Devassia vs Municipal Commissioner, Changanacherry and Another

Vaidialingam J.

In these two writ petitions, Mr. T. K. Narayana Pillai, learned counsel for the petitioners, who are, no doubt, different, challenges the proceedings initiated as against his clients by the Changanacherry Municipal Council for what according to them is the use of the particular premises in question without taking a license under the provisions of the Travancore District Municipalities Act, (Travancore Act XXIII) of 1116. Before I consider the actual grounds of attack that have been raised by the learned counsel, a few facts may be stated.

Section 261 of the Act gives power to the Municipal Council to publish by notification in the Gazette and by beat of drum prohibiting the use of any particular place within the Municipal limits or at a distance within three miles of the Municipal limits for any one or more of the purposes specified in Schedule III without a license being taken from the executive authority and also except in accordance with the conditions specified therein. The other matters mentioned in section 261 do not arise for consideration in these proceedings.

In Schedule III various items are mentioned and the heading for that Schedule is "Purposes for which premises may not u/s 261 be used without a license." In particular, two articles come up for consideration in O. P. No. 2968 of 1961, namely bricks and tiles. So far as these two items are concerned, there is already an entry in the schedule itself dealing with bricks and so far as the actual Schedule itself is concerned, the requirement was regarding manufacture of bricks. Again, so far as tiles are concerned, that item was also under the schedule and the premises cannot be used without a license in respect of manufacture of tiles.

So far as the two other items, with which we are concerned in the connected O. P. 2979 of 1961, are coffee husk and tea, there is no controversy that these items as such were not included in the schedule.

There is a general provision in the schedule itself to the effect: "any purpose or the doing in the course of any industrial process anything, which in the opinion of the executive authority, is likely to be dangerous to human life or health or property or is likely to create or cause a nuisance." That is, prima facie, it is open to the executive authority, if he is satisfied about the matters mentioned therein, to further declare that no premises can be used for any purpose or for doing any industrial process which in his opinion is likely to be dangerous to human life, or health or property and to include that item also in the Schedule.

In O. P. No. 2968 of 1961 it will be seen that by a notification or, as it is called, by a bye-law framed by the Municipal Council with the approval of the State Government, license has to be taken even in respect of storage of bricks, Item No. 13 relates to bricks, namely (a) manufacture, and (b) storing for wholesale trade. So far as manufacture is concerned I have already mentioned that the manufacture of bricks was taken is by a specific entry in the schedule itself. Similarly, in respect of tiles under this notification, which is item No. 117, license was required for (a) manufacture and (b) storing it for wholesale trade, and (c) storing for retail trade. Here again, it will be noted that the license was made necessary for manufacturing of tiles and it was also provided in the schedule itself.

But so far as the other two items which are the subject of O. P. No. 2979/1961, namely coffee husk and tea, are concerned, I have already mentioned that these items as such are not taken in by the Schedule of the Act. The item, coffee husk, is brought in as item No. 40 in this notification to the effect. "Coffee husks-Storing for wholesale trade and Coffee husks, for retail trade" and the amount of license fee is also mentioned therein. Similarly in respect; of tea which is included as item No. 122, again provision is made (a) for storing for wholesale trade and (b) for retail trade and here again the amount of license fee is mentioned.

This notification is the one published in the State Gazette on 27th January 1959 and these items are all mentioned therein.

According to Mr. T. K. Narayana Pillai, learned counsel for the petitioners, the provisions contained in Schedule III of the Travancore District Municipalities Act (framed u/s 261) give an unrestricted and arbitrary power to the executive authority to include as an item in respect which a license is required without any guidance being furnished by the Legislature.

I am not inclined to accept this contention for this reason, namely, that apart from the fact that a Division Bench of this court consisting of the learned Chief Justice and Mr. Justice Raghavan in the decision reported in Thomas Joseph v. State of Kerala and another (1961 K. L. J. 785) has considered an identical question and held against the petitioner, I am also satisfied that even on the wording of the particular clause occurring in Schedule III, in the circumstances of this case, it cannot certainly be held that there is any such arbitrary or unrestricted power given to the Executive Authority without any guidance being given by the Legislature itself.

