Noorden v. Chairman, Village Committee, Godapitiya.
1943Present: Wijeyewardene J.NOORDEN v. CHAIRMAN, Village Committee, Godapitiya.In the Matter of an Application for a Writ of Mandamus.
Writ of mandamus—Application for a butcher’s licence—Refusal by proper 'authority■—Grounds not just and reasonable—Butcher's Ordinance(Cap. 201) s. 7.
Where a person who was carrying on the trade of a butcher appliedfor the renewal of his licence, and the proper authority refused hisapplication on the ground that he must first purchase his right to obtaina licence,
Held, that the applicant was entitled to a licence as the groundsupon which his application was refused by the proper authority, were. not just and reasonable.
TJI HIS was an application for a writ of mandamus.
A. Seyad Ahamed, for petitioner.
E. B. Wickremanayake (with him H. Wanigatunge), for respondent.
Cur. adv. vult.
May 28, 1943. Wijeyewardene J.—
This is an application for the issue of a writ of mandamus to therespondent directing him to grant a butcher’s licence to the petitioner.
The petitioner carried on the trade of a butcher at Godapitiya in 1941and 1942 on licences issued by the Assistant Government Agent, Matara,who was then the “ proper authority ” under the Butchers’ Ordinance.
– The respondent was duly appointed in writing by the Assistant Govern-ment Agent under section 3 of that Ordinance as the “ proper authority ”for 1943 for the village area of Godapitiya, When the petitioner appliedto the respondent for his licence for 1943, the respondent wrote to himon November 11, 1942, as follows,
“ The committee (jie., the Village Committee) has decided to open- two, meat stalls at/Godapitiya and to sell them by public auction fornext year. Two licences to slaughter cattle will be issued to thesepersons who purchase the meat stalls at the auction. The renewal ofyour licence will be considered after the day of auction.”
It was further stated by the petitioner in his affidavit—
that no meat stalls were established by the Village Committee as
undertaken in the respondent’s letter.
. that, the respondent sold, in fact, what “he called the right to
obtain a licence ” to one Haniffa for Rs. 200 and then issued',licences to Haniffa.
that the petitioner’s application for a licence was refused on the
ground that “ he did not buy the right to obtain a licence
Showing cause against the order nisi served on him, the respondent■ filed an affidavit which was extremely vague and inconclusive in itscharacter. On my directing him to file a further affidavit setting outdefinitely his position with regard to the various material allegations
WUEYEWARDENE J.—Noorden v. Chairman, Village Committee, Godapitiya. 295
made in the petitioner’s affidavit, the respondent submitted a secondaffidavit. In that affidavit the respondent has attempted to justify hisaction by reference to a resolution passed by the Village Committee toestablish two meat stalls at Godapitiya to be sold “ by public auctionby means of tender” and to issue the butcher’s licences only to the“ purchasers ” of the meat stalls so established. He has, however,admitted that no meat stall have, in fact, been established by theVillage Committee at Godapitiya and has not denied that Han iff a towhom the licences were issued had paid Rs. 200 in “ purchasing ” thenon-existent meat stalls in order to qualify himself as an applicant forthe licences. The respondent has also sought to justify the refusal of alicence to the petitioner on the ground that “ the heeds of the inhabitantsof the village were sufficiently served ” by the issue of licences to Haniffa.
One fact emerges clearly from these affidavits and it is that therespondent purporting to act on a resolution passed by the VillageCommittee refused to issue a butcher’s licence to the petitioner as hedid not purchase at a “ public auction by tender ” what has beentermed “ a right to obtain a licence ”.
Now section 4 of the Butchers’ Ordinance requires every person carryingon the trade of a butcher to obtain an annual licence and section 9fixes the fee for the licence at Rs. 5. Section 6 lays down that everysuch applicant for a licence should enter into a bond in the Form B in theSchedule to the Ordinance. That form shows that the conditions to beinserted in the bond should be “ in accordance and conformity with theenactment and provisions of the (Butchers’) Ordinance and of theby-laws made thereunder”. . The Ordinance proceeds to enact in section 7that “ it shall be lawful for the proper authority, in the exercise of hisdiscretion, upon just and reasonable grounds, to refuse to issue an annuallicence ”.
The petitioner was carrying on a legitimate trade as a butcher from1941. In the words of Lord Lindley in Quinn v. Leatham1 “ he was atliberty to earn his own living in his own way, provided he did not violatesome special law prohibiting him from so doing, and provided he did notinfringe the rights of other people ”. The only way in which this rightof the petitioner has been curtailed by statute is by requiring him. toobtain a butcher’s licence, subject to the conditions referred to in section 6of the Butchers’ Ordinance. The provisions of that Ordinance indicatethat the Legislature recognized the right of a person to carry on the tradeof a butcher but sought to control and regulate the trade by making itobligatory for a butcher to obtain a licence. The Ordinance sought toregulate the trade further by empowering the proper authority to refuseor withdraw a licence. It is, no doubt, true that section 7 vests theproper authority with a discretion, in refusing or withdrawing a licencebut that discretion has.to be exercised on just and reasonable grounds.The conditions imposed by the respondent were not conditions “ inaccordance and conformity with ” the Ordinance or the by-laws made underit. The condition that an applicant for a licence should first purchase“ the right to obtain a licence ” is a distinct negation of the basicprinciple of an Ordinance which recognizes a right in every person to
1 (1901) A.C. 495 at 534. .
SOERTSZ S.P.J.—Mohamed and Kuruppu.
apply for a licence. This Court will grant a mandamus even in the caseof a tribunal in which is vested a discretion of a judicial nature, if it laysdown and acts on arbitrary and unjust rules regulating the exerciseof its discretion.
The resolution passed by the Village Committee is of no legal effect.The Village Communities Ordinance gives a village committee power tomake rules but such rules do not become valid and effectual until theyhave been approved by the Governor and published in the Gazette. TheCounsel for the respondent admitted that there were no relevant rules onthe subject of meat stalls made .under the Village Communities Ordinancefor the village area of Godapitiya.
There is no merit whatever in the reason urged in the affidavit thatthere was no necessity for a licence to the petitioner as “ the needs of theinhabitants of Godapitiya are sufficiently served” by Haniffa. (VideRustom Jamshad Irani v. Hartley Kennedy').
The rule for the mandamus asked for is made absolute and the-petitioneris granted the costs of these proceedings.
Rule made absolute.