012-NLR-NLR-V-66-THE-URBAN-COUNCIL-OF-WELIGAMA-Appellant-and-I.L.M.M.-ASURAF-and-others-Respo.pdf
H. N. G. FERNANDO, J.—The Urban Council of Weligama v. Asuraf
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Present: Sansoni, J., and H. N. G. Fernando, J.TH ft URBAN COUNCIL OF WELIGAMA, Appellant, and
L. M. M. ASURAF and others, Respondents
S. C. 41011959—D. G. Matara, 365j MB
Urban Council—Lease of a meat stall in a market—Rate or fee payable—Urban.Councils Ordinance, No. 61 of 1939, ss. 46, 48 (e) (ii), 170 (ll) {m)—MunicipalCouncils Ordinance, No. 29 of 1947, ss. 156, 158, 272 (5).
The only fee leviable in respect of a stall in an Urban Council market isthat fixed by by-law.
_/.PPEAL from a judgment of the District Court, Matara.
N.K. Ghofcsy, Q.C., with K. N. Choksy, for substituted plaintiffs-appellants.
Ranganathan, for defendants-respondents.December 13, 1960. H. N. G. Fernando, J.—
Cur. adv. vult.
The Weligama Urban Council as plaintiff for whom the Special Commis-.sioner Weligama Town was duly substituted sued the defendants for therecovery of rent claimed by the plaintiff to be due from the 1st defendantupon the lease of a meat stall at Weligama. The decisive question whicharose was whether the Council had power to let the meat stall, by meansof calling for tenders, to the highest tenderer. If there was this powerthen the Council or its successor, the Special Commissioner, would clearlybe entitled to judgment against the 1st defendant and his guarantors,the 2nd and 3rd defendants. The meat stall in question forms part ofthe public market maintained by the Urban Council. Express provisionregarding the letting of stalls in a public market is contained insection 170 (11) (ra), of the Urban Councils Ordinance No. 61 of 1939,which empowers a Council with the approval of the Minister to makeby-laws for the following purpose :—
“ in the case of public markets, the fixing and recovery of fees orrents for the use of the market premises or any part thereof, and of thebuildings and bathing-places connected therewith, and for the leasingof the right to collect any such fees or rents ”,
and in fact by-laws made under corresponding power conferred by theformer Local Government Ordinance. No. 11 of 1920 are now in force aBthough made under the present enabling power. The relevant by-laweare the following :—
“ 3.(1) No person shall use or occupy any stall, seat or space in a
public market, unless he is the holder of a licence issued by or by theauthority of the Chairman, or otherwise than in accordance with theseby-laws and with such conditions as may be set out in the licenceissued to him.
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H. N. G. FERNANDO, J.—The Urban Council of Weligama v. Aauraf
(2) Every such licence shall be in the formset out in Schedule A hereto.
“ 4. Every holder of a licence shall pay, in respect of the stall,seat or space occupied by him, rents or fees at the rates set out inSchedule B hereto.”
According to the former Secretary of the Urban Council who was theplaintiff’s witness, the rent or fee payable under these by-laws for thestall occupied by the 1st defendant would be Rs. 30 per year. Uponthe basis of the enabling power and the by laws to which I have referredabove, the following issues were framed at the trial on behalf of thedefendants :
“ 10. Has the plaintiff-Council the power under the existing lawto lease the Galbokke meat stall of Weligama as stated in para (2) ofthe plaint ?
“11. What is the fee or rent that the plaintiff-Council has fixedunder the by-laws framed under section 170 (11) (m) of the UrbanCouncils Ordinance No. 61 of 1939 for the use of the said marketpremises or any part thereof?
“ 13. What is the total amount that the plaintiff-Council is legallyentitled to levy from the 1st defendant in respect of the use of the saidmeat stall forming part of the Galbokke public market and the issue ofthe Butcher’s Licence? ”
The learned District Judge has answered issue No. 10 in favour of thedefendants and accordingly dismissed the plaintiff’s action but since anargument has been addressed to us on appeal which does not appear tohave been considered in the judgment it seems desirable aow to consider it.
Prima facie the by-laws which are quite clearly intra vires and dealdirectly with the recovery of rents and fees for stalls in a public market,appear to conclude the matter in favour of the defendants for accordingto them the proper rent for the stall in question would be (according tothe computation of the former Secretary) only Rs. 30 so that the fixationof any other rent through tender would be beyond the Council’s powers,but reliance was placed on section 48 (e) (ii) which gives power to theCouncil to “ let any land or building belonging to the Council or vestedin it otherwise than by virtue of section 44 or section 46.” Section 46provides for the vesting in an Urban Council of certain classes of property,including inter alia :
“ (c) all public markets and all works, erections or structures for thebenefit or convenience of the public which may be constructed, erected,or provided under this Ordinance, or which may have been constructed,provided, or erected under any Ordinance hereby repealed, or whichmay be otherwise transferred to the Council or to any local authorityof which the Council is the successor. ”
Apparently the site on which the present market stands was acquiredby the Crown on application made by the former Sanitary Board ofWeligama and thereafter vested in the Board by a vesting order under
H. N. O. FERNANDO, J.—The Urban Council of Weligama v. Asuraf
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the Small Towns Sanitary Ordinance of 1892. In view of that order it iscontended that the market in question was not vested in the Councilunder section 46 ; that therefore the market is not excluded from thescope of section 48 (e) (ii) and that the Council therefore had power tolease the market or a portion of it.
This contention I am unable to accept. In the first place the variousclasses of property enumerated in section 46 (such as public parks, and.gardens, public roads, streets, canals and bridges, public markets, publiobuildings, lamps, sluices, dams, etc.) quite clearly comprehend propertypossessed by the Council for the purpose of providing public services andamenities and the nature of these classes of property is inherently such thatthe idea of leasing any such property to private individuals would bealmost absurd. Secondly, while it is correct that the site on which themarket how stands was once a bare land and might in that conditionhave been leased out, nevertheless that site has now been converted intoa public market, the premises whereof are now within the terms of section46 (c) “ works, erections or structures for the benefit of the public whichmay be constructed …. under this Ordinance ….or under any Ordinance hereby repealed”, i.e. the Small TownsSanitary Ordinance.
There is yet another relevant consideration, namely, that when aperson is given the right to sell meat at a public market what is leasedto him is not the soil and premises of the market or of a portion thereofbut rather (in the language of the by-law making power) the right to “ theuse of the market premises or a part thereof ” or (in the language of theby-law itself) the right to “ use or occupy a stall, seat or space in a publiomarket ”. In fact even the tender Notice P4 invited tenders for “ thelease of the Council's meat stalls ”. The actual transaction in thecontemplation of the parties was not that the 1st defendant would becomethe lessee of a part of the public market.
It is interesting in this connection to note that section 272 (8) of theMunicipal Councils Ordinance, No. 29 of 1947, is not in the same terms assection 170 (11) (m) of the Urban Councils Ordinance. Section 156 ofthat Ordinance confers on a Municipal Council the power to charge suchrents and fees as it may seem fit for the use of, or the right to expose goodsfor sale in, public markets ; so that a Municipal Council need not adhereto scales of rents or fees fixed by by-law. In addition section 158empowers a Municipal Council to let on lease on such terms as it mayseem fit any public market or part thereof.
No similar powers are conferred by the Urban Councils Ordinance, andaccordingly the only fee leviable in respect of a stall in an Urban Councilmarket is that fixed by by-law.
For these reasons I would affirm the judgment appealed from anddismiss the appeal with costs.
Sansoni, J.—I agree.
Appeal dismissed.