M. A. A. HUSSAIN, Appellant, and THE TRIBUNAL OF APPEAL UNDER LICENSING OF TRADE

015-NLR-NLR-V-65-M.-A.-A.-HUSSAIN-Appellant-and-THE-TRIBUNAL-OF-APPEAL-UNDER-LICENSING-OF-TRADE.pdf


Hussain v. The Tribunal of Appeal under Licensing of Traders Act
63
1963 Present: Basnayake, C.J., Abeyesundere, J., and G. P. A. Silva, 3.
M. A. A. HUSSAIN, Appellant, and THE TRIBUNAL OE APPEALUNDER LICENSING OF TRADERS ACT
S. C. 1 of 1962—Tribunal of Appeal 0. 4 j Licensing of Traders Act
Licensing of Traders Act, No. 62 of 1961—Sections 2, 3, 4, 6, 7 (1)—Licensing Authorityappointed by Minister—His incapacity to appoint other licensing authorities—Incensing of Traders (No. 1) Regulations, 1961—Validity of Regulations 2 and12.
Section 3 (b), read with section 4, of the Licensing of Traders Act empowersthe Minister to declare by regulation the authority or authorities by whomlicences may be granted, but it does not empower him to make a regulationauthorising a licensing authority to appoint others to exercise any of the powersof a licensing authority.
Accordingly, Regulation 12 of the Licensing of Traders (No. 1) Regulations,1961, being ultra vires, the Director of Commerce, who is declared by Regulation2 to be the Licensing Authority, cannot avail himself of the provisions of Regula-ion 12 to appoint Government Agents to exercise the powers of a licensinguthority.
64BASNAYAKE, C.J.—Evaeain v. The Tribunal of Appeal
under Licensing of Traders Act
A-PPEAL from a decision of the Tribunal of Appeal constituted undersection 6 of the licensing of Traders Act, No. 62 of 1961. This appealwas referred to a Bench of three Judges by an order made under section48 A of the Courts Ordinance.
H. Rodrigo, with D. A. E. Thevarapperuma and M. D. K. Kulalunga,for the Appellant.
V. 0. QunatUake. Crown Counsel (on 1.2.63), and R. S. Wanasunderc,Crown Counsel (on 14.2.63), as amicus curiae.
February 14, 1963. Basnayajlb, C.J.—
This is an appeal from a decision of the Tribunal of Appealunder section 6 of the Licensing of Traders Act, No. 62 of 1961.
Section 7 (1) of that Act provides that an appeal shall lie on any ques-tion of law against an order of a Tribunal to the Supreme Court and shallbe preferred before the expiry of a period of one month next succeedingthe date of the order of the Tribunal.
This appeal, came up for hearing before my brother Tambiah in thefirst instance who, under section 48 of the Courts Ordinance, reservedthe question of law arising thereon for the decision of more than oneJudge of this Court. An order under section 48A of that Ordinance wasmade by me and the appeal comes up for hearing before us in pursuanceof that order.
The following grounds are urged in the petition of appeal:—
“I. The said order is contrary to the weight of evidence.
Charge I does not disclose the contravention of any regulation.
It is incompetent and illegal for the Licensing Authority interms of section 5 (1) (d) of the Act to impose a penalty inthe nature of a fine without at the same time suspending or cancellingthe licence given to a trader.
It is unconstitutional for the Licensing Authority not being ajudicial officer appointed by the Judicial Service Commission to havepunished the Appellant by punitive orders.
The Appellant had not been asked to show cause in terms ofsection 5 (2) of the Act, the Notice that was served on him not being anotice meeting the requirements of the section.”
Briefly, the relevant facts are as follows ;—The appellant is the j>rop-rietor of the stores known as Pathuma Stores in Wellawaya. On 6thSeptember 1961 the Divisional Revenue Officer-, Wellawaya, inspectedhis shop and made the following report:—
“ (l) He does not possess a dealer’s licence. I was told that he hasapplied for a lioenoe and that he has not received it so farfrom the Kaohcheri.
BASNAYAKE, C.J.—Hussain v. The Tribunal of Appeal
under Licensing of Traders Act
65
A notice board showing the price list was not available. In-
stead there was a list on a paper written in pencil. This wasnot displayed conspicuously. This is against RegulationNo. 8.
