026-NLR-NLR-V-76-M.-THAJUDEEN-and-another-Appellants-and-K.-S.-GUNASEKERA-Respondent.pdf
P ATHIR ANA, J.—Thajudeen v. Gunasekera
133
4973Present: Pathirana, J., and Rajaratnam, J.
:M. THAJUDEEN and another, Appellants, and K. S.
GUNASEKERA, Respondent
S. C. 1037-1038 of 1969—M.M.C. Colombo, 36527
JButchens Ordinance (Cap. 272)—Sections 2, 3, 4 (l), 7, 14, 15, 18, 19—By-laws of the Colombo Municipal Council (Revised Edn. 1958)—Validity of By-law restricting sale of meat only to meat of animalsslaughtered at a Colombo Municipal Slaughter House—Circum-stances under which a by-law is repugnant to the general law.
By-law 30 of Chapter XIII of the By-laws and Regulations ofthe Colombo Municipal Council is not repugnant to and thereforenot ultra vires the Butchers Ordinance when it restricts the saleof meat only to meat of animals slaughtered at a Colombo MunicipalSlaughter House.
Lafier v. Ediriweera (70 N. L. R. 334) overruled.
Appeal from a‘Court, Colombo.
judgment of the Municipal Magistrate’s
Ranganathan, with G. F. Sethukavalar and G. S. Wijesekera,ior the 1st and 2nd accused-appellants.
J. W. Subasinghe, with (Miss) Nilmini Gunasekera for the.complainant-respondent.
Cur. adv. vult.
February 21, 1973. Pathirana, J.—
This appeal came before us consequent to an order made by!My Lord the Chief Justice dated 14.2.71 in view of the conflictingdecisions of this Court regarding the validity of the By-law;under which the accused were charged. The matter was thereforereferred before a bench of two judges.
The accused-appellants were charged as follows : —
“ You are hereby charged that you did within the juris-diction of this Court at No. 7, De Mel Street, Colombo, on1st October, 1968, expose for sale 77 pounds of meat of acarcase of a buffalo not slaughtered at the Colombo MunicipalSlaughter House and thereby committed an offence in breachof Rule 30 of Chapter XIII of the By-Laws and Regulationsof the Colombo Municipal Council published in Government•Gazette No. 6,080 of 20th October, 19.05, read with Section:267 (2) of the Municipal Councils Ordinance and thereby
134
PATH IRAN A, J.—Thajudeen v. Ounasekera
committed an offence punishable under Rule 2 of ChapterXXV of the said By-laws and Regulations published in theGovernment Gazette No. 8,212 of 8th April 1936.
(2) That at the same time and place aforesaid and in thecourse of the same transaction you did expose for sale 77pounds of buffalo meat without a Pass issued to you underRule 23 of Chapter XII of the By-laws and Regulations ofthe Colombo Municipal Council published in GovernmentGazette No. 6,080 of 20th October, 1905, read with Section267 (2) of the Municipal Councils Ordinance and therebycommitted an offence punishable under Rule 2 of ChapterXXV of the said By-laws and Regulations of the ColomboMunicipal Council published in Government GazetteNo. 8,212 of 8th April, 1936.’'
They were both found guilty on the two counts.
By-law 30 in Chapter XIII of the By-laws and Regulations ofthe Colombo Municipal Council (Revised Edition, 1958) reads : —“ (30). Except as otherwise provided in these by-laws, nocarcase of any animal (or any portion thereof) notslaughtered at a Municipal Slaughter-house shall be broughtinto a public or private market, or to any place speciallylicensed as provided in by-law 9 of this Chapter, or sold orexposed for sale in any public or private market or in anysuch, specially licensed place. The provision of this by-lawshall not apply to meat, game, or fish imported into theIsland. Meat, game or fish so imported shall be sold in anyplace specially licensed therefor.”
The appellants take up the position that the by-law isrepugnant to and therefore ultra vires the general law containedin the Butchers Ordinance (Chapter 272).
