fernando, J.DAVID, Appellant, and MUNICIPAL SANITARY INSPECTOR
Respondent
S. C. 1,627—M. M. O. Colombo, S0.SS2
Municipal Councils Ordinance, -Vo. 29 of 1947—Section 1JS (J) and {3)—Offensiveand dangerous trade or business—Meaning of word “ business ”..
If a pci-sou keeps a stall or yard for coirs and tho purpose of doing so is toobtain milk for tho business of his dairy, whether that stall or yard is in thosame premises as tho dairy or elsewhere, the keeping of such a stall or yard- constitutes a business within tho meaning of section 14S (1) of tho MunicipalCouncils Ordinance Mo. 29 of 1947.
^^-PPEAL from a judgment of the Municipal Magistrate’s Court,Colombo.
Neville Samarakoon, with J. G. Thurairalnam, for accused-appellant.II. V. Perera, Q.G., with G. F. Sethukavaler, for complainant-respondent.
Cur. ado. vult.
V> '
March 28, 1956. Weerasooeiya, J.—
The accused-appellant is the occupier of Premises No. 133, KollupitiyaLane, within the limits of the Colombo Municipal Council. According*to the evidence of the Sanitary Inspector who had visited these premiseson the 2Sth April, 1955, be found there a milk room and stall containingabout seventeen ske-buffaloes and cows ; also empty milk bottles andother utensils indicating the existence of a dairy. It is, indeed, notdisputed that on this date, as well as prior to it, tho accused was runninga dairy at the premises. Since 194S the accused has been registeredunder the Municipal Dairies and Laundries Ordinance (Cap. 184) as adairyman running the business of a dairy at these premises.
S2WEERASOOKIYA, J.—David v. Municipal Sanitary Inspector-
By-Jaws have been framed by the Colombo Municipal Council underthe provisions of Section 148 (1) of the Municipal Councils Ordinance,'No. 29 of 1947, declaring, inter alia, the trade or business of keeping astall or yard for cattle an offensive trade or business ; and the effect ofthese by-laws is to prohibit the use of any premises within the limits ofthe Colombo Municipal Council for such a trade or business except on theauthority of an annual licence issued by the Council on payment of theappropriate fee prescribed under Section 304 (1) of the Ordinance, Theseby-laws were published in the Government Gazette No. 10,097 datedthe 30th July, 1954. The business of a dairy has, however, not beendeclared a dangerous or offensive business under these by-laws.
The accused was charged with the commission of an offence underSection 14S (3) of the Municipal Councils Ordinance No. 29 of 1947 inthat he did, in contravention of the by-laws referred to, on the 2SthApril, 1955, use the aforesaid premises for the trade or business of a stall oryard for cattle without a licence in that behalf. After trial he wasconvicted of the offence by the Municipal Magistrate and sentenced topay-a fine of Rs. 300 and a further fine of Rs. 10 per day as for acontinuing offence from the 5th November, 1955. From this convictionand sentence the accused has filed the present appeal.
The main contention of Mr. Samarakoon, who appeared for the accused,is that what is prohibited under the by-laws is the use of any premisesfor the trade or business of keeping a stall or yard for cattle and that eventhough, admittedly, the accused was keeping a stall for his cows in con-nection with the business of a dairy which he ran at the premises in ques-tion, no evidence had been adduced by the prosecution that the keepingof the stall per se constituted a trade or business. In support of tinscontention Mr. Samarakoon cited the case of Gunasekera v. The Muni-cipal JRcveriue Inspector *. The accused in that case carried on the businessof a licensed auctioneer at certain premises within the limits of the Muni-cipality of Colombo and it was his practice to use a part of the premisesfor displaying the furniture that had been given to him by his customersfor sale by public auction, which took place periodically. No chargewas, however, levied from his customers for the use of the premises fordisplaying the furniture. In that case too under certain by-laws thetrade or business of storing furniture had been declared a dangerous oroffensive trade or business and the use of premises for such a trade orbusiness was prohibited except under the authority of a licence. Theaccused was charged with having, without a licence, used the premises“for storing furniture which had been declared an offensive trade orbusiness ” under the relevant by-laws. The accused was convicted of thecharge but in appeal two objections taken on his behalf, firstly, that the #charge framed was defective because it did not allege that the accusedwas carrying on the business of storing furniture and, secondly, that therewas in any event no evidence from which it could be inferred that theaccused was in fact carrying on such a business, were upheld by Gratiaen J.and the conviction was set aside. In upholding the second objection heexpressed the view that the term “ business of storing furniture ” involves
{1351) 53 N. L. R. 323.
WKKR-ASOOJtl YA, J-—David v. Municipal Sanitary Inspector
S3
the idea of an establishment maintained for keeping in deposit, for anao-reed remuneration, a customer’s furniture in a store or warehouse forsafe keeping. By analogy Mr. Samarakoon contended that the businessor trade of keeping a stall for cattle means a stall as, for example, a galawhere cattle belonging to others could be kept for a specified period andfor which a charge would be levied by the stall-holder.
