( 105 ]
Present: Mr. Justice Wood Benton.
THE SANITABY OFFICES v. FEBNANDO.M. C., Colombo, 1,448.
Neglecting to keep clean road anddrainin frontofpremises—employi of
owner—Police Ordinance . (No.16 of 1865)s.94—Implied repeal—
Municipal Councils' Ordinance(No.7 of 1887),ss. 170 and 171.
Held by Wood Bentoh J.—
That the provisions o£ section 94 of Ordinance No. 16 of 1865
in respect of streets must be considered to be impliedlyrepealed by sections 170and171' oftheMunicipal Councils’
Ordinance (No. 7 of 1887) in so far as the Municipality ofColombo is concerned.
That a mere employd of the real owner cannot be said to be
the “ occupier ” or the “ inhabitant,” within themeaning
of Ordinance No. 16 of 1885, of the premises on which heworks and therefore cannot be convicted under the abovesection of the Ordinance.
PPEAL from a conviction under section 94 of Ordinance No. 16
of 1865. The facts sufficiently appear in the judgment.
Sampayo, for appellant.
Bawa, for respondent.
22nd March, 1906. Wood Benton J.—
The appellant has been convicted 'by the Municipal Magistrate,
Colombo, under section 94 of “ The Police Ordinance, 1865 ” (No. 16
of 1865), of having neglected to keep clean a road and drain in front
(1) (1873) Grenier, Part 3, p. 45.(2) (1902) 6 N. L. B. 350.
( 106 )
of premises of which he is the “ occupier. ” Two objections areurged against the conviction—(i.) that, in so far ae the Municipalityof Colombo is concerned, section 94 of the Ordinance of 1865 hasbeen impliedly repealed by “ The Municipal Councils' Ordinance, ■1887 ” (No. 7 of 1887), sections 170 and 171 of which impose the dutyof nlaaning the streets, and for that purpose of providing dustboxes for the collection or rubbish, on the Chairman of the MunicipalCouncil; and X>i) that in any event the appellant, being only anemployd of the real owner of the premises (he was in fact in charge ofthe Grocery Department of the owner’s business, which was carriedon in the premises in question) could not be convicted either as the“ occupier ” of such premises or as an “ inhabitant ” of them withinthe meaning of later words in the same section. In my opinionboth objections are fatal to the conviction. The Police Ordinance,1865, is a general law. Then comes the later and special Ordinanceof 1887. It provides new machinery for the cleaning of the streets,and imposes the duty .of working it on the Chairman of the MunicipalCouncil, which in turn is invested with the power of levying rates onthe community to enable it to discharge its statutory obligations.
In so far as streets are concerned, I think' that, within the Muni-cipality of Colombo, the new machinery has superseded the provisionsof section 94 of the General Police Ordinance. It may well bethat the part of that section relating to private passages, &c.—ground not covered by sections 170 and 171 of The Municipal Coun-cil’s Ordinance, 1887—is still in force. But that is a question whichI have not now to decide. With regard to the second point, I amclearly of opinion that an employd in the position of the appellantis not an “ occupier ” of the premises on which he works; and the useof the words “ his house ” in the subsequent clause precludes himfrom being regarded as an “ inhabitant.”
I set aside the conviction.
THE SANITARY OFFICER v. FERNANDO