K. A. DON ALBERT, Appellant, and MUNICIPAL REVENURE INSPECTOR, Respondent

001-NLR-NLR-V-65-K.-A.-DON-ALBERT-Appellant-and-MUNICIPAL-REVENURE-INSPECTOR-Respondent.pdf


THE
NEW LAW REPORTSOF CEYLONVOLUME LXV1962 Present: Basnayake, C.J., Herat, J., and Abeyesundere, J.K.A. DON ALBERT, Appellant, and MUNICIPAL REVENUEINSPECTOR, Respondent
S. C. 6,46/59—M. M. C. Colombo, 13
Municipal Councils Ordinance {Cap. 252)—Section 147—Power of Municipal Gourtcilto make by-laws thereunder—Scope—Offensive trade or business—Require-ment of licence—Meaning of expression “ trade or business ”—Applica-bility of rule of interpretation noscuntur a sociis.
The by-law making power conferred on the Municipal Council by section147 of the Municipal Councils Ordinance is limited in the sense that the Councilmay declare only trades or businesses to be offensive or dangerous trades orbusinesses. The Council has no power to declare an activity which is not atrade or business to be an offensive or dangerous trade or business. If it doesso the by-law would be ultra vires.
In construing the words “ trade or business ” the rule of interpretationnoscuntur a sociis should be applied. The word “ business ” is coloured by theword “ trade ”.
The by-law prohibiting a person from carrying on, without a licence in thatbehalf, the trade or business of storing of furniture does not apply to storingof furniture per se. It applies only to the storing of furniture of othersfor gain.
David v. Municipal Sanitary Inspector (1956) 59 N. L. B. 81, not followed.
Appeal from a judgment of the Municipal Magistrate’s Court,Colombo.
W. Jayewardene, Q.C., with L. W. de Silva, S. S. Basnayake andD. C. W. WicJcremasekera, for Accused-Appellant.
V. Perera, Q.C., with 3. Wanigatunga and B. Mohideen, forComplainant-Respondent.
Cur. adv. vult.
1—LXV
2B, 10455 (8/63)
2
w BASNA.YAKB, C..J.—Don Albert t>. Municipal Saoanue Inspector
*»
November 5,1962. Baseayab®, C.J.—This appeal comes tip for hearing before a Bench of three Judges on areference made under section 48 of the Courts Ordinance in coneequeneeof an order made under section 4Sa of that Ordinance in view of theconflict of judgments on the question arising for decision herein. Atthe end of the hearing we allowed the appeal and stated that we woulddeliver our reasons on a later date. We accordingly do so now.
The only question for decision on this appeal is whether the convictionof the appellant* for a breach of the by-law which prohibits a personfrom carrying on, without a licence in that behalf, the trade or businessof storing of furniture, is right.
The appellant was tried on three charges all couched in the samephraseology except for the description of the specific act alleged in eachof them. They read—
'‘You are hereby charged that you did, within the jurisdiction ofthis Court, on the 30th day of December 1958 at No. 615 MaradanaRoad, Colombo, within the Municipal Limits of Colombo, without alicence from the Special Commissioner, Municipal Council, Colombo, incontravention of section 148 (1) of the Municipal Councils Ordinance,No. 29 of 1947, read with the by-laws made thereunder and publishedin Government Gazette No. 10697 of 30th July 1954, use premisesNo. 615 Maradana Road, Maradana, Colombo, for the business of(here is specified the nature of the use by the appellant) and therebycommit an offence punishable under section 148 (3) of the saidOrdinance.”
The different uses alleged in the charges are—
Charge, 1—“ for the business of storing of furniture ”.
Charge 2—“ for the business of manufacture of furniture ”.