The repugnancy, it is submitted, arises in the followingmanner : —
By-law 30 restricts the sale or exposure for sale of meat
only to meat of animals slaughtered in the ColomboMunicipal Slaughter House ;
Prohibits the sale or exposure for the sale of meat of
animals slaughtered at other authorised places.
It is urged, therefore, that the by-law is ultra vires the ButchersOrdinance on the ground of repugnancy in that : —
(a) By Section 14 of the Ordinance the slaughter of animalsis not prohibited—
(1) at a public slaughter house as provided in ChapterIII of the Ordinance,
PATHLRANA, J.—Thajudeen v. Gunasekera
135
(2) at any place appointed by the proper authority.Proper authority is defined in Section 3 of theOrdinance.
(b) By Sections 18 and 19 of Chapter II of the Ordinanceby any person other than a licensed butcher on a-permit granted to him from the proper authoritydefined in the Ordinance.
Manicavasagar J. in Lafier v. Ediriweera1 (1966) 70 N. L. R. 334was of the opinion that the- by-law by confining the sale of meatof any animal slaughtered in the Colombo Municipal SlaughterHouse forbids and makes it unlawful that which the general law,namely, the Butchers Ordinance, has impliedly authorised.
Tennekoon J. in the unreported case (S. C. 110/66, M.M. C.Colombo, No. 26938/MPL) followed the judgment of Manica-vasagar J. and held that by-law 30 was ultra vires the ButchersOrdinance.
Samerawickrame J. in Sebastian v. Ediriweera2 (72 N. L. R. 64)refused to follow the above decisions and therefore took acontrary view. He held that the by-law was not ultra vires theButchers Ordinance. His decision was based mainly on the reasonthat the Ordinance requires a licence before any person exposesmeat of animals slaughtered in Ceylon for sale. The Ordinancetherefore treats the licence as a sine qua non for the sale of meatof animals slaughtered in Ceylon but has made no provisionin regard to the nature or quality or any other attribute thatthe meat that is to be exposed for sale should have. TheOrdinance, therefore, has no provision dealing with the matterwhich is the subject of the by-law.
A by-law affects the public or some portion of the public andis imposed by some authority clothed with statutory powers forsomething to be done or not to be done and accompanied bysome sanction or penalty for its non-observance. Further, itinvolves a consequence, that, if validly made, it has the forceof law within the sphere of its legitimate operation. '
A by-law however to be valid must be—
(a) intra vires the authority who makes it, that is, by-lawsare ultra vires if they impose restrictions or if theyare not authorised by the statute under which theyare purported to be made. In every case the by-lawmust be so framed that its provisions come within thescope of the particular statute under which it is made ;
>(J966) 70 N. L. R. 334.8 (i960) 72 N. L. R. 64.
PATHLR ANA, J.—Thajudeen v. Ounasekera
a 36
it must be certain in its directions and operation so as
to make it clear to all whom it concerns and what itrequires to be done or not to be done ;
it must be reasonable. Among other grounds by-laws
are considered to be unreasonable, for instance, if theyare found to be partial and unequal in their operationas between different classes ; if they were manifestlyunjust; if they disclosed bad faith, if they involveoppressive or gratuitous interference with the rightsof those subject to them as could find no justification inthe minds of reasonable men and the Court might wellsay, “ Parliament never intended to give authority tomake such rules ; they are not reasonable and ultravires ” ;
it must not be repugnant to the general law, namely,
the statute law.
In this case we are concerned only with the alleged invalidityof the by-law 30 on the ground of its repugnancy to the generallaw, namely, the Butchers Ordinance.
The principles that could be gathered from the decided casesgoverning the circumstances under which a by-law is repugnantto the general law and therefore invalid may be recapitulatedas follows—Vide Powell v. May1—(1946), 1 A. E. R. 444 : —
It must not permit that which the statute expressly
forbids ;
It cannot forbid that which the statute – expressly
permits ;
It can, of course, forbid that which otherwise would be
covered by the common law, otherwise no prohibitoryby-law could be valid. The by-law must necessarilyadd something to the common law as otherwise it willbe idle ;
{d) A by-law is not bad because it deals with somethingthat is not dealt with by the general law ;
It must not alter the general law by making that lawful
which the general law makes unlawful—White v.Morley 3 (1899) 2 Q. B. 34 ;
A by-law is not repugnant to the general law merely
because it creates a new offence and says that some-thing shall be unlawful which the law does not sayis unlawful;
(1946) 1 A. E. R. 444.
