P.J. GEORGE Vs. MUNICIPAL COMMISSIONER TRICHUR AND ANR.
HIGH COURT OF KERALA
Municipal Commissioner Trichur And Anr.
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M.S. Menon, J. -
(1.) THE Petitioner is running the Government distillery at Trichur in accordance with the provisions of Ex. A, an agreement dated the 2nd Kumbhom 1128. The Trichur Municipality has demanded from him a licence fee of Rs. 1000/ - per year in pursuance of a notification published by the Municipal Council under Section 255(1), Cochin Municipal Act, XVIII of 1113, and the Petitioner's contention is that the demand cannot be supported.
(2.) EXHIBIT B is the order of the Municipal Commissioner (first Respondent) negativing the Petitioner's contention and Ex. C is the order of the Municipal Council (second Respondent) affirming the decision of the Municipal Commissioner. The prayer In the petition is that Exs. B and C "be quashed by a writ of certiorari or other appropriate writ or direction and also that the first and second Respondents be restrained by an appropriate order from realising from the Petitioner the license fee for the year 1953 to 1954 for carrying on the business of the Distillery." Sub -section (1) of Section 255 omitting the proviso thereto reads as follows:
The Council may publish by notification in the Cochin Government Gazette and by beat of drum that no place within Municipal limits or at a distance within one mile of such limits shall be used for any one or more of the purposes specified in Schedule v. without the license of the executive authority and except in accordance with the condition specified therein," Purposes (r) and (s) of Schedule v. are "manufacturing or storing anything from which offensive or unwholesome smells arise,
and using for any industrial purpose any fuel or machinery"
and there can be no doubt that the Petitioner is using the premises for those purposes as part of his Activities in the manufacture and supply of arrack under Ex. A.
(3.) THE main contention of the Petitioner before us, however, is not that there is no user of the premises for any of the purposes specified in Sch. v. but that he is not liable to take out a licence as Sub -section (3) of Section 256, Cochin Municipal Act is ultra vires of the Constitution in that it endows the executive authority with a naked and arbitrary power and thus constitutes a violation of the fundamental right guaranteed by Article 19(1) (g) "to practise any profession, or to carry on any occupation, trade or business.";
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