3Lr. Perera, who appeared for the respondent, relied on the case ofJayasekcra v. Silva1 where certain premises were used as a carpentryvard, by which I understand a yard where furniture was manufactured.In a portion of the same yard there was also carried on the sawing oftimber, by means of steam-saws, for the purposes of the manufacture ofthe furniture. By-laws made under the Municipal Councils Ordinance,No. G of 1910, declared the business of sawing of timber by the employ-ment of steam power a dangerous or offensive business and prohibited theuse of premises for such a business except under the .authority of a licence.In affirming the conviction of the accused on a charge of having contra-vened the by-laws in that he had without a licence used the premisesreferred to for the business of sawing of timber by the employment ofsteam power, being a business declared a dangerous or offensive business,Bertram A.C.J. rejected the argument that the sawing of timber, whichwas merely an incidental adjunct to the carpentry business, could notbe regarded as a business in itself. He expressed the view that the word“ business ” has a wider signification than “ trade ” and includesany systematic enterprise of a commercial character and thatit is immaterial whether any particular business is the mainbusiness carried on up on the premises or is only a subsidiarybusiness. There is a reference to this ease in the judgment ofGratiacn J. in Gitnasckera v. The Municipal Revenue 1 n speciev(supra) but only in another connection. In the case of Smith v. Anderson -the question that had to be decided was whether an association of personscould be regarded as carrying on a business (other than banking) withinthe meaning of the Companies Act, 1SG2. The judgment of Jessel M. R-.answering that question in the affirmative, though reversed in appeal,contains certain observations as to the meaning, generally, of th'e word“ business ” which may be regarded as relevant to the present case.According to him, " business ” is a word of large and indefinite import-,it lias a more extensive signification than trade and means anythingwhich occupies the time, attention and labour of a mail for the purpose ofprofit. From these observations and the ratio decidendi in the case ofJayasekera- v. Silva (supra) it ma3r be concluded that if a person keeps astall or yard for cows and the purpose of doing so is to obtain milk for thebusiness of his dairy, whether that stall or 3-ard is in the same premises as. the daily or elsewhere, the keeping of such a stall Or 3rard constitutes abusiness. In the present case it would be reasonable to assume, in theabsence of evidence to the contrary, that all expenses incurred b' theaccused in keeping this stall are met from the income accruing fromthe sale of milk. In the circumstances it cannot be said that the keepingof the stall is otherwise than on a profit-making basis. ''
1 U91S) 5 C. If". B. 255.
5 L. B. USSO) Jo Ch. D. 247 at 26S.
84YVEERASOORIYA, J.—David v. Municipal Sanitary Inspector
•Evidence was also led by the prosecution that the accused had appliedfor and been issued licences in respect of thepremises for the years 1948 to1954, but no licence was issued to him for 1955, apparently in view of aresolution of the Council that dairies should no longer be permittedwithin the city of Colombo. Although under Section 272 (24) of theMunicipal Councils Ordinance, No. 29 of 1947, power is given to a Muni-cipal Council to make by-laws providing, inter alia, for the licensing ofdairies, no such by-laws appear to have been made by the Colombo Muni-cipal Council, and in the circumstances the authorities of the ColomboMunicipality seem to have taken the view that one way in which theaforesaid resolution might be given effect to was to withhold the issue of. licences from 1955 onwards for the use of premises for the business of astall or yard for cattle, such a business having been declared a dangerousor offensive business under the by-laws made by the Council underSection 148 (1) of the same Ordinance. Mr. Samarakoon stated from theBar that the licences issued to the accused for the years 194S to 1954 ofwhich evidence was led by the prosecution were in fact licences for the useof the premises for the dairy business. He was unable, however, to referus to any by-laws made by the Colombo Municipal Council for the licensingof dairies and, as I have already observed, no such by-laws appear to havebeen made. The register (PS) containing a record of the issue of theselicences, though termed as register of licences for dairies, shows that theyhave been issued under Sections 148 (1) and 304 (1) of the Municipal Coun-cils Ordinance, No. 29 of 1947, and the accused appears to have appliedfor and obtained these licences on the basis that he was using thepremises for the business of keeping a stall or yard for cattle.
On the facts of this case and on a consideration of the relevant provisionsof law I would, therefore, hold that the accused used the premises for thebusiness of keeping a stall or yard for cattle and that the charge againsthim has been fully made out.
Mr. Samarakoon also submitted on the authority of Jansen v. SanitaryInspector, Dehiwela-Mount Lavinia 1 that since the only condition im-posed for the issue of a licence authorising the use of premises for thebusiness of a stall or yard for cattle is the payment of a fee as prescribedunder Section 304 (I) of the Municipal Councils Ordinance, Ho. 29 of 1947,it was incumbent on the Colombo Municipality to have issued to theaccused a licence for the year 1955 seeing that he was always ready to paythe prescribed fee. But even conceding that the accused was illegallyrefused a licence for 1955 his remedy lay elsewhere and such refusal is nodefence to the present charge. In the case relied on by Mr. Samarakoonthe relevant by-laws, which had been made under Section 1G8 (10) (4) of theLocal Government Ordinance (Cap. 195), required the issue of a licenceto all persons complying with the conditions prescribed for the issue ofsuch licence. The point decided in that case was that since no conditionshad been prescribed in the by-laws which had to be complied with beforea licence was issued in respect of the particular trade or business whichformed the subject matter of the charge, the by-laws were not applicable -to that trade or business. Section 148 (1) of the Municipal CouncilsOrdinance, No. 29 of 1947, on the other hand, expressly states that the
(7954) 56 N. L. R. 445.
H.>r. G. FJEKXA2vDO, J .-^-Chandiram v. The Commission tv-for—85
Registration of Indian and Pakistani Residents
issue of licences under any by-laws framed under that section shall bein the discretion of the Council. There is nothing in the by-laws them-selves to indicate that the Council had divested itself of such a discretion.
The appeal against the conviction and sentence is dismissed. Althoughthis is a criminal case, in my opinion it is an appropriate one in which,an order should be made for the payment of the respondent’s costs whichbut for such an order, will be charged to the Council’s revenue. Theaccused will therefore pay to the respondent the sum of Es 255 as thecosts of this appeal.
H. N. G. Fersaxdo, J.—I agree.
Appeal dismissed.