SERASINGHA v. IBRAHIM SAIBO

049-NLR-NLR-V-07-SERASINGHA-v.-IBRAHIM-SAIBO.pdf


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1903.
August 19.
SERASINGHA v. IBRAHIM SAIBO.
M.C., Colombo, 8.
Public market established by Municipal Council of Colombo—By-law 14 ofchap. XIX. of by-laws in schedule A to Ordinance, No. 16 of 1881—Municipal Council’s Ordinance, No. 7 .of 1887, s. 232—OrdinanceNo. 8 of 1901—Lease of public market—Right of Council to issue licensesto stall-holders.
The by-laws as to public markets contained in chapter XIX. of theby-laws in schedule A to the Ordinance No. 16 of 1881 are not consistentwith the provisions of sections 226 to 232’ of Ordinance No? 7 of 1887,which deal with public markets, and were not legally in force at the dateof the framing of the Ordinance No. 8 of .1901.
Therefore, a conviction under by-law 14 cannot be sustained.
A lease of a building used as a public market, unless let subject to theprovisions of chapter XVI11. of the by-laws, would vest in the lessee anestate for the time being, the due enjoyment of which would be incom-patible with the use of that building as a public market; and no licensesfrom the Chairman of the Municipality or its Secretary for the occupa-tion of its stalls is necessary during the existence of the lease.
Therefore, a conviction under section 232 of the Ordinance No. 7 of1887 is bad.1
T
HE accused was till the end of December, 1902, a stall-holderin the public market at Slave Island established by the
Municipal Council of Colombo. He occupied two stalls undermonthly licenses issued to him. When the Council leased themarket for the year 1903, he was given notice to quit on or beforethe 1st January, 1903, but he continued to hold over and sellmutton. Thereupon he was charged with a breach of the by-law14 of chapter XIX. of the by-laws in schedule A to the Ordi-nance No. 16 of 1881, and also with selling mutton in breach ofsection 232 of the Ordinance No. 7 of 1887.
The Municipal Magistrate (Mr. E. F. Ondatje) acquitted the-
accused on 4th February, 1903. As to the first alleged offence, he
held that by leasing the market the Council had divested itself of
the right to issue licenses, and could therefore require the accused
to hold a license; that the leasing of markets would create a| u
monopoly, and all by-l^iws which would restrain trade were ultravires; and that by Jaw 14, chapter XIX. which empowers theCouncil to deprive a person of the right to carry on his trade in apublic market, was unreasonable and. therefore ultra vires. Asregards the second offence, he held that section 232 of the Ordi-nance No. 7 of 1887, was a dead letter, and not applicable to the
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accused; and that as it was wrong to refuse to allow the accused tocontinue in occupation, the accused was not guilty under section 232.
The complainant (a Municipal Inspector) appealed, with thesanction of the Attorney-General.
Van Langenberg, for appellant.
Domhorst, K.C., and Walter Pereira, for respondent.
Cur. adv. vult.
19th August, 1903. Layard, C.J.—
The accused was up to the end of December, .1902, a stall holderin the public market at Slave Island established by the Muni-cipal Council,and occupiedtwo stallstherein. Hewas charged
in this case with breach of the by-law 14 of chapter 19 of theby-laws in schedule A to the Ordinance No. 16 of .1881, and alsowith the offence of selling mutton in breach of section 234 of theOrdinance No. 7 of 1887. The Magistrate has acquitted theaccused on the first charge on the grounds (1) that by leasing themarket the Council had divested itself of the right to issue licensesand could not therefore require the accused to take out a license;(2) that the leasing of markets would create a monopoly and allby-laws which tend to restrain trade are ultra vires; (8) that theby-law whichallows the Council todeprive a person of the
right to carryon his tradein a public market isunreasonable,
and therefore ultra vires. And as to the second offence, on theground (1) that section 232 of the Ordinance was a “ dead letterand (2) that it was wrong to refuse to allow the accused to continueto use the public market.
