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Present : Garvin S.P.J.
WIJEYSINGHE v. MOHAMED.
567—P. C. Matale, 34,967.
Urban District Council—Regulations for prevention of contagious disease—Application of Ordinance—Quarantine and Prevention of DiseasesOrdinance, No. 3 of 1897.
'.Che Quarantine and Prevention of Diseases Ordinance., No. 3of-1897, may be made operative within the limits of .the. area ofan Urban District Council, A prosecution for the breach of aregulation passed under the Ordinance may be entered at theinstance of the Chairman of the Urban District Council.'
^^PPEAL from an acquittal by the Police-Magistrate of Matale.
Keuneman (with Abeysekere), for appellant.
H. V. Perera (with Gratiaen), for respondent.
Vernon Grenier, Acting Deputy Solicitor-General, for the Crown.March 21, 1930. Garvin S.P.J—
This is an appeal from an acquittal. The respondent was chargedwith having stored “ grain in quantities of more than 50 bags in .premises No. 58, Trincomalee street, Matale, which is not a rat-proof grain store, in breach of regulation 89 (c) (9) of the regulationsframed under section 4 of the Quarantine and Prevention of DiseasesOrdinance of 1897.” By a proclamation – in the GovernmentGazette of February 17, 1928, this regulation was applied to andmade operative within the area of the Urban District Council ofMatale. It has been found as a fact that the respondent did storegrain in quantities of more than 50 bags in the store referred to andit is an admitted fact that it is not rat-proof.
It was contended on behalf of the respondent that OrdinanceNo. 3 of 1897 must be treated as repealed for the purposes of thearea for which the Urban District Council of Matale has beenconstituted and that the regulation No. 89 made under and inpursuance of the powers created under that Ordinance was not andcould not be made operative within those limits. It was also urgedthat in the absence of a delegation such as is contemplated byOrdinance No. 3 of 1897 the prosecution is not sustainable. ThePolice Magistrate upheld those contentions and acquitted theaccused.
It is perhaps convenient to deal with the second of theseobjections at the outset. Assuming that Ordinance No. 3 of 1897is operative within the limits of the District Council of Matale, itwas clearly within the power of His Excellency to bring regulationNo. 89 into operation in that- area. I am unable to see why a 14
14J.N.B 11894 (10/51)
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1980petson who makes himself obnoxiousto this regulation cannot be
Garvinprosecuted at the instance of the Chairman of .the Urban District
Wijeyainghe The question for decision is whether Ordinance No. 3 of 1897«.must for the purposes of the area inrespect of which this Urban
0 mDistriot Council has been constitutedbe treated as repealed. The
Ordinances which are required by section 239 of the Local Govern-ment Ordinance of 1920 to be treated as repealed for the purposesof any area in respect of which an Urban District Council has beenconstituted are specified in schedule 7 and the portion of that schedulewhich is material to the question under consideration is as follows: —Ordinance No. 8 of 1866, intitled “ An Ordinance to provideagainst the spread of Contagious Diseases in this Island ” and allOrdinances passed in amendment thereof. The argument in shortis that Ordinance No. 3 of 1897, intitled “ An Ordinance to makeprovision for the prevention, introduction, and spread of plagueand other contagious and infectious diseases, ” is an Ordinancepassed in amendment of Ordinance No. 8 of 1866.
The purpose of Ordinance No. 8 of 1866 as set out in the preambleis " to provide against the introduction and spread of certainmalignant diseases generally believed to be of a contagious orinfectious nature.” This Ordinance is divisible into two parts.The first consisting of sections 2 to 9 authorizes the establishmentof boards pf health and contains certain provisions for controllingand preventing the spread of smallpox, cholera, or other diseaseswhich may from time to time be named by the Governor in aproclamation ; the second part consists of sections 10 and 11 andcontains the provisions enacted for the purposes of preventingthe introduction into the Colony and spread therein of infectiousor contagious diseases. The form which the legislation has takenis to vest in the Governor power to make regulations or orders toprovide for the steps to be taken in the following cases and forthe following objects : —
In respect of vessels which may at any time arrive at any port
or place in* this Island having on board any infectious orcontagious diseases ….