(1899) 2 Q. B. 34.
PATH 1 RAN A, J:—Thajudeen v. Qunasekera
137.
It is repugnant if it expressly or by a necessary
implication professes to alter the general law of the-land ;
It is repugnant if it adds something which is inconsistent.
with the provisions of the statute creating the same-offence but if it adds something not inconsistent, that,is not sufficient to make a by-law bad as repugnant—Gentel v. Rapps1 (1902) 1 jK. B. 160.
Against the back ground of these principles I have to considerthe submissions of Mr. Ranganathan that by-law 30 is repugnant,to the Butchers Ordinance. Mr. Ranganathan’s submissions are-briefly as follows : —
The Butchers Ordinance confers a right to the licensed butcher-to carry on the trade of a butcher which includes the*right to sell or expose for sale the meat of animals. The Butchers.Ordinance further confers the right to sell meat obtained at any-one of the slaughter houses prescribed in Section 14 of the-Ordinance. The necessary implication is therefore that the-licensed butcher can sell or expose for sale meat slaughtered;at any one or more of these places. The repugnant by-lawtherefore restricts the licensed butcher’s rights to sell meat onlyslaughtered in the Colombo Municipal Slaughter house. The-decisions of Manicavasagar J. and Tennekoon J. proceeded onthe view that the provisions of the Butchers Ordinance impliedlyauthorised the sale of meat of animals slaughtered in a public-slaughter house or other places appointed by the public authority-and the by-law in question restricts the sale of meat only to-that of animals slaughtered in the Colombo Municipal Slaughterhouse and the by-law is therefore inconsistent with the provisions,of the Ordinance.
If one reads Section 4 (1) and Section 2 together, the licensed-butcher can carry on the trade of a butcher which includes eitherthe slaughtering of animals or exposing for sale the meat of'animals slaughtered in Ceylon. A licensed butcher can therefore-either do both, slaughter animals and expose for sale the meatof animals slaughtered in Ceylon or he can restrict himself to*either slaughtering the animals or only exposing for sale the-meat of animals slaughtered in Ceylon. Let us take the case ofa licensed butcher who does not wish to slaughter animals butwho restricts himself to selling or exposing for sale the meatof animals slaughtered in Ceylon. On an analysis of the ButchersOrdinance it appears to me that such a person who wishes to*carry on as a butcher must have : —
A licence issued to him by the proper authority who is;defined in Section 3 ;
‘ (1902) 1 K. B. 160.
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PATHIRANA, J.—Thajudeen v. Gunasekera
He could sell or only expose for sale meat of animals
slaughtered in Ceylon—Section 2 ;
He shall not expose for sale or cause to be exposed for
sale the flesh of any animal suffering from any disease—Section 15 (2) ;
He shall not sell or expose for sale or cause to be sold
or exposed for sale the flesh of any animal that hasbeen inflated with air—Section 15 (3).
Beyond these restrictions the Butchers Ordinance has noprovision in regard to the nature or quality or other attributethat the meat that is exposed for sale must have, as thisOrdinance mainly deals with the slaughter of cattle and hasprovisions for the establishment of slaughter houses.
On the other hand if a licensed butcher decides only to restricthis trade to that of slaughtering of animals then Section 14 inmy view applies to such a person because this section reads asfollows : —
“No licensed butcher shall slaughter any animal at anyplace other than—
the place appointed by the proper authority, or
any public slaughter house as hereinafter provided ; ”
Section 14 to my mind only applies to a licensed butcher whoif he wishes to slaughter any animal should do so at one ormore of the appointed places. Section 14 nowhere states thatthe licensed butcher should only sell meat of animals whichhave been slaughtered at a place prescribed in Section 14. I willnext consider the case of a person who carries on the trade ofa butcher in the sense that he slaughters animals as well asexposes for sale the meat of animals slaughtered in Ceylon. TheButchers Ordinance nowhere states that the meat of any animalthat is exposed for sale should be from any animal slaughteredat any one or more of the places prescribed in Section 14.