It was mentioned on this list that gram and dhal were available
for sale. But when questioned as to where these items wereI was told that they were sold out. This is a contraventionof Regulation No. 8 (3).
It was stated on this notice board that onions (B. onions) were
available for sale. But in fact they were not available forsale. The dealer told me that this item was sold off. Thisis a contravention of Regulation No. 8 (3).
Biscuits were available for sale, but their availability or their
prices were not indicated on the notice board. This is acontravention of Regulation No. 8.
There were two varieties of chillies for sale. The dealer stated
that the price of one variety was Rs. 1.15 per lb. and the otherRs. 1.00 per lb. But only the variety sold at Rs. 1.15 per lb.was indicated on the notice board. This is a contraventionof Regulation No. 8.”
Thereupon the Government Agent of MoneragaJa on the 8th September1961 addressed the following communication to Pathuma Stores,Wellawaya :—
“ The D.R.O., Wellawaya has reported that he inspected your shopon 6th September 1961 and that you have resorted to the followingmalpractices:—
A proper notice board showing the prices of goods was not
displayed conspicuously. Instead you produced a list ofgoods on a paper written in pencil.
It was indicated on the list of goods that gram, dhal and onion
(B. onions) were available for sale. But these items were notin fact available for sale.
Biscuits were available for sale. But it was not stated in the
list of goods that they were available for sale nor were theprices of these items given in the list.
There were two varieties of chillies for sale. The price of one
variety only was given in the list of goods. The price of theother variety did not appear at all.
2. You have thereby contravened Regulations No. 7, 8 (3) and 8 (4)of Regulations under the Licensing of Traders Act, No. 62 of ’61 pub-lished in the Ceylon Government Gazette No. 12.575A dated 10.8.1961as amended in the Ceylon Government Gazette No. 12,610 dated18.8.1961.
66
BASNAYAKE, tt.—Huaeam v. The Tribunal of Appeal
under Licencing of Traders Aot
3. As each, you we hereby requested to make a submission, If any,within 3 days of the receipt of this letter, explaining as to why a puni-tive order should not be imposed on yon by me by virtue of the powersvested, in me under the Licensing of Traders Act, No. 62 of 1961."
The appellant made his submission as required by the GovernmentAgent by his letter dated 9th September 1961 which reads—
'* [Reference to your order No. FC/195 dated 8.9.61,1 had prepared& Board but the paint of this had not dried. I had therefore prepareda cardboard notioe which had also got washed away for rain on 5.9.61,therefore, had to write it in pencil to make it easily readable. Now theproper notice board showing the list of goods has been prepared.
It is true that I had marked the prices of gram, dhal and Bombayonions on the notice board. But these items were not available at thatmoment for sale. I instructed my assistant to remove from the NoticeBoard any article which was not available for sale. But it is true thatat the time of inspection the names of these items were on the Board.This was due to an oversight. I wish to inform you humbly thatthis was not an act of disobedience.
It is true that biscuits were available for sale. I did not mentionit on the Notice Board as I was not aware of the controlled price. Atpresent the prices of this item are also marked on the Notice Board.
There were two varieties of chillies for sale. Their price listswere also available. But the label on which the price of one varietywas marked had been blown out by the wind and dropped by theside of the trough in which chillies was packed. I pointed this outto the D.R.O. at the time of inspection. Here too, I have the honour toinform you that it was not due to my negligence. Furthermore Ihave the honour to inform you that in future I will not act carelessly andto request you most humbly to pardon me for these offences.”
Thereafter, on 15th September 1961 the Government Agent, Monera-gala, sent the following communication to the appellant:—
“ With reference to you letter dated 9.9.61.
2. Your explanations given to the charges in my letter No. FC/195dated 8.9.61 are unsatisfactory. Yon are therefore found guilty of allthese four charges. As such, by virtue of the powers vested in meunder the Licensing of Traders’ Aot No. 62 of 1961 and the Regulationsmade thereunder, I impose on you the following fines for each chargeand order you to credit a sum of Rs. 900/- to the general revenue.You shall pay the money on or before 30.9.61.