The prosecutor being dissatisfied with the '.judgment of theMagistrate acquitting the accused, appealed to this Court. Hiscounsel at some length argued that the Municipal Council had notleased the market. I do not think it is open to the prosecutionto now raise that question; -the case before the Magistrate wasconducted on the premise that the Council had leased the marketfor the yearcommencingfrom the1st January,1903. This
statement -of fact is the fouriflat-ion of the petition of appeal tothis Court, and the prosecutor urges in his appeal that theMagistrate is wrong in holding that “ by leasing, the Council ceasedto have control over the market ”. It is clear that his counsel'*cannot be allowed by this Court now to' argue in contravention ofthat statement of fact, and of the main* ground on which thepetition of appeal is based to this Court.
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To arrive at a correct decision in* this cash it will be necessaryfor me to try and ascertain whai by-laws are now in force inColombo with respect to 'public markets. As far as I can see the
1903.
August 19.
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1003.
Avgust 19.Layabp.C.J.
whole subject is in a state of chaos. I will therefore endeavourto investigate it to the best of my ability.
The Ordinance No. 17 of 1865 enacted that the public market*in any town and the lands at present used as such in any Muni-cipality, were thereby vested in the Municipal Council of suchtown. 1 understand from the petition of appeal that the publicmarket in question was not in existence in 1865 but was subse-quently established by the Municipal Council of Colombo. Section151 of the Municipal Councils Ordinance gave the MunicipalCouncil of Colombo power to establish public markets within theMunicipality of Colombo and to frame and make by-laws for thebetter control of such markets, and to prohibit the sale of cattle,meat, fish, poultry, vegetables, fruit, and the like in places otherthan the markets established by fhe Council. We are notinformed as to the exact nature of the by-laws made by theMunicipal Council of Colombo in pursuance of the OrdinanceNo. 17 of 1865. I gather, however, from the Legislation of 1881that some difficulty had then arisen as the Municipal Council hadfrom time to time passed by-laws which were in excess of thepowers given to them by the then existing law, and the interventionof the Legislature was invited to sanction by legislative enactmentssuch by-laws as had been made by the Municipal Council of Colombo.Thereupon the Legislature passed the Ordinance No. 16 of 1881,declaring the by-laws set out in the schedule to that Ordinanceto be as legal and effectual as if they had been enacted by theOrdinance No. 17 of 1865.
One of the offences alleged to have been committed by theaccused is a breach of one of those by-laws. It will be necessarytherefore to consider whether the by-laws contained in chapter
of the schedule to that Ordinance, which deal with public •markets, are still in force, or .to what extent they are in force inview of the repeal of the Ordinance No. 17 of 1865, and Legislationsubsequent to the Ordinance of 1881.
The by-laws in chapter XIX. provide amongst other things fornotice of the opening of public markets, for the fixing by theorder of the. Municipal Council from time to time of the rents andfees to be paid, and for the, farming of the revenues of the rentsAnd fe*es of a public market. By-law 4 appears to me to alleviatethe hardship ‘which would arise from the enforcement of theprovision of the Statute Law enabling the Municipal Councilto absolutely prohibit the sale of fresh meat in places other thanthe markets provided by the Municipal* Council of Colombo. Bythat by-law all that the Municipal Council can prohibit, and thenonly with the sanction of the Governor and Executive Council, is
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file sale by any person outside his own dwelling-house or shop of 1903.any article of food within an area to be defined in a notice to be August 19.published in the Government Gazette, leaving it open within Layabd.C.J.suoh areas for butchers and others to carry on their trade in theirown private shops, provided they comply with the requirementsof by-law 12 and obtain a special license from the Council.
Possibly the by-laws contained in chapter XIX. were all in forceuntil the passing of the Ordinance No. 7 of 1887, they having beendeclared law by the Legislature. In 1887 it was considereddesirable by Government to legislate afresh and to- consolidateand amend the law relating to Municipal Councils in the Island.
