004-NLR-NLR-V-30-MISSO-v.-FONSEKA.pdf
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Present: Garvin J.
MISSO v. FONSEKA.195—M. C. Colombo, 4,979.
Municipal Councils Ordinance—Licence to carry on a dangerous oroffensive trade—Chairman's right to limit the duration of thelicence—Ordinance No. 6 of 1910, a. 212.
The Chairman of the Municipal Council has power to limitthe duration of a licence granted by him to a person, undersection 212 of the Municipal Councils Ordinance, to carry on abusiness declared to be dangerous or offensive.
When a business is so declared to be dangerous or offensive, theprohibition contained in the section operates, notwithstandingthe fact that the trade or business had been carried on before suchdeclaration.
A PPEAL from a conviction by the Municipal Magistrate ofColombo.
U. V. Perera, for accused, appellant.
Hayley, K.G. (with Roberts), for complainant, respondent.
July 17, 1928. Garvin J.—
, The appellant was convicted of the offence of using certainpremises for the purpose of curing plumbago without a licencein breach of section 212 of the Municipal Councils Ordinance, No. 6of 1910, and a by-law made imder the provision of that sectiondeclaring the business of storing and curing plumbago a “dangerousand/or offensive trade.”
That the premises were so used is not disputed. They havebeen used as a plumbago store and curing yard from the year 1910.In the year 1916, when the business of storing and curing plumbagowas declared a “ dangerous and/or offensive ” trade, the appellantapplied for and obtained a licence to carry on the business for thatyear. He continued to apply for and obtain licences in eachsucceeding year till the year 1922, when the business of curing
1928.
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was discontinued. No licence was obtained for that year orthereafter permitting the curing of plumbago, but the appellantcontinued to take out annually a licence to use the premises as astore for plumbago.
It was discovered last year that the appellant had commencedto use the premises for curing and was doing so without a licence.In November, 1927, an application was made for a licence, but thiswas refused.
It is urged on behalf of the appellant—
That inasmuch as this business of storing and curing
plumbago had been established by him prior to 1916when businesses of that kind were for the first time declaredto be dangerous or offensive, he was under no obligationto take out a licence ; and
That if the section did apply to such cases he had complied
with the requirement by obtaining a licence, inasmuch asthe Chairman who had power to grant a licence had nopower to limit the duration of the licence.
The submission in support of the first of these points is thatsection 212 must not be construed so as to interfere with or injurea person’s rights without compensation unless one is obliged so toconstrue it. Section 212 does not make provision for the paymentof compensation in the case of a refusal to grant a licence. Thatoircumstance is not however decisive of the question. Thelanguage of the section clearly and unambiguously prohibits theuse without a licence of any place within tlie town for any of thepurposes specified in that section and for any trades or businesseswhich may be declared by the Council by by-law to be a dangerousor offensive trade. Directly any trade or business is so declareda dangerous or offensive trade the prohibition operates and anyperson who thereafter uses the premises for that purpose becomesliable to a penalty. The case of Butchers' Hide, Skin, & WoolCo.,, Ltd. v. Seacome 1 is a decision which proceeds upon a totallydifferent form of words in a different enactment.
As to the second of the two points, I am unable to assent to thecontention that the first or any one of the annual licences sub-6« quently obtained is a sufficient answer to the charge of using theplace despite the prohibition. It is urged that the Chairman hadno power to impose any limitation to the duration of the licence,but merely to grant a licence without any limitation to its duration,and that the words of the licence which so limit it should beignored, and that once a licence is granted the Chairman hasexhausted his power in that direction and ..thereafter may onlysuspend or revoke the licence for violation of the licence or anyof the terms thereof without compensation and with compensation“ if it shall appear to him necessary to do so ” in any other case.
1 {1913) L. B. 2, K. B. 401.
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The section prohibits the use of a place for the purpose of adangerous or offensive trade “ except under a licence from theChairman, 'who is hereby empowered, at his discretion from timeto time, to grant such licences, and to impose such terms thereinas to him shall seem expedient.”
These are words of wide import. The power to grant licences isin the discretion of the Chairman, who may exercise the power fromtime to time, imposing such terms as to him shall seem expedient.
The expression ‘‘from time to time” taken in conjunctionwith the power to impose such terms as to him shall appearexpedient is in my judgment amply wide enough to authorizethe Chairman to limit the duration of the licence, and I can see nojustification for placing any narrower construction upon the section.
There is nothing in section 214 which militates against this viewof the powers conferred on the Chairman by section 212.
The conviction being in my opinion well founded, this appealis dismissed.
Appeal dismissed.
1928.
Gabvik J.
Misso v,Fonseka