Charge No.
Fines
(D
(2)
(3)
w
Re. 200/-Re. 200/-Re. 200/-Re. 300/-.’*
BASNAYAKE, C.J.—Hussain v.The Tribunal of Appeal67
under Incensing of Traders Act
The appellant appealed against that order to the Tribunal of Appealconstituted under section 6 of the Licensing of Traders Act, No 62 of 1961.The Tribunal of Appeal heard his appeal and made order to the effectthat it saw no reason to interfere with the findings of the LicensingAuthority and confirmed its order and dismissed the appeal.
It is sufficient for the purpose of this appeal for us to confine ourselvesto the ground of appeal that the authority that purported to impose thepenalty on the appellant was not competent and that its findings aretherefore illegal.
Under section 3 of the Licensing of Traders Act, No. 62 of 1961, regu-lations may be made under that Act for or in respect of all or any of thematters specified therein relating to any area to which or class of tradersto whom, an order under section 2 is applicable. An order under section2 had been made and published in Gazette No. 12,575Aof 10th August1961. That order reads—
“ By virtue of the powers vested in me by section 2 of the Licensingof Traders Act, No. 62 of 1961, I, Tikiri Bandara Hangaratne, Ministerof Commerce, Trade, Food and Shipping, do by this Order declare- that—
with effect from eleventh day of August, 1961, no person otherthan a person exempted from the application of the aforesaid sectionby regulation made under the Act, shall carry on business as a traderin any class of any article unless he is the holder of a licence authorisinghim to carry on such business or otherwise than in accordance with theterms and conditions of such licence ; and
paragraph (1) of this Order shall be applicable—
(а)to the whole of Ceylon; and
(б)to all classes of traders other than itinerant vendors who do not
have a fixed place of business. ”
The Minister of Commerce, Trade, Food and Shipping has also maderegulations under sections 3 and 4 of the Licensing of Traders Act, No. 62of 1961, entitled the Licensing of Traders (No. 1) Regulations, 1961.Regulation 2 of those regulations reads—
“ The Director of Commerce shall be the Licensing Authority for thepurpose of these regulations.”
csBASNAYAEE, C.J.—Hussain v. The Tribunal of Appeal
under Licensing of Traders Act
Regulation 12 prcmdee—
5< Tiie Director of Commerce may by notification published in theGazette appoint the Government Agent of any Administrative Districtto exercise the powers of the Director of Commerce as a Licensingauthority under these regulations within the Administrative Districtof such Government Agent.”
Acting under the above regulation the Director of Commerce publishedthe following notification in the Gazette No. 13,292 of 5th September1962
" By virtue of the powers vested in me by regulation 12 of theLicensing of Traders (No. 1) Regulations, 1961, published in GazetteExtraordinary No. 12,575A of August 10, 1961, I, Ginige RichardWalter de Silva, Director of Commerce, do by this notification—
appoint the Government Agent, the Additional Government
Agent and the Assistant Government Agents of eachAdministrative District specified in the Schedule hereto, toexercise within their respective Administrative Districtsthe powers vested in me as a licensing authority under theLicensing of Traders (No. 1) Regulations, 1961and
cancel the notification under regulation 12 of the Licensing of
Traders (No.l) Regulations, 1961, published in Gazette No.12,577 of August 11, 1961.”
Regulation 2 which declares that the Director of Commerce shah bethe licensing authority is not questioned by the appellant, but regulation12 is. He submits that section 3 (b) empowers the regulation makingfunctionary to declare by regulation the authority or authorities by whomlicences may he granted, but that it does not empower him to make aregulation authorising the Director of Commerce or any other authorityto appoint others who may grant licences. The submission of theappellant is sound and is entitled to succeed.
Regulation 12 being ultra vires the Government Agent of Moneragalahad no authority in law to punish the appellant or exercise any of thepowers of a licensing authority. The proceedings taken by him areillegal.
We accordingly reverse the order of the Tribunal and quash the orderof the Government Agent of Moneragala.
ABSvEstnsrDBBSi, J.—I agree.
G. P. A. Silva, J.—I agree.
Appeal allowed.