By-law prohibiting sale of fish outside market without a license—SanitaryBoard rules—Ultra vires—Ordinance No. 8 of 1916—Small TownsOrdinance, 1909.
The Sanitary Board of Galle purporting to act under section 2,sub-section (2), of the Small Towns Ordinance, 1909, made a rule(D2) in 1911 forbidding the sale of fish without a special licenseof the Board at any place outside the public market.
Held, that the rule was ultra vires.
“ Even supposing that, in consequence of Ordinance No. 8 of1916, such a rule could be now made, the provisions of that Ordi-nance do notvalidate a rule made in 1911. But even if such a
rule were now made it would be invalid.”
rj^HE facts are set out in the judgment.
Hayley (with him M. W. H. de Silva), for appellant.
Cut. adv. vult.
February 19, 1917. Shaw J.—
The accused was charged, at the instance of the Sanitary Inspectorof Dodanduwa, with having at Rodanduwa, within the limits ofthe Sanitary Board, sold salt fish in his boutique without a license,in breach of rule D2 of the Galle Sanitary Board rules published in
i 8. C. Min., Jan. 26, 1916.
( MO )
the Government Qaaette of May 19, 1911, and has been oonviotedand fined Bs. 21.50. The aooused has appealed on the ground thatthe rule is ultra virsa.
The question raised is an important one, and not free fromdifficulty, and 1 regret that I have not had the opportunity ofhearing oounsel on behalf of the respondent.
The rule, which follows rule Dl, containing provisions for estab-lishing a public market, is as follows:—" 9. After suoh public marketshall have been established and opened, no person shall without alicense granted by the Board publicly expose for sale any meat,fish, fresh fruit, or vegetables in any plaoe within the limits of theBoard other than the publio market. All sales of fish by auotionshall be oarrled on in the publio market, or at a spot set apart for thepurpose. Sales elsewhere are forbidden, except under a speoiallicense of the Board. "
The rule then goes on to authorise the seizure of meat, do.,exposed or hawked about for sale oontrary to the rule.
Buie D8 then provides for the form and issue of the lioenses at arate to be fixed annually by the Board, not exceeding 60 oents amonth. The rule purports to bo made under the authority ofsub-section (2) of seotlon 2 of the Small Towns Ordinance, 1909,whioh. provides that a Sanitary Board' may make regulations, interalia;—" (d) For the establishment and regulation of its ownmarkets and levy of rents and fees therein, and for the supervisionand oontrol of private markets, bakeries, eating houses, tea andooffee boutiques, butchers' stalls, fish stalls, washing places, commonlodging houses, and latrines. ”
At the time the rule under consideration was made, namely April,1011. there was no provision in foroe in the Colony authorizing anypublio body that had power to make rules for regulation, super-vision, or control, to issue lioenses for the purpose of suoh regulation,supervision, or oontrol.
In 1919, by seotion 7 of Ordinance No. 29 of 1912. it waaprovided:—"In any rule power to regulate, supervise, and oontrolshall be deemed to inolude power to issue and refuse lioenses withoutfee for the purpose of suoh regulation, supervision, or oontrol. ”Under this state of the law a rule was made by the Colombo SanitaryBoard in January, 1918, that came up for consideration before theFull Benoh of this Court in the case of Perera w, Fernando.1 Thatrule was as follows:—" 1a. After ouoh public market has beenestablished and opened, no person shall without a license grantedby the Chairman of the Board publicly expose for sale any meat,poultry, fresh fish, fresh fruit, or vegetables in any plaoe within thelimits of the Board other than the publio market. " The Court heldthat the rule was ultra vires, and that a person who had sold fl«houtside the publio marked without a lioense oould not be convictedof an offence.
• 1 am) if ft. L. r. m.
( 341 )
The main ground on which the decision in that case went wasthat the power to make rules for “ supervision and control ”contained in sub-section (2) (d) of section 2 of the Small TownsOrdinance, 1909, did not authorize a rule forbidding sales outsidethe public market without license, because that was not “ supervisionor control, *’ but might amount to absolute prohibition of lawful-sales conducted in a proper manner, and, however you read the-ambiguous and obviously erroneous wording of section 7 of OrdinanceNo. 22 of 1912, that section only authorized rules providing for theissue of licenses when power to “ regulate ” as well as to ‘ * superviseand control ” is given.:
This section has now been repealed by Ordinance No. 8 of 1916,.and the following substituted for it:'—
1“ (d) Power to make rules for regulation, supervision, protection,,or control shall include power to make rules—
“ (1) For the issue of licenses for the purpose of such-regulation, supervision, protection, or control.
‘ ‘ (2) For the cancellation of such licenses, &c.
* ‘ (3) For the refusal of licenses in cases of non-com-pliance, &c. ”
The Magistrate was of opinion that this provision authorized the-rule under consideration. I am unable to agree with him.
It is clear from the decision in Perera v. Fernando (supra) thatthis rule was ultra vires when made, and that it would have been soeven if made subsequent to Ordinance No. 22 of 1912.
Even supposing that in consequence of Ordinance No. 8 of 1916,such a rule could be now made, the provisions of that Ordinance do*not validate a rule made by a Sanitary Board in 1911, which hadthen no power to make such a rule. But even if such a rule werenow made, it would, in my opinion, be invalid. The Ordinance says:
“ Power to make rules for regulation, supervision, protection, orcontrol .shall include a power to make rules for the issue of licenses'for the purpose of such regulation, supervision, protection, or con-trol. ” Thus, where there is power to make rules for regulatoin thereis power to issue licenses for the purposes for such regulation; wherethere is a power to make rules for supervision, there is power toissue licenses for the purpose of such supervision, &c., but the FullCourt has held in the case I have cited that the forbidding of sales-outside the public market' without license is not supervision or con-trol; such a rule, therefore, is still invalid under an Ordinance that,IiIta the Small Towns Sanitary Ordinance, 1909, only authorizes rulesfor supervision and control.
For both the reasons X have – mentioned, I think the rule underconsideration is ultra vires, and I accordingly set aside the conviction'
and acquit the accused.

Shaw J.
SanitaryInspector v.flowmww.
Set aside.