I am in agreement with the reasons given by Samerawickrame
J.in the case of Sebastian v. Ediriweera1 (72 N. L. R. 64). Hesays—
“ It appears to me that in the absence of any provision inthe Ordinance as to the meat of animals that may be or maynot be exposed for sale by a licensed butcher it is not possibleto say that the sale of any category of meat of animals hasbeen impliedly authorised and that it is not consistent withsuch provisions. Accordingly it follows that the by-law
(1909)72 N.L, B 64.
PATHTKANA, J.—Thajudeen v. Gunasekera
139
does not prohibit what the provisions in the Ordinanceimpliedly authorised and that it is not inconsistent with theOrdinance.”
The Municipal authorities who have the duty to sell wholesomemeat by recognised hygenic standards for human consumptionwere probably aware that the Butchers Ordinance did not dealwith the specific question regarding the quality of meat thatshould be exposed for sale in the private or public markets estab-lished under the Municipal Councils Ordinance because on areading of the Butchers Ordinance one finds that a licensedbutcher can sell the meat of animals slaughtered anywhere evenunder the most unhygenic conditions- It is only the person whoslaughters animals who has to comply with Section 14 of theOrdinance.
I wish to apply to the facts of this case the principles relied onby Channell J. in White v. Morley 1 (1899) 2 Q. B. 34, at 39—
“A by-law is a local law, and may be supplementary tothe general law ; it is not bad because it deals with some-thing that is not dealt with by the general law- But it mustnot alter the general law by making that lawful which thegeneral law makes unlawful; or that unlawful which thegeneral law makes lawful.”
This principle has been referred to in the case of Powell v.May2 (1946) 1 A.E.B. 444. I must also refer to another principlelaid down in Gentel v. Rapps 3 (1902) 1 K. B. where Channell J.said at page 165—
“ On the question of repugnancy I repeat what I have saidbefore. A by-law is not repugnant to the general law merelybecause it creates a new offence, and says that somethingshall be unlawful which the law does not say is unlawful.”
Nowhere in the Butchers Ordinance is it said that the sale by alicensed butcher of meat of animals not slaughtered in any oneof the slaughtering houses prescribed under Section 14 is unlaw-ful and therefore an offence. A by-law in my opinion is thereforeentitled to fill this omission and lay down that only meat ofanimals slaughtered at a particular slaughter house could beexposed for sale at a public or private market established underthe Municipal Councils Ordinance.
In construing whether a by-law is repugnant to the generallaw I am also mindful of the observations made by Darling J-in White v. Morley (supra), following Kruse^v. Johnson* (1898)
1 (1S99) 2 Q. B. 34 at 39.* (1898) 2 Q. B. 91.
* (1946) 1 A. E. R. 44A-* (1902) 1 K. B. at 165
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PATHIRANA, J.—-Thajudeen v. Gunasekera
2 Q.B. 91 that the Courts should not look at by-laws of localauthorities—the popular elected governing bodies of Boroughsand Counties—from the same point of view as they were in thehabit of looking at the by-laws of railway companies and otherlike bodies, and that a larger discretion has to be given to thesepublic representative bodies than is to private bodies.