Charge 3—“ for the business of manufacture and storing of
furniture
He was acquitted of the charges of using the premises in question—ri) for the business of manufacture of furniture, and
for the business of manufacture and storing of furniture,
but convicted on the charge of using the premises No. 615 MaradanaRoad.f< for the business of storing of furniture ”,
BASJTAYAKE, C.J.—Don Albert v. Municipal Revenue Inspector
3
Although the learned Magistrate was inclined to follow the decisionsin Chinasekarav. Municipal Revenue Inspector1 and De Silva v. Kumnegala_ Co-operative Stores Ltd. a, he held against the appellant as he felt he wasbound to follow the case of David v. Municipal Sanitary Inspector3.
Briefly the material facts are as follows:—The appellant was adealer in furniture residing at No. 65 Avondale Road, Maradana, andcarrying on business at No. 615 Maradana Road under the business nameof Albert & Co. His sign-board was displayed on the front wall withthe addition of the words “ Furniture Dealers”. He had been carryingon that business at the premises in question for the last 14 years. Hedid not make furniture himself, but he bought from those who madefurniture and sold them at his shop. His suppliers were at Wellampitiya,Nugegoda and Moratuwa. He had a staff of five men—three to load andunload the furniture and assemble such furniture as reached him un-assembled, and two to touch up any blemishes caused to the furniturein transit. Appellant’s business premises consisted of a show-room facingthe road, a small partly enclosed verandah behind it, and a room beyondthe verandah. The show-room and the room behind had doors leadingto the enclosed verandah. The furniture was displayed in the show-room, and as and when they were sold they were replaced from stocksheld in reserve in the room behind. Revenue Inspector Vaz stated thaton the occasion of his visit on 30th December 1958 he observed un-rattaned chairs and unpolished furniture. The appellant denied it.There is no precise finding on this point.
Section 148 of the Municipal Councils Ordinance No. 29 of 1947, nowsection 147 of the Municipal Councils Ordinance in the Revised Editionof the Legislative Enactments (hereinafter referred to as section 147)deals with a variety of matters. It prohibits the using, except undera licence from the Council, of any place within the Municipality for anyof the following purposes, viz :—
(а)for boiling offal or blood; or
(б)as a soap-house, oil-boiling house, dyeing-house, tannery, brick,pottery or lime kiln, sago manufactory, gunpowder manufactory, manu-factory of fireworks; or
as a place of business from which either offensive or unwholesomesmells arise; or
for any purposes which are calculated to be dangerous to life; or
as a yard or depot for hay, straw, wood, coal, cotton, bones,or inflammable oil; or
(/) for any other trade or business which the Council may, by meansof by-laws, declare to be an offensive or dangerous trade or businessfor the purposes of the section. 1
1 (1361) 53 N. L. R. 223,s (1955) -57 N. L. R. 430.
3 (1956) 59 N. It. R. SI.
i
BAEjSAYAJSM, QJ.—£>on Aibs>t«, Mumoipol Bmiano* Inspector
We are here concerned not with the prohibitions imposed by the
statute but with the by-laws declaring certain trades ox bnebteeses to bo
offensive or dangerous trades or businesses. The by-law making poweris limited in the sense that the Council may declare only trades or businessesto be offensive or dangerous trades or businesses. It has no power todeclare an activity which is not a trade or business to be an offensive ordangerous trade or business. If it does so the by-law would be ultravires. Three by-laws have been made by the Municipal Council andpublished in Gazette No. 10,697 of 30th July, 1954. The first of themdeclares 51 trades or businesses specified therein to be offensive tradesor businesses; the second declares 34 trades or businesses specified thereinto be dangerous trades or businesses; and the third declares three tradesor businesses specified therein to be dangerous and offensive trades orbusinesses. The by-law that calls for attention in the instant case isthe first of them which reads—
“ The following trades or businesses are hereby declared to beoffensive trades or businesses for the purposes of section 148 (now 147)of the Municipal Councils Ordinance No. 29 of 1947 (now MunicipalCouncils Ordinance).’1
The 39th item in the list of trades or businesses appended to the aboveby-law reads : “ Manufacture ox storing of furniture or manufacture andstoring of furniture ”.
