Stanunathan vs A.A. Aziz

K. Sadasivan, J.—These appeals arise from the decision of the Honorary First Class Bench Magistrates'' Court, Quilon in S.F. - Nos. 153 and 159 of 1966, on-the file of their court acquitting the accused in both the cases. The accused A.A. Aziz and K. Balakrishna Pillai respectively in the two cases, were prosecuted by the Health Inspector of Quilon Municipality under sections 284 and 355 of the Kerala Municipalities Act, 1960-Act 14 of 1961 (shortly stated the Act) for storing and selling kerosene within the municipality without license. The accused pleaded that they having taken the necessary license from the District Supply Officer, Quilon under the Kerala Kerosene Control Order, 1965 (shortly stated the Order) are not bound to take another license from the municipality. This contention was upheld by the learned Magistrates and the accused have accordingly been acquitted. The appeals have hence been preferred by the Health Inspector, The question arising for consideration is whether a person holding a license under the Central Act (the Order) has been passed in exercise of the powers conferred by sub-rule (2) read with sub-rules (3) and (9) of Ride 125 of the Defense of India Rules, 1962 is bound to take another license under the State Act. Before dealing with the question, it may be pointed out that the license alleged to have been taken under the Order was not produced in the case and the learned Magistrates have proceeded on the assumption that the accused are, in fact, the holders of such license. Anyway, the license contemplated under the Order is a license authorizing the holder to carry on business whether wholesale or retail in kerosene. Wholesale license will be granted by the Collector, and retail license by the District Supply Officer. Under S. 284 of the Act the license contemplated is for storing kerosene anywhere within the municipality. It says that:

no place within municipal limits shall be used for any one or more of the purpose specified in Schedule lit without the license of the Commissioner.......................

In Schedule III, kerosene would come under the head "oil" and license is required for ''storing, packing, pressing, cleaning, preparing or manufacturing by any process whatever or boiling.'' So, the Scope of the two licenses is slightly different - one is for carrying on business in kerosene and the other for storing.

A Division Bench of the Bombay High Court in Lalji Mulji v State (I.L. R. 1965 Bom. - 899) had recently to go into the question whether a person holding a license under the Petroleum Act (Central Act) could be called upon to take a further license under the Bombay Municipal Corporation Act for the storing of petrol and it was held that even if the State Act made an incidental encroachment upon the Central Act, it was not rendered invalid thereby. There, the learned Judges would observe:

The subject matter of the two legislation are not the same although some of the provisions may overlap. It is also held that, even if the provisions overlap, there is no repugnancy between the two Acts, because by "its own premises" the Petroleum Act, 1934 is not meant to be exclusive but is supplementary to, and contemplates the existence of State Acts relating to the storage of petroleum. Therefore, there is no repugnancy.

The learned Judges further observed:

Mr. Ganatra contended that the provisions of S. 394 of the Bombay Municipal Corporation Act must be read subject to the notification issued under S. 31 of the Petroleum Act. We have already pointed out that the question as to whether the Parliament continues to have the power of limiting the operations of the state enactment after the promulgation of the con situation by issuing a notification is a moot one. Assuming, however, that such a notification can be issued so as to limit the operation of the state enactments, still, we are unable to understand how the notification comes in the way of the requirement of a license as laid down by S. 394 of the Bombay Municipal Corporation Act.

It is, therefore, competent for the municipality to collect the license for storing kerosene under S. 284 of the Act.

The same view is seen to have been taken by the Calcutta High Court in Sen Mahasay and Another Vs. Corporation of Calcutta, . There, the question arose whether a person holding a license under Rule 50 of the Rules made under the Prevention of Food Adulteration Act, 1954 should take another license under the Municipal Act for tuning an eating house. The prosecution case was that the accused were carrying on business of an eating house at the premises of the municipality without a license under S. 442 of the Calcutta Municipal Act. The defense was that the accused were not carrying on any business of eating house at the said premises but they have a sweetmeat shop mainly for selling various kinds of sweetmeat to the customers and occasionally some of the customers used to taste the sweetmeat sitting there before purchase. The petitioners had obtained a license under the Prevention of Food Adulteration Act. Repelling the defense it was held that:-

Section 442 of the Calcutta Municipal Act has got a distinct entity untrammeled by the provisions of R. 50 of the Prevention of Food Adulteration Rules. An eating house cannot be run without a license under S. 442 of the Municipal Act, although the person running it has obtained a license under R. 30 of the Prevention of Food Adulteration Rules

On the above authorities I would hold that S. 284 of the Act is untrammeled by the Order passed under the Defense of India Rules. The two are two distinct entities and the purposes are also different. For storing kerosene within the municipality a license has to be taken under S. 284 read with Schedule III of the Act even if a person is holding a license under the Order. In the result, the order of acquittal in, both the cases is set aside. The accused are found guilty and convicted under S. 355 read with S. 284 of the Act and they are sentenced each to pay a fine of Rs. 20/- in default of payment of fine they shall undergo simple imprisonment for four days each. The license for payable by each of the accused will be recovered and paid over to the municipality as per S. 363 (11) of the Act. Time for payment of fine, one month from this date.. Both the appeals are allowed.