106-NLR-NLR-V-57-S.-G.-DE-SILVA-Revenue-Inspector-Municipal-Council-of-Kurunegala-Petitione.pdf
1955Pre-senl: Basnayake, A.C'.J.= •:
S. G. DE SILVA (Revenue Inspector, Municipal Council of Kurunegala),Petitioner, and KURUNEGALA CO-OPEKATIYM STORES, LTD.,•Respondent
S. G. 283—Application for Jlcvi-sion in -1/. C. Kurunegala, 6,971
Offensive trade or business—Jlequiremetit of licence—-Meaning of “ trade or business ”—
Ilg-leiic—-Municipal Councils Ordinance, j o. 20 oj 1047, ss. 14S (1), 207.
By a by-law ;imdo mulct- sections 14S mitl 207 of tbe Municipal Council:Ordinance, “storing grain, for purposes other than ns forage, in qunnlityexccciling 5 cut. ” was one among a number of trades or businesses which weredec lared to bo offensive trades or businesses for the carrying on of nay of whichit. was necessary to obtain n licence.
Hckl, that unless the trade or business declared to be offensive was carriedon for the sake of earning profits there would be no infraction of the by-law..Storage, therefore, of grain by a co-operative society as an incident of the tradeof retailing rice could not- fall within the ambit of the by-law.
J^LPPLICATIOX to revise an order of the Magistrate's Court.
Ivurunegala.
A'. ]-J. Wecrasooria, Q.G., with L. Ufa I tt to n l ri, in support.
Xo appearance for Respondent.-
(■'ttr. adv. mill.
Novembers, 19on. Rasxayakk, A.C.J.—
This is an application by the Revenue Inspector of the MunicipalCouncil of Ivurunegala (hereinafter referred to as the applicant), prayingthat the order of accpiittal of the accused respondent-, tlie IvurunegalaCo-operative Stoics, Ltd. (hereinafter referred to as the respondent),bo set aside, in the exercise of the powers of this Court under section 357of the Criminal Procedure Code, and that a re-trial be ordered.
The applicant complained to the Magistrate’s Court of Ivurunegalathat on the 22nd day of December, 1054, the respondent carried on thetrade or business of storing grain for purposes other than as forage inquantity exceeding 20 ewt. without a licence from the Municipal Commis-sioner in breach of section 14S (1) of the Municipal Councils OrdinanceNo. 29 of 1947, and did thereby commit an offence punishable undersection 14S (3) of that Ordinance.
Section 14S (t) referred to above provides as follows : —
“ No place shall be used within any municipality for any of thefollowing purposes, namely, for boiling offal or blood, or as a soap-house, oil-boiling-house, dyeing-house, tannery, brick, pottery orlime kiln, sago manufactory, gun-powder manufactory, manu-factory of fireworks, or other manufactory or place of business from
which either offensive or unwholesome smells arise, or for any pur-poses which are calculated to bo dangerous to life, or as a yard ordepot for hay, straw, wood, coal, cotton, bones, or inflammableoil, or for-.aiiy other trade or business which the Council may, bymeans of by-laws, declare to be an offensive or dangerous trade orbusiness for the purposes of this section, except under a licence fromthe Council, which is hereby empowered, at its discretion from timeto time, to grant suc-Ii licences, and to impose such terms thereinas to the Council may appear expedient
By a by-law made under sections 148 and 2G7 of the Municipal CouncilsOrdinance a number of trades or businesses have been declared to booffensive trades or businesses. That by-law reads—
“ The following trades or businesses are hereby declared to be offen-sive trades or businesses for tbe purposes of section 148 of the Muni-cipal Councils Ordinance No. 29 of 1947
A list of 57 trades or businesses declared to be offensive, another of26 declared to be dangerous, and a- third of 24 declared to be bothdangerous and offensive are appended to the by-law. Of tiiese the 52nditem within which *lic prosecution seeks to bring the respondent reads—
t: Storing grain, for purposes other than as forage, in quantityexceeding 5 cwt.
The respondent successfully contended before the learned Magistratethat the by-law does not apply to it inasmuch as it is not carrying on thetrade or business of storing grain. The evidence discloses that rice isbrought to t-he respondent’s store from the authorised wholesale dealer,the Co-operative Wholesale Union, for the purpose of retailing to therice-ration book holders attached to it. A quantity of 56 bags of riceis brought each,week in three or four instalments. Each instalment isdistributed within a day or two of its receipt. On the date alleged in thecomplaint, there were 174 bags of rice at the time the applicant visitedthe store.
The by-law declares the trade or business of storing grain to be anoffensive trade or business. Where the expression trade is, as in thiscontext, used in juxtaposition to the expression business, it must beunderstood to be used in the sense of buying anil selling with a view toearn profits and-'not in its wider sense. The expression business in thiscontext has a' wider connotation than trade. It would embrace allactivities carried on for the purpose of earning profits or gains and wouldinclude those caught up in the expression trade. Every trade is iri asense a business but every business is not a trade. Having regard tothe list of items attached to the bj'-Iaw the expression business may in thiscontext be defined as any activity which occupies the time, attention,and labour of a-person, whether corporate or not, for the purpose of ob-taining profits '5r gains. Unless the trade or business declared to beoffensive is carried on for the sake of earning profits there would be no
infraction of the by-law. Now it is clear that the respondent docs notcarry on the activity of storing rice for the purpose of obtaining profitsor gains by such storing. Its object is to sell the rice at a profit. Forthat purpose it is necessary that it should bring it to its store in reasonablequantities which would enable it to’cater for the needs of its clientelewithout interrupting its service to them. The temporary storage ofcacii instalment of rice brought to its store, for so long as it is necessaryto retail it, is incidental to its trade! of retailing rice and it cannot berightly said that such storage constitutes the trade or business of therespondent. Storage of grain as an incident of the trade of retailingrice does not bring a person within the ambit of the by-law which forbidsthe carrying on of the trade or business of storing grain except with a
licence.
In order to fall within the ambit of that by-law the main activity of aperson should be the storing of grain and obtaining profits or gains by theactivity of storing alone. It is clear that the respondent’s main activityis not the storing°of grain with a view to earning profit. It has thereforenot- committed any offence against the by-law. The applicant’s prayercannot bo granted and is lefuscd.
A pplica lion refused.