The question before me is whether Section 14 of the Butchers^Ordinance and the by-law deal with the same case. If they do-then I must concede that there are grounds for repugnancy butI do not think so- Section 14 deals with only slaughtering ofanimals whereas by-law 30 deals with the sale or exposure forsale of meat of animals. I am fortified in coming to this conclu-sion by the approach made to the problem in the case of White v.Morley both by Darling J. and Channell J. This case incidentally^was also referred to by Samerawickrame J. in the case ofSebastian v. Ediriweera. The London County Council made aby-law providing that no person should frequent and use anystreet or other public place for the purpose of betting under a-penalty. By Section 23 of the Metropolitan Streets Act, 1867,any three or more persons assembling together in any part ofthe street for the purpose of betting shall be deemed to beobstructing the street, and each of them shall be guilty and a-penalty is imposed. It was held that the by-law was notrepugnant to Section 23 and was valid. Darling J. observed asrfollows : —
C
“ The question, therefore, is whether this statutory enact-ment and this by-law do deal with the same case. I do notthink that they do. It is true that they both deal'with betting, and that they both deal with the-obstruction of the streets. But that which is punishable-under the one is not punishable under the other. The statuteprohibits three persons meeting together and making bets inthe streets. It does not say that one person may not use the-streets for betting purposes ; neither does it say that he may-do so. The by-law, on the other hand says that one person-shall not frequent and use the streets for betting. That isquite a different thing from what the statute providesagainst. The statute prohibits three persons assemblingtogether—that is, on any one occasion—in a street for thepurpose of betting ; the by-law prohibits any one person-frequenting and using a street or other public place forbetting, whether other persons come to him there or not,provided that he frequents it. It seems to me, therefore, thatthe by-law and the statute deal with two different offences^and that the objection that the by-law is repugnant to the?statute fails.”
FATHER ANA, J.—Thajudeen v. Gunasekera '
141
Channell J. observed thus :
“The Metropolitan Streets Act makes the assemblingtogether of three persons for something that is beyond theordinary user of the highway an obstruction of the highwayand punishable with a fine. Then the by-law makes a differentthing an offence. It makes the frequenting of the placeunlawful.”
I shall next consider the question whether by-law 30 even bynecessary implication by confining the sale of meat only toanimals slaughtered in the municipal slaughter house forbids andmakes unlawful that which the general law has impliedly autho-rised. A good example of repugnancy by necessary implicationis given in Gentel v. Rapps1 (1902), 1 K. B. 160 at 166.—
“ It is repugnant if it expressly or by necessary implicationprofesses to alter the general law of the land. I say ‘ bynecessary implication ’ because I have in mind the cases withrespect to by-laws prohibiting persons from travelling onrailways without a ticket. In those cases by-laws whichimpose the same penalty as the general law without makinga .fraudulent intention part of the description of the offencehave been held to be bad, because the statute creating theoffence says that there must be a fraudulent intention on thepart of the person charged with travelling without a ticket,and the by-law, therefore, by implication alters the generallaw. ”
The principle set out in this passage is illustrative of the. needto restrict the meaning of the words “ by necessary implication ”,and not give it too elastic a connotation because if this is donethe implications of every by-law can be stretched so as to give itan interpretation that will make it possible to be repugnant tosome general law or other.
In the result I must respectfully say that I cannot agree withthe conclusions arrived at both by Manicavasagar J. and Tenne-koon J. in interpreting by-law 30 as ultra vires the ButchersOrdinance. The Butchers Ordinance nowhere expressly or bynecessary implication states that the sale of meat can only beof meat of animals slaughtered- at the places prescribed inSection 14 of the Butchers Ordinance. I must also say, withrespect, that I do not agree with the reasoning of Tennekoon J.because the fallacy of his argument lies in the answer he gaveto the manner in which the problem was erroneously posed tohim. He states—
“ The submission made by counsel for the appellant is thata licensed butcher gets the right not only to slaughter1 (1902) 1 K. B. 160 at 166.
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RAJAHATNAM, J.—Thajudeen v. Gunasekera
animals but also the right to sell the meat of animals soslaughtered ; it is then submitted that by-law 30 makesunlawful the sale of the meat within the Municipal Councilarea the meat slaughtered in a place £ appointed by theproper authority That is something by necessary implica-tion made lawful to any butcher licensed under the ButchersOrdinance and for this reason the by-law is invalid. I agreewith the submission. ”
Section 14 only deals with slaughtering of animals and hasnothing to do with sales. I, therefore, agree with the very logicaland practical conclusion arrived at by Samerawickrame J. whenhe states :—“ I am, therefore, of the view that the by-law dealingwith the meat of animals that may be sold or exposed for sale inany public or private market or other specially licensed placewithin the administrative limits of the Municipal Council ofColombo cannot be said to be inconsistent with the provisionsof the Butchers Ordinance for the reason that the ButchersOrdinance has no provision dealing with the matter which isthe subject of the by-law ”.