The first question to be decided is the meaning and content of theexpression “ trade or business ” in section 147. Each of these wordsaccording to the dictionary has a variety of meanings. The meaningof a word in a particular context has to be determined by reference tothat context, especially the words associated with it. Noscuntur asociis is a well-known rule of interpretation. This rule is thus statedin Maxwell on Interpretation of Statutes (10th Edition) at p. 332 :
“ When two or more words which are susceptible of analogousmeaning are coupled together noscuntur a sociis. They are understoodto be used in their cognate sense. They take, as it were, their colourfrom each other, that is, the more general is restricted to a senseanalogous to the less general.”
Here the words “ trade or business ” are coupled together and themeaning of the word “ business ” is coloured by the word " trade ”. Thecontext should be regarded as excluding all other meanings of the wordexcept those that are compatible with ii® assooiate trade.
Learned oounsel for the appellant contended that Btoring of furniture£ier se was not prohibited but what was prohibited was storing of furnitureas a trade or business Buoh as the storing of the furniture of others forgain. He submitted that the words “ the following trades or businesses ”in the by-law indicated that the declaration applied only to specifiedactivities carried on as a trade os business. He relied on the cases of
BASNAYAKE, C.J.—Don Albert v. Municipal Revenue Inspector
5
Gunasekara v. Municipal Revenue Inspector {supra) and De Silva v.Kurunegala Co-operative Stores Ltd. [supra). It ia common ground that-the appellant did not store furniture for others for gain.
Learned counsel for the respondent contended that any activitycarried on for the purpose of earning profits -would come -within theambit of the expression “ business ” in section 147, and that although theappellant did not store furniture for others for gain, as the appellant’sbusiness involved the storing of furniture prior to sale for however shorta time, the act of storing fell within the ambit of the expression ‘ ‘ business ’ ’even though that activity by itself produced no profit. He relied on thefollowing words of Jessel, Master of the Rolls, in Smith v. Anderson1:—"Anything which occupies the time and attention and labour of aman for the purpose of profit is business.”The Master of the Rolls was
merely adopting the definition of the word in the Imperial Dictionarywhich he described as a very good dictionary. In applying the dictionarymeaning of a word to a given context due regard must be paid to thecontext in which it occurs. Smith v. Anderson was an action to havethe Submarine Cable’s Trust wound up on the ground that thetrustees and the holders of Stock Certificates issued by them were carry-ing on business without being registered as a company under theCompanies Act, 1862. The question for decision was whether theTrustees were carrying on business within the meaning of that expressionin that Act. The Master of the Rolls held that they were. In appealhis finding was reversed. James L. J. said—
" With all deference to the very dear opinion of the Master of theRolls, I cannot concur in the construction whioh he has put upon the4th section of the Companies Act, 1862. ”
He proceeds later on in his judgment to say—
“ But supposing that the certificate holders do constitute an asso-ciation, it appears to me that it cannot, in any practical sense of theword “ business ”, in any sense in which any man of business woulduse that word, be said that the association was formed for the purposeof carrying on any business, either by themselves or by any agent. ”(p. 275).
James L.J. was supported by both Brett L.J. and Cotton L.J. in hisdisapproval of the meaning given to the word “ business ” in that context.The question whether separate activities which were parts of a largeorganisation conducted for the purpose of gain were by themselvesbusinesses did not arise for consideration in Smith's case. But thejudgments of the Court of Appeal emphasise the fact that in decidingwhether a particular activity is a business or not yon have to examineits object and scope and consider what is the substance of the transaction,
115 Oh. D. 258.
2*B10455 (6/63)
BASNA TAKE, OJ—Don Albni v, Muwiptf
Inepaotot
and the mere fact that gain results from a particular arrangement oractivity does not make that arraugement or activity a business, Thosejudgments also emphasise the importance of the principle that in intee-preting words in a given context importance must be attached to thesense in which they are used in that context.