In legislating afresh the Legislature provided in the OrdinanceNo. 7 of 1887 for public markets and private markets. In dealingwith the former it appears to have considered it undesirable toperpetuate the monopoly in favour of Municipal markets, so whilstre-enacting section 150, it was careful not to re-enact so much ofsection 151 as dealt with the prohibition of the sale of meat andthe like in places other than Municipal public markets. It alsoexpressly defined and limited by section 229 the purposes forwhich by-laws might be made in respect of Municipal markets.
It gave by section 231 the power to the Municipal Council to selland lease markets and to close them, and directed by section282 that permission to sell in a public market must be obtainedfrom the Chairman.
Now, if we compare the by-laws enacted in respect of publicmarkets by Ordinance No, 16 of 1881 with the provisions ofthe Ordinance of 1887, we find that the by-laws contained inchapter XIX. are based on the assumption that the MunicipalCouncil has the right' to prohibit the sale of articles of food withincertain areas in which Municipal public markets are situated,which is repugnant to the provisions of the Ordinance of 1887.
The by-laws limit the disposing powers of the Council over publicmarkets merely providing for the letting to farm the stallagerents, of any public market, whilst the Ordinance No. – 7 of 1887provides for the out and out sale or lease of such market or anypart thereof on such terms as the Municipal Council may think fit.
The by-laws provide for notice in jbhe Gazette of opening of amarket, which is reasonable in view of the power given 6y sufthby-laws to prohibit the sale of food elsewhere tlifan in a publicmarket except with the express permission of the MunicipalCouncil.. The Ordinance requires no such notice. The by-lawsprovide for the recovery by distress of the rents and fees due inrespect of any market by the i^Tunicipal Council or their lessees,the Ordinance distincfly provides (section 227) for the recovery
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)#<>3.0| rents ai,j jees by the Municipal Council alone, as if the
j^nennts were taxes due under the Ordinance. The OrdinanceI.ayarp.i -i. nowhere provides that a stall-holder shall not use a stall without thelicense of the Secretary of the Municipal Council (by-law 14).On the contrary, the issue of such licenses is not required, butsection 232 enacts a penalty for selling in a market without thepermission of the Chairman, which apparently need not bereduced to writing, and which cannot be dispensed with by aresolution of the Council, though the issue of a license can be, byby-law 14. The by-laws require that the stallage rent and feesmust be “ appointed by special order of the Council ”, and theOrdinance provides that the Municipal Council may charge suchrent and fees as to them may seem fit.
It follows' that the by-laws contained in chapter XIX. ofthe Schedule A to the Ordinance No. 16 of .1881 are not consistentwith the provisions of sections 226 to 232 of Ordinance No. 7 of1887, which deal with public markets. Now, in enacting theOrdinance No. 7 of 1887 the Legislature by section 2 provided therepeal of the Ordinances in the Schedule A thereto to the extent-in the third column of that schedule mentioned. Schedule A inthe third column expressly provides for the repeal of the wholeOrdinance No. 16 of 1881, excepting section 9 and such of theby-laws in schedule A to that- Ordinance as are not inconsistentwith the Ordinance No. 7 of 1887. The by-laws in chapter XTX.of Schedule A of the Ordinance No. 16 of 1881 are manifestlyinconsistent with the sections of Ordinance No. 7 of 3887 above-mentioned, and are consequently repealed by the provisions ofsection 2 of that Ordinance.
• Our attention has been invited to section 2 of the Ordinance-No. 8 of 1901. That section only saves such by-laws contained inthe schedule to the Ordinance No. 16 of .1881 as were in force atthe date of the passing of the Ordinance No. 8 of 1901, but for thereasons given above in my opinion the by-laws contained inchapter XTX. of Ordinance No. 16 of 1S81 were not legally in force-at that date. It follows from the abovq, that the accused cannot beconvicted of the breach of any by-law therein contained.
