086-NLR-NLR-V-72-R.-VEERIAH-and-another-Appellants-and-FOOD-AND-PRICE-CONTROL-INSPECTOR-BADULL.pdf
Vecriah v. Pood and Price Control Inspector, Badulla
403
Present: Samerawickrame, J.
R. VEERIAH and another, Appellants, and FOOD ANDPRICE CONTROL INSPECTOR, BADULLA, RespondentS. O. 703-704jC7—M. C. Badulla, 2612Control of Prices .-lei—Sections 4 (1) and 8 (8)—Extent of employer's liability for hisemployee's offence—Price Order made for an outstalion district—Regulationprices according to prices for the time being fixed for the Colombo municipalarea—Cleaning of words “for the time being ”—Validity of the Price Order.
Where an employer and his employco ore charged together for selling anarticle at a prico in excess of tho controlled price, the employer is not liableunder section S (S) of the Control of Prices Act for the ofTence of his employeeunless ho is charged on that footing and is given an opportunity of proving thematters stated in that statutory provision.
A Price Order applicable to the Badulla municipal area provided for thofixing of the maximum retail price of red onions according to tho maximumretail price for the timo being fixed for the Colombo municipal area.
Held, that tho Badulla Price Order contemplated not only tho Price Orderfor tho Colombo municipal area in existence at tho timo it was-made but alsoPrico Orders for tho Colombo municipal area that might be mado thereafter.
Held further, that tho Badulla Prico Order was not invalid on tho ground ofuncertainty or of being ultra vires of tho provisions of section 4 (1) of tho Controlof Prices Act.
1 11957) 59 N. L. R. C4.
40 ASA^rERAYVTCIvRAME, J.— Veeriah v. Food and Price Control
Inspector, Badulla
Appeal from a judgment of the Magistrate’s Court, Badulla.Nimal Senanayake, with Bala Nadarajak, for the accused-appellants.
D. Guruswamy, Crown Counsel, for the Attorney-General.
Cur. ady. vult.
August 25, 1969. Samerawickrame, J.—
The first and second accused-appellants have been convicted of offencesunder the Control of Prices Act on the ground that they sold a pound ofred onions for 35 cents when the maximum controlled retail price was31 cents.
Learned Counsel for the appellants submitted that the conviction ofthe 2nd accused-appellant cannot stand because it is not supported bythe evidence. The decoy stated that he purchased the pound of redonions from the 1st accused-appellant and that when he tendered themoney he was requested bj-' the 1st accused-appellant to pay the moneyto the 2nd accused-appellant who, according to the decoy, inquiredfrom the 1st accused-appellant- the amount that was payable and receiveda sum of 35 cents. There is no evidence that the 2nd accused-appellantwas aware what commodity it was that the decoy hacl-purchased. The2nd accused-appellant has given evidence and stated that he did notsee the decoy buying the provisions.
Learned Crown Counsel submitted that as the 2nd accused-appellanthad stated in evidence that he was the proprietor of the boutique hewas, in any event, liable under s. S (S) of the Control of Prices Act, butthe 2nd accused-appellant was not charged on that footing. Further,that provision provides that the employer will be free from liability ifhe proves to the satisfaction of the Court that the offence was committedwithout his knowledge and that he exercised all due diligence to preventthe commission of the offence. As s. 8 (S) of the Act was not reliedupon bjr the prosecution, the 2nd accused-appellant did not have anopportunity of proving these matters. Although there is grave suspicionin regard to the 2nd accused-appellant, I think that he is entitled to thebenefit of the doubt and that his conviction must be set aside.
The Price Order relied upon fixed the maximum retail price for redonions in the Badulla municipal area at 3 cents above the maximumretail price for the time being fixed for the Colombo municipal area.Learned Counsel for the appellants submitted that the only meaning thatcould be given to this Price Order was that the price fixed was 3 centsover the retail price for the Colombo municipal area at the time theBadulla Price Order was made and that as tlie Price Order in the Colombomunicipal area, operative on 21st May, 1965, had not been produced,there was no evidence as to the maximum retail price fixed.
SAMERAWICKRAME J.— Vceriah v. Food and Price Control
Inspector, Badulla
405
The words “ for the time being ” have different meanings accordingto the context. Stroud’s Judicial Dictionary (Third Edition) states :—
“ The phrase * for the time being * may, according to its context,mean the time present, or denote a single period of time ; but itsgeneral sense is that of time indefinite, and refers to an indefinitestate of facts which will arise in the future, and which may (andprobably will) vary from time to time. ”
In the case of The Solicitor-General v. Thanrjamani Pitchai1, Alios, J.,considered a Price Order similarly phrased and held that it contemplatednot only the Price Order of the Colombo Municipality which was inexistence on the date when the Ratnapura Order came into operationbut also an}' Price Order fixing the price of the commodity for the ColomboMunicipality which was in force subsequent to that date. With respect,
I agreo with his decision. I am of the view that the Badulla PriceOrder contemplated not only the Price Order for the-Colombo-municipal-area in existence at the time it was made but also Trice Orders for theColombo municipal area that may be made thereafter.
Learned Counsel for the appellants further submitted that if it wasintended that the prices, at Badulla should fluctuate in the same manneras the Colombo prices, then the Price Order was invalid as it was ambiguousand lacking in certainty. I am unable to see that the Order was ambiguousor lacking in certainty though it may cause trader’s some inconveniencein that they will have to have recourse to the Price Order for the Colombomunicipal area before they could ascertain the prices operative in theirarea. A Price Order made for an outstation district by relation to theprices in Colombo was considered by Sirimanc J., in the case of K. R.Gnanasivam and another v. A. C. H. Mohamcd 2, and he held that therewas no uncertainty about the prices and that the Order Mas a validOrder.
Counsel for the appellants also submitted that the fixing of pricesfor Badulla by reference to the prices fixed for the Colombo municipalarea was bad, {inasmuch as it was not an exercise of the deput}* Controller’sfunction under section 4 (1) of the Act but was in effect a surrender ofhis functions to the authority fixing the prices for the Colombo municipalarea. The function of fixing the prices has been entrusted to the deputyController, and it may well be that in the circumstances of a particulartrade he may find that the most equitable price to be fixed for his areashould be some amount above the prices at which a trader could purchasehis goods in the Colombo municipal area in which most 'wholesalersoperate. In the absence of any evidence to show that this mode offixing prices was unreasonable having regard to the circumstances of aparticular trade, I am unable to hold that the deputy Controller byadopting this mode failed to exercise his function and surrendered hisauthority to the authority fixing prices for the Colombo municipal area.This matter has been considered by Tcnnekoon, J., in the case of II. N.
» {1965) 69 N. L. B, 442.» {1964) 67 N. Z>. B. 479.
406
William v. Inspector of Police, Mirigama
Pod.ime.mke. v. The Inspector of Police, Kiriella1, and he took the viewthat this mode of fixing prices was not an unreasonable or improper wayof fixing them. With respect, I agree with his view and I hold thatthe Badulla Price Order was valid.
In view of the findings that I have arrived at it is unnecessary toconsider whether s. 4 (7) of the Act which provides that upon a notificationof the Minister’s approval an Order shall be deemed to be as valid andeffectual as if it were enacted in the Act, would have the effect of renderingthe Order a valid one in spite of the objections raised to it by Counselfor the appellants.
In the result the conviction and sentence imposed on the 1st accused*appellant is affirmed and his appeal is dismissed. The appeal of the2nd accused-appellant is allowed and the conviction and sentence imposedon him arc set aside.
AAppeal of 1st ascused dismissed■
Appeal of 2nd accused allowed.