I have already referred to the particular provision contained in Schedule 111 and in my view that itself circumscribes the scope of the functions to be exercised by the Executive Authority. That is, apart from the fact that he must have due regard to the various matters provided for in the entries themselves in Schedule III and also apart from the various provisions of the statute itself, this particular clause itself gives him power to come to a conclusion that a particular purpose or the doing in the course of an industrial process anything is to be included in the schedule and that itself can be done only if that purpose or the doing in the course of an industrial process anything is likely to be dangerous to human life, or health or property or is likely to create or cause a nuisance:

Here again, Mr. T. K. Narayana Pillai has drawn my attention to the definition of the expression ''nuisance'' in section 3(16) of the Statute. That only says that the authority must have due regard to those matters. Even apart from that, as I mentioned earlier, the learned Judges in the decision reported in Thomas Joseph v. State of Kerala and another (1961 K. L. J, 785) had to consider a similar attack based upon this particular clause occurring in Schedule III of the statute itself. The learned Chief Justice speaking for the court in that case, after referring to the decision of the Supreme Court and also having due regard to the various other provisions occurring in the statute itself, is ultimately of the opinion that they cannot accept the contention that any untrammelled or unguided or arbitrary powers have been given to the Executive Authority.

Even apart from that, I very much doubt whether it can be called a delegation in the sense it is understood in law because it will be seen that the ultimate authority to decide as to whether any particular premises which is being used for a particular purpose is to be licensed or not, rests with the Municipal Council itself, as is clearly seen from the provisions contained in section 261 of the Act. Therefore, the Executive Authority, at the most, may be what I will call a sort of fact finding authority to collect the necessary materials and form a prima facie view for the guidance of the Municipal Council that a particular activity requires to be controlled. But ultimately the decision as to whether the view of the executive authority is to be accepted or not rests with the Municipal Council and unless that authority takes a final decision in that matter, no license fee as such can be levied and in this matter it may be mentioned that Mr. Rama Shenoi, learned counsel for the contesting respondents, has pointed out that the Executive Authority made only a suggestion and that suggestion was accepted by the Municipal Council and the Municipal Council''s view also has been finally accepted by the State Government. Therefore even considering the question from the point of view of delegation to the Executive Authority, it cannot certainly be said that there has been any unfettered or unguided discretion given to the executive authority as such. Naturally, Mr. T. K. Narayana Pillai urged that the view expressed by the Commissioner as well as the Health Officer of the Municipality that storage of bricks and tiles is injurious to public health cannot be accepted. I am not impressed with this contention either. After all when the authorities charged with the function of arriving at a sort of subjective satisfaction in this matters have acted reasonably and properly and having due regard to the provisions of the Act, unless it is alleged that the decision of that authority is in any manner mala fide or arbitrary or totally unrelated to facts, it is not the province of this Court to go behind the opinion of that authority.

Then there was another contention raised by the learned counsel that this provision regarding the taking out of a license amounts to a restriction on the freedom of trade given under Article 19(1)(g). Even that aspect has been considered by the learned Chief Justice and Mr. Justice Raghavan in the Division Bench judgment referred to above and on that aspect also the learned Judges rejected a similar contention. Following respectfully the views expressed in the said decision I have to reject this contention also. The other writ petition, namely, O. P. 2979 of 1961, need not detain me because I have already indicated that the two items under attack, namely, coffee husk and tea have been separately included as items 40 and 122 in the bye-law. No doubt, these items were not in the original schedule but by virtue of the powers given under the residuary clause occurring in Schedule III itself, on the recommendation of the Executive Authority, the Municipal Council has ultimately decided to levy license fee. There again, the Executive Authority and the Health Officer have also made averments to the effect how exactly the storing of coffee husk and tea is injurious to public health. For the same reasons which I have given in the other writ petition, the objection regarding imposition of a license fee for the storage of coffee husk and tea will have also to be rejected. If that is so, both the writ petitions will have to be dismissed. The parties will bear their own costs in both the writ petitions.