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Present: Jayewardeue A.*T.
INSPECTOE JOSEPH r. KANDAXAM MEEXATOHV.
4S0—P. C. TrincomaJcc,
Local Boards Ordinance, No. 1*3 of 189$—By-laws unacted by theLegislature—XJhru vires.—Sections ;">G (•>) and fi8 end Schedule D.
Where by-laws are enacted by the Legislature, as a pnrl of anOrdinance, their legality rauitot be canvassed in the Courts.
N appeal from an acquittal. The accused was charged withhaving exposed pork for sale, outside a public market,
without a licence, in breach of by-law No. 2 framed under section;>6 (5) of the Local Boards Ordinance. The Magistrate, being ofopinion that the by-law in question was ultra vires, acquitted theaccused.
Mervyn Fonseka,for complainant, appellant.
•October 8. 192(5. Jaykwaudxxe A.J.—
In this case the complainant appeals with the sanction ofthe Solicitor-General against the acquittal of the accused. Theaccused was charged with publicly exposing for sale pig's flesh orpork in Divisions Nos. 1 and 5 outside the public market at Tvinco-malee without a licence granted by the Local Board in breach ofby-law No. 2 framed under section 56 (5). Chapter IV., Schedule D.of the Local Boards Ordinance, Xo. 13 of 1898, an offencepunishable under section 107 of the Ordinance.
The learned Magistrate held that the by-law in question wasultra vires and acquitted the accused. In doing so. he purported' to follow the decisions of this Court in Perera v. Fernando 1 andSanitary Inspector v. Haramaim. –
The complainant appeals aud contends that the by-law is -notultra vires and that the decision relied on l-y the Magistrate cannotgovern the construction of by-laws contained in Schedule D ofthe Local Boards Ordinance. 1898. The by-law is as follows: —
After any such publie market shall have been established andopened, no person shall without a licence granted by theBoard, publicly expose for sale any'meat, poultry, freshfish, fresh fruit, or vegetables in any place within thelimits of the board other than the public market; and itshall be lawful for the secretary or an inspector of the
* (1914) 17 N. L. R. 494.2 (1917) 19 A L. R. 339.
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Board to seize any such meat, poultry, fresh fish, freshfruit, and vegetables exposed or hawked about for salecontrary to the provisions of this by-law, and to removethe same to the office of the Board to be disposed of as.may be ordered by Chairman or the Magistrate.”
The by-laws in Schedule D of the Ordinance have been enactedby the Legislature as a part of the Ordinance, and the question ariseswhether these by-laws can be treated and tested in the same way asby-laws made by a Board or Council vested with power to makeby-laws for certain specific purposes.
The by-laws in Schedule D must be treated as an integral partof the Ordinance and as having the same force and effect as themain provisions of the Ordinance.
The by-law in question is No. 2 of Chapter IV. of the by-laws inSchedule D and is given as a by-law framed under section 56 (5)of the Ordinance and relating to “ the establishment and regulationof public markets.” Under section 56 "it is lawful for every Boardfrom time to time to make such by-laws not inconsistent with theprovisions of this Ordinance as it may deem expedient for anyof the following purposes.” And the fifth purpose is—
“ For the establishment and regulation of its own markets andlevy of rents and fees therein, and for supervision andcontrol of private markets, bakeries, eating houses, teaand coffee boutiques, butchers’ stalls* fish stalls, cattlegalas, dairies, laundries, washing places, common lodging-houses, and latrines.”
By section 57 every Local Board is given the power to alter,amend, or repeal by-laws and substitute others not inconsistentwith the provisions of the Ordinance, but no by-law or alteration, &c..shall have effect until it is confirmed by the Governor, with theadvice of the Executive Council. The by-laws so confirmed shahbe valid and effectual as if they had been enacted in the Ordinance.
Section 58, which refers to Schedule D, enacts: —
” Until by-laws are made by the Board of any town under sections-.56 and 57,' and so far as such by-laws do not extend tomodify or alter the by-laws contained in Schedule D,the by-laws contained in that schedule shall be deemed- to be and be the by-laws enacted by such Board for thepurpose of this Ordinance, and shall be in force in suchtown.”
Now under this section, (1) by-laws made by a Board which do notextend to modify or alter the by-laws in Schedule D are valid; (2)the by-laws in Schedule D are to be treajbed as by-laws enacted by"
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->uch Board, that is, they shall be valid and effectual as if enactedin the Ordinance; and (3) shall be in force in every Local Boardtown.
When the Legislature enacts as part of an Ordinance n set ofby-laws and prohibits their modification or alteration antt expressly-enacts that the by-laws shall be in force in every Local Bb&rd town,can the Courts say that they shall not be of force as being ultra vim !I do not think such a question can be canvassed. The by-law hasbeen enacted by the Legislature, and so no question can arise as toit-s being ultra vires or intra- vires. The absolute right of the Legisla-ture to enact whatever laws it likes whether in the form of by-lawsor otherwise cannot be questioned by the Courts. Whether theby-law is authorized by sub-section (5) of section 56 of the Ordinancemay be open to doubt, but as the by-law is part of a LegislativeEnactment it must- be given effect to and enforced whether it can bejustified under that sub-section or not.
In my opinion, therefore, it was not open to the learned Magistrateto consider the question whether the by-law under which the accusedwas charged was ultra vires or not.
As regards the decision relied on by the learned Police MagistrateL need only say that they were decisions construing a by-law•almost identical in terms with the by-law in question here andframed under the Small Towns Sanitary Ordinance, No. 18 of1892. That by-law, however, did not form part of the Ordinance,and there was no provision in that Ordinance corresponding tosections 57 and 58 of the Local Boards Ordinance, 1898. In thoseoases the question of reasonableness and ultra vires were properlyallowed to be raised. In view of the fundamental differences1>etween the two Ordinances, which I have pointed out. the casesoited can have no application here.
The acquittal of the accused is set aside, and the case will go backto be proceeded with in due course.
INSPECTOR JOSEPH v. SANDANAM MEENATCHY