Sri Lanka Law Reports
 1 Sri L.R
MANAGING DIRECTOR, POLHENA REEF GARDEN HOTELv
REVENUE INSPECTOR, URBAN COUNCIL, MATARACOURT OF APPEALNANAYAKKARA, J. ANDABEYRATNE, J„
PHC MATARA HRCR 202/02
M.C. MATARA 31269
Urban Councils Ordinance, sections 21 and 164(2) – By laws – Failure to paylicence fee – Is it an offence? – Keeping hotel without a licence – Continuingoffence – Action to be instituted within six months.
The accused-petitioner was charged under two counts: (1) committing anoffence punishable under section 164(2) by failing to pay a licence fee of 1%of the gross turn over of the business in respect of 1997 and (2) committing anoffence by keeping the hotel during 1997 without a licence. Consequent to anorder made by the Magistrate’s Court over-ruling certain preliminary objectionsto the charges, the accused-petitioner moved the High Court in revision, whichcourt dismissed the said application.
Though the provisions of the Urban Councils Ordinance cast a duty onthose who conduct certain businesses to pay a tax, the failure to do sodoes not create an offence; the accused-petitioner cannot be held liableto any kind of punishment under the Ordinance.
The offence of keeping a hotel without a licence is a continuing and arecurring offence, in respect of which a prosecution could be launchedat any time within six months of the commission of the offence undersection 21.
The accused-petitioner is alleged to have kept the hotel during the year1997 without obtaining a licence, and the prosecution was launched on25.5.98 before the expiry of the six months period, well within the stip-ulated period.
APPLICATION in revision from an order of the High Court of Matara.
Kalinga Indatissa for petitioner
S.F.A.Cooray for 1st respondent
K. Wickremasinghe, Senior State Counsel for Attorney-General
Managing Director, Polhena Reef Garden Hotel
CA y Revenue Inspector, Urban Council, Matara (Nanayakkara J.)363
February 23, 2004NANAYAKKARA, J.
The accused-petitioner-petitioner (accused-petitioner) in this 01case was charged in the Magistrate’s Court of Matara with the fol-lowing counts;
That he committed an offence punishable under sec-tion 164(2) of the Urban Councils Ordinance by failing topay as licence fee 1 percent of the gross turnover of thebusiness in respect of the year 1997.
that he committed an offence by keeping the hotel
during 1977 without a licence in violation of By Law 1 ofPart VI and Part VII of the By Laws of the Matara UrbanCouncil.10
Consequent to an order made by the learned Magistrate over-ruling certain preliminary objections to charges, the accused-peti-tioner moved the Provincial High Court seeking a revision of thesaid order of the Magistrate.
As the learned High Court Judge too had by his order dated13.06.2002 refused to revise the said order of the Magistrate, theaccused-petitioner preferred this appeal to this court.
It would be appropriate at this stage to determine the validity ofthe grounds on which the learned High Court Judge’s order isimpugned by this application.20
As far as the first count with which the accused-petitioner wascharged is concerned, as conceded by the respondent-respondent,although provision of the Urban Councils Ordinance cast a duty onthose who conduct certain businesses to pay a tax, the failure to doso does not create an offence; this court would be constrained tohold that the accused-petitioner cannot be held liable to any kind ofpunishment under the said Ordinance.
This second count in respect of which the accused-petitionerhas been charged relates to an offence of keeping a hotel and alodging house without a licence issued in that behalf in violation of 30the by laws adopted by the Urban Council. The offence of keepinga hotel without a licence is created By Law 1 in Part VI of the stan-
Sri Lanka Law Reports
 1 Sri L.R
dard By Laws and the said offence is punishable under By Law 2of the Part VI of the said standard by laws.
This is a continuing and recurring offence in respect of whichprosecution could be launched at any time within 6 months of thecommission of the offence under section 21 of the Urban CouncilsOrdinance.
Therefore the objections taken to the 2nd charge that it was timebarred and the argument that the 2nd charge against the accused- 40petitioner is not maintainable cannot be accepted by this court asthe prosecution could have been launched at any time within a peri-od of 6 months for having kept a hotel without a licence for thewhole period of the year 1997.
According to the complaint made to the Magistrate’s Court theaccused-petitioner is alleged to have kept a hotel and lodginghouse during the year 1997 without obtaining a licence in violationof the By Laws of the Urban’Council and the prosecution in respectof that charge had been launched on 25.05.1998. Therefore it isevident that the action against the accused-petitioner had been soinstituted before the expiry of the 6 months period stipulated by theBy Laws and the institution of proceedings against the accused-petitioner was well within the period stipulated by law.
The question whether the accused-petitioner is the ManagingDirector or not depends entirely on evidence and other factual mat-ters and till evidence in that regard is led it would be difficult for thiscourt to determine liability of the accused-petitioner in respect ofthe 2nd charge.
Therefore I am of the view that the case should be remitted tothe Magistrate to determine the said issue on the basis of evidence. 60
Accordingly the case is sent back to the Magistrate’s Court fortrial on the'2nd charge preferred against the accused-petitioner.
ABEYRATNE, J.I agree
Case remitted to the Magistrate’s Court for trial on the 2nd charge preferredagainst accused-petitioner.