The question remains, is accused guilty of an offence under;section 232 of Ordinance No. 7 of 1887? That section has not beenrepealed, and it *is impossible for this Court to treat it as a deadletter ” as the Magistrate" appears to consider it should be. TheAttorney-General has sanctioned this appeal on the understandingthat the Municipal Council had leased the market for a year; andbecause that Council wished to cqntend that notwithstanding that-lease the Council still continued to. have ‘ control thereof. The
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appellant therefore, as 1 said before, cannot argue before thisCourt that the Municipal Council was still in possession of thepremises not having leased them. The position is this: that for thepurpose of this appeal we are bound to assume that the MunicipalCouncil has leased the premises for a year. We do not know whatconditions have been attached to the lease in question. Section 231of Ordinance No. 7 of 1887 gives large powers of leasing to the-Municipal Council, and it appears to me that they can by leasing thepremises under that section give up all control over the mavket,and thereby the market would cease to be a public market for theperiod of the lease, and if used as a private market by the lesseethe provisions of section 233 to 245 would then come intooperation in respect of such market and the public health wouldbe thereby safeguarded. The Municipal Council has apparentlytaken the same view of the provisions of section 231, for when in1900 they leased these premises they left to their lessee thediscretion as to who should occupy the stalls in the market, subjectto the condition merely that the occupants hold a butcher’s licenseand that the stall holders in possession should continue in posses-sion under the lessee. Again, when the accused asked for alicense to sell in the market, he received the reply from theChairman that a license could not issue as the market was leased fortwelve months. The reason why the provisions of section 232 havenot been enforced from time to time appears to be that it has beenthe custom for many years to lease the market under the precedingsection, and the Municipal Council have recognized that in sodoing they have lost the control of the .market. In my opinionwhen a market is sold under section 231 or leased thereunder itbecomes closed as a public market, and there is no necessity forany one to obtain permission from the Chairman under section 232to sell in the premises sold or in the premises demised during thecontinuance of such demise.
Such being my opinion, I cannot see my way to reverse theacquittal of the accused.
I would dismiss this appeal.
Wksdt. J.—
<T>
I have had the advantage of perusing the judgment of the Chief'Justice. He has referred so fully to the facts of thS case that I
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need not recapitulate them. It appears to tne that the by-laws ofchapter XIX. of the schedule to Ordinance No. 16‘ of 1881 are inmaterial particulars inconsistent with the provisions, of theOrdinance No. 7 of 1887, and that ,to that extent those by-laws arerepealed by section 125 of the Ordinance. The Ordinance No. 17
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1903.of 1865 did not authorize the Municipal Council to lease or
August 19. temporarily alienate any public market, and the only power ofiVendt, J. this nature which the Council possessed was that conferred byby-law No. • 3 of chapter XIX. which authorized the Council to“ demise or let to farm ” for any term not exceeding twelve monthsall or any of the stallages, rents, and fees from time to time pay-able in any public market. This by-law, although in excess of thepowers conferred by the Ordinance of 1865. was rendered valid bythe Ordinance No. 16 of 1881. The later by-laws in chapter XIX.speak of the farmer of the rents and fees as “ the lessee ”, thoughthe term imports something very different from what is contem-platd by section 231 of the Ordinance of 1887. By-law No. 14,under which the first count in the charge is laid, might perhaps becapable of being read as applicable as well to markets demisedor let under by-law 3 as to markets conducted by the Councilitself, but I think it is primd facie inapplicable to a public marketleased under section 231. If it were applicable to markets leasedit would be equally so to markets sold under that section. Look-ing at the provisions as to the issue of licenses to persons usingthe market, I think that by-law 14 is inconsistent with section 232so far as they both refer to public markets under the control of theCouncil, and in the first place I am unable to draw any distinctionin substance between the act of holding or occupying a seat orstall in a public market (which is an act requiring to be licensedunder by-law 14) and the act of selling or exposing for sale anyarticle in a public market, for which section 232 'renders .the per-mission of the Chairman necessary. Both enactments are aimedat making a license necessary for the use of the market. In thesecond place, I think the effect of section- 232 is to substitute theChairman as the licensing authority in place of the Secretary whois designated in the by-law. Although in a sense the two enact-ments may be said to be consistent inasmuch as a person mayobtain both the Secretary’s license and the Chairman's permission,I cannot think that the Legislature intended that the two require-ments should co-exist, and that a person in order to use a publicmarket should obtain both the. perlnission of the Chairman andthe license of his subordinate officer, the Secretary. I am there-fore qf. opinion that no commotion could be sustained under by-law14. But even if this by-law were consistent with the provisionsof the- Ordinance, I think that it cannot be made to apply to a .casein which the Counf.il ha*s leased the market, as they must be takento have done in the present instance.