No grounds have been urged against the findings of fact of thelearned Magistrate. I hold that by-law 30 is not repugnant to andtherefore not ultra vires the Butchers Ordinance. The convictionsare affirmed, and the appeals are dismissed.
Rajabatnam, J.—
I have had the opportunity of reading the reasons given by mybrother for dismissing the appeals. I agree.
To my mind, however, there is a simple approach to these twoquestions, viz.— 1 2
(1)Does Section 14 of the Butchers Ordinance give a right
to a licensed butcher to slaughter animals both— .
at a place appointed by the proper authority and
at any public slaughter house ?
(2)Can a licensed butcher therefore be prevented by by-
law 30 without repugnancy to s. 14 from selling orexposing for sale flesh of animals slaughtered at aplace appointed by the proper authority and at anypublic slaughter house ?
RAJARATNAM, J.—Thajudeen v. Cktnasekera
143
The general definition of a butcher includes every person thatslaughters animals or exposes for sale the meat of animalsslaughtered in Ceylon. (Section 2 of the Butchers Ordinance)
A licensed butcher, however, under the provisions of this Ordin-ance is a butcher who is issued a licence on application, by theproper authority. The applicant is required under s. 7 of the saidOrdinance to state the premises where he wishes to carry on histrade and in this particular case such premises are within thearea of the Municipal Council of Colombo. The Mayor is theproper authority to issue the licence. The Mayor of the localauthority concerned has a supervisory control of the licensedbutcher and on certain grounds can revoke the licence. A butcherwho has been licensed to carry on his trade in the premises hehas disclosed in his application within the Colombo Municipalityis licensed to carry on his trade within the administrative limitsof the Colombo Municipality only. Therefore a licensed butchercannot claim to have a right to slaughter his animals outsidesuch limits at any public slaughter house. He can only slaughterat the place appointed by the proper authority if there is one soappointed or at a public slaughter house within such limits.Section 14 cannot be considered in isolation, it must be readwith the other sections of the Ordinance and in the context ofthe other provisions, it is a prohibitive and restrictive sectionleaving only two places or two classes of places for licensedbutchers to slaughter their animals. The Ordinance did not indetail specify all such appointed places or all such publicslaughter houses in the island. It prohibited every place whichdid not fall within the category of an appointed place or a publicslaughter house. It meant nothing more. Therefore one has totake into consideration which proper authority has licensed aparticular butcher. If a licensed butcher licensed to carry on histrade in Colombo, is permitted under S. 14 to slaughter animals inHorana in effect he will be carrying on his trade in Horanaaccording to the definition of the term butcher which will beoutside the scope and condition of his licence. I cannot thereforeagree with learned Counsellor the appellants that a licensedbutcher has any right under the statute to slaughter animalsoutside the administrative limits of the proper authority. Unders. 14 such a licensed butcher is permitted to slaughter animalsif there is a place appointed by the proper authority or at anypublic slaughter house within such limits. For the control and
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RAJARATNAAf.—Tiiajudeen v. Qunasekera
supervision of its licensees and its markets the local authorityis empowered to pass by-laws and by-law 30 is in no wayrepugnant to s. 14 of the Ordinance.
My answer to question (1) is in the negative. Section 14contains a general prohibition and a general restriction to alllicensed butchers in the country and if read with the othersections a licensed butcher cannot sell or slaughter outside theadministrative limits of the proper authority. I do not say thats. 14 means anything more than that. I fail to understand how itcan be said that thereunder, every licensed butcher can go aboutslaughtering animals in any public slaughter house in thecountry. My answer to question (2) will therefore not arise. Evenif question (1) is answered in the affirmative, which in my viewcannot be so answered, By-law 30 which regulates only the saleof meat is not repugnant to s. 14.
These appeals must therefore be dismissed.
Appeals dismissed.