In the instant case it appears to have been assumed that the act ofmaintaining stocks of more than one unit of the same article of furniturefor the purpose of replacing those sold from time to time, or to meet ademand for a number of pieces of furniture of the same kind, comeswithin the ambit of the expression “ storing But where stocks of goodsare maintained by a trader for the purpose of meeting the day to daydemands of his trade, it seems inappropriate to describe the maintainingof such stocks as " storing The word “ storing ” signifies stocking forsome length of time and not stocking for the day to day needs of a retailbusiness.
The number of activities that goes to make up a business would dependon its nature. A retail trader would have to buy, transport, stock, andsell his goods. He may even import direct some of the goods he sells.Similarly as in the instant case a furniture dealer would buy, transport,stock and sell his furniture. Even if he improved the furniture hebought by giving them a better polish than the manufacturer gave themor improved the upholstery, the act of polishing or improving the up-holstery would not be a business so long as the polishing and upholsteringare ancillary to the main business. Whether a business consisting ofmany ancillary activities is one business or a number of separate business-es under one direction has to be determined by an examination of thevarious activities. In the instant case the activities of stocking, polish-ing, touching-up, assembling, repairing where necessary such damageas occurred in transit, were all parts of one business—dealing in furniture.We uphold the submission of counsel for the appellant that the prohibi-tion in the by-law does not apply to storing of furniture per se. Itapplies only to the storing of furniture of others for gain.
The question whether an ancillary activity falls within the ambit ofthe expression business in section 147 was considered in the case ofThe Chairman, M. C., Colombo v. Silva1. In that case the accused was abuilding contractor who carried on business on a large scale. He wascharged with—
keeping a timber yard, and
keeping a timber sawing depot
in breach of the Ordinance and its by-laws. In his premises he had alarge yard 200 feet by 150 feet in extent with several sheds built upon it.In the yard and the sheds he prepared, the material needed for the build-ings he had contracted to construct, and a considerable amount of car-pentry work was involved. There were two steam-driven saws and a
5 {IS 17) 4 a. W. S. 150,
BASNAYAKJE, C.J—Dan Albert t>. Municipal Revenue Inspector
7
platform for hand-sawing. He had timber all over the yard, in the shedsand near the sawing benches. There were also finished door and window~frames. It was not disputed that all these were activities ancillary tothe accused’s business of building contractor. This Court held thatthose activities did not fall within the prohibition. The question whethera business ancillary to a main business fell within the ambit of section147 appears to have come up for consideration in the case of Jayaselcarav. Silva1 and it was held that an ancillary business did ; but that case didnot decide the point that was decided in The Chairman, M. C., Colombo v.Silva (supra) whether ancillary or subsidiary activities which per se arenot trades or businesses but are only activities feeding the businessadmittedly carried on falls within the ambit of the expression“business”. In Jayasekard’s case (supra) Bertram A.C.J. does notappear to have considered the previous case of The Chairman, M. C.,Colombo v. Silva, nor does it appear that he gave his mind to the questionof ancillary operations which are not independent businesses in themselves,for he says :
“ I do not think it is necessary to consider whether any particularbusiness is the main business carried on upon the premises or is onlya subsidiary business
The Chairman, M. G., Colombo v. Silva does not appear to have beencited at the argument of David v. Municipal Sanitary Inspector (supra)which is in conflict not only with that case but also with the case ofGhmasekara v. Municipal Revenue Inspector (supra) and De Silva v.Kurunegala Co-operative Stores, Ltd. (supra). With deference to mybrother Weerasooriya I wish to say that in adopting Jessel's definitionof business he appears to have not only overlooked the noscuntur a sociisrule but also not taken into account the opinions of the Lord Justicesof Appeal who disagreed with the interpretation of Jessel M. R.
In our opinion the case of David v. Municipal Sanitary Inspector hasbeen wrongly decided and the cases of The Chairman, M. C., Colombo v.Silva, Gunasekara v. Municipal Revenue Inspector, and De Silva v.Kurunegala Co-operative Stores Ltd. have been rightly decided and shouldho followed.
Herat, J.-—I agree.
Abeyestxndere, J.—I agree.
Appeal allowed,.
1 5 G. (V. R. 255.