In case of any infectious or contagious disease of a malignant. nature, whether in man or beast, breaking out or spread-ing in any town or district of this Colony undercircumstances which render it advisable that measuresshould promptly be taken for securing the public health.
So much of Ordinance No. 8 of 1866 as relates to the introductioninto the Colony of infectious or contagious diseases, i.e., sections 10and 11, were repealed by section 2 of Ordinance No. 3 of 1897; inall other respects Ordinance No. 8 of 1866 remains unaltered.
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Ordinance No. 3 of 1897 is not expressed to be passed in amend-ment of Ordinance of 1866. The method adopted by the Legislaturewas to repeal the provisions of Ordinance No. 8 of 1886 whichrelated to the prevention or the introduction and spread of infectiousor contagious diseases and to enact a separate Ordinance for thatpurpose-
There are now two Ordinances : the one, Ordinance No. 8 of 1866,limited to the prevention of the spread of smallpox, cholera, andsuch other diseases as the Governor may by proclamation name;the other, Ordinance No. 3 of 1897, enacted with the object ofpreventing the introduction and spread of the plague and othercontagious and infectious diseases.
Ordinance No. 3 of 1897. is wider in its scope, and the wide powersto make regulations may result in overlapping, but the two Ordi-nances are in no sense interdependent. They are, on the contrary,wholly independent of each other, and the repeal of one of them willnot affect the other. The function of an amending Ordinance isby alteration or addition or by both alteration and addition orsubstitution to improve an existing Ordinance and make it moreeffective for the purpose it is intended to serve.
This, it seems to me, is what the Legislature, expressly refrainedfrom doing, preferring to excise from No. 8 of 1866 the provisionsdesigned to give effect to one of the purposes for which that Ordi-nance was enacted and to enact a sepavate Ordinance to carry outthat object.
There is no other Ordinance passed in amendment of OrdinanceNo. 8 of 1866, and the suggestion was made that the words inschedule 7 can be given no meaning unless Ordinance No. 3 of 1897was meant. This circumstance presents ho real difficulty. Thewords were possibly repeated ohce too often or perhaps wereinserted ex majorc cautcla by the draftsman who might conceivablyhave been misled by the Editor’s Note (as amended by OrdinanceNo. 3 of 1897) which will be found printed immediately below thetitle of Ordinance No. 8 of 1866 in the Bevised (1923) Edition of theLegislative Enactments.
Ordinance No. .11 of 1920, which is very wide, and comprehensivein its scope, vests in a District Council all such powers as are deemednecessary for the purposes of Government and administrationwithin the area for which it is constituted. An examination ofthe provisions of this Ordinance and a comparison with the Ordi-nances enumerated in schedule 7 shows that the reason for thisrepeal for the purposes of any area in which a – District Councilis constituted is that the Local Government Ordinance has createdand vested in District Councils as they are constituted all the
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1980 powers necessary for carrying out within their respective areasGarvin the objects and purposes for which the Ordinances enumerated inS.P.J. the schedule were enacted.
Wijeyainghe Among the powers committed to a District Council is the power«. to make and bring into operation rules by which it can achieve allMohamedjg aimed at by Ordinance No. 8 of 1866. There is therefore
no longer any reason why that Ordinance should continue to beoperative within the local limits assigned to such a Council. Butit has not and cannot be vested with the powers created by Ordi-nance No. 3 of 1897, which is concerned not merely with anyparticular local area but the whole Island. It may well be necessaryin the general interests of the Colony to make and enforce withina particular local area regulations which may not be necessaryfrom the point of view of the interests of that area nor within thepower of the District Council to make.
I am unable to see that the retention of Ordinance No. 3 of. 1897in full operation within the local limits of a District Council conflictswith the policy of the Legislature so far as it can be gathered from aconsideration of the relevant provisions of the Local GovernmentOrdinance.
Ordinance No. 3 of 1897 has not, in my opinion, ceased to beoperative within the area for which the District Council of Matalehas been constituted.
On the facts proved the accused has been shown to havecommitted a breach of regulation No. 89. He is convicted of thecharge laid against him.
In view of the doubt which appears to have existed as to whetherthis regulation was operative within the area, I propose to treatthis as a test case and accordingly sentence the accused to paya fine of Rs. 10.