010-NLR-NLR-V-58-M.-M.-ISMAIL-Petitioner-and-D.-S.-MARASINGHE-ChairmanVillage-Committee-Hanw.pdf
1956:Present : Gratlaen, J., and Gunasekara, J.
. M. M. ISJIAIL, Petitioner, and D. S. MARASIATGHE(Chairman, Village Committee, Hamvella), Respondent
S. C. Gil—Application for a Writ of Mandamus on (heChairman-, Village Committee, Hanwella
Jlulchcr—Application Jor renewal of licence—Hefusal by “ proper authority ” onground of a Jtcgulalion prohibiting sale of meat—Validity of such refusal—ATandamus—liulchers Ordinance (as amended by Ordinance Ho. 14 of 1047and Acts Ho. 2 of 1951 and Ho. 43 of 1953), ss. 2, 7, 13A.
Although, under section 13A of tho Butchers Ordinance, tho slaughter ofanimals may bo lawfully prohibited for a specified period in any area, thoprohibition in that area of the sale of meat of animals that have been lawfullyslaughtered in another area is ultra vires the “proper authority Therefore,mandamus would lie against a “ proper authority ” if, purporting to act undersection 7 of the Butchers Ordinance, he refuses to entertain in limine a butcher’sapplication for the renewal of his annual licence on the ground that an order liasbeen published in tho Government Gazette “ prohibiting the slaughter of animalsand sale of meat
^AlPPLICATIOX for a Writ- of Mandamus on the Chairman. VillageCommittee, Hanwella.
IV. Jai/euardene, Q.C., with S. B. Lchamgc, for the Petitioner.
JV. Id. Weerasooria, Q.C., with W. Wimalachandra, for the Respondent.
Cur. adv. vult.
February 27, 1050. Gkatiaex. J.—
The petitioner had for many years carried on a. trade of a licensedbutcher in the Village Committee area of which the respondent is atpresent “ the proper authority ” within the meaning of section 2 of the.Butchers Ordinance (as amended by Ordinance Xo. 44 of 1947 and ActsXo. 2 of 1951 and Xo. 4S of 1953). He applied to the respondent on2nd Xovember 1955 for a renewal of his licence for the 3Tear 1956, butreceived a reply dated 19th Xovember 1955 to the effect that the applica-tion “ could not be entertained ” because the respondent, by virtueof the powers vested in him by section 13a of the Ordinance (enacted bysection 6 of the amending Act of 1951) had published in the CeylonGovernment Gazette an order" prohibiting the slaughter of animalsand sale of meat *’ in the area during a specified period which includedthe whole of the year 1956. The petitioner has now applied to thisCourt for a mandate in the nature of a Writ of Mandamus directing therespondent to entertain his application dated 2nd Xovember 1955 andto deal with it according to law.
The duties of a proper authority ” on receipt of an application forthe issue of a licence to carry on the trade of butcher are prescribed bysection 7 of the Ordinance (as amended by section 6 of the OrdinanceXo. 44 of 1947). Ho shall publish a notice in the Gazette setting out theparticulars of the application and inviting objections to the issue of alicence. The applicant must then be given an opportunity of meetingsuch objections, if any. It is only at that stage that he is generallyempowered to decide whether or not to allow the application. Theapplicant has a i-ight- of appeal to the Minister against an order of refusal.
