034-NLR-NLR-V-52-PIYASENA-Appellant-and-NADARAJAH-Inspector-of-Labour-Respondent.pdf
3.950Present: Pnlle J.
PIYASENA, Appellant, and NADAHAJAH (Inspector of Labour),
Respondent
S. C. 1,268—M. C. Colombo South, 21,815
Shops Ordinance, No. 66 of 1038—Meaning of 1 * shop ”—Meaning of * * premises ' '■—-
Section 31 (1).
The accused was carrying on a retail business in textiles in a portion of theentrance to a hotel which bore IMunicipal assessment No. 191. Havingregard to the place where he was carrying on business it was obvious that hewas an occupant of a part of building No. 191.
Held, that the place where the accused was carrying on business fell withinthe meaning of the word “ shop ” as defined in section 31 (1) of the ShopsOrdinance.
ApPEAL from a judgment of the Magistrate’s Court, Colombo South.
H. TV. Jayewardene, for the accused appellant.
Sam. Wijesinha, Crown Counsel, for the Attorney-General.
Cur. ado. vult.
November 28, 1950. Pulle J.—
The appeal in this ease arises from a prosecution under the ShopsOrdinance, No. 66 of 1938, and the point to be determined is whetherthe place where admittedly the appellant* was carrying on a retailbusiness fell within the meaning of the word “ shop ” as defined in section31 (1) of the Ordinance. The definition reads, leaving out what is.immaterial,
“ ‘ Shopmeans any premises in which any retail or wholesale
trade or business is carried on and includes any premises in whichthe business of a barber or hairdresser or the sale of articles of foodor drink is carried on."
There is a building which is described as a hotel and bearing Municipalassessment No. 191, dalle Road, W"ellawatte. A portion of the entranceto this building is blocked by a partitioh and in front of it, on the floorof the entrance, is a counter which is flanked by the two doors of theentrance which are left permanently open. The appellant who carriedon a business in textiles transacted his business from the area betweenthe counter and the partition. There was a canvas awning over thecounter and the goods were displayed on the counter and the spacebetween it and the awning. Directly above the awning were the concreteeaves of the hotel. At night the place was illuminated by electric lightsfrom current taken from premises No. 191.
Having regard to the place where the appellant was carrying on.business it is obvious that he was an occupant of a part of buildingNo. 191. Learned Counsel argues that that is not sufficient to con-stitute the place a shop as defined in the Ordinance. He argues thatto constitute a shop there must be a compact building capable of providingthe salesmen with facilities for taking meals and with sanitary conveni-ences and also capable of being closed and opened in order to conform toclosing orders made under section 15 (1). I do not think that theargument based on the absence of facilities in any way assists theappellant. In regard to compulsory providing of facilities, sectionslike 10, 11 and 14 cannot be interpreted to mean that if these facilitiesdo not exist a retail or wholesale place of business cannot be a shop.On the contrary they envisage a place of business -which is a shop within,the meaning of the Ordinance, but which may not have those facilitiesand thus rendering the occupier guilty of offences punishable undersection 23 (1). As I read sections 15 and 18 a physical closing of theplace of business is not essential to compliance therewith. What isprohibited is the keeping of a shop open in breach of the prescribedhours ‘ ‘ for the serving of customers
On behalf of the appellant reliance was placed on the cases of Metro-politan Water Board v. Pain 1 and Illford Corporation v. Mallinson 2.In the former case the word “ premises " had to be interpreted in thecontext of section .79 of the East London Waterworks Act, 1853. Thequestion for decision in the first case was whether a bare land on whichthe owner intended to erect buildings came within the description of theword “ premises ” so as to entitle the owner to a water supply for build-ing operations at certain advantageous rates. It was held that theword “ premises " meant a house and did not include bare land. Inthe second case the word " premises ” had to be interpreted as used insection 1 in the Poor Rate Exemption Act, 1833. In this as well itwas held that the word referred to buildings only and not a piece ofvacant land. ‘ In view of the evidence in this case that the place wherei (1905) 96 L. T. B. 63.2 (1923) 147 L. T. B. 37.
the appellant carried on his business is a part of a building, the appli-cability of these decisions does not arise. I would observe that in theearlier case the word ‘ ‘ premises ’ ’ was not defined in the A.ct and theJudges expressed the opinion that the interpretation of the term gaverise to great difficulties. Tn both cases the scope of the relevant Actswas considered and it was decided that the term could not have beenintended by the legislature to mean a piece of bare land. It may bethat a person who sets up a movable structure on a piece of bare landtor the purpose of selling his wftres is not reached by the provisions ofthe Shops Ordinance, Xo. 66 of 1938, but that is not the question whichfalls to be determined in the present case.
In Summers •». Roberts 1 the ''appellant sold by retail liniment inbottles in the uncovered portion of a market at a stall consisting of aboard resting on but not fixed to two trestles. It had to be determinedwhether the place was a shop which according to Shops Act of 1912included any “ premises ” where retail trade was carried on. It wasvuled that the word “ shop ” should be interpreted from the settingand context in the Act of 1912 and that the word “ premises ” connoteda. permanent place, defined by precise limits on which, or on part ofwhich, there was some sort of structure where a regular retail business■could be carried on. In the present case the elements of permanenceand the regularity of the business are both present.
Appeal dismissed.
I hold that the case against the appellant has been proved and the-appeal is, therefore, dismissed.