037-NLR-NLR-V-10-SENANAYAKA-v.-SERAMALIAR.pdf
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1907.
June 5.
Present: Mr. Justice Grenier.
SENANAYAKA t>. SERAM ALIAR.
M. 0M Kandy, 14,273.
Municipal Council—Delegation of authority by Chairman to Secretary tosanction prosecution—Validity—Ordinance No. 7 of 1887, ss. 290*and 806.
The Secretary of a Municipal Council may sanction prosecutionsfor breaches of by-laws made under the Municipal Councils Ordi-nance, 1887 {Ordinance No. 7 of 1887), if so authorized by the*Chairman under section 290 of the Municipal Councils Ordinance,1887 (No. 7 of 1887).
rjlHE following complaint was filed against the accused: —
** Th.at the accused did, on or about the 12th day of March,1907, at Kandy, within the jurisdiction of this Court, occupy groundbeyond the limits of space No. 9 rented by him by leaving coconuts-and vegetables there, in breach of clause 72, chapter VI., of theby-laws of the Municipal Council of Kandy, and thereby committedan offence punishable under section No. 306 of the said by-laws.
“ I authorize this prosecution.
“ D. P. Senanayaka,
‘ ‘ Complainant.
“ Jas. Jayatileke,
“ Secretary, Municipal Council of Kandy,
“ for Chairman. ”
Objection was taken that the plaint was bad as it was signed bythe Secretary and not by the. Chairman. The Magistrate (T. B.Russell, Esq.), over-ruled the objection on the authority of section290 of Ordinance No. 7 of 1887, and convicted the accused.
The accused appealed.
G. Kocht for appellant.—The prosecution is bad for want of propersanction. Section 306 of the by-laws provides that no complaintshall be preferred in any Court for breach of any by-law except withthe previous sanction of the Chairman. This prosecution has beensanctioned by the Secretary and not the Chairman. The Chairmanhas no power to delegate to any other person the duty of sanc-tioning prosecutions laid on him by section 306 of the by-laws. Themaxim delegate potestas non potest delegari applies. In Hobbis v. TheLondon County Council (1) it was held that “ .the question whethera specific legal duty may be performed by means of ,an agent ordeputy depends on the nature of the duty. A duty which ismerely ministerial may be delegated, but not a duty the perform-ance of which involves discretion or skill/’
il) (1897) 75 Law Times, 688; Encyclopedia of the Laws of Englandt vol. X.d. 339.
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The duty of sanctioning prosecutions is of the latter class, as itinvolves the exercise of discretion, and is not merely a ministerialact of signing. Section 290 of the Municipal Ordinance, No. 7 of1887, does not authorize the delegation of any but ministerial acts.
Assuming, for the sake of argument, that the Chairman candelegate, the authority to Mr. Jayatileke filed in this case does notdelegate the duty of sanctioning prosecutions to him, it only contem-plates the signing of papers. There is no need to consider it badgrammar, as the Police Magistrate does, because it can be intelligentlyread as it is, and it is not to be supposed that an intelligent andexperienced gentleman like Mr. Lewis, the Chain&an, would havesigned a document open to the charge of being bad grammar.(Grenier J.—Why do you appeal? The punishment is nominal,only a fine of Es. 5.) This offence is merely statutory, not a malumin $et and the appellant is entitled to demand that the law be strictly-complied with before he can be punished for a statutory offence.
Bawa, for respondent.—I do not grant that the Chairman has notsanctioned this prosecution. He may have sanctioned it, anddirected the Secretary to sign the plaint. Section 290 of OrdinanceNo. 7 of 1887 clearly gives the Chairman the right of delegating allduties, acts, &e., and this is clearly an act. The authority producedis bad grammar; it follows the wording of section 290, and includesthe duty of sanctioning prosecutions.
Koch, in reply.—The authority is dated 1st September, 1906. Theby-laws were proclaimed in January, 1907, so that the Chairman, indelegating his duties in September, 1906, could not have contem-plated the duty of sanctioning prosecutions imposed on him bysection 306 of the by-laws.
Cur. adv. vult.
-oth June, 1907. Grenier A.J,—
The appellant in this case was convicted of an offence under section72 of the Municipal by-laws of Kandy, published in the Govemm-ent, Gazette of 11th January. 1907, No. 6,166, and sentenced to pay afine of Rs* 5. The appellant is a stall-keeper, and his offence was, that he occupied ground beyond the limits of space rented by himby leaving coconuts and vegetables thereon. There was no defenceon the merits, but the appeal has been taken oh a point of law. Itwas contended for the appellant that the Chairman of the Municipal ^Council had*not sanctioned this prosecution as required by-section306 of the by-laws, and that section 290 of Ordinance No. 7 of' 1887contains no provision for the Chairman delegating the powerconferred on him by section 306 of the by-laws to a third party. Itwas also argued that, assuming the Chairman had that power, theauthority granted by him to Mr. Jayatileke, the Secretary of theMunicipal Council, was defective, and did not giye 'the latter the right16-
1007.June 5.
1907.June 5.
Grenier
A.J.
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to act on his behalf to sanction prosecutions when such sanction wasnecessary. In my opinion the Magistrate has taken a correct viewof the law. The authority given by the Chairman in writing to theSecretary is, as the Magistrate remarks, “ bad grammar,’' but itsubstantially embodies the provisions of section 290 of the Ordi-nance, which gives the Chairman the power to authorize anymunicipal officer to do any of the acts which he himself had thepower to do. It is not to be expected that the Chairman wouldin view of his other official duties, be able to attend to all the workconnected with the institution of ordinary prosecutions for breachesof by-laws which are reported by municipal inspectors from time totime; and section 290 was apparently expressly enacted vestingin the Chairman the right to delegate his authority to sanctionprosecutions to such municipal officers as he considered were properpersons to whom the authority could be given. The municipalofficer to whom the Chairman has given his authority under section290 is the Secretary of the Council, and I find endorsed on theplaint the words, “ I authorize this prosecution, Jas. Jayatileke,Secretary, Municipal Council of Kandy, for Chairman.” It ismanifest that the Secretary in authorizing the prosecution did so onbehalf of the Chairman, and that the authority given by the Chair-man dated the 1st September, 1906, fully covered the act of theSecretary. The authority itself, with the verbal amendments Ihave made, runs as follows: —
Mr. James It. Jayatileke, Secretary of the Municipal Councilof Kandy, is hereby empowered to sign receipts, letters, certainlicences, and permits, and to endorse cheques received or issued onaccount of the Municipal Council, as well as do all acts*and give allnotices which the Chairman of the Municipal Council is empoweredto do or give under section 290 of Ordinance No. 7 of 1887 or any otherOrdinance. The authority to have effect from 1st September,1906. The Municipal Office, Kandy, 1st September, 1906. J. P.Lewis, Chairman, Municipal Council.” * There can be no questionthat the sanctioning of prosecutions under section 306 of theby-laws was one of the acts which the Chairman was empowered todo, and section 290 of Ordinance No. 7 of 1887 authorized him in plain .language to delegate his authority to any municipal officer. It isnot to be supposed that the Chairman would delegate his authorityto sanction prosecutions without exercising his discretion in regardto the proper officer, who should be so authorized, and in this, particular instance I find that the authority has been given to theSecretary, who is a responsible officer of the Council', and whoseauthority on the face of it shows that the discretion of the Chairmanhas been properly exercised.
For the reasons I have given, I would dismiss this appeal.
*
Appeal diemi88ed.