A preliminary objection was raised before us to the effect that mandamusdoes not lie in the present case, and that the petitioner’s only remedy isby way of appeal to the Minister. Mr. Wce-rasooriya relied on DonCarolis v. The Chairman, U. C., Gam pa ha 1 in support of this objection,but that authority is clearly distinguishable. In the present case,the respondent had refused to entertain the application in limine becausehe formed the view (as explained in paragraph 6 of his counter-affidavitdated 19th January 1956) that he had no power to grant a butcher’slicence during a- period covered by his purported prohibition of theslaughter of animals and the sale of meat in the area ; in otherwords, the action taken under section 13a made it impossible for anybutcher to carry on his trade lawfullj' within the Village Committee area,during 1956. If this assumption be correct, I agree that mandamus■would not lie because compliance with the requirements of section 7before the ultimate and inevitable refusal of his application wouldobviously be a purposeless formality. If on the other hand, the purportedprohibition under section 23a was either wholly or partially ultra viresthe proper authority', his peremptorjrrefusal to entertain the application(on grounds which were insupportable in law) constituted a breach ofbis statutory duty to follow the usual procedure before refusing anapplication which was regular on the face of it.
1 {1049) 51 X. L. R. 227.
X do not suggest that the failure of any member of the public to object-to the issue of a licence automatically divests the proper authority of his^discretion independently to refuse it bona fide and on reasonable groundshr the 'interests of the residents of the locality in order to.promote the-objects of the Butchers Ordinance. But the right of appeal conferredsection 7 (4) presupposes that the proper authority, having complied^vith|sectionV£ (2) and also (if applicable) with section 7 (3) (a), has made-ah'" of^ei^ uncler section 7 (3) (6). Perhaps the only justification forrefusing to entertain an application in limine would bo that the applica-tion under section 7 (1) had not been made in proper form or, of course,that the carrying on of any part of a butcher’s trade in the localityduring the relevant period has in fact been prohibited by some personvested with power to interfere so drastically with an occupation which isrisna facie lawful.
There remains the question whether the purported prohibition of theslaughter of animals and ike sale of meal within the limits of the VillageCommittee area during the 3Tear 1956 was ultra vires the proper authority.
Section 13a (1) of the Ordinance, which was introduced by section Gof the amending Act, No. 2 of 1951, passed into law on 23rd February1951. It is to the following effect :—.
“ The proper authority for any area may from time to time, byorder published in the Gazette, prohibit the slaughter of animals in thatarea or any specific part thereof during any specified period.”
This new section follows immediately after a group of sections (in theoriginal enactment) which are designed to ensure that the slaughter ofcattle in the area with a view to the sale of meat for human consump-tion is strictly supervised in the interests of public health. I shouldtherefore imagine that the power to prohibit the slaughter of animals“ from time to time ” was primarily granted to promote the sameobject, e.g., if an epidemic of cattle disease was temporarily prevalentin the area. No argument was addressed to us, however, on behalf of-the petitioner suggesting that the power could not be exercised bona fideTor other x'casons, and I shall therefore assume (without deciding) thatthe order relied on by the respondent was intra vires to this limitedextent. But Parliament has certainly not delegated to the“ proper authority ” the power to prohibit in toto the exercise of a‘ butcher’s trade in the locality. Mr. Weerasooriya very properly did notseek to justify that part of the order which purported to prohibit the saleof meat in the area during 1956 and X am satisfied that it was ultra-vires the proper Authority.
In the result, the petitioner has made an application for a licence-to carry on the trade of a butcher in 1956 in an area in which the slaughterof animals during the relevant period has (let it be assumed) beenlawfully prohibited. But there is nothing to prevent the other activitieswhich form part of a licensed butcher’s trade from being carried on inthe area. ‘ For instance, the Ordinance, in its original or amended formdocs not make it unlawful for a butcher “ to expose for sale ” in one
area the meat of animals that have been lawfully slaughtered in another*part of the Island. Accordingly, the petitioner’s application for alicence was not of a kind which the respondent could properly have-refused to entertain. The respondent- should therefore have followedthe normal procedure laid down in section 7 before deciding bona fidewhether or not there were reasonable grounds for granting or refusing-a licence to the petitioner. I would issue a mandamus directing him toentertain the application dated 2nd ^November 1955 and 'to deal with,it thereafter as required by the provisions of the Ordinance. The peti-tioner is entitled to the costs of this application which I would fix at.Rs. 315.
Application allowed.
Guxasekara, J.—T agree.