Then, as to the second count' I think section 232 has effect onlyin the case of a market not leased. Thp lease contemplated by
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section 231, like the analagous case of sale, is a lease of a public 1008.market or any part thereof for which the Council has no further August 19.use, and this is shown by the power which the section proceeds Wendt, J.to confer of closing such market or any part thereof. By the saleor lease it ceaseB to be a public market, and therefore section 232ceases to be applicable.
For these reasons I agree in dismissing the appeal.
Middleton, J.—
I have had the great advantage of perusing the judgments ofthe Chief Justice and my brother Wendt, and I -do not proposetherefore to set out the facts.
The case before the Magistrate proceeding on the footing thatthe Municipality had granted a lease of the meat market, includ-ing the stall, it is sought to punish the respondent for holdingover without a license contrary to the terms of by-law XTV. ofchapter XIX. of the by-laws rendered statutory by section 9 ofOrdinance No. 16 of 1881.
The petition of appeal recapitulated the existence of a lease,and it is deducible from the evidence of a clerk, that a licensewas refused to the accused on the ground there was a lease,although there was not directly stated.
If there was a lease, it seems to me there would be an alienationpro tanto, and consequently the building must necessarily be-deprived of its character as a public meat market, and be at the-disposal and under the control of' the lessee to sublet as lodgings,or otherwise subject to the conditions of the lease.
What those conditions are we do not know, and it is conceiva-ble that they might have the effect of retaining the character ofthe place let as a public meat market, but we have it in evidencefrom the Secretary that during the period there were “ leases no'stallage license was issued by the Council ”, and from the clerk thatno licenses have been issued to the present lessee or any one else.
It is clear therefore that the Municipality did not consider thatthe sub-lessees of their lessees>of the market were bound to obtainlicenses under rule' 14, and in that view I agree. The leasedmarket, in my opinion, might be ysed for sleeping rooms oroffices, and would thus lose its character as a public market/, and,no licenses would be required for occupying its stalls. -»
I think therefore on the ground that a lfease of a building usedas a public market, unless it were let subject to the provisions ofchapter XIX. of the by-laws, would/vest in the lessee an estate forthe time being, the due enjoyment of which would be incom-patible with the user of the property leased as a public market,.
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mt:;. that no licenses for the oeeupation of its stalls as a public marketAn?“*i l!>- could be exacted or required during the existence of the lease, andUidoIeton, on this ground I would hold that neither under rule 14 of theJ- by-laws, nor under section 232 of the Ordinance No. 7 of 16)87, hasthe accused committed any offence rendering him amenable topunishment.
1 had some doubt as to whether I could agree that all theby-laws under chapter XIX. made under the Ordinance of 1881 arerepealed as being inconsistent with the terms of certain sectionsin Ordinance No. 7 of 1887, but having carefully considered thequestion it is clear that the inconsistencies pointed out by theChief Justice exist.
It was also clear that rule 4 was leased upon Legislation whichhas been repealed, and not re-enacted in Ordinance No. 7 of 1887,and that the terms of section 232 of the Ordinance are not inaccord with rule 14.
I agree therefore that in respect to the inconsistencies mentionedby the Chief Justice the Ordinance has in each case over-riddenand repealed the by-laws including rule 14, and to this extentI agree that chapter XIX. has been repealed by the Ordinance, andconsequently that accused. for this reason cannot be convictedunder rule 14, and that the acquittal must be upheld.